United States v. White, 5:17-HC-2162-D

• Citation: 348 F.Supp.3d 571
• Decision Date: 26 November 2018
• Docket Number: No. 5:17-HC-2162-D,5:17-HC-2162-D
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of America, Petitioner, v. Oliver Lee WHITE, Respondent.

348 F.Supp.3d 571

UNITED STATES of America, Petitioner,

v.Oliver Lee WHITE, Respondent.

No. 5:17-HC-2162-D

United States District Court, E.D. North Carolina.

Signed November 26, 2018

Christina A. Kelley, Federal Bureau of Prisons, Legal Department, Michael D. Bredenberg, Federal Medical Center, Robert J. Dodson, G. Norman Acker, III, Joshua B. Royster, United States Attorney's Office, Michael James, Raleigh, NC, for Petitioner

Halerie F. Mahan, Jaclyn Lee DiLauro, Suzanne Little, Federal Public Defender's Office, Raleigh, NC, for Respondent

ORDER

JAMES C. DEVER III, United States District JudgeOn September 25, 2018, the United States moved for reconsideration of this court's order of September 11, 2018. See [D.E. 98]. In that order, this court granted Oliver Lee White's ("White" or "respondent") motion for a competency hearing, scheduled that hearing for November 29, 2018, and ordered "an examination of White under 18 U.S.C. § 4247(b) in order to determine whether White is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings under 18 U.S.C. § 4248 against him or to assist properly in his defense." [D.E. 95] 2. On October 15, 2018, White responded in opposition [D.E. 100]. On October 29, 2018, the United States replied [D.E. 101].

This court has the discretion to reconsider its order. See Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514–15 (4th Cir. 2003). As explained below, the court denies the government's motion for reconsideration.

I.

In this court's order of September 11, 2018, the court described the procedural history of White's criminal cases that repeatedly were dismissed without prejudice due to his incompetence, his evaluations under 18 U.S.C. § 4246 where doctors repeatedly concluded that he was not presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another, and his section 4248 case. See [D.E. 95] 2–7. The court then explained the textual rationale for concluding that this court could order a competency examination of White. See id. at 8. The court noted that 18 U.S.C. § 4248(b) expressly permits a court to order a competency examination under 18 U.S.C. § 4247(b) for a person facing civil commitment under 18 U.S.C. § 4248. See 18 U.S.C. § 4248(b) ("Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c)."). " Section 4247(b), in turn, permits this court to order an examination under section 4241 to determine ‘whether the person is suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.’ " [D.E. 95] 8 (quoting 18 U.S.C. § 4247(c)(4)(A) ) (emphasis added). The court construed the word "proceedings" in section 4247(c)(4)(A)"to include a section 4248 proceeding." Id. Thus, the court ordered "an examination of White under 18 U.S.C. § 4247(b) to determine whether White is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings under 18 U.S.C. § 4248 against him or to assist properly in his defense in the section 4248 proceeding." Id.

