UNITED STATES OF AMERICA v. STACE VALENTINE (2025)

ORDER

This cause comes before the Court on the Defendant's Objection to the Report and Recommendation Concerning Defendant's Competency to Stand Trial. (Doc. 105). The Government did not file a Response in Opposition.¹ Upon due consideration, the Court sustains the Defendant's objection to the Report and Recommendation and finds Defendant Valentine incompetent to proceed to trial.

I. BACKGROUND

The procedural history of this case as pertains to the Defendant's mental competency is accurately recounted in the Report and Recommendation and is adopted herein. (Doc. 104, pp. 1–2). The Court has reviewed the following materials:

1. The Defendant's motion pursuant to 18 U.S.C. § 4241(a) requesting a hearing to determine Valentine's competency to proceed (Doc. 63).

2. The report of Dr. Chelsea Bennett (Doc. 68).

3. The report of Dr. Randy Otto (Doc. 82).

4. The report of Dr. Lamar Inguilli (Doc. 92).

5. The transcript of the competency hearing (Doc. 98).

6. The Government's Memorandum In Support of a Finding of Competency (Doc. 102).

7. The Defendant's Post-Hearing Memorandum In Support of Motion to Determine Competency (Doc. 103), and

8. The Report and Recommendation finding Defendant Competent to Proceed (Doc. 104).

II. LEGAL STANDARDS

A. Objection to Report and Recommendation

When a magistrate judge has been designated to decide a matter that is dispositive in nature, the magistrate judge must issue a report to the district judge specifying proposed findings of fact and the recommended disposition. Fed. R. Civ. P. 72(b)(1). Any party who disagrees with the magistrate judge's decision has fourteen days from the date of the decision to seek the district judge's review by filing objections to those specific portions of the decision with which the party disagrees. Fed. R. Civ. P. 72(b)(2). The district judge must then make a de novo determination of each issue to which an objection is made. Fed. R. Civ. P. 72(b)(3); see also, United States v. Govea-Vazquez, 962 F.Supp.2d 1325, 1327 (N.D. Ga. 2013) (“Where objections are made, a district judge ‘shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.’ ”). “Frivolous, conclusive, or general objections need not be considered by the district court.” United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (citation omitted). De novo review “require[s] independent consideration of factual issues based on the record.” Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (per curiam). The district judge may then accept, reject, or modify the magistrate judge's recommendation, receive additional evidence or briefing from the parties, or return the matter to the magistrate judge for further review. Fed. R. Civ. P. 72(b)(3).

B. Competency to Proceed

“A defendant has a due process right not to be tried or convicted while incompetent.” United States v. Ramirez, 491 F. App'x 65, 71 (11th Cir. 2012) (citing Drope v. Missouri, 420 U.S. 162, 171-72 (1975)). The federal competency standard is set forth in 18 U.S.C. § 4241, which provides:

If, after [a] hearing, the court finds by a preponderance of the evidence that the defendant 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 against him or to assist properly in his defense, the court shall commit the defendant to the custody of the Attorney General. 18 U.S.C. § 4241(d).

Section 4241 codifies the standard for competency set forth by the United States Supreme Court in Dusky v. United States, 362 U.S. 402 (1960): “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” See also United States v. Bradley, 644 F.3d 1213, 1268 (11th Cir. 2011) (quoting United States v. Hogan, 986 F.2d 1364, 1371 (11th Cir. 1993)). “The standard for competence to plead guilty is the same as the standard for competence to stand trial.” United States v. Rigsby, 791 F. App'x 94, 95 (11th Cir. 2019). A Defendant “raising a substantive claim of incompetency is entitled to no presumption of incompetency and must demonstrate his or her incompetency by a preponderance of the evidence.” Bradley, 644 F.3d at 1268 (distinguishing United States v. Makris, 535 F.2d 899, 905–06 (5th Cir. 1976)); see also Cooper v. Oklahoma, 517 U.S. 348, 362, 116 S.Ct. 1373, 1380, 134 L.Ed.2d 498 (1996) (“Congress has directed that the accused in a federal prosecution must prove incompetency by a preponderance of the evidence.”).²

The Court is often confronted with experts whose evaluation of the Defendant produces diametrically opposed findings. When this occurs, the Court is guided by the following principle:

The determination of whether a defendant is mentally competent to stand trial is a question left to the sound discretion of the district court, with the advice of psychiatrists [or other mental health professionals]. The medical opinion of experts as to the competency of a defendant to stand trial is not binding on the court, since the law imposes the duty and responsibility for making the ultimate decision of such a legal question on the court and not upon medical experts.

United States v. Abernathy, No. 08-20103, 2009 WL 982794, at *3 (E.D. Mich. Apr. 13, 2009) (alteration in original) (quoting Fed. Proc. § 22:549 (Hearing and Determination as to Competency; United States v. Davis, 365 F.2d 251, 256 (6th Cir. 1966)). Moreover, when “[f]aced with diametrically opposite expert testimony, a district court does not clearly err simply by crediting one opinion over another where other record evidence exists to support the conclusion.” Battle v. United States, 419 F.3d 1292, 1299 (11th Cir. 2005) (citations and internal quotations omitted). “Absent a showing that an evaluation by an expert was professionally inadequate, a court does not err by relying on an expert's report.” United States v. Deruiter, 2:14-cr-46-FtM-38MRM, 2017 WL 3308967 at *3 (M.D. Fla. Aug. 3, 2017) (citing Bradley, 644 F.3d at 1268).

III. DISCUSSION

A. The Report & Recommendation

The Magistrate Judge observed that “[t]he specific issue in this case is whether the severity of the Defendant's cognitive impairments prevents him from being able to participate and assist in presenting his defense.” (Doc. 104, p. 4). The Defendant does not object to this finding, and so the Court finds the Defendant's impairments do not prevent him from understanding the nature and consequences of the proceedings against him. The issue is whether his impairments render him mentally incompetent to assist properly in his defense, or, as the Court framed the issue in Dusky, whether the Defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.

