Court filing
Defendant's Memorandum on Sequence of Detention and Competence Determinations — United States v. Evan Edwards (a/k/a Ian Heringa) and Joshua Edwards
No. 6:22-cr-00201-AGM-LHP · Doc. 79 · Docket on CourtListener
Full text
Case 6:22-cr-00201-AGM-LHP Document 79 Filed 02/17/23 Page 1 of 14 PageID 336
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Case No. 6:22-cr-00201-WWB-LHP
)
EVAN EDWARDS, )
)
Defendant. )
)
DEFENDANT’S MEMORANDUM ON SEQUENCE OF
DETENTION AND COMPETENCE DETERMINATIONS
COMES NOW, the Defendant, Evan Edwards [hereinafter “Defendant”], by
and through the undersigned counsel, and in compliance with this Court’s ore tenus
instructions at the hearing held on January 26, 2023, and submits the instant
memorandum on the issue presented.
I. Procedural and Factual Footing
The Defendant was indicted on December 7, 2022 on various counts,
including Conspiracy to Commit Bank Fraud, Bank Fraud, and Visa Fraud. Dkt. 1.
He was arrested on December 14, 2022 on a previously issued warrant. Dkt. (un-
numbered) of 12/14/22 & Dkt. 10. Mr. Edwards was brought to court for his initial
appearance that same day. Dkt. 14. At the time of his initial appearance, however,
Mr. Edwards’ medical condition did not allow him to materially participate in the
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proceeding. Nevertheless and on December 16, 2022, the presiding United States
Magistrate Judge issued an “Order of Temporary Detention” reflecting that “due to
an apparent medical issue, the Defendant was not able to participate or consult with
counsel.” Dkt. 21. This Order committed the Defendant “to the custody of the
United State Marshal for provision of medical care.” Id. (emphasis added).
Finally, this Order noted that “initial appearance and other preliminary matters will
resume when the Defendant is medically able to participate.” Id. (emphasis added).
Since that time and without interruption, the Defendant has been held at a local
Central Florida hospital, handcuffed wrist and ankle to the bed. It is the
understanding of the undersigned that the Defendant has not been allowed visitors
other than counsel during this period.1
With respect to the Defendant’s medical condition, the facility at which he is
being held has noted that he is eligible for discharge from that facility (based solely
on his medical status) since December 20, 2022. Dkt. 65, p.2. After appointment,
consultation with the Defendant, and as part of a response to a court-ordered status
report, the defense moved for the Defendant’s release pending trial. Dkt. 56. The
Court then afforded the parties until February 17, 2023, to submit memoranda
addressing the issue thus presented regarding the potential release of the Defendant
1
Curiously, the Orange County Jail informed the undersigned that, in addition to the undersigned and Dr.
Hall referenced infra, the only other visitor with the Defendant was named “Augustus Invictus[.]” The undersigned
has been unable to determine the identity or role of Mr. or Ms. Invictus.
2
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pending a determination of competence.
As the foregoing suggests and on a parallel track, there has been some issue
raised about the Defendant’s ability/willingness to participate in the ongoing
proceeding, which behaviors appear to implicate his competence (or potential
malingering). See, e.g., Dkt 33. The parties and the Court have sought to sort out
the issue by way of focusing on the Defendant’s competence vel non in a series of
hearings, including a Status Conference on December 21, 2022 [Dkt. 27], re-set
arraignment of the Defendant on December 27, 2022 (via Zoom from the
Defendant’s hospital/detention room) [Dkt. 33]2, Status Conference on December
28, 2022 (also via Zoom from the Defendant’s hospital/detention room) [Dkt. 42]3,
Status Conference on January 4, 2023 (via Zoom from the Defendant’s
hospital/detention room) [Dkt. 48]4, and Status Conference on January 26, 2023.
After the parties’ submissions of potential competency evaluators after the
Status Conference on January 4, 2023, the Court ordered the evaluation of the
Defendant by Dr. Ryan Hall “regarding [the Defendant’s] competency to proceed to
trial.” Dkt. 50, p.2. On January 16 and 17, 2023, the United States and later the
2
Although there was some communication between the Court and the Defendant, the arraignment was
continued by the presiding Magistrate Judge without the arraignment being completed. Id. The Court noted that the
Defendant’s competence appeared to be an issue. Id.
