*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-11282

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SUSAN VIOLA KLAT,

Defendant-Appellant.

_______________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(4:97-CV-678-A)

_______________________________________________________

April 27, 1999

Before KING, Chief Judge, REAVLEY and BENAVIDES, Circuit Judges.

PER CURIAM:*

Federal prisoner Susan Viola Klat appeals from the order committing her to the custody of

the United States Attorney General for hospitalization for treatment pursuant to 18 U.S.C. §

4245. The involuntary commitment order was issued by a magistrate judge, acting by written

consent of the parties pursuant to 28 U.S.C. § 636(c)(1). At issue in this appeal are: whether the

magistrate judge lacked jurisdiction; the constitutionality of the preponderance of the evidence

standard set forth in 18 U.S.C. § 4245(d); and whether Klat was denied the right to selfrepresentation, to subpoena witnesses and documents, and to confront and cross-examine

witnesses. We AFFIRM.
2

I. FACTS & PROCEEDINGS

Klat began a hunger strike while incarcerated at the Washington, D.C. Jail for threatening

Chief Justice Rehnquist and the clerk of the United States Supreme Court. Klat initiated the

hunger strike to protest an alleged violation of her constitutional rights in her criminal trial. On

July 29, 1997, Klat was transferred to the Federal Correctional Institution at Danbury,

Connecticut (“FCI Danbury”), where she continued her hunger strike for another ten days,

resulting in her transfer to the Federal Medical Center, Carswell (“FMC Carswell”) in Fort Worth,

Texas on August 7, 1997. Klat continued her hunger strike at FMC Carswell, prompting the

government’s initiation of the § 4245 commitment proceeding at issue here.

On August 14, 1997, the government filed its petition for a hearing to determine whether

Klat was presently suffering from a mental disease or defect requiring her commitment to a

suitable facility for treatment and moved for an expedited hearing and the appointment of counsel

and a qualified examiner for Klat. The government included in its petition a Mental Health

Evaluation dated August 11, 1997, performed by Dr. Stanton, Chief of Psychiatry at FMC

Carswell, which indicated that Klat was presently suffering from “severe mental illness best

characterized as a delusional disorder, persecutory type” requiring her commitment for treatment. 

The district judge referred the appointment of counsel to Magistrate Judge Bleil. Judge Bleil,

satisfied that Klat “(1) [was] financially unable to employ counsel, (2) want[ed] to be represented

by counsel, and (3) ha[d] not waived representation by counsel,” appointed the Federal Public

Defender for the Northern District of Texas to represent Klat. The same day, Klat’s appointed

counsel, Paul Stickney, signed a written consent form expressly stipulating to referral of the

matter to a magistrate judge.

Prior to the commitment hearing, Mr. Stickney filed several motions on Klat’s behalf.

Among them was a motion for a separate mental examination by clinical psychologist Dr. Schmitt,

Ph.D, which the magistrate granted. Dr. Schmitt examined Klat on September 11 and thereafter

submitted his report to defense counsel. On October 9, Mr. Stickney filed a motion requesting
3

the issuance of a subpoena duces tecum seeking: the production of Klat’s prior employment

records from Clinical One Nursing Agency and the Delaware Nursing Licensing Board; the

appearance of numerous medical professionals within the Bureau of Prisons who had written

reports and/or mental health evaluations concerning Klat while she was housed at the

Washington, D.C. jail, FCI Danbury, and FMC Carswell; and Klat’s medical records from each of

the three institutions. The government opposed the motion on the grounds that most of the

witnesses lived outside the judicial district and more than 100 miles from the site of the hearing,

issuance of subpoenas to such persons would be unduly burdensome, the majority of the matters

identified in the motion were not relevant to the determination of Klat’s present mental condition

and need for treatment, and the other items were readily available to Klat, her appointed counsel,

and her qualified examiner without the need for a subpoena. The magistrate subsequently denied

the motion on October 23.

