Opinion
CR-23-311-G
10-04-2023
UNITED STATES OF AMERICA, Plaintiff, v. OSCAR REYNALDO GOMEZ, Defendant.
REPORT & RECOMMENDATION
Suzanne Michell, United States Magistrate Judge
Defendant Oscar Reynaldo Gomez initially appeared before the Court on April 24, 2023. Doc. 7. A criminal complaint charged him with arson under 18 U.S.C. § 844(i). Doc. 1. The Court appointed counsel and set a date for a preliminary hearing and a detention hearing. Doc. 7. Before the hearings, the Court granted Defendant's unopposed motion for a psychiatric examination. Docs. 13, 14. The Court committed Defendant to the custody of the Attorney General and ordered the examiner to determine whether Defendant is “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; and whether he was insane at the time of the offense charged.” Doc. 14, at 1-3; see 18 U.S.C. § 4241(b); id. § 17(a).
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Licensed Psychologist Dr. Lisa Bellah, Ph.D., with the Federal Bureau of Prisons, conducted the psychological evaluation and concluded Defendant “did not currently present with symptoms of a mental disease or defect that negatively impact his ability to understand the nature and consequences of his charges or to adequately assist in his defense.” Doc. 17, at 10. Defendant sought, and the Court granted, an unopposed “independent psychological evaluation.” Docs. 19, 21. Forensic Psychiatrist Dr. Reagan Gill, D.O., conducted the second evaluation and concluded Defendant “is currently incompetent to stand trial.” Doc. 26, at 1.
The Court held a competency evidentiary hearing on September 27, 2023. Defendant appeared with counsel, Frances C. Ekwerekwu. Assistant United States Attorney Stan West appeared on behalf of the United States.
I. Pertinent factual background.
The affidavit supporting the criminal complaint alleges that, on April 17, 2023, at approximately 5:14 a.m., the Oklahoma City Fire Department (OCFD) responded to a commercial structure fire at the God of No Limits Church. Fire crews witnessed fire coming from the northwest door and the north side of the roof. The fire caused significant damage, including extensive damage to the roof.
During the OCFD's investigation, two digital video recorders (DVR) were recovered from inside the structure. The OCFD sent the DVRs to the Oklahoma City Police Department for forensic analysis.
On April 18, 2023, analysts recovered portions of the video. The footage showed a male wearing a hooded zip up sweatshirt, shorts, and work boots breaking the glass on the northwest door of the church. The male entered the church and used what appeared to be a lighter to ignite material inside. After ignition, the person moved the burning material out of view of the camera. A short time after, the person left through the northwest doors the same way he had entered. The footage then showed a reflection on the north wall of the hallway and a flickering light that began to grow, then smoke filling the hallway before the footage ended.
Investigators were able to obtain surveillance footage from other cameras in the area. They obtained footage from a nearby 7-11 which showed that, at approximately 4:49 a.m., a person matching the description of the suspected arsonist purchased a cigarette lighter. The person then got on a white bicycle and traveled toward the church. Additional cameras showed a person matching the description and riding a bicycle approach the church and walk first around the south side of the building, then to the west side (which was where the northwest doors were located) at 5:04 a.m. A church employee later identified the person in the 7-11 video footage as “Oscar” but could not provide a last name. This person said they were familiar with “Oscar” through multiple previous encounters at the church. Through further investigation, law enforcement officers identified Defendant as the suspect in the arson.
On April 21, 2023, Bureau of Alcohol, Tobacco, Firearms, and Explosives agents encountered Defendant as he rode a white bicycle in front of the church. Agents took Defendant to the OCFD Investigations office and interviewed him about the fire. Defendant agreed to answer questions and signed a written Miranda waiver form. During the interview, Defendant admitted to setting the fire. Defendant also provided details such as the first items ignited and where they were placed. This information could have only been known by the arsonist.
Miranda v. Arizona, 384 U.S. 436 (1966).
