Opinion
Case No. 12-cr-00480-YGR-1
04-22-2015
UNITED STATES OF AMERICA, Plaintiff, v. BURTON ORVILLE BENSON, Defendant.
ORDER DETERMINING COMPETENCY
On June 4, 2014, defendant Burton Orville Benson filed a motion for a competency examination and hearing pursuant to 18 U.S.C. sections 4241 and 4247. (Dkt. No. 137.) This order addresses that motion after a competency evaluation and an evidentiary hearing lasting nine days. Based upon substantial evidence and for the reasons set forth herein, the Court finds the defendant constitutionally competent to stand trial, having the requisite capacity to understand the nature of the proceedings and to reasonably assist counsel.
I. OVERVIEW
The government filed the initial indictment in this action on June 21, 2012. (Dkt. No. 1.) The second superseding indictment accuses Benson of wire fraud, theft from an employee pension benefit plan, and money laundering, among other counts. (Dkt. No. 98.) In summary, the government paints Benson, a former rear admiral in the U.S. Navy, as a meticulous and deliberate planner who allegedly misused his fiduciary position as CEO of an aerospace engineering company—and its employee pension plan—for personal gain over the course of years if not decades. Benson is now 80 years old.
Upon the defendant's request, on July 10, 2014, the Court appointed psychologist Dr. Abraham Nievod to conduct a competency evaluation. (Dkt. No. 175.) He submitted his report on November 12, 2014. (Ex. 81 ("Nievod Report").) Despite finding that Benson generally scored within the normal range for an individual of any age due to his "superior" intelligence (in the 98th or 99th percentiles for his age group on certain subtests), Dr. Nievod nevertheless concluded that Benson "would have great difficulty participating in his defense and aiding his counsel on issues that involve the reconstruction or elaboration of past actions involving issues within the domain of Executive Functions . . . ." (Id. at 42.) Dr. Nievod based this opinion in large part on his belief that Benson suffered from a "late early stage" of "Neurocognitive Disorder, Small Vessel White-Matter Ischemic Disease, one form of what is commonly known as Vascular Dementia." (Id. at 41.)
Thereafter, the Court held a competency hearing that began on February 6, 2015 and concluded on March 13, 2015, lasting nine days and featuring the testimony of a dozen witnesses, including three examining doctors, and more than a hundred exhibits. The parties submitted a number of briefs and motions in connection with the proceedings. (See, e.g., Dkt. Nos. 283-84, 311-12, 316-17.) At the outset, defense counsel conceded that the only issue presented was whether Benson had the ability to assist counsel. (See Dkt. No. 271 (Tr.) at 20:4-20 ("As the government has pointed out, the question is not whether [the defendant] understands what's happening in the proceedings. It's clear that my client Admiral Benson does. But the question is whether he can rationally assist in his defense.").) Nevertheless, in light of a subsequent filing by the defendant arguably placing at issue his competence more generally (Dkt. No. 283), the Court has considered Benson's mental status under the broader competency standard.
In light of the Court's March 11, 2015 Order Re: Procedural Protections for Defendant in a Competency Hearing, United States v. Benson, No. 12-CR-00480-YGR-1, 2015 WL 1064738 (N.D. Cal. Mar. 11, 2015), Benson decided not to testify at the hearing. Benson confirmed on the record on March 13, 2015 that he was personally waiving his right to testify and the Court has reached no adverse inference as a result of his decision.
Prior to the conclusion of the hearing, the weight of the evidence supporting competence apparently became clear to the defendant, spurring him to move for another competency evaluation. (Dkt. No. 270.) While the Court would have granted such a request in a close case, doing so here would be in vain and cause undue delay.
As shown herein, the narrative of Benson's purported incompetence was a carefully crafted house of cards, stacked by Benson himself with foresight and precision, but which entirely collapsed during the course of the competency hearing. Indeed, the hearing revealed that multiple physician letters which served as the linchpin of Dr. Nievod's diagnosis were drafted by Benson. Though signed, hesitatingly, by doctors, the signatories confirmed they did not comprehend the true purpose for which the letters were sought. The doctors admittedly did not fully agree with the letters' contents but understandably signed them merely to placate their excitable—and controlling—patient. Contrary to suggestions in Dr. Nievod's report and testimony, other medical evidence did not support a diagnosis of dementia, but instead established the presence of white matter disease likely developed in the normal course of aging (and, perhaps, exacerbated by other factors such as Benson's significant alcohol use, which he has since been ordered to cease). The credible medical testimony established that Benson's white matter disease might have no relevant impact, if any, on his cognitive abilities. Dr. Nievod's diagnosis was shown to be premised upon the doctors' unknowingly misleading letters drafted by Benson, the defendant's self-reported symptoms (many conveniently reported for the first time in the months leading up to the competency hearing), and neuropsychological testing that was subject to manipulation by the defendant. In short, Benson was likely malingering for purposes of "secondary gain"—specifically, to avoid trial.
The weight of the evidence undermined Benson's constructed theory of incompetence and instead showed him to be a highly intelligent individual who, at 80, may be "a little bit slower" but who remains fully competent. To deem Benson incompetent to stand trial would suggest that virtually all elderly defendants who are fully, though more slowly, engaged in life should be deemed incompetent. The Constitution does not so demand.
II. LEGAL STANDARD
Due process requires that a criminal defendant subjected to trial must be competent. Godinez v. Moran, 509 U.S. 389, 396 (1993). This requirement "has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel." Id. at 402. In determining competency, the "test must be whether he 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 (1960); see also United States v. Friedman, 366 F.3d 975, 981 (9th Cir. 2004); 18 U.S.C. § 4241(d); Godinez, 509 U.S. at 399 (holding the same standard applies where a defendant enters a guilty plea). Ability to assist counsel includes the capacity "to assist in preparing his defense." See Drope v. Missouri, 420 U.S. 162, 171 (1975); Cooper v. Oklahoma, 517 U.S. 348, 364 (1996) (noting that during the course of trial, a defendant must reach many decisions, large and small, "concerning the course of his defense"). The primary issue here is the defendant's ability to assist counsel—as opposed to his understanding of the proceedings, which was previously conceded but which the Court has nevertheless considered.
Under Ninth Circuit law, the government bears the burden to prove competency. See United States v. Hoskie, 950 F.2d 1388, 1392 (9th Cir. 1991) ("The government has the burden of demonstrating by a preponderance of the evidence that the defendant is competent to stand trial."). Thus, in these proceedings, the Court must determine whether the government has shown, "by a preponderance of the evidence[,] that the defendant is [not] 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." 18 U.S.C. § 4241(d).
By contrast, the Court recognizes that under the Due Process Clause "a State may presume that the defendant is competent and require him to shoulder the burden of proving his incompetence by a preponderance of the evidence," Cooper, 517 U.S. at 355, and that California state courts employ that approach, Nguyen v. Garcia, 477 F.3d 716, 726 (9th Cir. 2007).
A district court's competency determination is primarily factual in nature. United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006). "[T]he presence or absence of mental illness or brain disorder is not dispositive." Mata v. Johnson, 210 F.3d 324, 329 n.2 (5th Cir. 2000). A court may consider a number of factors, including its observations of the defendant, the opinions of medical experts, and the testimony of lay witnesses. See United States v. Mitchell, 706 F. Supp. 2d 1148, 1151 (D. Utah 2010) ("Lay witness testimony is especially important where the evidence indicates a defendant may be malingering or manipulating the system."); United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir. 1998); United States v. Makris, 535 F.2d 899, 905 (5th Cir. 1976). While an expert's conclusion may be instructive, it is not binding on the Court where there is reason to doubt it. See Izquierdo, 448 F.3d at 1279.
Thus, in addressing this standard, this order recounts the salient facts discovered from the Court's review and analysis of Dr. Nievod's report and the nine-day competency hearing. As demonstrated thereby, the fact of Benson's competency is firmly established from a comprehensive review of: (a) Benson's own recollections with respect to both his own background and the charges in the indictment; (b) medical evidence; and (c) anecdotal evidence. The Court elaborates on each category below.
III. FACTUAL SUMMARY
A. Benson's Recollections to Dr. Nievod
This information comes from Benson's own self-reports and biographical information provided to Dr. Nievod. (See Nievod Report at 1-5, Attachments 1-2.) Its overall accuracy has not been independently verified. Certain details are sketchy as Benson claimed to have difficulty recalling specific dates during the competency examination.
As part of the evaluation, Benson provided Dr. Nievod with short biographical summaries and orally offered additional details about his background. This information generally shows that Benson's long-term memory—the primary challenged area of his cognitive ability—is functioning well. Benson was able to recall not only factual events from his past, including specific assignments and projects, but also the basis for a key decision made fifty years ago:
Benson, the youngest of three children, was born in Minneapolis, Minnesota on December 23, 1934. He was a Cub Scout, Boy Scout, and Eagle Scout. He graduated from North High School in Minneapolis in 1952. Benson received a degree in mechanical engineering from the University of Minnesota in the late 1950s. While enrolled, he participated in the Naval Reserve Officers Training Corps. After graduating, he joined the Navy at the rank of ensign and initially served aboard the destroyer USS Chevalier (DD-805), with a home port in San Diego. He deployed to the Philippines, Taiwan, and Japan. In 1960, he completed a master's degree in oceanography at Oregon State University and taught courses at the university in leadership, naval science, and naval weaponry.
Benson subsequently returned to sea duty. In 1964, he served as executive officer on a destroyer escort. He began attending the Naval Nuclear Power School at Mare Island and quickly "ran aground" of an important figure there, Admiral Hyman Rickover. The Navy's nuclear program was under Rickover's command. Benson had a "love-hate" relationship with Rickover, finding him to be an "exacting, peculiar person who was very hard to get along with." Rickover pushed Benson to his limits. For instance, Rickover made Benson stay up for three days straight prior to their first meeting. After months in the program—during which time Benson trained on nuclear powered ships and worked on a nuclear reactor—Rickover ordered Benson to begin serving aboard a nuclear submarine, under Rickover's command. Benson balked at the prospect and so resigned from active duty around 1965, approximately fifty years ago.
Nevertheless, he pursued a career as a reserve officer, serving in that capacity for approximately twenty-five years and eventually reaching the rank of rear admiral. He variously served as commander of the USS Alvin C. Cockrell, the USS Cowell, and the USS Hammer, among other postings.
While serving in the reserves, he simultaneously pursued a career in the private sector. He started out at Westinghouse in Sunnyvale, California, working on the Polaris Poseidon C3 Ballistic Missile program. Later on, he joined Energy Research and Generation, Inc. ("ERG"). ERG produced foams and other materials used by defense contractors in products ranging from reconnaissance satellites to intercontinental ballistic missiles. Benson spent four decades at the company, eventually becoming its CEO and, importantly, serving as trustee for its employee retirement fund.
The business has changed and/or used different names over the years, including ERG Aerospace. The Court uses the acronym "ERG" interchangeably herein to refer collectively to these various entities.
He now lives in Orinda, California with his wife Elizabeth, who suffers from dementia and has full-time care. They have three adult sons.
For purposes of clarity, Benson's wife Elizabeth Benson and their sons Eric, Mark, and Bradley Benson, are referred to herein by their first names. No disrespect is intended.
2. Accused Conduct
As noted above, the operative indictment accuses Benson of charges such as theft from the ERG employee pension benefit plan, money laundering, and wire fraud. (Dkt. No. 98.) The government alleges that in his role as the plan's sole trustee, he undertook various acts of self-dealing, including for example using plan funds: (1) in late 2005, to maintain property on St. Croix owned by a U.S. Virgin Islands partnership that, in turn, was partially owned by a trust benefitting Benson and his relatives; (2) in 2007, to give $500,000 to his son, Eric, to purchase a home; (3) in 2009, to repay approximately $2.5 million on a loan for an entity in which he owned a partial interest; and (4) in 2009, to purchase 25 percent of a real estate partnership, Baden Spiel Haus, in the name of an entity owned by Benson, his wife, and their sons, for $99,010. (Id.)
