United States v. DeShazer

FILED
United States Court of Appeals
Tenth Circuit

February 6, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 07-8023

TIMOTHY DESHAZER,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D. Ct. No. 00-CR-25-WFD)

Trace L. Rabern, Santa Fe, New Mexico, appearing for Appellant.

David A. Kubichek, Assistant United States Attorney (Kelly H. Rankin United
States Attorney), Office of the United States Attorney for the District of
Wyoming, appearing for Appellee.

Before TACHA, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
McCONNELL, Circuit Judge.

TACHA, Circuit Judge.

Defendant-Appellant Timothy DeShazer appeals his conviction for

interstate stalking, see 18 U.S.C. § 2261A, and carrying a firearm during a crime
of violence. See 18 U.S.C. § 924(c)(1)(A)(ii). Through counsel, he argues that

he was not competent to stand trial, that he should not have been permitted to

represent himself at trial, and that his pre-trial detention without mental-health

treatment violated his due process rights. We have jurisdiction under 28 U.S.C.

§ 1291, and we AFFIRM.

I. BACKGROUND

A. Underlying Offense and State Court Proceedings

During the spring of 1998, the victim in this case contacted Mr. DeShazer

after her recent divorce. The two, who were former childhood friends, began to

interact via telephone and e-mail. Their relationship progressed, and in July 1998

Mr. DeShazer, who was living in Wisconsin, spent a month at her home in

Wyoming.

The victim then learned that her sister was ill and began to fly frequently to

Las Vegas to visit her. At this point, she told Mr. DeShazer that the relationship

would not work. Mr. DeShazer continued, however, to contact her by telephone

and e-mail, despite her pleas that he stop. In December 1998, he hand delivered a

note and left it in her mailbox. The note included this passage: “Sorry I missed

you. I hope to hear from you by January 10. Otherwise, perhaps you will see me

when I return.”

After the note, some time passed without incident. On January 5, 2000,

however, Mr. DeShazer loaded his vehicle with various guns, duct tape, and other

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supplies and set out to the victim’s home. As he attempted to burst through her

front door, she heard him and retrieved a gun she had obtained for this very

situation. During the ensuing confrontation, a neighbor knocked on the door, and

the victim was able to escape and call the police. Mr. DeShazer was arrested

about an hour later near Gillette, Wyoming. In the car, the police found, among

other inculpatory items, a digital recording on which Mr. DeShazer said he

intended to seek retribution from the victim for destroying his life.

Mr. DeShazer was charged in Wyoming state court with attempted

kidnapping, aggravated assault and battery, and aggravated burglary. Shortly

thereafter, he was indicted in federal district court on one count of interstate

stalking, in violation of 18 U.S.C. § 2261A, and one count of using or carrying a

firearm during and in relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii).

The federal charges were deferred pending resolution of the state charges.

Mr. DeShazer was found guilty on the state charges, but while awaiting

sentencing he was diagnosed with delusional and depressive disorders. The

Wyoming State Hospital informed the state trial court that his delusional disorder

was “well controlled by his current medication,” but that he had been legally

incompetent during the trial. Mr. DeShazer was then taken into federal custody

for further evaluation that could be used in the state sentencing proceedings.

B. Federal Proceedings

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 Doctors evaluated Mr. DeShazer at the Federal Medical Center in

Rochester, Minnesota. In December 2001, a report submitted to the district court

stated that Mr. DeShazer “does not presently suffer from a mental disease or

defect rendering him unable to understand the nature and consequences of the

proceedings against him, or to assist properly in his defense.” Mr. DeShazer was

subsequently returned to state custody for sentencing. Upon completion of the

state proceedings, Mr. DeShazer was returned to federal custody in July 2002 to

face the federal charges against him.

1. First Competency Hearing

After postponing arraignment to allow defense counsel to obtain an

independent mental evaluation, the district court held a competency hearing on

February 24, 2003. Upon hearing testimony from defense and government

experts, the district court found Mr. DeShazer competent to stand trial.

Specifically, the government expert’s opinion persuaded the court. It

corresponded to the opinion set forth in the December 2001 report, that Mr.

DeShazer had an obsessive compulsive disorder and not a mental illness. The

court also told defense counsel to inform Mr. DeShazer that it would not allow

him to “play games with the court.”