Shortly after this denial, on October 29, just eight days before the hearing, Mr. Stickney

filed a motion to withdraw as Klat’s appointed counsel, stating that Klat wanted to proceed pro se

with the appointment of standby counsel to aid her in presenting her case because she and defense

counsel disagreed on trial strategies and the theory of the case. While the motion to withdraw

was pending, Klat filed two pro se motions—a motion to request the case be heard before a

district judge and for an expedited hearing to obtain temporary injunctive relief and a motion for

issuance of subpoenas for production of records.

The commitment hearing was held before Magistrate Judge Bleil on November 6. At the

beginning of the hearing, Klat was permitted to address the court at length. She reiterated her

request to represent herself, made arguments in support of each of her pending motions, and

submitted additional documents to the court. During this extensive colloquy, the magistrate judge

denied Mr. Stickney’s motion to withdraw, over Klat’s objection. Her chief argument was

essentially that she was entitled to effective assistance of counsel under the Sixth Amendment, and

because Mr. Stickney’s motion for subpoenas—which the court previously denied—demonstrated
 

1

 Klat argued as follows:

DEFENDANT KLAT: Well, as I said, I also -- before you go any further, I

have got a notice of appeal here to appeal that order to a district judge if you’re

denying his motion [to withdraw].

I am, under the Sixth Amendment, allowed and afforded effective

assistance of counsel. His motion that he filed shows that I’m not receiving

effective assistance of counsel. You can’t argue that for the simple fact it’s the

wrong rule, wrong reasons, wrong information, stated. You cannot have a noholds barred fight in a court commitment hearing. To deny me evidence in itself is

not legal. To deny me a right to represent myself, which Title 28, Section 1654,

allows me to represent myself personally in all courts.

* * *

I would like your reasons on record as to why you’re denying Mr.

Stickney’s motion to remove himself knowing from first hand -- observing from his

motion that he hasn’t been effective.

Record Vol. 2, at 4-5.

 

2

 Klat asserted:

DEFENDANT KLAT: * * *

I don’t quite understand why this Court doesn’t want everything on record,

you know.

THE COURT: Ms. Klat, everything -- I have the documents that were

handed to me. They will be on the record.

DEFENDANT KLAT: Yes, but it’s production of documents to show

what’s going on?

THE COURT: Right, I overrule Mr. Stickney’s --

DEFENDANT KLAT: Right, but you haven’t given me a reason --

THE COURT: -- motion.

DEFENDANT KLAT: -- for not allowing me to have effective assistance

of counsel knowing that I have no access to documents, evidence, or anything else. 

And you know I cannot present evidence at this hearing unless I have access to it.

Record Vol. 2, at 7.

4

that she was not receiving effective assistance, that she had a right to represent herself under 28

U.S.C. § 1654.1 Addressing her pending motion for subpoenas and in response to the prior denial

of Mr. Stickney’s subpoena motion, Klat again complained that she was being denied effective

assistance of counsel.2 The magistrate judge also denied Klat’s motion to transfer the case to a

district court judge.

The government then presented its case, urging the court to grant its petition and

requesting that the Court take judicial notice of the three expert reports submitted in camera—Dr.
 

3

 After Mr. Stickney’s final remarks to the Court, Klat asserted: “I’m allowed to confront

witnesses at the hearing. . . . I should be allowed, even if they are allowed the motion, to confront

the witnesses against me, and Dr. Stanton is here, and I should be allowed to confront her.” 

Record Vol. 2, at 26. Although Dr. Stanton was present at the hearing, neither she nor any other

witnesses were called by either the government or defense counsel. Immediately after Magistrate

Judge Bleil adjourned the hearing, Klat again asserted her confrontation rights:

“THE COURT: Very well. Then that concludes this hearing, and the Court is adjourned.”

“DEFENDANT KLAT: Well, Your Honor, am I not allowed to confront the witnesses?”

“THE COURT: Court’s adjourned.” Id. at 33.

