United States District Court, M.D. Florida, Fort Myers Division
REPORT AND RECOMMENDATION
MCCOY UNITED STATES MAGISTRATE JUDGE
before the Court are: Defendant's Motion for Hearing to
Determine Competency and Memorandum of Law, filed on February
7, 2019 (Doc. 63); the Government's Response to
Defendant's Motion for Hearing to Determine Competency,
filed on February 21, 2019 (Doc. 68); a Forensic Evaluation
from Defendant's expert, Dr. Paul S. Kling, dated
February 5, 2019 (Doc. 66); and a Forensic Report from the
court-appointed evaluator, Dr. Rodolfo A. Buigas, dated May
21, 2019 (Doc. 92). For the reasons below, the Undersigned
respectfully recommends that Defendant be found competent to
proceed to trial.
January 28, 2019, Dr. Paul S. Kling, a psychologist,
evaluated Defendant Juan Carlos Alfaro Garcia. (Doc. 66 at
1). Based upon that evaluation, Dr. Kling opined in a written
forensic evaluation report dated February 5, 2019 that
Defendant lacks competency to proceed in this case.
(Id. at 4). Defendant filed the instant Motion for
Hearing to Determine Competency on February 7, 2019. (Doc.
63). In response, the Government took the position that
“[d]ue to the competency concerns raised by defense
counsel, the Court should commit the [D]efendant to the
custody of the Attorney General which would enable the
[D]efendant to be observed over the course of a thirty day
evaluation period” as provided by 18 U.S.C. §
4247. (Doc. 68 at 3).
February 22, 2019, the presiding United States District Judge
granted the Government's request for Defendant to be
evaluated under 18 U.S.C. § 4241(b) and the provisions
of § 4247(b) and (c). (Doc. 69 at 2). The District Judge
reserved ruling on Defendant's Motion for Hearing to
Determine Competency (Doc. 63) until after the court-ordered
evaluation could be completed. (See Doc. 69 at 3).
At the request of the Warden of the facility where Defendant
was committed for the evaluation, the Court extended the
evaluation period to April 10, 2019. (See Docs.
7, 2019, the presiding District Judge entered an Order
directing the Government to provide a status update regarding
the competency evaluation and report because no report had
been filed. (Doc. 84 at 1). On May 9, 2019, the Government
filed a Notice of Status of Defendant's Competency
Evaluation Report, in which the Government requested a
further extension for the evaluator to complete his report
and file it with the Court. (Doc. 87 at 3). On May 10, 2019,
the Court ordered the report to be filed under seal on or
before May 24, 2019. (Doc. 88).
report, dated May 21, 2019, was ultimately filed on May 22,
2019. (Doc. 92). In the report, Dr. Rodolfo A. Buigas, a
forensic psychologist, states that Defendant was evaluated as
requested by this Court's Order from March to April 2019.
(Id. at 1). Dr. Buigas opined that Defendant
“appears to have sufficient understanding of the legal
process and a capacity to assist in his own defense if
motivated to do so. Hence, the [D]efendant's degree of
trial competency is satisfactory, and it is recommended that
[Defendant] be found Competent to Stand Trial.”
(Id. at 9). The same day Dr. Buigas' report was
filed with the Court, the presiding District Judge referred
Defendant's Motion for Hearing to Determine Competency
(Doc. 63) to the Undersigned for a competency hearing and for
issuance of a report and recommendation. The Undersigned
immediately noticed the case for a status hearing on June 4,
2019. (Doc. 93).
status hearing before the Undersigned took place, as noticed,
on June 4. (Doc. 94). At the hearing, Defendant's counsel
orally requested that the Government produce certain
documents from the Bureau of Prisons. (Id.). In
response, the Government orally requested time to confer with
the Bureau of Prisons regarding the requested production and
to produce any documents. (Id.; see also
Doc. 95). The Undersigned orally granted the Government's
request and noticed the competency hearing to occur on June
26, 2019 to allow sufficient time for the document production
issues to be resolved. (See Doc. 96). On June 12,
2019, the Government filed a Motion for Order to Produce,
asking the Undersigned to enter an order directing that the
Bureau of Prisons - Federal Detention Center, Miami produce
certain documents, reports, and records referenced in Dr.
Buigas' report dated May 21, 2019. (Doc. 101 at 1). The
next day, the Undersigned granted the Government's motion
and ordered the specified documents to be produced. (Doc.
