UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Cr. No. 05-207-01-SM

Dominick Bailey

Government’s Objection to Defendant’s

Motion for Downward Departure

The United States of America, by and through Thomas P.

Colantuono, United States Attorney for the District of New

Hampshire, and his assistant, Debra M. Walsh, Assistant United

States Attorney, hereby request that this Honorable Court, deny

Defendant’s Motion for Downward Departure. In support thereof,

the Government states as follows:

Facts

1. The defendant is charged with one count of being a

Felon in Possession of a Firearm, one count of being a

Felon in Possession of Ammunition and one count of

being in Possession of Stolen Firearms in violation of

18 U.S.C. §§ 922(g)(1) and 922(j). 

2. On October 24, 2005, counsel for the defendant moved

for a hearing to determine the competency of the

defendant.

3. The defendant was evaluated at the Federal Medical

Center in Lexington, Kentucky, from November 10, 2005,

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through December 23, 2005. A comprehensive report was

issued on January 13, 2006, finding the defendant

competent to stand trial.

4. On February 6, 2006, a competency hearing was held. 

The Government presented four (4) witnesses including

Dr. Betsy Campbell from the Federal Medical Center. 

The Court (Muirhead, J.)found that “from the beginning

of the hearing defendant attempted to manipulate an

‘incompetency’ finding by acting.” The Court further

found that although the defendant initially appeared

agitated, within twenty minutes of the hearing he was

at “counsel table, calm, alert and assisting counsel.” 

Based upon the evidence, the Court found the defendant

competent to stand trial.

5. On February 8, 2006, the defendant appeared in Court

for a bail hearing. The defendant was calm and alert. 

He assisted his attorney and requested that he be

released on bail but under house arrest. Moreover, the

defendant had a lengthy discussion with the Court

concerning his medication and the necessity of eating a

sandwich with his medication while in custody at the

Strafford County House of Corrections.

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6. On March 29, 2006, defendant filed a Motion in Limine

to Redetermine Competency. On April 4, 2006, the Court

granted defendant’s motion. On August 9, 2006, Dr.

Shawn E. Channel of the Federal Medical Center at

Devens, MA found the defendant competent to stand

trial. A competency hearing was scheduled for

September 18, 2006. On September 18, 2006, the

defendant notified the Court of his intention to change

his plea. On September 27, 2006, the defendant entered

a plea of guilty to all charges. 

7. From February 1997 through August 9, 2006, the

defendant has been evaluated nine (9) times for

competency. He was evaluated by seven (7) different

psychologists or psychiatrists. He was found competent

to stand trial six (6) times and on three (3) occasions

(one evaluator found the defendant incompetent twice)

found incompetent to stand trial. However, every one

of the eight evaluators, including the two evaluators

who found the defendant incompetent, questioned

malingering. 

8. In his evaluation of December 2005, by Dr. Betsy

Campbell of the Federal Medical Center found that the

defendant’s responses to questions were deliberately

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wrong, which appeared to be an intentional fabrication

to reflect incompetency. She testified at the

competency hearing that the defendant’s scores were

lower than people who are mentally retarded, suggesting

that the defendant must have deliberately chosen the

wrong answers. Dr. Campbell found that the defendant

demonstrated “extremely manipulative behavior.” She

also noted that the defendant was “overheard

participating in a conversation with other inmates

about ‘how to fool the doctors’ in order to appear

impaired and incompetent.” 

9. The defendant’s mental health history does not impair

his ability to understand the wrongfulness of his

behavior or to exercise the power of reason. Rather,

it suggests that the defendant has attempted to excuse

any wrongdoing on his part by exaggerating and

manipulating his performances on tests administered by

mental health professionals. Based upon the documented

evidence of the defendant’s malingering and

manipulation, a downward departure for diminished

capacity is not warranted. 

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Argument

Pursuant to U.S.S.G § 5K2.13, “a downward departure may be

warranted if (1) the defendant committed the offense while

suffering from a significantly reduced mental capacity; and (2)

the significantly reduced mental capacity contributed

substantially to the commission of the offense.” “Significantly

reduced mental capacity” means the defendant, although convicted,

has a significantly impaired ability to (A) understand the

wrongfulness of the behavior comprising the offense or to

exercise the power of reason; or (B) control behavior that the

defendant knows is wrong.” U.S.S.G § 5K2.13. While the defendant

may have mental health issues, the evidence establishes that the

defendant does not suffer from a “significantly reduced mental

capacity,” as defined under the sentencing guidelines, to warrant

a downward departure. 

The defendant claims that he suffers from a “significantly

reduced mental capacity” because of a 1992 beating that resulted

in “permanent brain damage” which in turn caused his criminal

behavior. This argument fails for two reasons: (1) upon

information and belief, the medical records do not find that the

defendant suffered permanent brain damage as a result of the

assault; and (2) the defendant’s criminal history pre-dates the

assault. 