II. Jurisdiction under 18 U.S.C. § 636.
The Court's research revealed that the Tenth Circuit has not expressly addressed the authority of a magistrate judge to issue competency decisions with or without a referral order. See, e.g., United States v. Archuleta, 218 Fed.Appx. 754, 755 (10th Cir. 2007) (explaining, without commenting on the magistrate judge's authority to do so, that “[a] magistrate judge held a competency hearing in March 2006 and determined that Archuleta was not competent to stand trial and ordered that he be remanded to the custody of the Bureau of Prisons for restoration of competency”); United States v. Morrison, 415 F.3d 1180, 1185 (10th Cir. 2005) (“On appeal Defendant raises two issues. His first ground for reversal, which was not raised below, is that the district court was required to exercise de novo review of the magistrate judge's order [requiring forced medication of the defendant] on the facts as well as the law. Defendant may well be correct. There is authority for the proposition.”). The practice in this Court and many others is for magistrate judges to conduct competency hearings and make their determinations by Order rather than Report and Recommendation. See, e.g., United States v. Waner, No. 20-116-SLP (W.D. Okla. Nov. 6, 2020), Doc. 28; United States v. Redbird, No. 19-347-F (W.D. Okla. Oct. 17, 2019), Doc. 32. In each of these cases, though, the issue of competency was not contested, as it is here. And this Court has also found that magistrate judges lack such authority. United States v. Benford, No. M-98-21-H, Order (W.D. Okla. May 20, 1998) (“There is no authority under [28 U.S.C. § 636], the Federal Rules of Criminal Procedure or the Local Court Rules for a United States Magistrate Judge to conduct a competency hearing under [18 U.S.C. § 4241] without having been designated to do so by an Article III Judge or otherwise assigned.”).
The undersigned has elected to proceed with a Report and Recommendation “to fully preserve the prerogative” of the reviewing district judge “and to provide adversely-affected parties with equal opportunity for review.” United States v. Murray, 2008 WL 3287036, at *1 n.1 (E.D. Tex. Aug. 6, 2008); see also United States v. Madison, 2018 WL 6818925, at *1 (M.D. Fla. Dec. 28, 2018); United States v. Meno, 2013 WL 6019269, at *2 (D. Nev. Nov. 13, 2013) (“The court will issue a Report of Findings and Recommendation rather than an order because the scope of a magistrate judge's authority on the issues before the court is unclear.”).
Other courts that have squarely addressed the issue have reached discrepant results. Compare United States v. Vietor, 2017 WL 9401118, at *1 n.1 (W.D.N.Y. Nov. 3, 2017) (handling via Report and Recommendation because “my own research indicated that the authority of a magistrate judge to issue competency decisions with or without a referral order has not been addressed by the Second Circuit”), adopted, 2018 WL 2247214 (W.D.N.Y. May 16, 2018), with United States v. Ellis, 2020 WL 5363315, at *3 (N.D. Ind. Sept. 8, 2020) (“And to the extent that a magistrate judge's authority is limited by Article III, I concur with the analysis of the court in United States v. Prado, No. 18-CR-192, 2019 WL 1320316, at *4 (E.D. Wis. Mar. 22, 2019), which found that although the competency decision affects fundamental rights, it is akin to allowing a magistrate judge to decide whether a defendant may waive conflict-free representation, or waive counsel and represent himself at trial, which are duties magistrate judges routinely handle.”). This discrepancy persists across circuits. See also United States v. Weissberger, 951 F.2d 392, 398 (D.C. Cir. 1991) (“Weissberger contends, and we agree, that the Magistrate Judge exceeded her authority in ordering the competency evaluation without first receiving a request to do so from a District Judge as required by Local Rule 501.”); United States v. Hemmings, 1991 WL 79586, at *4 (D.D.C. May 2, 1991) (“Since a Magistrate Judge is generally the only judicial officer who exercises jurisdiction over a criminal defendant between the time of arrest and the time of indictment, the contention that such a [competency] ruling is beyond the jurisdiction of a Magistrate Judge appears contrary to the intent of [18 U.S.C. § 4241(a)].”); United States v. Rayyan, 2016 WL 1746013, at *4 (E.D. Mich. May 3, 2016) (“Although the Sixth Circuit has recognized the authority of a magistrate judge to order a competency examination, . . . the general practice in the Sixth Circuit is for district courts to refer the issue of whether to grant a competency examination to a magistrate judge for a report and recommendation only.”) (collecting cases); United States v. Rivera-Guerrero, 377 F.3d 1064, 1069 (9th Cir. 2004) (concluding that an order authorizing involuntary medication for purposes of rendering defendant competent to stand trial “is dispositive of a claim or defense of a party, and therefore . . . it is not among the pretrial matters that can be fully delegated to the magistrate judge under [28 U.S.C.] § 636(b)(1)(A)”); see generally 28 U.S.C. § 636(b)(1)(B) & (C) (providing for referral and de novo review of matters outside the jurisdiction of a United States Magistrate Judge, including evidentiary hearings in felony criminal proceedings).
