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United States v. Dempsey

United States District Court, Eastern District of California
Nov 8, 2022
2:16-Cr.-119-JAM (E.D. Cal. Nov. 8, 2022)

Opinion

2:16-Cr.-119-JAM

11-08-2022

United States of America, Plaintiff, v. Brian Dempsey, Defendant

JAN DAVID KAROWSKY, Attorney at Law, Attorney for Defendant Brian Dempsey


JAN DAVID KAROWSKY, Attorney at Law, Attorney for Defendant Brian Dempsey

MOTION TO TERMINATE COMPETENCY EVALUATION OF BRIAN DEMPSEY

HONORABLE JOHN A. MENDEZ, SENIOR UNITED STATES DISTRICT JUDGE

BACKGROUND AND RELEVANT CHRONOLOGY

5-4-2015 Complaint filed against Mr. Dempsey - Eastern District - California

6-23-2016 Indictment

1-2017 Foreign arrest - Initial custody - United Kingdom

6-12-2020 Extradited from United Kingdom in custody

6-15-2020 Initial appearance - Eastern District - detained

6-28-2022 Then defense counsel to submit proposed order for competency evaluation

7-7-2022 Order signed for competency evaluation pursuant to 18 U.S.C. § 4241 (a) & (b)

8-26-2022 Mr. Dempsey departed Sacramento County Jail (pursuant to U.S. Marshals records)

Mr. Dempsey has been in custody on the instant offense for over 5 years and 9 months o a total of over 69 months. A proposed plea agreement, offered by the government on or about April 4, 2022, proposed a Guideline sentencing range of 46 - 57 months, literally one full year less than Mr. Dempsey has already been in custody.

Competency Evaluation

18 U.S.C. § 4241(a) provides the Court must order a hearing to determine the defendant' competency to stand trial “. if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to th extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” (Emphasis added).

18 USC § 4241(b) provides that “(P)rior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c) [18 USCS § 4247(b) and (c)].”

18 USCS § 4247(b) provides in relevant part:

For the purposes of an examination pursuant to an order under section 4241 ... the court may commit the person to be examined for a reasonable period, but not to exceed thirty days . to the custody of the Attorney General for placement in a suitable facility. . The director of the facility may apply for a reasonable extension, but not to exceed fifteen days under section 4241.
upon a showing of good cause that the additional time is necessary to observe and evaluate the defendant. (Emphasis added).

Therefore, pursuant to law, a person committed for evaluation as to competency shall be evaluated within 45 days. Regardless of the date chosen for the date the Order was entered since there are two on the docket, July 7, 2022 (ECF 74) or August 8, 2022 (ECF 76 - amended Order), it has been between 90 to 120 days since Mr. Dempsey's competency was ordered evaluated.

I, Jan David Karowsky, do hereby swear under penalty of perjury that the following is true and correct and as to those matters of which I do not have personal knowledge, I declare I believe them to be true. Executed on November 7, 2022 at Sacramento County, California:

I was appointed to represent Mr. Dempsey on October 12, 2022. On October 28, 2022, I had my first contact with him when he telephoned me from the Metropolitan Correctional Center, in San Diego.

In that conversation, Mr. Dempsey was alert, oriented, spoke logically and intelligently and informed me it was his belief that his prior attorney merely alleged the belief that Mr. Dempsey was incompetent to be able to withdraw as his counsel.

Interestingly, in his declaration in support of the motion to determine Mr. Dempsey's competency, his then counsel merely stated the barest of statutory assertions with, pursuant to Mr. Dempsey, no prior examination or evaluation by any mental health professional:

It is my professional opinion that there is reasonable cause to believe that Mr. Dempsey may be presently suffering from a mental disease or defect which renders him mentally incompetent to the extent that he is unable to assist properly in his defense.
(ECF 71, 3: 20 - 22)

I spoke to Mr. Dempsey for over 10 minutes during which time he expressed his frustration at his prior attorney having him evaluated for competency when it was not warranted; the fact it has taken so much time to transport him to San Diego for evaluation; that the evaluation had not yet even begun; he asserted with confidence and persuasively to me that he firmly believed he was competent to stand trial; and that he completely understood the nature and consequences of the proceedings against him and was perfectly able to assist properly in his defense.

During our entire conversation I had no cause to believe anything other than he was completely competent to stand trial under the legal definition of that concept. I asked him to write a letter explaining in depth his circumstances and requests. I am attaching a copy of the letter he sent me as Exhibit “A” and incorporate herein by reference.

Additionally, literally, as I was preparing this motion, Mr. Dempsey telephoned me from the institution on November 4, 2022. He informed me he had just spoken to a mental health worker on November 3, 2022. He did not know the extent of the evaluation; when it would finish; nor did he know when he would begin the journey back to Sacramento; and he certainly did not know how long it would take to get to Sacramento. During this entire phone call, Mr. Dempsey was oriented, focused on issues concerning his own defense, completely understandable, pleasant, respectful, and spoke intelligently.

The defense understands this is an unusual request, however, based on everything of which I am now aware, it appears appropriate, just, and fundamentally fair to request that the competency evaluation be terminated; that Mr. Dempsey be returned immediately to Sacramento; that the motion to determine competency be dismissed; and that the criminal case be reinstated.

If, after more in depth conversations with Mr. Dempsey, it appears to me there is reasonable cause to believe he is not competent to stand trial, I will have his psychologically evaluated and then file the appropriate motion.

I declare under penalty of perjury that the preceding is true and correct and as to those matters of which I do not have personal knowledge, I declare I believe them to be true. Executed on November 4, 2022 at Sacramento County, California.

ORDER

GOOD CAUSE APPEARING, the Court hereby orders the Bureau of Prisons and the Metropolitan Correctional Center, San Diego to immediately cease the previously ordered competency evaluation ordered pursuant to 18 U.S.C. § 4241 and 18 U.S.C. § 4247 and to make arrangements to have Brian Dempsey returned immediately to Sacramento County Main Jail in the Eastern District of California.


Summaries of

United States v. Dempsey

United States District Court, Eastern District of California
Nov 8, 2022
2:16-Cr.-119-JAM (E.D. Cal. Nov. 8, 2022)
Case details for

United States v. Dempsey

Case Details

Full title:United States of America, Plaintiff, v. Brian Dempsey, Defendant

Court:United States District Court, Eastern District of California

Date published: Nov 8, 2022

Citations

2:16-Cr.-119-JAM (E.D. Cal. Nov. 8, 2022)