NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 6 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10334
Plaintiff-Appellee, D.C. No.
2:12-cr-00154-JAM-1
v.
YASIR MEHMOOD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted September 3, 2020
Pasadena, California
Before: SILER,** BERZON, and LEE, Circuit Judges.
Dissent by Judge BERZON
Defendant-Appellant Yasir Mehmood argues that the appellate waiver
contained in his plea agreement is invalid for two reasons: (1) the district court erred
by not ordering a second mental competency evaluation; and (2) restitution was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
ordered in violation of his due process rights. Finding neither of these arguments
warrants reversal, we affirm.
1. Mehmood argues that he demonstrated “reasonable cause to believe
that [he] may [have been] suffering from a mental disease or defect rendering him
mentally incompetent” during the restitution phase of the criminal proceedings.
United States v. Duncan, 643 F.3d 1242, 1249 (9th Cir. 2011) (quoting 18 U.S.C. §
4241(a)). In reviewing the district court’s denial of the motion for a competency
evaluation, “[w]e engage in a comprehensive review of the evidence” and “are not
limited by either the abuse of discretion standard or the clearly erroneous standard.”
Id. at 1247 (quotation marks and citation omitted).
His most compelling evidence in support of the motion for a second
competency evaluation are several notices of hospitalization he filed in the district
court record. Even so, of the notices, only three indicate that Mehmood was treated
for a potential mental health issue. And, of these three, only two indicated that
Mehmood may have been suffering from a psychosis.
These notices of hospitalization do not provide reasonable cause to believe
that Mehmood was suffering from a mental disease or defect that rendered him
mentally incompetent. Of crucial importance, the information contained on the
registration admission forms are simply chief complaints or admitting diagnoses.
There is no evidence that these diagnoses were confirmed by a medical professional
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after additional observation or testing.
Moreover, the record is devoid of any objective medical evidence concerning
Mehmood’s mental health. Even if the August 10, 2018, notice of hospitalization
indicates that Mehmood was admitted for a major depressive episode with psychosis,
there is no evidence regarding the treatment, medications administered, the length
of the hospital stay, or the opinions of medical professionals.
Furthermore, unusual behavior of a pro se defendant cannot be viewed in a
vacuum and is not necessarily indicative of incompetency. See United States v. Neal,
776 F.3d 645, 656-67 (9th Cir. 2015). Mehmood’s unusual behavior during
restitution proceedings must be viewed against the backdrop of his behavior
throughout the criminal proceedings, which included sending harassing letters, filing
over a dozen baseless lawsuits, and making false allegations of sexual assault. As
such, his behavior during the restitution proceedings is not indicative of
incompetence.
Additionally, there is also an allegation that Mehmood claimed not to
recognize or know his long-term standby counsel during correspondence. Still, the
record contains little evidence about the context of this correspondence. Without
more, and particularly in light of Mehmood’s previous behavior, it was reasonable
for the district court to discredit this evidence.
Lastly, Mehmood claimed that he was taking several medications for mental
3 19-10334
health issues, and subjectively opined that he was mentally incompetent. But again,
these subjective claims and opinions should be viewed with skepticism based on
Mehmood’s previous behavior. And, in any event, his subjective claims and
opinions are unsupported and therefore fail to provide evidence of incompetence.
In sum, viewing the evidence independently and comprehensively, there is
insufficient evidence to raise reasonable cause concerning Mehmood’s mental
competency during the restitution phase of the proceedings.
2. Mehmood advances two arguments to support his contention that his
due process rights were violated: (1) insufficient evidence to support the award of
restitution, and (2) no restitution hearing by the court.
Initially, while the restitution order is brief, there is ample evidence in the
record to support the district court’s award of restitution. The restitution
memorandum is supported by exhibits and supplemental documentation that include
sample letters sent to victims and responses, such as victim impact statements, many
providing account numbers or referencing spreadsheets of account numbers
involved in the financial loss.
This is not a case where the district court relied on evidence that was too
conclusory to support its award of restitution. Mehmood seems to take issue with
the district court’s failure to provide a detailed explanation of the evidence it
considered when awarding restitution. However, the district court “set forth an
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explanation of its reasoning, supported by the record” that was not “too summary
and too conclusory to be sufficiently reliable in the face of [Mehmood’s]
objections.” United States v. Waknine, 543 F.3d 546, 556-57 (9th Cir. 2008).
Moreover, an in-person restitution hearing was not required. When a district
court indicates that a restitution hearing will not be held, it must provide notice and
a pre-deprivation opportunity for a defendant to raise arguments opposing
restitution. See Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (explaining in the context
of prejudgment replevin statutes that parties have a right to notice and an opportunity
to be heard at a meaningful time and in a meaningful manner). That is precisely
what happened here. After rescheduling the restitution hearing several times, the
district court ordered Mehmood to respond to the government’s restitution
memorandum and reserved the right to decide the motion for restitution based on the
parties’ written filings and without a hearing. Mehmood did respond in a lengthy
opposition to the government’s restitution memorandum. At that point, the district
court had all the information it needed to make a determination regarding restitution
and the parties were on notice that the court might do so without a hearing.
