Opinion
00 Cr. 393 (JFK)
May 22, 2002
For the Plaintiff: JAMES B. COMEY United States Attorney, New York, New York. Of Counsel: Richard Sullivan, Kim A. Berger Assistant United States Attorneys
For the Defendant: WILLKIE, FARR GALLAGHER, New York, New York. Of Counsel: Martin B. Klotz, Emily Stein.
AMENDED and SUPERSEDING OPINION and ORDER
Background
The defendant is charged under 21 United States Code §§ 312, 841(a)(1), 841(b)(1)(A) and 846 with being a participant: in a conspiracy to "distribute and possess with intent to distribute . . . five kilogram (sic) and more of mixtures and substances containing a detectable amount of cocaine." Originally, there were three co-defendants who have pleaded guilty.
On January 10, 2001, this Court issued an order for an evaluation of Mr. Arena's competency to stand trial. The order was pursuant to 13 United States Code § 4241 and the defendant was admitted for examination to the Federal Medical Center ("FMC") at Butner, North Carolina on January 26, 2001. His evaluation period at Butner was initially extended to March 11, 2001.
After reviewing the psychiatric evaluation of the defendant, the Court concluded on March 15, 2001 that the defendant was suffering from a mental disease or defect and was not competent to stand trial.
The mental health professionals at FMC-Butner concluded than the defendant was suffering from a delusional disorder both grandiose and persecutory aspects. Defendant claimed to be an operative for the United States government whose efforts the war on drugs earned him the nickname "Drug Czar." He also claimed credit for the downfall of communism, the Mariel Boat Lift, and peaceful relations between Israel and Egypt. When asked about pending narcotics charges, the defendant acknowledged that customs agents had recovered drugs in the walls of his banana containers. However, he also stated that a group of military officers wanted to get him "out of the way" because he was going to meet with Senator Ted Kennedy to discuss the Star Wars program, and he claimed to be involved in negotiations with Colombia to ban the importation of mind-altering drugs into the United States. He insisted that he was a victim of a government conspiracy.
By subsequent orders, the defendant was continued committed to FMC-Butner in North Carolina.
On September 7, 2001, this Court conducted an evidentiary hearing to determine whether the defendant should be involuntarily medicated. On October 18, 2001, the Court issued an order directing that the defendant be treated with anti psychotic medication for a period of 60 days in an effort to render him mentally competent to stand trial. The defendant agreed to be medicated.
On March 15, 2002, the Warden of FMC-Butner submitted a letter to the court (DX "A"), along with a status report, stating that it was the opinion of the mental health professionals that defendant was still suffering from a mental disease or defect that rendered him incompetent to stand trial and that his "competency will not be restored in the foreseeable future." The resort noted that the defendant did not respond the anti-psychotic medication and he continued to insist that he was an undercover agent who had been framed by rogue agents as part of a government conspiracy.
DX refers to Defense Exhibits proffered at the April 18, 2002 hearing.
In the March 15, 2002 letter, the Warden also advised the Court that the mental health professionals did not believe that the defendant's release would pose a substantial risk of bodily injury to another person or serious damage to the property of another. They noted that the defendant did not have any arrests or convictions for aggressive behavior since 1977 nor a history of substance or dependence. The mental health professionals did not observe anything during the defendant's stay at FMC-Butner to suggest that his mental illness would cause him to act violently towards others.
Their conclusion did not include consideration of the defendant's participation in the underlying narcotics charge here or his involvement in a 1992 scheme that led to his arrest in the District of New Jersey on bank larceny charges.
Defendant moves to be discharged pursuant to 18 U.S.C. § 4247(g). The Government opposes the motion arguing that "discharge would pose a substantial risk of bodily injury to the person of another."
April 18, 2002 Hearing
On April 18, 2002, the court held a hearing to determine whether the defendant's release would pose a substantial risk of bodily injury to another or serious damage to the property of another. At the hearing, there was testimony from Pre-Trial Services Officer Patrick Mancini, co-conspirator Mauricio Gomez, and Special Agent Michael O'Brien of the United States Customs Service.
In July 1996, the defendant was charged in the District of New Jersey with bank larceny and conspiracy to commit bank larceny in violation of 18 U.S.C. § 371 and 2113(a). The charges arose from the defendant's alleged involvement in a plan to obtain the contents of a safe deposit box maintained at a Chase Manhattan Branch at 100 West 57th Street in Manhattan. (Tr. 14, Ex. 1). The safe deposit box was registered in the name of "Donald Mann" and was believed to contain approximately $300,000 in cash as well as jewelry. The indictment alleged that the defendant and his co-conspirators agreed to gain access the safe deposit box by posing as "Donald Mann." (Tr. 14, Ex. 1)
"Tr." refers to the transcript of the April 18 hearing.
