Case 2:17-mj Document 15 Filed 12/01/17 Page 1 of 10 PageID# 49 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

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1 Case 2:17-mj Document 15 Filed 12/01/17 Page 1 of 10 PageID# 49 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division UNITED STATES OF AMERICA ) ) v. ) Case No. 2:17mj562 ) ERIC BRIAN BROWN, ) ) Defendant. ) MOTION FOR MENTAL EXAMINATION TO DETERMINE THE DEFENDANT S COMPETENCE TO STAND TRIAL The United States of America, by and through its counsel, respectfully moves this Honorable Court, pursuant to Title 18, United States Code, Section 4241(a) and Federal Rules of Criminal Procedure 12.2(c)(1)(A), for a pretrial psychiatric examination of the defendant to determine whether the defendant is 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. I. Introduction On November 7, 2017, ERIC BRIAN BROWN (hereinafter referred to as defendant ) was charged with kidnapping, in violation of 18 U.S.C. 1201, Ashanti M. Billie (hereinafter referred to as victim ) who resided in Virginia Beach, Virginia, and whose body was recovered on church property in tall grass near a wooded area in Charlotte, North Carolina. The alleged criminal act commenced on Joint Expeditionary Base Little Creek, which is within the special maritime and territorial jurisdiction of the United States. Based on the federal complaint, the defendant made his initial appearance on November 8, 2017, with a preliminary hearing and

2 Case 2:17-mj Document 15 Filed 12/01/17 Page 2 of 10 PageID# 50 detention hearing held on November 14, 2017, at which time the Court found probable cause and the defendant waived detention. The defendant has not yet been indicted by a federal grand jury. On November 8, 2017, the State of North Carolina charged the defendant with First Degree Murder. That charge is also pending. II. Legal Discussion A. Statutory Basis for Determination of Mental Competency Under Title 18, United States Code, Section 4241(a), the Government may file a motion for a hearing to determine the mental competency of the defendant. This section sets forth a reasonable cause standard such that, if met, the Court must grant the motion or order a competency hearing in accordance with 18 U.S.C. 4247(d). In making its decision to grant the motion or order a hearing, the Court must determine if there is reasonable cause to believe that the defendant may presently be 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. 18 U.S.C. 4241(a). The language of the statute clearly grants discretion to an attorney for the Government (and to defense counsel) to file the motion. Based on our knowledge of the defendant s history and conduct, as generally set forth below, we believe it is our duty to file this motion. B. Requirement of Competency to Stand Trial A criminal defendant may not be tried unless he is competent. Drope v. Missouri, 420 U.S. 162, 171 (1975). The standard for competence to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational 2

3 Case 2:17-mj Document 15 Filed 12/01/17 Page 3 of 10 PageID# 51 understanding B and whether he has a rational as well as factual understanding of the proceedings against him. Id. at 172 (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)). Evidence of irrational behavior, demeanor in the courtroom, and prior medical opinions on competence are all relevant in determining whether further inquiry into a defendant s competence is required. Drope, 420 U.S. at 180. In Dusky, the Court clarified that the test for competency is whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings. Dusky, 362 U.S. at 402. Due process requires that a defendant be competent during a criminal proceeding. Medina v. California, 505 U.S. 437, 448 (1992); Pate v. Robinson, 383 U.S. 375 (1966). Moreover, [w]hen the United States Attorney has information causing him to have reasonable doubt as to the competency of a criminal defendant, he is duty-bound to report it to the court and to request a mental examination. United States v. Varner, 467 F.2d 659, 661 (5th Cir. 1972), see also United States v. Fogarty, 558 F. Supp. 856 (E.D. Tenn., 1982), Frye v. Settle, 168 F. Supp. 7 (W.D. Mo. 1958). C. Reasonable Cause The Fourth Circuit has stated in United States v. Mason, 52 F.3d 1286, 1290 (4th Cir. 1995), that in determining whether there is reasonable cause to order a competency hearing, a trial court must consider all evidence before it, including evidence of irrational behavior, the defendant's demeanor at trial, and medical opinions concerning competence. See Drope, 420 U.S. at 180; Fallada v. Dugger, 819 F.2d 1564, 1568 (11th Cir.1987); Thompson v. 3

