United States v. Klat, Susan Viola

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2000 Decided June 2, 2000

No. 99-3103

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 M. Petras, appointed by the court, argued the cause
for the appellant.

Thomas S. Rees, Assistant United States Attorney, argued
the cause for the appellee. Wilma A. Lewis, United States
Attorney, and John R. Fisher and Thomas J. Tourish, Jr.,
Assistant United States Attorneys, were on brief for the
appellee.

 Before: Silberman, Henderson and Randolph, Circuit
Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: Susan Viola
Klat was convicted of threatening to assault the Chief Justice
of the United States and the Clerk of the United States
Supreme Court in violation of 18 U.S.C. ss 115, 1114. On
appeal after the conviction, we remanded for the district court
to determine whether there was a reasonable possibility that
appointment of counsel to represent Klat would have changed
the outcome of the pre-trial competency hearing in which
Klat, upon her insistence, appeared pro se. See United
States v. Klat, 156 F.3d 1258, 1267 (D.C. Cir. 1998). On
remand the district court found "no reasonable possibility
that counsel could have affected the outcome of defendant's
competency hearing." United States v. Klat, 59 F. Supp. 2d
47, 55 (D.D.C. 1999). Klat appeals, seeking reversal of the
district court's order on remand and a new trial. She argues
counsel could have affected the outcome of the competency
hearing by (1) sharing his observations regarding her under-
standing of the proceedings and her ability to assist counsel,
(2) advising her to participate more fully in the psychological
evaluation, (3) challenging the findings of the forensic psy-
chologist who examined her, (4) retaining an independent
expert to examine Klat and (5) advising her not to waive her
right to counsel. Her arguments, whether standing alone or
in combination, do not persuade us to overturn the district
judge's determination that counsel could not have affected the
outcome of the competency hearing. Accordingly, we affirm
the district court.

I.

Based on conduct law enforcement officers viewed as
threats directed toward the Chief Justice and toward person-
nel of the United States Supreme Court, Klat was arrested
and presented to a magistrate for a preliminary hearing,
where she was represented by counsel from the Federal
Public Defender's office. The magistrate judge found proba-

ble cause and ordered Klat to undergo a competency exami-
nation. On September 3, 1996 Bruce Cambosos, M.D., a
psychiatrist, concluded Klat was competent to stand trial and
she was released on her own recognizance. She filed a
motion three weeks later seeking removal of counsel so that
she could represent herself.

On October 25, 1996 Klat was indicted on two counts for
threatening to assault, in violation 18 U.S.C. ss 115 and 1114,
an officer and employee of the United States and a United
States judge. Klat first appeared before the district court at
a November 1, 1996 arraignment hearing. The record of the
hearing reflects Klat's determination to represent herself.
See Klat, 59 F. Supp. 2d at 47-48. During the hearing,
counsel moved to withdraw from the case, citing a lawsuit
Klat had filed seeking to hold the United States liable for his
representation of her. The court granted the motion to
withdraw but found that Klat's "bizarre behavior" provided
reasonable cause to order a competency evaluation. Joint
Appendix (JA), tab F, at 2.

Klat was then transferred to Carswell Medical Center in
Fort Worth, Texas, where James A. Shadduck, a forensic
psychologist, performed a competency evaluation. Klat was
interviewed and otherwise examined by Shadduck and others
who conducted "psychiatric consultation," "social work consul-
tation" and "behavioral observation." JA, tab E, at 3. They
also interviewed Klat's former counsel and her former co-
workers. Shadduck interviewed Klat five times for a total of
approximately ten hours. Klat, however, refused to take both
an IQ test and the Multi-Phasic Personality Inventory
(MMPI). Shadduck submitted his report to the court on
December 16, 1996. Citing Klat's in-depth knowledge of the
legal process, of the charges against her and of potential
outcomes, as well as her at least average intellectual capacity,
Shadduck concluded that she was competent to stand trial.
He diagnosed her as possessing a narcissistic personality
disorder and potential bipolar disorder.

One month after Shadduck submitted his report, the dis-
trict court conducted a competency hearing at which Klat

appeared pro se. No witnesses were called. The govern-
ment did not challenge Shadduck's evaluation and Klat, while
taking issue with certain aspects of the diagnosis, maintained
she was competent. She did agree to the government's
proposal that she accept appointment of stand-by counsel.
The court specifically cited Klat's demeanor during the hear-
ing as indicative of her competence.1 The court accepted
Shadduck's opinion and found Klat competent to stand trial
and, in particular, that she had demonstrated both an under-
standing of the charges and an ability to conduct her defense.
See JA, tab F, at 4.

