08-5090-cr

United States v. Arenburg

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 

6

7 August Term, 2009

8

9 (Argued: April 20, 2010 Decided: May 25, 2010)

10

11 Docket No. 08-5090-cr

12 

13

14 UNITED STATES OF AMERICA,

15

16 Appellee,

17

18 –v.–

19

20 JEFFREY ROBERT ARENBURG,

21

22 Defendant-Appellant.

23

24 

25

26 Before: MINER, CABRANES, and WESLEY, Circuit Judges.

27

28 Appeal from a judgment of conviction entered in the

29 United States District Court for the Western District of New

30 York (Arcara, C.J.), following a jury trial at which defendant

31 was found guilty of assaulting a federal official. We hold

32 that the district court erred by failing to revisit the issue

33 of defendant’s competence to stand trial based on his behavior

34 in the courtroom. We therefore remand the case in order to

35 provide the district court with an opportunity to consider

36 whether defendant was competent throughout the trial. 

37

38 REMANDED. 

39

40 

41

42

43
2

1 NORMAN TRABULUS, New York, NY, for Defendant2 Appellant.

3

4 AARON J. MANGO, Assistant United States Attorney,

5 for Kathleen M. Mehltretter, United States

6 Attorney, Western District of New York,

7 Buffalo, NY, for Appellee.

8

9 

10

11 PER CURIAM:

12 Defendant-Appellant Jeffrey Robert Arenburg, a Canadian

13 citizen, asks us to vacate his conviction for assaulting a

14 federal official, 18 U.S.C. § 111, on the ground that he was

15 not competent to stand trial. The district court’s

16 competency determination was based principally on a

17 magistrate judge’s prior findings that defendant was

18 competent to stand trial and to represent himself. On

19 appeal, no party challenges the accuracy of the magistrate

20 judge’s findings at the time they were made, almost two

21 months prior to the trial. Moreover, although defendant

22 proceeded pro se, neither the government nor defendant’s

23 standby counsel asked the district court to reconsider

24 defendant’s competence during the two-day trial.

25 Nevertheless, district courts operate under an

26 independent statutory obligation to revisit a defendant’s

27 competence, sua sponte, if there is “reasonable cause to
3

1 believe that the defendant may presently be suffering from a

2 mental disease or defect rendering him mentally

3 incompetent.” 18 U.S.C. § 4241(a). Because trial judges

4 are in the best position to make these determinations, we

5 afford district courts wide latitude to reach conclusions as

6 to both “reasonable cause” and a criminal defendant’s

7 overall competence to stand trial. But this discretion is

8 not unfettered. For the reasons set forth below, we hold

9 that, notwithstanding the magistrate judge’s pretrial

10 competence findings, the district court erred by failing to

11 revisit defendant’s competence to stand trial in light of

12 his behavior during the trial itself. We therefore remand

13 the case in order to provide the court with an opportunity

14 to consider whether defendant was competent throughout the

15 proceedings that led to his conviction. 

16 I. BACKGROUND

17 On November 29, 2007, while attempting to cross the

18 United States-Canada border near the Peace Bridge in

19 Buffalo, New York, defendant struck a federal border patrol

20 agent in the face and caused a laceration to the agent’s

21 lip. Defendant was detained and the government filed a

22 criminal complaint the next day, charging him with
 As the district court acknowledged, “defendant has a 1

history of mental illness.” United States v. Arenburg, No.

08 Civ. 090A, 2008 WL 3286444, at *1 n.2 (W.D.N.Y. Aug. 7,

2008). Much of this history relates to events in Canada,

including an instance in which defendant was deemed

incompetent to stand trial and committed to a mental

institution for several years. See id. at *5 n.9. The

psychologist who examined defendant obtained two decisions

from the Ontario Board of Review, dated July 11, 2005 and

January 29, 2007, describing his medical history. These

Canadian decisions were attached to the psychologist’s

report relating to defendant’s competence to stand trial,

which was filed under seal with this Court. Because the

parties’ briefs quote extensively from these documents, we

have directed in a separate order that the briefs be filed

4

1 assaulting a federal official in violation of 18 U.S.C. §

2 111.

