The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
Pending before the court is a request to medicate involuntarily defendant Sherrell Brooks ("defendant" or "Brooks") in order to restore his mental competency to stand trial. Specifically, the Federal Bureau of Prisons ("BOP"), by letter dated February 22, 2010, requested the court to enter an order to authorize the involuntary treatment of defendant with antipsychotic medication. The court makes the following findings of fact and conclusions of law with respect to the BOP‟s request:
1. On November 3, 2005, defendant was indicted for the crime of bank robbery, in violation of 18 U.S.C. § 2113(a). (Docket Nos. 1, 2, 3.)
2. The alleged conduct occurred on or about December 21, 2000. (Id.)
3. The maximum term of imprisonment for this offense is twenty years. U.S.C. § 2113(a).
4. On November 4, 2005, the government moved the court for a writ of habeas corpus ad prosequendum, claiming defendant was in federal custody at MCFP Springfield, ("FMC"), after being sentenced by the United States District Court for the Western District of Kentucky. (See Docket No. 6.) On November 7, 2007, the government‟s motion was granted and a writ was issued. (Docket No. 7.) On November 21, 2005, the November 4, 2005 writ was returned unexecuted because defendant was "out on a court ordered psych study for the Western District of Kentucky." (Docket No. 8.)
5. On January 12, 2007, defendant was sentenced to imprisonment for 168 months for a bank robbery offense in the Western District of Kentucky. See United States v. Brooks, No. 4:04-cr-0027-JHM-ERG-1 (Docket No. 73.) Thus, defendant had not been sentenced by the district court at the time the government moved in this case for a writ of habeas corpus ad prosequendum on November 4, 2005.
6. On January 30, 2007, the government moved for a second writ of habeas corpus ad prosequendum claiming defendant was in deferral custody at the Grayson County Detention Center, Leitchfield, Kentucky. (See Docket No. 9.) On February 1, 2007, the government‟s motion was granted and a writ was issued. (Docket No. 10.) On March 2, 2007, the writ was returned unexecuted because defendant was not at the Grayson County Detention Center, Leitchfield, Kentucky. (See Docket No. 11.)
7. On February 29, 2008, the government moved for a third writ of habeas prosequendum. (Docket No. 12.) The motion was granted and the writ was issued. (Docket No. 13.)
8. On March 21, 2008, the government moved for a fourth writ of habeas prosequendum. (Docket No. 14.) The motion was granted and a writ was issued. (Docket No. 15.)
9. Defendant‟s initial appearance in this case was held on April 18, 2008. (Docket No. 16.)
10. Based upon a presentence investigation report conducted by the United States Probation Office in the Western District of Kentucky in November 2006, the government expressed concerns about defendant‟s competency for trial. The Assistant United States Attorney ("AUSA") advised the court of his intention to file a motion for a psychiatric evaluation pursuant to 18 U.S.C. § 4241. (See docket minute entry dated May 12, 2008.)
11. On July 28, 2008, the court issued an order granting a motion to authorize unsupervised contact visits with defendant by a court-appointed forensic psychiatrist, Robert Wettstein, M.D. ("Dr. Wettstein") in correctional institutions where defendant was housed. (Docket No. 36.)
12. On February 12, 2009, the court held a status conference with respect to the mental competency exam Dr. Wettstein was to conduct. Due to defendant‟s unwillingness to cooperate with Dr. Wettstein, the court concluded that defendant needed to be committed to a medical referral facility for an evaluation and on February 12, 2009 issued an order to commit defendant to the BOP for a mental competency exam. (Docket No. 40.)
13. On July 20, 2009, the court reissued the order to commit defendant to the BOP for a mental competency exam. (See minute entry dated July 20, 2009.)
14. On October 22, 2009, the court held a hearing with respect to defendant‟s competency. The court found defendant incompetent to stand trial because he suffered from a mental disease or defect that rendered him unable to understand the nature and consequences of the proceedings against him or to assist properly in his own defense. (Docket No. 43.)
15. The court based its findings, among other things, on: a) the professional opinion of Christine Scronce, Ph.D, a forensic psychologist, who, after evaluating defendant at the FMC in Devens, Massachusetts, found him incompetent to stand trial and authored a detailed report, and b) the observations of defendant over the course of several hearings.
16. The court ordered defendant to be committed to the custody of the Attorney General for hospitalization and treatment for a reasonable period of time, not to exceed four months, to determine whether there is a substantial probability that in the foreseeable future, defendant would be able to attain the capacity to permit the trial to proceed. (Docket No. 45.)
17. The psychiatrist at the facility was directed to file a report with the clerk of this court.
18. Defendant was treated at the FMC in Butner, North Carolina by staff psychologist Maureen Reardon, Ph. D. ("Dr. Reardon"), and staff psychiatrist Ralph Newman, M.D. ("Dr. Newman").
19. On February 22, 2010, Sara M. Revell, Complex Warden at the FMC in Butner, North Carolina filed a comprehensive report of defendant‟s psychiatric evaluation with the court. The report was submitted by Dr. Newman and a psychology intern, Ronald Dahl, M.S. ("Dahl"), supervised by Dr. Reardon.
20. The Butner Report contains the opinion that defendant remained incompetent to stand trial and that there was a substantial likelihood that defendant‟s competency may be restored with appropriate treatment of psychotropic medications.
21. In the BOP‟s request for judicial oversight of defendant‟s involuntary medication, the BOP cites Sell v. United States, 539 U.S. 166 (2003), for the proposition that court must make certain findings before the BOP is authorized to administer involuntarily antipsychotic ...