In determining whether the defendant has sufficient present ability to consult with [his] lawyer, courts have considered the following factors:

1) the state of the defendant's memory, since he should be able to relate pertinent facts, names and events to his attorneys (although the defendant need not remember every fact that trial might encompass);

2) the extent to which relevant evidence could be reconstructed from communications made by the defendant to his counsel or from independent sources;

3) an adequate ability to review and evaluate documents and other written evidence bearing on the case;

4) an appreciation of the Government's evidence against him;

5) the ability to consider the wisdom of taking a course other than standing trial on the merits;

6) the ability to decide objectively whether to exercise his constitutional right to take the stand, and if he does take the stand, the ability to testify in an intelligent, coherent and relevant manner;

7) the ability to remain sufficiently alert and responsive so as to follow and recognize any discrepancies in the testimony of witnesses; and

8) the ability to discuss the testimony with his attorneys and to postulate questions to the witnesses through counsel.

United States v. Giraldo, Case No. 2:09-cr-85, 2011 WL 7946037, at *3 (M.D. Fla. October 24, 2011) (citing United States v. Derisma, No. 2:09-cr-64, 2011 WL 3878367, at *3 (M.D. Fla. June 27, 2011)).

After summarizing the testimony of the Defendant's experts, Drs. Bennett and Dr. Ingulli, and the Government's expert, Dr. Otto, the Magistrate Judge found that “[u]nquestionably, Defendant has a substantial history of medical conditions and problems that have resulted in his suffering from noticeable cognitive and memory impairments.” (Doc. 104, pp. 6–9). The Magistrate Judge acknowledged that all three experts employed batteries of accepted cognitive tests which “demonstrate the presence of impairments, including memory deficits, difficulty in maintaining a train of thoughts and some narrative unreliability.” (Id. at p. 10). The Magistrate Judge noted that while Drs. Bennett and Otto concur as to the existence of deficits; they disagree regarding whether the Defendant has the ability to participate in his defense meaningfully. (Id.). The Magistrate Judge further observed that both experts were able to complete their extended testing and evaluation of the Defendant, but they differed in their assessment as to his ability to maintain a cogent, reliable conversation.³ (Id.).

The Magistrate Judge found that, as suggested by Dr. Otto, the Court should look to the Defendant's “real-world behavior and activity.” (Doc. 104, p. 10). The Magistrate Judge observed that the Defendant is not institutionalized, although he relies on friends to assist in dealing with everyday life. (Id.). The Defendant has complied with the conditions of pretrial release and has “demonstrated the ability to converse rationally and responsively in extended conversations about his legal situation and other topics” and “is able to make rational and considered decision as to how to proceed with respect to major trial choices.” (Id. at p. 11).

The Magistrate Judge acknowledged that the experts’ assessment of the Defendant “may vary based on many factors, including the nature of the impairment, how often a test is administered, whether the subject is having a ‘good day’ or a ‘bad day,’ and the personality and style of the examiner.” (Id.). The Magistrate Judge stated that this is a “close case,” but on balance found the Defendant is able to participate in pre-trial and trial processes with “some assistance and accommodation at trial.” (Id. at pp. 11–12). The Magistrate Judge deferred to Defendant's counsel to fashion reasonable accommodations, but the Court suggested “shortened trial days, slower pace of questioning and more frequent breaks, allowing repetition, allowing frequent consultation, using second-chair counsel, and providing real-time transcription.” (Id. at p. 12).

B. Defendant's Objections

The Defendant objects to the Magistrate Judge's determination that he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. (Doc. 105, p. 2). The defense argues that the Magistrate Judge failed to articulate which accommodations are adequate to ensure the Defendant's ability to assist properly in his defense at trial, did not explain why Dr. Otto found a patient whose deficits are “virtually identical” to the Defendant's to be incompetent, failed to address “real-world examples of Defendant's incompetency which overweighing his basic ability to function,” and does not address the Defendant's “long-term experiences with the legal system.” (Id.).

1. Accommodations

Before addressing the Defendant's objection, it is helpful to summarize the testimony regarding the Defendant's cognitive impairments and their permanency. Defendant's medical records show that in December 2017, he suffered a stroke and the attending neurologist recommended inpatient admission. (Doc. 68, p. 6). The Defendant's medical records include a CT scan of his brain that revealed “small subtle acute to early subacute striatocapsular infarct involving the posterior body of the caudate nucleus, left corona radiata, and the posterior limb left internal capsule.” (Id.). Dr. Bennett reported that “[s]traitocapsular infarcts can lead to aphasia ․ and may also cause ․ memory loss.” (Id.). This objective finding was confirmed when Dr. Bennett employed the Montreal Cognitive Assessment (“MoCA”), and the Defendant scored 13 out of 30, indicative of moderate cognitive impairment.⁴ (Id. at pp. 5–6).

Dr. Bennett noted that the Defendant recalled three out of five target words he was given, but after four minutes, he could recall only one out of three target words. (Id. at p. 2). Dr. Bennett testified at the competency hearing that when the Defendant was given the five target words, he could not recall any after five minutes. (Doc. 98, at 17:22 to 18:19). Dr. Bennett opined that the Defendant has deficits in cognition, word-finding, loses his train of thought, and has deficits in delayed recall. (Id.; Doc. 98, at 17:15–19). Dr. Bennett expressed concern regarding the Defendant's “ability to testify with coherence and relevance and to maintain necessary attention and concentration.” (Id. at p. 5).

While the Defendant is able to understand the nature and consequences of the proceedings, Dr. Bennett attributes this to his long-term memory remaining intact. (98, at 23:19 to 24:5). Dr. Bennett opined that the Defendant is not competent to proceed due to his neurocognitive disorder, resulting in significant word-finding difficulty, frequent loss of concentration, and his inability to absorb and retain new information. (Id. at 7:25 to 8:4; 24:6–13). Dr. Bennett stated in her report that the Defendant's “daily functioning and cognitive ability is likely to vacillate, as is common in people with memory impairment.” (Doc. 68, p. 5). As such, his “ability to keep up in court will depend on his cognitive functioning on a given day.” (Id.).

