PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4054

MICHAEL DEFONTE BERNARD,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

James C. Fox, Senior District Judge.

(7:09-cr-00050-F-1)

Argued: December 6, 2012

Decided: February 28, 2013

Before SHEDD, DIAZ, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the

majority opinion, in which Judge Shedd joined. Judge Diaz

wrote a dissenting opinion.

COUNSEL

ARGUED: Juan A. Arteaga, SIMPSON THACHER &

BARTLETT, LLP, New York, New York, for Appellant.

Yvonne Victoria Watford-McKinney, OFFICE OF THE

UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: William T. Russell, Jr., Jeffrey E.

Baldwin, SIMPSON THACHER & BARTLETT, LLP, New

York, New York, for Appellant. Thomas G. Walker, United

States Attorney, Jennifer P. May-Parker, Assistant United

States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Raleigh, North Carolina, for Appellee. 

OPINION

THACKER, Circuit Judge:

Michael Defonte Bernard ("Appellant") appeals the district

court’s decision allowing him to represent himself at trial

despite his questionable mental capacity. Appellant contends

that the Supreme Court’s decision in Indiana v. Edwards, 554

U.S. 164 (2008), established the broad legal principle that

once a borderline competent defendant seeks to represent

himself at trial, the district court must conduct an additional

inquiry and hold the defendant to a higher standard of competency than that required to stand trial. But Edwards addressed

only the question of whether the Constitution permits a court

to force counsel on a criminal defendant who, although mentally ill, is nonetheless competent to stand trial. Id. at 177-78.

Here, however, the district court granted Appellant’s request

to represent himself. As such, this case is more akin to

Godinez v. Moran, 509 U.S. 389 (1993), which held, "the

competence that is required of a defendant seeking to waive

his right to counsel is the competence to waive the right, not

the competence to represent himself." Id. at 399 (emphasis in

original). Because we reject Appellant’s interpretation of

Edwards and are satisfied that the district court applied the

correct legal standard, we affirm.

2 UNITED STATES v. BERNARD
I.

A.

Appellant has a long history of mental illness. Emotionally

and physically abused as a child, Appellant has suffered for

many years from severe depression and mental illness, including chronic schizophrenia and paranoia. He has attempted suicide at least three times and has been involuntarily committed

to mental health institutions on at least four separate occasions. On many of these occasions, Appellant was found to be

abusing cocaine and marijuana to cope with his mental illness.

On April 22, 2009, the grand jury returned an indictment

charging Appellant with, among other things, possessing with

the intent to distribute and conspiring to possess with the

intent to distribute 50 kilograms or more of marijuana, and

possessing a firearm in furtherance of a drug trafficking

offense. After concerns were raised respecting Appellant’s

mental condition, the district court ordered that he be evaluated. A government psychologist recommended Appellant be

found incompetent to stand trial because of his schizophrenia,

paranoid delusions, and disorganized thought processes. On

October 7, 2009, the district court held a competency hearing

during which it found Appellant incompetent and ordered him

to receive treatment.

In a report dated March 22, 2010, a second government

psychologist recommended Appellant be found competent to

stand trial because the antipsychotic, antidepressant, and

antianxiety medication Appellant was taking enabled him to

sufficiently understand the judicial proceedings against him

and to assist his counsel. 

On June 4, 2010, the district court held a second competency hearing wherein it addressed Appellant’s competency to

stand trial and defense counsel’s motion to withdraw, which

UNITED STATES v. BERNARD 3
was based on Appellant’s request to proceed pro se.1

 After

defense counsel told the district court, "we do not oppose a

finding that [Appellant] is competent to stand trial," defense

counsel addressed Appellant’s request to represent himself as

follows:

There’s a case called United States v. Morano, M-OR-A-N-O, which says that if they—the court uses the

same standard in determining whether a defendant is

competent to waive assigned counsel.

And since that standard has been met, I believe that

you could find that he is competent to waive counsel.

And he does have a motion that he wants to bring to

the court’s attention, that he wants to appear pro se

and have me assigned as standby counsel.

Judge, I have warned him about it, but that’s his feeling. He feels very strongly about it, and I’ve not

been able to educate him or advise him that I don’t

think it’s in his—actually in his total best interest.

And so that’s the motion that he wants the court to

hear today.

J.A. 62-63.2 The district court thereafter engaged in colloquy

with Appellant concerning Appellant’s request to waive counsel.3

 The court granted defense counsel’s motion to withdraw

1Although the psychologist who conducted the second evaluation of

Appellant and found him competent to stand trial was aware of Appellant’s expressed desire to represent himself, she did not specifically opine

on his competency to waive his right to counsel and represent himself. 

2Citations to the "J.A." refer to the Joint Appendix filed by the parties

in this appeal. 

3Appellant points to one statement in particular from this colloquy that

he now says demonstrates his clear incompetence. During his second competency hearing, Appellant told the district court, "I can have a field day

with these boys [prosecutors] in court." J.A. 73. 

4 UNITED STATES v. BERNARD
and granted Appellant’s request to waive counsel, though

Appellant consented to retaining standby counsel. 

