Opinion
IP 01-0216M-01
July 9, 2001
ENTRY ON MOTION TO VACATE ORDER OF COMMITMENT
Defendant, Erik A. Auberg, is charged in a criminal complaint with knowingly or willfully threatening to take the life of the President of the United States in violation of 18 U.S.C. § 871. This case is currently before the court on Defendant's motion to vacate Magistrate Judge Kennard P. Foster's Entry and Order for Medical and Mental Examination entered on July 2, 2001, pursuant to 18 U.S.C. § 4241. Such order was issued in response to a Motion for Determination of Mental Competency filed by the government on that same date. On July 3, 2001, this court held a hearing on Defendant's motion.
Defendant first challenges the Magistrate Judge's authority to enter such an order. If the Magistrate Judge did not have authority to take the action he did, the Magistrate Judge's order would be a nullity and the government's motion would be subject to de novo consideration by this court. In the alternative, Defendant argues that, if the Magistrate Judge had authority to enter such an order, then the Magistrate Judge's order is clearly erroneous or contrary to law. Thus, this court is compelled to address two issues: first, the Magistrate Judge's authority to issue the commitment order, and second, the standard by which to consider the subject of the government's motion regarding Defendant's mental competency. If the Magistrate Judge had authority to rule on the motion, his ruling is subject to vacation only if it is clearly erroneous or contrary to law. If he lacked authority to review it, his decision does not need to be considered at all and this court will consider the government's motion and Defendant's evidence and arguments without any deference to the earlier ruling.
Defendant does not challenge the government's Motion for Determination of Mental Competency; in fact, Defendant agrees that there exists reasonable cause to believe that he may be suffering from a mental disease or defect rendering him mentally incompetent. Rather, Defendant challenges the Magistrate Judge's authority to act on such motion.
Magistrate Judge's Authority
Neither the government nor Defendant questioned the Magistrate Judge's authority to consider the mental competency motion. As a result, his order does not address the authority under which it was issued. The court will focus on the Magistrate Judge's statutory authority, as implemented by this court's Local Rules.
The Magistrate Judge's commitment order may have been entered pursuant to the authority entrusted to him by 28 U.S.C. § 636 and Local Rule of the United States District Court for the Southern District of Indiana 72.1 ("L.R. 72.1"). Section 636(a) defines the jurisdiction of a Magistrate Judge. See 28 U.S.C. § 636(a). Section 636(b)(1)(A) gives a District Judge authority to designate a Magistrate Judge
to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law.28 U.S.C. § 636(b)(1)(A). According to this section, it is not impermissible for a District Judge to designate a Magistrate Judge to determine whether a psychiatric or psychological examination of a defendant should be ordered pursuant to 28 U.S.C. § 4241(b) prior to a mental competency hearing. Designations of matters to Magistrate Judges can be done specifically in particular cases or generally by such court-wide rules as the Local Rules. No specific designation of this matter to the Magistrate Judge was made. However, section 636(b)(4) provides that, "Each district court shall establish rules pursuant to which the magistrates shall discharge their duties." 28 U.S.C. § 636(b)(4). Thus, because section 636(b)(1)(A) does not preclude a Magistrate Judge from issuing orders for mental examinations described in section 4241(b), the issue to be determined is whether the Local Rules authorize Magistrate Judges to act in such matters.
Section 4241(b) provides:
Prior to the date of the [mental competency] hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c).
28 U.S.C. § 4241(b).
L.R. 72.1 describes the authority of Magistrate Judges in this district. L.R. 72.1(c), entitled "Determination of Non-dispositive Pretrial Matters- 28 U.S.C. § 636(b)(1)(A)[,]" provides,
A Magistrate Judge may hear and determine any procedural or discovery motion or other motion or pretrial matter in a civil and criminal case, other than the motions which are specified in Local Rule 72.1(d) of these rules, in accordance with Federal Rules of Civil Procedure 72(a).
