Opinion
CASE NO. 16-cr-00378-MSK-GPG
01-17-2017
UNITED STATES OF AMERICA, Plaintiff, v. JEROME ANDRE KIMBLE, Defendant.
DAVID E. JOHNSON Assistant Federal Public Defender 633 17th Street, Suite 1000 Denver, CO 80202 Telephone: (303) 294-7002 FAX: (303) 294-1192 david.johnson@fd.org Attorney for Defendant
DEFENDANT'S SECTION 4241(a) MOTION FOR ORDER AUTHORIZING PSYCHIATRIC OR PSYCHOLOGICAL EXAMINATION PURSUANT TO SECTION 4241(b) FOR THE PURPOSE OF DETERMINING COMPETENCY
Defendant, Jerome Andre Kimble, by and through undersigned counsel, David E. Johnson, hereby moves this Court for an Order authorizing and designating an examination of the defendant by a licensed or certified psychiatrist or psychologist for the purpose of determining the mental competency of the defendant, and to thereafter set a hearing to determine his competency to proceed, pursuant to 18 U.S.C. § 4241(a), (b) and (c), and 18 U.S.C. § 4247(b) and (c). In support thereof, the defense states as follows:
I. Procedural History
1. Mr. Kimble is charged with one count of violating 18 U.S.C. § 922(g)(1), felon in possession of a firearm/ammunition. See Doc. No. 12. On December 19, 2016, Mr. Kimble entered a plea of not guilty to the charge. Mr. Kimble is detained without bond.
2. A pretrial conference is currently set in this case for April 27, 2017. Trial is currently set for May 1, 2017. Pretrial motions are currently set for February 21, 2017. See Doc. No. 22.
II. Argument
3. At this time, counsel believes he has an ethical responsibility to bring the instant motion pursuant to 18 U.S.C. § 4241(a). Mr. Kimble has a history of mental health problems. Further, while detained in this case, he has had ongoing mental health and physical health issues at both of the detention facilities he has been held. Based upon this history, conversations with Mr. Kimble, undersigned counsel's observation of and interactions with Mr. Kimble, and information learned during the course of representing Mr. Kimble, counsel has reason to believe that Mr. Kimble may be 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 property in his defense. See 18 U.S.C. § 4241(a). The defense requests the Court to order an examination of Mr. Kimble by a licensed or certified psychiatrist or psychologist for purposes of determining competency. 18 U.S.C. § 4241(b).
4. Pursuant to 18 U.S.C. §§ 4241(b), 4247(b), and for the purposes of conducting this examination, counsel requests that the defendant be committed to the custody of the United States Attorney General for a reasonable period not to exceed 30 days, unless an extension, not to exceed 15 days, is appropriately sought. 18 U.S.C. § 4247(b). Per statute, this examination must, unless impracticable, be conducted in a suitable facility closest to the court. Id.
5. Pursuant to 18 U.S.C. § 4247(c), counsel further requests the Court to direct the preparation of a written report that complies with Section 4247(c), and once completed, copies of the report be delivered directly to undersigned counsel, the Assistant United States Attorney, and this Court. 18 U.S.C. § 4247(c).
6. Pursuant to 18 U.S.C. § 3161(h)(1), the Speedy Trial clock is tolled until such time as a determination of competency is made.
7. In addition, because counsel cannot effectively discuss the case and any potential pretrial motions with Mr. Kimble until a determination of Mr. Kimble's competency has been made, the defense respectfully requests that this Court vacate the current trial date and motions deadlines.
III. Conclusion
8. WHEREFORE, A) pursuant to Section 4241(a), the defense notifies this Court that there is reasonable cause to believe that Mr. Kimble may presently be 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; B) pursuant to Section 4241(b) and 4247(b), the defense requests that this Court order that the defendant be evaluated by a licensed or certified psychiatrist or psychologist and that such an examiner be designated by the Court; C) to conduct such an evaluation, Mr. Kimble may be committed to the custody of the United States Attorney General for a reasonable period not to exceed 30 days, unless an extension, not to exceed 15 days, is appropriately sought; D) it is requested that this Court order a psychiatric or psychological report that satisfies the requirements of Section 4247(c), and once completed, copies of the report be delivered directly to undersigned counsel, the Assistant United States Attorney, and this Court; and E) pursuant to Section 4241(c), it is requested this Court thereafter set a hearing to determine Mr. Kimble's competency to proceed and that until that hearing, all currently set dates and deadlines be vacated.
Respectfully submitted,
VIRGINIA L. GRADY
Federal Public Defender
s/David E. Johnson
DAVID E. JOHNSON
Assistant Federal Public Defender
Denver, CO 80202
Telephone: (303) 294-7002
FAX: (303) 294-1192
david.johnson@fd.org
Attorney for Defendant
CERTIFICATE OF SERVICE
I hereby certify that on January 17, 2017, I electronically filed the foregoing Defendant's Section 4241(a) Motion For Order Authorizing Psychiatric or Psychological Examination Pursuant to Section 4241(b) For The Purpose of Determining Competency with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address:
Peter G. Hautzinger , Assistant U.S. Attorneyand I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name:
Email: peter.hautzinger@usdoj.gov
Jerome Kimble (U.S. Mail)
s/David E. Johnson
DAVID E. JOHNSON
Assistant Federal Public Defender
633 17 Street, Suite 1000
Denver, CO 80202
Telephone: (303) 294-7002
FAX: (303) 294-1192
david.johnson@fd.org
Attorney for Defendant