The district court subsequently held a bench conference

with counsel for the Government and defense counsel to discuss Appellant’s competency going forward. The court told

counsel, "I’m frank to say that I’m not real comfortable with

this." J.A. 82. Regarding Appellant’s competency to stand

trial, the district court further recognized, "the situation today

may not be the same tomorrow. . . . It’s sort of a fluid situation." Id. at 84. The court elaborated,

I mean, you know, competency or the question of

insanity has a temporal quality. It has a qualitative

aspect and a quantitative aspect. Some people can be

perfectly rationale [sic]. . . . And as of this moment,

I’m satisfied, but I cannot tell you that I will be at

any time in the future. . . . It’s temporal, but also this

sort of thing can vary from shades of white to black

and go through a lot of degrees of gray. . . . And

that’s something that you can’t make a firm

evaluation—a firm and permanent evaluation of that

is engraved in stone. 

Id. at 85-86. 

In this posture, the case proceeded to trial. During trial,

Appellant was, among other things, able to make opening and

closing statements, testify, and have his case re-opened in

order to conduct an examination of a law enforcement officer

who he had previously declined to cross-examine during the

Government’s case-in-chief. Yet, Appellant made no objections during the Government’s case-in-chief, and failed to

question two of the witnesses or call witnesses on his own

behalf.

Ultimately, the jury deliberated for 12 minutes before finding Appellant guilty on all charges. On October 6, 2010, the

UNITED STATES v. BERNARD 5
district court convened a sentencing hearing, during which

Appellant was fully represented by his former standby counsel.4

However, the court was quickly forced to continue the proceeding after it became clear that Appellant’s mental condition was wholly compromised at that time.5

 At the reconvened

sentencing hearing, held on January 5, 2011, the district court

sentenced Appellant to 180 months imprisonment.6 He now

appeals.

B.

Appellant raises two principal issues on appeal. First, he

argues the district court erred when it allowed him to exercise

his right to self-representation at trial. He claims the court

wrongly conflated the legal standards for assessing his competency to stand trial and his competency to represent himself

at trial, the latter of which he alleges is more rigorous following Edwards. In this vein, Appellant also maintains the district court abused its discretion by failing, during trial, to sua

sponte reconsider its findings that Appellant was competent to

stand trial and waive counsel. Second, Appellant contends his

trial counsel rendered ineffective assistance by incorrectly

arguing that Appellant’s competence to waive counsel at trial

was governed by the same standard as his competence to

stand trial.

4The record does not indicate whether the district court had by this time

appointed his former standby counsel as counsel (over Appellant’s wishes)

or whether Appellant himself made the decision. See J.A. 358-60; 368-85

(arguments of defense counsel at sentencing hearing). 

5A review of the record of the hearing indicates that Appellant consistently spoke out of turn, was unresponsive to the court and counsel, used

profanities and racial slurs, and threw the Bible when asked to swear the

oath. See J.A. 355-367. 

6Appellant’s former standby counsel represented him in full at the second hearing as well. Again, the record is not clear whether the district

court forced counsel on Appellant during this proceeding or whether

Appellant himself made the decision to proceed with counsel. 

6 UNITED STATES v. BERNARD
II.

Because Appellant presents these arguments for the first

time on appeal, we review for plain error. See United States

v. Olano, 507 U.S. 725, 732 (1993). To establish plain error,

Appellant must show that the district court erred, that the

error was plain, and that it affected his substantial rights. Id.

at 734. With regard to the third element of that standard,

Appellant must show that the alleged error actually "affected

the outcome of the district court proceedings." Id.7

7Our dissenting colleague rejects the application of plain error review,

concluding, "when a defendant requests to proceed pro se at a competency

hearing, he has sufficiently put his competency at issue to preserve a claim

of invalid waiver of counsel." Post at 21-22. Regardless of the merits of

this view, we need not reach it in light of the facts here. In this case, far

from leaving Bernard to his own devices during the Faretta proceedings,

defense counsel initiated and actively participated in the discussion with

the court regarding Bernard’s request to represent himself and his own

corresponding motion to withdraw. See J.A. 62-64, 75, 79, 82-86. And as

the dissenting opinion correctly notes, Bernard’s counsel failed to object

to the court’s decision or make mention of Edwards during the proceedings. For us, this ends the matter and commands plain error review. 

But our good colleague claims that because defense counsel’s motion

to withdraw was pending at the time the court found Bernard competent

to waive counsel, "[f]or all practical purposes then, it was Bernard who

was making the operative decisions at the competency hearings." Post at

22 n.3. We disagree. In our view, defense counsel continued as Bernard’s

counsel of record until the district court granted the defendant’s request to

represent himself and appoint defense counsel as standby counsel, a ruling

that occurred late in the hearing. See J.A. 82. Indeed, the record indicates

no decision on defense counsel’s motion to withdraw until that moment.

Accordingly, we look to not only the defendant, but to his counsel, who

for much of the hearing actively participated with full representational

authority. The dissent concedes that defense counsel "bears substantial

responsibility" for allowing the alleged error to pass without objection. We

agree and conclude that, at a minimum, his failure to preserve the claim

of invalid waiver warrants plain error review. 

UNITED STATES v. BERNARD 7
III.

A.