A jury trial commenced in February 1997 and, after open-
ing statements and the government's first two witnesses, Klat
requested that stand-by counsel conduct the rest of the trial.
She was convicted on February 26, 1997 and was held in jail
pending sentencing. Thomas Goldman, M.D., a psychiatrist,
examined Klat on March 26, 1997 at her counsel's request.
Although he determined that she was not competent to
continue representing herself, he did not state that she was
not competent to be sentenced. On May 27, 1997 Klat was
sentenced to a term of 57 months' imprisonment on each
count, to run concurrently.

Klat appealed and we rejected all of her challenges but one.
See United States v. Klat, 156 F.3d 1258 (D.C. Cir. 1998).
We held that the district court erred in allowing Klat to
appear without representation at the hearing to determine
her competence to stand trial while at the same time it
expressed misgivings about her competence:

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 "reasonable cause" to believe that appellant
was mentally incompetent to stand trial. Under these
circumstances, we find that the district court erred in

__________
1 The district court found Klat's demeanor "controlled and appro-
priate for the situation." JA, tab F, at 4.

 allowing appellant's appointed counsel to withdraw with-
out appointing new counsel to represent 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, 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.

156 F.3d at 1262-63 (footnotes omitted). We held that the
district court's error constituted a violation of Klat's sixth
amendment right to counsel. See id. at 1263. Accordingly,
we remanded "for an evidentiary hearing to determine wheth-
er counsel could have made a difference in the outcome of
appellant's competency hearing." Id. at 1267. We instructed
the district court to vacate the conviction and sentence only if
it determined counsel could have affected the outcome but
otherwise affirmed both her conviction and sentence. See id.

The district court held an evidentiary hearing on April 14,
1999 during which the government presented only one wit-
ness, James Shadduck, and Klat through counsel presented
four: Shelly Stanton, M.D., a psychiatrist; Thomas Goldman,
the psychiatrist who had examined her before sentencing;
Richard Schmitt, a psychologist; and Klat's former counsel
who withdrew at arraignment. On cross-examination Shad-
duck testified that it was possible, but not probable, that the
MMPI test (which Klat refused) could have affected his
opinion to some degree and that it was possible, but not
probable, that Klat was suffering from a delusional disorder
when he evaluated her.

All of Klat's expert witnesses examined her at some point
after the competency hearing; Goldman's exam occurred
approximately two months later and the rest were even later.
Goldman concluded, on the basis of a fifty-minute interview
and his review of Klat's trial counsel's case file, that Klat was
not competent to proceed pro se. He testified that if he had
been asked in March 1997 about her competence to stand
trial one month earlier, he would have deemed her incompe-
tent. Stanton examined Klat later, in August 1997, after she

had begun a hunger strike, and found she had a delusional
disorder. Stanton testified that, if Klat was in the same
condition at the time of the competency hearing in January
1997 as she was when he saw her several months later in
August 1997, he would opine she was not competent at the
earlier time. Schmitt, who examined Klat in September 1997,
testified that she suffered not only from a narcissistic disor-
der but also from a delusional disorder. Based in large part
on his conclusion that Klat misapprehended the facts of her
case and exhibited "a paranoid distrust of her attorneys,"
Transcript (Tr.) 4/14/97 at 157, Schmitt opined that Klat was
not competent when he examined her. Shadduck, Goldman
and Stanton agreed, however, that Klat's conviction could
have caused "decompensation," that is, a worsening of her
condition. See Tr. 4/14/97 at 18-19 (Shadduck), 69 (Stanton)
and 110 (Goldman).

Klat's former counsel testified that Klat's conduct after the
August 30, 1996 preliminary hearing and Cambosos's initial
competency determination on September 3 led him to believe
she was incompetent. He cited Klat's tape-recording a meet-
ing with him and her irrational views on how to proceed in
the case: for example, refusing the negotiated pre-trial diver-
sion offer and seeking indictment so that she could go to trial
and expose the government conspiracy against her. He gave
as reasons for his failure to voice his concerns to the magis-
trate judge his then-recent appointment and insufficient infor-
mation, and for his subsequent failure to express his misgiv-
ings to the district court the legal action Klat had by then
instituted and his reliance on the government to challenge her
competence.

