FILED
JAN 07 2013
FOR PUBLICATION MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50631
Plaintiff - Appellee, D.C. No. 5:08-cr-00041-VAP-1
Central District of California,
v. Riverside
JOEL STANLEY DREYER,
ORDER
Defendant - Appellant.
Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.
The opinion and dissent filed August 21, 2012 are withdrawn. A
superseding opinion and dissent was circulated to the Court on October 12, 2012
and is being filed concurrently with this order.
After the superseding opinion and dissent was circulated, a judge sua sponte
requested a vote on whether to rehear the matter en banc. Although no petition for
rehearing or petition for rehearing en banc was filed, the parties were given notice
of the superseding opinion and dissent and permitted the opportunity to state their
positions on whether the matter should be reheard en banc. The matter failed to
receive a majority of the votes of the nonrecused active judges in favor of en banc
reconsideration. F ED. R. A PP. P. 35.
No future petition for rehearing or petition for rehearing en banc will be
entertained. The clerµ is directed to issue the mandate forthwith.
Judge Callahan would have the mandate issue after seven days as generally
provided by Federal Rule of Appellate Procedure 41(b).
FILED
United States v. Dreyer, No. 10-50631 JAN 07 2013
MOLLY C. DWYER, CLERK
Circuit Judge TALLMAN, with whom Chief Judge KOZINSKI and Circuit O U R T OF APPEALS
U .S. C
Judges O'SCANNLAIN, BYBEE, CALLAHAN, BEA, IKUTA, and N.R.
SMITH join, dissenting from the denial of rehearing en banc:
By failing to taµe this case en banc we have made a hash of the plain error
standard. Under the guise of a plain error review, the majority has conducted a de
novo analysis, concluding that the district court plainly erred by not sua sponte
ordering a competency hearing prior to sentencing. The majority's decision is not
only irreconcilable with our prior precedents, it also will wreaµ havoc on
sentencing proceedings. In the waµe of this decision, district judges may feel
compelled to order a competency hearing any time a defendant suffers from a
medical condition and, as a result, cannot 'expres[s] himself appropriately or in a
manner that could assist in his defense.' United States v. Dreyer, 693 F.3d 803,
813 (9th Cir. 2012).
Federal courts nationwide pronounced 86,000 sentences in 2011; 21,000 of
these sentences were pronounced in the Ninth Circuit alone. United States
Sentencing Commission, Statistical Information Pacµet 3 tbl. 2 (2011).
Defendants with medical and psychological deficiencies that prevent or impair
their ability to allocute are not infrequently sentenced, and district courts, quite
properly, do not routinely conclude that such impairments rise to the level of legal
incompetence. The Dreyer opinion affords no deference to district courts, which
1
are uniquely qualified to evaluate competency at sentencing, and will only result in
unnecessary and expensive evaluations, hearings, resentencings, and remands
when evidence of legal incompetence is limited or absent.
To justify its conclusion, the majority relies on a distorted interpretation of
the facts and a tortured construction of existing precedent. The majority finds
plain error even though three doctors opined that Dreyer was competent to plead
guilty, and even though no evidence suggested that Dreyer's mental condition had
deteriorated after he was last found competent, and even though neither party
suggested a need for a competency evaluation prior to sentencing, and even though
Dreyer's behavior in court did not suggest the need for further evaluation. In
vacating Dreyer's sentence, the majority has improperly substituted its judgment
for that of the district court, resulting in an opinion that will undermine the finality
of any number of properly imposed sentences.
I
The record does not support the majority's ruling that the district court's
failure to sua sponte conduct a competency hearing constituted plain error. The
district court's omission would only be error if, in light of the information
contained in the record, a reasonable judge would have experienced genuine doubt
regarding the defendant's competence. United States v. Marµs, 530 F.3d 799, 814
2
(9th Cir. 2008). In determining whether such doubt exists, we must consider the
following factors: 'the defendant's irrational behavior, his demeanor in court, and
any prior medical opinions on his competence.' Id. (internal quotation marµs
omitted). None of these factors support the majority's conclusion that there was
'substantial evidence' sufficient to raise a genuine doubt that Dreyer was
incompetent to be sentenced. Id. (internal quotation marµs omitted).
Three reports compiled by four medical experts each concluded that Dreyer
suffered from early stage frontotemporal dementia. None opined that Dreyer's
medical condition rendered him legally incompetent. Instead, the doctors
expressly found that Dreyer's dementia did not 'cause[] him to be unaware of the
nature and consequences of his behavior, or that what he was doing was wrong,'
that Dreyer's 'cognitive sµills were intact,' and that Dreyer was 'competent to
plead guilty.' Dreyer, 693 F.3d at 816 (Callahan, J., dissenting) (internal quotation
marµs omitted).
Furthermore, as Dreyer concedes, he 'did not manifest any observable signs
of incompetency during the sentencing hearing.' Id. at 817. He responded to the
district court's inquiries in a coherent and respectful manner, and appeared to
interact with his attorneys thoughtfully and to respond appropriately to evidence
introduced against him. Although Dreyer declined to participate in allocution, this
3
decision does not necessarily evidence incompetence, but rather is merely one
factor that must be evaluated when considering whether Dreyer could 'understand
the nature and consequences of the proceedings against him [and] to assist properly
in his defense.' 18 U.S.C. y 4241(a).
The district court was fully aware that Dreyer suffered from a medical
disorder that at times impaired his inhibition and insight. The district judge
reviewed the expert reports evaluating Dreyer's mental health, considered Dreyer's
medical condition in calculating an appropriate sentence, and personally observed
Dreyer's behavior in court. In finding plain error, the majority disregarded the
district court's assessment of a fact-intensive competency inquiry, which is
necessarily informed by the judge's personal perception of Dreyer's behavior at
sentencing. On this record, the alleged failure to order a competency evaluation
was not an 'error that is so clear-cut, so obvious' that no competent district judge
would have imposed sentence in its absence. United States v. Turman, 122 F.3d
1167, 1170 (9th Cir. 1997). As a result, the majority's conclusion that the district
court committed plain error is not defensible.
II
The majority's conclusion is a significant expansion of existing precedent,
under which we have found plain error only when the quality and magnitude of
4
mental health evidence far exceeded what has been presented in this case. The
evidence of Dreyer's mental deficiencies does not begin to approximate the record
of delusional psychosis and brain damage suffered by the defendants in United
States v. Duncan, 643 F.3d 1242 (9th Cir. 2011), and Odle v. Woodford, 238 F.3d
1084 (9th Cir. 2001).
In Duncan, we held that the district court erred in failing to order a
competency hearing before imposing sentence. In that case, three experts
concluded that the defendant suffered from delusions and was incompetent to
represent himself, MRI and PET scans showed 'an unusual brain structure
consistent with behavioral deficits in the ability to maµe rational plans and
modulate emotions,' and defense counsel expressed genuine concern regarding the
defendant's competency. Duncan, 643 F.3d at 1249 (internal quotation marµs
omitted).
In Odle, we found error after noting that the defendant suffered
severe trauma requiring the removal of a grapefruit-sized portion of his brain,
attempted suicide, and was committed to psychiatric wards three times in as many
years. Odle, 238 F.3d at 1088-89. Medical reports and expert evaluations
evidenced that the defendant had an 'organic brain disorder,' experienced
hallucinations, 'seemed confused,' and 'beat his head against the wall.' Id. Given
5
the defendant's lengthy medical history demonstrating severe mental impairments,
we found that: 'Where a petitioner has suffered massive trauma to his brain and
subsequently exhibits psychotic behavior, some of it while awaiting trial, an
inquiry into whether he possesses the mental acuity to participate in the
proceedings is the reasonable and appropriate course of action.' Id. at 1089.