3 At the initial conference on the afternoon of November

4 30, 2007, a magistrate judge appointed counsel for defendant

5 and scheduled a bail hearing for December 7. After that

6 hearing, the magistrate judge granted the government’s

7 motion to detain defendant. The judge also ordered,

8 pursuant to 18 U.S.C. §§ 4241 and 4242, separate evaluations

9 of: (1) defendant’s mental state at the time of the

10 offense, and (2) his competence to stand trial.

11 A forensic psychologist examined defendant from January

12 17 through February 15, 2008. On February 27, 2008, the

13 psychologist issued two reports in which she concluded that,

14 although defendant suffered from paranoid schizophrenia, he 1
under seal as well. 

5

1 was capable of appreciating the wrongfulness of his conduct

2 on November 29, 2007, and was competent to stand trial. The

3 psychologist noted, however, that defendant seemed to be

4 attempting to mask his symptoms in order to convince her

5 that he was not suffering from a mental defect.

6 The magistrate judge conducted a conference relating to

7 the psychologist’s findings on March 24, 2008. At the

8 conference, defendant used profane language in reference to

9 the court and his appointed counsel. Based on this conduct,

10 defendant’s counsel indicated that he was “not so sure”

11 about the psychologist’s conclusions. The magistrate judge

12 denied defendant’s request to proceed pro se, explaining

13 that he was “not of the opinion that [defendant was] capable

14 of representing [himself].”

15 Defendant was indicted on April 2, 2008. At his

16 arraignment on April 3, defendant informed the same

17 magistrate judge that he had no objections to the

18 psychologist’s reports, and that he wished to represent

19 himself but retain his appointed attorney as standby

20 counsel. This time the magistrate judge took a different

21 view of defendant’s request. First, he concluded that
6

1 defendant had “made a knowing and intelligent decision to

2 accept the report and waive his right to contest the issue

3 of competency.” Next, the magistrate judge engaged in a

4 two-hour colloquy with defendant in order to assess whether

5 he was capable of waiving his right to counsel and

6 representing himself. Following the discussion, the

7 magistrate judge issued a series of verbal findings based on

8 defendant’s responses to the court’s questions and his

9 general demeanor. The judge concluded, inter alia, that

10 defendant was competent to stand trial, and that he had

11 “made a knowing and intelligent waiver of his right to the

12 assistance of counsel.”

13 Defendant appeared for the first time before the

14 district judge on April 7, 2008. The district judge

15 confirmed that defendant had not had “any change of

16 position” with respect to the magistrate judge’s competence

17 findings, and he set a May 20, 2008 trial date. At the

18 conclusion of the conference, however, defendant produced a

19 signed note that contained several incoherent statements,

20 such as “[o]n the radio stations airing my thoughts all over

21 the world blaming me for being a drug trade,” and “[a]iring

22 my thoughts through the T.V. channels.” (J.A. at 29.) He
7

1 stated that the purpose of the note was to “tell [the court]

2 who I am.” (Gov’t App. at 164 (transcript of proceedings).) 

3 The courtroom deputy read the note into the record, but

4 there was no further inquiry into its meaning. See

5 Arenburg, 2008 WL 3286444, at *2 n.4.

6 The final pretrial conference was conducted without

7 incident on May 15, 2008; defendant’s trial began, as

8 scheduled, on May 20. In his opening statement, defendant

9 told the jury that he was “going to prove that MGM [Studios]

10 is hiding the illegal drug trade in my name through the

11 radio stations that you can call up or they can call you to

12 tell people how to treat me or to find out about me because

13 of MGM.” (Gov’t App. at 204.) During the government’s

14 case-in-chief, it elicited testimony from four federal

15 border patrol agents, as well as the doctor who treated the

16 injured agent. Consistent with defendant’s opening

17 statement, his cross-examination of each of the first two

18 witnesses included a series of questions relating to “radio

19 waves” and “microwave channels.” During the second cross20 examination, the court overruled two objections from the

21 government. After the second witness’s testimony, the

22 following discussion occurred outside the presence of the
8

1 jury:

2 Assistant United States Attorney (“AUSA”): Your

3 Honor, the government has serious concerns at this

4 point of the defendant’s ability to represent

5 himself. He appears to be making a farce out of

6 this trial. 

