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United States v. Bennett

United States District Court, E.D. Virginia, Richmond Division

June 16, 2017

TRAVIS D. BENNETT, Defendants.



         This matter comes before the Court on Defendant Travis Bennett's Motion Requesting the Court Find Him Incompetent to Stand Trial (the "Motion"). (ECF No. 84.) The United States responded, (ECF No. 85), and Bennett replied, (ECF No. 86). The Court held an evidentiary hearing at which Bennett's investigator, Bennett's expert, and the United States' expert testified. (See ECF No. 81.) The Court heard oral argument and ordered supplemental briefing. (ECF Nos. 89, 90.) The matter is ripe for disposition. For the reasons stated below, the Court DENIES Bennett's Motion. (ECF No. 84.)

         I. Procedural History

         On July 11, 2016, Bennett was charged in a Criminal Complaint with Interstate Kidnapping of a Minor, in violation of 18 U.S.C. § 1201(a)(1). On August 2, 2016, Bennett was charged in an indictment with Interstate Kidnapping of a Child and Aiding and Abetting, in violation of 18 U.S.C. §§ 1201(a)(1), 1201(g)(1), and 1201(g)(2). He was arraigned and entered a plea of not guilty on August 15, 2016. On September 21, 2016, Bennett moved to continue the trial date in order to investigate fully Bennett's "long and complicated mental health history." (Mot. Continue Trial Date ¶ 4, ECF No. 43.) The Court granted that motion and continued the trial to February 9, 2017.

         On January 3, 2017, Bennett filed a Motion to Determine Competency of the Defendant (the "Motion for Competency Hearing"). Bennett also filed under seal a copy of a neuropsychological evaluation of Bennett conducted by Dr. Drew Nagele. The Court granted the United States' request to obtain a second competency evaluation of Bennett, including allowing the United States' expert to review Dr. Nagele's report. On March 10, 2017, the United States filed under seal a competency evaluation of Bennett conducted by Dr. Bernice A. Marcopulos. On March 16, 2017, the Court held an evidentiary hearing at which Dr. Nagele, Dr. Marcopulos, and Bennett's Investigator, Linda McGrew, testified. The Court ordered Bennett and the United States to submit a joint briefing schedule regarding Bennett's competency. On April 4, 2017, Bennett filed the Motion, (ECF No. 85), the United States Responded on April 12, 2017, (ECF No. 86), and Bennett replied on April 17, 2017, (ECF No. 86).

         The Court heard oral argument and ordered supplemental briefing on the procedures that would apply if the Court found Bennett incompetent to stand trial. The United States and Bennett filed their supplemental briefs, and the matter is ripe for disposition. (ECF Nos. 89, 90.)

         II. Legal Standard

         "[T]he conviction of an accused person while he [or she] is legally incompetent violates due process." Pate v. Robinson, 383 U.S. 375, 378 (1966) (citing Bishop v. United States, 350 U.S. 961 (1956)). Title 18 of the United States Code, Section 4241 provides the standard by which a district court determines a defendant's competency to stand trial.

If. . . the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him [or her] mentally incompetent to the extent that he [or she] is unable to understand the nature and consequences of the proceedings against him [or her] or to assist properly in his [or her] defense, the court shall commit the defendant to the custody of the Attorney General.

18 U.S.C. § 4241(d). Thus, a court assessing a defendant's competence to stand trial must determine first if the defendant "is presently suffering from a mental disease or defect, " and, if so, whether that disease or defect "render[s] [the defendant] mentally incompetent to the extent that he [or she] is unable to understand the nature and consequences of the proceedings against him [or her] or to assist properly in his [or her] defense." Id.

         "It has long been accepted that a person whose mental condition is such that he [or she] lacks the capacity to understand the nature and object of the proceedings against him [or her], to consult with counsel, and to assist in preparing [a] defense may not be subjected to a trial." Drope v. Missouri, 420 U.S. 162, 171 (1975). An assessment of competency requires the court to determine "whether [the defendant] has sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding-and whether he [or she] has a rational as well as factual understanding of the proceedings against him [or her]." Dusky v. United States, 362 U.S. 402, 402 (1960) (internal quotation marks omitted). A criminal defendant faces many "strategic choices: In consultation with his [or her] attorney, he [or she] may be called upon to decide, among other things, whether (and how) to put on a defense and whether to raise one or more affirmative defenses." Godinez v. Moran, 509 U.S. 389, 398 (1993). In order to be competent to stand trial, a criminal defendant must have the ability to consult with his or her lawyer and make these decisions with a "reasonable degree of rational understanding." Dusky, 362 U.S. at 402.