102). On June 24, 2019, Defendant's counsel filed a
document entitled a Discovery Receipt in which he
acknowledged receipt of the documents the Undersigned ordered
to be produced. (Doc. 106).
competency hearing was held on June 26, 2019. (Doc. 109).
Defendant was present at the hearing. (Id.).
Defendant does not speak English; thus, a court-certified
interpreter was provided. (Id.). Dr. Kling and Dr.
Buigas testified at the hearing. (Id.).
Additionally, counsel presented oral argument following the
conclusion of witness testimony.
(Id.). This matter is ripe for consideration.
on the testimony of the experts at the hearing and the
information contained in the experts' reports, the
Undersigned finds and recommends that Defendant is competent
and that the case should proceed to trial.
federal competency standard is set forth in 18 U.S.C. §
4241, which provides:
If after the hearing, the court finds by a preponderance of
the evidence that the defendant is presently 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, the court shall commit the defendant
to the custody of the Attorney General.
18 U.S.C. § 4241(d). The standard to determine mental
competency to stand trial “is whether the defendant
ha[s] ‘sufficient present ability to consult with his
lawyer with a reasonable degree of rational
understanding' and whether he ha[s] ‘a rational as
well as factual understanding of the proceedings against
him.'” United States v. Nickels, 324 F.3d
1250, 1252 (11th Cir. 2003) (citing United States v.
Cruz, 805 F.2d 1464, 1479 (11th Cir. 1986), which in
turn quotes Dusky v. United States, 362
U.S. 402 (1960)). To be mentally incompetent to stand trial,
therefore, Defendant must suffer from a mental disease or
defect such that he is unable (1) to understand the nature
and consequences of the proceedings against him or (2) to
assist properly in his defense. 18 U.S.C. § 4241(d).
determining whether Defendant has a mental disease or defect
such that he is unable to assist properly in his defense, the
competency statute is silent as to which party bears the
burden of proof. See 18 U.S.C. § 4241(d). The
Eleventh Circuit, however, has stated that “‘a
petitioner raising a substantive claim of incompetency is
entitled to no presumption of incompetency and must
demonstrate his or her incompetency by a preponderance of the
evidence.'” United States v. Bradley, 644
F.3d 1213, 1268 (11th Cir. 2011) (citing Medina v.
Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995)).
Additionally, the Supreme Court has stated, albeit in dicta,
that the burden of establishing incompetence rests with the
defendant. United States v. Izquierdo, 448 F.3d
1269, 1277-78 (11th Cir. 2006) (citing Cooper v.
Oklahoma, 517 U.S. 348, 362 (1996) for the proposition
that “Congress has directed that the accused in a
federal prosecution must prove incompetence by a
preponderance of the evidence”). Moreover, decisions by
this Court have also concluded that the moving party bears
the burden of proving a defendant's incompetency.
See, e.g., United States v. Raiola, No.
2:15-cr-106-FtM-38MRM, 2017 WL 218830, at *2 (M.D. Fla. Jan.
19, 2017) (Chappell, J.); United States v. FNU LNU,
No. 6:15-cr-3-Orl-22TBS, 6:10-cr-238-Orl-22TBS, 2016 WL
158769, at *3 (M.D. Fla. Jan. 14, 2016) (Conway, J.). Thus,
the burden of proving incompetence rests with Defendant as
the moving party such that Defendant must prove his
incompetency by a preponderance of the evidence. See
18 U.S.C. § 4241(d).
REPORTS AND TESTIMONY
DR. PAUL S. KLING
Forensic Evaluation Report Dated February 5, 2019 (Doc.
to his written report, Dr. Kling evaluated Plaintiff in a
single meeting on January 28, 2019 at the Charlotte County
jail in Punta Gorda, Florida. (Doc. 66 at 1). Dr. Kling's
evaluation was done by means of a clinical interview and
administration of the Wechsler Abbreviated Scale of
Intelligence. (Id.). Dr. Kling also reviewed
“a legal document provided by [Defendant's]
attorney.” (Id.). Dr. Kling used the services
of an interpreter during the evaluation because Defendant
does not speak English. (Id.). Defendant's
attorney was present in the room, but “did not speak or
participate in the process unless directly questioned by the
interviewer.” (Id.). Dr. Kling explained to
Defendant the limits of confidentiality in the evaluation and
Defendant signed “appropriate consent and release
to Dr. Kling's report, “[w]hen asked what he had
been charged with, [Defendant] said that he had been charged
with entering the country illegally. When asked what his
sentence or penalty might be if found guilty, he said that he
did not know.” (Id. at 2). Defendant was able
to identify his attorney as “Brian.”