5

Stanton’s original August 11 report, Dr. Schmitt’s September 23 report, and Dr. Stanton’s

November 3 update. Dr. Stanton and Dr. Schmitt both concluded that Klat was presently

suffering from a serious illness for which she was in need of psychiatric treatment at a suitable

facility. The magistrate then allowed Klat to present her case. After consulting with her attorney,

Klat testified as a witness. Defense counsel then submitted three exhibits on Klat’s behalf, which

were admitted as evidence. No other witnesses were called to testify. After the government and

defense counsel made their final comments, Klat again engaged in a lengthy discussion with the

court, during which she made further objections to the hearing, asserted her right to

confrontation,3 submitted additional documents to the court, and reiterated her arguments against

commitment. The hearing was adjourned. The following day, Magistrate Judge Bleil issued an

order granting the government’s petition to commit Klat for appropriate treatment based on the

unanimous expert opinion that Klat was presently suffering from a mental disease or defect

requiring her commitment to a suitable facility for treatment. The order reiterated the denial of

Mr. Stickney’s motion to withdraw and further denied each of Klat’s pro se motions. This appeal

followed.

II. DISCUSSION

Klat contends that (1) the magistrate judge lacked jurisdiction, (2) the preponderance of

the evidence standard in § 4245(d) is unconstitutional because due process instead required clear

and convincing evidence, (3) she was denied her right to represent herself at the commitment

hearing, (4) she was denied her right to subpoena witnesses and documents, and (5) she was

denied her right to confront and cross-examine witnesses. As an initial matter, we note that the
 

4

 In so holding, we reject Klat’s contention at oral argument that this case is distinguishable

from Muhammad because Klat objected to disposition by the magistrate in a pro se motion filed

three days before the hearing and again during the hearing itself. Klat’s counsel signed the

consent form referring the matter to the magistrate on August 15 and that consent was binding on

Klat. During the nearly three month period before the hearing, Klat, through defense counsel,

submitted several motions to the magistrate for disposition. Klat made no objection to the referral

until after Judge Bleil denied defense counsel’s motion for subpoenas. The magistrate judge was

not required to inquire at the hearing whether Klat personally consented to the referral because

the signed consent form satisfied the requirement that consent be on the record. See Muhammad,

165 F.3d at 331. Once a valid consent and reference to the magistrate had been given, Klat was

not entitled to subsequently withdraw that consent and have the reference to the magistrate

vacated absent extraordinary circumstances. See 28 U.S.C. § 636(c)(6) (1993) (“The court may,

for good cause shown on its own motion, or under extraordinary circumstances shown by any

party, vacate a reference of a civil matter to a magistrate under this subsection.”); Carter v. Sea

Land Servs., Inc., 816 F.2d 1018, 1021-22 (5th Cir. 1987); accord Fellman v. Fireman’s Fund

Ins. Co., 735 F.2d 55, 57-58 (2d Cir. 1984). Klat failed to demonstrate such extraordinary

circumstances.

6

magistrate judge’s order is appealable directly to this court. See 28 U.S.C. § 636(c)(3).

A. Jurisdiction of the Magistrate Judge

Klat challenges the jurisdiction of the magistrate judge to enter the order granting the

government’s petition to commit Klat for treatment under 18 U.S.C. §§ 4245 and 4247 on three

grounds: (1) referral of the matter to the magistrate judge was invalid because, notwithstanding

her counsel’s express written consent, she did not personally consent to disposition of the petition

by the magistrate judge; (2) a § 4245 commitment proceeding is not a “civil matter” as

contemplated by 28 U.S.C. § 636(c)(1); and (3) Article III of the Constitution forbids even

consensual reference of a § 4245 proceeding for disposition by a magistrate judge.

The magistrate judge had jurisdiction over this proceeding. This court recently considered

and rejected identical arguments in United States v. Muhammad, 165 F.3d 327, 329-34 (5th Cir.

1999). Absent a superseding decision by this court sitting en banc or by the United States

Supreme Court, we are bound by our prior panel’s opinion. See, e.g., Billiot v. Puckett, 135 F.3d

311, 316 (5th Cir.), cert. denied, — U.S. —, 119 S. Ct. 413, 142 L. Ed. 2d 336 (1998). 

Following Muhammad, we hold that the consent by Klat’s counsel satisfied the § 636(c)(1)

requirements for referral to the magistrate,4see 165 F.3d at 331-32; § 4245 civil commitment

proceedings are “civil” matters within the meaning of § 636(c)(1), see id. at 332; and Article III
 

5

 Section 4245 provides, in relevant part:

(d) Determination and disposition.—If, after the hearing, the court finds by a

preponderance of the evidence that the person is presently suffering from a mental

disease or defect for the treatment of which he is in need of custody for care or

treatment in a suitable facility, the court shall commit the person to the custody of

the Attorney General. . . .

