competency evaluation despite the fact that three parties had already concluded that he was competent to stand trial in requesting that evaluation the prosecution did not question the judgment of the of the court appointed expert who determine that mr pino was content to stand trial only two weeks earlier in order to question the judgment of defense counsel or the court itself would also concluded that mr peter was competent the district court then misapplied the law by ordering that second evaluation without considering the results of the first evaluation or any other evidence the second unnecessary compensate evaluation ultimately delayed mr pinas trial by one hundred fifteen non excludable days and subjected him to the indignity of having his competency question for a second time without justification this delay violated mr p his rights under both the speedy trial act and the sixth amendment and the eggs know one of the things that confuses me in this area is there's a competency evaluation and a mental health evaluation or a competency determination and a mental health evaluation my right those are two separate things your honor there will the united states talks about this in its brief there is a competency hearing and a competency evaluation so the comp hearing is the holistic evidentiary proceeding that the district court conducts and then the common see evaluation is a referral to a court appointed expert in this case a psychologist ok and so my understanding was that the government made an oral motion for a second mental health evaluation because it was concerned that the first evaluations results were not accurate because your client was unwilling to answer questions during its clinical interview is that is that correct yes your honor that is correct and you're criticizing that yes your honor well so the government when it mentioned that mr pinas the results were were not conclusive because mr pina failed to answer certain questions substituted its judgment for the judgment of a court appointed expert who determined mr peanut was competent notwithstanding the fact of the fact that he refused to answer some of those questions the competency evaluation itself was bifurcated into two parts  the first was an actual conference evaluation which was a quantitative score scored out of a hundred points with a seventy required to pass mr peanut scored eighty for the second portion was a personality inventory and which the the evaluator asked questions about mr pinas marital status and even questions about his past intimate and sexual relationships and these these questions bear no intuitive relationship to mr penis comments to stand trial and especially in a matter such as this crimes of a sexual nature alleged it may have been reasonable for mr peanut to refuse to answer those questions however notwithstanding mr penis failure to answer those questions that the the expert concluded that stand trial but i know you were not the counsel at this point in the case his counsel objected to this second mental health evaluation is that right yes ron and what can refer the court to the citation when the district court did order that proceeding after receiving the quiet room the request the court said all right well of course the court believes that both parties both the government and the defense has the right to request a second evaluation if they have concerns with regard to the conclusions and or findings with regard to the initial evaluation and that is dr number one for one forty one that can that statement or that conclusion by the court yes  that is that that is a blatant misstatement of the law so section eighteen u s c forty two forty one requires that the court find reasonable grounds to doubt that the defendant is able to understand the nature of the proceedings against him and assist in its defense before a second valuation yes that is that is what the district court was trying to determine but under this court's decision united states versus davis which is a one thousand nine hundred six published decision of this court the district court may not arbitrarily substitute its judgment for the judgment of a court appointed expert when there is a first competency evaluation as there was in this case the court must weigh competing evidence and determine that reasonable grounds continue to exist to order the second evalu maintained throughout the entirety of the proceedings that mr pino was competent to stand trial the court itself conducted its extensive questioning of mr pino on the record more than forty questions asking him about the nature of the proceedings asking about which whether he understood and it after the second mental health evaluation this was before your honor this was when mr pina moved to initially continue the trial date what what triggered his second what triggered the first competency evaluation the second hearing and the first evaluation in that hearing was mr pinas motion to represent himself and to substitute his counsel and mr paine you did not object to the first mental health evaluation saw in the second yes your honor and we would concede that the time required for the first evaluation should be excludable were there other motions pending during the time that it took for the second evaluation such that your your claim is going to a speedy trial claim right yesterday that's that the speedy trial claim would be eliminated in any event by these other motions but no your honor we do not believe so and so the record shows that the proceedings were effectively stayed while competency was being questioned and i actually can refer the court to a specific citation from the record where judge rose says precisely this this is docket number one thirty six on page fourteen eighty one immediately after the court has ordered the second compensate evaluation mr pina asked if he would take another hearing and what effect that would have on the proceedings regarding his substantive motions and the court responds well unless i determine that you're capable of representing yourself i am assuming we can't go forward with the motions until you can represent yourself so mr pina is earth that here we have the court specifically stating that the proceedings regarding the substantive motions will not proceed until mr pinas competency has been the he intended to stay on as a legal advisor while mr pina represented himself but yes at that at the time mr peanut still did have an attorney and looks like looking at the record that he was determined to be disruptive of the proceedings when you say you know i wouldn't say that he was disruptive of the proceedings i would say that he was very assertive of his rights very protective of his rights there were some questions that he did refuse to answer but your honor again being a difficult defendant is not the same as being an incompetent defendant as this court's decision is but  extra obligation on the district court to try to