Court filing
Government's Brief in Response to Court Order: Application of 18 U.S.C. § 4246 — United States v. Evan Edwards (a/k/a Ian Heringa) and Joshua Edwards
No. 6:22-cr-00201-AGM-LHP · Doc. 240 · Docket on CourtListener
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
UNITED STATES OF AMERICA
v. CASE NO. 6:22-cr-201-WWB-LHP
EVAN EDWARDS
BRIEF IN RESPONSE TO COURT ORDER:
APPLICATION OF 18 U.S.C. § 4246
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 dated November 1, 2024 (ECF NO. 239) hereby files this briefing.1 As
more fully detailed below, the provisions of 18 U.S.C. § 4246 as it relates to a
dangerousness assessment by the Bureau of Prisons is not mandatory following a
4241(d) incompetency determination by the Court. The government does not waive
such an assessment, but also does not ask the Court to consider the assessment
beyond that which was raised and considered at the November 1, 2024 hearing.
Put another way, the government is not requesting either the issuance of a
1 As an initial matter, the government objects to the filings being made under seal.
There is a common law presumption of public access to judicial records. Nixon v.
Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978), Callahan v. United Network for Organ
Sharing, 17 F. 4th 1356 (11th Cir. 2021), United States v. Rogers, No. 6:23-cr-7-RBD-
RMN, 2023 U.S. Dist. LEXIS 178692, 2023 WL 6464110 (M.D. FL, Oct. 4, 2023),
United States v. Kaczynski, 154 F.3d 930, 931 (9th Cir. 1998) (holding, over the
defendant's objections, that certain media companies could access redacted versions
of a psychiatric competency report that was sealed based on the defendant's privacy
interests). The government notes that its filing contains no personal identifying
information (PII) or confidential mental health information.
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dangerousness certificate or a referral to FMC Devens for a dangerousness
evaluation under 18 U.S.C. § 4246(b).
I. Background
On December 7, 2022, a federal grand jury returned an indictment against the
defendant, Evan Edwards, charging him with Conspiracy to Commit Bank Fraud in
violation of 18 U.S.C. § 1349, Bank Fraud in violation of 18 U.S.C. §§ 1344 and 2,
False Statement to Lending Institution in violation of 18 U.S.C. §§ 1014 and 2, and
Visa Fraud in violation of 18 U.S.C. § 1546(a). The sophisticated scheme involved
multiple frauds to procure more than $8 million in funds from the Federal
Government.
ASLAN International Ministry, Inc. (ASLAN) was originally established in
Ohio on June 16, 2005. On June 5, 2018, Dr. Evan Edwards, on behalf of ASLAN,
filed an application to conduct business in Florida as a Foreign Not For Profit
Corporation. In the application, Dr. Evan Edwards was listed as the registered agent,
Chairman, and President of the business, Joshua Edwards (Evan Edwards' son) was
listed as the Vice President and a Director; Dr. Joy Edwards (Evan Edwards'
daughter) was listed as the Secretary and a Director; W.G. was listed as the Vice
Chairman, and M.B. was listed as a Director. The application indicated that the
purpose of the business was "religious." See Verified Complaint, United States v.
Approximately $5,698,846.38 Seized from Bank of America Account number 898116276448
Held in the Name of Church of Florida, Inc., 6:20cv2269 (M.D. FLA).
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On January 4, 2023, United States Magistrate Judge Embry Kidd determined
that 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.” (Doc. 50 at 1 (quoting 18 U.S.C. § 4241(a))). Accordingly, Magistrate
Judge Kidd appointed a doctor to examine Defendant and render an opinion
regarding his competency to proceed to trial in this matter under 18 U.S.C. §
4241(b). (Id. at 2). See ECF No. 136, pg. 2.
On July 7, 2023, Dr. Miriam Kissin authored a competency report pursuant to
18 U.S.C. § 4241(b). Dr. Kissin opined that the defendant was incompetent to stand
trial, and diagnosed defendant Evan Edwards with Major Neurocognitive Disorder
(Demntia). See Kissin Competency Report dated July 7, 2023, pg. 7. According to
Dr. Kissan’s report, and the other records reviewed, the defendant had no significant
medical or mental problems prior to July 8, 2022, when he was brought by family
members to the Emergency Department at Advent Health New Smyrna Beach
Hospital. Kissan Report, pg. 3. He was reported to have not eaten or drank for two
days, mumbled incoherently, and had become progressively weak. According to his
family's reports, they had been spending every day at the beach under direct sun. His
daughter had reportedly been feeding Mr. Edwards salt and lemons, with the
intention of increasing his fluid intake and enhance alertness. It was this “salt and
lemon” poisoning that was the basis of the defendant’s cognitive decline. Later
obtained medical records indicated that the defendant’s daughter claimed to have
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provided the defendant with six teaspoons of salt in a maple sugar mixture. Based
upon a subsequent medical review by Neurologist Dr. Ryan Darby, that amount of
salt, and mixture, would be completely inadequate to elevate the defendant’s sodium
level to the point tested at the Advent Health New Smyrna Beach Hospital on July 8,
2022.
