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U.S. v. SANDOVAL

April 15, 2005.

UNITED STATES OF AMERICA,
v.
EVER SANDOVAL, Defendant.



The opinion of the court was delivered by: NINA GERSHON, District Judge

OPINION

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 months.

  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 very much.
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 61.

  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 ...


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