At the arraignment, trial was set for July 2, 2003. In May 2003, however,

defense counsel filed a motion to dismiss based on double jeopardy. The trial

was delayed for resolution of this motion and an interlocutory appeal to this

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court. The appeal was mooted, however, when the Wyoming Supreme Court

reversed Mr. DeShazer’s state-court convictions on competency grounds that

August.

2. Second Competency Hearing

Trial was rescheduled for February 17, 2004. On motions by both the

government and counsel for Mr. DeShazer, however, the district court scheduled

another competency hearing for the morning of trial. At that hearing, the district

court expressed concerns with the possible staleness of the 2001 report by the

Federal Medical Center and ordered that Mr. DeShazer be evaluated again by a

facility within the Bureau of Prisons. The district court scheduled a third

competency hearing for August 25, 2004.

3. Third Competency Hearing

On August 17, counsel for Mr. DeShazer moved to continue the third

competency hearing and requested independent competency evaluations. After a

hearing, the district court granted the defense’s requests. While those evaluations

were underway, and before a new date had been set for a competency hearing, the

district court set a preliminary trial date of January 4, 2005, and an alternate date

of April 18, 2005.

A few weeks before the January 4, 2005 trial date, counsel for Mr.

DeShazer filed a motion asking the court to continue the trial, schedule a new

competency hearing, and dismiss the charges pursuant to Jackson v. Indiana, 406

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U.S. 715 (1972). The district court denied the motion to dismiss the charges

pursuant to Jackson (Mr. DeShazer immediately appealed), but it granted the

motion to continue the trial so that the court could yet again evaluate Mr.

DeShazer’s mental competency. The district court again indicated its suspicion

that Mr. DeShazer was manipulating the system.

In May 2005, Mr. DeShazer refused to be medicated any further and filed a

motion to stay forced medication. The district court granted the motion despite

its concern that Mr. DeShazer was malingering. In August 2005, Dr. Cristina

Pietz, a federal examiner, determined that Mr. DeShazer suffered from no mental

illness or defect. Rather, he had obsessive impulses that interfered with daily

functioning.

In July 2006, we dismissed Mr. DeShazer’s interlocutory appeal based on

Jackson for lack of appellate jurisdiction. See United States v. DeShazer, 451

F.3d 1221, 1222 (10th Cir. 2006). The district court then denied another motion

by defense counsel for hospitalization and further evaluation since one had been

conducted in August 2005 by Dr. Pietz. Mr. DeShazer also had his counsel file a

motion stating his desire to represent himself under Faretta v. California, 422

U.S. 806 (1975).

In August 2006, the court held a third competency hearing. At that hearing,

there was no real dispute that Mr. DeShazer rationally understood, inter alia, the

nature of the proceedings against him, the strength of the government’s evidence,

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and the potential availability of an insanity defense. Accordingly, the central

question was whether Mr. DeShazer suffered from a mental disease that rendered

him unable to assist in his defense. See 18 U.S.C. § 4241(a). Mr. DeShazer’s

expert, Dr. Bruce Kahn, who had examined Mr. DeShazer many times previously,

testified that Mr. DeShazer was delusional and that this mental disease interfered

with his ability to work with counsel. Dr. Kahn’s testimony can be summarized

as follows: Mr. DeShazer had been, and is at the present time, delusionally

obsessed with the victim in that he believes she deliberately used him for the

purpose of ruining his life. Because of these delusions, Mr. DeShazer is furious

with the victim, and his sole intent is to avenge himself by making the “truth”

about the victim be known. He thinks only the victim can deliver that truth by

testifying at trial that he is a nice person and that she intentionally used him and

tried to hurt him. This mindset is also the motivation for Mr. DeShazer’s request

to represent himself at trial. His counsel does not support that trial strategy, and

Mr. Deshazer feels only he can effectively cross-examine the victim.

In contrast, Dr. Pietz testified that Mr. DeShazer was not delusional; that

his interest in the victim and his desire to put her on the stand to expose the truth

was indicative of an obsessive-compulsive personality disorder, rather than a

mental illness; and that he could assist in his own defense if he chose to do so.

The district court ultimately found Dr. Pietz’s testimony more persuasive and thus

found Mr. DeShazer competent to stand trial.

