United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE
matter is before the Court to determine whether Defendant
Bennett L. Kight (“Defendant”) is competent to
The Underlying Proceedings Against
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. ( 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).
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).
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
following year, on March 16, 2016, a federal grand jury
returned an indictment  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  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].” ( 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.).
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. (). 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. (). On
September 6, 2017, Dr. Marson issued his report finding
Defendant competent to stand trial. (). 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.
Defendant's Alleged Cognitive
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.).
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.”([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).
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.” (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
December 22, 2016, Defendant suffered three broken ribs and
an “acute left small subdural
hematoma” 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 SLUMSindicating 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.).
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.” ([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.”
Dr. Marson's Independent Expert Report
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. (). 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.” ( 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.” ( 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).
“general cognitive functioning, ” as measured by
the DRS-2, placed Defendant in the “severely impaired
range.” ( 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.).
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.'” (Id. at 26).
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).