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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 vs. 

Robert Francis Krebs, 

 Defendant.

CR18-00263-TUC-JGZ(JR) 

REPORT & RECOMMENDATION 

(Pursuant to: 18 U.S.C. § 4241) 

(Defendant in Custody) 

 

On February 21, 2018, the Defendant was indicted and charged with one count of 

Armed Bank Robbery in violation of 18 U.S.C. § 2113(a) and (d). DOC 8.1

 Before the 

Court is Defendant’s Motion to Determine Competency. DOC 27. The Court has 

considered the moving papers, reports, and hearing testimony, and recommends that the 

District Court find that the Defendant is competent to stand trial and to assist his counsel. 

/ / / 

/ / / 

/ / / 

 

1

 The Court will use “DOC” to refer to the court docket, “EX” to refer to the exhibits 

admitted at the hearings and “TR” to refer to the transcripts of the evidentiary hearings. 

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I. History of the Case 

A. Complaint (DOC 1) 

The Complaint, which was filed on January 18, 2018, alleges that on January 12, 

2018, the Defendant entered the Pyramid Federal Credit Union in Tucson carrying a black 

messenger bag. He approached the bank teller and pulled out a smaller black bag from the 

larger messenger bag and put it on the teller’s counter. The Defendant demanded that the 

teller give him all the money and not sound any alarms. He placed a black handgun (later 

determined to be a BB gun) on top of the small black bag with the handgun pointed at the 

bank teller’s torso. The teller gave him $4,259.50. The Defendant then moved to the next 

bank teller and did the same. That teller gave him $4,125.34. In total, the Defendant is 

charged with robbing $8,384.84. He left the bank and was arrested the following day by 

the Tucson Police Department. 

B. Videotaped Post-Arrest Statement (EXS 7-8) 

The Defendant was interviewed by FBI Special Agents Keefe and Livingston on 

January 23, 2018. EX 7.2

 The interview lasted approximately 45 minutes. EX 8. It began 

with the Defendant providing detailed information about himself, including the spelling of 

his middle name, his date of birth, the approximate number of people in his home town, 

his mailing address, his residence address and his social security number. EX 8, 3- 6. He 

spoke in detail about prison life, where he served time and how he was transported to the 

 

2

 The videotape was played to the Court on May 24, 2019. 

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various prisons. EX 8, 8-11. He recounted that he had spent 17 years at ADC (the Arizona 

Department of Corrections) where he taught math and ran the legal library. EX 8, 8. He 

described his physical ailments and his hospital stay (EX 8 10-12) and that he had been 

diagnosed with onset Alzheimer’s (EX 8, 30). According to the Defendant, he had been 

having trouble with it for ten years although he was smart enough to camouflage it, but it 

was getting exponentially worse. EX 8, 30. He said he didn’t recognize people and could 

not remember names. EX 8, 31. He was, however, able to meticulously explain how he 

planned and carried out the robbery, what he was wearing and what he did before and after 

leaving the bank. EX 8, 12-29. 

Interestingly, the Defendant stated that he didn’t wear a disguise or a mask during 

the robbery because he wanted to get caught. EX 8, 29. He wanted to go back to prison 

where he didn’t have to contend with what’s going on in the outside world with cell phones 

and everything else. EX 8, 9-30. He also admitted that the reason he committed the 

robbery was because he needed money as his $800 per month social security was not much 

to live on. EX 8, 13. That was why he didn’t change his name or appearance. EX 8, 34. 

He wanted to find a niche as he didn’t recognize people. EX 8, 30. He explained that the 

last seven months were the worst in his life as he tried to adjust to life on the outside. EX 

8, 34. 

C. Pretrial Report (DOC 5) 

The Defendant’s felony conviction record is set out in the pretrial report that was 

prepared shortly after his arrest. 

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 In 1966, when the Defendant was 24 years old, he was convicted in Chicago 

of bank embezzlement and was sentenced to three years in prison; 

 In 1967, at age 24, he was convicted in New York of felony grand larceny 

and sentenced to one year in prison; 

 In 1973, at age of 31, he was convicted in Canada of extortion and sentenced 

to 4 years in prison; 

 In 1980, at age of 38, he was convicted in Tucson of theft and sentenced to 

20 years in prison; 

 In 1981, at age 39, he was convicted in Florida of robbery and kidnapping 

and sentenced to 75 years in prison; and 

 In 1988, at age 46, he was convicted in Tucson of robbery and sentenced to 

28 years in prison. 

The Defendant was released from prison on June 1, 2017. He was paroled to Florida 

and absconded in November of 2017. He was charged in Tucson with armed bank robbery 

on January 18, 2019. 

