United States v. McCray

UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

ALAN J. BAVERMAN, UNITED STATES MAGISTRATE JUDGE.

This case was decertified by the District Judge and referred back to the undersigned to determine Defendant William Calvin McCray's competency to stand trial. [Doc. 152]. For the following reasons, the undersigned RECOMMENDS that the District Court deem McCray COMPETENT TO STAND TRIAL WITH ACCOMMODATIONS. The undersigned also RECOMMENDS that because the accommodations proposed by the Government's expert are impractical, given the dynamic nature of a criminal jury trial, steps should be taken in advance of a trial to accommodate Defendant's cognitive deficiencies in order to improve his ability to assist his counsel in defending the case.

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I. BACKGROUND

Defendant McCray is charged in a second superseding indictment with conspiracy to commit sex trafficking of a minor, in violation of 18 U.S.C. § 1594(c) (Count One); the substantive offense of sex trafficking of a minor, in violation of 18 U.S.C. §§ 1591(a), (b)(1) and (b)(2) (Count Two); transportation of a minor, in violation of 18 U.S.C. § 2423(a) (Count Three); and obstructing the enforcement of § 1591(a), in violation of 15 U.S.C. § 1591(d) (Counts Four and Five). [Doc. 71].

After denying Defendant's motions to suppress evidence and statements, for return of property, and to dismiss, [Doc. 102], and ruling upon the Government's motions filed before the scheduled trial, [Doc. 102], the District Court ordered McCray to undergo a competency evaluation. [Doc. 143]. On April 25, 2018, the Warden at the Metropolitan Correctional Center in Chicago, Illinois, (“MCCC”), submitted the report of David M. Szyhowski, Psy. D., [Doc. 145]. On June 21, 2018, McCray filed a motion to determine his competency, [Doc. 149], noting some of Dr. Szyhowski's findings and those of Adriana Flores, Ph. D., who had evaluated Defendant on November 30, 2017, and May 1, 2018. [Id. at 5].

After the District Judge decertified the case and referred it back to the undersigned to conduct a competency hearing, [Doc. 152], the undersigned held an evidentiary hearing, [Doc. 162, (T)], after which the parties filed briefs,

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[Docs. 167, 168, 170]. Per the Court's direction, McCray also filed a surreply to address the appropriate accommodations to compensate at trial for McCray's intellectual functioning. [Doc. 193]. With briefing completed, the matter of McCray's competency is ripe for recommended resolution.

II. APPLICABLE LAW

“The Due Process Clause of the Fifth Amendment prohibits the government from trying a defendant who is incompetent.” United States v. Rahim, 431 F.3d 753, 759 (11^th Cir. 2005) (citing Pate v. Robinson, 383 U.S. 375, 378 (1966)); see also Indiana v. Edwards, 554 U.S. 164, 170 (2008) (“[T]he Constitution does not permit trial of an individual who lacks ‘mental competency.' ”). An individual is considered competent to assist in his proceedings when he has the sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and he has a rational and factual understanding of the proceedings against him. United States v. Nickels, 324 F.3d 1250, 1252 (11^th Cir. 2003); see Godinez v. Moran, 509 U.S. 389, 396 (1993); Dusky v. United States, 362 U.S. 402 (1960); Johnston v. Singletary, 162 F.3d 630, 634 n.4 (11^th Cir. 1998); United States v. Hogan, 986 F.2d 1364, 1371 (11^th Cir. 1993); United States v. Cruz, 805 F.2d 1464, 1479 (11^th Cir. 1986); 18 U.S.C. § 4241(a), (d), (e) (noting that a court must find a defendant incompetent

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when a preponderance of the evidence shows that “the defendant 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 also United States v. Collins, 834 Fed.Appx. 537, 541 (11^th Cir. Nov. 9, 2020) (“Because at their core, competency determinations have ‘a modest aim: [they] seek[ ] to ensure that [the defendant] has the capacity to understand the proceedings and to assist counsel.' ”) (quoting Godinez, 509 U.S. at 402).

The following factors are relevant in assessing competency: “a defendant's past medical history, the opinion of psychiatric experts, and the defendant's behavior during trial.” Woodall v. Foti, 648 F.2d 268, 273 (5^th Cir. Unit A, June 16, 1981)^[1]; see also Drope v. Missouri, 420 U.S. 162, 180 (1975). Expert opinion is not binding on the court if there is a reason to discount it. United States v. Bradley, 644 F.3d 1213, 1268-69 (11^th Cir. 2011); United States v. Izquierdo, 448 F.3d 1269, 1278-79 (11^th Cir. 2006).

