FILED

United States Court of Appeals

Tenth Circuit

May 5, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 08-2070

HILARIO CORNEJO-SANDOVAL,

 Defendant-Appellant.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 1:06-cr-00265-WJ-1)

 

Brian Pori, Inocenté, P.C., Albuquerque, New Mexico, for Defendant-Appellant.

Laura Fashing, Assistant United States Attorney (Gregory J. Fouratt, United States

Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

 

Before McCONNELL, HOLLOWAY, and BALDOCK, Circuit Judges.

 

BALDOCK, Circuit Judge.

 

Defendant Hilario Cornejo-Sandoval appeals his conviction, alleging

violations of his procedural and substantive due process rights. Specifically,

Defendant contends the district court erred by (1) failing to order a second

competency hearing during trial based on Defendant’s unusual behavior, and

(2) allowing him to be tried and convicted while incompetent. Exercising
2

jurisdiction under 28 U.S.C. § 1291, we affirm. 

I.

. In late 2005, the Florida Department of Law Enforcement opened an

investigation based on information provided by Barbaro Veloz, a/k/a “El Pequeño”

(“The Little One”), a confidential informant. Veloz reported that Defendant, a/k/a

“El Sapo” (“The Toad”), had the ability to procure kilogram quantities of cocaine.

Eventually, Drug Enforcement Administration (DEA) authorities in New Mexico

took the lead role in the investigation because the transaction was to take place there.

After numerous delays, on January 24, 2006, Veloz and Defendant traveled

separately to Albuquerque, New Mexico, in order to consummate a drug deal. The

next day, Defendant, along with two companions met with Veloz, who was

accompanied by an undercover DEA agent, at a local Albuquerque fast-food

restaurant to discuss the particulars of the drug transaction. Veloz and the agent

agreed to pay $20,000 per kilogram for eleven-and-a-half kilograms of cocaine. 

A day later all parties met in the parking lot of the same restaurant to

consummate the deal. Defendant arrived in a van with the same two companions,

one of whom approached Veloz and the DEA officer with a kilogram of cocaine,

informing them that it was a sample, and that ten-and-a-half more kilograms were

waiting for them in Taos, New Mexico. A dispute about payment ensued. Defendant

and his two companions re-entered the van and sped off as police arrived. The police

gave chase, catching all three men shortly thereafter. They found Defendant in a
3

nearby residential neighborhood hiding beneath a discarded Christmas tree.

Authorities recovered 1,009 grams of cocaine in the vicinity of the restaurant parking

lot.

On February 7, 2006, a federal grand jury returned a two count indictment

against Defendant and his two companions. Count 1 charged Defendant with

conspiracy to possess with intent to distribute 500 grams or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) & 846. Count 2 charged Defendant with

possessing 500 grams or more of cocaine with intent to distribute, in violation of 21

U.S.C. § 841(a)(1). The district court assigned Mr. Brian Pori as counsel for

Defendant. At Mr. Pori’s request, the district court referred Defendant to Eric

Westfried, Ph.D., a clinical psychologist board-certified in forensics and

neuropsychology, for a competency evaluation. 

Dr. Westfried filed a detailed report with the district court on October 18,

2006. After a 5.75 hour interview in which he performed a battery of tests, Dr.

Westfried concluded that Defendant was “not presently insane or otherwise so

mentally incompetent as to be unable to understand the proceedings against him or

properly assist in his own defense.” Dr. Westfried’s report noted that Defendant was

“resistant and possibly uncooperative,” and that he was “angry with his attorney and

does not feel he is receiving adequate representation.” The report explained,

however, that Defendant’s feelings were likely due to a “frequent expectation of

people from Mexico . . . that payment of high fees to an attorney resolves any legal
4

issues in even serious cases.” Dr. Westfried opined that this expectation would

interfere with the attorney-client relationship, but it was not “a delusional belief

based on psychosis.” Despite Defendant’s marginal literacy, he “actively

participated in tests of cognitive functioning, obtaining average to high average level

scores. . . . Overall, he met no criteria for a major mental disorder or a cognitive

disorder, but did present himself as a somewhat angry and defensive man.”