(Id.). When questioned about his attorney's job
in the case, Defendant stated that his attorney “is
working on this case.” (Id.). When asked to
explain the role of his attorney further, Defendant stated
“to work on my case.” (Id.). When asked
about other things his attorney might do, Defendant responded
“to try to fix my case.” (Id.). When
asked what a federal prosecutor does, Defendant responded
that he did not know. (Id.).
according to the report, “[w]hen asked what a judge
does in court, [Defendant] said ‘to do his job as a
judge'” but was unable to provide any additional
information. (Id.). When asked “whose side the
judge is supposed to be on in court, [Defendant] said that
the judge is on the side of the federal attorney.”
(Id.). Defendant stated that he did not know what a
jury is or what a plea bargain is. (Id.). Dr. Kling
asked Defendant's attorney if he had discussed a plea
bargain with Defendant. (Id.). According to Dr.
Kling's report, Defendant's attorney “replied
that he had spent at least two hour explaining the nature of
a plea bargain to [Defendant] and that, in fact, they had
submitted a plea bargain with the prosecutor although it was
later withdrawn.” (Id.). As stated in the
report, Defendant's attorney also “said that, at
this point, any other client he has worked with would have a
very good understanding of the nature of a plea
Dr. Kling's report states that “[w]hen asked what
his defense might be in court, [Defendant] replied
‘about my family.'” (Id.). When
asked to explain further, Defendant “replied
‘because of my children and wife.' He said that
this had a very strong effect on him.” (Id.).
Defendant stated that he did not know what the word
“evidence” means in court or what “a
bailiff” does in court. (Id.).
to the report, Defendant told Dr. Kling that he was born in
Mexico and “had come to the United States in either
1993 or 1998, but could not remember which.”
(Id.). Defendant denied ever being abused during his
childhood. (Id.). Although he initially denied
suffering any serious medical illnesses or injuries, he later
“said that he suffers from asthma and eye
problems.” (Id.). Regarding his education,
Defendant “said that he thinks he completed the first
grade but was not sure. He added that he is unable to read or
write.” (Id.). Regarding work history,
Defendant “said that he has worked as a roofer and has
done well at that job” and “denied ever having
been on disability.” (Id.). Defendant also
denied any history of mental health problems, diagnoses, or
treatment. (Id.). Defendant further denied every
abusing alcohol or drugs. (Id. at 3). The report
states that “[w]hen asked if he ever saw things or
heard things that were not there, [Defendant] replied
‘I miss my family.' He then reiterated that he is
very concerned about being away from his family, children,
and wife.” (Id.).
Kling's report describes Defendant during the evaluation
[Defendant] was cooperative. His ability to interact with the
interviewer was limited. His affect was flat. [Defendant]
became tearful when mentioning his family and needed several
minutes to compose himself. There were no indication of
paranoid or delusional though content. No. other unusual
behaviors were observed. His appearance was unremarkable.
the consent and release forms Dr. Kling requested from
Defendant, the report states:
At the beginning of the interview, I requested [Defendant] to
read and sign consent and release forms. One form was read to
him by the interpreter and then [Defendant] simply turned to
his attorney and asked if he should sign it. With my consent
to respond, his attorney replied that he would suggest
signing the document. The second document was signed without
being read to [Defendant] and was based simply on his
acceptance of his attorney's opinion that it would be
important to sign it.
regard to testing, Dr. Kling explains in his report:
I attempted to assess Mr. Garcia's intelligence by
administering the Wechsler Abbreviated Scale of Intelligence.
Mr. Garcia was unable to answer more than three or four of
the questions on the test and the testing was then
discontinued. If it were to be formally scored, it would
probably generate a verbal IQ somewhere between 40 and 50.
(Id.). The report states that Dr. Kling's
diagnostic impressions are:
AXIS I: Deferred
ASIS [sic] II: Probable intellectual disability AXIS III:
Kling opines in his report that Defendant “has a
limited understanding of the charges against him. He was able
to explain that he had been charged with illegal entry into
the country, but was unable to provide any additional
information or details.” (Id. at 3-4). Dr.
