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January 2, 1998


The opinion of the court was delivered by: FELDMAN

 Defendant Ronde Simmons (Simmons), through counsel, seeks a judicial determination pursuant to 18 U.S.C. § 4241 that he is incompetent to stand trial. For the reasons set forth below, it is my Report and Recommendation that Simmons's request be denied.


 The defendant is charged by way of felony complaint with armed bank robbery in violation of 18 U.S.C. § 2113(a). (Docket # 1). On the Court's own motion, Simmons was ordered to be examined at a suitable federal medical facility to determine whether he was presently suffering from a mental disease or defect that would render him incompetent to understand the nature and consequences of the proceedings against him or unable to assist properly in his own defense. (Docket # 2). Simmons was thereafter transported to the United States Medical Center at Springfield, Missouri where he was observed, tested and evaluated for 57 days. A medical report (hereinafter the "Report") concerning the defendant's competency was prepared and submitted pursuant to 18 U.S.C. § 4247(b) and (c). (Docket # 4). Christina A. Pietz, Ph.D. evaluated Simmons while he was confined at the federal medical center and authored the competency Report that has been submitted to the Court. Dr. Pietz's Report was distributed to both the government and defense counsel.

 On December 15, 1997, a competency hearing was held before this Court. By stipulation of the parties, Dr. Pietz's testimony was received and considered by the Court as expert testimony within the meaning of Rule 702 of the Federal Rules of Evidence (see Government Exhibit "2") and her report was admitted into evidence in lieu of her direct testimony. Thereafter, Dr. Pietz was extensively cross-examined by defense counsel at the hearing.


 Simmons is competent to stand trial if he has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him." United States v. Nichols, 56 F.3d 403, 410 (2d Cir. 1995)(internal quotations and citations omitted). Mental illness is not the legal equivalent of incompetency. Rather, the mental illness must deprive the defendant from being able to either (1) consult with counsel with a reasonable degree of rational understanding or (2) exercise factual and rational understanding of the proceedings against him. Id. at 412. While past psychiatric problems are relevant, "the question of competency to stand trial is limited to the defendant's abilities at the time of trial. " United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986)(emphasis added), cert. denied, 479 U.S. 1036, 93 L. Ed. 2d 841, 107 S. Ct. 888 (1987).

 Under 18 U.S.C. § 4241(d), the hearing court must find "by a preponderance of the evidence" that the defendant is not competent to stand trial. The burden to prove a lack of competence is on the defendant. See Cooper v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 1380, 134 L. Ed. 2d 498 (1996)(in upholding Oklahoma statute that presumed a defendant competent unless he rebutted the presumption, Supreme Court commented that under § 4241 "Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence").

 Based on the foregoing standards, this Court concludes that Simmons is presently competent to stand trial. My recommendation is based primarily on the evaluation of the defendant by Dr. Pietz who is an experienced and qualified expert, having conducted over 300 forensic evaluations, approximately half of which specifically concerned the competency of a criminal defendant. After a thorough evaluation and examination, Dr. Pietz found Simmons competent to stand trial. Her prognosis of Simmons was as follows:

Although he suffers from paranoid schizophrenia, his mental disorder is in remission due to medication. It should be noted, however, that predictions concerning his future mental state and behavior are more difficult. A review of Mr. Simmons's records and based on his self-report, indicated that in the past he has sporadically complied with his recommended treatment. Should Mr. Simmons choose not to take his medication or if staff at his designated holding facility chose to change his medication, there is a strong likelihood that Mr. Simmons will decompensate to the point where he would no longer be competent to stand trial. It is recommended that Mr. Simmons's court proceedings be expedited to prevent this from occurring.

 Report of Christina A. Pietz, Ph.D., at page 11.

 There is no question that Simmons is an individual with a long history of paranoid schizophrenia, See Defense Hearing Exhibits "B", "C", "D", "F", "G", "H", "I", "J", and "P", who has been hospitalized on numerous occasions after experiencing delusions and paranoia. Moreover, on several occasions he has been found not guilty of serious criminal charges by reason of insanity. Indeed, as Dr. Pietz noted in her Report, upon Simmons's initial confinement at Springfield for purposes of this Court ordered evaluation, he exhibited psychotic symptoms and auditory hallucinations.

 Defense counsel however relies on the defendant's memory loss to support his contention that Simmons is unable to assist him in defending the charges. He points to portions of interviews and psychological testing where Simmons claimed to have no memory of the bank robbery for which he is charged. After administering a nonstandardized psychological test (known as the "Symptom Validity Checklist test") which purportedly measures whether an individual is feigning memory loss, Dr. Pietz concluded that Simmons has substantially more memory about the bank robbery charges than he was revealing. The validity of this particular test, however, was seriously called into question on cross-examination. While the Symptom Validity Checklist test may be valuable in ...

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