In the end, the district court rejected Klat's arguments, the
same five arguments she makes here, and concluded there
was no reasonable possibility that counsel could have changed
the result of the competency hearing. The district court
emphasized that Klat "repeatedly demonstrated her total
unwillingness to follow advice from others, especially counsel"
and that "three separate mental health experts evaluated Klat

at three separate times,"2 none of whom found her incompe-
tent. 59 F. Supp. 2d at 51. The district court discounted
counsel's doubts as to Klat's competence as cumulative in
light of the court's observations.3 See id. at 53. The court
also noted that counsel had represented Klat only at the
preliminary hearing stage.

Rejecting Klat's argument that counsel could have advised
her to participate in further psychological testing, the court
stated that, given her resistance to counsel's advice and
efforts, "there is absolutely no evidence to give rise to the
inference of a reasonable possibility that defendant would
have acted in accordance with such advice." 59 F. Supp. 2d
at 53. The court dismissed the argument that counsel's
cross-examination of Shadduck, assuming testimony had been
taken, would have persuaded it that Klat was not competent.
The court again relied on the opinions of the two experts
(Cambosos and Shadduck) whose evaluations were before it
when it originally concluded she was competent. See id. at
54. Responding to Klat's fourth argument that counsel could
have secured another expert opinion, the court noted that she
proceeded in forma pauperis and found no reasonable possi-
bility that the court would have approved the hiring of an
independent expert to conduct what would have been the
third evaluation in three and one-half months. See id. Final-
ly, the district court concluded that counsel's advice not to
proceed pro se would not have affected the outcome in light of
Klat's earlier rejection of the advice of both counsel and the
court that her pro se stance was imprudent. See id. at 54-55.

__________
2 Although the district court's count included Goldman who evalu-
ated Klat after conviction, in its analysis the court relied on the
opinions of Cambosos and Shadduck who had evaluated Klat before
the court found Klat competent to stand trial. See 59 F. Supp. 2d
at 54.

3 The district court concluded that counsel's description of Klat's
obstinacy in ignoring his efforts to communicate and her inflated
opinion of her defense could not have affected the outcome because
it had itself noted the same behavior. See 59 F. Supp. 2d at 53.

 II.

The applicable standard of review is, not surprisingly, in
dispute. Klat argues that the determination is a mixed
question of law and fact which should be reviewed de novo.
She likens the issue before us to our review of the "reason-
able probability of a different outcome" determination in an
ineffective assistance of counsel claim.4 The government, on
the other hand, contends that the determination amounts to a
finding of fact warranting review only for clear error. It
compares the issue before us to a competency determination
which we review for clear error. See United States v. Cald-
well, 543 F.2d 1333, 1349 (D.C. Cir. 1974).5

In our review of the district court's conclusion that there
was no reasonable possibility counsel could have effected a
different outcome, the factual basis of the competency deter-
mination necessarily comes into play. Nevertheless our task
is to decide the legal question whether a constitutional error
may have so affected the proceeding below that the reason-
able possibility standard is met. We must therefore apply a
legal standard to a particular set of facts. Accordingly, we
are reviewing a mixed question of law and fact. See Barbour
v. Browner, 181 F.3d 1342, 1345 (D.C. Cir. 1999).

In Barbour we discussed the factors involved in determin-
ing whether a mixed question of law and fact deserves
deferential or independent review:

__________
4 Our standard of review for ineffective assistance of counsel
claims is itself subject to debate. See United States v. Askew, 88
F.3d 1065, 1070 (D.C. Cir. 1996) (unnecessary to pass on unsettled
issue of standard of review).

5 "Competence to stand trial requires 'sufficient present ability to
consult with his lawyer with a reasonable degree of rational under-
standing and ... a rational as well as factual understanding of the
proceedings against him.' " Caldwell, 543 F.2d at 1348 (quoting
Dusky v. United States, 362 U.S. 402 (1960) and citing Pouncey v.
United States, 349 F.2d 699, 701 (D.C. Cir. 1965)). Competence to
stand trial vel non is decided by a preponderance of the evidence.
See 18 U.S.C. s 4241(d).

 As to so-called "mixed questions of law and fact," ...
there is no obvious way to decide whether determinations
made at the trial level should be reviewed deferentially
or independently. Therefore, the reviewing court must
make a reasoned judgment whether the risk of an erro-
neous trial level decision, or the need to clarify the
governing law, or any other value secured by review de
novo, is warranted in view of the added costs of such
review.