Having received Dr. Westfried’s report, the district court scheduled a

preliminary hearing concerning Defendant’s competency. The court requested notice

from defense counsel whether an evidentiary hearing or additional evaluations were

necessary. Before the preliminary hearing, however, Mr. Pori moved for substitution

of counsel, citing a complete breakdown in communication. During an in camera

session, Mr. Pori explained that the Defendant would not cooperate with him in

identifying witnesses for his defense and continually rejected his advice. Instead of

substituting new counsel, however, the district court decided to appoint Ms. Ann

Steinmetz, who formerly served as a chief federal public defender and a New Mexico

state district judge, to review the evidence with Defendant and discuss his options.

The hope was that Defendant would warm up to working with Mr. Pori once he had

received a second opinion. In order to ensure Defendant’s interests concerning the

competency evaluation were adequately represented, the district court deferred

consideration of Dr. Westfried’s evaluation to a later date.

After meeting with Defendant, Ms. Steinmetz reported to the district court that
1

 Specifically, in response to the district court’s question whether “counsel

disagreed with the [Westfried] report,” Mr. Pori informed the court as follows:

(continued...)

5

Defendant appeared to understand the nature of the charges against him, was aware

of the need to cooperate with his attorney, and was willing to go forward to a jury

trial with his present lawyer, Mr. Pori. On April 17, 2007, however, Mr. Pori again

requested substitution of counsel and a hearing, asserting that Defendant had asked

for his replacement four days earlier and was “unwilling to assist his attorney in any

way in the preparation for trial.” Appellant’s Appendix (App.) Vol. I, at 116. In a

hearing two days later, the district court inquired whether appointing a native

Spanish-speaking attorney would assist with some of the communication difficulties.

(Mr. Pori spoke fluent Spanish but was not a “native” speaker.) Although Mr. Pori

continued to express doubts about Defendant’s competency, he was agreeable to the

idea of additional assistance. The district court appointed Mr. Mario Esparza to

assist. Although normally Defendant would not be entitled to more than one courtappointed attorney, the district court authorized both Mr. Pori’s and Mr. Esparza’s

appointment because of the “unique” nature of the case. 

On August 1, 2007, just six days before the trial commenced, the district court

held a competency hearing. At that time, Defendant’s two attorneys agreed with Dr.

Westfried’s report, and described the issue as a communication problem, not a

competency problem.1

 Accordingly, the court entered a finding that Defendant was
(...continued)

We don’t take issue with Dr. Westfried’s report. We do think that,

certainly, [Defendant] is able to understand the nature of the charges

which are pending against him. Our concern primarily was whether or

not he was able to cooperate with his counsel and be able to make

meaningful decisions in his defense; . . . particularly concerning his

right to testify or his right to remain silent.

I think that, at the end of the day, what we had was more of a

personality conflict between [Defendant] and myself. To the extent that

I contributed to that conflict, I apologize first to [Defendant] and then

to the Court. He certainly does seem to have a rational and factual

understanding of the charges and has a present mental ability to consult

with his attorney and sufficient intellectual functioning to allow him to

assist in the defense of these charges.

App. Vol. III, at 72. Additionally, Mr. Esparza informed the court that Defendant

had been assisting him with his defense and that Mr. Esparza’s “observation of

[Defendant] is that he is very coherent and understands totally the judicial

process . . . . So my belief, Your Honor, is that he is competent to stand trial.” App.

Vol. III, at 73.

6

competent to stand trial. App. Vol. III, at 74. At the competency hearing, it was

brought to the court’s attention that Defendant had unrealistic expectations regarding

the role the confidential informant, Veloz, would play at trial. Defendant wanted

Veloz tried as a co-defendant and to sit at the table with him. The district court

explained to Defendant that Veloz was a witness, not a defendant, and despite

Defendant’s preference, Veloz would not sit beside him. The district court also

admonished Defendant that he had appointed two “expert defense lawyers” to assist

him and that Defendant should listen to their advice. Id. at 87-88. 

Defendant’s trial began on August 7, 2007 with jury selection. Before the jury

convened for opening statements, Defendant’s attorneys explained to the district
2

 Defendant stated:

(continued...)

7

court that Defendant desired to be excused from the trial until the defense called

Veloz to testify. Id. at 240. In order to confirm that Defendant had knowingly,

voluntarily, and intelligently waived his right to be present during the proceedings,

see Fed. R. Crim P. 43(c)(1), the district court conducted an in camera colloquy with

Defendant and his attorneys. The district court informed Defendant that because he

was raising an entrapment defense it was important that he be present to prevent the

jury from drawing a negative inference from his absence. Id. at 246. The district

court also explained that, if Defendant chose to testify, it would be helpful for him

to hear the testimony of the witnesses. Id. at 247. After this explanation, Defendant

stated he still did not want to be present during the trial unless the “rat” Veloz was

present first. Id. at 247. 

