UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 15-cr-161-LM Opinion No. 2018 DNH 112 John J. Stone
O R D E R
On May 15, 2018, the court held a competency hearing with
respect to defendant John J. Stone. At the end of the hearing,
the court concluded that Stone is incompetent and not
restorable. This order explains the court’s decision.
BACKGROUND
In September 2015, Stone was indicted on charges related to
allegations that he fraudulently obtained Supplemental Security
Income benefits. The charges consist of two counts of
concealing events affecting the right to payment of social
security benefits; one count of making a false statement; and
three counts of wire fraud. In December 2016, defense counsel
moved for a competency hearing pursuant to 18 U.S.C. § 4241,
which the government did not oppose. The court granted the
motion.
The court’s task at the initial phase was to determine
whether Stone was presently suffering from a “mental disease or defect rendering him mentally incompetent to the extent that he
is unable understand the nature and consequences of the
proceedings against him or to assist properly in his defense.”
18 U.S.C. § 4241(d); see also United States v. Wiggin, 429 F.3d
31, 36-37 (1st Cir. 2005). The court ultimately held two
hearings, on January 24 and March 6, 2017. At the January
hearing, the court heard testimony from government-retained
expert Dr. Albert M. Drukteinis, a forensic psychiatrist. He
opined that, primarily due to a neurocognitive disorder, Stone
was unable to properly assist in his defense or rationally
participate in the proceedings. Dr. Drukteinis also opined that
Stone’s competency was not restorable.
At the March hearing, the court concluded on the record
that Stone was incompetent, based on Dr. Drukteinis’s thorough
and credible opinion. Importantly, the government did not
dispute Dr. Drukteinis’s conclusions.
Having come to that determination, the court was compelled
by statute to commit Stone to the custody of the Attorney
General for hospitalization and treatment. 18 U.S.C. § 4241(d).
This is so despite the undisputed determination that Stone’s
competence was not restorable. See, e.g., United States v.
Magassouba, 544 F.3d 387, 404-05 (2d Cir. 2008). The
justification for such mandatory hospitalization is that it
2 enables “medical professionals to accurately determine whether a
criminal defendant is restorable to mental competency,” United
States v. Strong, 489 F.3d 1055, 1062 (9th Cir. 2007), and gives
the Attorney General an opportunity to explore possible medical
options. United States v. Ferro, 321 F.3d 756, 762 (8th Cir.
2003); United States v. Filippi, 211 F.3d 649, 651 (1st Cir.
2000).
To that end, the statute required that Stone be
hospitalized “for such a reasonable period of time, not to
exceed four months, as is necessary to determine whether there
is a substantial probability that in the foreseeable future he
will attain the capacity to permit the proceedings to go
forward.” 18 U.S.C. § 4241(d)(1). Given Dr. Drukteinis’s
uncontroverted opinion that Stone was not restorable, the court
recommended that “the evaluation of the defendant be conducted
as expeditiously as possible.” Doc. no. 37 at 4. This was in
keeping with the case law, which emphasizes that, while “the
statute is categorical in determining who shall be incarcerated,
. . . it is much more flexible and case-oriented in determining
the length of incarceration.” Filippi, 211 F.3d at 652.
Nevertheless, Stone was held for about four months, in what
was described as a “semi-locked” mental health unit at the
Federal Medical Center in Devens, Massachusetts. As was later
3 revealed during the testimony of Dr. Shawn Channell, a forensic
psychologist at FMC-Devens, Stone’s treatment over those four
months amounted 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, Stone learned about various aspects of the criminal-
justice system.
In late September 2017, Stone was released, and the Warden
of FMC-Devens filed a certificate attesting that his staff had
found Stone to be competent. See 18 U.S.C. § 4241(e) (stating
that the director of the hospitalizing facility shall file a
certificate once it is determined that the defendant has
sufficiently recovered to be deemed competent).
