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Government's Responsive Memorandum on the Application of Restoration Procedures Under § 4241(d) — United States v. Evan Edwards (a/k/a Ian…
No. 6:22-cr-00201-AGM-LHP · Doc. 116 · Docket on CourtListener
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Case 6:22-cr-00201-AGM-LHP Document 116 Filed 09/14/23 Page 1 of 11 PageID 537
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
UNITED STATES OF AMERICA
v. CASE NO. 6:22-cr-00201-WWB-LHP
EVAN EDWARDS
a/k/a Ian Heringa
GOVERNMENT’S RESPONSIVE MEMORANDUM ON THE APPLICATION
OF RESTORATION PROCEDURES UNDER § 4241(d)
The United States of America by Roger B. Handberg, United States Attorney
for the Middle District of Florida, by the undersigned AUSA, in accordance with this
Court’s Order (Doc. 105) (the “Order”) hereby files this briefing, and states:
1. On July 2, 2023, the Bureau of Prisons issued a report pursuant to 18
U.S.C. § § 4241(b), 4247(b), (c) on the issue of defendant’s competency to stand trial
(the “Competency Report”). Sealed Doc. 98. After reviewing the Competency
Report, neither party contests the finding that the defendant is not currently competent
to stand trial.
2. Following issuance of the Competency Report, the defendant filed a
renewed motion for release on bond and request for detention hearing. Doc. 99. The
Government did not contest the defendant’s release to family members with
conditions, and the defendant has since been released.
3. On August 3, 2023, this Court held a status conference, at which time the
parties expressed their disagreement on the appropriate next steps under § 4241. The
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Court ordered briefing on the issue.
4. On August 31, 2023, the defendant filed his briefing on the issue, arguing
that BOP has already resolved the issue of restorability due to its statement in the
“Prognosis and Recommendations” section of the Competency Report, stating that,
“a period of restoration to competency pursuant to Title 18, United States Code,
Section 424l(d) is not indicated for Mr. Edwards….” 1
5. As set forth below, the statutory framework of § 4241(d) and Eleventh
Circuit case law mandate commitment of the defendant for restoration, regardless of
whether his current condition is permanent.
I. The Court Must Commit the Defendant for Restoration Under § 4241(d)
The § 4241 statutory framework is clear that, following a finding of
incompetence, the Court “shall” commit the defendant to the custody of the Attorney
General and the Attorney General “shall” hospitalize the defendant for treatment in a
suitable facility to attempt to restore the defendant to competence. See § 4241(d).
Thus, in an instance where the Court finds the defendant incompetent to proceed, the
express terms of the statute mandate commitment of the defendant for restoration.
See, e.g., United States v. Donofrio, 896 F.2d 1301 (11th Cir. 1990) (finding that
commitment under § 4241(d) is mandatory). Here, as explained below, commitment
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The full excerpt states, “Furthermore, his attending medical provider has opined that Mr.
Edwards has suffered irreversible neurological damage. As such, a period of restoration to
competency pursuant to Title 18, United States Code, Section 424l(d) is not indicated for Mr.
Edwards as he is not expected to benefit from educational interventions in light of his
neurological disorder. He would be best served within a structured setting where he has access
to regular support to meet his basic needs.”
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of the defendant for restoration in accordance with this statutory mandate is required.
a. The § 4241(b) Competency Report Does Not “Resolve” the Restorability Issue
Here, the defendant mistakenly relies on the statement in the Competency
Report (that “a period of restoration to competency pursuant to Title 18, United States
Code, Section 424l(d) is not indicated for Mr. Edwards….”) to distinguish Donofrio
and draw the conclusion that the issue of the defendant’s restorability is “resolved.”
This conclusion is wrong. First, the face of the Competency Report provides that the
reason for the referral to BOP by the Court was for an evaluation under 18 U.S.C.
§ 4241(b) to determine “whether the defendant is 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.” See Competency Report, pg. 1. Thus, it is clear from the report
that the evaluation conducted by the evaluating doctor was specifically in relation to
the defendant’s present competency to stand trial.
