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United States v. Tucker

United States District Court, M.D. North Carolina

October 22, 2019



          Thomas D. Schroeder United States District Judge

         Before the court are motions filed by the United States seeking a third period within which to restore the competency of Defendant Christopher Lewis Tucker, who is pending indictment for multiple child pornography and firearm offenses, and a request for authority to involuntarily administer psychotropic medication pursuant to Sell v. United States, 539 U.S. 166 (2003). (Docs. 61, 64.) Tucker, through appointed counsel, responded in opposition. (Docs. 62, 67.) The court held evidentiary hearings on September 18 and 24, 2019.[1] For the reasons set forth below, the court finds that the Government has met its burden, demonstrating by clear and convincing evidence that the involuntary administration of psychotropic medication to restore Tucker's competency is appropriate, and that the motions for an additional period of restoration up to four months and involuntary treatment will be granted.

         I. BACKGROUND

         Following the filing of a criminal complaint, Tucker was indicted on May 30, 2017, on five counts: two counts of enticing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction, in violation of 18 U.S.C. § 2251(a) and (e); one count of knowingly transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1); one count of possessing a Smith & Wesson revolver and a 7.62x39 millimeter assault rifle, in violation of 18 U.S.C. § 922(g)(3) and 924(a)(2); and one count of knowing receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1). (Doc. 8.) The United States superseded the indictment on August 1, 2017. (Doc. 19.) The new indictment mirrors the original indictment and seeks the forfeiture of Tucker's firearms and ammunition upon conviction of the offense alleged in count four under 18 U.S.C. § 922(g)(3) and 924(a)(2).

         By order of Judge William L. Osteen, Jr., on July 17, 2017, Tucker's initial counsel was relieved of further responsibility of representation due to irreconcilable differences, and CJA counsel H.A. Carpenter, IV, was appointed to represent the Defendant. (Doc. 13.)

         Following his appointment, Carpenter met with Tucker at the Guilford County Jail on four occasions by July 28, 2017. (Doc. 22-2 at 1). From these meetings, counsel became concerned about Tucker's competency, noting that his client's “presentation and interactions with counsel [were] unusual.” (Id. at 2.) He further noted that Tucker “controlled the entire conversation, remained very agitated throughout the meeting, [was] extremely opinionated regarding all aspects of his case and highly suspicious.” (Id.) Carpenter sought the assistance of James H. Hilkey, Ph.D., a licensed psychologist, to meet with Tucker and provide more information on his mental competency. (Id.)

         Dr. Hilkey met alone with Tucker at the Guilford County Jail on July 24, 2017. (Doc. 22-1 at 2.) That same day, Tucker filed a motion, pro se, entitled “Motion Under Case Law United States v. Arnold, 106 F.3d 37 (3rd Cir. 1997), ” contending that the Government was prohibited from eliciting incriminating information from him in the absence of his counsel and that Dr. Hilkey “asked many times about [his] case” during their meeting. (Doc. 16.) A second meeting between Tucker and Dr. Hilkey was held on August 1, 2017, at which Carpenter was present. (Doc. 22-1 at 2.)

         On August 6, 2017, Dr. Hilkey generated a report based on his clinical interviews with Tucker, consultation with his attorney, Carpenter, and an interview with Tucker's parents. (Id.) The report was also supported by a consultation with Samuel Gray, Psy.D., a psychologist who evaluated Tucker on May 26, 2017, at the request of his initial attorney, a review of clinical interview notes and psychological test data from Dr. Gray, and a phone interview with Jerry Sparger, Ph.D., Tucker's godfather and a retired forensic psychologist. (Id.) Based on his findings, Dr. Hilkey opined that Tucker lacked the ability to “assist counsel in a rational manner” and recommended he “undergo an inpatient forensic examination to further assess his competency.” (Id. at 5.) He also made note of his provisional diagnostic impressions, listing both “Delusional Disorder, Persecutory type” and “Adjustment Disorder with mixed anxiety and Depressed Mood.” (Id.)

         On August 9, 2017, Carpenter moved to have Tucker declared mentally incompetent to assist counsel properly in his defense, as set out in 18 U.S.C. § 4241(a). (Doc. 22.) The motion was supported by an affidavit discussing counsel's interactions with Tucker (Doc. 22-2) as well as Dr. Hilkey's report (Doc. 22-1).

         A hearing was conducted on September 6, 2017. The court entered an order on September 20, 2017, declaring Tucker incompetent with respect to his ability to properly assist counsel in his defense and committing Tucker to a facility for a period not to exceed 45 days for a psychological evaluation to determine his mental competency pursuant to 18 U.S.C. § 4241.[2] (Doc. 27.)

