*After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the determination of this appeal. SeeFed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 21 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. WALTER SCOT BOIGEGRAIN,

Defendant - Appellant. No. 96-1548

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D. Ct. No. 96-CR-233-N)

Submitted on the briefs: * Richard Byron Peddie and Catherine A. Hance, Frasco na, Joiner & Goodman, P.C., Boulder, Colorado, for Defendant-Appellant. Henry L. Solano, United States Attorney, and Charlo tte J. Mapes, Assistant United States Attorney, District of Colorado, Denve r, Colorado, for PlaintiffAppellee.

Before PORFILIO , HOLLOWAY , and TACHA , Circuit Judges.- 2 -

TACHA , Circuit Judge.

This appeal invites us to resolve two constitutiona l questions regarding the relationship between an attorney and a potentially incompetent client in a criminal case. First, we must determine whether a client wh o may be incompetent to stand trial has a constitutional right to waive his couns el before a hearing on his competency. The second issue presented is whether counsel who moves for an evaluation of the defendant’s competency against th e defendant’s wishes thereby renders ineffective assistance of counsel. Exercis ing jurisdiction pursuant to 28 U.S.C. § 1291, we answer both questions in the negative.
I. The defendant was charged with two counts of thr eatening a federal law enforcement officer and his family, in violation of 18 U.S.C. § 115(a)(1)(B). His arraignment was scheduled for June 7, 1996, and fro m that point the parties have taken a somewhat tortuous course to this appeal. The arraignment was continued until June 14, 1996, to allow David Conner, the public defender representing the defendant, to familiarize himself with the case. At that time, the defendant pleaded not guil ty and advised the court that if he could retain private counsel, he would like to r eplace Mr. Conner. The Magistrate assured the defendant that he had that o ption open to him.1 Determining whether an accused is competent to stand trial is a three step process.

See generallyDeters v. United States , 143 F.3d 577, 579-80 (10th Cir. 1998) (reviewing the process). First, if there is “reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent,” the court may order a psychiatric or psychological examination of the defendant. 18 U.S.C. § 4241(a). At the second stage, the court uses the psychological report and conducts a hearing to determine whether the defendant is competent. If the defendant is not found to be competent, the court must order the defendant hospitalized for up to four months to determine whether the defendant will become competent in the foreseeable future. The court may order additional hospitalization if it finds there is a substantial probability that within the additional time, the defendant will become competent. Seeid. § 4241(d). At the third stage, after the specified period of confinement has expired, the court determines whether the defendant is competent and thus ready to stand trial. If still found not to be competent, the defendant must be released unless the court finds that he presents a substantial risk of harm to others. Seeid. §§ 4241(d), 4246; United States v. Steil , 916 F.2d 485, 486-87 (8th Cir. 1990). - 3 - On June 20, the day of a scheduled discovery confer ence, the defendant filed a “Notice of Dismissal of U.S. Federal Public Defender Mr. David Conner and Notice of Stay of Proceedings Pending Procureme nt of Other Counsel.” The presiding Magistrate agreed to delay the discovery conference for one week, until June 28, 1996, to allow the defendant to retain cou nsel. The Magistrate, however, did not release the public defender from the case. The record does not reflect whether the conference scheduled for June 28 ever occurred. Regardless, the defendant did not p rocure private counsel but continued, throughout the proceedings, to file moti ons on his own behalf rather than through his lawyer. On July 8, Mr. Conner mov ed for a determination of the defendant’s competency to stand trial. 1 On the basis of that unopposed motion,- 4 -

the court appointed a psychiatrist to examine the d efendant and scheduled a hearing on the defendant’s competency for October 1 8. The defendant missed his appointment with the court-appointed psychiatrist, which triggered a motion by the government to have the defendant committed for the purpose of conducting the preliminary evaluation. See 18 U.S.C. § 4247(b) (stating that for the purpose of conducting an examination pursuant to § 4241(b), “the court may commit the person to be examined for a reasonable period”). T he court granted the government’s motion. The defendant was confined un til the psychiatric evaluation was completed. The district court rescheduled the hearing on the d efendant’s competency for November 8, 1996, but the defendant did not app ear. After the defendant was arrested and his bond revoked, the competency heari ng finally took place on December 6, 1996. There, the district court explai ned why he had not yet ruled on the defendant’s motion to excuse Mr. Connor:

