United States v. Klat, Susan Viola

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 2, 1998 Decided September 22, 1998

No. 97-3075

United States of America,

Appellee

v.

Susan Viola Klat,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 96cr00385-01)

Mary Manning Petras, appointed by the Court, argued the
cause and filed the briefs for appellant.

David B. Goodhand, Assistant United States Attorney,
argued the cause for appellee, with whom Wilma A. Lewis,
United States Attorney, John R. Fisher and Elizabeth Tros-
man, Assistant United States Attorneys, were on the brief.

Mary-Patrice Brown, Assistant United States Attorney, en-
tered an appearance.

Before: Wald, Williams and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Wald, Circuit Judge: A jury convicted Susan Viola Klat of
threatening to assault the Clerk of the United States Su-
preme Court, William Suter, and the Chief Justice of the
United States Supreme Court, William Rehnquist. On ap-
peal, appellant challenges her conviction and sentence based
on a number of alleged errors made by the district court,
including (1) allowing her to appear pro se at a hearing to
determine her competency to stand trial; (2) failing adequate-
ly to warn her of the dangers and disadvantages of self-
representation; (3) failing to dismiss the indictment as duplic-
itous; (4) failing to give the jury a special unanimity instruc-
tion; and (5) failing to depart downward in sentencing on the
basis of diminished capacity.

We reject all of the defendant's claims except for the
district court's failure to provide appellant with counsel at a
hearing to determine her competency to stand trial. We hold
that the defendant had a Sixth Amendment right to counsel
at this hearing and that the district court therefore erred in
allowing appellant to appear pro se. As a remedy for this
error, we remand the case to the district court for an eviden-
tiary hearing to determine whether the competency hearing
could have come out differently if, as the Sixth Amendment
requires, the defendant had been represented at the hearing.
If it is determined that counsel could have altered the out-
come of the competency hearing, appellant's conviction must
be vacated and appellant afforded a new trial.

I. Background

On October 25, 1996, appellant was indicted on two counts
of threatening to assault Mr. Suter (Count 1) and Chief
Justice Rehnquist (Count 2) with the intent to retaliate
against them on account of their performance of official
duties. The government's evidence against appellant includ-
ed letters and voice mail sent to a California government

official as well as statements made to co-workers, friends,
Federal Bureau of Investigation agents and employees at the
United States Supreme Court, spanning a six-month period
from February 29, 1996 through August 25, 1996.1 The
government claimed that these various statements, letters
and messages constituted threats to assault Mr. Suter and
Chief Justice Rehnquist in violation of 18 U.S.C. ss 115 and
1114.

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1 Prior to August, 1996, appellant was living and working as a
nurse in San Diego, California. In September of 1995, appellant
filed a civil rights suit against the State of California, which was
dismissed on Eleventh Amendment grounds. See Trial Tr. at 156,
159. Subsequently, appellant petitioned the United States Supreme
Court (1) for a stay, which was denied in February, 1996 and (2) for
a writ of certiorari, which was denied in June 1996. See id. at 272,
275. After her petition for a writ of certiorari was denied, appellant
began announcing her intention to move to Washington, D.C. in
order, as she told several people, to ensure that the Supreme Court
heard her case. See id. at 187. Appellant did in fact move to the
Washington, D.C. area, where she was ultimately arrested by the
FBI. Appellant's allegedly threatening acts included several state-
ments made to co-workers to the effect that she was going to go to
the Supreme Court and "blow away anybody" who stood in her way,
see id. at 219, and a letter addressed "[t]o the clerk and Justices of
the Supreme Court" which stated, among other things, the follow-
ing:

Denying me or anyone else the Constitution's protection while
disregarding federal law only demonstrates that this Court
lacks the interest and ability to protect all individuals' rights or
administer justice in any form. One shouldn't have to resort to
creating casualties, such as the Oklahoma bombing, to get your
attention. Unfortunately, experience shows that this is the
only method that creates change and actually works. The
Declaration of Independence distinctly states that whenever
any form of government becomes destructive of these ends, it
is the right of the people to alter or abolish it. Nowhere in this
declaration does it state that corruption is to be tolerated. An
eye for an eye may well be the only solution left to justice in
this country. The writ will still be written and the story told

