UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 08-109-JD

Opinion No. 2009 DNH 122

Cedric Ross

O R D E R

A competency hearing was held on July 31, 2009, pursuant to

18 U.S.C. § 4241(c) and (d). On January 21, 2009, the court

issued an order (document no. 15) granting the defendant's motion

(document no. 13), agreed to by the government, for an evaluation

to determine his mental competency to stand trial. The history

of prior evaluations of the defendant and the results of those

evaluations are summarized in the defendant's motion and in the

reports hereinafter referred to and will not be repeated here.

In connection with this case and in response to a request

filed by the defendant, on December 23, 2008 the court ordered a

competency examination by Dr. Albert Drukteinis, who had

previously evaluated the defendant in connection with state court

proceedings. In his report dated December 30, 2008, Dr.

Drukteinis came to a number of conclusions, the following of

which the court finds to be of significance in determining the

defendant's competency to stand trial:

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. . . Mr. Ross' current presentation is quite unusual

and with strong evidence of Malingering. Also, with

the background information available, and the

observations at New Hampshire Hospital, there is no

evidence to date that he has a serious mental illness

which would substantially impair his ability to

perceive or understand reality, or to rationally

interpret his environment. He does have evidence of

Polysubstance Abuse, and a possible Cognitive

Disorder/Learning Disorder, along with Mild Mental

Retardation. . . .

. . . Mr. Ross' responses to traditional questions

posed in competency to stand trial evaluations, and his

responses to the CAST-MR, are not a reliable measure of

his actual impairment. In fact, it more likely than

not that Mr. Ross is much less impaired than he

presents. . . . Certainly the type of mental condition

that he has is not one that would be expected to

deteriorate with time in a significant way, barring

some superimposed psychological or drug related

factors. On the other hand, even if Malingering is

present, this does not mean that he is not cognitively

impaired in some way. The diagnosis of Mild Mental

Retardation alone can significantly limit his

intellectual functioning and, by extension, his

competency to stand trial. Therefore, while

Malingering appears to overshadow Mr. Ross' current

presentation, it was not possible during this reevaluation to affirmatively demonstrate his competency

to stand trial. Further observation in a setting where

skilled professionals could monitor his behavior over a

longer period of time, with a specific focus on such

things as the degree of malingering, inconsistencies in

his actions, and evidence of analogous functions to

those required to be competent to stand trial, might be

helpful.

Following the evaluation by Dr. Drukteinis, the defendant,

with the assent of the government, moved for an evaluation by the

Bureau of Prisons (document no. 13).

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Pursuant to the court's order of January 21, 2009, the

defendant was evaluated at the Federal Medical Center in Ayer,

Massachusetts, by Dr. Shawn E. Channell, Forensic Psychologist,

who filed a report dated June 8, 2009. That report, among other

matters, sets forth the defendant's mental health history,

including previous evaluations dating back to 2003. That history

will not be repeated here.

In the section entitled "CLINICAL FORMULATION," Dr. Channell

came to a number of conclusions, the following of which the court

finds to be significant in determining the defendant's competency

to stand trial:

Mr. Ross's history shows clear evidence of malingering

at least as early as 2003. . . . During both of Dr.

Drukteinis's evaluations in 2008, Mr. Ross showed clear

evidence of deliberately performing poorly on measures

of cognitive abilities and Dr. Drukteinis diagnosed him

with Malingering during both evaluations. During the

course of the current evaluation, Mr. Ross continued to

present with minimal effort to do well during testing

or to provide information during interviews. His

performance on the VIP and a forced-choice competency

instrument (discussed below) clearly suggest a

deliberate effort to appear more cognitively impaired

than is actually the case....

Based upon his presentation and performance on

psychological testing, Mr. Ross has been diagnosed with

Malingering. According to the Diagnostic and

Statistical Manual of Mental Disorders-Fourth EditionText Revision (DSM-IV-TR), the essential feature of

Malingering is the intentional production of false or

grossly exaggerated physical or psychological symptoms,

motivated by external incentives, including the

possibility of evading criminal prosecution.

