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United States of America v. David H. Brooks

June 4, 2012

UNITED STATES OF AMERICA,
v.
DAVID H. BROOKS, DEFENDANT.



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

X

MEMORANDUM & ORDER

Presently pending before the Court is Defendant David

H. Brooks' ("Defendant" or "Brooks") motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. For the following reasons, Brooks' motion is DENIED.

BACKGROUND

On October 24, 2007, Brooks was charged in a twenty-one count Superseding Indictment. He was arrested and confined to Nassau County Correctional Center ("NCCC") until January 2008 when the parties agreed to a bail package and Brooks was released. While incarcerated at NCCC, Brooks was provided with Klonopin, a benzodiazepine used to treat panic and anxiety disorder, at the direction of his long-term psychiatrist, Dr. Michael R. Liebowitz. Brooks remained released on bail until January 14, 2010 when, in anticipation of trial, he was remanded and again taken to NCCC. This time, NCCC refused to provide Brooks with any benzodiazepines to treat his panic and anxiety disorders.

Jury selection began on January 19, 2010, at which time Brooks' counsel informed the Court that he had not received any benzodiazepines since being arrested five days earlier. The Court, after verifying that the prescription was valid, allowed Brooks to take Ativan, the benzodiazepine prescribed by Dr. Liebowitz that Brooks had been taking prior to his remand, in the courtroom.

Jury selection continued on January 20, 2010. Brooks' counsel informed the Court that NCCC was not providing Brooks with any benzodiazepines. Thus, the Court issued an Order stating that the prescription was "lawfully filled" and "medically necessary" and directing NCCC to administer Ativan to Brooks. (Docket Entry 761.) Notwithstanding the Court's Order, Brooks did not receive any Ativan at NCCC. However, he continued to self-medicate with the Court's permission while in the courtroom. Jury selection concluded on January 21, 2010.

The trial commenced on January 25, 2010. From January 25 through January 27, 2010, Brooks received no Ativan while at NCCC but took Ativan as needed while in the courtroom. Upon returning to NCCC after leaving court on January 27, NCCC staff caught Brooks hiding twenty-five Ativan tablets in the waistband of his pants. They determined that his smuggling contraband into the facility was a security risk, and on January 29, 2010, NCCC transferred Brooks to the Queens Private Detention Facility ("QPDF"), a contract vendor of the United States Marshals Service.

The trial resumed on February 1, 2010, at which time defense counsel informed the Court that QPDF was also refusing to provide Brooks with any benzodiazepines,*fn1 so the Court permitted Brooks to continue to self-medicate with Ativan in the courtroom. This continued until February 3, 2010 when the Court decided that it would no longer permit Brooks to take any medication in the courtroom.*fn2

The trial continued on February 4. On February 8, this Court referred the parties to Magistrate Judge A. Kathleen Tomlinson for an immediate hearing regarding "Defendant David Brooks' prescribed medications, issues arising from changes to that regime, and the impact, if any, on Brooks' ability to assist his attorneys in his defense." United States v. Hatfield ("Tomlinson R&R"), No. 06-CR-0550, 2010 WL 550392, at *1 (E.D.N.Y. Feb. 16, 2010). Dr. Liebowitz and Jason Mafia, the health services administrator at QPDF, testified at the hearing. Judge Tomlinson reserved decision, and the trial continued on February 9, 2010.

There were no Court proceedings from February 10 through February 15, 2010. Brooks received no benzodiazepines during this period.*fn3 In the interim, on February 13, 2010, Judge Tomlinson issued a Report and Recommendation ("R&R") concluding that: (1) QPDF's withholding benzodiazepines did not violate Brooks' Eighth Amendment right to adequate medical treatment and (2) there was no reasonable cause to question Brooks' competence to stand trial, and, as such, no competency hearing was required. Nonetheless, Judge Tomlinson recommended that Brooks either be provided adequate doses of benzodiazepines or placed on a protocol to appropriately wean him off of benzodiazepines. On February 15, 2010, Defendant submitted a letter advising the Court that "Mr. Brooks has no objections to the Report and Recommendation of Magistrate Judge Tomlinson" and "request[ing] that the Court enter an Order adopting the Report and Recommendation in its entirety." (Docket Entry 841, at 2.)

