*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

May 20, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID JAY HESS,

Defendant-Appellant.

No. 07-4281

(D.Ct. No. 2:07-CR-00085-DLR-1)

(D. Utah)

______________________________

ORDER AND JUDGMENT*

Before TACHA, Circuit Judge, and ANDERSON and BRORBY, Senior Circuit

Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Appellant David Jay Hess was found incompetent to stand trial and ordered
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to be committed for a period of four months to a federal facility for treatment and

restoration to competency. Although Mr. Hess now appeals his commitment, his

attorney has filed an Anders brief and a motion to withdraw as counsel. See

Anders v. California, 386 U.S. 738, 744 (1967). For the reasons set forth

hereafter, we grant counsel’s motion to withdraw and dismiss this appeal. Id.

I. Background

On February 7, 2007, Mr. Hess was indicted on two counts of knowingly

mailing a written communication to a United States magistrate containing a threat

to injure or kill, in violation of 18 U.S.C. § 876(c). On March 29, 2007, Mr.

Hess’s attorney filed a motion, stipulated to by both parties, requesting a

competency determination on Mr. Hess, pursuant to 18 U.S.C. §§ 4241 and 4242,

as to both his commission of those offenses and his ability to stand trial. The trial

court granted the motion, after which a forensic psychologist with the Federal

Bureau of Prisons conducted a psychological evaluation of Mr. Hess and prepared

a report; some of Mr. Hess’s prior medical reports were provided to assist in the

evaluation. Mr. Hess stipulated as to the foundation of the evaluation and did not

provide any evidence contradicting the report. In the report, the government

psychologist found Mr. Hess: (1) suffered from a delusional disorder and was

delusional at the time of his offenses against the magistrate; (2) would not be able

to understand the proceeding against him and would act in a way
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counterproductive to his case and against advice of counsel; and (3) should be

committed to a federal facility for four months for treatment and restoration to

competency. 

On November 30, 2007, the district court held a competency hearing during

which the parties stipulated to the admission of the government psychologist’s

report as an exhibit, and Mr. Hess did not present evidence to dispute the report’s

findings or conclusions. During the hearing, Mr. Hess addressed the court,

asserting he had not seen the report, to which his counsel responded, explaining

he and Mr. Hess had discussed the report, but when he and a social worker

attempted to review the report with Mr. Hess he refused to see them. Mr. Hess

also requested evidence be presented or evaluations provided by other

psychologists who previously treated him. Based on Mr. Hess’s inability to

explain how information from other psychologists would assist the court in

determining his competency, the district court denied Mr. Hess’s request. It then

found the government psychologist’s report demonstrated Mr. Hess suffered from

a mental disorder significantly impairing his ability to understand the nature and

consequence of the proceeding against him and his ability to assist counsel in his

defense, resulting in a determination Mr. Hess was incompetent to stand trial. As

a result, it ordered Mr. Hess committed for a period of four months to a medical

facility for treatment and restoration. 
-4-

Following Mr. Hess’s timely pro se notice of appeal, his appointed counsel

filed an Anders appeal brief, explaining no reasonable grounds exist for an

appeal. See Anders, 386 U.S. at 744. In support, counsel pointed out the

government psychologist’s report contained an “abundant basis” for the district

court’s finding Mr. Hess was incompetent to stand trial, which was not rebutted

by Mr. Hess; counsel was not aware of any evidence contradicting the district

court’s incompetency determination; and no showing was made that additional

medical testimony or information, as requested by Mr. Hess, would assist in the

competency determination. Counsel also noted Mr. Hess’s letter, which this court

construed as a notice of appeal, did not raise any issues relevant to the district

court’s order on his incompetency. 

Pursuant to Anders, this court gave Mr. Hess an opportunity to respond to

his counsel’s Anders brief. See 386 U.S. at 744. Mr. Hess has filed a pro se

response requesting appointment of another attorney who specializes in appeals,

seeking oral argument, and contending his appeal is not frivolous. In support, he

makes derogatory remarks about his current appellate counsel and provides a

rambling dialog of information irrelevant to this appeal. However, in regard to

the district court’s competency order, Mr. Hess states the government

psychologist found him “not competent to stand trial” and that he “agree[s] with

him.” Apt. Resp. at 3.
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II. Discussion

As required by Anders, we have conducted a full examination of the record

before us, keeping in mind our standard of review on the issues presented. See id.

We review for clear error a trial court’s factual determination on whether a

defendant is competent to stand trial. See United States v. Gilgert, 314 F.3d 506,

513 (10th Cir. 2002). In addition, “[t]he decision on whether to order a second

competency exam is a matter wholly within the sound discretion of the trial

court.” United States v. Prince, 938 F.2d 1092, 1095 (10th Cir. 1991). “We will

not reverse a trial court’s refusal to order a second competency exam unless we

conclude the trial court’s decision was an abuse of its discretion.” Id.

Our review establishes the district court did not err in finding Mr. Hess was

incompetent to stand trial and ordering him committed for a period of four months

to a federal facility for treatment and restoration to competency. Without making

any specific reference to details in the government psychologist’s report, it is

clear the report supports the district court’s findings on Mr. Hess’s mental

disorder and conclusion he was incompetent to stand trial. With regard to Mr.

Hess’s apparent request for other psychologists’ evaluations or opinions, we

cannot say the district court abused its discretion in denying that request absent

an explanation as to how an additional psychological evaluation would assist the

court in its competency determination. Our holdings on these issues are bolstered
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by Mr. Hess’s own admission on appeal that he is incompetent to stand trial.

III. Conclusion

For these reasons, no meritorious appellate issue exists for our

consideration on appeal. See Anders, 386 U.S. at 744. Accordingly, we grant

counsel’s motion to withdraw and DISMISS Mr. Hess’s appeal. 

Entered by the Court:

WADE BRORBY

United States Circuit Judge