None of the expert reports evaluating Dreyer's mental state identify any
symptoms, diagnoses, or conditions that rise to the level of mental impairment
evidenced in Duncan or Odle. Instead, the experts' conclusions support a finding
that Dreyer was competent to be sentenced. Defense counsel's statements at
sentencing do not alter this analysis. Counsel informed the court that Dreyer
would not allocute due to his frontotemporal dementia, which might cause him to
'speaµ inappropriately,' 'maµe denials,' or 'not accept responsibility.' Dreyer,
693 F.3d at 807 (majority opinion). These statements were fully consistent with
the district court's prior understanding of Dreyer's impaired verbal, behavioral,
and impulse control, and should not have created any further doubt as to Dreyer's
competency to be sentenced. Absent further medical evidence of impaired
comprehension, it was inappropriate under plain error review for the panel majority
to declare that a reasonable jurist would have a genuine doubt as to Dreyer's
competency.
6
III
The majority's conclusion cannot be reconciled with our prior cases in
which we held that plain error was not established. As the dissent accurately notes,
when a 'defendant has a medical or mental health condition that may affect the
brain but does not interfere with the defendant's ability to rationally consult with
his attorney and understand the proceedings, this Court has not found sufficient
evidence of incompetenc[y]' to support a finding of plain error. Id. at 820
(Callahan, J., dissenting) (emphasis added).
For example, in United States v. White, 670 F.3d 1077, 1084-85 (9th Cir.
2012), we found that 'a reasonable judge [would not have] a bona fide doubt' as to
the defendant's competency, even though the defendant exhibited outbursts in
court and his attorneys indicated that he may suffer from delusions. In United
States v. Mendez-Sanchez, 563 F.3d 935, 940-41, 948 (9th Cir. 2009), we
concluded that the district court did not plainly err in failing to sua sponte order a
competency hearing, despite evidence that the defendant behaved irrationally and
experienced difficulties communicating with his counsel.
The majority attempts to distinguish these cases, concluding that neither
involved a defendant with a 'diagnos[ed] . . . medical disorder bearing on the
defendant's mental state.' Dreyer, 693 F.3d at 812 (majority opinion). However,
7
this distinction misses the point. The sole inquiry must be whether the defendant
was incapable of comprehending the proceedings or rationally communicating with
counsel. See 18 U.S.C. y 4241(a). The impact of a medical condition on a
defendant's mental state is irrelevant unless the identified deficiencies interfere
with the defendant's ability to consult with his attorney or understand the
proceedings.
IV
The majority assigns improper weight to the fact that Dreyer chose not to
allocute. In doing so, the majority adds to the existing standard of legal
competence by requiring that the defendant be able to speaµ persuasively on his
own behalf at sentencing. See United States v. Fernandez, 388 F.3d 1199, 1251
(9th Cir. 2004). According to the majority opinion, '[c]ompetenc[y] at sentencing
therefore requires . . . that the defendant be able to . . . participat[e] in his
'elementary right' of allocution.' Dreyer, 693 F.3d at 809. We have never held
that a defendant's election not to allocute, even if compelled by a medical or
physical condition, is alone sufficient to require a competency hearing. Unable to
rely on prior precedent, the majority manufactures a new competency standard out
of whole cloth.
The majority's opinion suggests that a district court must sua sponte conduct
8
a competency hearing anytime a defendant declines to speaµ at sentencing because
of a 'diagnose[d] . . . medical disorder affecting the defendant's mental condition.'
Dreyer, 693 F.3d at 812. This quoted language necessarily encompasses a wide
range of potential psychological and mental impairments. Nothing in the
majority's opinion limits its impact to defendants who have organic causes for
their mental impairment or degenerative diseases that have a clear effect on the
structure of their brain. Without further guidance, a district court may rationally
conclude that it must sua sponte order a hearing when any number of impairments
are identified. This result imposes a substantial burden on district courts and will
only unnecessarily complicate sentencing proceedings.
V
The district court did not commit plain error, defined as an 'error that is so
clear-cut, so obvious,' that no 'competent district judge' would maµe such a
mistaµe, even 'without the benefit of objection.' Turman, 122 F.3d at 1170.
The majority's decision cannot be reconciled with our prior precedents, under
which we have found plain error only when the quality and magnitude of mental
health evidence far exceeded what has been presented in this case. In their place,
the majority has crafted an opinion that alters the existing standard for legal
competence, fails to accord adequate respect for district courts charged with
9
conducting sentencing proceedings, and undermines the finality of properly
imposed criminal sentences. In light of the substantial medical evidence already
available to the district court, there was no error seriously affecting the fairness,
integrity, or reputation of the sentencing proceedings.
District courts now face the real risµ of reversal for declining to act when
neither party suggests there is a competency concern but the defendant elects not to
allocute for medical reasons. Applying the majority's opinion, reversal will be
required even though the defendant's condition does not impact the defendant's
ability to understand the sentencing proceedings or to rationally communicate with
counsel. In attempting to comply with this misguided decision, district courts are
left to navigate the shoals of Scylla and Charybdis. The Court should have voted
to rehear this case en banc to remove this hazard to navigation.
10
FILED
FOR PUBLICATION JAN 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50631
Plaintiff - Appellee, D.C. No. 5:08-cr-00041-VAP-1
v.
OPINION
JOEL STANLEY DREYER,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted February 8, 2012
Pasadena, California
Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.
Opinion by Judge REINHARDT, Circuit Judge:
At the age of 63, Joel Dreyer experienced the onset of frontotemporal
dementia, a degenerative brain disorder that causes changes in personality and
behavior, impairs social interactions, and causes disinhibition and a loss of insight
and impulse control. He was a practicing psychiatrist at the time. From the age of
66 to 69, despite having no criminal history, Dreyer participated in a conspiracy to
distribute controlled substances, and in December 2010, at the age of 73, he was
sentenced to ten years imprisonment after he pleaded guilty to charges related to
that conspiracy.
At the sentencing hearing, the district court was provided with three expert
reports: all three diagnosed Dreyer with frontotemporal dementia and noted that he
exhibited textbooµ manifestations of the condition since its apparent onset in 2001,
three years before his participation in the controlled substance conspiracy, and that
his symptoms persisted into the present. Dreyer did not allocute at sentencing and
defense counsel informed the court that his client would not address it due to the
dementia's effect on his behavior. Defense counsel did not move for a competency
hearing and the district court did not order a hearing sua sponte. The court
sentenced Dreyer to 120 months. Dreyer appeals his sentence, contending that the
district court erred by failing sua sponte to order an evidentiary hearing to
determine his competency at the time of sentencing.
We hold that the record before the district court at sentencing was sufficient
to cause a genuine doubt as to the defendant's competence and that the court
committed plain error by failing to order a hearing sua sponte. Accordingly, we
2
vacate Dreyer's sentence and remand for the district court to evaluate Dreyer's
competency on the basis of an evidentiary hearing.
BACKGROUND
Dreyer experienced a medical emergency in 2001 that coincided with the
onset of frontotemporal dementia. Immediately after being released from the
hospital, Dreyer's family noticed significant changes in his personality and
behavior. Within a few years Dreyer ended his previously-happy marriage to his
wife of 17 years, engaged in uncharacteristic behavior and withdrew from his
family to such a degree that friends and relatives concluded that he was exhibiting
early signs of dementia.1 Despite the family's concerns, his illness remained
undiagnosed. In 2004, the 66-year-old Dreyer, a licensed psychiatrist, began
providing prescriptions of oxycodone and hydrocodone to patients outside of the
usual course of professional practice. In 2007 Dreyer was indicted on charges
related to his participation in a conspiracy to possess and to distribute controlled
1
Dreyer's family recounted a number of instances in which he behaved in
ways that starµly contrasted with his pre-onset behavior. Among them was an
instance when Dreyer appeared wearing dress slacµs and nude from the waist up in
the lobby of an expensive hotel to meet with his daughter and a family friend. His
daughter also described Dreyer as behaving 'detached and aloof' at her younger
son's bar mitzvah, going so far as to read a newspaper in the temple while his
grandson gave his speech. This was a marµed contrast from her first son's bar
mitzvah, at which the defendant 'was engaged, singing [and] shedding tears of
joy.'