After the arrest on those charges, defendant was released on bail and supervised by Officer Patrick Mancini of the Eastern District of New York. Tr. II). Mr. Arena was then living and working on Long Island. He told Officer Mancini that he was the owner and operator of Mott Street Bananas located at 84 Division Avenue in Levittown, Long Island. (Tr. 16-17, Ex. 2). During his pre-trial supervision, the defendant received permission to travel for his banana business to Medellin, Colombia on at least two separate occasions. Tr. 17-18. He did so travel.
Defendant, in September 1998, entered into a deferred prosecution agreement with the United States Attorney's Office in New Jersey. (Tr. 18, Ex. 4)
The Government argues convincingly that the evidence at the hearing proved that while under indictment in New Jersey and subject to pre-trial supervision there, he was a member of the conspiracy charged in this case to import substantial amounts of cocaine into the United States. Further, the evidence showed (Tr. 33-34) that the defendant met with co-conspirators in Medellin in Colombia and that later he participated in the conspiracy here in the Southern District of New York. (Tr. 39-41, 44, 45). As part of the conspiracy, defendant traveled Oklahoma (Tr. 53) with Mauricio Gomez and another co-conspirator.
Discussion
18 U.S.C. § 4246 is the governing statute. Section 4246 sets forth the procedures for deciding whether a defendant committed under 18 U.S.C. § 4241 and found incompetent to stand trial may be released. The section mandates "a hearing to determine whether the person is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another." That hearing was held on April 18.
Both sides agree that the burden is on the Government to establish by Clear and convincing evidence that the defendant suffers from a mental illness as a result of which his release would create a substantial risk of danger to others or the property of others for the defendant to be committed. 18 U.S.C. § 4246(d).
Further, both sides acknowledge that the phrases "substantial risk of bodily injury to another person or serious damage to the property of another" amounts to dangerousness. Appellate authority confirms that the phrases do mean "dangerousness." United States v. Ecker, 30 F.3d 966 (8th Cir. 1994)
There is no question but that defendant "is presently suffering from a mental disease or defect." The issue, as framed correctly by the Government in its May 6, 2002 submission, p. 9, is "whether (he) presents a substantial risk of danger to others or serious damage to the property of others as a result of his mental disease."
I conclude that he does not present such a risk.
The thrust of the Government argument that defendant is dangerous is that cocaine, by its very nature is dangerous, and its importation creates a real risk for the health and safety of the community. In fact, the prosecution quotes from an October 29, 2001 opinion, p. 9, in this case where I wrote: "In any event dealing in 450 kilograms of cocaine is `dangerous' to the community." United States v. Arena, No. 00 Cr. 398, 2001 WL 1335008, at *4 (S.D.N.Y. Oct. 29, 2001. But that was written in a different context and the Government ignores the preceding sentence of that ruling which really distinguished between "dangerousness, in a psychotic sense" and overall danger to society. The point is that we are dealing, in this context, with a medical standard or test, not a legal one. United States v. Wheeler, 744 F. Supp. 633 (E.D.Pa. 1990)
In DX "A," the Chief Psychiatrist at FMC-Butner and the Staff Psychologist there wrote:
"Mr. Arena has had no arrests or convictions for assault, battery or other aggressive acts since 1977. He has a strong family support system and maintains contact with relatives on a regular basis. Mr. Arena does not have a history of substance abuse or dependence. Although he suffers from a mental disorder, there is no evidence suggesting his mental illness has resulted in violence towards others. Although Mr. Arena has been irritable, moody and occasionally rude, he abided by institutional rules and did not violate the right of others. Although he suffers from a mental disease or defect, we also believe Mr. Arena's release to the community would not create a substantial risk of bodily injury to another person or serious damage to the property of another. Therefore we do not view him as meeting criteria for involuntary commitment pursuant to Tile 18, United States Code, Section 4246."
In briefing this matter for the Court, neither side adequately addressed the verbiage of the statute which requires that the mental illness of the defendant be the causative factor of the danger. The key words of § 4246(a) are "mental disease or defect as a result of which his release would create a substantial risk of" danger. (emphasis added). The words "as a result of which" mean that the mental illness must cause or produce the danger. There is no proof, certainly not clear and convincing proof, that Mr. Arena's delusional state causes him to deal in narcotics. The Government, at the very end of its submission, p. 13, does write:
"if released, the defendant will engage in additional criminal conduct fueled by his delusional belief that he is a government operative."
But, they have not established that his mental disease is the fuel for his drug importation. No proof in this regard was offered at the April 18, 2002 hearing. In fact at Tr. 41, Mr. Arena's co-defendant, Mauricio Gomez, described Arena as acting "(l)ike a very normal person" and not saying anything inappropriate or strange during a conversation relating to the importation of the drugs in banana containers.
In the absence of proof that the delusional state causes the narcotics dealing, the defendant must be released under the statute.
