Opinion
4:03CR3100
May 12, 2004
MEMORANDUM AND ORDER ON DEFENDANT'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The defendant, Timothy S. DeGarmo, has moved to dismiss the indictment against him on the ground that the passage of time has violated his right to a speedy trial. (See Def.'s Mot. to Dismiss and Request for Hr'g, filing 31.) Although a hearing on this motion was not held, United States Magistrate Judge David L. Piester accepted a proffer from the defendant during a hearing on another matter on March 12, 2004, (see filing 41), and, pursuant to 28 U.S.C. § 636(b)(1), the magistrate judge has recommended that I deny the defendant's motion, (see filing 42). Now before me are the defendant's objections to the magistrate judge's report and recommendation, filing 45. In the course of my de novo review of those portions of the magistrate judge's report that the defendant challenges,see United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003); 28 U.S.C. § 636(b)(1)(C); NELR 72.4, I have studied the magistrate judge's entire report and recommendation, (see filing 42); the correction that has been made to that report and recommendation, (see filing 46); the audio tape of the hearing before the magistrate judge during which the defendant's proffer of evidence was made, (see filing 41); the competency report filed under seal, (see filing 15); the brief submitted by the defendant in support of his motion to dismiss, (see filing 32); the defendant's objections to the report and recommendation, (see filing 45); the government's response brief, (see filing 47); and the docket sheet, along with all of the filings appearing thereon to date that I have not specifically identified above. The facts of this case raise novel questions, but the magistrate judge's report is well-reasoned and exceptionally thorough, and it shall be adopted. The defendants' motion to dismiss will be denied.
I. BACKGROUND
Many of the background facts set forth by the magistrate judge are not disputed by the defendant. I have reviewed the portions of the magistrate judge's report to which there are no objections for clear error. See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (indicating that if no objections to a magistrate judge's report are filed, a district court "would only have to review the findings of the magistrate judge for clear error"); see also Fed.R.Civ.P. 72 advisory committee notes (1983 edition, Subdivision (b)). A more detailed account of the background facts appears in the magistrate judge's report. (See filing 42.)
On July 24, 2003, the defendant was indicted. (See Indictment, filing 1.) He was arrested on July 26, 2003, and his initial appearance, arraignment, and detention hearing were held on July 30, 2003. (See filings 4-7.)
On September 5, 2003, the defendant, through counsel, filed a motion for leave to file a motion to suppress out of time. (See filing 8.) This motion was granted on September 10, 2003. (See filing 9.) On September 24, 2003, defense counsel filed a motion to extend the time within which he might file the motion to suppress. (See filing 10.) This motion was granted on October 2, 2003, and the defendant was given until October 14, 2003, to file his motion to suppress. (See filing 11.)
On October 5, 2003, before the defendant filed a motion to suppress, defense counsel filed a motion entitled "Motion to Determine Competency." (See filing 12.) Counsel sought "an Order pursuant to 18 U.S.C. § 4241(a) for a hearing to determine [whether the defendant is competent to stand trial]," an examination "[p]ursuant to 18 U.S.C. § 1841(b)," [sic] and a report to be filed with the court "pursuant to 18 U.S.C. § 4247(b) and (c)." (Filing 12.) In support of this motion, counsel stated,
Counsel for the defendant represents to the Court that his conversations with the defendant have resulted in his concern that the defendant may not be mentally competent to understand the nature and consequences of the proceedings against him or to assist properly in his own defense.
(Filing 12.) This motion was granted in an order dated October 6, 2003. (See filing 13.) The order states, "Further proceedings in this matter are hereby continued until further order of the court, pending resolution of the matter of defendant's competency." (Id.) The defendant himself was not made aware of the motion to determine competency, and he disagreed that a competency evaluation was necessary. (See Audio Tape of Proceedings, filing 41 (hereinafter Tr.).)