3
This Status Conference involved a more substantive attempt to address the competence issues brought to
the forefront at the attempted Arraignment the prior day. The parties sought and the Court entered an Order directed
to the health care facility holding the defendant to disclose to the parties all medical records of the defendant. Dkt.
45.
4
As a result of this Status Conference, the parties were directed to submit the name(s) of person(s) to evaluate
the Defendant’s competency to proceed. Dkt. 48. The parties did so on January 6, 2023. Dkt. 49.
3
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Court and defense counsel, respectively, were provided the report of Dr. Hall.
Consistent with the Court’s prior instructions, the parties submitted their responses
to Dr. Hall’s report and (perhaps unsurprisingly) reached different conclusions: the
United States implicitly took the position that the Defendant is not competent to
proceed 5 ; whereas the defense position was (and remains) that the report was
ambiguous at best and, consequently, that further proceedings are warranted, to and
including a contested competency hearing under 18 U.S.C. § 4241 and its progeny.
Dkts. 57 & 56. In the defense’s response to Dr. Hall’s report, the defense also
sought the release of the Defendant pending further proceedings. Dkt. 57.
Another thread in the fabric of this case is that, at the Status Conference on
January 26, 2023, the United States indicated that it would oppose release pending
trial for the Defendant. Dkt. 61, p. 17. Finally and in light of the government’s
position on release as well as the issues which touch and concern the Defendant’s
ability to communicate, the court instructed the parties to submit memoranda on the
issue presented by February 17, 2023. Dkt. 60. The instant Memorandum
ensued.6
5
Particularly, the United States averred that it agreed with the “findings and recommendation” of Dr. Hall’s
report, that a competency hearing should be conducted under 18 U.S.C. § 4241, and that as a result, the Court should
find the defendant not competent to proceed (and committing the defendant to the custody of the Attorney General
“for treatment.”). Dkt. 57 The statement in the text above is a synopsis of this multi-step averment.
6
On February 2, 2023, the parties issued a joint status report to the court, the government stating that it was
unable to currently house Mr. Edwards due to his ongoing medical needs and could only offer custodial care through
the "Just Care" program in a Columbia, South Carolina hospital [Dkt. 65] and the defense positing that Mr. Edwards'
family was trained and capable in caring for him at home. Id.
During the preparation of this memorandum, on February 14, 2023, the United States and the undersigned
were informed by the Office of the United States Marshal that, on what is expected to be seventy two (72) hours-
4
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II. Legal Issues Presented
The question facing the Court and the parties with respect to Mr. Edwards
involves the proper sequential process for handling a request for release pending trial
of a defendant while he or she may not or may not be fully competent. Simply
stated: are a defendant’s constitutional and statutory rights to release pending trial
trumped by a potential determination that the defendant is not competent to proceed
to trial? Although the case law is not crystal clear and many of the decisions are
fact- or procedurally-bound, the answer seems to be that courts have, at times, stayed
all proceedings until competency is determined, but other courts respect the freedom
principle expressed in the Eighth Amendment’s mandate that bail not be
unreasonable and have allowed Defendants to remain at liberty pending
determinations of their competency. Nevertheless, Mr. Edwards’ position is that
his Fifth and Eighth Amendment rights dictate he be released to his family for care7
notice, the defendant will be relocated to that South Carolina Facility. It is of note that this facility is more than 430
miles from Orlando, Florida. Such a relocation would effectively divest the defendant of counsel, given the logistical
challenges such a relocation poses. This issue is also the subject of a contemporaneously-filed Motion to Prohibit
Transfer by the defense.
7
On January 4, 2023, the Defendant’s medical facility informed the United States and the undersigned that
the Defendant’s medical condition had reached a sufficient level in which a discharge from his stay at the medical
care facility was appropriate. Further and as a result of a prior hospitalization, the defendant’s family is able to care
for him in his current state. Despite this and for reasons seemingly driven by the cost of ongoing detention, the Office
of the United States Marshall has indicated an intent to move the defendant to a facility in South Carolina, which
would effectively place the defendant beyond the ability of his counsel to confer, to even a limited extent, with him.