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III. FACTS

In his report and testimony, Dr. Szyhowski^[2] diagnosed McCray with Antisocial Personality Disorder^[3] and Specific Learning Disorder (Reading), provisional, and ruled out Borderline Intellectual Functioning.^[4] Govt. Ex. 2 ([Doc. 158-3]) at 9; T21. He explained that a learning disorder with reading impairment pertains to a person's ability to read and to learn to read and deals

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specifically with a noted deficit in the ability to read and comprehend. T21-22. He explained that he designated the diagnosis “provisional” based on the documentary evidence he had at the time of his evaluation. T21-22.

Dr. Szyhowski observed that McCray displayed good attention and concentration skills and “was easily able to answer most questions that were posed to him.” Govt. Ex. 2 at 4. He noted that McCray demonstrated the capacity to seek clarification and to ask for questions to be repeated when he did not initially understand. Id. Dr. Szyhowski concluded that, generally, McCray appeared to have unimpaired recent and remote memory functions. He also found McCray's problem-solving and decision-making abilities to be intact as shown by his ability to consider outcomes to hypothetical problems. His judgment and insight were deemed fair, and he displayed the capacity to think critically about his situation. Id.

Dr. Szyhowski did not review any school records, although he knew that McCray was in special-education classes and received tutoring in an intensive-resource class. T71, 87. Dr. Szyhowski related that McCray completed high school with the assistance of a tutor but was unable to attend college because his ACT scores were inadequate. T87. He also understood that McCray dropped out of a music-education degree program and generally worked at manual-labor

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jobs. T88. Dr. Szyhowski also was aware that McCray had been denied disability benefits. Govt. Ex. 2 at 3.

It was Dr. Szyhowski's opinion that McCray was competent to proceed because he had a rational understanding of the case proceedings. T23.^[5] This was based in part on Dr. Szyhowski's review of the text and images of the Backpage advertisement that the Government contends McCray used in his prostitution business, Govt. Ex. 3 ([Doc. 158-4])^[6]: Dr. Szyhowski noted the advertisement contained a lot of nuance by simultaneously conveying overt and covert messages, T25-26, which spoke to McCray's practical abilities “to understand the nuance not only just of language but of circumstances as well, and to fluidly navigate kind of pitfalls and roadblocks that may serve to get a person in trouble.” T26-27. At the same time, Dr. Szyhowski acknowledged that the terms used were simple and colloquial. T73-74.

Dr. Szyhowski also relied upon his review of three-way phone calls made by McCray while he was in custody, Govt. Ex. 5 ([Doc. 158-6]), and he testified that

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those calls indicated to him McCray's ability to behave in an organized manner and critically think about his current set of legal circumstances. T30-31. He described these communications as reflecting a very adaptive way of communicating with the victim as well as communicating germane information about his legal circumstances, including discussing important evidentiary matters and some of the direction that he wished his defense to proceed, such that he had the underlying capacity to understand legal matters and participate in a meaningful way in his overall defense. T31.

Dr. Szyhowski also based his opinion on his clinical interviews (six visits totaling eight to nine hours), testing, and collateral sources, including the ones just discussed. T32. He concluded that McCray was not faking and had made good efforts. T37, 107. He also reviewed McCray's criminal history, which included a trial and a guilty plea, T35, as well as reports from other staff members at MCCC, T36.

Dr. Szyhowski performed the following tests and evaluations: Clinical Interview and Mental Status Evaluation (“CI&MSE”), Millon Clinical Multiaxial Inventory-Fourth Edition (“MCMI-IV”), ^[7] Evaluation of Competency to Stand

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Trial-Revised Edition (“ECST-R”), ^[8] and the Test of Regular Word Reading Efficiency (“TIWRE”).^[9] T22-23, 38. Dr. Szyhowski testified that the MCMI-IV has an approximate fourth-grade reading level. He concluded that because McCray had poor academic achievement and difficulty reading, as confirmed by the TIWRE, the Minnesota Multiphasic Personality Inventory, Second Revised Edition (“MMPI-II”), which has a sixth-grade reading level, was not warranted. T39. He testified that he would have preferred to give the Wechsler Adult Intelligence Scale

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Fourth Edition (“WAIS-IV”), ^[10] however, security precautions in the unit where McCray was housed did not allow that test to be administered. T40.^[11]

Because of McCray's difficulties with reading, he requested an alternative method of administration of the MCMI-IV and Dr. Szyhowski therefore read the test questions to him. Govt. Ex. 2 at 5; see also T48,...