On October 23, 2003, the defendant arrived at the Federal Detention Center in Seattle, Washington, for his competency evaluation. (See filing 15.) The defendant was evaluated from October 23, 2003, to December 16, 2003. (See id. at 2.) On December 16, the Center issued a report concluding that "there is no evidence to indicate Mr. DeGarmo suffers from a mental disease or defect that would substantially impair his present ability to understand the nature and consequences of the court proceedings brought against him, or impair his ability to assist counsel in his defense." (Filing 15 at 11.) The magistrate judge has stated that he received the competency report on December 18, 2003, and that the report was filed on December 19, 2003. (See Report, Recommendation and Order, filing 42, at 3.)
On December 26, 2003, defense counsel again sought leave to file a motion to suppress. (See filing 16.) This motion was granted, and the suppression motion filed contemporaneously with the request for leave was scheduled for hearing on January 29, 2004. (See filing 19.) A competency hearing was scheduled for that same date. (See id.)
On January 1, 2004, defense counsel filed a motion seeking a review of the conditions of the defendant's release, and, ultimately, the defendant's release "upon conditions." (Filing 20.) Meanwhile, in a letter to the magistrate judge dated January 1, 2004, the defendant asked to "fire" his attorney. (See filing 24.) According to the Report and Recommendation at page 5, the magistrate judge received the defendant's letter on January 5, 2004; deemed it a motion for new counsel; filed it on January 24, 2004; and scheduled a hearing on this motion for January 29, 2004. (See filing 42 at 5; see also filings 24, 25.)
On January 28, 2004, the defendant filed a pro se motion to dismiss the indictment "pursuant to 18 U.S.C. § 3161(c), 3162(a)(2), 3162(b), and the Fifth and Sixth Amendments to the United States Constitution, and per the authority of Crim.R. 48(b)(3)." (Filing 31 at 3.) This motion does not appear on the docket sheet, although it bears the Clerk's file stamp with a date of January 28, 2004, and a time of 9:13 am. (See id.)
On January 29, 2004, a hearing was held before the magistrate judge. (See filing 27.) It was determined that new counsel would be appointed to represent the defendant. (See id.;see also filing 26.) The hearing was continued insofar as the defendant's motion to suppress and the issue of competency were concerned. (See filing 25.)
On February 2, 2004, the magistrate judge entered an order tolling "Speedy Trial Act time . . . from this date for a period of 30 days." (Filing 28.)
On February 20, 2004, the defendant's new defense counsel entered his appearance. (See filing 29.) On February 26, 2004, defense counsel filed a set of motions, including: (1) a motion for a prompt competency determination, (filing 30); (2) a motion to dismiss the indictment on speedy trial grounds, which incorporated the defendant's pro se motion of January 28, 2004, (filing 31); a motion for a review of the defendant's detention, (filing 33); and a motion to withdraw the defendant's motion to suppress, (filing 35).
Only the first page of the January 28, 2004, motion is attached to the motion to dismiss filed by counsel. (See filing 31.) Although the first page of the January 28 document cites the Fifth and Sixth Amendments in support of the dismissal of the indictment, the defendant's motion, supporting brief, and objections to the magistrate judge's report and recommendation make no mention of these amendments. I therefore consider any arguments based upon the Fifth and Sixth Amendments to be waived.
In a memorandum and order dated February 27, 2004, the magistrate judge granted the defendant's motion for a competency hearing and scheduled that hearing for March 12, 2004. (See filing 36.) The magistrate judge also granted the defendant's motion to withdraw the motion to suppress. (See id.) However, the magistrate judge denied the defendant's motion for review of detention and the motion for release filed by previous counsel on January 1, 2004. (See id.) On March 8, 2004, the defendant objected to these denials. (See filing 37.) In a memorandum and order dated March 10, 2004, I determined that the motion for review of detention and the motion for release must be remanded to the magistrate judge for further proceedings. (See filing 40.)
