* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### APR 21 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 03-1254

v. (D. Colorado) CARY J. GAGAN,

Defendant-Appellant. (D.C. No. 02-CR-193-MK)

ORDER AND JUDGMENT *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to decide this case on the briefs witho ut oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case i s therefore ordered submitted without oral argument. Cary J. Gagan was indicted by a grand jury on three counts of making false statements in violation of 18 U.S.C. § 1001 and thr ee counts of making threatening communications in violation of 18 U.S.C . § 876. The district court2

ordered Mr. Gagan to be committed for a competency evaluation. Subsequently, Mr. Gagan submitted pro se filings to this court challenging on various grounds the district court proceedings regarding the commitment order and the competency evaluation. These documents were construed as a misdirected timely pro se notice of appeal of the commitment order and were forwarded to the district court for docketing. Rec. doc. 91; see Fed. R. App. P. 4(d). Mr. Gagan’s attorney filed a brief in this court pursuant to Anders v. California , 386 U.S. 738 (1967), and sought leave to withdraw. We conclude that we must DISMISS several of Mr. Gagan’s claims because we lack juris diction. Mr. Gagan’s remaining claims regarding the commitment order lac k merit; therefore, we AFFIRM the district court’s commitment order and GRANT his counsel’s motion to withdraw.

I. BACKGROUND On April 21, 2003, counsel for Mr. Gagan filed a mo tion for a hearing to determine the competency of his client pursuant to 18 U.S.C. § 4241(a). At the time, Mr. Gagan was incarcerated in Colorado on a 2 6-year state sentence. On May 5, 2003, the district court granted the motion, ordered a psychiatric examination, and set a date for a competency hearin g. On May 22, 2003, the district court conducted a con ference call hearing3

with the attorneys for the government and Mr. Gagan . Mr. Gagan was not present at this conference call hearing, and his ap pearance was not waived. See Rec. doc. 86. At this hearing, the district court vacated its order for a psychiatric examination and committed Mr. Gagan to the Bureau o f Prisons for a competency evaluation pursuant to 18 U.S.C. §§ 4241 (b) and 4247(b). Rec. doc.
87. Although the district court ordered Mr. Gagan to be transferred to the Federal Medical Center in Butner, North Carolina, R ec. doc. 86, the record indicates that he was actually evaluated at the Fed eral Medical Center in Devens, Massachusetts. See , e.g. , Rec. doc. 96, at 6. The warden there requested a nd received two thirty-day extensions from the distric t court to complete Mr. Gagan’s evaluation.

II. DISCUSSION Mr. Gagan’s attorney has filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and has moved for leave to withdraw as counsel. Pursuant

to Anders , “if counsel finds his case to be wholly frivolous , after a conscientious examination of it, he should so advise the court an d request permission to withdraw.” Id. at 744. Mr. Gagan has submitted pro se filings claiming that (1) his indictment4

was forged, causing the district court and this cou rt to be without jurisdiction over his case; (2) the district court engaged in ju dicial misconduct by ignoring irregularities in his indictment; (3) the record wa s devoid of evidence of his incompetence; (4) his rights were violated because he was not present at the May 22, 2003, conference call; (5) his rights were viol ated because he was transferred to an institution 2000 miles from Colorado for the psychiatric evaluation; (6) he was denied his right to proceed pro se; (7) his cou nsel has engaged in “deliberate ineffectiveness [by] acting as an advocate of the g overnment,” Aplt’s Obj. to Counsel’s Anders Br., at 7 n.4; (8) his rights were violated by the duration of his commitment, which exceeded the time limits set fort h in § 4247(b); and (9) “upon the filing of the notice of appeal on May 30, 2003, the district court was divested of jurisdiction over this criminal case until the court of appeals reached the merits of the appeal.” Aplt’s Letter, filed Ja n. 28, 2004, at 3. After a review of the record and the applicable law , we conclude that we lack jurisdiction over claims (1), (2), (7), and (9 ), therefore dismiss them. Because the remaining claims lack merit, we affirm the district court’s commitment order and grant counsel’s Anders motion. A. Appellate Jurisdiction We must first determine whether we have jurisdictio n over this appeal. In order to do so, we consider the statutes at issue.5

Mr. Gagan has challenged the district court’s commi tment order, entered pursuant to 18 U.S.C. §§ 4241 and 4247. Section 42 41 provides that “[a]t any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the defendant may file a motion for a hearing to determine the mental competency of the defendant.” 18 U.S.C. § 4241(a). The court shouldgrant the motion “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally inc ompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” Id . The court may also order that a psychiatric or psychological examination of the def endant be conducted prior to the hearing. 18 U.S.C. § 4241(b). Under § 4247, the court may commit the defendant to the custody of the Attorney General fo r placement in a suitable facility where the psychiatric or psychological exa mination may be conducted. “[A] commitment order issued for the purpose of obt aining an evaluation of the defendant’s competency to stand trial as des cribed in 18 U.S.C. § 4241(b) may be immediately appealed.” United States v. Deters , 143 F.3d 577, 581 (10th Cir. 1998). Moreover, “[a]lthough [Mr. Gagan’s] in itial commitment period has expired, this case is not moot.” Id. at 579 n.2. Under 18 U.S.C. § 4247(b), “[a] commitment order . . . [may] last[] a maximum of fo rty-five days, with a possible6