         "'Not every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present inability to assist counsel or understand the charges/" Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000) (quoting United States ex rel Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984)). "If the mental illness does not deprive the defendant of the ability to understand the proceedings rationally as well as factually, then the illness is irrelevant for the purposes of determining competency." United States v. Leggett, 162 F.3d 237, 244 (3d Cir. 1998) (internal citations, quotation marks, and alterations omitted). "[N]either low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial." Id. (citing Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995)).

         In evaluating whether a defendant has proven by a preponderance of the evidence that he or she is incompetent to stand trial, the court must "look at the unique circumstances of the case and decide whether the defendant (1) has the capacity to assist in her or his own defense and (2) comprehends the nature and possible consequences of a trial." United States v. Leggett, 162 F.3d 237, 242 (3d Cir. 1998). The decision is fact-specific, and "[t]here are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated." Drope, 420 U.S. at 180.

         III. Evidence Presented

         The Court received two expert reports: one from Dr. Drew Nagele and one from Dr. Bernice Marcopulos. It also heard testimony from both experts and from Linda McGrew, Investigator for the Richmond Office of the Federal Public Defender ("FPD").

         A. Investigator Linda McGrew*s Testimony

         Investigator McGrew testified that she and Bennett's counsel maintain frequent contact with Bennett. Either Investigator McGrew or Bennett's attorney have met with Bennett in person once per week since his incarceration in August, with the exception of the month of January. Also, either Investigator McGrew or Bennett's attorney speak on the phone with Bennett "at least three to five times a week, and sometimes multiple times on the same day."

         At some point, Investigator McGrew became concerned about Bennett's mental status because he seemed "unable to retain or remember things that ha[d] been told to him in previous meetings, " and he was telling Investigator McGrew things that she believed were inaccurate. (Tr. 15.) Investigator McGrew conducted a "social history investigation" of Bennett, which involved interviewing people in Bennett's life and "gathering records to document the things that [she had] discovered." (Tr. 16.) During this investigation, Investigator McGrew learned from family reports that Bennett had to be resuscitated as a baby, and that he had suffered several head injuries, including being dropped on a cinder block porch as a baby, being involved in a go-kart accident around the age of six, and being hit in the face with a pipe when he was approximately eighteen. Several of these incidents were chronicled in medical records. (Id.) Based on the information she uncovered, Investigator McGrew concluded that Bennett needed further neurological testing.

         Investigator McGrew and others in the FPD also reviewed 210 phone calls Bennett made from jail, seventy-one of which were substantive, and took notes summarizing the calls. Comparing what Bennett recounted in the phone calls with what Investigator McGrew knew she and Bennett's counsel had told Bennett, "[w]hat stood out to [her] is that [Bennett is] able to take fragments and pieces of the conversations that we have with him, but he's not able to remember them accurately." (Tr. 29.) Investigator McGrew testified 4tthat there's a lot of inaccurate information in the phone calls [Bennett makes] to his family members." (Tr. 29-30.) For example, Bennett has stated that his attorney can "get [him] off' or that he can "beat this at trial." (Tr. 30.) Bennett also told people that he had been offered a plea for ten years, or for seventeen years, but he has received no such offers. And although Investigator McGrew admits that it is common for criminal defendants to have an optimistic view of the outcome of their cases, "the level of misrepresentation that [Bennett] states in the phone calls goes beyond the norm that [she] ha[s] seen over the last 15 years being in this office." (Tr. 39.)

[I]n the normal course of the case, usually you can move a client down the road and get them to the point where they understand, and understand realistically what they're facing, and how severe it is. But with [Bennett], we have not been able to do that. . . . [T]he difference between [Bennett], and other clients, is the fact that he is stuck and cannot be moved forward.


         Investigator McGrew also acknowledged that some of the facts Bennett recounted in the phone calls were accurate. He stated that his attorney has discussed with him "taking the 20-year mandatory minimum off the table, " and that, as charged, he is facing a punishment of twenty years to life in prison. (Tr. 32-33.) He discussed in one phone call that the charges against one of his co-defendants had been dropped, and that his trial was set for October 11, 2016.[2] In that same phone call, Bennett also told family members that they would need to bring him street clothing for his trial. He also relayed to one of his family members which medication he was on, and that "it would mess with his kidneys." (Tr. 38.)