181 F.3d at 1345 (citations omitted). We cited the discussion
in Miller v. Fenton, 474 U.S. 104, 114 (1985), to the effect that
determining the applicable standard of review often turns
upon which judicial actor "is better positioned than another to
decide the issue in question." Barbour, 181 F.3d at 1345.
We cautioned, however, that the goal of clarifying governing
law may be elusive if the case is "intensely fact specific." Id.
at 1348. Here, the district judge who presided over the
competency hearing is better positioned than we to decide if
counsel could have affected his factual determination of Klat's
competence. See Caldwell, 543 F.2d at 1349 (competency
determination is question of fact). We conclude that our
review of the mixed question of law and fact before us should
be more deferential than independent and, therefore, gov-
erned by the clearly erroneous standard.

The reasonable possibility inquiry governing the district
court's determination is similar to that made in determining
whether a trial error of constitutional dimension is harmless:
that is, whether the error is harmless beyond a reasonable
doubt. See Coleman v. Burnett, 477 F.2d 1187, 1211 n.158
(D.C. Cir. 1973) (noting that "[i]n Chapman it was held that
before a federal constitutional error can be held 'harmless,'
the court must be of the belief that it was harmless beyond a
reasonable doubt [and] must find that there is no reasonable
possibility that the error complained of might have contribut-
ed to the conviction") (citing Chapman v. California, 386 U.S.
18, 24 (1967), overruled in part by Brecht v. Abrahamson, 507
U.S. 619 (1993), and Fahy v. Connecticut, 375 U.S. 85, 86-87

(1963)) (emphasis added);6 United States v. Saro, 24 F.3d
283, 287 (D.C. Cir. 1994) ("For most constitutional errors, an
appellate court is to reverse if it entertains a 'reasonable
doubt' about whether the error affected the outcome below.");
see also Pyles v. Johnson, 136 F.3d 986, 994 (5th Cir. 1998)
(equating reasonable possibility determination regarding ex-
trinsic evidence in jury room to harmless error review).

Of the five reasons Klat advances for asserting that counsel
could have affected the outcome, the district court's rejection
of the second and fifth reasons (counsel could have advised
her (2) to participate more fully in the psychological evalua-
tion and (5) not to waive her right to counsel) is plainly
reasonable. We, therefore, consider further only the others.

Klat first argues that counsel could have offered his own
observations regarding her understanding of the proceedings
and her ability to assist him. Because a large part of the
competency determination turns upon a defendant's ability to
assist counsel, see Caldwell, 543 F.2d at 1348 (competence
requires ability to consult with counsel), representation at a
competency hearing is important and we have so recognized:

This court recognizes that in making a competency deter-
mination it may be very useful for the trial judge to
question both the defendant and his counsel; the applica-
ble criteria measure one's ability to consult with his
lawyer and to understand the course of legal proceed-
ings. Thus counsel's first-hand evaluation of a defen-
dant's ability to consult on his case and to understand the

__________
6 In Chapman, 386 U.S. at 24, the Court stated:

There is little, if any, difference between our statement in Fahy
v. State of Connecticut about 'whether there is a reasonable
possibility that the evidence complained of might have contrib-
uted to the conviction' and requiring the beneficiary of a
constitutional error to prove beyond a reasonable doubt that
the error complained of did not contribute to the verdict
obtained. We, therefore, do no more than adhere to the
meaning of our Fahy case when we hold, as we now do, that
before a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless
beyond a reasonable doubt.

charges and proceedings against him may be as valuable
as an expert psychiatric opinion on his competency. This
is particularly so when--as in the instant case--trial
counsel has independently expressed 'misgivings' about
the defendant's competency.

United States v. David, 511 F.2d 355, 360 (D.C. Cir. 1975)
(footnotes omitted); see also Drope v. Missouri, 420 U.S. 162,
177 n.13 (1975) ("Although we do not, of course, suggest that
courts must accept without question a lawyer's representa-
tions concerning the competence of his client, an expressed
doubt in that regard by one with the closest contact with the
defendant, is unquestionably a factor which should be consid-
ered.") (citations and internal quotation marks omitted).