         Tucker was designated to the Metropolitan Correctional Center (“MCC”) in Chicago, Illinois, and arrived on October 16, 2017. (Doc. 28.) His psychological evaluation began upon his arrival, and the clinical psychologist requested a fifteen-day extension to “complete the testing and examination necessary to develop a history, diagnosis, and opinion” (id.), which the court granted (Doc. 29).

         From October 16, 2017, through November 29, 2017, Tucker was observed by staff members at MCC in Chicago, Illinois, and was interviewed several times by Allison Schenk, Ph.D., a licensed clinical psychologist with MCC. (Doc. 30.) On January 5, 2018, Dr. Schenk filed her report, documenting Tucker's experiences and belief systems. She found that Tucker “endorsed feeling people were out to harm him or unfairly targeting him” but found that his beliefs “were not consistent with clinically diagnosed delusions.” (Id. at 3.) She noted that on September 5, 2017, prior to his evaluation, he had become violent and confrontational with his attorney and correctional officers at the Greensboro ( N.C. ) Jail Center, “screaming threats to sue the officers and yelling to ‘not use a needle.'” (Id. at 4.) Following the combative event, he claimed to have been assaulted after complying with demands and “insinuated his attorney ordered the assault after Mr. Tucker fired him.” (Id.) On October 31, 2017, Dr. Schenk had asked Mr. Tucker about a discrepancy between his self-report of lacking suicidal ideation and documentation about his risk of suicide. (Id. at 5.) She noted that on the date Tucker was to have been arrested, he allegedly wrote a letter “with suicidal content” where he discussed getting his affairs in order and who should get his belongings, yet he denied having suicidal ideations. (Id.) When Dr. Schenk probed this discrepancy, Tucker “initially denied it and claimed the letter was the FBI's way of punishing him so he would be placed on suicide watch precautions.” (Id.) He later admitted to writing the letter and expressed confusion as to why it was interpreted as a suicide letter. (Id. at 9.)

         Dr. Schenk also noted that on November 24, 2017, while medication was being administered in Tucker's housing unit at MCC, he requested to be seen by a nurse for a “medical emergency” but also reported he was having “no medical issues.” (Id. at 7.) As he walked away from the nurse in the unit, Tucker was reported to have looked around suspiciously and appeared irritable. Finally, Dr. Schenk observed, the unit officer noted that Tucker was “talking to himself, claiming there [was] a drone out the window, [the] FBI [was] watching him; and doing things to him overnight.” (Id.) Dr. Schenk never discussed these statements with Tucker, as he had left the facility by the time she learned this. (Id. at 9.)

         Dr. Schenk found that Tucker described his beliefs of being targeted by the government as systemic issues and problematic now that he was the focus of the government. (Id.) She found that Tucker “consistently denied experiencing hallucinations and there were no behavioral observations to suggest he was attending to internal stimuli throughout [her] interactions with him.” (Id.) Based on her interviews with Tucker and review of collateral records, Dr. Schenk concluded that “Mr. Tucker's presentation throughout this evaluation is consistent with narcissistic personality disorder” and that he “may continue to be an extremely challenging and exasperating defendant, which is further indicative of a personality disorder, however . . . his decision making and behaviors are governed by his narcissistic personality traits, rather than a mental illness.” (Id. at 17.) She considered, but rejected, a diagnosis of “delusional disorder with persecutory themes, ” finding his irrational beliefs to be a component of narcissistic personality disorder. (Id. at 11.) Ultimately, Dr. Schenk concluded that “Mr. Tucker is competent to proceed with his case.” (Id.)

         On February 2, 2018, Carpenter subpoenaed Dr. Hilkey to testify as an expert witness at a hearing to determine Tucker's competency (Docs. 34, 35) and thereafter moved to have Tucker declared incompetent (Doc. 36). In his motion, Carpenter disputed the findings of Dr. Schenk as incomplete, arguing that in reaching her diagnosis she failed to speak with key individuals including Tucker's godfather, Dr. Sparger; Dr. Hilkey; Tucker's mother; and Tucker's siblings. (Id. at 2-3.) Carpenter provided affidavits from Tucker's mother (Doc. 36-1) and brother (Doc. 36-2), as well as a supplemental psychological report by Dr. Hilkey (Doc. 36-3).