4 Case 2:17-mj Document 15 Filed 12/01/17 Page 4 of 10 PageID# 52 Blackburn, 776 F.2d 118, 123 (5th Cir.1985). [E]ven one of these factors standing alone may, in some circumstances, be sufficient. Drope, 420 U.S. at 180. D. Competency Examination Title 18, United States Code, Section 4241 codifies the standard for competency set forth by the Supreme Court in Dusky, 362 U.S. at 402. Under 18 U.S.C. 4241(a), either the defendant or the government may file a motion for a competency determination. Moreover, the Court may order a competency hearing on its own motion if there is reasonable cause. Title 18, United States Code, Section 4241(b) authorizes the Court to order that a psychiatric or psychological examination of the defendant be conducted, and that a report be filed with the Court, pursuant to Title 18, United States Code, Sections 4247(b) and (c). The Court may commit a defendant to the custody of the Attorney General for an examination in a suitable facility for a reasonable period of time, initially not to exceed 30 days pursuant to Title 18, United States Code, Section 4247(b). E. Competency Hearing Competency of a defendant to stand trial is determined by the Court. 18 U.S.C. 4241(d). An inquiry into defendant s competency to stand trial must be made whenever there is reasonable cause to believe that defendant is incompetent, and the first step in such inquiry is an examination of defendant by a psychiatrist. United States v. Marshall, 458 F.2d 446 (2d Cir. 1972). The Fourth Circuit has held denial of such motion to seek an examination is subject to review for abuse of discretion. See United States v. Burgin, 440 F.2d 1092 (4th Cir. 1971) (Court required to grant motion unless not made in good faith or the grounds appear frivolous). If made in good faith and not patently frivolous, a motion requesting psychiatric examination 4

5 Case 2:17-mj Document 15 Filed 12/01/17 Page 5 of 10 PageID# 53 with respect to mental competency after arrest and before trial should be granted, and where the psychiatric report indicates a present state of mental incompetence, a hearing must be conducted for a judicial determination of that issue. United States v. Pogany, 465 F.2d 72 (3d Cir. 1972). Denial of request for psychiatric examine because defendant himself opposed it was in error where there was reasonable grounds to believe the defendant was incompetent. United States v. Johnson, 527 F.2d 1104 (4th Cir. 1975). The remedy for denial is reversal of the conviction and remand for a competency hearing. Burgin, 440 at 1095 (citing Dusky, 362 U.S. 402 (1960)). Resolution of issue of defendants competency to stand trial is solely within the discretion and competence of the trial judge, who must seek not only an independent clinical psychiatric judgment but also a judgment based upon a knowledge of criminal trial proceedings. Whether a person charged with crime is mentally competent to stand trial is a discrete question, governed by different medical and legal standards from the question of mental responsibility. United States v. Taylor, 437 F.2d 371 (4th Cir. 1971). Psychiatric reports furnish an evidentiary basis for determining competence of defendant. See United States v. Ramsey, 786 F. Supp. 2d 1123 (E.D. Va. 2011). Medical opinions are usually persuasive evidence on the question of whether a sufficient doubt exists as to the defendant's competence. Griffin v. Lockhart, 935 F.2d 926, 930 (8th Cir. 1991). F. Facts Establishing Reasonable Cause Reasonable cause exists for the Court to order a mental competency examination based on the defendant s documented irrational behavior and statements. Reasonable cause exists based on: (1) multiple interactions of the defendant with agents and others persons prior to arrest, indicating deeply troubling statements and bizarre conduct, (2) information provided by the 5

6 Case 2:17-mj Document 15 Filed 12/01/17 Page 6 of 10 PageID# 54 defendant to pretrial services indicating a significant concern over his mental history and status, (3) information provided by the defendant to a prison psychologist and social services personnel, and (4) documented and recorded observations of prison staff showing unusual actions of the defendant since incarcerated on federal charges. Based on the overwhelming facts establishing reasonable cause, the government asserts that the defendant should be committed to the Federal Medical Center Butner, or any other facility so designated by the Attorney General, for such an examination. As the Supreme Court noted in Drope, 420 U.S. at 180, even one factor may be enough. Here, a myriad of factors all supporting reasonable cause for the Court to order an independent examination at the Federal Medical Center, Butner or other suitable federal facility. Should the defendant s counsel persist in its objection and argue that the government s has not shown good faith and has not established reasonable cause for the Court to order an independent examination at Butner Medical Center or any other appropriate federal facility, we are prepared to present detailed evidence to the Court at a hearing in the form of proffer, reports, testimony, videotapes, and other medical evidence conclusively demonstrating reasonable cause exists based on the bizarre and irrational conduct of the defendant. G. Expected Defense Position Defense counsel is aware the government intends to file this motion and intends to object even after discussions taking place as late as November 30, 2017 to reach an agreed proposed order. Moreover, the defense was advised of the government s significant concerns at the preliminary hearing and detention hearing in this case on November 14, The government immediately sought to have the defense join the government in a motion for a court-ordered 6