I have not ruled on that motion deliberately . . . I am aware, of course, that under applicable precedent o f the United States Supreme Court, a defendant in a criminal cas e has the right to waive his Sixth Amendment right to counsel and proceed to represent himself. However, in order fo r that to happen, the Court must find a knowing, intelligent, voluntary waiver of the right to counsel. . . . I have not ruled on the motion because I do not think that one can determine whether a person is co mpetent to waive counsel until you can make a determination as to whether Mr. Boigegrain is competent to stand trial.2Defendant spent approximately four months at the federal medical center and then

was released after experts determined that he had been restored to competence. - 5 - R.O.A. vol. 11 at 2-3. The court found Mr. Boigegr ain incompetent to stand trial and ordered him committed for a period not to exceed four months, pursuant to 18 U.S.C. § 4241(d). The defendant filed his appeal from that order on D ecember 19, 1996. Counsel for the defendant moved to withdraw the app eal on the basis that this court had no jurisdiction because there was no fina l order issued. The en banc court found that we have jurisdiction over appeals from section 4241(d) commitment orders. See United States v. Boigegrain , 122 F.3d 1345, 1349 (10th Cir. 1997) (en banc) (per curiam) (overruling United States v. Cheama , 730 F.2d 1383 (10th Cir. 1984)). The court then or dered briefing on the merits, which are before this panel now. After the parties submitted briefs on the merits, at the defendant’s request we granted a limited remand so that the dis trict court could make new findings on the defendant’s competency, and if appr opriate enter a plea agreement. 2 The district court found the defendant competent and accepted the defendant’s guilty plea. The government then filed a motion to dismiss this appeal for mootness. We took that motion under adv isement and address it first.- 6 - II. The government argues that the case is now moot bec ause Mr. Boigegrain has pleaded guilty to the charge. We di sagree. Mr. Boigegrain is appealing the district court’s order, pursuant to 1 8 U.S.C. § 4241(d), which found him incompetent to stand trial and ordered hi m committed to the custody of the Attorney General for a period not to exceed four months. In the defendant’s first appeal of that order, we addresse d the mootness question: Although the defendant’s commitment has concluded, there is no question that a justiciable case or controversy is presented that will not be mooted by his release. Because co mmitments ordered pursuant to § 4241(d) will often be conclud ed before the appellate process is complete, the issue presen ted here is “‘capable of repetition, yet evading review.’” Boigegrain , 122 F.3d at 1347 n.1 (quoting United States v. Gu nderson , 978 F.2d 580, 581 n.1 (10th Cir. 1992)). Because the d efendant is appealing his commitment pursuant to section 4241(d), it is his r elease from that commitment, if anything, that would moot this appea l. The fact that he entered into a plea agreement has no impact on the complete ly separate commitment issue. Cf. Boigegrain , 122 F.3d at 1349 (finding a commitment order unde r section 4241(d) to be “completely separate from the merits of the action”). We are governed by the law of the case as stated in th e previous opinion. Mr. Boigegrain’s appeal is not moot.
III.- 7 - A. The defendant raises three issues on appeal. First , he contends that the proceedings in this case violated his right to waiv e his counsel and to represent himself. We review the district court’s finding of historical facts for clear error. See, e.g. , United States v. Robertson , 45 F.3d 1423, 1430 (10th Cir. 1995). We review de novo, however, the ultimate qu estion of whether a constitutional violation took place. See United States v. Taylor , 113 F.3d 1136, 1140 (10th Cir. 1997). Criminal defendants have a constitutional right, ro oted in the Sixth Amendment, to conduct their own defense. See Faretta v. California , 422 U.S. 806 (1975). Thus, a lawyer cannot be forced upon adefendant who wishes to act as his own representative, even if self-represe ntation would be detrimental to the defendant. See id. at 834. In this case, the defendant moved to dism iss the public defender in June of 1996. The district court did not rule on the motion for over five months, during which time the public defender raised the competency issue and did not argue, as the defendan t apparently wished him to, that the defendant was competent to stand trial. T he defendant argues that the delayed resolution of his motion and his lawyer’s t aking a position contrary to his own denied him the right to waive counsel and r epresent himself. An accused who forgoes the assistance of counsel su rrenders substantial- 8 -

benefits. Therefore, “in order to represent himsel f, the accused must ‘knowingly and intelligently’ forgo those relinquis hed benefits.” Id. at 835 (quoting Johnson v. Zerbst , 304 U.S. 458, 464-65 (1938)); see also United States v. Baker , 84 F.3d 1263, 1264 (10th Cir. 1996). The defenda nt’s decision to waive counsel must be knowing, voluntary, and competentbefore it can be recognized. See Faretta , 422 U.S. at 835; Godinez v. Moran , 509 U.S. 389, 399-400 (1993) (“[A] defendant choosing self-repres entation must do so ‘competently and intelligently’ . . . .”) (quoting Faretta , 422 U.S. at 835). The district court had a duty to ensure that the defend ant was choosing selfrepresentation in an informed manner before allowin g him to proceed on his

own. Here, the court waited to rule on the defendant’s m otion to dismiss the public defender until the issue of the defendant’s competency to stand trial had been resolved. That was the most appropriate cours e because “[l]ogically, the trial court cannot simultaneously question a defend ant’s mental competence to stand trial and at one and the same time be convinc ed that the defendant has knowingly and intelligently waived his right to cou nsel.” United States v.
Purnett , 910 F.2d 51, 55 (2d Cir. 1990). Although that co mmon sense statement almost resolves this matter on its own, amore recent case from the Supreme Court, Godinez v. Moran , 509 U.S. 389 (1993), clarifies it completely.- 9 -

