United States District Court, E.D. New York
April 15, 2005.
UNITED STATES OF AMERICA,
EVER SANDOVAL, Defendant.
The opinion of the court was delivered by: NINA GERSHON, District Judge
This opinion follows my March 10, 2005 Order, with opinion to
follow, committing defendant Ever Sandoval to the custody of the
Attorney General, pursuant to 18 U.S.C. § 4241(d), based upon my
finding that defendant is presently 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. The commitment order arose out of an application
by defendant's counsel for a finding that Mr. Sandoval, who
claims to be competent, is not competent to stand trial.
Proceedings regarding the question of this defendant's
competence have been protracted. In fact, on two earlier
occasions, I concluded that the defendant was competent. Since
then, there have been further evaluations and further conclusions
by counsel, as well as further observations by the court and an
evidentiary hearing. The burden after a hearing is on the defense
to prove by a preponderance of the evidence that the defendant is
not competent to proceed. See Cooper v. Oklahoma, 517 U.S. 348,
362 (1996). I have concluded, based upon the entire lengthy
record in this case, that the burden has been met. Background
The defendant is before the court on charges of conspiracy to
import heroin and conspiracy to possess and distribute heroin.
The claim is that the defendant, in a controlled delivery,
knowingly received a package of heroin that was sent from his
native country, Colombia. Because of the quantity of heroin
involved, if convicted, the defendant faces a mandatory minimum
penalty that includes a term of imprisonment of not less than 10
years. The record reflects a plea offer from the government under
which the mandatory minimum would be limited to five years. Tr.
of Sept. 4, 2003 at 11. In addition, defendant's counsel has
indicated that, if there were a plea of guilty, the defendant
could be eligible for the "safety valve" provision of United
States Sentencing Commission, Guidelines Manual, § 5C1.2, which
would permit a sentence below the mandatory minimum; indeed,
potentially, the guidelines range would be as low as 46-57
The defendant has had three court-appointed lawyers the
first, very briefly, was Peter Kirchheimer, Esq., of the Legal
Aid Society; the second was Robert L. Moore, Esq.; and currently
Peter E. Quijano, Esq., is representing the defendant. From early
on, in writings to the court and in open court, the defendant has
set forth his bizarre views about the nature and history of the
United States, the difference between an "attorney" and a
"counselor," and the significance of the Uniform Commercial Code
("U.C.C.") and the copyright laws, which he believes will somehow
help him to defend against this drug prosecution. The defendant
has also filed liens against the court, Mr. Moore, and the
prosecutor, claiming that the use of his name is a copyright
violation and that, among other things, every time someone in
court calls him by name, that person owes him one million
dollars.*fn1 When the government first raised the issue of competency, the
parties were asked to file papers and, based upon Mr. Moore's
conclusion that the defendant was competent, the government
withdrew its request for a psychiatric evaluation. In September
of 2002, the court accepted Mr. Moore's conclusion of competence.
Later, when the defendant's bizarre communications continued, I
ordered him examined. A report dated March 3, 2003, from Dr.
William J. Ryan, a psychiatrist with the Bureau of Prisons, found
him to be incompetent as suffering from a delusion. A report
dated May 10, 2003, from L. Thomas Kucharski, a psychologist with
the Bureau of Prisons, found that his "unusual legal beliefs and
attitudes" are not delusional and did not make him incompetent. A
June 3, 2003 report by Dr. Azariel Eshkenazi, a psychiatrist
retained by Mr. Moore, found the defendant incompetent as
suffering from a delusion that made him unable to assist in his
defense. On June 18, 2003, Dr. Ryan filed a second report
reversing his earlier opinion and finding the defendant competent
on the ground that his unusual legal views were merely part of a
subculture of other inmates with similar views.
In response to these reports, Mr. Moore expressed the view that
there was a viable defense which he was able to discuss with the
defendant and that he was satisfied that the defendant could
competently go to trial. AUSA Sean Haran concurred, and both
counsel agreed that no hearing was necessary. Relying heavily on
defense counsel's views as to the defendant's ability to work
with counsel, I concluded, on July 17, 2003, in an oral ruling,
that the defendant was competent.