The present issue, and the subject of the May 15 hearing,
is to determine whether Stone has been restored or is otherwise
restorable. Specifically, § 4241(d) states as follows: “If, at
the end of the time period specified, it is determined that the
defendant’s mental condition has not so improved as to permit
the proceedings to go forward, the defendant is subject to the
4 provisions of sections 4246 and 4248.”1 Id. § 4241(d). At the
hearing, the government presented the testimony of Dr. Channell
and Dr. Drukteinis.
Dr. Channell opined that Stone was restored to competence
over the course of his hospitalization. Dr. Channell believed
that Stone’s deficits were grounded more in his anxiety and
depression than a neurocognitive disorder. For that reason, Dr.
Channell claimed that by increasing the dosage of his
antidepressant medication and exposing him to the criminal-
justice process, Stone’s deficits—his perseveration, inability
to focus, etc.—diminished to a degree that allowed him to
meaningfully participate in his defense. Dr. Channell noted an
important caveat to his opinion, however: even with diminished
symptoms, Stone would need significant accommodations in the
trial or plea process to assist in his own defense. At trial,
accommodations would include slowing the pace of proceedings and
providing frequent breaks, while for a plea Stone would need
questions repeated and would need information simplified. Dr.
Channell further opined that if the court were to find that
1 Similarly, after a facility director files a certificate of competence, the court must determine whether “the defendant has recovered to such an extent that he is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense.” 18 U.S.C.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 15-cr-161-LM Opinion No. 2018 DNH 112 John J. Stone
O R D E R
On May 15, 2018, the court held a competency hearing with
respect to defendant John J. Stone. At the end of the hearing,
the court concluded that Stone is incompetent and not
restorable. This order explains the court’s decision.
BACKGROUND
In September 2015, Stone was indicted on charges related to
allegations that he fraudulently obtained Supplemental Security
Income benefits. The charges consist of two counts of
concealing events affecting the right to payment of social
security benefits; one count of making a false statement; and
three counts of wire fraud. In December 2016, defense counsel
moved for a competency hearing pursuant to 18 U.S.C. § 4241,
which the government did not oppose. The court granted the
motion.
The court’s task at the initial phase was to determine
whether Stone was presently suffering from a “mental disease or defect rendering him mentally incompetent to the extent that he
is unable understand the nature and consequences of the
proceedings against him or to assist properly in his defense.”
18 U.S.C. § 4241(d); see also United States v. Wiggin, 429 F.3d
31, 36-37 (1st Cir. 2005). The court ultimately held two
hearings, on January 24 and March 6, 2017. At the January
hearing, the court heard testimony from government-retained
expert Dr. Albert M. Drukteinis, a forensic psychiatrist. He
opined that, primarily due to a neurocognitive disorder, Stone
was unable to properly assist in his defense or rationally
participate in the proceedings. Dr. Drukteinis also opined that
Stone’s competency was not restorable.
At the March hearing, the court concluded on the record
that Stone was incompetent, based on Dr. Drukteinis’s thorough
and credible opinion. Importantly, the government did not
dispute Dr. Drukteinis’s conclusions.
Having come to that determination, the court was compelled
by statute to commit Stone to the custody of the Attorney
General for hospitalization and treatment. 18 U.S.C. § 4241(d).
This is so despite the undisputed determination that Stone’s
competence was not restorable. See, e.g., United States v.
Magassouba, 544 F.3d 387, 404-05 (2d Cir. 2008). The
justification for such mandatory hospitalization is that it
2 enables “medical professionals to accurately determine whether a
criminal defendant is restorable to mental competency,” United
States v. Strong, 489 F.3d 1055, 1062 (9th Cir. 2007), and gives
the Attorney General an opportunity to explore possible medical
options. United States v. Ferro, 321 F.3d 756, 762 (8th Cir.
2003); United States v. Filippi, 211 F.3d 649, 651 (1st Cir.
2000).