In Godinez , the Court held that the degree of competence nece ssary to waive the right to counsel is identical to the degree of competence necessary to stand trial. See id. at 399-400. Therefore, it was impossible for the district court to allow the defendant to waive counsel before determi ning whether he was competent to stand trial. Before resolving the fir st question, the court had to resolve the second. Furthermore, even if a six-month delay in disposing of a defendant’s motion would effectively deny the defendant the rig ht to waive counsel—a question that we need not, and do not, resolve here —the delay in this case was not attributable to the district court. The distri ct court originally scheduled the competency hearing for October. The time-consuming complications were the defendant’s failure to attend his meeting with the psychiatrist and his failure to appear at the rescheduled competency hearing in Nov ember.
B. The defendant also argues that he received ineffect ive assistance of counsel from the public defender, David Conner. Th e defendant argues that Mr. Conner abandoned his role as the defendant’s ad vocate and therefore rendered ineffective assistance of counsel by raisi ng the competency issue against the defendant’s wishes. “Ineffective assistance of counsel claims should be brought in collateral- 10 -

proceedings, not on direct appeal.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). We are reluctant to hear claims of ineffective assistance advanced for the first time in this court because we work at a distinct disadvantage when we operate without the factual de velopment and judicial reasoning afforded by lower court proceedings. See id. (discussing Beaulieu v. United States , 930 F.2d 805, 806-07 (10th Cir. 1991) (overruled on other grounds byGalloway , 56 F.3d at 1241)). Therefore, only in the very r are instance that a claim of ineffective assistance is fully developed in the record will we hear it for the first time on appeal. See Galloway , 56 F.3d at 1242. Normally, we require criminal defendants alleging i neffective assistance of counsel to obtain a ruling by a district court o n their argument by way of a motion pursuant to 28 U.S.C. § 2255. See, e.g. , id. ; United States v. Yates , 22 F.3d 981, 985-86 (10th Cir. 1994). An individual i n Mr. Boigegrain’s position, however, cannot file such a motion. Section 2255 a llows “[a] prisoner in custody under sentence” to argue that his sentence was imposed in violation of the Constitution. See 28 U.S.C. § 2255. A defendant temporarily committ ed pursuant to section 4241(d) is neither a prisoner n or under sentence; after being found incompetent to stand trial, he is held in the custody of the attorney general as an accused rather than a criminal offend er. Persons being held because they have been found men tally incompetent- 11 -

can file petitions for writs of habeas corpus inste ad of motions under section
2255. See 3 C HARLES A LAN W RIGHT , F EDERAL P RACTICE AND P ROCEDURE § 591 (2d ed. 1982); O’Beirne v. Overholser , 287 F.2d 133, 136 (D.C. Cir. 1960); Hill v. United States , 206 F.2d 204, 207 (6th Cir. 1953). If that cours e were open to the defendant, we would await a lower court ruling on a habeas petition before reaching the merits. In this case, however, the defendant cannot file a habeas corpus action. A writ of habeas corp us cannot be issued unless the person requesting it is under “restraint,” see 28 U.S.C. § 2241(a), and Mr. Boigegrain has long since been released from his co mmitment. The defendant, therefore, has no means by which to attack the commitment order collaterally, making it impossible for us to apply our rule that “claims of constitutionally ineffective counse l should be brought on collateral review.” Galloway , 56 F.3d at 1242. The unusual circumstances of this case, as well as the fact that the record is a dequate to decide the matter, lead us to reach the merits of the defendant’s inef fective assistance of counsel claim. In order to prove that the public defender rendered ineffective assistance of counsel, the defendant must show (1) that the co unsel’s performance was so deficient that it “fell below an objective standard of reasonableness,” and (2) that the deficient performance prejudiced the defen dant. Strickland v.- 12 -