We begin with the fundamental tenet that a criminal defendant has a Sixth Amendment right to self-representation. See

Faretta v. California, 422 U.S. 806, 819, 821 (1975). Such a

person may waive the right to counsel and proceed at trial pro

se only if the waiver is (1) clear and unequivocal, (2) knowing, intelligent, and voluntary, and (3) timely. See United

States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000) (collecting cases). Even so, "the Faretta right to selfrepresentation is not absolute, and ‘the government’s interest

in ensuring the integrity and efficiency of the trial at times

outweighs the defendant’s interest in acting as his own lawyer.’" Id. at 559 (quoting Martinez v. Court of Appeal of Cal.,

528 U.S. 152, 162 (2000)). 

The Supreme Court first addressed the issue of competency

to waive counsel in Godinez v. Moran, 509 U.S. 389 (1993).

In that case, the defendant pleaded guilty in Nevada state

court to three counts of first-degree murder. Id. at 391. After

he was found competent to stand trial, the defendant sought

to discharge his attorneys and enter guilty pleas. Id. at 392.

The trial court found that the defendant had waived counsel.

Id. at 393. The court then sentenced him to death on all three

counts, and two were affirmed on appeal. Id. In federal habeas

proceedings, however, the Ninth Circuit concluded that competency to waive constitutional rights requires a higher level

of mental functioning than that required to stand trial. Id. at

394. The Supreme Court disagreed, rejecting "the notion that

competence to plead guilty or to waive the right to counsel

must be measured by a standard that is higher than (or even

different from)" the trial competency standard. Id. at 398. It

concluded, "the competence that is required of a defendant

seeking to waive his right to counsel is the competence to

waive the right, not the competence to represent himself." Id.

at 399 (emphasis in original). 

8 UNITED STATES v. BERNARD
Edwards did not alter this holding. There, the Supreme

Court elaborated on the parameters of Godinez. As in this

case, Edwards sought to waive counsel and exercise his right

of self-representation; however, in contrast to the present

case, the Indiana trial court found the defendant competent to

stand trial but not competent to waive counsel. See Edwards,

554 U.S. at 167-69. The defendant proceeded with the assistance of counsel, and the jury convicted him. Id. at 169. The

Indiana Supreme Court reversed the convictions, reasoning

that Godinez required the state trial court to allow the defendant to represent himself. Id. Indiana petitioned for a writ of

certiorari, which the Supreme Court granted to address

"whether the Constitution permits a State to limit [a] defendant’s self-representation right by insisting upon representation at trial-on the ground that the defendant lacks the mental

capacity to conduct his trial defense unless represented." Id.

(emphasis supplied). The Court concluded that states indeed

have that right. Id. at 174.8

Edwards first explained that Godinez addressed only the

level of competency required to waive the right to counsel

when the defendant intends to enter a guilty plea and, accordingly, that a different standard may be used when the defendant asserts his right to self-representation to defend himself

at trial. See id. at 172-73. The Court also emphasized that

Godinez involved a state trial court that had permitted the

defendant to represent himself, whereas in the case at hand,

a state trial court denied the defendant that right. Id.

Thus, the Court reiterated that under Godinez, it is constitutional for a state to allow a defendant to conduct trial proceed8The Seventh Circuit has observed that while Edwards expressly dealt

with a state court proceeding, its rule applies to federal courts with equal

force. See United States v. Berry, 565 F.3d 385, 291-92 (7th Cir. 2009)

(explaining that if both state and federal courts are bound to uphold the

right to a fair trial and the right to self-representation, it follows that

Edwards applies to federal courts equally); United States v. Ferguson, 560

F.3d 1060, 1067 n.3 (9th Cir. 2009) (same). 

UNITED STATES v. BERNARD 9
ings on his own behalf when he has been found competent to

stand trial. Id. On the other hand, the state may insist on counsel and deny the right of self-representation for defendants

who are "competent enough to stand trial . . . but who still

suffer from severe mental illness to the point where they are

not competent to conduct trial proceedings by themselves."

Id. at 178. 

Edwards did not adopt a specific standard in this regard,

but instead recognized that the trial court is often in the best

position to make individualized assessments of mental competency. Id. at 177. Thus, after Edwards, at least one relevant

consideration for a district court in determining whether or

not to force counsel on a mentally ill defendant is whether a

defendant who is otherwise able to satisfy the competence

standard may nevertheless be "unable to carry out the basic

tasks needed to present his own defense without the help of

counsel." Id. at 175-76. See Dusky v. United States, 362 U.S.

402, 402 (1960).9

But that is not the situation in this case: as in Godinez, here,

the district court granted Appellant’s request to waive his

right to counsel. To the extent Appellant suggests the district

court was constitutionally compelled to deny him the right,

Edwards announces no such rule. By its plain terms, Edwards

held only, "the Constitution permits States to insist upon representation by counsel for those competent enough to stand

trial . . . but who still suffer from severe mental illness to the

point where they are not competent to conduct trial proceedings by themselves." Id. (emphasis supplied). This language

is permissive rather than a pronouncement of a requirement in

these circumstances. Thus, while the district court was not

9Dusky provides the test for mental competence, which asks whether the

defendant "has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him." Id.

at 402. 

10 UNITED STATES v. BERNARD
compelled to find Appellant competent to waive his right to

counsel simply because the court had found him competent to

stand trial, it does not follow that the district court was barred

from doing so.10 To the contrary, Edwards itself reaffirmed

that a court may constitutionally permit a defendant to represent himself so long as he is competent to stand trial. See id.

at 173 ("For another thing, Godinez involved a State that

sought to permit a gray-area defendant to represent himself.

