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United States v. Kight

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

February 2, 2018

BENNETT L. KIGHT, Defendant.



         This matter is before the Court to determine whether Defendant Bennett L. Kight (“Defendant”) is competent to stand trial.

         I. BACKGROUND

         A. The Underlying Proceedings Against Defendant[1]

         From 1991 to May 2015, Defendant, a former partner at an Atlanta law firm, served as co-trustee of three trusts (the “Bunzl Trusts”) created for the benefit of certain members of the Bunzl family. ([87] at 3, 16). Defendant also served as the Bunzl family's attorney and managed other Bunzl family assets not held in the trusts. (Id.). In 2012, the Bunzl family began questioning Defendant's administration of the Bunzl Trusts and stewardship of other Bunzl assets. As a result, on February 8, 2013, Defendant and his co-trustee, William Lankford, filed a Petition for Interim Accounting in the Superior Court of Fulton County. (Civil Action Petition [54.3]). In their Petition, Defendant and Lankford asserted that they provided the trust beneficiaries with accountings for the trusts for 2004, 2005, 2010, and 2011. (Id. at 9). They sought approval of their Interim Accounting, a finding that their administration of the Bunzl Trusts was proper, and requested to be relieved of any liability based on their administration of the Bunzl Trusts. (Id. at 9, 12).

         On March 13, 2013, Frances Bunzl and the beneficiaries of the Bunzl Trusts (together, the “Bunzl Family”) filed their Response, Counterclaim, and Third Party Complaint (“Counterclaim”) in the civil action. ([54.4]). The Bunzl Family brought claims against Lankford and Defendant for, among other things, breach of fiduciary duty and fraud, based on their alleged mismanagement of, and self-dealing in, Bunzl assets, including those belonging to the Bunzl Trusts. (Id.) The Bunzl Family alleged that Defendant and Lankford formed various limited liability companies to conceal their theft of Bunzl assets and Defendant's self-dealing. (Id. at 31, 35-38). The Bunzl Family also asserted claims against Defendant's wife and Defendant's son for state law RICO violations and conspiracy. (Id. at 74-96).

         On August 1, 2014, counsel for the Bunzl Family in the civil action sent a letter to the United States Attorney for the Northern District of Georgia. ([48.9]). The letter describes the civil action and urges the Government to investigate Defendant's handling of the Bunzl Trusts and assets. (Id.). On May 11, 2015, Mr. Lankford resigned as co-trustee of the Bunzl Trusts, and on May 21, 2015, the judge in the civil action issued his order finding that, under Georgia law, good cause existed to remove Defendant from his position as co-trustee of the Bunzl Trusts.[2]

         The following year, on March 16, 2016, a federal grand jury returned an indictment [1] charging Defendant with one count of mail fraud in violation of 18 U.S.C. § 1341 (Count One), and on May 18, 2016, the grand jury returned a Superseding Indictment [15] charging Defendant with, in addition to mail fraud, one count of bank fraud, in violation of 18 U.S.C. § 1344 (Count Two). The Superseding Indictment alleges that, in January 2006, Kight “used his responsibility over [Frances Bunzl's] assets to misappropriate approximately $2 million from accounts owned and held for the benefit of [Frances Bunzl].” ([15] at 1). The Superseding Indictment further alleges that “[w]ithout informing [Frances Bunzl], [Defendant] obtained approximately $2 million by purporting to sell [Frances Bunzl] his former personal residence [in] . . . Atlanta, Georgia.” (Id.).

         On February 23, 2017, Defense counsel, for the first time, raised the issue of Defendant's competency in its Motion to Stay Proceedings to Determine Competency. ([59]). On July 12, 2017, the Court appointed Dr. Daniel Marson, director of the Alzheimer's Disease Center at the University of Alabama at Birmingham, to conduct a competency evaluation pursuant to 18 U.S.C. §§ 4241, 4247. ([74]). On September 6, 2017, Dr. Marson issued his report finding Defendant competent to stand trial. ([77]). On January 18, 2018, the Court held a hearing and heard testimony from Dr. Marson, Dr. Jason King, a neuropsychologist at Atlanta Comprehensive Neurology, and Dr. Chadwick Hales, a neurologist at Emory University.[3]

