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c _ .U.S. Department o f [ ~ g ~ CDmUnited States AttornSouthern District ofThe Srlvro J Mollo BurldrngOne Sarnt Andrew s Plaza ' ,-- - . . * - -Neiv Yor k, ,Wen' Fork 100 07Septem ber 19, 2008

By Hand D eliveryHonorable Richard M . BermanUnited States District JudgeSouthern District of New York500 Pearl StreetNew York, New York 10007

Re: United States v. Aafia Siddiqui08 Cr. 82 6 (RMB)Dear Judge Berman:

The G overnment respectfully submits this letter in response to the C ourt'squestions at the Septembe r 4, 2008 conference regarding (1) the defendant's competency to standtrial, and (2) the defen dant's refusal, thus far, to appe ar in court. Th e defense has responded tothe Court's questions by letter dated Septem ber 16, 2008. The parties are due to appear for aconference on Septem ber 23 ,20 08 , at 2:00 p.m. It is unclear whether the defendant intends toappear.

In short, the Governm ent believes that a competency hearing and com pletepsychiatric evaluati on of the defendant is warra nted. The record thus far is sparse- ainlybecause the defendant has refused to cooperate with medical and psychiatric professionals- utbased on the initial Court-ordered psychological examination by a Bureau of Prisons'psychiatrist, which resulted in an "Axis I diagnosis of Depressive Type Psychosis," theGovernment submits, in an abundanc e of caution, that the best course is for the C ourt to find thatthere is reasonable cause to believe that the defendant may be sufferiing from a mental disease ordefect rendering her incom peten t to enter a plea or stand trial. Accordingly, the G overnmentmoves under 18 U.S.C . 5 4241 (a) for a competency hearing, and under 18 U.S.C. 5 5 4241 (b) and4247(b) for an antecedent psychiatric examination, performed over the course of the full 30 dayspermitted by statute, and a corresp onding psychiatric report. As a result, the defend ant's refusalto appear for arraignment need not be addressed until her competency is determined.

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Honorable R ichard M. BermanSeptember 19, 2008Page 2

BackgroundThe defenda nt is charged in a seven-count Indictment w ith: (1) attempted murder

of United States nationals; (2) attempted murder of United States officers and emp loyees; (3) useof a firearm during the com mission o f crimes of violence; and (4) four counts of assault ofUnited States officers and employees. These charges relate to a July 18, 2008 incident in Ghazn i,Afghanistan, during which the defendant attempted to shoot and kill United States Army andFederal Bureau of Investigation personnel w ho were prep aring to interview her.On Augu st 4, 2008, the defendant was arrested in Afghanistan by FBI agents, whotransported her to the Sou thern District of Ne w Y ork, where s he was presented the n ext day on acriminal complaint and ordered detained . The case was assigned to You r Honor after the

Indictment was returned on Septem ber 2, 2008. An arraignm ent and pretrial conference wasscheduled for Septem ber 4, 2008. The defen dant did not app ear for tlne conference, apparentlybecause she refused to submit to standard prison security measures associated with the m ovem entof prisoners- amely, "strip searches," to use defense counsel's term inology.During her relatively short period of detention thus far, the defen dant has beencompletely uncoo perative, not o nly with the Cou rt, but with prison oFcicials, including medical,psychiatric and psychological personnel. Prison records previously filed with the Court by thedefense demo nstrate the defendan t's co nsistent refusal to accept medical and m ental healthassistance and treatment from prison doctors and staff. The defendant's oft-repeated explanationfor this recalcitrance has been her co unse l's advice n ot to coo perate vvith the prison mental heath

team.Non etheless, a prison psychiatrist was ab le to provide the aforemen tioned initialdiagnosis of the defendant at the Co urt's request. (See Order dated Sep tember 8, 2008 and Letterto the Court from W arden Cam eron Lindsay of the Me tropolitan Detention C enter ("MDC"),dated Septem ber 10, 2008). The diagno sis was based, how ever, on limited interaction with thedefendant. For exam ple, the defendant initially stated that "she did not wish to speak with apsychiatrist or a psychologist"; the defendant refused to answ er the psychiatrist's qu estionsregarding sleep, appetite and food intake; and the defendant "refused to continue the interview,preventing [the psychiatrist] from assessing the presence or absence of hallucinations." (Warde nLindsay Letter, at 2). Since that time, the defendant has continu ed to refuse medical and mental

heath aid, according to prison officials.Relevant Legal Standards

The standard for determining w hether a defendan t is clompetent to stand trial is afamiliar one. "The defendant must have (1) 'sufficient present ability to consult with his lawyerwith a reasonable deg ree of rational understanding' and (2) 'a rational a s well as factual