It is not clear that the motion for release, (filing 20), and the motion for review of detention, (filing 33), are truly two "distinct" motions-on the contrary, both rely upon 18 U.S.C. § 3164 and similar supporting arguments. (Compare filings 20 and 21 with filings 33 and 34.) I find that these two motions are substantively identical, and that a ruling upon one necessarily resolves the other.
On March 12, 2004, the competency hearing was held as scheduled, and the defendant was found competent to stand trial. (See Tr., filing 41.) At that hearing, it was agreed that in lieu of holding another hearing concerning the defendant's motion for review of detention and motion to dismiss, facts proffered by defense counsel would be considered as part of the record. (See id.) These facts include defense counsel's statements that the defendant did not agree to previous counsel's filing of the motion to suppress and motion to determine competency and that the defendant was held at the Federal Detention Center for two weeks after his competency evaluation was completed. (See id.)
On March 16, 2004, the magistrate judge issued a report and recommendation wherein he concluded that the defendant's motion to dismiss, (filing 31), should be denied. (See filing 42.) In addition, upon reconsideration the magistrate judge denied the defendant's motion for release. (See id.) On the next day, March 17, 2004, a superceding indictment was filed. (See filing 43.)
The defendant filed an objection to the magistrate judge's report and recommendation on March 26, 2004. (See filing 45.) It appears to me that he did not object to the magistrate judge's ruling on his motion to for release. (See id.) In response to the defendant's objection, the magistrate judge issued an order amending his report. (See filing 46.) This amendment concerned a factual matter, but did not alter the magistrate judge's ultimate recommendation. (See id.)
He would not have been entitled to a de novo review of that ruling in any event. Compare 28 U.S.C. § 363(b)(1)(A) (providing for reconsideration of a magistrate judge's ruling on a pretrial motion not designated in that subpart if it is shown that the magistrate judge's order is clearly erroneous or contrary to law)with id. § 363(b)(1)(B)-(C) (providing for de novo review of motions designated in subpart (A)).
Although it is not directly relevant to the instant motion, I note that on April 11, 2004, the defendant filed a motion to suppress and request for an evidentiary hearing. (See filing 48.) The magistrate judge has scheduled a hearing on this motion for June 10, 2004. (See filing 50.)
II. STANDARD OF REVIEW
Under the Speedy Trial Act, a federal criminal defendant must be brought to trial within seventy days from the filing "(and making public)" of the indictment or from the date the defendant appears before a judicial officer of the court in which the charge is pending, whichever is later. 18 U.S.C. § 3161(c)(1). After the statutory "clock" begins to run, certain delays are excluded from the computation of time within which the defendant must be brought to trial. See 18 U.S.C. § 3161(h). Among the delays that are excluded by the Speedy Trial Act are delays resulting from pretrial motions, see 18 U.S.C. § 3161(h)(1)(F), (J); delays "resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant," id. at 3161(h)(1)(A); and delays "resulting from transportation of any defendant . . . to and from places of examination . . . except that any time consumed in excess of ten days from the date . . . [of] an order directing such transportation, and the defendant's arrival at the destination shall be presumed to be unreasonable," id. at 3161(h)(1)(H). If a period of delay results from a pretrial motion, the time between the date of the filing of the motion and the "conclusion of the hearing on, or other prompt disposition of, such motion" is excluded from the speedy trial time calculation. 18 U.S.C. § 3161(h)(1)(F). In addition, the "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court" is excluded. 18 U.S.C. § 3161(h)(1)(J).
If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant. The defendant shall have the burden of proof of supporting such motion. . . .18 U.S.C. § 3162(a)(2).
III. ANALYSIS
The magistrate judge's report states,
If the defendant's claims lack merit, fifty-one non-excludable days have elapsed since the defendant first appeared before me on this indictment: thirty-six days between the July 30, 2003 initial appearance and arraignment (filings 3-6) and the September 5, 2003 filing of the defendant's motion for leave to file a motion to suppress out of time; thirteen days between the September 10, 2003 order granting that motion (filing 9) until an additional extension was requested by the defendant on September 24, 2003 (filing 10); and two days between when the second motion for extension was granted on October 2, 2003 (filing 11) until the motion to determine defendant's competency was filed on October 5, 2003. Filing 12.
