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)).
-2-
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
-3-
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
-4-
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
-5-
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
-6-
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
-7-
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
-8-
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.
-9-
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
-10-
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.
-11-
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
-12-
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
-13-
[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,
-14-
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
-15-
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
-16-
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
-17-
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)).
-18-
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
-19-
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
-20-
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
-21-
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
-22-
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
-23-
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
-24-
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
-25-
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.
-26-