Dr. Nievod questioned Benson regarding his recollection of these events and summarized their discussions in his report. (See Nievod Report at 6-8.) During the interview, the defendant revealed his ability generally to recall the factual circumstances surrounding the events at issue in this case, as well as his thought processes regarding certain relevant decisions. For instance, Benson recalled that prior to the plan's establishment, two alternatives were considered: (1) direct payment of a share of profits to employees annually, or (2) establishment of a deferred pension plan, maintained by ERG and funded with a share of annual profits. He explained that the second option was approved and went into effect in 1977.
With respect to the $500,000 payment in 2007 to his son, then an ERG employee, Benson characterized the payment as a loan that had been fully repaid. He said it was never his intention to steal money from the fund and described the "loan" as "a simple use of funds in a small, closed corporation for a time-limited purpose with no intention to personally profit . . . and no intention to harm the [plan] in the long term." (Id. at 7.) Instead, it stemmed from "his desire to help his son and his son's family by extending a loan to him for a short period of time with the understanding that [it would be repaid] as soon as possible." (Id.) Notably, these revelations to Dr. Nievod were apparently in response to general prompts regarding the issues in the case, as well as specific follow-up questions, and do not appear to have been aided by Benson's contemporaneous reference to documents.
Once Dr. Nievod began asking more detailed questions regarding the plan, Benson requested that his attorney be present. The three met the following week. During that meeting, Dr. Nievod apparently asked Benson to continue to discuss the events at issue in the indictment. Benson explained that he entered into various transactions on behalf of the plan, including investments in deeds of trust and mortgage instruments during the real estate boom. Benson purportedly "used simple, concrete language to describe the nature of the transactions and his recall of his thought processes at the time." (Id.) Benson noted that his high-risk investment strategy—focusing on offshore properties (including speculation in parcels that he expected to increase in value as a nearby commercial port was built)—had turned out to be a poor choice. Nevertheless, he defended his decisions as a "common" folly made by investors prior to the 2008 economic recession and one that he had intended to result in outsized returns for the plan. (Id.) Benson admitted to having significant control over the plan's funds and investments and to making a series of poor choices on its behalf.
B. Medical Evidence Considered
As a preliminary matter, the Court notes that Dr. Nievod's conclusions relied heavily on the accuracy of other doctors' "letters" regarding Benson's mental condition, namely those signed by: (1) Dr. Lenard Saputo, Benson's most recent primary care physician, and (2) Dr. Serggio Lanata, a clinical fellow at the University of California, San Francisco ("UCSF") specializing in behavioral and cognitive neurology. The hearing revealed that while each signed a "letter" containing statements about Benson's neurological condition, the letters themselves were drafted by Benson and used, unknowingly and unintended by the doctors, for the purpose of evaluating Benson's competency in a criminal proceeding. To describe the collapse of Benson's meticulously crafted house of cards, the Court begins with the testimony of Benson's primary care physician, Dr. Lenard Saputo, and his office assistant and nurse, Gabriele Eichner.
Dr. Saputo began his testimony on Friday, February 6, 2015. The Court required him to return on February 9, 2015 with his office assistant to clarify details surrounding the referral letter.
1. Dr. Lenard Saputo
Benson began seeing Dr. Saputo decades ago. After an approximately ten-year hiatus beginning in April 2001, Benson returned to Dr. Saputo's care on February 9, 2011. They are not social acquaintances. Elizabeth Benson has also been Dr. Saputo's patient for several years. He confirmed that she currently suffers from dementia and poor balance. Of particular relevance here, Benson visited Dr. Saputo four times in 2014: on January 30, February 27, May 26, and July 16, at which point Benson received a "referral" to UCSF's Memory and Aging Center. (See Ex. 97 at BENSON-10707-08.) He has not returned since. Notably, nothing in Dr. Saputo's medical records documents irreversible mental decline in Benson. (See generally Ex. 97.) At most, Dr. Saputo noted appropriate concern towards a patient self-reporting "memory loss." Thus, the evidence reveals:
During the January 30 visit, Dr. Saputo noted "personal issues" were causing Benson a great deal of "stress": problems with the Internal Revenue Service, his wife's condition, his recent loss of weight (ten pounds), and that he was "drinking too much." The latter notation was likely based on Benson's own reporting as well as Dr. Saputo's observation of telltale signs—"flushed" face and "dark" and "dusky" nasal coloring. (Dr. Saputo testified that Benson's later-reported memory problems could be based on this alcohol consumption, anxiety, and stress.) Dr. Saputo ordered some lab tests and asked Benson to return the following month.
Dr. Saputo noted it was common for patients to suffer from stress when a spouse has dementia.
During Benson's February 27 return visit, Dr. Saputo noted that Benson had slipped in the rain and fractured his ribs. He observed continuing tenderness along the right anterior ribs. Of particular relevance, Dr. Saputo admitted, reluctantly, that his other "routine" observations explicitly noted that Benson's neurological condition was "grossly normal" based on a visual screen. Dr. Saputo underplayed the notation by stating he had not done any detailed examination.
In response to one probing question, Dr. Saputo said: "The rest of [the notes are] not significant and would add nothing to this case," because they were merely "routine findings." When pressed, he began reading off the findings very quickly. At that juncture, the Court admonished Dr. Saputo of the importance of the proceedings and noted he seemed irritated. He responded: "I understand. I'm not irritated. I'd like to try and help." For the remaining portion of his testimony, he was more cooperative. (Later in his testimony, when asked what the proceedings were about, he said: "I have no idea, actually, what this is about. I've heard that this is a criminal case, which surprised me.")
When Benson returned on May 26, he indicated that he had been under a great deal of stress and that he needed a letter for a purpose undiscernible from Dr. Saputo's records, but later revealed to be for a bail hearing. (The resulting letter, signed June 2, 2014, is discussed more fully below.)
Finally, on July 16, Dr. Saputo saw Benson for ten minutes, noting: "Needs referral to UCSF Alzheimer's clinic, questionable memory problems." Dr. Saputo agreed to provide the requested referral. While he admits referral letters are typically cursory, this one was not. Rather, it featured prominently in Dr. Nievod's competency evaluation and read as follows:
Please know that I am an internist and the primary care physician for Burton Benson (Admiral Benson) who has been my patient for over forty years. Upon his request and my evaluation of his condition it is recommended that the Over 80 Clinic performs an extensive neurological, neuro-psychological evaluation.(Ex. 97 at BENSON-10748, Letter from Len Saputo, M.D., Health Medicine Center, to Mary DeMay, M.D., UCSF Memory and Aging Center (July 31, 2014) ("July Referral Letter").)
Admiral Benson's condition is a loss [sic] or cognitive decline, memory loss, confusion and magnetic gait. His primary concern, which I agree with, is his ability to recall in detail various contracts and agreements that he was the primary negotiator [sic].
In late August the Admiral will be at a legal hearing and it must be determined prior to this event if he has the ability to recall exact contract details, complicated financial dealings, past investment decisions, and whether he has full cognitive abilities.
Attached please find his medical records. Please note this is a time sensitive request and should be given the highest priority. If I can be of assistance please do not hesitate to contact my office at 925-935-7500.
Sincerely,
Len Saputo, MD
Pursuant to Dr. Saputo's office policy, Benson's earlier chart was destroyed in January 2009. While this letter, drafted by Benson, indicates he has been Dr. Saputo's patient for more than forty years, Dr. Saputo does not know whether or not that statement is accurate. Dr. Saputo did confirm that Benson became his patient "decades" ago.
When questioned on the accuracy of the evaluation contained within the letter, Dr. Saputo acknowledged the letter bore his signature, but the language and "style" of the letter were not his. Initially, he believed it was prepared by his staff, but was not concerned about the details contained therein, given that it was, in his mind, a simple referral. In light of his view of the purpose of the letter, Dr. Saputo acknowledged that, before signing it, he had not reviewed Benson's file nor a report included therein of Dr. Michael Murphy, which had found Benson's neurological condition and gait to both be "normal" during a March 20, 2014 visit. (See Ex. 97 at BENSON-10758.)
Dr. Saputo acknowledged that the letter's statements of Benson's "condition" were "overstated," and Benson's referenced "confusion" was, in fact, "very mild." Dr. Saputo said the term "magnetic gait" was not in his lexicon. At most, the doctor testified that Benson was: "a little bit slower" and not as "deep [of] a thinker" as he was in the past. Dr. Saputo explained: "He wasn't nearly as quick to answer my questions. It's almost like he had to think about it more to give me the answers that he was going to provide." Dr. Saputo acknowledged he had made no contemporaneous record of those observations.
Upon instruction by the Court, Dr. Saputo investigated the origins of the referral letter and upon his return, corrected his earlier testimony, explaining that the letter was based on a draft provided to him by Benson, not Dr. Saputo's staff, and that "most of the language" in the final letter was Benson's. Dr. Saputo merely "casually read it" and "made a few corrections," i.e., fixing grammatical errors. He thought the details did not matter and did not view it as "a document that's terribly important." He "didn't know what it would lead to," other than an appointment for an evaluation at UCSF. In short, it was simply intended to make the referral in a way that "kept Admiral Burton Benson happy."
Dr. Saputo testified that it is not normal for a patient to write their own referral letter.
Dr. Saputo's office manager, Gabriele Eichner, confirmed Benson's role in providing the draft. In fact, she testified this was the second letter she had retyped from a draft prepared by Benson for the doctor's signature. The first followed Benson's May 26, 2014 visit. During that visit, according to Dr. Saputo, Benson said he would be sent to "jail . . . unless there was a reason for him to be caring for his wife" and that he needed a letter from the doctor to avoid that outcome. Dr. Saputo signed the requested letter, addressed to Benson's attorney, on June 2, 2014. (See Ex. 200, Letter from Len Saputo, M.D., Health Medicine Center, to Izzy Ramsey, Esq. (June 2, 2014).) Dr. Saputo admitted that this letter was also derived from a poorly written draft ("not what I would expect from him") provided by Benson and edited by the doctor. Again, by contrast, Eichner testified more persuasively that she retyped the June 2 letter from Benson's draft and that neither she nor the doctor made any edits. Notably, the letter detailed the history of Elizabeth Benson's condition going back eight years, including: (1) her specific diagnosis in 2006 ("normal pressure hydrocephalus, which is excessive fluid in the cranial cavity that causes abnormal pressure on the brain"), (2) a surgery she underwent in 2010 ("to relieve this pressure by surgical [sic] implanting in the brain a shunt valve to drain the excessive fluid"), and (3) the results of that operation ("[t]hree months after the neurosurgery the shunt had a catastrophic failure and drained too much fluid from the cranial cavity[, causing] the brain to be torn from the skull causing a subdural hematoma [and resulting] in loss of short-term memory, dementia, loss of balance, unsteady gait, total bowel and bladder incontinence, and damage to the synapses that transmit the brain signals to the legs that make walking impossible"). (Id.) The letter also lauded Benson's "extreme devotion" to his wife: that he personally cared for her sixteen hours each weekday and on weekends and that he closely managed her physical therapists and caregivers and interacted with her three neurologists at UCSF. (Id.) Dr. Saputo testified that he had no personal knowledge of Benson's caretaking schedule.
Eichner was tasked with typing up the hardcopy draft provided by Benson and inputting Dr. Saputo's handwritten edits. Dr. Saputo speculated that the poor grammar he claimed to have noticed in Benson's draft might have been due to Benson's cognitive decline. Eichner, in contrast to Dr. Saputo, recalls only minor changes, e.g., changing "Primary Care Physician" to lowercase. She sent the letter to UCSF and left a copy for Benson to pick up, as he had requested a copy.