The Federal Detention Center report was issued on December 16, 2004 and was received by the court two days later, on December 18, 2003. Under the terms of the [Speedy Trial] Act, the court is allowed at least thirty days to determine the defendant's competence. 18 U.S.C. § 3161(h)(1)(A) (J); [United States v.] Jones, 23 F.3d [1307, 1309-10 (8th Cir. 1994)]. Within this thirty-day period, the defendant filed his motion for release (filing 20) and sent a letter to the court requesting the appointment of new counsel. Filing 24. These motions, along with several other motions filed by the defendant since January 1, 2004, have resulted in continuously tolling the computation of time under the Speedy Trial Act. See United States v. Fogarty, 692 F.2d 542, 545 (8th Cir. 1982).
In view of the authorities cited by the magistrate judge, the words "at least" must be deleted from his analysis, or perhaps replaced with the phrase, "at most."
(Report, Recommendation and Order, filing 42, at 7-8, 14-15 (footnotes omitted).) The defendant has not objected to the magistrate judge's finding that, assuming the defendant's arguments are rejected, fifty-one "speedy trial days" have elapsed since the defendant's initial appearance. I have reviewed the magistrate judge's finding for clear error, see Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996); Fed.R.Civ.P. 72 advisory committee notes (1983 edition, Subdivision (b)), and I find none. The magistrate judge's calculation of lapsed speedy trial days from the date of the initial appearance through the filing of the motion to determine competency on October 5, 2003, is correct. In addition, the magistrate judge correctly determined that, although all of the days from the October 5, 2003, motion through the March 12, 2004, determination that the defendant is competent to stand trial cannot be excluded from the speedy trial calculation pursuant to 18 U.S.C. § 3161(h)(1)(A), the court's receipt of the report indicating that there was no evidence to support a finding of incompetence on December 18, 2003, triggered the beginning of a thirty-day period of excludable time within which the court could take the report under advisement, see United States v. Jones, 23 F.3d 1307, 1309-10 (8th Cir. 1994) (2-1 decision) (opinion of Morris Sheppard Arnold, J., with Wellford, J., concurring). In other words, the days from October 5, 2003, through December 18, 2003, (when the court received the report indicating that the defendant was competent to stand trial), plus an additional thirty days, (i.e., through January 17, 2004), are excluded from the speedy trial calculation pursuant to § 3161(h)(1)(A) and Jones, but the days from January 18, 2004, to March 12, 2004, cannot be excluded under § 3161(h)(1)(A). However, as the magistrate judge correctly observed, during the thirty-day interval running through January 17, 2004, the defendant filed other motions that caused a continuous tolling of the speedy trial clock until the hearing of March 12, 2004. (See, e.g., filing 17 (motion to suppress filed on December 26, 2003, which tolled the clock through its withdrawal on February 27, 2004); filing 20 (motion for release filed on January 1, 2004, which tolled the clock through, at least, the magistrate judge's order of February 27, 2004); filing 24 (motion for new counsel deemed filed on January 21, 2004); filings 30, 31, 33 (motions filed on February 26, 2004).) The instant motion to dismiss, which was filed on February 26, 2004, resulted in an exclusion of speedy trial days through the hearing of March 12, 2004, during which the defendant's proffer concerning his motion to dismiss was accepted. See 18 U.S.C. § 3161(h)(1)(F). The magistrate judge promptly issued his report and recommendation concerning the defendant's motion to dismiss on March 16, 2004, which was well within the thirty days allotted him under 18 U.S.C. § 3161(h)(1)(J). In view of these facts, the magistrate judge correctly determined that as of the time of the issuance of his report and recommendation, fifty-one of the seventy days allotted under the Speedy Trial Act had elapsed, assuming that the defendant's arguments lack merit. The magistrate judge ultimately found that one of the defendant's arguments was meritorious and added two days to the speedy trial calculation. (See filing 42 at 14.) The defendant objects to the magistrate judge's analysis of his arguments, and it is to these objections that I now direct my review.