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The fact that Mr. Ross is diagnosed with Malingering

does not necessarily mean he does not have genuine

cognitive limitations. However, his consistent history

of poor effort and exaggeration seriously calls into

question the veracity of his previous diagnoses of

Cognitive Disorder Not Otherwise Specified (NOS) and

Mild Mental Retardation. . . . .

. . . In summary, while it cannot be said in certainty

what Mr. Ross's true level of intellectual functioning

is, it can be said that it is greater than that

demonstrated by formal testing. Similarly, while it is

not possible to entirely rule out the possibility that

Mr. Ross does have significant intellectual

limitations, neither can he be given the diagnosis of

Mental Retardation with any degree of clinical

certainty. Given his history, it is more likely that

he would meet diagnostic criteria for Borderline

Intellectual Functioning. Borderline Intellectual

Functioning is distinguished from Mental Retardation

primarily by the degree of impairment in intellectual

and adaptive functioning, with significantly greater

impairment for individuals with Mental Retardation.....

In that section of his report entitled "OPINION ON PRESENT

COMPETENCY TO STAND TRIAL," Dr. Channell drew the following

conclusions, among many others, that the court considers

significant:

. . . As was previously discussed, Mr. Ross was not

diagnosed by this evaluator with Mental Retardation,

however, he does appear to have borderline intellectual

functioning. . . . It is this evaluator's opinion that

Mr. Ross has exaggerated his intellectual and cognitive

difficulties in an effort to avoid the legal

consequences of his criminal charges. As appears to

have been the case in the past, Mr. Ross may continue

to attempt to exaggerate his deficits and not put forth

his best effort in court or other evaluations, as this

has thus far proven to be a successful strategy for

him. Interestingly, while Mr. Ross has attempted to

present himself as unable to assist in his defense, his

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malingering itself shows that not only is he aware of

the seriousness of the present charge, he is motivated

to act in a way he believes will help him in his case. 

In conclusion, it is the opinion of the undersigned

that Mr. Ross is not presently suffering from a mental

disease or defect rendering him mentally incompetent to

the extent he is unable to understand the nature and

consequences of the proceedings against him or to

assist properly in his defense.

The court must review all of the evidence that is before it

to determine by a preponderance of the evidence if the defendant

is presently suffering from a mental disease or defect that

renders him mentally incompetent to the extent that he is unable

to understand the nature and consequences of the proceedings

against him or he is unable to assist properly in his defense. 

18 U.S.C. § 4241(a). The court has considered the evaluations by

Dr. Drukteinis dated December 30, 2008 and August 13, 2008, the

evaluation by Dr. Channell dated June 8, 2009, and the testimony

of Dr. Channell at the July 31, 2009 hearing.

As recommended by Dr. Drukteinis in his December 30, 2008

report, Dr. Channell had the opportunity to observe and monitor

the defendant over a period of several months during which time

the defendant was administered a battery of psychological and

other tests. The court finds, as determined by Dr. Channell,

that the defendant has "Borderline Intellectual Functioning" with

"limited, though not significantly impaired, intellectual

abilities." The defendant has an established history of

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malingering and this has been reflected in the results of the

many evaluation tests that have been administered to him. While

he relies, to a very significant degree, on his attorney to tell

him what to do, he is not without some understanding of the legal

process although that understanding may be limited. Indeed, it

is not unusual for defendants in criminal cases to rely heavily

on the advice of their counsel given the complexity of the law,

the sentencing guidelines, the sentencing process, the plea

bargaining process, and the trial process. Dr. Channell noted

that "it also appeared that Mr. Ross possessed greater knowledge

of the legal process than was demonstrated."

Taking into account all of the evidence before the court,

the court finds that the defendant meets the standard of 

competency to stand trial.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

August 12, 2009

cc: Terry L. Ollila, Esquire

Jonathan R. Saxe, Esquire

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