See note 6, supra.
Although the defense is not unaware of the significant cost of the ongoing detention of the Defendant
(including his stay in a private medical facility as well as two, around the clock corrections officers in the room with
him where he remains cuffed wrist and ankle to the bed), the defense objects to this plan as it would, effectively, divest
the defendant of contact with his counsel. Anticipating the United States’ position on the same, the undersigned
would note that he has been able, to a limited extent, to communicate with and inform the defendant of events in the
proceeding to date, despite the defendant’s communication challenges, however sourced.
5
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pending trial and during any competency evaluation process.8
III. Applicable Law
The constitutional issues raised involve the Defendant’s rights with respect to
release pending trial pursuant to the Eighth Amendment, the Defendant’s right to be
competent at all material stages of the proceeding so as to be able to assist counsel
with his defense pursuant to the Sixth Amendment, and the overarching right to due
process of law, pursuant to the Fifth Amendment. On a more granular level, there
are at least three statutes implicated in the analysis: the Bail Reform Act of 1984 (18
U.S.C. § 3142(g)), the Insanity Defense Reform Act of 1984 (18 U.S.C. § 4241, et
seq.), and the Speedy Trial Act (18 U.S.C. § 3161, et seq.)9. The assessment of the
impact of the first two, in turn, follows.
First, the Bail Reform Act of 1984 requires that the court impose the least
restrictive set of conditions reasonably necessary to secure the Defendant's
appearance at trial and to secure the safety of the community. 18 U.S.C. § 3142(g).
Here, Mr. Edwards has been arrested and held in rather stark conditions, since
8
As previously noted, when the Court sets the matter for a competency hearing, the defense will seek
approval for the retention of an expert to assess the defendant, prepare a report, and testify if necessary at a
Competency Hearing.
9
Finally, the court asked the parties to address the speedy trial issue. Dkt. 61, p. 23, ll. 22-24. The Speedy
Trial Act period is tolled during the period of time between a defendant’s initial appearance and any subsequent
judicial proceeding to determine the mental competency of a defendant. “The following periods of delay shall be
excluded in computing the time within which . . . the trial of any such offense must commence: (1) Any period of
delay resulting from other proceedings concerning the defendant, including but not limited to—(A) delay resulting
from any proceeding, including any examinations, to determine the mental competency or physical capacity of the
defendant.” 18 U.S.C. § 3161(h)(1)(A). United States v Pendleton, 2012 WL 12961087 (M.D. Fla. April 10, 2012);
United States v. Kelly, 2020 WL 5607728 (S.D. Fla. Sept. 21, 2020).
6
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December 16, 2022 or approximately sixty-three (63) days (through the date of this
document) without having been afforded a bond hearing. Of course, his medical
conditions have impacted the viability of such a proceeding, separate and apart from
the question of his competency for trial.
Second, the Insanity Defense Reform Act of 1984 sets forth a process for
assessing a Defendant's competency to stand trial and ability to assist in his own
defense. 18 U.S.C.§ 4241, et seq. Specifically, Section § 4241(a) states:
[a]t any time after the commencement of a prosecution for an offense
and prior to the sentencing of the Defendant, . . . . The court . . . shall
order such a hearing on its own motion, if there is reasonable cause to
believe that the Defendant may presently be suffering from a mental
disease or defect rendering him mentally incompetent to the extent that
he is unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense.
§ 4241(a). If the court finds that such “reasonable cause” exists, then "[p]rior to the
date of the hearing, the court may order that a psychiatric or psychological
examination of the Defendant be conducted, and that a psychiatric or psychological
report be filed with the court, pursuant to the provisions of section 4247(b) and
(c)." 18 U.S.C. § 4241(b). It is of note that release pending further proceeding
(including a competency determination) is not referenced in the Insanity Defense
Reform Act. Seemingly, detention is to be addressed by the Court as a separate
issue under the Bail Reform Act. Here, the Court appears to have found reasonable
cause (hence Dr. Hall’s report), but the parties have reached differing conclusions
7
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on the opinion provided by Dr. Hall. Clearly, a plenary evidentiary competency
hearing is contemplated by the Court and the parties. See Transcript of Hearing on
January 27, 2023, Dkt. 61, p. 12, l. 16-22.
