United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 2009 Decided April 23, 2010
No. 08-3073
UNITED STATES OF AMERICA,
APPELLEE
v.
FRANCIS PEREZ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00013-JR-1)
Jenifer Wicks, appointed by the court, argued the cause
and filed the brief for appellant.
Leslie Ann Gerardo, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roy W.
McLeese III and Mary B. McCord, Assistant U.S. Attorneys.
Before: GINSBURG, BROWN and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
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GRIFFITH, Circuit Judge: Francis Perez challenges his
drug convictions on two grounds. He argues the district court
erred by failing to order a hearing to evaluate his competency
to stand trial, and he asserts that his trial counsel’s
performance fell short of what is required by the Sixth
Amendment. We reject both arguments and affirm his
conviction.
I.
On September 16, 2006, officers of the Metropolitan
Police Department executed a search warrant for Perez’s
apartment and found him washing a white, powdery substance
down his kitchen sink. The police discovered two kilograms
of cocaine in the kitchen sink, on plates above the kitchen
cabinets, and in a bag in the bedroom closet. The search also
revealed acetone (a bleaching agent to whiten cocaine), an
electronic scale, and approximately $3600 in cash. The police
arrested Perez, and while in custody he admitted, “[T]hose
drugs were given to me by a guy, [so] that I, sell it for the guy
so I could help myself with something, because I can’t work.”
Tr. of Interview of Perez at 12 (Sept. 16, 2006).
Perez pleaded guilty to possession with intent to
distribute 500 grams or more of cocaine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii) (2006), and unlawful
destruction, alteration, or concealment of tangible objects
with intent to obstruct a federal investigation in violation of
18 U.S.C. § 1519. Pursuant to the plea agreement, Perez
signed a proffer acknowledging that he had admitted his
intent to sell the cocaine found in his apartment. Perez also
waived the protection of Federal Rule of Evidence 410 by
agreeing that his plea and the statements he made during the
course of plea negotiations would be admissible against him
in the event of a trial.
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Against the advice of counsel, Perez moved to withdraw
his guilty plea. His lawyer, who told the court the motion was
ill-advised, suggested Perez had difficulty understanding “the
evidence against him,” Tr. at 11 (May 27, 2008), and “certain
abstract concepts” such as “constructive possession and
aiding and abetting,” Tr. at 5, 7–8 (Jan. 24, 2008). He also
speculated that Perez’s desire to withdraw the plea might stem
from “a lack of understanding of certain basic concepts or . . .
a psychological impediment.” Id. at 6.
For his own part, Perez remained, in the words of his
counsel, “very firm” in his desire to withdraw his plea. Id. at
3. Perez told the court, “I was pressured into pleading guilty,
and I wanted to take my case to trial. . . . I have a family, and
I want to have a life with them. Six years [the low end of
Perez’s sentencing guideline range] will be a lot of time. . . . I
know that what they found in the house was not mine. It
belonged to someone else.” Tr. at 12–13 (May 27, 2008).
Perez also told the court he wished to withdraw his plea
because the sentence under the plea would be “too much,”
and, in any event, the cocaine found in the apartment was not
his. Tr. at 8 (Jan. 24, 2008).
The district court considered the matter during the course
of three hearings before eventually granting the motion. Trial
then began on May 28, 2008. Perez faced only the drug count
because the government dropped the obstruction charge. The
government put on evidence that the police found Perez in his
apartment with cocaine, drug paraphernalia, and $3600 in
cash, and that he admitted his intent to sell the drugs. The
government also introduced Perez’s proffer and guilty plea.
Acting against his counsel’s advice a second time, Perez
asserted his right to testify. Just before he took the stand,
Perez, frustrated by his attorney’s handling of the case, asked
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the court to declare a mistrial: “My attorney told me last week
that he wasn’t prepared for trial, that he didn’t have enough
evidence and that he had not prepared for a trial. I need that
evidence to be shown, and he doesn’t have it in his hand.” Tr.
at 198 (May 29, 2008). Perez wanted his attorney to put on
evidence that the cash found in the apartment was from the
sale of his car and that he was leasing the apartment from its
owner. In response, his counsel acknowledged that Perez
“expressed a great deal of dissatisfaction with the way that
this case has gone. He is very upset that certain testimony and
certain items of evidence that he thought would be
exculpatory have not been presented.” Id. at 195. The district
court refused to declare a mistrial.
