United States v. Reynolds

United States Court of Appeals
For the First Circuit

No. 09-2504

UNITED STATES OF AMERICA,

Appellee,

v.

BONNY L. REYNOLDS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Boudin, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.

Alan J. Black, by Appointment of the Court, for appellant.
Renée M. Bunker, Assistant U.S. Attorney, with whom Thomas E.
Delahanty II, United States Attorney, was on brief for appellee.

May 17, 2011

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 STAHL, Circuit Judge. A grand jury charged Bonny

Reynolds with knowingly possessing two firearms after having been

committed to a mental institution, in violation of 18

U.S.C. § 922(g)(4); and, because the serial number on one of the

firearms was obliterated, knowingly possessing a firearm with an

obliterated serial number, in violation of 18 U.S.C. § 922(k).

After the district court determined that she was sufficiently

competent, Reynolds opted for what became a one-day bench trial and

was found guilty as charged. The district court sentenced Reynolds

to a two-year term of imprisonment followed by three years'

supervised release. Reynolds raises four issues on appeal, all of

which relate, at least in part, to her competency. Specifically,

she argues that, because of her mental infirmities, (1) she should

not have been found competent to stand trial, (2) she did not

voluntarily consent to the firearms search, (3) the judge could not

be impartial and should have recused himself, and (4) she did not

voluntarily waive her right to a jury trial. We affirm.

I. Background

A. Search and Seizure Incident1

At 11:00 A.M. on May 2, 2006, two uniformed police

officers responded to investigate a call by Philip Bradford

1
Upon review of a denial of a motion to suppress, we recount
the facts "'as the trial court found them, consistent with record
support.'" United States v. Andrade, 551 F.3d 103, 106 (1st Cir.
2008) (quoting United States v. Lee, 317 F.3d 26, 30 (1st Cir.
2003)).

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complaining of an unwelcome woman in his residence. When the

officers arrived, Mr. Bradford explained to them that he had

initially given the woman, Reynolds, permission to stay at his

home, but that he wanted Reynolds to leave because she had failed

to contribute to the rent. Although Officer Scott Harris believed

the problem was a civil rather than a criminal matter, with Mr.

Bradford's permission, he and his partner entered the home to

continue their investigation.

Mr. Bradford told the officers that Reynolds had two

unloaded firearms, and so the officers drew their guns when they

proceeded towards the back bedroom where Mr. Bradford indicated

Reynolds was living. Upon reaching the bedroom, Officer Harris

knocked on the door and heard a woman inside say, "Come in." The

officers entered and saw Reynolds lying on the bed. Officer Harris

asked Reynolds whether she had any guns. Reynolds answered yes and

pointed to the headboard behind her. The guns were not visible.

Without asking permission, Officer Harris walked towards the

headboard, opened a compartment within, and upon seeing the guns,

removed them.

After securing the firearms, Officer Harris ran Reynolds'

name through dispatch and discovered that one month prior, she had

been involuntarily committed to a mental hospital for psychological

evaluation. As a result of the statutory prohibition of her

possession, see 18 U.S.C. § 922(g)(4), the officers seized the

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weapons over Reynolds' protests and left. At no time was Reynolds

placed under arrest, handcuffed, or physically searched. On

December 11, 2007, a grand jury indicted Reynolds on the two

firearm charges.

B. The Proceedings Below

Reynolds' claims on appeal implicate various proceedings

that occurred in the district court, which we detail here as

relevant.

1. First Competency Hearing

Following a series of missteps by Reynolds after her

arrest and arraignment, including repeated violations of her

conditions of release, subsequent re-arrests, and her failure to

appear at a motions hearing, the government moved pursuant to 18

U.S.C. § 4241 to determine whether Reynolds was competent to stand

trial. Reynolds' counsel at the time assented to the government's

motion. The magistrate judge granted the motion and, at defense

counsel's request, ordered Dr. Diane Tennies to evaluate Reynolds

and to file a report with the court.

Dr. Tennies' report concluded that although Reynolds

could understand the nature of the criminal proceedings, she was

unlikely to make informed decisions necessary to assist properly in

her defense. She explained, however, that Reynolds' background

indicated that Reynolds "stabilizes quickly" when properly treated.

The magistrate judge reviewed Dr. Tennies' report and held a

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hearing during which both Dr. Tennies and Reynolds testified.