get to the bottom of the problem will seem to me it does your honor but in this case when the district court ordered the second evaluation it had very substantial evidence in front of it it had already committed already question mr pino on the record which is not normal it had already referred him for compensate valuation and he had already been concluded competent not only to stand trial but to represent himself by the first  the responses were sometimes idiosyncratic some of his answers took an inordinate amount of time that being as stated he didn't understand the charges against him even after demarche has explained what they meant i don't want to waste your time but it sounded like there was enough to make the district judge worried well your honor it's true that mr p refused to answer some question about the nature of the charges but mr pina being very protective of his rights as he was throughout the proceedings would understandably have been hesitant to answer specific questions about the charges against him especially when he wasn't informed by the court appointed expert that only limited confidentiality applied to the proceedings and that the expert could be called to testify about the content the of their evaluation at trial i do want to pivot very quickly to why this time should not should be excludable under the speedy trial act notwithstanding the united states contention that all time for any proceeding should be excluded to hold that the district court committed reversible error in this case and nevertheless find that the time is not excludable under the speedy trial act would leave defendants exposed to potential abuses by the government of continually requesting competency evaluations without any recourse and this court is not bound by precedent to reach that conclusion the the closest holding to addressing this trial clock when the conference the proceedings exceed that time and that this court held that no that was not the case but that isn't it that is not applicable to the case before the court today we are asking the court to not exclude time language of the statute i like to discuss the question of the court's decision as judge moore noted the district court in the united states were concerned with the findings of the first report but we don't want to get into the details because we do have the sealed materials and we can read them but but i guess the question then would be how can a district judge reject the finding of competency by the mental health of value waiter when the issues appear to be ones that your opponent says have to do with an unwillingness of pia to get involved with describing what his charges were because he's going to be representing himself later on he hopes that the finding of competency by the evaluator is a piece of evidence that the district court judge can use to make his finding it is not a ironclad finding that binds the court so the district court in making its own finding can look in the content of the report and here the result was that conduct and so what did the district court say in ordering a second mental health evaluation did the district judge point to those types of things to the point to specific things or did he just say hey i'm worried caution going forward we'd like to see just a second about ration and the district judge said that in light of the lack of cooperation here greed and this was a public hearing and the results of course were under seal and so i imagine that some of his lack of specifics was due to that the defendant had to represent himself he had before  record by asking for the second evaluation if the united states of no request in the district had not ordered a second a valuation we felt that the record would be subject to criticism on appeal because they could look back at the first report and say i wasn't competent and it was inappropriate for me to go forward in the way to here are very weighty they are opponent raises the specter of multiple mental health evaluations not just two as in this case but three four five how how would you deal with that just continue if mr pea continues to refuse to answer questions and so forth he's confused about his charges would we do third evaluation be appropriate that's where the constitutional speedy trial claim comes we would say that the delay is still excluded under the speedy trial act which has a very formal calculation form but it would certainly be allowed to be relevant under the constitutional speedy trial claim usually it would be  unusual if multiple are necessary but without ill will evaluations weighed heavily in the constitutional speedy trial claim but that's that he suggested there would be no recourse if these were excluded under the statute and that's not correct there would be recourse under a constitutional speedy trial claim at the end of his argument your opponent was rep was mentioning these various  reasonable etc nor is there any other provision in the speech trial act that refers to that suggests that there is any merits consideration here and we have found no court that has found one  the language about when a court should grant a order a competency hearing an order a competency evaluation are in a separate statute that deals with the procedure for ordering compensate evaluations and that lays that out the standard that he not discussed in his briefs is relevant to the competency hearing which is the ultimate determination the language in the brief refers to the decision to open up competency and hold a final hearing that has any court merged the requirements of the two sections we have not found any the second the competency statute not the speedy trial statute the to clarify a couple of more questions that you asked my colleague here the defendant objected to the second evaluation but not on speedy trial grounds it wasn't an official evaluation his attorney who is still representing him at that point indicated that his client would prefer not to have  a evaluation the district court said the second about you ation the district court said in light it was like a corporation we're going to do this speedy trial wasn't raised at that time you need to raise it at that time no it's only relevant to the constitutional spee claim so i thought it was worth clarifying for that purpose but no he doesn't the and you also ask about the other motions that were pending there were two motions that were pending one was the brief and i do believe that that it was not clear on the record that he meant to continue all of them motions we believe it was just the motion to represent himself that he m exclude but so the motion to represent himself and the district judge said i'm not going to i'm going to stay ruling on that pending the competence and hearing so we shouldn't allow that to excuse  asserted error correction on the competency hearing but the other motion you're saying they do is a motion it was good evidence that was still pending