MOTION TO DETERMINE COMPETENCY OF DEFENDANT

Mr. Tim Schwartz, Defendant, by and through undersigned counsel, David E. Johnson, hereby moves this Honorable Court pursuant to 18 U.S.C. § 4241(a) and (d) for a hearing to determine the mental competency of the defendant and for a finding that Mr. Schwartz is incompetent to proceed. In support thereof, counsel states as follows:

1. Title 18 Section 4241(a) provides:

Pursuant to this authority, Mr. Schwartz requests a hearing to determine his competency.

2. Undersigned counsel proffers, based on his and his office's interaction with the defendant, that there is reasonable cause to believe Mr. Schwartz is suffering from a mental disease or defect that is making him "unable to understand the nature and consequences of the proceedings against him" and "to assist properly in his defense." 18 U.S.C. § 4241(a).

3. First, counsel has previous summarized his concerns regarding Mr. Schwartz's mental and/or physical competency to proceed. See Doc. No. 19. He incorporates those statements and observations herein by reference.

4. Second, since that filing, undersigned counsel's concerns have not only been reinforced by subsequent interaction with Mr. Schwartz, but they have become heightened. Moreover, additional research and investigation into Mr. Schwartz's condition has only confirmed counsel's concerns. Simply stated, Mr. Schwartz's mental and physical condition is deteriorating. He is getting worse.

5. Third, counsel informed this Court at the May 13, 2014 hearing to exclude time from the Speedy Trial Act, see Doc. No. 22, that a psychological evaluation of Mr. Schwartz had been arranged. This evaluation has since occurred. Specifically, a psychological evaluation of the defendant was conducted by Dr. Susan Bograd, M.D., Diplomate, American Board of Psychiatry and Neurology with added qualifications in Forensic Psychiatry. Dr. Bograd has prepared a report, which will be submitted to this Court under seal.

6. Dr. Bograd's report complies with the requirements of 18 U.S.C. § 4247(c). In her report, she concludes: "it is my opinion with a reasonable degree of medical certainty that Tim Schwartz has . . . mental diseases [that] render him mentally incompetent to understand the nature and consequences of the proceedings against him and also render him unable to assist properly in his defense. It is also my opinion with a reasonable degree of medical certainty that Tim Schwartz can likely be restored to competence."

7. Fourth, since Dr. Bograd submitted her report, counsel states on information and belief that Mr. Schwartz continues to be seen numerous times by psychologists, doctors, and/or medical personnel at GEO Aurora Detention Center (GEO).

8. In light of the above information, counsel requests that this Court hold a hearing to determine the mental competency of Mr. Schwartz.

9. At that hearing, counsel will ask this Court, based on the above information, to "find[] by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." 18 U.S.C. § 4241(d). In short, undersigned counsel believes that based upon this record — including Dr. Bograd's detailed report — this Court can easily conclude "by a preponderance of the evidence" that Mr. Schwartz is incompetent to proceed, as detailed in Section 4241(d).

10. In turn, counsel requests that this Court commit Mr. Schwartz "to the custody of the Attorney General" and that "[t]he Attorney General shall hospitalize the defendant for treatment in a suitable facility" in an attempt to restore Mr. Schwartz to competency. 18 U.S.C. § 4241(d).

11. Based upon Dr. Bograd's report, counsel states that a suitable facility would include one that involves physical, neurological, and psychiatric care. Specifically, Mr. Schwartz needs to be "treated medically and psychiatrically" including "a thorough physical examination" and "neurologist and a psychiatrist" care.

WHEREFORE, pursuant to 18 U.S.C. § 4241(a) and (d), counsel request a hearing to determine the mental competency of the defendant and, at that hearing, for a finding that Mr. Schwartz is incompetent to proceed.