In summary, Dr. Saputo testified: "Admiral Benson has a need to control things and wants to be certain, in my opinion, that nothing is left out that will help to achieve what he's trying to accomplish." Ultimately, the Court finds Dr. Saputo's responses and tone reflected a concern for his patient's health and a desire to please him at, what he believed, was no cost. Said differently, he considered the contents of the July Referral Letter to be insignificant, apparently completely unaware—despite clear indication within the letter itself—that the "findings" contained therein were used for a much more important purpose. In retrospect, Dr. Saputo confirmed he would have sent his own perfunctory referral letter, rather than forwarding the template provided by Benson.
Dr. Saputo explained: "If I could do it all over again, I would have written the letter myself, if I knew what was involved." He would have simply written "something quite simple," such as, "[w]ould you please do a consultation for this man who may have some problems with—with his memory and perhaps with his balance." (Emphasis supplied.)
Notably, having received the referral, Benson has not since returned to see Dr. Saputo.
2. Dr. Serggio Lanata
Dr. Lanata, presently a clinical fellow at UCSF specializing in behavioral and cognitive neurology with a sub-specialty in cognitive disorders and changes in behavior, spends about two-thirds of his time on clinical care and the balance on research. His research focuses on the overlap between neurology and psychiatric diseases.
Dr. Lanata first saw Benson on August 28, 2014, pursuant to Dr. Saputo's referral. (See Ex. 75B.) At that time, Dr. Lanata had not yet reviewed Benson's medical records. Although the clinic advises patients to come with a caregiver, spouse, close friend, or the like, so that those individuals can be separately interviewed to gauge the accuracy of a patient's recollections or assertions, Benson presented unaccompanied.
Benson told Dr. Lanata that he was CEO of a private engineering firm, ERG, where he was deeply involved in both administrative and creative aspects of the company, from negotiating contracts and attending meetings to designing products. Benson self-reported a deterioration of his cognitive abilities: "I feel I am losing my cognitive abilities. . . My long-term analysis of details is the hardest." (See Ex. 75D at UCSF-0001.) Benson claimed he first noticed this decline about three years prior and described having difficulty remembering details of negotiations from weeks or months ago while having clear recollection of events from recent days. (See Ex. 75B at BENSON-10155.) Benson claimed his short-term memory was fine, with no difficulty recalling recent events or upcoming appointments. (Id.) However, he said multi-step tasks and learning new things were becoming more difficult. (Id.) He self-reported "confusion" occurring periodically, which purportedly resulted in two car accidents, an instance of "disorientation" when looking for a store's exist, and his overlooking a critical step while doing routine car maintenance. (Id.) Benson said he was specifically concerned about his ability to testify appropriately in case any "catastrophe" happened at ERG. (Id.) He also said he had developed issues with his gait about six months prior, which required him to "think" merely to walk or else he felt as if his feet were "glued" to the floor—although he denied having fallen during that period. (Id.) Moreover, he indicated his left hand started tremoring a year and a half prior. (Id.) Benson told Dr. Lanata that he remained independent in daily living, cared for his wife, and continued to drive.
The Court notes that it has never observed the defendant, in his numerous appearances in this case, walking such that his feet appeared to be "glued" to the floor.
Dr. Lanata noticed Benson's hands tremor during the examination when outstretched, and explained the tremor may have been caused by long-term alcohol use, although there are other possible causes as well.
Here, again, Dr. Lanata had no knowledge at that time that Benson was a defendant in a criminal case or that the purpose of the examination might be related to Benson's competency to stand trial. He also did not know that Benson had in fact fully retired from ERG and had been ordered to stay away from the premises. The doctor had no reason to doubt the veracity of his patient's assertions and therefore accepted Benson's reports at face value. He believed he was dealing with a typical, concerned, elderly patient. For that reason, he did not take the types of precautions he would have taken in cases where he suspected "secondary gain"—i.e., where a patient may have an ulterior motive for seeking a particular diagnosis. Had he been aware of the possible motive, he would have alerted his superiors and a more experienced attending physician probably would have seen the defendant. Dr. Lanata also would have alerted the neuropsychologist that conducted Benson's testing, as methods exist to test for malingering. Most importantly, Dr. Lanata admitted his own investigation and conclusions would have likely been different had he been fully aware of the relevant circumstances, including the genesis of the "findings" in Dr. Saputo's referral letter.
With Benson's "chief complaint" regarding long-term memory as a starting point, Dr. Lanata began his examination, which consisted of three main components: (1) his own clinical interview, (2) a neuropsychological evaluation, and (3) imaging (i.e., an MRI). The first two are highly susceptible to manipulation by a patient while the third is not.
As of the date of Dr. Lanata's testimony, a formal report by the neuropsychologist had not been finalized.
Here, the clinical interview was fully dependent on self-reported information given Benson's failure to bring any third parties who could corroborate his representations. In his examination, Dr. Lanata followed a systematic approach, addressing the four primary cognitive domains: memory, language, executive function, and visuospatial function. His examination also touched on the patient's motor, sensory, and autonomic systems; gait; sleep; and various other systemic issues. He noted that Benson seemingly had difficulty with remote memory details, such as when the doctor pulled up ERG's website and questioned Benson about the specifics of certain company products.
After Dr. Lanata received and reviewed Benson's additional medical records, he prepared a report dated September 2, 2014. (See Ex. 75B.) Dr. Lanata ordered an MRI to follow a "dementia protocol" based upon a preliminary diagnosis of mild cognitive impairment ("MCI"). (See Nievod Report, Attachment 6.) On September 24, 2014, radiologist Barkovich administered the MRI and found in pertinent part as follows:
Dr. Lanata may diagnose MCI even where a particular patient is still average for his age group where there are indications that the patient used to be substantially above average in cognitive ability.
Prominence of ventricles and sulci compatible with global volume loss without a lobar predilection. Bilateral periventricular and subcortical white matter areas of FLAIR hyperintensity likely the sequela of senescent microvascular change. Small focus of FLAIR hyperintensity at the left aspect of the pons at the level of the brachium pontis.
Small area of encephalomalacia in the right peripheral cerebellar hemisphere.
No mass or mass effect. No hydrocephalus. No abnormal extra-axial fluid collections. No reduced diffusion.(Id.)
No suspicious marrow signal abnormality within the calvarium.
Fluid within the left mastoid air cells.
IMPRESSION:
1. White matter findings likely reflecting senescent microvascular change.
2. Encephalomalacia in the right cerebellar hemisphere likely sequela of remote infarct.
Based upon his training and experience, Dr. Lanata testified as to his understanding of the technical terminology used in the radiologist's report, upon which Dr. Lanata based his own subsequent report: First, the report indicated that Benson's entire brain mass had shrunken in size as commonly occurs as a result of aging. The decrease was not localized to a particular region of the brain, suggesting the absence of a disease process impacting a single area. Second, the presence of lesions in both sides of the brain, mainly in the frontal lobe, was likely the consequence of aging. Third, similar lesions were present in the base of the brain. Next, the report ruled out various indicators of maladies, such as recent strokes or a condition that would cause confusion, and confirmed that the bone structure of the skull appeared normal. Finally, the report noted fluid in mastoid air cells, which may have been a sign of sinusitis, congestion, or the like. In summary, it indicated microvascular changes in the brain that the radiologist thought were due to aging. The report also reflected evidence of a stroke at some point in the past. Dr. Lanata noted that there is no way to tell when the stroke occurred; it could have been decades ago.
Dr. Lanata next explained that he analyzed the images themselves, not just the report, and came to his own conclusion in light of his more complete—though now admittedly questionable—knowledge of the patient's history. Dr. Lanata's interpretation of the MRI in light of his examination and the neurocognitive testing was that Benson may have suffered from cerebral vascular disease, which may or may not have had any noticeable impact on Benson's cognition. Dr. Lanata pointed to Benson's risk factors for vascular disease, such as his history of smoking, drinking, and heart arrhythmia. Dr. Lanata noted cerebral vascular disease is not the same as vascular dementia—which results in a significant impact on the patient's ability to perform everyday tasks, such that they cannot function independently. He did not find such impairment in Benson's case.
On October 21, 2014, Benson returned for a follow-up visit with Dr. Lanata. (See Nievod Report, Attachment 4.) Dr. Lanata's report of the visit included the following pertinent observations:
[Benson] is followed in this clinic for evaluation and management of slowly progressive cognitive decline and mild motor changes including action tremor of the hands and subtle changes in gait. His cognitive concerns mostly involve the executive function domain. . . .(Id.)
His neuropsychological testing during our first appointment was notable for mildly impaired learning, recall, and recognition of verbal information, although he demonstrated better preserved recognition abilities compared to learning and spontaneous recall. He struggled with only one of the visuospatial tasks (VOSP). He demonstrated slow processing during verbal tasks, and scored below average on working memory tasks; [h]e was error-prone during executive function tasks, and scored within the impaired range in lexical fluency task.
As a whole, Mr. Benson's clinical presentation is consistent with mild cognitive impairment (MCI) at this point, given that his cognitive difficulties have not led to limitations in basic and instrumental activities of daily living . . . .
Since our last appointment Mr. Benson has been doing ok, he denies noticing any significant changes. There have been no accidents at home. He is fully retired from his position at the aerospace engineering company he used to run, and now spends most of his time managing family-owned businesses and rental properties. He also has been trying to spend more time enjoying his vacation home.
Near the end of the follow-up visit, Benson asked Dr. Lanata to prepare a letter summarizing his findings to give to Benson's lawyer, who purportedly managed his "records." Shortly thereafter, Benson gave the doctor a paper printout of a prewritten letter, addressed to Benson's attorney, for the doctor's signature. Dr. Lanata called Benson and said he would go through the draft letter and try to help. Either on the day of the call or perhaps the following day, Benson unexpectedly showed up at the clinic asking for his signed letter. He waited for Dr. Lanata to complete it. At that point, Dr. Lanata took Benson's "template" and made some edits for accuracy so that he could provide Benson the requested letter. Believing Benson to be extremely anxious and perhaps somewhat obsessive about the state of his cognition, Dr. Lanata signed the letter considering it to be harmless, and more importantly, therapeutic for his overly anxious patient. Dr. Lanata intended the letter solely to ameliorate Benson's anxiety—he had no knowledge of these proceedings, this case, or any other pending litigation involving his patient. Despite Benson's claim that the letter was solely for record-keeping, it found its way into Dr. Nievod's competency evaluation. The text of the letter, which also relies on portions of Dr. Saputo's misguided "referral letter," follows:
Dr. Lanata has been unable to locate a copy of Benson's "template."
I have been asked by Admiral Benson to inform you of his current neurocognitive state. I follow Admiral Benson in our clinic at the Memory and Aging Center, University of California, San Francisco, where I practice as staff neurologist. I specialize in behavioral neurology, also known as cognitive neurology.
Admiral Benson was referred to our clinic by his primary care physician for evaluation of a two year history of cognitive decline in the domains of memory and executive function. For example, he is no longer able to recall details of important business meetings that took place weeks to months prior; he is unable to do mental calculations as he used to, and his ability to process complex issues is weakened. These deficits have been noted by two of the leading managers that work with him.
Admiral Benson is the President and CEO of an Aerospace Corporation that provides services and products to the Department of Defense and NASA for Space Exploration. He is the final person that approves the design of the customer's product/s. In the event of any failure of his approved product within the system the corporation could be liable for such approval. Such failure is normally followed by an inquiry and investigation to establish the cause of such failure. The approving authority, in this case Admiral Benson, must have full cognitive abilities at all times to defend his decision for approval.
