United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE.
Israel Alvarez-Suarez moves to dismiss the indictment in this
matter. ECF No. 23. The government opposes the motion and
requests Alvarez-Suarez be committed under 18 U.S.C. §
4241(d) for hospitalization purposes. ECF No. 26.
Alvarez-Suarez opposes the government's request in his
reply. ECF No. 27. Based on an earlier finding that
Alvarez-Suarez is incompetent to stand trial, the court now
denies the motion to dismiss the indictment and orders
Alvarez-Suarez committed to the custody of the Attorney
General as required by 18 U.S.C. § 4241(d).
was indicted on the charge of being a deported alien found
unlawfully in the United States in violation of 8 U.S.C.
§ 1326(a). ECF No. 1. At his initial appearance,
Alvarez-Suarez's counsel voiced concern regarding
Alvarez-Suarez's competency to stand trial. ECF No. 5.
The court then held a status conference regarding
Alvarez-Suarez's competency in September 2017. ECF No.
18. Based on the discussions at the status conference, the
court ordered the transportation of Alvarez-Suarez to a
suitable facility in order to determine whether he suffered
from a mental disease or defect rendering him mentally
incompetent to stand trial. ECF No. 19. Alvarez-Suarez was
subsequently transported to Metropolitan Correctional Center
in San Diego, California and was then evaluated by Alicia
Gilbert, Ph.D., a forensic psychologist. ECF No. 24. Dr.
Gilbert opined that Alvarez-Suarez's “present
ability to understand the nature and consequences of the
court proceedings brought against him is substantially
impaired by symptoms associated with Schizophrenia.”
Id. at 14.
was not the first time Alvarez-Suarez underwent a
psychological evaluation in relation to criminal charges.
Five other matters against Alvarez-Suarez were dismissed-upon
the government's motions-due to competency issues. ECF
No. 23; ECF No. 23, Exs. A, C, D, E; ECF No. 26 at 3; ECF No.
27 at 3. Dr. Gilbert also documented the history of
Alvarez-Suarez's competency evaluations in her report.
ECF No. 24. She stated that Alvarez-Suarez has now undergone
eight court-ordered evaluations since 2001 and has
“over five hundred contacts with the Psychology
Services staff across several [Federal Bureau of Prisons]
facilities.” Id. at 5. She also reviewed six
forensic reports about psychological evaluations of
Alvarez-Suarez from 2001 to 2016. Id. at 6-7. The
reports summarize Alvarez-Suarez's diagnoses of
schizophrenia. Id. The reports also summarize a
history of Alvarez-Suarez being found incompetent to stand
trial and a history of opinions that he lacked a substantial
probability of regaining competency in the foreseeable
future. Id. Alvarez-Suarez's mental-health
history and prior evaluations contributed to Dr.
Gilbert's opinion that “attempts at restoration of
[Alvarez-Suarez's] competency will be
unsuccessful.” Id. at 14.
the completion of his psychological evaluation,
Alvarez-Suarez filed the instant motion to dismiss the
indictment. ECF No. 23. The court then held a second status
conference regarding Alvarez-Suarez's competency in
December 2017. ECF No. 25. At the hearing, counsel from the
defense and from the government agreed that Alvarez-Suarez is
not competent to stand trial. Id. Based on the
parties' representations and the report authored by Dr.
Gilbert, the court deemed Alvarez-Suarez incompetent.
Id. The government then made an oral motion for
hospitalization under 18 U.S.C. § 4241(d). Id.
Alvarez-Suarez opposed the oral motion and argued for
dismissal based on the previously filed motion to dismiss.
Id. The court ordered the parties to complete the
briefing on the motion to dismiss and to brief the oral
motion regarding hospitalization, declining to rule until
such briefing was completed. Id. The government then
filed its opposition to the motion to dismiss and presented
arguments regarding the request for hospitalization. ECF No.
26. Alvarez-Suarez filed a reply. ECF No. 27.
parties dispute whether hospitalization is necessary to
determine if Alvarez-Suarez may be restored to a competent
state in the foreseeable future. To advocate for dismissal,
Alvarez-Suarez points to the five other matters resulting in
dismissal based on competency concerns as well as Dr.
Gilbert's opinion that restoration of competency is
unlikely for Alvarez-Suarez in the foreseeable future. ECF
Nos. 23, 27. The government contends that the court must
commit Alvarez-Suarez under 18 U.S.C. § 4241(d) to
determine if there is a substantial probability that
Alvarez-Suarez's competency may be restored in the
foreseeable future. ECF No. 26. While the court acknowledges
that Alvarez-Suarez's mental-health history and Dr.
Gilbert's opinions indicate that committing
Alvarez-Suarez may be futile, the court agrees with the
U.S.C. § 4241(d) requires the court to commit a
defendant to the Attorney General's custody for
hospitalization purposes upon a finding of incompetence. 18
U.S.C. § 4241(d). The statute is not discretionary; the
statute provides for “mandatory commitment of a
defendant, who has been deemed incompetent, for study of the
defendant's potential for restorability to
competence.” United States v. LKAV, 712 F.3d
436, 441 (9th Cir. 2013); see also United States v.
Strong, 489 F.3d 1055, 1060-63 (9th Cir. 2007)
(explaining “mandatory commitment” under 18
U.S.C. § 4241(d) is constitutional); United States
v. Anderson, 679 F. App'x 711 (10th Cir. 2017)
(holding 18 U.S.C. § 4241(d) is not discretionary but
rather mandates commitment of a defendant previously deemed
incompetent). A determination that a defendant is or is not
restorable to mental competency “requires a more
careful and 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 punctuation marks and citations
was deemed incompetent at the status conference on December
4, 2017. He concedes that the court is therefore bound by 18
U.S.C. § 4241(d) unless the government moves to dismiss
this case. ECF No. 27 at 4. But the government has not moved
to dismiss this case. 18 U.S.C. § 4241(d) requires a
further commitment to allow medical professionals to make a
“more careful and accurate diagnosis” than that
which was needed to deem Alvarez-Suarez incompetent earlier
in this matter. Significantly, this stage has yet to be
undertaken in this case (nor in any of the other prior
criminal proceedings against the defendant). It is not for
the court to “second guess” the outcome of such a
commitment, particularly where one is required under 18
U.S.C. § 4241(d). The motion to dismiss the indictment
is therefore denied and the government's request for
commitment is granted.
THEREFORE ORDERED that Israel Alvarez-Suarez's motion to
dismiss the indictment (ECF No. 23) is
FURTHER ORDERED that, in accordance with 18 U.S.C. §
4241(d)(1), Alvarez-Suarez is committed to the custody of the
Attorney General who shall hospitalize the defendant for
treatment in a suitable facility for 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 Alvarez-Suarez will attain the capacity to
permit the proceedings to go forward.
FURTHER ORDERED that the Federal Bureau of Prisons provide
its report to the court and to counsel upon the conclusion of