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Unopposed Motion for Hearing and Out-Patient Examination to Determine Mental Competency — United States v. Bowens

Summary

Document 47, filed May 6, 2022 in Case No. 6:21-cr-00141-RBD-EJK in the U.S. District Court for the Middle District of Florida, Orlando Division, is Defendant Emmet Bowens' Unopposed Motion for a Hearing and Out-Patient Examination to Determine Mental Competency under 18 U.S.C. § 4241, signed by counsel Andrew C. Searle. Counsel states a bona fide belief that the defendant may be unable to understand the proceedings or assist in his defense, and offers more detail in an ex parte proceeding. The motion cites the Dusky standard and asks the Court to appoint a psychiatrist or psychologist for an outpatient examination and then hold a competency hearing. It states the defendant is released on conditions and has had no issues complying with them.

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“Unopposed Motion for Hearing and Out-Patient Examination to Determine Mental Competency — United States v. Bowens.” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-flmd-396523-47-0-21ed3550af/, SHA-256 fb1b36ffea9f37f4972fe4c4bbadaf6355d1d695a3b40baed4a9813ed19a63d1.

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Case 6:21-cr-00141-RBD-NWH       Document 47    Filed 05/06/22   Page 1 of 8 PageID 149




                      UNITED STATES DISTRICT COURT
                       MIDDLE DISTRICT OF FLORIDA
                           ORLANDO DIVISION


 UNITED STATES OF AMERICA,             )
                                       )
       Plaintiff,                      )
                                       )
 v.                                    )       Case No. 6:21−cr−00141−RBD−EJK
                                       )
 EMMET BOWENS,                         )
                                       )
       Defendant.                      )
                                       )

          DEFENDANT EMMET BOWENS’ UNOPPOSED MOTION
                FOR A HEARING AND OUT-PATIENT
         EXAMINATION TO DETERMINE MENTAL COMPETENCY

       The Defendant, Emmet Bowens (“Mr. Bowens”), by and through the

 undersigned counsel, hereby respectfully moves, pursuant to 18 U.S.C. § 4241, for

 a hearing to determine Mr. Bowen’s mental competency, and for an Order

 appointing a local and duly qualified psychiatrist or psychologist to conduct an

 outpatient examination of Mr. Bowens to determine whether he is presently

 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. In support thereof,

 Mr. Bowens states as follows:
Case 6:21-cr-00141-RBD-NWH      Document 47     Filed 05/06/22   Page 2 of 8 PageID 150




                              STATEMENT OF FACTS

       Relevant Procedural History

       1.     On November 10, 2021, a federal grand jury in the Middle District of

 Florida returned an indictment charging Mr. Bowens with two counts of wire

 fraud, in violation of 18 U.S.C. § 1343 (Counts One and Two), and four counts of

 money laundering, in violation of 18 U.S.C. § 1957 (Counts Three through Six).

 Doc. 1.

       2.     On December 2, 2021, Mr. Bowens had an initial appearance before a

 U.S. Magistrate Judge, following his arrest in this case. Doc. 7. At this hearing, the

 Magistrate Judge set conditions of release for Mr. Bowens. Id. at 7.

       3.     On March 10, 2022, at a status conference, the Court granted an ore

 tenus motion to continue the trial of this matter, and set another status conference

 for May 12, 2022, at 10:00 a.m., and a jury trial for the term commencing on June 6,

 2022. Doc. 37.

       4.     Since the last status conference, the undersigned has spent

 considerable time preparing this case for trial, including reviewing the

 government’s voluminous discovery production, and drafting three pretrial

 motions that were filed timely on May 5, 2022. Docs. 44, 45, 46.           However,

 following a recent communication with Mr. Bowens, the undersigned is now

 concerned about whether or not Mr. Bowens is competent to stand trial.


                                           2
Case 6:21-cr-00141-RBD-NWH     Document 47     Filed 05/06/22   Page 3 of 8 PageID 151




 Specifically, the undersigned is concerned that Mr. Bowens has a delusional belief

 system which prevents him from meaningfully consulting with his counsel to a

 reasonable degree of rational understanding about the material issues in this case.

 The undersigned is unable to reveal more details concerning his recent

 communications with Mr. Bowens in this pleading, however, if necessary, the

 undersigned can provide more specifics to the Court in an Ex Parte proceeding.

       5.    Based on the recent communication with Mr. Bowens, the

 undersigned has a bona fide belief that the defendant in this matter is “presently .

 . . . 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 18 U.S.C. §

 4241(a). Accordingly, the undersigned is requesting a hearing to determine Mr.

 Bowen’s mental competency. The undersigned is also requesting that prior to the

 date of the hearing, the Court order an out-patient psychiatric or psychological

 examination of Mr. Bowens to assist the Court in determining whether Mr.

 Bowens is indeed competent to proceed in this case.

                            MEMORANDUM OF LAW

       Legal Standards

       As the Court is well aware, a defendant is not fit to stand trial if he is

 “suffering from a mental disease or defect rendering him mentally incompetent to


                                          3
Case 6:21-cr-00141-RBD-NWH       Document 47      Filed 05/06/22   Page 4 of 8 PageID 152




 the extent that he is unable to understand the nature and consequences of the

 proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a).

 “The standard for competency to stand trial is whether the Defendant has

 sufficient present ability to consult with his lawyer with a reasonable degree of

 rational understanding—and whether he has a rational as well as factual

 understanding of the proceedings against him.” United States v. Hogan, 986 F. 2d

 1364, 1371 (11th Cir. 1993) (emphasis added); see also Dusky v. United States, 362

 U.S. 402 (1960) (hereinafter “the Dusky standard”).