Displaying considerable patience, the district court attempted to help

Defendant understand criminal procedure by analogizing to the rules of soccer—a

sport Defendant told the district court he played in the past. The court explained that

“one of the rules of the game here in this trial is that the government goes first,” and

since the government was not calling Veloz in its case-in-chief, Defendant would

have to wait until his lawyers presented Defendant’s case. Id. at 248-49. In

response, Defendant launched into a lengthy diatribe about the injustice of his

situation.2
2

(...continued)

Well, what I’m saying is I don’t know if that man who I saw 18

months ago, if he’s a rat, that was – that man is a rat that which I’ve

been saying for the last 18 months. He’s the one who – who trapped me

into working with him and got me here. And if that man is the one that

I’m asking for, then I don’t agree with the Court’s moving ahead,

because I’m going to be found guilty, and that’s an injustice. And in

order – I – in order for the Court to continue that man needs to be here

and for him and me to – to give testimony. If they’re going to hear me

they’re going to hear him also. . . . That man tricked me. He promised

me. He told me. He swore to me on his family that he was going to

give me money, and he tricked me, because I don’t sell drugs, neither

in Orlando, which is where I’m from. I’m not familiar with this town.

And I told him that I couldn’t work with him but he insisted, and

so he – he brought me here in order to meet those guys who are paying

for this case now. And if he brought me here and if the Judge is giving

me to understand that he’s a rat that the government is paying, then

that’s not true because he was – I was going to be doing the same

money – the same job for money, and he’s not going to give me money.

The Judge isn’t going to pay me. And true legal roots, as I see it, that

man needs to be here present so he can be put into prison with me

together at the same time. And if not, besides that, I have witnesses in

Orlando of ladies that he is pulling a scam on. 

And so in order for me to plead guilty that man needs to be here

with me for us to go to jail together, because there were four people in

this case, and two of them are paying for it already, and two of them are

out here, so he needs to be out here to be a witness. And if that man is

not brought to me the way the gentlemen are saying that he’s going to

be brought, as I see it, if the Judge is not letting me speak, then that’s

abuse. He has all the power, and he is abusing me with it. And so if I

am not allowed to speak in the court what is allowed a defense, and so

if I am not being allowed to speak, then I’m not being denied my

defense. 

And so if this is going to be determined now that we’re in the

home stretch, that man needs to be here to be fair in order for justice to

be done with me, because if not, there will be no justice here. This

house, outside of it, says this is the house of justice, not that it is the

house of injustice. And I’m a man who has a clean record, and I think

(continued...)

8
2

(...continued)

the Judge knows that, and what they’re giving me here is a man who is

a criminal, and that’s illegal. That’s not allowed in any country in the

world. 

And if here, I’m going to be found guilty by the jury and the

prosecutor, who is the leader of saying that I sell – I sold – that I – that

I sold the car, which is all they have, that’s the only evidence they have,

I’ve seen that’s the only evidence they have. And if they’re going to try

me on these charges – and these gentlemen here won’t let me know,

I’ve asked them, and they won’t let me know. 

And so the way I see it, the only way to try these charges – and

that’s why I’m asking for this man, for him to testify, because I was the

hook and the line and the bait that brought these – these men here, and

I did my job well, but because I don’t have documents, I’m here in jail

and he’s out on the street and that’s illegal. And that man, as I said, as

I said a moment ago, the Judge or I don’t know who, offered me the

same job but it wasn’t – but I didn’t get any money for – for it. And

they’re telling me that that’s paid for, and that’s not true. That’s

illegal. I know how the process of being a rat works. I know how that

process works.

App. Vol., III, at 240-53.

9

The district court inquired whether Defendant wanted to remain present during

the Government’s presentation of the witnesses that afternoon. Defendant responded

that he wanted “the rat” there “first,” “next to” him. Id. at 255. The district court

denied his request. Despite his earlier protests, Defendant remained in the courtroom

the rest of the day.

The following morning, the issue of Defendant’s presence in the courtroom

loomed. In the opening minutes of the day’s session, outside the presence of

Defendant and the jury, Mr. Pori suggested the district court was “dealing with

someone who is either crazy or crazy like a fox.” Id. at 329. Mr. Pori explained that
3

 The district court’s exact words explaining that Defendant would not be

allowed to disrupt the proceedings were, “you don’t let the patients run the asylum.”