III. The undersigned finds Defendant incompetent to stand trial.
On April 27, 2023, the Court committed Defendant to the custody of the Attorney General for a psychiatric examination and evaluation. Doc. 14. Following Defendant's evaluation and treatment at the Federal Medical Center (FMC) in Fort Worth, Texas, the Court, as well as counsel, received a copy of Dr. Bellah's psychological evaluation concerning Defendant's competency to stand trial. Doc. 17. Dr. Bellah concluded Defendant “did not currently present with symptoms of a mental disease or defect that negatively impact his ability to understand the nature and consequences of his charges or to adequately assist in his defense.” Id. at 10. She also opined that Defendant's “[p]rognosis for continued competency is considered fair to good.” Id.
Defendant requested an additional evaluation, and the United States did not object. Docs. 19, 20. Dr. Gill performed that evaluation and found “with reasonable medical certainty, that [Defendant] is currently incompetent to stand trial.” Doc. 26, at 1.
On September 27, 2023, the Court conducted an evidentiary hearing and heard counsel's argument about Defendant's competency. Doc. 24. The parties dispute whether Defendant is competent to proceed to trial. After careful consideration of the record, arguments of counsel, and relevant legal authority, the undersigned recommends the Court find Defendant mentally incompetent to stand trial.
Dr. Bellah completed Defendant's competency evaluation with the assistance of Priyanka Rao, M.A. (Predoctoral Psychology Intern). Doc. 17. Dr. Bellah has conducted approximately 500-600 such examinations over the past twenty years and has found approximately 20-25 percent of those tested to be incompetent. She testified Defendant remained at FMC for forty-five days, where the unit officers observed him daily. Neither the unit officers (or unit counselors) nor the medical staff observed Defendant in a delusional or hallucinatory state during his stay.
Dr. Bellah testified that she spent about five-to-six hours with Defendant personally, and her one-on-one interaction with him was about ninety minutes. Her report showed Defendant reported a history of substance abuse and social alcohol consumption. Doc. 17, at 5. He admitted “recurrent” use of K2 but stated “he did not like the side-effect of feeling paranoid.” Id.
He reported he had sustained at least ten head injuries. Id. He reported he was hospitalized with his most significant head injury but could not recall any tests that were administered. Id. at 6. His most recent injury was two-to-three years ago. Id.
Dr. Bellah reported Defendant's affect was appropriately expressive and his thought processes were generally linear, logical, and future-oriented during the course of his evaluation. Id. He did “describe some paranoid thoughts that did not appear to be outside of normal limits, given his history of residing in an overpoliced neighborhood with violence and crime.” Id.
She reported that Defendant's Personality Assessment Inventory (PAI),
an objective measure of personality and psychopathology, showed Defendant appeared to understand the item content. He responded in a consistent manner, and he did not attempt to present himself in an overly positive or negative light. He appeared adequately attentive to item content, as he responded consistently to similar items. His profile appears to be an accurate representation of his current psychological functioning. Further review of elevated PAI profile scores indicated that Mr. Gomez endorsed several items indicative of inflated self-esteem, grandiosity, and impulsiveness,
as well as paranoia and distrust of others. He is likely to be overtly suspicious of the motives of others, and this suspiciousness may have led to periods of hostility toward others. He may tend to be distrustful of close interpersonal relationships and probably has few close friends. Additionally, he is likely quick to feel that he is being treated inequitable and may easily believe that there is a concerted effort by others to undermine his interests.Id. at 8.
Dr. Bellah concluded that while Defendant “did describe possible paranoia, his thought content appeared rational given his environment of living at the time.” Id. She testified he showed no current paranoia but did show a general distrust or suspiciousness of others. And when she asked about the circumstances of his arrest, he showed no delusional thinking.
Dr. Bellah testified that had she been able to access and review Defendant's medical records, as Dr. Gill did, she might have delved a bit more into his past and possible prior mental health diagnoses. She testified that Defendant had attributed his past paranoia to his drug use and emphasized the importance of separating out paranoid or delusional behavior related to any recent substance use.