Godinez’s constitutional holding is that a State may do so. But

that holding simply does not tell a State whether it may deny

a gray-area defendant the right to represent himself—the matter at issue here." (emphases in original)). Appellant conceded

at oral argument that no court has read Edwards differently.11

At bottom, Edwards does not stand for the proposition that

a state must deny the right of self-representation to a defendant of questionable mental competence or that district courts

must conduct an additional "Edwards" inquiry into the competency of every defendant who requests to proceed pro se. It

is therefore permissible for a trial court, having found a mentally ill defendant competent to stand trial, to determine him

10We reached this same conclusion in a recent unpublished decision.

See United States v. Wiggins, No. 11-5125, 2012 WL 3291733 (4th Cir.

Aug. 14, 2012) (unpublished) ("[W]e decline to transform Edwards’s permissive holding into the rigid edict that Wiggins requests."). 

11Indeed, as we do here, several circuits have interpreted Edwards to

confer discretion, not to impose a new duty. See United States v.

DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009); United States v. Turner,

644 F.3d 713, 724 (8th Cir. 2011) ("Edwards clarified that district court

judges have discretion to force counsel upon the discrete set of defendants

competent to stand trial but incompetent to represent themselves. It does

not mandate two separate competency findings for every defendant who

seeks to proceed pro se." (citation omitted)); Berry, 565 F.3d at 391 ("The

Constitution may have allowed the trial judge to block his request to go

it alone, but it certainly didn’t require it." (emphasis omitted)); United

States v. Posadas-Aguilera, 336 F. App’x 970, 975-76 n.5 (11th Cir. 2009)

(same); United States v. VanHoesen, 450 F. App’x 57, 61 (2d Cir. 2011)

(recognizing the same without deciding). 

UNITED STATES v. BERNARD 11
to be competent to waive his Sixth Amendment right to counsel.

B.

Turning to the particular facts before us, we first recognize

that the district court "will often prove best able to make more

fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant." Edwards, 554

U.S. at 177.

In the present case, the district court was keenly aware of

Appellant’s mental condition, having committed him for evaluation and subsequent treatment, held two competency hearings to determine his competency to stand trial, engaged him

in colloquy to determine his competency to waive counsel,

and presided over his trial. In determining Appellant’s competency to waive his right to counsel, the district court asked

Appellant if he understood that the medical staff had found

him competent to stand trial and to assist his attorney, if he

wanted to represent himself, and if he wanted defense counsel

to act as standby counsel. Appellant answered in the affirmative to each of these questions, and the district court was in

the best position to observe his demeanor and make judgments about his mental abilities. 

Appellant claims that his severe mental illness was demonstrated when he told the district court that he could "have a

field day with these boys [prosecutors] in court." J.A. 73.

However, defendants who choose to represent themselves

often do so because they believe they are more capable than

trained attorneys to conduct their own defense. See United

States v. Ladoucer, 573 F.3d 628, 633 (8th Cir. 2009) ("[A]

court is not required to ensure the defendant is capable of representing himself as well as a trained and experienced lawyer,

only that he understands the risks involved in representing

himself and that he has knowingly and intelligently chosen

self-representation." (internal quotation marks omitted)).

12 UNITED STATES v. BERNARD
Here, the district court informed Appellant of the risks

involved in self-representation and urged him multiple times

not to represent himself. For instance, the district court

advised Appellant that he "would be far better defended by a

trained lawyer than [he could] be by [himself]" and asked if

he still desired to represent himself "in light of all the difficulties of representing [himself] and in light of the penalties that

[he] might suffer." J.A. 81. The district court subsequently

found Appellant had knowingly waived his right to counsel.

Appellant also asserts that the district court’s reservations

respecting its decision not to force counsel on Appellant

counseled against permitting him to represent himself. This

may be so, but like the district court, we must take a wide

view of the proceedings and Appellant’s condition at the time.

See Beck v. Angelone, 261 F.3d 377, 391 (4th Cir. 2001).

Indeed, it appears from the record that a reason the district

court was not comfortable with Appellant’s selfrepresentation was because, among other reasons, "competency or the question of insanity has a qualitative aspect and

a quantitative aspect." J.A. 85. Nonetheless, the district court

was satisfied "as of this moment" that Appellant was competent, indicating that it would be particularly attentive to any

change in Appellant’s condition. Id.12

The district court’s satisfaction as to Appellant’s competence to waive counsel and represent himself was justified

throughout the trial because Appellant was able to make

opening and closing statements, testify, and have his case reopened to conduct an examination of a law enforcement offi12The district court appropriately recognized the temporal aspect to the

issue of competency. See Drope v. Missouri, 420 U.S. 162, 181 (1975)

("Even when a defendant is competent at the commencement of his trial,

a trial court must always be alert to circumstances suggesting a change

that would render the accused unable to meet the standards of competence

to stand trial."); Beck, 261 F.3d at 387 ("Even if a petitioner is mentally

competent at the beginning of the trial, the trial court must continually be

alert for changes which would suggest that he is no longer competent.").

UNITED STATES v. BERNARD 13
cer. The district court remained alert to Appellant’s behavior,

and, in fact, when the court observed at the first sentencing

hearing that Appellant’s mental functioning had become compromised, it committed Appellant for evaluation and treatment and rescheduled the sentencing hearing, and heard

arguments at sentencing from Appellant’s former standby

counsel. In light of these circumstances and the record as a

whole, we find no error.