Id. at 331. In context, the court clearly did not intend to imply that Defendant was

demonstrating he should be in a mental asylum. Rather, the district court obviously

meant that Defendant could not have his every request catered to. Specifically, the

district court would not order the confidential informant to sit at counsel table with

Defendant because of the “real potential for . . . witness intimidation.” Id. at 331.

Perhaps, “you don’t let a fox guard the henhouse” would have been a better aphorism

to describe the situation.

10

Defendant insisted on only appearing in court if the cooperating informant was

seated next to him at counsel table, facing criminal charges. Defendant also insisted

on testifying “at the same time” as the informant, similar to the television program

Judge Judy. Id. at 329. Mr. Pori then raised the concern that Defendant was not just

“crazy like a fox,” i.e., malingering, but instead was affirmatively demonstrating his

incompetence. The district court stated that, in its view, there was no evidence in

the record to cast doubt on the initial determination of competency and that

Defendant’s prior issues with Mr. Pori “were not at all justified,” but that the court

had appointed Mr. Esparza in an effort to “appease” Defendant. The district court

stated that it would not stoop to the level of letting Defendant control the

proceedings.3

 The court relented, however, to defense counsel’s request to call

Veloz earlier, during the Government’s case-in-chief, in an effort to appease

Defendant’s desire to see him testify. At this point the court took a brief recess to

have Defendant transferred to the courtroom. 

Upon reconvening, the district court explained to Defendant that he was
11

granting his attorneys’ request to call the confidential informant, Veloz, out of order.

The district court emphasized, however, that Veloz would not sit beside Defendant

because the court viewed that “as a form of witness intimidation,” and that

Defendant would not be allowed to disrupt the proceedings. Id. at 339. “Why not?”

Defendant curtly replied. Id. The district court, again, patiently explained that there

were rules governing the presentation of evidence and that, although it understood

Defendant was upset that Veloz was not being charged with a crime, the court had

no control over the matter. Defendant launched into another tirade about the

necessity of Veloz testifying at the same time as Defendant. 

At this point Mr. Pori renewed his concern about Defendant’s competency,

explaining that Defendant had exhibited this sort of behavior for “18 long months.”

Id. at 343. The district court noted counsel’s concern, but observed that “the

professional opinion of the evaluator,” Dr. Westfried, did not concur and “on that

basis” the district court wanted to proceed with the trial. Id. at 343. The district

court inquired whether Defendant would like to stay in the courtroom. Defendant

answered that, “if what I’m asking for is not going to be done, then I can’t.” Id. at

344. The district court again remonstrated with Defendant, explaining that his

lawyers thought it would be a good idea for him to stay in the courtroom, but that he

had the choice to leave. The district court then made a finding that Defendant was

voluntarily choosing to remove himself by “insisting on conditions” that would

“disrupt the decorum necessary for this proceeding to continue” and that “his
12

actions,” based on the court’s observations, were “an effort to intimidate the witness’

testimony and keep the witness from testifying.” Id. at 351. After this finding, the

court granted Mr. Pori’s request for a standing objection as to Defendant’s

competency. Id. at 352-53. The trial proceeded in Defendant’s absence for the

remainder of the day.

On the morning of the third day of trial, August 9, 2007, defense counsel noted

that, during Defendant’s tirade of the previous day, he had stomped his feet on the

floor like a child. Defense counsel requested that the district court again speak

directly to Defendant to assess his competency. The court complied, and an

exchange similar to the court’s conversations with Defendant on previous days

occurred, i.e., Defendant expressed anger and frustration and noted his refusal to

cooperate with the proceedings. At this point Mr. Pori suggested he was “probably

wrong” to acquiesce to Dr. Westfried’s evaluation and suggested circumstances had

“changed to the point where it may be appropriate to suspend these proceedings

because of the behavior that he’s demonstrated even today . . . making the same wild

request with the same st[o]mping of the feet, although it didn’t seem as loud today,

but that at that point, we do have some evidence before the Court.” Id. at 541. The

district court disagreed, however, stating that it would prefer to send Defendant to

an evaluation before sentencing if the jury returned a guilty verdict. 

 The following day, August 10, 2007, the jury did indeed return a verdict of

guilty on both counts. After Defendant refused to participate in a pre-sentence
13

interview with the U.S. Probation Office, his attorneys filed another motion

requesting a competency determination. App. Vol. I, at 612. 

