MEMORANDUM OPINION
JOHN
D.BATES, United States District Judge
Before
the Court is [11] defendant Jean-Paul Gamarra's motion to
dismiss the indictment against him. Gamarra's motion
states that he has been committed to the custody of the
Bureau of Prisons and hospitalized for a competency
evaluation well beyond the initial four-month period
authorized by statute. See 18 U.S.C. §
4241(d)(1). The government does not dispute this fact.
Instead, it contends that the proper remedy is for the Court
to either (1) authorize a second initial four-month
evaluation period, see id § 4241(a); (2) order that
Gamarra be detained prior to trial either because he has been
charged with a crime of violence, see id §
3142(f)(1)(A), or because he presents a flight risk, see id
§ 3142(f)(2)(A); or (3) authorize an additional period
of hospitalization after finding, based on the available
medical evidence, that there is a "substantial
probability" that Gamarra will become competent within
that additional time, see 18 U.S.C. § 4241(d)(2). See
Gov't's Opp'n to Def.'s Mot. to Dismiss
("Opp'n") [ECF No. 12] at 14-16. Although the
Court agrees with Gamarra that a statutory violation has
occurred, it also agrees with the government that dismissal
of the indictment is not the proper remedy. Hence, for the
reasons explained below, the Court will deny Gamarra's
motion to dismiss the indictment.
Gamarra
was arrested on March 28, 2017 outside the White House. He
had approached United States Secret Service officers with a
package that he claimed contained a component to launch a
nuclear weapon. See Aff. in Supp. of an App. for a
Crim. Compl. ("Demock Aff") [ECF No. 1-1] ¶ 5.
The package contained a Bluetooth keyboard, along with a note
stating: "Warning this device is a threat on Senatar and
President Life [sic]." Id. ¶6. Gamarratold
the Secret Service officers that he sought to deliver the
keyboard to them so that they could "reverse
engineer" the keyboard-which he again claimed was a
"nuclear bomb component"-to prevent a bomb-related
plot against the President. Id. ¶ 7. He also
said that he had no explosives and did not wish any harm to
the President. LI However, the government's review of
records indicated that Gamarra had previously walked into a
hospital and threatened to kill President Barack Obama.
Id. ¶ 8. Government records also showed that
Gamarra's mother and prior spouse had both indicated that
Gamarra suffered from bipolar disorder and schizophrenia.
Id. ¶ 9.
That
same day, the government charged Gamarra with threatening the
President, 18 U.S.C. § 871, and threatening and
conveying false information concerning the use of an
explosive, 18 U.S.C. § 844(e). See Compl. [ECF No. 1].
On March29, Magistrate Judge Meriweather granted the
government's motion for an examination of Gamarra's
mental competency. See Order [ECF No. 2]. After a
status hearing on April 4, 2017, and based upon the results
of the competency examination, Magistrate Judge Robinson
committed Gamarra to the custody of the Attorney General for
thirty days pursuant to 18 U.S.C. § 4247 to determine
whether he was mentally competent to stand trial.
See Order [ECF No. 5]. After these thirty days
expired, the government moved-without objection-to continue
the next status hearing regarding Gamarra's competency
evaluation to July. See Min. Entry of May 16, 2017.
On July 17, 2017, Judge Robinson found that Gamarra was not
competent and, upon motion by the government, committed
Gamarra to the custody of the Attorney General pursuant to 18
U.S.C. § 4241(d) for 120 days to determine whether there
was a substantial probability that he would attain the
capacity to permit the proceedings to go forward in the
foreseeable future. See Order [ECF No. 8].
However,
due to a clerical error, Judge Robinson's order was not
transferred to the Marshal's Office until late August,
and Gamarra was not transferred to FMC Butner in North
Carolina until September 19, 2017. See Opp'n at 5;
Def's Reply [ECF No. 13] at 6-7. The medical staffers at
Butner indicated that they would need a full 120 days-until
January 16, 2018- to evaluate Gamarra because he "showed
an unwillingness to take medication and appeared
psychotic." Gov't's Status Rep. [ECF No. 10] at
1-2. On January 30, 2018, the parties jointly moved to
continue the status hearing scheduled for that day until
March, when they would have had time to examine the report
from Butner. See Min. Entry of Jan. 30, 2018. Judge
Robinson agreed, and ultimately held the status hearing on
March 8, 2018. See Min. Entry of Mar. 8, 2018.
There, the government requested a Sell hearing to determine
whether Gamarra could be involuntarily medicated; Gamarra,
conversely, moved for the first time to dismiss the
indictment because he had been held for longer than the 120
days authorized by statute for competency evaluations.
Id. This latter motion is now before the Court.
The
Insanity Defense Reform Act of 1984 set up a three-step
process for evaluating the competency of criminal defendants.