D. Tucson Court Matters 

On July 24, 2018, defense counsel filed a Motion to Determine Competency. DOC 

27. On March 28, 2018, Defendant was evaluated by a local clinical neuropsychologist, 

Marisa Menchola, Ph.D. EX 5. In her report dated July 12, 2018, Dr. Menchola concluded 

that the Defendant was not competent to stand trial due to a major neurocognitive disorder 

(dementia) and that the Defendant was not likely restorable to competence. 

On August 15, 2018, Defendant was evaluated by a local medical psychiatrist, 

Bradley Johnson, M.D. EX 6. In his report dated September 3, 2018, Dr. Johnson 

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concluded that the Defendant was competent to stand trial and that his presentation was 

more likely consistent with malingering. 

At a Status Conference on September 13, 2018, both parties agreed that an 

additional evaluation was needed in a medical facility where the Defendant could be 

evaluated over a longer period. DOC 40. Defendant was hospitalized at the Federal 

Medical Center in Butner, North Carolina where he was evaluated by a forensic 

psychologist, Robert Cochrane, Psy.D. EX 2. 

In his report dated March 11, 2019, Dr. Cochrane concluded that there was no 

convincing evidence that the Defendant suffers from a mental disorder that would render 

him mentally incompetent. He also found that the Defendant was malingering and noted 

that his personal and criminal history was more consistent with a finding of antisocial 

personality disorder. 

Competency hearings were conducted on May 7, 2019, May 24, 2019, and June 10, 

2019. DOCs 55, 59, 66. Defendant was present and represented by counsel. Seven 

exhibits were admitted at the first hearing. One exhibit was admitted at the second hearing. 

One witness, Dr. Cochrane, testified via video conference at the first two hearings. The 

Defendant testified at the last hearing.3

 The attorneys filed supplemental memorandum on 

June 7, 2019 (DOCs 64, 65) and presented oral argument at the hearing on June 10, 2019. 

 

3

 In accordance with United States v. Gillenwater, 717 F.3d 1070 (9th Cir. 2013), 

the Court gave the Defendant an opportunity to testify. He declined to testify at the first two hearings but did testify at the last one. 

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II. Forensic Evaluations 

A. Dr. Menchola (EX 5) 

 Defendant was seen on March 28, 2018 by Dr. Menchola. She described the 

Defendant as alert but exhibiting difficulties with his speech. He spoke very slowly, with 

very long latencies between the question and his answer, and for the most part, provided 

very short answers. He was however, able to provide many details about his social, 

occupational, medical, substance abuse and psychological history. As the interview 

progressed, Defendant was less cooperative. He refused to answer many questions relating 

to his charges. Dr. Menchola noted that her assessment was limited because of that. 

 Much of the Defendant’s medical and psychological history was self-reported. 

Notes from a 2010 document revealed that the Defendant complained of memory deficits, 

word-finding ability and concentration problems. He was worried about dementia and 

claimed to have been diagnosed with the onset of Alzheimer’s. He reported a significant 

mental health family history. He stated that his grandfather, father and father’s twin brother 

had Alzheimer’s. He said his mother and sister died by suicide and another sister was 

disabled due to a suicide attempt. Records from 2003 to 2012 included a diagnosis of 

major depression, bipolar disorder and antisocial personality disorder. Records also 

described the Defendant as having a history of excessive mood swings, violence and 

feigning/manipulation but no psychosis. 

With respect to the Defendant’s factual knowledge of the charges and the legal 

system, Dr. Menchola explained that the Defendant knew that he was charged with bank 

robbery and that it was a felony. He knew that felonies are more serious that 

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misdemeanors. He knew his plea options and the role of a judge, jury and attorney. The 

Defendant did not express any delusional beliefs or other disruptive behavioral symptoms 

that would interfere with his ability to cooperate with counsel. He knew who his attorney 

was but would not talk about the evidence in his case as it was “confidential.” 

Dr. Menchola was able to perform a standardized assessment of global cognitive 

functioning test. The Defendant performed in the severely impaired range. Given his 

performance on this test as well as his reported severe hearing and visual impairments, no 

other neuropsychological tests were administered. Based on this one exam, Dr. Menchola 

reported that the neuropsychological assessment revealed a pattern consistent with the 

advanced early stages of dementia, with severe impairment in memory and aspects of 

executive functioning, milder deficits in visuospatial functions, and relatively preserved 

attention and reasoning. 

Noting that there were significant limitations to her evaluation, Dr. Menchola 

concluded that based on the Defendant’s presentation and performance on testing, it was 

her opinion that he was not competent to stand trial due to a major neurocognitive disorderdementia. She further concluded that even if his cognitive status remained stable, he would 

not be restorable to competence. 

B. Dr. Johnson (EX 6) 

 Defendant was seen on August 15, 2018 by Dr. Johnson. From the start of the 

evaluation, the Defendant refused to cooperate. Dr. Johnson attempted to engage him for 

10 to 15 minutes, but he turned his head to the side and never spoke. He would not even 

provide historical data about his background. He had poor eye contact and moved very 

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little while sitting in his wheelchair. After multiple attempts to engage the Defendant, it 

was obvious to Dr. Johnson that he was not going to cooperate. Dr. Johnson went out into 

the hallway to ask the officers who brought him to the evaluation what their interactions 

with him had been. The officers stated that he had been conversant with them, even asking 

that they stop and allow him to use the restroom. 