7 Case 2:17-mj Document 15 Filed 12/01/17 Page 7 of 10 PageID# 55 examination at a federal facility. The defense objected and instead sought our agreement instead for a local examination. During the pendency of those discussions with the undersigned supervisor, the defendant engaged in documented unusual conduct that requires, the government s view, an independent competency examination ordered by the Court at a federal facility with the expertise to conduct a full and complete examination. Despite this documented unusual behavior, and after being advised that we intended to file a motion with the Court, the defense has indicated it still intends to object to the motion for a competency examination at Federal Medical Center Butner, or any other facility so designated by the Attorney General, and prefers seeking a local examination. However, the Court need not provide defendant with psychiatrist of defendant's choice on the discrete issue of competency to stand trial. United States v. Davis, 481 F.2d 425 (4th Cir. 1973). Courts have the inherent power to appoint an expert of its own choosing to determine independently a defendant's competency and such an impartial expert is the court's witness, rather than a prosecution or defense witness. United States v. Green, 544 F.2d 138 (3rd Cir. 1976). Moreover, an accused may be required to undergo a psychiatric examination to determine competency to stand trial even without his consent. United States v. Muncaster, 345 F. Supp. 970 (M.D. Ala. 1972). Given the recent developments with the documented unusual behavior of BROWN while incarcerated, and the full range of expertise available within the Bureau of Prisons, we urge the Court order an independent examination within the Bureau of Prisons medical facility. Such examiner is an officer, and witness, of the Court, and not responsible to either the prosecution or 7

8 Case 2:17-mj Document 15 Filed 12/01/17 Page 8 of 10 PageID# 56 defense. In re Harmon, 425 F. 2d 916 (1st Cir. 1970); United States v. Sampson, 12 F. Supp. 3d 214 (D. Mass 2014). H. Speedy Trial The government recognizes that a competency evaluation and competency hearing will result in a delay of the indictment and trial in this case, but such a trial is expected to be delayed due to the complexity of this case and other factors. Moreover, due process dictates that a defendant cannot be tried unless he is competent, and that determination cannot reasonably be made presently without an independent court-ordered examination. Any delay of indictment or trial occasioned by a competency evaluation and competency hearing is excludable under 18 U.S.C. 3161(h)(1)(A). See United States v. Moser, 541 F.Supp.2d 1235 (2008) (W.D. Okla. 2008). III. Conclusion Based on the foregoing, the government believes that reasonable cause exists to believe that the defendant may not be competent to stand trial. The determination of whether the defendant is incompetent should be made an independent court-appointed expert after a complete evaluation, and consideration of all of the relevant materials. Therefore, it is respectfully requested that the defendant be ordered to undergo a psychiatric examination at Federal Medical Center Butner, or any other appropriate federal facility. Such examination should determine whether he is 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 in his defense. 8

9 Case 2:17-mj Document 15 Filed 12/01/17 Page 9 of 10 PageID# 57 Respectfully submitted, Dana J. Boente United States Attorney By: /s/. Randy C. Stoker Kevin M. Comstock Assistant United States Attorneys 9

10 Case 2:17-mj Document 15 Filed 12/01/17 Page 10 of 10 PageID# 58 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 1st day of December 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification to all counsel of record, including: Keith L. Kimball Andrew Grindrod Attorneys for the Defendant Federal Public Defenders 150 Boush Street Suite 403 Norfolk, VA /s/ Randy C. Stoker Kevin M. Comstock Assistant United States Attorneys Attorney for the United States United States Attorney s Office 101 West Main Street, Suite 8000 Norfolk, VA Office Number: Facsimile Number: