19‐262‐cr
United States v. Brennan

                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT
                          ____________________

                               August Term, 2018

    (Argued: April 16, 2019                            Decided: July 2, 2019)

                               Docket No. 19‐262

                              ____________________

UNITED STATES OF AMERICA,

                               Appellee,

                   v.

DONALD BRENNAN,

                               Defendant‐Appellant.

                              ____________________

Before: KEARSE, WINTER, and POOLER, Circuit Judges.

      Donald Brennan brings an interlocutory appeal of the January 25, 2019,

order of the United States District Court for the Western District of New York

(Elizabeth A. Wolford, J.) committing him to the custody of the Attorney General

for psychiatric treatment and evaluation pursuant to 18 U.S.C. § 4241(d). Brennan
argues that the district court’s commitment order violates his due process rights

because a forensic psychologist, who conducted a court‐ordered psychiatric

evaluation of Brennan’s present competency to stand trial, stated that Brennan’s

disorder was degenerative and would not significantly improve with treatment.

Brennan’s argument fails, however, because, pursuant to 18 U.S.C. §§ 4241 et seq.,

commitment to assess future competency is mandatory, and only the district

court, and not a forensic psychologist, can determine whether Brennan will

regain competency in the foreseeable future. In the absence of such a decision

from the district court, Brennan’s commitment to the custody of the Attorney

General for treatment and further evaluation is reasonably related to

determining whether Brennan will regain competency in the foreseeable future,

and the district court constitutionally applied Section 4241(d)’s commitment

procedures to Brennan. We AFFIRM the order of the district court committing

Brennan to the custody of the Attorney General under Section 4241(d).

      Affirmed.

                             ____________________

                         MARTIN J. VOGELBAUM, Federal Public Defender’s
                         Office, Western District of New York, Buffalo, NY, for
                         Defendant‐Appellant.
                                        2
                         MONICA J. RICHARDS, Assistant United States
                         Attorney, for James P. Kennedy, Jr., United States
                         Attorney for the Western District of New York, Buffalo,
                         NY, for Appellee.



POOLER, Circuit Judge:

      Donald Brennan brings an interlocutory appeal of the January 25, 2019,

order of the United States District Court for the Western District of New York

(Elizabeth A. Wolford, J.) committing him to the custody of the Attorney General

for psychiatric treatment and evaluation pursuant to 18 U.S.C. § 4241(d). Brennan

argues that the district court’s commitment order violates his due process rights

because a forensic psychologist, who conducted a court‐ordered psychiatric

evaluation of Brennan’s present competency to stand trial, stated that Brennan’s

disorder was degenerative and would not significantly improve with treatment.

Brennan’s argument fails, however, because, pursuant to 18 U.S.C. §§ 4241 et seq.,

commitment to assess future competency is mandatory, and only the district

court, and not a forensic psychologist, can determine whether Brennan will

regain competency in the foreseeable future. In the absence of such a decision

from the district court, Brennan’s commitment to the custody of the Attorney


                                        3
General for treatment and further evaluation is reasonably related to

determining whether Brennan will regain competency in the foreseeable future,

and the district court constitutionally applied Section 4241(d)’s commitment

procedures to Brennan. We AFFIRM the order of the district court committing

Brennan to the custody of the Attorney General under Section 4241(d).

                                 BACKGROUND

      Donald Brennan is charged with failing to register as a sex offender, as

required by the Sex Offender Registration and Notification Act, when he moved

from Lake City, Florida, to Buffalo, New York. App’x at 9‐13. Brennan is required

to register as a sex offender for life following his 2014 conviction for lewd

molestation of an elderly or disabled person in the third degree. The unfortunate

facts of this case are related to Brennan’s long and complicated history of severe

alcohol abuse.

      The current proceeding arises from Brennan’s encounter with police on

February 15, 2018, when authorities followed up on a report that a man was

disoriented and covered in excrement in Cheektowaga, New York, and

discovered Brennan, who was homeless, on the sidewalk outside a strip mall.

About a week after encountering Brennan on the streets of Cheektowaga, the
                                          4
police inquired with the New York State Board of Examiners of Sex Offenders

regarding whether Brennan was required to register as a sex offender, and the

Board confirmed that he was required to do so. The authorities then determined

that Brennan was not properly registered in New York and brought a failure‐to‐

register charge against Brennan.