On August 3, 2023, Magistrate Judge Hoffman Price held a hearing to address
the findings in the competency report issued by the Bureau of Prisons (“BOP”) and
the parties were ordered to submit additional briefing on the applicability of the
restoration procedures set forth in 18 U.S.C. § 4241(d). (Doc. 104 at 1; Doc. 105 at
1). The parties fully briefed the issue, and Magistrate Judge Hoffman Price issued the
R&R committing the defendant to the custody of the Attorney General for the
mandatory restoration process under 18 U.S.C. § 4241(d). That commitment was
upheld by the District Court. See ECF No. 136.
On September 12, 2024, Dr. Chad Brinkley authored a competency report
pursuant to 18 U.S.C. § 4241(d). Dr. Brinkley opined that the defendant remains
incompetent to proceed. Brinkley Report, pg. 36. Further, Dr. Brinkley opined:
There is no indication he has been or ever will be able to achieve the same
level of cognitive functioning he had prior to his 2022 hospitalization in any
domain. It is likely he will continue to experience some level of cognitive
impairment for the remainder of his life. Based on the available information,
this evaluator believes Mr. Edwards' symptoms are unlikely to improve to the
point where he could become competent in the foreseeable future.
Brinkley Report, pg. 37. Notwithstanding those conclusions, Dr. Brinkley noted:
The question of whether he may be malingering symptoms for secondary gain
had been previously raised. Although there medical/organic findings
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consistent with dementia have been identified, it is possible Inmate Edwards is
also engaging in behaviors to make himself appear sicker than he is. It is
possible that drinking hand cleanser with the objective of inducing repeated
vomiting may be motivated by this objective.
Brinkley Report, pg. 10. Evidence of significant cognitive improvement and
variability of tasks of daily living also demonstrated, the government maintains is
suggestive of the possibility that Mr. Evan Edwards may have malingered symptoms
of exaggerated cognitive decline. Dr. Brinkley further noted:
Since the time of Mr. Edwards arrest, however, there has been variation in his
level of impairment and what he seems to be capable of doing. At times he
presents as mute. At other time he has demonstrated he can speak in brief
sentences. In some circumstances, Mr. Edwards has been described as
unresponsive. In other situations, he has been able to participate in brief
interviews with significant effort. Dietary staff at FMC Devens observed Mr.
Edwards willingness to eat seems to be better when his mood is good than
when he is angry. Mr. Edwards has been described as unable to take care of
himself in the past. Nursing staff at FMC Devens, however, have observed he
can dress himself and ambulate slowly when he chooses to do so.
Brinkley Report, pg. 32. During his restoration proceedings at FMC Devens, the
defendant was also observed engaging in malingering behavior. In administrative
notes taken at Devens, the staff noted that the defendant:
is under telemetry monitoring due to suspected selective mutism for secondary
gain versus dementia versus catatonia. Suspected malingering versus dementia
and inability to recognize thirst or hunger or participate in conversation or
self-care. With certain times with some staff members, he is speaking and
answering questions and at other times he is non-verbal.
Brinkley Report, pg. 11. Nevertheless, Dr. Brinkley diagnosed the defendant with
Major Neurocognitive Disorder (Due to Another Medical Condition, With
Behavioral Disturbance, Moderate-Severe Impairment). Brinkley Report, pg. 31.
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The government notes that evidence adduced during the competency hearing
of Evan Edwards’ co-defendant (and son Joshua Edwards) casts further suspicion
that the symptoms presented by the defendant may not accurately reflect his true
cognitive capacity. On July 10, 2024, Agent Javier Mondejar testified in the
competency hearing of Joshua Edwards, and testified about the contact between the
defendant and his son, Joshua Edwards. Agent Mondejar testified:
A. He was escorted inside a cell with his dad. They started talking. I couldn't
hear very well what they were saying, but they started talking one or two
sentences, and then they switched to whispering in each other's ears.
Q. Okay. At some point that day, did Mr. Joshua Edwards' behavior change?
A. When we were in initial appearance.
Q. And can you describe that for the Court?
A. After coming back upstairs from U.S. Marshals, I was sitting at a table with
you and the other agent. I observed Josh. He stood up. And they were standing,
talking to the judge, and he was looking up at the ceiling, not paying attention,
not talking to the magistrate, not acknowledging the lawyer or the judge.