18 U.S.C. § 4245(d) (emphasis added).

 

6

 See also id. at 333-34 (citing Jones v. United States, 463 U.S. 354, 366-67, 103 S. Ct.

3043, 3051, 77 L. Ed. 2d 694 (1983) (upholding application of the preponderance of the evidence

standard to indefinite commitment of a criminal defendant who had been found not guilty by

reason of insanity), and Vitek v. Jones, 445 U.S. 480, 491-93, 100 S. Ct. 1254, 1263-64, 63 L.

Ed. 2d 552 (1980) (suggesting that involuntary commitment of convicted felons is less of a

curtailment of liberty than the involuntary commitment of ordinary citizens)).

7

does not preclude consensual reference of a § 4245 proceeding to a magistrate judge, see id. at

332-33.

B. Preponderance of the Evidence Standard

Relying on Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979),

Klat also challenges the constitutionality of the preponderance of the evidence standard applicable

to civil commitment proceedings as set forth in 18 U.S.C. § 4245(d).5 Because Klat failed to raise

this argument below, we review only for plain error. See, e.g., Muhammad, 165 F.3d at 333. 

Addington held that, in order to satisfy due process, the involuntary civil commitment of an

ordinary citizen to a mental health facility for an indefinite period must be supported by clear and

convincing evidence. See 441 U.S. at 432-33, 99 S. Ct. at 1812-13. As we explained in

Muhammad, the involuntary commitment of a prisoner pursuant to § 4245 is distinguishable from

the involuntary commitment of an ordinary citizen—at issue in Addington—because an ordinary

citizen has a greater liberty interest at stake than a prisoner who is already subject to confinement. 

We concluded that this distinction may very well justify a different standard of proof. Following

Muhammad, we again hold that application of the preponderance of the evidence standard in this

case did not amount to plain error because “it is, at the very least, arguable that the

preponderance of the evidence standard specified in § 4245(d) satisfies due process

requirements.” 165 F.3d at 334.6 
 

7

 To support this argument, Klat relies on Myers v. Collins, 8 F.3d 249, 251-52 (5th Cir.

1993) (applying Faretta’s reasoning to hold that a state criminal defendant has a constitutional

right to present pro se briefs and motions on direct appeal), and Myers v. Johnson, 76 F.3d 1330,

1338 n.7 (5th Cir. 1996) (explaining that a criminal defendant’s right to present pro se briefs on

direct appeal is a Due Process right and not a Sixth Amendment right).

 

8

 Section 1654 provides: “In all courts of the United States the parties may plead and conduct

their own cases personally or by counsel as, by the rules of such courts, respectively, are

permitted to manage and conduct causes therein.” 28 U.S.C. § 1654.

 

16 We also note that the Sixth Amendment cases relied upon by Klat are also distinguishable

from the instant case in one important respect—the mental condition of the defendants was not at

issue. See, e.g., Faretta, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1980); Dorman v.

Wainwright, 798 F.2d 1358 (11th Cir. 1986); United States v. McKinley, 58 F.3d 1475 (10th Cir.

1995); United States v. Tanner, 16 M.J. 930 (N-M.C.M.R. 1983).

8

C. Right to Self-Representation

Klat also claims that she was denied her constitutional and statutory right to selfrepresentation and that such denial constitutes reversible error. Klat relies on Faretta v.

California, 422 U.S. 806, 807, 835-36, 95 S. Ct. 2525, 2527, 2541, 45 L. Ed. 2d 562 (1975),

which held that an accused has a Sixth Amendment right to self-representation when he

knowingly and intelligently waives the right to counsel. Alternatively, Klat contends that the right

to self-representation in a § 4245 commitment proceeding is guaranteed by the Fifth Amendment

Due Process Clause. She argues that because she is afforded the statutory right to counsel under

§ 4247(d), the logic of Faretta dictates that she has the concomitant right to reject that

assistance.7 Klat further argues that her right to self-representation is protected by statute, 28

U.S.C. § 1654, the generally applicable provision that gives federal litigants the right to conduct

their own cases.8 According to Klat, the magistrate judge reversibly erred by denying her clear

and unequivocal request to proceed pro se without conducting a hearing to determine whether her

waiver of appointed counsel was knowing and intelligent.

