United States District Court, W.D. North Carolina, Asheville Division
DENNIS L. HOWELL, Magistrate Judge.
THIS MATTER is before the Court upon the Government's request for a hearing pursuant to 18 U.S.C. § 4246(e) asking the Court to determine if Defendant has recovered from his mental disease or defect to such an extent that his release would no longer create a substantial risk of bodily injury to another person or serious damage to the property of another (#25). On February 5, 2014 the Court held a hearing on this matter. Defendant's counsel, Fredilyn Sison, was present, and Defendant was present through the use of a video camera system from his location at the Federal Medical Center in Butner, North Carolina. The Government was represented through Assistant United States Attorney Don Gast. From the evidence offered and the records in this cause, the undersigned makes the following findings.
Findings. In a bill of indictment issued on February 2, 2011, Defendant was charged with being a person who, having previously been committed to a mental institution, did possess firearms in violation of 18 U.S.C.§ 922(g)(1)(12) (#1). Thereafter, Defendant's counsel moved for a psychiatric evaluation of Defendant pursuant to 18 U.S.C. § 4241(a). The undersigned entered an Order (#10) allowing this motion and directed that an examination be made of Defendant. An examination was made of Defendant and on June 7, 2011, a report (#13) was filed concerning the examination. A hearing was held by the undersigned on June 9, 2011, and at that time the undersigned found that, based upon the information in the report, Defendant was not presently competent to stand trial and Defendant was mentally incompetent to the extent he was unable to understand the nature and consequences of the proceedings (#14). The undersigned then directed that Defendant be committed to the custody of the Attorney General for continued treatment at a suitable medical facility to determine whether or not there was a substantial likelihood that in the foreseeable future Defendant would attain the capacity to permit the trial to proceed (#14).
On January 31, 2012, a report (#16) was filed by Sarah M. Revell, Complex Warden of the Federal Medical Center in Butner, North Carolina. In the report, Adeirdre Stribling Riley, PhD, the treating psychologist and Dr. Ralph Newman, the treating psychiatrist, provided the opinion that Defendant required treatment with antipsychotic medications and requested that the Court enter an Order directing Defendant be administered these medications. The government filed a motion (#18) requesting an Order that Defendant be involuntarily medicated in an attempt to restore his competency. The undersigned entered an Order (#19) ordering that the medical providers at the Federal Medical Center in Butner, North Carolina involuntarily medicate Defendant in accordance with the proposed treatment plan.
On December 3, 2012, a report (#20) was filed by Dr. Stribling Riley and Dr. Newman, which stated that Defendant was continuing to suffer from a mental disease or defect rendering him mentally incompetent to the extent he was unable to understand the nature and consequences of the proceedings against him or to assist in his own defense. It was the opinion of Dr. Stribling Riley and Dr. Newman that there was not a substantial probability that Defendant's competency could be restored in the foreseeable future. In the report, Dr. Stribling Riley and Dr. Newman provide the following opinion:
Regarding his competency to stand trial, Mr. Gearing's degree of disorganization, severity of thought disorder and preoccupation with delusions is such that he is unable to define the roles of various court personnel, name or explain the available pleas or acknowledge his charges and possible penalties. As a result of his psychosis, to include responding to internal stimuli, he would be unable to conform his behavior to the courtroom. He exhibits significant limitations in his capacities to assist counsel, which arise from his thought disorder and confusion. These limitations are due to his chronic psychosis. We view him as lacking a rational and factual understanding of the charges and proceedings against him and as remaining unable to properly assist in his defense.
Due to his pervasive persecutory and grandiose delusions, Mr. Gearing is incapable of working with his attorney with a reasonable degree of rational understanding to plan a legal strategy. It is our opinion that Mr. Gearing suffers from a mental disease or defect, namely Schizophrenia, Undifferentiated Type, which significantly interferes with his rational understanding of relevant legal proceedings and his ability to assist counsel in his defense. We do not believe there is a substantial likelihood that further treatment will lead to improvement to such an extent his competency to proceed would be restored.
(Forensic Report, Doc. # 20, pp, 8 & 9.)
On December 20, 2012, Defendant's counsel filed a Motion for Risk Assessment Evaluation (#21) in which it was requested that the Court enter an order directing that an examination be made of Defendant by the psychological team working with Defendant to make a determination as to whether the release of Defendant would create a substantial risk of bodily injury to another person or serious damage to the property of another. On January 10, 2013, the undersigned entered an Order (#22) allowing the motion and directed that such an examination be made of Defendant.
By letter and report dated March 27, 2013, Warden Apker of the Federal Medical Center in Butner, North Carolina, reported as follows:
In the opinion of the Risk Panel and his evaluators, Mr. Gearing is not suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to the property of another. I have enclosed the report prepared by our staff reflecting these opinions. (#23, p. 1.)
Attached to the letter was the Forensic Evaluation report of Dr. Stribling Riley and Dr. Newman. In the report, Dr. Stribling Riley and Dr. Newman state:
Summary And Opinion of Risk of Dangerousness: Title 18, United States Code, §4246 outlines procedures for commitment of a person presently suffering from a mental disease or defect such that his release would create a substantial risk of bodily injury to another person or serious damage to the property of another. In response to the Court's order, a Rick Assessment Panel was convened on 02/14/13 to examine whether Mr. Gearing met the criteria for continued commitment under §4246. During the Risk Panel, we considered that many of Mr. Gearing's functional abilities have been decreased due to his medical condition. Mr. Gearing is currently compliant with medication and has achieved a significant reduction in his mental health symptoms. Nevertheless, he has not gained sufficient insight into his condition and associated behavioral disturbances. With careful consideration of the risk and protective factors, the Risk Assessment Panel and evaluators opined that Mr. Gearing suffers from a mental illness, namely Schizophrenia, Undifferentiated Type but that due to medical complications, his release from custody would not present a substantial risk of bodily injury to another person or serious damage to the property of another. Ultimately, the Court must determine whether the probability of a future violent act, the potential magnitude of harm, the frequency with which violence may occur, and the imminence of harm Mr. Gearing presents rises to the level of "substantial risk" pursuant to Title 18, United States Code, §4246.
The reports (#16, #20, #23, #24) set forth the background information concerning Defendant's life. The Defendant is the youngest of four brothers born to William and Margaret Gearing. (#23, p. 5.) Defendant was initially raised in Michigan, but the family moved to Transylvania County, North Carolina when Defendant was in the ninth grade. (#23, p. 5.) Defendant did not adjust well to the move to North Carolina and attempted to run away from home. (#23, p. 5.) Defendant then lived with one of his brothers for a short period of time. (#23, p. 5.) Defendant attended Brevard College in Brevard, North Carolina and later obtained a Bachelor's degree in physics from the University of North Carolina at Greensboro, North Carolina. (#23, p. 5.) Defendant was then required by his father to live at the family home in Transylvania County. (#23, p. 6.) Defendant has never had steady employment, has no friends, and is ...