thirty-day extension upon a showing of good cause f or the extension. Such an order will rarely if ever outlive the appellate pro cess. This case, therefore, is ‘capable of repetition, yet evading review and henc e is justiciable.’” Id. (quoting United States v. Boigegrain , 122 F.3d 1345, 1347 n.1 (10th Cir. 1997) (en banc ) (per curiam)). Accordingly, as further explained b elow, we conclude that we have jurisdiction over the issues raised by Mr. Gag an that concern the district court’s commitment order. However, the other issue s raised by Mr. Gagan are not properly before us, and we dismiss them. B. Indictment Forgery and Judicial Misconduct Mr. Gagan’s first and second claims are not properl y before this Court. As to his claim that his indictment was forged, Mr. Ga gan’s case is still pending in the district court, and we will not address matters that the district court has not yet ruled upon. See , e.g , Quackenbush v. Allstate Ins. Co. , 517 U.S. 706, 712 (1996) (“[A] party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of distr ict court error at any stage of the litigation may be ventilated.”) (quotation mark s omitted). We also do not reach Mr. Gagan’s claims of judicial misconduct. S uch claims are handled by the chief judge of the circuit. 28 U.S.C. § 351(c)

.7

C. Evidence of Incompetence As for Mr. Gagan’s claim that the record was devoidof evidence of his incompetence, we disagree. “Whether to order a competency examination is reviewed for an abuse of discretion. . . . Absent findings of an insufficient factual basis for a § 4241(a) motion, or a lack of good faith in making the motion, a competency evaluation is required.” United States v. Ramirez , 304 F.3d 1033, 1035 (10th Cir. 2002). Upon a review of the record, we agree with the district court that there was a sufficient fact ual basis for the motion and that there is no indication that Mr. Gagan’s counsel mad e the motion in bad faith. Thus, the district court did not abuse its discreti on in ordering a psychological evaluation to determine Mr. Gagan’s competency. D. Mr. Gagan’s Absence from Conference Call Next, Mr. Gagan claims that his rights were violate d because he was not present at the May 22, 2003, conference call betwee n his attorney, the district court judge, and the prosecutor. At that hearing, the judge decided to change the location and scheduling of the competency examinati on. Federal Rule of Criminal Procedure 43 requires a de fendant to be present at certain stages of the proceedings but not at oth ers: (b) When Not Required. A defendant need not be present under a ny of the following circumstances: (1) Organizational Defendant. The defendant is an organiz ation represented by counsel who is present.8 (2) Misdemeanor Offense. The offense is punishable by fine or by imprisonment for not more than one year, or both , and with the defendant's written consent, the court permits arraignment, plea, trial, and sentencing to occur in the defenda nt’s absence. (3) Conference or Hearing on a Legal Question. The proc eeding involves only a conference or hearing on a question of law. (4) Sentence Correction. The proceeding involves th e correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c). Fed. R. Crim. P. 43(b) (emphasis added). Although Rule 43 does not specifically address the circumstances here, the May 22, 2003, conference call bears more resemblanc e to a conference or hearing on a legal question, at which the defendant ’s presence is not required, than to any of the proceedings at which a defendant ’s presence is required. See id. at 43(a). Prior to the conference call, the dist rict court had already conducted a hearing and ordered the psychological evaluation, and Mr. Gagan has made no claim that he was not present at that proceeding. The purpose of the conference call was merely to address the location and schedul ing of the evaluation. Additionally, Mr. Gagan’s counsel was present for the conference call, and he specifically raised Mr. Gagan’s objections to the c ompetency evaluation in general as well as his objections to being evaluate d at a different location. Tr. of Hr’g on Competency Examination, at 13-14. Therefor e, we conclude that Mr. Gagan’s rights were not violated by his absence fro m the conference call. E. Location of Psychological Evaluation Mr. Gagan’s contention that his rights were violate d because he was9

transferred to an institution 2,000 miles from Colo rado for the psychological evaluation also fails. 18 U.S.C. § 4247(b) states that “[u]nless impracticable, the psychiatric or psychological examination shall be c onducted in the suitable facility closest to the court.” The record reflect s that the district court and the attorneys for Mr. Gagan and the government agreed upon a facility because they believed that it was the only one doing such psycho logical evaluations. See Tr. of Hr’g Regarding Competency Examination, at 8. In deed, Mr. Gagan has not argued that there was a suitable facility closer to Colorado. Therefore, it seems that it was “impracticable” for Mr. Gagan’s evaluat ion to be conducted in a facility nearer to Colorado. Moreover, the record is devoid of facts to support an argument that the decision to transfer Mr. Gagan to a distant facility was unreasonable, and any implication that the districtcourt acted in bad faith is gratuitous. See United States v. Taylor , 353 F.3d 868, 870 (10th Cir. 2003). See also Montez v. McKinna , 208 F.3d 862, 866 (10th Cir. 2000) (“[T]here is n o federal constitutional right to incarceration in any particular prison or portion of a prison.”). Thus, Mr. Gagan’s rights were not vio lated by the transfer. F. Right to Proceed Pro Se Mr. Gagan also claims that he was denied his right to proceed pro se. The district court declined to rule on Mr. Gagan’s pro se motions “until [Mr. Gagan’s] competence to stand trial ha[d] been estab lished and issues relating to10