Prior to her indictment, on August 27, 1996, appellant was
brought before a magistrate for a probable cause hearing.
Appellant was represented at this hearing by appointed coun-
sel. The magistrate found probable cause and remanded
appellant back to jail for a forensic screening to ascertain
whether appellant was competent to stand trial. Dr. Bruce
Cambosos performed this screening and concluded that appel-
lant was competent to stand trial. A bail hearing was held on
September 3, 1996, where the magistrate granted appellant's
request through counsel that she be released on her own
recognizance.

On September 24, 1996, appellant filed a motion requesting
that her attorney be removed and that she be named counsel
of record. Attached to this motion was a signed "Waiver of
Right to Assigned Counsel." In these two documents, appel-
lant stated, inter alia, that she was "aware of the implica-
tions and responsibilities involved that accompany being rep-
resented in propria persona and waive[d] the right to have
supportive counsel present or involved at this time"; that she
"hereby relinquishe[d] the right to retain the federal public
defender as counsel and w[ould] proceed with all procedures
and proceedings connected with this case in propria persona
hereinafter"; and that she was "aware that both the Sixth
Amendment to the Constitution of the United States and
Fed. Rules of Crim. Proc., rule [sic] 44(a) provide for the
right to assignment of counsel and elect[ed] to waive this
right." J.A., Ex. 3. Appellant requested in her motion an
order naming her counsel of record "officially" as of Septem-
ber 17, 1996, at 4:30 p.m. Id.

Appellant was arraigned on November 1, 1996. At her
arraignment hearing, she followed up on her motion to re-
move appointed counsel. Appointed counsel also moved to
withdraw because appellant had filed a civil suit against him.
The district court granted counsel's motion to withdraw, and,
based on appellant's behavior at the hearing--which the court
described as "bizarre"--ruled that there was "reasonable
cause" to believe that appellant was suffering from a mental

__________
with the ultimate outcome explained by whoever survives this
madness and is left standing. Id. at 177.

disease or defect that rendered her unable to understand the
nature of the proceedings against her. The district court
then ordered appellant into custody to be examined pursuant
to 18 U.S.C. s 4241(b). Although the district court had
granted appointed counsel's motion to withdraw, the court did
not appoint new counsel for appellant.

Appellant spent nearly a month at Carswell Federal Medi-
cal Center in Forth Worth, Texas. There, she was examined
by Dr. James Shadduck, a forensic psychologist. Appellant
allowed herself to be interviewed by Dr. Shadduck but re-
fused to participate in formal psychological testing. Based on
his observations of appellant, Dr. Shadduck concluded that
she was competent to stand trial. See Appellant Br., Attach.
C. Dr. Shadduck did note "strong evidence of a narcissistic
personality disorder, and the possibility of a diagnosis of a
bipolar disorder," id. at 6, and that appellant "occasionally
evidenced excessive suspiciousness that verged on paranoia."
Id. at 5. However, Dr. Shadduck also found that appellant
displayed "at least average intellectual abilities, and no nota-
ble cognitive impairments." Id at 7. Ultimately, Dr. Shad-
duck concluded that appellant was "not presently suffering
from a mental disease or defect which would render her
unable to understand the nature and consequences of the
proceedings against her or to assist properly in her own
defense." Id. Dr. Shadduck's forensic report was submitted
to the district court on December 16, 1996.

On January 16, 1997, the district court held a hearing to
determine whether appellant was competent to stand trial
and whether she could represent herself at trial. Appellant
appeared at this hearing pro se. Based on Dr. Shadduck's
report and its own observation of appellant's behavior at this
hearing, the district court found that appellant was in fact
competent and, further, that she could represent herself at
trial. Appellant agreed at this hearing to the appointment of
standby counsel; standby counsel was appointed on January
28, 1997, and appeared with appellant at all subsequent
proceedings.

