|
UNITED STATES OF AMERICA, Plaintiff, v. Defendant.
|
|
) ) ) ) ) ) ) ) ) ) |
No. CR 00-0000 ABC May 26, 2000 2:30 p.m. |
|
|
|
|
|
|
|
BARRY J. PORTMAN
Federal Public Defender
Assistant Federal Public Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone:
(415) 436-7700
Counsel for Defendant XXXX
IN THE
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
|
UNITED STATES OF AMERICA, Plaintiff, v. Defendant.
|
|
) ) ) ) ) ) ) ) ) ) |
No. CR 00-0000 ABC May 26, 2000 2:30 p.m. |
|
|
|
|
|
|
|
TO: UNITED
STATES OF AMERICA, PLAINTIFF; AND ROBERT MUELLER, UNITED STATES ATTORNEY; AND
ROBIN SEELY, ASSISTANT UNITED STATES ATTORNEY.
PLEASE TAKE NOTICE that on May 26, 2000, at
2:30 p.m. before the Honorable Marilyn Hall Patel, or as soon thereafter as the
matter may be heard, counsel for defendant XXXX XXXX XXXXXX will move the Court
under Federal Rule of Criminal Procedure 48 to dismiss indictment against him
due to unreasonable delay in his competency determination.
The motion is based on the instant notice
and motion, the following points and authorities, all other applicable
constitutional, statutory, and case authority, and such evidence and argument
as may be presented at the hearing of this motion.
MEMORANDUM OF POINTS AND AUTHORITIES: INTRODUCTION
Although it has been nearly four months
since the Court ordered that Defendant XXXX XXXX XXXXXX be examined under 18
U.S.C. ' 4241 for the purpose of a competency determination,
no report on Mr. XXXX=s competency has yet been returned. This unreasonable delay far exceeds the
30-day statutory time period set out for the report in 18 U.S.C. '
4247(b). As a result, the Court should
dismiss the indictment against Mr. XXXX under Rule 48 and order him bound over
to the custody of the Immigration and Naturalization Service so that he can
promptly be deported.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. XXXX is charged in a one-count
indictment filed January 5, 2000, with illegal reentry after deportation in
violation of 8 U.S.C. ' 1326.
Having experienced difficulty working with Mr. XXXX, and having learned
as a result of preliminary investigations that Mr. XXXX had previously been
institutionalized and medicated in Mexico due to mental illness, undersigned
counsel moved in open court on January 24, 2000, for a determination of the
competency of Mr. XXXX pursuant to 18 U.S.C. ' 4241(a).
At that appearance, the Court bound over Mr. XXXX to the custody of the
Attorney General for a competency examination, and set an appearance for
determination of Mr. XXXX=s competency for February 28, 2000, pursuant
to 18 U.S.C. ' 4247(b).
Unfortunately, Mr. XXXX=s
competency had not been evaluated by the Attorney General by that date, and the
Court set a subsequent date of March 27, 2000.
Mr. XXXX=s competency had still not been evaluated by
March 27, so another appearance was set for April 17, 2000. Again, since no evaluation was available on
April 17, another date was set for May 8, 2000. Yet again, without an evaluation on May 8, the Court set an
appearance for May 22, 2000. At the May
8, 2000, appearance, undersigned counsel for the first time made reference to
the time limits under ' 4247(b), and all parties expressed their
hope that the evaluation would be ready by May 22. However, at the May 22 appearance today, there still was no
competency evaluation and undersigned counsel made an oral motion to dismiss on
the grounds of unreasonable delay. The
Court suggested that the motion be put in writing and set an appearance for May
26, 2000.
ARGUMENT
Section 4247(b) provides that, for the
purposes of a competency examination under ' 4241, Athe court may commit the person to be
examined for a reasonable period, but not to exceed thirty days . . . to the
custody of the Attorney General for placement in a suitable facility.@ 18 U.S.C. 4247(b). That section further provides that the director of the facility
may apply for a reasonable extension, not to exceed fifteen days Aupon
a showing of good cause that the additional time is necessary to observe and
evaluate the defendant.@ Id.
Mr. XXXX was first bound over by the Court
to the custody of the Attorney General on January 24, 2000. Four months later, the Attorney General
still has not produced an evaluation of Mr. XXXX=s competency. As a result, Mr. XXXX remains in custody, unable to proceed to
trial but with the Speedy Trial clock indefinitely tolled under 18 U.S.C.
3161(h)(1)(A).
As the length Mr. XXXX=s
ongoing custody under ' 4241 has quadrupled the maximum time
allotted by ' 4247(b) for such a competency evaluation
(or nearly tripled the time if the facility director is deemed to have made
sufficient showing of good cause), that custody is not Areasonable@
and an appropriate remedy should be ordered.
See, e.g., United States v. Baker, 807 F.2d 1315, 1320 (6th Cir.
1986) (no authority to hold defendant for competency determination beyond
maximum time period set out in statute).
Although the statute is silent as to the
proper remedy, the Court should order that the indictment against Mr. XXXX be
dismissed pursuant to Federal Rule of Criminal Procedure 48(b), and that he be
remanded to the custody of the INS so that he may be promptly deported. Cf. id. at 1325 (no
authority to order release since defendant being held out of district).
As noted above, the Speedy Trial Act
explicitly provides for tolling of the trial clock for Adelay
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). However, this provision cannot be used to hold a defendant
indefinitely while the Attorney General violates the provisions of the statutes
setting out the procedures for such competency determinations. Such indefinite custody would surely violate
the Due Process Clause, the Sixth Amendment=s Speedy Trial Clause, and the Eighth
Amendment, even if it did not violate the Speedy Trial Act. Because the delay has quadrupled the
statutory time period for his competency evaluation, the Attorney General has
not articulated any justifiable reasons for the delay, Mr. XXXX has made timely
and vigorous assertions of his rights, and he is prejudiced by his ongoing
detention, the Court should order that the indictment be dismissed. See Barker v. Wingo, 407 U.S. 514,
530 (1972).
Mr. XXXX has an INS hold. The most likely result if Mr. XXXX were
found incompetent is that he would be promptly deported. And, he is more than likely incompetent
since he has previously been institutionalized and medicated in Mexico for
mental illness. The Court has on prior
appearances inquired of Mr. XXXX as to his mental state and gotten a flavor of
his present mental capacity. If the
Court were to order that the indictment be dismissed, Mr. XXXX would be
remanded to the custody of the INS and would not contest deportation.
CONCLUSION
For these reasons, undersigned counsel moves
that the Court order that the indictment against Mr. XXXX be dismissed.
Dated:
May 22, 2000
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
DANIEL P. BLANK
Assistant Federal Public Defender
_files/image001.gif){kind=small}