United States District Court, E.D. Michigan, Southern Division
ORDER FINDING DEFENDANT INCOMPETENT TO STAND
Victoria A. Roberts United States District Judge
matter is before the Court on Defendant's Motion for
Hearing to Determine Mental Competency. [Doc. # 16]. The
Court conducted a status conference on February 1, 2018.
Jacob Foster and Howard Locker appeared for the Government.
Defendant Kenneth Chun (“Chun”) was represented
by Suzan Gabbarra.
29, 2017, Chun was indicted on four counts of health care
fraud, in violation of 18 U.S.C. §§ 1347 and 2, and
six counts of distribution of a controlled substance, in
violation of 21 U.S.C. § 841(a)(1).
charges stem from Chun's ownership and control of
Bloomfield Internal Medicine Associates, P.C., a
participating health care provider with Medicare, Medicaid,
and Blue Cross Blue Shield of Michigan (“BCBS”).
The indictment alleges that he fraudulently billed Medicare,
Medicaid, and BCBS for services that were not reasonable,
medically necessary, documented, and/or actually provided.
Chun also allegedly distributed controlled substances,
including opioids, outside of the usual course of practice
and without a legitimate medical purpose.
October 16, 2017, Chun filed a motion for a hearing to
determine his mental competence, saying there was reasonable
cause to believe him to be incompetent to stand trial. The
Court granted Chun's motion, noting that at that time,
there was evidence that Chun has some form of mental defect.
However, there was no medical consensus on its severity or
how it might affect Chun's ability to understand the
nature and consequences of the proceedings against him.
Specifically, three different experts evaluated Chun. Dr. Ira
Schaer's evaluation revealed that Chun suffers from a
mental disorder that includes short-term memory loss and
expressive language defects. Dr. Schaer concluded that Chun
is not competent to stand trial. However, Drs. Peter
Lichtenberg and Laura Fadell also examined Chun, but
concluded that he suffered from Mild Cognitive Impairment,
less severe than the degree of impairment Dr. Schaer found.
November 30, 2017, the Court ordered a Psychiatric or
Psychological Examination under 18 U.S.C. § 4247(b).
This examination was completed by Dr. George R. Fleming. Dr.
Fleming found there was sufficient evidence from his
psychological examination of Chun to conclude that Chun's
ability to assist his counsel in his defense was impaired by
his inability to make informed decisions; difficulty
organizing information and learning new information; and
impaired capacity to form new memories. Dr. Fleming concluded
that Chun's ability to fully understand the nature and
consequences of the proceedings is questionable, beyond the
consequence of no longer being allowed to practice medicine.
competency hearing, the Court must, based on a
“preponderance of the evidence, ” make a
determination as to the defendant's competency to stand
trial. 18 U.S.C. § 4241(d). The Court's
determination is reviewable on appeal by a “clearly
erroneous” standard. U.S. v. Ford, 184 F.3d
566, 581 (6th Cir. 1999); U.S. v. Cook, 356 F.3d 913
(8th Cir. 2004).
competent, a defendant must have “sufficient present
ability to consult with his lawyer with a reasonable degree
of rational understanding” and “a rational as
well as factual understanding of the proceedings against
him.” Dusky v. United States, 362 U.S. 402,
402 (1960). “A criminal defendant may not be tried
unless he is competent.” Godinez v. Moran, 509
U.S. 389, 396 (1993).
Government filed a Statement In Advance of Status Conference
on January 31, 2018. In it, the Government states that the
parties agree that the preponderance standard is met, that
the record is complete, and that there is no need for a
hearing to determine Chun's competency. The parties also
agree that the Court “shall commit the defendant to the
custody of the Attorney General, ” who should
hospitalize Chun for treatment in a suitable facility
“for such 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 he
will attain the capacity to permit the proceedings to go
forward…” pursuant to 18 U.S.C. § 4212(d).
At the Status Conference held on February 1, 2018, defense
counsel confirmed agreement with the Government's
Court finds that Chun does not have a factual understanding
of the proceedings against him. Although he was able to tell
Dr. Fleming how an FBI agent came to his office and announced
they were taking away his medical license, he was unable to
say what part he played in this. He believes that the only
reason his license was taken was that he was writing too many
narcotics prescriptions, and does not seem to understand the
fraud and distribution charges pending against him. Chun is
substantially impaired in his ability to consult with and
assist counsel with a reasonable degree of rational
understanding; he also lacks a rational understanding of the
proceedings. So long as these impairments persist, Chun will
be unable to reasonably assist an attorney in his defense or
to represent himself at trial. The Court finds that the
requested commitment is reasonable.
parties disagree on whether there should be a reporting
requirement. Defense counsel requests that the Court order
the United States Bureau of Prisons (“BOP”) to
provide a status report within 30 days as to the progress of
its evaluation of Chun. The Government says that it has been
advised by representatives from the BOP that such a reporting
requirement would be premature and unduly burdensome.
Further, the Government argues that a reporting requirement
would be unnecessary, since the statutory scheme already
requires the BOP to update the Court of Chun's treatment
progress within a reasonable time.