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United States v. Mozee

United States District Court, N.D. Georgia, Atlanta Division

March 22, 2017

PAMELA MOZEE, Defendant.



         This matter is before the Court pursuant to the 18 U.S.C. § 3142(f) detention hearing held on March 21, 2017.

         I. BACKGROUND

         A. Background and Procedural History

         On December 7, 2015, Defendant Pamela Mozee (“Defendant”) pleaded not guilty to an eight-count indictment alleging that she mailed oxycodone and hydrocodone on four different dates, in violation of 21 U.S.C. §§ 841 and 843. The Government asserts that the evidence will show that, around 2013 and 2014, Defendant mailed over sixty (60) packages of oxycodone or hydrocodone to an individual in Alaska, in exchange for approximately $100, 368. The Government claims Defendant obtained the controlled substances both from prescriptions she received from doctors and from street dealers. (See March 21, 2017, Detention Hr'g Tr. (“Tr.”)).

         On December 7, 2015, Magistrate Judge Gerrilyn G. Brill issued an order setting the conditions of Defendant's release pending trial. ([7]). The conditions required, among other things, that Defendant (1) participate in a program of inpatient or outpatient substance abuse therapy and counseling if directed by the pretrial services office or supervising officer, (2) submit to mental health evaluations, and (3) participate in mental health treatment or counseling if recommended by pretrial services officers. (Id.).

         On August 24, 2016, Defendant's counsel filed a “Notice Regarding Competency” [40], stating that a preliminary evaluation by psychiatrist Dr. Julie Rand Dorney indicated that Defendant is not competent to stand trial. On September 9, 2016, the Court held a competency hearing. Based on the evidence presented at the hearing, the Court found, by a preponderance of the evidence, that Defendant was “presently suffering from a mental disease or defect rendering her unable to assist properly in her defense.” (September 9, 2016, Order [47] (“September 9th Order”)). The Court, adopting the requirements of 18 U.S.C. § 4241(d), ordered that Defendant be remanded to the custody of the Attorney General to undergo a mental evaluation. The Order stated:

[T]he Court commits the defendant to the custody of the Attorney General for placement in a suitable facility . . . (1) for a period, not to exceed four months, to determine whether there is a substantial probability that in the foreseeable future she will attain the capacity to permit the proceedings to go forward; and (2) for an additional reasonable period of time until (A) her mental condition is so improved that the trial may proceed, if the Court finds that there is a substantial probability that within such additional period of time she will attain the capacity to permit the proceedings to go forward; or (b) the pending charges against her are disposed of according to law; whichever is earlier.

(September 9th Order at 1-2) (emphasis added).

         On November 9, 2016, Defendant arrived at Federal Medical Center Carswell (“FMC Carswell”) in Fort Worth, Texas, for her evaluation. On March 3, 2017, Defendant's counsel notified the Court that Defendant will have been in FMC Carswell for four months as of March 9, 2017.[1]

         Section 4241(d)(1)(A) provides that a court may extend the four-month period for an additional reasonable period of time “if the court finds that there is a substantial probability that within such additional period of time [s]he will attain the capacity to permit the proceedings to go forward.” 18 U.S.C. § 4241(d)(1)(A). Because the Court was not provided sufficient information to determine under Section 4241(d)(1)(A) that it may extend the time for the Attorney General to maintain custody of Defendant, on March 7, 2017, the Court issued its order for the Government to show cause why Defendant should not be ordered released from the custody of the Attorney General. On March 9, 2017, one of Defendant's psychologists at FMC Carswell, Doctor Amor A. Correa, sent the Court a letter stating that Defendant suffers from schizophrenia, and that she will likely remain not competent to stand trial without receiving psychotropic medication, which she is unwilling to accept voluntarily. (Ex. 2). The letter stated that Defendant does not presently represent a danger to herself or others in the institution, and she thus cannot be forcibly medicated. The letter requests the Court decide, under Sell v. United States, 539 U.S. 166 (2003), whether Defendant can be forcibly medicated to render her competent.