At a hearing on the motion, the district court quoted at length from Dr.

Westfried’s evaluation and stated the “difficulty in this case is . . . this is part of

[Defendant’s] modus operandi in terms of the patterns are consistent from early on

when we had a number of hearings.” App. Vol. III, at 849. The court noted that

there was “certainly some irrational conduct displayed by” Defendant. Id. at 849.

The court decided, however, that it would allow Defendant to be sent to an

evaluation to determine “that he is mentally competent to be sentenced.” Id. at 850.

The court noted that, if the “evaluator agrees with Dr. Westfried, then I’m fully

satisfied that [Defendant], at all material times, was competent and, therefore, is

competent to be sentenced.” Id. at 851. The district court entered an order to that

effect on November 8, 2007.

The competency evaluation took place over the course of a month at the

Federal Correctional Institution in Fort Worth, TX. Dr. Lisa Bellah, a forensic

psychologist, evaluated Defendant. Dr. Bellah concluded Defendant was “competent

throughout his legal proceedings and is competent to proceed to sentencing.” App.

Vol. I, at 642. Dr. Bellah acknowledged that Defendant “may have anger

management problems stemming from a possible mental health diagnosis.” Id. But

“upon further review of his history and behavior over a one month time frame, there

is insufficient evidence to suggest a formal mental health diagnosis is present.” Id.
14

Dr. Bellah concluded that Defendant’s “suspiciousness and distrust does not appear

to be delusional in nature, but rather, a characterological aspect of his overall

personality structure.” Id. The report noted that Defendant had the “capacity to

comport his behavior in an adequate manner, but chooses to behav[e] in a negative

manner in order to control his environment.” Id. Indeed, Dr. Bellah predicted that

Defendant would “likely continue to be a difficult client, but his behavior does not

appear to stem from the direct effects of a mental disease or defect.” Id.

At sentencing, Defendant’s attorneys stated that his suspiciousness and distrust

made Defendant incapable of assisting in his defense, and thus incompetent

throughout the proceedings. Defendant’s attorneys did not, however, request further

evaluation prior to sentencing. The district court concluded Defendant was

competent, based on the two competency evaluations by licensed professionals and

the court’s own observations of Defendant. App. Vol. III, at 859. The district court

also observed that Defendant’s personality made him a difficult client, and that he

had chosen not to work with his attorneys. The district court sentenced Defendant

to 78 months in prison, the higher end of the Guidelines sentence. Defendant

appeals.

II.

The Supreme Court established the Constitutional standard governing

competence in Dusky v. United States, 362 U.S. 402 (1960) (per curiam). “Dusky
15

defines the competency standard as including both (1) ‘whether’ the defendant has

‘a rational as well as factual understanding of the proceedings against him’ and (2)

whether the defendant ‘has sufficient present ability to consult with his lawyer with

a reasonable degree of rational understanding.’” Indiana v. Edwards, 128 S.Ct. 2379,

2383 (2008). 

“[C]ompetency claims can raise issues of both substantive and procedural due

process.” Walker v. Att’y Gen., 167 F.3d 1339, 1343 (10th Cir. 1999). Defendant

raises both procedural and substantive claims here. He contends (1) the district court

violated his right to procedural due process by “repeatedly fail[ing] to conduct an

adequate inquiry into [Defendant’s] competence during the jury trial,” and (2) the

district court violated his substantive right to be free from criminal prosecution while

incompetent. Because “an individual raising a procedural competency claim is held

to a lower burden of proof than one raising a substantive competency claim,” we

consider the procedural claim first. McGregor v. Gibson, 248 F.3d 946, 952 (10th

Cir. 2001) (en banc). 

A. 

“A procedural competency claim is based upon a trial court’s alleged failure

to hold a competency hearing, or an adequate competency hearing.” Id. In Pate v.

Robinson, 383 U.S. 375, 384-85 (1966), the Supreme Court recognized a procedural

right to a competency hearing in state prosecutions, based on the due process clause
16

of the Fourteenth Amendment. See U.S. Const. amend. 14, § 1 (prohibiting state

deprivation of “life, liberty, or property, without due process of law”). Neither party

to this appeal has suggested that, in a federal criminal prosecution, the Fifth

Amendment’s due process clause would not provide the same protection. See id.

amend. 5.