The Defendant's second expert witness, Dr. Inguilli, is the only expert to conduct a comprehensive neuropsychological evaluation of the Defendant. (Doc. 92, p. 1). Dr. Inguilli's findings corroborate Dr. Bennett's assessment. Dr. Inguilli's testing confirmed the Defendant's performance on Attention and Working Memory fell within the Borderline range, and his processing speed and mental flexibility fell within the Extremely Low range. (Id.). The Defendant's Verbal Reasoning domain fell in the average range, and he scored Low Average for visual learning. (Id.). Dr. Inguilli also concluded that the Defendant exhibits a “very limited learning curve and did not benefit significantly from repeated exposure to new learning.” (Id. at p. 4). Whether information is acquired verbally or visually, the Defendant forgets most of the information after 30 minutes or less. (Id.).

Dr. Inguilli opined that the Defendant's processing speed is extremely slow, and he is easily overwhelmed and confused when presented with too much information at once. (Id. at p. 5). Dr. Inguilli testified at the competency hearing that the Defendant demonstrated the most significant deficit in attention and working memory, processing speed, visual memory, and dominant motor performance. (Doc. 98, at 72:21–25). The Defendant's verbal memory scored almost two standard deviations below the mean. (Id.). Dr. Inguilli testified that the Defendant's attention and ability to concentrate are “very weak,” and the heavier the burden on working memory, the more difficulty he has. (Id. at 73:20 to 74:4). Accordingly, the Defendant is “extremely slow in completing tasks.” (Id. at 73:10–19). His processing speed decreases as tasks become more complex. (Id.). Even on fairly simple tasks, such as Trails, where the Defendant must go “from 1 to A, 2 to B, 3 to C, and so forth, he needed frequent reminders.” (Id.).

On the Rey Auditory Verbal Learning Test, which evaluates verbal memory, the Defendant scored 0 out of 15 words (Id. at 74:97–24). The Defendant scored in the bottom two percent for processing speed and mental flexibility, the bottom four percent on verbal memory, the bottom two percent on visual memory, and the bottom 18 percent on visual reasoning (Id. at 75:9–24). Dr. Inguilli testified that the Defendant suffers from major neurocognitive disorder, and he forgets most information that he learns, even when it is within a larger context like a story. (Id. at 75:25 to 76:12; 81:11–22). When asked how these deficits will affect the Defendant's ability to assist his attorneys or participate at trial, Dr. Inguilli said, “I think the memory speaks for itself. My bigger concern is the processing speed and ability to keep up.” (Id. at 83:20 to 84:10). Dr. Inguilli opined that notetaking will not be helpful, because the Defendant cannot take a note without missing testimony. (Id.). Dr. Inguilli explained that the DSM-5 classifies mild and major neurocognitive disorders, and when one has two or more standard deviations below the norm, one is classified as having a major neurocognitive disorder, as here. (Id. at 86:1–22). Dr. Inguilli confirmed that major neurocognitive disorder cannot be reversed. (Id. at 86:23–24; 109:5–14).

The Government's expert, Dr. Otto, administered the MoCA, the California Verbal Learning Test-3, the Dot Counting test, and the Inventory of Legal Knowledge test. (Doc. 82, p. 2). Dr. Otto reported that the Dot Counting test and the Inventory of Legal Knowledge tests reflected no effort by the Defendant to feign cognitive impairment. (Id. at p. 4). On the MoCA the Defendant scored better than when Dr. Bennett administered the test. (Id.). However, Dr. Otto acknowledged that if the same version of the MoCA was administered by Dr. Bennett, the Defendant may have improved by virtue of prior testing. (Doc. 98, at 137:9–25). Dr. Otto reported that the Defendant's performance on the California Verbal Learning Test-3 reflected significant deficits in verbal learning and memory functioning. (Doc. 82, p. 4).

Dr. Otto testified at the competency hearing that he found “meaningful deficits” in the Defendant's memory, planning and visual motors.” (Doc. 98, at 121:21 to 122:4). Dr. Otto stated that the Defendant scored below 1 and 2 standard deviations, below average, on the California Verbal Learning Test-3, which shows “significant deficits in memory.” (Id. at 122:5–20). Dr. Otto found the Defendant competent to proceed notwithstanding the results of the neuropsychological evaluation conducted by Dr. Inguilli, stating that the “bottom line is real-world function always trumps test results.” (Id. at 123:19–20). Dr. Otto did not cite literature or studies to support this premise. Instead, Dr. Otto reiterated the Defendant's ability to understand the charges, the possible penalties, and possible legal strategies as evidence of competence. (Id. at 123:20 to 124:4). Dr. Otto did not explain how the Defendant's ability to discuss the legal system, the role of the prosecutor, defense, and judge, or the benefit of pleading guilty in response to questions asked in a conference room equates with the Defendant's ability to process testimony in real-time in a courtroom environment considering his documented deficits in processing speed and memory.

Turning back to the objections asserted by the defense, counsel contends that the evidence supports the conclusion that the Defendant's cognitive issues cannot be accommodated as suggested in the Report and Recommendation. (Doc. 105, p. 4). The Court agrees with the defense that the Defendant's severe memory deficits, including his inability to retain recently learned information even with repetition, render him incompetent to proceed. As Dr. Inguilli testified, the Defendant cannot process complex information and, even if he could keep up, he cannot retain newly learned information. As Dr. Bennett opined, the Defendant's deficits are such that his daily functioning and cognitive abilities are likely to vacillate, as will his ability to keep up at trial. How does the Court discern when the Defendant's cognitive abilities have ebbed below a level required to ensure due process?

