United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE
was arrested on July 28, 2018, and a criminal complaint was
filed against him charging that he had, among other things,
threatened to kill the President of the United States, in
violation of 18 U.S.C. § 871, and made a bomb threat, in
violation of 18 U.S.C. § 844(e). He made his initial
appearance before Judge Deborah A. Robinson on July 30, 2018.
At that hearing, the government sought Defendant's
temporary detention pending a detention hearing and also
asked that the Court order Defendant to undergo an initial
mental competency screening. Judge Robinson granted both
August 3, 2018, a psychologist from the District of Columbia
Department of Behavioral Health conducted a preliminary
competency screening and concluded that Defendant was not
competent to stand trial. She recommended that he be
transferred to a federal facility for further evaluation and
treatment. Defendant was indicted on August 7, 2018, on the
two charges noted above. On August 8, 2018, a detention
hearing was held before the undersigned, after which
Defendant was ordered detained pending trial. ECF No. 7. The
Court also found, based on the preliminary screening, that
there was reasonable cause to believe that a full mental
competency evaluation of Defendant was warranted.
Accordingly, on the government's motion, the Court
ordered him remanded to the custody of the Attorney General
of the United States for a period not to exceed 30 days for
placement in a suitable facility for a full competency
evaluation pursuant to the provisions of 18 U.S.C.
§§ 4241, 4247(b) and (c), and Local Criminal Rule
57.17(a)(14). ECF No. 6.
disturbingly common in cases in which this Court has ordered
a defendant into the custody of the Attorney General for a
full competency evaluation, Defendant's transportation to
the facility was plagued by delays. He was first designated
to a facility-the Federal Medical Center in Devens,
Massachusetts-on August 15, 2018. ECF No. 8. However, counsel
for the government learned on August 24, 2018, that the
facility in Devens did not have bed space available for
Defendant and that it had several other competency
evaluations scheduled in advance of Defendant's. ECF No.
9. Defendant was thereafter designated to the Metropolitan
Correction Center in New York City (“MCC-NY”).
Id. On September 17, 2018, counsel for the
government informed the Court that Defendant had arrived at
the Metropolitan Detention Center in Brooklyn, New York-a
different facility than MCC-NY-and communicated the
government's understanding that the competency
examination would be performed there. ECF No. 11. On September 27,
2018, counsel for the government informed the Court that
Defendant had arrived at MCC-NY and communicated the
government's understanding that the competency evaluation
would be performed at that facility. ECF No. 12. On October
15, 2018, the warden of MCC-NY sought, pursuant to 18 U.S.C.
§ 4247(b), an extension of fifteen days-until October
31, 2018-to complete the evaluation.
Forensic Report was issued on November 9, 2018. It found that
Defendant has some history of mental illness. Forensic Report
at 6-9. Specifically, the evaluator noted that
Defendant's psychiatric history showed “paranoia
and intermittent brief periods of psychosis, ” with two
“major episodes, one in 2014 and another in 2018,
” approximately two and one-half months before his
arrest in this matter. Id. at 8, 11, 16. His
prognosis is “limited” in light of “the
chronic nature of his difficulties, lack of insight into his
mental health problems, and his unwillingness to participate
in treatment, including psychotropic interventions.”
Id. at 16. The Forensic Report nevertheless
concluded that Defendant is competent to stand trial.
Id. at 19.
standard for competence to stand trial is whether the
defendant has ‘sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding' and has ‘a rational as well as
factual understanding of the proceedings against
him.'” Godinez v. Moran, 509 U.S. 389, 396
(1993) (quoting Dusky v. United States, 362 U.S.
402, 402 (1960) (per curiam)). At least as of October 2018,
while he was at MCC-NY, Defendant understood that he was
charged with making threats against the President of the
United States. Forensic Report at 16. He further explained
that a “threat” was stating that you would cause
“bodily harm [to] someone against their will” and
realized that the charge was considered a serious one.
Id. He was aware of the fact that he could plead
guilty or not guilty and understood that pleading guilty
would obviate the need for a trial, but expressed confidence
that he would be found not guilty because the evidence
against him was weak or illegally obtained. Forensic Report
at 16-17. Defendant understood what it meant to take an oath,
what testimony is, the consequences of lying under oath, the
importance of evidence in a criminal trial, the role of the
judge, and the import of a verdict. Id. at 17. He
further explained that he would like to represent himself,
but was open to taking the advice of counsel “if
it's feasible” and that he was not opposed to
working with an attorney with whom he feels comfortable.
Id. The Forensic Report opined that, although
Defendant's current presentation “reflected a
somewhat paranoid view of some components of the criminal
justice system, ” he “was able to put aside his
opinions and convey accurate definitions of key concepts and
participants in the courtroom.” Id. at 18.
Defendant could “comprehend the seriousness of his case
and the recommendations of defense counsel, ” and could
communicate with counsel, weigh the merits of various
defenses, make decisions regarding numerous constitutional
protections, and testify in his own defense. Id.
Thus, the evaluator concluded that Defendant “has a
rational and factual understanding of the proceedings against
him and . . . is capable of assisting counsel with his
Possian was returned to the D.C. area in mid-December 2018. A
competency hearing as required by 18 U.S.C. §§
4241(c) and 4247(d) was held on December 21, 2018. At that
hearing, the government concurred in the findings and
conclusions of the forensic evaluation. Defendant's
counsel having conferred with his client regarding the
Forensic Report, Defendant similarly did not object to its
findings and conclusions. Accordingly, for the reasons stated
on the record at the hearing and in this Order, it is hereby
that upon consideration of the entire record herein, the
undersigned finds by a preponderance of the evidence that
Defendant has a “sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding” and “a rational as well as factual
understanding of the proceedings against him.”
Dusky, 362 U.S. at 402.
 It appears that this information was
mistaken, and that on September 17, 2018, Defendant had been
transferred from the Metropolitan Detention Center in
Brooklyn, where he had arrived on or about September 11,
2018, to MCC-NY, which is where the competency evaluation was
completed. Forensic Report at 9-10. Because of this
confusion, some of the orders issued by the Court in this
case misidentify the ...