United States v. Lewis

685 F.Supp.3d 1227

UNITED STATES of America, Plaintiff, v. Carmichael LEWIS, Defendant.

No. CR 21-0660 JB

United States District Court, D. New Mexico

Filed August 3, 2023

Fred J. Federici, Acting United States Attorney, Paul H. Spiers, Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Margaret Katze, Federal Public Defender, Irma Rivas, Assistant Federal Public Defender, Office of the Federal Public Defender, Albuquerque, New Mexico, Attorneys for Defendant.

MEMORANDUM OPINION AND ORDER¹

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendant's Sealed Motion to Determine Competence to Stand Trial, filed August 13, 2021 (Doc. 24)("Motion"). The Court held a Competency Hearing on October 28, 2021. See Clerk's Minutes, filed October 28, 2021 (Doc. 34)(Sealed); Transcript of Hearing, taken October 28, 2021 ("Tr.")(Sealed).² The primary issue is whether Defendant Carmichael Lewis ("C. Lewis") is mentally competent to stand trial. The Court finds that C. Lewis has not established, by a preponderance of the evidence, that 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 or to assist in his defense. Because C. Lewis has not met his burden of establishing, by a preponderance of the evidence, that he is mentally incompetent to stand trial, the Court denies C. Lewis' Motion.

FINDINGS OF FACT

The Federal Rules of Criminal Procedure require the Court to state "its essential findings on the record" when "factual issues are involved in deciding a motion." Fed. R. Crim. P. 12(d). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d)'s purposes. The Court makes the following findings of fact, based upon the Psychological Evaluation Report by Clinical and Forensic Psychologist, Dr. Susan Cave, see Psychological Evaluation Report, filed August 13, 2021 (Doc. 24-1)("Cave Report"); the Pretrial Services Report, see Pretrial Services Report, filed April 23, 2021 (Doc. 10)("Bail Report"); and the testimony of Lewis' sister, Shanna Lewis ("S. Lewis"), Dr. Susan Cave, Ms. Rivas -- C. Lewis' counsel -- and Drug Enforcement Administration Special Agent Jarrell Perry, at the Competency Hearing on October 28, 2021. The Court recognizes that the factual background is largely the United States' version of events and that C. Lewis is presumed innocent.

The Court finds as follows:

1. C. Lewis' Background and Clinical Assessments.

1. C. Lewis was born in Chicago, Illinois, in 1994. See Bail Report at 2.

2. C. Lewis' parents are deceased, but he has "9-10 siblings." Cave Report at 2.

3. C. Lewis is in contact with three of his siblings: Shanna ("S. Lewis"), Cashinae, and Zachary. See Bail Report at 1-2.

4. When C. Lewis was four years old, he picked up a gun, and it discharged accidentally: "a bullet passed through the frontal lobes of his brain, entering on the left and passing through the right side of his skull." Cave Report at 2.

5. C. Lewis' mental abilities changed after the accident. See Tr. at 11:3-14 (S. Lewis, Rivas).

6. C. Lewis injured his head again in third grade, on the right side of his skull near his temple. See Cave Report at 2.

7. C. Lewis suffers from chronic headaches. See Cave Report at 2.

8. C. Lewis was enrolled in special education programs while in school. See Cave Report at 2.

9. C. Lewis does not have a high school diploma or general educational development ("GED"). See Bail Report at 2.

10. C. Lewis had trouble reading while in school. See Tr. at 12:10-12 (Rivas, S. Lewis).

11. In July, 2011, Peter Nichols, M.D., of Streamwood Behavioral Health, Streamwood, Illinois, found that C. Lewis suffered from "Adjustment Disorder, Oppositional Defiant Disorder, Intermittent Explosive Disorder, Disruptive Behavior Disorder NOS, Provisional Attention Deficit/Hyperactivity Disorder, Mood Disorder NOS, Mild Mental Retardation[³] with a Full-Scale IQ between 54 and 63, History of Traumatic Brain Injury, Fracture to his Phalanx, and Fetal Exposure to Substances." Cave Report at 3.

12. Dr. Nichols did not prescribe C. Lewis any medication. See Cave Report at 3.

13. Licensed psychologist Paul Linden assessed C. Lewis at age eighteen as having an IQ of 61. See Cave Report at 3.

14. C. Lewis has never been employed, and the Social Security Administration ("SSA") has found Lewis "unemployable." Cave Report at 2-3.

15. The SSA has found Lewis to be "100%" disabled. Tr. at 12: 9 (S. Lewis). See id. at 12:6-8 (Rivas, S. Lewis).

16. S. Lewis is the payee for Lewis' Supplemental Security Income ("SSI") payments. See Cave Report at 3.

17. C. Lewis has received SSI since the accident, which occurred when he was four years old. See Tr. at 12:1-7 (Rivas, S. Lewis).

18. Since January 1, 2019, C. Lewis has lived with S. Lewis, a brother, and several nieces and nephews. See Bail Report at 2.