Kling further opines that Defendant “does not have the
ability to appreciate the range and nature of possible
penalties which may be imposed. He appeared to have no idea
whatsoever what his sentence or penalty might be if found
guilty.” (Id. at 4). Dr. Kling also opines
that Defendant “does not have the ability to understand
the adversarial nature of the legal process.”
(Id.). Dr. Kling states that Defendant “did
not understand the role of a judge, a jury, a prosecutor, or
the nature of a plea bargain.” (Id.). Dr.
Kling also states that Defendant “had a very limited
understanding of the role of his attorney. He initially
stated that the job is [sic] attorney was to work on his
case, but later added that the job of his attorney is to fix
his case. However, he was unable to describe what that meant
Dr. Kling opines in his report that Defendant “does not
have the ability to provide pertinent information regarding
his case to his attorney.” (Id.). Dr. Kling
explains that Defendant “was unable to do so during
this evaluation and the partial intelligence testing and
interview indicated a very limited capacity for verbal or
abstract thinking.” (Id.). Dr. Kling also
opines that Defendant “does not have the ability to
testify relevantly on his own behalf or challenge prosecution
witnesses for the reasons described above.”
(Id.). Dr. Kling also opines that Defendant
“has the ability to manifest superficially appropriate
behavior in court. However, he will be unable to follow the
proceedings of the court or participate in his own
ultimate question of competency, Dr. Kling's report
states his opinion as follows:
It is my opinion that [Defendant] is not competent to
proceed. It is my opinion that he does not possess sufficient
present mental ability to understand his case from a factual
and rational perspective or to consult with his attorney with
a reasonable degree of understanding. It is my opinion that
[Defendant] is incompetent due to an intellectual disability
and lack of even a basic education.
treatment, Dr. Kling's report states:
No treatment recommendations are made at this time.
Intellectual disability is considered to be a permanent
condition and not amenable to psychological or psychiatric
treatment. It is my opinion, with a reasonable degree of
psychological probability, that the least restrictive
appropriate placement for [Defendant] would be with his
family, who can provide him with the support that he needs.
(Id. at 5).
Kling testified at the June 26, 2019 competency hearing.
(Doc. 117 at 9-43).
defense proffered Dr. Kling as an expert in the field of
psychology without objection from the Government, and the
Undersigned accepted Dr. Kling as an expert in the field of
psychology. (Id. at 10-11).
Kling testified on direct examination consistent with the
matters and findings set forth in his written report.
(Id. at 9-27). Dr. Kling further explained that he
could not have examined Defendant without the assistance of
an interpreter. (Id. at 11). He also opined that
Defendant “didn't really appear to
understand” the content of the consent and release
forms Dr. Kling asked Defendant to sign before the
evaluation. (Id.). However, Dr. Kling testified that
Defendant understood that Dr. Kling would examine Defendant
to determine whether Defendant is mentally fit to stand trial
in this matter. (Id.).
Kling also testified that he attempted to administer the
Wechsler Abbreviated Scale of Intelligence II to Defendant -
an IQ test - but that Dr. Kling was unable to administer the
test fully beyond the first part, which was a vocabulary
test, because “it became apparent that [Defendant] was
not able to complete the test.” (Id. at 14).
Dr. Kling explained that the portion of the test he attempted
to administer is designed to measure verbal intelligence.
(Id. at 15). He also explained that
“[v]ocabulary, of course, correlates most highly with
full-scale IQ. That is the single test if you had to pick one
test to approximate someone's IQ the vocabulary test
would be the most useful.” (Id.). Based on
Defendant's performance on this test, Dr. Kling estimated
Defendant's IQ to be somewhere around 40 or 50.
(Id.). Dr. Kling explained that “[s]omeone
with an IQ of 40 or 50 or somewhere in that range would
probably be at the bottom one-tenth or two-tenths of one
percent of the general population.” (Id. at
16). According to Dr. Kling, Defendant's performance on
the test “would place him in the bottom . . .
two-tenths of one percent of the general population of the
United States.” (Id.).
Kling also testified that Defendant's answers to
questions were brief and most of them were “I don't
know.” (Id.). Dr. Kling also characterized
Defendant's demeanor as “flat” and his range
of emotions “was very limited.” (Id. at
16-17). Defendant was cooperative and he attempted to respond
to questions, but “[h]is ability to interact with [Dr.
Kling] was very limited. That is, he just answered questions
and didn't show any additional ability to relate to [Dr.