         In her affidavit, Tucker's mother, Sandra Mosley, discussed her relationship with her son and shared details about her interactions with him. She reported that Tucker claims that “Jesus came to earth and told Chris he has ‘special' powers, ” that law enforcement is out to get him, that he was “abducted by aliens” as a child, and that he was given “great knowledge about certain unknown formulas and equations.” (Doc. 36-1 at 2.) She also recounted an incident during Tucker's youth where he and his brother were fishing on Ocean Isle Pier and an unknown man was allegedly “messing with some young boys under a blanket.” (Id.) Tucker told his mother about the man, and police were notified. The man was allegedly arrested, and the police indicated that they sought Tucker's testimony against the man. However, the police later contacted the family and informed them that Tucker's testimony would not be needed because the “man at the pier” had committed suicide. (Id.) On one occasion while incarcerated during the pendency of this case, Ms. Mosley reported, Tucker informed her that he had seen and spoken with the “man at the pier” while he was in Chicago at MCC and the man told her son he would kill him if he testified. Ms. Mosley informed Tucker that the “man at the pier” was dead, to which he responded that he, in fact, works for the government. (Id. at 3.)

         In his affidavit, Bradley Tucker discussed his relationship with his brother and his interactions with him at the Orange County ( N.C. ) Jail on December 24, 2017. (Doc. 36-2.) He noted that “[Tucker] was extremely paranoid; holding up papers to the window and saying he can't talk because there are eyes and ears everywhere.” (Id. at 2.) He also noted that Tucker “wrote that it was Bill and Hillary Clinton's fault that he was in custody, ” “kept repeating the ‘man at the pier, '” “talk[s] often about aliens, ” “is delusional, ” “claim[s] that he was abducted by aliens from [their] home in Charlotte” who “gave him ‘special powers, '” and “believes he is ‘an angel.'” (Id. at 1-2.) He further noted Tucker's difficulty with social interactions and finding and maintaining employment. (Id. at 1.)

         On February 7, 2018, Dr. Hilkey met with Tucker at the request of Carpenter to re-evaluate his mental competency. Recounting his interactions in a report filed on February 9, 2018 (Doc. 36-3), Dr. Hilkey noted that “[Tucker] threatened both Attorney Carpenter and me with law suits and demanded that he be put in contact with agents of the Federal Bureau of Investigation and the Central Intelligence Agency. He stated his proceeding would be attracting ‘national attention.'” (Id. at 3.) Based on his interview, affidavits from Ms. Mosley and Bradley Tucker, Dr. Schenk's report, review of the motions and letters written by Tucker, and consultation with counsel involved in the matter, Dr. Hilkey reaffirmed his initial findings that Tucker suffered from “Delusional Disorder, Persecutory Type.” (Id.)

         The court held a hearing on February 14, 2018, to determine Tucker's competency to stand trial. Defense counsel presented testimony from Dr. Hilkey, as well as from Brad Tucker and Ms. Mosley. The Government presented the testimony of Dr. Schenk who, in consideration of new evidence of Tucker's mental state, testified that he should undergo further evaluation before his competency could be determined. (Doc. 39 at 71.) In making its decision, the court considered the testimony offered at the hearing, all doctors' reports, and all other matters of record. (Doc. 38 at 1.)

         On February 16, 2018, the court ordered that Tucker be committed to the custody of the Attorney General for a second period of evaluation to determine his competency to stand trial. (Doc. 38.) Tucker was evaluated at the Metropolitan Correctional Center in San Diego, California (“MCC San Diego”). That evaluation led to a report by Alicia Gilbert, Ph.D., a forensic psychologist at MCC San Diego, filed on April 16, 2018. (Doc. 40.) Based on her evaluation of Tucker, and in consideration of other records, Dr. Gilbert found that “[Tucker's] present ability to understand the nature and consequences of the court proceedings brought against him, as well as his ability to properly assist counsel in a defense are substantially impaired by a mental disease or defect.” (Doc. 40 at 17.) Dr. Gilbert diagnosed Tucker with “Schizophrenia, Multiple Episodes.” (Id. at 14.) In support of her diagnosis, she reported the following:

Given that Mr. Tucker has routinely refrained from disclosing his concerns because he was worried that we “might think I'm crazy, ” is paranoid about his food and will refuse his meals, perseverates over odd details, exhibits delusional thinking, is sometimes slow to respond (possibly auditory hallucinations), has a documented history of “talking to himself, ” reportedly heard a “recorded voice of his father” over a phone call he did not make (possible auditory hallucinations), easily agitated by unknown triggers, isolates himself, hides under his blanket, and disengages when possibly depressed, paranoid and suspicious of others, and refuses medication because he does not think that he is mentally ill can all be symptoms associated with Schizophrenia.