The Report and Recommendation defers to defense counsel to fashion reasonable accommodations while suggesting shortened trial days (how short?), a slower pace (how slow?), and repetition — but the Defendant cannot retain new information even if repeated. The Report also suggests frequent consultation between the Defendant and counsel could serve as an accommodation, but it is unclear how frequent the consultation must be when the Defendant cannot retain newly learned information. Similarly, it is unclear how the availability of real-time transcriptions will accommodate the Defendant, when he cannot take notes while listening to testimony. In short, the Defendant's deficits, particularly slow processing speed and limited short-term memory, preclude accommodation in the relatively fast-paced and interactive modern courtroom. As our colleague in the Northern District of Georgia observed, “[t]he question of whether a defendant is competent to stand trial is based on a regular or normal trial that proceeds at a regular or normal pace. Granting accommodations to slow the pace of proceedings and to try to explain the meaning of legal phrases [or testimony] is simply acknowledging that Defendant is not competent.” United States v. Spear, No. 1:13-CR-0432-WBH, 2015 WL 14097572, at *2 (N.D. Ga. Nov. 2, 2015).

When the Court applies the test outlined in Giraldo, the Defendant fails the first, third, sixth, seventh, and eighth factors. He lacks sufficient short-term memory and processing speed to relate pertinent facts, names, and events arising at trial to his counsel; his memory deficit precludes him from adequately reviewing and evaluating documents and other written evidence bearing on the case; he is unable to testify in an intelligent, coherent and relevant manner; he is incapable of recognizing (or retaining) any discrepancies in the testimony of witnesses, and he these deficits prevent him from discussing trial testimony with counsel and from formulating questions for the witnesses.

In short, no accommodations can restore the Defendant's ability to process information and retain it sufficiently to consult with his lawyer at trial with a reasonable degree of rational understanding. The Defendant's ability to discuss the legal system, the roles of its players, and the pros and cons of pleading guilty versus a jury trial in the comfort of an interview room and based, at least in part, on prior experience, does not mean he is competent to participate in a jury trial. Accordingly, the Court accepts the testimony of Drs. Bennett and Inguilli over Dr. Otto on the issue of competency to proceed. The Defendant's objection to the Report and Recommendation is, therefore, SUSTAINED.

2. Failure to Account for Similar Defendant found Incompetent

The Defendant objects to the Magistrate Judge's recommendation because the Report and Recommendation does not address or account for the fact that Dr. Otto found another individual incompetent to proceed under substantially similar circumstances. (Doc. 105, pp. 5–7, citing Doc. 103, pp. 12–13). The defense submitted for the Magistrate Judge's consideration Dr. Otto's evaluation of an individual charged with fraud. (Doc. 103–2). Dr. Otto's evaluation of this person included the review of several documents not before the Magistrate Judge, to include:

St. Louis University Mental Status Examination (12/16/22)

Wechsler Abbreviated Scale of Intelligence-II (12/16/22)

Test of Memory Malingering (12/16/22)

21 Item Word List (12/16/22, 2/24/23)

Reliable Digit Span (12/16/22)

St. Joseph's Hospital records

Healthcare records summarizing treatment by primary care physicians

Report summarizing psychological evaluation conducted by Dr. Mchlus

Results of psychological testing administered by Dr. Machlus

(Doc. 103–2, p. 2).

Dr. Otto's report does not discuss the results of the psychological testing or the relevance of the medical records that he reviewed, and the defense did not question Dr. Otto during the Defendant's competency hearing to lay a foundation that his prior client and the Defendant have deficits that are substantially similar. At best, the Defendant and the individual examined by Dr. Otto and found incompetent both suffer from cognitive impairments, likely the result of dementia. (Id. at p. 9). The Magistrate Judge lacked sufficient information from which to draw a comparison and did not err by omitting reference to Dr. Otto's evaluation of a different individual found to be incompetent. The Defendant's objection is OVERRULED.

3. Failure to Address Defendant's Real World Behavior that Weighs Against Competency & Failure to Account for Defendant's Experience with the Legal System

The Defendant contends that the Magistrate Judge failed to adequately consider his “real-world behavior” that weighs against a finding of competency, including that he arrived for an appointment with Dr. Bennett after her report was finished, and provided incorrect medical history. (Doc. 105, pp. 8–9). While the Magistrate Judge may not have discussed these specific behaviors, the Report discusses the Defendant's cognitive impairment, specifically his memory deficit. (Doc. 104, pp. 6-10). The Magistrate Judge need not parse the record as finely as suggested by the defense when accounting for competing pieces of evidence. For the same reason, the Magistrate Judge is not obligated to note the Defendant's experience with the criminal justice system in the Report, particularly where, as here, the Defendant's ability to understand the nature and consequences of the proceedings against him is not disputed.⁵ The Defendant's objections are OVERRULED.

C. Insanity Defense Reform Act

Section 4241(d) of the Insanity Defense Reform Act provides as follows:

(d) Determination and disposition.--If, after the hearing, the court finds by a preponderance of the evidence that the defendant 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 against him or to assist properly in his defense, the court shall commit the defendant to the custody of the Attorney General. The Attorney General shall hospitalize the defendant for treatment in a suitable facility—

(1) for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward; and

(2) for an additional reasonable period of time until—

(A) his mental condition is so improved that trial may proceed, 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; or

(B) the pending charges against him are disposed of according to law; whichever is earlier.

If, at the end of the time period specified, it is determined that the defendant's mental condition has not so improved as to permit the proceedings to go forward, the defendant is subject to the provisions of sections 4246 and 4248.