In fact, other than the barebones statement that “a period of restoration to
competency…is not indicated,” there is no other reference to efforts to restore,
evaluation relating to restorability, nor treatment directed at restoration. Moreover,
the defendant was evaluated only for 30 days at FMC Devens, which is the evaluation
period set forth for a competency evaluation under § 4241(b) (a so-called “short-
study”), not for the longer four-month restoration period contemplated by § 4241(d).
See United States v. Brennan, 928 F.3d 210, 217 n.2 (explaining that the initial evaluation
period under § 4241(b) is “necessarily temporally limited, constraining a medical
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professional’s ability to evaluate and treat a mentally incompetent defendant”); United
States v. Filippi, 211 F.3d 649, 651 (1st Cir. 2000) (the evaluation of defendant’s future
competency “requires a more careful and accurate diagnosis before the court is faced
with the serious decision whether to defer trial indefinitely and (quite often) to release
the defendant back into society”); United States v. Strong, 489 F.3d 1055, 1062 (9th Cir.
2007) (evaluation of future competency requires a more “careful and accurate
diagnosis” than the brief interviews and review of medical records that tend to
characterize the initial competency proceeding”) (citing United States v. Ferro, 321 F.3d
756, 762 (8th Cir. 2003).
Additionally, while the evaluating doctor opined in the § 4241(b) Competency
Report that restoration to competency “is not indicated,” she did not, and could not,
make the appropriate determination under § 4241(d), that is: “to determine whether
there is a substantial probability that in the foreseeable future he will attain the capacity
to permit the proceedings to go forward.” See 18 U.S.C. § 4241(d); Brennan, 928 F.3d
at 216 (explaining that only a court can decide issues of competency: “An arbiter must
therefore interpret legal competency standards and apply them to the facts before her,
a quintessentially judicial task. A medical professional cannot appropriately resolve
such legal questions, and a defendant’s competence is decidedly the province of the
courts.”). Thus, the defendant’s reliance on the § 4241(b) report is misplaced, as it does
not resolve the issue of restorability as required under § 4241(d).
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b. Controlling Eleventh Circuit Law Makes Restoration Mandatory
The Eleventh Circuit in Donofrio has held, without ambiguity, that § 4241(d) is
mandatory and that a court cannot circumvent hospitalization under that section, even
if there is evidence suggesting that the defendant’s condition is permanent. United
States v. Donofrio, 896 F.2d 1301, 1302-1303 (11th Cir. 1990). The defendant in Donofrio
was found incompetent to stand trial and the district court committed the defendant
to the custody of the Attorney General for examination under § 4241(d). Id. While the
defendant argued that he could not be held under § 4241(d), because the evidence at
his competency hearing showed that his condition was permanent, the Eleventh
Circuit disagreed. Id. As the Eleventh Circuit explained, the issue of the permanency of
the defendant’s condition was not an issue before the district court at that time. Id.
Ultimately, the Eleventh Circuit held in Donofrio that § 4241(d) was mandatory
and the district court did not have the authority to circumvent the hospitalization. Id.
“Once the court found by a preponderance of the evidence that the defendant is
presently suffering from a mental disease or defect rendering him mentally
incompetent to stand trial, then it was required ‘to commit the defendant to the custody
of the Attorney General.’ The permanency of the condition would then be determined
for later consideration by the court.” Id. See also United States v. Shawar, 865 F.2d 856,
863 (7th Cir. 1989) (holding that § 4242(d) clearly provides that once a finding of
incompetence to stand trial has been made, a defendant must be committed to the
custody of the Attorney General, even in the case where the incompetent would not
recover).
