UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Case No. 22-cr-088-01-LM Opinion No. 2023 DNH 045 P David Berard
ORDER
On April 25, 2023, a hearing was held on defendant David Berard’s motion to
dismiss the indictment for violations of 18 U.S.C. §§ 3161 & 4241. During the
hearing, the court received a letter dated April 24, 2023, from Amy Boncher,
Warden of FMC-Devens. Boncher’s letter was in response to a court order
requesting a status update informing the court about the progress of Berard’s
competency restoration evaluation. The court specifically asked Boncher to address
the “current view of whether there exists a ‘substantial probability’ — as opposed to
certainty—that Berard may be returned to competency.” The court finds the letter
problematic for the following reasons.
First, the letter does not answer the court’s question.
Second, the letter raises a timeliness problem. Specifically, Boncher states
that BOP intends to submit its written report to the court after the expiration of the
four-month time-period that BOP is permitted to hold Berard for evaluation under
18 U.S.C. § 4241(d)(1). Nothing in § 4241(d)(1) indicates that BOP may unilaterally
extend the 4 months. Indeed, the Second Circuit has held that BOP must forward
its report before the expiration of the four months, so that a court can make a timely determination on restorability. United States v. Magassouba, 544 F.3d 387,
410 (2d Cir. 2008) (“Because § 4241(d)(1) is unequivocal in limiting custodial
hospitalization under that subsection to a reasonable period of time, ‘not to exceed
four months,’ we necessarily conclude that the Attorney General exceeded its
authority in holding Magassouba in custodial hospitalization . . . approximately
three weeks longer than the four months specified . . . .”). Assuming that the
government’s reading of the statute is correct and since Berard was admitted to
FMC-Devens on February 27, 2023, the maximum time allowable under
§ 4241(d)(1) for BOP to report back to the court its view as to “whether there is a
substantial probability” that Berard’s competency can be restored in the
“foreseeable future” expires on June 27, 2023.
Third, a reasonable reading of the letter leads the court to understand that
BOP may have already reached the opinion that Berard’s competency can be
restored, or that he is, in fact, competent. Reaching either conclusion without
informing the court would violate § 4241(d)(1) & (e). A few weeks ago, Dr. Dia
Boutwell, who is chief of BOP’s psychological evaluations section, stated in a
declaration that BOP “requires, pursuant to § 4241(d), a four-month period of
hospitalization . . . to evaluate restorability . . . .” Doc. no. 44-1 at 2. She also
testified that Berard presents a difficult case, suggesting that use of the full four
months was necessary in his case. Now, however, Boncher’s April 24 letter strongly
suggests that BOP has already determined that Berard is restorable to competency
in the foreseeable future. That is, it appears that BOP has already determined,
2 without informing the court, that it believes there is at least a “substantial
probability” that Berard’s competency can be restored. For example, according to
the letter, Berard has completed six of eight “Competency Restoration Group
meetings.”
The letter also could be read to indicate that BOP thinks Berard is
competent. In early April, Berard “was found competent” by BOP for purposes of
subjecting him to its internal disciplinary process. And, Dr. Miriam Kissin,
Berard’s attending psychiatrist, has met with Berard on two occasions and finds
him to be “psychiatrically stable” and without any of the symptoms noted by Dr.
Eric Drogin, whose report the court relied on to find Berard incompetent. Indeed,
the letter notes that, having completed two interviews of Berard, Dr. Kissin
provided “[n]o diagnosis or recommendation for psychiatric treatment . . . .”
Fourth, from the letter, it appears that BOP may be unnecessarily
lengthening the § 4241(d)(1) evaluation period by developing a second opinion about
Berard’s competency instead of merely evaluating him as to whether he can be
restored to competency. Compare § 4241(d)(1)(A) (commitment only permitted for
the reasonable time “as is necessary to determine whether there is a substantial
probability” of restoration), with § 4241(d)(2)(A) (additional commitment permitted
if the court finds there is a substantial probability that the defendant will obtain
capacity to proceed). This court has already found Berard incompetent. The
government had an opportunity to oppose those findings during those proceedings.
It did not. The court did not commit Berard so that BOP could take more than four
3 months to render a second opinion on the matter of his competency. See also
§ 4247(b) (setting time limits for competency evaluations). The court’s directive to
the Attorney General was to determine—in a time no longer than necessary per
Jackson v. Indiana and § 4241(d)—whether a substantial probability exists that
Berard can be restored to competency. 406 U.S. 715, 738 (1972) (holding that,
under the Due Process Clause, a person “who is committed solely on account of his
incapacity to proceed to trial” cannot be held any longer “than the reasonable period
of time necessary to determine whether there is a substantial probability that he
will attain that capacity in the foreseeable future”). This is why the court asked for
an update on that question in its April 18, 2023 order.
