NOT RECOMMENDED FOR PUBLICATION

File Name: 15a0511n.06

No. 13-2253

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRYAN ROSS,

Defendant-Appellant.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF MICHIGAN

OPINION

BEFORE: BOGGS and STRANCH, Circuit Judges; CARR, District Judge.*

JANE B. STRANCH, Circuit Judge. This appeal after remand concerns a single issue: 

whether defendant Bryan Ross received constitutionally adequate representation during a pretrial 

competency hearing. Ross represented himself leading up to and during the hearing, but was 

aided by court-appointed standby counsel, Allen Early. In a prior joint direct criminal appeal 

before this panel, Ross and codefendant Robert Burston challenged their convictions on multiple 

counts relating to a counterfeit-check scheme. United States v. Ross, 703 F.3d 856, 865 (6th Cir. 

2012). They brought twelve different types of claims between them, and we upheld the district 

court’s rulings on all save the one before us here. Finding the record insufficient to determine 

whether Early’s representation met the minimum constitutional standard, we remanded the case 

with instructions to hold an evidentiary hearing on the issue. After taking testimony from Early,

 

*The Honorable James Carr, Senior United States District Judge for the Northern District of Ohio, sitting 

by designation.
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the district court issued an order establishing that Ross was adequately represented at the 

competency hearing. Ross appealed. With the benefit of the district court’s additional fact 

finding, we now affirm Ross’s conviction.

Before trial and while represented by Early (his third successive attorney in the case), 

Ross filed a motion to waive counsel and represent himself. Ross, 703 F.3d at 865. The 

Government then filed a motion for a competency examination and hearing, voicing concern 

about signs of delusion and paranoia Ross had exhibited and Ross’s inability to get along with 

any of the different lawyers who had represented him. Id. The court denied Ross’s motion 

solely out of concern that, without counsel, he would misspend defense funds provided to him by 

virtue of his indigent status. Id.

On June 10, 2008, Ross filed another motion to “substitute counsel until trial,” which also 

expressed his ongoing desire to represent himself. Id. at 865-66. The court denied Ross’s 

request for a new attorney, but permitted Ross to represent himself after determining that he 

knowingly and voluntarily waived his right to counsel. Id. at 866. The court then shifted Early

to the role of standby counsel. Id. On July 30, the Government filed a second motion for a 

competency examination and hearing, which the court granted in an August 5 hearing without 

reappointing fulltime counsel. Id. On October 29, 2008 the court held the competency hearing 

and found Ross competent to stand trial based on the court’s own observations and the report of 

a psychologist the court itself had selected, Dr. William Nixon. Id. at 866, 873. Ross later 

represented himself at trial with the assistance of yet another attorney acting as standby counsel

and was convicted of conspiracy and five of six substantive counts against him. Id. at 866.

We review the district court’s legal conclusions concerning Early’s representation de 

novo, and review its factual findings under a clear error standard. See Ornelas v. United States, 
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517 U.S. 690, 699 (1996) (appellate courts review questions of law de novo and questions of 

historical fact for clear error with respect to probable cause determinations); First Options of 

Chicago, Inc. v. Kaplan, 514 U.S. 938, 948 (1995) (same, with regard to parties’ agreement to 

submit their dispute to arbitration).

On the initial appeal, we noted that “[i]t is well-settled that complete absence of counsel 

at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting 

reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice or 

harmless error.” Ross, 703 F.3d at 873-74 (quoting Van v. Jones, 475 F.3d 292, 311-12 (6th Cir. 

2007)), and held that a competency hearing is a critical stage, id. at 874. We further noted that it 

was not clear on the record whether Early, acting as standby counsel, provided the 

constitutionally required “meaningful adversarial testing” leading up to and during Ross’s 

competency hearing. Id. at 872 (citing United States v. Cronic, 466 U.S. 648, 656-57 (1984)).

Here, satisfaction of the Cronic standard “requires evidence, at a minimum, that standby 

counsel (1) conducted an adequate investigation into Ross’s competency, including reading and 

analyzing Dr. Nixon’s report, and preparing for the hearing, and (2) chose not to contest Ross’s 

competency based on his own strategic decision rather than a belief that he simply had no 

obligation to do so over Ross’s instructions.” Ross, 703 F.3d at 874. The record created on 

remand supports the district court’s conclusion that standby counsel met both requirements.