Therefore, we find that there are no constitutional infirmities that might
invalidate Mehmood’s appellate waiver.
AFFIRMED.1
1
The government’s motions to supplement the record on appeal, and for judicial
notice, are GRANTED.
5 19-10334
USA v. Mehmood, 19-10334
FILED
OCT 6 2020
BERZON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. I would hold that the district court erred in not
granting the motion for a second mental competency evaluation and remand for
further proceedings.
We review the denial of the motion for a competency evaluation by
“engag[ing] in a ‘comprehensive’ review of the evidence” and “ask whether a
reasonable judge, situated as was the trial judge who denied the motion, should have
experienced doubt with respect to the defendant's competence.” United States v.
Duncan, 643 F.3d 1242, 1247 (9th Cir. 2011). This standard is not as stringent as the
standard of review for a district court’s failure to order a second evaluation or
hearing sua sponte. Cf., e.g., United States v. White, 670 F.3d 1077, 1082 (9th Cir.
2012). As the evidence here is sufficient to give “reasonable cause to believe that
[Mehmood] may [have been] suffering from a mental disease or defect rendering
him mentally incompetent to the extent that he is unable to . . . assist properly in his
defense,” 18 U.S.C. § 4241(a), the district court erred in dismissing the motion for a
further evaluation.
Mehmood’s hospital admissions are, as the majority states, the strongest
evidence supporting a second evaluation. He has provided three admission forms
from Larkin Community Hospital that include admitting diagnoses, one of which is
1
under seal. Two show admitting diagnoses including psychosis: a “major
depressive episode recurrent with psychotic,” and a substantially similar diagnosis
in the sealed document. These documents do not use lay terms, providing
reasonable cause to believe that upon admission, Mehmood showed signs or
discussed symptoms sufficient to indicate to a medical professional that he may be
suffering the diagnosed psychosis. Further, Mehmood was in ICE custody when he
was admitted to the hospital. He would not have been able to walk into an
emergency room to seek treatment entirely on his own volition. Mehmood’s
detention at the time provides reasonable cause to believe that he was presenting
symptoms sufficient to warrant ICE agents taking him to the hospital.
Mehmood has been a difficult litigant throughout this case and in many
others, and he made unusual statements and excessive filings before his restitution
proceedings. But unlike the defendant in United States v. Neal, 776 F.3d 645, 656–
67 (9th Cir. 2015), Mehmood provided recent evidence beyond simply requesting
therapy—in addition to his nonsensical briefings and difficult trial behavior—to
support the need for another evaluation. 1 A new competency evaluation might not
have shown a significant change in Mehmood’s mental health. But the purpose of
having a competency hearing is to discover facts when there is some presentation,
1
In addition, Neal reviewed the district court’s failure to order a competency
hearing sua sponte under a plain error standard, which is stricter than the standard
we apply here. 776 F.3d at 655.
2
as there is here, that gives rise to a reasonable basis to believe that there is a
competency problem. The majority’s conclusion to the contrary, faulting
Mehmood for not providing more detailed medical information, confuses the
standard applicable to review of a merits determination of competency with that
applicable at this procedural stage.
Mehmood’s first hospital admission in which the diagnosis included
psychosis occurred on August 1, 2018. He subsequently filed his 365-page
opposition to the government’s restitution motion, requested reappointment of his
standby counsel, and sought several continuances to the scheduled hearing date,
after which the district court made the restitution determination without a hearing.
If Mehmood was incompetent during this part of the restitution phase, it would
have affected his ability to participate in his own defense in the briefing, properly
assist his standby counsel, and be present at a restitution hearing.
As to the appeal waiver on which the government heavily relies, such a
waiver does not apply if the sentence “exceeds the permissible statutory penalty for
the crime or violates the Constitution.” United States v. Bibler, 495 F.3d 621, 624
(9th Cir. 2007). Failure to hold a competency hearing where there is genuine doubt
over a defendant’s competence to stand trial or be sentenced is a violation of the
defendant’s due process rights. See McMurtrey v. Ryan, 539 F.3d 1112, 1115 (9th
Cir. 2008). Because there is genuine doubt in this case that should have led the
3
district court to grant the motion for a further competency evaluation, the appellate
waiver does not bar Mehmood’s challenge to the district court’s denial of that
motion and grant of restitution.
I would therefore reverse the district court’s denial of Mehmood’s motion
for a competency evaluation, vacate the restitution order, and remand to the district
court for further proceedings. I respectfully dissent.
4