7

8 Court: Well, he’s asking questions that are of

9 concern to him. Are you saying he’s not competent

10 to represent himself? Then you’re saying he’s not

11 competent to stand trial.

12

13 AUSA: No, Your Honor.

14

15 Court: You can’t have it both ways.

16

17 AUSA: The issue is actually up before the Supreme

18 Court at this point for a decision [in Indiana v.

19 Edwards, 128 S. Ct. 2379 (2008)].

20

21 . . .

22

23 Court: As far as the standard is concerned . . .

24 the standard of competency, including [pleading]

25 guilty or waiving the right to counsel is the same

26 as the competency standard for standing trial.

27 [citing Godinez v. Moran, 509 U.S. 389 (1993)] So

28 it’s the same standard. 

29

30 So if your position is that he’s not qualified or

31 competent to represent himself, then he’s not

32 competent — you’re saying in effect he’s not

33 competent to stand trial and we’ve already gone

34 through that with the reports. So your request is

35 denied.

36

37 AUSA: Your Honor, I think what he’s doing here is

38 trying to bootstrap an insanity defense.

39

40 Court: He’s doing what he’s doing and that’s his

41 right. 

42

43 (Gov’t App. at 244-45.) The district court then directed
9

1 the parties to appear in court the next morning to continue

2 the trial. 

3 The government called its final three witnesses during

4 the second day of the trial, and defendant cross-examined

5 each of them regarding a “microwave channel.” After the

6 government rested, defendant chose not to introduce any

7 evidence. However, during his summation he asked the court

8 — in front of the jury — if he could “bring up . . . the

9 microwave channel and the drug channel.” The district court

10 stated that it would allow the argument, and defendant went

11 on to assert:

12 You, the jury, and I know that [the drug channel]

13 was on for the last 20 plus years and how the

14 government and these employees of the border and

15 homeland security tell us that we are all crazy

16 and are all hearing things. So what [are] the

17 radio stations going to blame the drug trade on if

18 you don’t find the government and these people

19 guilty of this crime. And maybe one or all of the

20 jurors will be blamed on — blame it on next. So

21 be wary, it could be one of you guys next.

22

23 (Gov’t App. at 299.) After the jury listened to the

24 government’s rebuttal summation and received instructions

25 from the court, it deliberated for approximately two hours

26 and returned a guilty verdict.

27 Defendant’s standby counsel filed a motion for a new

28 trial on May 27, 2008. He argued that defendant “may have
10

1 been able to proceed pro se when [the magistrate judge]

2 conducted his inquiry on April 3; however, he was not fit to

3 proceed [during the trial]” on May 20 and 21, 2008. In an

4 opinion denying the motion, the district court took the view

5 that counsel had not “challenge[d] . . . the defendant’s

6 competency to stand trial,” and that “[t]he question now

7 before this Court” was whether it was “required . . . to

8 revoke the defendant’s pro se status” under Indiana v.

9 Edwards, 128 S. Ct. 2379 (2008). Arenburg, 2008 WL 3286444,

10 at *4-5 (emphasis omitted). Turning to that issue, the

11 court concluded that, “[n]otwithstanding the defendant’s

12 bizarre references to microwave channels broadcasting his

13 thoughts, the defendant in this case did manifest some

14 ability to represent himself at trial.” Id. at *5. 

15 Therefore, the court concluded, “[u]nder all the

16 circumstances, . . . defendant was sufficiently competent to

17 continue to exercise his right to self-representation, and

18 nothing in the Supreme Court’s Edwards decision required

19 this Court to revoke the defendant’s pro se status over his

20 objections.” Id.

21 On September 25, 2008, the district court sentenced

22 defendant to 24 months’ imprisonment. Defendant has not
11

1 challenged the sentencing proceeding on appeal, and his

2 counsel avers that defendant has completed the sentence and

3 returned to Canada.

4 II. DISCUSSION

5 Defendant’s appellate counsel argues that, 

6 notwithstanding the magistrate judge’s prior findings, the

7 district court erred by failing to revisit, sua sponte, the

8 issue of defendant’s competence. In this regard, we agree

9 and hold that the district court erred by misapprehending

10 its statutory obligations under 18 U.S.C. § 4241(a). 