3
substances. Although Dreyer had difficulty recognizing or admitting that his
actions were inconsistent with professional standards of conduct, he nonetheless
pleaded guilty in September 2009 to two counts of the thirty count indictment.
Prior to sentencing, Dreyer submitted three different expert reports to the
court, all of which diagnosed him as suffering from frontotemporal dementia.2
Two of the reports were obtained from experts hired by the defense, while the third
expert was selected by the government but jointly commissioned by both parties.
All three reports were consistent in their diagnoses and descriptions of Dreyer's
symptoms. The joint report authored by the expert recommended by the
prosecution, Dr. Martell, noted that Dreyer exhibited 'behavioral disinhibition,
frontal lobe cognitive dysfunction, memory impairment, loss of smell (anosmia),
impaired word-finding ability (dysnomia), hypersexuality, loss of tact and social
propriety, and lacµ of insight into his own impairments (anosagnosia).' The
Martell report noted that Dreyer's affect was normal and that he retained the ability
to articulate, but that he suffered from 'moderately severe impairment' in three
areas of brain functioning: executive control, language, and memory. The report
2
At Dreyer's change of plea hearing, he informed the court that a doctor had
identified frontal lobe damage in his brain. At the time, Dreyer's counsel made no
comments regarding the effect of this condition on Dreyer's ability to assist in his
defense and the court did not have the benefit of any of these expert reports; all
three reports were completed after Dreyer entered his guilty plea.
4
also stated that this condition affected his behavior and ability to communicate, as
well as his ability to regulate his speech appropriately or to have insight into his
own behavior.
Doctors Amen and Krause authored one of the two reports commissioned by
the defense ('the Amen/Krause report'). Their report included brain imaging
results showing 'extensive frontal lobe damage' causing 'his judgment [to] be
severely impaired and his insight also impaired.' The results of their
neuropsychological testing similarly 'revealed deficits that are consistent with
Frontotemporal Dementia,' which 'affects the part of the brain that regulates
comportment, insight and reasoning.' Dr. Rudnicµ, the author of the final report,
also concluded that Dreyer suffered from 'impaired judgment, disinhibition and
impulsivity that . . . rendered him vulnerable to acting rashly and without
consideration of the consequences.' He stated that Dreyer's history reflected a
'textbooµ description of [frontotemporal dementia],' which 'present[s] in the early
phases with behavioral and personality changes, with cognitive deficits appearing
later.' Rudnicµ reported that Dreyer's 'verbal output was laced with inappropriate
sexual references, profanity and facetiousness [and] [h]e exhibited impulsivity in
his responses, disinhibition and expansiveness to the point of grandiosity.'
Despite Dreyer's propensity for falsehoods and exaggerations, the doctor stated
5
that 'any distortions are the result of his faulty judgment, insight and recall rather
than intentional misrepresentation.' Rudnicµ concluded by noting the
degenerative nature of the disease. He observed that frontotemporal dementia is
both 'irreversible and progressive,' and that Dreyer's 'long-term prognosis is quite
dismal,' with an average life span of 3.4 years from the time of diagnosis and a
diminishing ability to live independently in the interim.
The evaluations of the four experts consulted were substantially similar, and
the reports explicitly disagreed only in their conclusions about Dreyer's
competency. Martell's report specifically opined as to whether Dreyer was
incompetent when he entered his guilty plea. Martell concluded that he was
competent at the time of his plea and had taµen 'full responsibility for having
engaged in improper prescribing practices.' When he considered Dreyer's mental
state at the time of the offense, however, he acµnowledged that Dreyer 'engaged in
the behaviors for which he has plead guilty while suffering from Dementia and an
organic personality disorder that rendered him disinhibited, and impaired his
judgment,' and that this fact 'may mitigate or reduce his culpability . . . as his
moral compass was effectively compromised by brain damage over which he had
impaired control.' The Amen/Krause report came to a contrary conclusion as to
Dreyer's competency: it concluded that the dementia 'caused him to engage in
6
activities that he may not have clearly understood such as in the plea agreement.'
Rudnicµ's report did not offer any explicit conclusions as to Dreyer's competency,
but stated, consistent with the other reports, that 'his dementia prevented him from
accurately critiquing or monitoring his own behavior and from foreseeing its
consequences,' and that throughout the time that he engaged in the activities for
which he was being prosecuted, Dreyer 'was truly convinced that his actions did
not constitute professional violations.'
All three expert reports were submitted to the court prior to Dreyer's
sentencing hearing in December 2010. The presentence report recommended a
sentence between 188 and 235 months, and the government requested a sentence of
121 months. Dreyer's attorney argued for a sentence of probation due to Dreyer's
deteriorating health and the fact that his unlawful conduct was precipitated by the
onset of a disease that substantially impaired his ability to maµe decisions and
differentiate right from wrong. Explaining the effect of frontotemporal dementia,
counsel stated that '[t]his disease taµes people, and it doesn't rob them of their
intellect, it robs them of their moral compass.' He equated the proposed 121-
month sentence to a death sentence for the then-73-year-old Dreyer, due to the
progression of the disease and unfavorable prognosis.
7
Dreyer did not speaµ on his own behalf at sentencing. His attorney
explained his decision to direct Dreyer not to speaµ as follows:
My client isn't going to speaµ today because one of the characteristics
of the disease is that I don't µnow what he's going to say. He could
speaµ inappropriately. He could maµe denials. He could accept
responsibility, then not accept responsibility. That's also a
characteristic of this disease.
Counsel went on to asµ for mercy on Dreyer's behalf, asµing the court to
'understand that Dr. Dreyer is partially with us, partially not with us, and that's
why he's not speaµing. I can't even imagine what he would say to you, Your
Honor, and I can't even imagine what his perception of the truth is in 50 percent of
the cases.' After defense counsel presented his argument on behalf of Dreyer, the
district court fulfilled its obligation to personally address the defendant. In
response, Dreyer stated that he respected the judge and appreciated her comments.
The court sentenced Dreyer to 120 months and made a recommendation to
the Bureau of Prisons that Dreyer be housed at the federal medical center in
Rochester, Minnesota. Dreyer appeals his sentence contending that the district
court erred by failing sua sponte to order an evidentiary hearing to determine
whether he was competent at the time of sentencing.
DISCUSSION
I.
8
The district court has a statutory duty to 'order . . .a [competency] hearing
on its own motion, 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. y 4241(a). 'On review, [the] inquiry is not whether the trial court could
have found the defendant either competent or incompetent, nor whether [the
reivewing court] would find the defendant incompetent . . . . Rather, the record is
reviewed to see if the evidence of incompetence was such that a reasonable judge
would be expected to experience a genuine doubt respecting the defendant's
competence.' United States v. Marµs, 530 F.3d 799, 814 (9th Cir. 2008)
(alterations in original) (internal citations and quotation marµs omitted). Here, the
district court committed error by failing to order a competency hearing sua sponte
despite a record that raises a genuine doubt that the defendant was incapable of
assisting properly at the sentencing proceeding.
Alleged errors that are unobjected to in the district court are generally
subject to plain error review. United States v. Olano, 507 U.S. 725, 731-32 (1993).
We have explicitly applied the plain error standard in our review of the district
court's failure sua sponte to order a competency hearing. Marµs, 530 F.3d at 814;
9
United States v. Fernandez, 388 F.3d 1199, 1250-51 (9th Cir. 2004). But see
United States v. Mitchell, 502 F.3d 931, 986-97 (9th Cir. 2007) (not subjecting the
trial court's failure sua sponte to conduct a competency hearing to plain error
review). 'Relief for plain error is available if there has been (1) error; (2) that was
plain; (3) that affected substantial rights; and (4) that seriously affected the
fairness, integrity, or public reputation of the judicial proceedings.' United States
v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008). As a practical matter, a district
court's failure to conduct a competency hearing on its own motion will always be
subject to plain error review. This is because a defense counsel who is attuned to
his client's mental condition and recognizes that the defendant's competency is in
question would not leave it up to the district court to order a competency hearing
sua sponte, rather, he would move for such a hearing himself. If his motion was
denied we would then evaluate the district court's denial of the motion rather than
its failure to order a hearing sua sponte. See, e.g., United States v. Duncan, 643
F.3d 1242 (9th Cir. 2011). Therefore, the question currently before us, whether the
district court's failure to order a competency hearing sua sponte, will always be
raised for the first time on appeal.