First, upon a party's motion, and "if there is
reasonable cause to believe that the defendant may presently
be suffering from a mental disease or defect rendering him
mentally incompetent, " a court may order the defendant
committed for not longer than thirty days for evaluation. 18
U.S.C. § 424l(a)-(b); see id § 4247(b). Second, if
the court finds by a preponderance of the evidence after the
evaluation that the defendant remains mentally incompetent to
stand trial, "the court shall commit the defendant to
the custody of the Attorney General" for "a
reasonable period of time, not to exceed four months"
for further examination. LI § 4241(d)-(d)(1). Third,
after the four-month evaluation period, the court must commit
the defendant "for an additional reasonable period of
time until his mental condition is so improved that trial may
proceed, " but only "if the court finds that there
is a substantial probability that within such additional
period of time he will attain the capacity to permit the
proceedings to go forward." Id. §
4241(d)(2). This case has already proceeded through the first
two of these steps, but the government has not yet received
an order to extend Gamarra's confinement under the third
step.
Gamarra
argues that his extended detention at Butner violates the
Insanity Defense Reform Act. He is correct. The statutory
text leaves no room for debate: it authorizes evaluation for
a period "not to exceed four months." Id.
§ 4241(d)(1). Congress set this limit mindful of the
Supreme Court's admonition in Jackson v.
Indiana, 406 U.S. 715, 738 (1972), that "due
process requires that the nature and duration of commitment
bear some reasonable relation to the purpose for which the
individual is committed." Nor did Congress set any
provision for extending this four-month period, as it did for
the initial thirty-day evaluation, which can be extended for
up to fifteen more days. See United States v.
Magassouba, 544 F.3d 387, 405 (2d Cir. 2008). The only
manner by which a defendant can be kept in confinement beyond
four months is through a court order finding that he has a
substantial probability of attaining competency. Gamarra has
remained in Butner for more than six months, without an order
committing him "for an additional reasonable period of
time." 18 U.S.C. § 4241(d)(2).[1] The government
has therefore violated the Act.
However,
the proper remedy for this violation is not to dismiss the
indictment, but rather to ensure a speedy evaluation under
§ 4241(d)(2). "Any error, defect, irregularity, or
variance that does not affect substantial rights must be
disregarded, " Fed. R. Crim. P. 52(a), and the statutory
error here is harmless. If Gamarra had not been confined for
evaluation, he likely would have remained in pretrial
detention, with the same level of deprivation to his liberty
rights. Moreover, nothing in the Act suggests that dismissal
is a necessary or proper remedy. The Act itself provides no
particular remedy for violating its time limits. See
Magassouba, 544 F.3d at 411. It also does not suggest
that a court must make a § 4241(d)(2) determination
within the four-month confinement period; indeed, to set such
a deadline, particularly when the defense needs time to
contest a § 4241(d)(2) motion, could itself raise due
process concerns. See Id. at 406-07.
Nor
does the Constitution require dismissal. The Court in
Jackson, after finding that a three-year confinement
violated due process, did not dismiss the indictment but
rather remanded to the lower courts for a determination of
the defendant's competency. See 406 U.S. at 738
& n.25, 741. Likewise, in a case with facts similar to
this one, the Second Circuit found that mandamus actions to
compel evaluation hearings and habeas corpus actions to free
illegally confined defendants, rather than dismissal of
indictments, are the correct remedies for violating the
Act's time limits. See Magassouba, at 411 n. 16.
Finally, the length of Gamarra's confinement is to some
extent due to his own actions in refusing to consistently
take his medication, which necessitated a lengthier
examination period by Butner staff, and to his counsel's
agreement to prior continuances of status hearings. Given
these facts, the Court finds that Gamarra's
six-and-a-half-month confinement has not affected his
substantial rights so as to make dismissal appropriate.
The
government's proposed remedies, however, are either not
available or not properly directed to the Court at this time.
First, the government's contention that the Court could
simply order a second initial evaluation under §
424l(a)-(b) is contrary to the statute. The Act clearly sets
up the three-step structure outlined above, and continuously
refers to a singular initial competency hearing rather than
to multiple hearings. 18 U.S.C. § 4241. Neither the
government nor the courts can circumvent that process by
circling back to another step-one initial examination after
engaging in the step-two four-month evaluation.[2] Only a
determination under § 4241(d)(2) that a defendant has a
substantial probability of attaining competency with a
further period of confinement can justify continued detention
at a facility at this stage. Second, it is premature to make
a dangerousness determination under 18 U.S.C. § 3142(g),
as Gamarra is still at Butner rather than in pretrial
detention. There is currently a hearing scheduled before
Judge Robinson to determine whether Gamarra can be
involuntarily medicated under Sell v. United States,
539 U.S. 166 (2003). As the government believes that such
medication can render Gamarra competent to stand trial, it
can and should move for a finding under § 4241(d)(2),
and Judge Robinson can rule on that matter, as
well.[3] Should Judge Robinson find that Gamarra
must continue to be held at Butner, a § 3142(g)
determination will be unnecessary. Third, and for the same
reasons, the Court will not make a substantial probability
finding under § 4241(d)(2) based on the existing
reports.
The
government should direct its motion to Judge Robinson, once
expert reports have been filed. Because of the statutory
violation, the Sell hearing-and any hearing to make a §
4241(d)(2) determination-must take place by not later than
April 30, 2018.
For the
foregoing reasons, the Court will deny Gamarra's motion
to dismiss the indictment.
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