The jury trial commenced on February 24, 1997. Appellant
gave the opening statement and cross-examined the first two

government witnesses. However, after cross-examining the
second witness, appellant informed the court that she could
not continue to "confront" her friends because it was "too
emotional" for her. Trial Tr. at 213. Accordingly, standby
counsel took over the rest of the trial and sentencing. On
February 26, 1997, the jury found appellant guilty on both
counts of the indictment. On May 27, 1997, appellant was
sentenced to a term of 57 months imprisonment for each
count, to run concurrently, to a year of supervised release for
each count, to run concurrently, and to a $100 special assess-
ment for each count.

II. Discussion

A.Right to Counsel at the Competency Hearing

On November 1, 1996, appellant was arraigned before the
district court. Appellant was represented by appointed coun-
sel at her arraignment hearing; however, by the close of the
hearing, the district court had both (1) granted appointed
counsel's motion to withdraw from the case and (2) ordered
appellant into custody, finding "reasonable cause" to believe
that appellant was incompetent to stand trial. The district
court did not subsequently appoint new counsel. According-
ly, appellant was without counsel from the close of her
November 1, 1996 arraignment hearing until the district court
found her competent to stand trial and to waive her right to
counsel at the January 16, 1997 hearing.

A defendant has a right to counsel at every critical stage of
a criminal prosecution. See Estelle v. Smith, 451 U.S. 454,
469-71 (1981); Kirby v. Illinois, 406 U.S. 682, 688-89 (1972).
A competency hearing is one such critical stage. See, e.g.,
United States v. Byers, 740 F.2d 1104, 1119 (D.C. Cir. 1984)
(in banc) (noting that stage is critical where defendant is
"confronted 'by the legal system,' in that he ha[s] a law-
related choice before him, and could ... profit from the
expert advice of counsel ...." (quoting Estelle v. Smith, 451
U.S. at 471)).2 Of course, a defendant may waive her right to

__________
2 See also 18 U.S.C. s 4247(d) ("At a hearing ordered pursuant to
this chapter the person whose mental condition is the subject of the
hearing shall be represented by counsel....").

counsel and, indeed, the Supreme Court in Faretta v. Califor-
nia, 422 U.S. 806 (1975), has held that a defendant has a Sixth
Amendment right to represent herself. However, the Su-
preme Court noted that while a defendant has a right to
represent herself, this defendant must "knowingly and intelli-
gently" forgo the benefits traditionally associated with the
right to counsel in order to be allowed to proceed pro se. Id.
at 835.

In the instant case, appellant had clearly indicated her
desire to waive her right to counsel and to proceed pro se.
However, at the November 1, 1996 arraignment hearing the
district court made an explicit finding that there was "reason-
able cause" to believe that appellant was mentally incompe-
tent to stand trial. Under these circumstances, we find that
the district court erred in allowing appellant's appointed
counsel to withdraw without appointing new counsel to repre-
sent appellant until the issue of her competency to stand trial
had been resolved. This finding is based on our conclusion
that, where a defendant's competence to stand trial is reason-
ably in question,3 a court may not allow that defendant to
waive her right to counsel and proceed pro se until the issue
of competency has been resolved.4

The Supreme Court has not explicitly considered this issue;
however, we find support for our conclusion from the Court's
decision in Pate v. Robinson, 383 U.S. 375 (1966), where it

__________
3 "Where a defendant's competence to stand trial is reasonably in
question" means where, as in this case, the trial court has found
"reasonable cause" under 18 U.S.C. s 4241(b); or, of course, where
the trial court's failure to do so would be reversible as an abuse of
discretion.