The fact that the hearing on the motion to suppress was continued from January 29, 2001, until such time as the defendant's motion for new counsel had been resolved and newly-appointed counsel was prepared to take up the motion, (see filings 19, 25, 28), is irrelevant. The days between the filing of the motion and the hearing thereon-or in this case, the withdrawal of the motion prior to the hearing-are excluded from the speedy trial calculation pursuant to § 36161(h)(1)(F).See 18 U.S.C. § 3161(h)(1)(F); Henderson v. United States, 476 U.S. 321, 330 (1986) ("We . . . hold that Congress intended subsection (F) to exclude from the Speedy Trial Act's 70-day limitation all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is `reasonably necessary.'); United States v. Blankenship, 67 F.3d 673, 676 (8th Cir. 1995) (citing § 3161(h)(1)(F) and Henderson).
The precise date of the resolution of this motion is somewhat difficult to determine. (See supra note 3 and accompanying text.)
First, the defendant argues that the filing of the motion to suppress on December 26, 2003, should not toll the speedy trial clock because the defendant did not consent to the filing of this motion. (See filing 45 at 1-2.) He presents no authority for the proposition that his lack of consent to the filing of this motion overrides 18 U.S.C. § 3161(h)(1)(F). On the contrary, the only case on point that I am aware of counsels that the defendant's approval of a motion is irrelevant to the triggering of the § 3161(h)(1)(F) exclusion. See United States v. Daychild, 357 F.3d 1082, 1094-95 (9th Cir. 2004). Moreover, as the magistrate judge correctly observed, the defendant's argument is moot. Even if the speedy trial clock were not tolled by the filing of the motion to suppress on December 26, other filings tolled the clock simultaneously. (See filing 42 at 8 n. 5.)
Next, the defendant argues that the time associated with his competency evaluation should not be excluded from the speedy trial calculation. His chief objection is that the motion to determine competency was frivolous and not supported by reasonable cause. (See filing 45 at 2-3, 4-6.) More specifically, he claims that the motion was insufficient because it "contains no description of irrational behavior" and "does not express an opinion of incompetency." (Filing 45 at 2.) He also asserts that the magistrate judge should have held a hearing on the motion before granting it, and that it was error to grant the motion "without any corroboration whatsoever." (Id.) I disagree.
The defendant also repeats his unsupported argument that since his former counsel moved for a competency evaluation without his consent, the time consumed by the competency evaluation should not be excluded from the speedy trial calculation. I am not persuaded by this assertion, and, although it did not have occasion to rule upon it, I note that the Eighth Circuit was unmoved by a similar argument. See United States v. Maynie, 257 F.3d 908, 914 (8th Cir. 2001).See also United States v. Daychild, 357 F.3d 1082, 1094-95 (9th Cir. 2004) (rejecting argument that motions filed without defendant's knowledge or approval cannot toll speedy trial time under § 3161(h)(1)(F)).
I turn first to the defendant's suggestion that it was error for the magistrate judge to grant the motion for a competency hearing without first holding a hearing. "Congress authorizes a competency hearing when `there is reasonable cause to believe that the defendant may presently be 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.'" United States v. Cook, 356 F.3d 913, 918 (8th Cir. 2004) (quoting 18 U.S.C. § 4241(a)). Although it seems to me that it may, on occasion, be helpful to hold a hearing to determine whether there is reasonable cause to hold a competency hearing, I find no authority for the proposition that a reasonable cause hearing is required before a court may schedule a competency hearing pursuant to 18 U.S.C. § 4241(a), or psychiatric or psychological examination pursuant to § 4241(b). Such a requirement certainly does not inhere in § 4241(a) itself. That subsection states,
(a) Motion to determine competency of defendant. — At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be 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.
