i'm doris randall holt the federal defender from the western district or tennessee and i'd like to reserve two minutes for about today i speak to this court on behalf of miss kim de parole the written prescriptions for no medical legitimate for no legitimate medical purpose and because she's asking you to review this issue because if mr du bruel was incompetent at the time of  he could not appreciate the plea offer that was offered him prior to trial was basically i've got a crazy husband that i can conspire with exactly yana are two different time periods of time that's right ruling that we do have here is that he was competent during the trial which is a third time right exactly and well there's never been a ruling ok where this comes to us is that there was a motion below for a new trial a spring based upon the attorneys letter i guess to the court of whatever was raising the competency issue was there ever a ruling on the did and let me tell you how they got there there were three mental health evaluations the first when was immediately after trial he had a terrible counsel at trial counsel had no meaningful discussions i mean there are things that happened at the trial that the paper that the written words at the on the transcript does not reflect elbow counsel asked once he was appointed as counsel he asked a district court to appoint him the district court appointed him to represent him he filed a motion to have me valuated that evaluation came back it was he was sentencing before sentencing yes your honor and i thought these competency evaluations with whether he was competent during the trial itself is right that they are but they also work went back to during the competency during the offense and i why would we do that again i'm asking you to look at the the district court's whole order his order he dealt with each one of them in that one order he said he found that he was competent d trial he was competent to proceed to sentencing and he was competent at the time of the offense after the bert mental health evaluation because the first two mental health evaluations said that he was not competent ok so why should we read litigate those issues that because we submit that the district court committed clear air because i mean he clearly just griffin there all three of these mental health evaluations found the same diagnosis axes to personality disorders and axis one delusional disorder the only difference is that the third one from the forensic panel not the to be o p doctors she found that she placed more emphasis on the personality disorders because he had he was familiar with the law he found motions trial judge found that she was she had greater expertise than the other doctors that she had spent more time in the evaluation that her opinions were entitled to agree or wait and  were given greater weight that's that's a fact finding that's pretty hard to get worse on appeal this is fact finding but if you if you if you look at these other evaluations and look at the time that they did and what they did do but what get what he gave more weight to her decision was because she said her decision was peer reviewed and what she was talking about is exactly what these other two doctors did they discussed their decisions with their colleagues that's all she did peer reviewed she had been looked at say in forensic panel had been slam once before but honorable judge bernice donnelly united states versus she'll when they say that peer reviewed she was hired by the forensic panel the people that she consulted with michael welner the chairman of the forensic panel and another doctor all three of these people are eating off the same plate this you know when you think of peer review you're thinking of someone that's outside of your group someone that you do your work and you let another professional outside of your group look at it that's not what happened here and but the district the judge gave her a lot of weight because she used that term peer review and the other should have been given more weight because she was peer reviewed and it was noted by the district court that the other two physicians and needed on cross examination that there there did their decisions were not peer review i think they would they would if they had been  is because saying that would be different from saying well i went to some physicians who were on connected to me and discussed this case with them or discussed and discussed it maybe i i don't see a difference i think what she did she consulted with ha peers and those doctors did too she just use it time and gave the court i think the illusion that hers was something more she did do a little more than the others but i would say that these doctors who have done hundreds of mental health evaluations knew what was required for them to be able to tell when a person is feigning a mental illness or my lingering they know how much they need to do she yes she talked to a few more witnesses than they did you know dr dwyer didn't read it in page to ten day trial transcript please the court my name is meghan rogers and i represent the appellate mr du bruel i'd like to reserve two minutes of my time for about all i want to start by addressing judge griffin's question about why this court should review the decision of competency and the reason for that is simple the district court was focusing on the wrong question when analyzed competency here the just record here was focused on mr du bruel ability to understand and follow basic court rules and procedures rather than his ability to adequately assessed in his own defense which is a constitutional requirement we see in this case that mr du bruel is delusional disorder was acknowledged by every single party in the case beginning with the government over two years before trial ever started and all three