      Brennan was appointed a federal defender, but his counsel reported to the

court that Brennan’s mental limitations prohibited him from assisting counsel in

preparing his case. Counsel informed the court that he had not been able to

meaningfully discuss the case with Brennan because Brennan was suffering from

“some pretty significant memory issues and issues in general regarding his

circumstances right now.” App’x at 37. Brennan’s testimony before the court

confirmed counsel’s concerns, as Brennan told the court that he did not know

what was going on and that at times he did not even remember to whom he was

talking. Defense counsel moved for a competency hearing and filed a notice of

intent to assert an insanity defense, at which point the government moved for an

evaluation of Brennan’s sanity at the time of the offense. The district court

ordered a competency evaluation and an evaluation of whether Brennan was

insane at the time of the offense.
                                         5
      In the fall of 2018, Dr. Samantha E. DiMisa, a forensic psychologist with

the Bureau of Prisons, evaluated Brennan’s competency to stand trial and his

criminal responsibility. Dr. DiMisa’s report documented Brennan’s long history

of alcoholism. Her interviews with Brennan revealed that he began drinking at

age 11 and around the time of his arrest at age 58 was consuming as many as 24

cans of beer in a single day. Brennan repeatedly required emergency medical

attention as a consequence of his alcoholism, and his attempts at rehabilitation

were unsuccessful.

      Dr. DiMisa conducted a series of psychological tests to measure Brennan’s

cognitive functioning. She concluded that Brennan exhibited marked difficulties

in cognitive function and memory and that he suffered from low intelligence.

Brennan had severe memory deficits that meant he was not aware of several

significant events in his life, including a lung cancer diagnosis and a related

operation, despite prompting. Brennan also denied any knowledge that he had

committed the underlying 2014 sex offense and was despondent when the

evaluator informed him of his actions.

      Dr. DiMisa concluded that “Mr. Brennan’s overall prognosis is poor,

particularly if he continues to drink alcohol in the future.” Sealed Documents at
                                         6
14 [hereinafter SD]. She noted, “Neurocognitive Disorders tend to be

degenerative in nature, [and] thus, it is highly unlikely Mr. Brennan will return

to his previous level of functioning.” SD at 14. Dr. DiMisa considered it “unlikely

medication would significantly improve his functioning.” SD at 14. With respect

to Brennan’s present competency, she opined that “Mr. Brennan does not

currently possess a factual and rational understanding of the proceedings against

him, does not have the capacity to assist legal counsel in his defense, and cannot

adequately make decisions regarding his strategy.” SD at 18. Finally, as to

Brennan’s criminal responsibility, Dr. DiMisa concluded that “Mr. Brennan’s

Mental Defect impaired his ability to appreciate the wrongfulness of his conduct

at the time of his alleged actions.” SD at 35.

      Following Dr. DiMisa’s evaluation, the magistrate judge, to whom the

district court referred pretrial matters, reviewed Dr. DiMisa’s report and held a

hearing on Brennan’s competency. The magistrate determined that Brennan was

presently not competent to stand trial and concluded that 18 U.S.C. § 4241(d)

mandated that he commit Brennan to the custody of the Attorney General in

order to determine Brennan’s future competency to stand trial. The magistrate

judge ordered Brennan committed to the custody of the Attorney General “for
                                          7
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

the defendant will attain the capacity to permit the proceedings to go forward.”

App’x at 100. Brennan appealed the magistrate’s order to the district court,

which affirmed the order, concluding that while “the evidence in this case does

suggest a relatively low probability that Defendant can be restored to

competency,” the court was nonetheless compelled under 18 U.S.C. § 4241(d) to

commit Brennan to the custody of the Attorney General. United States v. Brennan,

354 F. Supp. 3d 250, 260‐61 (W.D.N.Y. 2019). The district court did “not find it

appropriate to set a firm outer limit on the length of the commitment . . . before

the relevant medical personnel ha[d] even had the chance to examine

Defendant,” but, acknowledging Brennan’s due process concerns, “order[ed] that

the [Bureau of Prisons] provide a report regarding Defendant’s prognosis within

45 days of his hospitalization.” Id. at 262.

