United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
pretrial motions have been referred to the undersigned
pursuant to 28 U.S.C. § 636(b). This case came before
the undersigned on August 23, 2019, for a competency hearing
in case number 3:19-CR-48 and an initial appearance on a
petition for violation of supervise release in case number
3:99-CR-132. Assistant United States Attorney Alan Scott
Kirk, appeared on behalf of the Government. Attorney Devin S.
DeVore, who practices with Attorney Norman D. McKellar,
represented the Defendant, who was also present.
Court first took up the competency issue. The Court and the
parties have received the seventeen (17)-page Forensic
Evaluation report by Forensic Psychologist Ryan Nybo, Psy.D.,
of the Federal Detention Center in Seatac, Washington
(“FDC Seatac”). Dr. Nybo diagnosed the Defendant
with Antisocial Personality Disorder and Malingering.
However, he found that the Defendant “has a sufficient
ability to understand the nature and consequences of the
court proceedings against him and an adequate ability to
properly assist counsel in his defense.” Dr. Nybo
concludes that Defendant Houston is not suffering from a
mental disease or defect that compromises his ability to
understand his case or to assist properly in his defense.
Government offered the Forensic Evaluation, report as its
evidence and asked that the report be made a sealed exhibit
to the hearing. Mr. DeVore stipulated to the report. The
Court directed that the Forensic Evaluation report be made
sealed exhibit 1 to the hearing and filed in the record under
seal. Neither the Government nor Defendant Houston sought to
offer any other evidence for the Court to consider on the
issue of the Defendant's competency. Based upon Dr.
Nybo's report and pursuant to 18 U.S.C. § 4241(d),
the Court finds by a preponderance of the evidence that
Defendant Houston is able to understand the nature and
consequences of the charges and proceedings against him and
to assist properly in his defense. Accordingly, the Court
finds that the Defendant is COMPETENT to
proceed to trial.
McKellar moved for a competency evaluation for Defendant
Houston on May 2, 2019, shortly after the Defendant's
initial appearance and arraignment in this case. Since that
time, the Defendant has filed two pro se motions
[Docs. 16 & 19] and one pro se letter [Doc. 22]
to the Court, asking for the removal of Mr. McKellar and the
appointment of new counsel. Defendant Houston does not
provide any reason for substitution of counsel in these
filings, except for a vague and disjoined reference to a
conflict of interest. At the motion hearing, Mr. DeVore
directed the Court's attention to the Defendant's
statements to Dr. Nybo about wanting to fire his attorney,
which are contained within Dr. Nybo's report. Mr. DeVore
argued that these statements indicate that the Defendant no
longer trusts Mr. McKellar.
Court finds that Defendant Houston has not stated a basis for
substitution of counsel. In order to substitute counsel, the
undersigned must find either an actual conflict of interest
or good cause. Defendant has shown neither. See Wilson v.
Mintzes, 761 F.2d 275, 280 (6th Cir. 1985) (holding that
a defendant seeking to substitute counsel must show good
cause). Instead, the Court finds that the Defendant and Mr.
McKellar had approximately one week to work together, before
the Defendant was committed for a mental evaluation. The
undersigned finds that Defendant Houston has not given the
attorney-client relationship a chance. The Defendant is
cautioned that the Sixth Amendment does not entitle a
defendant to counsel with whom he shares a good rapport or to
a “meaningful relationship” with his attorney.
Morris v. Slappy, 461 U.S. 1, 13-14 (1983). Instead,
the Defendant is entitled to competent counsel. Defendant
Houston is admonished to make every effort to work with Mr.
McKellar on his case.
time of the Defendant's commitment for a mental
evaluation, his June 25, 2019 trial date was removed, to be
reset upon a finding that the Defendant is competent. The
parties agreed to a new trial date of October 22,
2019. The Court set a new deadline for filing
pretrial motions of September 13, 2019.
Responses to motions are due on or before September
27, 2019. The parties are to appear before the
undersigned for a pretrial conference on October
2, 2019, at 11:00 a.m. If any
motions are filed, the Court will hear them at this hearing.
October 2, 2019 is also the deadline for
entering into a plea agreement and for providing reciprocal
discovery. Motions in limine must be filed no later
than October 7, 2019. Special requests for
jury instructions shall be submitted to the District Judge no
later than October 11, 2019, and shall be
supported by citations to authority pursuant to Local Rule
Court finds that the allegations in the petition in case
number 3:99-CR-132 are based upon the charged activity in
case number 3:19-CR-48. Accordingly, the Court appointed Mr.
McKellar to represent the Defendant in both cases, and the
schedule for these cases shall track together. Thus, the
revocation hearing in case number 3:99-CR-132 will be on
October 22, 2019.
it is ORDERED:
(1) The Defendant is COMPETENT to proceed to
(2) The Defendant's pro se requests
[Docs. 16 & 19] for the substitution of
counsel are DENIED;
(3) The trial of this matter reset to October 22,
2019, at 9:00 a.m., before the
Honorable Thomas A. Varlan, United States District Judge.
This date will also be the revocation hearing in case number
(4) All time between the filing of the motion for competency
evaluation on May 2, 2019, and the
competency hearing on August 23, 2019, is
fully excludable under the Speedy Trial Act for the reasons
set forth herein;
(5) The deadline for filing pretrial motions is reset to