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United States v. Shawar

decided: January 6, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
THAMIN SHAWAR, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 86 CR 116 -- Terence T. Evans, Judge.

Coffey, Easterbrook, and Kanne, Circuit Judges.

Author: Kanne

KANNE, Circuit Judge.

The sole issue in this appeal concerns the procedure which a district court must follow after a defendant is found to be mentally incompetent to stand trial. Here, after making such a finding, the district court dismissed the charges against the defendant because there was no evidence that his condition would ever improve, and because he did not seem dangerous. Because the court did not comply with the procedures established by 18 U.S.C. § 4241(d) to govern such situations, we must reverse.

I. Facts

Thamin Shawar entered the United States from Jordan at approximately age 11. He has a fifth grade education but is unable to write or read in any language.*fn1 At the time of his indictment, he was married and had three young children. Additionally, Shawar has family members in the United States, including the brother who was indicted along with him.

Thamin Shawar and his brother Jamal were arrested for fraudulently submitting over 200,000 coupons (the type found in newspapers and magazines) to various manufacturers for redemption. Shawar made false representations to consumer product manufacturers that he owned three separate grocery stores in Milwaukee. As a result of this scheme, Shawar deposited over $40,000.00 in redemption checks into various bank accounts he had opened for his phony stores. The January 27, 1987 superseding indictment charged Thamin Shawar with seven counts of mail fraud. At that time, in accordance with 18 U.S.C. § 4241(b), the court ordered an examination to determine whether Shawar was competent to stand trial.

The district court appointed Dr. William Crowley, a psychiatrist, to examine Shawar. Dr. Crowley determined:

As a result of my examination, it is my opinion to a reasonable degree of medical certainty that the defendant is suffering from a mental defect which renders him unable to understand the nature and consequences of the proceedings against him and to assist properly in his defense. I, therefore, offer for adjudication the opinion that the defendant is not competent to stand trial.

Because the condition which, in my opinion, renders the defendant incompetent is one of mental retardation rather than an illness, there is no reasonable likelihood that he will ever regain competence with treatment.

Dr. Leigh Roberts, another psychiatrist, also examined Shawar. He opined that Shawar "has borderline mental retardation" and was not going to improve. Further, Dr. Milton Silva, a psychologist, examined the defendant and conducted various tests, one of which indicated that Shawar's full scale IQ was 71, placing him "in the Borderline range of intelligence." These three written opinions were submitted to the court. The Government then requested that a competency hearing be conducted.

A competency hearing was held on March 3, 1987. At that time, defense counsel moved to dismiss the charges against Shawar because none of the doctors had concluded that he was competent to stand trial. The Government, on the other hand, requested that Shawar be committed to the Attorney General's custody, as required by 18 U.S.C. § 4241.

On August 26, 1987, the district court held another hearing. The court concluded that Shawar was, and always would be, incompetent to proceed to trial. On October 20, 1987, the court issued a decision and order granting Shawar's motion to dismiss the charges against him without prejudice. In this order, the district judge wrote that:

All the doctors who have examined him have concluded he is not competent. It appears that his mental defect -- which is mental retardation -- will not change. Thus, it appears that he will not be "cured" by further treatment and that he will not be able to assist in his defense . . . . In this case, I have given the Government three opportunities to produce some evidence indicating that there was a possibility, even a remote one, that commitment of this defendant will do some good. Nothing has been presented. Accordingly, I grant the defendant's motion to dismiss the charges against him without prejudice.

On November 13, 1987, the Government petitioned the district court for a rehearing. In an order dated November 24, 1987, the court issued an order denying this petition. The Government appeals, challenging Judge Evans' ...


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