Upon taking the stand, Perez testified that the cocaine
was not his, but belonged instead to the owner of the
apartment, who stayed there occasionally. He stated that the
drugs found on top of the kitchen cabinets could not have
been his because he could not reach that high due to his leg
amputation. He also maintained that the money found in the
apartment came from the sale of his car. To impeach Perez’s
credibility, the government offered evidence that he had been
arrested again for selling cocaine, even after pleading guilty in
this case.
The jury found Perez guilty, and the district court
sentenced him to 97 months’ imprisonment and 48 months’
supervised release. We have jurisdiction over his appeal under
28 U.S.C. § 1291.
II.
Perez argues that the district court should have ordered a
competency hearing. The Due Process Clause prohibits the
trial of a person who lacks the mental capacity to participate
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in legal proceedings. See, e.g., Pate v. Robinson, 383 U.S.
375, 378 (1966). A criminal defendant is legally incompetent
to stand trial if he lacks “a rational as well as factual
understanding of the proceedings against him” or “sufficient
present ability to consult with his lawyer with a reasonable
degree of rational understanding.” Drope v. Missouri, 420
U.S. 162, 172 (1975); see United States v. Caldwell, 543 F.2d
1333, 1348 (D.C. Cir. 1975). In judging a defendant’s
competence, courts consider “evidence of a defendant’s
irrational behavior, [the defendant’s] demeanor at trial, and
any prior medical opinion on competence to stand trial.”
Drope, 420 U.S. at 180.
In 18 U.S.C. § 4241, Congress created procedures to
safeguard this right. See Medina v. California, 505 U.S. 437,
447 (1992) (“The Federal Government and all 50 States have
adopted procedures that address the issue of a defendant’s
competence to stand trial. See 18 U.S.C. § 4241.”); United
States v. Weissberger, 951 F.2d 392, 395 (D.C. Cir. 1991).
Section 4241(a) requires the district court, on its own motion,
to order a hearing to evaluate a defendant’s competency “if
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.”
18 U.S.C. § 4241(a). Perez argues that his counsel’s
statements questioning his understanding of the case provided
such reasonable cause and that the district court therefore
erred in failing to call for a competency hearing. We review
the district court’s failure to order a competency hearing
under § 4241 for abuse of discretion, United States v. Klat,
156 F.3d 1258, 1263 n.3 (D.C. Cir. 1998), and find none.
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Perez displayed ample understanding of “the nature and
consequences of the proceedings against him.” 18 U.S.C.
§ 4241(a). He showed a familiarity with governing legal
principles. For example, he probed the evidentiary basis of the
government’s case by asking counsel whether the police had
video tapes or audio recordings linking him to the crime. He
knew it was the government’s burden to prove that the
cocaine belonged to him, telling the court that the government
had to prove that the drugs did not belong to the owner of the
apartment. He asked for a mistrial, arguing that his attorney
was unprepared and had not obtained evidence that Perez
thought exculpatory. He also showed a clear appreciation of
the consequences of conviction when he protested that the
likely sentence under his guilty plea would keep him from his
family for too long.
Perez also demonstrated an ability “to assist properly in
his defense.” Id. He actively participated in every stage of the
trial. He even developed his own defense by arguing that the
cocaine belonged to the apartment’s owner and that the
money in the apartment was from the sale of his car. As both
Perez and his attorney told the court, Perez discussed with his
lawyer what evidence might support these arguments, and he
was frustrated when it was not obtained.
Perez tries to make much of his counsel’s statement that
Perez might not understand the nuances of complex legal
concepts. But neither the Constitution nor § 4241 requires that
defendants have such legal acumen. See Caldwell, 543 F.2d at
1348 n.63 (“The phrase ‘to assist in his defense’ we have said
‘does not refer to legal questions involved but to such phases
of a defense as a defendant usually assists in such as accounts
of the facts, names of witnesses, etc.’” (quoting Lyles v.