                                   DISCUSSION

      I.     Due Process in Commitment Proceedings

      Brennan challenges his commitment under 18 U.S.C. § 4241(d) on due

process grounds, and we therefore consider how the government’s interests must
                                           8
be balanced with Brennan’s interests in commitment proceedings. This Court has

previously noted that Section 4241(d) serves the government’s interest in

bringing an accused to trial, which is “fundamental to a scheme of ordered

liberty and prerequisite to social justice and peace.” United States v. Magassouba,

544 F.3d 387, 402‐03 (2d Cir. 2008) (internal quotation marks omitted); see also Sell

v. United States, 539 U.S. 166, 180 (2003). In order to vindicate this interest by

prosecuting competent accused persons, the government has a concomitant

interest in securing an accurate determination of criminal defendants’ mental

capacities. See Magassouba, 544 F.3d at 408 (discussing need for thorough

evaluation period to determine competency). These governmental interests must

be balanced with a defendant’s fundamental liberty interest in freedom from

restraint. See, e.g., Jones v. United States, 463 U.S. 354, 361 (1983) (“It is clear that

commitment for any purpose constitutes a significant deprivation of liberty that

requires due process protection.” (internal quotation marks omitted)). That

interest is compromised if a defendant is kept in custody to await trial when

there is not “a substantial probability that he will attain . . . capacity in the

foreseeable future.” Jackson v. Indiana, 406 U.S. 715, 738 (1972).



                                             9
      In Jackson v. Indiana, the Supreme Court articulated the proper balance of

the aforementioned interests when it considered an Indiana statute that

permitted the state to detain incompetent criminal defendants indefinitely. Id. at

731‐39. The Supreme Court noted that a court primarily orders commitment for

one of three purposes: limiting a defendant’s “dangerousness to self,” limiting a

defendant’s “dangerousness to others, and the need for care or treatment or

training” to aid the defendant in attaining competency. Id. at 737. Due process,

the Court held, “requires that the nature and duration of commitment bear some

reasonable relation to the purpose for which the individual is committed.” Id. at

738. Therefore, if the government has detained a defendant “solely on account of

his incapacity to proceed to trial,” the government cannot hold the defendant for

“more 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.” Id. When a defendant “is committed solely on account of his incapacity

to proceed to trial,” his “continued commitment must be justified by progress

toward th[e] goal” of restoring his competency to stand trial. Id. The Supreme

Court’s decision in Jackson therefore mandates that where, as here, an

incompetent criminal defendant is held in custody for the purpose of
                                          10
determining if he will regain competency in the foreseeable future, the

defendant’s commitment must at all times reasonably relate to evaluating his

ability to regain competency or to restoring him to competency through

treatment.

      II.    18 U.S.C. § 4241

      Congress enacted Section 4241, the provision under which the district

court committed Brennan to the Attorney General’s custody, in response to the

“due process concerns identified in Jackson v. Indiana.” Magassouba, 544 F.3d at

403. The statute requires the district court to make an initial determination of the

defendant’s present capacity to stand trial: “[i]f, after [a] hearing, the court finds

by a preponderance of the evidence that the defendant is presently suffering

from a mental disease or defect rendering him mentally incompetent . . . the

court shall commit the defendant to the custody of the Attorney General.” 18

U.S.C. § 4241(d). Notable here, the statute calls for the district court to determine

present competency and mandates commitment for further assessment if the

defendant is presently incompetent. Id. The Attorney General is then required to

hospitalize the defendant for treatment in a “suitable” facility “for such a

reasonable period of time, not to exceed four months, as is necessary to
                                          11
determine whether there is a substantial probability that in the foreseeable future

he will attain the capacity to permit the proceedings to go forward.” Id.

§ 4241(d)(1). As the Ninth Circuit and others have noted, “the overarching

purpose of commitment under § 4241(d) is to enable 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); see also,

e.g., United States v. Ferro, 321 F.3d 756, 762 (8th Cir. 2003).

      If, during or after the evaluation and treatment period, the director of the

treatment facility at which the defendant resides determines that the defendant

has attained competency, the director files a certificate with the court so stating,

and the court holds a competency hearing to determine whether the defendant,

by a preponderance of the evidence, is competent to stand trial. 18 U.S.C.

§ 4241(e). Section 4241(e), like Section 4241(d), requires the district court to

determine the defendant’s competency. Id. If “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 provisions of sections 4246 and

4248.” Id. § 4241(d). Under Section 4246, if the director of the treatment facility

determines that the defendant “would create a substantial risk of bodily injury to
                                           12
another person or serious damage to property of another,” the district court must

hold a hearing to determine whether the defendant is dangerous. Id. § 4246. If,

after the hearing, the district court finds by clear and convincing evidence that

the defendant is dangerous, the district court commits him to the custody of the

Attorney General. Id. § 4246(d). The Attorney General then must attempt to

release the defendant to the custody of the state in which he is domiciled for

commitment; if the state refuses custody, the Attorney General hospitalizes the

defendant in a suitable facility until either the state agrees to assume

responsibility for him or his mental condition improves such that he no longer

poses a danger or such that he can continue with a medical, psychiatric, or

psychological regimen that renders him not dangerous. Id. Section 4248 is similar

but applies when the director of the facility determines the defendant is “a

sexually dangerous person.” Id. § 4248.