Klat does not have a constitutional right to represent herself at a § 4245 involuntary

commitment hearing. Because this proceeding is a civil matter, any right to self-representation is

not protected by the Sixth Amendment.16 Additionally, the statutory right to self-representation in

civil cases does not enjoy constitutional protection. See Andrews v. Bechtel Power Corp., 780
9

F.2d 124, 137 (1st Cir. 1985) (“While there is no constitutional right to self-representation in civil

cases, there is a statutory right of long standing to such self-representation, 28 U.S.C. § 1654.”

(internal citation omitted)); O’Reilly v. New York Times Co., 692 F.2d 863, 867 (2d Cir. 1982)

(stating that § 1654 does “not enjoy[] the constitutional protection subsequently afforded to the

right of self-representation in criminal cases”); see also Eitel v. Holland, 787 F.2d 995, 998 (5th

Cir. 1986) (relying on Andrews and O’Reilly to conclude that a state court litigant has no

constitutional due process right to self-representation in a civil case). We have not previously

considered whether the general statutory right to self-representation applies in the context of a §

4245 commitment hearing where the mental competency of the defendant is directly at issue.

It is clear that Klat had a statutory right to counsel at the commitment hearing. In fact, 

§ 4247(d) commands that the person whose mental condition is at issue “shall be represented by

counsel” during the hearing. In the criminal context, the right to counsel at trial may be waived

only if done competently, knowingly, and intelligently. See Faretta, 422 U.S. at 835-36, 95 S. Ct.

at 2541 (“[I]n order to represent himself, the accused must ‘knowingly and intelligently’ forgo

those relinquished benefits” associated with the right to counsel); id. (stating that “a defendant

need not himself have the skill and experience of a lawyer in order competently and intelligently

to choose self-representation”) (emphasis added); Godinez v. Moran, 509 U.S. 389, 396-401, 113

S. Ct. 2680, 2685-87, 125 L. Ed. 2d 321 (1993) (holding that the mental competency required to

waive the right to counsel in a criminal trial is the same as the competency to stand trial—whether

the defendant has the ability to understand the proceedings and sufficient ability to consult with

counsel—but that such waiver must also be “knowing and voluntary”). Even if a valid waiver is

given, the right to self-representation is not absolute. The trial court may terminate selfrepresentation due to abuse or misconduct and it has discretion to appoint standby counsel, even

over the defendant’s objection. See Faretta, 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46. Our

concern is whether a prisoner in a § 4245 commitment hearing can competently, knowingly, and

intelligently waive the right to counsel before the issue of his present mental condition is resolved.
 

17 The Eighth Circuit considered the issue in United States v. Veltman, 9 F.3d 718, 721 (8th

Cir. 1993), and held that a prisoner may waive the statutory right to counsel at a § 4245

commitment hearing, subject to due process requirements. In Veltman, the prisoner was allowed

to proceed pro se at the commitment hearing and was ordered committed. On appeal, the Eighth

Circuit rejected Veltman’s argument that his subsequent commitment to a mental health facility

demonstrated his inability to waive counsel stating, “[t]he mere fact that Veltman needed ‘custody

for care or treatment in a suitable facility’ does not mean he lacked sufficient capacity to decide to

proceed pro se.” Id. at 722. The court held that Veltman made a valid waiver of his right to

counsel because the record demonstrated that the waiver was voluntary, Veltman had the

intellectual capacity to understand the consequences of his decision, appointed counsel was

instructed to remain available at the hearing to assist Veltman if necessary, and their was no

indication that Veltman’s conduct at the hearing was inappropriate. See id. at 721-22.

We find it significant that, in reaching this conclusion, the Eighth Circuit placed particular

importance on the fact that Veltman’s appointed counsel was required to remain at the hearing

and in fact twice conferred with Veltman during the proceeding. See id. at 721 (“More

importantly, the magistrate judge instructed Ms. Roe to remain available at counsel table, which

she did, and the record shows that Veltman had two off-the-record conversations with Ms. Roe

during the proceedings.”).