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Honorable Richard M. BermanSeptembe r 19, 2008Page 3understanding of the proceedings against him."' United Sta tes v. Nicliols, 56 F.3d 40 3,4 10 (2dCir. 1995) (quoting Dusky v. U nited States, 362 U.S . 402 (1960) (per curiam)). "It is well-established that some degree of mental illness cannot be equated with incom petence to standtrial." United Sta tes v. Vamos, 797 F. 2d 1 146, 1 150 (2d Cir. 1986). Rather, to support a findingof incompetenc y, "[tlh e m ental illness must d eprive the d efend ant of 1:he ability to consult w ithhis lawyer 'with a reasonable degree of rational understanding' and to understand theproceedings a gainst him rationally as well as factually." Nichols, 5 6 F.3d at 41 2 (quoting Dusky,362 U.S. at 402). In determining competency, the district court may properly rely on a number offactors, including medical opinions and the district cou rt's observation of the defendant'scom portm ent. Nichols, 5 6 F.3d at 4.1 1; United Sta tes v. Hemsi, 901 F.2d 2 93, 295-9 6 (2d Cir.1990).

Under Section 4241, courts are required to hold a co mpetency hearing only whenthere is "reasonable cause to believe that the defendant may presently be suffering from a mentaldisease or defect rendering him mentally incom petent to the extent that he is unable tounderstand the nature and con sequences of the proceedings against him o r to assist properly inhis defense." 18 U.S .C. 4241 (a). In the absence of "reasonable cau~se," ourts have noobligation to hold a com peten cy hearing. See, e.g ., Nichols, 5 6 F.3d at 414 ("In decid ing that anevidentiary hearing is unnecessary, a court may rely not only on psyclliatrists' reports indic atingcompetency but also on its own observations of the defendant"); Chichakly v. United States , 926F.2d 624, 63 1-32 (7th Cir. 1991) (no need for com petency hearing, despite defendant's pastdepression and mental and emotional problems, where court saw no evidence of incompetencyand defense counsel did not request hearing). And because "[tlhe necessity for a competencyhearing varies in each case, depending upon a num ber of factors concerning defendant's behaviorand inferences which might be drawn from psychiatrists' reports," United Sta tes ex. rel. Mirelesv. G ree r, 736 F.2d 1160, 11 65 (7th Cir. 198 4), the "[dletermination of whether there is'reasonable cause' to believe a defendant may be incom petent rests in the discretion of thedistrict court." Vamos, 797 F.2d at 11 50 (emplo ying abuse of discretio n standard in reviewingdistrict court's decision not to order a competency hearing); United Sta tes v. Oliver, 626 F.2d254, 258 (2d Cir. 1980) (same).

Discussion

Against this backdrop, the Government submits that a complete exam ination ofthe defendant and competency hearing is warranted. Such an exam ination and hearing is the bestmethod to establish an adequate record for a competency determ ination under the currentcircumstances. Apart from the M DC psychiatrist's diagn osis, the record is essentially barrenwith respect to competency: mental health professionals at the prison have had little meaningfulcontact with the defendant; treatment records- any of which the Court has seen, and all ofwhich have been analyzed by a psychiatrist retained by the Government - re subject to varyinginterpretations: the Court has had no opportunity to observe the defendant; and defense counsel

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Honorable Richard M. BermanSeptembe r 19, 2008Page 4has had no recent face-to-face interaction with the defendant, and minimal telepho ne contact.Law enforcem ent personnel who spent more than 20 hours with the de fendant on the flight fromAfghanistan to New York carried on relatively normal chit-chat with her and observed no sign ofmental illness, in their lay opinio ns. Th e diagn osis of the MD C psychiatrist, given the limitedinteraction with the defendant upon which it was based, is best descrilbed as preliminary and bestunderstood as a signal to conduct further psychiatric examination.

The G overnment submits that a complete exam ination, conducted over the full 30days permitted by statute, followed by a competency hearing, provides the best opportunity underthe circum stances of this case for the Court to make a full and fair deiermination of thedefen dant's com peten ce to stand trial and assist in her defense. It is i.mperative that theexamination be conducted over a long period of time. This is so beca.use, in the Governm ent'sview and in the view o f our retained psychiatrist, continued spot ex anlinations at the MDC - r,for that matter, anything less than a complete 30-day examination- ill invariably be met bythe sam e resistance already exhibited by the defendant and will, thus, be less than useful. Thedefendant is less likely, in our view and in the view of our psychiatrist, to resist the inquiry ofmental heath professionals if subjected to a longer-term evaluation.

The defense does not address competency in their Septemb er 1 6, 20 08 letter.Instead, they challenge the adequacy of m edical and psychiatric care being administered to thedefendant at the MD C. The defense insist that the defendant must be transferred out o f thefederal prison system to a Ne w York state-run facility. But this contention fails procedurally andon the merits.