The Fifth Amendment to the U.S. Constitution provides that due process
requires that a person whose mental condition is such that he lacks capacity to
understand nature and object of proceedings against him, to consult with counsel and
to assist in preparing his defense may not be subjected to trial, U.S. Const. Amend
V, Drope v. Missouri, 420 U.S. 162 (1975); United States v. Rahim, 431 F. 3d 753
(11th Cir 2005). The Sixth Amendment to the U.S. Constitution provides
essentially that in all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, be informed of the nature and cause of the accusation against
him and to have the assistance of counsel for his defense, among other things. U.S.
Const. Amend. VI. The process codified in the Insanity Reform Act, at 18 U.S.C.
4241, et seq., is designed to comport with Sixth Amendment rights of an accused
with mental health issues. Jackson v. Indiana, 406 U.S. 715 (1972).
Finally, the Eighth Amendment to the U.S. Constitution states “[e]xcessive
bail shall not be required, not excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Const. Amend. VIII, Harris v. United States, 404 U.S.
1232, 1232 (1971) (Eighth Amendment at the very least obligates judges passing on
right to bail to deny such relief only for the strongest of reasons).
8
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III. Argument
The Sixth Amendment to the U.S. Constitution requires that a Defendant have
counsel present at all “critical stages” of a criminal proceeding. Missouri v. Frye,
566 U.S. 134, 140 (2012). Critical stages include arraignment, post-indictment
interrogations, post-indictment lineups, and entry of a guilty plea. Id.; see also
United States v. Hakim, 30 F. 4th 1310, 1326 (11th Cir. 2022) (cert. petition
docketed) (critical stages include an arraignment, a preliminary hearing, and a plea
hearing); Hunter v. Moore, 304 F. 3d 1066, 1070 (11th Cir. 2002) (closing argument
is a critical stage of trial).
On the specific question of whether a detention hearing is a “critical stage” of
a criminal proceeding, counsel has been unable to locate any controlling Eleventh
Circuit authority nor any other clearly persuasive decisions by other Circuits of the
United States Courts of Appeals directly on point. However, there are district court
cases dealing with situations involving the determination of a
defendant's competency, which issue was raised prior to the court's holding a
detention hearing.10 Although the cases in note 10 are procedurally and factually
unique (and hence distinguishable), there is at least one case where the defendant
was released on conditions during the process of the determination of his
10
See, e.g., United States v. Meyer, 2011 WL 1519724 (M.D. Fla. April 20, 2011)(staying
proceedings), United States v. Moser, 541 F. Supp. 1235 (W.D. Okla. 2008)(same); United States v. Weathers, 374 F.
Supp. 957 (D. New Mex. 2004)(same); United States v. Segers, 2022 WL 3578272 (S.D. Tex. Aug. 19, 2022)(same).
9
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competence (and at least a portion of the process of determining his restorability to
competence), although the defendant was released on bond before the competency
issue arose. See United States v. Evans, Case No. 6:19-CR-116-PGB-DCI (M.D.
Fla.). The unique facts presented here makes discovery of cases addressing this
unique fact pattern a challenge.
Consequently, a more circumspect approach may be required.
Foundationally, "[a] pretrial detainee's confinement is subject to due process
requirements." United States v. Rodriguez, 2021 WL 4776355 *2 (S. D. Cal.) Oct.
13, 2021, (quoting Or. Advocacy Ctr., v. Mink, 322 F. 3d 1101, 1120 (9th Cir.
2003)). The other book end teaches that "[t]he Supreme Court articulated a general
'rule of reasonableness' limiting the duration of pretrial detention for incompetent
defendants and requiring, at minimum, 'that the nature and duration of confinement
bear some reasonable relation to the purpose for which the individual is committed.'"