         B. Defendant's Alleged Cognitive Decline[4]

         In January 2008, Defendant suffered a left frontal intracranial hemorrhage. ([60.3] at 37-38). As a result, Defendant was hospitalized for three days. (Id.). By late February 2008, Dr. Christopher Russell of the Peachtree Neurological Clinic reported that Defendant “showed partial resolution of the hemorrhage, ” and that “[h]is symptoms [] essentially resolved and he now feels back to normal.” (Id. at 59). On March 14, 2008, Dr. Maurice Hanson reported that “[s]ince being at home, [Defendant] has done well. He has recovered almost back to his normal state, if not so. He has had no further complaints. He has had no weakness, ataxia, headache, or visual loss.” (Id. at 61). Dr. Hanson also reported that Defendant's “[m]emory and language functions were intact.” (Id. at 62). In May 2008, Defendant was seen by several physicians at Johns Hopkins Medicine as part of the Executive Health Program for review of his recent hemorrhage, prostate issues, decreased vision, and other chronic health problems. (See KIGHT001753-54). Defendant reported experiencing “total resolution of any symptoms.” (Id.). Dr. Stephen Sisson stated that Defendant “had a nice recovery” from the hemorrhage and Defendant's neurological exam was normal. (Id.).

         Nearly eight years later, in June 2016, and shortly after Defendant was indicted in the underlying criminal proceeding, Defendant was referred by defense counsel to submit to neuropsychological testing by Dr. King. Dr. King diagnosed Defendant with “Mild Cognitive Impairment [(“MCI”)], multiple domains.”[5]([112.4] at 153). Dr. King concluded that Defendant's “current level of deficient cognitive functioning is at the more severe end of the range that would be classified as MCI, and if he were to experience any further cognitive decline, he would be better classified as experiencing mild stage dementia.” (Id.). Dr. King also noted, however, that Defendant was “independent with all activities of daily living, including driving and keeping track of his medications without difficulty.” (Id. at 158). Dr. King wrote that Defendant's “administrative assistant has always handled their household finances” and Defendant “regularly walks for exercise.” (Id.). Dr. King recommended Defendant be evaluated by a neurologist to “further assess[] . . . the etiology of his cognitive impairment, and also to discuss potential medical treatment options for his cognitive symptoms.” (Id. at 161).

         In August 2016, Defendant saw Dr. Angela Ashley, a neurologist, at the Grady Hospital Neurology Clinic. ([112.6] at 23). Dr. Ashley reported that Defendant “continues to be independent for all IADLs but no longer manages finances.”[6] (Id.). In her progress notes, Dr. Ashley stated that Defendant was “oriented to person, place, and time, ” that his level of consciousness was “alert, ” and that his knowledge was “good.” (Id. at 24). She did note that he was “[p]ositive for confusion, dysphoric mood[, ] and decreased concentration.” (Id. at 23). Her report concludes that her “impression” of Defendant is that he suffers from vascular dementia and suggests that Defendant “[s]hould not manage financial affairs without supervision.” (Id. at 25). Defendant visited Dr. Ashley again on November 15, 2016. ([112.6] at 26). Dr. Ashley's report noted that Defendant was “oriented to person, place, and time, ” and had “normal strength.” (Id. at 28). Without any additional context or factual development, Dr. Ashley's report concludes that her “impression” is “[v]ascular dementia, patient unable to manage complex financial matters or make complex judgements [sic] secondary to cognitive deficits from large frontal hemorrhage in 2008.” (Id. at 30).

         On December 22, 2016, Defendant suffered three broken ribs and an “acute left small subdural hematoma”[7] when he fell while walking his dog. ([82.2] at 51). In February 2017, Defendant suffered a seizure and was admitted to the emergency room at Grady Hospital. ([82.5] at 24). The hospital report states that Defendant experienced “expressive aphasia[, ]” and “confus[ion].” ([82.5] at 27, 30). The report also notes, however, that upon discharge, Defendant's speech was “clear.” ([82.5] at 33). In July 2017, Defendant's wife sought, and was awarded, an unopposed guardianship/conservatorship appointment from the Fulton County Probate Court. ([112.6] at 74). The Fulton County Probate Court records show that a licensed clinical social worker evaluated Defendant in the course of the guardianship proceedings. (Id. at 70-71). The social worker's report notes the following:

Presently, [Defendant] requires assistance with all his Activities of [Daily] Living, (ADL) as well as assistance with his ambulation due to poor gait and balance. . . . He scored 17/30 on the SLUMS[8]indicating Dementia. . . . Long term recall was poor while short term recall was less impaired. He was not capable of calculating, problem solving or correctly drawing clock with correct time.

(Id. at 70). The report is based on a review of Defendant's medical records and an interview of Defendant's wife. (Id.).