       When a motion to determine competency is made, “[t]he court shall grant

 the motion, or shall order such a hearing on its own motion, if there is reasonable

 cause to believe that the defendant may” be incompetent under the standard

 articulated above. 18 U.S.C. § 4241(a) (emphasis added). Moreover, a court must

 sua sponte conduct a competency hearing if “information known to the trial court

 at the time of the trial or plea hearing is sufficient to raise a bona fide doubt

 regarding the defendant’s competence.” Tiller v. Esposito, 911 F. 2d 575, 576 (11th

 Cir. 1990) (citing Pate v. Robinson, 383 U.S. 375, 385 (1966)).

       The input of defense counsel regarding the competency of the defendant is

 a significant part of the information essential in determining whether a legitimate

 doubt exists as to a defendant’s present mental competency. Failing to raise the

 competency issue before the district court is persuasive evidence that competency


                                            4
Case 6:21-cr-00141-RBD-NWH       Document 47     Filed 05/06/22   Page 5 of 8 PageID 153




 is not in doubt. United States v. Rodriguez, 799 F. 2d 649, 655 (11th Cir. 1986).

 Conversely, when defense counsel timely raises the issue, it must be taken

 seriously:

       Because legal competency is primarily a function of defendant’s role
       in assisting counsel in conducting the defense, the defendant’s
       attorney is in the best position to determine whether the defendant’s
       competency is suspect. Accordingly, the failure of defense counsel to
       raise the competency issue at trial, while not dispositive, is evidence
       that the defendant’s competency was not really in doubt and there
       was no need for a Pate hearing. (For the same reason, a defense
       counsel’s request for a Pate hearing must be taken seriously by the
       trial judge.).

 Watts v. Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996).

       In Torres v. Prunty, 223 F.3d 1103, 1108 (9th Cir. 2000), the Ninth Circuit held

 that the trial court erred in failing to inquire as to whether a defendant was

 competent to stand trial, where, inter alia, defense counsel proffered that the

 defendant would not be able to assist in his defense due to delusional beliefs the

 defendant was having. Here, based on the undersigned’s recent communications

 with Mr. Bowens, the undersigned has a bona fide belief that Mr. Bowens will not

 be able to “consult with his lawyer with a reasonable degree of rational

 understanding.” Dusky, 362 U.S. at 402. Moreover, the undersigned is presently

 unable to have a meaningful discussion with Mr. Bowens about the government’s

 evidence and the theory of prosecution in this case.




                                           5
Case 6:21-cr-00141-RBD-NWH       Document 47     Filed 05/06/22    Page 6 of 8 PageID 154




       For the foregoing reasons, this Court is requested to enter an Order under

 18 U.S.C. § 4241(b) for a duly qualified psychiatrist or psychologist to conduct an

 examination to determine the competence of Mr. Bowens and file a report of the

 examination with the Court. This Court is then requested to conduct a hearing to

 determine Mr. Bowens’ competency.

       Mr. Bowens respectfully requests that his competency evaluation be

 conducted on an outpatient basis by a local psychiatrist or psychologist. As noted

 above, Mr. Bowens is currently released on conditions set by the Court. Further,

 Mr. Bowens has had no issues whatsoever complying with the conditions of his

 release.   Courts have articulated that the government must offer evidence

 establishing “the presence of compelling governmental interests[,]” which would

 require an examination be conducted pursuant to a custodial commitment, instead

 of on an outpatient basis. See e.g. United States v. Neal, 679 F. 3d 737, 741 (8th Cir.

 2012); United States v. Deters, 143 F. 3d 577, 582-84 (10th Cir. 1998); United States v.

 Song, 530 Fed. Appx. 255, 259 n. 5 (4th Cir. 2013).

      CERTIFICATION OF CONFERRING WITH OPPOSING COUNSEL

       Pursuant to the Court’s Criminal Scheduling Order (Doc. 16), the

 undersigned certifies: (1) that the undersigned counsel conferred with opposing

 counsel; (2) that the motion is unopposed; and (3) that the motion concerns matters

 not covered by the scheduling order.


                                            6
Case 6:21-cr-00141-RBD-NWH    Document 47    Filed 05/06/22    Page 7 of 8 PageID 155




                                 CONCLUSION

       WHEREFORE, the Defendant, Emmet Bowens, requests that this Court

 enter an Order: (1) appointing a duly qualified psychiatrist or psychologist to

 conduct an outpatient examination of the defendant to determine whether the

 defendant is presently suffering from a mental disease or defect rendering the

 defendant mentally incompetent to the extent that the defendant is unable to

 understand the nature and consequences of the proceedings against him or to

 assist properly in his defense; and (2) scheduling a competency hearing in this

 matter upon the completion of the defendant’s competency evaluation.

       Respectfully submitted on this 6th day of May, 2022.

                                            s/Andrew C. Searle
                                            ANDREW C. SEARLE, ESQ.
                                            Florida Bar No. 0116461
                                            SEARLE LAW P.A.
                                            200 East Robinson Street, Suite 1150
                                            Orlando, Florida 32801
                                            Telephone: 407-203-3715
                                            Email: andrew@searle-law.com
                                            Attorney for Defendant




                                        7
Case 6:21-cr-00141-RBD-NWH       Document 47     Filed 05/06/22   Page 8 of 8 PageID 156




                             CERTIFICATE OF SERVICE

       I HEREBY CERTIFY on May 6, 2022, 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/Andrew C. Searle
                                               ANDREW C. SEARLE, ESQ.
                                               Florida Bar No. 0116461
                                               SEARLE LAW P.A.
                                               200 East Robinson Street, Suite 1150
                                               Orlando, Florida 32801
                                               Telephone: 407-203-3715
                                               Email: andrew@searle-law.com
                                               Attorney for Defendant




                                           8


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