Due to the Defendants uncooperativeness, Dr. Johnson was not able to assess his 

thought process, so he looked to collateral sources. Based on the Defendant’s significant 

legal and criminal history, Dr. Johnson opined that the Defendant has antisocial personality 

disorder. He found no psychiatric reason why the Defendant would not be able to look 

directly at him and at least attempt to answer questions. He stressed that dementia does 

not present in that manner, coming and going in its symptomatology. Rather, it is 

something that comes on gradually; a person will lose their memory or ability slowly over 

time, or in a downward, step-like fashion. People with dementia can answer questions and 

attempt to participate. While a person with dementia may have good and bad days, it is 

unusual for them to be fully cooperative on one day and on another day, be unable to speak 

or be so confused that they cannot answer questions. According to Dr. Johnson, 

Defendant’s presentation was more likely consistent with an exaggeration of his abilities 

or outright malingering. 

Dr. Johnson concluded that the Defendant was competent to stand trial. Even if he 

had some memory problems, Dr. Johnson did not believe they were severe enough that he 

wasn’t able to cooperate. Recognizing that Dr. Menchola came to the opposite conclusion, 

Dr. Johnson stated that it was possible that Dr. Menchola did not have the liberty of 

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reviewing as many collateral sources, including the videotaped statement the Defendant 

provided the FBI on January 23, 2018. 

C. Dr. Cochran (EX 2) 

 Defendant was admitted to the Federal Medical Center (FMC) in Butner, North 

Carolina on October 17, 2018. After the evaluation period, Dr. Cochran submitted his 

report on March 19, 2019. Dr. Cochran reported that upon his admission, Defendant 

complained of numerous physical problems as well as memory decline. Given his reported 

problems with memory impairment, an MRI brain scan was completed on October 22, 

2018. The MRI indicated no acute intracranial abnormalities. 

 During clinical interviews, Dr. Cochrane reported that the Defendant deflected 

questions, stated he could not comprehend what others were telling him and had trouble 

with confusion. Dr. Cochrane attempted to conduct three psychological tests, but the 

Defendant insisted that he could not complete them. The Defendant was referred to a 

Competency Restoration Group but declined to attend the group, stating he was not capable 

of understanding anything that was taught. 

 Based on several months of observation, clinical interviews and a review of records, 

Dr. Cochrane concluded that the Defendant did not suffer from a mental illness or cognitive 

impairment. Dr. Cochran diagnosed the Defendant with antisocial personality disorder and 

malingering. Dr. Cochrane noted six factors that contributed to his finding of malingering. 

They were: 

1. His functioning is much higher than one would expect for someone with 

dementia or severe cognitive impairment. These patients will almost always 

attempt and be able to complete simple questions on psychological tests. 

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2. Mr. Krebs was deceitful about having a guardian, trying to appear impaired 

 and disabled. 

3. The recall and cognitive abilities he demonstrated during interviews did not 

comport with claim of having grossly impaired memory and thinking. 

4. He did not know rudimentary and overlearned information that demented, 

TBI [traumatic brain injury], and stroke patients typically retain. 

5. As Dr. Johnson noted in his report, on 01/23/19 Mr. Krebs provided a 

detailed version of events. He has not suffered a stroke, traumatic brain 

injury, or another significant event since then that would explain him now 

being amnestic. 

6. MRI brain imaging did not show any clear evidence of organic impairment. 

His labs were also essentially normal and there was no other biological 

evidence supporting gross impairment. 

EX 2 at 6. 

With respect to his opinion that the Defendant suffered from antisocial personality 

disorder, Dr. Cochrane explained that the disorder is characterized by a pervasive pattern 

of disregard for, and violation of, the rights of others that begins in childhood or early 

adolescence and continues into adulthood. Due to the Defendant’s lack of cooperation, Dr. 

Cochrane was not able to fully assess some of his traits, but his behavior suggested that he 

led a lifestyle of deception (e.g., aliases), irresponsibility (not supporting children he has 

fathered), violence, and varied criminal activity. Dr. Cochrane concluded that these 

character traits are not considered a mental illness and have no bearing on competency to 

stand trial. 

If motivated, Dr. Cochrane opines that the Defendant can work effectively with his 

attorney. He can listen and respond clearly and relevantly to questions and his current 

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functioning is such that he can aid in challenging adverse witnesses, he can attend to 

courtroom procedures and if necessary, he can testify. Dr. Cochrane concluded that the 

Defendant understands the nature and consequences of the proceedings against him and 

can assist properly in his defense. 