Based on this information, the judge recommended that the district

court find Reynolds incompetent to proceed to trial at the present

time, but that she could become competent in the near future with

proper treatment. Neither party filed any objections. On July 30,

2008, the district court accepted the recommended decision and

ordered Reynolds committed to a suitable facility for

hospitalization pending further assessment. Reynolds' commitment

was to the Federal Medical Center, Carswell ("Carswell") located in

Fort Worth, Texas.

2. Second Competency Hearing

On February 2, 2009, the district court received a

letter from the Carswell warden accompanied by a report written by

forensic psychologist Dr. Leslie Powers and reviewed by chief

psychologist Dr. Robert Gregg, which concluded that Reynolds'

competence was restored. Specifically, the report explained

that Reynolds had "a good understanding of the role and function of

. . . the Judge, jury, prosecution, her attorney, and witnesses,"

that she "accurately described the different plea options," that

Reynolds believed "that her attorney was working in her best

interest," and that she could ask "for clarification if she did not

understand something her attorney was saying or something said in

the Courtroom." In view of the report, the district court ordered

a second competency hearing. Counsel attended a conference with

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the court prior to the hearing, wherein defense counsel stated that

he had met with Reynolds several times and that she was "in good

shape." He explained that he would not be contesting competence.

The district court began the hearing by asking Reynolds

several questions to assess her demeanor and presentation and to

determine whether she was competent. Reynolds explained to the

court that she understood "exactly" the proceedings being held, and

she stated that she and her lawyer had discussed the issues

involved, which defense counsel confirmed. Throughout the hearing,

the court continued to check Reynolds' understanding of the

proceedings, and each time, Reynolds assured the court that she

followed. She conferred with defense counsel several times and

expressed her wish to exercise her right to allocute.

During her allocution, Reynolds stated that she was

mistreated by both personnel and fellow patients while in custody,

and that her problems were physical and not psychological.

Reynolds then proceeded to discuss the circumstances surrounding

the charges. Both defense counsel and the court interrupted

Reynolds to tell her that she "shouldn't talk about the case," to

which Reynolds responded, "Why? . . . I don't have anything to

hide." Defense counsel conferred with Reynolds and then explained

on record that anything Reynolds said "could ultimately be

counterproductive," but Reynolds continued.

Reynolds stated that she removed two firearms from her

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mother's house because a neighbor, who was a felon, had put them

there "and the serial numbers were scratched off of them." She

said that she was intending to take the weapons to the police

station but that one of her roommates learned of the guns and

called the sheriff's department. Reynolds explained that a police

officer then came into her room without knocking and asked if she

had guns, to which she responded affirmatively, showing them to

him. Reynolds said that the officer took the guns and arrested

her. Reynolds stated that she did not see how she broke the law

since she was helping her mother.

When Reynolds finished speaking, the district court

accepted the Carswell forensic report without objection. It then

stated that, in view of the report and its observations of Reynolds

during the hearing, Reynolds was competent to stand trial.

Specifically, it stated that Reynolds had "sufficient present

ability to consult with her attorney with a reasonable degree of

rational understanding," and that she had a "rational, as well as

factual, understanding not only of the proceedings against her, but

also the possible consequences of the proceedings." Although the

court found that Reynolds would continue to be competent in the

future, it stated that it would "remain vigilant regarding that

issue." Neither party objected.

3. Motion to Suppress

Prior to her first competency hearing, Reynolds filed a

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motion to suppress the firearms seized from her bedroom. Because

of Reynolds' competency concerns, however, a decision on the motion

was delayed. After the district court found Reynolds competent to

face the charges against her, it rescheduled a motion hearing.

In her suppression motion, Reynolds argued that she had

not consented to the search of her headboard. Specifically, she

contended that when Officer Harris asked whether she had any

firearms, she understood his question to concern only the existence

of the weapons, and she did not know that the officer intended to

search for and seize them. The government argued that Reynolds

gave consent for the search and that her consent was voluntary.

At the motion hearing, Officer Harris was the only

witness; defense counsel stated that he reviewed with Reynolds her

right to testify, but that she chose to "follow[] [his] advice" and

not take the stand. The court then asked the parties whether they

wished to file supplemental memoranda before the court ruled on the

motion. Neither party offered additional materials nor suggested

that the court incorporate evidence admitted during the competency

hearings into the suppression proceedings.

