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 S TATES OF AMER ICA , 15 16 Appellee, 17 18 –v.– 19 20 JEFFREY ROBE RT ARENBURG , 21 22 Defendant-Appellant . 23 24 25 26 Before: M INE R , C ABRANE S , and WESLEY , Circuit Judges . 27 28 Appeal from a judgment of conviction en t e r e d 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 f o u n dguilty 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 3 4 in the cou r t r o om . Wet h e r e f o r er ema n dt h ec a s ei no r de rto 35 provide the district court with a nopportunity to consider 36 whether defendant was competent throughout the trial. 37 38 REMANDE D . 39 40 41 42 432 1 N ORMAN T RABULU S , New York, NY, for Defendant2 Appellant . 3 4 AARON J. MANGO , Assistant United States Attorney, 5 forKathleen M. Mehltretter, United States 6 Attorney, Western District of New York, 7 Buffalo, NY, for Appellee . 8 9 10 11 P ER C URI AM : 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 to3 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 withAs 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 1under 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 that6 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.) He7 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 the8 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 directed9 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 have10 1 been able to proceed pro sewhen [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 sestatus” 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 Edwardsdecision required 19 this Court to revoke the defendant’s pro sestatus over his 20 objections.” Id. 21 On September 25, 2008, the district court sentenced 22 defendant to 24 months’ imprisonment. Defendant has not11 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 defenseCongress 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 in1984 U.S.C.C.A.N. 3182, 3413; seeInsanity 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 alertto 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. See18 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). 2accompanying 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 in1984 U.S.C.C.A.N. at 3415. It goes on to note that “[i]t is mandatorythat 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 in1984 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 3her competence to proceed pro sewas pending before the

Supreme Court. See Edwards , 128 S. Ct. at 2387-88. The Edwardsopinion was filed after defendant’s trial, butbefore 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 Edwardsand 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 sebecomes 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 requiredto 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 — were16 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 mentalIn the decision denying the post-trial motion filed 4 by defendant’s standby counsel, the district court suggested that defendant was notseeking to feign a mental defect and was instead trying to avoidbeing perceived as insane: “[D]efendant’s desire to proceed pro seand 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. 5his 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 sestatus 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, and19 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 tunccompetency 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.