To that end, the statute required that Stone be
hospitalized “for such a reasonable period of time, not to
exceed four months, as is necessary to determine whether there
is a substantial probability that in the foreseeable future he
will attain the capacity to permit the proceedings to go
forward.” 18 U.S.C. § 4241(d)(1). Given Dr. Drukteinis’s
uncontroverted opinion that Stone was not restorable, the court
recommended that “the evaluation of the defendant be conducted
as expeditiously as possible.” Doc. no. 37 at 4. This was in
keeping with the case law, which emphasizes that, while “the
statute is categorical in determining who shall be incarcerated,
. . . it is much more flexible and case-oriented in determining
the length of incarceration.” Filippi, 211 F.3d at 652.
Nevertheless, Stone was held for about four months, in what
was described as a “semi-locked” mental health unit at the
Federal Medical Center in Devens, Massachusetts. As was later
3 revealed during the testimony of Dr. Shawn Channell, a forensic
psychologist at FMC-Devens, Stone’s treatment over those four
months amounted 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, Stone learned about various aspects of the criminal-
justice system.
In late September 2017, Stone was released, and the Warden
of FMC-Devens filed a certificate attesting that his staff had
found Stone to be competent. See 18 U.S.C. § 4241(e) (stating
that the director of the hospitalizing facility shall file a
certificate once it is determined that the defendant has
sufficiently recovered to be deemed competent).
The present issue, and the subject of the May 15 hearing,
is to determine whether Stone has been restored or is otherwise
restorable. Specifically, § 4241(d) states as follows: “If, at
the end of the time period specified, it is determined that the
defendant’s mental condition has not so improved as to permit
the proceedings to go forward, the defendant is subject to the
4 provisions of sections 4246 and 4248.”1 Id. § 4241(d). At the
hearing, the government presented the testimony of Dr. Channell
and Dr. Drukteinis.
Dr. Channell opined that Stone was restored to competence
over the course of his hospitalization. Dr. Channell believed
that Stone’s deficits were grounded more in his anxiety and
depression than a neurocognitive disorder. For that reason, Dr.
Channell claimed that by increasing the dosage of his
antidepressant medication and exposing him to the criminal-
justice process, Stone’s deficits—his perseveration, inability
to focus, etc.—diminished to a degree that allowed him to
meaningfully participate in his defense. Dr. Channell noted an
important caveat to his opinion, however: even with diminished
symptoms, Stone would need significant accommodations in the
trial or plea process to assist in his own defense. At trial,
accommodations would include slowing the pace of proceedings and
providing frequent breaks, while for a plea Stone would need
questions repeated and would need information simplified. Dr.
Channell further opined that if the court were to find that
1 Similarly, after a facility director files a certificate of competence, the court must determine whether “the defendant has recovered to such an extent that he is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense.” 18 U.S.C. § 4241(e).
5 Stone is not competent, Stone would not benefit from further
treatment.
Dr. Drukteinis reiterated his prior opinion that Stone is
incompetent. He found Dr. Channell’s view unpersuasive for a
few reasons. Citing numerous facts from Stone’s medical
history, Dr. Drukteinis contended that Dr. Channell failed to
properly emphasize the role that Stone’s neurocognitive disorder
played in his inability to assist in his own defense. Dr.
Drukteinis was also skeptical of the efficacy of Stone’s
putative treatment. Dr. Drukteinis noted that the “increase” in
antidepressant medication was actually a return to the dosage
that Stone had been taking prior to hospitalization, and that
Stone’s mere knowledge of his charges and the criminal-justice
process would not alleviate the deficits that prevented him from
assisting in his own defense.
Relying on Dr. Channell’s opinion, the government took the
position that Stone had been restored to competence. Defense
counsel maintained that Stone was incompetent and not
restorable. At the end of the hearing, the court issued its
findings orally from the bench that Stone is incompetent and not
restorable—and indicated that a written decision would follow.
6 DISCUSSION
The court considers an extended analysis unnecessary.