 

18 We recognize that the specific inquiry undertaken at a competency hearing—whether the

defendant is presently suffering from a mental disease or defect that would render her unable to

understand the nature of the proceedings against her or to assist properly in her own defense—is

somewhat different than the inquiry at a § 4245 involuntary commitment hearing—whether the

10

The Eighth Circuit has considered the issue and held that a prisoner may waive the right to

counsel at a § 4245 commitment hearing.17 However, the D.C. Circuit’s analysis of the issue of

Klat’s ability to waive her right to counsel at the mental competency hearing prior to her criminal

trial is also instructive. In Klat’s appeal of her criminal conviction, the D.C. Circuit determined

that the district court erred in allowing Klat to waive her right to counsel and proceed pro se at

the hearing to determine her competence to stand trial. See United States v. Klat, 156 F.3d 1258,

1262-63 (D.C. Cir. 1998). The court held that “where a defendant’s competence to stand trial is

reasonably in question, a court may not allow that defendant to waive her right to counsel and

proceed pro se until the issue of competency has been resolved.” Id. at 1263. The court

reasoned that it was contradictory to conclude that a defendant whose competency to stand trial

was at issue could nonetheless make a knowing and intelligent waiver of the right to counsel. See

id. Although the context is slightly different, we nonetheless believe that the D.C. Circuit’s

reasoning applies with equal force in this case since Klat’s mental condition was directly at issue

in both the competency hearing and the commitment hearing.18 Under the circumstances of this
prisoner is presently suffering from a mental disease or defect that requires commitment to a

suitable facility for treatment. However, in both hearings, the mental condition of the defendant is

directly at issue. Consequently, it was entirely appropriate in this case for the magistrate judge to

deny defense counsel’s request to withdraw when there was reasonable cause to believe that Klat

was suffering from a serious mental illness requiring her commitment.

11

case, the magistrate judge did not err in refusing to dismiss Mr. Stickney as Klat’s appointed

counsel. 

Moreover, even assuming Klat had sufficient capacity to make a knowing and intelligent

waiver of the right to counsel, the record establishes that, despite Mr. Stickney’s participation at

the hearing, Klat’s right to represent herself was not denied. In McKaskle v. Wiggins, 465 U.S.

168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984), the Supreme Court considered whether the

unsolicited participation by standby counsel, appointed over defendant’s objection, violated a

criminal defendant’s Sixth Amendment right to represent himself at trial. The Court explained

that the nature of the defendant’s right to self-representation “plainly encompasses certain specific

rights to have his voice heard.” Id. at 174, 104 S. Ct. at 949. In the context of a criminal trial

“[t]he pro se defendant must be allowed to control the organization and content of his own

defense, to make motions, to argue points of law, to participate in voir dire, to question

witnesses, and to address the court and the jury at appropriate points in the trial.” Id. Concluding

that the record established that the defendant had been afforded all of these rights, the Court then

considered whether the uninvited involvement by standby counsel infringed the defendant’s right

to conduct his own case. See id. at 174-76, 104 S. Ct. at 949-50. After rejecting an absolute bar

on standby counsel’s uninvited participation, the Court explained that “the primary focus must be

on whether the defendant had a fair chance to present his case in his own way.” Id. at 177, 104 S.

Ct. at 950. The court set forth a two-part test to determine whether standby counsel’s

participation improperly infringed on the defendant’s right to self-representation. The right to

self-representation is not infringed if (1) the defendant is allowed to “preserve actual control over

the case he chooses to present” without substantial interference, and (2) standby counsel’s

participation does not “destroy the jury’s perception that the defendant is representing himself.” 
12

Id. at 178, 104 S. Ct. at 951. The second prong is not implicated in proceedings outside the

jury’s presence because the trial judge is “capable of differentiating the claims presented by a pro

se defendant from those presented by standby counsel.” Id. at 179, 104 S. Ct. at 951. 