Also, I note that when discussing the precursor to § 4241 and its requirements for ordering psychological examinations, the Eighth Circuit stated,
See United States v. Nichols, 661 F. Supp. 507, 508-13 (W.D. Mich 1987) (discussing the changes wrought by the Insanity Defense Reform Act of 1983).
Under the "current" statutory structure, psychological examinations are not mandatory prior to competency hearings-but they are routinely ordered. See 18 U.S.C. § 4241; United States v. Nichols, 661 F. Supp. 507, 510-11 (W.D. Mich 1987).
A district court may make an initial inquiry to determine if the [§] 4244 motion is made in good faith, adequately shows reasonable cause and is not frivolous, but a preliminary hearing is not to become a preliminary determination of competency. Thus, when a court makes an inquiry prior to ruling a [§] 4244 motion, it must take great care to eschew the ultimate issue of competency.United States v. Nichelson, 550 F.2d 502, 504 (8th Cir. 1977) (citations omitted) (emphasis added). In other words, while a hearing to determine reasonable cause to determine competency is permissible, "great care" must be exercised to insure that the scope of any such hearing is appropriately limited. Id.; see also Rose v. United States, 513 F.2d 1251, 1255-56 1256 n. 4 (8th Cir. 1975). In Nichelson, the district court did conduct a brief hearing before denying the defendant's motion for a psychiatric examination. See Nichelson, 550 F.2d at 503. However, the Eighth Circuit strongly suggested that the defendant's motion, standing alone, was sufficient to establish reasonable cause:
The motion filed by defendant's counsel here comported with [§] 4244. The movant stated that he had "reasonable cause to believe (his) client may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or to properly assist in his own defense." As grounds for this belief, counsel cited his own personal impression, gained during the course of preparation for trial, that Nichelson was unable "intelligently to discuss the facts concerning the case." The motion also made reference to a history of mental disturbance in defendant's family and to defendant's having sustained a very severe blow to the head approximately six years previously. Nothing in this motion suggested frivolity, lack of reasonable cause or a lack of good faith on the movant's part. Thus, the motion was sufficient under [§] 4244 and the trial court erred in refusing to order a psychiatric examination of defendant thereunder.Id. at 504. In view of the foregoing, it seems to me that all that is required under § 4241(a) before a court must order a hearing to determine competency is this: it must come to the court's attention that there is "reasonable cause to believe 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." See United States v. Nichols, 661 F. Supp. 507, 511 (W.D. Mich 1987) (quoting 18 U.S.C. § 4241(a)). The court's attention may be gained through the filing of a motion by the defendant or the government, or the court may order a competency hearing sua sponte. See 18 U.S.C. § 4241(a). If the defendant's motion is sufficient to establish reasonable cause, no hearing is required before a competency hearing is ordered. Cf. United States v. Nichelson, 550 F.2d 502, 504 (8th Cir. 1977). Therefore, I reject the defendant's suggestion that "reasonable cause hearings" are required as a matter of course before a motion to determine competency is granted.
However, the defendant also argues that even if the magistrate judge was not required to hold a "reasonable cause" hearing, his decision not to hold such a hearing was erroneous in this case because the motion for a competency hearing was insufficient to establish reasonable cause. The defendant's argument is not without force. The motion recites nothing more than counsel's "concern" that, based upon "his conversations with the defendant," "the defendant may not be mentally competent to understand the nature and consequences of the proceedings against him or to assist properly in his own defense." (Filing 12.) Clearly, the motion lacks the more detailed "grounds" that were included in the motion at issue in Nichelson. (Compare filing 12 with United States v. Nichelson, 550 F.2d 502, 504 (8th Cir. 1977);see also Rose v. United States, 513 F.2d 1251, 1253-54 (8th Cir. 1975) (indicating that the motion for a competency examination averred that the defendant "had a history of hospitalization and treatment for mental problems and that at least once previously he had been found to be insane or otherwise mentally incompetent");Kenner v. United States, 286 F.2d 208, 210 (8th Cir. 1960) (indicating that the motion was accompanied by evidence that the defendant "suffered a serious brain injury, had a history of `black-out spells[,]' . . . and his court-appointed counsel claimed he was unable to assist in his defense"); Krupnick v. United States, 264 F.2d 213, (8th Cir. 1959) (indicating that counsel supported request for psychiatric examination with "particulars of [the defendant's] background and history").) In addition, it seems to me that it should be possible to obtain reasonably specific details from counsel regarding the foundation for his belief that his client is not competent to stand trial without requiring the disclosure of privileged communications, as was done in Nichelson and the cases cited therein. See Nichelson, 550 F.2d at 504. (See also Report, Recommendation and Order, filing 42, at 10 n. 6.)
