USA v. Havier

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Jaymes Havier,
Defendant.
No. CR-23-00125-001-TUC-SHR (EJM)
ORDER
Pending before the Court is a Report and Recommendation (“R&R”) (Doc. 79)
issued by United States Magistrate Judge Eric J. Markovich, recommending the Court find
Defendant Jaymes Havier remains incompetent to stand trial notwithstanding substantial
efforts to restore him to competency. The government has filed an Objection (Doc. 83)
and Defendant has filed a Response (Doc. 84). For the following reasons, the Court will
adopt the R&R and refer this matter back to the Magistrate Judge for a recommendation
regarding whether Defendant can be restored to competency through further restoration
efforts.
I. Standard of Review
When reviewing a magistrate judge’s R&R, this Court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the magistrate judge’s
findings and recommendations de novo if objection is made, but not otherwise.” United
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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in
original). However, objections to R&Rs “are not to be construed as a second opportunity
to present the arguments already considered by the Magistrate Judge.” Betancourt v. Ace
Ins. Co. of Puerto Rico, 313 F. Supp. 2d 32, 34 (D.P.R. 2004); see also Camardo v. Gen.
Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (“The
purpose of the Federal Magistrates Act is to relieve courts of unnecessary work” and
“[t]here is no increase in efficiency, and much extra work, when a party attempts to
relitigate every argument which it presented to the Magistrate Judge.”). If, following
review, “the district court is satisfied with the magistrate judge’s findings and
recommendations it may in its discretion treat those findings and recommendations as its
own.” Morris v. Shinn, No. CV 20-322-TUC-JAS (EJM), 2023 WL 6248830, at *2 n.5
(D. Ariz. Sept. 26, 2023) (quoting Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995)).
District courts “conduct proper de novo review where they state they have done so, even if
the order fails to specifically address a party’s objections.” United States v. Ramos, 65
F.4th 427, 433–34 (9th Cir. 2023) (“[T]he district court ha[s] no obligation to provide
individualized analysis of each objection.”).
II. Background
The R&R provides a detailed recitation of the factual and procedural history in this
matter. (Doc. 79.) The government does not object to, and the Court adopts, the facts set
forth in the R&R. Defendant was charged in February 2023 with second degree murder.
Defense counsel requested Dr. Barry Morenz conduct a competency evaluation of
Defendant. Dr. Morenz issued a report opining Defendant is not competent to stand trial.
Based on Dr. Morenz’s evaluation, the parties stipulated Defendant was not competent.
The Court entered an Order of Commitment directing Defendant be committed to the
custody of the Attorney General to be hospitalized in an in-patient competency restoration
program in a Bureau of Prisons (BOP) medical facility for a reasonable time period, not to
exceed four months. The Court subsequently entered an Order of Continued Commitment
extending the commitment period for forty-five days. After completing that program, Dr.
Nicole Osborn opined Defendant had been restored to competency. Dr. Morenz
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subsequently conducted another evaluation of Defendant and opined he remains
incompetent to stand trial.
The Court held a competency hearing in September 2025, at which Dr. Osborn and
Dr. Morenz testified. In January 2026, Magistrate Judge Eric J. Markovich issued the
instant R&R concluding the government had not met its burden of showing Defendant
understands the nature and consequences of the proceedings against him or can assist his
attorney in his defense and recommending the Court find Defendant remains incompetent
to stand trial. (Doc. 79.) The R&R does not conclude whether Defendant may be restored
to competency through further restoration attempts.
III. Discussion
In concluding Defendant remains incompetent to stand trial, the Magistrate Judge
assigned “more weight” to Dr. Morenz’s expert testimony than Dr. Osborn’s testimony
because Dr. Morenz “has far more experience than Dr. Osborn,” Dr. Morenz was “in a
better position to assess” Defendant’s “ability to retain legal concepts” he learned during
his initial restoration program, and “Dr. Osborn did not provide adequate support for her
opinions that the defendant understands the proceedings and can assist counsel.” (Doc. 79
at 42–46.) The crux of the government’s Objection is the Magistrate Judge erred in
assigning greater weight to Dr. Morenz’s expert testimony than Dr. Osborn’s testimony.