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Furthermore, a reduced sentence is warranted only “to

reflect the extent to which reduced mental capacity contributed

to the commission of the offense,” provided that the defendant’s

criminal history does not indicate a need for incarceration to

protect the public. U.S.S.G § 5K2.13

The First Circuit has adopted a minimalist approach to

downward departures under § 5K2.13. “...[B]ecause departures are

meant to be the exception, not the rule, there must be something

special about a given offender, or the accouterments of the crime

committed, which distinguishes the case from the mine-run for

that offense.” United States v. Aguilar-Pena, 887 F.2d 347, 350

(1st Cir. 1989) (quoting United States v. Villafane, 874 F.2d 43,

52 (1st Cir. 1988)).

In the present case the defendant claims that the 1992

assault changed his personality and that he is entitled to a

downward departure reflecting a reduced culpability. It is

insufficient to show the mere existence of a mental defect. It

must be linked to the commission of the offense. The burden of

proving the existence of the diminished mental capacity as well

as its contributory effect on the crime rests squarely on the

defendant. “The burden of proving causation is on the defendant,

and there can be no appeal from the district court’s denial of a

reduction.” United States v. Regan, 989 F.2d 44, 45 (1st Cir.

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1993). “The decision to grant an upward or downward departure is

at the discretion of the court. As pertains to § 5K2.13 it is a

matter of determining whether the criminal acts were committed

while having a significantly reduced mental capacity. This is an

exercise in differential factfinding--no more--no less.” United

States v. Field, 109 F.3d 83, 87 (1st Cir. 1997).

The defendant suggests that as a result of a “significantly

reduced mental capacity” he was manipulated by others into

committing the instant offenses. The evidence suggests

otherwise. Moreover, the evidence proves that it is the

defendant who manipulated others to assist him in committing the

crimes. As noted by Dr. Shawn Channell, the most recent forensic

psychologist to evaluate the defendant, the voluminous discovery

includes the statements of numerous individuals who describe the

defendant engaging in “sophisticated criminal behavior”

interaction with others, making deals with others, and “engaging

in goal-directed behavior in general.” Specifically, the

evidence would prove that the defendant, as a convicted felon, 

solicited a juvenile and other young adults to assist him in

breaking into a storage unit and stealing numerous items,

including the firearms and ammunition listed in the indictment,

uttering stolen checks, and hiding a stolen gun which he

ultimately sold to an unsuspecting victim. The facts of this

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 Dr. Campbell testified at the competency hearing that the defendant 1

was aware that an inmate’s mail was not screened if it was addressed to

attorneys. The Government has been notified that the defendant

consistently addresses correspondence to civilians as legal

correspondence in order to avoid screening. 

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case clearly demonstrate that it is the defendant who manipulated

others.

The defendant not only has a history of manipulative

behavior, as noted in his numerous mental health evaluations, but

he continues to engage in manipulative behavior by: (1)refusing

to take his medication; (2) contacting witnesses despite a

restraining order; and (3) sending correspondence to civilians

addressed as legal mail in order to avoid the screening process.1

The nexus between the mental defect and its causative effect

and presence at the time of the offense must be shown in order to

provide a basis for departure. “Section 5K2.13 does not make

diminished mental capacity an independent ground for departure.” 

United States v. Lauzon, 938 F.2d 326, 333 (1st Cir. 1991). 

“...[T]he reduced mental capacity of a defendant must have

contributed to some extent to the commission of the offense.” 

Id. at 331, United States v. Frazier, 979 F.2d 1227, 1230 (7th

Cir. 1992), United States v. Russell, 917 F.2d 512, 517 (11th

Cir. 1990). 

The record in this case does not support grounds for a

diminished capacity departure. The type of the illegal activity

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and the logic and planning required to carry it out as described

by the witnesses do not suggest these were the actions of a

significantly impaired or impulsive mind as contemplated by the

guideline. U.S.S.G. § 5K2.13. The Government believes the

defendant in this case cannot attribute his actions to a

significant mental defect; rather they are more easily

attributable to a reasoned and fully culpable criminal mind.

Lastly, a downward departure should not be granted because

the defendant’s lengthy criminal record indicates a need to

incarcerate the defendant in order to protect the public. 

U.S.S.G. § 5K2.13.

WHEREFORE, the Government respectfully requests that this

Honorable Court:

A. Deny defendant’s Motion for a Downward departure; and

B. Grant any and all other relief it deems just.

Respectfully submitted,

THOMAS P. COLANTUONO

United States Attorney

January 26, 2007 By: /s/ Debra M. Walsh

Debra M. Walsh

Assistant U.S. Attorney

N.H. Bar Assoc. #7944

53 Pleasant Street

Concord, New Hampshire 03301

Debra.Walsh@usdoj.gov

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CERTIFICATION

I hereby certify that a copy of the foregoing motion has

been served, via electronic case filing, to Sandra Bloomenthal,

Esquire, counsel for the defendant, on January 26, 2007.

/s/Debra M. Walsh

Debra M. Walsh

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