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MICHAEL BAILEY

United States Attorney

District of Arizona

RAQUEL ARELLANO

Assistant U.S. Attorney

Arizona State Bar No. 011796

Evo DeConcini United States Courthouse

405 W. Congress Street, Suite 4800

Tucson, Arizona 85701

Telephone: 520-620-7300

Email: raquel.arellano@usdoj.gov Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff, 

 vs. 

Robert Francis Krebs,

 Defendant

CR 18-0263-TUC-JGZ (JR)

GOVERNMENT’S RESPONSE TO 

DEFENDANT’S OBJECTION TO 

MAGISTRATE JUDGE’S REPORT AND 

RECOMMENDATION, DOC. 70

The United States of America, by and through its undersigned attorneys, hereby 

submits the following response to the defendant’s Objection to Magistrate Judge’s Report 

and Recommendation, Doc. 70. The defendant asserts that the government has not met its 

burden of showing, by a preponderance of the evidence, that the defendant is competent to 

stand trial. The defendant objects to the Magistrate Judge’s fact-finding that the defendant 

is competent. Specifically, the defendant asserts that issues were raised regarding his 

potential medical conditions that are severe enough to raise doubt that he has the capacity 

to assist his own defense. The defendant asserts that his post-arrest statement to FBI agents 

over a year and a half ago has little probative value as to his current state of mind, claiming 

there is a possibility he is currently suffering from a degenerative mental illness. The 

defendant also objects to the Magistrate Judge’s fact-finding regarding the defendant’s incourt testimony claiming that the defendant’s statement was long and at times disjointed 

and confusing. Finally, the defense objects to the court’s finding that the defendant was 
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malingering, claiming the absence of a necessary factor of motivation to malinger.

The government asserts that it met its burden of proving, by a preponderance of the 

evidence, that the defendant is competent. In reaching its conclusion of competency, the 

Magistrate Judge properly considered evidence presented at three hearings held on May 7, 

2019, May 24, 2019, and June 10, 2019. The court properly considered the reports by three 

doctors who evaluated the defendant and the testimony of Dr. Cochrane, who evaluated the 

defendant at the Butner Medical Facility. The court heard the 45-minute post-arrest 

videotaped statement of the defendant. The court also considered the defendant’s behavior 

in and out of court, noting that it “may rely on a number of factors, including medical 

opinion and the court’s observation of the defendant.” United States v. Boigegrain, 155 

F.3d 1181, 1189 (10th Cir.1998).

Although made about a year and a half prior to the competency hearings, the 

defendant’s statement made after arrest is highly probative of his recollection and memory 

of the meticulous planning leading up to the robbery and the events that occurred during 

and after the alleged crime. In addition, in his post-arrest statement, the defendant detailed 

specific recollection of events that occurred after his release from Arizona prison in June, 

2017, regarding his bus transport to Florida and injuries suffered during his fall upon arrival 

in Florida. It is significant that he reiterated with precise recall those same events during 

his testimony on June 10, 2019. The court properly considered the fact that the defendant 

was able to provide the exact date when he hit his head on concrete and also recalled an 

attack in 1995 at the Florida Department of Corrections when he was hit with a padlock in 

a sock as he exited the showers, yet, he claimed to have no memory of his interviews with 

Drs. Johnson and Menchola. (Doc. 70, pg. 17). The defendant claimed to have

remembered events at Butner because he had taken notes. The court also noted that the 

defendant claimed to have no memory of any of the details of his arrest but because he took 

copious notes, he did remember extensively what occurred at Butner. (Doc. 70, pg. 20.) 

All of this is relevant on the issue of whether the defendant is competent, is malingering

and not suffering from Alzheimer’s or dementia.

The defendant objects to the court’s finding that the defendant was malingering, 
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claiming an absence of a necessary factor of motivation to malinger. There is no necessity 

of a motivation to malinger. The court considered the defense’s argument that although 

the defendant stated his reason for committing the robbery was so that he could return to 

prison, there was, thus, no reason for him to exaggerate his symptoms. The court reasoned 

that the defendant might very well have believed that feigning mental illness would have 

allowed him to be housed in conditions that were preferable to prison. (Doc, 70, pg. 25.) 

The court noted that it might very well be that the defendant’s experience at Butner 

dissuaded him of that belief as evidenced by his stated desire at the hearing to withdraw 

his guilty plea, plead guilty, and presumably serve a lengthy prison system. Id. The court 

reasoned that the defendant’s malingering could be explained by Dr. Cochrane’s diagnosis 

of antisocial personality disorder of which such disorder is characterized by deceit and 

manipulation. The court concluded that while the defendant’s motivations cannot be 

conclusively determined, the court nevertheless found that the weight of the evidence 

before the court is consistent with malingering. Id.

On the record presented to the Magistrate Judge, including its observations of the 

defendant in court, the government submits that it met its burden of showing, by a 

preponderance of the evidence, that the defendant is competent to stand trial. The 

government respectfully requests that the District Court adopt the Magistrate Judge’s 

recommendation and, after conducting a de novo review of the record, find the defendant 

competent to stand trial.

Respectfully submitted this 5th day of July, 2019.

MICHAEL BAILEY

United States Attorney

District of Arizona

s/Raquel Arellano

RAQUEL ARELLANO

Assistant U.S. Attorney

Copy of the foregoing served electronically or by

other means this 5th day of July, 2019, to:

Jorge Leonardo Costales, Esq. Gregory Jon Berger, Esq.