I regret to inform you that Admiral Benson is no longer capable [of] fulfilling the requirements of his job as described above, due to his cognitive impairment. My assessment is based on careful clinical examination, which included detailed neuropsychological testing and an MRI scan of the brain. Admiral Benson's neuropsychological examination revealed impaired memory, executive abilities, and working memory abilities. His brain MRI is notable for bilateral, predominately frontal lobe white matter disease. As a whole, his clinical, neuropsychological, and
radiographic profile point towards dysfunction of the frontal lobes bilaterally.(Nievod Report, Attachment 5.)
It is my opinion that Admiral Benson is no longer capable of fulfilling the expectations of his job as described above. Indeed, I don't think Admiral Benson is capable of providing the background to support his design and production decisions in a reliable way. Furthermore, if he were involved in a legal proceeding involving one of his products, I do not think he would be capable of reliably recalling the facts involved in the case to provide a credible defense for his actions.
Sincerely,
Serggio Lanata, MD
Dr. Lanata noted that he made every effort to ensure the accuracy of the letter before signing it and, based on what he knew at the time, believed it to be accurate. However, had he known about these criminal proceedings, he would have been more concerned about Benson's seemingly innocuous request. Dr. Lanata said that his MCI diagnosis and conclusions in the letter were largely based on Benson's self-reported information, which at the time he had no reason to question. Now he does. During Dr. Lanata's testimony, he indicated that while he does not know whether or not Benson was lying to him during his assessment, he feels he might have been "manipulated in a way." He said a patient could easily "misdirect a clinician intentionally to think that he or she has mild cognitive impairment." For instance, he testified:
You just have to tell me that you're having trouble with cognition and that you can't remember things, and I'll hear you, I'll document it, and then I'll send you to a neuropsychologist. And if you're not providing enough effort[] [during the testing], the neuropsychologist will probably . . . reach a similar conclusion. It's possible.
If Benson had lied to him, Dr. Lanata explained, "then, of course, you can invalidate my clinical interview [and] probably . . . parts of the neuropsychological testing," but not the MRI. However, he also testified that the MRI itself cannot lead to a diagnosis of MCI:
. . . I think the crux of this—the crux of this is how much of all this data can we question. And my personal opinion after hearing everything that's happened, I have my doubts about my entire interview with him. I have doubts about the neuropsychological testing for the reasons that I mentioned earlier.
Undoubtedly he has white matter disease, he has cerebrovascular disease factors, he's got some white matter changes. And I also stated in this Court that some people that have that white matter
disease are perfectly fine. You know, this is not—it's not hard-core science that you look at an MRI and you know exactly how this person is functioning. . . .
If I—if I were to question all this data, I would say that I have no clue. I don't know. If you remove the history and you question the neuropsychological assessment, you're just left with an MRI, and that's it. And therefore you don't know. I don't know.
Dr. Lanata further explained that while short-term memories typically fade before long-term memories, the reverse is also possible. Higher-level thought processes entail use of "executive functions," which are employed for tasks such as driving a car or writing a letter—tasks which Benson is still doing. Finally, while Dr. Lanata admittedy could not rule out an underlying neurodegenerative disease, he was unable to diagnose one even crediting Benson's self-reported claims.
Dr. Lanata explained that to the extent Benson had any difficulty with memory retrieval, his recollection could potentially be triggered by reminders—e.g., reviewing relevant notes, contracts, or other documents. Dr. Lanata also recommended Benson cut back from his self-reported 2-3 alcoholic drinks consumed per day and tobacco use and improve his diet and exercise, which could lead to reverses in MCI, were it present.
Unlike Dr. Saputo, who testified reluctantly, Dr. Lanata appeared genuine, forthright, and forthcoming in all of his answers, including in addressing his own mistakes. He frequently offered additional detail and clarification voluntarily. He did not exhibit any bias and consequently the Court finds him highly credible.
3. Dr. Abraham J. Nievod's Report
The Court now moves to Dr. Abraham Nievod, recommended by the defendant and appointed by the Court to conduct a competency evaluation. Dr. Nievod submitted a report to the Court on November 12, 2014, in which he diagnosed Benson with mild to early moderate vascular neurocognitive disorder. (Nievod Report at 33.) He concluded that Benson "would have great difficulty participating in his defense and aiding his counsel on issues that involve the reconstruction or elaboration of past actions involving issues within the domain of Executive Functions: reconstructing complex, multi-step processes and plans in past [sic]; the strategies and reasoning associated with his motivation and intention in carrying out purposive actions; [and] the strategic arc of his plans including interim adjustments to his strategies and his consideration of alternatives to his plans." (Id. at 42.)
Dr. Nievod's report is based upon: (1) his interviews of Benson; (2) his neuropsychological testing of Benson using the Wechsler Memory Scale—IV ("WMS-IV"), the Wechsler Adult Intelligence Scale—IV ("WAIS-IV"), the Boston Naming Test ("BNT"), the Dementia Rating Scale—Second Edition ("DRS-2"), and the Wiconsin Card Sorting Test ("WCST"); (3) his review of Benson's medical records (including the problematic letters from Drs. Saputo and Lanata); (4) his interviews of ERG employees Melody Carter (Benson's former administrative assistant) and Bryan Leyda (current CEO and former chief engineer), both of whom worked for Benson at ERG for decades; and (5) his review of various materials related to this case, such as the indictment.
The report is 42 pages long without attachments. It contains approximately four pages of biographical data based on information provided by Benson; two pages summarizing the indictment in this case and Benson's knowledge of related issues; brief summaries of Dr. Nievod's interviews with the two ERG employees; several pages dedicated to summaries of Benson's medical records; sixteen pages dedicated to Benson's results on the five neuropsychological tests administered by Dr. Nievod; six pages presenting his diagnosis; and four pages regarding his conclusion.
Dr. Nievod's testimony revealed that he did not actually write much of this section. Rather, he uses a program which automatically generates "narratives" and tables based on scoring data. He generally copied this language, sometimes making misleading or incorrect modifications.
The five sets of test results recorded in Dr. Nievod's report suggest Benson's intelligence is high (typically in the 90th percentile range and in the 98th or 99th percentile range on certain subtests) and his memory average for his demographic group. One, Benson's WMS-IV results were all within the normal range. Two, his WAIS-IV results showed a full scale IQ of 125 (95th percentile), with working memory at the 77th percentile for his age group. All of his memory scores on that test were within normal ranges. Three, on the BNT, his score was 55 out of 65, falling within the 31st percentile for his age. Four, on the WCST, most of his scores were in the 99th percentile for his demographic group and all were above average. Five, the memory score on the DRS-2 was the only area where Benson fell outside the normal range. However, the DRS-2 is a test typically used in patients where dementia has already been diagnosed or is strongly suspected and where a perfect score on part of the test therefore falls within the 41st to 59th percentile range. Dr. Nievod's theory underlying his diagnosis is that in light of Benson's high level of intelligence, his memory baseline was likely higher and therefore has apparently declined from that estimated baseline.
Dr. Nievod testified over the course of five days at the hearing. While his collection of data from Benson generally appears appropriately documented, his diagnosis and conclusions were irredeemably discredited through cross-examination. Highlights follow.
As to circumstances casting doubt on Dr. Nievod's attention to detail or forthrightness:
• Hours into his testimony, Dr. Nievod disclosed for the first time that he had produced much of the report while suffering from a severe flu which lasted throughout most of October and November 2014. This illness "complicated things and made it harder to go through the report critically." It also contributed, along with him "being careless," to a number of specific errors detailed below.
• During one of his earliest meetings with Benson, Dr. Nievod suggested to Benson that he obtain a referral to UCSF, Stanford, or Berkeley, for neurological evaluation. Dr. Nievod ultimately based his report on UCSF medical records but failed to disclose in his report that he had recommended Benson visit UCSF. Instead, the report noted the visit was solely based off the recommendation of Dr. Saputo (who testified he made the referral only because Benson had requested it).
Dr. Nievod testified: "Yeah, I—you know, I think that, in retrospect, is probably an oversight on my part."
• As referenced earlier, Dr. Nievod admittedly copied large portions of his report from computer software-generated "narratives" based on Benson's test scores. Dr. Nievod's changes, or lack thereof, resulted in outright incorrect or misleading representations to the Court:
? Dr. Nievod reported that Benson "was not fully oriented to today's day of week, date, month, and year; the current President, Governor, and Mayor; and the names of this building and city." (Nievod Report at 19.) To the contrary, Dr. Nievod testified that in reality, Benson only failed to name the Mayor of Orinda (where he lives) and not any of the other items listed. Dr. Nievod then defended the representation, arguing it was appropriate to include the sentence in its entirety so long as Benson had failed to recall any one of those nine items. He ultimately apologized to the Court for including this false or, at best, highly misleading sentence in his report.
? Dr. Nievod's report stated Benson had failed consonant and vowel perseveration tasks on the DRS-2 (e.g., stating Benson had failed to repeat "bee, key, gee" four times in a row). To the contrary, Dr. Nievod's records reflected Benson had passed both the consonant and vowel perseveration tasks. (Compare Nievod Report at 18, with Ex. 98 at BENSON-11157.)
? The computer-generated narrative for the DRS-2 states: "Benson was able to think abstractly on a concept formation task." (Ex. 98 at BENSON-11156.) In Dr. Nievod's report, he changed that sentence to: "Benson had some difficulty in thinking abstractly on a concept formation task." (Nievod Report at 19.) Benson's score on the abstract concept formation task was 7 out of 8. (Ex. 98 at BENSON-11156.)
• Dr. Nievod failed to follow basic instructions included in this Court's July 10, 2014 Order (Dkt. No. 175) appointing him to conduct a competency evaluation—such as
to provide copies of his report to the parties. He acknowledged he did not recall (or, presumably, review) these instructions prior to finalizing his report.
• Dr. Nievod's testimony revealed that the version of his curriculum vitae submitted to the Court prior to his appointment (Ex. 106) contained certain false or misleading information. For instance, it lists his position as a "Consultant Psychologist" starting in 1979 when he was in fact not licensed as a psychologist until 1983 (before that time, he was apparently licensed as a marriage and family therapist). See Cal. Bus. & Prof. Code §§ 2902-03. He claimed this was merely "out of carelessness," albeit now for decades. His resume also suggests he has previously served as a certified expert witness before the Ninth Circuit and this District, but he could not recall the names of the judges or cases when questioned.
• He misreported his interview of Bryan Leyda, stating: "Mr. Leyda added . . . that Admiral Benson was really like Captain Queeg in the movie The Caine Mutiny. In the movie, Captain Queeg was an aging Naval Commander with obvious signs of mental instability, with obsessive compulsive traits, who became more unstable, anxious, and paranoid when the men under his command challenged his competence." (Nievod Report at 11.) The report fails to note that Dr. Nievod himself had first proposed the comparison to Captain Queeg near the end of his interview with Leyda, and Leyda had merely concurred in Dr. Nievod's suggestion.
• On the DRS-2 "Attention (ATT)" test worksheet, Dr. Nievod admitted to incorrectly adding 7 plus 2 to total 8: "It looks like it, unfortunately." (See Ex. 98 at BENSON-11223.) However, he apparently entered the correct number into the computer scoring program.
"As is obvious, I wrote parts of this [report] when I . . . had a fever and had the flu." He explained: "I had a fever, couldn't keep food down, I had diarrhea, I wasn't getting out of bed, I ached all over. And, you know, what made the condition worse is that I have diabetes and I have to eat. When you can't hold down food it's difficult to maintain the right levels of insulin and so that was difficult and contributed to how long the disease last[ed]." In explaining his failure to respond in a timely fashion—or at all—to certain emails sent to him by the government during this period, he stated there were "days when I just couldn't get out of bed" and that he had difficulty "just to get from the bedroom to the kitchen."