In opposition to these conclusions, the government argues that 18 U.S.C. §§ 4247 – 48 never permit a court to order a competency examination or to hold a competency hearing in a section 4248 proceeding. See [D.E. 99] 5–6. The court rejects the argument that it can never order a competency examination in a section 4248 proceeding. Section 4248 states that "[p]rior to the date of the [ section 4248 hearing to determine whether the person is a sexually dangerous person], the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c)." 18 U.S.C. § 4248(b). In turn, section 4247(c) permits the court to receive a psychiatric or psychological report. See 18 U.S.C. § 4247(c).¹ Section 4247(c) provides a list of what the psychiatric or psychological report "shall include," but the word "include" reflects that "the list that follows is meant to be illustrative rather than exhaustive." Samantar v. Yousuf, 560 U.S. 305, 317, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010) ; see Burgess v. United States, 553 U.S. 124, 131 n.3, 128 S.Ct. 1572, 170 L.Ed.2d 478 (2008). Thus, section 4247(c) permits a court in a section 4248 proceeding to order that a psychiatric or psychological report concerning a person in a section 4248 proceeding assess not only a person's sexual dangerousness, but also that person's competence to understand the nature and consequences of the section 4248 proceeding against him or to assist properly in his defense. Moreover, it is the government, not this court, that is seeking to ignore the plain text of 18 U.S.C. §§ 4247 – 48. Cf. Pereira v. Sessions, ––– U.S. ––––, 138 S.Ct. 2105, 2118, 201 L.Ed.2d 433 (2018) ("Unable to find sure footing in the statutory text, the Government... pivot[s] away from the plain language and raise[s] a number of practical concerns. These practical considerations are meritless and do not justify departing from the statute's clear text."); Burrage v. United States, 571 U.S. 204, 218, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014) (same). Furthermore, given the court's authority under 18 U.S.C. §§ 4247 – 48 to order a psychiatric or psychological examination and to obtain a psychiatric or psychological report concerning competency, the court rejects the government's argument that the court cannot hold a competency hearing in a section 4248 proceeding. See Zadvydas v. Davis, 533 U.S. 678, 689, 696–97, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (concluding that, to avoid constitutional doubt, a federal immigration statute contained an implicit reasonable time limitation for the detention of aliens ordered removed); United States v. Timms, 664 F.3d 436, 452 (4th Cir. 2012) (concluding that, to avoid constitutional doubt, the Adams Walsh Act implicitly permits a court to hold a probable cause hearing in a section 4248 case).

The government also argues that "section 4241 applies only in the criminal context" and that this court can never inquire into a person's "competence" to understand the nature and consequences of a section 4248 proceeding or to assist properly in his defense in a section 4248 proceeding. See [D.E. 99] 7–9. Assuming without deciding that 18 U.S.C. § 4241 applies only in the criminal context, the government's argument concerning section 4241 and competence ignores that being "subject to the provisions of section[ ] 4248"² does not prohibit a court from inquiring into whether a person is competent to understand the nature and consequences of the section 4248 proceeding against him or to assist properly in his defense when the person contests all three elements under the Adam Walsh Act. See 18 U.S.C. § 4247(b), (c).³ Had Congress intended to preclude a court from ever examining such a person's competence to understand the nature and consequences of the section 4248 proceeding against him and to properly assist in his defense, Congress could have said so. It did not.

That Congress did not prohibit a court from ever inquiring into a person's competence to understand the nature and consequences of the section 4248 proceeding against him and to assist properly in his defense makes sense. The Supreme Court repeatedly has held that the "criminal trial of an incompetent defendant violates due process." Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (quotation omitted); see Medina v. California, 505 U.S. 437, 446–53, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). Mental competence in a criminal case requires a person to have (1) a rational and factual understanding of the proceeding against him and (2) a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. See Indiana v. Edwards, 554 U.S. 164, 170, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008) ; Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) ; Dusky v. United States, 362 U.S. 402, 402–03, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam).

Of course, a section 4248 proceeding is a civil proceeding, not a criminal proceeding. See United States v. Comstock, 560 U.S. 126, 129–33, 142–46, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010). Nonetheless, a civil proceeding under section 4248 is not an "ordinary civil matter." United States v. Searcy, 880 F.3d 116, 125 (4th Cir. 2018) (quotation omitted). Rather, the statutory procedures for a civil commitment hearing under section 4248"differ substantially from those that apply to a run-of-the mill civil case in that they afford individuals rights traditionally associated with criminal proceedings, including the right to appointed counsel, the right to confront witnesses, and a heightened burden of proof." Id. Congress added these procedural safeguards because "a negative outcome in such a proceeding results in a ‘massive curtailment of liberty’ " and requires due process protection. United States v. Wood, 741 F.3d 417, 423 (4th Cir. 2013) (quoting Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) ). Moreover, if this court construed 18 U.S.C. §§ 4247 – 48 to prohibit a court from inquiring into a person's competence to understand the section 4248 proceeding and to assist properly in his defense when that person contests all three elements under the Adam...