Pate recognized that the Illinois state court could have satisfied due process

merely by “carrying out the terms of the State’s own statute which required ‘a sanity

hearing where the evidence raised a bona fide doubt’ as to the defendant’s

competence to stand trial.” United States v. Knohl, 379 F.2d 427, 435 (2d Cir.

1967). In federal court, however, a statutory procedure exists to protect the

procedural due process rights of criminal defendants. In pertinent part, 18 U.S.C.

§ 4241(a) provides:

[T]he defendant or the attorney for the Government may file a motion

for a hearing to determine the mental competency of the defendant. The

court shall grant the motion, or shall order such a hearing on its own

motion, if there is reasonable cause to believe that the defendant may

presently be suffering from a mental disease or defect rendering him

mentally incompetent 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.

(emphasis added); see also United States v. Swanson, 572 F.2d 523, 526 (5th Cir.

1978) (holding that the § 4241’s precursor “enforces the due process requirement”

identified in Pate); Knohl, 379 F.2d at 435 (noting § 4241’s precursor “was not

enacted in contravention of due process but in aid of it”). As relevant here, § 4241
17

applies “after the commencement of a prosecution for an offense and prior to the

sentencing of the defendant.” 18 U.S.C. § 4241(a). Thus, Defendant’s procedural

claim falls squarely within the parameters of the statute. 

Defendant has not argued that satisfying § 4241’s procedural requirements

would fall short of meeting his procedural due process rights. There is good reason

to believe that Congress envisioned § 4241 as embodying at least as much procedural

protection as the standard described in Pate. The Senate Judiciary Report to the

Comprehensive Crime Control Act of 1984 cited to Pate in noting that “all the

procedures included in [§ 4241] are for the benefit of the defendant.” S. Rept. No.

98-473, at 235 (1984), as reprinted in 1984 U.S.C.C.A.N. 3417. Additionally, the

“bona fide doubt” standard discussed in Pate is very similar to the language in

§ 4241. Pate expresses the standard in the negative, requiring a competency hearing

if “the evidence raises a ‘bona fide doubt’ as to a defendant’s competence,” 383 U.S.

at 385 (emphasis added), while § 4241 expresses the standard in the positive,

requiring a competency hearing “if there is reasonable cause to believe that the

defendant may presently be suffering from a mental disease or defect rendering him

mentally incompetent.” 18 U.S.C. § 4241(a) (emphasis added); see also Chavez v.

United States, 656 F.2d 512, 516 n.1 (9th Cir. 1981) (discussing different

formulations of the bona fide doubt standard and concluding that “all describe the

same constitutional standard”). 

Finally, in evaluating § 4241’s precursor, the Second Circuit observed that
18

Pate “did not create any new federal right or a new procedure for applying for a

hearing in the federal courts on the issue of mental competency to stand trial” that

was not already protected by the federal statute. Knohl, 379 F.2d at 435. We agree

with this analysis for purposes of this case. Seeing no need to distinguish between

the procedural protections identified in Pate and § 4241, we, therefore, apply § 4241

to determine whether the district court erred in failing to hold a second competency

hearing during trial.

B. 

 Defendant, citing cases from two of our sister circuits, suggests that our

standard of review is “comprehensive” or “plenary” for a procedural competency

inquiry. See United States v. Ross, 510 F.3d 702, 712 (7th Cir. 2007); United States

v. Jones, 336 F.3d 245, 256 (3d Cir. 2003). We disagree. Ross merely held that,

where a district court “did not order a psychiatric examination or make a judicial

determination regarding the defendant’s competence,” appellate review is

“comprehensive.” Ross, 510 F.3d at 712. Similarly, in Jones the district court “did

not hold a formal hearing” concerning the defendant’s competency. Jones, 336 F.3d

at 257. That was not the case here. The district court in this case ordered an initial

psychiatric examination, provided counsel with an opportunity to supplement the

record prior to trial, and entered a finding of competency at a hearing just a few days

before trial. Our precedent is clear that “whether to order a second competency

exam is a matter wholly within the sound discretion of the trial court.” United States
4

 We have identified at least one exception to applying the abuse of discretion

standard, i.e., “when a criminal defendant’s competency was determined under an

unconstitutional burden of proof.” McGregor v. Gibson, 248 F.3d 946, 955 (10th

Cir. 2001) (en banc). In such cases “the prior competency determination merits no

presumption of correctness” and we will evaluate whether “a reasonable judge should

have had a bona fide doubt as to his competence at the time of trial.” Id. at 955.

