United States v. Lee
| Decision Date | 27 December 2022 |
| Docket Number | 1:21-CR-20034-ALTONAGA |
| Parties | THE UNITED STATES OF AMERICA, Plaintiff, v. DAVID F. LEE, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO COMPEL [ECF NO. 287]
THIS CAUSE is before the Court on Defendant, David F. Lee's (“Defendant” or “Mr. Lee”), Motion to Compel, filed November 11, 2022 [ECF No. 287] (the “Motion”). In the Motion, Defendant moves to compel the Attorney General to comply with the Court's July 27, 2022 Order, in which the Court ordered that the Attorney General hospitalize Mr. Lee at a suitable facility to restore his competency to proceed in the instant legal proceedings pursuant to Title 18, United States Code, Section 4241(d) [ECF No. 202] (the “Competency Order”). The Motion was referred to the undersigned by the Honorable Cecilia M. Altonaga, Chief United States District Judge, to take all necessary and proper action as required by law. [ECF No. 305]. See 28 U.S.C. § 636(b)(1)(B).
The undersigned has reviewed the parties' briefing, the pertinent portions of the record, and all relevant authorities. The Court also heard from the parties, through counsel, as well as representatives from the Federal Bureau of Prisons (“BOP”), at a Zoom hearing before the undersigned on December 21, 2022.
For the reasons that follow, and as explained on the record, the undersigned recommends that the Court deny the relief requested in the Motion.
Defendant was arrested on November 17, 2020, and charged by way of a Criminal Complaint on November 18, 2020, with attempted bank robbery. [ECF Nos. 1 and 2]. Defendant was indicted on January 14, 2021 [ECF No. 9], and, after a three-day jury trial, on February 18, 2022, Defendant was convicted of attempted bank robbery. [ECF No. 100]. Defendant has remained in the custody of BOP since his arrest in November 2020.
Defendant's sentencing was scheduled for May 4, 2022. Id. However, indicating he was dissatisfied with his attorney at the time, on March 25, 2022, Defendant requested that his attorney move to withdraw [ECF No. 116]. On April 20, 2022 the Court (United States District Judge Marcia Cooke[1]) appointed new CJA counsel, Henry Bell, to represent Defendant. [ECF No. 130]. Mr. Bell is Defendant's current counsel of record.
Notably, prior to and since his trial, Defendant has engaged in a pattern of filing numerous notices, motions, and letters to the Court in the Court's electronic docketing system on a variety of topics.
On June 16, 2020, after Defendant sought to proceed pro se, counsel for Defendant requested that the Court hold a competency hearing, and on July 25, 2022, the Court held an evidentiary hearing on the issue of Defendant's competency. [ECF Nos. 159, 196]. On July 27, 2022, the Court issued an order finding that Defendant is not competent to proceed to a Faretta colloquy and sentencing in this matter. [ECF No. 202]. The Court further ordered, pursuant to 18 U.S.C. § 4241(d), that Defendant be committed to the custody of the Attorney General to be treated and evaluated at a suitable hospital facility for a period of time, not to exceed four months, to determine whether there is a substantial probability that he will attain the capacity to permit the proceedings to go forward. Id.
Pursuant to the Competency Order, the United States has periodically filed reports with the Court regarding Defendant's status. Those reports show that Defendant remains at FDC-Miami and is not being treated, and that, although he has been designated to the Federal Medical Center (“FMC”) in Butner, North Carolina, for forensic evaluation and treatment for competency restoration, BOP has indicated that it will not be transferring Defendant to FMC-Butner, or any other suitable facility, until March 2023.
On November 11, 2022, nearly four months after the Court's Competency Order, Defendant, through counsel, filed the Motion now before the Court requesting the Court order the Attorney General to hospitalize Defendant at a suitable facility within seven days for the purpose of evaluating and restoring his competency to proceed in this case. [ECF No. 287]. In the Motion, Defendant's counsel argues that the delay in transferring Defendant to a medical facility violates 18 U.S.C. § 4241(d), the Court's Competency Order, and Defendant's due process rights. On November 21, 2022, the United States filed a Response to the Motion, and on November 22, 2022, Defendant filed a Reply. [ECF Nos. 297, 303]. On December 19, 2022, the United States filed a Notice of Supplemental Authority Regarding Defendant's Motion to Compel. [ECF No. 338].
