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United States v. Brennan

United States Court of Appeals, Second Circuit

July 2, 2019

UNITED STATES OF AMERICA, Appellee,
v.
DONALD BRENNAN, Defendant-Appellant.

          Argued: April 16, 2019

         Donald Brennan brings an interlocutory appeal of the January 25, 2019, order of the United States District Court for the Western District of New York (Elizabeth A. Wolford, J.) committing him to the custody of the Attorney General for psychiatric treatment and evaluation pursuant to 18 U.S.C. § 4241(d). Brennan argues that the district court's commitment order violates his due process rights because a forensic psychologist, who conducted a court-ordered psychiatric evaluation of Brennan's present competency to stand trial, stated that Brennan's disorder was degenerative and would not significantly improve with treatment. Brennan's argument fails, however, because, pursuant to 18 U.S.C. §§ 4241 et seq., commitment to assess future competency is mandatory, and only the district court, and not a forensic psychologist, can determine whether Brennan will regain competency in the foreseeable future. In the absence of such a decision from the district court, Brennan's commitment to the custody of the Attorney General for treatment and further evaluation is reasonably related to determining whether Brennan will regain competency in the foreseeable future, and the district court constitutionally applied Section 4241(d)'s commitment procedures to Brennan. We AFFIRM the order of the district court committing Brennan to the custody of the Attorney General under Section 4241(d).

         Affirmed.

          MARTIN J. VOGELBAUM, Federal Public Defender's Office, Western District of New York, Buffalo, NY, for Defendant-Appellant.

          MONICA J. RICHARDS, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for Appellee.

          Before: KEARSE, WINTER, and POOLER, Circuit Judges

          POOLER, Circuit Judge:

         Donald Brennan brings an interlocutory appeal of the January 25, 2019, order of the United States District Court for the Western District of New York (Elizabeth A. Wolford, J.) committing him to the custody of the Attorney General for psychiatric treatment and evaluation pursuant to 18 U.S.C. § 4241(d). Brennan argues that the district court's commitment order violates his due process rights because a forensic psychologist, who conducted a court-ordered psychiatric evaluation of Brennan's present competency to stand trial, stated that Brennan's disorder was degenerative and would not significantly improve with treatment. Brennan's argument fails, however, because, pursuant to 18 U.S.C. §§ 4241 et seq., commitment to assess future competency is mandatory, and only the district court, and not a forensic psychologist, can determine whether Brennan will regain competency in the foreseeable future. In the absence of such a decision from the district court, Brennan's commitment to the custody of the Attorney General for treatment and further evaluation is reasonably related to determining whether Brennan will regain competency in the foreseeable future, and the district court constitutionally applied Section 4241(d)'s commitment procedures to Brennan. We AFFIRM the order of the district court committing Brennan to the custody of the Attorney General under Section 4241(d).

         BACKGROUND

         Donald Brennan is charged with failing to register as a sex offender, as required by the Sex Offender Registration and Notification Act, when he moved from Lake City, Florida, to Buffalo, New York. App'x at 9-13. Brennan is required to register as a sex offender for life following his 2014 conviction for lewd molestation of an elderly or disabled person in the third degree. The unfortunate facts of this case are related to Brennan's long and complicated history of severe alcohol abuse.

         The current proceeding arises from Brennan's encounter with police on February 15, 2018, when authorities followed up on a report that a man was disoriented and covered in excrement in Cheektowaga, New York, and discovered Brennan, who was homeless, on the sidewalk outside a strip mall. About a week after encountering Brennan on the streets of Cheektowaga, the police inquired with the New York State Board of Examiners of Sex Offenders regarding whether Brennan was required to register as a sex offender, and the Board confirmed that he was required to do so. The authorities then determined that Brennan was not properly registered in New York and brought a failure-to- register charge against Brennan.

         Brennan was appointed a federal defender, but his counsel reported to the court that Brennan's mental limitations prohibited him from assisting counsel in preparing his case. Counsel informed the court that he had not been able to meaningfully discuss the case with Brennan because Brennan was suffering from "some pretty significant memory issues and issues in general regarding his circumstances right now." App'x at 37. Brennan's testimony before the court confirmed counsel's concerns, as Brennan told the court that he did not know what was going on and that at times he did not even remember to whom he was talking. Defense counsel moved for a competency hearing and filed a notice of intent to assert an insanity defense, at which point the government moved for an evaluation of Brennan's sanity at the time of the offense. The district court ordered a competency evaluation and an evaluation of whether Brennan was insane at the time of the offense.

         In the fall of 2018, Dr. Samantha E. DiMisa, a forensic psychologist with the Bureau of Prisons, evaluated Brennan's competency to stand trial and his criminal responsibility. Dr. DiMisa's report documented Brennan's long history of alcoholism. Her interviews with Brennan revealed that he began drinking at age 11 and around the time of his arrest at age 58 was consuming as many as 24 cans of beer in a single day. Brennan repeatedly required emergency medical attention as a consequence of his alcoholism, and his attempts at rehabilitation were unsuccessful.

         Dr. DiMisa conducted a series of psychological tests to measure Brennan's cognitive functioning. She concluded that Brennan exhibited marked difficulties in cognitive function and memory and that he suffered from low intelligence. Brennan had severe memory deficits that meant he was not aware of several significant events in his life, including a lung cancer diagnosis and a related operation, despite prompting. Brennan also denied any ...


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