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 4. Faretta Hearing

Having determined that Mr. DeShazer was competent to stand trial, the

court held two hearings in September 2006 concerning his request to represent

himself pursuant to Faretta. The court repeatedly and vehemently urged Mr.

DeShazer that he should proceed with counsel. The court added that due to the

overwhelming evidence against him, the only plausible defense was likely

insanity, and that he needed counsel’s assistance to present that defense. The

court additionally questioned the wisdom of Mr. DeShazer’s professed trial

strategy. The court warned him that he would likely anger the jury and suggested

that even if the victim testified in the way that he hoped, such testimony would

not acquit him. Despite the district court’s repeated admonitions, Mr. DeShazer

unequivocally affirmed his desire to represent himself. After determining he

knowingly and voluntarily waived his right to counsel, the court granted the

motion to proceed pro se and appointed his counsel as standby counsel. The

matter went to trial in November 2006, and the jury returned guilty verdicts on

both counts. The court sentenced Mr. DeShazer to 480 months’ imprisonment.

On appeal, 1 counsel for Mr. DeShazer argues that (1) the district court

1
On July 11, 2008, Mr. DeShazer submitted a pro se letter to this court
expressing his desire to withdraw his appeal. After ordering briefing on the issue
from the government and counsel for Mr. DeShazer, we remanded to the district
court for the limited purpose of determining whether Mr. DeShazer was
competent to withdraw his appeal in that the decision was made knowingly and
voluntarily. The district court found that Mr. DeShazer was not competent to
(continued...)

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erroneously found him competent to stand trial; (2) he was not competent to

waive his right to an attorney and represent himself; and (3) he was denied

treatment during the pendency of his case, which he contends violates the

principles set forth in Jackson.

II. DISCUSSION

A. Competency Determination

The Constitution forbids the trial of a defendant who lacks mental

competency. See Indiana v. Edwards, — U.S. —, 128 S. Ct. 2379, 2383 (2008).

The test for competency to stand trial asks whether a defendant “has sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding—and whether he has a rational as well as factual understanding of

the proceedings against him.” United States v. Mackovich, 209 F.3d 1227, 1232

(10th Cir. 2000) (quotations omitted); see also Drope v. Missouri, 420 U.S. 162,

171 (1975) (“It has long been accepted that a person whose mental condition is

1
(...continued)
make that decision, and, in any event, that he no longer wished to withdraw his
appeal. Although Mr. DeShzaer has since submitted additional pro se motions
suggesting he again would like to withdraw his appeal, we proceed with our
disposition of this case. Neither the government nor counsel for Mr. DeShazer
challenge the district court’s determination that Mr. DeShazer is not competent to
withdraw his appeal, and regardless, it is within our discretion whether to accede
to a litigant’s request to terminate his appeal. See Fed. R. App. P. 42(b) (“An
appeal may be dismissed on the appellant’s motion on terms agreed to by the
parties or fixed by the court.”) (emphasis added); see also United States v.
Cusumano, 83 F.3d 1247, 1251 n.4 (10th Cir. 1996) (denying the appellant’s
motion to withdraw his appeal).

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such that he lacks the capacity to understand the nature and object of the

proceedings against him, to consult with counsel, and to assist in preparing his

defense may not be subjected to a trial.”).

We review the district court’s competency determination for clear error and

will reverse only if we are “left with the definite and firm conviction that a

mistake has been committed.” Mackovich, 209 F.3d at 1232 (quotations omitted).

“When assessing a defendant’s competence, the district court may rely on a

number of factors, including medical opinion and the court’s observation of the

defendant’s comportment.” Id. (quotation omitted). That a defendant suffers

from some degree of mental illness or disorder does not necessarily mean that he

is incompetent to assist in his own defense. Id. at 1233.

Mr. DeShazer contends that the district court erred in finding him

competent to stand trial for three reasons: (1) the finding was based on the court’s

unsupported view that he was malingering; (2) the finding was based on an

erroneous legal opinion by Dr. Pietz; and (3) the court did not give sufficient

weight to the requirement that a defendant have the ability to cooperate with his

attorney and assist in his defense.

