USA v. Soud

United States v. Soud, 3:20-cr-00036-SLG-MMS-1 	1
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MAHMOUD GHASSAN SOUD,
Defendant.
Case No. 3:20-cr-00036-SLG-MMS
ORDER ON MOTION FOR
COMPETENCY HEARING AND
EXAMINATION [DKT. 45] AND
SUBPOENA FOR MENTAL HEALTH
RECORDS [DKT. 50]
I. 	MOTION PRESENTED & PROCEDURAL HISTORY
On February 5, 2021, the Government filed a Motion for Competency Hearing and
Examination (Motion) pursuant to 18 U.S.C. § 4241(a) and (b). [Dkt. 45 at 1]. The Government
argued there was reasonable cause to believe Soud met the criteria for a competency hearing under
18 U.S.C. § 4241(a)1 and the Court should, accordingly, order a competency hearing, as well as, a
psychiatric or psychological evaluation. [Id. at 4]. On February 12, 2021, Soud, through counsel,
filed an Opposition to the Government’s Motion for Competency Evaluation. [Dkt. 47].
On March 5, 2021, the Government filed a notice indicating it would issue a subpoena to
the Alaska Department of Corrections (“DOC”) for Soud’s mental health records. [Dkt. 50]. Given
the sensitive nature of these files, the Government instructed DOC to not produce the records
1 Per 18 U.S.C. § 4241(a):
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.
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directly to the government, but rather, asked that a records custodian appear for the March 12,
2021 hearing so that the Court could issue an order directing their disclosure. [Dkt. 50 at 2].
At the March 12, 2021 Motion Hearing, Assistant Attorney General Cicotte appeared on
behalf of the Alaska Department of Corrections and indicated Soud’s mental health records would
not be produced to the Government absent court authorization. [Dkt. 53]. Soud objected to the
release of his records to the Government; as well as to the Court. [Dkt. 53]. The Court explained
that the records may be relevant insofar as they may reflect more recent information about Soud’s
mental health status, and ordered DOC to produce the records for an in-camera review. Soud
objected to the court conducting an in-camera review. [Dkt. 53].
At the March 26, 2021 Motion hearing, the Court indicated it had received Soud’s mental
health records from DOC and reviewed them to determine whether any or all records should be
released to the Government. [Dkt. 60 at 3]. Balancing the relevance of the records against the
significant invasion that disclosure would impose on Soud’s privacy rights, this Court declined to
release them to the Government, sustaining Soud’s objection to disclosure. [Dkt. 60 at 7]. This
Court further denied the present Motion, finding the Government had not met its burden for a
competency hearing, and indicated that a written order would follow. [Dkt. 60 at 22].
For the reasons stated below, on the current record, the Court cannot find there is “reasonable
cause” to believe that Soud’s mental condition renders 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” and therefore, DENIES the Motion at Docket 45, without prejudice.
18 U.S.C. § 4241(a).
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II. 	DISCUSSION
A. Applicable Law
Per 18 U.S.C. § 4241(a), at any time after the commencement of a prosecution, but prior
to sentencing, the defendant or the Government may file a motion for a hearing to determine the
mental competency of the defendant. A court must grant the motion for a 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.2
If a hearing is granted, the trial court has discretion to order a psychiatric or psychological
examination of the defendant prior to the competency hearing.3
B. Application and Findings
Two questions guide this Court’s analysis in deciding whether or not to disclose Soud’s
mental health records to the Government or order a competency hearing or evaluation. First, is
there reasonable cause to believe Soud presently suffers from a mental disease or defect? Second,
if yes, is there reasonable cause to believe this disease or defect renders him mentally incompetent
such that he is unable to understand the nature and consequences of the proceedings or assist in
his defense?
Having reviewed the DOC records, this Court finds they only speak to the first question,
whether Soud has a mental disease or defect. This is not in dispute.4 Nothing in these records sheds
light on the second question, whether Soud is able to understand the nature and consequences of
2 18 U.S.C. § 4241(a).
3 18 U.S.C. § 4241(b).
4 Soud’s January 28, 2021 Pretrial Service Report indicates Soud was diagnosed with Bipolar I Disorder in July 2020.
[Dkt. 45 at 2]. At the March 26, 2021 hearing, the parties agreed that there is no dispute Soud presently suffers from
a mental disease or defect. [Dkt. 60 at 5].