19. C. Lewis has two children: J.L., age eleven, and N.L., age one. See Bail Report at 2.

20. J. L. lives with his mother, Janice Mitchell, in Danville, Illinois, and N. L. lives with his mother, Akilah Lee, in Lafayette, Indiana. See Bail Report at 2.

21. C. Lewis has problems remembering things that have been said to him an hour and a half later, see Tr. at 11:19-22 (Rivas, S. Lewis), but does not have trouble "recalling his actual experience," Tr. at 46:5-6 (Cave).

22. C. Lewis often "ask[s] the same thing over and over like he don't understand." Tr. at 11:17-18 (S. Lewis).

23. C. Lewis scored eight out of fifteen on the Rey 15 Item Test with Recognition Phase, which tests for memory and malingering.⁴ See Cave Report at 4-5 ("Persons with average memory function should be able to remember 9 of the 15.").

24. C. Lewis scored at "less than the 25th percentile" in the Rey-Osterrieth Complex Figure test,⁵ which "examines the client's ability to recall information (memory) and copy it freehand (cognition)." Cave Report at 5.

25. C. Lewis "has moderate to severe cognitive dysfunction, which is . . . related to the brain trauma self-inflicted accident[al]ly at age 4." Cave Report at 5.

26. C. Lewis has an IQ below 70, which falls within the range for intellectual disability. See Tr. at 32:19-33:16 (Rivas, Cave); Cave Report at 7.

27. C. Lewis' Peabody Picture Vocabulary Test4⁶ -- "a wide-range instrument used for measuring the receptive (auditory) vocabulary" -- reveals that he has a cognitive age of five years, six months. See Cave Report at 5-6.

28. Dr. Cave administered the Competency Assessment for Standing Trial for Defendants with Mental Retardation ("CAST-MR") test,⁷ and C. Lewis scored fifty-six percent for his understanding of basic legal concepts, forty-six percent for "skills to assist defense," one hundred percent for understanding "case events," and had an overall score of sixty-two percent, which is below the passing score of sixty-five percent. Cave Report at 6. See Tr. at 36:3-37:4 (Cave).

29. C. Lewis knows that:

a. he is charged with "possession," Cave Report at 6;

b. he is charged with a "felony," Cave Report at 6;

c. he is facing a sentence with "lotta time," Cave Report at 6;

d. probation means that he has to "call somebody," Cave Report at 6;

e. a condition of probation includes "drug classes," Cave Report at 6;

f. not guilty means "I didn't do the charge," Cave Report at 6;

g. guilty means "you did it," Cave Report at 6;

h. the defense attorney is there as "somebody runs with you -- hears your side of the story," Cave Report at 6;

i. the United States' attorney is "with the judge," Cave Report at 6;

j. the judge is there to "give you time," Cave Report at 6;

k. the jury's function is to "I don't know -- work with you," Cave Report at 7;

l. his role as a defendant is "not talking," Cave Report at 7;

m. the witnesses are "somebody told on you," Cave Report at 7;

n. the prosecutor is someone trying to "take you away," Cave Report at 7;

o. evidence is "they got something on you," Cave Report at 7;

p. he wants his case's outcome to be that he "go home," Cave Report at 7;

q. his defense attorney is "somebody in your corner," Cave Report at 7; and

r. in court he is supposed to be "quiet," but knows that he can speak "if judge asks you." Cave Report at 7.

30. C. Lewis knows "what a plea bargain was, what plea he would have to make to get a plea bargain, as well as what rights he would give up to get a plea bargain." Cave Report at 7.

31. Ms. Rivas testified that:

Every single day, every single day[,] Mr. Lewis calls me and asks me the same question . . . . Sometimes . . . twice a day and . . . it's still the same conversation. I met with Mr. Lewis many times over the phone, by video, and in person, and we cannot, we cannot get any resolution as to just for him to understand what the United States sentencing guidelines are.

Tr. at 96:21-97:6 (Rivas).

32. Ms. Rivas testified that "[H]e really only understands that he's looking at a lot of time . . . . He doesn't understand really what that time really is." Tr. at 97:11-14 (Rivas).

33. When Ms. Rivas entered a break out room to talk with C. Lewis during the hearing, "I couldn't get him focused on the questions." Tr. at 97:20-23 (Rivas).

2. Events Leading to C. Lewis' Arrest.

34. C. Lewis was traveling by Greyhound bus from Arizona to Chicago, Illinois, through Albuquerque, New Mexico, on April 19, 2021. See Response at 2-3; Cave Report at 2.

35. Drug Enforcement Administration Special Agent Jarrell Perry encountered C. Lewis on the Greyhound bus and requested that C. Lewis consent to a search of C. Lewis' backpack. See Response at 3.

36. During the Competency Hearing, C. Lewis interrupted Perry to contradict Perry's testimony that he was wearing shorts and a t-shirt during the encounter, see Tr. at 73:16-18 (Perry, Lewis), and to say, "Did you tell him about the bathroom too before I got on . . . the bus[?],"...