This is troubling to the court — especially where it took 3 months and 4 days
for Berard to be admitted to FMC-Devens for his evaluation. Section 4241(d)(1)
does not require certainty; it requires only that BOP evaluate Berard—in the most
expeditious way possible—as to whether there is a “substantial probability” of
restorability. The court is mindful of BOP’s national backlog with respect to
restorability determinations. Yet this letter suggests that BOP could perhaps
communicate restorability determinations in certain of its patients—such as
Berard—on a more expedited basis, thereby easing its backlog.
Fifth and finally, this is not the first time that BOP has apparently ignored
the direction of the courts and Congress as to competency restoration evaluations.
In United States v. Stone, this court found a defendant incompetent and, as it was
required to do, committed him to the custody of the Attorney General for a
4 competency restoration determination. No. 15-cr-161-LM, 2018 WL 2417857
(D.N.H. May 29, 2018). Considering the “uncontroverted opinion” of a forensic
psychiatrist that the defendant was not restorable to competency but recognizing its
obligation to commit the defendant for an evaluation under § 4241(d), the court
recommended that BOP conduct its evaluation of the defendant “as expeditiously as
possible.” Id. at *1.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Case No. 22-cr-088-01-LM Opinion No. 2023 DNH 045 P David Berard
ORDER
On April 25, 2023, a hearing was held on defendant David Berard’s motion to
dismiss the indictment for violations of 18 U.S.C. §§ 3161 & 4241. During the
hearing, the court received a letter dated April 24, 2023, from Amy Boncher,
Warden of FMC-Devens. Boncher’s letter was in response to a court order
requesting a status update informing the court about the progress of Berard’s
competency restoration evaluation. The court specifically asked Boncher to address
the “current view of whether there exists a ‘substantial probability’ — as opposed to
certainty—that Berard may be returned to competency.” The court finds the letter
problematic for the following reasons.
First, the letter does not answer the court’s question.
Second, the letter raises a timeliness problem. Specifically, Boncher states
that BOP intends to submit its written report to the court after the expiration of the
four-month time-period that BOP is permitted to hold Berard for evaluation under
18 U.S.C. § 4241(d)(1). Nothing in § 4241(d)(1) indicates that BOP may unilaterally
extend the 4 months. Indeed, the Second Circuit has held that BOP must forward
its report before the expiration of the four months, so that a court can make a timely determination on restorability. United States v. Magassouba, 544 F.3d 387,
410 (2d Cir. 2008) (“Because § 4241(d)(1) is unequivocal in limiting custodial
hospitalization under that subsection to a reasonable period of time, ‘not to exceed
four months,’ we necessarily conclude that the Attorney General exceeded its
authority in holding Magassouba in custodial hospitalization . . . approximately
three weeks longer than the four months specified . . . .”). Assuming that the
government’s reading of the statute is correct and since Berard was admitted to
FMC-Devens on February 27, 2023, the maximum time allowable under
§ 4241(d)(1) for BOP to report back to the court its view as to “whether there is a
substantial probability” that Berard’s competency can be restored in the
“foreseeable future” expires on June 27, 2023.
Third, a reasonable reading of the letter leads the court to understand that
BOP may have already reached the opinion that Berard’s competency can be
restored, or that he is, in fact, competent. Reaching either conclusion without
informing the court would violate § 4241(d)(1) & (e). A few weeks ago, Dr. Dia
Boutwell, who is chief of BOP’s psychological evaluations section, stated in a
declaration that BOP “requires, pursuant to § 4241(d), a four-month period of
hospitalization . . . to evaluate restorability . . . .” Doc. no. 44-1 at 2. She also
testified that Berard presents a difficult case, suggesting that use of the full four
months was necessary in his case. Now, however, Boncher’s April 24 letter strongly
suggests that BOP has already determined that Berard is restorable to competency
in the foreseeable future. That is, it appears that BOP has already determined,
2 without informing the court, that it believes there is at least a “substantial
probability” that Berard’s competency can be restored. For example, according to
the letter, Berard has completed six of eight “Competency Restoration Group
meetings.”
The letter also could be read to indicate that BOP thinks Berard is
competent. In early April, Berard “was found competent” by BOP for purposes of
subjecting him to its internal disciplinary process. And, Dr. Miriam Kissin,
Berard’s attending psychiatrist, has met with Berard on two occasions and finds
him to be “psychiatrically stable” and without any of the symptoms noted by Dr.