Transcript of hearing, July 10, 2024, United States v. J. Edwards, No. 6:22-cr-00201-
WWB-LHP (M.D. Fla.) pg. 82. The testimony by Agent Mondejar at the competency
hearing of Joshua Edwards was offered to show the transformation of Joshua Edwards
from a person engaging in normal interactions and conversations to complete mutism
and an unwillingness to interact at all after contact with the defendant. The
government suggests that the inverse is applicable as well: it could have been the
defendant Evan Edwards’ conduct and conversations with his son that resulted in
feigned incompetency by the son. That level of interaction is potentially inconsistent
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with the level of cognitive decline and deficiency demonstrated by the defendant at
different points throughout this litigation.
It is for these aforementioned inconsistencies in conduct and behavior,
interwoven with a sophisticated Covid fraud scheme, that led the government to
retain Dr. Ryan Darby. On October 8, 2024, the Court held a status conference in
which the government made a request for the appointment of Dr. Ryan Darby, a
neurologist, to review the medical and mental health records of the defendant and to
render an opinion as to his competency and/or restoration. ECF No. 226. The
Court agreed and appointed Dr. Darby to review the available medical records, but
established a strict deadline of October 29, 2024.
Although Dr. Darby did not interview or evaluate the defendant himself, he
did have access to the defendant’s medical records, including copies of the original
medical records from Advent Health New Smyrna Beach, dated 7/8/2022 through
8/25/2022. Dr. Darby was able to confirm at least two aspects of the defendant’s
cognitive limitations germane to this Court’s inquiry, and the government’s
overriding concern: (1) the defendant’s sodium levels as recorded by the hospital
upon admission on July 8, 2022 are extreme and consistent with hypernatremia
which can cause brain injury, and (2) the defendant is not likely to recover a
cognitive capacity consistent with competency to stand trial. Dr. Darby also
suggested that the family’s self-report that they had tried to rehydrate the defendant
with orange slices, increased salt, and water mixed with 6 teaspoons of salt in maple
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sugar would not be sufficient to raise the defendant’s sodium level to 183, the
reported blood-sodium level.
In an effort to expedite this process, and to not unduly delay the defendant’s
custody at FMC Devens, the government contacted staff at FMC Devens to facilitate
any 18 U.S.C. § 4246 proceeding. The staff at FMC Devens confirmed that, since
the defendant is currently in custody at FMC Devens and they are familiar with his
background and condition, they can complete any 18 U.S.C. § 4246 dangerousness
evaluation in 30 days or less. Staff at FMC Devens also candidly acknowledge that
given the defendant’s current charges, his lack of criminal record, his adjustment at
FMC Devens, as well as his diagnosis and prognosis, it is unlikely that the defendant
meets the criteria under 4246 that “his release would create a substantial risk of
bodily injury to another person or serious damage to property of another.” Given
that background, the government did not object to the Court considering the
defendant’s (1) competency, (2) restoreability or unrestoreability, and (3) the
defendant’s referral or non-referral for an 18 U.S.C. § 4246 evaluation in one
proceeding.
On November 1, 2024, Magistrate Judge Hoffman Price held a hearing to
address the findings in the competency report issued by Dr. Brinkley dated
September 12, 2024 as well as Dr. Darby’s record review. At that hearing, the Court
found:
I further find by a preponderance of the evidence that Defendant Evan
Edwards is incompetent to proceed pursuant to 18 U.S.C. § 4241(a) and
(d).
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ECF No. 238, pg. 3. The Court further found “that the chances his competency will
be restored in the foreseeable future is low.” Id. The Court also ordered further
briefing regarding the applicability of the civil commitment statute (18 U.S.C. §
4246) as follows:
the parties shall each file a brief . . . addressing whether the provisions
of 18 U.S.C. § 4246 – in particular the dangerousness assessment by the
Bureau of Prisons and issuance of a certification on same – is
mandatory or may be waived given the specific facts and circumstances
of this case. The parties shall include applicable legal authority and
shall also address, in the event that the provisions of § 4246 are found to
be mandatory, the appropriate jurisdiction for the assessment and any
resulting hearing.
ECF No. 239, pg. 1.
II. ARGUMENT
In some respects, the statutory scheme of 18 U.S.C. §§ 4241, 4246, and 4247 is
less than clear. 18 U.S.C. § 4241(d) has the triggering language that initiates the
applicability of 18 U.S.C. § 4246 (the civil commitment statute) in the context of
competency proceedings. Pursuant to § 4241(d):
if, 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.