Washington , 466 U.S. 668, 687-88 (1984). With regard to the first question, courts must indu lge a strong presumption that counsel’s actions constitute “reas onable professional assistance.” Id. at 689. Nonetheless, the defendant notes correctl y that the Sixth Amendment requires a lawyer to act as an advo cate for his client. See United States v. Cronic , 466 U.S. 648, 656 (1984). If counsel does not ac t as an advocate for the defendant, the process “loses i ts character as a confrontation between adversaries,” id. at 656-57, and our entire justice system is premised on the belief that “debate between adve rsaries is often essential to the truth-seeking function of trials,” Gardner v. F lorida , 430 U.S. 349, 360 (1977) (plurality opinion), quoted inCronic , 466 U.S. at 655 n.14. “An effective attorney ‘must play the role of an active advocate, rather than a mere friend of the court.’” Osborn v. Shillinger , 861 F.2d 612, 624 (10th Cir. 1988) (quoting Evitts v. Lucey , 469 U.S. 387, 394 (1985)). The defendant argues that his lawyer, the public de fender, abandoned his role as the defendant’s advocate and therefore rend ered ineffective assistance of counsel in raising the competency issue against the defendant’s wishes. The Sixth Amendment, however, did not require that the public defender adhere to the defendant’s apparent wish to avoid the competen cy issue. We hold that when a lawyer has reason to believe that her clientmay not be mentally3 We have found only one line of cases, in California, addressing the precise issue

before us in this case. SeePeople v. Harris , 14 Cal. App. 4th 984, 994, 18 Cal. Rptr. 2d 92, 98 (Cal. Ct. App. 1993) (“We agree with the basic holding in Boldenthat defense counsel does not provide ineffective assistance of counsel or violate the defendant’s due process rights by seeking to prove the defendant’s incompetence over the defendant’s objections.”). - 13 - competent to stand trial, she does not render ineff ective assistance of counsel by making her concerns known to the court. As with the previous issue, common sense all but di sposes of the matter. While the Sixth Amendment demands that counsel to c riminal defendants act as their advocates, the rule is not absolute in any se nse. Counsel does not have to take every position and make every argument that th e client requests. See United States v. Dawes , 874 F.2d 746, 748 (10th Cir. 1989) (per curiam) (“There is no right to counsel who will blindly fol low a defendant’s instructions.”). Requiring a lawyer to argue at th e direction of one who may be mentally incompetent—that is, one who seems unable to comprehend the nature of the proceedings against him—serves neither the i ndividual client nor the truth-seeking process. See Brennan v. Blankenship , 472 F. Supp. 149, 156 (W.D. Va. 1979) (“Under any professional standard, it is improper for counsel to blindly rely on the statement of a criminal clie nt whose reasoning abilities are highly suspect.”). Though this is an issue of first impression in our circuit, 3 the appellate- 14 -

opinions that have touched on it all imply that the criminal lawyer’s obligation to advocate the positions of his client is dependen t on the client being mentally competent to stand trial. See, e.g. , Alvord v. Wainwright , 725 F.2d 1282, 1289 (11th Cir. 1984) (“ [G]iven [the defendant’s] competency , [the attorney] was ethically bound to follow the client’s wishes.” (emphasis added)). In Clanton v. Bair , 826 F.2d 1354 (4th Cir. 1987), the court found th at defense counsel who respected his client’s refusal to submit to a p sychiatric evaluation had not rendered ineffective assistance of counsel. The co urt said:

When Clanton rejected his trial lawyer’s suggestion of a psychiatric evaluation, there was no basis for the lawyer’s insistence upon it. Clanton seemed lucid and ratio nal. He gave no indication of any mental or emotional probl em. There was no doubt of his competence to stand trial . . .

. Id. at 1358. The implication, of course, is that if t here were doubt of the defendant’s competence, counsel should not necessar ily respect the client’s expressed desires. This case highlights the fact that in addition to t heir duties as counselors, attorneys are also officers of the courts. The Con stitution prohibits a court from trying defendants who are mentally incompetent . See Pate v. Robinson , 383 U.S. 375, 378 (1966). Of all the actors in a t rial, defense counsel has the most intimate association with the defendant. Ther efore, the defendant’s lawyer is not only allowed to raise the competency issue, but, because of the- 15 -

importance of the prohibition on trying those who c annot understand proceedings against them, she has a professional du ty to do so when appropriate. See, e.g. , Vogt v. United States , 88 F.3d 587, 592 (8th Cir. 1996) (“‘The failure of trial counsel to request a compet ency hearing where there was evidence raising a substantial doubt about a petiti oner’s competence to stand trial may constitute ineffective assistance of coun sel.’”) (quoting Speedy v. Wyrick , 702 F.2d 723, 726 (8th Cir. 1983)). In fact, defen dants often contend in collateral proceedings that their trial counsel rendered ineffective assistance by failingto request a competency hearing. See, e.g. , Clanton , 826 F.2d at
1357-58. Counsel’s actions in this case were fully consisten t with the American Bar Association Standards, which are a guide in det ermining reasonable professional behavior. See Strickland , 466 U.S. at 688. The pertinent standard