4 We note that the district court did not find, prior to the
competency hearing, that appellant had waived her right to counsel.
However, from the standpoint of the Sixth Amendment, it is irrele-
vant whether the district court erroneously found a waiver of
counsel or simply neglected to appoint counsel for appellant: absent
a valid waiver of counsel, it is constitutional error for a court to
allow a defendant to proceed pro se once the right to counsel has
attached.

found that a defendant could not waive his right to a compe-
tency hearing when there was a question as to his competen-
cy to stand trial: "[I]t is contradictory to argue that a
defendant may be incompetent, and yet knowingly or intelli-
gently 'waive' his right to have the court determine his
capacity to stand trial." Id. at 384. Likewise, we find it
contradictory to conclude that a defendant whose competency
is reasonably in question could nevertheless knowingly and
intelligently waive her Sixth Amendment right to counsel.5
Such a defendant may not proceed pro se until the question of
her competency to stand trial has been resolved.6

Accordingly, we find that appellant was erroneously denied
her Sixth Amendment right to counsel because the district
court found reasonable cause to doubt appellant's competency
to stand trial and yet failed to appoint counsel to represent
her through the resolution of the competency issue. This
finding does not end our inquiry, however, for we must also
determine the proper remedy for this erroneous denial of
counsel. In Chapman v. California, 386 U.S. 18 (1966), the
Supreme Court noted that there are "some constitutional
rights so basic to a fair trial that their infraction can never be
treated as harmless error ...."; the Court listed the right to
counsel as one such right. Id. at 23 & n.8. The Supreme
Court has not, however, held that all non-trial denials of
counsel require automatic reversal of a defendant's conviction.
For example, in Coleman v. Alabama, 399 U.S. 1 (1970), the

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5 See also United States v. Purnett, 910 F.2d 51, 55 (2d Cir. 1990)
("Logically, the trial court cannot simultaneously question a defen-
dant's mental competence to stand trial and at one and the same
time be convinced that the defendant has knowingly and intelligent-
ly waived his right to counsel.)"

6 In Godinez v. Moran, 509 U.S. 389 (1993), the Supreme Court
held that the standard for determining competency to stand trial is
the same as the standard for determining competency to waive
counsel. See id. at 399-400. Pursuant to the Court's decision in
Godinez, therefore, a court cannot logically question a defendant's
competence to stand trial while at the same time finding the
defendant competent to waive counsel--the standard is the same for
both determinations.

Court held that a preliminary hearing constituted a critical
stage in the criminal process and that the defendants were
thus entitled to counsel at the hearing. However, the Court
did not automatically reverse the defendants' convictions but
instead remanded the case to the state court to determine
"whether the denial of counsel at the preliminary hearing was
harmless error under Chapman v. California ...." Id. at
11.

In Satterwhite v. Texas, 486 U.S. 249 (1988), the Supreme
Court explained that the determination of whether a Sixth
Amendment violation requires automatic reversal turns on
the extent to which the violation pervades the entire criminal
proceeding. As the Court noted: "Some constitutional viola-
tions ... by their very nature cast so much doubt on the
fairness of the trial process that, as a matter of law, they can
never be considered harmless. Sixth Amendment violations
that pervade the entire proceeding fall within this category."
Id. at 256. The Court further noted that in previous cases
requiring automatic reversal, "the deprivation of the right to
counsel affected--and contaminated--the entire criminal pro-
ceeding." Id. at 257.

In order to determine whether the Sixth Amendment viola-
tion here affected and contaminated the entire criminal pro-
ceeding--thus requiring automatic reversal under Satter-
white--we remand the case for an evidentiary hearing to
determine whether the competency hearing could have come
out differently if appellant had been represented by counsel.
The Supreme Court has expressed reluctance to permit retro-
spective hearings on questions of mental competency, see
Pate, 383 U.S. at 387; however, the purpose of the hearing
here is not to determine, retrospectively, whether appellant
was or was not in fact incompetent to stand trial. Rather, the
purpose of the hearing is to determine whether counsel might
have made certain decisions or arguments which could have
changed the result of the competency hearing. The Seventh
Circuit utilized a similar standard in attempting to determine
whether a constitutional error in a defendant's competency
hearing required reversal, stating that the "question is wheth-
er there is a reasonable possibility that [absent the constitu-