First, the district court’s competency order does not indicate that its

determination was based, even in part, on its view that Mr. DeShazer was

purposefully manipulating the court system in an attempt to further delay a

trial—an opinion that was not shared by any of the experts involved or even the

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government. While the district court judge certainly voiced his suspicions

throughout the proceedings, he repeatedly stated that despite his personal views,

the court’s determination must be based on evidence provided by appropriate

professionals. 2

Indeed, the court focused on the testimony presented by each side’s

respective experts. During the August 2006 competency hearing, both Dr. Kahn

and Dr. Pietz testified that Mr. DeShazer could understand the nature and

consequences of the proceedings against him. The principal disagreement was

over whether he was able to assist in his defense. Dr. Kahn opined that Mr.

DeShazer suffered from a delusional disorder that compromised his ability to

assist counsel at trial. Dr. Pietz concluded that Mr. DeShazer did not suffer from

a mental illness but rather from a personality disorder, and that despite this

disorder, Mr. DeShazer had the capacity to assist in his own defense if he chose

to do so. The district court stated that it found Dr. Pietz’s evaluation and opinion

2
For example, just before the court granted Mr. DeShazer’s motion to stay
forced medication, the judge stated:
I maintain the position I have maintained on this case from the
beginning, and that is that Mr. DeShazer is one of the most adept
manipulators of the criminal justice system that I’ve encountered. I
remain convinced of that fact, and I want this record to reflect—and I
hope it has in the previous occasion reflected so that there’s no doubt
at the Court of Appeals that I think this is one giant scam on the
United States. I believe Mr. DeShazer was competent from the git-
go and that he is competent now and that he should stand trial for the
charges for which he is indicted. But I recognize that I cannot stand
on my own assessment and that it has to be based on an evaluation of
clinicians.

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more persuasive, and expressly adopted her conclusion. Specifically, the court

found that Mr. DeShazer had “a rational and factual understanding of the nature

and consequences of the proceedings against him, and that he is capable of

cooperating and assisting in his defense.” In short, the record belies Mr.

DeShazer’s assertion that the court relied on its suspicion that he was

manipulating the system to support its competency determination.

Mr. DeShazer also argues that the competency determination is clearly

erroneous because it was, he contends, based on Dr. Pietz’s legally erroneous

view that a “personality disorder” is not a “mental illness” under 18 U.S.C.

§ 4241. 3 The court, however, did not rely on Dr. Pietz’s legal conclusion. Dr.

Pietz testified that a “personality disorder,” or Axis II illness, is not a mental

illness for purposes of § 4241, which she said was clear in both the relevant

literature and under Kansas v. Hendricks, 521 U.S. 346 (1997). The government

3
18 U.S.C. § 4241 reads in relevant part:

(a) Motion to determine competency of defendant.—At any time after
the commencement of a prosecution for an offense and prior to the
sentencing of the defendant, or at any time after the commencement
of probation or supervised release and prior to the completion of the
sentence, the defendant or the attorney for the Government may file a
motion for a hearing to determine the mental competency of the
defendant. The court shall grant the motion, or shall order such a
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.

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agrees that Hendricks does not stand for such a proposition—namely, that a

“mental illness” must be diagnosable as an Axis I illness for purposes of § 4241.

Indeed, Hendricks did not even discuss § 4241. Instead, it held that a mental

problem does not necessarily have to be diagnosable as a “mental illness” in order

to allow a state to involuntarily institutionalize a person. Id. at 359. The case is

inapposite, as it did not even address competency to stand trial.

In its competency order, the court did not reference Dr. Pietz’s erroneous

legal conclusion or Hendricks. Dr. Pietz also testified that the defendant could

rationally assist in his defense and cooperate with his lawyer—which are the

relevant considerations for a competency determination. Whether or not Mr.

DeShazer could be diagnosed with an Axis I or Axis II illness is irrelevant, and

there is no indication the district court relied on such a diagnosis.

Finally, Mr. DeShazer contends that the district court “gave little or no

weight” to the requirement that an accused be rationally and intelligently able to

assist his counsel. To the contrary, the district court identified this requirement

as the only genuine issue concerning his competency to stand trial. The district

court simply chose to credit the testimony of Dr. Pietz on this point, as it was

entitled to do. See Mackovich, 209 F.3d at 1232 (“[I]t is not clearly erroneous for

a district court to declare a defendant competent by adopting the findings of one

expert and discounting the contrary findings of another.”).

