United States v. Brennan , 928 F.3d 210 ( 2019 )

19‐262‐cr
United States v. Brennan
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________
August Term, 2018
(Argued: April 16, 2019 Decided: July 2, 2019)
Docket No. 19‐262
____________________
UNITED STATES OF AMERICA,
Appellee,
v.
DONALD BRENNAN,
Defendant‐Appellant.
____________________
Before: KEARSE, WINTER, and POOLER, Circuit Judges.
Donald Brennan brings an interlocutory appeal of the January 25, 2019,
order of the United States District Court for the Western District of New York
(Elizabeth A. Wolford, J.) committing him to the custody of the Attorney General
for psychiatric treatment and evaluation pursuant to 18 U.S.C. § 4241(d). Brennan
argues that the district court’s commitment order violates his due process rights
because a forensic psychologist, who conducted a court‐ordered psychiatric
evaluation of Brennan’s present competency to stand trial, stated that Brennan’s
disorder was degenerative and would not significantly improve with treatment.
Brennan’s argument fails, however, because, pursuant to 18 U.S.C. §§ 4241 et seq.,
commitment to assess future competency is mandatory, and only the district
court, and not a forensic psychologist, can determine whether Brennan will
regain competency in the foreseeable future. In the absence of such a decision
from the district court, Brennan’s commitment to the custody of the Attorney
General for treatment and further evaluation is reasonably related to
determining whether Brennan will regain competency in the foreseeable future,
and the district court constitutionally applied Section 4241(d)’s commitment
procedures to Brennan. We AFFIRM the order of the district court committing
Brennan to the custody of the Attorney General under Section 4241(d).
Affirmed.
____________________
MARTIN J. VOGELBAUM, Federal Public Defender’s
Office, Western District of New York, Buffalo, NY, for
Defendant‐Appellant.
2
MONICA J. RICHARDS, Assistant United States
Attorney, for James P. Kennedy, Jr., United States
Attorney for the Western District of New York, Buffalo,
NY, for Appellee.
POOLER, Circuit Judge:
Donald Brennan brings an interlocutory appeal of the January 25, 2019,
order of the United States District Court for the Western District of New York
(Elizabeth A. Wolford, J.) committing him to the custody of the Attorney General
for psychiatric treatment and evaluation pursuant to 18 U.S.C. § 4241(d). Brennan
argues that the district court’s commitment order violates his due process rights
because a forensic psychologist, who conducted a court‐ordered psychiatric
evaluation of Brennan’s present competency to stand trial, stated that Brennan’s
disorder was degenerative and would not significantly improve with treatment.
Brennan’s argument fails, however, because, pursuant to 18 U.S.C. §§ 4241 et seq.,
commitment to assess future competency is mandatory, and only the district
court, and not a forensic psychologist, can determine whether Brennan will
regain competency in the foreseeable future. In the absence of such a decision
from the district court, Brennan’s commitment to the custody of the Attorney
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General for treatment and further evaluation is reasonably related to
determining whether Brennan will regain competency in the foreseeable future,
and the district court constitutionally applied Section 4241(d)’s commitment
procedures to Brennan. We AFFIRM the order of the district court committing
Brennan to the custody of the Attorney General under Section 4241(d).
BACKGROUND
Donald Brennan is charged with failing to register as a sex offender, as
required by the Sex Offender Registration and Notification Act, when he moved
from Lake City, Florida, to Buffalo, New York. App’x at 9‐13. Brennan is required
to register as a sex offender for life following his 2014 conviction for lewd
molestation of an elderly or disabled person in the third degree. The unfortunate
facts of this case are related to Brennan’s long and complicated history of severe
alcohol abuse.
The current proceeding arises from Brennan’s encounter with police on
February 15, 2018, when authorities followed up on a report that a man was
disoriented and covered in excrement in Cheektowaga, New York, and
discovered Brennan, who was homeless, on the sidewalk outside a strip mall.
About a week after encountering Brennan on the streets of Cheektowaga, the
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police inquired with the New York State Board of Examiners of Sex Offenders
regarding whether Brennan was required to register as a sex offender, and the
Board confirmed that he was required to do so. The authorities then determined
that Brennan was not properly registered in New York and brought a failure‐to‐
register charge against Brennan.