In rejecting Klat's argument, the district court relied in
part on counsel's failure to raise the competency issue at the
preliminary hearing. Its reliance is misplaced for several
reasons. First, counsel would have had more exposure to
Klat had he continued to represent her at the competency
hearing. Furthermore, given the sole purpose of the compe-
tency hearing (and the distinct purpose of the preliminary
hearing), it is more likely that counsel would have voiced his
concerns there, particularly if the district court had followed
the David holding's lead and sought his input. We may
assume the ground for granting counsel's motion to withdraw
was valid when the motion was granted at arraignment and
that therefore new counsel would have been appointed to
represent Klat at the competency hearing. It is also likely
that newly appointed counsel would have raised the compe-
tency issue. First, he had an ethical duty to do so, assuming
he had doubts as to her competence, see, e.g., United States v.
Boigegrain, 155 F.3d 1181, 1188 (10th Cir. 1998), and, second,
Klat's steadfast refusal to follow advice of counsel, as empha-
sized by the court below, suggests that counsel could have
thought her unable to consult with him rationally and, there-
fore, unable to have a rational understanding of the proceed-
ings. See Caldwell, 543 F.2d at 1348 (defendant must have
rational, not merely factual, understanding of proceedings).

 Decisive to our rejection of Klat's argument, however, is
that nearly everything counsel could have offered was then
apparent to the district court.7 See 59 F. Supp. 2d at 53. It
recognized that Klat was untrusting, see id. at 51, that she
"had a distorted notion of the merits of her case," id. at 53,
and that she refused to communicate meaningfully with her
lawyer, see id. at 51, 53-54. In fact, the district court's
observations to this effect are what triggered it to order the
competency hearing. See JA, tab F, at 2 ("Because of
defendant's bizarre behavior in open court, the court ordered
that she be committed to the custody of the Attorney General
for ... psychiatric examination."); see also 59 F. Supp. 2d at
53. It is highly unlikely on this record that Klat would have
been receptive to any counsel. The district court thus justifi-
ably deemed any observations of counsel "cumulative." See
59 F. Supp. 2d at 53. At the hearing, it was reassured by two
expert opinions that Klat was not incompetent. Accordingly,
the district court did not clearly err in finding no reasonable
possibility that counsel's observations could have affected the
outcome.

Next, Klat argues counsel could have challenged Shad-
duck's findings. The district court dismissed this argument
because no live testimony was taken at the competency
hearing and because Klat challenged only Shadduck's conclu-
sion, arguing that the facts before him should have led him to
the opposite conclusion. See 59 F. Supp. 2d at 54. But
counsel could have subpoenaed Shadduck and then questioned
his opinion. See Caldwell, 543 F.2d at 1348 (D.C. Cir. 1975)
("While the proceeding need not be lengthy or involved, as a
minimum we think the inquiry must be of record and both
parties must be given the opportunity to examine all wit-
nesses who testify.") (internal quotation marks omitted); see
also United States v. Williams, 113 F.3d 1155, 1160 (10th Cir.
1997) (once doubt is raised as to his competence "protections
of an adversary proceeding must be afforded the defendant").

__________
7 As the court pointed out on remand, "Dr. Shadduck, like Dr.
Cambosis [sic] before him, also observed this type of behavior and
found defendant to be competent." See 59 F. Supp. 2d at 53.

The only point on which Shadduck's opinion appears assaila-
ble, however, is his inability to administer, and assess, the
personality test (MMPI) Klat refused to take. In any event,
Shadduck testified at the hearing on remand that, while the
lack of the MMPI result limited the accuracy of his diagnosis,
it did not affect the accuracy of his competency determina-
tion.

Perhaps counsel's opportunity to expose this weakness in
Shadduck's diagnosis would have enabled counsel to persuade
the court to appoint another expert to evaluate Klat, which
leads to her last argument. Klat claims counsel could have
retained an independent expert to evaluate her. As the
district court recognized, however, Klat's argument requires
several inferences to be stacked one upon the other. See 59
F. Supp. 2d at 54. The weakest may be the foundational
supposition that the district judge would have second-guessed
Shadduck's opinion (the second competency determination in
three and one-half months), whether based on cross-
examination or on counsel's doubts which mirrored his own,
and then authorized and credited another evaluation.8

For the foregoing reasons, we conclude that the district
court did not err, at least not clearly so, in determining that
there was no reasonable possibility counsel could have affect-
ed the outcome of Klat's competency hearing. Accordingly,
we affirm the district court.

So ordered.

__________
8 Although Klat claims she has a right to another evaluation, that
decision is committed to the trial court's discretion. See 18 U.S.C.
s 4247(b) (providing that additional psychiatric or psychological
examinations may be conducted "if the court finds it appropriate");
cf. id. s 4241(b) (same as to initial examination).