The case proceeded toward trial, to begin on September 29,
2003. But shortly before the trial was to begin, the defendant
sent a "Letter Rogotory," dated August 6, 2003, to the court
expressing his apparent wish to plead guilty, but also containing
many incomprehensible but legalistic sounding statements
including a demand that the court "return" for "value" an
"invoice" in exchange for his plea. At a conference on September
4, 2003, called to address this latest development, Mr. Moore
expressed concern that the letter, sent to the court without his
knowledge or advice, might be viewed as containing a judicial
admission of guilt. Mr. Moore further stated that, at the time the court, earlier, had found Mr. Sandoval
competent, Mr. Sandoval had assured him that he was able to
separate his concepts regarding the U.C.C. from his criminal
case, but that, since receiving the August 6, 2003 missive, he
had spoken to the defendant for several hours, and the defendant
was no longer willing to do that. That is, he would not separate
his criminal case from the U.C.C. Mr. Moore further stated that
he had advised the defendant to go to trial and not to plead
guilty, but that it was the defendant's choice to plead guilty.
In light of that, Mr. Moore had attempted to go through the
process of pleading guilty with him, but they could not get
through the factual allocution; indeed, Mr. Sandoval would not
tell him what he would say in response to the court's anticipated
questions. Mr. Moore also expressed a concern that a plea would
be invalid because it would be based on Mr. Sandoval's view that
pleading guilty would not matter because he would somehow be
protected by the U.C.C. Tr. of Sept. 4, 2003 at 6-10. Mr.
Sandoval would no longer talk to him about the facts of the case.
Tr. of Sept. 4, 2003 at 12.
The defendant then spoke:
It's very simple, your Honor, the purpose that I
wrote this letter is to close the account, the 14
points are very clear, very concise, one by one. Last
November 8th I offer a private contract to Mr.
Moore which he denied and refused to sign it. Now I'm
aware and this Court knows since I'm not an officer
of this Court I have no jurisdiction, that's why last
time. . . . That's why the Court last time denied my
offer to plead guilty. I'm not an officer from this
Court to be able to accept the charges and to
discharge them too. Correct. Mr. Moore, Mr. Moore
represents my strong man. He can do the acceptance on
my behalf. That's what I'm doing in this letter of
rogotory. It's very simple what I want to do, To
honor this court, to honor it and to close the case.
In addition to this, in the letter I talk about the
operation of the person of honors in which and I
register it in the secretary, the ministry of state.
I gave it true value to the true bill. My intention
actually if Mr. Moore denies or refuses to accept
this letter of mine, I have to change attorneys
because there is a conflict of interest created
between him and me. We haven't understood each other
in during a year time, he has always contradicted me.
The last time he went to talk to me he was
threatening me, intimidating me, telling me I will
get between ten and fifteen years, that I'm going to
be locked up in a crazy hospital, I will never be able to get
out of there again. Then all of a sudden I don't want
this to become a personal issue. I also have a civil
lawsuit according to the UCC which of course has
nothing to do with this process here. I think it's a
big conflict created here already. And if this Court
or your honorable Judge decides that Mr. Moore
whether to continue or not in this process, it would
be the Court's decision then. Again, I talk to you
about my culpability in the letter, it's very clear
and it's based on this letter specifically. Thank you
Tr. of Sept. 4, 2003 at 14-16. After the prosecutor then spoke,
the following exchange took place:
THE DEFENDANT: Can I ask the prosecutor, the
government representative, do you represent the
corporation or the United States?
MR. HARAN: Excuse me?
THE DEFENDANT: Do you represent the corporation or
the United States?
MR. HARAN: I represent the United States government.
THE DEFENDANT: The United States of America or the
corporation of the United States of America?
THE COURT: Mr. Sandoval, I will interrupt you because
these are not appropriate questions. You have a
misguided sense of what the United States is. The
United States is a nation and Mr. Haran represents
the United States government and your discussions
about corporations are wrong.
Tr. of Sept. 4, 2003 at 16-17.
Ultimately, Mr. Sandoval made clear that he wanted Mr. Moore to
be relieved, and Mr. Moore did not oppose that request, which was
granted. See Tr. of Sept. 4, 2003 at 17-22.
Peter E. Quijano, Esq., a highly experienced attorney and
native Spanish speaker, was then appointed. Mr. Quijano, in a
letter dated September 18, 2003, wrote to the court that, after
reviewing the entire file and conducting lengthy meetings with
the defendant, the defendant appeared to be in an intractable
delusional state that prevented him from understanding the
proceedings and being able to assist meaningfully in his defense.