Brennan was appointed a federal defender, but his counsel reported to the
court that Brennan’s mental limitations prohibited him from assisting counsel in
preparing his case. Counsel informed the court that he had not been able to
meaningfully discuss the case with Brennan because Brennan was suffering from
“some pretty significant memory issues and issues in general regarding his
circumstances right now.” App’x at 37. Brennan’s testimony before the court
confirmed counsel’s concerns, as Brennan told the court that he did not know
what was going on and that at times he did not even remember to whom he was
talking. Defense counsel moved for a competency hearing and filed a notice of
intent to assert an insanity defense, at which point the government moved for an
evaluation of Brennan’s sanity at the time of the offense. The district court
ordered a competency evaluation and an evaluation of whether Brennan was
insane at the time of the offense.
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In the fall of 2018, Dr. Samantha E. DiMisa, a forensic psychologist with
the Bureau of Prisons, evaluated Brennan’s competency to stand trial and his
criminal responsibility. Dr. DiMisa’s report documented Brennan’s long history
of alcoholism. Her interviews with Brennan revealed that he began drinking at
age 11 and around the time of his arrest at age 58 was consuming as many as 24
cans of beer in a single day. Brennan repeatedly required emergency medical
attention as a consequence of his alcoholism, and his attempts at rehabilitation
were unsuccessful.
Dr. DiMisa conducted a series of psychological tests to measure Brennan’s
cognitive functioning. She concluded that Brennan exhibited marked difficulties
in cognitive function and memory and that he suffered from low intelligence.
Brennan had severe memory deficits that meant he was not aware of several
significant events in his life, including a lung cancer diagnosis and a related
operation, despite prompting. Brennan also denied any knowledge that he had
committed the underlying 2014 sex offense and was despondent when the
evaluator informed him of his actions.
Dr. DiMisa concluded that “Mr. Brennan’s overall prognosis is poor,
particularly if he continues to drink alcohol in the future.” Sealed Documents at
6
14 [hereinafter SD]. She noted, “Neurocognitive Disorders tend to be
degenerative in nature, [and] thus, it is highly unlikely Mr. Brennan will return
to his previous level of functioning.” SD at 14. Dr. DiMisa considered it “unlikely
medication would significantly improve his functioning.” SD at 14. With respect
to Brennan’s present competency, she opined that “Mr. Brennan does not
currently possess a factual and rational understanding of the proceedings against
him, does not have the capacity to assist legal counsel in his defense, and cannot
adequately make decisions regarding his strategy.” SD at 18. Finally, as to
Brennan’s criminal responsibility, Dr. DiMisa concluded that “Mr. Brennan’s
Mental Defect impaired his ability to appreciate the wrongfulness of his conduct
at the time of his alleged actions.” SD at 35.
Following Dr. DiMisa’s evaluation, the magistrate judge, to whom the
district court referred pretrial matters, reviewed Dr. DiMisa’s report and held a
hearing on Brennan’s competency. The magistrate determined that Brennan was
presently not competent to stand trial and concluded that 18 U.S.C. § 4241(d)
mandated that he commit Brennan to the custody of the Attorney General in
order to determine Brennan’s future competency to stand trial. The magistrate
judge ordered Brennan committed to the custody of the Attorney General “for
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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
the defendant will attain the capacity to permit the proceedings to go forward.”
App’x at 100. Brennan appealed the magistrate’s order to the district court,
which affirmed the order, concluding that while “the evidence in this case does
suggest a relatively low probability that Defendant can be restored to
competency,” the court was nonetheless compelled under 18 U.S.C. § 4241(d) to
commit Brennan to the custody of the Attorney General. United States v. Brennan,
354 F. Supp. 3d 250, 260‐61 (W.D.N.Y. 2019). The district court did “not find it
appropriate to set a firm outer limit on the length of the commitment . . . before
the relevant medical personnel ha[d] even had the chance to examine
Defendant,” but, acknowledging Brennan’s due process concerns, “order[ed] that
the [Bureau of Prisons] provide a report regarding Defendant’s prognosis within
45 days of his hospitalization.” Id. at 262.