Thus, L.R. 72.1(c) gives broad delegation of authority to Magistrate Judges, and the rule should be interpreted accordingly. L.R. 72.1(a) gives specific examples of matters which Magistrate Judges have been authorized to conduct. That rule provides in part,
Also, L.R. 72.1(i)(20), entitled "Additional Duties — 28 U.S.C. § 636(b)(3)[,]" provides,
A Magistrate Judge of this Court is also authorized to:
* * *
(20) Perform any additional duty as is not contrary to the law of this District and Circuit nor inconsistent with the Constitution and laws of the United States.
Each United States Magistrate Judge of this Court is authorized to perform the duties prescribed by 28 U.S.C. § 636(a)(1) and (2), and may exercise all the powers and duties conferred upon United States Magistrate Judges by statutes of the United States and the Federal Rules of Criminal Procedure which include, but are not necessarily limited to, the following:. . . .
(emphasis added). L.R. 72.1(d) lists matters which a Magistrate Judge must refer back to a District Judge for final disposition unless the parties consent to the handling of the matter by the Magistrate Judge. Although L.R. 72.1(a) does not specifically give a Magistrate Judge the authority to order a section 4241(b) pre-mental competency hearing psychiatric or psychological examination, it is noteworthy that L.R. 72.1(d) does not specifically preclude a Magistrate Judge from issuing such an order. Additionally, L.R. 72.1(a) only sets forth examples, it is not an exclusive list, of conduct which a Magistrate Judge is authorized to undertake. Moreover, L.R. 72.1(a)(12) specifically authorizes Magistrate Judges to conduct "detention hearings. ( 18 U.S.C. § 3142(f))[,]" matters quite analogous to the determination of whether a section 4241(b) mental examination should be conducted while a defendant is committed to the custody of the Attorney General. Considering the provisions of L.R. 72.1 in totality, this court determines that pursuant to the broad delegation of authority in L.R. 72.1(c), and the failure to preclude such action in L.R. 72.1(d), Magistrate Judges in this district have the authority to order section 4241(b) mental examinations without specific reference from a District Judge, despite the absence of specific mention of such authority in L.R. 72.1(a). This court also concludes that the mental examination order was issued by Magistrate Judge Foster in this case pursuant to that authority.
L.R. 72.1(d)(1) provides in part,
A Magistrate Judge may submit to a Judge of the Court a report containing proposed findings of fact and recommendations for disposition by the Judge of the following pretrial motions in civil and criminal cases in accordance with Federal Rule of Civil Procedure 72(b):. . . .
(emphasis added).
Defendant relies upon United States v. Weissberger, 951 F.2d 392, 398 (D.C. Cir. 1991), for the proposition that a Magistrate Judge exceeds his authority when he orders a criminal defendant committed to the Attorney General for the purpose of a mental health examination without designation from a District Judge. Weissberger in not applicable to this case. In Weissberger, the court held that "the Magistrate Judge exceeded her authority in ordering the competency evaluation without first receiving a request to do so from a District Judge as required by Local Rule 501." Id. Local Rule 501 to which the court refers, provides in pertinent part, "At the request of a judge to whom the case is assigned, a Magistrate shall have the duty and power to: . . . (9) Hear motions and enter orders for examinations to determine mental competency in criminal cases." Id. at 398 n. 3 (quoting D.D.C.R. 501(b)(9)). Weissberger is inapposite to this case because, unlike D.D.C.R. 501, L.R. 72.1 does not preclude a Magistrate Judge from ordering a competency evaluation without specific designation from a District Judge.