Even so, Appellant argues that we should reverse because

the district court was, in his view, unaware of the Edwards

decision. It is true that Edwards was never referenced during

any of the proceedings below. In particular, Appellant draws

our attention to defense counsel’s statements during Appellant’s second competency hearing, during which defense

counsel stated to the court as follows: 

There’s a case called United States v. Morano, M-OR-A-N-O, which says that if they — the court uses

the same standard in determining whether a defendant is competent to waive assigned counsel.

And since that standard has been met, I believe that

you could find that he is competent to waive counsel.

And he does have a motion that he wants to bring to

the court’s attention, that he wants to appear pro se

and have me assigned as standby counsel.

J.A. 62-63.13 The district court did not respond to defense

counsel’s statements or immediately thereafter engage the

lawyers concerning whether the standard for mental competency to waive the right to counsel was different than that

required to stand trial. In any event, Appellant’s contention

that we should reverse because the district court did not specifically mention or discuss Edwards is of no moment

13While it is not clear from the record, defense counsel was likely referring to Godinez v. Moran, 509 U.S. 389 (1993). 

14 UNITED STATES v. BERNARD
because, as explained above, Appellant is simply wrong as to

the import of that case to the facts we face here. Edwards

does not require district courts to impose an additional standard of competency when a defendant found competent to

stand trial seeks to waive his right to counsel. It only permits

them to do so.

Based on the foregoing, we conclude the district court did

not err, let alone plainly err, in finding Appellant competent

to waive his right to counsel.

C.

Turning to the district court’s decisions during trial, Appellant claims the court was required to sua sponte reconsider its

decision that Appellant was competent to stand trial and

waive counsel. We review for plain error.

Title 18, United States Code, Section 4241(a) provides that

the district court shall conduct a competency hearing and/or

order the defendant to undergo a psychiatric evaluation "if

there is reasonable cause to believe that the defendant may

presently be suffering from a mental disease or defect rendering him mentally incompetent . . . ." 18 U.S.C. § 4241(a).

Whether "reasonable cause" exists is a question left to the

sound discretion of the district court. See United States v.

Mason, 52 F.3d 1286, 1289 (4th Cir. 1995). Reasonable cause

may be established through "evidence of irrational behavior,

the defendant’s demeanor at trial, and medical opinions concerning the defendant’s competence." Id. at 1290. Notably,

"the presence of some degree of mental illness is not to be

equated with incompetence. . . ." Hall v. United States, 410

F.2d 653, 658 (4th Cir. 1969); see also United States v. Taylor, 437 F.2d 371, 375-76 (4th Cir. 1971). Rather, as noted,

the legal test for competency is whether the defendant "has

sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has

UNITED STATES v. BERNARD 15
a rational as well as factual understanding of the proceedings

against him." Dusky, 362 U.S. at 402.

In this case, we cannot say Appellant’s behavior during his

trial called into question the district court’s decisionmaking

concerning Appellant’s competency to stand trial and waive

counsel. Appellant’s failure to object during the Government’s case-in-chief, question two of the witnesses, call witnesses on his own behalf, or otherwise "think like a lawyer"

did not render him mentally incompetent. See United States

v. Ahrendt, 560 F.3d 69, 74 (1st Cir. 2009); see also Burket

v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000) ("Likewise,

neither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental

incompetence to stand trial."). In fact, Appellant’s mental

state did not show marked decline until the sentencing hearing

on October 6, 2010.

While Appellant did act in ways that may arguably appear

bizarre or irrational, such behavior does not invariably compel

a finding of incompetency. See id. The district court was in

the best position to observe Appellant and its determinations

during trial are entitled to deference, especially where, as

here, the district court was acutely alert throughout trial to

Appellant’s condition. 

Ultimately, because district courts are in the best position

to make competency determinations, which at bottom rely not

only on a defendant’s behavioral history and relevant medical

opinions, but also on the district court’s first-hand interactions

with, and observations of, the defendant and the attorneys at

bar, we appropriately afford them wide latitude. See Edwards,

554 U.S. at 177; Mason, 52 F.3d at 1289; United States v.

Banks, 482 F.3d 733, 743 (4th Cir. 2007) ("We defer so to the

district court because it is in a superior position to adjudge the

presence of indicia of incompetency. . . ."). After thorough

consideration of the proceedings below, we are satisfied that

the district court did not abuse its discretion in these matters.

16 UNITED STATES v. BERNARD
D.

Finally, we address whether trial counsel rendered ineffective assistance by arguing that Appellant’s competence to represent himself at trial was governed by the same standard

governing his competence to stand trial. We review de novo

a criminal defendant’s claim that his Sixth Amendment right

to effective assistance of counsel was violated. See United

States v. Tucker, 603 F.3d 260, 262 (4th Cir. 2010). We may

address this contention on direct appeal only if the lawyer’s

ineffectiveness conclusively appears from the record. See

United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.

2006). 

As we have explained, Edwards by its terms is not directly

implicated in this case. Accordingly, the heightened standard

discussed in Edwards, which applies when the district court

considers whether to force counsel on a severely mentally ill

defendant competent to stand trial but who wishes to represent himself, does not control. Even if we were to read

Edwards as Appellant does—and as no other circuit has done

—defense counsel’s alleged ineffectiveness does not conclusively appear from the record. Indeed, there is no indication

that the district court credited defense counsel’s allegedly

flawed argument. Appellant’s claim of error in this regard

thus fails.