examining experts concluded that he suffered from delusional disorder which is a psychotic disorder and the record shows and i think this this point is really important the mr du bruel was consistently fixated on the same delusions before trial during trial and after trial so to give the court some examples before trial he stated that the proceedings were related to an international conspiracy involving merck and i went back to the day that they pulled by x from the market and their stock dropped billions of dollars that's a docket number fifty two after trial he wrote that a child was not allowed to testify at his trial due to sexual molestation related to that same stock drop exchange the same stock exchange man stock at one seventy nine before trial he stated that he was a world famous physician during trial he attempted to serve as his own expert witness before trial he said that the government was trying to kill him after a trial he said that favorable witnesses were found dead under suspicious circumstances both of his lawyers mr mcafee and mr sampson stated that they were unable to work with him because he was dumped had the meetings were dominated with his fixation on problem that's right i'm not a mental health professional but the point here is that the record is full of these examples that show just how fixed these delusions were in mr de brawls minds and how they affected his presentation and his defense of his i think all three of the experts actually testified that he bent over all testify this explicitly but he bent over backwards trying to convince dr dwyer that he was not suffering from any mental issues during the evaluation and all three of the medical about government and all sorts of stuff that they're not all incompetent are they there i can't i can't be delusional but they're not incompetent to stand trial and you've got all these militia tie knots running around and all sorts of things that have conspiracy theories with the make them incompetent for legal purposes it doesn't necessarily render a person incompetent but here mr du bruel had been diagnosed with delusional disorder and you see throughout the record that it was affecting the his ability to assist in his own defense and i would also point out that the standard to go to trial for competency is lower than the standard to represent oneself pro se and he was permitted to represent himself pro se in this trial i think that was a clear  as what do we have what is the legal standard is it abuse of discretion by the trial court and for example allowing him to represent himself he has a constitutional right to represent himself as he does have a constitutional right to represent itself assuming that he's competent and he made that the absolutely i am glad you brought that up so again two years before trial the government filed a bond revocation hearing and it pointed to his mental health issues and concrete evidence of delusions that he was having at the time points here you know he was arrested for dui and he went into the hospital and said that the jews are responsible for hurricane katrina and made some allegations about him being a world famous physician and again this merck stock ixtoc drop issue yes so again for so when that bond revocation hearing took place the magistrate judge fam amended the bond conditions after hearing that evidence and required medical or psychiatric treatment four months later just four months later that same judge magistrate judge fam held the motion to let him proceed pro se held a hearing on that motion and didn't inquire not one single question into his mental competency at that time before permitting him to proceed pro se and the standard there is questions about a defendant's competency such that he should order a competency hearing and here we argue that not only a reasonable job really is whether he abused his discretion in failing to sue a spontaneous order that's right not whether a reasonable judge would  know the trial trial judge had three conflicting opinions and also was there during the trial so he saw mr dunn perform during the trial and the the judge determined that the one expert was more credible had greater expertise more persuasive and that her opinion was supported by his own observations of  mr dunn bros behavior in his courtroom during the trial it's pretty hard for me to say that that is a clearly erroneous factual determination by the trial judge that that's what we're talking about they're picking one expert over another expert is a is a factual call to say it's clearly it is but i if i could just make three points in our sponsor that quickly the first goes to judge please question earlier about whether dr mark populaces report actually was more thorough and more you know reputable i guess and here i would just say th dwyer conducted that psychological testing it's the maquette test it has three parts you know one do you understand basic court rules two if i give you a hypothetical can you apply them and three what about if we apply those same rules and principles to your case and he passed the first two with flying colors because as you know this court is well aware his intelligence and i q is high but he failed the third test miserably because he cannot he has no rational understanding of the proceedings against him in the facts against him and when dr mark populace faced this issue she shows not only not to do the maquette test and you know she did a slew of other tests that were largely repetitive but she actually didn't even do a comparable test that gets at that same question she also glossed over clear evidence of these fixed illusions calling these motions which your honour's have seen you know standard motion practice and i think as i said earlier at the outset these motions are just clear demonstrations of his delusions and