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United States of America v. Franklin Novak

September 4, 2012


The opinion of the court was delivered by: Judge Virginia M. Kendall


Defendant Franklin Novak ("Novak") is charged with conspiracy, wire fraud, and mail fraud stemming from his alleged participation in a scheme to submit more than 4,000 fraudulent state and federal tax returns. The issue before the Court is whether Novak is competent to stand trial for his alleged crimes. For the reasons set forth below, the Court concludes that he is.


On August 4, 2009, Novak was charged in a Superseding Indictment with conspiracy to disrupt the functioning of the Internal Revenue Service ("IRS") and to defraud the IRS and state revenue agencies through a mail and wire fraud scheme. (Doc. 16). Novak was also charged with multiple counts of mail and wire fraud committed in furtherance of the alleged conspiracy and scheme. Following his extradition from Israel, Novak was arraigned before this Court on June 13, 2011. (Doc. 456).

On September 20, 2011, Novak's attorneys raised a concern that Novak was mentally incompetent to stand trial. They moved the Court to order a psychological examination of Novak, pursuant 18 U.S.C. § 4241(a), to determine his competency. (Doc. 513). The Court granted this motion and appointed Dr. Richard Crane, the defendant's chosen expert, to conduct this initial competency evaluation. (Doc. 528).

After conducting his examination, Dr. Crane diagnosed Novak with schizophrenia. (4/12/12 Tr. 86:24; Def. Ex. 2.) Dr. Crane's diagnosis was based on his observation that Novak suffered from delusions, sometimes bizarre delusions, loose associations and negative symptoms like flat affect.*fn1 (4/12/12 Tr. 87:5-25, 114:5-11; Def. Ex. 2.) Based on this diagnosis, Dr. Crane concluded that although Novak understood the nature of the criminal proceedings against him, he was incapable of participating in his defense of the case. Specifically, Dr. Crane found that Novak's schizophrenia made him incapable of engaging in abstract reasoning. (4/12/12 Tr.98:24; Def. Ex. 2.) This, according to Dr. Crane, inhibits Novak's ability to explain to his attorneys why he committed various acts. Dr. Crane also found that the schizophrenia prevents Novak from rationally evaluating his situation and making strategic choices concerning his case. (4/12/12 Tr.99:24-100:16; Def. Ex. 2.)

Subsequently, the government moved for an examination of Novak by a psychologist from the Federal Bureau of Prisons. The Court granted this motion. (Doc. 552). After examining Novak, Dr. David Szyhowski concluded that Novak did not have schizophrenia and was competent to stand trial. (4/12/12 Tr.40:15-22; Gov't. Szyhowski Ex., 8-9.) Dr. Szyhowski found that Novak suffered from an adjustment disorder with anxiety, chronic but concluded that this condition did not render Novak incapable of participating in his defense of the case. (4/12/12 Tr.38:22-40:22; Gov't Szyhowski Ex., 7.) Dr. Szyhowski found that Novak understood the charges against him, the roles of the people in the courtroom, and the penalties that he faced. (4/12/12 Tr.30:16-31:18.) He concluded that Novak had an understanding of the nuances of the legal system and the ability to advocate for himself. Id. For example, he was able to compare his legal situation to that of his co-defendants (4/12/12 Tr.31:19-32:14), and explained that he contested his extradition from Israel based upon his desire to ensure that he could serve his sentence their. (4/12/12 Tr.33:12-34:10.) He was also able to describe the role of the defense attorney, his relationship with his attorney, and his understanding of what he needed to do in order to assist his attorney. (4/12/12 Tr.34-15-35:6.)

The Court held a competency hearing on April 12, 2012, pursuant to 18 U.S.C. § 4241(a), to assist it in determining whether Novak is competent to stand trial. At the hearing, Drs. Szyhowski and Crane testified as to their conclusions. The government also played a recording of a November 18, 2011 telephone call placed by Novak from the Metropolitan Correctional Center ("MCC") to a friend. (4/12/12 Tr.4:19-6:19; see also Gov't Ex. 1 [recording]; Gov't Ex. 1A [call transcript].) On the recording, Novak analogized his attempt to convince the Court that he suffers from schizophrenia to a story in Psalms where King David faked insanity when he was captured by the Philistines. (Gov't Ex. 1; 1A.) Novak opined that, like King David, he could obtain his release if the Court finds him incompetent. During the conversation, Novak compared the benefits of being declared incompetent, avoiding trial and receiving treatment at a psychiatric hospital to "tak[ing] [his] chances with the Court again." (Gov't Ex. 1; 1A.) The recording also captured Novak laughing and joking that his wife would not be able to "put up" with him after he receives the drugs prescribed in the psychiatric hospital. (Gov't Ex. 1; 1A.)

At the conclusion of the hearing, the government asked to supplement the record with additional recordings of Novak's telephone conversations. (4/12/12 Tr.192:16-17.) Novak did not object but asked to be able to challenge the supplemental evidence after his expert reviewed it. (4/12/12 Tr.194:10-15.) The Court agreed and continued the hearing. The government provided recordings of six telephone calls made by Novak. Novak then submitted transcripts of fourteen telephone recordings. At the June 4, 2012 continuation of the hearing, Novak called Dr. Crane again. Dr. Crane provided additional testimony regarding Novak's fourteen exhibits and how they supported his conclusion that Novak was schizophrenic and incompetent to stand trial.


A defendant must be mentally competent to stand trial. See Burt v. Uchtman, 422 F.3d 557, 564 (7th Cir. 2005) (citing Drope v. Missouri, 420 U.S. 162, 171 (1975)). 18 U.S.C. §4241(d) provides, in pertinent part, that if, after a competency hearing:

[T]he court finds by a preponderance of the evidence that the defendant is presently 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, the court shall commit the defendant to the custody of the Attorney General.

A defendant is deemed incompetent if he fails to demonstrate either a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or a rational and factual understanding of the proceedings against him. 18 U.S.C. § 4241(a); see United States v. Ross, 510 F.3d 702, 712 (7th Cir. 2007) (citing Dusky v. United States, 362 U.S. 402, 402 (1960); Woods v. McBride, 430 F.3d 813, 817 (7th Cir. 2005)).

Mental illness alone does not constitute incompetence. Price v. Thurmer, 637 F.3d 831, 833 (7th Cir. 2011). A defendant is competent to stand trial when he is "able to follow the proceedings and provide the information that his lawyer needs in order to conduct an adequate defense, and to participate in certain critical decisions, such as whether to appeal." Price, 637 F.3d at 833-34. The court may find a defendant competent despite a mental health expert's conclusion to the contrary. See Holmes v. Buss, 506 F.3d 576, 581 (7th Cir. 2007) (citing Matheney v. Anderson, 377 F.3d 740, 748-49 (7th Cir. 2004); United States v. Bennett, 908 F.2d 189, 195 (7th Cir. 1990)). In reaching a decision, the court may consider expert ...

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