1 QUIN DENVIR, Bar #49374

Federal Defender
2 ERIC V. KERSTEN, Bar #226429
Assistant Federal Defender
3 Designated Counsel for Service
2300 Tulare Street, Suite 330
4 Fresno, California 93721-2226
Telephone: (559) 487-5561
5
Attorney for Defendant
6 KORI ALI MUHAMMAD
7
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 UNITED STATES OF AMERICA, ) NO. 01:05-cr-00033 OWW
)
12 Plaintiff, ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF MOTION FOR
13 v. ) PSYCHIATRIC EXAMINATION AND FOR
) HEARING TO DETERMINE DEFENDANT S
14 KORI ALI MUHAMMAD, ) COMPETENCY TO STAND TRIAL
)
15 Defendant. ) Date: July 11, 2005
) Time: 1:30 p.m.
16 ) Judge: Honorable Oliver W. Wanger
17 MEMORANDUM OF POINTS AND AUTHORITIES
18 Factual Statement
19 Defendant Kori Ali Muhammad is charged in three counts of a four count indictment. Count
20 One charges him with possession of cocaine base with intent to distribute, in violation of 21 U. S.C.
21 841(a)(1) and (b)(1)(B); Count Two charges him with possessing a firearm in furtherance of a drug
22 trafficking crime, in violation of 18 U.S.C. 924 (c)(1)(A); and Count Three charges him with
23 possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922 (g)(1). All charges relate
24 to his alleged possession of cocaine base and three firearms on December 27, 2004, in Fresno,
25 California.
26 ///
27 ///
28 ///
1 Argument
2 A. DEFENDANT SHOULD BE EXAMINED TO DETERMINE WHETHER
HE IS MENTALLY COMPETENT TO STAND TRIAL 18 U.S.C. 4241(a)
3
4 18 U.S.C. 4241 provides:
5 The court shall grant the motion or shall order such a
hearing on its own motion, if there is reasonable cause to
6 believe that the defendant may presently be suffering from a
mental disease or defect rendering him mentally
7 incompetent to the extent that he is unable to understand the
nature and consequences of the proceedings against him or
8 to assist properly in his defense.
9 (b) Prior to the date of the hearing, the court may order that
a psychiatric or psychological examination of the defendant
10 be conducted, and that a psychiatric or psychological report
be filed with the court....
11
12 The test to be applied in determining competency to stand trial is set forth in Dusky v. United
13 States, 362 U.S. 402, 80 S. Ct. 788 (1960). There the Court stated:
14 [I]t is not enough for the district judge to find that the
defendant [is] oriented to time and place and [has] some
15 recollection of events, but that the test must be whether
he has sufficient present ability to consult with his lawyer
16 with a reasonable degree of rational understanding of the
proceedings against him. Id. at 402, 80 S. Ct. at 788.
17
18 The government has the burden of establishing by a preponderance of evidence that the
19 defendant is competent to stand trial. United States v. Frank, 933 F. 2d 1491, 1494 (9th Cir. 1991). To
20 be competent to stand trial, a criminal defendant must have sufficient present ability to consult with
21 his or her lawyer with a reasonable degree of rational understanding and have a rational as well as
22 factual understanding of the proceedings. United States v. Chavez, 656 F. 2d 512, 518 (9th Cir.
23 1981). The court need not have reasonable grounds to believe the defendant is incompetent to grant a
24 motion for psychiatric examination. Id. at 516.
25 In Drope v. Missouri, 420 U. S. 162, 95 S. Ct. 896 (1975), the Supreme Court stated:
26 There are of course, no fixed or immutable signs which
invariably indicate the need for further inquiry to determine
27 fitness to proceed; the question is often a difficult one in
which a wide range of manifestations and subtle nuances are
28 implicated. That they are difficult to evaluate is suggested

Points and Authorities in Support of Motion

for Psychiatric Examination and for Hearing
to Determine D efendant s Com petency to Stand Tr ial 2
1
by the varying opinions trained psychiatrists can entertain
2 on the same facts.
3
1. Mr. Muhammad does not have Sufficient Present Ability to Consult with Counsel
4 with a Reasonable Degree of Rational Understanding of the Proceedings Against Him
5
Counsel has discussed this case with Mr. Muhammad on several occasions and, while he
6
appeared eccentric with some bizarre beliefs, counsel believed he understood the nature of the pending
7
charges. However, counsel became concerned when advised that Mr. Muhammad suffered auditory
8
halucinations, and had at least two prior mental health hospitalizations. In response, defense counsel
9
had Mr. Muhammad evaluated by A. A. Howsepian, M.D., Ph.D., a licensed forensic psychiatrist.
10
Counse has not yet received Dr. Howsepian s final report; however, he discussed this matter with
11
Dr. Howsepian earlier today, July 11, 2005. The doctor believes Mr. Muhammad is not competent to
12
stand trial at this time.
13
According to Dr. Howsepian, Mr. Muhammad clearly suffers from psychosis, with a substantial
14
degree of paranoia. While Mr. Muhammad does understand basic legal concepts such as who and what
15
the judge and jury are, and their respective roles, due to his paranoia he views the system, including his
16
defense counsel, as conspiring against him. Consequently, due to mental defect, Dr. Howsepian
17
believes that, at this time, Mr. Muhammad is unable to communicate effectively with counsel and
18
unable to assist counsel in the defense of his case.
19
CONCLUSION
20
For the foregoing reasons, this motion requesting an examination pursuant to 18 U.S.C.
21
4241(b) should be granted.
22
DATED: July 11, 2005
23
Respectfully submitted,
24
QUIN DENVIR
25 Federal Defender
26
By /s/ Eric V. Kersten
27 ERIC V. KERSTEN
Assistant Federal Defender
28 Counsel for Defendant
Kori Ali Muhammad
Points and Authorities in Support of Motion
for Psychiatric Examination and for Hearing
to Determine D efendant s Com petency to Stand Tr ial 3