         B. Dr. Drew Nagele's Report and Testimony, Offered by Bennett

         1. Dr. Nagele's Qualifications

         Dr. Nagele was offered and accepted as an expert in neuropsychology.[3] Dr. Nagele has experience testifying as an expert in county, state, and federal courts. He has testified as an expert in neuropsychology approximately three or four times per year over the last nineteen years. Dr. Nagele has conducted approximately five evaluations of a defendant's competency to stand trial, but has never testified as an expert regarding competency to stand trial. He has no specific training in conducting competency-to-stand-trial evaluations. He has co-authored one article, in 1996, regarding competency, to stand trial.

         2. Dr. Nagele* s Opinions

         Dr. Nagele was retained by Bennett's counsel to conduct a "comprehensive neuropsychological evaluation." (Tr. 66.) He did not conduct a separate evaluation for competency to stand trial. As part of his evaluation, Dr. Nagele reviewed medical records supplied to him by the FPD[4] and relevant information from "collateral sources." (Tr. 67, 73.) He then met with Bennett for approximately eight hours over two days on December 8 and 9, 2016. During that time, Dr. Nagele administered seventeen tests designed to measure numerous neurological abilities.[5]

         Only after he had conducted his evaluation did Bennett's counsel ask Dr. Nagele to assess Bennett's competence to stand trial. Without meeting Bennett again, but "[b]ased on [his] analysis of the test results, as well as the records received, [and] the information contributed by collateral sources, [Dr. Nagele] concluded that Mr. Bennett has severe cognitive impairments." (Tr. 73.) He also opined that Bennett "does not have sufficient cognitive ability to consult with his attorney, form a reasonable degree of understanding about the nature and consequences of the proceedings, or the capacity to really make good decisions for himself or to understand the options that might be presented to him."[6] (Id.) Dr. Nagele later reviewed seventy-one phone calls that Bennett made from jail and Bennett's post-arrest statement, which "reinforced [his] conclusions" regarding Bennett's competency.[7] (Tr. 77.)

         a. Bennett's Brain Injuries

         After reviewing Bennett's medical records, speaking with family members, and administering numerous tests, Dr. Nagele concluded, "within a reasonable degree of [neuropsychological certainty, [that Bennett's impairments] are the result of multiple brain injuries beginning at birth and occurring throughout [Bennett's] lifespan." (Nagele Report 14.)

         Dr. Nagele testified that Bennett suffered an anoxic brain injury-a nontraumatic brain injury-at birth. Evidence also indicates that Bennett was dropped on a cinderblock floor as a baby. This "potential traumatic brain injury, ... occurring very early in that period where great maturation is expected to occur, " would affect "normal [brain] development." (Tr. 91.) Dr. Nagele next pointed to a go-kart accident when Bennett was approximately eight years old, and "if he hit his head, that would have been characterized as another traumatic brain injury." (Tr. 92-93; see also Nagele Report 4.) Finally, at approximately age eighteen, Bennett was hit in the face with a pipe.

         Dr. Nagele found these multiple brain injuries meaningful because although "one acquired brain injury causes whatever damage it causes[, ] ... the effects of multiple injuries are cumulative." (Tr. 95.) If a brain is subjected to "repeated injury, [there will be] a cumulative effect of those damaged [brain] cells." (Tr. 96.) "[W]hen you have one brain injury, and then you have impairment from that, and then you get another brain injury, ... there's additional impairment and it accumulates." (Tr. 125.)

         Dr. Nagele also found the times in Bennett's life at which these injuries happened problematic because at least two of them happened at a young age, when Bennett's brain would have been undergoing a "great period of development." (Tr. 90.) "[A]ny injury that occurs [at the beginning of a period of brain development] has the potential to severely disrupt the maturation that is expected to occur subsequently." (Id.) And Dr. Nagele found the injury in which Bennett was struck in the face with a pipe especially significant because "the forces that get transmitted in an injury like that [affect] the parts of the brain that sit in the frontal lobe and temporal lobes, [which] are particularly susceptible to forward injury-----" (Tr. 94.) "[D]amage to the head, the forehead, [and] the nose ... is particularly going to cause problems with behavior and emotions."[8] (Id.)