18 U.S.C. § 4241(d) (emphasis added). It follows, as a matter of statutory
interpretation and practice, that the Court of original jurisdiction (the charging
Court) makes the competency and restoreability determination. 18 U.S.C. § 4246(a)
provides:
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(a) Institution of Proceeding.—
If the director of a facility in which a person is hospitalized certifies that a
person in the custody of the Bureau of Prisons whose sentence is about
to expire, or who has been committed to the custody of the Attorney
General pursuant to section 4241(d), or against whom all criminal
charges have been dismissed solely for reasons related to the mental
condition of the person, is presently suffering from a mental disease or
defect as a result of which his release would create a substantial risk of
bodily injury to another person or serious damage to property of
another, and that suitable arrangements for State custody and care of
the person are not available, he shall transmit the certificate to the clerk
of the court for the district in which the person is confined.
18 U.S.C. § 4246(a). Clearly, then, after the charging Court makes the competency
and restoreability determination, a civil commitment proceeding can be triggered by
the certification by the facility in which the defendant was hospitalized. That is, the
facility that rendered the competency and restoreability opinion triggers the civil
commitment proceeding by filing a certificate that the defendant “is presently
suffering from a mental disease or defect as a result of which his release would
create a substantial risk of bodily injury to another person or serious damage to
property of another.” 18 U.S.C. § 4246(a).
The question remains whether the director’s “certification” of dangerousness
is the only vehicle to initiate a § 4246 civil commitment proceeding. The apparent
answer to that question is no. See United States v. Ferguson, No. 04-cr-14041, 2020
U.S. Dist. LEXIS 151861, 2020 WL 5100099 (S.D. FL, Aug. 5, 2020), citing United
States v. Rivera-Morales, 365 F. Supp. 2d 1139, 1143 (S.D. Cal. 2005). See also Sealed
v. Sealed, 802 Fed. Appx. 138 (5th Cir. 2020). The Court in Ferguson held that it had
the authority commit a defendant to the custody of the Attorney General for
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purposes of conducting a § 4246(a) evaluation even after it found the defendant
incompetent and unlikely to be restored. Ferguson, 2020 U.S. Dist. LEXIS 151861 *
17.
The Ferguson and Rivera-Morales courts’ interpretation of the ways in which a
dangerousness assessment under 18 U.S.C. § 4246 can proceed is in conflict with
unpublished authority from this District. See United States v. Chappell, NO. 8:18-cr-
344-VMC-AAS (M.D. FLA, Jan. 27, 2023), attached as Exhibit A. See also Report
and Recommendation United States v. Chappell, NO. 8:18-cr-344-VMC-AAS (M.D.
FLA, Jan. 11, 2023), attached as Exhibit B. In short, there remains in the statutory
scheme some question of jurisdiction. See also United States v. Wayda, 966 F.3d 294
(4th Cir. 2020), United States v. Curbow, 16 F.4th 92 (4th Cir 2021), Sealed v. Sealed,
802 Fed. Appx. 138 (5th Cir. 2020) (the statutory language indicates that the
determination of dangerousness under § 4246 occurs after the four-month time
period specified in § 4241(d)). It is for this precise reason that that government
requested that the Court make a referral or non-referral to FMC Devens for a
dangerousness evaluation prior to or contemporaneously with its competency-
restoreability determination. It is clear, the government suggests, that the court had
jurisdiction or authority to make such a referral if it so desired at the November 1,
2024 hearing. Although not critical to the Court’s specific inquiry, the jurisdictional
interplay of 18 U.S.C. § 4241(d) and § 4246 is critical to the Court’s perceived
authority to order such an evaluation.
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That being said, the government is unaware of any authority mandating the
Court, or the “director of a facility in which a person is hospitalized” to either (1)
issue a certificate of dangerousness or (2) order an evaluation pursuant to 18 U.S.C.
§ 4246(b). The government notes that the competency evaluation procedures under
18 U.S.C. § 4241(d) are mandatory. That is, pursuant to 18 U.S.C. § 4241(d), once
a Court makes an incompetency finding, the court is compelled by statute to
commit a defendant to the custody of the Attorney General for hospitalization and
treatment. 18 U.S.C. § 4241(d). However, no analogous provision exists under 18
U.S.C. § 4246(b).
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WHEREFORE, the submits the briefing in response to the Court’s Order dated
November 1, 2024 (ECF NO. 239).
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
By: /s/ James D. Peterson
James D. Peterson
Trial Attorney
Bar No. VA 35373
United States Department of Justice
1331 F Street N.W. 6th Floor
Washington, D.C. 20530
Desk: (202) 353-0796
E-mail: James. D.Peterson@usdoj
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U.S. v. EVAN EDWARDS Case No. 6:22-cr-201-WWB-LHP
CERTIFICATE OF SERVICE
I hereby certify that on the 15th day of November 2024, a true and correct copy
of the foregoing document was filed with the Court using the Court’s CM/ECF
systems and was served upon each attorney of record via ECF notification:
Brian Philips, Esq.
/s/ James D. Peterson
James D. Peterson
Trial Attorney
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