Mr. Quijano reported that Mr. Sandoval was "altogether incapable
of appreciating and understanding, rationally and factually, the
nature of the proceedings against him. Mr. Sandoval's present
state of mind appears to be so disoriented as to render him completely unable to assist in his
defense. Indeed, he appears to be the prisoner of his own
gibberish." Quijano letter of Sept. 18, 2003 at p. 6. As a
result, at counsel's request, I ordered that Mr. Sandoval be
examined at Butner Federal Medical Center, in order to determine
whether he was competent. Dr. Robert Cochrane and Dr. Bryon
Herbel, staff psychologist and psychiatrist, respectively, in the
Mental Health Department of the Butner Federal Medical Center,
submitted a joint report finding the defendant
competent.*fn2 See Butner Report at 16. Subsequently, at
defense counsel's request, I further ordered an examination by
Dr. Robert H. Berger, M.D., a professor of psychiatry at New York
University School of Medicine. Dr. Berger concluded that the
defendant is competent but that that conclusion could change if
the defendant continued to hold to his views as the trial
approached. See Berger Report at 10; Tr. of Oct. 21, 2004 at
An evidentiary hearing was then held on four dates between
October 14, 2004 and December 9, 2004, and further submissions
were made to the court after the hearing. The record of
proceedings before the court includes all of the reports
identified above. At the hearing, the court heard the testimony
of Drs. Ryan, Kucharski, Cochrane and Berger.
Discussion and Findings
18 U.S.C. § 4241(d) provides that:
If, after the hearing, the court finds by a
preponderance of the evidence that the defendant is
presently 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, the court shall
commit the defendant to the custody of the Attorney
General. In making a determination of competency, "it is not enough . . .
that the defendant is oriented to time and place and has some
recollection of events." Dusky v. United States, 362 U.S. 402
(1960). Nor is it enough that "the defendant can make a
recitation of the charges . . . for proper assistance in the
defense requires an understanding that is `rational as well as
factual.'" United States v. Hemsi, 901 F.2d 293, 295 (2d Cir.
1990) (quoting Dusky, 362 U.S. at 402). It is undisputed that
the defendant is not, in fact, assisting rationally in his own
defense. In fact, he is not communicating with counsel at all.
The issue in dispute, then, is whether the defendant's conduct is
the result of a delusional disorder or the result of his own
All of the medical professionals agreed that Mr. Sandoval
appears to be sincere; that is, it is most likely that he is not
malingering. Mr. Sandoval denies that he is incompetent, and the
doctors found that he is attempting to present himself in a
favorable light. It is also agreed that the only potential mental
disease or defect afflicting Mr. Sandoval is a delusional
disorder. A delusion is defined as "a false belief based on
incorrect inferences about external reality," which false belief
is "firmly and rigidly held in spite of evidence to the
contrary." Berger Test., Tr. of Oct. 21, 2004 at 17; see also
Diagnostic Statistical Manual ("DSM") IV 297.1 (1994). He
otherwise presents a normal appearance and mental status.
All of the doctors expressed that the defendant was polite and
seemingly cooperative with them. Indeed, they placed great
emphasis on that fact as well as on his "normal" appearance.
Nonetheless, a close reading of their reports and of the
testimony revealed that the cooperation Mr. Sandoval displayed
lasted only until the doctors attempted to press him as to the
nature of his bizarre thinking. The defendant controlled the
interviews with the doctors and stopped talking with the doctors
when they attempted to explore the thinking that was the basis
for the court's order that he be examined. They were therefore
utterly unable to determine the source of his beliefs or the
motivations behind them. As Dr. Berger put it, "I still am not
aware of the mental process that's preventing him from
functioning in the way that he needs to function, which is to
assist in his defense." Tr. of Oct. 21, 2004 at 59. Similarly, Dr. Kucharski's
report, at p. 5, states that Mr. Sandoval's refusal to respond to
questions regarding his beliefs prevented the doctor from
obtaining a "comprehensive psychological history and diagnostic
As a result, with the exception of Dr. Berger, the testifying
doctors' conclusions that he was not delusional rested
principally on the fact that others shared Mr. Sandoval's views
and not on an evaluation of his actual state of mind, which they
were unable to penetrate. That is, with the exception of Dr.
Berger, the doctors relied heavily on the existence of what was
referred to by Dr. Cochrane as a "subcultural" belief system.
See Tr. of Dec. 9, 2004 at 25, 124.*fn3 They concluded
that, because other inmates have similar views regarding the
U.C.C. and the copyright laws as does Mr. Sandoval, Mr.
Sandoval's bizarre ideas should not be considered delusional.
Based upon the testimony at the hearing, I conclude, however,
that the fact that other inmates express similar views does not
foreclose the possibility that the defendant, in his adherence to
these views, is delusional. See Tr. of Oct. 21, 2004 (Berger) at
23-24. One element of Dr. Berger's testimony, in fact, speaks
directly to the concept underlying the court's conclusion:
I don't hold, one, that merely because you're a part
of a subculture and you have a belief that goes along
with some of the elements that the subculture has
that it automatically isn't a delusion. . . . it is
conceivable, even if one were to identify that there
is a UCC subculture out there, that it is possible
nonetheless that Mr. Sandoval is approaching the
ideas and the concepts in a way that the others
aren't. Perhaps more firmly held, more firmly
believed, maybe taking them to a point where they're
actually working against his own self interests or
harming him, whereas other people in the subculture
might not do that.