III. Hearing Testimony 

A. Dr. Cochrane 

 Dr. Cochrane first met the Defendant when he was admitted to the Butner facility 

on October 17, 2018. TR 13. From October of 2018 until February of 2019, he estimates 

that he had six to eight sit-down full-length interviews with the Defendant, each lasting 

about 45 minutes to an hour. TR 57, 104, 117. He also saw the Defendant several other 

times in passing. TR 57. 

At this first interview, as he does with all new admits, Dr. Cochrane discussed with 

the Defendant why he was at the facility and how the evaluation and treatment process was 

going to work. TR 17. In his own words, the Defendant was able to explain back to Dr. 

Cochran what he had heard. TR 18. He was also able to report that his date of birth as 

listed in the Bureau of Prison’s records was incorrect. EX 2, P.1, Fn. 1. Dr. Cochrane 

described the Defendant as very polite, calm and not in any kind of distress; he knew who 

he was but was not sure where he was, what time it was or what the current date was; he 

made good eye contact and related well to Dr, Cochran; his speech was a bit halting and 

raspy but Dr. Cochran understood him clearly; his thoughts seemed to be organized and 

goal directed. TR 17-21. He was not, however able to relay basic things like whether he 

was married or had any children or how he did in school. TR 25. He reported that he had 

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been incarcerated for 30 years but wasn’t able to say what crime he committed. TR 25. 

He went on to say that when he was released from custody and put on probation, he was 

appointed a guardian by the name of Julie Martin. TR 25. Dr. Cochrane later determined 

that the Defendant did not have a legal guardian. TR 68. Dr. Cochrane believes that by 

referring to a guardian, the Defendant was trying to appear disabled and in need of help. 

TR 75. He didn’t realize that Dr. Cochrane might actually follow up and determine who 

the person was. TR 75. 

Defendant shared with Dr. Cochrane that his memory was declining yet he had no 

trouble following what the doctor asked; nor did he ask Dr. Cochran to repeat anything. 

TR 21-22. Given his age and self-reported memory problems, Dr. Cochrane felt it prudent 

to conduct some neuroimaging. TR 24. The MRI brain scan showed no acute 

abnormalities; there was no obvious evidence of volume loss or tissue depth, no infarct or 

evidence of a stroke. TR 24. There were some hyperintensities that were noted in the 

white matter but that is not uncommon for people in their eighth decade of life. TR 24. 

Dr. Cochran explained that while an MRI could not detect Alzheimer’s or dementia, as it 

is not a diagnostic tool, it could identify tumors or hemorrhages that would be consistent 

with those diseases. TR 60, 95. 

Dr. Cochrane explained that the onset of Alzheimer’s presents itself when a person 

is in their seventies and eighties and noted that the Defendant fell within that period. TR 

62. Dr. Cochrane also stated that Alzheimer’s has a genetic correlation and does run in 

families and that a person whose father or grandfather had Alzheimer’s (as was reported 

by the Defendant) is at a higher risk of developing the disease. TR 61. 

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Dr. Cochrane described some of the Defendant’s physical ailments and how those 

might affect cognitive functioning. TR 62-64. The Defendant reported a pulmonary 

embolism, congestive heart failure and atrial fibrillation. TR 62-64. Dr. Cochrane 

admitted that those ailments could potentially lead to neurocognitive decline. TR 62-64. 

Dr. Cochrane also noted that the Defendant had a head injury while at the Department of 

Corrections and if severe enough could potentially lead to neurocognitive decline. TR 66. 

Because of the Defendant’s reported memory problems, he was first placed in the 

transition unit where there were more officers present and he could be better observed by 

nurses. TR 27. All staff members indicated that he was doing quite well, so he remained 

there for only a week and was then placed in the open unit. TR 27-28. The open housing 

unit is an area where patients have the most access to things such as recreational activities 

and the library; it’s a place where they can interact with a greater number of people. TR 

28-29. Although the Defendant reported getting lost a couple of times in the large facility, 

he had no trouble getting to the dining hall and back or to his appointments. TR 29-30. 

There were never any reports from staff that he wandered, got confused or needed extra 

help. TR 30. 

During his second meeting with the Defendant on November 26, Dr. Cochrane 

reports that the Defendant’s presentation wasn’t much different. TR 30. He was pleasant 

and made good eye contact and the two had back and forth conversation with relative ease. 

TR 30. Staff provided similar information. TR 31. He always acted appropriately, 

followed instructions, and never needed help with anything. TR 31. Defendant’s only 

complaint was that he had trouble with memory and confusion. TR 31. The staff at Butner 

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informed Dr. Cochrane that they had no concerns about the Defendant’s behavior in the 

open unit. TR 48. He was always the first in the pill line for his medication and would 

often read a book while he was waiting in line. EX 2, p. 5; TR 48. 

