1 “[#19]” is an example of the convention I use to identify the docket number assigned to a

specific paper by the court’s electronic case management and filing system (CM/ECF). I use this

convention throughout this order.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Robert E. Blackburn

Criminal Case No. 11-cr-00382-REB

UNITED STATES OF AMERICA,

Plaintiff,

v.

1. GABRIEL E. SILVA,

Defendant.

ORDER

(Finding of Competency)

Blackburn, J.

On December 12, 2012, the matter was before me to determine whether the

defendant has been restored to competency. At the conclusion of the hearing, I entered

findings of fact, conclusions of law, and orders from the bench. I enter this order to

confirm, explicate, and supplement those findings, conclusions, and orders.

The chronology of relevant events is as follows:

• That on December 15, 2011, I entered an Order Determining

Competency And Committing Defendant, see [#19]1

;

• That on July 30, 2012, the “Forensic Report” report of defendant prepared

by Dr. Lea Ann Preston Baecht was filed, see [#35]; and

• That on July 30, 2012, Joe Moorehead, as acting Warden of the Federal

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Bureau of Prisons U.S. Medical Center for Federal Prisoners at

Springfield, Missouri, filed a “Certificate of Competency,” see [#35].

On the record, considered as a whole, I enter the following findings of fact (which

are based on a preponderance of the evidence) conclusions of law, and orders:

1. That on December 15, 2011, I found and declared the defendant to be

incompetent and committed him to the custody of the Attorney General for

hospitalization as required by 18 U.S.C. § 4241(d)(1);

2. That during the course of hospitalization, a psychological evaluation of the

defendant was performed pursuant to my order;

3. That the resultant “Forensic Report” report opines cogently that the defendant

has been restored to competency, and that opinion is supported amply by the report;

4. That as required by 18 U.S.C. § 4241(e), the director, i.e., warden, of the

facility in which the defendant was hospitalized filed a “Certificate of Competency”

based on his determination, which I approve and adopt, that the defendant has

recovered to such an extent that he is able to understand the nature and consequences

of the proceedings against him and to assist properly in his defense;

5. That as required by 18 U.S.C. § 4241(e), I have held a hearing, conducted

pursuant to the provisions of 18 U.S.C. § 4247(d), to determine the competency of the

defendant;

6. That I now find by a preponderance of the evidence that the defendant has

recovered to such an extent that he is able to understand the nature and consequences

of the proceedings against him and to assist properly in his defense, within the meaning

of 18 U.S.C. § 4241(e);

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7. Pursuant to 18 U.S.C. § 3161(h)(1)(A) and (4), the period of delay resulting

from these competency proceedings, I.e., from September 26, 2011, to December 12,

2012, should be excluded in computing the time within which the trial must commence

under 18 U.S.C. § 3161(c); and

8. That pursuant to 18 U.S.C. § 4241(e), I must enter orders, to the extent

necessary, discharging the defendant from the facility in which he is hospitalized and

setting a date for trial or other proceedings.

THEREFORE, IT IS ORDERED as follows:

1. That the “Certificate of Competency,” [#35] filed July 30, 2012, is ACCEPTED

and APPROVED;

2. That the defendant Gabriel E. Silva HAS BEEN RESTORED to competency

and is competent to proceed;

3. That if the defendant has not already been discharged, then the defendant

SHALL BE DISCHARGED immediately from the hospital or the facility in which he is

hospitalized;

4. That pursuant to 18 U.S.C. § 3161(h)(1)(A) and (4), the period of delay, I.e.,

from September 26, 2011, to December 12, 2012, resulting from these competency

proceedings SHALL BE EXCLUDED in computing the time within which the trial must

commence under 18 U.S.C. § 3161(c); and

5. That this case is continued to February 1, 2013, at 8:30 a.m., for Trial

Preparation Conference in anticipation of trial commencing February 11, 2013. 

Done in chambers December 12, 2012, to confirm, explicate, and supplement the

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findings of fact, conclusions of law, and orders entered during the competency

restoration hearing held on December 12, 2012.

BY THE COURT:

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