In regards to circumstances undercutting Dr. Nievod's analytical approach:
• Dr. Nievod contradicted himself with respect to the standard used. Initially, he suggested that he did not write his report with an objective standard in mind. He said he had merely looked to whether Benson had subjectively suffered any degradation from an estimated baseline that would impact his ability to assist his
counsel. Dr. Nievod reached this estimated baseline not based on historic test results but instead by looking to contemporaneous verbal scores, which Dr. Nievod believes to be firmly established and therefore reflective of a patient's prior abilities. Dr. Nievod then reversed himself, stating he employed an objective standard of "fully functioning cognitive ability." When the Court asked him to confirm he had employed that "fully functioning" standard, he changed course yet again: "No, that was a mistake. Adequate cognitive ability to be able to do the conceptual problems or to solve the conceptual problems that allow him to assist counsel."
• Dr. Nievod testified as to his heavy reliance on the letters from Dr. Saputo and Dr. Lanata but he did not interview either of them and therefore failed to discover that Benson had himself drafted those letters.
• Dr. Nievod did virtually nothing to account for the possibility of malingering. The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (2013) ("DSM-V") defines malingering's "essential feature" as "the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as . . . evading criminal prosecution . . . ." (DSM-V at 726.) Moreover, malingering "should be strongly suspected" in the case of a self-referral while criminal charges are pending or in the presence of antisocial personality disorder. (Id. at 727.) Dr. Nievod acknowledged that if he had known Benson had written the letters signed by Drs. Saputo and Lanata, he would have had concerns about Benson possibly malingering for purposes of secondary gain.
• Dr. Nievod solely relied on his own instinct and judgment to discern whether Benson was malingering. He did not ask any questions or employ any tests that are
specifically designed to determine whether a patient is malingering. Indeed, his testimony reflected a lack of knowledge about any questions or tests he could have used for that purpose. Instead, he testified that he merely noted Benson's "attention" and ability to "focus" and looked at "patterns" of answers, because in his view, where patients are malingering, they do one of two things: (1) answer randomly to look "strange or bizarre" or (2) answer poorly across the board to "look bad." He determined that Benson would have been "one of the world's worst malingerers," because malingerers want to do as badly as possible to make sure it affects the score, by "answering randomly" or "suppressing [the] number of answers" they provide across the board. Dr. Nievod apparently did not account for the possibility that Benson—who Dr. Nievod considers to have a superior level of intelligence—adopted a more nuanced approach to malingering, whereby Benson targeted certain questions or tests for intentionally weak performance.
• Dr. Nievod reluctantly admitted his diagnosis (if not his ultimate conclusion) would change in the absence of Dr. Lanata's report, not knowing that Dr. Lanata had become concerned he had been manipulated and believed his report was unreliable.
• Dr. Nievod testified that, in his opinion, Benson was "impaired" in areas where he had scored above the 80th percentile for his age group.
• Despite reaching a diagnosis of mild vascular neurocognitive disorder under the DSM-V, Dr. Nievod's report did not identify any analysis of the first criterion required for such a diagnosis. He testified as to that missing criterion: "It's simply assumed." That missing criterion requires a diagnosis of a major or mild neurocognitive disorder. (DSM-V at 621.) He never persuasively explained how he purportedly reached that diagnosis, stating it was based on Benson's self-
reported concerns about a purported cognitive decline interfering with his work and thought processes. Moreover, the DSM-V's diagnostic criteria for a major or mild neurocognitive disorder requires a finding that "[t]he cognitive deficits are not better explained by another mental disorder (e.g., major depressive disorder, schizophrenia)." (DSM-V at 603, 605.) However, Dr. Nievod failed to rule out the presence of other possible disorders, such as major depressive disorder, merely relying on the absence of any such diagnosis by Dr. Lanata.
• Dr. Nievod asserted that a section on "Executive Function" in the Fourth Edition of Neuropsychological Assessment by Muriel D. Lezak, et al. (2004), supported his theory that the discrepancy in test results between Benson's memory performance, on the one hand, and his anticipated performance based on his high intelligence level, on the other hand, suggested impairment. But Dr. Nievod conceded the two case studies provided in the relevant section featured substantial objective evidence of impairment. For instance, one involved a former surgeon who, after suffering hypoxia during a cardiac arrest, still scored highly on intelligence tests but was no longer able to live independently or manage his own affairs.
• Generally, Dr. Nievod had poor familiarity with his own report and often lacked facile or accurate recollection of its contents. Seemingly straightforward questions were often followed by long periods of silence while Dr. Nievod paged through his report, often fruitlessly, in search of an answer.
• Dr. Nievod appeared unreasonably defensive of his report and its conclusion. When asked how confident he was in his ultimate conclusion, Dr. Nievod did not answer the question, but merely reiterated his conclusion. When asked on one occasion if any accommodations could enable Benson to assist his counsel, Dr.
Nievod did not answer the question, but merely repeated his conclusion.
• Dr. Nievod did not employ rigorous testing regimes. For instance, he failed to ask Benson before each testing session questions about any recent use of drugs or alcohol or sleep problems that might negatively impact his test performance. Dr. Nievod only asked such questions at the start of their first session, even though the testing occurred during multiple sessions throughout August 2014.
• Dr. Nievod appeared biased against the government. For instance, on his second day of testimony, Dr. Nievod said a document shown to him during the first day of testimony "left me speechless and feeling like I was dumb" because the document purportedly reflected he had made a basic addition error. He then suggested the government had manipulated or "photo-shopped" the document. He was never able to locate the purported document or substantiate the accusation in any way.
Dr. Nievod noticed a statement in Dr. Lanata's letter that suggested Benson remained employed at ERG, and knew the statement to be false, but failed to note the telling discrepancy in his report.
Dr. Nievod testified: "One of the main reasons I thought he was not malingering is despite that it was in his interest to look bad, he had some spectacular scores [that were] probably at the 98, 99 percent-level of responses. Now if someone were malingering, they just don't score that high. They just don't perform at a top level on certain tests."
An excerpt from Muriel D. Lezak et al., Neurological Assessment (4th Ed. 2004) was admitted as Exhibit A based upon Dr. Nievod's stated reliance on the text. The doctor was asked to review the relevant section on "executive function" during the course of his testimony and opine on its significance.
When asked to recall supermarket items in connection with the DRS-2, Benson named "beer" and "liquor" as two of seventeen items.
Finally, the report apparently failed to analyze a number of relevant issues, such as:
• The lack of a documented history of neurological problems in Benson's medical records predating the motion for a competency hearing filed by defense counsel in June 2014. For example, the report did not address a file in Dr. Saputo's medical records based on a Stanford Hospital and Clinics evaluation, dated April 8, 2014, noting Benson's neurological condition and gait were "normal." (See Ex. 100D at NIEVOD-0873.)
• Whether transient factors, such as Benson's alcohol use or stress and anxiety related to legal proceedings and his wife's condition, might have been a cause of any cognitive impairment detected by the testing.
• Whether Benson's request that his attorney be present for certain questioning relating to the underlying charges indicated an awareness of specific risks surrounding the proceedings and therefore a high level of executive functioning. (See Nievod Report at 6.)
• Whether Benson's recollection of details surrounding his decision to resign from active duty in the Navy in the mid-1960s, and other events from decades ago, reflected in the report, undermine the report's conclusion regarding Benson's long-term memory ability. (See id. at 3-4.)
• Whether Benson's recollection of the specific events relevant to this case and the decision-making processes involved therein—such as his decisions to (1) establish a deferred pension plan for ERG instead of paying out certain profits to employees directly, and (2) invest pension funds in real estate during a booming economy prior to the 2008 recession—undermined the report's conclusions regarding Benson's ability to assist his counsel. (See id. at 6-8.)
• Whether the fact that Benson drafted at least three letters for his doctors to sign in connection with this case suggested a high degree of executive functioning.
Remarkably, Dr. Nievod testified that it seemed to him neither suspicious nor notable, in light of these proceedings, that the earliest significant report of memory problems in Benson's medical records occurred in July 2014.
Dr. Nievod failed to ask whether Benson primarily drank wine or hard liquor, despite admitting that a higher alcohol level would have a greater impact on cognitive ability.
Ultimately, and contrary to his conclusions, portions of Dr. Nievod's report and his testimony support a finding of Benson's capacity to understand the proceedings and reasonably assist his counsel. Dr. Nievod described noticing "gaps" in Benson's memory while Benson was going through narratives of events from decades ago. However, the doctor explained that upon further prompting, Benson was able to provide additional details. Dr. Nievod testified that Benson had remembered facts surrounding the initiation of the pension plan at issue in this case. Dr. Nievod appeared to confirm that Benson could discuss "macro" issues such as his prior views on whether or not he was able to use ERG's pension funds for his own benefit. Dr. Nievod also testified that if Benson could access contemporaneous records such as notes, contracts, checks, or the like, his recollection of past events could be at least somewhat refreshed. Dr. Nievod's determination that Benson could not assist counsel was premised upon his unsubstantiated and unwarranted belief of other doctors' purported medical findings and conclusions. He thus found that Benson: "can't use the same resources that he had three, five years ago into the past because he doesn't have them. And he can't reconstruct his thinking because it's not there anymore." The Court disagrees that the medical evidence supports such a stark conclusion.
Dr. Nievod testified that: "people who make decisions at an average IQ will [consider], let's say, five factors. . . . [I]ncreased intelligence involves more and more factors and more and more detailed reasoning. And if you compare the two, there are just gaps in the ability to recall the reasoning and the basis for the decision. Not that they can't do it, but the real reasoning process they used in the past and what it meant to them will have increasing gaps in his ability to recall how he came to execute these acts."
C. Anecdotal Evidence Considered
The testimony of the following eight lay witnesses corroborates an undisputed fact: Benson is an elderly man. The weight of the testimony, however, shows him to be highly intelligent and to recall details from years past. Five of the lay witnesses are third parties (Donald Odell, Chris Patterson, Theodore Schultz, Bill Ryder, and Marc Maier) and three are the defendant's relatives (Bradley Benson, Eric Benson, and Evelyn Hermsmeier). The Court begins with the non-familial group.
1. Donald Odell
The government called Donald Odell, a lawyer and a member of Benson's Bible study group since 2001, to describe Odell's personal and business interactions with Benson. Both attended baseball games together (most recently in the summer of 2014) and served on the board of a Boy Scout troop. Importantly, in 2013, they entered into a business transaction regarding a financial partnership in a Truckee, California vacation home. Odell continues to see Benson regularly, although he has only been to Benson's home once and does not consider him a close friend.
a. Business Transaction
Odell recalled that he had once told Benson that the Odell family enjoyed skiing. In approximately October 2012, apparently recalling this fact, Benson approached Odell about a possible investment, namely purchasing a 25 percent share of the "Baden Spiel Haus" partnership that owned a cabin near Lake Tahoe. The share in question was held by "Acacia Properties," apparently then controlled by Benson, but the deal involved other partners as well. After a year of negotiations Odell entered into an agreement to purchase the share for $110,000 on October 1, 2013. (See Ex. 56H at BENSON-08564, Ex. 56J.) The ERG retirement plan funded the $110,000 price as an interest-only loan for up to ten years with a balloon payment due thereafter. (See Ex. 56J.) Benson signed the promissory note on behalf of the trust. (Id. at BENSON-08563.)
During his year-long negotiation with Benson, Odell had no concern about Benson's capacity to negotiate the deal. Benson discussed the relevant issues intelligently and never appeared confused in any way. They negotiated the price and terms of the note, such as interest amount and payment period. Benson did not forget any relevant details during the extended negotiation period, unless forgetfulness was the cause of his delay in obtaining a valuation. Moreover, after the deal had closed, Benson followed up with Odell regarding aspects of the transaction, such as a "friendly reminder that your ERG Retirement Note interest payment for the first quarter of 2014 has not yet been received by the trust." (See Ex. 56L at BENSON-08682.)
A number of emails sent by Benson during that time period suggest he had not forgotten about the need for an appraisal, but that the process of obtaining one was nevertheless moving "at a snail's pace." (See, e.g., Ex. 56-L at BENSON-08588.) The Court is mindful that he may also have been preoccupied with court cases.
