U.S. v. MOREHOUSE

326 F.Supp.2d 172 (2004) | Cited 2 times | D. Maine | July 22, 2004

ORDER REQUIRING BUREAU OF PRISONS TO CONDUCT EVALUATION PRIOR TO SENTENCING

Steven Lawrence Morehouse has been defrauding banks fordecades. He devised and repeatedly perpetrated a sophisticatedscheme for securing personal identification information fromunwitting strangers and then stealing from banks. Mr. Morehousewould set down in small towns from Maine to North Carolina andwould set up a fictitious business. He would then advertise foremployees and when individuals responded, he would extractpersonal identification information from them. He would proceedto open up a series of checking accounts in the name of thefictitious business using false ids. Once the checking accountwas established in one community, he would duplicate the schemein other communities and proceed to kite checks among the bankaccounts. When the putative bank balance reached sufficientlyhigh proportions, he would withdraw the entire balance anddisappear, only to re-emerge elsewhere and repeat the scheme.

Mr. Morehouse was remarkably successful; he has pleaded guiltyto absconding with a total of over $360,000.00, since December1980. Mr. Morehouse's criminal livelihood came to an end after anastute bank teller in Ellsworth, Maine recognized him as the sameperson who had defrauded the same bank some ten years ago. Havingnow pleaded guilty, Mr. Morehouse has posited his current mentaland physical condition as a mitigating factor in this Court'simposition of sentence. To obtain objective clarification of the issues Mr.Morehouse has raised, the Court hereby ORDERS that Defendantundergo a pre-sentence evaluation, pursuant to18 U.S.C. § 3552(b).

The issue of Defendant's current level of cognitivefunctioning, and the presence or absence of memory problems, hasbeen raised before the Court in two fashions. First, the U.S.Probation Office has recommended, in the PresentenceInvestigation Report, that Defendant's sentence not be reducedfor acceptance of responsibility. It bases its recommendation onits conclusion that Defendant was uncooperative with its attemptsto conduct a presentence interview and was deliberately obtuse inhis responses to questions when he finally appeared. Defendanthas objected to this recommendation, arguing that his behavior,lack of recall and missed appointments resulted from memoryproblems caused by a stroke he suffered in 2002.

Second, Defendant has moved for a downward departure underU.S.S.G. § 5H1.1. He argues that he is elderly and infirm andthat an alternate form of punishment would be equally efficientand less expensive than incarceration. He bases his claim ofinfirmity in large part on cognitive deficits and memoryproblems. He has submitted numerous medical records in support ofthis motion. The Government has objected to a downward departure.

After considering the briefs and medical records, the Courtconcludes that it desires more information than is currentlyavailable to it as a basis for determining the sentence to beimposed on Defendant. In particular, the Court cannot determinewhether the Defendant's physicians' opinions are objective,scientific assessments or reflections of patient advocacy. Mr.Morehouse sustained a stroke on February 17, 2002 and wasadmitted to the Catholic Medical Center from February 17 throughFebruary 20, 2002. By March 19, 2002, Dr. Jerry Blaine, histreating internist, noted the following: "This patient is a 65year old male with new atrial fibrillation, hypertension, and a mild embolic stroke without sequelae."(emphasis supplied). Dr. Blaine, who had been his treatingphysician for years, continued to treat Mr. Morehouse from March19, 2002 to date. Although Dr. Blaine saw Mr. Morehouse on June24, 2002, October 3, 2002, December 16, 2002, and December 26,2002, his notes make no mention of any memory problems. The firstmention of memory issues in Dr. Blaine's notes occurs on March27, 2003, when Mr. Morehouse complained to Dr. Blaine that "hismemory is not quite the same since the TIA. He wonders if he hadsome damage done as a result of that." Mr. Morehouse had beenindicted on February 12, 2003, arrested on February 19, 2003, andbailed on the same day. On February 28, 2003, he had appeared inthis Court, entered a not guilty plea, and had been admitted tobail.

The presentence report states that Mr. Morehouse engaged in hisfraudulent scheme after the February 17, 2002 stroke. On March 9,2002, he initiated a scheme in Damariscotta, Maine, securingpersonal identification information from a Bar Harbor, Maineresident and on March 14, 2002, he sought to complete a scheme inEllsworth, Maine involving the use of the personal identificationinformation involving a Lincoln, Maine resident. Mr. Morehousewas initially stopped by police on March 14, 2002, but wasreleased on March 15, 2002. In October, 2002 through January,2003, Mr. Morehouse posed as another individual under afictitious company name and opened an account in one bank, andthen posed as another individual under another fictitious companyname and opened another account in another bank. Between October4, 2002 and January 24, 2003, he kited checks between the twoaccounts and caused losses in excess of $18,000 to the two banks.