Although I agree that it was within the magistrate judge's discretion to conduct a preliminary hearing in this case to determine whether the motion for a competency hearing was supported by reasonable cause, I find that the magistrate judge's reliance upon defense counsel's representation that "the defendant may not be mentally competent to understand the nature and consequences of the proceedings against him or to assist properly in his own defense" was not erroneous, and counsel's representation was sufficient to support the granting of the § 4241(a) motion for a competency hearing and the ordering of a § 4241(b) examination. I stress that the question of whether thedenial of the defendant's motion would have been erroneous is not before me, and I note that there is little guidance to be found concerning allegedly erroneous orders granting defendants' § 4241(a) motions for competency hearings. However, the Supreme Court has stated, "[T]he defendant's inability to assist counsel can, in and of itself, constitute probative evidence of incompetence, and defense counsel will often have the best-informed view of the defendant's ability to participate in his defense." Medina v. California, 505 U.S. 437, 450 (1992). Various circuit courts of appeal, too, have recognized that counsel's representations as to their clients' competence are entitled to great weight. See, e.g., United States v. Jones, 336 F.3d 245, 259 (3rd Cir. 2003) (citing United States v. Renfroe, 825 F.2d 763, 767 (3rd Cir. 1987)); United States v. Teague, 956 F.2d 1427, 1432 (7th Cir. 1992); United States v. Downs, 123 F.3d 637, 641 (7th Cir. 1997) ("Furthermore, because `incompetency involves an inability to assist in the preparation of a defense or rationally to comprehend the nature of the proceedings,' the failure of either of Down's [sic] attorneys to suggest his incompetence `provides substantial evidence of [Downs'] competence."); United States v. Morgano, 39 F.3d 1358, 1374 (7th Cir. 1994) ("Who but the defendant's attorney knows best if the accused is able to assist in his own defense?"); United States v. Metcalfe, 698 F.2d 877 (7th Cir. 1983) ("Additionally, the fact that the defendant's attorney believes his client is competent and able to assist counsel in defense is significant evidence that he is competent."). In view of counsel's representation that the defendant may not be able to understand the nature and consequences of the proceeding against him or assist in his defense, and in view of the lack of indication that the motion was based upon frivolity, lack of reasonable cause, or lack of good faith on the movant's part,see Nichelson, 550 F.2d 502, 504 (8th Cir. 1977), I reject the defendant's argument that the granting of the motion for a competency hearing was erroneous and cannot support an exclusion of time pursuant to 18 U.S.C. § 3161(h)(1)(A).
In an unpublished opinion, the Fourth Circuit considered a defendant's argument that a motion for a hearing to determine competencyfiled by the government was not supported by reasonable cause.See United States v. VanDyke, 64 Fed.Appx. 877, 878 (4th Cir. 2003). The court noted that "Section 4241 sets a low threshold," and "[t]he district court need only find that there is `reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect.'" Id. (quoting 18 U.S.C. § 4241(a) (emphasis added)).