Indeed, the ostensible dispute between the experts is more
illusory than real. Dr. Drukteinis opined that Stone could not
assist in his own defense, is incompetent, and is not
restorable. Dr. Channell all but explicitly acknowledged that
Stone could not assist in his own defense under normal
conditions, and he conceded that Stone would not benefit from
further treatment.
The court continues to find Dr. Drukteinis’s opinion
persuasive. His view is consistent with Stone’s medical history
and the available sources. By contrast, the court does not find
Dr. Channell’s opinion persuasive. Dr. Channell gives little
weight to the connection between Stone’s neurocognitive disorder
and his competence, despite, as Dr. Drukteinis explained, the
persuasive evidence showing such a connection. Furthermore, the
evidence demonstrates that Stone continues to have the same
difficulties with perseveration and focus, even after treatment.
Indeed, the court questions whether the educational classes can
even constitute “treatment” for Stone’s perseveration and
inability to focus. According to Dr. Drukteinis, whose
unopposed assessment this court adopted in its March 6 order,
Stone’s incompetence is based on his inability to assist in his
7 own defense, not on his lack of understanding of the nature or
consequences of the proceedings. The educational classes are
aimed more at the latter sort of deficit, which is irrelevant
here. Thus, Dr. Channell’s reliance on the classes as an
effective treatment renders his opinion particularly
unconvincing.
For these reasons, the court has no trouble concluding that
Stone’s condition “has not so improved,” and is unlikely to
improve in the foreseeable future, “as to permit the proceedings
to go forward.” 18 U.S.C. § 4241(d).
All that being said, this discussion obscures a more
salient issue lurking in the background, and that is the deep
inequity of the process to which Stone has been subjected.
Prior to Stone’s hospitalization, all of the parties agreed that
Stone is both incompetent and not restorable. The statute
nonetheless required that Stone be hospitalized for an
assessment as to whether he is restorable. In light of the
parties’ agreement and the unique circumstances, the court
recommended that the assessment be conducted “as expeditiously
as possible.” Doc. no. 37 at 4.
Yet, instead of undertaking that narrow inquiry on an
expedited basis, Dr. Channell decided to fully re-evaluate
Stone’s competency. At the hearing, Dr. Channell stated that he
8 followed the Bureau of Prisons’ standard procedure in evaluating
and treating Stone, but this was clearly no ordinary case. Four
months of needless re-evaluation and negligible treatment
followed, after which Dr. Channell concluded that, if the court
were to find Stone incompetent, Stone would not benefit from
further treatment. Stone was confined—in a prison hospital—for
far longer than was necessary to reach that limited
determination. At this point, the least that can be done is to
discontinue criminal proceedings and allow Stone to get on with
his life.
In sum, based on the record and testimony, the court
concludes that Stone cannot assist in his own defense, is
incompetent, and is not restorable. See 18 U.S.C. § 4241(d),
(e). Because Stone has already been released, there is no
remedy that the court needs to order at the present time. See
id. § 4241(d); United States v. Ecker, 78 F.3d 726, 731 (1st
Cir. 1996). In addition, because the government indicated at
the hearing that it would not seek commitment under § 4246 or
§ 4248 if the court were to find Stone incompetent and not
restorable, Stone need not be held for further evaluation under
those provisions.
9 The court presumes that the government will act swiftly to
dismiss the charges against Stone. See United States v. Peppi,
No. 06-157, 2007 WL 674746, at *6 (D.N.J. Feb. 28, 2007) (“[T]he
Government customarily dismisses indictments against defendants
who . . . will never regain competency.”); see also Ecker, 78
F.3d at 729-30.
CONCLUSION
For the reasons stated herein, the court concludes that
Stone is incompetent and not restorable for purposes of 18
U.S.C. § 4241(d).
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
May 29, 2018
cc: Bjorn Lange, Esq. Matthew Hunter, Esq. U.S. Probation U.S. Marshal