United States Court of Appeals

For the Eighth Circuit

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No. 11-3195

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Steven M. Evans

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: April 20, 2012

 Filed: August 23, 2012

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Before LOKEN and SHEPHERD, Circuit Judges, and GERRARD , District Judge. 1

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SHEPHERD, Circuit Judge.

Steven Evans was indicted for unlawfully attempting to remove his children

from the United States, in violation of 18 U.S.C. § 1204(a). On request of Evans’s

The Honorable John M. Gerrard, United States District Judge for the District 1

of Nebraska, sitting by designation.
counsel, the district court ordered that Evans be detained to undergo a competency

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evaluation as allowed by 18 U.S.C. § 4241(b). Based on the competency evaluation,

the court found that Evans was not competent to proceed with the trial and ordered

that he be hospitalized under section 4241(d) for a period not to exceed four months

to determine whether there was a substantial probability that Evans would attain

capacity to stand trial in the foreseeable future. Evans filed this appeal challenging

his commitment on grounds that the court did not provide him with a “legal,

constitutionally adequate competency hearing under title 18 U.S.C. § 4241(c).” We

affirm. 

I.

On April 9, 2011, at approximately 10:00 a.m., Officer Steven Crume of the

Lee’s Summit, Missouri Police Department arrived at the home of Judith Evans,

Evans’s mother, in response to an Amber Alert that stated two children had been

abducted by their father. Judith Evans informed Officer Crume that her two

grandchildren were missing. She told the officer that a court order in her son’s

divorce case required that she or her husband be present at any time that her

grandchildren were in the presence of Evans. Judith Evans told Officer Crume that

she had seen the children at 10:30 p.m. the night before but had not seen them that

morning; her son was also missing. Later that day, the Lee’s Summit Police

Department was contacted by Canadian officials who stated that they had

apprehended Steven Evans and the children at the United States-Canadian border. 

Evans was arrested, and a grand jury returned an indictment charging Evans with

knowingly removing his two children, who had not yet attained the age of sixteen

years, from the United States to Canada with the intention to obstruct the lawful

The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District 2

Court for the Western District of Missouri, adopting the report and recommendations

of the Honorable Sarah W. Hays, United States Magistrate Judge for the Western

District of Missouri. 

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exercise of parental rights of the children’s mother, in violation of 18 U.S.C.

§ 1204(a). 

II.

The court may order a competency hearing at any time after the commencement

of a prosecution but before sentencing to determine if a defendant is competent to

continue with criminal proceedings against him. 18 U.S.C. § 4241(a). At Evans’s

detention hearing, his attorney made an oral motion for a competency examination

as allowed by section 4241(a). The court granted the motion. Evans underwent a

competency evaluation, and the court held a competency hearing. At the beginning

of the competency hearing, defense counsel informed the court that Evans wished to

represent himself at the hearing. The court informed Evansit had to proceed with the

competency hearing before making a ruling on whether Evans could represent

himself. At the hearing, the Government introduced the report of Dr. Ron

Nieberding, a licensed clinical psychologist. Evans’s counsel stated that Evans

disputed some of the factual findings included in the report and also believed certain

relevant information was not included in the report, but Evans stipulated through

counsel that the report reflected what Dr. Nieberding’s testimony would be if he

testified. Dr. Nieberding’s report stated that there was “significant evidence to

suggest that [Evans] may not [have been] competent to proceed to a criminal

adjudication” at that time. Evans did not offer any evidence at the hearing. At the

close of the hearing, Evans spoke on his own behalf and stated that he did not wish

to represent himself but instead requested new counsel because he did not believe his

counsel had adequately explained the competency-review process to him. Evans also

told the court that there was additional evidence that he would have liked to have

given to Dr. Nieberding, but the doctor “seemed very reluctant” to entertain it. Evans

did not identify what evidence he would have had Dr. Nieberding consider. The court

informed Evans that it would not rule on his request for new counsel before first

making a competency determination.

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After Evans’s competency hearing, the magistrate judge issued a report and

recommendation, finding that Evans was incompetent because he was “presently

suffering from a mental disease or defect rendering him unable [] to understand the

nature and consequences of the proceedings against him or properly assist in his

defense.” The magistrate judge recommended that Evans be hospitalized pursuant

to section 4241(d)(1) for a reasonable time, not to exceed four months, to determine

whether there was a substantial probability that Evans would attain capacity to

proceed to trial in the foreseeable future. The magistrate judge based her

recommendation on Dr. Nieberding’s report, noting that the report was the only

evidence introduced at the competency hearing. 

Prior to the district court’s ruling on the report and recommendation, Evans

filed multiple pro se motions including motions to suppress the psychological

evaluation and to have it stricken from the record. The district court denied Evans’s

motions, and it instructed him that all future motions should be filed by his counsel. 

The court adopted the report and recommendation and ordered that Evans be

committed to the custody of the United States Attorney General for hospitalization

and treatment pursuant to section 4241(d) for a reasonable period of time, not to

exceed four months, to determine whether there was a substantial probability that

Evans would attain capacity to stand trial within the foreseeable future. Evans

appeals this order, arguing that he was denied a legal and constitutionally adequate

competency hearing. 

III.

Since the filing of Evans’s appeal, Evans has completed his commitment

pursuant to the original order, and the district court determined, after a subsequent

competency hearing, that it was substantially unlikely that Evans would be restored

to competency to proceed in the criminal adjudication in the foreseeable future in the

absence of antipsychotic medication. Evans has filed a separate appeal from that

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order. United States v. Evans, No. 12-2498 (8th Cir. filed June 25, 2012); see,

e.g.,Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009) (holding this court may take

judicial notice of other judicial opinions for the first time on appeal); Conforti v.

