Memorandum Opinion and Order on Preliminary Hearing and Detention Hearing

COLIN H. LINDSAY, Magistrate Judge.

On March 8, 2017, the Court held a preliminary hearing and a detention hearing (the "Hearing") in this matter.

Larry Fentress appeared for the United States. James Earhart appeared for Alisha Clayton, who was present and in the custody of the United States Marshals Service.

I. Government's motion for competency evaluation

At the beginning of the Hearing, the government moved for a custodial competency examination. See 18 U.S.C. §§ 4241(a) & 4247(b). Ms. Clayton objected to a custodial examination, but Ms. Clayton did not object to undergoing a noncustodial examination.

If the government or a defendant moves for a competency hearing, the Court shall grant the motion if there is reasonable cause to believe that the defendant is presently "suffering from a mental disease or defect rendering [her] mentally incompetent to the extent that [she] is unable to understand the nature and consequences of the proceedings against [her] or to assist properly in [her] defense." Id. § 4241(a). Even if no party moves for a competency hearing, the Court has the duty to inquire as to a defendant's competency "whenever there is reasonable cause to believe that the defendant is incompetent to stand trial." United States v. Dubrule, 822 F.3d 866, 879 (6th Cir. May 6, 2016).

As discussed on the record at the Hearing, the Court observed Ms. Clayton's behavior at the March 7 initial appearance. The Court had misgivings about her competency based on her behavior in Court, her answers under oath at the initial appearance, and based upon discussions with Court staff. Specifically, the Court noted that Ms. Clayton had to be taken to the hospital the morning of her initial appearance, and the initial appearance was rescheduled until Ms. Clayton returned from the hospital that afternoon. The Court also noted that if no party had moved for a competency evaluation at the Hearing, the Court had considered ordering an examination sua sponte. See Dubrule, 822 F.3d at 879.

At the Hearing, the Court found reasonable cause to believe that Ms. Clayton may presently be suffering from a mental disease or defect that renders her mentally incompetent to the extent that she is unable to understand the nature and consequences of the proceedings against her or to assist properly in her defense. See 18 U.S.C. § 4241(a). The Court granted the government's motion in part to the extent it sought a hearing to determine Ms. Clayton's competency. See id.

The Court denied the government's motion to the extent that it sought a custodial competency examination. The statute says:

Id. § 4247(b) (emphasis added).

Thus, the Court may commit a defendant to the Attorney General's custody for a psychiatric or psychological examination for thirty days. But, the statute does not require the Court to order a custodial commitment so that the defendant may undergo an examination. See, e.g., United States v. Lawson, 2013 WL 1498893 (E.D. Ky. 2013) ("Because the Defendant is not in pretrial custody, the Court appointed Dr. Paul Anthony Ebben, Psy. D., to conduct a noncustodial competency evaluation."); see also, United States v. Bussell, 2011 WL 2037013 *2 E.D. Tenn. 2011) ("Although the Court has discretion to order that the Defendant be committed for the mental evaluation, the statute does not require an inpatient examination."); cf. United States v. Rayyan, 2016 WL 1746013 *5 (E.D. Mich. 2016) ("Moreover, defendant has already been detained; thus, any restraint on his liberty is less consequential than if he were out on bond.").

At the Hearing, the Court made clear that it would consider the government's pretrial detention motion separate from its determination as to whether it will order Ms. Clayton to undergo an examination. Accordingly, the Court ordered Ms. Clayton to undergo a noncustodial psychiatric or psychological examination. See 18 U.S.C. § 4141(b). The Court also ordered the parties to confer regarding whether they can agree on a licensed or certified psychiatrist or psychologist to conduct the examination.

II. Preliminary hearing

Next, the Court held a preliminary hearing on the criminal complaint. See Fed. R. Crim. P. 5.1. The criminal complaint charges Ms. Clayton with violating 18 U.S.C. § 1512(b)(1) for knowingly threatening "a government witness in a federal prosecution." (DN 1.)

The statute says:

18 U.S.C. § 1512(b)(1).

The government called Special Agent Nicholas Zarro of the FBI to testify. Special Agent Zarro adopted his statements from the affidavit in support of the criminal complaint. (See DN 1 at #2-3.) In particular, Zarro testified that Earl Clayton IV and Edie Clayton told him that Ms. Clayton said to Earl Clayton IV, whose grandfather had recently been buried: "You are going to be digging another grave real soon."

Ms. Clayton called two witnesses: Desmond Phillips and Joanna Clayton. In short, Ms. Clayton's witnesses testified that they believed Ms. Clayton was making a biblical reference when she referred to "digging another grave," and they did not take it as a threat against Earl Clayton IV.

As discussed on the record at the Hearing, the Court found probable cause to believe that Ms. Clayton knowingly threatened Earl Clayton IV, a person in an official proceeding, with the intent to influence, delay or prevent his testimony against Earl Clayton III.

III. Government's motion to detain Ms. Clayton pretrial

The government moved to detain Ms. Clayton pretrial. 18 U.S.C. § 3142(f). Ms. Clayton asked for pretrial release with conditions.

As noted on the record at the Hearing, there is no presumption in favor of detention for the crime with which Ms. Clayton is charged. Accordingly, the government had the burden to show, by clear and convincing evidence, that "no condition or combination of conditions will reasonably assure the safety of any other person and the community." See id.

At the Hearing, the Court took into account the applicable factors in determining whether there are conditions of release that will reasonably assure Ms. Clayton's appearance as required and the safety of any other person and the community. See id. § 3142(g). The Court found that the government had not met its burden. See id. § 3142(f). Accordingly, the Court ordered Ms. Clayton's conditional release. The Court discussed the conditions on the record, and they are detailed below in Part V.

IV. Order for competency evaluation

The Court GRANTS the government's motion for a hearing to determine Ms. Clayton's competency. Id. § 4241(a).

The Court ORDERS Ms. Clayton to undergo a noncustodial psychiatric or psychological examination. Id. § 4247(b). On or before March 16, 2017, the parties shall submit an agreed order suggesting a licensed or certified psychiatrist or psychologist (the "examiner") for the Court to appoint to conduct the examination at the government's expense. See id.

On or before April 16, 2017, Ms. Clayton shall undergo an examination by the examiner. The examiner SHALL PREPARE a written report that includes:

Id. § 4247(c)(1)-(4). The examiner SHALL FILE under seal1 the written report with the Court, with copies to defense counsel and the government. Id. § 4247(c). The examiner's deadline for filing a written report with the Court is May 16, 2017.

The period of time necessary to determine Ms. Clayton's mental competency shall be excluded in computing the time within which the trial of this case must commence. 18 U.S.C. § 3161(h)(1)(A).

V. Conditional release order

The Court RELEASES Ms. Clayton on a $25,000 unsecured bond. The conditions of Ms. Clayton's release are:

Finally, the Court advises Ms. Clayton of the following:

VI. Further proceedings

Pending the outcome of Grand Jury proceedings, the Court sets this matter for an arraignment on March 30, 2017 at 9:30am.