On April 21, 2009, the district court denied Reynolds'

motion. It found that Reynolds provided implied consent for

Officer Harris to search the headboard. By pointing to the

headboard in response to the officer's question asking whether

Reynolds had any weapons, Reynolds demonstrated that she knew the

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officer intended to find the firearms. With respect to

voluntariness, the court concluded that, upon consideration of the

totality of circumstances, there was no showing that Reynolds' will

was overborne by overtly coercive police conduct. In addition, it

held that even though Reynolds had been committed to a mental

institution one month before the search and that an indication of

a defendant's mental deficiency weighs against voluntariness, the

parties did not raise this issue or provide the court with any

guidance as to how to interpret Reynolds' prior commitment or

history of mental illness. With no showing that Reynolds was

affected by an underlying illness, nor direct evidence regarding

her mental capacity at the time of the search, the court found that

the factor did not defeat Reynolds' voluntariness.2

4. Change of Plea Hearing

Shortly after the district court denied Reynolds' motion

to suppress, her counsel moved to withdraw from representation.

The district court granted the motion and appointed Reynolds new

counsel. Reynolds then entered a plea agreement with the

government, and the district court convened a change of plea

hearing on July 24, 2009. At the hearing, the court asked Reynolds

multiple questions to determine her competence. It also asked

2
Reynolds also argued in her motion that officer safety
concerns did not justify the seizure of the firearms and that the
subsequent examination of one of the guns to recover the
obliterated serial number was unlawful. The district court
rejected both contentions, and neither is at issue on appeal.

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several times whether Reynolds understood the proceedings, to which

Reynolds responded affirmatively. It found Reynolds competent to

proceed with the plea.

The plea hearing, however, altered course and became a

trial scheduling conference because Reynolds stated that she did

not believe she was guilty; she simply wanted to speed up the

proceedings to "get out of jail" more quickly. The court explained

that it could not accept her plea under those circumstances, but

that timing was not an issue and she could proceed to trial in

short order. Defense counsel then told the court that Reynolds was

considering the possibility of a bench trial. The court stated

that a bench trial would not necessarily occur more quickly than a

jury trial and that, regardless of the trial requested, it could

get underway in the next few weeks. The court worked with counsel

to set a tentative schedule, with only three days' difference

between the start of a bench or jury trial. When the court noted

that Reynolds seemed to prefer a jury-waived trial, Reynolds

interjected, "Excuse me. Did you say jury trial?" The court

clarified that it had said "jury-waived" to which Reynolds

responded, "Oh, okay."

5. Bench Trial and Sentencing

One week after the plea hearing, the bench trial began.

Before proceeding, the court reviewed with Reynolds the waiver of

her right to a jury trial to ensure that she understood the waiver

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and that it was voluntary. Reynolds confirmed that she understood

that she was entitled to a jury trial and to participate in jury

selection. She also confirmed her understanding that upon

acceptance of her jury waiver, the district court would decide her

innocence or guilt. The court verified that Reynolds had discussed

with counsel her right to a jury trial, along with the advantages

and disadvantages of proceeding with one. Reynolds told the court

that she had read, understood, and voluntarily signed her waiver of

a jury trial. Therefore, the court approved the waiver, finding

that Reynolds "knowingly and voluntarily waived her right to trial

by jury."

Officer Harris testified at trial, as did an agent with

the Bureau of Alcohol, Tobacco, and Firearms. Reynolds also

testified at trial. With respect to the charges against her, she

stated that she did not "look[] over th[e] firearms to find the

serial numbers," nor did she purposefully remove the serial number

on one of the guns. Several pieces of evidence and stipulations

were entered into evidence without objection, including the

transcript from the second competency hearing.

The court found Reynolds guilty of the two charges. In

doing so, it relied in part on Reynolds' allocution during her

second competency hearing, specifically her statements explaining

that she had taken the guns from her mother's house because the

serial numbers had been removed.

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 Three months later, the court sentenced Reynolds. It

first determined that Reynolds was competent to be sentenced, and

then it sentenced her to twenty-four months' imprisonment followed

by three years of supervised release. This appeal followed.

II. Analysis

Reynolds raises four issues on appeal, which we address

in turn.

A. Reynolds' Competence

Reynolds contends that the district court erred by

finding her competent to stand trial during the second competency

hearing. It is well established that the conviction of an

incompetent defendant violates due process. United States v.

