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United States v. Chun

United States District Court, E.D. Michigan, Southern Division

December 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNETH CHUN, Defendant.

          ORDER FINDING DEFENDANT COMPETENT TO STAND TRIAL

          VICTORIA A. ROBERTS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         The Court's duty to determine Kenneth Chun's (“Chun”) competency to stand trial has become inextricably woven in a battle of experts - neuropsychologists, psychologists, and neurologists.

         Representing the neuropsychologists are Doctors Robert Denney, Laura Faddell, and Peter Lichtenberg.

         Representing the psychologists are Doctors George Fleming, Ira Schaer, Jacob Chavez, and Robert Denney.

         Finally, the neurologists providing expert evidence are Doctors Curtis Schreiber and Arthur Emmer.

         Dr. Emmer is Chun's treating neurologist. The remaining doctors were retained by the United States, Chun or the Court to perform psychological evaluations of Chun and/or to review his medical records.

         With one exception, all doctors rendered diagnoses of Chun. There have been almost as many diagnoses rendered over the last twenty months as there are doctors involved in this case.

Exam Date(s)

Doctor

Discipline

Diagnosis

June 12, 2017

Dr. Emmer

Board Certified Neurologist

(1) Neurological examination results are normal

(2) Differential diagnosis for symptoms includes nonspecific age-related memory loss, Mild Cognitive Impairment versus dementia

June 22 & 26, 2017

Dr. Fadell

Neuropsychologist Clinical Psychologist

(1) Mild Cognitive Impairment, Amnestic Type

(2) Aphasia, Anomic Type

June 23, 2017

Dr. Lichtenberg

Neuropsychologist

Mild Neurocognitive Disorder (a/ka Mild Cognitive Impairment)

July 07, 2017

Dr. Emmer

Board Certified Neurologist

(1) No change in his status from June 12, 2017 visit

(2) “Memory loss consistent with underlying cognitive impairment. Workup for other neurologic causes has been negative. Early dementia as alternative possibility. A diagnosis of such cannot be made at this time.”

August 25, 2017

Dr. Emmer

Board Certified

Neurologist Memory loss - Symptoms unchanged from prior visits and neurological exam results were normal (“The patient has a one-two year history of memory loss, consistent with cognitive impairment versus early dementia. A diagnosis of the latter cannot be made.”)

September 13, 20, & 21 2017

Dr. Schaer

Forensic Psychologist

No differential diagnosis

December 4, 2017

Dr. Emmer

Board Certified Neurologist

Memory loss - “Differential diagnosis includes cognitive impairment versus early dementia. A diagnosis of the latter cannot be made. Symptoms are clinically unchanged at this time.”

December 20 & 21, 2017

Dr. Fleming

Clinical Psychologist

(1) Major Neurocognitive Disorder without behavioral disturbances

(2) Probable Alzheimer's Disease

August 30 & September 4, 2018

Dr. Fadell

Neuropsychologist Clinical Psychologist

(1) Vascular Dementia

(2) Aphasia, Anomic type

August 3, 2018

Dr. Chavez

Forensic Psychologist

Mild Neurocognitive Disorder, Vascular Disease

August 8, 2018

Dr. Emmer

Board Certified Neurologist

Memory loss - Progression of his neurodegenerative disorder, conversion of Mild Cognitive Impairment to dementia

August 21, 2018

Dr. Schaer

Forensic Psychologist

(1) No differential diagnosis

(2) Chun is currently suffering from a “mental disease”

October 16, 2018

Dr. Emmer

Board Certified Neurologist

Memory loss - Symptoms are consistent with dementia. Differential diagnosis includes: vascular dementia, Alzheimer's, or mixed dementia

November 15 & 21 2018

Dr. Fleming

Clinical Psychologist

(1) Major Neurocognitive Disorder without behavioral disturbances

(2) Probable Alzheimer's Disease

January 15, 2019

Dr. Emmer

Board Certified Neurologist

Memory loss - This patient has dementia, mild to moderate. It is stable at this time.