Dr. Jerry Blaine has expressed the professional view that "Mr.Morehouse's memory problems . . . came about as a result of hisstroke." He has also stated that his medical condition preventshim from being placed "under any type of pressure, as this couldeasily lead to serious health problems or even recurrence of the stroke he suffered inFebruary, 2002." Dr. Blaine has advised Mr. Morehouse not to"subject himself to a session of several hours of intensequestioning."

The Court is unable to reconcile Dr. Blaine's medical opinionswith the other evidence before it. The Court therefore ORDERSthat a study be conducted pursuant to 18 U.S.C. § 3552(b) toevaluate Defendant's medical and psychological condition andprognosis and the availability of treatment, as set forth morefully below.

Pursuant to 18 U.S.C. § 3552(b), the Court finds there is acompelling reason for the study to be done by the Bureau ofPrisons and a federal medical center, because of (1) the need fora global, objective assessment of Defendant's medical andpsychological conditions and prognosis; and, (2) the need for theexamining physician(s) to be knowledgeable of the treatmentoptions available within the Bureau of Prisons, and the relativecost of alternative forms of punishment.

SCOPE

The Court ORDERS that the Bureau of Prisons conduct acomprehensive evaluation of the Defendant to determine hiscurrent medical and psychological condition. The Court requeststhis evaluation include not only physical and psychologicalexamination and testing, but also review of all historicalmedical and psychological records provided by the parties. TheCourt specifically requests the evaluation address Defendant'scurrent level of cognitive functioning, with special emphasis onmemory loss, if any, in addition to any other disease, conditionor illness detected during the evaluation.

Pursuant to 18 U.S.C. § 3552(b), this Court further ORDERS theBureau of Prisons and its professional consultants to study anyadditional matters the Bureau of Prisons or its professionalconsultants believe are pertinent to the factors set forth in18 U.S.C. § 3553(a), including: (1) the nature and circumstances of the offense and the history andcharacteristics of the Defendant; (2) the need for the sentenceto protect the public from further crimes of the Defendant; and,(3) to provide the Defendant with needed medical care or othercorrectional treatment in the most effective manner.

REPORT

The Court ORDERS that upon conclusion of its evaluation andreview of Defendant and his medical records, the Bureau ofPrisons submit to the Court a report setting forth the results ofthe evaluation and addressing the following topics and any othermatters that the Bureau of Prisons or the professionalconsultants believe are pertinent: 1. The clinical diagnosis for each medical or psychological condition, illness or disease detected during the evaluation; 2. If the evaluation reveals that Defendant is suffering from cognitive impairment or memory loss: a. the extent of that impairment or memory loss; b. the date of onset; c. the explanation, if any, for delayed onset; d. the likely cause or causes, including secondary motive, if applicable; e. the prognosis, including whether the impairment or memory loss is likely to be progressive, and if so, why; and, f. whether Defendant's medical and psychological records, or records relating to his criminal conduct or conduct throughout the pendency of court proceedings, reveal behavior that is inconsistent with a finding of cognitive impairment or memory loss. 3. Defendant's prognosis as to each diagnosis, and his prognosis considering his condition as a whole; 4. whether treatment for each of the diagnoses is available at a Bureau of Prisons facility, and if so, which facility or facilities; and, 5. whether, given his current condition and prognosis, an alternative form of punishment, such as home confinement, would be equally efficient as and less costly than incarceration of Defendant.

The Bureau of Prisons or the professional consultants shallprovide the Court with a written report of the pertinent resultsof the study and make to the Court whatever recommendations theBureau or the consultants believe will be helpful to a properresolution of the case. The report shall include recommendationsof the Bureau or its consultants concerning the guidelines andpolicy statements, promulgated by the United States SentencingCommission pursuant to 28 U.S.C. § 994(a), that they believe areapplicable to the Defendant's case, including specifically §§5H1.1 and 5H1.4, if applicable

Counsel for Defendant is instructed to provide all availablemedical records to the Bureau of Prisons facility designated toconduct the evaluation, along with a chronological history oftreatment events.

Pursuant to 18 U.S.C. § 3552(b), the evaluation shall becompleted and the report submitted to the Court within 60 days.For good cause shown, the Bureau of Prisons may request that theCourt extend the period for the study and report by an additional60 days.

This order shall be treated for administrative purposes as aprovisional sentence of 30 years imprisonment, the maximum termof imprisonment authorized by 18 U.S.C. § 3581(b) for the offensecommitted. When the evaluation is complete, the United StatesMarshal shall return Defendant to the Court for final sentencing.

SO ORDERED.

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