that entire time and i think it would be permissible to rule on that even though that this was up in the air as to whether the defendant was representing himself or having counsel because it was unclear whether he was competent or not i think it would be correct under the law to do that for equitable reasons we went on we didn't rest on that nor briefs and went on to address it and i think it would be independent ground it is the lack of link between this company's language of the court's been discussing and the speedy trial act there was another issue in the case having to do with being country of origin labels yes  do you have anything that you want to add to your brief on that score sure i'll just underline that it's unnecessary for this court to reach that issue since the for each of the counts there were multiple types of evidence on the interstate commerce link and for all of the counts there was evidence of the use of internet and so even if the challenged evidence was inadmissible there was plenty of circuit and i believe elsewhere that would exclude this evidence where were the country of origin labels introduced only for one count or were they introduced for multiple counts they were introduced from multiple  counts but for the reason ice focused on one of those counts in the brief is that for the other counts for which country of origin label was introduced there were two other types of interstate commerce evidence one was the internet and the other was an independent statement of the expert about the international origin so so with respect to this one count one is only the internet that was it was the only the internet was the country of origin labels so there was two as opposed to three for this one count the one count notably was after they had objected and the district court had repressed of the united states to modify the way it was asking questions so this country of origin label testimony was specifically tailored to the request of the united states which was initiated by the fund and so it's an unusual circumstance i would just like to focus briefly on the the limited nature of the remedy that we're asking the court for today my colleague correctly points out that there is nothing inherently wrong with ordering multiple compensate evaluations however in this case and as this court's decision in davis makes clear there must be some sort of intervening evidence or some reason for the court to determine that reasonable grounds to doubt the defendant's kompany can compensate continue to exist in this case the evaluation was completed on august nineteenth and the second the second evaluation was requested on september ninth i believe so just not quite three weeks had passed between the conference evaluation and the second and the request for the second one there have been no proceedings in open court at that time and there again on the record the government pointed to no specific instances other than pinas failure to answer certain questions during the during the evaluation that would have justified is it not enough that the court saw some description of how the other defendant conducted himself in the evaluation even though they found him copied it nonetheless there was things in the record that the court determined let's let's get a second opinion is that are you saying that's not enough you can't just look at the the report itself from the first expert that maybe has some things in it that raises some questions in the judge's mind well your honor it is the court's duty to make the ultimate decision so yes it could be enough but in this case it the district court made no findings regarding what factors moved it to order the second evaluation it simply said the government has a right to request this and ordered it summarily so it could be enough but in this case it played no role so you're saying there should have been something more on the record honor there should have been some evidence weighing performed by the court there should have been some weighing of the competing evidence especially given the unique circumstance of this case is just how much evidence there wasn't front of the district court and it was totally disregarded in ordering the second eval and you said that it was a limited remedy when you got up for rebuttal what did you mean ari what is the remedy if we were to find in your favor that there was a speedy trial act violation well the remedy in this case would be i mean limited in the sense of would not apply to very many cases ok so the remedy in this is very clear what would your is vacation of the of the sentence and dismissal the indictment without prejudice without prejudice so he could be retried yes he could  but it's limited in the sense that there is not first of all second competency evaluations are not often ordered it's a very invasive process in this case the second evaluation took four months moved mr pina around from state to state evaluation took place itself in addition to the extensive transportation took place over the course of a month and these especially for the second time these proceedings should not be ordered when there is no reasonable grounds this present you think the district judges in a really hard spot though if he if he's concerned about the competency of someone especially someone who wants to represent himself and and he got perhaps what the examiner says is an uncooperative defendant isn't it seems like it's one of the less worst actions a district judge could take yes  what is required in this case is just the just given the evidence before it it is a tough position theoretically for district court judge to be in but in this case the judge had ample evidence before him and even if he had just considered it just weighed the evidence and said not withstanding all this evidence i have in front of me i'm going to order the second competency evaluation that might have been enough but the judge here did nothing of the sort and there were you know this is hard for all of us not having been there but one i'm stunned for a district judge would be to have it in camera a hearing where because of the sealed nature of the materials here do you know whether the record reflects that there was any in chambers meeting of the judge and the counsel there was a telephone conference conducted regarding mr pinas the competence or on the subject but it's just a doc and there is no transcript and i was not counsel below so i do not know what the content of that hearing was an excellent job and getting from it who the record in the case else and you've got a difficult case you represent your school very well for your actions here today and of course the u s attorney has done a fine job too but it's always a pleasure to see law students do an excellent job so thank you for your representation of your client thank you both for your representation of your clients and the case will be submitted but the clerk called the next case