Defense counsel in their submission of May 6, 2002 at p. 9 acknowledges that there is no suggestion the indictment should be dismissed and that upon his discharge "Mr. Arena would continue to be . . . subject to psychiatric monitoring based on this court's discretion."
The Court directs that Mr. Arena be discharged after appropriate bail is set and that he submit himself for psychiatric treatment to Lawrenca Siegel, M.D., a qualified and board certified psychiatrist. Dr. Siegel's curriculum vitae is annexed hereto as "Exhibit A."
Martin Klotz, Esq. is directed to contact Dr. Siegel on Mr. Arena's behalf to arrange for Mr. Arena's first appointment. After Mr. Arena's first visit to the Doctor, the Court, the Government and defense counsel are to be informed by Dr. Siegel of the results of the visit, the medication prescribed for the defendant and the date of the next appointment for Mr. Arena.
The issue of subsequent treatment and visits to Dr. Siegel will be addressed after Dr. Siegel reports to the Court concerning the first visit.
The costs of the psychiatric treatment and medication are to be borne by the Government.
The matter is set down for May 23, 2002 at 11:45 A.M. for the purpose of setting bail. This opinion and order supersedes the decision filed May 20, 2002.
SO ORDERED.
LAWRENCE A. SIEGEL, M.D. CURRICULUM VITAE
Mailing Address: P.O. Box 367 Hastings-on-Hudson, New York 10706
Phone: Voice (914) 478-7536 Fax (914) 478-0378 Alt. Fax (866) 815-0496 Page (800) 252-0996 Cell (917) 403-7528
Training and Education:
a) University B.A. received 6/75 Brooklyn College Brooklyn, New York
b) Medical School M.D. received 5/78 State University of New York Downstate Medical Center Brooklyn, New York
c) Internship 7/78 — 6/79 Downstate Medical Center Kings County Hospital Brooklyn Veterans Administration Hospital
d) Residency in Psychiatry 7/79 — 6/82 Downstate Medical Center Kings County Hospital
e) Fellowship in Psychiatry and the Law 7/82 — 6/83 New York University Bellevue Medical Center Manhattan Psychiatric Center
Professional Experience:
a) Emergency Room Psychiatrist 7/83 — 10/83 Kings County Hospital
b) Family Court Psychiatrist 7/83 — 8/86 Brooklyn Family Court
c) Forensic Service Psychiatrist 11/83 — 10/86 Kings County Hospital Queens Supreme Court Brooklyn Supreme Court
d) Staff Psychiatrist 10/86 — 4/88 Health Insurance Plan of New York
e) Consultation-Liaison Psychiatrist 5/88 — 10/88 Bronx Lebanon Hospital
f) Forensic Service Psychiatrist 2/89 — 3/91 Westchester County Jail Westchester County Medical Center
g) Staff Psychiatrist 11/91 — 10/92 Health Insurance Plan of New York Kings County
h) Forensic Service Psychiatrist 3/93 — 6/94 7/95 — 5/96 10/98 — 12/98 New York University Bellevue Hospital
i) Clinical Director Inpatient Psychiatry 5/96 — 7/98 Westchester County Jail EMSA Correctional Services
j) Consulting Psychiatrist 1/99 — present Adult Diagnostic Treatment Center New Jersey Department of Correction Avenel, New Jersey
k) Private Psychiatric Practice 7/83 — present Specialization in forensic work
Faculty Appointments:
a) Assistant Clinical Instructor Downstate Medical Center 7/81 — 6/82
b) Clinical Instructor New York University 7/82 — present
c) Clinical Instructor Downstate Medical Center 7/83 — 6/89
d) Clinical Assistant Professor New York Medical College 6/89 — 3/91
Teaching Experience:
a) Instructor of 2nd year medical students in didactic course on human behavior Downstate Medical Center 9/79 — 5/80
b) Supervisor of junior residents and medical students for inpatient psychotherapy Downstate Medical Center 9/81 — 6/82
c) Instructor of law students in psychiatry and the law New York University 9/82 — 12/82
d) Super-visor of residents in psychiatric emergency room Kings County Hospital 7/83 — 10/83
e) Faculty on Tri-State American Academy of Psychiatry and the Law 9/83 — present Lecture topics — prediction of violent behavior, informed consent, child custody, controversies in the insanity defense, disposition of insanity acquittees, competency and guardianship, extreme emotional disturbance, substance abuse and criminal law
f) Instructor of residents and child fellows in didactic courses in psychiatry and the law Kings County Hospital Downstate Medical Center Kingsboro Psychiatric Center 7/83 — 6/86
g) Supervisor of child fellows for Family Court rotation Brooklyn Family Court Kings County Hospital 7/84 — 1/86
h) Participant in mock trial for retention/release of insanity acquittee presented by New York Attorney General's office Albany, New York November 14, 1984