states: Defense counsel should move for evaluation of the d efendant’s competence to stand trial whenever the defense coun sel has a good faith doubt as to the defendant’s competence. If the client objects to such a motion being made, counsel may move for evaluation over the client’s objection. In any event, counsel should make known to the court and to the p rosecutor those facts known to counsel which raise the good f aith doubt of competence.
ABA S TANDARDS FOR C RIMINAL J USTICE Standard 7-4.2(c) (emphasis added). Based on this ABA standard as well as the other cit ed authorities, the- 16 -

entire panel agrees that defense counsel may move f or a competency determination against a client’s wishes without vio lating the Fifth or Sixth Amendment. The dissent, however, concludes that al though defense counsel may (and probably must) raise the issue, she cannot continue to represent her client when the client does not agree that he is in competent. According to the dissent, the Constitution requires that the defenda nt’s view must be presented, and therefore substitute counsel be appointed to ar gue as the defendant wishes. In support of its position, the dissent cites the c ommentary to Standard 7-4.2, which notes that when an attorney advises the courtof her client’s possible incompetence, “[t]his may require, of course, that an attorney seek judicial permission to withdraw as defense counsel because o f a conflict of interest.” Id. Commentary Introduction. The dissenting opinion a ssumes that the “conflict” referred to here is the conflict that ar ises when the lawyer and his client have contrary beliefs regarding the defendan t’s competency. See Dissenting Op. at 7 (“[C]ircumstances like those be fore us are just what the drafter of the ABA Standards must have had in mind in their commentary about the necessity of the attorney seeking leave to with draw.”). The conflict referred to in the commentary, however , is not that between the client and the lawyer. Further paragraphs in t he commentary make clear that the conflict addressed by the ABA Standard is altogether different. The- 17 -

ABA Standard recognizes that even among defendants whose competency to stand trial is dubious, in some instances it is in the best interest of the defendant to proceed to trial without a competency determination. For instance, if the prosecution has a weak case or the crime is a minor one, the defendant might prefer the small risk of conviction or relatively minor punishment to the opprobrium and possible long-terminstitutionalization that accompany a finding of incompetency. See Standard 7-4.2 Commentary (“Because of the sometimes severe consequences trad itionally attendant upon a determination of incompetence, defense counsel may conclude that it is better for a technically incompetent defendant to proceed to trial.”). In such a case, the lawyer’s duty to represent the client’s best in terest requires one course of action, while the duty to maintain the integrity of the court by advising it of a defendant’s possible incompetence requires another. See id. The standard resolves that conflict in favor of the court. For the above reasons, the defendant’s disagreementwith the public defender’s evaluation of his competence did not tri gger the withdrawal procedure of Standard 7-4.2. Furthermore, consider ing the seriousness of the offense with which the defendant was charged, see 18 U.S.C. § 115(b)(1)(4), there was no conflict between the defense counsel’s duty to serve his client’s best interest and to raise the competency issue. B oth duties required him to- 18 -

raise the competency issue with the court. Thus, t he conflict-of-interest language in Standard 7-4.2 is inapposite. Nothing else in the ABA Standards or the constitutional decisions bar defense counsel from arguing—or, as in this case, merely presenting testimony on—the point she was required to raise. See Hull v. Freeman , 932 F.2d 159, 169 (3d Cir. 1991) (“[W]e think it axiomatic that the desire of a defendant whose mental faculti es are in doubt to be found competent does not absolve counsel of his or her in dependent professional responsibility to put the government to its proof at a competency hearing when the case for competency is in serious question.”), overruling on other grounds recognized in Caswell v. Ryan , 953 F.2d 853 (3d Cir. 1992); Bundy v. Dugger , 816 F.2d 564, 566 n.2 (11th Cir. 1987) (“If defense counsel suspects that the defendant is unable to consult with him with a reas onable degree of rational understanding, he cannot blindly accept his client’ s demand that his competency not be challenged.”) (citation and quotation marks ommited) . The public defender’s actions in this case did not fall below an objective standard of reasonableness, and therefore he did no t render ineffective assistance to the defendant.
C. Finally, the defendant argues that the evidence doe s not support the district court’s finding that the defendant was men tally incompetent to stand- 19 -