Eric Drogin, whose report the court relied on to find Berard incompetent. Indeed,
the letter notes that, having completed two interviews of Berard, Dr. Kissin
provided “[n]o diagnosis or recommendation for psychiatric treatment . . . .”
Fourth, from the letter, it appears that BOP may be unnecessarily
lengthening the § 4241(d)(1) evaluation period by developing a second opinion about
Berard’s competency instead of merely evaluating him as to whether he can be
restored to competency. Compare § 4241(d)(1)(A) (commitment only permitted for
the reasonable time “as is necessary to determine whether there is a substantial
probability” of restoration), with § 4241(d)(2)(A) (additional commitment permitted
if the court finds there is a substantial probability that the defendant will obtain
capacity to proceed). This court has already found Berard incompetent. The
government had an opportunity to oppose those findings during those proceedings.
It did not. The court did not commit Berard so that BOP could take more than four
3 months to render a second opinion on the matter of his competency. See also
§ 4247(b) (setting time limits for competency evaluations). The court’s directive to
the Attorney General was to determine—in a time no longer than necessary per
Jackson v. Indiana and § 4241(d)—whether a substantial probability exists that
Berard can be restored to competency. 406 U.S. 715, 738 (1972) (holding that,
under the Due Process Clause, a person “who is committed solely on account of his
incapacity to proceed to trial” cannot be held any longer “than the reasonable period
of time necessary to determine whether there is a substantial probability that he
will attain that capacity in the foreseeable future”). This is why the court asked for
an update on that question in its April 18, 2023 order.
This is troubling to the court — especially where it took 3 months and 4 days
for Berard to be admitted to FMC-Devens for his evaluation. Section 4241(d)(1)
does not require certainty; it requires only that BOP evaluate Berard—in the most
expeditious way possible—as to whether there is a “substantial probability” of
restorability. The court is mindful of BOP’s national backlog with respect to
restorability determinations. Yet this letter suggests that BOP could perhaps
communicate restorability determinations in certain of its patients—such as
Berard—on a more expedited basis, thereby easing its backlog.
Fifth and finally, this is not the first time that BOP has apparently ignored
the direction of the courts and Congress as to competency restoration evaluations.
In United States v. Stone, this court found a defendant incompetent and, as it was
required to do, committed him to the custody of the Attorney General for a
4 competency restoration determination. No. 15-cr-161-LM, 2018 WL 2417857
(D.N.H. May 29, 2018). Considering the “uncontroverted opinion” of a forensic
psychiatrist that the defendant was not restorable to competency but recognizing its
obligation to commit the defendant for an evaluation under § 4241(d), the court
recommended that BOP conduct its evaluation of the defendant “as expeditiously as
possible.” Id. at *1. Nevertheless, the defendant “was held for about four months”
in a “semi-locked” mental health unit at FMC-Devens. Id. at *2.
[The defendant’s] treatment over those four months amount[ed] to (1) an increase in his antidepressant medication, and (2) exposure to the criminal-justice process through meetings with mental-health professionals and a ‘competency restoration group.’ In the competency restoration group, which consisted of nine classes over the course of two months, [the defendant] learned about various aspects of the criminal-justice system.
Id. After those four months passed, the Warden of FMC-Devens issued a certificate
under § 4241(e) attesting that prison staff found the defendant to be competent. Id.
In rejecting BOP’s view that the defendant was competent and restorable, this court
criticized what appears to be BOP’s “standard procedure,” observing that “instead of
undertaking that narrow [competency restoration] inquiry on an expedited basis,
Dr. Channell decided to fully re-evaluate Stone’s competency. . . .” See id. at *3.
Considering Boncher’s letter, it appears that BOP is, as in Stone, providing the
same limited treatment while ignoring the directive that it take no more time than
reasonably necessary to evaluate whether Berard can be restored to competency.
The court is thus concerned that BOP is holding or plans to hold Berard “for far
longer than [is] necessary to reach that limited determination.” See id.
5 In sum, Boncher’s letter is insufficient and does not address Berard’s status
under § 4241(d)(1). Due to the statutory time constraints, an expedited hearing is
necessary. The hearing is scheduled for Monday, May 1, 2023, at 2:00 p.m. The
court orders Dr. Kissin to appear at such hearing to address Berard’s status under
§ 4241(d)(1). Dr. Kissin’s testimony via video conference is acceptable to the court.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
April 27, 2023
cc: Counsel of Record