his continued representation by counsel ha[d] been resolved.” Rec. doc. 103 (Order, filed June 30, 2003). “Criminal defendants have a constitutional right, r ooted in the Sixth Amendment, to conduct their own defense. Thus, a l awyer cannot be forced upon a defendant who wishes to act as his own repre sentative, even if self-representation would be detrimental to the def endant.” Boigegrain , 155 F.3d at 1185 (citations omitted). However, “the degree of competence necessary to waive the right to counsel is identical to the degr ee of competence necessary to stand trial. Therefore, it [is] impossible for the district court to allow the defendant to waive counsel before determining wheth er he was competent to stand trial.” Id. (citations omitted) (citing Godinez v. Moran , 509 U.S. 389, 399- 400 (1993)). Here, Mr. Gagan filed his pro se motions when he wa s represented by counsel and before a determination of competency bythe district court. In these circumstances, the district court did not violate M r. Gagan’s right to proceed pro

se. G. Ineffective Assistance of Counsel Mr. Gagan claims that his counsel has engaged in “d eliberate ineffectiveness [by] acting as an advocate of the g overnment,” Aplt’s Objections to Counsel’s Anders Brief, at 7 n.4, presumably by raising the issue o f Mr.11

Gagan’s competence. “[A] motion brought under § 22 55 is preferable to direct appeal for deciding claims of ineffective-assistanc e.” Massaro v. United States , 123 S.Ct. 1690, 1694 (2003); United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (“Ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct ap peal. Such claims brought on direct appeal are presumptively dismissible, and vi rtually all will be dismissed.”). Therefore, we decline to address Mr. Gagan’s claims in this direct appeal.
H. Duration of Commitment Mr. Gagan contends that his rights were violated bythe duration of his commitment, which exceeded the time limits set fort h in § 4247(b). Section 4247(b) provides that “[f]or the purposes of an examination pursuant to an order under section 4241 . . . the court may commit the person to be examined for a reasonable period, but not to exceed thirty days. . . . The director of the facility may apply for a reasonable extension, but not to ex ceed fifteen days under section 4241 . . . upon a showing of good cause th at the additional time is necessary to observe and evaluate the defendant.” 18 U.S.C. § 4247(b). The record indicates that the district court grante d two extensions of 30 days for the psychological evaluation to be complet ed, see Rec. doc. 109, 110, and 111. Thus, we agree with Mr. Gagan that the di strict court exceeded the statutorily prescribed 45-day limit on such evaluat ions. However, § 4247(b)12

“contains time limitations for a mental examination but no express remedy for exceeding those limitations.” Taylor , 353 F.3d at 869. The warden of the Federal Medical Center at which Mr. Gagan was being evaluated asked for the extensions “due to the complexity of the case and t he voluminous records sent to be reviewed.” Rec. doc. 109. The implication thatthe district court acted in bad faith or was unreasonable in granting the extension s is gratuitous. See id. at 870. Thus, we hold that Mr. Gagan’s rights were not viol ated by the duration of his commitment. See id. ; but see id. (“Time limitations and provisions for extensions of time have been set forth clearly by C ongress. Custodial institutions should read the statute and comply with its provisi ons.”) (Lucero, J., concurring). I. Jurisdiction Pending Appeal Finally, Mr. Gagan contends that “upon the filing o f the notice of appeal on May 30, 2003, the district court was divested of jurisdiction over this criminal case until the court of appeals reached the merits of the appeal.” Aplt’s Letter, filed Jan. 28, 2004, at 3. The record does not ind icate that Mr. Gagan requested a stay of proceedings in the district court during the pendency of this interlocutory appeal. Therefore, we decline to add ress this claim. See also Moltan Co. v. Eagle-Picher Indus., Inc ., 55 F.3d 1171, 1174 (6th Cir. 1995) (“[A]n appeal from an interlocutory order does not divest the trial court of jurisdiction to continue deciding other issues in the case.”) (internal quotation13

marks omitted).
III. CONCLUSION Because we find that we lack jurisdiction over Mr. Gagan’s claims regarding indictment forgery, judicial misconduct, ineffective assistance of counsel, and jurisdiction pending appeal, we DISMIS S these claims. With regard to the commitment order, we find that Mr. Gagan’s c laims regarding evidence of his incompetence, his absence from the conference c all, the location of his psychological evaluation, his right to proceed pro se, and the duration of his commitment lack merit. Therefore, we AFFIRM the co mmitment order and GRANT counsel’s motion to withdraw. Entered for the Court, Robert H. Henry Circuit Judge