At the post-remand evidentiary hearing, Early testified that once the government filed its 

second motion for a competency evaluation, he began preparing for the motion hearing and was 

exercising independent judgment as an attorney for Ross, though he already had been assigned 

the role of standby counsel. At the August 5, 2008 hearing to decide the Government’s motion 

to conduct a competency evaluation of Ross, Early stated his view that Ross’s erratic behavior 
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could be due to incompetence, but it could also be a bad-faith effort to create error in the record, 

and that the court should hold a competency examination to “rule out” the competency issue.

Once the court ordered a competency hearing, Early undertook logistical tasks such as 

compiling a list of experts acceptable to Ross and submitting them to the court. When it became 

apparent that the parties could not agree on an expert, the court appointed its own selection, Dr. 

Nixon. Early testified that he considered himself Ross’s counsel with respect to facilitating Dr. 

Nixon’s evaluation of Ross.

Early reviewed Nixon’s background and found Nixon to be a “learned” and 

“experienced” forensic psychiatrist. He submitted various relevant documents to Nixon to assist 

in the evaluation and discussed the documents over the phone with him. Among others, he 

provided Nixon with the complaint, indictment, case report, Ross’s criminal history, and several 

of Ross’s pro se pleadings. In addition, Early provided pertinent Supreme Court caselaw 

pertaining to competence to represent oneself to Nixon, including the then-recent opinion in 

Indiana v. Edwards, 554 U.S. 164 (2008). Early explained the details of Ross’s case to the 

doctor, and told Nixon that “it was going to be a fairly extensive trial with a lot of documents” 

and would be “a major undertaking.” Early also advised Nixon that he believed Ross to be 

competent, testifying that:

I told him Mr. Ross was very sophisticated in terms of fact analysis, legal 

analysis, arguments. That he could integrate the facts with the law. That he could 

look at a witness sheet and pick it apart in terms of what was wrong with the 

witness and how to attack the witness on cross examination. And that he could 

interface with counsel. He understood the proceedings. And that this was not a 

rudimentary type of knowledge that Mr. Ross had. That he had a very 

sophisticated type of knowledge in terms of dealing with these issues. He was a 

very sophisticated person.

R. 455, PageID# 5436.
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Once Nixon released his report finding Ross to be competent, Early studied it and 

discussed it with the doctor. Early believed Nixon’s evaluation was thorough and complete, and 

that Nixon had reached the correct result. Early sent a copy of Nixon’s report to Ross and 

discussed it with him twice before the hearing. With Nixon, Ross, and Early all in agreement, 

Early had nothing to add to the competency hearing aside from expressing his acceptance of 

Nixon’s conclusion.

This record indicates that, though Early was standby counsel, he provided 

constitutionally adequate representation to Ross leading up to and during the competency hearing

by: adequately considering Ross’s competency on his own, providing information to aid Nixon 

in making an informed analysis, analyzing Nixon’s completed report, and preparing for the 

hearing. Further, it is apparent that Early’s decision not to contest the report was based on his 

agreement with it, rather than a belief that he simply had no obligation to do so.

On appeal, Ross argues that Early failed to provide meaningful adversarial testing 

because he abstained from providing information relevant to the issue of competency at the 

hearing and “simply relied on Dr. Nixon’s report.” As a result, according to Ross, “[n]obody 

actually got up and argued that Mr. Ross was incompetent,” and “Early did not provide this court 

what it required.” But Early did not “simply rely” on the report. Rather, he provided Nixon with 

pertinent documents and his own perspective, which happened to be in accord with Nixon’s final 

report. Early had no duty to argue that Ross was incompetent simply for the sake of playing 

devil’s advocate and airing that perspective in court, given that Early, Nixon, and Ross himself 

had all independently concluded that Ross was indeed competent.

Ross also argues that Nixon presented the wrong legal standard in his report, but this too

is unavailing. Though Nixon’s report does not explicitly address Indiana v. Edwards in its 
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discussion of the mental competence standard for waiving counsel, the report directly quotes the

American Psychiatric Association’s position—quoted approvingly in Edwards—that:

[d]isorganized thinking, deficits in sustaining attention and concentration, 

impaired expressive abilities, anxiety, and other common symptoms of severe 

mental illnesses can impair the defendant’s ability to play the significantly 

expanded role required for self-representation even if he can play the lesser role 

of represented defendant.

Edwards, 554 U.S. at 176. Nixon’s report concludes that Ross “is not currently demonstrating 

any of the above stated symptoms as outlined by the American Psychiatric Association.” This 

demonstrates that Nixon was aware of Edwards’s discussion of a heightened standard of 

competence for defendants seeking to represent themselves at trial, and found that Ross had met 

it.

With the benefit of a sufficient record, we now AFFIRM Ross’s conviction.