United States v. Ortiz-Marrero

609 F.Supp.3d 59

UNITED STATES of America, Plaintiff

v.Luis Daniel ORTIZ-MARRERO [3], Defendant

CRIM NO. 18-496-3 (RAM)

United States District Court, D. Puerto Rico.

Signed June 29, 2022

Maria L. Montanez-Concepcion, AUSA, United States Attorneys Office District of Puerto Rico, San Juan, PR, for Plaintiff.

Robert Millan, Millan Law Offices, San Juan, PR, for Defendant.

OPINION AND ORDER

RAUL M. ARIAS-MARXUACH, United States District Judge

This matter comes before the Court on Defendant Luis Daniel Ortiz-Marrero's ("Defendant" or "Mr. Ortiz-Marrero") "Motion Requesting the Mental Examination Of Defendant " (the "Motion ") for a competency determination. (Docket No. 158). Having heard the testimony of the parties’ proffered experts, considered the documentary evidence, and observed Defendant at the competency hearing, the Court finds Ortiz-Marrero competent to stand trial. He is not presently suffering from a mental disease or defect rendering him incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly with his defense.

I. BACKGROUND

Defendant was indicted and charged with drug trafficking offenses on August 24, 2018. (Docket No. 20). He was found competent to understand the proceedings at his bail hearing on March 20, 2019. (Docket No. 60). On March 4, 2020, Defendant moved for a competency evaluation, which the Court ordered. (Dockets Nos. 158 and 162). Shortly thereafter, the COVID-19 pandemic and lockdowns ensued, which delayed his transfer outside Puerto Rico for a competency evaluation for about a year.

As a result, on March 29, 2021, Mr. Ortiz-Marrero filed an emergency motion seeking to vacate both the order for a competency evaluation and his imminent transfer outside Puerto Rico for the evaluation. (Docket No. 232). In this motion, Ortiz-Marrero's counsel stated that the competency evaluation was no longer necessary, as Defendant was competent and can participate and make decisions during the plea negotiations process and assist counsel at trial if necessary.

The Government opposed the motion and pressed for Defendant to be evaluated to avoid any future claims of ineffective assistance of counsel or a motion to vacate or set aside Defendant's sentence. (Docket No. 235). At a status conference on April 19, 2021, the Court ordered Mr. Ortiz-Marrero be evaluated by a local expert selected by his counsel. (Docket No. 236). The Government then requested its own expert evaluation, which the Court also ordered. (Dockets Nos. 250 and 270).

The Court held a competency hearing on April 20, 26 and 27, 2022. (Docket Nos. 326-328). Defendant presented the testimony of Dr. Ana Rosa Díaz-Miranda ("Dr. Díaz-Miranda"), and the Government presented the testimony of Dr. Carmen J. Rodríguez ("Dr. Rodríguez"), the Federal Bureau of Prisons’ ("BOP") psychologist who evaluated Defendant at FDC Miami. (Docket Nos. 326-327; 327-328).

II. FINDINGS OF FACT

A. Dr. Díaz-Miranda's testimony

Dr. Díaz-Miranda is a forensic psychologist who performs evaluations in family, sexual abuse and parental alienation cases. (Day 1 of Competency Hearing at 11). She has held a Doctoral Degree in Psychology since 2018. Id. at 17. This was the first time she testified as a forensic psychologist in any court. Id. at 15. Over the course of her career, she has performed ten competency evaluations in criminal cases. Id. at 14-15.

Dr. Díaz-Miranda testified that Mr. Ortiz-Marrero does not have the minimum competency to be tried or the necessary skills to assist his attorney in his defense. Id. at 42-43. To reach that opinion, she interview Defendant and others and administered the following tests to Defendant: (i) the Nonverbal Intelligence Test ("TONI-4"); (ii) the Beck Anxiety Inventory ("BAI"); (iii) Beck Depression Inventory ("BDI"); (iv) Beck Hopelessness Scale ("BHS"); (v) Wechsler Scale Test for Adults (Third Edition) ("Wechsler"); and (vi) the Vineland Adaptive Behavior Scale (Second Edition) ("Vineland"). Id. at 22, 29, 34 and 40. The Court will summarize her findings as to each test below.

1. TONI-4 Test

The TONI-4 measures an individual's general mental intellectual ability. Id. at 24. According to Dr. Díaz-Miranda, Mr. Ortiz-Marrero's scores on the TONI-4 show he has the same planning and decision-making strategies as a 9-year and 6-month-old child. Id. at 25-26, 40. The test also reflects Defendant had a moderate state of anxiety and depression requiring professional help. Id. at 40. On cross examination, Dr. Díaz-Miranda admitted that the manual which explains how to score the TONI-4 test states that the use of age equivalency has "been criticized extensively and most authorities have strongly and persuasively advocated discontinuing their use because their statistical properties are inadequate, and their results are often misleading." (Docket 330 at 38-39). Defendant's score placed him in the "Low Average" category, which corresponds with an IQ between 80 and 89. (Day 1 of Competency Hearing at 26).