tional error] the trial judge would have found [the defendant]
unfit." United States ex rel. Bilyew v. Franzen, 686 F.2d
1238, 1245 (7th Cir. 1982). Similarly, the United States
District Court for the Eastern District of Virginia found that
the defendant there did not need to demonstrate that "he was
in fact incompetent to succeed on [his ineffective assistance of
counsel] theory. He need only show that counsel's failure to
pursue what should have been reasonable doubts as to his
competency was prejudicial to him." McLaughlin v. Royster,
346 F. Supp. 297, 310 (E.D. Va. 1972).

If the district court determines on remand that counsel
could not have changed the outcome of the competency
hearing, reversal is not required because the effects of the
violation would be effectively confined to the competency
hearing--that is, they would not serve to contaminate the
entire criminal proceeding. If, however, the district court
determines that the competency hearing could have come out
differently absent the Sixth Amendment violation, reversal is
required because the violation under this determination would
serve to contaminate the entire criminal proceeding, including
appellant's subsequent waiver of her right to counsel at trial
and the trial itself.

In making this determination, the district court should
inquire into whether counsel could have made certain tactical
decisions (such as retaining a second forensic expert to evalu-
ate appellant) or made certain arguments (such as question-
ing Dr. Shadduck's report on grounds that it was based solely
on his observations of appellant rather than on formal testing)
which could have changed the outcome of the competency
hearing. The district court should also keep in mind that
appellant had a right to counsel at her competency hearing
but that she also had a right to counsel for the period
between her arraignment hearing and her competency hear-
ing. Although a defendant does not have the right to have
counsel present during a psychiatric examination, see Byers,
740 F.2d. at 1119, a defendant does have a right to counsel
when faced with law-related choices with respect to this
examination. Id. A defendant thus has a right to counsel
before a psychiatric exam; for example, when making the

"significant decision of whether to submit to the examination
and to what end the psychiatrist's findings could be em-
ployed." Estelle, 451 U.S. at 471. Accordingly, the district
court should include in its inquiry what impact counsel could
have had on appellant's decision not to submit to formal
psychological testing, considering, for example, the fact that
Dr. Shadduck noted that he could not definitively conclude
that appellant was not suffering from a bipolar disorder
because appellant had refused to participate in formal testing.

B.Validity of Appellant's Waiver of Right to Counsel at
Trial

Appellant argues that the district court failed to advise her
of the dangers and disadvantages of self-representation and
thus, apart from any question of her competency to stand
trial, that her waiver of counsel was invalid and she was
denied her Sixth Amendment right to counsel at trial. The
government concedes that the district court did not engage in
the ideal colloquy with appellant; however, the government
argues that appellant's waiver was nevertheless valid because
the record as a whole indicates that appellant's waiver of
counsel was knowing and intelligent.

The Supreme Court in Faretta held that a defendant has a
constitutional right to self-representation but that, in order to
represent himself, a defendant must "knowingly and intelli-
gently" forgo the benefits traditionally associated with the
right to counsel:

Although a defendant need not himself have the skill and
experience of a lawyer in order competently and intelli-
gently to choose self-representation, he should be made
aware of the dangers and disadvantages of self-
representation, so that the record will establish that "he
knows what he is doing and his choice is made with eyes
open."

