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United States of America v. Kevin P. Smith

February 9, 2011


The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge


Before me is defendant's motion for release from custody [12].*fn1 For the following reasons, a final decision on the motion will be deferred pending a detention hearing.


By complaint dated October 29, 2010 [1] defendant was charged with threatening federal officials, in violation of 18 U.S.C. §§115(a)(1)(B) and 844(e). From his statements and his demeanor at his initial appearance on October 30, 2010 [2], it immediately became apparent to counsel and to me that there was a serious question as to defendant's mental competency to proceed in this case. Accordingly, pursuant to 18 U.S.C. §4241(b), I ordered defendant to undergo a psychiatric examination.

Defendant was examined by Dr. Ana Natasha Cervantes who, in a report dated November 16, 2010 [9], found that defendant was not mentally competent to proceed at that time. Following a hearing on November 29, 2010 [8], I concluded that defendant was not mentally competent, and in accordance with 18 U.S.C. §4241(d), Iordered that he be "returned to the custody of the Attorney General for hospitalization and treatment in a suitable facility for the purpose of being examined and evaluated for an opinion as to whether he can be restored to competency" [10].

Although it was anticipated that defendant would be transported to the Bureau of Prisons facility at Butner, North Carolina, he was initially remanded to the Niagara County Jail until a bed at Butner became available. On Friday, December 10, 2010 I was advised that a bed at Butner would not become available until January 28, 2011. Therefore, I convened a further proceeding on December 13, 2010 [11], at which time Diane Dobbins of the U.S. Marshals Service advised that she was looking into other alternatives. Attorney Kimberly Schechter, defendant's standby counsel,*fn2 stated that defendant was essentially in isolation at Niagara County Jail, being allowed out of his cell only for recreation and a shower. I advised Ms. Schechter that if defendant wanted me to address his status, that an appropriate motion be filed. The government at that time acknowledged its obligation to expedite defendant's psychiatric evaluation.

On January 28, 2011, Ms. Schechter filed this motion for release [12], stating that she "has been advised that the first available date for placement in a treatment facility may occur in the third week of February 2011. Even that date is not firm". Schechter affirmation [12], p.2. She further noted that defendant "is being held in a Special Housing Unit at Niagara County Jail in a psychotic state. This is an isolating situation. He is only permitted out of his room for one hour a day. There are no bars on this room which would allow him to interact with others during the other 23 hours; there are just walls and a metal door. While he is being offered psychotropic drugs, he is not being counseled or evaluated. These conditions simply cannot be considered to be 'treatment and examination in a suitable facility' as is contemplated by the statute. Recent contact with the social worker there indicates that he is not improving and remains in a psychotic state." Id., p.3.

Ms. Schechter suggested that I "consider directing the marshals to transport [defendant] to the Veteran's Administration Hospital where he has been treated in the past. It is further requested that he be released from custody at that point with the condition that he then submit to an evaluation by psychiatrists for in-patient treatment. The defense can arrange to have him re-evaluated for competency after completion of his treatment at that facility. Upon information and belief, that facility has a secured psychiatric unit." Id.

By Text Order dated January 31, 2011 [13], I directed the government and pretrial services to respond to defendant's motion for release on or before February 2, 2011. In a memorandum dated February 1, 2011, probation officer Tina E. Blackman stated that "Pretrial Services continues to assess the defendant as a serious risk of flight and danger which no condition or combination of conditions would reasonably address. In light of this, it is respectfully recommended that the defendant remain detained" [16].

Oral argument on defendant's motion for release was held on February 3, 2011

[14]. At that time, the government was unable to provide me a firm date for defendant's admission to an appropriate facility for a mental examination and treatment. I adjourned the proceedings to February 7, 2011 at 9:30 a.m., and admonished the government to be prepared at that time to either provide a firm date for defendant's admission to a mental health facility, or to have a Bureau of Prisons representative present or available by telephone to explain why this could not be done [14].

At the continuation of proceedings on February 7, 2011, the government stated that a bed "may" be available for defendant at the Butner facility between February 17 and February 28, 2011, but could not promise that a bed would be available. The government offered to begin transporting defendant to Butner at this time, in case a bed becomes available. I fail to see the logic of placing this defendant, who is already disoriented, in transit toward a bed in another state which may not even be available upon his arrival. Therefore, I declined that offer.


Once I found defendant to be incompetent, I was obligated to "commit the defendant to the custody of the Attorney General". 18 U.S.C. §4241(d). The Attorney General, in turn, was obligated to "hospitalize the defendant for treatment in a suitable facility -- (1) for a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward". 18 U.S.C. §4241(d)(1). That has not occurred, and the ...

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