Opinion
CASE NO. 13-cr-00194-WJM
06-12-2019
UNITED STATES OF AMERICA, Plaintiff, v. DONTAE DANIEL HINES, Defendant.
TIMOTHY P. O'HARA Assistant Federal Public Defender 633 Seventeenth Street, Suite 1000 Denver, Colorado 80202 Telephone: (303) 294-7002 FAX: (303) 294-1192 Timothy_OHara@fd.org Attorney for Defendant
DEFENDANT'S UNOPPOSED MOTION FOR ORDER
Undersigned counsel, Timothy P. O'Hara, Assistant Federal Public Defender, respectfully moves this Court to determine the competency of Mr. Hines pursuant to 18 U.S.C. § 4241(a). The Motion is unopposed by the government.
I. Procedural Background
1. On April 11, 2019, the probation department filed a document entitled "Second Superseding Petition for Warrant on Person Under Supervision." See Doc. 146.
Undersigned counsel is aware that an original Petition and First Superseding Petition were filed by the probation department, yet those documents remain restricted from undersigned counsel's view. In response to those Petitions, this Court issued Summonses for Mr. Hines to appear.
2. On April 12, 2019, an arrest warrant was issued. See Doc. 148. That same day, Mr. Hines was arrested. See Doc. 153.
3. On April 18, 2019, Mr. Hines appeared before the Honorable Magistrate Judge N. Reid Neureiter. Magistrate Judge Neureiter continued the present matter for a Detention Hearing and Preliminary Hearing to be held on April 22, 2019. See Doc. 155.
4. On April 22, 2019, the parties began the Preliminary Hearing and Detention Hearing before Magistrate Judge Neureiter. See Doc. 157. After a lengthy hearing, including the testimony of the United States Probation Officer supervising Mr. Hines, the matter was continued until April 24, 2019. See id.
5. On April 24, 2019, the parties appeared before Magistrate Judge Neureiter again and continued the Preliminary Hearing and Detention Hearing. At that time, Magistrate Judge Neureiter ordered that Mr. Hines be released to a halfway house in Denver "once bed space is available." See Doc. 158 & 160.
6. On May 16, 2019, undersigned counsel filed a Motion to Reopen the Detention Hearing Pursuant to 18 U.S.C. § 3142(e) because halfway house bed space had not become available. See Doc. 167. On May 17, 2019, Magistrate Judge Neureiter set the present case for a Motion Hearing on May 28, 2019. See Doc. 172.
7. On May 29, 2019, the parties again appeared before Magistrate Judge Neureiter. See Doc. 177. The parties examined two witnesses, one of whom was Ms. Andrea Gonzales, the former director of the Independence House. See id. At the conclusion of the hearing, Magistrate Judge Neureiter denied undersigned counsel's request to release Mr. Hines on conditions other than to the halfway house in Denver. Magistrate Judge Neureiter reissued the detention order until a halfway house in Denver accepted Mr. Hines' placement. See id.
Independence House refused to re-admit Mr. Hines, largely because of his failure to pay subsistence.
7. Undersigned counsel has reviewed the following materials: Mr. Hines' mental health history, the records generated following his recent mental health treatment, and his multiple pro se filings. Undersigned counsel has spoken with Mr. Hines on a number of occasions since April 22, 2019, both by phone and in person.
Including a previous mental health examination report written by Dr. Susan Bograd finding Mr. Hines mentally incompetent to understand the nature and consequences of the proceedings against him and incompetent to assist properly in his defense. See Doc. 19.
One of the documents filed by Mr. Hines was a Motion Requesting Professional Evaluation into Defendants [sic] Mental Health. See Doc. 183 at p. 2. --------
8. Undersigned counsel has reason to believe that Mr. Hines may be suffering from a mental disease or defect that could be rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him and/or unable to assist properly in his defense. The privilege between attorney and client prevent further disclosure.
9. Based on the aforementioned concerns, including Mr. Hines own concern, undersigned counsel requests the Court to order a psychiatric or psychological evaluation for purposes of determining competency to undergo post-release proceedings pursuant to 18 U.S.C. § 4241(a).
10. If ordered, the examination shall be conducted by a licensed or certified psychiatrist or psychologist and the examiner shall be designated by the Court. See 18 U.S.C. § 4247(b). Undersigned counsel requests that the Court specifically designate Dr. Susan Bograd to examine Mr. Hines. Dr. Bograd is based in the Denver area and examined Mr. Hines back in 2013. See Doc. 177.
11. By statute, unless impracticable, the psychiatric or psychological examination shall be conducted in the suitable facility closest to the court. See 18 U.S.C. § 4247(b). Mr. Hines currently resides in the GEO detention facility in Aurora, Colorado. Undersigned counsel requests that Mr. Hines remain in that facility while the evaluation is arranged and conducted. Undersigned counsel will assist the designated evaluator in setting up the professional visit.
12. Undersigned counsel also requests that a report of the evaluation be filed with the Court pursuant to 18 U.S.C. § 4247(c). Undersigned counsel would request that copies of the report be tendered to the parties pursuant to 18 U.S.C. § 4247(c).
13. Following receipt of the report, the parties will contact chambers to set a date for hearing on Mr. Hines' competency, should such hearing be necessary.
14. Undersigned counsel further requests that the Court vacate the current date for hearing and associated deadlines, to be reset upon conclusion of the competency evaluation. Until a determination is made regarding Mr. Hines' competency, counsel cannot effectively communicate with Mr. Hines and Mr. Hines cannot assist counsel in the preparation of a defense to the Second Superseding Petition.
15. Undersigned counsel contacted the Assistant United States Attorney handling the present matter and he has no objection to the present Motion.
16. A proposed Order is attached to the present filing.
WHEREFORE, undersigned counsel respectfully requests that this Court order a mental health examination under 18 U.S.C. § 4241(b), vacating current deadlines and the Supervised Release Revocation Hearing.
Respectfully submitted,
VIRGINIA L. GRADY
Federal Public Defender
s/ Timothy P. O'Hara
TIMOTHY P. O'HARA
Assistant Federal Public Defender
633 Seventeenth Street, Suite 1000
Denver, Colorado 80202
Telephone: (303) 294-7002
FAX: (303) 294-1192
Timothy_OHara@fd.org
Attorney for Defendant
CERTIFICATE OF SERVICE
I hereby certify that on June 13, 2019, I electronically filed the foregoing
DEFENDANT'S UNOPPOSED MOTION FOR A MENTAL HEALTH EVALUATIONwith the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:
Jeremy Sibertand I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name:
Assistant U.S. Attorney
Email: jeremy.sibert@usdoj.gov
Mr. Dontae Hines (U.S. Mail)
s/ Timothy P. O'Hara
TIMOTHY P. O'HARA
Assistant Federal Public Defender
633 Seventeenth Street, Suite 1000
Denver, Colorado 80202
Telephone: (303) 294-7002
FAX: (303) 294-1192
Timothy_OHara@fd.org
Attorney for Defendant