trial. Competency to stand trial is a factual dete rmination that can be set aside only if it is clearly erroneous. See United States v. Crews , 781 F.2d 826, 833 (10th Cir. 1986) (per curiam). In order for a defe ndant to be competent to stand trial, he must have “sufficient present abili ty to consult with his lawyer with a reasonable degree of rational understanding, ” and also a “rational as well as factual understanding of the proceedings ag ainst him.” Dusky v. United
States , 362 U.S. 402, 402 (1960) (per curiam). “In makin g a determination of competency, the district court may rely on a numberof factors, including medical opinion and the court’s observation of the defendant’s comportment.” United States v. Nichols , 56 F.3d 403, 411 (2d Cir. 1995). In this case, the district court relied on the test imony of psychiatrist Rebecca Barkhorn, who evaluated the defendant at th e court’s request. Dr. Barkhorn testified that the defendant was delusiona l and suffered from “paranoid ideation,” causing him to believe that hi s lawyer was participating in a conspiracy, along with the prosecutor and the jud ge, to incarcerate him for reasons unrelated to the charge against him. In he r opinion the substitution of alternate counsel would not solve the problem, as t he defendant would be unable to trust or work with any attorney who did n ot share his beliefs. Dr. Barkhorn described the defendant’s delusions insome detail and stated that they interfered substantially with his ability to understand events,- 20 -

such as the criminal proceedings against him, becau se he could only evaluate those events through the prism of his delusions. A ccording to the psychiatrist, the defendant’s inability to think rationally aboutthe case was evidenced by, among other things, his belief that the Immigration and Naturalization Service was somehow involved in the case against him and th at the case also directly related to the abortion of a child that he had conc eived sometime in the past. Dr. Barkhorn concluded that the defendant did not h ave “a rational understanding of many aspects of the case.” In addition to Dr. Barkhorn’s testimony, the court relied on its own observation of the defendant’s behavior, as well as the defendant’s pro se filings in the case, which the court described as “ irrational.” We do not find the court’s description of the defendant’s pleading s clearly erroneous. Nor did the court clearly err in finding that Dr. Barkhorn’ s testimony established that the defendant was not competent to stand trial. To the contrary, Dr. Barkhorn’s testimony touched heavily on the two relevant quest ions—the defendant’s ability to consult with an attorney, and his ability to understand the proceedings against him.
IV. We hold that the proceedings in this case did not v iolate the defendant’s right to self-representation. Furthermore, we hold that a lawyer with a- 21 -

reasonable doubt regarding the competency of his cl ient to stand trial does not render ineffective assistance of counsel by raising the competency issue against the wishes of his client. Finally, we find that th e evidence supports the district court’s finding that the defendant was incompetent to stand trial. All other pending motions are denied.
We AFFIRM.No. 96-1548, United States v. Boigegrain

HOLLOWAY , Circuit Judge, concurring in part and dissenting in part: I agree with much of the scholarly analysis in the majority opinion, and I concur in the holding that the appeal is not moot. However, I am unable to fully join the opinion or concur in the result because of my views on one basic issue. I would hold under these circumstances that an accused is entitled to make the fundamental decision on his position on competency, and to counsel to assist him in presenting his position and in resisting a finding of incompetence to stand trial. I feel that the majority opinion essentially overlooks the defendant’s primary argument by analyzing it only as a contention of ineffective assistance of counsel. As I see it, his primary

contention actually is that there was in effect a complete denial of the right to counsel here. Mr. Boigegrain’s appellate counsel argue that at the hearing on defendant’s competency to stand trial, there was no voice advocating Mr. Boigegrain’s position. Instead, the moment for his defense was displaced with the antagonistic voice of Defense Counsel, who argued for his commitment. Mr. Boigegrain was left alone in the courtroom, without friend or advocate, and without the opportunity to be heard effectively. Appellant’s Opening Brief at 9 (emphasis added). Appellant’s Reply Brief at 3 states that “the core of Defendant’s argument is that Defendant was deprived of his right to an advocate who would argue for, as opposed to against, his liberty interests.” I am satisfied that the record clearly supports this description of events by Mr. Boigegrain’s appellate counsel. At the hearing on his competency to stand trial on-2-

December 6, 1996, 11 R. at 2-52, the Assistant Federal Public Defender appointed to represent the defendant, Mr. Conner, and Assistant U.S. Attorney Allison presented the bulk of the evidence on defendant’s competency, id. at 10, 30, defendant being permitted to make brief statements. E.g. , 34-43, 45-47. In fact, government counsel and the public defender spoke with one voice – they both developed psychiatric evidence showing only that defendant was not competent to stand trial. I agree that the defense counsel had the right and duty to raise the issue by reporting his concerns about defendant’s competence. However, the result here was that both counsel laid the ground for the order that defendant be committed under § 4241(d) for up to four months for psychiatric or psychological examination. The order of commitment entered December 6, 1996, 1 R. doc. 54, the subject of this appeal, states that “the issue of the defendant’s competency to proceed [was] raised initially by counsel for the defendant and subsequently joined by the United States.” Id. at 1. The showing of incompetency of defendant was the onlyposition that both counsel developed in the evidence, and this presentation was vigorously objected to by the defendant. 11 R. at
8-9. I would hold that at the critical hearing Mr. Boigegrain was entitled to assistance of counsel to function in accord with the constitutional requirement that “counsel acts in the role of an advocate in behalf of his client, as opposed to that of
amicus curiae .” Anders v. California, 386 U.S. 738, 744 (1967). Here that critical-3-

element was missing – there wasnoassistance by counsel to defendant to present his opposition to the commitment order. There can be no serious doubt that the hearing on competency to stand trial is a critical stage of the prosecution at which the accused has the right to assistance of counsel, which is specifically mandated by statute. 18 U.S.C. §§ 4241(c), 4247(d). The latter statute further mandates that the defendant whose competency is the subject of the hearing shall be afforded the opportunity to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine witnesses. Id