         On March 9, 2017, the Court held a teleconference, during which the Court determined that the Government failed to provide sufficient evidence to allow the Court to extend the four-month commitment period under Section 4241(d)(1)(A), that Defendant should be transferred to Atlanta, and that the Court would hold both a detention hearing and a hearing pursuant to Sell. On March 10, 2017, the Court issued its Order [56] releasing Defendant from the commitment, requiring the United States Marshals Service to return Defendant to Atlanta, and requiring that Defendant be detained in an appropriate facility pursuant to 18 U.S.C. § 3142(e) pending a Section 3142(f) hearing.[2]

         On March 21, 2017, the Court held a hearing, pursuant to Section 3142(f), regarding Defendant's detention. The hearing was held to determine whether, given the information provided to the Court regarding Defendant's mental condition, Defendant constitutes a danger to certain individuals or the community and whether she poses a flight risk, such that continued pre-trial detention is appropriate. Defendant was present at the hearing.[3] A significant focus of the hearing was on whether Defendant, prior to her commitment, complied with the terms of her pre-trial release and her current capacity to control her conduct without her medication.[4]

         B. Hearing Evidence and Testimony

         Defendant's counsel argued that, prior to Defendant's commitment, she complied with the terms of release by, among other things, making all required court appearances, meeting with probation officers, not committing any crimes, and meeting with her licensed counselor. (See Tr. 12). Defendant's counsel explained that Defendant was late for only one hearing, which was due to transportation issues. (Tr. 11). Defendant's counsel also represents that Defendant's family has offered their support for Defendant, and that they will encourage her to abide by the terms of her release and to take her medication. (See Tr. 57-58). Defendant's counsel represents that Defendant's home remains available to her. Defendant's counsel, and Defendant herself, also represent that Defendant will now take her medication. (Tr. 58).

         The Government argued generally that Defendant's mental condition and behavior have worsened and that she thus poses a threat to others or the community and that she is a flight risk. In support of its argument, the Government presented several exhibits. The Government's Exhibit 1 is an August 27, 2016, letter from Dr. Dorney to Defendant's counsel, in which Dr. Dorney opines regarding delusions Defendant suffers, which include delusions related to government investigators involved in her current offense. Exhibit 2 is the March 9, 2017, letter from Dr. Correa to the Court described above. Exhibit 3 is a letter from Defendant to the Court, in which Defendant derogatorily characterizes her probation officer, Dennis Tudor. (Ex. 3 at 1). Exhibit 4 is a message, dated December 9, 2016, written by Defendant in which she accuses her counsel of being an “abusive lier [sic], ” and “the devil, ” among other accusations. (Ex. 4 at 1). Defendant also stated that she believes her counsel and his investigator “tried to kill me on August 4, 2016.” (Id. at 3). Exhibit 5 is Dr. Correa's March 21, 2017, final evaluation of Defendant, in which Dr. Correa described Defendant's delusions, which included that the nurses at FMC Carswell kill people and that her attorney “kidnapped” her to FMC Carswell in a conspiracy with postal inspectors, investigators, and probation officers who have sexually assaulted her and attempted to kill her. (Ex. 5 at 8, 11). The Dr. Correa opines that Defendant suffers from schizophrenia, currently in acute episode. (Id. at 10). She concludes that Defendant is unlikely to become competent to stand trial in the foreseeable future without psychiatric medication. (Id. at 11). The Government argues that Defendant's fear of the proceedings and individuals involved in them show she could fail to appear at trial. (See Tr. 27-28).

         The Government also called two witnesses, Tammie Boone and Dennis Tudor. Ms. Boone and Mr. Tudor were formerly Defendant's probation officers. Ms. Boone testified that she received the case on transfer from Mr. Tudor. (Tr. 33). She visited Defendant twice, once successfully and the other unsuccessfully. (Tr. 33).[5] During her successful visit on July 13, 2016, Defendant was upset and made several allegations toward individuals involved in her case, including agents, the inspector, and Mr. Tudor. (Tr. 33-34). She testified that, though Defendant made bizarre allegations, Defendant never threatened her or other probation officers. (Tr. 36). She testified that, over time, the allegations against her became more “intense, ” and that, after Defendant accused her and Mr. Tudor of “pulling a gun on [Defendant], ” Ms. Boone was instructed by her supervisor to cease contact with Defendant. (Tr. 37). Ms. Boone testified that she felt Defendant's conduct was “growing and increasing to the point that concerned me for my safety.” (Tr. 38).

         Mr. Tudor was Defendant's probation officer from January 8, 2016, through June 30, 2016. (Tr. 39). He testified that Defendant was generally cooperative during his visits with her. (Tr. 41). He related that he found out from a prior officer that Defendant had brass knuckles in her home, and that, after speaking with her and her attorney, the brass knuckles were removed from her home by Defendant. (Tr. 42). He testified that Defendant never threatened him with the brass knuckles. (Tr. 42). Mr. Tudor also testified that, after his visits, Defendant often sent him e-mails or text messages containing various allegations, including that he had had inappropriate contact with Defendant. (Tr. 42-43). Because of these allegations, Mr. Tudor began taking another officer with him during his visits. (Tr. 42). Because of Defendant's accusations and her ...

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