Id., quoting Trueblood v. Wash. State Dept. of Soc. & Health Servs., 822 F. 3d 1037,
1043 (9th Cir. 2016) (quoting Jackson v. Indiana, 406 U.S. 715, 733 (1972)).
Importantly, "this framework applies to individuals awaiting competency
evaluations." Rodriguez, supra, at 2. In Rodriguez, the defendant's bond had been
set and he had remained in custody due to failure to meet conditions of release prior
to defense counsel's request for a competency examination. Due to Covid
quarantine, Rodriguez' competency examination was delayed beyond the 30-day
10
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time period allowed under 18 U.S.C. § 4247 (b). Although the case is not on all
fours procedurally with the instant matter, the reasoning is applicable: the standards
and concerns implicated where a defendant is confined or released pre-trial and
pending a competency determination are still governed by the Eighth Amendment.
Here, the United States has indicated that it will seek detention of the
defendant under 18 U.S.C. 3142(f)(2)(A) as it perceives him to be a serious risk of
flight. Whether or not that proves to be true on the merits is a different question
from whether or not the Defendant is entitled to a hearing on release. The defense
posits that his detention to date has been and remains unduly harsh and punitive.
Mr. Edwards has spent considerable amounts of time since his arrest in the hospital
shackled to his bed and receiving only necessary medical treatment, even after he
has been determined to be discharge-able from hospital care. As set forth more
fully above, the government (now) claims an inability to (afford?) provide the
necessary medical support for the Defendant at any location which allows him
reasonable access to the undersigned counsel. Further delay in affording Mr.
Edwards the opportunity for release bears no reasonable relation to the evaluative
and restorative purposes for commitment. Trueblood, supra, at 1043.
As such the defense position is that the Defendant be released on bond until
the issue of competency is determined. There is no authority necessitating a stay of
all proceedings until after the competency hearing. Cases dealing with the factually
11
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similar situation only note a stay of proceedings to accommodate a competency
hearing as dicta, in that the issue is not directly addressed or necessary to the
holdings of these cases. Clearly, this Court has power to craft an appropriate set of
conditions of release for the defendant (and his family) which insure both the safety
of the community and the Defendant’s later appearance in the proceeding, including
any assessment of his competence. This result would protect Mr. Edwards’ Eighth
Amendment right to be free of excessive bail and allow the assessment of his
competence as currently contemplated.
The defense is not unmindful of the Court’s observations regarding the
Defendant’s ability to understand and comply with any conditions of release
imposed, given that his competence appears to be at issue. Nevertheless, counsel is
absolutely certain that the Court can fashion appropriate conditions (on both the
defendant and his caregiver/family) which assure both the safety of the community
and the later appearance of the Defendant for proceedings. Although these
conditions may be burdensome to both the Defendant and his family, they would be
less burdensome than his continued detention, cuffed wrist and ankle to a hospital
bed, several hundred miles from family or counsel. Accordingly, the Defendant
respectfully requests this Court set the matter for a detention hearing.
12
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WHEREFORE, the undersigned complies with this Court’s Order of January
26, 2023.
s/A. Brian Phillips
A. BRIAN PHILLIPS, ESQ.
Fla. Bar No. 0067113
A. BRIAN PHILLIPS, P.A.
912 Highland Avenue
Orlando, Florida 32803
Telephone: (407) 872-0777
Telecopier: (407) 872-0704
Email:Brian.Phillips@Phillips-Law-Firm.com
Counsel for Defendant Evan Edwards
13
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 17th day of February, 2023, I filed a copy
of the foregoing with the Clerk of the Court via the CM/ECF system. I further certify
that all parties to this case are equipped to receive service of documents via that
system.
s/A. Brian Phillips
A. BRIAN PHILLIPS, ESQ.
Fla. Bar No. 0067113
A. BRIAN PHILLIPS, P.A.
912 Highland Avenue
Orlando, Florida 32803
Telephone: (407) 872-0777
Telecopier: (407) 872-0704
Email: Brian.Phillips@Phillips-Law-Firm.com
Counsel for Defendant Evan Edwards
14
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