finally she relied on mr sampson silence and i think that was a large error on her part because mr sampson as you all know was instructed at the outset of the case that he could not take an active role in this litigation the judge not to take an active role only to answer those questions but we do think that there is support in the united states b martin and other cases for the proposition that he had a duty to stop and question his client's competency because he had those record that we have in front of us is clear that he did not feel he was empowered to do so based on those instructions that he was given there are no further questions i see him out of time thank y good morning may it please the court so near boston for the united states before getting into the argument part i'd like to clear up six issues about the record the first is whether there is any finding in the record about the defendants they keep saying competence at the time of the offense but that's not a thing it doesn't make any sense competence is whether you understand the charges against you and can assist your attorney in your defense that's not something that can be determined at the time of the at the time with the offense that's the only opinion about sanity and the district court found that defendant mr de parole had waived his insanity defense that's a finding in the record that's correct and there's conspiracy because you need to people so what white kids raise it so i'm that sure she could be a three responses the first is that that's a trial issue for the jury she should have raised it at trial nothing stopped her rather her defense at trial was exactly the opposite she was so in charge of everything that i was just a follower that was her defense a trial could raise his insanity during her trial if her defense is that i couldn't agree with anyone because there was no one with whom to agree she could have raised that in her own defense she chose not to do it's waived the second thing is it's purely a jury issue insanity this court has held and it's in a is only for the jury it can't be found as a matter of law by not raising it for the jury she can't come now and say an affirmative defense negates sufficiency because an affirmative defense can't negate sufficiency and the the i mean different time periods one during the time of the two during the trial three three i guess is between when the plea bargain was offered to mister and whether he was competent at that time to determine to accept or reject the plea bargain was their determination of comp and the at that time there was not your honor but it doesn't matter because she can't assert and whether she would have benefited that was if the government's discretion that the government had offered to drop the charges against her in exchange for his plea but that was she has no rights in that bargain she couldn't a forced him to plead guilty she couldn't have gone to the court and said i really want him to take this she has no rights and that that she would have collaterally benefit is you know good for her but there's no she has no standing to raise his rights regarding the plea bargain finally i mean she filed a motion for a new so the court kind of not enough not directly so the court rules she also raises a number of arguments going to this competency thing and a motion to reconsider which the court did  directly on and finds that there's there's nothing there the defendant's competent and therefore for the same reason that the court finds there's no good cause for the waiver of insanity that there's there's no nothing here there's no there there about his competence and therefore there's there's nothing to decide i would note on appeal she's not asking for a new trial with a question she filed a motion for a new trial based based upon newly discovered evidence which is  there's not an opinion on it there might be a docket entry that says says denied but i would have to check and i can do that for you and i'm sorry is there sort of a question of jurisdiction as to her i mean if there was a pending motion for new trial it was never ruled on do we even have jurisdiction over so i think the district court's order denying the motion to reconsider the competency could be read as it as denying the motion for the new trial because it's based on the same grounds so her her only grounds for a new trial are tied up in this my husband was incompetent at the time of trial issue or was insane at the time of the fans and the court in its its rulings both on  the competency ruling to fifty five the original one and then the later reconsideration motion soundly rejects every argument that she's made over and over again and so there's no reason to think that the court you know that anything different would have happened if there is no docket entries simply denying that motion number on the rule thirty three motion i think it's just a ministerial oversight and it would be a waste of judicial resources to remand just to have the court  something that it's already said what it thinks and have this come up and have to do this all over again but more to the point her argument fails as a matter of law and so there's there's just nothing there for her  relies on phillips has been abrogated by the supreme court and powell that because it's a jury issue about insanity even if mr toprol had raised insanity even if a jury had found him insane it still could have convicted her and there would be no grounds whatsoever to disturb that verdict under powered because inconsistent verdicts have to stand and therefore she just has no leg to stand on and it doesn't it would be a waste of resources to to do this all over again the district court considered all of the arguments that there were to consider and rejected them to the extent there was a question about sanity