According to the government, it “defies common sense” to assign Dr. Morenz’s opinion
more weight when Dr. Osborn “assessed the defendant for four months,” whereas Dr.
Morenz only “sat down” with Defendant for “90 minutes.” (Doc. 83 at 4.) The government
further asserts Dr. Osborn’s report is “replete with 25 pages of observations and analysis”
whereas Dr. Morenz’s report “consists of a paltry two pages of actual competency
analysis.” (Id.)
The Magistrate Judge extensively cites the testimony provided and thoroughly
explains why he assigned more weight to Dr. Morenz’s opinion when considering the
doctors’ divergent opinions. (Doc. 79 at 42.) As stated in the R&R, Dr. Morenz “has
conducted over 1,000 competency evaluations” whereas Dr. Osborn has conducted
approximately 50 evaluations. (Id.) Further, unlike Dr. Osborn, “Dr. Morenz evaluated
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the defendant before and after he went through the competency restoration program.” (Id.
at 42–43.) The Magistrate Judge additionally addressed numerous inconsistencies in Dr.
Osborn’s testimony before assigning more weight to Dr. Morenz’s testimony. (Id. at 43–
46.) Assigning greater weight and credibility to one expert over another is within the
province of the Magistrate Judge and, having reviewed the record, the Court agrees with
the R&R’s conclusion Dr. Morenz’s opinion is more credible. See United States v. Frank,
956 F.2d 872, 875 (9th Cir. 1991); United States v. Landeros-Vargas, 39 F. App’x 501,
503 (9th Cir. 2002) (stating it is within the district court’s discretion in the performance of
its fact-finding and credibility functions to assign greater weight to the findings of one
expert over another’s).
The government further asserts the Magistrate Judge disregarded the depth of Dr.
Osborn’s report and focused solely on testimony presented at the competency hearing.
(Doc. 83 at 5.) As previously discussed, Dr. Morenz evaluated Defendant both prior to and
following Defendant’s time in a restoration program. The Court finds Dr. Morenz was
better suited to assess Defendant’s retention of legal concepts when conducting the
examination that served as the basis for his most recent report. Accordingly, regardless of
the depth of either report, Dr. Morenz’s report is more credible than Dr. Osborn’s. The
Court will adopt the R&R and find Defendant remains incompetent to stand trial.
As to next steps, the government asks the Court to order Defendant “be sent back to
a BOP-medical facility for re-restoration to competency.” (Doc. 83 at 3.) Defendant, in
reply, asserts he “spent four months in restoration and ample time thereafter with . . .
counsel attempting to re-educate him” and there is thus “nothing to support a substantial
probability [he] will be competent in the foreseeable future, warranting a second referral
to a BOP restoration facility.” (Doc. 84 at 10 (citing U.S. v. Loughner, 672 F.3d 731, 766-
772 (9th Cir. 2012).) The Court has already found Defendant incompetent to stand trial
and committed him to a BOP medical facility for over four months. Therefore, at this
point, the Court will only commit Defendant “for an additional reasonable period of time
. . . if the court finds that there is a substantial probability that within such additional period
of time he will attain the capacity to permit the proceedings to go forward.” 18 U.S.C.
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§ 4241(d)(2); see also Jackson v. Indiana, 406 U.S. 715, 738 (1972). The Court will refer
the matter back to the Magistrate Judge for a recommendation on this issue. The Magistrate
Judge may make a recommendation based on the existing record or order further briefing
from the parties and conduct further hearings as necessary. Accordingly,
IT IS ORDERED the R&R (Doc. 79) is ADOPTED.
IT IS FURTHER ORDERED this matter is referred to Magistrate Judge Eric J.
Markovich for a recommendation as to whether further attempts at restoration should be
pursued.
Dated this 8th day of June, 2026.
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