Dr. Cochrane next met with the Defendant in December. TR1 31. His presentation 

was similar and he again stressed his memory problems. TR 33. During this interview as 

in the others, the Defendant did not ask the doctor to repeat anything. TR 33. He 

understood the questions and his answers were always on point. TR 33. The dialogue was 

routine and unremarkable. TR 33. The Defendant’s behavior contrasted with his complaint 

that he was struggling with his memory. TR 33. 

At this meeting, the Defendant agreed to participate in testing and that’s when Dr. 

Cochrane tried to administer the Montreal Cognitive Assessment. TR 32. That test is a 

screening measure to assess cognitive abilities such as orientation, attention and memory. 

TR 101. It’s often given as a preliminary instrument to see if a person has deficits that 

warrant further inquiry. TR 101. After completing the first item, the Defendant gave up, 

saying he could not complete it. TR 32. He said his memory was getting worse and again 

talked about his family members having Alzheimer’s. TR 32. He again spoke about his 

Florida guardian of two years. TR 32. Dr. Cochrane remembers that the Defendant 

mentioned that one of his medications for neuropathy had not been renewed. TR 32. Dr. 

Cochrane later learned that the Defendant had correctly remembered which medicine that 

was. TR 32. 

Dr. Cochrane and one of his colleagues also attempted to administer two other tests, 

the Shipley-2 (an intellectual screening instrument) and the Validity Indicator Profile (a 

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test to determine degree of effort). TR 39-41, 104. Those tests are done in a small group 

setting with four or five other defendants. TR 39. The Defendant got to the testing room 

and sat where he was told but needed a lot of repetition with the instructions. TR 40. He 

insisted that he could not do the testing because he was confused. TR 40. At some point 

during his stay, the Defendant was referred to a Competence Restoration Group, a weekly 

class where instructors teach defendants about the legal system. TR 35. The defendant 

would not participate. TR 36. Dr. Cochran was not terribly concerned that he would not 

attend as he believed that the Defendant had a decent factual grasp of things. TR 38. Dr. 

Cochrane admitted that he did not attempt a TOMMs, which is a test of memory 

malingering that typically takes 45 minutes to an hour to administer. TR 104-105. After 

the first three failed attempts at testing, Dr. Cochrane saw no point in trying to administer 

additional tests. TR 105. 

The last clinical interview Dr. Cochrane had with the Defendant was on February 

21, 2019. TR 48, EX 2. The Defendant stressed how much trouble he was having 

comprehending other people but told Dr. Cochrane that he understood him without any 

difficulty. TR 48-49. Dr. Cochrane brought up the fact that he would like to try to 

administer the Montreal test again, but the Defendant said he did not believe he could do 

it. TR 49. Because Dr. Cochrane could not conduct any formal standardized measures, he 

tested or probed the Defendant about his knowledge of certain information that people with 

cognitive problems still retain. TR 49. Dr. Cochrane referred to studies that demonstrate 

that even people with advanced brain injuries, Alzheimer’s and psychotic illnesses are 

immune to forgetting what is called “overlearned information.” TR 49. So Dr. Cochrane 

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asked the Defendant if he could recall and recite the alphabet; he said he could not. TR 50. 

According to Dr. Cochrane, when people embellish deficits, they claim not to know 

answers to overlearned information. TR 49. Looking at the Defendant’s behavior on the 

unit and how he interacted casually and during interviews with him, not being able to 

answer a simple question on a test was not consistent with the things the Defendant was 

clearly able to do, like take care of himself and make sure his needs were met. TR 72. 

Dr. Cochrane’s assessment that the Defendant had antisocial personality disorder 

was based largely on the Defendant’s criminal history. TR 97. But his behavior also 

suggested that he led a lifestyle that included deception. TR 100. For example, he used 

multiple aliases throughout his life. TR 100. Dr. Cochrane further explained that a 

person’s personality, even if it’s adaptive or maladaptive and disordered, isn’t typically 

considered a mental illness or mental disorder, but rather, just an aspect of a person’s 

character. TR 97. While a personality disorder is not relevant to whether a person is 

competent to stand trial, it can be noteworthy because sometimes personality disorders can 

mask or appear as if they’re mental disorders. TR 97-98. As it relates to malingering, Dr. 

Cochran explained that if a person has a history of fraudulent activities or has been 

dishonest in other ways, it certainly factors into the equation when one is considering a 

diagnosis of malingering. TR 100-101. 

Dr. Cochrane was asked to differentiate between malingering and factitious 

disorder. TR 110. The main difference he explained is the gain or motivation. TR 110. 

In malingering, a person is grossly exaggerating symptoms for some secondary gain, such 

as getting out of military service, or avoiding criminal prosecution or obtaining money 

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through disability or a lawsuit. TR 111. In factitious disorder, the person is embellishing 

symptoms to get sympathy and attention, so the motivation is more of an emotional need. 