18 U.S.C. § 4241(d) (emphasis added).

Having found by a preponderance of the evidence that the Defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to assist properly in his defense, “the court shall commit the defendant to the custody of the Attorney General ․ for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward.” 18 U.S.C. § 4241(d)(1) (emphasis added). The statute is clear, unambiguous, and mandatory. See United States v. Donofrio, 896 F.2d 1301, 1302 (11th Cir. 1990) (holding that § 4241(d) is mandatory and that district courts do not have the authority to circumvent the hospitalization); see also United States v. Pollock, No. 3:11-cr-71-J-32JRK, 2014 WL 5782778, at *12 (M.D. Fla. Nov. 6, 2014) (all holding that the commitment provisions of 18 U.S.C. § 4241(d) are mandatory and courts do not have the authority or discretion to ignore them). Accordingly, the Defendant must be committed for a reasonable period of time not to exceed four months. But to what end?

The experts agree that the Defendant's neurocognitive deficits resulting from dementia will not improve and are likely to worsen. While the Court is obligated to order that the Defendant be committed to the custody of the Attorney General pursuant to 18 U.S.C. § 4241(d), there is not realistic possibility that within four month he will be restored to competency. Therefore, the only justification for commitment is to allow the Attorney General to evaluate the Defendant to determine if he “is 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.” 18 U.S.C. § 4246(a). Should the Attorney General make this finding, the Court must conduct a hearing to determine whether his release would create a substantial risk of bodily injury to another person or serious damage to the property of another. Id.

The Court lacks the authority to conduct a “dangerousness proceeding” without a referral by the Attorney General pursuant to § 4246(a). “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Thus, the court only possesses the jurisdictional authority “authorized by [the] Constitution and statute.” Id. (citation omitted). The language of § 4246 also does not make referral for a dangerousness assessment mandatory in all cases where a defendant is found incompetent to stand trial. Rather, § 4246(a) provides that a dangerousness hearing cannot be held absent first receiving a certificate from the BOP that the defendant is dangerous. See 18 U.S.C. § 4246(a) (“If the director of a facility in which a person is hospitalized certifies that a person in the custody of the Bureau of Prisons ․ is 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 ․ The court shall order a hearing․”). Stated differently, there is nothing in the text of § 4246 that authorizes federal courts to hold a dangerousness hearing without a certificate from the BOP. See United States v. Chappell, No. 8:18-cr-344-VMC-AAS, Doc. No. 184, at 6 (M.D. Fla. Jan. 11, 2023), report and recommendation adopted, Doc. No. 188 (M.D. Fla. Jan. 27, 2023) (“No provision of Section 4246 unambiguously grants federal courts the authority to hold a dangerousness hearing without a dangerousness certificate.”).

There is also nothing in § 4246 that expressly authorizes a court to order the director of a medical facility to issue such a certificate. Rather, § 4246(a), which is titled “Institution of proceeding,” starts with the requirement that the director at the appropriate BOP facility must first issue a certificate. Thus, absent a certificate from the BOP, nothing in § 4246 permits a court to sua sponte detain and/or order a dangerousness evaluation. Rather, the statutory language makes clear that a court may only engage in § 4246 proceedings once the BOP issues an appropriate certificate.

In the instant case, the Defendant is charged with having downloaded from the internet six images purported to constitute child pornography. Images two through four are part of a series entitled Six Nudes of Neal, and images five and six are part of an exhibition shown in 1979. (See Doc. 76, p. 7). Image one is also arguably artistic and thus outside the definition of child pornography. (Id.). The Attorney General is, therefore, unlikely to find that the possession of these six images supports a determination that the Defendant's release poses a substantial risk of bodily injury to another person or serious damage to the property of another.

In that the Defendant's deficits are permanent and progressive, remanding him to the Attorney General for evaluation is punitive and not restorative. Further, since the likelihood of the Attorney General referring the Defendant for a dangerousness proceeding is low, detaining him for up to four months is unnecessary. While the statute is clear that an order committing the Defendant for evaluation is mandatory, commitment is moot should the Government dismiss the charges. The Court will stay the enforcement of its Order directing the Defendant to surrender to the custody of the Attorney General for placement in a suitable facility for treatment for 60-days to allow the Government to evaluate whether dismissal is appropriate.

IV. CONCLUSION

It is ORDERED AND ADJUDGED as follows:

1. The Defendant's Objection to the Report and Recommendation (Doc. 105) is SUSTAINED.

2. The Defendant is found to be INCOMPETENT TO STAND TRIAL.

3. The Defendant is committed to the custody of the Attorney General for placement in a suitable facility for treatment and psychiatric and psychological examinations by a designated licensed or certified psychiatrist and/or psychologist for a reasonable period, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward.

4. The Order of Commitment is stayed for SIXTY DAYS to permit the Government to determine whether dismissal of the indictment is proper.

DONE AND ORDERED in Orlando, Florida on May 7, 2025.

REPORT AND RECOMMENDATION

This cause comes before the Court on the filing by Defendant seeking a determination as to his competence to stand trial Doc. 63. The matter has been referred to the United States Magistrate Judge for a Report and Recommendation. An evidentiary hearing was held on January 30, 2025, and the matter is fully briefed.

Upon consideration, I respectfully recommend that Defendant be found competent to proceed and that the case be rescheduled for trial.

I. BACKGROUND

Defendant was charged in a four count indictment with unlawful activities involving child pornography under various provisions of 18 U.S.C. § 2252A. He was initially seen and arraigned on February 24, 2024. He was released from custody subject to various conditions. He has remained on release for more than a year without significant issues. The trial setting has been continued due to some motion practice unrelated to the present matter, as well as consideration of the matter now before the Court. On October 25, 2024, Defendant filed a motion seeking determination of his competence to stand trial.

Defendant retained psychologist Dr. Chelsea Bennett to evaluate his competency, which she did on September 12, 2024, preparing a report dated October 8, 2024 (“Bennett Report”). The parties filed a joint motion on November 1, 2024, requesting the Court reset the Defendant's competency hearing to allow psychologist Dr. Randy K. Otto, retained by the United States, time to evaluate the Defendant. Doc. 70. The Court granted the motion, and Dr. Otto evaluated the Defendant on November 25, 2024, and submitted his report on December 1, 2024 (“Otto Report”). Docs. 71 – 74. Counsel for the Defendant later retained neuropsychologist Dr. Lamar Ingulli to evaluate the Defendant, based on Dr. Bennett's report and recommendation. Doc. 77. Dr. Ingulli evaluated the Defendant on December 10, 2024, and later submitted a report (“Ingulli Report”).