Less than a year after closing, Odell notified the partners of his intent to withdraw from the partnership. Before doing so, he had met with Benson and Benson's sister-in-law Evelyn Hermsmeier to discuss financial issues regarding the cabin. The withdrawal process was ongoing as of February 24, 2015, but again, he noted no anomalies in Benson's ability to address these issues.
b. Bible Study
Odell's interactions with Benson include regular Bible study sessions. The group meets on Sundays starting around 7:30 a.m. Benson typically arrives on time. The two have sat at the same table for the last five or six years. While Odell has noticed that Benson appears more tired and makes fewer group announcements, Benson still participates in group discussions, appearing "alert and aware of what is going on, [contributing to] conversations, and follow[ing] along with the discussions at the table and what's being taught." Benson engaged in small talk, for instance, at the group meeting three days before Odell testified. At one point, Benson raised his hand and made a remark that was "appropriate" under the circumstances.
In general, Odell testified that Benson appears focused on and dedicated to his wife: "he's stepped up beautifully" in caring for her. Odell has also noticed some signs of Benson aging, explaining that Benson moves more slowly now.
In light of his demeanor and regular and systematic contacts with Benson over an extended period of time, the Court found Odell a highly credible witness who offered considered but forthright answers throughout his testimony.
2. Chris Leroy Patterson
Chris Patterson, an attorney for Orbital ATK Inc. (a defense contractor and ERG customer known, prior to a recent merger, as Alliant Techsystems Inc.) ("ATK"), testified as to several conversations he had with Benson during 2013 and 2014 regarding Benson's attempts to circumvent IRS levies. ATK manufactures Trident D5 missiles. For years, ERG, as a "qualified supplier," has been ATK's sole provider of baffles, a missile component.
The Court notes that Patterson identified Benson as the individual he had spoken with by listening to a voicemail recording of Benson's voice. The Court mentions this fact to demonstrate Benson's in-court attentiveness: When the government first indicated it planned to play the audio recording, Benson's legal team sat silently, making no objection. Benson abruptly leaned forward and said something to them. In apparent response, defense counsel then objected to the recording's use.
Qualifying an alternative supplier for the baffles would have been a long and expensive process, likely costing more than $1 million and requiring a missile test-fire.
Around June 2013, ATK received a tax levy from the IRS (for approximately $23 million) on any funds payable to ERG. ATK began receiving these levies regularly, each issued by "Bill Ryder" with the IRS, with the amount at issue increasing due to accumulated interest. Benson called Patterson shortly after the first levy arrived. At the time, ATK owed around $40,000 to ERG. Benson claimed the levy was a "mistake." He said ERG's legal counsel would overturn it, and he wanted the $40,000 to be paid immediately. After receiving a letter from ERG's outside counsel stating a stay had been filed and the funds were therefore no longer subject to the levy, ATK paid ERG. Patterson later learned that the IRS rejected the stay application.
Benson apparently characterized Ryder as an extremely zealous advocate who bore a grudge against ERG.
As the levies continued to flood in, Benson held conference calls with ATK, seeking to modify their contract in order to sidestep the levies. He wanted to change the "net 30" arrangement (whereby ATK paid ERG thirty days after product delivery) to a "net zero" (immediate payment). Benson claimed ERG's other customers had all agreed to switch to "net zero," but would not identify them. ATK refused to modify its agreement with ERG for the sole purpose of circumventing IRS levies, even after Benson offered them a discount for doing so.
As an alternative to a "net zero" setup, Benson proposed a second, more complex plan: ERG would set up a U.K.-based distributor, which would in turn sell the parts to ATK. Benson believed payments to the foreign distributor would not be subject to the levies. Apparently ERG started "going down the path of setting up [the foreign] distributor," but the plan was abandoned.
Benson then developed a fourth scheme to circumvent the levies. He wanted ATK to push the Department of Defense to place a high "defense priority rating" on receipt of the baffles, due to their importance to the missile program. In Benson's view, this rating could supersede the IRS levies. ATK, however, refused to interfere with the activities of multiple government agencies.
Finally, according to Patterson, Benson asked ATK to assist ERG with its application for a temporary restraining order ("TRO") against the IRS. To that end, Patterson received what he believed was an email from Benson including a draft declaration (and instructions) for ATK's ratification, to be used in connection with the TRO proceedings. ATK proposed edits to the draft declaration to ensure its accuracy. Patterson believed Benson was upset by the suggested changes and felt ATK was "not being a good customer." Throughout their conversations, Benson demonstrated a clear understanding of the issues being discussed.
The contents of the proposed declaration were highly detailed and included the following statement: "[i]f ERG is unable to manufacture and deliver its products, immediate and irreparable harm will befall the national security interests of the United States because there is no available substitute for ERG's materials." (Ex. 87B.) The draft declaration raised the defense priority rating issue. (Id.) Interestingly, Benson's placeholder declarant was "John Paul Jones," an important figure in the history of the U.S. Navy.
3. Theodore Christian Schultz
The government called Theodore Schultz to elaborate on his communications with Benson in 2014 regarding tax levies. The Court recounts the salient testimony:
Schultz, outside counsel for United Services Automobile Association and its various related entities including a banking institution servicing military veterans (collectively, "USAA"), testified that he spoke twice by phone with someone who identified himself as "Admiral Benson." Each call lasted about ten minutes.
USAA received a tax levy from the IRS dated January 9, 2014 in the amount of $6,486,951.94 in connection with an account in Benson's name. (See Ex. 61D.) The account apparently had no funds when the levy arrived. Funds were subsequently deposited into the account (totaling no more than $3,000). Even though the levy was apparently no longer in effect, USAA froze the account on suspicion of illegal activity. In February 2014, it received a number of faxes from "Benson" complaining of the action and threatening legal ramifications if USAA did not release the funds. (See Exs. 61A-E.) One of Benson's faxes explained that USAA had improperly "determined that the IRS should be paid a sum of money in response to the Levy even though at that time there were no funds in the subject account," and noted that "any such payment to the IRS will be a direct liability of USAA." (Ex. 61B.)
They were identified as being sent by "RADM B. O. Benson, USN (Ret)" and ended with the sign-off "Admiral Benson sends." A similar sign-off was employed in emails purportedly sent by Benson to ERG customer ATK. (See Ex. 87B (ending with "Benson sends").) Bradley Benson testified that his father Burton Benson's "common practice" was to conclude a fax or memorandum with "Benson sends."
When Schultz spoke with Benson on February 17 or 19, Benson said he was an admiral and understood how these regulations worked, more specifically, that the levy could only pertain to the funds in the account as of the date at issue; it was not ongoing. Schultz testified Benson: "certainly . . . understood what a [tax] levy was[,] . . . a demand that money be paid from a financial institution to the IRS to cover a tax debt," and appeared to understand the "workings" of the levy. Benson's tone was forceful and upset—typical of other individuals whose accounts are frozen.
Schultz believes he called the "office telephone number," (510) 658-9785, listed on the faxes received from "Benson." (See Ex. 61C.)
Subsequently, two ERG accounts at USAA, with balances of approximately $50,000 and $180,000, were transferred to the IRS pursuant to another levy. Benson again contacted USAA complaining of this transfer in April or May of 2014. Benson argued the levies should not apply to the accounts in question because they were retirement accounts and levies on such accounts required a higher level of governmental approval (a signature from the Secretary of the Treasury or a designee thereof). Once Schultz informed Benson the funds had already been turned over to the IRS, Benson no longer attempted to persuade and "understood that he was going to have to go to the IRS." Schultz explained there was an administrative process for Benson to challenge the levy. Benson replied it would be fruitless to do so because the IRS would not return the funds. Schultz testified that Benson did not appear confused during the calls.
4. Bill Ryder
The government called Bill Ryder, a recently retired revenue officer at the Internal Revenue Service, to discuss Ryder's sporadic phone interactions and brief in-person encounter with Benson between 2011 and 2014. The calls related to IRS cases involving Benson and ERG, which Ryder was overseeing.
Ryder first spoke with Benson by phone in 2011 for five to ten minutes. Benson told Ryder he had served in the Navy. Ryder responded that he, too, had served in the Navy—during the Vietnam War. During one call, they discussed Benson submitting a financial collections statement on IRS Form 433-A, but Benson said he would not sign anything under penalty of perjury.
Ryder explained that Form 433 does, in fact, include a certification that it is being signed under penalty of perjury.
When they spoke by phone on October 20, 2014, approximately three years later, Benson remembered that Ryder had once served in the Navy and mentioned the same during the call. The call lasted ten to fifteen minutes. In these conversations, Benson appeared to understand what a tax lien was.
5. Marc Maier
Finally for this category of non-familial lay witnesses, the government called Marc Maier, an Orinda branch manager for Mechanics Bank, because of his interactions with Benson in 2014 and visual observations of Benson's conduct during 2014 and early 2015. Maier's interactions with Benson were brief; they last spoke in June 2014. Early on, Benson came to the branch on several occasions, typically within a few days of a large transfer into an ERG account bearing his son Bradley's name. During those visits, Benson unsuccessfully attempted to draw cashier's checks on the account. He would usually return soon thereafter with his son and get the checks. On those occasions, the defendant, not his son, would do most of the talking. Maier testified: "he seemed he knew what he was doing . . . ." Interestingly, the cashier's checks would be re-deposited into the account "on an as-needed basis," presumably when expenses, such as payroll, were due.
Most recently, Maier recalled seeing Benson return to the bank around January 2015, attempting to cash a check from a tenant's Mechanics Bank account and payable to an entity called "Benson Properties," which did not have an account with Mechanics Bank. Pursuant to bank policy, the request was denied and Benson left with the check uncashed. Benson seemed stressed and "a little weak" during the visit. The year before, Benson had "seemed normal."
6. Bradley Dewitt Benson
The first member of the defendant's family to testify was his son, Bradley Benson. Bradley began working at ERG full-time in 2008 after graduating from college. He started as sales and marketing director and ultimately became a vice president of the company. Bradley left the business in June 2014. In recent months, he has only seen his father every couple of weeks for short periods of time, largely staying away on advice of counsel. Bradley still lives in two houses "owned" by his father, which the defendant uses to coerce his son through threats of eviction. Bradley generally described his father as controlling. During the hearing, Bradley discussed his father's (a) prior work habits and purported schemes; (b) recent conduct and demeanor; and (c) alcohol and tobacco use.
In February 2015, prior to the date of his testimony, Bradley Benson entered into civil forfeiture and immunity agreements with the government. (Ex. 109.)
Bradley testified that the defendant would become angry and argumentative, such as by raising his voice, if an employee went against his will. Bradley said other employees were scared of the defendant, who was apparently not forgiving of mistakes. The defendant also told Bradley—who, along with his brothers, was on ERG's board of directors—that directors could be removed. Due to his father's control over Bradley's living situation, the Court found some of Bradley's testimony unpersuasive.
a. Prior Work Habits and Purported Schemes
The defendant typically worked at ERG between 11 a.m. and 6 p.m. on weekdays. He spent much of his time handling investments, including for ERG's pension plan. The defendant would typically prepare daily "priority sheets," which he typed in Microsoft Word and distributed to ERG employees. Bradley testified that his father made typographical errors or other similar mistakes in recent years when drafting those priority sheets—nothing "devastating" but enough that the errors were noticed and corrected in red pen by one of the supervisors.
The defendant remembered to recycle old priority sheets, printing on the reverse side to save paper.
Bradley described a number of schemes orchestrated by his father and in which he participated, often without a complete briefing.