TR 111. Dr. Cochran did not believe the Defendant had factitious disorder as he didn’t 

seem to be embellishing symptoms so that doctors would lavish him with attention or run 

a lot of tests on him. TR 111. 

Given the setting Dr. Cochrane works in, he assumed that the Defendant was 

malingering to avoid criminal prosecution. TR 120. He believed that, like a lot of people 

at the facility, the Defendant thought that his case would be dismissed if he was found to 

be incompetent. TR 123. Dr. Cochrane added that he did not know for certain what was 

going through the Defendant’s mind or what his motivations were. Id. By ruling out other 

apparent motivations, he safely concluded that the Defendant’s motivation for malingering 

was to avoid prosecution. TR 124. When asked if avoiding prosecution was a necessary 

conclusion to draw before diagnosing malingering, Dr. Cochrane said it was one of the 

criteria; otherwise it would be called exaggeration, but it would still be falsely representing 

oneself. TR 124. 

Dr. Cochrane was asked what the normal decline of a person would be who did not 

have a traumatic brain injury and was not abusing substances. TR 113. He explained that 

in the sixth and seventh decade of life you start seeing forgetfulness and mild memory 

decline, but it doesn’t interfere with daily functioning. TR 113. Sometimes the person will 

need and benefit from compensatory strategies, like using a pill box or writing notes so 

they don’t forget things at the grocery store. TR 113. You would not, however, expect to 

see significant cognitive decline to the point of being demented. TR 113-114. 

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Based on the following factors, Dr. Cochrane concluded that the Defendant was 

malingering: his background suggested that he had an antisocial personality disorder; his 

MRI brain scan confirmed that he had no significant cranial injuries, no hydrocephalus, no 

infarct and no stroke; the taped statement he provided the FBI after the arrest (as relayed 

by Dr. Johnson) contained a very detailed account of the alleged robbery; he wasn’t 

consistent with things he did recall when it was convenient for him; and he couldn’t do 

what people even with advanced problems can do, like recite the alphabet. TR 51-53. 

Because the Defendant did not suffer a stroke or a traumatic brain injury or any other 

significant event since Dr. Johnson had evaluated him, it defied logic that he would now 

have all of these problems with no clear intervening event. TR 53. 

Dr. Cochrane concluded with a reasonable degree of psychological or scientific 

certainty that the Defendant was competent. TR 114. He understands the nature and 

consequences of the proceedings against him. TR 115. He can assist properly in his 

defense. TR 115. 

B. Defendant 

After responding to defense counsel that he is 82 years old, the Defendant read from 

a prepared hand-written statement. The Court notes that the Defendant read from what 

appeared to be a lengthy statement written on a legal pad. He spoke slowly and in a raspy 

voice but enunciated clearly. He held the statement out in front of him as he read. At no 

time did his hands shake or did it appear that he was having trouble reading his handwriting. 

According to the Defendant, he suffers from aphasia, a deterioration of the ability 

to hear, speak, read and write. TR 152, 175. As he’s gotten older, his memory has gotten 

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worse; he doesn’t remember addresses or telephone numbers and doesn’t recognize some 

of his children. TR 176-177. 

With respect to his hearing, the Defendant stated that when he had the headset on in 

court, he was able to hear. TR 178. He was also able to write the note he read to the 

Court. TR 178-179. No one helped him write it. TR 179. He wrote it over a period of 

time but had some difficulty deciphering it because his hands were shaking which made 

his handwriting bad. TR 179. 

The Defendant stated that he has been diagnosed with Alzheimer’s disease as have 

members of his family-- his father, his father’s twin brother and his paternal grandfather. 

TR 152, 174. He also shared that he suffered from head trauma on several occasions. TR 

175. He was able to provide the exact date when he hit his head on concrete and recalls 

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. TR 175, 180. 

The Defendant was asked on cross-examination about his interview with Drs. 

Johnson and Menchola. TR 170. He claimed to have no memory of those events and only 

remembered events at Butner because he had taken notes. TR 170, 183. He refuted Dr. 

Cochrane’s testimony saying that he did not meet with the doctor for an hour seven or eight 

times; he met with him four or five times, and only for 15 minutes. TR 153. He claims 

the interviews were rushed and superficial, consisting mainly of small talk, never anything 

meaningful. TR 153. Dr. Cochrane conducted one scheduled written test that would have 

been simple for a college educated man like himself, but his hands were shaking so badly 

that he could not write his name or check off the multiple-choice boxes. TR 154. 

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The Defendant testified extensively about the “blatant untruths propagated by Dr. 

Cochrane.” TR 155:24. He complained of racial bias stating that the staff was 

predominantly black and heavily biased against white detainees. TR 156. He stated that 

there was considerable homosexuality at the hospital as well as violence. TR 156. 

