The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
Presently pending is the motion of counsel for defendant John VanHoesen ("VanHoesen") for an order finding VanHoesen mentally incompetent to stand trial or to assist in his own defense in accordance with 18 U.S.C. § 4241(d). Docket entry dated 01/09/2008; Docket No. 292. For the reasons which follow, it is recommended that the motion be denied.
I. Background and Procedural History
On July 26, 2007, VanHoesen was named as a defendant with twenty co-defendants in Counts 2-5 of a six-count superseding indictment. Docket No. 191.*fn2 That indictment alleges that the defendants were members and associates of a gang in Albany known as the "Jungle Junkies" which engaged in drug trafficking, attempted murder, robbery, and witness tampering. Id. at 2. The counts in which VanHoesen is named as a defendant allege possession with intent to distribute marijuana and crack cocaine and conspiracy to do so . Id. at 15-18. VanHoesen was arrested on these charges on or about August 17, 2007 and, on motion of the United States, was ordered detained pending trial. Docket entry dated 8/17/07; Docket No. 205. At the initial appearance, counsel for the United States advised VanHoesen that because of his criminal record, VanHoesen faces life imprisonment without parole if found guilty of the charges. VanHoesen entered a plea of not guilty to the charges and is awaiting trial.
At his initial appearance on August 17, 2007, VanHoesen requested the appointment of counsel, the Court determined that he qualified, and Joseph McCoy, Esq. was appointed to represent VanHoesen. Docket entries dated 8/17/07, 8/20/07. In a letter nine days later, VanHoesen requested the removal of McCoy as his attorney and the appointment of new counsel. Docket No. 213. A hearing concerning VanHoesen's request was held on September 4, 2007 at which the Court heard VanHoesen and McCoy. They agreed that because of their differences over the case and conflicts with each other, McCoy should be replaced. Docket entry dated 9/06/07.*fn3 VanHoesen's motion was granted, McCoy was relieved as VanHoesen's counsel, and Mitchell S. Kessler, Esq. ("Kessler") was appointed to replace McCoy. Docket No. 216.
Two weeks later, VanHoesen sent a letter to the Court requesting that Kessler be replaced with new appointed counsel. Docket No. 230. A hearing was held with VanHoesen and Kessler on October 1, 2007. Docket entry dated 10/1/07. Finding no violation of VanHoesen's constitutional rights, VanHoesen's motion was denied. Docket No. 231. VanHoesen renewed his motion seven days later in a letter to the district court, but that motion was rejected. Docket Nos. 235, 266. Nevertheless, a further hearing was held with VanHoesen and Kessler before the undersigned on October 11, 2007 following which VanHoesen's motion was again denied. Docket Nos. 237, 239. A further hearing was held with VanHoesen and Kessler on November 2, 2007 following which removal of Kessler as VanHoesen's appointed counsel was again denied. Docket entry dated 11/2/07; Docket No. 252. In letters dated December 26 and 31, 2007, VanHoesen renewed his motion to replace Kessler with new appointed counsel, but his requests were summarily denied. Docket No. 289.
On January 9, 2008, Kessler made an oral motion for a determination of VanHoesen's competency to stand trial and to assist in his own defense. Docket entry 1/9/08. VanHoesen was committed to the custody of the Federal Bureau of Prisons (BOP) for evaluation. Docket No. 292. In a report dated February 28, 2008, Dr. William J. Ryan, a BOP Forensic Psychologist, diagnosed VanHoesen with Psychotic Disorder Not Otherwise Specified (NOS), Cannabis Abuse, Cocaine Abuse, and Antisocial Personality Disorder. Ryan Report (Hearing Ex. A) at 6-8. Dr. Ryan concluded that VanHoesen was presently incompetent to stand trial or to assist in his own defense. Id. at 8-9.
At conferences on March 12 and 20, 2008, the United States requested leave to obtain a second evaluation. Docket entries dated 3/12/08, 3/20/08.*fn4 The request was granted. Docket No. 362. In a report dated April 28, 2008, Dr. Thomas A. Qualtere, a psychiatrist in private practice retained by the United States, diagnosed VanHoesen with Antisocial Personality Disorder with significant Narcissistic Traits.*fn5 Qualtere Report (Hearing Ex. B) at 4. Dr. Qualtere concluded that VanHoesen was competent to stand trial and to assist in his own defense. Id. at 4-5.
An evidentiary hearing was held on June 5, 2008 at which VanHoesen and Drs. Ryan and Qualtere testified. Decision was reserved.
The question presented here is whether VanHoesen "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 . . . ." 18 U.S.C. § 4241(d). A defendant's incompetence must be established by a preponderance of the evidence. Id.; United States v. Morrison, 453 F.3d 34, 46 (2d Cir. 1998).*fn6 The issue of competence focuses on whether a defendant possesses "(1) 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and (2) 'a rational as well as factual understanding of the proceedings against him.'" Nichols, 56 F.3d at 410 (quoting Dusky v. United States, 362 U.S. 402 (1960)).
In determining competence, a court may consider a number of factors, including medical opinions, a court's observations of a defendant in court, and observations of a defendant by others in unguarded moments. United States v. Hemsi, 901 F.2d 293, 295-96 (2d Cir. 1990); United States v. Villegas, 899 F.2d 1324, 1341-43 (2d Cir. 1989). A court's determination of competence will be reversed only if clearly erroneous. Nichols, 56 F.3d at 411. "W here there are two permissible views of the evidence as to competency, the court's choice between them cannot be deemed clearly erroneous." Villegas, 899 F.2d at 1341; see also United States v. Schlueter, F.3d, 2008 W L 1945377, at *2 (2d Cir. May 2, 2008) (quoting United States v. Gigante, 166 F.3d 75, 83-84 (2d Cir. 1999) (describing standard of review as "highly deferential")).
Here, Drs. Ryan and Qualtere offered conflicting opinions as to whether VanHoesen suffers from a mental disease and is competent to stand trial and assist in his defense. Dr. Ryan asserts that VanHoesen suffers from, inter alia, Psychotic Disorder (NOS) characterized by delusions and paranoia, a recognized mental disease. See Ex. A at 6. Dr. Qualtere asserts that VanHoesen suffers from Antisocial Personality Disorder with significant Narcissistic Traits which does not cause VanHoesen to be incompetent to stand trial or assist in his defense. ...