5

 See, e.g., United States v. Ewing, 494 F.3d 607, 622 (7th Cir. 2007) (“A

district court’s decision whether to hold a competency hearing is discretionary and

reviewed deferentially”); United States v. Nickels, 324 F.3d 1250, 1251 (11th Cir.

2003) (per curiam) (“We review the denial of a § 4241 motion for an abuse of

discretion”); United States v. General, 278 F.3d 389, 396 (4th Cir. 2002) (“Whether

reasonable cause exists [to doubt defendant’s competency] is a question left to the

discretion of the district court.”); United States v. George, 85 F.3d 1433, 1437 (9th

Cir. 1996) (holding § 4241’s “language . . . indicates that we should review a district

(continued...)

19

v. Prince, 938 F.2d 1092, 1095 (10th Cir. 1991); see also United States v. Ramirez,

304 F.3d 1033, 1035 (10th Cir. 2002) (“Whether to order a competency examination

is reviewed for an abuse of discretion.”).4

 

Given that “a defendant's behavior and demeanor at trial are relevant as to the

ultimate decision of competency,” we stress that the observations and conclusions

of the district court observing that behavior and demeanor are crucial to any proper

evaluation of a cold appellate record. Prince, 938 F.2d at 1095; see also United

States v. Pompey, 264 F.3d 1176, 1179 (10th Cir. 2001) (holding the district court

“may rely on a number of factors, including . . . the court’s observations of the

defendant’s comportment”). Indeed, implicitly recognizing the importance of the

district court’s vantage point in a competency inquiry, several of our sister circuits

also apply an abuse of discretion standard.5
5

(...continued)

court’s decision to deny an examination for abuse of discretion”); United States v.

Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986) (“Determination of whether there is

‘reasonable cause’ to believe a defendant may be incompetent rests in the discretion

of the district court.”).

20

Other non-comprehensive factors relevant to the need for a competency

hearing include “evidence of a defendant’s irrational behavior, his demeanor at trial,

and any prior medical opinion on competence to stand trial.” Drope v. Missouri, 420

U.S. 162, 180 (1975). “[A]n attorney’s representation about his client’s

competency” is another factor that may be considered. Jones, 336 F.3d at 256

(internal quotation omitted). But we emphasize that there are “no fixed or immutable

signs which invariably indicate the need for further inquiry to determine fitness to

proceed; the question is often a difficult one in which a wide range of manifestations

and subtle nuances are implicated.” Drope, 420 U.S. at 180.

C.

Having reviewed the record in light of the above factors, we cannot say the

district court abused its discretion. We believe that a reasonable judge, situated in

the same position as the district court here, would find insufficient cause to believe

Defendant’s competence was compromised. Defendant’s behavior during trial was

consistent with Dr. Westfried’s psychological evaluation and his attorneys’ pre-trial

experience, i.e., Defendant was a difficult client, highly suspicious of his lawyers,

but ultimately, as Dr. Westfried concluded, “there were no signs of his having
21

compromised competence related capacities.” Defendant’s attorneys had concurred,

as soon as six days prior to trial, that Defendant was competent.

Indeed, the district court went out of its way prior to trial to ensure that

Defendant received adequate counsel from as many as three attorneys, all of whom

the district court viewed as highly experienced and capable of vigorously

representing Defendant’s interests. Although one of Defendant’s attorneys, Mr. Pori,

expressed concern about Defendant’s competency during the months preceding trial,

it was not an abuse of discretion for the district court, in the heat of trial, to weigh

the psychological evaluation more heavily given Mr. Pori’s and Mr. Esparza’s

assurances that Defendant was competent the week before trial, and Ms. Steinmetz’s

concurring report a few months prior. In fact, we believe the district court was

eminently reasonable in doing so. See United States v. Mackovich, 209 F.3d 1227,

1233 (10th Cir. 2000) (“[T]he concerns of counsel alone are insufficient to establish

doubt of a defendant's competency.”).