DISCUSSION
I. Due Process in Commitment Proceedings
Brennan challenges his commitment under 18 U.S.C. § 4241(d) on due
process grounds, and we therefore consider how the government’s interests must
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be balanced with Brennan’s interests in commitment proceedings. This Court has
previously noted that Section 4241(d) serves the government’s interest in
bringing an accused to trial, which is “fundamental to a scheme of ordered
liberty and prerequisite to social justice and peace.” United States v. Magassouba,
544 F.3d 387, 402‐03 (2d Cir. 2008) (internal quotation marks omitted); see also Sell
v. United States, 539 U.S. 166, 180 (2003). In order to vindicate this interest by
prosecuting competent accused persons, the government has a concomitant
interest in securing an accurate determination of criminal defendants’ mental
capacities. See Magassouba, 544 F.3d at 408 (discussing need for thorough
evaluation period to determine competency). These governmental interests must
be balanced with a defendant’s fundamental liberty interest in freedom from
restraint. See, e.g., Jones v. United States, 463 U.S. 354, 361 (1983) (“It is clear that
commitment for any purpose constitutes a significant deprivation of liberty that
requires due process protection.” (internal quotation marks omitted)). That
interest is compromised if a defendant is kept in custody to await trial when
there is not “a substantial probability that he will attain . . . capacity in the
foreseeable future.” Jackson v. Indiana, 406 U.S. 715, 738 (1972).
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In Jackson v. Indiana, the Supreme Court articulated the proper balance of
the aforementioned interests when it considered an Indiana statute that
permitted the state to detain incompetent criminal defendants indefinitely. Id. at
731‐39. The Supreme Court noted that a court primarily orders commitment for
one of three purposes: limiting a defendant’s “dangerousness to self,” limiting a
defendant’s “dangerousness to others, and the need for care or treatment or
training” to aid the defendant in attaining competency. Id. at 737. Due process,
the Court held, “requires that the nature and duration of commitment bear some
reasonable relation to the purpose for which the individual is committed.” Id. at
738. Therefore, if the government has detained a defendant “solely on account of
his incapacity to proceed to trial,” the government cannot hold the defendant for
“more than the reasonable period of time necessary to determine whether there
is a substantial probability that he will attain that capacity in the foreseeable
future.” Id. When a defendant “is committed solely on account of his incapacity
to proceed to trial,” his “continued commitment must be justified by progress
toward th[e] goal” of restoring his competency to stand trial. Id. The Supreme
Court’s decision in Jackson therefore mandates that where, as here, an
incompetent criminal defendant is held in custody for the purpose of
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determining if he will regain competency in the foreseeable future, the
defendant’s commitment must at all times reasonably relate to evaluating his
ability to regain competency or to restoring him to competency through
treatment.
II. 18 U.S.C. § 4241
Congress enacted Section 4241, the provision under which the district
court committed Brennan to the Attorney General’s custody, in response to the
“due process concerns identified in Jackson v. Indiana.” Magassouba, 544 F.3d at
403. The statute requires the district court to make an initial determination of the
defendant’s present capacity to stand trial: “[i]f, 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 . . . the
court shall commit the defendant to the custody of the Attorney General.” 18
U.S.C. § 4241(d). Notable here, the statute calls for the district court to determine
present competency and mandates commitment for further assessment if the
defendant is presently incompetent. Id. The Attorney General is then required to
hospitalize the defendant for treatment in a “suitable” facility “for such a
reasonable period of time, not to exceed four months, as is necessary to
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determine whether there is a substantial probability that in the foreseeable future
he will attain the capacity to permit the proceedings to go forward.” Id.
§ 4241(d)(1). As the Ninth Circuit and others have noted, “the overarching
purpose of commitment under § 4241(d) is to enable medical professionals to
accurately determine whether a criminal defendant is restorable to mental
competency.” United States v. Strong, 489 F.3d 1055, 1062 (9th Cir. 2007); see also,
e.g., United States v. Ferro, 321 F.3d 756, 762 (8th Cir. 2003).
If, during or after the evaluation and treatment period, the director of the
treatment facility at which the defendant resides determines that the defendant
has attained competency, the director files a certificate with the court so stating,
and the court holds a competency hearing to determine whether the defendant,
by a preponderance of the evidence, is competent to stand trial. 18 U.S.C.
§ 4241(e). Section 4241(e), like Section 4241(d), requires the district court to
determine the defendant’s competency. Id. If “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.” Id. § 4241(d). Under Section 4246, if the director of the treatment facility
determines that the defendant “would create a substantial risk of bodily injury to
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another person or serious damage to property of another,” the district court must
hold a hearing to determine whether the defendant is dangerous. Id. § 4246. If,
after the hearing, the district court finds by clear and convincing evidence that
the defendant is dangerous, the district court commits him to the custody of the
Attorney General. Id. § 4246(d). The Attorney General then must attempt to
release the defendant to the custody of the state in which he is domiciled for
commitment; if the state refuses custody, the Attorney General hospitalizes the
defendant in a suitable facility until either the state agrees to assume
responsibility for him or his mental condition improves such that he no longer
poses a danger or such that he can continue with a medical, psychiatric, or
psychological regimen that renders him not dangerous. Id. Section 4248 is similar
but applies when the director of the facility determines the defendant is “a
sexually dangerous person.” Id. § 4248.