(Doc. 40 at 15-16.)

         The court held a hearing on May 9, 2018, and the Government and Tucker's counsel agreed with Dr. Gilbert's report and with the court's intention to commit Tucker to the custody of the Attorney General for restoration of competency. (Doc. 42 at 1.) The court found that the preponderance of the evidence demonstrates that Tucker “presently suffers from a mental disease or defect that renders him mentally incompetent to the extent that he is not able to understand the nature and circumstances of the proceedings against him or assist properly in his defense. See 18 U.S.C. § 4241(d).” (Id. at 2.) Tucker was remanded to the custody of the Attorney General for placement at a facility to restore his competency. (Id.)

         Tucker was housed at the Federal Medical Center in Butner, North Carolina (“FMC Butner”), where he was evaluated, and efforts were undertaken to restore his competency. (Doc. 48.) On November 21, 2018, a forensic evaluation was filed with this court by Adeirdre Stribling Riley, Ph.D., a forensic psychologist at FMC Butner. (Id.) In her report, Dr. Riley diagnosed Tucker with schizoaffective disorder, substance use disorders, and adult antisocial behavior. (Id. at 10-12.) She further found that while “[Tucker] has no deficits in his factual understanding of his charges, he presents with significant persecutory beliefs which interfere with his ability to rationally apply his knowledge and demonstrate a rational understanding of proceedings and rational ability to consult with counsel.” (Id. at 13.) While Dr. Riley found that Tucker was not competent to stand trial, she also found that “there is a substantial likelihood Mr. Tucker can be restored to competency in the foreseeable future with combination psychotropic medication treatment at therapeutic levels as well as individual competency restoration.” (Id. at 14.) At the time of her report, Tucker was prescribed “Olanzapine 10 mg (antipsychotic) and Fluoxetine 20 mg (antidepressant) daily.” (Id.) Dr. Riley ultimately requested an additional period of evaluation and treatment to continue restoration efforts. (Id.)

         In response to Dr. Riley's report, the Government moved for a second period of restoration. (Doc. 49.) Carpenter, in consultation with Dr. Hilkey, did not object to the court ordering an additional 120-day period of treatment. (Id. at 1.) This court found that “the preponderance of the evidence indicates that [Tucker] continues to suffer from a mental disease or defect that renders him mentally incompetent to the extent that he is unable to assist properly in his defense. 18 U.S.C. § 4241(d).” (Doc. 50 at 4.) Consequently, the court ordered that Tucker's period of restoration of competency be extended for an additional 120-day period “to determine whether his competency can be restored, pursuant to 18 U.S.C. § 4241(d)(2)(A).” (Id.)

         During this additional period of restoration, Tucker engaged in a physical altercation with staff members at FMC Butner, “bloodying” the nose of one of the staff. (Doc. 71 at 91.) Following this incident, a due process involuntary medication hearing was held on May 1, 2019, to determine if Tucker could be forcibly medicated pursuant to Washington v. Harper, 494 U.S. 210 (1990). (Id.; Doc. 59 at 3.) During this hearing, however, Tucker voluntarily agreed to an increase in his dosage of olanzapine from 10 mg to 20 mg, and the hearing ended. (Doc. 59 at 3; Doc. 71 at 91.)

         Dr. Riley submitted a subsequent forensic evaluation to the court on May 15, 2019, documenting the efforts to restore Tucker to competency. (Doc. 51.) In her report, Dr. Riley reported her diagnosis of “schizoaffective disorder, substance use disorders, and adult antisocial behavior.” (Id. at 8.) She found that Tucker had “no deficits in his factual understanding of his charges” but “may be unable to cooperate rationally with his attorney, testify relevantly, or maintain proper courtroom behavior, due to his intermittent medication compliance and possible breakthrough symptoms of psychosis.” (Id. at 8-9.) Dr. Riley noted that Tucker had been intermittently compliant with his prescribed medication, Olanzapine 10 mg and Fluoxetine 20 mg. (Id. at 4.) Despite this intermittent compliance, she found that his symptoms “responded well to medication treatment with antipsychotics and antidepressants in the past” and that “[t]here is a substantial probability that his symptoms would be further attenuated with ongoing medication treatment.” (Id. at 5-6.) She also reported that “[r]elative functional gains are evident even with the intermittent medication compliance” and that “target symptoms would be appropriately attenuated with medication treatment at a therapeutic level.” (Id. at 7.) Dr. Riley concluded that “there is a substantial likelihood Mr. Tucker can be restored to competency in the foreseeable future with a consistent combination psychotropic medication treatment at therapeutic levels as well as individual competency restoration” and that six weeks of consistent medication treatment would be essential in restoring Tucker's competence. (Id. at 9.) According to Dr. Riley, Tucker was “right at the threshold of competency, and likely would have been restored had he complied with medication treatment.” (Id.) Consequently, she recommended an additional period of evaluation and treatment to restore competency and requested an order for the involuntary administration of medication should he continue to be “intermittently compliant with medication.” (Id. at 9-10.)