      III.   The Constitutionality of Section 4241(d) As Applied to Brennan

      Brennan argues that, because commitment of an incompetent criminal

accused must reasonably relate to determining whether the defendant will regain

competency, Section 4241(d) cannot constitutionally apply to defendants who

suffer from conditions that medical professionals opine are highly unlikely to
                                          13
improve, as Brennan purportedly does. The government responds that Brennan’s

commitment under Section 4241(d) is intended to allow medical professionals to

evaluate the permanency of Brennan’s mental condition and is therefore

constitutional. For the reasons that follow, we conclude that, because the district

court determined that Brennan was presently incompetent, Brennan’s

commitment was constitutional and statutorily mandated. We further conclude

that the medical professional who evaluated Brennan did not definitively

conclude that Brennan is highly unlikely to improve and thus highly unlikely to

be able to stand trial, and his as‐applied challenge on those grounds is not ripe.

      We start from the premise that a defendant’s competency is a legal

question that is properly reserved for the courts. The two‐prong test for

competency asks “whether [the defendant] has sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding—and

whether he has a rational as well as factual understanding of the proceedings

against him.” Dusky v. United States, 362 U.S. 402, 402 (1960) (internal quotation

marks omitted). In applying this test, the district court must weigh evidence and

apply evidentiary standards. See United States v. Nichols, 56 F.3d 403, 410‐11 (2d



                                         14
Cir. 1995).1 An arbiter must therefore interpret legal competency standards and

apply them to the facts before her, a quintessentially judicial task. A medical

professional cannot appropriately resolve such legal questions, and a defendant’s

competence is decidedly the province of the courts.

      Section 4241 codifies this principle by committing all competency

determinations to the district court. Specifically, the statute requires the district

court to determine whether (1) “there is reasonable cause to believe that the

defendant” may be incompetent, 18 U.S.C. § 4241(a); (2) “by a preponderance of

the evidence . . . the defendant is presently” competent to stand trial, id.

§ 4241(d); and (3) by a preponderance of the evidence the defendant has been

restored to competency, id. § 4241(e). See also Magassouba, 544 F.3d at 406 (“[I]n

the event the court determines that the defendant has not so improved, he is

referred for possible civil commitment proceedings . . . .” (emphasis added));

United States v. Donofrio, 896 F.2d 1301, 1303 (11th Cir. 1990) (“The permanency of




1Indeed, “the district court may rely on a number of factors, including medical
opinion and the court’s observation of the defendant’s comportment” in
applying the two‐prong test for competency. Nichols, 56 F.3d at 411.
                                        15
the condition [of incompetency] would then be determined for later

consideration by the court.” (emphasis added)).

      Therefore, before Brennan can be considered permanently incompetent, a

court must determine “whether there is a substantial probability that in the

foreseeable future he will attain the capacity to permit the [criminal] proceedings

to go forward” following a mandatory commitment as outlined in 18 U.S.C.

§ 4241(d). 18 U.S.C. § 4241(d)(1). Neither the magistrate judge nor the district

court made such a finding with respect to Brennan. See, e.g., Brennan, 354 F. Supp.

3d at 260 (“While the evidence in this case does suggest a relatively low

probability that Defendant can be restored to competency, the commitment

required by § 4241(d) is meant to provide a definitive answer to that question.”);

App’x at 92 (magistrate judge denying motion to release Brennan that was

premised on the grounds that he was permanently incompetent and instead

committing Brennan to the Attorney General’s custody “for treatment in a

suitable facility”). Legally, the district court made no determination as to future

competency, and 18 U.S.C. § 4241(d) required the district court to first commit

Brennan for evaluation and treatment before making such a determination.



                                         16
      We recognize that 18 U.S.C. § 4241(d) does not authorize the district court

to determine whether evaluation and treatment of a defendant are necessary in

aid of its determination of whether the defendant does not have a substantial

likelihood of regaining competency in the foreseeable future. The statute

commands that if “the court finds by a preponderance of the evidence that the

defendant is presently” incompetent, “the court shall commit the defendant to

the custody of the Attorney General” for treatment and evaluation. 18 U.S.C.