III. The Constitutionality of Section 4241(d) As Applied to Brennan
Brennan argues that, because commitment of an incompetent criminal
accused must reasonably relate to determining whether the defendant will regain
competency, Section 4241(d) cannot constitutionally apply to defendants who
suffer from conditions that medical professionals opine are highly unlikely to
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improve, as Brennan purportedly does. The government responds that Brennan’s
commitment under Section 4241(d) is intended to allow medical professionals to
evaluate the permanency of Brennan’s mental condition and is therefore
constitutional. For the reasons that follow, we conclude that, because the district
court determined that Brennan was presently incompetent, Brennan’s
commitment was constitutional and statutorily mandated. We further conclude
that the medical professional who evaluated Brennan did not definitively
conclude that Brennan is highly unlikely to improve and thus highly unlikely to
be able to stand trial, and his as‐applied challenge on those grounds is not ripe.
We start from the premise that a defendant’s competency is a legal
question that is properly reserved for the courts. The two‐prong test for
competency asks “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.” Dusky v. United States, 362 U.S. 402, 402 (1960) (internal quotation
marks omitted). In applying this test, the district court must weigh evidence and
apply evidentiary standards. See United States v. Nichols, 56 F.3d 403, 410‐11 (2d
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Cir. 1995).1 An arbiter must therefore interpret legal competency standards and
apply them to the facts before her, a quintessentially judicial task. A medical
professional cannot appropriately resolve such legal questions, and a defendant’s
competence is decidedly the province of the courts.
Section 4241 codifies this principle by committing all competency
determinations to the district court. Specifically, the statute requires the district
court to determine whether (1) “there is reasonable cause to believe that the
defendant” may be incompetent, 18 U.S.C. § 4241(a); (2) “by a preponderance of
the evidence . . . the defendant is presently” competent to stand trial, id.
§ 4241(d); and (3) by a preponderance of the evidence the defendant has been
restored to competency, id. § 4241(e). See also Magassouba, 544 F.3d at 406 (“[I]n
the event the court determines that the defendant has not so improved, he is
referred for possible civil commitment proceedings . . . .” (emphasis added));
United States v. Donofrio, 896 F.2d 1301, 1303 (11th Cir. 1990) (“The permanency of
1Indeed, “the district court may rely on a number of factors, including medical
opinion and the court’s observation of the defendant’s comportment” in
applying the two‐prong test for competency. Nichols, 56 F.3d at 411.
15
the condition [of incompetency] would then be determined for later
consideration by the court.” (emphasis added)).
Therefore, before Brennan can be considered permanently incompetent, a
court must determine “whether there is a substantial probability that in the
foreseeable future he will attain the capacity to permit the [criminal] proceedings
to go forward” following a mandatory commitment as outlined in 18 U.S.C.
§ 4241(d). 18 U.S.C. § 4241(d)(1). Neither the magistrate judge nor the district
court made such a finding with respect to Brennan. See, e.g., Brennan, 354 F. Supp.
3d at 260 (“While the evidence in this case does suggest a relatively low
probability that Defendant can be restored to competency, the commitment
required by § 4241(d) is meant to provide a definitive answer to that question.”);
App’x at 92 (magistrate judge denying motion to release Brennan that was
premised on the grounds that he was permanently incompetent and instead
committing Brennan to the Attorney General’s custody “for treatment in a
suitable facility”). Legally, the district court made no determination as to future
competency, and 18 U.S.C. § 4241(d) required the district court to first commit
Brennan for evaluation and treatment before making such a determination.
16
We recognize that 18 U.S.C. § 4241(d) does not authorize the district court
to determine whether evaluation and treatment of a defendant are necessary in
aid of its determination of whether the defendant does not have a substantial
likelihood of regaining competency in the foreseeable future. The statute
commands that if “the court finds by a preponderance of the evidence that the
defendant is presently” incompetent, “the court shall commit the defendant to
the custody of the Attorney General” for treatment and evaluation. 18 U.S.C.