Defendant's expert, Dr. Gill, performed an evaluation after the FMC evaluation. She concluded “with reasonable medical certainty, that [Defendant] is currently incompetent to stand trial.” Doc. 26, at 1. Dr. Gill has been practicing psychiatry for two years outside of training, and forensic psychology for the past year. She has conducted approximately forty competency evaluations and has concluded approximately forty percent of those to be incompetent.
Dr. Gill reviewed various sources before the evaluation at Grady County Detention Center, including various of Defendant's medical records dated from 2014 through 2023. Id. at 1-2. Her interview with Defendant lasted approximately two-and-a-half hours. She diagnosed Defendant with acute Schizophrenia and alcohol use disorder (the latter was in remission because Defendant was in a controlled environment). Id. at 14.
In response to questions as to how the court system works, Defendant was able to answer several questions correctly, and others correctly “with teaching.” Id. at 10-13. Otherwise, Defendant
spoke at-length about a group of people led by the pastor of God of No Limits Church harassing him. He told me that this group can track his location via various cell phones. He described having approximately two million dollars on a credit card that he hid in his cell phone. When asked where he got this money, he stated that it was from donations. He added that because he is from California he has contact with multiple celebrities via social media. He explained that this group of people wants to make him appear mentally ill or get him arrested so that they can take his money. He said that he has seen these people following him around town and hiding in the trees. He suspected that this group may be connected to a secret society such as the Free Masons.Id. at 14. Dr. Gill found these statements to be consistent with Defendant's “delusional thinking” shown during a December 2014 Community Hospital mental health assessment and during a July 31, 2023, collateral interview written by Federal Public Defender Investigator Brenda McCray. Id. at 14-15. Dr. Gill also documented Defendant's auditory hallucinations, which included hearing his deceased friend's voice and his children screaming and crying when they are not present. Id. at 15.
When asked about legal strategies, Defendant stated he believed his charges would be dismissed when he was able to prove he was being harassed and set up by a group of people who wanted to steal his two million dollars. Id. at 12. He added he believed the prosecutor may be involved in the group persecuting him. Id. He also stated that he has a distrust of public defenders because of a previous case where his public defender played golf with the judge. Id. at 12, 11. He also stated he believes his attorney may be involved with the group of people who are persecuting him by prolonging his time in jail so that the group can find the money and steal it from him. Id. at 12.
Dr. Gill “carefully considered” whether or not Defendant might be exaggerating his psychological symptoms to evade criminal prosecution. Id. at 16. She concluded with reasonable medical certainty that Defendant is “not malingering a mental illness or a lack of legal knowledge.” Id. He scored a zero on the Georgia Atypical Presentation scale, and he stated he does not believe he is mentally ill and that he does not want psychiatric treatment. These statements are inconsistent with someone who is malingering mental illness. Id.
Dr. Gill testified she thought it quite likely Defendant could be restored to competency. Defense counsel argued that her conversations with Defendant have been difficult given his paranoia and his evident distrust of public defenders.
When asked to explain the discrepancies between her report and Dr. Gill's, Dr. Bellah posited Defendant may have been more guarded with the FMC evaluation. He may have refrained from discussing issues when directly asked. He may have tried to appear more mentally ill after receiving Dr. Bellah's reports. Or he may have easier access to drugs at the Grady County Detention Center.
AUSA West admitted this was a “close” case. The undersigned finds the testimony of both Dr. Bellah and Dr. Gill to be credible. While Dr. Bellah observed Defendant over a longer period of time and received no reports of bizarre behavior or delusional thinking, Dr. Gill's assessments, Doc. 26, at 16-17, provide a preponderance of evidence as to Defendant's current mental status.
There is a preponderance of evidence that:
1. Defendant has schizophrenia;
2. His delusional beliefs preclude his understanding of the nature and consequences of the proceedings against him;
3. He is unable to assist properly in his defense because of these delusional beliefs.
The Court finds a preponderance of evidence establishes Defendant presently suffers 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. See 18 U.S.C. § 4241(d). The undersigned therefore recommends the Court commit Defendant to the custody of the Attorney General for hospitalization and treatment in a suitable facility for a “reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward.” Id. § 4241(d)(1) IV. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court find Defendant incompetent to stand trial.
The undersigned advises the United States of its right to file an objection to this Report and Recommendation with the Clerk of this Court on or before October 18, 2023, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to make a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).