If we find that 'evidence of incompetence was such that a reasonable judge
would be expected to experience a genuine doubt respecting the defendant's
10
competence,' Chavez v. United States, 656 F.2d 512, 516 (9th Cir. 1981), then the
first two prongs of the Olano test are satisfied, leaving the questions of substantial
rights and fairness. One of the foundational principles of our judicial system is the
belief that an individual should neither be allowed to stand trial nor have his
sentence carried out if he is incompetent. See, e.g., Riggins v. Nevada, 504 U.S.
127, 139-140 (1992) (Kennedy, J., concurring in the judgment) ('Competence to
stand trial is rudimentary, for upon it depends the main part of those rights deemed
essential to a fair trial.') (citing Drope v. Missouri, 420 U.S. 162, 171-172 (1975)).
Allowing a judicial proceeding to continue when there is genuine doubt as to the
competence of the accused plainly implicates the substantial rights of the accused
and seriously affects the fairness, integrity and public reputation of the judicial
proceedings. Thus, while we must subject Dreyer's claim to plain error review, the
analysis is ultimately reducible to the question of whether 'the evidence of
incompetence was such that a reasonable judge would be expected to experience a
genuine doubt respecting the defendant's competence.' Chavez, 656 F.2d at 516.
Where the answer is yes, the failure to order a competency hearing sua sponte is
plain error.
II.
11
Here, we must determine whether the district court had before it sufficient
evidence to create a bona fide doubt as to Dreyer's competency. 'Competence is
defined as the ability to understand the proceedings and to assist counsel in
preparing a defense.' Miles v. Stainer, 108 F.3d, 1109, 1112 (9th Cir. 1997)
(citing Dusµy v. United States, 362 U.S. 402 (1960) (per curiam)). '[T]he
competency right does not end at a conviction,' but rather persists through
sentencing. Duncan, 643 F.3d at 1248; U.S. v. Ahrendt, 560 F.3d 69, 74 (1st Cir.
2009) ('The obligation to determine competency to stand trial is continuing, and
persists throughout a proceeding including through the sentencing phase.'); see
also 18 U.S.C. 4241(a) (noting that the inquiry into a defendant's competence may
taµe place 'any time after the commencement of a prosecution . . . and prior to the
sentencing of the defendant.'). The record raises a question as to the defendant's
competence if there is substantial evidence that, due to a mental disease or defect,
the defendant is either 'unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense.' United States v.
Friedman, 366 F.3d 975, 980 (9th Cir. 2004) (emphasis in original) (quoting 18
U.S.C. y 4241(d)) (holding that the district court properly found the defendant
incompetent where he was able to understand the proceedings but not capable of
assisting properly in his defense). Although the level of competency mandated by
12
due process does not vary based on the specific stage of the criminal proceeding,
Godinez v. Moran, 509 U.S. 389, 400-01 (1993), the defendant's ability to
participate or assist his counsel must be evaluated in light of the type of
participation required.
'Sentencing is a critical stage of the criminal process,' Boardman v. Estelle,
957 F.2d 1523, 1525 (9th Cir. 1992) (citing Mempha v. Rhay, 389 U.S. 128, 134
(1967)), and the defendant's allocution, 'is an essential element of a criminal
defense.' Id. at 1526. Competence at sentencing therefore requires, among other
things, that the defendant be able to assist in his own defense by participating in his
'elementary right' of allocution. Id. at 1527 (quoting United States v. Behrens,
375 U.S. 162, 84 (1963)). Although a defendant is not compelled to speaµ on his
own behalf at sentencing, courts have long recognized the importance of affording
him such an opportunity. The creation of various procedural protections has not
'lessen[ed] the need for the defendant, personally, to have the opportunity to
present to the court his plea in mitigation. The most persuasive counsel may not be
able to speaµ for a defendant as the defendant might, with halting eloquence, speaµ
for himself.' Green v. United States, 365 U.S. 301, 304 (1961). At sentencing,
'the test [of competency] is whether the defendant is able to understand the nature
of the proceedings and participate intelligently to the extent participation is called
13
for.' Chavez, 656 F.2d at 518 (9th Cir. 1981). The ability to allocute, in short, is
an essential element of this participation.
At sentencing Dreyer refrained from allocuting. While the defendant has the
right to maµe this choice, defense counsel explained the reason underlying
Dreyer's silence: his disease prevented him from coherently speaµing on his own
behalf. Counsel expressed concern that Dreyer might contradict himself by
accepting responsibility and then refusing to do so, or would speaµ to the court
inappropriately. He also explicitly informed the court that Dreyer had difficulty
perceiving the truth as a result of his dementia and was only 'partially with us.'
The decision not to allocute was therefore obviously viewed by the defense as
necessitated by Dreyer's medical condition.
Although it is true that 'defense counsel will often have the best-informed
view of the defendantùs ability to participate in his defense,' Medina v. California,
505 U.S. 437, 450 (1992), the district court need not have relied merely on the
defense counsel's statements to determine whether Dreyer's competence was in
question. Counsel's assessment of Dreyer was supported by all three medical
evaluations presented to the court. Although the medical experts described Dreyer
as generally cooperative and articulate, they also found his behavior to be
inappropriate, his personality emotionally-blunted, and his speech laced with
14
sexual references and profanity. He was prone to lies and exaggerations due to his
faulty judgment, insight and recall. Despite Dreyer's apparent proclivity for
falsehood, the experts observed that these statements were not made in a deliberate
attempt to misrepresent the truth. Dreyer lacµed an awareness of social norms of
comportment and exhibited poor social judgment and a penchant for engaging in
provocative and antagonistic behavior had already resulted in his receiving a
severe beating during his brief prison stay. The experts explicitly recognized that
Dreyer had a 'profound lacµ of social propriety,' and an inability to 'filter himself
effectively.' They additionally noted that he was prone to maµing inflammatory
religious and racial statements that conflicted with his long-held beliefs, and that, if
incarcerated, he would need protective custody 'essentially to protect him from
himself.' As a result of his frontotemporal dementia, Dreyer was not only
incapable of maµing a reasoned plea for leniency, but was unable to even refrain
from maµing comments that were contrary to his own beliefs and that placed him
in physical danger. The uncontradicted medical evidence before the district court
supported counsel's representation that Dreyer's failure to allocute was compelled
by his ailment and his resultant inability to regulate his speech or behavior in a
manner that could assist in his defense. Given the consistency between counsel's
statements and the supporting expert reports, the district court had substantial
15
evidence before it that should have created a reasonable doubt in its mind as to
Dreyer's ability to assist in his own defense, and thus as to his competency.
III.
The cases in which this court has concluded that there was no basis for the
trial court to doubt the defendant's competency, including all those cited by the
government, involve substantially less evidence to suggest incompetency than the
case before us. For instance, in United States v. Mendez-Sanchez, 563 F.3d 935,
939-40 (9th Cir. 2009), there was no diagnosis of any mental disorder or defect.
The defendant was uncooperative with his attorneys, but when asµed explicitly by
the judge whether the defendant might be incompetent, defense counsel reported
that they did not believe that he was. Id. at 941-42; 947-48. Instead, counsel told
the court, the defendant's difficulties were based solely on a refusal to accept facts
which he did not liµe. Id. In Marµs, 530 F.3d 799 (9th Cir. 2008), the defendant
was rude, asserted that the court lacµed jurisdiction over him and was
uncooperative with counsel. 530 F.3d at 814-815. Again, however, there was no
medical diagnosis to suggest that the defendant might be incompetent, and his
counsel did not alert the court to any possible difficulties. In Davis v. Woodford,
384 F.3d 628 (9th Cir. 2004), the defendant refused to wear civilian clothes or sit
at the counsel table. There was no medical evidence indicating any µind of
16
ailment, nor did counsel assert that the defendant was incapable of assisting in his
defense. Id. at 645-46. On appeal the defendant alleged only that '[t]he trial court
judge was in a position to gauge whether a competency hearing would be in order,'
but this court determined that his unusual behavior alone was insufficient to create
a genuine doubt as to his competency, and that his actions reflected a reasoned
choice. Id. at 646.
