United States v. Berard
| Docket Number | Crim. 22-cr-088-01-LM,Opinion 2023 DNH 050 P |
| Decision Date | 01 May 2023 |
| Parties | United States of America v. David Berard |
| Court | U.S. District Court — District of New Hampshire |
David Berard is facing a single count of making a false statement in connection with the attempted acquisition of a firearm in violation of 18 U.S.C. § 922(a). In November 2022, the court found Berard not competent to stand trial and-as required by 18 U.S.C. § 4241(d)-committed him to the custody of the Attorney General for hospitalization for a period not to exceed four months at a facility equipped to provide treatment to determine whether Berard's competency could be restored. Due to a shortage of available beds, Berard was not transferred to a treatment facility until February 27, 2023, just over three months after the court ordered his hospitalization.
Berard moves to dismiss the indictment (doc. no. 43). He argues that the government's delay in transferring him violated his rights under 18 U.S.C. § 3161(c)(1) (the Speedy Trial Act) and 18 U.S.C. § 4241 (the competency statute).[1] The government objects. For the reasons explained below, the court finds that the government has not violated the Speedy Trial Act. The court further finds that the government has not yet violated either § 4241(d)(1) or the court's commitment order (doc. nos. 32, 33) by exceeding the four-month duration for hospitalization of a committed defendant. Due to a lack of resources and available bed space, the government failed to timely transport Berard to a suitable facility. These circumstances, which interfere with Congress's intended use of § 4241(d), concern the court. But dismissal is not the appropriate remedy particularly where Berard is currently hospitalized and is undergoing a restoration evaluation. Accordingly, and for the reasons that follow, the court denies Berard's motion to dismiss without prejudice.
On June 30, 2022, Berard was arrested for making a false statement in connection with the attempted acquisition of a firearm, in violation of 18 U.S.C. § 922(a). On July 21, 2022, the court (Johnstone, M.J.) held a bail hearing and ordered Berard detained. The court found by clear and convincing evidence that “no condition or combination of conditions of release will reasonably assure the safety of any other person and the community” and, by a preponderance of the evidence, “that no condition or combination of conditions of release will reasonably assure the defendant's appearance as required.” Doc. no 12 at 2. As support for these findings, the court stated that, among other items, Berard had a history of violence or use of weapons; had a lack of stable employment and residence; had told law enforcement that laws do not apply to him; and had posted a threat in temporal proximity of a firearms purchase. Id. at 2-3.
Berard was indicted on August 1, 2022. On September 20, defense counsel asked the court to schedule a hearing to determine whether Berard was competent to stand trial. The court held the hearing on November 22, and the following day (November 23), the court issued an order finding that Berard was “presently suffering from a mental disease or defect rendering him mentally incompetent to stand trial.” Doc. no. 32. Pursuant to 18 U.S.C. § 4241(d), the court committed Berard to the custody of the Attorney General ordering that he be hospitalized for “treatment in a suitable facility for a reasonable period of time, not to exceed four months, 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.” Id.
In its order, the court instructed the director of the facility designated to treat Berard to file a preliminary status report addressing Berard's mental condition and any progress in restoring his competency by December 23 (one month after the court's order) and a final report addressing the same on or before March 23, 2023 (four months after the court's order).
No status report was filed with the court by December 23. Instead, on December 27, the government moved to continue the court's deadline (for the initial status report) until February 21, 2023, stating that Berard had not yet been transferred from Strafford County House of Corrections (where he was being held pretrial) to a Bureau of Prisons (“BOP”) facility for treatment. The government represented that it expected the extended deadline would allow sufficient time for Berard to be transferred and for the facility to provide an initial status report to the court. The court extended the deadline for the initial report until January 23, 2023.
On January 23, 2023, the government filed a second motion to continue the deadline for the initial status report to March 9. The government reported that Berard had not yet been transferred from Strafford County due to a shortage of beds in a suitable facility. The government further explained that Berard “had been escalated” on the waitlist for transfer and that BOP expected to transfer him to FMC Devens in late February. The court granted the government's motion “reluctantly,” noting that Berard's transfer should have been placed on expedited status on November 23, 2022, the date of the court's original order committing Berard to the custody of the Attorney General.
On February 15, counsel for Berard filed a motion requesting a hearing on the first date available after March 24. Counsel explained his intention to seek dismissal of Berard's indictment on that date, which would be four months and one day after the court ordered Berard committed to the custody of the Attorney General for a competency restoration evaluation. The court granted the motion, agreeing to expedite a hearing on the issue once briefing on the forthcoming motion to dismiss was completed.
Meanwhile, Berard arrived at FMC Devens on February 27. The Warden of FMC Devens submitted a status report regarding Berard's progress on March 28. The letter reported that Berard's evaluation period would conclude on June 27 (four months after his arrival at FMC Devens) and that a final report would be submitted to the court within four weeks of that date.
On March 10, counsel for Berard filed this motion to dismiss his indictment. The government objected. The court held a status conference on April 4 and a hearing on April 10. Dr. Dia Boutwell, Chief of the BOP Psychological Evaluations Section, testified on behalf of the government. Dr. Boutwell testified that Berard presented a difficult case in determining whether he could be restored to competency. Ultimately, the court set the matter for additional oral argument to be held on April 25.
On April 18, the court held an in-chambers status conference to update the parties on the court's progress in evaluating the issue presented by Berard's motion to dismiss. The same day, the court issued an order stating that “it would aid the court's ruling on the pending motion to dismiss to obtain a better understanding of Berard's current status in his competency restoration evaluation.” Order of April 18, 2023. Thus, the court ordered the “director of the facility at which Berard is hospitalized” to file by April 21 Id.
On April 20, the chief psychologist of FMC Devens, Dr. Diana Hamilton, responded to the court's order by letter. Dr. Hamilton stated that Berard's evaluator, Dr. Miriam Kissin “is not available until April 25, 2023,” and that it would be “irresponsible on our behalf for anyone other than Dr. Kissin to submit an update to the Court on this matter.” Doc. no. 55. Dr. Hamilton wrote that “Dr. Kissin will submit a status report by the end of the business day on April 25, 2023.” Id.
On April 25, the court held oral argument as scheduled. During the hearing, the court received a letter from Amy Boncher, FMC Devens's warden. The court and the parties reviewed Boncher's letter during a brief recess.
In her letter, Boncher stated that she was providing “an interim status report 60 days into the 120-day evaluation period.” Boncher asserted that, at FMC Devens, Berard has “remained well adjusted.” According to Boncher, Berard has “completed six of eight Competency Restoration groups,” and he has been an “active participant” in them. He has “continued to meet with his restoration treatment team for continued treatment planning.” On April 5, Berard “received an Incident Report.” Boncher stated that, subsequently, Berard “was found competent” for purposes of “his participation in the disciplinary process ....”
Boncher also reported that Berard has been twice interviewed by his attending psychiatrist, and the psychiatrist had “[n]o diagnosis or recommendation for psychiatric treatment ....” Finally, Boncher told the court that “[f]ollowing completion of the final Competency Restoration Group meetings,” Berard “will be reevaluated regarding his competency to stand trial.” According to Boncher, Berard's “evaluation period will end June 27, 2023, and a final written report will be submitted to the Court within four weeks of that date.”
After the brief recess during oral argument, the court expressed concerns about the process being followed by the BOP and its refusal to answer the question posed by the court, i.e., whether there is a substantial probability that Berard can be returned to competency. See doc. no. 57 (order outlining court's concerns about Warden Boncher's letter).
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