422 U.S. at 835 (1975) (quoting Adams v. United States ex rel.
McCann, 317 U.S. at 279). In United States v. Bailey, 675
F.2d 1292 (D.C. Cir. 1982), this court enjoined trial judges in
future cases involving defendants' invocations of their right to

self-representation to "mak[e] clear on the record the aware-
ness by defendants of the dangers and disadvantages of self-
representation as to which the Supreme Court in Faretta has
voiced its concern." Id. at 1300. However, the Bailey Court
did not find that a failure to make such a finding clear on the
record required reversal where the record as a whole indicat-
ed that the defendant's waiver of his right to counsel was
knowing and voluntary.7 In finding that the record as a
whole indicated a knowing and voluntary waiver, the Bailey
Court took note of the fact that the defendant "consciously
and emphatically wanted to represent himself"; that there
was no possibility that the defendant "was misled or coerced
into waiving his right to counsel"; that the defendant had
studied law at Leavenworth for three years; and that the
defendant "had previously been convicted of a felony, a factor
which necessarily indicates that he had some knowledge and
understanding of the relevant law and courtroom procedure."
Id. at 1301-02.

Under the facts of this case, we agree with the government
that the record as a whole establishes that appellant's waiver
of counsel was knowing, intelligent, and voluntary (except of
course insofar as she may have been lacking competency).8

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7 In Godinez v. Moran, 509 U.S. 389 (1993), the Supreme Court
added the word "voluntary" to the inquiry of whether a waiver is
"knowing" and "intelligent." Id. at 400, 402.

8 We agree with appellant that the district court failed to engage
appellant in a sustained colloquy concerning the dangers and disad-
vantages of self-representation. The district court did state at
appellant's arraignment hearing that, "If I were charged with a
serious crime like this, as you are, I would not represent myself. I
would want independent advice to assist me." 11/ 1/96 Tr. at 4.
However, at the January 16, 1997 competency hearing--where the
district court actually found that appellant could represent herself
at trial--the district court did not re-enter this conversation with
appellant and did not make clear on the record that appellant was
aware of the dangers and disadvantages of self-representation.
Nevertheless, we find that the district court's failure to do so does
not require reversal here because the record otherwise establishes a
knowing, intelligent, and voluntary waiver.

First, appellant consistently and emphatically expressed her
desire to represent herself at trial. Her pretrial motion
requesting removal of appointed counsel clearly demonstrated
that she was aware that she had a Sixth Amendment right to
counsel and that she wished to waive this right. For exam-
ple, appellant noted in her motion that she was "aware of the
implications and responsibilities involved that accompany be-
ing represented in propria persona and waive[d] the right to
have supportive counsel present or involved at this time."
J.A., Ex. 3.

Furthermore, as the district court was aware, at the time of
the January 16, 1997 hearing, appellant was a 39-year old
nurse who had previously worked in complex areas of nursing
such as neonatal intensive care, acute care, and psychiatric
care. Indeed, appellant argued this very point at her ar-
raignment hearing: "I'm an ICU nurse, competent. I take
care of people on a [sic] every day basis ... I have to perform
competently each and every minute that I work." 11/1/96 Tr.
at 21.

Moreover, appellant was relatively well-versed in the law.
First, appellant had litigated her civil suit in California pro se.
Additionally, appellant did a great deal of self-study on
criminal law subsequent to her arrest, as appellant explained
to the district court at her competency hearing: "But I did
spend every free moment that I was allowed off the unit in
Carswell in the law library. I did go through the entire two
volumes of criminal trial manual that is in D.C. I did go
entirely through the Federal Rules of Criminal Procedure."
1/16/97 Tr. at 9. Dr. Shadduck confirmed as well that
appellant "spent a significant portion of her stay at [Carswell]
doing research in the law library" and that she "clearly
demonstrate[d] an in depth understanding of the legal pro-
cess...." Appellant Br., Attach. C at 4, 6.

Finally, there is absolutely no evidence in the record to
suggest that appellant was in any way coerced or misled into
waiving her right to counsel. In sum, we conclude, as did the
court in Bailey, that "[o]n the record before us in this case,
[appellant's] claim on appeal of the invalidity of the trial

judge's grant of [her] request is not persuasive as to any
necessity to reverse [her] conviction." 675 F.2d at 1302.