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the proceedings or properly assist in his defense. Because these records do not illuminate the
second, and only outstanding, question, their probative value is de minimis. Their release to the
Government would, however, represent a significant invasion of Soud’s privacy interests. Release
is unwarranted.
With respect to the need for a competency hearing, the Court finds that the Government
has not met its burden under 18 U.S.C. § 4241(a). Although the parties do not dispute that Soud
presently suffers from a mental disease or defect, the Government has not offered any evidence
that suggests Soud is unable to understand the nature and consequences of the proceedings or assist
in his defense.
In its Motion, the Government points to Soud’s mental health diagnosis, involuntary
medication around December 2020, and behavior at the January 29, 2021 detention hearing as
necessitating a competency hearing and evaluation. [Dkt. 45 at 2-3]. This Court has observed Soud
at his arraignment and two additional proceedings since the January 2021 detention hearing. [Dkts.
26, 53, and 59]. At the two most recent hearings, Soud was patient, respectful, and conducted
himself as anyone appearing before the court should. Soud’s interruption at the January 2021
hearing was not excessively disruptive and, standing alone, does not cause sufficient concern to
warrant a competency hearing or evaluation.5 The Court notes that it is not unusual for criminal
defendants in extraordinarily stressful situations to have outbursts in court. As such, outbursts from
defendants are relatively common. There is nothing about Mr. Soud’s outburst at the January
hearing which raises any concern for this Court. Moreover, neither Soud’s mental health diagnosis,
5 Soud’s interruption lasted no more than 8 seconds during a 1 hour and 24-minute-long hearing. The interruption
occurred during closing arguments, after the Government asserted Soud was a danger to his family and community.
Immediately after his interruption, Soud apologized to the Court for interjecting, stating “I’m sorry, I apologize Your
Honor.” [Dkt. 42].
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nor his involuntary medication gives rise to an inference that he is incapable of understanding the
nature and consequences of the proceedings or of assisting in his defense.6 Therefore, there is no
“reasonable cause” for a competency hearing or evaluation.7
This Court accepts defense counsel’s representations that, in her judgment, Soud can
understand the nature of the proceedings and properly assist in his defense. [Dkt. 60 at 12]. During
a colloquy with the Court, defense counsel indicated she has practiced criminal defense for
approximately nine years and previously represented hundreds of clients committed to the Alaska
Psychiatric Institute in contested mental health commitment proceedings. [Dkt. 60 at 12-13]. Based
on that experience, and her communications with Soud, defense counsel reiterated her belief that
a competency hearing is unwarranted. [Dkt. 60 at 13]. While the opinion of Soud’s counsel is not
dispositive, “a defendant’s counsel is in the best position to evaluate a client’s comprehension of
the proceedings.”8
The Court notes that a competency evaluation request is not a trivial decision. In Alaska,
where there are few experts available for psychiatric or psychological evaluations, a referral may
entail transferring the defendant to out-of-state jurisdictions. Transferring defendants not only
increases their health risk as a result of the current pandemic, but may also disrupt their continuity
of care and the stability in-custody programming provides.
To be clear, this Order does not find that Soud is indeed competent to stand trial. This
Order only addresses the threshold question of whether there is reasonable cause to order a
6 See Grant v. Brown, 312 F. App'x 71, 73 (9th Cir. 2009) (stating that mental illness does not necessarily equate to
incompetence); Boyde v. Brown, 404 F.3d 1159, 1166 (9th Cir. 2005) (concluding that “major depression” and
“paranoid delusions” do not necessarily raise a doubt regarding a defendant's competence)
7 See 18 U.S. Code § 4241(a).
8 See Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991).
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competency hearing or evaluation pursuant to 18 US.C. § 4241(a) and (b) and concludes no
reasonable cause exists.
III. 	CONCLUSION
The Government has failed to meet its burden under 18 US.C. § 4241(a), THEREFORE,
this Court DENIES the Motion for Competency Hearing and Examination [Dkt. 45], without
prejudice. Soud’s objection to the release of his mental health records to the Government [Dkt. 50]
is SUSTAINED.
DATED this 15th day of April, 2020, at Anchorage, Alaska.
/s/ Matthew M. Scoble
United States Magistrate Judge
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