IV.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

DIAZ, Circuit Judge, dissenting:

I agree with my colleagues that Indiana v. Edwards, 554

U.S. 164 (2008) imparts discretion, not a duty, allowing disUNITED STATES v. BERNARD 17
trict courts to apply a higher mental competency standard

when deciding whether a defendant may waive his right to

counsel. But the district court here simply was unaware of

that discretion when it considered whether Bernard—who had

a history of severe mental illness—should be allowed to proceed pro se. The majority nevertheless disclaims any error

because Edwards permits a court to choose to apply the same

competency standard to pro se defendants. But there can be

no greater abuse of discretion than to reach a permissible

result believing it to be mandatory, for that is not an act of

discretion at all.

I respectfully dissent.1

I.

It is undisputed that Bernard has an extensive history of

paranoid schizophrenia and depression, and that a psychologist certified that medical treatment—consisting of antipsychotic, antianxiety, and antidepressant drugs—restored his

mental competency in the spring of 2010. But as the majority

observes in passing, this mental health evaluation found Bernard competent to stand trial, not conduct one. Even then, the

evaluation did so with qualification. It conveyed doubts that

Bernard’s mental competency would persist, suggesting that

his "history of noncompliance with prescribed treatment

[would] almost certainly be a problem in the future." J.A. 468.

The psychologist also limited her recommendation to Bernard’s ability "to assist his attorney in his own defense if he

chooses to do so." J.A. 468. 

Before the second competency hearing in this case, Bernard

moved to proceed pro se, while defense counsel moved to

withdraw from the case. Addressing Bernard’s competence to

proceed pro se, counsel said the following to the district court:

1Because I would reverse the judgment on this basis alone, I do not discuss the other issues raised by Bernard’s appeal. 

18 UNITED STATES v. BERNARD
There’s a case called United States v. Morano, . . .

which says that if they—the court uses the same

standard in determining whether a defendant is competent to waive assigned counsel.

And since that standard has been met, I believe that

you could find that he is competent to waive counsel.

And he does have a motion that he wants to bring to

the court’s attention, that he wants to appear pro se

and have me assigned as standby counsel.

J.A. 63. While it is unclear, counsel appeared to be referring

to Godinez v. Moran, 509 U.S. 389 (1993), which held that

the same competency standard to stand trial governs when a

district court considers whether a defendant may represent

himself. After Edwards, however, it is now clear that courts

may apply a higher standard of competency to "gray area"

defendants seeking to waive their right to counsel. 554 U.S.

at 172, 175. At Bernard’s arraignment approximately one

month later, counsel again misstated the law on this issue.

J.A. 105. 

The district court accepted counsel’s incorrect statement of

the law and proceeded towards arraignment under the

assumption that Bernard was competent to waive counsel and

represent himself because he was competent to stand trial.

Other than summarily concluding that Bernard had knowingly

waived his right to counsel and that he would therefore be

permitted to proceed pro se, the court did not reach an independent determination of Bernard’s competency to do so, stating only: "Well, I find him competent to stand trial." J.A. 82

(emphasis added). But even after granting Bernard’s motion,

and relegating Bernard’s former lawyer to standby counsel,

the district court expressed doubt about Bernard’s competency to represent himself, stating, "I’m frank to say that I’m

not real comfortable with this." J.A. 82. Standby counsel

expressed similar concern, telling the district court, "I’m just

UNITED STATES v. BERNARD 19
really worried about him, whether he’s really competent to

waive the attorney issue." J.A. 83. 

These concerns proved prescient given Bernard’s performance during the trial. To put it charitably, Bernard did not

manage his pro se defense well. He rambled during open and

closing statements, and offered self-inculpatory explanations

for his behavior on the night of November 5, 2007. Bernard

cast himself as an undercover agent for the Brunswick County

police, explaining that his criminal conduct was an elaborate

ploy to attract police attention to the real drug traffickers that

were present in the neighborhood. As one might have

expected, the jury convicted Bernard. 

II.

The majority, without discussion, applies plain error review

to the question of whether Bernard should have been allowed

to represent himself, despite the fact that for Bernard to have

preserved the issue in the manner the majority expects, he

would have had to (1) recognize his own mental infirmities,

and (2) object to his own motion to proceed pro se. 

Whether to apply plain error review in this context is an

open question for this court, and our sister circuits have given

different answers. Compare United States v. DeShazer, 554

F.3d 1281, 1288 (10th Cir. 2009) (applying plain error review

to challenge to pro se competency), and United States v. VanHoesen, 450 F. App’x 57, 61 (2d Cir. 2011) (unpublished)

(same), with United States v. McBride, 362 F.3d 360, 365-66

(6th Cir. 2004) (noting the open question of whether plain

error or de novo review applies to challenges to a Faretta

waiver), and United States v. Erskine, 355 F.3d 1161, 1166

(9th Cir. 2004) (applying de novo review to challenges to

Faretta waiver).

Plain error review applies only when a defendant fails to

preserve his argument through a "contemporaneous objec20 UNITED STATES v. BERNARD
tion." See Fed. R. Crim. P. 51(b); United States v. Smith, 640

F.3d 580, 586 (4th Cir.), cert. denied, 132 S. Ct. 430 (2011).