C.Duplicity of Charges

Appellant argues that both counts of the indictment are
duplicitous and that the district court therefore erred in
failing to dismiss the indictment as was requested by appel-
lant through pretrial motion. The government argues that
the indictment is not duplicitous because it properly charged
a series of events as a single count because the events
constitute a common scheme to threaten. We agree with the
government that the acts charged constitute a common
scheme to threaten and therefore that the district court did
not err in failing to dismiss the indictment as duplicitous.

"Duplicity" is the joining in a single count of two or more
distinct and separate offenses. See United States v. Mangi-
eri, 694 F.2d 1270, 1281 (D.C. Cir. 1982). Appellant is correct
in noting that the two counts in the indictment charged
numerous allegedly threatening acts (i.e., different state-
ments, letters, voicemail messages). However, several acts
may be charged in a single count if the acts "represent a
single, continuing scheme that occurred within a short period
of time and that involved the same defendant." United
States v. Alsobrook, 620 F.2d 139, 142 (6th Cir. 1980).

Appellant argues that the acts charged did not occur within
a short period of time because the acts spanned the period
from February to August of 1996. We do not believe, howev-
er, that six months is too long a period for acts charged in an
indictment to constitute a single, continuing scheme. The
various acts charged all involved appellant and all related to
appellant's apparent frustration with the Supreme Court's
denial of her appeals. Appellant's argument with respect to
the duplicity rule would require the government to file a
separate count for each allegedly threatening statement, let-
ter, and voicemail message, "thereby producing the danger of
inappropriate multiple punishments for a single criminal epi-
sode." Mangieri, 694 F.2d at 1282. We do not find the
indictment in this case to be duplicitous.

D.Unanimity Instruction

Appellant argues that the district court erred in failing to
instruct the jury that it had unanimously to find that at least
one of the acts charged in each of the counts constituted a
threat to assault. Specifically, appellant argues the district
court erred in failing to give a special jury instruction to the
effect that the jurors must be unanimous as to which act(s)
they find the defendant guilty. We have previously urged
trial courts to employ a special unanimity instruction when an
indictment charges more than one act. See Mangieri, 694
F.2d at 1281; United States v. Hubbard, 889 F.2d 277, 278
(D.C. Cir. 1989). However, appellant failed to request a
special unanimity instruction; consequently, we review the
district court's failure to do so, sua sponte, for plain error.
See Hubbard, 889 F.2d at 278. We cannot conclude that it
was plain error not to give a special unanimity instruction in
this case. In the context of the entire indictment and the
trial, we conclude that the general unanimity instruction
given by the district court sufficed to instruct the conscien-
tious juror that she must agree with the other jurors on what
act(s) constituted a threat to assault. See Mangieri, 694 F.2d
at 1281.

E.Downward Departure for Diminished Capacity

Appellant argues that the district court erred because it
failed to depart downward from the applicable sentencing
range under U.S.S.G. s 5K2.13 ("[A court may depart down-
ward] to reflect the extent to which reduced
mental capacity contributed to the commission of the of-
fense."). However, appellant failed to request a downward
departure under section 5K2.13. Accordingly, we review the
district court's failure, sua sponte, to depart downward on the
basis of appellant's diminished capacity under plain error.
See United States v. Studevent, 116 F.3d 1559, 1564 (D.C. Cir.
1997). Appellate review in the context of downward depar-
tures is limited to a determination of "whether the sentencing
judge misunderstood the scope of its authority to depart."
United States v. Washington, 106 F.3d 983, 1015 (D.C. Cir.),
cert. denied, 118 S. Ct. 446 (1997). There is no indication that
the district court misunderstood its authority to depart under

section 5K2.13. The court was not asked to depart under
section 5K2.13 and its failure, sua sponte, to do so is not plain
error.

For the foregoing reasons, we remand the case for an
evidentiary hearing to determine whether counsel could have
made a difference in the outcome of appellant's competency
hearing. If the district court determines that counsel could
have made a difference, appellant's conviction and sentence
are vacated. Otherwise, they are affirmed.

So ordered.