On January 30, 2025, in accordance with 18 U.S.C. §§ 4241(a) and 4247(d), the Court held an evidentiary hearing on the issue of the Defendant's mental competency. Doc. 95; Transcript at Doc. 98 (“Tr.”). The reports of Dr. Bennett, Dr. Ingulli, and Dr. Otto were received into evidence as exhibits by the Court without objection. Docs. 95 – 97. The Defendant called Dr. Bennett and Dr. Ingulli as witnesses, and both were cross-examined by the United States. Docs. 95 and 98. The United States called Dr. Otto as a witness, and counsel for the Defendant cross-examined him. Id. At the conclusion of the hearing, the Court instructed the parties to submit memoranda and proposed findings to the Court related to the issue of the Defendant's competency based on the evidentiary hearing. Id.

I. LEGAL STANDARD

“A defendant has a due process right not to be tried or convicted while incompetent.” United States v. Ramirez, 491 F. App'x 65, 71 (11th Cir. 2012)¹ (citing Drope v. Missouri, 420 U.S. 162, 171-72 (1975)). The federal competency standard is set forth in 18 U.S.C. § 4241, which provides:

If, after [a] hearing, the court finds by a preponderance of the evidence that the defendant 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 against him or to assist properly in his defense, the court shall commit the defendant to the custody of the Attorney General.

18 U.S.C. § 4241(d).

Section 4241 codifies the standard for competency set forth by the United States Supreme Court in Dusky v. United States, 362 U.S. 402 (1960): “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” See also United States v. Bradley, 644 F.3d 1213, 1268 (11th Cir. 2011) (quoting United States v. Hogan, 986 F.2d 1364, 1371 (11th Cir. 1993)).

The specific issue in this case is whether the severity of the Defendant's cognitive impairments prevents his being able to participate and assist in presenting his defense. Notably, this is not a case of claimed psychosis or other mental health condition (e.g., delusional thinking). It is not disputed that Defendant understands the nature of the proceedings and communicates in rational terms. Nor is there any suggestion of malingering or exaggeration of symptoms. The record clearly shows he has been cooperative and forthcoming with the medical examiners.

Accordingly, the focus here is on the second issue identified in Dusky. In that regard, the Court is directed to look at the following.

In determining whether the defendant has sufficient present ability to consult with [his] lawyer, courts have considered the following factors:

1) the state of the defendant's memory, since he should be able to relate pertinent facts, names and events to his attorneys (although the defendant need not remember every fact that trial might encompass);

2) the extent to which relevant evidence could be reconstructed from communications made by the defendant to his counsel or from independent sources;

3) an adequate ability to review and evaluate documents and other written evidence bearing on the case;

4) an appreciation of the Government's evidence against him;

5) the ability to consider the wisdom of taking a course other than standing trial on the merits;

6) the ability to decide objectively whether to exercise his constitutional right to take the stand, and if he does take the stand, the ability to testify in an intelligent, coherent and relevant manner;

7) the ability to remain sufficiently alert and responsive so as to follow and recognize any discrepancies in the testimony of witnesses; and

8) the ability to discuss the testimony with his attorneys and to postulate questions to the witnesses through counsel.

United States v. Giraldo, Case No. 2:09-cr-85, 2011 WL 7946037, at *3 (M.D. Fla. October 24, 2011) (citing United States v. Derisma, No. 2:09-cr-64, 2011 WL 3878367, at *3 (M.D. Fla. June 27, 2011)).

Defendant's Condition

Mr. Valentine is a 69-year-old man who suffers from a multitude of health issues. In 2017, Mr. Valentine suffered a stroke. (Ingulli R. at 6.) “Since that time he has continued to experience right-sided weakness, balance problems, impaired handwriting, memory impairment, and difficulty keeping track in conversations.” (Id.) In 2020, Mr. Valentine again was hospitalized for sepsis due to acute appendicitis. (Bennett R. at 6–7.) During this hospitalization, he received a brain CT scan that showed degenerative changes in his brain's white matter due to stroke. (Id.; Ingulli R. at 3.) During the 2020 hospitalization, Mr. Valentine was involuntarily committed. (Bennett R. at 7.) He also stayed an extra ten days in the hospital to have a medical decision-making capacity evaluation. (Id.) Mr. Valentine also self-reports a car accident about ten years ago in which he was clinically dead for seventeen minutes. (Ingulli R. at 3; Bennett R. at 2.) At present, Mr. Valentine continues to suffer from a long list of health issues, including several heart-related problems (e.g., hypertensive heart disease, ascending aortic aneurysm, coronary atherosclerosis). (Bennett R. at 4.) He is also diagnosed with bipolar disorder and has been prescribed at least nine different psychiatric medications in the past. (Id.)

MEDICAL EVIDENCE

As noted above, the parties presented reports and testimony from three well-qualified experts, each of whom personally examined the Defendant. Their testimony largely tracked their reports, which were received as Exhibits. Pertinent portions of their opinions are summarized as follows.

