United States District Court, D. Colorado
Monet Wayne, Esq., Marci G. LaBranche Ridley, McGreevy &
Winocur, P.C. Attorneys for Defendant Hybertson
DEFENDANT HYBERTSON'S UNOPPOSED MOTION
FOR AN IMMEDIATE COMPETENCY EVALUATION PURSUANT TO 18
U.S.C.A. § 4241(a) AND TO VACATE THE CURRENT CASE
DEADLINES, INCLUDING TRIAL, AND SET A STATUS CONFERENCE IN 60
Hybertson, through his undersigned counsel, and pursuant to
18 U.S.C.A. § 4241(a) requests this Court appoint a
psychiatrist, specifically Dr. Susan Bograd, who has been
previously appointed under the CJA act, for the sole purpose
of a competency evaluation. Undersigned counsel makes this
request on the following grounds:
U.S.C.A. § 4241 states:
(a) Motion to determine competency of
defendant.--At any time after the commencement of a
prosecution for an offense and prior to the sentencing of the
defendant, or at any time after the commencement of probation
or supervised release and prior to the completion of the
sentence, the defendant or the attorney for the Government
may file a motion for a hearing to determine the mental
competency of the defendant. The court shall grant the
motion, or shall order such a hearing on its own motion, if
there is reasonable cause to believe that the defendant may
presently be suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he is
unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense.
the Court is undoubtedly aware, a motion to determine
competency must establish reasonable cause to believe the
defendant presently may be suffering from mental disease or
defect rendering him incompetent. If the motion establishes
reasonable cause, the court "shall grant the
motion" and may order an initial competency evaluation.
Defense counsel may make the motion even if against the
client's wishes, as in the present case.
motion is being brought on behalf of Mr. Hybertson by his
presently appointed counsel after many months of
communications with, and observations of, Mr. Hybertson, as
well as information recently provided by family members
corroborating counsel's belief as to his competency. This
includes, but is not limited to, Mr. Hybertson's presence
during his recent court appearances on May 7, 2018 in front
of this Honorable court as well as during his detention
hearing in front of the Honorable Judge Mix.
April 18, 2017 Mr. Hybertson was granted a $50, 000.00
unsecured bond. Mr. Hybertson informed the Court at his
initial arraignment that he would represent himself, entered
a plea of not guilty on all counts of the Indictment, and
asked that it be noted on the record that he was “not
the surety.” (Doc.10).
September 22, 2017, Mr. Hybertson agreed to the appointment
of CJA counsel. Since that time Mr. Hybertson has repeatedly:
(1) exhibited difficulties understanding and communicating
with his counsel about the legal and factual issues in his
case; (2) demonstrated an inability to assist counsel in most
simple aspects of investigating his case and preparing for
trial; and (3) appeared unable to discuss or consider
undersigned counsel's advice. Mr. Hybertson appears to
lack the ability to assist his lawyers in any meaningful way
as it relates to his defense. Undersigned counsel would not
characterize any of this conduct as uncooperative.
Although undersigned counsel has previously represented
“tax protestors” - which Mr. Hybertson adamantly
contends he is not - counsel recognizes that often this
conduct is simply conduct that is consistent with a deep
disagreement with the government. However, Mr. Hybertson is
different in his conduct. Undersigned counsel believes that
the delusions, paranoia and confusion that Mr. Hybertson
expresses may in fact be supported by a mental health issue
also connected with his extreme failing health issues. The
health issues are documented and real. Whatever the cause, it
has become clear at this critical juncture of representation
that Mr. Hybertson's ongoing conduct is directly
interfering with counsel's effective representation of
Mr. Hybertson particularly as it relates for trying to
prepare for trial.
way of the most recent example, the Government has relayed
and attached appropriate deadlines for a response. Despite
multiple attempts, undersigned counsel is unable to
effectively communicate with their client as it relates to
the process of moving forward to trial and the consequences
of guilty verdicts, specifically as it relates to
incarceration. Any further disclosure without ex
parte protection would compromise Mr.
Hybertson's attorneys' confidentiality obligation.
Undersigned counsel requests that this initial evaluation be
completed by a local psychiatrist who has already established
contact with Mr. Hybertson. This request is not only
economically efficient but, due to concerns Mr. Hybertson has
expressed that border on paranoia, it makes practicable sense
to conduct an evaluation with someone who is previously known
to Mr. Hybertson.
Undersigned counsel requests that any competency evaluation
be limited to an inquiry strictly related to the topic of
whether Mr. Hybertson is presently suffering from a mental
illness which renders him unable to comprehend the nature and
consequences of the proceeding against him or reasonably to
assist in his defense. Godinez v. Moran, 113 S.Ct.
2680 (1993). Further, undersigned counsel request that the
language of any order prohibit any psychiatrist from
questioning Mr. Hybertson about the instant offense, Mr.
Hybertson's activities related to the offense (both
before and after the indictment), any prior bad acts, and any
other area which does not directly concern competency.
Hybertson, through undersigned counsel, would object to
object to dual evaluations addressing competency and sanity
in the same evaluation by the same doctor. These examinations
must remain separate and be done in a separate matter. 18
U.S.C. §4241(f). See U.S. v. Madrid, 673 F.2d
1114 (10th Cir. 1982), Estelle v. Smith, 451 U.S.
454 (1981)(Miranda rights necessary before competency
interview can be used later against defendant); and U.S.
v. Vazquez-Pulido, 155 F.3d 1213 (10th Cir 1998)(No per
se rule bars cross examination of defense expert on
diminished capacity with information developed during
competency evaluation). Once the defense presents testimony
of a mental disease or defect or of a mental status defense,
the government may fairly cross examine using a court ordered
evaluation of the defendant. Kansas v. Cheever, 571
U.S.87, 134 S.Ct. 596 (2013).
Hybertson requests this Court to grant his motion for an
immediate competency evaluation, to be done by a local
Psychiatrist, Dr. Susan Bograd, at the local facility where
he is presently detained. If this motion is granted,
undersigned counsel has confirmed that Dr. Bograd ...