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As in Donofrio, the permanency of the defendant’s condition in this case is not
yet an issue before this Court. The § 4241 framework provides a sequential roadmap
for addressing competency issues. First, under § 4241(b) and (c), the Court is to
address the issue of whether the defendant is presently competent to stand trial. If,
under § 4241(c), the Court determines that the defendant is not competent, then the
defendant must be hospitalized for potential restoration under § 4241(d). Only then,
after restoration commitment under § 4241(b), would the permanency of the
defendant’s condition be an issue before the Court. These sequential steps must be
followed even if there is evidence at the time of the competency determination that the
defendant’s condition, which renders him incompetence, is permanent. See Donofrio,
896 F.2d at 1302-1303; Shawar, 865 F.2d at 863 (finding that likelihood of recovery of
defendant found incompetent to stand trial was not something to be considered in
deciding whether to commit defendant for evaluation).
The Eleventh Circuit in Donofrio relied upon the Seventh Circuit’s decision in
Shawar. See United States v. Shawar, 865 F.2d 856, 863 (7th Cir. 1989). In Shawar, a
psychiatrist opined that the defendant was not competent to proceed and that, because
the condition rendering the defendant incompetent was mental retardation, rather than
an illness, there was “no reasonable likelihood that he will ever regain competence
with treatment.” Based on that opinion and the opinions of two other doctors, the
district court judge concluded that the defendant was, and always would be
incompetent to proceed and dismissed the charges against him without prejudice. In
reversing the district court’s decision, the Seventh Circuit stated:
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Although the district judge obviously attempted to comply with what he
felt to be the spirit of the statute, the statutory scheme established by
Congress clearly mandates that a defendant found to be incompetent be
placed in a mental hospital for observation….Based on the expert
opinion, [the district judge] was satisfied that Shawar would never be
competent and that treatment would not improve his condition. Thus,
he determined…that it would be ‘an empty exercise to commit Shawar
to a federal facility for further test,’ and read the statute to require that
commitment only is mandatory if there is a possibility that the
commitment will result in a change in the defendant’s condition.
Although the position taken by [the district judge] was not unreasonable,
the intent of Congress is clear. The statute plainly states that ‘the court
shall commit the defendant to the custody of the Attorney General [who]
shall hospitalize the defendant for treatment….’ The plain meaning of
this phrase is, and we hold it to be, that once a defendant is found
incompetent to stand trial, a district judge has no discretion in whether
or not to commit him.
Shawar, 865 F.2d at 860-61.
The defendant in Shawar argued to the Seventh Circuit that, because there was
already a finding that the defendant would not recover, the purpose of the statute was
already fulfilled, and commitment was unnecessary. However, in rejecting the
decision not to commit the defendant, the Seventh Circuit stated that the district judge,
even if well-intentioned, misconceived the statutory scheme envisioned by Congress,
and explained:
Our reading of 18 U.S.C. § 4241(d) is not only that commitment is
mandatory, but also that likelihood of recovery is not something to be
considered by the district court in deciding whether to commit the
defendant for the evaluation period. It is during the evaluation period
that the Attorney General has up to four months to assess whether the
defendant will regain competency to stand trial….In other words, the
burden is ultimately on the Government to come forward with evidence
on the likelihood of the defendant’s recovery. The statue makes it clear,
however, that once a defendant is found incompetent, the Government
is entitled to an in-depth evaluation of him, in order to determine whether
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he is likely to recover.
Shawar, 865 F.2d at 861. Thus, the case law is clear that the Court must follow
the statutory scheme and does not have the discretion not to commit the
defendant have a finding of incompetence.
Here, the defendant attempts to distinguish Donofrio (and all of the other cases
requiring mandatory commitment) by claiming that the restorability issue has already
been resolved by BOP. But that is not the case. At best, the § 4241(b) evaluator’s
comment in the Competency Report (that a period of restoration to competency was
not indicated) is merely evidence that his condition may be permanent. However, at
this point in the proceedings, the issue of permanency, as explained by Donofrio and
Shawar, is not before the Court. Moreover, the Government has not been given the
opportunity for the in-depth evaluation of the defendant to which it is entitled. A
thirty-day short study, targeted at determining whether the defendant is competent to
stand trial, is not tantamount to a four-month, in-depth evaluation focused on
restoration. Thus, this Court should apply the holdings of Donofrio, which is
controlling, and commit the defendant in this case for restoration under § 4241(d).
