imprisonment. At the same hearing, the court found
that USMC-Springfield had not made a dangerousness evaluation under
18 U.S.C. § 4246 and noted that but-for the issue of whether the
defendant should be confined pursuant to § 4246, the defendant would
be entitled to release because, with good time credits, he had served his
time. Thus, the district court stayed the entry of the defendant's
sentence and ordered that the defendant be returned to the medical
facility for a determination on whether the defendant's release would
constitute a danger to the community under 18 U.S.C. § 4246.
The Ninth Circuit held that the district court lacked the authority to
initiate a hearing to determine whether the defendant should continue his
psychiatric treatment, noting inter alia that § 4246 "indicates that
the director of the facility is to make the initial determination
regarding the dangerousness issue." However, more importantly, the court
also noted that Weber had been determined to be competent by the court,
and therefore § 4246 was not applicable because § 4246 only
applies where the defendant is determined to be incompetent.
Here, all agree that defendant in his current unmedicated state is
incompetent, and the court has so held. Thus, § 4246 is otherwise
applicable. Exhaustive research has failed to reveal case law holding that
where a federal pretrial detainee is determined to be incompetent under
§ 4241, a dangerousness certification under § 4246 is precluded
simply because the defendant happens not to be in the physical custody of
the treatment facility where he was originally committed. Moreover, the
Ninth Circuit case of United States v. Ohnick, 803 F.2d 1485 (9th Cir.
1989) suggests otherwise, although admittedly the issue here was not
raised or decided on appeal. In Ohnick, the defendant was temporarily
committed to USMC-Springfield for treatment and evaluation. Then, as
here, the defendant appeared before the California district court for a
final determination on his competency to stand trial. The district court
concluded that the defendant was not competent and would not be rendered
competent in the foreseeable future. The Ninth Circuit noted that "[a]s a
result, (the defendant] was then subject to the provisions of
18 U.S.C. § 4246." Given that by enacting §§ 4241-4248 Congress
intended to provide protection for society as well as the rights of the
defendant, see Barnes, 175 F. Supp. at 65, the court concludes that there
is no legal basis here for precluding USMC-Springfield from now
certifying defendant as dangerous pursuant to § 4246, should it
believe that such a certification is warranted.
Finally, the court notes that, after the court orally announced its
ruling, defense counsel argued to the court that the court's ruling
directly conflicted with the First Circuit's holding in United States v.
Ecker, 78 F.3d 726, 718 n. 1 (1st Cir. 1996). Not only is Ecker
out-of-circuit authority, but defendant's reliance on Ecker is puzzling.
In Ecker, the defendant was determined to be mentally incompetent and was
certified to be dangerous. Thus, he was committed to the Attorney General
for hospitalization under 18 U.S.C. § 4246. The defendant sought to
dismiss the indictment, arguing that § 4246 requires dismissal of
pending charges upon commitment. He also argued that the pendency of the
indictment interfered with his purported right to be placed in a state
institution, thereby depriving him of the right to due process. The First
Circuit rejected these arguments and affirmed the district court's denial
of the defendant's motion to dismiss. The court has again reviewed
footnote 1, relied upon by defense counsel, and concludes that footnote I
does nothing more than set forth the basic statutory provisions already
discussed in the court's order. Footnote I
does not address the
application of those statutory provisions to any factual scenario, let
alone the factual scenario at issue here. Moreover, the court notes that
footnote I states that "[i]f the defendant remains incompetent at the end
of those time periods, the defendant is subject to commitment for
dangerousness under 18 U.S.C. § 4246." Ecker, 78 F.3d at 728 n. 1.
This court has concluded that defendant Trillo-Cerda remains incompetent
and therefore has concluded that defendant is subject to commitment for
dangerousness under § 4246. The court's ruling is entirely consistent
with footnote 1.
The parties and the court agree that defendant is incompetent to stand
trial in his current unmedicated state and that defendant will not be
competent to stand trial any time in the near future in light of the
court's ruling that defendant will no longer be forcibly medicated.
Accordingly, USMC-Springfield shall advise the court within 10 days
whether it has enough information, based on the information gathered, to
make a determination of whether defendant is dangerous under § 4246.
If USMC-Springfield does not have sufficient evidence in its possession
to make this determination, it is to advise the court whether it needs
information about defendant since his return to San Diego. If the court
is so advised, the court will order that MCC forward any recent
information it has on defendant. If USMC-Spnngfleld advises the court
that it must observe defendant in person to determine whether he is
presently dangerous, the court will order that defendant be returned to
IT IS SO ORDERED.
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