11 Counsel goes further, however, and asserts that we should

12 hold that defendant was incompetent to stand trial. We

13 decline to do so. Although we are mindful of the practical

14 considerations that limit the efficacy of retrospective

15 competency determinations, we are ill-equipped to resolve

16 this issue in an appellate posture under the circumstances

17 presented by this case. Accordingly, for the reasons set

18 forth below, we remand the case for further proceedings. 

19 Due process requires that “a person whose mental

20 condition is such that he lacks the capacity to understand

21 the nature and object of the proceedings against him, to

22 consult with counsel, and to assist in preparing his defense
 Congress enacted 18 U.S.C. § 4241 in 1984 as part of 2

an effort to “completely amend[],” in a “comprehensive”

fashion, the portions of Title 18 that “deal[] with the

procedure to be followed by federal courts with respect to

offenders suffering from a mental disease or defect.” S.

Rep. 98-225, at 231 (1984), reprinted in 1984 U.S.C.C.A.N.

3182, 3413; see Insanity Defense Reform Act, Pub. L. No. 98-

473, § 403, 98 Stat. 1837 (1984). The Senate Report

12

1 may not be subjected to a trial.” Drope v. Missouri, 420

2 U.S. 162, 171 (1975). Because this constitutional right

3 spans the duration of a criminal proceeding, “a trial court

4 must always be alert to circumstances suggesting a change

5 that would render the accused unable to meet the standards

6 of competence to stand trial.” Id. at 181 (emphasis added).

7 Although these requirements are constitutional in

8 nature, Congress has seen fit to express them in a statute

9 as well. See 18 U.S.C. § 4241(a); see also United States v.

10 Magassouba, 544 F.3d 387, 402-03 (2d Cir. 2008). As

11 relevant here, the statute provides:

12 At any time after the commencement of a

13 prosecution . . . , the defendant or the attorney

14 for the Government may file a motion for a hearing

15 to determine the mental competency of the

16 defendant. The court shall grant the motion, or

17 shall order such a hearing on its own motion, if

18 there is reasonable cause to believe that the

19 defendant may presently be suffering from a mental

20 disease or defect rendering him mentally

21 incompetent . . . .

22

23 18 U.S.C. § 4241(a) (emphasis added). 

2
accompanying the bill confirms the plain meaning of the

statutory text. It states that “the motion for a competency

hearing may be filed by the government or the defendant; in

addition the court may act sua sponte.” S. Rep. 98-225, at

233, reprinted in 1984 U.S.C.C.A.N. at 3415. It goes on to

note that “[i]t is mandatory that the court order a hearing

if there is reasonable cause to believe that the defendant

may presently be suffering from a mental disease or defect.” 

Id. at 234, reprinted in 1984 U.S.C.C.A.N. at 3416 (emphasis

added).

13

1 The issue of whether there is “reasonable cause” under

2 18 U.S.C. § 4241(a) “rests in the discretion of the [trial]

3 court.” United States v. Vamos, 797 F.2d 1146, 1150 (2d

4 Cir. 1986). As such, a district court may consider “many

5 factors” when determining whether “reasonable cause” to

6 order a competency hearing exists, including (but not

7 limited to) its “observations of the defendant’s demeanor

8 during the proceeding.” United States v. Quintieri, 306

9 F.3d 1217, 1233 (2d Cir. 2002). However, where “reasonable

10 cause” exists “[a]t any time after the commencement of a

11 prosecution,” a district court has but one option: “order .

12 . . a hearing.” 18 U.S.C. § 4241(a); see also Quintieri,

13 306 F.3d at 1232. This is so whether or not the parties

14 raise the issue themselves, and the district court’s

15 obligation takes on increased significance where, as here, a

16 criminal defendant elects to proceed pro se. 
 At the time this case was before the district court, 3

a case concerning the relationship between the standards

governing a defendant’s competence to stand trial and his or

14

1 We review for abuse of discretion a district court’s

2 application of 18 U.S.C. § 4241(a). Quintieri, 306 F.3d at

3 1232-33. We will reverse the district court if its decision

4 is based on either a clearly erroneous factual finding or an

5 incorrect view of the law, or if its ruling cannot be

6 located within the range of permissible decisions. See

7 United States v. Bell, 584 F.3d 478, 483 (2d Cir. 2009). 

8 Applying this standard, we conclude that the district court

9 committed legal error in applying § 4241(a). 