§ 4241(d) (emphasis added); Magassouba, 544 F.3d at 393 (“If the district court
makes a preliminary finding of incompetence, the second step of the statutory
scheme . . . mandates the defendant’s custodial hospitalization for evaluation and
possible treatment.”). Only after the mandatory competency evaluation outlined
in Section 4241(d) has taken place may the district court—and the district court
alone—determine that “the defendant’s mental condition has not so improved as
to permit the proceedings to go forward.” 18 U.S.C. § 4241(d). In that case, the
procedures outlined in Sections 4246 and 4248 are triggered. We conclude that as
applied to Brennan, such mandatory, limited commitment comports with the
due process principles articulated in Jackson v. Indiana. 406 U.S. at 737‐38.
17
As an initial matter, the district court’s limited order for Brennan’s
examination requested medical findings on “the defendant’s history and present
symptoms, if any . . . and . . . as to diagnosis.” App’x at 54‐56 (emphasis added).
The district court did not request that the medical examiner, Dr. DiMisa, make
any findings regarding Brennan’s likelihood of improving and ultimately
standing trial. Thus, while Dr. DiMisa’s reports paint an undoubtedly bleak
picture of Brennan’s health, the section of her competency report titled
“PROGNOSIS” is predictably devoid of definitive statements regarding
Brennan’s ability to improve and ultimately stand trial. SD at 14‐15. Instead, Dr.
DiMisa’s prognostic opinions in every instance are conditional. See SD at 14 (“Mr.
Brennan’s overall prognosis is poor, particularly if he continues to drink alcohol in
the future.” (emphasis added)); SD at 14 (“Neurocognitive Disorders tend to be
degenerative in nature, thus, it is highly unlikely Mr. Brennan will return to his
previous level of functioning.” (emphasis added)); SD at 14 (“It is also unlikely
medication would significantly improve his functioning.” (emphasis added)).
The limited scope of Dr. DiMisa’s reports is indicative of the need for a
more thorough evaluation. As several of our sister circuits have noted, the
evaluation of a defendant’s future competency “requires a more careful and
18
accurate diagnosis than the brief interviews and review of medical records that
tend to characterize the initial competency proceeding.” Strong, 489 F.3d at 1062
(internal quotation marks omitted) (citing Ferro, 321 F.3d at 762; United States v.
Filippi, 211 F.3d 649, 651 (1st Cir. 2000)); see also Donofrio, 896 F.2d at 1303
(describing evaluation period as permitting “a careful determination of the
likelihood of regaining mental capacity to stand trial”).2
The evidence at Brennan’s competency hearing therefore did not call for
the district court to determine whether an individual whom medical
professionals conclusively considered substantially unlikely to improve could
constitutionally be committed under Section 4241(d). Instead, the district court
applied Section 4241(d) to a defendant whose medical prognosis was not
definitive and whose future competency was legally unsettled. As such,
2This is necessarily true because the initial psychiatric evaluation is limited.
Section 4241(b) requires that the preliminary examination of the defendant be
conducted “pursuant to the provisions of section 4247 (b) and (c).” 18 U.S.C.
§ 4241(b). Section 4247(b) in turn requires that the examination period be limited
to “a reasonable period, but not to exceed thirty days.” Id. § 4247(b). The director
of the facility to which the defendant is committed “may apply for a reasonable
extension, but not to exceed fifteen days.” Id. Thus, although Dr. DiMisa
conducted numerous interviews over several hours, the initial evaluation period
was necessarily temporally limited, constraining a medical professional’s ability
to evaluate and treat a mentally incompetent defendant.
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Brennan’s commitment under Section 4241(d) will allow for a more thorough
evaluation of his ability to regain competency than the preliminary examination
allowed, and the statute’s mandatory order of commitment “bear[s] some
reasonable relation to the purpose for which” Brennan was committed. Jackson,
406 U.S. at 738. Moreover, because this commitment period is explicitly limited to
a “reasonable period of time” as is “necessary” to determine Brennan’s future
competency, 18 U.S.C. § 4241(d)(1), the commitment will remain reasonably
related to determining Brennan’s future competency and must terminate as soon
as a determination can be made. See Filippi, 211 F.3d at 652 (noting the statute is
“flexible and case‐oriented in determining the length of incarceration”). The
statute thereby balances the government’s interest in accurately determining
Brennan’s competency with Brennan’s liberty interest and is consistent with due
process.
We hold that Section 4241(d) is constitutional as the district court applied it
to Brennan because Brennan’s continued detention is reasonably related to
resolving open questions regarding the likelihood that Brennan will regain
competency to stand trial in the foreseeable future.
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CONCLUSION
We AFFIRM the district court’s order pursuant to Section 4241(d)
committing Brennan to the custody of the Attorney General.
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