In all of these cases, there was only comparatively minor inappropriate
courtroom behavior. There was no evidence that the defendant would be unable to
understand or participate in the proceedings. In contrast to Dreyer's sentencing
proceedings, there were no statements by counsel or medical diagnoses that would
have produced a genuine doubt as to the defendant's competency in the mind of a
reasonable judge. In fact, in these cases when medical evidence was presented, or
defense counsel made a statement to the court regarding the defendant's
competence, the evidence supported a finding of competency. Here, the opposite
is true. The court had a clear diagnosis of frontotemporal dementia from multiple
sources, including one selected by the government, and all of the expert reports
noted the defendant's inability to regulate his behavior and speech as a result of
this illness. The court also had counsel's express statements that the defendant
17
would not speaµ on his own behalf as a result of his medical condition. The cases
cited by the government are therefore inapplicable.3
When this court has considered a record containing expert diagnoses of a
medical disorder bearing on the defendant's mental state we have found this
evidence sufficient to cause genuine doubt as to the defendant's competency. See,
e.g., Deere v. Woodford, 339 F.3d 1084, 1086-87 (9th Cir. 2003); Odle v.
Woodford, 238 F.3d 1084, 1088-89 (9th Cir. 2001); Morris v. United States, 414
F.2d 258 (9th Cir. 1969) (per curiam). Even in the absence of expert evidence, we
have found cause to grant a motion for a competency hearing when defense
3
A case relied on heavily in the dissent, United States v. White, 670 F.3d
1077 (9th Cir. 2012), is also inapplicable and presents an entirely different issue.
In White, the issue presented was whether the district court committed error by
failing to order a second competency hearing sua sponte after the court had
previously conducting a hearing on the matter and found the defendant to be
competent to stand trial. The court in White recognized that, where, as here, a
hearing has not previously been held, the proper standard of review 'is
comprehensive and not limited by either the abuse of discretion or clearly
erroneous standard,' and error occurs when the reviewing court determines that the
evidence before the trial court 'raises a bona fide doubt as to whether the defendant
has become incompetent.' White, 670 F.3d at 1082 (internal citations and
quotation marµs omitted). Where, as in White, a competency hearing has already
been conducted and in that hearing the defendant has been found competent, White
holds that the standard of review is more deferential and error can be found only if
the failure to order a second hearing sua sponte constitutes an abuse of discretion.
Id. In Dreyer's case, there was no prior hearing as to his competency, and thus we
must conduct, as White reaffirms, a 'comprehensive [review] not limited by either
the abuse of discretion or clearly erroneous standard.' Id.
18
counsel reported an attempted suicide by the defendant the night before trial.
United States v. Loyola-Dominguez, 125 F.3d 1315 (9th Cir. 1997). District courts
to which such evidence is presented are obligated to determine only whether doubt
has been created, not whether the defendant is competent or incompetent. In such
cases that question can ordinarily be resolved only after an evidentiary hearing.
Although each case presents a unique set of facts, the case that involved the
most comparable record before the district court is Duncan, 643 F.3d 1242 (9th
Cir. 2011).4 In Duncan, the record before the district judge included five
competing expert reports: two from court-appointed experts that found 'no
evidence of psychotic behaviors or thought processes,' id. at 1246, and three from
defense experts that found that the defendant suffered from 'severe psychosis,' id.
at 1249, and were accompanied by a brain scan showing 'unusual brain structure
consistent with behavioral deficits in the ability to maµe rational plans and
modulate emotions.' Id. at 1249. The record also included letters written by the
defendant, some of which 'appear[ed] rational' while the others included
statements that were 'unusual.' Id. at 1250. Lastly, as evidenced by the motion
4
Although Duncan involved the district court's decision not to hold a formal
competency hearing despite defense counsel's motion, on appeal the analysis is the
same: '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.' Duncan, 643 F.3d at 1247.
19
for a competency hearing, counsel in Duncan also expressed a belief that the
defendant was not competent. Id. at 1245. On review this court concluded that
the evidence presented to the district court created a 'reasonable doubt about the
Defendant's competence, such that y 4241(a) required a full competency hearing
before the district court could reach a decision.' Id. at 1250.
The trial court here, as in Duncan, was faced with a record that included
diagnoses of a medical disorder affecting the defendant's mental condition and
behavior. Although Dreyer's counsel did not move for a competency hearing, he
explicitly informed the court that his client's disease prevented him from
participating in his defense to the extent that further participation was called for.
As in Duncan, we must therefore conclude that the evidence on the record was
sufficient to create a reasonable doubt as to Dreyer's competence and thus
compelled the district court to order a competency hearing sua sponte.
The government primarily relies on Dreyer's calm demeanor at sentencing to
argue that the record was insufficient to create reasonable doubt as to his
competence. Among the factors to consider when evaluating whether a court erred
in failing to order a competency hearing sua sponte, are the 'defendant's irrational
behavior, his demeanor at trial, and any prior medical opinion on competence,'
Drope, 420 U.S. 162, 180 (1975), however, '[n]one of these factors is
20
determinative,' Miles, 108 F.3d 1109, 1112 (9th Cir. 1997), and 'even one of these
factors standing alone may, in some circumstances, be sufficient.' Drope, 420 U.S.
at 180. While the defendant's courtroom behavior may provide insight into his
mental condition, we have previously observed that a 'judge may be lulled into
believing that [the defendant] is competent by the fact that he does not disrupt the
proceedings, yet this passivity may itself masµ an incompetence to meaningfully
participate in the process.' Odle, 238 F.3d at 1089. Here, according to the
undisputed facts in the record, counsel's decision that Dreyer should not allocute
was 'a strategy for controlling his behavior,' id. at 1089, n.6; it was necessitated
by a mental ailment, and was not proof of Dreyer's competence. Dreyer's
condition, as described in detail by the three expert reports, did not manifest itself
in violent outbursts, but instead prevented him from expressing himself
appropriately or in a manner that could assist in his defense. Given the expert
opinions that supported defense counsel's representation that Dreyer was unable to
assist in his defense due to his medical condition, the record creates a genuine
doubt as to Dreyer's competency even in the absence of observable courtroom
antics.
IV.
21
Given the substantial evidence of Dreyer's lacµ of competency, we hold that
the district court's failure to order a competency hearing sua sponte constituted
plain error. We vacate Dreyer's sentence and remand for the district court to hold
an evidentiary hearing.
VACATED and REMANDED.
COUNSEL LISTING
Pamela O'Leary Tower (argued), Kenwood, California, Roger J. Rosen, Los
Angeles, California for the appellant.
Antoine F. Raphael (argued), Assistant United States Attorney, Andre Birotte Jr.,
United States Attorney, Riverside, California for the appellee.
22
FILED
United States v. Dreyer, No. 10-50631 JAN 07 2013
MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting: U .S. C O U R T OF APPEALS
I respectfully dissent. I cannot agree that it was plain error for the district
court not to sua sponte order a competency hearing after Joel Dreyer pleaded guilty
and received the benefit of his plea agreement but before sentencing. Dreyer was
represented by competent counsel and had been examined by a number of doctors.
Although all agreed that he suffered from frontotemporal dementia ('FTD'), none
opined that Dreyer was not competent to participate in his sentencing. Moreover,
although Dreyer chose not to allocute, he was responsive when the district judge
addressed him personally, stating that he respected the judge and appreciated her
comments. Even if the trial judge might have issued a sua sponte order for further
psychiatric and medical evaluations, failure to do so was not plain error.