Giron-Reyes, 234 F.3d 78, 80 (1st Cir. 2000) (citing Pate v.

Robinson, 383 U.S. 375, 385 (1966)). To be found competent, a

defendant must have both "sufficient present ability to consult

with his lawyer with a reasonable degree of rational understanding"

and "a rational as well as factual understanding of the proceedings

against him." Dusky v. United States, 362 U.S. 402, 402 (1960).

Congress incorporated this standard into 18 U.S.C.

§ 4241, which establishes the procedures for determining a criminal

defendant's competence. Pursuant to § 4241, a defendant or the

government may file a motion for a hearing to determine the mental

competency of the defendant. Id. § 4241(a). The court will grant

the motion or, on its own initiative, order such a hearing "if

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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." Id.

After the hearing, if

the court finds by a preponderance of the
evidence that the defendant is presently
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, the court shall commit the defendant
to the custody of the Attorney General. The
Attorney General shall hospitalize the
defendant for treatment in a suitable
facility.

Id. § 4241(d).

The statute also contemplates a defendant's restored

competence. Pursuant to § 4241(e), after a defendant's commitment,

the director of the treating facility must notify the court when he

or she determines that the defendant has regained competency.

Thereafter, the court must hold another hearing to determine the

defendant's competence. Id.; see also Giron-Reyes, 234 F.3d 78.

At the hearing, the defendant "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." 18 U.S.C.

§ 4247(d).

Upon this second hearing, if

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 [t]he 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 consequences of the proceedings
against him and to assist properly in his
defense, the court shall order his immediate
discharge from the facility in which he is
hospitalized and shall set the date for trial
or other proceedings.

Id. § 4241(e).

Reynolds raises two challenges to the district court's

finding that her competency had been restored. First, she argues

that her behavior and comments during the second competency hearing

belied the court's determination. She points to the fact that at

the hearing, she spoke of alleged abuses she endured while in

custody, made admissions when discussing the search and seizure

incident against the advice of both the court and counsel, and

stated that she did not "see how [she] broke the law at all" since

she believed she was helping her mother. Second, she asserts that

the court's procedures during the hearing were infirm and that, at

a minimum, the district court should have required the Carswell

doctors who certified that she had regained competence to have

testified and been subject to cross-examination by both counsel and

the district court.

Typically, we review a district court's determination of

competence under a clearly erroneous standard. United States v.

Wiggin, 429 F.3d 31, 37 (1st Cir. 2005). Reynolds concedes,

however, that she did not raise her challenge at any time below,

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and that plain error review controls. See United States v. Muriel-

Cruz, 412 F.3d 9, 11 (1st Cir. 2005) (applying plain error review

to unpreserved claim of improper competency hearing procedures);

Giron-Reyes, 234 F.3d at 80 (applying plain error review to

unpreserved claim that after defendant found incompetent, court

must hold second competency hearing and find the defendant mentally

fit before proceeding with the case). Under plain error review, we

reverse only if (1) "an error occurred (2) which was clear or

obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity, or

public reputation of judicial proceedings." United States v.

Landry, 631 F.3d 597, 606 (1st Cir. 2011). In United States v.

Figueroa-González, 621 F.3d 44, 47 & n.3 (1st Cir. 2010), we

acknowledged that "[w]hether a waiver would be valid if the

defendant were incompetent might be debated." Id. (citing Pate,

383 U.S. at 384 ("[I]t is contradictory to argue that a defendant

may be incompetent, and yet knowingly or intelligently ‘waive’ his

right to have the court determine his capacity to stand trial.")).

Here, however, the issue is inconsequential because Reynolds' claim

fails under either standard of review.

First, the district court did not err in finding Reynolds

competent. In making its decision, the court relied on multiple

pieces of evidence that favored its determination. It considered

the unobjected-to, lengthy forensic evaluation conducted by the

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Carswell clinical staff who treated and evaluated Reynolds for four

months and who found Reynolds restored to competency. See Muriel-

Cruz, 412 F.3d at 13 ("[C]ertificates [from mental facilities

noting a defendant's recovery] unquestionably constitute competent

evidence of a defendant's mental condition."). It also considered

defense counsel's independent assessment that Reynolds was in "good

shape" and that he had no reason to contest competency. See Medina

v. California, 505 U.S. 437, 450 (1992) ("[D]efense counsel will

often have the best-informed view of the defendant's ability to

participate in his defense."); Muriel-Cruz, 412 F.3d at 13

("[D]efense counsel enjoys a unique vantage for observing whether

her client is competent.").