Review Of The Magistrate Judge's Order
Having concluded that the Magistrate Judge was in fact authorized by L.R. 72.1 to issue an order compelling Defendant to undergo a mental examination, the court turns its attention to whether "the magistrate's order is clearly erroneous or contrary to law[,]" the appropriate standard of review for rulings made by a properly authorized Magistrate Judge. 28 U.S.C. § 636(b)(1)(A). Defendant argues that the Magistrate Judge's order is clearly erroneous or contrary to law because the Magistrate Judge did not order that the mental examination be conducted at the Veterans Administration Hospital ("VA Hospital") in Indianapolis, but rather committed Defendant to the custody of the Attorney General.
Defendant argues that the VA Hospital in Indianapolis is the suitable facility closest to the court, and because it is not impracticable for the examination to be conducted there, pursuant to 28 U.S.C. § 4247(b), that is the facility to which Defendant should have been committed by the Magistrate Judge for the purpose of conducting the examination. 18 U.S.C. § 4247(b) provides in relevant part:
Defendant also submitted evidence about the VA Hospital in Marion, Indiana, and urged its consideration as an alternative to the Indianapolis hospital. The Marian VA Hospital will be discussed later in this Entry.
A psychiatric or psychological examination ordered pursuant to this chapter shall be conducted by a licensed or certified psychiatrist or psychologist, or, if the court finds it appropriate, by more than one such examiner. Each examiner shall be designated by the court, except that if the examination is ordered under section 4245 or 4246, upon the request of the defendant an additional examiner may be selected by the defendant. For the purposes of an examination pursuant to an order under section 4241 . . . the court may commit the person to be examined for a reasonable period . . . to the custody of the Attorney General for placement in a suitable facility. Unless impracticable, the psychiatric or psychological examination shall be conducted in the suitable facility closest to the court . . . .
Pursuant to this statute, the Magistrate Judge ordered Defendant committed to the custody of the Attorney General for placement in a suitable facility. In doing so, the Magistrate Judge considered Defendant's argument that a commitment to the Attorney General for assignment to a Bureau of Prisons' medical facility will cause a break in Defendant's current medical treatment and medication and could have a negative, or even disastrous effect, on Defendant's mental health and, accordingly, ordered that the facility designated by the Attorney General be one where Defendant's mental condition could be evaluated and where appropriate medical treatment could be administered as necessary.
The Magistrate Judge's order committing Defendant to the custody of the Attorney General was not clearly erroneous nor contrary to law. Although section 4247(b) can fairly be read, by use of the word may as opposed to the word shall, to permit a judge to refuse to commit a person who has been ordered to undergo a mental examination to the custody of the Attorney General, see In re Newchurch, 807 F.2d 404, 410 (5th Cir. 1986) (holding that the permissive language of section 4247(b) allowed the court to either commit the defendant to the custody of the Attorney General or order that the examination be conducted in some other manner) (discussed in United States v. Shawer, 865 F.2d 856, 863 (7th Cir. 1989)), such refusal does not amount to error in this case. The Magistrate Judge articulated persuasive reasons for refusing to commit Defendant to the VA Hospital in Indianapolis. The most persuasive of those reasons is the underlying circumstances of the crime charged. The probable cause affidavit alleges that Defendant committed the crime of which he is charged while he was a resident of the Volunteers of America Community Confinement Center ("VOA") and while he was being treated for a bi-polar disorder with anti-psychotic medication prescribed by Dr. Sobel of the VA Hospital. Defendant allegedly told a Special Agent of the Federal Bureau of Investigation and a Special Agent of the Secret Service that he intended to kill the President of the United States because a strong male voice was commanding him to do so. Allegedly, Defendant stated that he always follows the commands of the voice and had recently cut his wrists in response to the voice commands. Defendant also allegedly stated that when he was a juvenile he kidnapped a young girl at knifepoint because he was commanded to do so by the inner voice. Further, Defedant allegedly stated that while serving in the Army during Desert Storm, he gained familiarity with weapons and explosives and was not afraid to die during his attack on the President. Based on these allegations, the Magistrate Judge's refusal to commit Defendant to Dr. Sobel's care at the VA Hospital in Indianapolis, the same facility that was treating him when he allegedly committed the crime charged, for the purpose of conducting the mental examination was not clearly erroneous or contrary to law. As noted below, this court considered Dr. Sobel's testimony before the District Court in considering Magistrate Judge Foster's order.