Kling].” (Id. at 17). Dr. Kling testified that
Defendant “did not exhibit a normal range of emotions
that we might expect from the average person.”
a probable diagnosis, Dr. Kling explained that he “did
not determine a psychological or psychiatric diagnosis as in
terms of mental illness.” (Id.). Instead, Dr.
Kling “indicated [Defendant] probably suffered from an
intellectual disability based on his performance at the
evaluation.” (Id.). When asked what practical
effect a probable IQ disability would have on a person's
ability in verbal comprehension, Dr. Kling testified that
“[i]t would make him - make it more difficult. He would
have a hard time understanding things. He would most likely -
and, again, based on the limited amount of testing that was
done, he probably had difficulty with abstract reasoning,
ability to - well, ability to understand what was
happening.” (Id. at 17-18).
asked whether Defendant fully comprehends the charges that
are pending against him, Dr. Kling testified “[o]nly in
a very limited sense. . . . [H]e's been told that [sic]
entering the country illegally. So he understands that at
least at a superficial level. However, he did not know what
his sentence or penalty might be if he were found guilty. So
I would say that he has a limited understanding of the
charges against him.” (Id. at 18).
asked for his opinion as to whether Defendant understands the
adversarial nature of the criminal proceedings pending
against him, Dr. Kling testified, “I would say not or,
again, very limited.” (Id. at 18-19). Dr.
Kling explained, “[f]or example, when he's asked
what a judge does in court, he said he does his job as a
judge. And he - when I asked him to elaborate or explain
further, he was not able to do so. When I asked whose side
the judge is supposed to be on in court, he said that the
judge is on the side of the federal attorney which is
incorrect. When asked what a plea bargain is, he said that he
did not know.” (Id. at 19). Dr. Kling added
that Defendant said he did not know what a plea bargain is
even though counsel discussed that subject with Defendant for
two hours and actually went through the procedures of
entering a plea bargain. (Id.). Dr. Kling testified
that these things indicated that Defendant “certainly
does not understand some of the critical items necessary to
be considered competent.” (Id.).
whether Defendant is capable of providing relevant and
pertinent information to his attorney to assist in his own
defense, Dr. Kling testified that Defendant's ability is
“very limited.” Dr. Kling stated that Defendant
could “probably answer fairly concrete question”
but that Defendant is “not necessarily a reliable
historian.” (Id. at 20). Dr. Kling testified
that it “would be unlikely” that Defendant would
be capable of providing relevant and responsive testimony on
his own behalf. (Id.). As to whether Defendant
understand the defenses that may be available to him, Dr.
Kling testified “I don't think he does have much
understating of his legal options. [Defendant] I believe did
not complete first grade, cannot read or write English or
Spanish, and his ability to understand such things would be
limited.” (Id.). Although Dr. Kling testified
that Defendant is willing to cooperate with his lawyer, Dr.
Kling opined that it “would seem very unlikely”
that Defendant is capable of assisting in matters such as
planning legal strategy in his own defense. (Id. at
asked whether Defendant is capable of following simple
instructions and advise, Dr. Kling opined that Defendant is
capable and “his thinking I believe is fairly concrete
so that if things were explained to him carefully and maybe
repeatedly I think he would be able to understand
them.” (Id. at 25). When asked whether
Defendant is able to make informed decisions about his case
after having the matter explained in layman's terms by
his lawyer, Dr. Kling opined that Defendant is not able to do
so. (Id.). When asked whether Defendant is able to
make an informed choice between two well-explained
alternatives such as entering a plea deal or proceeding to
trial, Dr. Kling responded “I would be doubtful. I
would say that, again, depending on how carefully everything
was explained to him and how clear and how many times it was
explained to him he might be able to make such a decision.
But, again, I believe he has a limited capacity to make that
kind of decision.” (Id. at 25-26).
asked whether Defendant would be able to follow and
understand discussions or testimony of other witnesses such
that he could point out errors, falsehoods or inconsistencies
in a courtroom setting, Dr. Kling responded “again, in
a limited way. I don't think he would really be able to
follow too carefully or advise his attorney, for example, of
something that he thought was incorrect.” (Id.
at 26). When asked whether Defendant is capable to testify
competently on his own behalf in this matter, Dr. Kling
stated “I believe he can answer questions.
(Id.). I believe he will answer them - you know,
attempt to answer them. I ...