The trial resumed on February 16, 2010. That afternoon, the Court advised counsel that QPDF agreed to administer Klonopin--another benzodiazepine used to treat panic and anxiety disorder--to Brooks going forward, and the Court permitted Brooks to take two Ativan in the courtroom. The Court subsequently adopted Judge Tomlinson's R&R and ordered QPDF to "provide medication to David H. Brooks as directed by prescriptions written by Dr. Michael R. Liebowitz." (Docket Entry 843, at 2.) Notwithstanding QPDF's representation and the Court's Order, Brooks did not begin receiving Klonopin until February 19, 2010.

The trial continued for another five months. The jury began deliberating on August 2, 2010 and returned a verdict on September 14, 2010, finding Brooks guilty of counts 1-11 and 15-17 of the Superseding Indictment. After the jury delivered its verdict, Brooks' counsel asked the Court to deem post-trial motions to have been made in contemplation of the Court establishing a briefing schedule after the forfeiture phase of the trial. (Trial Tr. 21649-50.)

At a conference on February 10, 2011, the Court set a briefing schedule for Brooks to submit a motion related to his competence to stand trial. On April 15, 2011, he filed a Rule 33 motion seeking a new trial on the grounds that: (1) the Court failed to recognize its statutory obligation to sua sponte order a competency hearing if there was reasonable cause to doubt Brooks' competence to stand trial; (2) the Court failed to order a competency hearing despite having reasonable cause to believe that he was incompetent to stand trial; (3) Brooks was actually tried while incompetent; and (4) Brooks' counsel rendered constitutionally ineffective assistance of counsel by failing to request a competency hearing. In support of his motion, Brooks submitted a 161-page psychiatric evaluation completed by Park Dietz, M.D., M.P.H., Ph.D. Dr. Dietz concluded, after spending over fifty hours with Brooks, that he was incompetent to stand trial from at least January 14, 2010 until February 18, 2010, the period when he was not consistently receiving benzodiazepines to treat his panic and anxiety disorders. On July 27, 2011, Brooks submitted a supplemental psychiatric evaluation completed by James C. Ballenger, M.D., who also concluded that Brooks was incompetent during that period as a result of the mismanagement of his medication. Brooks also submitted declarations of Mr. Aaron Hendel, one of his legal consultants, Brooks' son Andrew, his daughter Elizabeth, and Dwayne Brown, an inmate at QPDF, regarding Brooks' demeanor out-of-court during the trial.

The Government submitted its opposition on August 11, 2011.*fn4 In support, it provided the Court with a psychiatric evaluation completed by Mark J. Mills, J.D., M.D. Dr. Mills concluded that, although Brooks was likely suffering with symptoms of benzodiazepine withdrawals during the period in question, he was competent throughout the trial. Dr. Mills based his conclusion on the results of psychiatric tests*fn5 which revealed that Brooks was embellishing, malingering, or feigning symptoms when he believed doing so was in his best interest. Dr. Mills also criticized the conclusions of Dr. Dietz and Dr. Ballenger, stating that they "incorrectly portray various of Mr. Brooks' behaviors as psychopathological, when alternative explanations are more convincing." (Mills Report at 12.) Dr. Mills' report is somewhat limited, however, because Brooks refused to discuss his underlying behaviors with Dr. Mills at the direction of his lawyers. (See Gov't Ex. D.; Mills Report at 1.)

Brooks filed his reply brief on August 26, 2011. In support, he submitted a forensic report completed by Kirk Heilbrun, Ph.D., criticizing Dr. Mills' evaluation, in part, because the psychological tests performed only provide information about an individual's present functioning. According to Dr. Heilbrun, these tests cannot detect whether someone was exaggerating or malingering at a previous time.

The Court has reviewed all of the materials submitted in support of and in opposition to the pending Rule 33 motion. The Court has also reviewed its own notes from the trial along ...


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