. The issue on which I part company with the majority is the acceptance of defense counsel’s right here to elect conclusively defendant’s position on the commitment order and evidence to be presented at the competency hearing, with the result that defendant had no assistance of counsel to present hisposition opposing a commitment order. It is clear that “the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” SeeJones v. Barnes , 463 U.S. 745, 751 (1983). Additionally, “with some limitations, a defendant may elect to act as his or her own advocate,” id. (citing Faretta v. California, 422 U.S. 806 (1975)), although
Barnesrecognized that there is no constitutional duty resting on counsel assigned to prosecute a criminal appeal to raise every nonfrivolous issue requested by a defendant,-4-

idat 754. Although most other decisions are the responsibility of counsel, after consultation with the client where appropriate and feasible, Standard 4-5.2(b), ABA Standards for Criminal Justice Prosecution Function and Defense Function(3d ed. 1993), the Court has never held that the fundamental decisions reserved to the client are limited to those noted above. Indeed, the courts of appeals, including this court, have recognized other critical decisions as reserved for the client. For example, in Larson v. Tansy , 911 F.2d 392 (10th Cir. 1990), we reversed a criminal conviction because the defendant had not personally waived the right to be present during instruction of the jury, closing arguments and the rendering of the verdict, nor had defendant waived his right to be present by remaining silent when defense counsel purportedly waived the right. In Carter v. Sowders , 5 F.3d 975, 980- 82 (6th Cir. 1993), the court held that counsel could not, without the accused’s consent, waive the right to be present at a videotaped deposition which was to be used at trial. It has also been held that an accused must personally waive trial of the case to a jury of less than twelve. United States v. Guerrero-Peralta , 446 F.2d 876 (9th Cir. 1971). Several courts have held that a competent defendant may choose to forgo a defense of insanity. E.g ., United States v. Marble , 940 F.2d 1543, 1547 (D.C. Cir. 1991); Foster v. Strickland , 707 F.2d 1339, 1343 (11th Cir. 1983); Frendak v. United States , 408 A.2d 364, 381 & n.31 (D.C. Ct. App. 1979); see alsoDean v. Superintendent, Clinton Correctional Facility , 93 F.3d 58, 61 & n.1 (2d Cir. 1996) (citing cases). The Frendak-5-

court reasoned that the philosophy of North Carolina v. Alford , 400 U.S. 25 (1970), and Farettamandated that an accused “be permitted to make fundamental decisions about the course of the proceedings,” 408 A.2d at 376, which were held to include whether to raise the defense of insanity at the time of the offense. At this point, it is helpful to recall the reasons that led the en banc court to hold that this appeal could proceed in the first instance. In United States v. Boigegrain , 122 F.3d 1345 (10th Cir. 1997) ( en banc) (Boigegrain I ), nine judges of this court joined a per curiam opinion stating that a “defendant must not be left without recourse to appellate review where there is an immediate and significant loss of personal liberty.” 122 F.3d at 1349. I would add that here defendant’s immediate and significant loss of personal liberty was not the only substantial interest at stake for the defendant at the hearing where the determination was made whether a commitment order under § 4241(d) should be entered like that on appeal. There are several reasons, any or all of which may be of importance to an accused in a given case and any or all of which may have been regarded as important by Mr. Boigegrain in this case, for wishing to avoid a finding of incompetence to stand trial: An involuntary commitment for treatment to restore competence may extend well beyond the maximum sentence imposable for a relatively minor offense. A defendant could view the stigma flowing from a finding of mental illness as more opprobrious than that generated by a criminal conviction. An evaluation may force a defendant to reveal to a court-appointed expert information the defendant would prefer to keep secret. . . . A defendant might even prefer to be punished through imprisonment than to experience commitment to a mental hospital for1 Thus, I disagree with one proposed approach to this issue which would leave the