Rule 51(b) provides: "If a party does not have an opportunity

to object to a ruling or order, the absence of an objection does

not later prejudice that party." We have noted that the Federal

Rules do not take a "formulaic approach" to the contemporaneous objection rule, see United States v. Lynn, 592 F.3d 572,

577 (4th Cir. 2010), and other courts have declined a rigid

application of the rule as well, see United States v. Gapinski,

561 F.3d 467, 473-74 (6th Cir. 2009); Erskine, 355 F.3d at

1166. 

In Erskine, a defendant misinformed of the statutory maximum penalty at his Faretta2

 colloquy challenged the validity

of his waiver of counsel. The Ninth Circuit refused to apply

plain error despite Erskine’s failure to object to the oversight

by the district court, reasoning that such review 

is inapposite where a defendant has not yet been adequately informed of all the elements that he must

take into account in making his decision to forgo

counsel and where the error in question involves the

failure to provide him with that information. Our

requirements for reviewing the validity of a Faretta

waiver are predicated on the fact that we do not

expect pro se defendants to know the perils of selfrepresentation, and consequently, we cannot expect

defendants to recognize that they have not been correctly and fully advised, let alone to point out the

court’s errors. 

Erskine, 355 F.3d at 1166. 

I find Erskine analogous to the situation at hand, and would

therefore hold that when a defendant requests to proceed pro

2Faretta v. California, 422 U.S. 806 (1975). 

UNITED STATES v. BERNARD 21
se at a competency hearing,3

 he has sufficiently put his competency at issue to preserve a claim of invalid waiver of counsel. In this special situation, it is paradoxical to expect a

defendant to recognize his own "gray area" mental competency, and then object to his own motion to proceed pro se.

Because I agree with the majority that Edwards is properly

read as conferring discretion rather than imposing a mandate,

this court should review the district court’s decision not to

apply a higher pro se competency standard for abuse of discretion. See United States v. Johnson, 610 F.3d 1138, 1145

(9th Cir. 2010) ("Because Edwards holds that the Constitution

‘permits’ interfering with a Faretta request for ‘gray area’

defendants, it suggests an abuse of discretion standard.");

United States v. Berry, 565 F.3d 385, 389 (7th Cir. 2009)

(reviewing decision of whether "the court should not have

allowed Berry to represent himself . . . for an abuse of discretion."). 

III.

A.

There are two relevant mental competency standards that a

district court may apply to a defendant seeking to represent

himself. First, a court may apply the competency standard for

a defendant to stand trial under Dusky v. United States, 362

U.S. 402, 402 (1960) (per curiam), which asks whether a

defendant has "sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him." Second, a court may

3

It is true that Bernard’s counsel also failed to object and, in fact, bears

substantial responsibility for the error. By this point in the proceedings,

however, counsel had moved to withdraw in light of Bernard’s motion to

proceed pro se. For all practical purposes then, it was Bernard who was

making the operative decisions at the competency hearing. 

22 UNITED STATES v. BERNARD
apply a distinct competency standard for self-representation

recognized by Edwards, 554 U.S. at 173-76, which allows a

district court to apply an undefined, higher standard to "gray

area" defendants who may be competent to stand trial but not

conduct one. 

The district court believed that it was compelled, presumably under Godinez, to apply the Dusky competency standard

to defendants seeking self-representation. This exact issue

was presented in VanHoesen, where a defendant challenged

his waiver of counsel on the basis "that the district court was

unaware of Edwards and mistakenly believed that it lacked

discretion to prevent VanHoesen from representing himself."

450 F. App’x at 61. The Second Circuit concluded there was

no error, but only in light of "the district court’s awareness

that a defendant’s competence to represent himself may be

different from his competence to stand trial." Id. at 62. The

decision depended not on whether Edwards permitted or

required a different competency standard, but rather whether

"the district court was oblivious to the Edwards distinction."

Id. at 62 n.1. 

Unlike VanHoesen, however, here the record supports the

view that the district court was misled by counsel’s misstatement of the applicable law and was otherwise unaware of

Edwards. As a result, the majority is incorrect to find no error

in this case simply because the district court reached, in the

majority’s estimation, a permissible result applying the wrong

law. This result-oriented approach is inappropriate when

reviewing a decision that is—as the majority acknowledges—discretionary.4

See Kickapoo Tribe of Indians of the

Kickapoo Reserv. in Kan. v. Babbitt, 43 F.3d 1491, 1497

4Of course, we frequently apply an outcome-centric analysis when

determining whether an abuse of discretion prejudices a defendant. But as

I explain later, that analysis is misplaced here, given my view that the

error in question—an invalid waiver of counsel—is a structural defect

defying any consideration of prejudice. 

UNITED STATES v. BERNARD 23
(D.C. Cir. 1995) ("The exercise of discretion contemplates

reasoned decision making on the basis of relevant and appropriate considerations to the task at hand.").

It is well established, irrespective of the result that a court

reaches, that "[w]hen a court misapprehends or fails to apply

the law with respect to underlying issues, it abuses its discretion." Gunnells v. Healthplan Servs. Inc., 348 F.3d 417, 446

(4th Cir. 2003); see also United States v. Brown, 415 F.3d

1257, 1266 (11th Cir. 2005) ("An abuse of discretion can

occur where the district court applies the wrong law . . . .").