In addition, the district court heard from Reynolds

herself, and it judged Reynolds' abilities first-hand. Reynolds

told the court that she understood "exactly" the proceedings being

held and that she had discussed the issues with her lawyer. She

conferred with her counsel during the hearing, answered the court's

questions, and understood that she had a right to allocute. At no

point was the court presented with any conflicting judgments as to

Reynolds' competency. Indeed, even though Dr. Tennies concluded at

the first competency hearing that Reynolds was not competent to

stand trial, she explained that Reynolds "stabilizes quickly" and

could be remediated "within a period of weeks even."

Reynolds claims that the remarks she made during her

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allocution required the court to find that she was mentally unfit,

but we are unpersuaded. Strange remarks or behavior do not in

themselves necessitate a finding of incompetence. See United

States v. Lebrón, 76 F.3d 29, 32 (1st Cir. 1996) (finding

"irrational and outrageous behavior" did not require finding of

incompetence); see also Jermyn v. Horn, 266 F.3d 257, 292-95 (3d

Cir. 2001) ("strange behavior" did not require court to order sua

sponte competency evaluation). Further, although Reynolds'

admissions during her allocution may have ultimately been used

against her, they alone do not prove that she could not assist in

her own defense. "Competent people can and do make decisions which

others consider irrational." Wiggin, 429 F.3d at 37-38; see also

United States v. Moussaoui, 591 F.3d 263, 293-94 (4th Cir. 2010)

(finding no error in district court's determination that defendant

was competent despite pleading guilty against the advice of

counsel). Reynolds' comments were ill-advised, but the district

court was confronted with several strong pieces of evidence

confirming that Reynolds understood the proceedings against her and

could assist in her defense. The expert report said as much, both

defense counsel and the government agreed, and Reynolds' behavior

during the hearing — including her repeated conferences with

counsel, understanding of her right to allocute, and interaction

with the court — evidenced her sufficient mental state. Under

these circumstances, we can find no error in the court's conclusion

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that Reynolds' competency was restored.

Second, with respect to Reynolds' argument that the court

was required to cross-examine the psychiatric personnel at Carswell

who found Reynolds competent, we have disposed of this argument in

our prior case law. As we explained in United States v. Muriel-

Cruz, 412 F.3d at 14, the district court does not have an

independent duty to summon and cross-examine the experts who

determine that a defendant has regained competence. "Subsections

4241(e) and 4247(d) plainly contemplate that the issue of

defendant's competency vel non is to be resolved through the normal

workings of the adversarial process." Id.

B. Motion to Suppress

The Fourth Amendment protects against warrantless

searches unless the search comes within "one of the 'few

specifically established and well-delineated exceptions' to the

warrant requirement." United States v. Forbes, 181 F.3d 1, 5 (1st

Cir. 1999) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973)). A consensual search is such an exception. Id. Consent

to a search may be express or inferred. United States v. Winston,

444 F.3d 115, 121 (1st Cir. 2006). For consent to be valid, it

must also be voluntary. Id. "'The existence of consent and the

voluntariness thereof are questions of fact to be determined from

all the circumstances surrounding the search.'" Id. (quoting

United States v. Miller, 589 F.2d 1117, 1130 (1st Cir. 1978)).

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Voluntariness must be proved by the government, and it is a

question of fact that turns on an evaluation of multiple factors,

including the consenting party's age, education, experience,

intelligence, and knowledge of the right to withhold consent.

United States v. Dunbar, 553 F.3d 48, 57 (1st Cir. 2009). Further

considerations include whether the party was advised of her

constitutional rights or whether the consent was obtained by

coercive means. Id.

Reynolds challenges the district court's denial of her

motion to suppress the firearms. She argues first that her answer

affirming that she had weapons and her gesture towards the

headboard did not constitute implied consent. Second, she contends

that, to the extent that she did consent to the search, her consent

was not voluntary because of her mental infirmities, which the

district court should have considered.

When reviewing a challenge to the district court's denial

of a motion to suppress, we review factual findings for clear error

and accord de novo review to conclusions of law. United States v.

