United States District Court, W.D. New York
REPORT AND RECOMMENDATION
JONATHAN W. FELDMAN UNITED STATES MAGISTRATE JUDGE
25, 2017, a Federal Grand Judy in the Western District of New
York returned an Indictment charging Fred Swan ("the
defendant" hereinafter) with a violations of 18 U.S.C.
§§ 1951(a) and 2, and 924 (c) (1) (A) (ii) . Docket
# 35. On July 28, 2017, defense counsel filed a motion for a
competency examination pursuant to 18 U.S.C. § 4241 (a)
and requested that his client be evaluated for competency to
stand trial pursuant to 18 U.S.C. § 4241(b). Docket #
August 2, 2017, this Court granted defense counsel's
motion. See Docket # 43. On November 27, 2017, the
Court received the evaluation report prepared by Dr. Lisa B.
Feldman. Docket # 59. Dr. Feldman found the defendant
competent to stand trial.
December 1, 2017, all counsel and the defendant appeared
before the Court. Defense counsel stated that the defense was
not requesting that a competency hearing be conducted, and
that based on the report and findings of Dr. Feldman, the
defense was not disputing Dr. Feldman conclusions as to
competency. Similarly, the government informed the Court that
it was not disputing the competency finding of Dr. Feldman
and was not requesting a competency hearing.
Swan is competent to stand trial if he has (1) a
"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." United States v.
Nichols, 56 F.3d 403, 410 (2d Cir. 1995)(internal
quotations and citations omitted). Mental illness is not the
legal equivalent of incompetency. Rather, the mental illness
must deprive the defendant from being able to either (1)
consult with counsel with a reasonable degree of rational
understanding, or (2) demonstrate factual and rational
understanding of the proceedings against him. Id. at
412. The burden to prove a lack of competence is on the
defendant. See Cooper v. Oklahoma, 517 U.S. 348, 362
(1996) (upholding Oklahoma statute that presumed a defendant
competent unless he rebutted the presumption and commenting
that under § 4241 "Congress has directed that the
accused in a federal prosecution must prove incompetence by a
preponderance of the evidence").
on the foregoing standards, the uncontested findings of Dr.
Feldman and this Court's own observations of the
defendant during Court proceedings, it is my Report and
Recommendation that the defendant Fred Swan be found
competent to stand trial.
to 28 U.S.C. § 636(b)(1), it is hereby
that this Report and Recommendation be filed with the Clerk
of the Court.
OBJECTIONS to this Report and Recommendation must be
filed with the Clerk of this Court within fourteen (14) days
after receipt of a copy of this Report and Recommendation in
accordance with the above statute, Fed.R.Civ.P. 72(b) and
Local Rule 72.3(a)(3).
district court will ordinarily refuse to consider on de novo
review arguments, case law and/or evidentiary material which
could have been, but was not, presented to the magistrate
judge in the first instance. See, e.g.,
Patterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec.
Co., 840 F.2d 985 (1st Cir. 1988).
to file objections within the specified time or to request an
extension of such time waives the right to appeal the
District Court's Order. Thomas v. Arn, 474 U.S. 140
(1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d
parties are reminded that, pursuant to Rule 72.3(a)(3) of the
Local Rules for the Western District of New York,
"written objections shall specifically identify the
portions of the proposed findings and recommendations to
which objection is made and the basis for such objection and
shall be supported by legal authority." Failure to
comply with the provisions of Rule 72.3(a)(3), or with the
similar provisions of Rule 72.3(a)(2) (concerning objections
to a Magistrate Judge's Decision and Order), may result
in the District Court's refusal to consider the
Clerk send a copy of this Order and a copy of the Report and
Recommendation to the attorneys for ...