USA v. Andasola

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 1:17-CR-00427-WJM
UNITED STATES OF AMERICA,
Plaintiff,
v.
1. JOSE BURCIAGA ANDASOLA,
Defendant.
UNOPPOSED MOTION TO DETERMINE MENTAL COMPETENCY OF DEFENDANT
COMES 	NOW, 	Defendant’s 	Counsel, 	Arnulfo 	D. 	Hernández, 	Esq., 	of 	the 	law 	firm 	of
HERNANDEZ & ASSOCIATES, P.C., and, respectfully requests this Court grant this Unopposed
Motion to Determine Mental Competency of Defendant. In support thereof, Defendant states as follows:
DUTY TO CONFER
1. 	Undersigned Counsel duly conferred with Assistant U.S. Attorney, Beth Gibson, Esq., on May 8,
2018, regarding this motion. Ms. Gibson does not oppose to this motion.
PROCEDURAL B ACKGROUND
2. 	On or about November 6, 2017, a Criminal Complaint was filed with this Court regarding Mr.
ANDASOLA and a subsequent warrant for his arrest was issued.
3. 	On or about November 7, 2017, Mr. ANDASOLA had his initial appearance before this Court.
4. 	After extensive work and diligent efforts, on or about March 1, 2018, a Notice of Disposition was
filed by Counsel, on behalf of Defendant.
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5. 	Defendant is currently set for a Change of Plea on Thursday, May 17, 2018.
ARGUMENT
6. 	This Motion is being filed pursuant to 18 U.S.C.A. § 4241.
7. 	This Court must find by a preponderance of the evidence that Mr. ANDASOLA is 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 assist properly in his defense. See 18
U.S.C. § 4241 (West).
8. 	Counsel is filing this motion as soon as practicable, pursuant to his ethical duty and with a serious
concern that Mr. ANDASOLA may not be competent to proceed with his Change of Plea hearing.
See, U.S. v. Howard, 381 F.3d 873 (9th Cir. 2004); see also, Godinez v. Moran, 509 U.S. 389, 396
(1993) (A defendant “may not waive his right to counsel or plead guilty unless he does so
‘competently and intelligently.’”).
9. 	On multiple occasions, Counsel has been diligent in reviewing and explaining all related issues in
this matter with Mr. ANDASOLA.
10. Counsel first met with Mr. ANDASOLA to review all documented discovery on or about January 14,
2018.
11. Upon conclusion of the January 14, 2018, meeting concerns were raised by Counsel regarding Mr.
ANDASOLA’s mental health.
12. Upon receiving additional video discovery, Counsel met with Mr. ANDASOLA on January 31,
2017, and reviewed the video discovery with him.
13. During said meeting, Mr. ANDASOLA displayed behavior that once again raised concerns regarding
his understanding of the current proceedings, however, this behavior alone, in counsel’s opinion, did
not rise to the level of warranting a request for a mental health evaluation.
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14. Since, Counsel has met with Mr. ANDASOLA on many subsequent occasions, to further explain and
discuss the Government’s case against him, including the charges and statutory penalties related to
the charges.
15. Most recently, Mr. ANDASOLA is displaying a mental condition that has unequivocally given rise
to the filing of this motion.
16. Mr. ANDASOLA has made serious allegations concerning this case, his family, Counsel, Counsel’s
firm and is completely refusing to cooperate with Counsel or take Counsel’s advice.
17. At this time Counsel firmly believes that Mr. ANDASOLA is presently suffering from a mental
disease or defect rendering him mentally incompetent to the extent that he is unable to understand
the nature and consequences of the proceedings against him or to assist properly in his defense.
18. Based on the aforementioned, Counsel has reasonable cause to believe a competency evaluation is
essential before this matter can proceed.
19. Therefore, in the interest of justice, Counsel requests this Unopposed Motion to Determine Mental
Competency of Defendant be GRANTED.
DATED, at Denver, Colorado, this 9th day of May, 2018.
HERNANDEZ & ASSOCIATES, P.C.
/s/Arnulfo D. Hernández
Arnulfo D. Hernández, Esq.
1490 Lafayette Street, Suite 307
Denver, Colorado 80218
Telephone: (303) 623-1122
E-mail: ahernandez@hdezlaw.com
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CERTIFICATE OF SERVICE
I hereby certify that on this 9th day of May, 2018, I electronically filed the foregoing
UNOPPOSED MOTION TO DETERMINE MENTAL COMPETENCY OF DEFENDANT with
the Clerk of Court using the CM/ECF system which will send notification of such filing to the following
e-mail addresses:
Beth N. Gibson, Esq.
U.S. Attorney's Office-Denver
1801 California Street, Suite 1600
Denver, CO 80202
Phone: 303-454-0100
Fax: 303-454-0406
Email: Beth.Gibson@usdoj.gov
Further, I hereby certify that a true and correct copy of the foregoing UNOPPOSED MOTION
TO DETERMINE MENTAL COMPETENCY OF DEFENDANT was delivered, via U.S. First
Class Mail, on this 9th day of May, 2018, to the following:
Jose Burciaga Andasola, Defendant
(Register Number: 44441-013)
FCI Englewood
9595 W. Quincy Avenue
Littleton, CO 80123
HERNANDEZ & ASSOCIATES, P.C.
/s/Arnulfo D. Hernandez
Arnulfo D. Hernández, Esq.
1490 Lafayette Street, Suite 307
Denver, Colorado 80218
Telephone: (303) 623-1122
Facsimile: (303) 893-6116
E-mail: ahernandez@hdezlaw.com
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