And it should go without saying that a court manifestly abuses

its discretion when it does not even realize it has any. See

United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008)

("[A] district court that is aware of an argument does not

abuse its discretion by not considering it. When a district

court does not consider an argument because it is unaware of

its power to do so, however, a remand is appropriate."). 

We routinely apply these principles in the context of sentencing, where we have found an abuse of discretion when a

court "did not understand that it had discretion to depart from

the Guidelines." United States v. Herder, 594 F.3d 352, 363

(4th Cir. 2010); see also United States v. Brewer, 520 F.3d

367, 371 (4th Cir. 2008) ("We lack the authority to review a

sentencing court’s denial of a downward departure unless the

court failed to understand its authority to do so."). 

The majority insists that we must "interpret[ ] Edwards to

confer discretion, not to impose a new duty." Maj. Op. at 11

n.11. True enough in the abstract, but to grant a court discretion to choose either competency standard "A" or competency

standard "B" means just that—a court has a choice. Here the

district court did not choose to apply the same competency

standard to pro se defendants. Rather, it felt constrained by its

own mistaken understanding of the law to grant Bernard’s

request to represent himself, despite (1) its own misgivings

about the wisdom of that choice, and (2) ample evidence that

24 UNITED STATES v. BERNARD
would have supported a contrary decision under Edwards. I

cannot defer to the district court’s discretion here because the

court did not, as a subjective matter, believe it had any. See

Herder, 594 F.3d at 363. I would instead find that the district

court abused its discretion and proceed to consider the remedy. 

B.

In my view, the district court’s abuse of discretion under

Edwards resulted in an invalid Faretta waiver, and as a result,

violated Bernard’s Sixth Amendment right to counsel. See

Iowa v. Tovar, 541 U.S. 77, 80-81 (2004) (characterizing an

invalid waiver of counsel as a violation of the Sixth Amendment right to counsel). Assessing the effect of this error is, I

believe, inappropriate, because a defective Faretta waiver is

per se prejudicial. See United States v. Venable, 373 F. App’x

402, 402 (4th Cir. 2010) (unpublished) (reversing and

remanding an invalid waiver of counsel without assessing

prejudice). 

This is because an invalid waiver of counsel is tantamount

to the complete deprivation of counsel, which the Supreme

Court has recognized as structural error. See United States v.

Gonzalez-Lopez, 548 U.S. 140, 149 (2006) ("Such [structural]

errors include denial of counsel . . . ." (citing Gideon v. Wainwright, 372 U.S. 335 (1963))). This analogy derives from

Penson v. Ohio, 488 U.S. 75 (1988), where counsel representing a petitioner on appeal for state court criminal convictions

moved to withdraw on the basis that the appeal was meritless.

The state appellate court granted the motion, denied petitioner’s motion to substitute new counsel, and "without the assistance of any advocacy for petitioner . . . made its own

examination of the record to determine whether petitioner

received a fair trial and whether any grave or prejudicial

errors occurred therein." Id. at 79 (internal quotations omitted). 

UNITED STATES v. BERNARD 25
Because there were meritorious issues for appeal, the

Supreme Court concluded that the state appellate court ran

afoul of Anders v. California, 386 U.S. 738 (1967). More

importantly, the Court presumed prejudice on the basis that

"the denial of counsel in this case left petitioner completely

without representation during the appellate court’s actual

decisional process. This is quite different from a case in

which it is claimed that counsel’s performance was ineffective." Penson, 488 U.S. at 88.

Our sister circuits have treated defective Faretta waivers as

structural Sixth Amendment errors not amenable to any prejudice inquiry. See United States v. Forrester, 512 F.3d 500,

508 (9th Cir. 2008) ("The failure to meet the requirements for

a valid Faretta waiver constitutes per se prejudicial error, and

the harmless error standard is inapplicable." (internal quotations omitted)); United States v. Virgil, 444 F.3d 447, 456

(5th Cir. 2006) ("[We] hold now, as our sister circuits have,

that this type of Faretta error at trial is insusceptible to harmless error analysis . . . ."); United States v. Salemo, 61 F.3d

214, 221 (3d Cir. 1995) ("[W]e decline to engage in a harmless error analysis [where defendant did not validly waive

counsel]."), overruled on other grounds by United States v.

Turner, 677 F.3d 570 (3d Cir. 2012); United States v. Allen,

895 F.2d 1577, 1580 (10th Cir. 1990) ("Acceptance of an

invalid waiver in violation of a defendant’s Sixth Amendment

rights necessarily leaves him entirely without the assistance of

counsel at trial." (internal quotations omitted)).5

In the same way, when a district court does not comprehend the full measure of its discretion under Edwards to safeguard a mentally ill defendant’s right to counsel, I would hold

5The fact that Bernard enjoyed standby counsel does not cure the error.

See Salemo, 61 F.3d at 222 ("[W]e do not believe that the district court’s

instruction for Salemo’s appointed counsel to serve as standby counsel

during the sentencing is a sufficient substitute for obtaining a valid waiver

of the right to counsel from the defendant."). 

26 UNITED STATES v. BERNARD
that the error is tantamount to a defective waiver of that right,

which we should not test for prejudice. Instead, I would

reverse the judgment and remand for a new trial. 

I respectfully dissent. 

UNITED STATES v. BERNARD 27