i) Lecturer — competency to stand trial Nassau District Attorney June 12, 1985 Brooklyn Legal Aid June 17, 1985 Queens District Attorney November 18, 1999
j) Lecturer — controversies In the insanity defense Brooklyn Legal Aid October 7, 1985
k) Lecturer — "Tarasoff and Its Progeny" Brooklyn Psychiatric Society October 8, 1986 Brooklyn/Staten Island HIP January 25, 1993
l) Lecturer — "Extreme Emotional Disturbance Defense in New York" Brooklyn Psychiatric Society September 30, 1987
m) Instructor of residents in didactic course in psychiatry and the law Harlem Hospital Center 7/87 — present
n) Grand rounds presentation Harlem Hospital "An Overview of Forensic Psychiatry" January 25, 1988
o) Supervisor of residents and medical students for consultation liaison psychiatry Bronx Lebanon Hospital 5/88 — 10/88
p) Grand rounds presentations "Extreme Emotional Disturbance Defense in New York" Kirby Forensic Psychiatric Center November 18, 1988 Manhattan Psychiatric Center March 3, 1989
q) Lecture — "Working with a psychiatric expert in a homicide case" Brooklyn District Attorney February 23, 1989
r) Lecture — "Working with a psychiatric Expert" New York District Attorney November 15, 1990 Brooklyn District Attorney May 21, 1991 May 19, 1994 Nassau County District Attorney February 3, 1999 Richmond County District Attorney January 19, 2000 Bronx County Bar Association April 18, 2000
s) Supervisor of psychiatric residents in clinical rotation at jail facility Westchester County Jail 5/89 — 3/91
t) Lecture — "Forensic Psychiatry" Medical student course New York Medical College June 25, 1991
u) Speaker on Erotomania and Forensic Psychiatry Women's Advisory Council of the Kings County District Attorney's Office February 6, 1992
v) Grand rounds presentation "Substance Abuse and the Law" Kirby Forensic Psychiatric Center March 12, 1992
w) Lecture — "Working with a psychiatric expert in a homicide case" Queens District Attorney May 21, 1993
x) Lecture on Extreme Emotional Disturbance Defense in New York" Queens District Attorney November 1, 1996 Richmond County District Attorney April 10, 2000
y) Workshop presenter "Drug Induced Diminished Capacity in Crimes of Violence" American Academy of Forensic Sciences February 18, 1997
z) Supervisor of forensic fellows Bellevue Hospital Center 5/96 — present
Licensure: Licensed physician State of New York — #140959 State of New Jersey — MA68401
Board Certification Board certified in Psychiatry by the American Board of Psychiatry and Neurology 1983
Board certified in Forensic Psychiatry by the American Board of Forensic Psychiatry 1988
Board certified for Added Qualifications In Forensic Psychiatry by the American Board of Psychiatry and Neurology 1994 — 2004
Board certified American Board of Forensic Examiners 1997 American Board of Forensic Medicine 1998
Other Positions: a) Elected to Kings County Hospital community board as Committee of Interns and Residents representative 7/80 — 6/82
b) Elected Kings County Hospital delegate to Committee of Interns and Residents 7/80 — 6/82
c) Chairman of the Psychiatry and Law Committee of the Brooklyn Psychiatric Society 12/83 — 5/89
d) Executive Council Member Brooklyn Psychiatric Society 1985 — 1989
e) Member of the Psychiatry and Law Committee of the Area II Council of the American Psychiatric Association 1985 — present
Memberships: a) American Medical Association
b) American Psychiatric Association
c) Psychiatric Society of Westchester County
d) American Academy of Psychiatry and the Law
e) Association for the Treatment of Sexual Abusers
f) New Jersey Association for the Treatment of Sexual Abusers
g) International Academy of Law and Mental Health
h) World Federation for Mental Health
i) Corporation for the Advancement of Psychiatry
J) National Alliance for the Mentally Ill
k) American College of Forensic Examiners
Publications: a) Current Controversies on the Insanity Defense The Brooklyn Psychiatrist Vol. 17 No. 4 5 January and April 1985
b) Vignette: The Doctors Right to Refuse Psychiatric Annals Vol. 15 No. 3 March 1985
c) Confessions of Son of Sam: Book Review The Brooklyn Psychiatrist Vol. 18 No. 2 April 1986
d) Law Committee Assesses Rivers v. Katz Decision The Bulletin — Area if Council, American Psychiatric Association Volume 29 No. 2 September — October 1986 Co-author: Harold I. Schwartz, M.D.
e) Murder and the Extreme Emotional Disturbance Defense in New York The Brooklyn Psychiatrist Vol. 19 No. 5 October 1987
d) New York State Passes Involuntary Outpatient Treatment Statute The Bulletin — Area II Council. American Psychiatric Association Volume 37 No. 6 May — June 1995