Mohamed, 630 F.3d 1, 4-5 (1st Cir. 2010). We will affirm the

denial of the motion "'so long as any reasonable view of the

evidence supports it.'" Id. (quoting United States v. Bater, 594

F.3d 51, 55 (1st Cir. 2010)). Arguments related to the

unlawfulness of a search that were not raised to the district

court, however, are considered waived or forfeited and are reviewed

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at most for plain error. See United States v. Genao, 281 F.3d 305,

309 & n.4 (1st Cir. 2002) (finding defendant waived his argument

that search was involuntary because he did not raise voluntariness

challenge to the district court).

Here, we dispose of Reynolds' challenges. With respect

to her first argument, we hold that, although the issue may be

debatable, the district court did not clearly err in finding that

Reynolds gave the police officer implied consent to search the

headboard. It was reasonable for the district court to find that

Reynolds' gesture to the headboard when answering "yes" to whether

she had weapons demonstrated that Reynolds understood the police

officer intended not only to learn of the existence of the weapons,

but also to find them. See Winston, 444 F.3d at 121-22 (finding

district court clearly erred by concluding that defendant did not

impliedly consent to search of nightstand when police officers

asked defendant for identification, defendant told them his

identification was in the bedroom nightstand, and defendant

gestured to nightstand with his shoulder); Genao, 281 F.3d at 309-

10 (finding no clear error regarding implied consent to search

third floor apartment when defendant volunteered that he had a key

to the apartment and showed the police how the key worked).

Next, with respect to Reynolds' claim that the court

erred by finding her consent voluntary and by not considering fully

her mental competence, we reject it. First, the argument was never

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presented to the district court and therefore we apply at most

plain error review. See Genao, 281 F.3d at 309 & n.4. Although

Reynolds claims that the parties "assumed" the district court would

consider Reynolds' competency when ruling on the motion, we see no

evidence of this, particularly here where the district court

specifically asked the parties whether there were additional

materials the court should consider before ruling on the motion.

Second, we can find no error. Mental competency is

certainly a factor to be considered when evaluating voluntariness,

but it is one of many a court must balance. See United States v.

Watson, 423 U.S. 411, 424-25 (1976); see also United States v.

Santos, 131 F.3d 16, 19 (1st Cir. 1997) (finding totality of

circumstances indicated confession was made voluntarily even though

defendant's competence was a factor in the determination). Here,

the court did consider Reynolds' mental status, but when undergoing

its totality of circumstances evaluation, it found that the factor

alone did not demonstrate involuntariness. The court concluded

that the search incident was minimally coercive and that there was

no evidence that Reynolds was affected by any underlying illness

during the time of the search. Indeed, Reynolds was responsive,

lucid, and cooperative with the police officers. Further,

notwithstanding the fact that Reynolds never sought to introduce

evidence of her mental health, even if the court had considered the

forensic reports and Reynolds' demeanor at subsequent court

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proceedings, none of this evidence spoke to Reynolds' mental

capacity at the time of the incident.

C. Sua Sponte Recusal

Section 455 of Title 28 of the United States Code governs

judicial recusals and requires that "[a]ny justice, judge, or

magistrate judge of the United States shall disqualify himself in

any proceeding in which his impartiality might reasonably be

questioned." 28 U.S.C. § 455(a). Reynolds argues that because the

district court judge presided over the second competency hearing

during which Reynolds made admissions of her guilt, the judge could

not be impartial when overseeing the bench trial. Specifically,

she asserts that because she admitted to possessing the firearms

and to knowing that one had an obliterated serial number, the judge

had either predetermined her guilt before the trial or

predetermined her lack of credibility.

This argument proves too much. Since Reynolds makes this

claim for the first time on appeal, plain error review applies, and

Reynolds cannot meet the prejudice prong. The parties stipulated

to the admission of the second competency hearing transcript, which

Reynolds does not now contest, and so any judge presiding over the

bench trial would have considered Reynolds' statements made during

the hearing. Moreover, opinions formed based on evidence

introduced during the course of a case do not per se warrant

recusal. Such opinions are "properly and necessarily acquired in

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the course of the proceedings, and are indeed sometimes (as in a

bench trial) necessary to completion of the judge's task." Liteky

v. United States, 510 U.S. 540, 550-51 (1994).

D. Jury Trial Waiver

Lastly, Reynolds claims that her jury-trial waiver was

not knowingly and voluntarily executed for two reasons. First, she

claims that her mental incompetence prevented her from fully

appreciating her right to a jury trial, as demonstrated by her

preoccupation with the delay that a jury trial might cause.