matter to the informed discretion of defense counsel. Rodney J. Uphoff, The Role of the Criminal Defense Lawyer in Representing the Mentally Impaired Defendant: Zealous Advocate or Officer of the Court? , 1988 Wisc. L. Rev. 65. -6- treatment, given the marginal conditions in many public mental institutions. ABA Criminal Justice Mental Health Standards , Standard 7-4.2, commentary at 179-80 (1989). Given the importance of the interests at stake, one must conclude that the decision on the defendant’s position to oppose or acquiesce in a commitment under § 4241(d) qualifies as one of those fundamental decisions to be made by the client. I am convinced it is not permissible to wrest from the accused the authority to make the fundamental decision about his position at the competency hearing beforehe has been determined to be incompetent. Fifth and Sixth Amendment protections do not permit this result. Otherwise, the accused is deprived of the right to elect to defend his competence at a hearing with the assistance of counsel. At the December 6, 1996, hearing in question here, where the judge granted the order of commitment, Mr. Boigegrain had not yet been found incompetent. Counsel, his good intentions notwithstanding, did not have the expertise to determine on his ipse dixit, his client’s competence. 1 Certainly counsel was in a position, perhaps uniquely, to observe his client and to communicate with him. In the course of his representation, counsel became concerned about his client’s competency and filed the-7-

initial motion for a determination of defendant’s competency. I agree with the majority that in such circumstances counsel must be permitted, and may be duty bound, to raise the issue as he did. But I cannot agree that this step by counsel must control the position to be taken in the proceedings to follow. Where, as is the case here, defense counsel has doubts of his client’s competence and expresses his doubts to the court, I would hold that the defendant then has the right to decide if he will agree to a commitment order or wishes it to be opposed. If he elects to oppose commitment, as defendant did here, new counsel should be appointed. The majority opinion cites Standard 7-4.2 of the ABA Criminal Justice Mental Health Standardsfor the holding that defense counsel may movefor a competency evaluation over his client’s objection. The commentary to this provision notes, however, that when counsel does raise the issue over his client’s objection, “[t]his may require, of course , that an attorney seek judicial permission to withdraw as defense counsel because of a conflict of interest.” Id ., commentary at 177 (emphasis added). I conclude that the circumstances like those before us are just what the drafters of the ABA Standards must have had in mind in their commentary about the necessity of the attorney seeking leave to withdraw. Other courts confronted with similar problems in the context of deciding whether to permit a defendant to forgo an insanity defense have resorted to the appointment of amicus counsel when necessary to ensure that arguments both for and-8-

against the defendant’s desired course of action are presented. SeeMarble , 940 F.2d at 1544; Frendak, 408 A.2d at 368-69, 380. The practice in the Ninth Circuit appears to be that any time a substantial conflict develops between counsel and a defendant, the trial court inquires into the matter to ensure that the attorney can still effectively represent the client. See, e.g. , Brown v. Craven , 424 F.2d 1166, 1169-70 (9th Cir. 1970). Where proper representation requires, substitute or “conflict counsel” should be appointed to present defendant’s position. United States v. Gonzalez , 113 F.3d 1026, 1028-29 (9th Cir. 1997); Mason ex rel. Marson v. Vasquez , 5 F.3d 1220, 1223-24 (9th Cir. 1993); United States v. Wadsworth , 830 F.2d 1500, 1510-11 (9th Cir. 1987); United States v. Kaczynski , No. CR-S-259, 1998 WL 15049, at *3 (E.D. Cal. January 9, 1998). Based on a parallel rationale, I would hold that because of the important interests at stake in the competency determination, where it is apparent that the defendant desires to resist a finding of incompetency, the district judge should appoint new counsel to assist the defendant in presenting his position. In sum, I would not affirm the commitment order as the majority opinion does, but vacate it as constitutionally flawed. I would hold that it was a denial of due process to accept as conclusive, on defendant’s position, defense counsel’s decision to raise his client’s incompetency. When the defendant elected to defend his competence and oppose a commitment order, his attorney should have sought, and should have been permitted, to withdraw. The Court has rejected as impermissible a procedure in which-9-

“counsel is not an assistant, but a master.” Faretta , 422 U.S. at 820. When the defendant elected to defend his competence and oppose the commitment order, defendant was entitled to the assistance of counsel in presenting hisposition. New counsel, like the substitute or conflict counsel discussed above, should be appointed so that the defendant would have the assistance of counsel to present hisposition. Leaving the defendant alone with only an attorney suggesting, contrary to the position defendant elected to take, that he was incompetent denied him due process under the Fifth Amendment and assistance of counsel under the Sixth Amendment. Because defendant was completely without assistance of counsel at the crucial stage of the competency hearing, I would hold that the error is structural and reversible per se.
SeeBrecht v. Abrahamson , 507 U.S. 619, 629-30 (1993) (deprivation of the right of counsel cited as example of structural error requiring “automatic reversal”). Accordingly, I respectfully dissent in part and concur in part.