However, this Court need not rely solely on Donofrio. Several other Circuits
have also held that commitment under § 4241(d) is mandatory. See, e.g, United States
v. Ferro, 321 F.3d 756, 761 (8th Cir. 2003) (noting that although “[i]t is clear that the
statutory scheme detailed by Congress in § 4241(d) provides the district court with the
discretion to initially determine whether the defendant is competent to stand trial ...
after determining that a defendant is incompetent ... a district court is required to
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commit the defendant to the custody of the Attorney General for a reasonable period
of time to evaluate whether treatment would allow the trial to proceed”); United States
v. Filippi, 211 F.3d 649 (1st Cir. 2000) (rejecting a Due Process attack when defendant
claimed his condition was irreversible, and stating that statute establishes non-
discretionary general rule of commitment without a “case-by-case choice by the district
court as to whether to incarcerate once the incompetency finding has been made”);
United States v. Brennan, 928 F.3d 210 (2d Cir. 2019) (committing the defendant for
treatment and evaluation under § 4241(d), despite the results of a court-ordered
psychiatric evaluation stating that his disorder was degenerative and not likely to
significantly improve, because commitment to assess future competency was
mandatory, and only the district court, not a forensic psychologist, could determine
whether defendant would regain competency in the foreseeable future).
The defendant draws only one misplaced distinction to the plethora of cases
calling for mandatory commitment under § 4241(d); that is, that here the restoration
issue has somehow already been resolved by the § 4241(b) Competency Report. As
discussed above, however, there has not been nor could not have been a resolution to
this issue without an evaluation under § 4241(d) and a determination by the Court on
the issue of permanent incompetence, neither of which has happened. Thus, this Court
should follow the guidance of all the applicable case law and commit the defendant to
the Attorney General, as is statutorily required.
II. Other Proceedings are Triggered Only After Restoration is Addressed
With regard to potential proceedings under 18 U.S.C. §§ 4246 and/or 4248, the
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statutory framework provides that those sections are triggered after the § 4241(d)
commitment period. Specifically, Section 4241d provides that “[i]f, at the end of the
time period specified, it is determined that the defendant’s mental condition has not
so improved as to permit the proceedings to go forward, the defendant is subject to the
provisions of sections 4246 and 4248.” See also §§ 4246 and 4248 (setting forth the
procedures for BOP to issue a certificate of dangerousness). Based on this framework,
the United States submits that, until restoration is addressed, the defendant is not yet
subject to the provisions of §§ 4246 and 4248. Thus, at this time, no other proceedings
are requested by the United States under §§ 4246 or 4248. If the BOP finds the
defendant not restorable, and after screening him, determines him to be dangerous,
then the United States and/or BOP will request the appropriate proceedings.
WHEREFORE, the United States submits that commitment under § 4241(d) is
mandatory upon a finding of incompetence, and respectfully requests that the Court
find the defendant not competent to proceed and commit him to the custody of the
Attorney General under § 4241(d).
Respectfully submitted,
ROGER B. HANDBERG
United States Attorney
By: /s/ Kara M. Wick
Kara M. Wick
Assistant United States Attorney
Florida Bar No. 0085578
400 W. Washington Street, Suite 3100
Orlando, Florida 32801
Telephone: (407) 648-7500
E-mail: Kara.Wick@usdoj.gov
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U.S. v. Evan Edwards Case No. 6:22-cr-00201-WWB-LHP
CERTIFICATE OF SERVICE
I hereby certify that on September 14, 2023, I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system which will send a notice of
electronic filing to the following:
Brian Phillips, Esq.
/s/ Kara M. Wick
Kara M. Wick
Assistant United States Attorney
FL Bar No. 0085578
400 W. Washington Street, Suite 3100
Orlando, Florida 32801
Telephone: (407) 648-7500
Facsimile: (407) 648-7643
E-mail: kara.wick@usdoj.gov
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