United States v. Bumagin, No. 11–cr–800 (WFK).

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Writing for the Court: WILLIAM F. KUNTZ, II, District Judge
• Citation: 114 F.Supp.3d 52
• Parties: UNITED STATES of America, Plaintiff, v. Semyon BUMAGIN, Defendant.
• Docket Number: No. 11–cr–800 (WFK).
• Decision Date: 15 July 2015

114 F.Supp.3d 52

UNITED STATES of America, Plaintiff,
v.
Semyon BUMAGIN, Defendant.

No. 11–cr–800 (WFK).

United States District Court, E.D. New York.

Signed July 15, 2015.

114 F.Supp.3d 53

Jacquelyn M. Kasulis, James Donald Gatta, Kevin M. Trowel, United States Attorneys Office, Brooklyn, NY, for Plaintiff.

Zoe Jayde Dolan, Zoe J. Dolan, Esq., New York, NY, for Defendant.

DECISION AND ORDER

WILLIAM F. KUNTZ, II, District Judge:

On June 13, 2012, defense counsel requested the Court to commence proceedings to determine Defendant Semyon Bumagin's ("Defendant") competency to stand trial and assist properly in his own defense. Defendant underwent three separate competency evaluations, and a competency hearing was held on July 21 and 22, 2014 upon which the parties submitted post-hearing briefing. On December 10, 2014, the Court ordered an additional competency evaluation from Dr. Sanford L. Drob, PhD, a Court-appointed psychologist. After receiving Dr. Drob's evaluation in April 2015, the Court held a competency hearing on June 30, 2015. Having thoroughly considered Dr. Drob's evaluation and testimony, and based on the Court's own observations of the Defendant, the Court hereby finds as a matter of fact that the Defendant is competent to stand trial and to assist in his own defense.

BACKGROUND

The Court assumes the parties' familiarity with the facts of this action and with the three previous evaluations of Defendant undertaken by Dr. Monica Rivera–Mindt, PhD., in May 2012 ("Mindt Report"), by Dr. Dana Brauman in July and August 2012 ("Brauman Report"), and by Dr. Jill Grant¹ of the Federal Medical

114 F.Supp.3d 54

Center in Butner, North Carolina, ("FMC Butner") in April 2013 ("Grant Report"). See Dkt. 90 ("Competency Order") at 1–7; see also Dkt. 80–1 (Mindt Report); Dkt. 80–2 (Brauman Report); Jill R. Grant, Jill C. Volin, Amor Correa, & Tracy O'ConnoPennuto, Forensic Evaluation, Mental Health Department, Federal Medical Center, Butner, North Carolina (2013) (Grant Report). The Court also assumes the parties' familiarity with the testimony provided at the two-day competency hearing held on July 21 and 22, 2014. Competency Order at 3–7.

On December 10, 2014, following in-depth post-hearing briefing by both parties, the Court determined there was insufficient evidence to render a decision on Defendant's competency. Competency Order at 1. Accordingly, the Court appointed Dr. Drob, to conduct an additional competency evaluation of the Defendant. Id. at 12.

On April 7, 2015, Dr. Drob provided his final report on Defendant's competency to the Court. Sanford L. Drob, Forensic Psychological Report (2015) (hereinafter "Drob Report"). Dr. Drob's report is thorough and detailed. In the report, Dr. Drob stated "[t]he results of the current testing, if taken at face value, are indicative of a significant decline in [Defendant's] cognitive functioning since he was assessed [by Dr. Brauman] in August of 2012 and [by Dr. Grant] at [FMC] Butner in April, 2013." Id. at 14 (emphasis added). Dr. Drob noted that many of Defendant's test results were "consistent with his making a reasonable effort on testing" and Dr. Drob indicated that "my impression was that he was thinking about and even struggling with the answers each time in a manner that suggested that he was providing an honest rather than a manipulative response." Id. at 16. Dr. Drob, however, also suggested that certain of Defendant's results could be explained by "an effort to present such a decline [of memory]" and Dr. Drob expressed "some suspicion that [Defendant] may at times exaggerate cognitive deficits on testing[.]" Id. at 17–18. Ultimately, Dr. Drob concluded that, while there is a "significant remaining question ... [of] whether [Defendant] is malingering or exaggerating cognitive deficits so as to mislead the examiners, counsel[,] and the [C]ourt," Defendant on balance is incompetent to stand trial and is unlikely to be restored to competency. Id. at 19–22.

On June 30, 2015, the Court held a competency hearing where two witnesses, Dr. Drob and Sergeant Martin Bumagin, Defendant's son, testified as to Defendant's competency. Dkt. 121 ("Tr."). First, Dr. Drob described in detail the procedures and processes he used during his evaluations of Defendant and provided an extensive explication of his report and ultimate conclusion that Defendant is incompetent. Id. at 31–57. Dr. Drob specifically testified about the extent of Defendant's seeming spontaneous desire to discuss the legal proceedings against him, including providing Dr. Drob with specific "facts about the case in his own defense that are completely inconsistent with the evidence against him. And he consistently goes back to those and also consistently goes back to rulings...