United States v. Williams

United States of America, Plaintiff, v. Jasper Williams, Defendant.

CR-11-8022-PCT-GMS (LOA)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

June 27, 2013

REPORT AND RECOMMENDATION

This case arises on the Government's May 31, 2013 Motion for Dangerousness Assessment as authorized by 18 U.S.C. § 4246. (Doc. 100) After receiving an extension to respond, Defendant Jasper Williams, through his appointed counsel, opposes the motion. (Doc. 103) The Government's motion has been referred to the undersigned Magistrate Judge by the assigned District Judge, the Hon. G. Murray Snow, pursuant to 28 U.S.C. § 636(b)(1)(A) and LRCrim 57.6(26). (Doc. 104) Because the recommendations herein may be beyond the scope of a magistrate judge's lawful authority absent the express consent of the parties, out of an abundance of caution, this Magistrate Judge proceeds by Report and Recommendation.

I. Background

On August 15, 2010, Defendant Jasper Williams, presently 40 years of age, was arrested and charged by complaint with one count of Aggravated Sexual Abuse, in violation of 18 U.S.C. §§ 1153 and 2241(a), allegedly committed the previous day on the Navajo Indian Reservation, District of Arizona. (Doc. 1) After defense counsel was appointed,Defendant was temporarily detained by Magistrate Judge Mark E. Aspey in Flagstaff, Arizona. (Docs. 3-4) On February 22, 2011, Defendant was indicted in Phoenix on one count of Aggravated Sexual Abuse, in violation of 18 U.S.C. §§ 1153, 2241(a), and 2246(2)(A), allegedly occurring on August 14, 2010. (Doc. 28)

A. Defendant's Mental Health History in this Case

Shortly after counsel was appointed and had an opportunity to interact with Defendant, defense counsel moved for a mental competency evaluation and "competency restoration services." (Doc. 13) On September 14, 2010, the Flagstaff Magistrate Judge granted the motion, finding reasonable cause existed the Defendant was "presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the proceedings against him or to assist properly in his defense." (Doc. 18) Defendant was transferred to the custody of the Attorney General pursuant to 18 U.S.C. § 4241(d) to determine whether his competency could be restored. (Id.)

Concluding in January 2011 Defendant was not competent to proceed to trial, the Federal Medical Center in Butner, North Carolina ("FMC-Butner") submitted the report of Dr. Robert Lucking, an FMC staff psychiatrist, indicating Defendant's competency could be restored if Defendant were properly medicated and requesting a Sell¹ hearing to determine if the involuntary administration of medication on Defendant would be appropriate. (Sealed doc. 23)

To assist Judge Snow in his decision whether to involuntary medicate Defendant at an inevitable Sell hearing, avoid the bed space limitations existing at FMC-Butner, and reduce the delays inherent in transporting Defendant back and forth from FMC-Butner and Phoenix, on April 8, 2011, the parties stipulated, and Judge Snow ordered, Defendant receive a dangerousness assessment prior to Defendant's return to Phoenix for either a Sell hearing or other hearing specified by either 18 U.S.C. § 4241(e) or § 4246(c). (Doc. 40) In that order, Judge Snow directed that, "[i]f the Director of the Federal Medical Center certifies thatin the absence of proper medication the Defendant's release would create a substantial risk of bodily injury to another person or serious damage to the property of another, he or she shall prepare and transmit the certificate as is mandated by 18 U.S.C. § 4246(a)." (Id. at 1-2) "Further, the Federal Medical Center shall promptly conduct and prepare the psychiatric or psychological examination and report specified in 18 U.S.C. § 4246(b)." (Id. at 2)

In her cover letter accompanying FMC-Butner's June 15, 2011 Forensic Dangerousness Evaluation, Complex Warden Sara M. Revell advised that "[i]nsufficient information [was] available to render an informed and accurate opinion of [Defendant's] risk of dangerousness to a reasonable degree of medical certainty[.]" (Sealed doc. 46 at 1²) The report informed Judge Snow that, when FMC-Butner notified defense counsel upon Defendant's arrival, defense counsel "[r]equested Mr. Williams not be interviewed as part of the risk assessment to exercise his Fifth Amendment rights[.]" (Id. at 3) The report further advised that:

The prediction of future violence is very difficult and declines in accuracy over time. Violence is situational and depends on the confluence of specific factors and events. The primary evaluator presented Mr. Williams before a risk assessment panel which was conducted on 05/09/11. . . Defense Counsel sought to preserve the Fifth Amendment rights of Mr. Williams and the Court ordered the staff of FMC Butner notify Defense Counsel if the Defendant was to be separately questioned as part of the evaluation. As it is necessary to interview the individual undergoing the risk assessment, Defense Counsel was so notified. The Assistant U.S. Attorney assigned to FMC Butner discussed this issue with Defense Counsel and advised the Risk Panel not to interview Mr. Williams. . . .