United States, 74 F.3d 838, 840 (8th Cir. 1996) (“We have held that federal courts

may sua sponte take judicial notice of proceedings in other courts if they relate

directly to the matters at issue.” (internal quotation marks and citation omitted)). 

Before addressing Evans’s argument on appeal, we must address the question

of mootness because “every federal appellate court has a special obligation to

consider its own jurisdiction,” Thomas v. Basham, 931 F.2d 521, 522-23 (8th Cir.

1991), and we have no jurisdiction over appeals that are moot. See Minn. Humane

Soc’y v. Clark, 184 F.3d 795, 797 (8th Cir. 1999). 

“Mootness occurs when the parties ‘lack a legally cognizable interest in the

outcome.’” Olin Water Servs. v. Midland Research Labs., Inc., 774 F.2d 303, 305

(8th Cir. 1985) (citation omitted). A party has a “legally cognizable interest in the

outcome” when he has a “personal stake” in the dispute. See Anderson v. CNH U.S.

Pension Plan, 515 F.3d 823, 826 (8th Cir. 2008). We find that Evansretains a legally

cognizable interest in the adequacy of his first competency hearing because a finding

that the original hearing was inadequate would affect Evans’s current legal status. 

“At any time before sentencing, either party to a federal criminal prosecution may file

a motion for a hearing to determine the mental competency of the defendant.” United

States v. Millard-Grasshorn, 603 F.3d 492, 493 (8th Cir. 2010). After a competency

hearing is conducted under section 4241(c), if the court finds “by a preponderance of

the evidence that the defendant . . . suffer[s] from a mental disease or defect [that

renders] him mentally incompetent[,] . . .the court shall commit the defendant to the

custody of the Attorney General.” 18 U.S.C. § 4241(d). After that determination, the

burden of proof changes, and the defendant will only be allowed to be discharged and

to proceed to trial if the court finds “by a preponderance of the evidence that the

defendant has recovered to such an extent that he is able to understand the nature and

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consequences of the proceedings against him and to assist properly in his defense.” 

18 U.S.C. § 4241(e). For this reason, the competency determination made pursuant

to Evans’s original hearing may impact all subsequent competency determinations. 

Thus, Evans has a personal stake, that is a “legally cognizable interest in the

outcome,” of this appeal, and the appeal is not moot. See Olin Water Servs., 774 F.2d

at 305. 

IV.

Moving to the merits of the appeal, Evans argues “that the District Court erred

by failing to provide him with a legal, constitutionally adequate competency hearing

under title 18 U.S.C. § 4241(c).” “‘Decisions regarding competency hearings are

factual findings that we will affirm unless clearly arbitrary or unwarranted, or clearly

erroneous.’” United States v. Mueller, 661 F.3d 338, 353 (8th Cir. 2011) (citation

omitted), cert. denied, 132 S. Ct. 1951 (2012). Evans argues that he had the requisite

understanding of time, place, and basic knowledge to stand trial; that the

psychological evaluation relied on by the court did not discuss prior evaluations of

Evans that disagreed with each other and with the court; and Dr. Nieberding, on

whose report the court relied in determining Evans was not competent to stand trial,

was not licensed to practice in the State of Missouri and was not an expert.

Though Evans argues that he was competent to stand trial, Dr. Nieberding’s

report directly contradicted that claim, and Dr. Nieberding’s report was the only

evidence introduced at Evans’s competency hearing. Evans argues that Dr.

Nieberding’s report should have considered prior evaluations of Evans; however, Dr.

Nieberding’s report indicates that Nieberding considered several sources of

information in forming his recommendation about Evansincluding: discussions with

Evans’s counsel, the record in the criminal case, Evans’s medical and administrative

records from the Bureau of Prisons, behavioral observations, and interviews with

Evans, among others. Evans has not provided any evidence that these prior

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evaluations exist or evidence indicating their content, nor has he offered any authority

to support his argument that the district court clearly erred by accepting the

psychologist’s report because it did not consider all prior evaluations of the

defendant. Though Evans takes issue with Dr. Nieberding’s certification, Dr.

Nieberding’s report indicated that he is a licensed clinical psychologist, and Evans

refers us to nothing that would call this statement into question. 

Section 4241(c) requiresthat the hearing on competencybe conducted pursuant

to 18 U.S.C. § 4247(d). That provision states:

At a hearing ordered pursuant to this chapter the person whose mental

condition is the subject of the hearing shall be represented by counsel

and, if he isfinancially unable to obtain adequate representation, counsel

shall be appointed for him pursuant to section 3006A. The person shall

be afforded an opportunity to testify, to present evidence, to subpoena

witnesses on his behalf, and to confront and cross-examine witnesses

who appear at the hearing.

18 U.S.C. § 4247(d). The hearing held by the court complied with these

requirements: Evans was represented at the competency hearing by a federal public

defender; the court asked Evans whether he would like to present any evidence, and

Evans, through his counsel, declined; and Evans was allowed to address the court

personally. Evans has not shown that the court erred in crediting the report of Dr.

Nieberding, particularly when that report was the only evidence before the court

regarding Evans’s competency.

Because Evans’s only argument on appeal is that the hearing was inadequate,

his appeal is without merit. To the extent that Evans argues his counsel was

ineffective, “‘[c]laims of ineffective assistance of counsel normally are raised for the

first time in collateral proceedings under 28 U.S.C. § 2255’” rather than on direct

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appeal. United States v. Dubray, 727 F.2d 771, 772 (8th Cir. 1984) (per curiam)

(citation omitted). 

V.

For the foregoing reasons, we affirm. 

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