The Motion is fully briefed and ripe for adjudication.
On December 21, 2022, the Court held a Zoom hearing on the Motion. Counsel for the parties and representatives of BOP were all present.
As indicated above, the parties, through counsel, appeared before the undersigned, by Zoom, for a hearing to address Defendant's Motion and to hear from BOP regarding the reasons for the delay at issue in the Motion. BOP representatives were present, including BOP counsel, Hayley Milczakowski, and Dr. Dia Boutwell.
At the hearing, counsel for the United States and BOP representatives explained that the delay in transferring Defendant from FDC-Miami, where he is currently confined, to FMC-Butner is attributable to a combination of a lack of space (or, in particular, beds) at FMC-Butner, or any other suitable facility, and a lack of staff. Thus, whereas BOP previously transferred individuals to medical centers under Section 4241 within 30 to 60 days, since the COVID pandemic, the average wait time for transfer of a prisoner under this Section is approximately 8 months. For that reason, BOP has been estimating that Defendant, whose Competency Order issued in July 2022, would be transferred to FMC-Butner in approximately March 2023. However, Dr. Boutwell explained that BOP recently opened and staffed a new facility which will expand availability for patients and will likely result in Defendant being transferred in February 2023, rather than March 2023.
As Dr. Boutwell explained, Defendant is on a waitlist, as he has been since July 2022, and he will be transferred when he reaches the top of the list. Defendant does not present any of the extreme symptoms or critical conditions that typically warrant expediting an individual's transfer, absent a Court order requiring expedition.
Counsel for Defendant pointed out that Defendant has been incarcerated for more than twenty-four months at this point. According to his presentence investigation report, the applicable Federal Sentencing Guidelines range applicable to Defendant is 51-63 months.
However, according to Defendant's counsel, Defendant may qualify for a reduced sentence and guidelines range based on various factors. Defendant has been unable to proceed to sentencing due to the Court's incompetency finding.
Upon a finding of incompetence to continue in proceedings against a criminal defendant, a court must commit the defendant to the custody of the Attorney General for a period not to exceed four months to evaluate whether the defendant may be restored to competency. See 18 U.S.C. § 4241(d)(1). Such commitment is mandatory. See United States v. Donofrio, 896 F.2d 1301, 1303 (11th Cir. 1990).
Congress enacted Section 4241 in response to the due process concerns identified by the Supreme Court in Jackson v. Indiana, 406 U.S. 715, 731 (1972). See United States v. Donnelly, 41 F.4th 1102, 1105 (9th Cir. 2022) ( same). In Jackson, the Supreme Court held that the Fourteenth Amendment's Due Process Clause prohibits a State from confining a defendant for an indefinite period simply because he is not competent to stand trial. 406 U.S. at 731. That case involved a defendant who was committed and confined to the State's Department of Health for three-and-a-half years without any indication that his competency could be restored. Id. at 738-39. The Court held that such indefinite confinement violated the defendant's due process rights. “At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Id. at 738. Thus, a person committed “solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.” Id.
In the Motion, Defendant argues that the four-month time limit provided in Section 4241(d) includes time spent confined pre-hospitalization and that, in any event, the delay in the instant case violates the Court's Competency Order and Defendant's due process rights.
To date, the only United States Court of Appeals to address these issues appears to be the Ninth Circuit in United States v. Donnelly, 41 F.4th 1102, 1105 (9th Cir. 2022). In Donnelly, the Court found that the four-month time limit in Section 4241(d)(1) applies only to the period of hospitalization, and thus begins to run when the defendant is hospitalized. Id. At least one court in this District has addressed this particular issue and agreed with the Ninth Circuit's conclusion in Donnelly. In United States vs. Miguel Gutierrez Diaz, No 21-cr-20151 (S.D. Fla., Nov. 21, 2022), Judge Altman addressed the issue of whether pre-hospitalization delay violates Section 4241(d)(1) in the context of a motion to dismiss the indictment. Judge Altman denied the motion to dismiss and held that the “four-month time limit constrains the hospitalization of...
To continue reading
Request your trial