Accordingly, the right to self-representation is “adequately vindicated in proceedings outside the

presence of the jury if the pro se defendant is allowed to address the court freely on his own

behalf and if disagreements between counsel and the pro se defendant are resolved in the

defendant’s favor.” Id.

Applying the reasoning of McKaskle, Mr. Stickney’s participation did not violate Klat’s

right represent herself at the hearing. Here, although he was not relegated to the role of standby

counsel, the record demonstrates that Mr. Stickney’s participation at the hearing did not infringe

on Klat’s ability to personally present her case to the magistrate. First, both the motion to

withdraw and Klat’s own statements at the hearing reveal that she did not want to proceed

completely unassisted and, in fact, specifically requested the appointment of standby counsel to

assist her in preparing her defense. Second, despite the magistrate judge’s denial of Mr.

Stickney’s motion to withdraw, Klat was nevertheless given considerable latitude in controlling

the conduct of her defense. Klat filed several pro se motions with the court, which the magistrate

judge considered but ultimately denied. She fully participated in the hearing by personally

presenting her arguments to the court, raising objections to the magistrate’s rulings, testifying as a

witness, and submitting additional evidence. Mr. Stickney’s participation did not infringe her

ability to control the defense, nor is there is any indication that Klat disagreed with or objected to

any statements made by Mr. Stickney. We also note that, although the magistrate judge denied

Mr. Stickney’s motion to withdraw during the hearing, he subsequently allowed Klat to personally

address the court at length, over the government’s objection. On this record, we cannot say that

Klat was denied a “fair chance to present [her] own case in [her] own way.” Id. at 177, 104 S.

Ct. at 950.

D. Right to Subpoenas and to Confront and Cross-Examine Witnesses
13

Klat next argues that she was denied her right to subpoena witnesses and documents. We

review the denial of a subpoena request for abuse of discretion. See United States v. Gonzales,

79 F.3d 413, 424 (5th Cir. 1996). A prisoner’s right to subpoena witnesses and present evidence

at an involuntary commitment hearing is protected by statute, see 18 U.S.C. § 4247(d), and by the

Due Process Clause. See Vitek v. Jones, 445 U.S. 480, 494-95, 100 S. Ct. 1254, 1264-65, 63 L.

Ed. 2d 552 (1980); United States v. Baker, 45 F.3d 837, 843 (4th Cir. 1995). However, this right

is not absolute. Indigent defendants have a right to subpoena witnesses and documents at

government expense upon a showing that “the presence of the witness is necessary to an adequate

defense.” FED. R. CRIM. PROC. 17(b); see United States v. Ramirez, 765 F.2d 438, 440-41 (5th

Cir. 1985). Courts have wide discretion in determining whether subpoenas should issue under

Rule 17(b). The trial court has discretion to deny the subpoena request if the Government

demonstrates “that the facts upon which the defense relies are inaccurate, or that the evidence

sought is immaterial, irrelevant, cumulative or otherwise unnecessary.” Gonzales, 79 F.3d at 424;

see Ramirez, 765 F.2d at 441; United States v. Webster, 750 F.2d 307, 329-30 (5th Cir. 1984).

Moreover, Rule 17(b) may not be used as a discovery device. See Ramirez, 765 F.3d at 441.

The district court did not err in denying Mr. Stickney’s motion for issuance of subpoenas. 

This motion sought: (1) the production of Klat’s prior employment records from Clinical One

Nursing Agency and from the Delaware Nursing Licensing Board; (2) the appearance of ten

medical professionals within the Bureau of Prisons who had previously treated or evaluated Klat

at Washington, D.C. jail, FCI Danbury, or FMC Carswell; and (3) Klat’s medical records from

each facility. The motion made no attempt to demonstrate the relevance or necessity of the

documents or testimony, other than the general allegation that the evidence was necessary for an

adequate defense because the “defendant cannot have a fair hearing without production and

inspection of the items sought.” Because the motion failed to satisfy the threshold requirement

for issuance of a subpoena under Rule 17(b), the magistrate judge’s denial of the motion was not

an abuse of discretion. See Ramirez, 765 F.2d at 441 (holding that general allegations regarding
 

19 Indeed, defense counsel acknowledged in the motion for a separate mental examination that

“Counsel has been advised by AUSA Charles Dobbs, that all medical records relating to the

defendant will be made available to Dr. Schmi[t]t.” Record Vol. I, at 18. Klat does not argue on

appeal that such access was either requested or denied, nor is there any indication in the record

that such information was not readily available to Klat or defense counsel without the need for a

subpoena.