10 Specifically, the court failed to acknowledge its

11 statutory obligation to revisit defendant’s competence to

12 stand trial — even in the absence of an application from the

13 parties — if there was “reasonable cause” to do so. After

14 the testimony of the second witness, the government

15 indicated that it had “serious concerns” about “defendant’s

16 ability to represent himself.” In the discussion that

17 followed, the district court denied the request because, in

18 its view, the government was “saying in effect [that

19 defendant is] not competent to stand trial and we’ve already

20 gone through that with the reports.” However, irrespective 3
her competence to proceed pro se was pending before the

Supreme Court. See Edwards, 128 S. Ct. at 2387-88. The

Edwards opinion was filed after defendant’s trial, but

before the district court denied standby counsel’s posttrial motion. The record reflects that both the magistrate

judge and the district court judge were aware of Edwards and

gave thorough consideration to the issues raised by that

case. However, the due process rights guarded by 18 U.S.C.

§ 4241 must be addressed before a defendant’s ability to

proceed pro se becomes an issue. Therefore, in light of our

conclusion that the case must be remanded for consideration

of whether defendant was competent to stand trial, we do not

reach the arguments presented by defendant’s counsel

relating to whether defendant was competent to represent

himself.

15

1 of the government’s position, the court was required to

2 reconsider defendant’s competence, sua sponte, if there was

3 “reasonable cause.” 18 U.S.C. § 4241(a). In its post-trial

4 decision as well, the district court seemed unaware of this

5 obligation when it emphasized that “counsel does not

6 challenge . . . defendant’s competency to stand trial,” and

7 that “before and during the trial, both parties maintained

8 that the defendant was competent to stand trial.” Arenburg,

9 2008 WL 3286444, at *4 & n.7 (emphasis in original). These

10 remarks bolster our conclusion that the district court erred

11 by misapprehending its obligation under § 4241(a).

12 Moreover, the district court was incorrect to suggest

13 that the magistrate judge’s April 3, 2008 conclusions —

14 based largely on February 27, 2008 clinical findings — were 
16

1 dispositive of defendant’s competence during the trial on

2 May 20 and 21, 2008. Although we are reticent to saddle

3 district courts with the requirement of conducting multiple

4 competency hearings during the course of a criminal

5 proceeding, the statutory obligation to be vigilant for

6 “reasonable cause” at “any time after the commencement of a

7 prosecution,” 18 U.S.C. § 4241(a), does not disappear upon a

8 pretrial finding that a defendant is competent to stand

9 trial. This principle is particularly true in this case,

10 where the magistrate judge’s finding was made nearly two

11 months prior to the trial.

12 The district court’s legal error in failing to

13 recognize its obligations under § 4241(a) serves as a

14 substantial impediment to our review of the broader question

15 of defendant’s competence to stand trial. Inclined though

16 we may be to treat deferentially a district court’s

17 determinations regarding “reasonable cause” and a

18 defendant’s overall competence to stand trial, the district

19 court made no findings during the trial for us to review. 

20 We are well aware that, for any number of reasons, a

21 criminal defendant may employ a trial strategy in which he

22 or she attempts to feign insanity or some sort of mental
 In the decision denying the post-trial motion filed 4

by defendant’s standby counsel, the district court suggested

that defendant was not seeking to feign a mental defect and

was instead trying to avoid being perceived as insane:

“[D]efendant’s desire to proceed pro se and to forego any

potential sanity defense was clearly motivated by his desire

to avoid being incarcerated in a mental institution.” 

Arenburg, 2008 WL 3286444, at *5 n.9. These observations by

the district court are consistent with the forensic

psychologist’s finding that defendant seemed to be seeking

to minimize the symptoms of his schizophrenia. Even to the

extent defendant was able to formulate this type of

strategy, however, defendant’s inability to carry it out —

as evidenced by his erratic behavior during the trial —

supports our conclusion that there was “reasonable cause”

for the district court to revisit the issue of his

competence. 