United States, 254 F.2d 725, 729–30 (D.C. Cir. 1958)). Even
defense counsel’s vague suggestion that Perez might suffer
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from “a psychological impediment,” Tr. at 6 (Jan. 24, 2008),
did not create reasonable cause to believe Perez was
incompetent to stand trial in light of his demonstrated
understanding of the proceedings and engagement with
counsel before and during trial. Although Perez may have
held dubious legal views and pursued an inadvisable strategy,
none of this provided reasonable cause for the district court to
question his competence to stand trial. As the Seventh Circuit
has recognized, “‘persons of unquestioned competence have
espoused ludicrous legal positions,’ but the articulation of
unusual legal beliefs is a far cry from incompetence.” United
States v. Alden, 527 F.3d 653, 660 (7th Cir. 2008) (quoting
United States v. James, 328 F.3d 953, 955 (7th Cir. 2003)).
The statements of Perez’s counsel, considered along with
Perez’s understanding of the proceedings against him and his
ability to assist counsel before and during trial, preclude
reasonable cause to believe Perez was incompetent to stand
trial. The district court’s failure to order a competency hearing
was not an abuse of discretion.
III.
Perez argues that he was deprived of his Sixth
Amendment right to effective assistance of counsel. To
prevail, Perez must show his counsel’s conduct was
unreasonably deficient, Strickland v. Washington, 466 U.S.
668, 688 (1984), and that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different,” id. at 694. When a
defendant challenges the effectiveness of his trial counsel for
the first time on appeal, as Perez does here, our “general
practice is to remand for an evidentiary hearing” in the district
court. United States v. Rashad, 331 F.3d 908, 909–10 (D.C.
Cir. 2003). Remand is often necessary because the trial record
8
reflects primarily an inquiry into the defendant’s guilt or
innocence, rather than counsel’s performance. See Massaro v.
United States, 538 U.S. 500, 505 (2003). Nonetheless, we
have no need to remand if “‘the trial record alone
conclusively shows’ that the defendant is or is not entitled to
relief.” Rashad, 331 F.3d at 910 (quoting United States v.
Fennell, 53 F.3d 1296, 1303–04 (D.C. Cir. 1995)). No remand
is warranted here because the record conclusively shows that
Perez cannot prevail on his ineffective assistance claim.
Perez first argues his counsel should have sought a
competency hearing, but we have already determined that the
record shows there was no reasonable cause to believe that
Perez was incompetent to stand trial. Because there was no
reason for the court to believe a hearing was required, there
can be no prejudice in his counsel’s decision not to seek one.
Perez next takes issue with the fact that his counsel
sought the exclusion of the key elements of the government’s
case against him—the cocaine discovered in Perez’s
apartment, Perez’s admission that he intended to sell the
drugs, and the withdrawn guilty plea—through oral, and not
written motions. But oral motions to suppress are expressly
authorized under Federal Rule of Criminal Procedure 47(b),
which permits oral motions “made during a trial or hearing.”
Because the rules treat oral and written motions the same,
counsel was not deficient for offering an oral motion.
Counsel’s remaining alleged deficiencies, assuming they
were, in fact, deficiencies, could not have affected the
outcome of Perez’s trial. The government’s evidence linking
Perez to the drugs was simply too strong. For instance,
counsel’s alleged failure to produce a lease without Perez’s
name may have bolstered Perez’s defense that the drugs
belonged to the apartment’s owner, and evidence that Perez
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had recently sold his car may have provided an alternative
explanation for the cash the police found, but these are, in the
end, only collateral issues. There was no “reasonable
probability” that if such testimony had been presented to the
jury, “the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
IV.
Because the district court lacked reasonable cause to
order a competency hearing, and because the trial record
conclusively establishes that any alleged deficiencies of
counsel did not result in prejudice, the conviction is
Affirmed.