United States District Court, D. Colorado
ATTORNEY AT LAW Scott Poland The Law Offices of Poland &
UNOPPOSED MOTION FOR EVALUATION OF COMPETENCY UNDER
Defendant, Samuel Paul Proctor, (“Mr. Proctor”),
by and through counsel, Scott Poland of Poland & Wheeler
P.C., hereby moves this Court for an order for Mr. Proctor to
be evaluated to determine whether he is mentally competent to
proceed, as that term is defined in 18 U.S.C. § 4241.
Mr. Proctor requests that the Court order that, unless
impracticable, the evaluation should be conducted by local
psychiatrist Karen V. Fukutaki, M.D., a previously qualified
expert in the field of forensic psychiatry. The Government
does not oppose this motion, including the request that Dr.
Fukutaki be the competency evaluator. In support thereof, Mr.
Statement of relevant facts.
Indictment was filed on September 27, 2018, charging Mr.
Proctor with Possession of a Controlled Substance with Intent
to Distribute, Count Two and Conspiracy to Distribute a
Controlled Substance, Count Three. Mr. Proctor pled not
guilty at Arraignment on October 24, 2018, and he was ordered
detained. He is currently being held at the Jefferson County
Detention Center. Defendant, Tranquility Ballenger's
Unopposed Motion for Tolling of Speedy Trial and Extension of
Time to File Motions (Doc. 40), was granted by the Court and
the period from November 27, 2018 to February 25, 2019 was
ordered excluded from the Speedy Trial Clock as to both
Defendant Ballinger and Mr. Proctor. (Doc. 43) The Court than
set a motions deadline for the defense of February 18, 2019
and responses by the Government of February 28, 2019. A
five-day jury trial was set for March 18, 2019 at 8:30 a.m.
and a Final Trial Preparation Conference on March 11, 2019 at
3:00 p.m. (Doc. 44)
Following Mr. Proctor's detention hearing, the Court
entered the following findings of fact:
“In making my findings of fact, I have taken judicial
notice of the information set forth in the entire court file
and I have considered the comments of counsel. Weighing the
statutory factors set forth in the Bail Reform Act, I find
First, the defendant has been charged with violating 21
U.S.C. § 841(a)(1) and (b)(1)(B)(viii), distribution of
a controlled substance, and 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(viii) and 846, conspiracy to distribute a
controlled substance. Second, according to the Pretrial
Services Report, the defendant has used an alias name, date
of birth and social security number, he has failed to appear
on at least 15 occasions, he has pending drug charges as well
as driving-related offenses, including vehicular eluding, he
has had one term of probation revoked, a deferred sentence
revoked, and warrants issued for failure to comply and for
bond violations, and he has an extensive criminal history
including nine felony convictions.
Third, the government proffered that in addition to the
information contained in the Pretrial Services Report, the
defendant's parole has been revoked three times: in 2007,
2009 and most recently on January 27, 2016. After considering
all of the factors set forth in the Bail Reform Act and the
offense charged in this case, I find, by a preponderance of
the evidence, that no condition or combination of conditions
of release will reasonably assure the appearance of the
defendant or the safety of the community. In support, of that
finding, I note the factors listed above, as well as the
lengthy sentence that could be imposed if the defendant is
found guilty of the charged offense”. (Doc.25)
July 1, 2017, Mr. Proctor was involved in a serious
motorcycle accident, unhelmeted, in which he sustained a
front-end impact sending him over his handle bars and off of
his motorcycle which was traveling approximately 50 miles per
Knowledge of the above-referenced accident was known to
defense counsel at the time of the October 24, 2018 Detention
hearing. The full extent of the damage to Mr. Proctor's
brain had yet to be realized.
Prior to and during the October 24th, Detention
hearing, during undersigned counsel's interaction with
his client, strange and unusual behaviors were observed by
counsel of his client, but the full extent of Mr.
Proctor's impairment was yet to be recognized. During
several follow-up meetings with Mr. Proctor, since the
Detention hearing, counsel observed Mr. Proctor display
significant short- and long-term memory loss. In November of
2018 Mr. Proctor's medical condition worsen
or about November 12, 2018, while in custody at the Jefferson
County Detention Center, pending trial in this case, Mr.
Proctor was taken by ambulance to the emergency room at St.
Anthony's Hospital with seizure like activity. It was
reported that while exercising he was witnessed to fall
backward and strike with great force the back part of his
head, the occiput. Following his fall, he remained at the
hospital for several days and was then returned to custody at
the jail. Since Mr. Proctor's return, defense counsel has
observed a significant deteriation in his client's
condition. Upon initial contact Mr. Proctor did not know who
his defense counsel was or why he was visiting him. He had no
recollection of the charges he was facing. He could not tell
his counsel the name of his wife/girlfriend. Serious
questions regarding Mr. Proctor's competency developed.
Court should order a competency evaluation at this time.
Constitution forbids the trial of a defendant who lacks
mental competency. Indiana v. Edwards,554 U.S. 164,
170 (2008). The Court may order a competency hearing
“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.”18 U.S.C. § 4241(a). The test for
competency to stand trial asks whether a defendant “has
sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding - and whether he
has a rational as well as factual understanding of the
proceedings against him.” United States v.
Mackovich,209 F.3d 1227, 1232 (10th Cir.
2000) (quotations omitted); see also Drope v.
Missouri,420 U.S. 162, 171 (1975) (“It has long
been accepted that a person whose mental condition is such