February 25, 2019

Dr. Chavez

Forensic Psychologist

Major Neurocognitive Disorder, Vascular Disease

“Unfortunately, . . . I was unable to include formal testing in the evaluation of Dr. Chun. This is a substantial limitation of the current assessment.”

“Unfortunately, given the nature of the evaluation and additional barriers, further neuropsychological screening/testing could not be completed to more fully evaluate Dr. Chun's current memory capacities.”

“I believe an additional period of evaluation in a structured setting is needed to clarify his abilities. There were significant limitations in my current evaluation including . . . the inability to more extensively evaluate the defendant's cognitive functioning using neuropsychological instruments. Another major limitation of all previous evaluations, including my own, is the defendant has not been assessed by collaborating forensic and neuropsychologists. . . . I recommend the defendant be sent for another period of competency restoration and evaluation . . . where a neuropsychologist is on staff who can collaborate with the evaluating forensic psychologist.”

May 14, 2019

Dr. Emmer

Board Certified Neurologist

Memory loss - “[P]atient has dementia, mild to moderate. There has been mild progression since the last visit.”

May 21, 2019

Dr. Denney

Board Certified: Neuropsychologist and Forensic Psychologist

(1) Malingering

(2) Mild Neurocognitive Disorder (Mild Cognitive Impairment) → Regarding Mild Cognitive Impairment, research demonstrates that a significant percentage of people with Mild Cognitive Impairment, either of the amnestic type or vascular type, continue with Mild Cognitive Impairment and do not convert to dementia. Chun's past cognitive screening tests at Dr. Emmer's office demonstrate clear stability over the past two and half years. It is also possible that Mild Cognitive Impairment could slowly convert to a dementing condition.

September 27, 2019

Dr. Schreiber

Board Certified Neurologist

(1) The brain MRI scan images show changes compatible with normal age-related white matter changes and the images do not support a vascular Mild Cognitive Impairment or vascular dementia diagnosis.

(2) The EEG is reported as being abnormal and the pattern of findings is considered to be unexpected with Mild Cognitive Impairment or mild dementia.

(3) The cognitive screening instruments used to evaluate Dr. Chun's cognition always indicated results in the range of Mild Cognitive Impairment.

(4) Neurocognitive test batteries were reported to show more significant deficits than seen on the cognitive screening tests, which suggest over-reporting of symptoms to key examiners.

November 3, 2019

Dr. Fleming

Clinical Psychologist

(1) Major Neurocognitive Disorders without behavioral disturbances

(2) Probable Alzheimer's Disease

         There is some agreement: all doctors believe that Chun suffers from a mental impairment, and that the impairment is at least a mild cognitive disorder.

         In relevant part, the diagnostic criteria for Mild Neurocognitive Disorder (a/k/a Mild Cognitive Impairment) includes:

A. Evidence of modest cognitive decline from a previous level of performance in one or more cognitive domains (complex attention, executive function, learning and memory, language, perceptual motor, or social cognition) based on:
1. Concern of the individual, a knowledgeable informant, or the clinician that there has been a mild decline in cognitive function; and
2. A modest impairment in cognitive performance, preferably documented by standardized neuropsychological testing or, in its absence, another quantified clinical assessment.
B. The cognitive deficits do not interfere with capacity for independence in everyday activities (i.e., complex instrumental activities of daily living such as paying bills or managing medications are preserved, but greater effort, compensatory strategies, or accommodation may be required).

         Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 605 (5th ed. 2013) (“DSM-V”).

         In evaluating competence to stand trial, a decision that the defendant has a mental disease or disorder, however, is only the starting point. The ultimate decision for the Court is whether Chun is competent to stand trial: whether his mental disorder affects his ability to understand the nature and consequences of the legal proceedings against him, and to rationally assist his counsel.