dr marcos addressed that the district court found that her opinion persuasive incredible throughout multiple times and if there was an oversight on the district court's part by not entering an order on the one particular motion that it's unfortunate but not  shouldn't hold this court up the next day i went to print out the talk about the peer review process and that the other doctors did the same thing that's not true dr morrow didn't consult with any when he was asked about it he said sometimes they do but not in this case dr dreier said that he had offhand talked about it with another colleague and that's it page twenty five twenty seven the other friends of piano reviewers were also board certified which is one of the reasons that th district gave her credit for finding dr marcus more persuasive so that also applies to her peer reviewers and it's the extent they're saying that the other doctors the v o p doctors did the same thing that's not the same thing the next point is about the two thousand and eight arrest and bond revocation motion that was entirely premised on the defendant being high on drugs at the time that's the reason he was arrested he said the things he said at the hospital that were raised at that hearing high on drugs and the district court made that finding in its records in the ruling on the competency order and the last thing is that all of his statements about merck to ms and that were because he was high on drugs opposed to being delusional you know the statements about merck some of them yes some of them know some of them we don't know the statements about hurricane katrina and the conspiracy theory about jews that's all high on drugs and that only happens at one time the thing about the cat and whether this testing is makes dr to wires report more marcos the district court address this page eight hundred twenty eight zero eight where dr mark also reviewed the data that dr dwyer had collected so she didn't redo the test because she had the right data shouldn't have to redo the test but she reinterpreted the data she looked at the same data that dr dwyer looked at and she gave it a different finding she said he scored it subjectively and he gave to a few points that if you if you look at this you know under the training that i've had in using this exam that you got a higher score and so she looked at the same data shouldn't have to rerun the whole test in order to also use that so i think the key thing in this case is whether mr poole could understand what was going on and if he could then everything else kind of falls away he understood what was going on he knew the consequences of going to trial the standard is sufficient present ability to consult with his lawyer and a rational as well as factual understanding of the proceedings a rational understanding of the proceedings is what are the consequences he knew he would go to jail he understood that the stakes were high and you can see that in the colloquy he has with the magistrate judge at the pro se hearing also he understood what the trial was about he understood that the whole point of the trial was whether he prescribed these drugs in the course of medical treatment or not you can tell this from his testimony which goes over the course of two days it's coherent he's explaining his patient's conditions he's explaining why he prescribe the drugs he's explaining his expertise as a pain medication physician it was simply a losing defense it was an irrational the district court or the jury just didn't believe him if the jury had believed him they would have had to acquit under the laws it was given to them that it was a losing defense doesn't make it irrational and this goes to what the district court pointed out in its opinion as to why dr morrow wasn't as persuasive and that's because dr morrow kept relying on the idea that the defendant should have taken the plea most defendants should take the plea but they don't you know almost every defendant who goes to trial and gets convicted and gets a higher sentence wishes he had taken the plea that doesn't make the decision to go to trial irrational and even if it's irrational it doesn't mean that the defendant is incompetent the bar frank competency is high as this court said in miller and this defendant doesn't even come close where you have a credit a credible expert on the record and nobody objected to dr markel feel as being an expert she is an admitted expert by both sides that it cannot be clear error for the district court to rely on that opinion in making its finding and the last point i would like to make is regarding the standard of review for whether the district court should of sue a spontaneous competency hearing and they argue that the standard of review when the issue hasn't been raised by anyone the district court has that authority and they argue that the standard of review is abuse of discretion but in twenty fourteen this court said although it's an unpublished opinion there were two defendants in that case one had raised the issue the other hadn't and the court says clear is day for the defendant who raised the issue we review for abuse of discretion the failure to hold a hearing for the defendant who said nothing even though he was pro se playing or this defendant gets plain error review the burden is on him he's got to show an effect on his substantial rights he's got to show that it was obvious that the district court missed the signs the red flags and there's nothing here that's obvious not when this court in harry's we bow is saying that even if you have a mental illness that doesn't mean you get an examination when this court said in davis that a defendant who's under psychiatric care it was error for the district court to order a competency evaluation when the government moved for it we heard where the district court