Past history of violence: The prediction of future violence is difficult, however, a past history of violence serves as the single best predictor. The relative probability of dangerous behavior depends on the establishing of prior patterns of dangerous behavior and understanding of the situational specificity of the behavior. The probability of future dangerousness cannot be predicted based upon any single factor. The probability of present/future dangerousness is highest when the present/future biological, psychological, and environmental factors approximate[] the past biological, psychological and environmental factors during which dangerous behavior has occurred. The greater the similarity between past and present/future, the greater the probability that dangerous behavior will repeat itself. Mr. Williams does not have a substantial history of aggressive behavior[.]

(Id. at 5) (emphasis added). Significantly, FMC-Butner's risk panel concluded that, because Defendant exercised his right to remain silent and "[d]ue to the sparse amount of background information, . . . the Risk Panel was not able to formulate an opinion in regard to Mr. Williams' dangerousness if released from custody with any degree of medical certainty."³ (Id. at 7)

Over the objection of Defendant's Phoenix Assistant Federal Public Defender, on July 19, 2011, Judge Snow held a contested Sell hearing on the Government's request to involuntarily medicate Defendant and ordered Defendant be involuntarily medicated pursuant to the protocol outlined in Judge Snow's July 20, 2011 Order. (Doc. 54) After Defendant's unsuccessful appeal of Judge Snow's ruling to the Ninth Circuit Court of Appeals, on August 15, 2012, Judge Snow lifted the stay of his Sell decision and ordered Defendant transferred back to FMC-Butner for further treatment and hospitalization, including the involuntarily administration of haloperidol and other medications in an attempt to safely restore Defendant's competence to stand trial. (Doc. 81)

On February 14, 2013 after the undersigned Magistrate Judge and counsel received FMC-Butner's request for additional time and treatment, sealed doc. 88, an Order to Show Cause was directed to counsel, asking why the Court should not grant FMC-Butner's request for an additional 120-day period of commitment and treatment to attempt to restore Defendant to competency. (Doc. 91) Counsel filed timely responses. (Docs. 92-93) Neither side objected to FMC-Butner's request that Defendant remain at its facility for an additional 120-day period of treatment, except defense counsel attached a number of conditions, which were neither approved nor rejected. (Doc. 93)

Finally, on May 29, 2013, the Court conducted a telephonic conference with counsel regarding FMC-Butner's May 24, 2013 Forensic Evaluation, opining Defendant "[W]illiamsis not competent to stand trial and cannot be restored to competency with further treatment or education[.]" (Sealed doc. 96 at 9) Informal discussions were held whether a second dangerousness evaluation would be appropriate due to the passage of nearly two years between FMC-Butner's June 15, 2011inconclusive evaluation on dangerousness, and the May 24, 2013 report finding Defendant cannot be restored to competency with further treatment or education. (Doc. 98) Counsel were directed to file a written motion and response per Rule 47(a), Fed.R.Crim.P., on whether a dangerousness evaluation should now be ordered as required by the federal statutory scheme. (Doc. 99 at 1-2) (citing United States v. v. Yazzie, 2006 WL 2772636, at *6 (D. Ariz. Sept. 25, 2006) (quoting United States v. Ohnick, 803 F.2d 1485, 1486 (9th Cir. 1986)) ("Ohnick appeared in the [district] court for a final determination on his competency to stand trial. The court found that neither was Ohnick presently competent nor was there a substantial probability that he would obtain competency in the foreseeable future. As a result, Ohnick was then subject to the provisions of 18 U.S.C. § 4246."); United States v. Rivera-Morales, 365 F.Supp.2d 1139 (S.D. Cal. 2005), affirmed by United States v. Rivera-Morales, 160 Fed. Appx. 648 (9th Cir. 2005).

B. The Pending Motion

The Government requests "[a]n order allowing the staff at Butner to conduct a risk assessment to determine whether 'defendant's release would create a substantial risk of bodily injury to another person or serious damage to property of another.'" (Doc. 100 at 2) Because Defendant is currently hospitalized at FMC-Butner, transportation order is not necessary.

Defendant objects to the Government's motion, raising four ambiguous and legally unsupported reasons why another dangerousness evaluation should not be ordered: 1) defense counsel "has not had adequate opportunity to independently...