         On August 8, 2017, Dr. Hales, a neurologist, evaluated Defendant at the Emory Neurology Cognitive Clinic. ([112.6] at 102). Dr. Hales reported Defendant was “having issues with managing medications as well as difficulty with completing basic tasks such as using [the] TV remote, household thermostats, personal electronics, and appliances[, ]” “[h]is wife is managing the finances now[, ]” and he “is no longer driving.” ([112.6] at 103). The report also notes Defendant scored 26 out of 51 on his ADLs, including because he required his meals to be prepared and served for him, did not participate in any housekeeping tasks, did not do laundry, and was “[i]ncapable of handling money.”[9] ([112.6] at 105). The report finds Defendant has “notable executive dysfunction as well as difficulty with memory.” (Id. at 108). Dr. Hales concludes that Defendant suffers from Alzheimer's disease and vascular dementia. (Id.). On November 6, 2017, Dr. Hales tested Defendant's cerebrospinal fluid obtained from a lumbar puncture test, which tested positive for biomarkers of Alzheimer's disease. ([112.6] at 136). Dr. Hales's report notes that “the absolute levels of CSF biomarkers as well as amount of atrophy does not correlate well with cognitive status or provide a very good predictive marker of how quickly something will progress in the future, ” and that, “[o]verall, these results provide confirmation of underlying AD pathology as a contributor to [Defendant's] cognitive decline.” (Id.).

         C. Dr. Marson's Independent Expert Report

         In mid-August 2017, Defendant traveled to Birmingham, Alabama for two days of testing and evaluation by the Court-appointed independent expert, Dr. Marson. On September 6, 2017, Dr. Marson issued his independent expert report regarding Defendant's overall cognitive functioning and competency to stand trial. ([77]). The report is “based on clinical interviews of [Defendant] and his wife[, ] Ms. Judith Kight, standardized cognitive, psychological and forensic testing of [Defendant], and review of multiple medical, legal, business, and other records.” ([77] at 2). The report notes, at the outset, that because Defendant's motivation during his cognitive testing was “variable and at times suboptimal, ” “the cognitive testing portion of the evaluation was viewed to be invalid.” ([77] at 22-23). Dr. Marson further notes that, as a result, Defendant's “cognitive test results . . . therefore very likely represent significant underestimates of [Defendant's] actual current level of cognitive functioning.” (Id. at 23).

         Defendant's “general cognitive functioning, ” as measured by the DRS-2, placed Defendant in the “severely impaired range.” ([77] at 23). In letter fluency, Defendant scored in the “severely impaired range” because he was only able to name two words beginning with the letter “A” in sixty seconds, and only five words beginning with the letter “F” in sixty seconds. (Id.). Defendant's spatial recall over three trials was “moderately impaired, ” and his response on one recall trial was “highly unusual and raised validity concerns.” (Id.). Defendant's copy of a clock face was “generally intact with some drift of numbers, ” but “[o]n a much simpler test involving copying of simple shapes, he was severely impaired.” (Id.). Defendant tested in the high average range for general abstraction, and his verbal reasoning fell in the average range. (Id. at 24). Finally, Defendant's executive function was “moderately impaired.” (Id.).

         Dr. Marson also administered the Evaluation of Competency to Stand Trial-Revised (“ECST-R”) as “a forensic measure relevant to competency to stand trial.” (Id. at 24). During the administration of the test, Defendant was “open, cooperative, and engaged, ” and “[s]ome of [Defendant's] responses reflected eloquent descriptions of his understanding of legal procedures and principles as they applied to his legal situation.” (Id. at 24). Dr. Marson found that Defendant had “no impairment” under any of the four scales that assess abilities and knowledge relevant to competency to stand trial. (Id. at 25-27). For example, Defendant's “responses reflected an intact working relationship with his attorney, ” Defendant could identify the roles of the different individuals involved in the courtroom proceedings, and Defendant had “a good understanding of the charges against him and the seriousness of the charges.” (Id.). Defendant “expressed a balanced view” with respect to whether “a jury would be for or against him, ” stating, “he believed that a jury on hearing the evidence would support him, but acknowledging that the amount of money claimed stolen (‘$2 million is a lot of money') could weigh ‘significantly against the assumption of innocence.'”[10] (Id. at 26).

         Dr. Marson made a number of clinical findings, including that (1) Defendant's medical and legal records and reported history are not consistent with a progressive memory disorder or dementia during the period June 2008 to May 2016; (2) Defendant's memory complaint in May 2016 and subsequent work-up were clinically atypical; (3) Defendant's testing with Dr. Marson revealed multiple cognitive test validity failures and other validity concerns; (4) Defendant likely does not suffer from aphasia, Alzheimer's disease, or a vascular dementia but may suffer from MCI; and (5) Defendant's possible mild depression does not impact his overall cognition. (Id. at 28-34). Dr. Marson concluded that Defendant is “not suffering from a mental disease or defect rendering him mentally incompetent and unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” (Id. at 34-36).


         A. Le ...

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