where this court said that there is no error in not ordering an evaluation where the defendant is schizo phrenic it can't be clear obvious error for the district court not to order hearing in light of that precedent in light of the record here so i apologize for not having a more clear answer about the rule thirty three motion and that wasn't an issue of race and the priest but i'll look into it if i find anything the conclusion that there is no jurisdiction if there's any way around that conclusion and so i would like the opportunity just to look into it briefly in that this is an issue that was never raised and to file a brief letter if we find anything reserve or just maybe i'm misunderstanding but i think she's saying we never raise each about the motion for new trial but that's clearly stated in our principle brief where we laid out the i think with the district court you know not just agreeing with the government but they put the district court deal while my motion was still pending the district court sit if what they did we asked them to give us a new trial or in the alternative to stay the sentencing until we could find out whether the defendant was competent at the time of the offense well when he was sent off for the second plane at the time i was a rights record by the  it that you need to have two people in the spirit see if one of them saying you can't have one right i thought that was your argument that yes bargain no why can't you as a defense say there is no conspiracy because there were two sane people to form a conspiracy well i could just say that but do you think i would have gotten an instruction from the judge when i had no expert legal evidence to prove that he was insane i didn't get that until and well the way i understand it from united states versus philips and i think that is still good law and the u s attorney is in error that that case is competent at that competent at the time of the a fit in and i think that is good law in this circuit it means no he was not say he was you know he was not operating with it when he put of what a normal reasonable person would be operating with the mental capacity and i think that is a good law i would like to address that also the phillips case because it we rely on that case and it is not based on a legal proposition that has been overturned by the supreme court there were two cases that philip cited for the proposition that there must be mutual agreement and that was united states versus williams which was the six circuit case and united states versus flipping which was a seven circuit case but the majority of these cases it a case that those two cases were cited just for the i just have four very quick points to make here on earth the first is that opposing counsel just said that the statements of the bond revocation hearing were made because he was high on drugs i think that rewrites the record first of all  there is no basis for counsel here to say what was medical what was what was made as the basis of his delusions or his conspiracy theories versus drugs and i think they raised in the bond avocation hearing actually separate concerns about his drug use and about his mental health issues and in rewriting those bond conditions the court actually rewrote separate bond conditions addressing both of those points so to say to represent today that it was all about drugs i think misstates the rector mischaracterizes the record the second point is counsel just argue that you know you can't reverse or clear just because he selected a losing defense again there were to be zero p examiners and all of mr du bruel lawyers who said that he was unable to adequately assist in his defense and they base this on the fact that every single meeting that they had with him he was just dominated by these conspiracy theories and i'm unable to focus on the facts to focus on the witnesses to focus on his trial presentation there's just there's no oxygen in the room to think through his defense no way to prepare when he was consumed by this conspiracy theories just so to say that he just selected a bad defense i think is a gross mischaracterization of what happened and mr de brawls ability to put on his own defense third counsel argued that plane error should apply to the competency hearing point this court has held  be jones that's an abuse of discretion standard the policy of course for plane air is to prevent someone from sitting on their rights and i have not seen a case where this court has applied plain air to a pro se defendant who failed to raise his own competency when he thought that he in fact was competent at the time that just turns the policy on its head and then lastly just briefly i want to talk about mr mcafee if i could mr mcafee provided ineffective assistance of counsel because he stated under oath that he actually doubted mr de paroles competency he did nothing because although he quote had it on his list to get him investigated it became kind of not his problem when his motion to withdraw was granted that motion to withdraw included affirmative statement that mr de barral was competent which he admitted under oath he made at least in part so that his motion to withdraw would be granted and that just infected not only dr marc populaces report which relied on that statement the judge decision which relied on that statement and it prejudiced if he had raised it at that early stage again which was two years before trial one of the key factors that the court considers and rendering a decision is the opinion of counsel so it could have changed the entire ballgame two years before trial ever started and it's our position that was ineffective assistance of counsel for all these reasons and those stated in our brief we ask that you reverse and remain and for further proceedings thank you thank you mr rogers