2. Different Types of Beck Tests

Dr. Díaz-Miranda also performed three types of Beck psychological tests on Defendant. First, the BDI measures the depression reported by the person based on how they have been feeling during the past two weeks. Id. at 27. Mr. Ortiz-Marrero's score shows he has moderate depression and requires help from a mental health professional. Id. Second, the BAI follows the same methodology as the BDI test, which means Defendant receives certain instructions, reads the reactives and reports how he has felt during the past two weeks. Id. at 27-28. Mr. Ortiz-Marrero's score shows he has moderate anxiety requiring mental health assistance. Id. at 28. Third, the BHS requires answering true or false questions. Id. Mr. Ortiz-Marrero's score indicates minimal hopelessness. Id.

3. Wechsler Test

The Wechsler Scale for Adults is a standardized test for Puerto Rico's population which evaluates the intelligence of an individual and different areas of cognitive functioning. Id. at 29. Id. at 29. Mr. Ortiz-Marrero tested at an average level of intellectual functioning on five of seven subtests for verbal skills, and borderline in the other two tests. Id. at 31. In the execution scale, he tested at an average level of intellectual functioning in three out of six subtests. Id. at 31-32. But in the other three tests, he was in the category of borderline and intellectual disability. Id. at 32. This reflects weakness or disability in the areas of attention, memory, and speed of processing, among other things. Id. On cross-examination, Dr. Díaz-Miranda admitted discontinuing testing ahead of time and therefore deviating from the testing instructions. (Docket No. 330 at 33-34). She also admitted to making a mistake in recording the test score as a three on the test itself and the score on the report's cover sheet as a four, whereas she admitted she should have recorded the actual test score as a four. Id. at 32-33. Defendant's score of "4" on the Weschler test shows his cognitive function is considered "borderline" and classified as a weakness, nevertheless it does not equate to intellectual disability. Id. at 34.

4. Vineland Test

The Vineland Test evaluates adaptive functioning which goes beyond IQ results. (Day 1 of Competency Hearing at 34). To perform this test, Dr. Díaz-Miranda interviewed Defendant's mother on three main domains – communication, daily living skills and socialization. Id. at 35. His composite score shows he has a mild developmental disability, which limits his functioning in all three areas. Id. at 35-37, 40-41. On cross-examination, Dr. Díaz-Miranda explained it is possible to have a mild developmental disability and still be competent. (Docket No. 330 at 17).

B. Dr. Rodríguez's testimony

Dr. Rodríguez, who has been a forensic psychologist since 2019, is currently a psychologist for the BOP. Id. at 55. She has a Doctoral Degree in Clinical Psychology with a concentration in Forensic Psychology. Id. at 55-56. Forensic psychology applies psychological techniques to answer a legal question. Id. at 57.

Dr. Rodríguez has been qualified as an expert in court ten times and has testified for and against the Government. Id. at 61. She testified that about thirty (30) percent of her evaluations have resulted in a finding of not competent to stand trial. Id. She also stated about seventy (70) percent of the cases she receives from the Court system are for evaluations for competency to stand trial. Id. Most of the patients she evaluates in Spanish are from Puerto Rico. (Docket No. 335 at 54).

Dr. Rodríguez concluded there is no evidence Defendant is suffering from a mental disease or defect that interferes with his ability to understand the legal procedures and to properly assist in his defense. Id. at 4-5. She also opined Defendant was malingering during the evaluation. Id. at 19. She defined malingering as "the intentional production of false or exaggerated physical or psychiatric symptoms for a secondary gain." (Docket No. 330 at 61-62). Thus, by saying Defendant was malingering, she meant "he was attempting to present as cognitively impaired by performing poorly on measures of cognitive functioning." (Docket No. 335 at 19).

To reach her opinions, Dr. Rodríguez evaluated Mr. Ortiz-Marrero between October to December 2021 at FDC Miami. (Docket No. 330 at 63). To prepare for the evaluation, she reviewed court documents, Dr. Díaz-Miranda's report, and BOP's medical, psychological and disciplinary records. Id. at 64. She also interviewed Defendant, custody staff and Defendant's treating psychologist at MDC Guaynabo. Id. at 65. Finally, Dr. Rodríguez administered the following tests to Mr. Ortiz-Marrero: (i) the Comprehensive Test of Non-Verbal Intelligence, Second Edition ("CTONI-2"); (ii) the Validity Indicator Profile ("VIP"); (iii) the Personality Assessment Inventory ("PAI"); (iv) the Structured Inventory of Malinger Symptomatology ("SIMS"); and (v) the Georgia...