The Defendant referred to the video-taped confession and stated that the perpetrator 

is not the real Robert Krebs. TR 158. He did, however, want to withdraw his not guilty 

plea and plead guilty likely because he did not favor the environment at Butner. TR 158, 

194. On cross-examination and on re-direct, the Defendant insisted that he did not 

remember giving the statement to the FBI. TR 163, 182. It was the other Robert Krebs, 

the one who took over his identity. TR 163-164. He also claimed not to remember any of 

the details of his arrest but because he took copious notes, he did remember extensively 

what occurred at Butner FMC. TR 165. 

IV. Conclusions 

Criminal defendants have a constitutional right to be competent during trial. 

Indiana v. Edwards, 554 U.S. 164, 170 (2008). The standard for mental competency is 

whether an individual has a “sufficient present ability to consult with his lawyer with a 

reasonable degree of rational understanding and whether he has a rational as well as factual 

understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 

(1960); Torres v. Prunty, 223 F.3d 1103, 1106 (9th Cir. 2000); 18 U.S.C. § 4241(d). 

“Whether a defendant is capable of understanding the proceedings and assisting counsel is 

dependent upon evidence of the defendant's irrational behavior, his demeanor in court, and 

any prior medical opinions on his competence.” United States v. Gastelum–Almeida, 298 

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F.3d 1167, 1171 (9th Cir. 2002) (quoting Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 

1997)). The government has the burden of demonstrating that the defendant is competent 

to stand trial by a preponderance of the evidence. United States v. Hoskie, 950 F.2d 1388, 

1392 (9th Cir. 1991). 

A court’s determination of competency is a factual, rather than a legal 

determination. United States v. Mackovich, 209 F.3d 1227, 1232 (10th Cir. 2000). In 

determining competency, a court “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). Where, as here, multiple experts have offered opinions, 

the district court may find a defendant competent by adopting the findings of one expert 

and discounting the contrary findings of another. Miles v. Dorsey, 61 F.3d 1459, 1472-74 

(10th Cir. 1995). 

A. Nature and Consequences of the Proceedings 

The preponderance of the evidence shows that Defendant understands the nature 

and consequences of the proceedings against him. When initially interviewed by the FBI 

just days after his arrest, Defendant was able to meticulously explain how he planned and 

carried out the robbery. He explained that he was struggling to adjust to the life outside 

prison and claimed that he did not wear a disguise or mask during the robbery because he 

wanted to get caught. Similarly, when interviewed by Dr. Menchola, Defendant stated that 

he knew that he was charged with bank robbery and that it was a felony. He knew that a 

felony was more serious than a misdemeanor. He reportedly knew his plea options and 

understood the roles of the judge, jury and attorneys. 

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 Although Defendant was largely uncooperative, Dr. Johnson also concluded that the 

Defendant understood the nature and consequences of the proceedings. In reaching his 

conclusion, Dr. Johnson noted that Defendant described the role of a defense attorney, a 

prosecutor and judge to Dr. Menchola. Dr. Johnson also noted that during the interview 

with the police, Defendant demonstrated an understanding of his legal right to remain 

silent, and the right to an attorney. He further noted that Defendant understood that that he 

could face punishment if found guilty of the charges and could go to prison. Based on these 

considerations, Dr. Johnson concluded that Defendant “has a rational and factual 

understanding of the workings of the court and the roles of the key individuals in a court 

proceeding.” EX 6, 6. 

 Like Dr. Johnson, Dr. Cochrane was able to form an opinion regarding Defendant’s 

ability to understand the nature and consequences of the proceedings based largely on the 

FBI interview. Dr. Cochrane stated that during that interview, Defendant “communicated 

clearly and appeared to understand his legal situation.” Thus, even though Dr. Menchola 

ultimately opined the Defendant was not competent for other reasons, all of the experts 

agree that he understands the nature and consequences of the proceedings. 

B. Ability to Assist Counsel 

 Under Dusky, whether a defendant has “sufficient present ability to consult with his 

lawyer with a reasonable degree of rational understanding” is evaluated based on the 

defendant’s ability to effectively participate in his defense by communicating effectively 

with his lawyer. See Drope v. Missouri, 420 U.S. 162, 171-72 (1975). Here, the Court 

adopts Dr. Cochrane’s opinion and concludes that the Defendant can assist counsel. 

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 Dr. Cochrane concluded that by a reasonable degree of psychological or scientific 

certainty that the Defendant is competent. That opinion, as expressed in his report and 

testimony at the hearing, is based on months of observation, clinical interviews, and review 

of records. Of the three experts involved in this case, Dr. Cochrane had a much greater 

ability to observe Defendant in a variety of settings and had the advantage of the 

availability of the previous opinions provided by Drs. Menchola and Johnson. The latter 

two doctors’ opinions were based on one-day evaluations while Dr. Cochrane’s opinions 

were based on much more extensive interaction with Defendant over the period of several 

months. Dr. Cochrane reported that he had six to eight sit-down, full-length interviews with 

Defendant and saw him several other times in passing. 