For example, Bradley explained that his father had changed the corporate entity that ran the business, from "Energy Research and Generation" to "ERG Aerospace," in 2007. His father referred to them as "Old Co." and "New Co.," respectively. Throughout the years, Benson continued to refer to them thusly, and reminded his sons frequently about the importance of maintaining a "firewall" between the entities. Bradley believed the purpose was to evade any liabilities of the old company. Until the first tax levy arrived, Bradley had not understood the source of his father's constant "concern." Benson explained to Bradley that the IRS was wrongly coming after the company and he planned to fight back. After his arrest, the defendant held a staff meeting at ERG and claimed he had been wrongly accused. He said he was arrested for making "too much money" for the pension plan, referencing 34 percent returns. The defendant mentioned that specific figure—34 percent—on "numerous occasions."
Facing a barrage of levies, the defendant sought Bradley's assistance in his attempts to evade them by opening new bank accounts. While Bradley initially refused to help, he complied after his father told him lawyers had approved of the plan. In advance of meeting with the bankers, Benson told Bradley what to say. Because Bradley could not answer the banker's follow-up questions, his father often took over the conversations. When they learned that they could not open an account in the company's name because of its suspended business license, Benson sent Bradley to file what was apparently "d/b/a" paperwork with the county. With the "d/b/a" in hand, Benson instructed Bradley to open up an account in his own name, "doing business as" ERG. Bradley returned to the bank and found that his father had already completed the necessary paperwork. They ultimately opened multiple bank accounts in this fashion. (See, e.g., Exs. 48, 50.) Using these new accounts, ERG customers would deposit funds and Bradley would withdraw them via cashier's checks at the direction of his father or his father's assistant, Melody Carter. The idea was apparently to keep account balances low, so if any levies came in, few funds would be lost. At the defendant's insistence, Bradley provided a stack of signed blank checks to his father and Carter. The defendant stored the cashier's checks in the office safe.
Bradley's father made the requests personally more than two-thirds of the time. Moreover, his father made "the final decisions of—of which money went where and how much was coming out." The defendant would get upset with Carter if she did not follow his directions or contradicted his decisions.
In another attempt to sidestep the levies, the defendant switched from the "net 30" billing timeline discussed above to a "net one" with many of ERG's customers.
Finally, Bradley recalled his father's attempt to safeguard one of many properties he controlled from IRS scrutiny. The defendant noticed the IRS had failed to identify one of his properties at Donner Lake. Thereafter, he gave Bradley paperwork to sign transferring title in that property from its holding company, Acacia Properties, L.P., to a new entity, EM&B, LLC (an acronym for Eric, Mark, and Bradley, the defendant's sons). (See Ex. 54 at BENSON-10542.) EM&B, LLC was to be owned by the defendant's sons. The defendant explained his purpose in instituting the transfer: to ensure the property could not be seized by the government. The defendant told Bradley to keep the transfer on the "down-low."
b. Recent Conduct
Although he no longer works for his father, Bradley described recent discrete incidents. The Court recounts those reflecting on the defendant's memory and capacity to operate independently:
• The defendant now works out of his own personal office in Orinda at 357 Village Square. The defendant's sister-in-law, Evelyn Hermsmeier, also has an office at that address. Bradley stopped by once to help his father set up an email account. He testified that his father always lacked strong computer proficiency. The defendant selected "admiralbbenson@gmail.com" as his email account.
• Since the summer of 2014, Bradley received a number of voicemail messages from his father. In one instance, remembering Bradley owned a battery charger, Benson asked if he could borrow it. (See Ex. 85.)
• His father still drives up to his vacation home on Donner Lake, most recently in the past year.
• The defendant recently left Bradley an article with job interview tips (Bradley was looking for work at the time), and a note explaining how his son could sign up for automobile insurance through USAA.
It was a "big deal" when his father sent his first email sometime after 2008.
With respect to the defendant's physical appearance, Bradley reported:
• The defendant has become "a little bit slower [and] a little bit older." This purported decline has been steady, not sudden. The defendant lost weight due to a throat problem that has since been largely resolved through surgery. He neither walks as smoothly and rapidly as he once did nor with the same "purpose." Bradley said his father sometimes becomes confused and is not as "sharp" as he once was. Bradley explained that his father no longer uses the precise language he
once employed (e.g., to refer to specific structural pieces of a building) and instead substitutes in the word "whatever." Bradley testified that his father now takes longer to grasp concepts that were once "no-brainer[s]." However, Bradley stated he does not have much recent experience witnessing his father's long-term memory. Bradley also said his father appears to have trouble following the subject of a conversation when a pronoun is substituted for a noun and therefore becomes "frustrated."
• Not surprisingly, during his supervised release, the defendant has appeared under stress and overwhelmed. He also lost weight and usually appears tired.
With respect to Bradley's mother, he reports caregivers stay with her between 10 a.m. and the early evenings on weekdays. Hermsmeier is with Elizabeth when the caregivers leave until the defendant arrives home later in the evening. The defendant will care for her until the next morning. During weekends and vacations, the defendant and Hermsmeier share caretaking duties. The defendant will cook meals for his wife and assist her with other daily tasks.
c. Alcohol and Tobacco Use
Bradley also shed light on his father's alcohol and tobacco use. When he gets drunk, the defendant at times becomes aggressive. The defendant's daily drink of choice is Beefeater Gin. As "standard procedure," he had a couple of gin and tonics on the rocks before dinner, one or two glasses of wine at dinner, and a nightcap thereafter. Bradley last saw his father intoxicated around Christmas 2014 over a holiday video chat. His father's eyes were watery and his speech was slurred. Moreover, Bradley saw his father drink and drive within the past year. The defendant also smoked cigars three or four days a week.
Benson's medical records list him variously as an "Every Day Smoker" of cigars for 14 years (Ex. 75B at BENSON-10159) or as a "Former Smoker" of one cigar a day for forty years (Ex. 99 at ZIMM-0060).
7. Eric Burton Benson
The government called Eric Benson, the defendant's son, to describe his observations of his father's mental abilities in recent years. Eric worked for ERG as operations manager between August 2006 and August 2011, thereafter returning to active duty in the Navy. In recent months, he has rarely seen his father.
Eric Benson was criminally indicted along with his father and ultimately entered into a cooperation agreement and various forfeiture agreements with the government, resulting in a dismissal of the indictment as it pertained to him in August 2014.
a. Observations at ERG
Throughout Eric's time at ERG, the defendant ran things at the plant and had "total control" over daily activities at the company. He also managed investments. Eric testified that it was his father's practice to take notes during meetings. He would then refer back to those notes to refresh his recollection before a follow-up meeting. In 2007, at his father's direction, Eric submitted paperwork to incorporate ERG Aerospace. Eric corroborated his brother Bradley's testimony regarding the defendant's focus on maintaining a "firewall" between what he referred to as "Old Co." and "New Co."
Eric and various ERG supervisors prepared a daily schedule every night, presumably the "priority sheet" described by Bradley. They would typically start from that day's schedule and mark it up by hand. After the markup was complete, they would give the draft to the defendant, who would type up a new version for the next day. It was difficult to read the marked up version because it included many handwritten notes from various supervisors. Sometimes the final version would include misspellings or typographical errors, but "it's a long sheet" with many opportunities to make errors. Essentially, according to Eric, it was "very easy to make a mistake [and] we all made mistakes on the sheet . . . ." Eric did not recall anyone making comments about errors in his father's final drafts.
b. Recent Observations
Eric has only seen his father three times recently, outside of court. First, he saw his father briefly over Labor Day weekend in 2014, at Donner Lake, but had no substantive conversations or relevant observations.
He then saw his father at a 2014 Christmas Eve pageant at church. Eric was sitting in the pews. His father walked by pushing an empty wheelchair to get his wife. Benson jokingly asked Eric whether he needed a ride, and Eric responded that he did not.
Finally, the two spoke briefly at a nativity play on Christmas of 2014 featuring Eric's children. The defendant arrived late, pushing his wife in a wheelchair, and explained his tardiness by stating he incorrectly believed the event started an hour later than it did. Eric noted that his father "seemed like he usually does," observing "nothing out of the ordinary."
Seeing his father in court on the day of his testimony, Eric said that he "looks horrible" as compared to 2011, "he's very skinny [and] a lot more frail." However, Eric said that his father tried to "crack jokes" in the hall outside in an attempt to "break the ice." Eric did not notice any cognitive changes, although the encounters were "very brief."
8. Evelyn Hermsmeier
Benson only called one witness, his sister-in-law Evelyn Hermsmeier. Hermsmeier has known Benson since he married Elizabeth in the early 1960s. She testified as to Benson's purported recent mental decline as well as his ongoing ability to care for his wife.
Her testimony was limited by assertions of her Fifth Amendment rights. Hermsmeier has been a widow since 1988 and the only family she sees regularly are her sister Elizabeth, Benson, and their children. She admitted some financial dependence on the defendant. For example, she explained that the defendant "has been very good to me over the years," including taking her on family vacations. Moreover, she apparently owns a business that sells industrial byproducts produced by ERG. Sales come in through her website and ERG ships out the goods. She then pays a share of the income to ERG, although apparently she has not made any payments to ERG in recent months despite sales being processed. She testified that the pending case has "devastated the whole family" and that she is "very worried" about the possibility of the defendant's incarceration. Regarding her ability to care for her sister alone, she testified: "I cannot do that."
a. Recent "Decline"
Evelyn said Benson's self-confidence has decreased in the last several months. She said she started noticing issues with his "gait," describing his movement as slower than it once was. She said they can no longer have lengthy conversations because he gets confused by the use of pronouns and has difficulty staying focused. This decline apparently started in August or September of 2014 and has been getting progressively worse. (Due to these changes, she said she would no longer ask him for financial advice.) Evelyn claimed she did not know Benson's competency-related evaluations commenced during the same period. She said that she had not previously noticed any cognitive issues in Benson that raised any red flags.
Interestingly, she used the word "gait" to describe his manner of walking, the same term used by Benson to describe his own condition. Dr. Nievod testified that, as a general matter, "[n]obody uses the word 'gait' except doctors or physical therapists."
Since then, Evelyn claims the memory decline has become more apparent. In response to a question, "[i]t disturbs him that he doesn't know or can't answer me." However, she admitted her discussions with Benson generally do not implicate his long-term memory.
She based this opinion in part on Benson's failure to fix things around the house as quickly as he once did. She also acknowledged that Benson's old handyman, an ERG employee, no longer works for Benson, which could easily explain the lack of attention to maintenance issues.
b. Elizabeth's Care
Since Elizabeth's condition worsened nearly three years ago, Evelyn has assisted in her care. She confirmed Bradley's testimony that on weekdays, she typically arrives at Benson's house at 4 p.m. to relieve the caregivers and stays until Benson gets home, often several hours later. She assists with Elizabeth on weekends when the defendant requests her help, although he provides the bulk of the weekend care. Also, on Wednesday mornings, Evelyn dresses her sister and gives her breakfast before the defendant drives Elizabeth to a social program.
Evelyn testified that Benson is "totally devoted" to Elizabeth and while he occasionally loses patience with her, "she depends on him [and] looks forward to him coming home at night." Evelyn explained that he does a "very good" job of caring for Elizabeth and that "I would know if he's not good to her[,] Liz would tell me." He typically cooks dinner for Elizabeth. Evelyn is "not at all" worried that Elizabeth will go hungry under his care. He also takes her to social events.
Evelyn typically speaks with the defendant two or three times a day, for five or ten minutes. Topics of conversation may cover issues with caregivers and upcoming doctor's appointments for Elizabeth. In particular, they discuss any changes in Elizabeth's condition of note.
Since they have offices in the same building now, Benson frequently stops by for supplies or to ask questions. She has seen him working on his computer and talking on the phone but does not know, specifically, what business he is transacting. They periodically go out to dinner together with Elizabeth or have dinner together at Evelyn's home. As for Benson's drinking history, she claimed to have little knowledge about it, but said he would have a couple of drinks when over to her house for dinner. She said that he brought a box of liquor and wine to her home shortly before her testimony and told her that he had stopped drinking and now feels much better in the morning.