§ 4241(d) (emphasis added); Magassouba, 544 F.3d at 393 (“If the district court

makes a preliminary finding of incompetence, the second step of the statutory

scheme . . . mandates the defendant’s custodial hospitalization for evaluation and

possible treatment.”). Only after the mandatory competency evaluation outlined

in Section 4241(d) has taken place may the district court—and the district court

alone—determine that “the defendant’s mental condition has not so improved as

to permit the proceedings to go forward.” 18 U.S.C. § 4241(d). In that case, the

procedures outlined in Sections 4246 and 4248 are triggered. We conclude that as

applied to Brennan, such mandatory, limited commitment comports with the

due process principles articulated in Jackson v. Indiana. 406 U.S. at 737‐38.



                                         17
      As an initial matter, the district court’s limited order for Brennan’s

examination requested medical findings on “the defendant’s history and present

symptoms, if any . . . and . . . as to diagnosis.” App’x at 54‐56 (emphasis added).

The district court did not request that the medical examiner, Dr. DiMisa, make

any findings regarding Brennan’s likelihood of improving and ultimately

standing trial. Thus, while Dr. DiMisa’s reports paint an undoubtedly bleak

picture of Brennan’s health, the section of her competency report titled

“PROGNOSIS” is predictably devoid of definitive statements regarding

Brennan’s ability to improve and ultimately stand trial. SD at 14‐15. Instead, Dr.

DiMisa’s prognostic opinions in every instance are conditional. See SD at 14 (“Mr.

Brennan’s overall prognosis is poor, particularly if he continues to drink alcohol in

the future.” (emphasis added)); SD at 14 (“Neurocognitive Disorders tend to be

degenerative in nature, thus, it is highly unlikely Mr. Brennan will return to his

previous level of functioning.” (emphasis added)); SD at 14 (“It is also unlikely

medication would significantly improve his functioning.” (emphasis added)).

      The limited scope of Dr. DiMisa’s reports is indicative of the need for a

more thorough evaluation. As several of our sister circuits have noted, the

evaluation of a defendant’s future competency “requires a more careful and
                                         18
accurate diagnosis than the brief interviews and review of medical records that

tend to characterize the initial competency proceeding.” Strong, 489 F.3d at 1062

(internal quotation marks omitted) (citing Ferro, 321 F.3d at 762; United States v.

Filippi, 211 F.3d 649, 651 (1st Cir. 2000)); see also Donofrio, 896 F.2d at 1303

(describing evaluation period as permitting “a careful determination of the

likelihood of regaining mental capacity to stand trial”).2

      The evidence at Brennan’s competency hearing therefore did not call for

the district court to determine whether an individual whom medical

professionals conclusively considered substantially unlikely to improve could

constitutionally be committed under Section 4241(d). Instead, the district court

applied Section 4241(d) to a defendant whose medical prognosis was not

definitive and whose future competency was legally unsettled. As such,



2This is necessarily true because the initial psychiatric evaluation is limited.
Section 4241(b) requires that the preliminary examination of the defendant be
conducted “pursuant to the provisions of section 4247 (b) and (c).” 18 U.S.C.
§ 4241(b). Section 4247(b) in turn requires that the examination period be limited
to “a reasonable period, but not to exceed thirty days.” Id. § 4247(b). The director
of the facility to which the defendant is committed “may apply for a reasonable
extension, but not to exceed fifteen days.” Id. Thus, although Dr. DiMisa
conducted numerous interviews over several hours, the initial evaluation period
was necessarily temporally limited, constraining a medical professional’s ability
to evaluate and treat a mentally incompetent defendant.
                                          19
Brennan’s commitment under Section 4241(d) will allow for a more thorough

evaluation of his ability to regain competency than the preliminary examination

allowed, and the statute’s mandatory order of commitment “bear[s] some

reasonable relation to the purpose for which” Brennan was committed. Jackson,

406 U.S. at 738. Moreover, because this commitment period is explicitly limited to

a “reasonable period of time” as is “necessary” to determine Brennan’s future

competency, 18 U.S.C. § 4241(d)(1), the commitment will remain reasonably

related to determining Brennan’s future competency and must terminate as soon

as a determination can be made. See Filippi, 211 F.3d at 652 (noting the statute is

“flexible and case‐oriented in determining the length of incarceration”). The

statute thereby balances the government’s interest in accurately determining

Brennan’s competency with Brennan’s liberty interest and is consistent with due

process.

      We hold that Section 4241(d) is constitutional as the district court applied it

to Brennan because Brennan’s continued detention is reasonably related to

resolving open questions regarding the likelihood that Brennan will regain

competency to stand trial in the foreseeable future.



                                         20
                               CONCLUSION

      We AFFIRM the district court’s order pursuant to Section 4241(d)

committing Brennan to the custody of the Attorney General.




                                      21