 Dr. Cochrane concluded that the Defendant did not suffer from a mental illness or 

cognitive impairment. Rather, Dr. Cochrane diagnosed the Defendant with antisocial 

personality disorder and malingering. The evidence cited in support of these conclusions 

is compelling. Although the Defendant consistently complained of memory troubles and 

confusion, while at Butner FMC he followed instructions, never needed help, and could 

find his way around the facility. MRI imaging revealed no acute abnormalities for a person 

in their 80s. Dr. Cochrane also noted that the Defendant had done well in the open housing 

unit at Butner and that the staff had no concerns with his behavior. 

 The Defendant’s presentation caused both Dr. Johnson and Dr. Cochrane to believe 

he was exaggerating his symptoms or malingering. Evidence from all three experts shows 

that the nature of Defendant’s symptoms shifted radically from one clinical encounter to 

another. He was initially cooperative with Dr. Menchola before becoming less cooperative 

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as the assessment progressed. He was entirely uncooperative with Dr. Johnson. And while 

at Butner was intermittently cooperative with Dr. Cochrane. As Dr. Johnson explained, 

dementia would not present in this manner. Rather than coming and going symptomology, 

it would come on gradually and in a downward, step-like fashion. Dr. Cochrane 

additionally noted that those suffering from Alzheimer’s disease are immune to forgetting 

“overlearned information” such as the alphabet and when the Defendant was asked to recite 

the alphabet, he said he could not do so. Taken together, these findings indicate that the 

Defendant is not suffering from Alzheimer’s or dementia. 

 The conclusion that the Defendant is not suffering from dementia or Alzheimer’s 

disease is also supported by his own testimony. The Defendant claimed that he had memory 

deficits and had difficulty writing, reading and speaking. However, during the hearing, he 

read from a lengthy and articulate hand-written statement. His memory of events was also 

selective. He claimed that he could not recall giving a statement to the FBI, but he 

remembered dates he was previously injured and went to the hospital and had excellent 

recollection of his time at Butner. These considerations support Dr. Johnson and Dr. 

Cochrane’s finding of malingering. 

 However, the defense contends that Dr. Cochrane’s determination that the 

Defendant is malingering is undermined by his finding that the malingering was motivated 

by the Defendant’s desire to avoid criminal prosecution. In support of this contention, the 

defense points out that the Defendant told the FBI agents that he committed the robbery so 

that he could return to jail. If returning to jail was Defendant’s goal, the defense contends, 

there is no reason for him to exaggerate his symptoms. While the defense’s argument merits 

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attention, it ignores some significant considerations. While it is impossible to know what 

the Defendant was thinking, he very well may have believed that feigning mental illness 

would have allowed him to be housed in conditions that were preferable to prison. It may 

very well be that his experience at Butner dissuaded him of that belief as evidenced by his 

stated desire at the hearing to withdraw his not guilty plea, plead guilty and, presumably, 

serve a lengthy prison system. Alternatively, the Defendant’s malingering could be 

explained by Dr. Cochrane’s diagnosis of antisocial personality disorder. That disorder is 

characterized by deceit and manipulation— the precise behavior Dr. Cochrane believes the 

Defendant is engaging in by malingering. While the Defendant’s motivations cannot be 

conclusively determined, the Court nevertheless finds that the weight of the evidence 

before the court is consistent with malingering. 

 Dr. Cochrane’s ultimate opinion on whether Defendant can effectively work with 

his attorney noted that Defendant could listen and respond clearly and relevantly to 

questions, could attend to courtroom procedures and, if necessary, testify. The Court finds 

that Dr. Cochrane’s opinion aligns with Dr. Johnson’s opinion and with the Court’s own 

observations. Even if the Defendant is suffering from some form of mild dementia or 

Alzheimer’s disease, it is not severe enough to render him incompetent. Thus, the Court 

finds that the Government has proven by a preponderance of the evidence that the 

Defendant is competent. 

V. Recommendation 

The Magistrate Judge recommends that the District Court adopt this 

recommendation and find that the Defendant is competent to stand trial. This 

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Recommendation is not an order that is immediately appealable to the Ninth Circuit Court 

of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate 

Procedure, should not be filed until entry of the District Court’s judgment. However, the 

parties shall have fourteen (14) days from the date of service of a copy of this 

recommendation within which to file specific written objections with the District Court. 

See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil 

Procedure. Thereafter, the parties have fourteen (14) days within which to file a response 

to the objections. No replies are permitted without leave of court. If any objections are 

filed, this action should be designated case number: CR 18-263-TUC-JGZ. Failure to 

timely file objections to any factual or legal determination of the Magistrate Judge may be 

considered a waiver of a party’s right to de novo consideration of the issues. See United 

States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 

Dated this 19th day of June, 2019. 

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