United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER FOR COMPETENCY
Lindsay United States District Judge.
the court is Defendant Reyes's Motion for Psychiatric
and/or Psychological Examination filed under 18 U.S.C. §
4241 on December 20, 2018 (“Motion, ” Doc. 32).
Also before the court is Reyes's sealed Application for
Approval of Expert Services filed under 18 U.S.C. §
3006A(e)(1) on March 7, 2019 (“Application, ”
Doc. 41). These two filings reflect efforts by Reyes, who is
on pretrial release, to obtain a competency examination
without being committed to the custody of the Attorney
General. After a telephone conference held on the record, the
court determines that the § 4241 Motion should be
granted and the Application for CJA funds should be denied
jury indicted Reyes for theft of a firearm from a sporting
goods store. (Doc. 1.) Reyes was placed on pretrial release
supervision, subject to the conditions that he get medical or
psychiatric treatment, participate (with certain exceptions)
in a home detention program, and submit to testing for a
prohibited substance, among others. (Doc. 12.) Shortly
thereafter, the Government moved for detention based on
allegations that Reyes had violated the home detention
requirements and tested positive for marijuana. (Doc. 17,
19.) Magistrate Judge Rebecca Rutherford denied the motion
after a hearing but added a condition that Reyes must not use
or unlawfully possess a narcotic drug or controlled substance
unless prescribed by a licensed medical practitioner. (Doc.
December 3, 2018, the Government moved to revoke pretrial
release probation based on allegations that Reyes had
violated the home detention requirements and admitted using,
or tested positive for, marijuana. (Doc. 27.) After a
hearing, the magistrate judge denied the motion to revoke but
added as a condition of pretrial release that Reyes submit to
a full mental health assessment, including a competency
assessment. (Doc. 31.)
same day, Reyes filed the Motion presently under
consideration seeking an evaluation of his mental competency.
At a hearing held on January 10, 2019, counsel represented
that Reyes has a mental health history and multiple
diagnoses, was currently in psychiatric treatment, and was
taking multiple medications, including a prescribed narcotic.
The court entered an order deferring any action on the Motion
while Defendant attempted to use private insurance benefits
to obtain the required mental health assessment. (Doc. 36.)
On March 7, 2019, Reyes filed the sealed Application for CJA
funds to retain a mental health expert, stating that the
insurance company had denied coverage. [*] (Doc. 41.)
court held a telephone conference with counsel on April 9,
2019. The court advised the parties of its intended ruling
and gave counsel an opportunity to respond. The court allowed
the parties time to confer regarding the choice and cost of a
suitable expert. The parties notified the court's
coordinator on April 16, 2019, that they had agreed that Dr.
Emily Fallis would be a suitable expert and could evaluate
Reyes and produce the required report for $1, 500.
Motion for Competency Examination
to determine competency are held on the motion of a party or
sua sponte by the court when there is
“reasonable cause to believe the defendant may
presently be suffering from a mental disease or defect
rending 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.” 18 U.S.C. § 4241; United States v.
Porter, 907 F.3d 374, 380 (5th Cir. 2018). The parties
do not dispute the need for a mental competency determination
in this case.
4241(b) permits the court to order a psychiatric or
psychological competency examination “pursuant to the
provisions of section 4247(b) and (c).” The provisions
in § 4247(b) state that the court “may”
commit the person to be examined to the custody of the
Attorney General for placement in a suitable facility. The
period of commitment may not exceed thirty days, with one
fifteen-day extension upon a showing of good cause. And,
unless impracticable, the examination “shall” be
conducted in the suitable facility closest to the court.
See § 4247(b).
the Government's initial position that all competency
examinations must take place while in the custody of the
Attorney General, in a Bureau of Prisons facility. Reyes
opposed commitment and, for that reason, attempted to secure
the necessary funds through private insurance and the
Application for CJA funds.
court is not aware of any authority that requires the court
to place a person in custody for the mere purpose of a
competency evaluation. On the contrary, the statute's use
of the permissive word “may” indicates that the
examinations can take place on an outpatient basis. In re
Newchurch, 807 F.2d 404, 410, n.22 (5th Cir. 1986)
(interpreting § 4247(b) for purposes of insanity
examination) (citing Marcey v. Harris, 400 F.2d 772,
774 (D.C. Cir. 1968) (per curiam) (holding under prior
statute that if defendant requests pretrial mental
examination, it shall be on Memorandum Opinion and Order for
Competency Examination Page 3 an outpatient basis unless
inpatient commitment is necessary to assure an effective
examination)). Furthermore, persons accused of a crime and
awaiting trial are protected by Due Process limits on the
deprivation of their personal liberty. See United States
v. Neal, 679 F.3d 737, 740 (8th Cir. 2012). As such,
incarceration for a mental health examination should not be
imposed unless it is demonstrably necessary. See Id.
at 741; Newchurch, 807 F.2d at 411. In
Newchurch, the Court of Appeals vacated a commitment
order under § 4247(b) where the Government offered no
evidence (1) that the commitment was necessary, or (2) that
an adequate examination could not be conducted on an
outpatient basis or by a short confinement in a hospital near
the place of trial. Newchurch, 807 F.2d at 410.
the Government here has offered no reason to commit Reyes for
a competency examination or any evidence that an outpatient
evaluation would prejudice the Government in some way. The
magistrate judge implicitly determined that Reyes is not a
flight risk by denying the motion to revoke; the government
has filed no objections to that ruling. Placing Reyes in
custody could impede his ability to comply with certain
conditions of his release, such as maintaining employment and
mental health treatment. Placing Reyes in custody would be
nonsensical because the magistrate judge ordered Reyes to
undergo the examination as a condition of his pretrial
release. Pretrial release has no meaning if Reyes must
be placed in custody to keep it.