During the July 3, 2001, hearing, Dr. Sobel testified that he is a psychiatrist employed at the VA Hospital in Indianapolis and is a treating physician of Defendant.
The court also knows, as does Magistrate Judge Foster, that the VOA is not a lock-down type facility. Residents of the VOA are able to leave at any time of their own volition. If a resident's departure is without permission or is otherwise in violation of a court order, law enforcement officials are notified, but only after the departure.
Even if this court were to review the Magistrate's order (or the government's motion, for that matter) de novo, the court would end up at the same result reached by the Magistrate Judge. The VA Hospital in Indianapolis is not sufficiently secure to house this Defendant. During the July 3, 2001, hearing, the only witness to testify was Dr. Sobel. Dr. Sobel testified that, to his knowledge, if a patient of the VA Hospital in Indianapolis desired to leave the facility, he could do so undetected with little or no structural resistence. Nor is the VA Hospital in Marion, Indiana, sufficiently secure. Although more security is available at that facility, the court, based on Dr. Sobel's testimony, does not believe that such facility can ensure the safety of Defendant and the community during Defendant's temporary custody. Dr. Sobel also testified that while he had a general familiarity with competency issues, he had no familiarity with competency determinations in federal criminal cases. The Bureau of Prisons, on the hand, employs medical personnel who are intimately familiar with competency determinations in federal criminal cases. Nor was he aware of anyone affiliated with the VA Hospital in Indianapolis or Marian who was familiar with federal criminal competency issues. Finally, it is not lost on this court that the serious crime alleged in the probable cause affidavit allegedly occurred while Defendant was being treated with anti-psychotic medication prescribed by Dr. Sobel and was living at the VOA. It is not uncommon that treating physicians become advocates for their patients or their colleagues' patients. The court would prefer to obtain a more neutral view of Defendant's competency.
Under a de novo standard of review, this court would have ordered Defendant committed to the custody of the Attorney General. Once in the custody of the Attorney General, it is the Attorney General, not the court, who is to determine the suitable facility closest to the court in which the defendant is to be placed. Congress, by the language it used in section 4247(b), recognized the limitations of the federal courts in the mental health field and intended to delegate the authority to determine a suitable facility in which to place the defendant to the Attorney General. See 28 U.S.C. § 4247(b); see also 28 U.S.C. § 4247(i) ("Authority and responsibility of the Attorney General").
Conclusion
For the foregoing reasons, the court DENIES Defendant's motion. The court will supplement the Magistrate Judge's order in three respects, though. First, the Attorney General will be ordered to place Defendant in the suitable facility closest to the court, unless impracticable, pursuant to 28 U.S.C. § 4247(b). Second, the court will also order that there be no disruption to the medication regimen Defendant is currently receiving through the VA Hospital. Third, the court will order the Attorney General, through the United States Marshal and the Bureau of Prisons, who will be Defendant's custodians, to obtain all appropriate medical information from Defendant and the VA Hospital, to forward such information to his custodians and to take all reasonable steps to insure that such custodians make necessary and appropriate treatment available to Defendant before, during and after his transport to the designated facility.
Defendant expressed some concern that his treatment would be disrupted were he to be subjected to the custody of the Attorney General, particularly before and during his transport to the Bureau of Prisons. As noted in a "Notice of Transfer" filed by the government, on July 5, 2001, the Medical Designator, Bureau of Prisons, in a memorandum to the Prisoner Transport Division, wrote that Defendant is designated to FMC Rochester and recommended direct travel to the designated facility without being placed on holdover status. Direct travel, according to the memorandum, means transfer from the holdover facility and arrival at the designated facility on the same day. This direct route of travel should alleviate Defendant's treatment concerns.