Second, reformulating her recusal argument, she asserts that her

waiver could not be knowing and voluntary because the district

court did not explain to her that it had previously heard her

admissions related to the charges and would consider these

admissions when deciding whether she was guilty.

The Sixth Amendment provides that "[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury." U.S. Const. amend. VI. A

defendant, however, may waive this constitutional right. Adams v.

United States ex rel. McCann, 317 U.S. 269, 277-78 (1942); United

States v. Leja, 448 F.3d 86, 92 (1st Cir. 2006). To effectuate the

waiver, there must be "the consent of government counsel and the

sanction of the court . . . in addition to the express and

intelligent consent of the defendant." Patton v. United States,

281 U.S. 276, 312 (1930); see also Fed. R. Crim. P. 23(a). Whether

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a waiver was knowingly, voluntarily, and intelligently made

"depend[s] upon the unique circumstances of each case," Adams, 317

U.S. at 278, including the defendant's personal, express waiver in

open court, defense counsel's representations concerning the

waiver, the defendant's presence in the courtroom when the waiver

was discussed, and the extent of the particular defendant's ability

to understand the courtroom discussions regarding jury waiver, see

Leja, 448 F.3d at 93-94.

For preserved claims, "[w]e review factual findings by

the district court for clear error and the determination of whether

a waiver of rights was voluntary de novo." United States v.

Frechette, 456 F.3d 1, 11 (1st Cir. 2006) (internal marks omitted).

Reynolds did not raise her challenge below and so plain error

review arguably applies, but her claim fails under either standard.

Cf. Leja, 448 F.3d at 92 (conducting plenary review because of "the

significance of the constitutional right at issue," although

defendant did not challenge waiver until motion for a new trial).

First, we find no error in the district court's

conclusion that Reynolds was sufficiently competent to voluntarily

waive her right to a jury trial. Reynolds was found to have

regained competence during the second competency hearing, and the

district court continued to confirm Reynolds' competence throughout

the subsequent proceedings in this case, including during the

colloquy wherein Reynolds personally and expressly waived her right

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to a jury trial. Reynolds was present for all discussions

concerning the waiver, and, indeed, it was defense counsel who

initiated discussions regarding the option. Further, Reynolds

confirmed that she preferred a bench trial both implicitly during

the change of plea hearing and explicitly when she executed the

waiver verbally and in writing before the trial began.

Although Reynolds may have been an unsophisticated

defendant, the court clearly articulated the scope of her right to

a jury trial, which Reynolds asserted she understood. It explained

that her waiver meant that she wanted to proceed before the

district court as the judge and jury of the case, and the judge

would determine her innocence and guilt. She agreed that she had

discussed her right to a jury trial with her defense counsel, along

with the advantages and disadvantages of proceeding with one, and

her attorney confirmed these discussions. Reynolds stated that she

did not need more time to decide the issue and that she read,

signed, and understood the waiver. To the extent that Reynolds was

concerned with any delay brought on by a jury trial, the district

court explained that a jury trial would not necessarily take longer

and the timing difference between the two would be a matter of

days. Under such circumstances, we cannot conclude that Reynolds'

mental capacity undermined her voluntary waiver of a jury trial.

Nor do we find that Reynolds' waiver was involuntary

because the district court did not explicitly inform Reynolds that

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it would consider the admissions she made during the second

competency hearing. As we have previously held, "The type of

information . . . which the defendant must possess in order to make

a knowing and intelligent waiver of the right to a jury trial

relates to his knowledge of his constitutional rights." United

States v. Kelley, 712 F.2d 884, 888 (1st Cir. 1983) (finding jury

trial waiver was valid because defendant was aware of his rights

even though judge did not disclose that he had previously

authorized an extension of a wiretap on defense counsel). Here,

the district court made clear to Reynolds the nature of the right

involved. It explained the importance of the right and the

implications of the waiver. Nothing more was required. See id. at

888-89. Even so, the record demonstrates that the district court

did warn Reynolds about her statements. During the second

competency hearing, it cautioned Reynolds against discussing the

charges, and Reynolds' counsel informed her that anything she said

could be used against her. We therefore find no error.

III. Conclusion

For the foregoing reasons, we affirm the district court's

denial of Reynold's motion to suppress, and we affirm Reynold's

conviction.

So ordered.

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