B. Waiver of Right to Counsel

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 A defendant has a Sixth Amendment right to self-representation. See

Faretta v. California, 422 U.S. 806, 819, 821 (1975). Because the right to

counsel is also guaranteed by the Sixth Amendment, however, a defendant may

waive the right to counsel and proceed at trial pro se “only if the waiver is

knowing, intelligent, and voluntary.” Maynard v. Boone, 468 F.3d 665, 676 (10th

Cir. 2006). The validity of such a waiver thus contains two distinct inquiries. Id.

The court must first ensure that the defendant is competent to waive counsel. Id.

It must then determine that the waiver is knowing and voluntary. Id.

The second prong of this analysis—whether the waiver is knowing and

voluntary—hinges on the defendant’s understanding of the significance and

consequences of his decision, as well as whether the decision was coerced. Id. at

677. Thus, we have said that “[i]t is ideal when the trial judge conducts a

thorough and comprehensive formal inquiry including topics such as the nature of

the charges, the range of punishment, possible defenses, and a disclosure of risks

involved in representing oneself pro se.” United States v. Turner, 287 F.3d 980,

983 (10th Cir. 2002) (quotations omitted). In this case, there is no serious dispute

that the district court’s repeated warnings and instructions were sufficient to

inform Mr. DeShazer of the dangers and disadvantages of proceeding pro se. Nor

does Mr. DeShazer maintain that his decision was made involuntarily.

Mr. DeShazer instead contends that he was not competent to waive his right

to counsel. In contrast to the knowing-and-voluntary analysis, we have held that

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the competency analysis focuses on the defendant’s ability to understand the

proceedings, and that the standard is the same as the standard used to determine

whether the defendant is competent to stand trial. See Maynard, 468 F.3d at

676–77. In his appellate brief, Mr. DeShazer argues for “a change in the law, at

least in cases where the only viable defense is an insanity defense, to require that

an accused must show something more than bare minimal competency to stand

trial to act as his own attorney in such a case.” In supplemental briefing, he also

directs our attention to Edwards, which was decided shortly after oral argument in

this case, and which he contends has altered the relevant legal framework.

Neither Mr. DeShazer nor his counsel raised this “heightened-standard”

argument below or otherwise objected when the district court conducted the

Faretta proceedings without considering Mr. DeShazer’s competency in these

terms. We therefore limit our review to plain error. See United States v. Muñoz-

Nava, 524 F.3d 1137, 1147 (10th Cir. 2008). “Plain error occurs when there is

(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotations omitted).

The Supreme Court first addressed the issue of competency to waive

counsel and to proceed pro se in Godinez v. Moran, 509 U.S. 389 (1993). In that

case, the defendant pleaded guilty to three counts of first-degree murder in

Nevada state court. Id. at 391. After he was deemed competent to stand trial, the

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defendant sought to discharge his attorneys and enter guilty pleas. Id. at 392.

The trial court found that the defendant waived counsel knowingly and

intelligently, and that he pleaded guilty freely and voluntarily. Id. at 393. The

court sentenced him to death on all three counts, and two were affirmed on

appeal. Id. In federal habeas proceedings, however, the Ninth Circuit concluded

that competency to waive constitutional rights requires a higher level of mental

functioning than that required to stand trial. Id. at 394. The Supreme Court

disagreed, rejecting “the notion that competence to plead guilty or to waive the

right to counsel must be measured by a standard that is higher than (or even

different from)” the trial competency standard. Id. at 398.

Following Godinez, we have made clear that the level of competency

required to waive the right to counsel is the same as the level of competency to

stand trial. See Maynard v. Boone, 468 F.3d at 676; United States v. Boigegrain,

155 F.3d 1181, 1186 (10th Cir. 1998) (“[T]he degree of competence necessary to

waive the right to counsel is identical to the degree of competence necessary to

stand trial.”). Indeed, Mr. DeShazer concedes in his brief that Faretta, Godinez,

and our precedent “compelled” the district court to find him competent to waive

his right to counsel once it determined he was competent to stand trial.