         The Court finds that while Chun does have a cognitive disorder, he is competent to stand trial.

         With all experts on board, the Court conducted a competency hearing on November 25-26 and December 4, 2019.

         II. BACKGROUND

         On June 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).

         The 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 the usual course of practice and without legitimate medical purposes.

         On October 16, 2017, Chun filed a motion for a hearing to determine his mental competence; he said there was reasonable cause to believe he was 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 had evaluated Chun by that time. Dr. Ira Schaer's evaluation revealed that Chun suffered from a mental disorder that included short-term memory loss and expressive language defects. Dr. Schaer concluded that Chun was not competent to stand trial.

         However, Drs. Peter Lichtenberg and Laura Fadell also examined Chun in the same time frame. They concluded Chun suffered from Mild Cognitive Impairment, less severe than the degree of impairment Dr. Schaer found.

         On 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; his difficulty organizing information and learning new information; and his impaired capacity to form new memories. Dr. Fleming concluded that Chun's ability to fully understand the nature and consequences of the proceedings was questionable.

         In light of Dr. Fleming's opinion, the parties agreed that Chun would be hospitalized for a reasonable period of time - not to exceed four months - to determine if there was a substantial probability that in the foreseeable future, Chun would attain the capacity to permit the proceedings to go forward. See 18 U.S.C. § 4241(d). The Court entered its order finding Chun incompetent to stand trial.

         Chun was committed to the United States Medical Center for Federal Prisoners, Springfield Missouri, from April 2, 2018 until the Court ordered his release on August 6, 2018. This release was based on the Certificate of Competency signed by M.D. Smith, Warden of the Medical Center; the Warden certified that Chun was able to understand the nature and consequences of the proceedings against him and assist in the defense of the claims brought against him by the United States.

         Shortly after, the defense asked the Court to conduct a hearing to determine mental competency. The defense said “reasonable cause” still existed to believe Chun was incompetent to stand trial. See 18 U.S.C. § 4241(a). Chun had continued to undergo expert evaluation and treatment by his own doctors.

         On October 30, 2018, the Court ordered an updated evaluation of Chun by Dr. Fleming before it held a competency hearing. Also, he was re-examined by Dr. Jacob Chavez, who supervised Chun's initial restoration to competency.

         The Court set a competency hearing for April 19, 2019, but the government moved to adjourn that hearing and have Chun evaluated by its own experts.

         The Court granted the government's motion and ordered that the evaluation and examination of Chun could include cognitive testing and could involve active collaboration between the disciplines of psychology, neuropsychology and forensic psychology. The Court also ordered the government experts to file full reports concerning both Chun's cognitive functioning and competency to stand trial.

         To that end, Dr. Denney evaluated Chun, and Dr. Schreiber reviewed Chun's medical records and brain scans.

         Above, the Court sets forth the various doctors who examined Dr. Chun, the dates of examinations and testing (for Dr. Schreiber, the date of his report), and their diagnoses.

         In its analysis, the Court will elaborate on these diagnoses and on competency determinations made by some experts.

         III. ANALYSIS

         After a competency hearing, the Court must make a determination concerning defendant's competency to stand trial based on a “preponderance of the evidence.” 18 U.S.C. § 4241(d). “A criminal defendant may not be tried unless he is competent.” Godinez v. Moran, 509 U.S. 389, 396 (1993).

         To be 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). In determining competence, the Court should consider “several factors, including ‘evidence of a defendant's irrational behavior, [the defendant's] demeanor at trial, and any prior medical opinion on competence to stand trial.'” United States v. Miller, 531 F.3d 340, 348 (6th Cir. 2008) (quoting Drope v. Missouri, 420 U.S. 162, 180 (1975)).

         This “Dusky standard” indicates that a defendant is incompetent to stand trial if, because of mental illness or other condition, defendant is unable to: (1) understand the nature and objectives of the court proceedings or (2) assist in his ...


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