Chelsea Bennett, Psy.D., is a licensed psychologist retained by the Defendant. Following her forensic interview and testing of the Defendant, she opined:

SUMMARY AND OPINION: Mr. Valentine was referred by his attorney for an evaluation to assess his competency to stand trial. Available records reviewed indicate Mr. Valentine has received treatment for bipolar disorder since his 30's and has also required recent medical treatment for a cerebrovascular accident in 2017 and a lengthy hospitalization for altered mental status and acute encephalopathy due to sepsis in 2020. His medical history is significant for hypertension, hyperlipidemia, coronary artery disease, cirrhosis, and emphysema. Mr. Valentine also reported a history of a car accident in which he drowned and was “clinically dead for 17 minutes.” At the time of the current evaluation, Mr. Valentine reported he was prescribed multiple medications by his general practitioner, including Lisinopril to treat high blood pressure) and Lexapro (an antidepressant). Notably, Mr. Valentine presented with significant cognitive and memory deficits during the current evaluation including losing his train of thought, word-finding difficulty, and deficits in delayed recall. Mr. Valentine was observed to lose his train of thought when responding to nearly every question posed of him and would state, “What was I saying?” or “Where was I?” He required for the evaluator to read the portion of the response he had provided before he was able to continue his response. He was administered the Montreal Cognitive Assessment (MoCA), a cognitive screening test, and obtained a score of 13 out of 30, indicative of moderate cognitive impairment. He evidenced deficits in delayed recall, verbal fluency, sentence repetition, attention, visuospatial and executive functioning, abstraction, and orientation. Mr. Valentine displayed his most significant deficits in delayed recall, which assess his ability to learn, store, and retrieve recently presented information. Due to Mr. Valentine's advanced age and observed cognitive deficits, it is likely that he suffers from a neurocognitive disorder. A review of thorough medical records, if available, it would be beneficial to assess whether his medical providers have observed a change in his cognitive functioning. During the competency-related portion of the interview, Mr. Valentine presented with adequate factual knowledge regarding his legal situation and the legal system, which would be expected given his history of experience in the criminal justice system. However, given the cognitive and memory deficits observed during the interview, there is concern regarding his ability to retain information across meetings with his attorney and consult with his attorney with a reasonable degree of rational understanding, to attend to courtroom proceedings, and to testify in a relevant and coherent fashion. During the current interview, Mr. Valentine often perseverated on his frustration in not being able to review discovery materials in his case, yet his attorney informed the undersigned that his client had reviewed discovery. Mr. Valentine's attorneys also expressed concern that Mr. Valentine will often ask in the middle of his response what question was posed to him and he has been unable to recall information across meetings. Due to Mr. Valentine's observed cognitive and memory impairments and results of psychological testing, it is the recommendation of the undersigned that the court find Mr. Valentine incompetent to stand trial due to cognitive deficits likely associated with a neurocognitive disorder.

Considering Mr. Valentine's advanced age, medical history, and observed memory impairment, his prognosis for restoration is poor. His performance on a cognitive screening measure was indicative of moderate cognitive impairment, likely related to a neurocognitive disorder. Notably, individuals with a neurocognitive disorder are not expected to improve despite intervention given the progressive nature of the disorder. Thus, it is also the opinion of the undersigned that Mr. Valentine is unlikely to attain the capacity to proceed to trial in the foreseeable future.

Doc. 68 at 7-8.

The defendant's other witness was Lamar Ingulli, Psy.D., a clinical neuropsychologist. She conducted a clinical interview with the Defendant and performed a variety of diagnostic tests as part of her evaluation. She summarized her recommendations:

RECOMMENDATIONS

1. Mr. Valentine demonstrated weaknesses in attention and working memory. He may become easily distracted from tasks and may require reminders/prompting to re-engage in requests. Important instructions should be presented both visually and verbally. He may forget to follow through with requests; therefore, reminders may be necessary.

2. Given [Mr.] Valentine's level of memory impairment is signficant. He does not benefit much from repeated exposure for new information and after a short period of time forgets most of the information he learned. As such, he may have minimal benefit from memory aids such as repetition, information being presented in a multisensory format with a limited amount of information provided at one time, and rehearsal of information.

3. Mr. Valentine is encouraged to invest in a daily planner or electronic based calendar/planner to record important dates, events, etc. Many cell phones have this feature as well as ‘voice memo’ and ‘notes’ applications which would also be helpful memory aids.

4. Limitations in cognitive flexibility may result in Mr. Valentine struggling to generate new problem-solving techniques and/or applying old problem-solving strategies to new problems. He may need help formulating problem-solving strategies and implementing them in an organized fashion.

5. His processing speed is extremely slow, and he may get easily overwhelmed and confused when presented with too much information at once. Thus, it is recommended that he be given information in small chunks so that he can adequately process it. One to two step directions should be used as this may help Mr. Valentine understand and remember what he is to do. He may miss important parts of directions/instructions due to his slow processing and, thus, may require repetition for complete understanding.

Doc. 92 at 5.

The government presented Randy K. Otto, Ph.D., also a licensed psychologist. Following his clinical interview and testing of Mr. Valentine, Dr. Otto agreed that, while Mr. Valentine has notable cognitive impairments, he nonetheless exhibited sufficient understanding of the criminal processes to be able to participate in a trial and assist in his defense. Dr. Otto specifically noted Mr. Valentine's grasp and appreciation of the charges, evidence, and possible sanctions. Mr. Valentine understood the operation of the legal system and the roles of all those involved. Dr. Otto noted:

Mr. Valentine's Capacity to Make Rational, Self-Interested Decisions, Communicate and Work with Counsel, and Understand and Participate in Legal Proceedings

Mr. Valentine voiced two potential legal strategies that were rational and consistent with his stated goals and claims, adding that sometimes one had to “fight” in court as a matter of principle. This reflects his ability to make rational and self-interested decisions and collaborate with counsel. His explanation of the evidence against him was easy to follow and not tainted by symptoms of mental disorder. He should be able to offer a similar account of the matters leading to his arrest if he goes to trial and exercises his right to testify.

Mr. Valentine was involved and maintained his attention and concentration throughout the evaluation, demonstrating functioning that appeared less impaired than that described by Dr. Bennett. He demonstrated no difficulty understanding what was presented to him or making himself understood, and all of our discussion was relevant and on point. As noted above, Mr. Valentine did sometime lose his train of thought but, when this occurred, he quickly returned to the topic at hand and resumed speaking on point when reminded what was being discussed.