         At approximately age ten, Bennett "received an MRI of the brain which showed multiple lesions of the white matter of the frontal lobes."[9] (Nagele Report 4.) Dr. Nagele found this "significant... because many times after brain injury we see no findings on scan.... So having a finding on scan [sic] that is big enough to see with the naked eye means that it is quite a significant finding[.] And that there must have been significant enough damage occurring... beyond just the cellular level." (Tr. 96.) Moreover, the lesions appeared in the frontal lobe, which Dr. Nagele found significant because "the frontal lobe is the lobe that's responsible for decision-making, evaluating, monitoring, regulating, planning, and problem-solving. And so when you have damage in the frontal lobes, you have problems in all of those areas." (Tr. 97.)

         b. Dr. Nagele's Testing

         Dr. Nagele administered to Bennett multiple tests designed to evaluate Bennett's intellectual and memory abilities and his adaptive functioning. Overall, Dr. Nagele concluded that Bennett

is functioning in the Borderline to Extremely Low range for intellectual functioning, in the Severely Impaired range for verbal memory and higher executive functions, and in the Extremely Low range for Adaptive Functioning. His reading, writing, and money handling ability are so impaired that he would not be able to function without assistance in everyday life, and he is at risk for being taken advantage of.

(Nagele Report 13.)

         i. IQ Testing

         Dr. Nagele administered the Wechsler Adult Intelligence Scale, which measures intellectual functioning. According to this test, Bennett has a full-scale IQ of 71-in the third percentile, and somewhere between the Extremely Low and Borderline ranges.[10] Within the four different subsets of the test, there was "significant unevenness in his intellectual functioning, ... suggesting that there is variability in the way that [Bennett's] brain is working compared with this overall intellectual rating." (Nagele Report 6.) Bennett's scores varied from a low of 70 on the Verbal Comprehension Index, in the second percentile and the Borderline range, to 77 on the Working Memory Index and the Perceptual Reasoning Index, both in the sixth percentile and the Borderline range, to a high of 81 on the Processing Speed Index, in the tenth percentile and the Low Average range. (Id; Tr. 111.) This level of variability "is suggestive of neurological impairment that has created significant variability in overall brain function." (Nagele Report 7.)

         Bennett was weakest in the Verbal Comprehension Index, which "measures things like reasoning ability, and verbal comprehension, understanding words and their meanings." (Tr. 110.) Ultimately, Bennett's "verbal weaknesses in combination mean that [Bennett] has very little ability to form, understand, and express verbal concepts." (Nagele Report 8.) And the combination of his verbal weaknesses with his relatively average processing speed means that "[Bennett] is rather quick to process information, but frequently does so with many errors in this cognitive processing." (Id. at 6.)

         ii. Memory Testing

         Dr. Nagele administered to Bennett the Wechsler Memory Scale, which measures memory functioning and visual, auditory, and spatial memory for novel information. Overall, Bennett scored below average on each individual memory index. However, there was "a great deal of variability with [his] memory scores, [indicating] a pattern of multiple brain injuries against an initially normal brain." (Nagele Report 8.) Bennett scored 72 on the Immediate Memory index, in the third percentile and the Borderline range; 78 on the Auditory and Immediate Memory index, in the seventh percentile and the Borderline range; 81 on the Visual Memory index, in the tenth percentile and the Low Average range; and, 60 on the Visual Working Memory index, in the 0.4 percentile and the Extremely Low range.

         Bennett's low Working Memory score means it is "more difficult for him to keep something in his head while he's working with it." (Tr. 111.) During the testing, Bennett had "the greatest difficulty with remembering a short story he was told, and then later coming back and re-telling that story[, .... which] is the most common form of memory demand in everyday life, to be able to recall, at a future date, what someone has said to you earlier." (Nagele Report 9.) Ultimately, Dr. Nagele concluded from his tests that "[t]he combination of [Bennett's] impairments in verbal intellectual abilities with his impairment in forming and recalling verbal memories makes it virtually impossible for him to function effectively in everyday life." (Id.)

         In what ultimately drove his opinion regarding Bennett's competence to stand trial, Dr. Nagele testified that two of the memory test subsets on which Bennett scored the lowest are most similar to "a witness testifying at trial" or "a teacher teaching in a classroom." Dr. Nagele opined from his testing that, if Bennett were to sit through "a day's proceedings, " Bennett would not be able to remember everything that was said, nor would he have the capacity to "figure out which facts are relevant and which ones he has to use in his decision-making." (Tr. 75-76.) Because Bennett's reasoning ability is impaired, "even if he had all the information, I'm not sure if he would be able to make, you know, an informed decision. But ...

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