In that regard, she explained that Benson has always been "on the same wavelength" with Elizabeth's doctors and understood the complex and evolving intricacies of Elizabeth's condition, much of which Evelyn could not understand herself. Evelyn is "absolutely not" worried that Benson will forget to bring Elizabeth to an upcoming appointment at the UCSF aging clinic because he writes appointments down "everywhere," although he might if it were not written down. In this arena, he would not compromise. At Elizabeth's most recent medical appointments (prior to the defendant's motion for a competency hearing), Benson was able to remember fully details regarding his wife's condition, reviewed X-rays with the doctor, and generally understood "what was going on."
IV. DISCUSSION
Over the course of the hearing, the weight of the evidence revealed that Benson was competent to stand trial, having the requisite capacity to understand the nature of the proceedings and to reasonably assist counsel with his defense. All evidence to the contrary is of little persuasive value, in many instances having been manufactured by the defendant or subject to his ready manipulation and contradicted by objective evidence.
In reaching this determination, the Court finds, first, that Dr. Nievod's ultimate conclusions are not credible. Second, the relevant medical evidence pointing to incompetency was either inconclusive or subject to Benson's manipulation. Third, objective evidence points to Benson's general competence, including in regards to (a) his memory and (b) his ability to make strategic trial decisions. Fourth, to the extent he has had any difficulty recalling details of past events, sufficient documentation is available to refresh his recollection. The fact that he may not recall every detail of a specific transaction does not render him incompetent. Many people, young and old, may find themselves in a similar predicament. No evidence exists that Benson cannot recall his general approach and actions with respect to the plan assets. To the contrary, he revealed that he could to Dr. Nievod. The Court addresses each of its findings below:
A. Dr. Nievod's Conclusions
Dr. Nievod's diagnosis and theory of incompetency are flawed and thus do not persuade. The reliability of his final diagnosis and conclusions are in question for the many reasons noted above, including his misleading statements or omissions in the report and his apparent failure to account properly for the possibility of malingering. Dr. Nievod also apparently reached his diagnosis without considering all relevant DSM-V criteria.
Dr. Nievod's "theory" of incompetency does not comport with the Lezak standard he based it upon. Dr. Nievod argues that a highly intelligent individual, such as Benson, may be significantly impaired even with test results that are otherwise within the realm of normal, where the individual scores substantially lower than an estimated baseline on certain memory tests. The facts in this case, however, are a far cry from those discussed in the literature Dr. Nievod cited in support of the approach. Those case studies included a substantial amount of corroborating evidence, none of which exists here. Instead, in this case, the objective evidence suggests a lack of impairment, or at least a lack of any substantial impairment. In addition, Dr. Nievod could not even be certain that a person properly diagnosed with "small vessel ischemic disease," without more, would fall within the scenario contemplated by the treatise.
In the two examples provided in the Lezak treatise regarding executive function impairment, substantial objective evidence supported a finding that the individuals were impaired. In one case, a former surgeon who had suffered hypoxia during a cardiac arrest continued to score highly on intelligence tests (ranging from the 75th percentile to the 99th percentile), and within normal limits on other tests. (Ex. A at 35-37.) Nevertheless, after the incident, he was no longer able to live independently (e.g., "it took several years of rigorous rule setting to get the patient to bathe and change his underclothes each morning"). (Id.) He began working for his brother—who had become his legal guardian—as a delivery truck driver, lived in a room in his brother's home, and had no interest in or knowledge of his financial affairs or plans for the future. (Id. at 36-37.) In the other example, a woman who had "survived a head-on collision" thereafter "displayed a complete lack of motivation with inability to initiate almost all behaviors including eating and drinking, leisure or housework activities, social interactions, sewing (which she had once done well), or reading (which she can still do with comprehension)." (Id. at 35-36.) The treatise notes that "[m]any of the behavior problems arising from impaired executive functions are apparent even to casual or naive observers." (Id. at 36.)
Moreover, Dr. Nievod's relevant experience was limited. The Court inquired as to Dr. Nievod's prior evaluations in an effort to understand the quality and subject-matter of his previous work. Dr. Nievod was unable to recall the specifics of the two other competency exams he had previously testified to having performed only a month earlier in 2015 or those he had performed in 2014. He explained that fewer than five percent of his expert work conducted over the past five years involved criminal competency examinations. The majority of his expert work is apparently conducted in probate proceedings. Before this case, Dr. Nievod had never focused a competency evaluation on the question of an individual's ability to assist counsel.
In the absence of any strongly corroborating evidence, the Court finds Dr. Nievod's conclusions without sufficient foundation, having been admittedly premised on an inconclusive MRI and false, misleading, self-reported, or readily manipulable information. See Izquierdo, 448 F.3d at 1279. Of particular relevance, Dr. Nievod conceded that his conclusions were based on physician letters revealed during the hearing to have been drafted by Benson himself and whose contents were disavowed by their signatories.
B. Medical Evidence
The medical evidence establishes that Benson has suffered a stroke at some point in the past—perhaps decades ago—and presently has white matter disease likely developed in the normal course of aging (possibly worsened by lifestyle choices, such as regular drinking and smoking). He generally performs well on neuropsychological testing and his below-average (but still sufficient) performance on certain tests was likely the result of targeted malingering. Nothing points conclusively, or even probably, to any practical impairment of his cognitive abilities—let alone a substantial impairment that would render him incompetent to stand trial. For example, Dr. Lanata testified that some people with white matter disease "are perfectly fine."
Benson conveniently reported his purported symptoms for the first time in the months leading up to this competency hearing, despite claiming the issues have existed for years. Prior to that time period, Benson's medical records did not reveal the relevant neurological symptoms. To the contrary, they indicated his functioning in those areas was "grossly normal" and that his subsequently reported memory issues were "questionable." Perhaps not coincidentally, his reported symptoms mirror several of those suffered by his wife and with which he is intimately familiar. His "long-term" physician Dr. Saputo said if Benson suffered any confusion, it was "very mild," and he would not describe Benson's gait as "magnetic." Earlier medical records on multiple occasions also described Benson's neurological condition and gait as normal.
For instance, one of the letters he drafted for Dr. Saputo's signature indicated Elizabeth Benson suffered from memory loss, loss of balance, and unsteady gait, among other symptoms. (See Ex. 200.)
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Benson resisted independent corroboration. He always went to UCSF alone, despite the center's standard instructions to bring a third party who could be individually questioned to verify the patients' self-reported information. He misrepresented to his physicians the basis for his concern (e.g., suggesting he was worried about his ability to perform in his role as CEO of ERG, a position which he had already resigned), failing to mention these proceedings. Upon learning the true reason for the testing, Dr. Lanata testified he might have been "manipulated" by the defendant. Thus, his examiners failed to account properly for the possibility of malingering. Even still, neuropsychological test results from UCSF and Dr. Nievod's interviews and testing largely supported a finding of competence. With respect to the few results that did not, the examiners failed to utilize tests or questions intended to detect the level of effort employed, and therefore, the likelihood of malingering.
Notably, Benson has also generally not followed up with doctors after achieving his goals (i.e., receiving their signed letters for use in connection with these proceedings), nor did he follow Dr. Lanata's advice and stop drinking (at least until his alcohol use became an issue during the course of the hearing)—actions one would expect from an individual truly concerned about the possibility of suffering from dementia, and not merely attempting to create a persuasive record.
C. Evidence of Competence
Substantial evidence before the Court supports a finding that Benson is generally competent to stand trial. Benson has continued to live independently, care for his wife, manage his personal affairs, drive, and attend church and Bible study (where he contributes meaningfully to discussions).
He has both "a rational as well as factual understanding of the proceedings against him" and a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." Dusky, 362 U.S. at 402. There is no doubt that he understands the nature of this case. For instance, he knew to request his attorney's presence when Dr. Nievod's questioning turned to specific factual issues involved in the underlying action. He is capable of assisting counsel as is constitutionally required. The evidence shows he has the ability to recall events from decades ago in sufficient detail. He is also readily capable of making necessary trial decisions.
As to his memory, and therefore his ability to assist his counsel in his defense by recalling past events and decisions, ample evidence in the record supports a finding that his recollection (both short- and long-term) is adequate. In his personal and business dealings with Donald Odell, for instance, he remembered that Odell was an avid skier from an earlier conversation, recalled details of their ongoing negotiation over the course of almost a year, and sent Odell reminders regarding missed interest payments. He was able to understand the "workings" of a tax levy and drive ongoing schemes to evade incoming levies. When he needed a car battery charger, he remembered Bradley had one he could borrow. When reading an article on job interview tips, he remembered Bradley was looking for work, so he dropped the article off at his son's house. Benson recollects specific details of his wife's medical condition and her medical appointments such that he is able to care for her and communicate intelligently with her doctors. This is supported by the letter he drafted for Dr. Saputo's signature, which includes details of his wife's progressive condition going back to 2006, when she was diagnosed. (See Ex. 200, Letter from Len Saputo, M.D., Health Medicine Center, to Izzy Ramsey, Esq. (June 2, 2014).) In 2014, Benson remembered that Bill Ryder had served in the Navy, a fact that Ryder had mentioned on a short call back in 2011. In discussing his background and this case with Dr. Nievod, the defendant recalled the basis for his decision, half-a-century ago, to resign from active duty. He also remembered other details of his long ago and recent past, including his specific decision-making process regarding the pension plan's formation and investment strategy—the sort of issues he would presumably need to recall in order to assist his counsel in preparing a defense. His recent decision to stop drinking (subsequently entered as a condition of his supervised release, with continual monitoring) may further improve his memory.
As to his ability to make necessary decisions, it is clear he is competent to do so. The Court has generally observed the defendant acting in an appropriate manner, discussing past and ongoing events, and contributing to proceedings in the courtroom. As noted, during the competency hearing, defense counsel failed to object to the admissibility of a voicemail recording until the defendant abruptly leaned forward and apparently instructed them to do so, as counsel then immediately objected. He also reportedly chose, voluntarily, to stop drinking even prior to being ordered to do so as a condition of his release, after evidence was introduced at the competency hearing suggesting alcohol might be the cause of any relevant impairment. When communicating before the Court, he is articulate. Unbiased lay witness testimony characterized his demeanor in all manner of legal and business negotiations and in social settings as generally appropriate. The fact that he may be "slower" or less purposeful does not mean he is not constitutionally competent. The Court finds him capable of tackling the major decisions he will face at trial—e.g., whether to testify or enter a plea—alongside "myriad smaller decisions concerning the course of his defense," certainly within the bounds of the Constitution, and in fact well beyond those constitutional minimums. See Cooper, 517 U.S. at 364.
D. Available Documents
To the extent Benson has any difficulty remembering past events or thought-processes, hundreds if not thousands of documents are available to refresh his recollection. The medical testimony—and lay testimony regarding Benson's past practices—suggest such a course will adequately address any deficiencies in his innate recall. The defendant has shown that, with prompting, he can remember specifics of his decision-making process going back fifty years. The defendant took copious notes and kept detailed records. There are hundreds of relevant documents available to refresh his recollection, including his notes, diagrams, checks, letters, faxes, emails, bank statements, deeds, contracts, and transcripts of his earlier testimony. If he is ultimately unable to remember every specific consideration that passed through his mind years ago in connection with each one of his relevant decisions, that alone cannot render him incompetent to stand trial. Such a broad standard—and the one seemingly called for by the defendant—would encompass within its reach nearly everyone.
V. CONCLUSION
For the foregoing reasons, the Court finds the defendant competent to stand trial, having the requisite capacity to understand the nature of the proceedings and to reasonably assist counsel. Given the substantial record in this action, the Court finds no further evaluations necessary.
IT IS SO ORDERED. Dated: April 22, 2015
/s/_________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE