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.