 Although the district court found in its post-trial 5

opinion that, “[u]nder all the circumstances, . . .

defendant was sufficiently competent to continue to exercise

17

1 defect. And we are more than willing, under most 4

2 circumstances, to defer to a trial court’s differentiation

3 between a defendant who is incompetent to stand trial and a

4 defendant who simply wants a court or a jury to believe that

5 is the case. See Zovluck v. United States, 448 F.2d 339,

6 343 (2d Cir. 1971); see also United States v. Berry, 565

7 F.3d 385, 392 (7th Cir. 2009). But there is no indication

8 in the record before us that the district court paused

9 during the trial to make factual findings, much less hold a

10 hearing, regarding the import of defendant’s erratic

11 behavior.5
his right to self-representation,” Arenburg, 2008 WL

3286444, at *5, we do not regard this post-trial statement

as a sufficient factual finding to sustain the conclusion

that defendant was competent to stand trial despite his

behavior. Because the district court framed the “issue now

pending” as “whether the Court was required” to revoke

defendant’s pro se status under Edwards, id. at *4 (emphasis

in original), its characterization of defendant as

“sufficiently competent” to represent himself is not

tantamount to a conclusion that defendant was competent to

stand trial.

18

1 That being said, we also note that there are some

2 indications in the appellate record that there was at least

3 “reasonable cause” to reconsider defendant’s competence. No

4 single event or discrete utterance necessarily requires this

5 result. Viewed as a whole, however, defendant’s conduct

6 during the two-day trial suggests that this issue should

7 have been revisited pursuant to 18 U.S.C. § 4241(a). In

8 both of defendant’s jury addresses, as well as the cross9 examination of each of the government’s witnesses, he made

10 repeated references to “radio waves,” “microwave channels,”

11 and a conspiracy involving MGM Studios and the government

12 with the object of publicly broadcasting his thoughts. 

13 Moreover, during his closing argument, defendant stated that

14 the jurors might be “blamed” for “the drug trade” if they

15 did not “find the government and these people guilty of this

16 crime.” Simply put, the government was not on trial, and
19

1 defendant’s argument suggests that he labored under a

2 fundamental misunderstanding of the “nature and object of

3 the proceedings.” Drope, 420 U.S. at 171. Indeed, in his

4 closing argument Arenburg admitted to the crime with which

5 he was charged by stating that “I am not saying that I

6 didn’t hit the man.” 

7 We have previously held that where a defendant

8 “consistently exhibits behavior and beliefs” that are

9 “bizarre,” the trial court “should inquire into whether the

10 defendant in fact is [competent] . . . before requiring him

11 to proceed with trial or be sentenced.” United States v.

12 Auen, 846 F.2d 872, 878 (2d Cir. 1988). This conclusion

13 applies with equal force here based on defendant’s behavior

14 during the trial, notwithstanding the magistrate judge’s

15 pretrial competence findings. 

16 Finally, although defendant’s counsel urges us to take

17 an additional step and hold that defendant was not competent

18 to stand trial, we decline to take that course. We are

19 mindful that “nunc pro tunc competency evaluations are

20 disfavored.” Id. As we said in Auen, “the district court

21 is in ‘the best position to determine whether it can make a

22 retrospective determination . . . of competency during . . .
20

1 trial and sentencing.’” Id. (quoting United States v.

2 Renfroe, 825 F.2d 763, 767-68 (3d Cir. 1987)) (ellipses in

3 original). We therefore remand this matter pursuant to

4 United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), in

5 order to allow the district court to consider: (1) whether

6 it can make a retrospective determination regarding

7 defendant’s competence; and, if it concludes that such a

8 determination is possible, (2) whether, notwithstanding the

9 pretrial competence findings by the magistrate judge,

10 defendant was competent to stand trial throughout the

11 proceedings. 

12 III. CONCLUSION

13 For the foregoing reasons, this matter is remanded to

14 the district court. The jurisdiction of this Court to

15 consider a subsequent appeal may be invoked by any party by

16 notification to the Clerk of Court within ten days of the

17 district court’s decision, in which event the renewed appeal

18 will be assigned to this panel. See id.