To be sure, certain extreme behavioral manifestations may, along with other

factors, raise reasonable cause to doubt a defendant’s competency. For example, in

United States v. Williams, 113 F.3d 1155 (10th Cir. 1997), we held that the

defendant’s “irrational behavior,” “outbursts,” and “hysteria” during trial gave rise

to a “bona fide doubt” about her competence, and that the district court violated

procedural due process by not holding an evidentiary hearing under the

circumstances. Id. at 1160. But this case bears important differences from Williams.
22

First, the district court in Williams never ordered a pre-trial psychological

evaluation, and thus we undertook a “comprehensive” review. See id. at 1160

(“[W]ith no competency determination before us, our review

is . . . comprehensive.”). Here, we apply a more deferential standard to the district

court’s decision to forego a second competency hearing after a prior psychological

evaluation and finding of competency. 

Second, in Williams, the defendant was taking a psychotropic drug and gave

a “cryptic[]” response to the district court’s inquiry whether “it interfered with her

ability to communicate with her attorney.” Id. at 1160. During trial, the defendant

informed the court that she had not taken her medication, but the district court “made

no further inquiry,” even when the defendant’s testimony spiraled into incoherency.

Id. at 1158. Here, Defendant was neither prescribed, nor failed to take, such mindaltering medication.

Finally, even reviewing a cold appellate record, Defendant’s behavior here

bears little resemblance to that of the defendant in Williams. In Williams, the

defendant wept uncontrollably during trial, prompting us to editorialize that “[t]o say

[the defendant] was out of control during the second day of the proceeding

euphemizes the record.” Id. Here, Defendant’s tirades reflect anger and frustration,

but they are not incoherent. Defendant’s behavior was quite consistent with Dr.

Westfried’s evaluation, and the district court acted reasonably in taking the

psychological evaluation into consideration when evaluating Defendant’s conduct.
6

 Defendant relies on other cases as well, but they do not bear any

resemblance to the facts presented here. See, e.g., Drope, 420 U.S. at 165-68

(psychiatric report indicated mental disease, defendant’s wife testified her husband

subjected her to bizarre physical and sexual assault and that he was sick, and

defendant shot himself during the trial); Pate, 383 U.S. at 378-80 (four witnesses

testified defendant was insane and described history of disturbed behavior, medical

records confirmed defendant had been committed and that he suffered from

hallucinations and possibly schizophrenia, and defendant had periods of irrational

and violent behavior).

23

See United States v. Jones, 23 F.3d 1307, 1309 (8th Cir. 1994) (“The psychiatric

report submitted to the court indicated that [the defendant] was competent to stand

trial. Under those circumstances, the trial court had the discretion to hold or to forgo

an additional hearing on [the defendant’s] competency.”). 

In sum, the district court did not abuse its discretion in failing to order a

second competency evaluation or hearing, despite Defendant’s behavior at trial.

Under this record, the district court reasonably concluded that (1) Defendant had the

capacity and ability to understand the charges against him and to assist in his

defense, and (2) the Defendant’s behavior was merely an attempt to disrupt the

proceedings. See Drope, 420 U.S. 171 (defining competency in terms of “capacity”);

Dusky, 362 U.S. at 402 (defining competency in terms of “present ability”).

Accordingly, we reject Defendant’s procedural competency challenge.6

D.

Defendant also raises a substantive due process challenge to the district court’s

competency finding. “[A] substantive competency claim is founded on the allegation
24

that an individual was tried and convicted while, in fact, incompetent.” McGregor,

248 F.3d at 952. But Defendant’s failure to succeed on his procedural competency

claim also forecloses Defendant’s substantive challenge. See United States v.

Herrera, 481 F.3d 1266, 1272 n.1 (10th Cir. 2007) (“Since we conclude no bona fide

doubt exists that [the defendant] was not incompetent at trial, he likewise fails to

make a substantive due process claim.”). Where a petitioner cannot show a bona fide

doubt as to his competency, “he cannot meet the more stringent substantive due

process competency standard.” Walker v. Gibson, 228 F.3d 1217, 1230 (10th Cir.

2000), abrogated on other grounds by Neill v. Gibson, 278 F.3d 1044 (10th Cir.

2001). Were we to reach the merits of Defendant’s substantive competency claim,

we would conclude, for the reasons already discussed, that the district court’s finding

was not clearly erroneous. See United States v. Boigegrain, 155 F.3d 1181, 1189

(10th Cir. 1998) (holding that a district court may “rely on a number of factors,

including medical opinion and the court’s observation of the defendant’s

comportment” in “making a determination of competency”); see also Mackovich, 209

F.3d at 1232 (holding that the district court’s “reliance” on “the only medical expert

who assessed [the defendant’s] competence” was “not clear error”).

AFFIRMED.