The defendant also argues that the psychological evaluation performed of him, which indicates that he is competent to be tried, establishes that the magistrate judge should not have granted the motion for a competency hearing or ordered the examination. (See filing 45 at 3.) I disagree. It is axiomatic that an ultimate finding that the defendant is competent to proceed to trial does not establish that there was no reasonable cause to order a hearing or examination under 18 U.S.C. § 4241. In addition, I note that although the evaluation report indicates that the defendant did not suffer from a mental disease or defect that substantially impaired his ability to understand the nature and consequences of the proceedings against him or to assist counsel in his defense, the report does not indicate that the defendant was completely free of diagnosable impairments. (See generally filing 15.)
Next, the defendant argues that the length of the competency examination was excessive and should have been limited to thirty days, and any additional delay should not be excluded from the speedy trial calculation. I agree that the duration of the competency examination exceeded the limits set forth in 18 U.S.C. § 4247(b). This subsection states, in part, as follows:
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, but not to exceed thirty days, . . . 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. The director of the facility may apply for a reasonable extension, but not to exceed fifteen days under section 4241, . . . upon a showing of good cause that the additional time is necessary to observe and evaluate the defendant.
However, as the magistrate judge observed, the fact that the defendant's evaluation exceeded the thirty days allotted under § 4247(b) does not mean that any days beyond thirty cannot be excluded from the speedy trial calculation pursuant to § 3161(h)(1)(A). On its face, § 3161(h)(1)(A) excludes "all of the time consumed . . . by a competency evaluation." Henderson v. United States, 476 U.S. 321, 327 (1986), and makes no exception for days that were spent "unreasonably" or in excess of the time allotted in § 4247(b). Circuit courts that have considered the defendant's argument have rejected it, concluding that the Speedy Trial act does not provide a remedy for violations of the time limits of § 4247(b). See United States v. Taylor, 353 F.3d 868, 869 (10th Cir. 2003) (citing cases). (See also Report, Recommendation and Order, filing 42, at 12-13.) The reasoning of these courts is persuasive, and the defendant's objection to the magistrate judge's reliance upon them is overruled.
Finally, the defendant objects to the magistrate judge's determination that only two days must be added to the speedy trial calculation due to the delay in transporting the defendant to the site of his competency evaluation. It is true that, pursuant to 18 U.S.C. § 3161(h)(1)(H), "any time consumed in excess of ten days from the date [of] . . . an order directing such transportation, and the defendant's arrival at the destination shall be presumed to be unreasonable." See also Henderson v. United States, 476 U.S. 321, 327 n. 7 (1986). It is also true that the defendant's transportation for his evaluation consumed seventeen days. Although the Eighth Circuit appears not to have addressed this question, the magistrate judge observed that other circuits have excluded Saturdays, Sundays, and legal holidays from the calculation of transport days under § 3161(h)(1)(H). (See Report, Recommendation and Order, filing 42, at 14 (citing United States v. Bond, 956 F.2d 628 (6th Cir. 1992); United States v. Garrett, 45 F.3d 1135, 1140 n.[6] (7th Cir. 1995; United States v. Bruckman, 874 F.2d 57, 62 (1st Cir. 1989)); see also Fed.R.Crim.P. 45(a) (indicating that Saturdays, Sundays, and legal holidays are excluded from time calculations when the relevant period is less than eleven days). Following these authorities, the magistrate judge noted that the defendant was ordered to be transported for an evaluation on October 6, 2003; that the ten days running from October 7, 2003, are extended by Saturdays and Sundays (two of each) and the Columbus Day holiday; and that the defendant's arrival at his destination on October 23, 2003, exceeded the "extended" ten-day allotment by two days. (See id. at 13-14.) He then added these two days to the speedy trial calculation. (See id. at 14.) I have reviewed the issue de novo, and I find that the magistrate judge's analysis is correct. Parenthetically, I note that the defendant cites no authority in support of an alternate calculation. The defendant's objection is therefore overruled.
IT IS ORDERED that:
1. The defendant's objections to the magistrate judge's report and recommendation, filing 45, are overruled;
2. The magistrate judge's report and recommendation, filing 42, is adopted; and
3. The defendant's motion to dismiss, filing 31, is denied.