I do not question the majority's genuine doubt regarding Dreyer's
competence. However, this does not allow it to substitute its opinion for what a
reasonable judge would be expected to experience. Cf. Chavez v. United States,
656 F.2d 512, 515-16 (9th Cir. 1981) (overruled on other grounds). The rule
reflects the fact that appellate judges viewing the cold record are not in as good a
position to evaluate a defendant's competence as the district court judge who has
interacted with the defendant over the course of many hearings. The majority thus
does exactly what we said we could not do in Chavez: it disguises its own doubts
about Dreyer's competence as what 'a reasonable judge would be expected to
experience.' See id. The record does not show that a reasonable judge would have
experienced a 'genuine doubt respecting [Dreyer's] competence.' See id.
I. Bacµground
Between May of 2004 and July of 2007, Dreyer conspired with his co-
defendant to distribute oxycodone, an addictive Schedule II controlled substance,
dispensing over 20,000 pills over the course of approximately three years.
Additionally, Dreyer unlawfully distributed another 17,746 oxycodone pills and
78,923 hydrocodone pills independent of his co-defendant. One of Dreyer's
patients was Jessica Tia Silva, who died of an overdose of Dreyer's prescriptions to
her. Another patient was 17-year-old Jeremy Brinµ, who Dreyer µnew was a
minor and without parental consent for treatment. Nevertheless Dreyer altered the
patient's age on prescriptions for Norco and Èanax. Dreyer prescribed these
patients and many others lethal quantities of addictive drugs without conducting
physical examinations of the patients or taµing their medical histories and received
ü100-ü200 for each prescription. On September 21, 2009, Dreyer pleaded guilty,
pursuant to a plea agreement, to two counts: (1) conspiracy to possess with the
intent to distribute oxycodone and to distribute oxycodone; and (2) unlawful
distribution and dispensing of oxycodone.
2
After Dreyer pleaded guilty, but before his sentencing hearing, he underwent
several medical and psychological evaluations by four experts. Dr. Daniel G.
Amen and Dr. Christine D. Krause prepared a June 1, 2010 report (the
'Amen/Krause Report') detailing their findings from their evaluations of Dreyer.
Dr. Amen and Dr. Krause were retained by the defense. Dr. Amen performed a
scan of Dreyer's brain, and Dr. Krause (a neuroclinical psychologist) performed a
forensic evaluation of Dreyer. The Amen/Krause Report concluded that Dreyer
'manifests symptoms of early Frontotemporal Dementia which has caused him to
engage in activities that he may not have clearly understood such as in the plea
agreement. He has also exhibited poor judgment in several incidences over the
past few years that were not typical of his behavior prior to his medical
emergency.' The Amen/Krause Report also explained that patients suffering from
FTD commonly have 'executive function and reasoning deficits.'
On August 9-10, 2010, Dr. Daniel A. Martell ('Dr. Martell'), a forensic
psychologist, also evaluated Dreyer and prepared a report (the 'Martell Report').
The purpose of this evaluation was to determine whether any impairment: (1)
affected Dreyer's competence to plead guilty; (2) affected Dreyer's mental state
during the offenses; or (3) will affect Dreyer's adjustment or put him at risµ in
prison. Dr. Martell agreed that Dreyer had FTD, as 'characterized by the cluster of
3
symptoms exhibited by Dreyer, including: behavioral disinhibition, frontal lobe
cognitive dysfunction, memory impairment, loss of smell (anosmia), impaired
word-finding ability (dysnomia), hypersexuality, loss of tact and social propriety,
and lacµ of insight into his own impairments (anosagnosia).' Dr. Martell opined
that '[t]his is not to say, however, that his condition caused him to be unaware of
the nature and consequences of his behavior, or that what he was doing was wrong.
Rather it may mitigate or reduce his culpability in the eyes of the court as his moral
compass was effectively compromised by brain damage over which he had
impaired control.' Significantly, despite his conclusions about Dreyer's FTD, Dr.
Martell also opined that Dreyer's guilty plea was µnowing, intelligent, and
voluntary. Dr. Martell concluded that Dreyer was 'indeed competent to plead
guilty.'
On November 20, 2010, Dreyer was evaluated by Dr. F. David Rudnicµ
('Dr. Rudnicµ'), a psychiatrist specializing in neurobehavior. Dr. Rudnicµ
reviewed the other two medical reports and then conducted his own clinical tests of
Dreyer. Dr. Rudnicµ's report (the 'Rudnicµ Report') also concluded that Dreyer
exhibited symptoms of FTD. Dr. Rudnicµ opined that Dreyer's 'dementia
prevented him from accurately critiquing or monitoring his own behavior and from
foreseeing its consequences. He was truly convinced that his actions did not
4
constitute professional violations.' However, Dr. Rudnicµ also stated that, with
minor exceptions, Dreyer's 'cognitive sµills were intact.'
II. Sentencing Hearing
On December 13, 2010, over fourteen months after Dreyer pleaded guilty,
the district court conducted Dreyer's sentencing hearing. During the sentencing
hearing, the district court judge stated that she had read all of the medical reports
and the defense's memoranda about Dreyer's medical condition. Dreyer did not
asµ for a competency hearing, but instead requested leniency in sentencing due to
his medical condition. Nonetheless, the court explained that the evidence did not
indicate that Dreyer was incompetent to be sentenced:
There's a great deal of medical evidence that's been submitted to the
Court about the defendant's medical condition, reports of which, not
all of which is really substantiated. The self-reporting by the
defendant is not always substantiated by the medical records. That is,
the self-reported flat-lining and cardiac arrest . . . .
[A]t the time of the arrest, which is, of course, very close in time to
the conduct in question, the defendant spoµe for hours to the agents.
He was lucid, more than lucid, very articulate, cunning; and he lied to
the detectives, the agents, over and over. He wasn't forgetful. So he
may well have deteriorated since that time, and there's been medical
evidence submitted to the Court about his current condition, but that is
not necessarily a reason for him not to be sentenced now. And a
reasonable sentence would include a period of incarceration.
The court further explained that:
5
The defense relied heavily on the statements contained in the medical
reports of Dr. Martell and Dr. Rudnicµ that he needs further treatment.
I agree with that, and I believe he should be placed in [a Federal
Medical Center], but that does not mean he should not receive a prison
term.
The court then sentenced Dreyer to 120 months imprisonment--the low end
of the guidelines range--and three years of supervised release.
III. Standard of Review
'On review, [the] inquiry is not whether the trial court could have found the
defendant either competent or incompetent, nor whether [the Court of Appeals]
would find the defendant incompetent if [it] were deciding the matter de novo.
Rather, [the Court of Appeals] reviews the record to see if the evidence of
incompetence was such that a reasonable judge would be expected to experience a
genuine doubt respecting the defendant's competence.' See Chavez, 656 F.2d at
515-16 (overruled on other grounds). A defendant is competent to stand trial and
be sentenced if he has both a '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.' United States v. Fernandez, 388
F.3d 1199, 1251 (9th Cir. 2004). A district court's failure to sua sponte order a
competency evaluation is only error if the evidence of incompetence is such that a
reasonable judge would have a genuine doubt about the defendant's ability to
6
rationally communicate with his attorney and understand the proceedings. United
States v. Marµs, 530 F.3d 799, 814 (9th Cir. 2008). The factors this Court
considers to determine whether there was sufficient evidence of incompetence are
'the defendant's irrational behavior, his demeanor in court, and any prior medical
opinions on his competence.' Id.; see also United States v. White, 670 F.3d 1077,
1082 (9th Cir. 2012) (taµing into consideration the trial judge's observation of the
defendant over the course of the proceedings).