In Edwards, however, the Supreme Court clarified the precise parameters of

its decision in Godinez. In that case, an Indiana trial court found the defendant

competent to stand trial but not competent to represent himself at trial. Edwards,

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128 S. Ct. at 2382–83. The defendant proceeded with the assistance of counsel,

and the jury convicted him. Id. at 2383. The Indiana Supreme Court reversed the

convictions, reasoning that Godinez required the state trial court to allow the

defendant to represent himself. Id. Indiana petitioned for a writ of certiorari,

which the Supreme Court granted to address “whether the Constitution permits a

State to limit [a] defendant’s self-representation right by insisting upon

representation at trial—on the ground that the defendant lacks the mental capacity

to conduct his trial defense unless represented.” Id. at 2385–86. The Court

determined that states have that right. Id. at 2387–88.

The Court first explained that Godinez addressed only the level of

competency required to waive the right to counsel when the defendant intends to

enter a guilty plea and, accordingly, that a different standard may be used when

the defendant asserts his right to self-representation to defend himself at trial. Id.

at 2385. The Court also emphasized that Godinez involved a state trial court that

had permitted the defendant to represent himself, whereas Edwards involved a

state trial court that had denied the defendant that right. Id. Thus, the Court

reiterated that under Godinez, it is constitutional for a state to allow a defendant

to conduct trial proceedings on his own behalf when he has been found competent

to stand trial. Id. On the other hand, the state may insist on counsel and deny the

right of self-representation for defendants who are “competent enough to stand

trial . . . but who still suffer from severe mental illness to the point where they are

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not competent to conduct trial proceedings by themselves.” Id. at 2388.

Edwards, then, does not speak to the level of competency required to waive

the right to counsel and invoke the right to represent oneself at trial when (in Mr.

DeShazer’s words) “the only viable defense is an insanity defense.” Nothing in

Edwards suggests that the applicability of a particular defense is relevant to

whether a defendant is competent to waive counsel and represent himself.

In his supplemental brief, Mr. DeShazer correctly notes that after Edwards

a state may deny a criminal defendant the right to represent himself when he

suffers from a severe mental illness. But that situation is simply not present here:

the district court acceded to Mr. DeShazer’s unopposed request to invoke that

right. To the extent that Mr. DeShazer suggests that the district court was duty-

bound to deny him the right, we do not read Edwards as announcing such a new

rule. By its terms, the Edwards Court held only that “the Constitution permits

States to insist upon representation by counsel for those competent enough to

stand trial . . . but who still suffer from severe mental illness to the point where

they are not competent to conduct trial proceedings by themselves.” Edwards,

128 S. Ct. at 2388. Thus, while the district court was not compelled to find Mr.

DeShazer competent to waive his right to counsel simply because the court had

found him competent to stand trial, it does not follow that the district court was

absolutely prohibited from doing so. To the contrary, Edwards itself reaffirmed

that a court may constitutionally permit a defendant to represent himself so long

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as he is competent to stand trial. Id. at 2385. We are aware of no case that reads

Edwards differently. Accordingly, the district court did not err, let alone plainly

err, in finding Mr. DeShazer competent to waive his right to counsel and

represent himself at trial. See United States v. Taylor, 514 F.3d 1092, 1100 (10th

Cir. 2008) (explaining that error is plain when it is contrary to well-settled law).

C. Lack of Adequate Treatment Claim

Finally, Mr. DeShazer argues that a lack of adequate medical treatment

throughout the pendency of the pre-trial proceedings violated his due process

rights as articulated in Jackson. He makes clear that this claim is distinct from

his previous motion to dismiss under Jackson, which argued that the trial delay

prejudiced his ability to present an adequate defense, and which we dismissed for

lack of jurisdiction because it was in essence a speedy-trial claim. See DeShazer,

451 F.3d at 1222. He now contends that Jackson mandates a “promise of

treatment” and that his “long years barren of treatment” while his trial was

pending violated this principle. Because Mr. DeShazer raises this argument for

the first time on appeal, we again review for plain error. See Muñoz-Nava, 524

F.3d at 1147.

Mr. DeShazer does not point out where Jackson provides that such a

“promise of treatment” is constitutionally required. Indeed, he does not even

state what remedy he is seeking. Jackson held that due process prevents the

government from indefinitely confining an incompetent defendant without further

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proceedings directed at treatment or to restore competency. See Jackson, 406

U.S. at 720, 738. Here, unlike in Jackson, Mr. DeShazer was competent, and the

district court was eager to proceed to trial and dispense with the matter. Simply

put, the fact that the court did not sua sponte order mental health treatment while

Mr. DeShazer was in custody was not error.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Mr. DeShazer’s conviction.

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