Doc. 82 at 9.

DISCUSSION

Unquestionably, Defendant has a substantial history of medical conditions and problems that have resulted in his suffering from noticeable cognitive and memory impairments. Acknowledging that Defendant has limitations, the question is the extent of the limitations in the specific context of pre-trial and trial proceedings and whether accommodations are available to ameliorate these difficulties so that he is able to proceed.

The three professional evaluations of Defendant, including batteries of accepted cognitive tests, demonstrate the presence of impairments, including memory deficits, difficulty in maintaining a train of thoughts and some narrative unreliability. Drs. Bennett and Otto concur as to these conclusions to a general degree, while sharply disagreeing regarding the ultimate issue of Defendant's ability to participate in his defense meaningfully. Dr. Ingulli's neuropsychological examination provided significant confirmation of the existence of Defendant's cognitive impairments and the biological basis for the deficits. Notably, however, Dr. Ingulli did not offer an opinion on the ultimate question of legal competency as that was outside her purview in this case.

Both Dr. Bennett and Dr. Otto were able to complete their extended testing and evaluations of the Defendant. He was cooperative and responsive in both instances. The results of standard testing as administered by the psychologists were not identical but consistently showed definite levels of impairment. Likewise, the examiners’ clinical impressions of Defendant's conversational deficits differed as to the overall ability of Defendant to maintain a cogent reliable conversation.

In addition to the expert evidence, the Court must also look to Defendant's real-world behavior and activity. The Defendant is not institutionalized, though he relies on friendly assistance in dealing with everyday life. He has complied well with the strict Court-ordered conditions of release for over a year. He has demonstrated the ability to converse rationally and responsively in extended conversations about his legal situation and other topics. He fully understands the nature of the proceedings and possible consequences. He has actively, if not always accurately, participated in aspects of his defense, including discovery matters. He is able to make rational and considered decisions as to how to proceed with respect to major trial choices.

This is not a complex criminal case, nor does it entail an extended factual basis in either duration or level of detail. The elements of the charged offenses are straightforward. The main corpus of evidence is electronic records and not extensive testimony or any complicated set of events or activities. In this way, the cognitive demands for a participating defendant are less challenging than in many cases.

Applying the guidance from Dusky, the Court looks to the expert evidence as well as these practical considerations. In reviewing the expert conclusions, the Court notes that psychological testing and evaluation, while based on accepted scientific principles, are not hard and fast. Test results and professional assessments may vary based on many factors, including the nature of the impairment, how often a test is administered, whether the subject is having a “good day” or a “bad day,” and the personality and style of the examiner.

Mindful of the limitations of even well-qualified expert opinions and recognizing that perfection is unattainable, the Undersigned views this as a close case in applying the constitutional standard for a fair trial comporting with due process. On balance, I conclude Defendant, with some assistance and accommodation at trial, is sufficiently able to participate in pre-trial and trial processes so that the case can go forward.

With respect to pre-trial matters such as reviewing evidence and deciding whether to maintain a not-guilty plea, Defendant is ably represented by experienced counsel who recognize his limitations. His deficits do not prevent his meaningful participation.

At trial, his undoubted cognitive deficits will require some adjustment and accommodation for the Defendant adequately to follow the proceedings and assist counsel. The precise nature of accommodations to be employed should be determined in consultation with counsel. Examples might include shortened trial days, slower pace of questioning and more frequent breaks, allowing repetition, allowing frequent consultation, using second-chair counsel, and providing realtime transcription. Other adjustments may be made as demands and difficulties arise during the course of trial. Plainly, on this record, the Defendant's ability to follow, process and react to testimony will not be ideal. However, with reasonable help, he will have an adequate opportunity for a fair trial.

RECOMMENDATION

Upon consideration of the foregoing, it is RESPECTFULLY RECOMMEND that the Defendant be found competent to proceed and the case be re-set for trial.

NOTICE TO PARTIES

A party has fourteen days to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.

Recommended in Orlando, Florida on April 8, 2025.

[illegible text]

DAVID A. BAKER

UNITED STATES MAGISTRATE JUDGE

FOOTNOTES

1.   The Government's response was due within fourteen days after service of the Defendant's objections. The Government has not responded, and the motion is subject to treatment as unopposed. See Local Rule 3.01(c).

2.   See also, United States v. Johns, 390 F. App'x 963, 970 n. 5 (11th Cir. 2010), holding that “[w]here the defendant files a motion to determine is mental competency․ the burden of proof is on the defendant.”

3.   Dr. Bennett reported the Defendant evidenced deficits in cognition, word-finding difficulty, losing his train of thought, and deficits in delayed recall. (Doc. 68, p. 2). Dr. Bennett reported that “[t]hroughout the interview, Defendant exhibited significant cognitive and memory deficits, including word-finding difficulty and frequently losing his train of thought when responding to questions.” (Id. at p. 5). Dr. Otto reported the Defendant “appeared to lose his train of thought” but “[t]he level of impairment described by Dr. Bennett in her report was not observed.” (Doc. 82, p. 3).

4.   The MoCA was designed as a “rapid screening instrument for mild cognitive dysfunction” and takes about 10 minutes to administer. www.https://championsforhealth.org/wp-content/uploads/2018/12/MOCA-8.1.8.2-English.pdf. (last visited April 29, 2025).

5.   To the extent that the Report suggests the Defendant's ability to understand the proceedings is evidence of his ability to consult with his lawyer with a reasonable degree of rational understanding, the Court sustained the Defendant's objection to the finding that accommodations could be fashioned. That is, Defendant's functioning long-term memory does not negate his deficits in processing speed and short-term memory.

1.   Unpublished opinions of the Eleventh Circuit are cited as persuasive authority. See 11th Cir. R. 36–2.

PAUL G. BYRON UNITED STATES DISTRICT JUDGE