Tr. of Oct. 21, 2004 at 20-21. In spite of this possibility, none
of the doctors who relied on the views of other inmates addressed
the significant and probative." 455 F.2d at 1108. In fact, the Supreme peculiar word usage and formulations used by the
defendant and compared them to the formulations used by other
inmates. Examination of materials from a website submitted by the
government shows that the defendant's attempted use of the
concepts discussed on the website is different from their use on
See Government's Exhibits 1A-1J (pages
from securedparty.org website).
The apparently self-defeating nature of Mr. Sandoval's
adherence to his views supports the conclusion that his adherence
is not volitional. It was not disputed that acting contrary to
one's interests may be indicative of delusional, rather than
volitional, behavior, yet the doctors were unaware of any benefit
that the defendant was receiving from acting as he is doing. See
Drope v. Missouri, 420 U.S. 162, 179 (1975) ("Too little weight
was given to the testimony of petitioner's wife that on the
Sunday prior to trial he tried to choke her to death. For a man
whose fate depended in large measure on the indulgence of his
wife, who had hesitated about pressing the prosecution, this
hardly could be regarded as rational conduct."). While
recognizing that acting against one's self interest was relevant,
though not determinative, to a finding of incompetence, Dr.
Berger did not conclude that Mr. Sandoval's behavior was
necessarily hurting him and stated: "I would be willing to come
back and evaluate him if at some point in the future it does
start to hurt him." Tr. of Oct. 21, 2004 at 61. Especially given the limitations of the forensic evaluations, I
rely heavily, as I did when initially finding the defendant
competent, on the opinions of defense counsel. The doctors relied
heavily on Mr. Moore's initial conclusion that the defendant was
able to separate his views on the U.C.C. and the copyright laws
from the law applicable to his defense, but did not take into
account Mr. Moore's statements at the September 8, 2003 hearing,
described above, which indicated his utter inability to get
through to Mr. Sandoval and Mr. Sandoval's unwillingness any
longer to separate the concepts. Nor did they appear to give Mr.
Quijano's views the same consideration they gave to Mr. Moore's
initial views. As noted above, Dr. Berger concluded that he did
not know whether the defendant's actions were self-defeating,
despite Mr. Quijano's belief, based on his years of experience as
a defense lawyer, that they were.
In contrast to the doctors, I do give the lawyers' views
significant consideration. While not alone determinative, the
Supreme Court and the Second Circuit have recognized the
importance of considering counsel's judgment about the
defendant's state of mind. See Cooper, 517 U.S. at 352, n. 1;
Medina v. California, 505 U.S. 437, 450 (1992); Drope,
420 U.S. 162, 177 n. 13 (1975); United States v. Quintieri,
306 F.3d 1217, 1233 (2d Cir. 2002), cert. denied, 539 U.S. 902
(2003); United States ex rel. Roth v. Zelker, 455 F.2d 1105,
1108 (2d Cir. 1972), cert. denied, 408 U.S. 927 (1972). As the
Second Circuit stated in Roth, "[t]he opinion of a defendant's
attorney as to his ability to understand the nature of the
proceedings and to cooperate in the preparation of his defense,
is indeed Court stated in Medina:
Although an impaired defendant might be limited in
his ability to assist counsel in demonstrating
incompetence, the defendant's inability to assist
counsel, can, in and of itself, constitute probative
evidence of incompetence, and defense counsel will
often have the best-informed view of the defendant's
ability to participate in his defense. E.g., United
States v. David . . . 511 F.2d 355, 360 (1975);
United States ex rel. Roth v. Zelker,
455 F.2d 1105, 1108 (CA2), cert. denied, 408 U.S. 927 . . .
505 U.S. at 450. As Chief Judge Bazelon said in David, cited
approvingly in Medina, "counsel's firsthand evaluation of a defendant's ability to consult on his
case and to understand the charges and proceedings against him
may be as valuable as an expert psychiatric opinion on his
competency." 511 F.2d 355, 360 (D.C. Cir. 1975). See also Grant
H. Morris, J.D., LL.M., Ansar M. Haroun, M.D. and David Naimark,
M.D., 4 HOUS. J. HEALTH L. & POL'Y 193, 234 (2004) (stating that
psychiatrists and psychologists "can explain how a person's
mental disorder affects, or may affect, his or her understanding
of issues and decision making capability. But they are not expert
in deciding whether the defendant has a `sufficient' ability to
consult with his or her attorney or has a `reasonable' degree of
rational understanding. Those decisions are legal policy
decisions appropriately within the province of the judge.").