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the necessity of each witness’ testimony were insufficient to satisfy the defendant’s threshold

requirement for obtaining a subpoena under Rule 17(b)).

We likewise find no error in the magistrate’s denial of Klat’s pro se motion for subpoenas. 

In her pro se motion, filed just three days before the scheduled hearing, Klat sought much of the

same information as Mr. Stickney. Specifically, she sought the production of: (1) job references

and employment records from Clinical One Nursing; (2) the medical history and records relied

upon by Dr. Stanton; (3) personal references from various nursing licensing boards; (4) court

records and docket sheets relating to her criminal conviction; (5) copies of nine psychological

reports prepared while Klat was housed at Washington, D.C. jail and FCI Danbury; and (6) all

progress/nursing notes and incident reports from the last three months of Klat’s solitary

confinement. This motion also failed to establish that the testimony and evidence sought was

“necessary to an adequate defense.” Klat’s prior employment history, personal references, and

the court records from her criminal trial were irrelevant to the narrow issue before the

magistrate—whether Klat was presently suffering from a mental disease or defect requiring her

commitment for treatment. The medical records, psychological reports and other documents

relied on by Dr. Stanton and Dr. Schmitt were readily available to Klat and her counsel without

the need for issuance of a subpoena.19 Dr. Schmitt, Klat’s own qualified examiner had already

examined much of the information and concluded that commitment for treatment was warranted. 

Finally, issuance of the requested subpoenas at such a late date would have delayed the

commitment hearing, with the potential for further endangering Klat’s physical well-being due to

her self-imposed hunger strike. Under these circumstances, the magistrate did not abuse his
 

20 The cases relied upon by Klat—holding that the trial court abused its discretion in denying a

criminal defendant’s subpoena for a doctor who would testify to the defendant’s incompetency at

the time of the offense—are distinguishable. In those cases, the denial of the subpoena prevented

the defendants from putting on an effective insanity defense at trial. See United States v. Moudy,

462 F.2d 694, 697-99 (5th Cir. 1972); Welsh v. United States, 404 F.2d 414, 417-19 (5th Cir.

1968); Taylor v. United States, 329 F.2d 384, 386-87 (5th Cir. 1964). Here, however, Klat was

not denied the opportunity to rebut the government’s expert. In fact, a qualified mental health

examiner selected by Klat and her counsel was appointed to aid Klat for just that purpose.

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discretion by denying Klat’s pro se motion for the issuance of subpoenas.20

Finally, we reject Klat’s argument that she was denied the right to confront and crossexamine Dr. Stanton and Dr. Schmitt. An alleged violation of the right to confront witnesses is

reviewed de novo, but is subject to harmless error analysis. See United States v. Grandlund, 71

F.3d 507, 509 (5th Cir. 1995); United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995). 

We review the limitation of the scope of cross-examination for an abuse of discretion. See United

States v. Landerman, 109 F.3d 1053, 1061 (5th Cir. 1997).

The statute governing involuntary commitment hearings states that the prisoner “shall be

afforded an opportunity . . . to confront and cross-examine witnesses who appear at the hearing.” 

18 U.S.C. § 42479(d) (emphasis added). Here, no witnesses other than Klat herself testified at

the hearing. Dr. Schmitt was Klat’s own appointed examiner and she very well could have called

him as a witness to challenge his findings. There is no indication in the record that she made any

attempt to do so. Although, Dr. Stanton was present in the courtroom, she was not called as a

witness by either the government or defense counsel. Finally, any error in denying Klat the

opportunity to confront and cross-examine Dr. Stanton was likely harmless in light of the fact that

Klat’s own examiner, Dr. Schmitt, also determined that she was suffering from a mental defect or

disease for which she was in need of hospitalization for treatment.

For the foregoing reasons, we affirm the order of commitment.

AFFIRMED.