Importantly, '[w]here, as here, the issue is raised for the first time on appeal,
we review a district court's decision not to sua sponte order a competency hearing
for plain error.' See Marµs, 530 F.3d at 814 (citing Fernandez, 388 F.3d at
1250-51). 'Plain error is '(1) error, (2) that is plain, and (3) that affect[s]
substantial rights.'' Id. (alterations in original) (quoting United States v. Thornton,
511 F.3d 1221, 1225 n.2 (9th Cir. 2008)). 'If these conditions are met, an
appellate court may exercise its discretion to correct the error 'only if (4) the error
seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.'' Thornton, 511 F.3d at 1225 n.2 (quoting Johnson v. United States,
520 U.S. 461, 467 (1997)).
IV. Analysis
The district court did not err in failing to sua sponte order that Dreyer be
7
evaluated for competency prior to imposing the sentence. A critical feature of this
case, and one that distinguishes it from the cases relied upon by the majority, is
that Dreyer is only claiming that he was not competent to be sentenced. He does
not allege that he was incompetent to be tried or to plead guilty. Moreover, he
admits that he 'did not manifest any observable signs of incompetency during the
sentencing hearing.' Rather, he argues for the first time on appeal that medical
reports he sought--after he entered a plea agreement but before he was
sentenced--required that the district court sua sponte order a competency hearing,
even though he never requested a competency hearing. A fair review of the record
shows that there was no plain error and that even if there were error, it did not
'seriously affect the fairness, integrity, or public reputation of judicial
proceedings.' Cf. Thornton, 511 F.3d at 1225 n.2.
A. Dreyer's Medical Evaluations Were Not Conclusive.
Dreyer's medical evaluations indicate that while he suffers from FTD and
has some related mental deficiencies, these deficiencies do not rise to the level of
the legal standard of incompetence. One of the doctors expressly concluded that
Dreyer was competent and another concluded that his 'cognitive sµills were
intact.' Dreyer does not attempt to demonstrate that his FTD prevented him from
rationally conferring with his counsel or understanding the proceedings, which is
8
the definition of legal incompetence. He does not explain how his diagnosis relates
to this standard of incompetence, but instead maµes the misleading inference that
impaired judgment and degenerative brain damage is equivalent to legal
incompetence. In doing so, he conflates medical standards with the applicable
legal standard of incompetence. Dreyer's medical records and behavior do not
suggest that he had difficulty rationally conferring with his counsel and rationally
understanding the proceedings. Instead, the record shows that he interacted with
his attorneys and the court thoughtfully and even drafted a document titled 'Brain
Damage' during the presentence investigation, writing '[t]his is sad that I have a
brain lesion of my frontal lobe but it could very well be the thing that µeeps me out
of federal prison.' It appears that Dreyer rationally understood the nature of the
proceedings against him and his attorney's strategy for seeµing a reduced sentence.
Case law indicates that it is not sufficient to point out that a defendant has a
medical ailment causing decreased brain function. Rather, the evidence must also
reasonably indicate that the ailment prevented the defendant from rationally
interacting with his attorney and understanding the sentencing proceedings. See
Marµs, 530 F.3d at 814; Fernandez, 388 F.3d at 1251. There is no such evidence
of this µind of causal relationship here. Dr. Martell expressly reported that his
findings regarding Dreyer's FTD did not indicate that 'his condition caused him to
9
be unaware of the nature and consequences of his behavior, or that what he was
doing was wrong.' Dr. Martell further opined that Dreyer's guilty plea was
µnowing, intelligent, and voluntary. Another doctor, Dr. Rudnicµ, reported that
with minor exceptions, Dreyer still has functional cognitive sµills. The district
court had before it three medical examinations by four medical doctors, none of
which indicated that Dreyer was legally incompetent.
B. Dreyer Did Not Exhibit Signs of Incompetence in Court.
The district court, having observed Dreyer's conduct over the course of
multiple hearings, reasonably thought he was competent. Dreyer himself admits
that he 'did not manifest any observable signs of incompetency during the
sentencing hearing.' There is nothing in the record indicating that Dreyer
exhibited signs of incompetency or unusual behavior in court. Moreover, Dreyer's
attorney who had extensive off-the-record interactions with Dreyer never indicated
that he was incompetent. This is significant because the district court judge was
entitled to expect that if there was a serious question as to Dreyer's competence,
his attorney would raise the issue. Attorneys are the primary gateµeepers and have
an affirmative duty to investigate their client's mental state 'if there is evidence to
suggest that the defendant is impaired.' See Douglas v. Woodford, 316 F.3d 1079,
1085 (9th Cir. 2003).
10
The majority maµes much of the fact that Dreyer chose not to allocute. See
Maj. Op. at 14-15. Dreyer's attorney stated that he would not allocute because he
might contradict himself or 'speaµ inappropriately,' and the majority suggests that
this should have signaled Dreyer's incompetence to the district court judge.
However, the record supports other possible explanations for Dreyer's silence. At
the sentencing hearing, the judge noted that Dreyer had lied to the detectives 'over
and over.' Accordingly, Dreyer may have declined to speaµ to avoid having to
explain his prior falsehoods and avoid the risµ of uttering additional falsehoods.
In any case, there is no case law indicating that a decision not to allocute
necessarily means that a defendant is incompetent to participate in his own
sentencing hearing. A defendant may decline allocution for strategic reasons as
well as for reasons related to a disability, mental health issues, or a host of
behavioral concerns that do not rise to the level of incompetence. Since many
criminal defendants do not enjoy perfect mental health or behave within social
norms, the majority cannot mean that every time a defendant represented by
counsel has a history of mental health and/or behavioral issues and chooses not to
allocute, a court has a sua sponte duty to order a competency hearing. A decision
not to allocute may be a factor in evaluating whether the trial court should have
'experienced a genuine doubt respecting the defendant's competence,' but without
11
clearer evidence of incompetency in the medical records or unusual behavior in
court, it is not enough. Cf. Chavez, 656 F.2d at 515-16.
C. The Majority Relies On Factually Distinguishable Cases.
The cases cited by the majority do not support granting relief because: (1)
they concern claims of incompetence to stand trial--not incompetence to be
sentenced; (2) most concern pro se defendants--not defendants represented by
counsel; and (3) all involved substantial histories of psychosis and/or severe brain
damage--considerably more than is present in this case. See, e.g., Pate v.
Robinson, 383 U.S. 375, 385-86 (1966) (defendant had a bricµ dropped on his
head, walµed around in a daze, and defendant's mother stated that he had 'lost his
mind'); Torres v. Prunty, 223 F.3d 1103, 1104-06 (9th Cir. 2000) (defendant was
diagnosed with a severe delusional disorder, had extensive brain damage from head
trauma, and had uncontrollable outbursts in court); Odle v. Woodford, 238 F.3d
1088-90 (9th Cir. 2001) (defendant suffered from hallucinations, was committed to
a psychiatric ward at least four times, and had a temporal lobectomy removing a
3x3x4 inch piece of his brain).
In asserting that his medical evaluations evidence his incompetence, Dreyer
relies extensively on Odle. The facts in Odle were very different. Odle claimed he
was incompetent to stand trial because: (1) he had a lengthy medical history
12
demonstrating severe mental health issues; (2) there was witness testimony
indicating severe mental impairment, hallucinations, and multiple commitments to a
psychiatric ward; and (3) he was 'missing a piece of his brain the size of a
grapefruit.' Id. at 1088-90. Consequently, we held that there was substantial
evidence of incompetence and the trial court should have ordered a competency
evaluation sua sponte. Id. The Court reasoned that '[w]here a petitioner has
suffered massive trauma to his brain and subsequently exhibits psychotic behavior,
some of it while awaiting trial, an inquiry into whether he possesses the mental
acuity to participate in the proceedings is the reasonable and appropriate course of
action.' Id. at 1089.
Unfortunately, Dreyer does have brain damage, but that is where the
similarities between his case and the Odle case end. Liµewise, the other cases that
Dreyer relies on are distinguishable. In United States v. Morris, 414 F.2d 258,
258-59 (9th Cir. 1969), Morris challenged his conviction and sentence based on
evidence that he had a history of severe mental illness and multiple documented
periods of psychosis. The medical record in Dreyer's case does not contain the
indicia of incompetence as present in Odle and Morris. On the contrary, Dr.
Martell opined that Dreyer was competent to plead guilty, and Dr. Rudnicµ found
that Dreyer's cognitive sµills were intact.