Mr. Moore, who initially fought strenuously for the view that
Mr. Sandoval was competent, ultimately acknowledged that it had
become impossible for him to have meaningful discussions with Mr.
Sandoval regarding his defense. Mr. Quijano has been unequivocal
in his view that the defendant is not competent to proceed. Cf.
Roth, 455 F.2d at 1109 ("Roth's acceptance of the advice of
counsel is not at all indicative of a lack of rationality.").
Finally, the court's own observations, informed by the
testimony of the forensic witnesses, are relevant. See
Quintieri, 306 F.3d at 1233; Hemsi, 901 F.2d at 295, 296; see
also United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986)
("deference is owed to the district court's determinations based
on observation of the defendant during the proceedings."), cert.
denied, 479 U.S. 1036 (1987). The defendant's statements quoted
earlier in this opinion are a small sample of innumerable
statements that he has made evidencing his inability to separate
his peculiar views of the civil law from the law applicable to
this criminal case.
Of course, many people have views of the government, the
prosecution, or the facts of their case that are outside the mainstream. I do not suggest that one
must give up one's views, however out of the mainstream, in order
to defend against a criminal case. The issue is whether the
defendant has the mental capacity to recognize that, whatever
views he may hold, his criminal defense requires that he work
with an attorney within the realities of the criminal justice
system and the laws that will affect the result in his case.
Nor does this appear to be a case where the defendant has
deliberately chosen an obstructive path, based upon his personal
views, in order to make a political or other point. Indeed, the
defendant's acknowledgment to the court of his factual guilt
seems to belie an intention to simply obstruct the process and
achieve some benefit from doing so.
The defendant's rigid adherence to his erroneous views also
supports the finding that he is incompetent. All of the doctors
agreed that a rigid adherence to fanciful views and an inability
to explore their correctness is one factor indicating that a
delusional process is at work. Although the defendant stated that
he would consider evidence that his views were incorrect, when
confronted, for example, by Dr. Cochrane, with such evidence, he
would not in fact consider it, but held rigidly to his views. As
Dr. Berger concluded, Mr. Sandoval was never serious about
reviewing documents contradicting his views. Tr. of Oct. 21, 2004
at 63. This conclusion comports fully with the my evaluation of
Mr. Sandoval, who rigidly adhered in court to his views, no
matter how patiently a contrary view was explained to him. See
also Govt. Ex. 11 (transcript of proceedings regarding liens
filed by Sandoval). As Dr. Berger testified, "being able to
compartmentalize these two things [the U.C.C. and the criminal
case] is something that would be needed to be competent. It is
the inability to differentiate the two issues and the
contamination of one onto the other that would undermine his
competence." Tr. of Oct. 21, 2004 at 10. Here, the doctors,
unwilling to press the defendant regarding his views, apparently did not experience the degree of
rigidity experienced by counsel and the court.
The bizarreness and apparent singularity of Mr. Sandoval's
views is evidenced further by the fact that, on occasion, our
able court interpreters would turn to me, when attempting to
translate the defendant's comments in court, and say that the
defendant was using formulations that were not in fact words in
either Spanish or English; these formulations had a "legal" ring
to them in that, for example, some began with "jur," but they
were untranslatable. This supports the conclusion that, while Mr.
Sandoval's unusual views may have originated with other inmates,
in his mind these views have become gibberish.
The right of an incompetent defendant not to stand trial is a
fundamental and deeply rooted right entitled to constitutional
protection under the Due Process Clause. "For the defendant, the
consequences of an erroneous determination of competence are
dire. Because he lacks the ability to communicate effectively, he
may be unable to exercise other rights deemed essential to a fair
trial." Cooper, 517 U.S. at 364. The Cooper court further
stated that, "[b]y comparison to the defendant's interest, the
injury to the State of the opposite error a conclusion that the
defendant is incompetent when he is in fact malingering is
modest." Id. at 365. Thus, Cooper, while recognizing the
difficulty of knowing "where the truth lies," found it a
violation of due process to require that a defendant prove
incompetence by a heightened, clear and convincing, standard of
proof. Id. at 369.
A preponderance of the evidence indicates that the defendant in
this case is not competent to stand trial. Neither the
conclusions of the forensic evaluators nor the documents produced
by the government are sufficient to counter the observations of
the court and the judgment of defense counsel. In sum, the defendant cannot be justly tried, and in
accordance with the order of March 10, 2005, he has been
committed to the custody of the Attorney General for treatment