         In response to Dr. Riley's report, the Government filed a motion on June 5, 2019, for a hearing to determine whether Tucker should be involuntarily medicated (Doc. 52), and the court set the matter for a hearing on July 10, 2019 (Docs. 53, 54). In turn, Carpenter filed “Defendant's Position with Respect to Sell Hearing, ” objecting to the involuntary administration of medication. (Doc. 55.) Carpenter asserted “[o]ne of [Tucker's] greatest fears is the unknown side effects that he may experience as a result of being forced to take anti-psychotic medications.” (Id. at 4.) According to Carpenter, Tucker allegedly gained 108 pounds in the span of 6 to 8 weeks while on his prescribed medication, [3] experienced a deterioration in his ability to focus his eyes to read, and fears the “zombie effect” he sees in others on these medications. (Id. at 5.) Tucker reported a concern that these side-effects would interfere with his ability to assist counsel during trial. (Id. at 9.) Carpenter also directed the court to the conflicting diagnoses of Dr. Hilkey and Dr. Riley, noting Dr. Hilkey's belief that Tucker suffered from delusional disorder and opinion that antipsychotic medication would not be therapeutic. (Id.) Carpenter argued that “[i]f [Tucker's] accurate diagnosis is Delusional Disorder and if restoration by anti-psychotic medication is unlikely in patients with Delusional Disorder, then the defense contends that the government cannot establish the last three prongs [of Sell].” (Id.) Further, he asserted that the known and unknown side-effects of the medication are “obstacle[s] to the government establishing the last three prongs under Sell.” (Id. at 10.)

         On July 9, 2019, the day prior to the hearing to determine involuntary administration of medicine, Tucker's mother contacted private counsel who agreed to represent Tucker in the matters before the court. (Doc. 56 at 1.) The new counsel, Michael A. Grace, Esq., moved to continue the hearing to a future date to allow him to meet with Tucker and prepare for the hearing. (Id. at 1-2.) The motion was granted and the hearing was rescheduled to August 30, 2019.[4]

         On July 31, 2019, a forensic addendum and individualized treatment plan for Tucker was filed with the court by Logan Graddy, M.D., the Chief Psychiatrist at FMC Butner. (Doc. 59.) Dr. Graddy reported that Tucker met the criteria for a diagnosis of “schizophrenia, first episode, currently in partial remission.” (Id. at 1.) Dr. Graddy also accounted for the medicines prescribed to Tucker and his compliance with his medicinal regiment. He found the following:

• While housed at MCC San Diego, Tucker was prescribed mirtazapine 30 mg nightly (antidepressant/insomnia treatment), risperidone 2 mg twice daily (antipsychotic), and benztropine 1 mg twice daily (medication for side effects of antipsychotics). His compliance with this medication is unknown. (Id. at 3.)
• When Tucker first arrived at FMC Butner, he was continued on the same medication from MCC San Diego, but he refused to take risperidone because he said it blurred his vision. (Id.) On July 31, 2018, Tucker requested to start the antidepressant fluoxetine and was prescribed fluoxetine 20 mg daily and olanzapine 10 mg in place of risperidone. Tucker's compliance was “not very good.” (Id.)
• On April 25, 2019, an altercation occurred between Tucker and the staff at FMC Butner, and Dr. Graddy “emergently medicated [Tucker] with Haldol lactate 5 mg and Ativan 2 mg, both given by intramuscular injection.” (Id.) In reviewing the charts from the beginning of April through the 25th, Dr. Graddy found that Tucker “had taken 16/24 (67%) possible doses of Olanzapine 10 mg; and taken 18/25 (72%) possible doses of Prozac 20 mg.”[5] (Id.)
• On May 1, 2019, Tucker agreed to increase his dosage of olanzapine from 10 mg to 20 mg. His compliance was reported as “good.” (Id.) However, two nurses accounted for three separate instances of Tucker attempting to “surreptitiously not take (‘cheek') medications.” (Id.)
• Following a meeting between Dr. Graddy and Tucker on June 28, 2019, Dr. Graddy found that records showed “good” compliance with ...

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