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U.S. v. HARDING

United States District Court, S.D. New York


August 2, 2004.

UNITED STATES OF AMERICA,
v.
RUSSELL A. HARDING, Defendant.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

WHEREAS, the Court has by previous Order committed the defendant RUSSELL HARDING to the custody of the Attorney General for treatment in a suitable facility to determine whether there is a substantial probability that in the foreseeable future Mr. Harding will attain the capacity to permit the trial to proceed as required by 18 U.S.C. § 4241(d);

WHEREAS, the Court has been advised by counsel for both parties that the mental health professional at the Federal Medical Center in Butner, North Carolina has not yet completed a report or filed a certificate with the clerk of Court, pursuant to 18 U.S.C. § 4241(e), but has expressed to counsel that his evaluation is near completion and a report is forthcoming;

  WHEREAS, the Court is unable to hold the hearing contemplated by 18 U.S.C. § 4247(d) until both the Court and counsel receive the medical professional's report and counsel are afforded an opportunity to evaluate the report and to make informed judgments as to the manner in which they wish to proceed; WHEREAS, all counsel agree that housing the defendant anywhere other than the Federal Medical Center ("FMC") in Butner pending receipt, review and consideration of the report and the hearing and determination of the issue of whether the defendant has recovered to such an extent that he is able to assist properly in his defense at the present time would entail a significant risk to the defendant's mental health and to the possibility of restoring him to competence to stand trial;

  WHEREAS, counsel have agreed further that this order should be entered without prejudice to their respective positions and applications, present and future, with respect to defendant's mental condition and competency; and

  WHEREAS, based on the representations of counsel concerning the defendant's competency evaluation and the conclusions of the mental health professional referred to above, and absent any evidence to the contrary, the Court finds that there is a significant likelihood that (1) housing the defendant anywhere other than FMC Butner pending receipt, review and consideration of the report and the hearing and determination of the issue of whether the defendant has recovered to such an extent that he is able to assist properly in his defense at the present time would entail a significant risk to the defendant's mental health and to the possibility of restoring him to competence to stand trial, and (2) deterioration in the defendant's medical condition would threaten the public interest in having the defendant stand trial on the charges against him and the Court's jurisdiction over the defendant to that extent, is it hereby

  ORDERED, pursuant to 18 U.S.C. § 4241 and the All Writs Act, 28 U.S.C. § 1651, that the defendant remain in the custody of the Attorney General of the United States at FMC Butner and to receive ongoing mental health treatment and therapy pending the determination of defendant's competency to stand trial, and it is further

  ORDERED, that this Order and the findings made herein are without prejudice to either party's position or application, present or future, with respect to the defendant's mental status and competency.

20040802

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