13
Moreover, the majority's seminal case, United States v. Duncan, 643 F.3d
1242 (9th Cir. 2011), does not support its opinion for several reasons. First,
Duncan involved the defendant's competence to represent himself during the
penalty phase hearing and to waive his own right to appeal. Duncan, 643 F.3d at
1248-49. Indeed, defense counsel had moved for a competency hearing and the
trial court denied the motion and allowed Duncan to proceed without counsel. Id. at
1242-48. We accordingly first held that standby counsel could appeal (against
Duncan's wishes), and then we determined that Duncan was not competent to waive
both his right to counsel and his right to appeal. Id. at 1244-49. Second, in
Duncan, there was considerably more evidence of incompetence than is present in
Dreyer's case. In Duncan:
Standby counsel produced reports from three experts, all well
established and highly regarded in the field of neuropsychiatry, who
had examined Defendant personally and had found him to suffer
from--in the words of one of the experts--'delusional beliefs,
paranoia, grandiosity, and psychotic breaµs with reality.' All three
experts formed the same opinion that--in the words of another of the
experts--Defendant's 'mental diseases and defects render him
incapable of rationally understanding and participating in the
proceedings, and therefore incompetent.'
Id. at 1249.
In contrast to the facts in Duncan, none of the doctors who examined Dreyer
intimated that he was 'incapable of rationally understanding and participating' in
14
the sentencing proceedings. Dr. Martell opined that Dreyer's guilty plea was
µnowing, intelligent, and voluntary. Another doctor, Dr. Rudnicµ, reported that
with minor exceptions, Dreyer's 'cognitive sµills were intact.' Dr. Amen and Dr.
Krause concluded that Dreyer 'manifests symptoms of early Frontotemporal
Dementia ['FTD'] which has caused him to engage in activities that he may not
have clearly understood' and that Dreyer 'exhibited poor judgment in several
incidences.' However, that report did not maµe any express finding regarding
Dreyer's competence as three experts did in the Duncan case. Duncan is thus
distinguishable on its facts, its procedural posture, and its standard of review.
D. A Finding of Plain Error is Inconsistent with Our Prior Cases.
When the record indicates that the defendant has a medical or mental health
condition that may affect the brain but does not interfere with the defendant's
ability to rationally consult with his attorney and understand the proceedings, this
Court has not found sufficient evidence of incompetence. See, e.g., White, 670 F.3d
at 1081-85 (defendant's angry outbursts in court and report indicating that White
may have suffered from delusions was not substantial evidence of incompetence);
Davis v. Woodford, 384 F.3d 628, 646-47 (9th Cir. 2004) (defendant's depression
and irrational conduct during trial was not substantial evidence of incompetence);
United States v. Mendez-Sanchez, 563 F.3d 935, 939-40 (9th Cir. 2009)
15
(defendant's irrational behavior and difficulties communicating with his lawyer was
not substantial evidence of incompetence).
Most recently in White, we found that the district court did not err in failing
to hold a sua sponte competency hearing in a case where the defendant lashed out in
the courtroom, shouting obscenities and threats, spitting, and generally disrupting
the proceedings. White, 670 F.3d at 1081. White's behavior was so uncontrollable
that '[d]uring the twenty-five days of trial, White was able to remain in court
without incident on only four days. On the other days, he either had to be removed
or did not appear in the courtroom.' Id. At some point during the trial, the court
also received a report that White may have suffered from delusions. Id. at 1084.
However, while recognizing that '[t]hese alleged delusions, in connection with
White's repeated inappropriate behavior, may suggest that White had some µind of
mental problem--or they may not,' we concluded that the district court had not
erred in failing to hold a sua sponte competency hearing because '[t]he trial judge
had significant evidence suggesting that White µnew that he was on trial for serious
crimes and that a potential consequence could be life imprisonment.' Id.
Dreyer is not entitled to any relief under White's analysis.1 In fact, there is
1
The majority cites White for the proposition that 'we must conduct, as
White reaffirms, a 'comprehensive [review] not limited by either the abuse of
discretion or clearly erroneous standard.'' Maj. Op. at 18, n.3. Unliµe the situation
16
even less evidence of incompetence here than in White. There were no outbursts
and Dreyer was able to acµnowledge his rights and asµ questions during the
sentencing hearing. Dreyer was also able to participate respectfully and
appropriately. Id. Additionally, the doctors' reports did not undermine the district
court's determination--based on its experience with Dreyer and his demeanor--that
Dreyer was competent to be sentenced. Dreyer is suffering from the early stages of
FTD, and while the medical record indicates that he may have impaired judgment
and lowered inhibitions, there is no indication in any of the three medical reports
that he did not understand the proceedings against him and could not adequately
participate in his own defense. See Fernandez, 388 F.3d at 1251.
E. Any Error Did Not Affect the Fairness, Integrity, or Public
in White, where White's competence was repeatedly questioned in the trial court
and White's multiple outbursts interrupted the trial, here Dreyer's competence to
be sentenced is raised for the first time on appeal. Thus, White is not contrary to
our decisions providing that where 'the issue is raised for the first time on appeal,
we review a district courtùs decision not to sua sponte order a competency hearing
for plain error.' See Marµs, 530 F.3d at 814 (citing Fernandez, 388 F.3d at
1250-51). Moreover, that White involved a defendant who had already had one
competency hearing is a distinction without a difference since competency is an
ongoing question and should be evaluated at every stage of the proceedings. What
is relevant in White is its factual analysis of the trial judge's observations of the
defendant's behavior in the courtroom in combination with the reports about the
defendant's mental health. White, 670 F.3d at 1081-84. Here, Dreyer's reasonable
behavior in the court was consistent with the medical reports indicating that he was
competent to be sentenced.
17
Reputation of the Judicial System.
Even if the district court erred in proceeding to sentence Dreyer (which it did
not), under Marµs, Dreyer would only be entitled to relief if the error 'seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.' See
Marµs, 530 F.3d at 814 (quoting Thornton, 511 F.3d at 1225 n.2). Dreyer fails to
demonstrate that there is any error rising to this level. Here, Dreyer was represented
by counsel, who having obtained medical evaluations of Dreyer after he pleaded
guilty, did not alert the court that Dreyer was incompetent to be sentenced. Cf.
Douglas, 316 F.3d at 1085 (finding that attorneys have a duty to request a
competency hearing 'if there is evidence to suggest that the defendant is
impaired'). Therefore, Dreyer's attorney's failure to do so was a strategic choice
based on his belief in his client's competence. Dreyer's attorney only referenced
these medical reports to seeµ leniency in sentencing. In this context, the fairness,
integrity, and public reputation of the judicial proceedings would not be blemished
by the Court's denial of relief based on an issue raised by counsel for the first time
on appeal.
V. Conclusion
Because the district court reasonably concluded that Dreyer was competent to
be sentenced, I dissent from the majority's opinion. First, although Dreyer's
18
medical evaluations indicate that he suffers from FTD and has some related mental
deficiencies, none of the reports indicate that these deficiencies interfered with his
ability to consult with his lawyer or to understand the proceedings against him.
Second, although Dreyer chose not to allocute, neither the records nor the district
court's observations of Dreyer's behavior in the courtroom indicate that he was
incompetent to be sentenced. Third, none of the cases cited by the majority support
granting relief to a represented defendant who behaves normally in court and has no
compelling evidence of incompetence. Fourth, granting Dreyer relief is
inconsistent with out recent opinion in White, directing deference to the trial judge's
judgment. Fifth, even if the district court did err, the error does not seriously affect
the fairness, integrity, or reputation of the judicial proceedings. In sum, the
majority improperly substitutes its evaluation of Dreyer, based on a cold and
inconclusive record, for the trial judge's determination that was based not only on
the medical record but on Dreyer's conduct in court. Because the district court did
not err in sentencing Dreyer without sua sponte ordering a competency hearing, I
would affirm.2
2
Our differing opinions as to the need to hold a competency hearing
should in no way affect the district court's determination of Dryer's competency
following the mandated competency hearing.
19