The claim fails at the threshold because it is a challenge to prison conditions -despite the generic invocation of "the Constitution" (See Letter to the Court from Elizabeth M.Fink, Esq., dated Septem ber 16 , 2008, at 3)- hich requires exhaustion of adm inistrativeremedies. See United State s v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 21008) ("We do not havejurisdiction to consider [the prison cond itions] claim. . . . The defendant must exhaust hisadministrative remedies before challenging the [prison conditions] in federal court."); see als oPre iser v. Rodriguez, 41 1 U.S. 47 5,48 9-90 (1973) (prisoners cannot "evade [the exhaustion]requirement by the simple expedient of putting a different label on their pleadings").Moreover, the law simply does not permit a detained defendan t to dictate the

conditions of her confinement. On the contrary, as Your Honor has fbund, '"[ilt is wellestablished that mere differences in opinion regarding medical treatment do not give rise to anEighth Amendment v iolation' and that '[allthough a prisoner is entitled to medical care, he doesnot have the right to the treatm ent of his choice."' Brown v. Selwin, 250 F. Supp. 2d 299, 308(S.D.N.Y. 1999 ) (quoting Muham mad v. Francis, 1996 WL 65792 2, at *5 (S.D.N.Y. Nov.13,1996)); see a lso M ontez v. McKinna, 208 F.3d 86 2, 866 (1 0th C ir. 2000) ("[Tlhere is no federalconstitutional right to incarceration in any particular prison or portion of a prison."); Bellamy v.

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Honorable Richard M . BermanSeptem ber 19, 2008Page 5Mount Vernon Hosp., 2008 WL 3152963, at * 4 (S.D.N.Y. Aug. 5, 20 08 ) ("[A] prisoner has noright to the treatment of his choice."); Allen v. Cooley, 2006 WL 2370927, at * 3 (N.D.N.Y. Aug.16 ,20 06 ) ("The fact that plaintiff might have preferred an alternative treatment or believes thathe did not get the medical attention he desired does not rise to the level of a constitutionalviolation.").

At bottom, the defense is also simply wrong: while they suggest that the medicaland psychiatric treatment being administered at the MD C is inadequate, the treatment recordsdemonstrate the opposite. Since the defendant arrived at the MD C, she has received a substantialstream of quality medical and psychiatric care, as the records bear out, despite her own resistanceto those seeking to treat her. There is no reason to believe that the defendant's treatment is in anyway substandard. The defense certainly has not made such a showing. See U nited Sta tes v.Robinson, 409 F.3d 979, 981 (9th Cir. 2005 ) ("Though [the defendan.t's] physical conditioncreates special needs, he has not show n that the needs are extraordinary in the sense that theBureau of Prisons will be unable to accomm odate his condition and provide appropriate medicalcare.").

Finally, the defense's suggested transfer away from federal custody is unrealisticand logistically unreasonable, given the serious nature of the charges in this case. The imp etusfor the request is the defense's expectation that conditions at Elmhurst Hospital w ould be more tothe defenda nt's liking. Presumab ly, this is based on their assump tion that security measureswould be more relaxed outside of a federal prison setting. They are wrong. The United StatesMarshals S ervice ("USMS") would still be responsib le for the defen dant, even if she weretransferred to a state-run facility, because she would continue to maintain the status of a federalpretrial detainee. The security measures that the USM S would insist upon, if the defense requestis granted, would certainly be as restrictive as those currently faced b:y the defendant, given thenature of the charges against her, and would likely be m ore restrictive in view of the fact that shewould be o utside of a federal prison setting. This is a factor that the defense has obv iously nottaken into account, either in formulating their preference for a state-run facility, or in calculatingthe receptiveness of Elmhurst Hospital to taking on the defendant. More fundam entally, housingthe defendant in a non-federal facility would impose a substantial fiscal burden on the USMS, anunreasonable cost for USMS to bear given the obvious adequacy of h4DC's custodial conditions.

In sum, the defense request is procedurally flawe d and^ otherw ise untenable. Italso misses the point, which is how best to determine the defendant's competency to stand trialand assist in her defen se. In this case, given the defe nda nt's reluctance to cooperate with thoseattempting to exam ine her, the best way to make this determ ination is by a complete com petencyexamination, to be followed by a hearing.

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Honorable Richard M. BermanSeptember 19, 2008Page 6

ConclusionFor all of the foregoing reasons, the Go vernm ent respectfully reque sts that theCourt enter the attached proposed order, which (1) directs that a psychiatric examination of thedefendant be conducted over a 30-day period a t a suitable facility to be determ ined by the Bureau

of Prisons; (2) requires preparation o f a psychiatric report; (3) sets a com petency hearing at a dateto be determined by the Court; and (4) excludes time under the Speedy Trial Act so the Courtmay determine the competency of the defendant.Respectfully submitted,MICHAEL J . GARCIAUnited S tates Attorney

By: d/&VDavid ask#Christopher L. LaVigneAssistant United States Attorneys(21 2) 637-263512325

cc: Elizabeth M. Fink, Esq. (by facsimile)

80 ORDERED:a*: 1-rz-og z.3L!d&

Richard M.Berman,U.S.W.> I