[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14641
May 10, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 00-00677-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER IZQUIERDO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 10, 2006)
Before TJOFLAT and HULL, Circuit Judges, and RESTANI *, Judge.
PER CURIAM:
Defendant-Appellant Javier Izquierdo (“Izquierdo”) appeals his cocaine
*
The Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
distribution and firearm convictions that were based on his guilty plea. Izquierdo
contends that the district court erred in denying his subsequent motion to withdraw
his guilty plea based on incompetency. After review and oral argument, we affirm
the denial of Izquierdo’s motion and his convictions.
I. Background
A. Plea colloquy
Izquierdo, the sole appellant here, and his brother, Juan Izquierdo (“Juan”),
were indicted for robbery, in violation of 18 U.S.C. § 1951 (Count I); conspiracy to
distribute cocaine, in violation of 21 U.S.C. § 841 (Count II); use of a firearm
during a drug trafficking crime and during a crime of violence, in violation of 18
U.S.C. § 924 (Count III); and, as to Izquierdo only, possession of a firearm as a
convicted felon, in violation of 18 U.S.C. § 922 (Count IV). On September 10,
2001, pursuant to a written plea agreement, Izquierdo pleaded guilty to Counts II
and III of the indictment.1
During Izquierdo’s plea colloquy, his attorney explained to the district court
that Izquierdo was illiterate and that his plea agreement had been previously read
aloud—verbatim—to Izquierdo by both his attorney and his brother Juan. Upon
questioning by the district court, Izquierdo stated, inter alia, that he had never been
1
The plea agreement provided that the government would seek dismissal of Counts I and
IV of the indictment in exchange for Izquierdo’s guilty plea, which it did.
2
treated for a mental illness; that he was not presently under the influence of any
drugs, alcohol, or medication; that he was satisfied with his attorney’s
representation; that he had a full opportunity to review the charges against him
with his attorney; that he agreed with the alleged facts as described by the
government; and that he understood “each and every term of the plea agreement,”
including his sentencing possibilities, that he was surrendering certain civil and
trial rights, and that he might incur a fine or suffer adverse immigration
consequences. Additionally, Izquierdo twice acknowledged that he was thinking
clearly.
Based on the plea colloquy, the district court found Izquierdo “fully
competent and capable of entering an informed plea,” and accepted his guilty plea.
The district court scheduled sentencing for December 11, 2001.
B. Juan’s trial and the Haber Report
In the interim, brother Juan’s trial commenced on November 14, 2001.
During that trial, Juan filed an ex parte motion to have Izquierdo declared
incompetent. Juan’s motion argued that he could not have participated in a
conspiracy with Izquierdo because Izquierdo was of unsound mind. In support of
his ex parte motion, Juan filed a report of a psychological evaluation of Izquierdo
by Merry Haber, Ph. D., a psychologist (the “Haber Report”). Juan’s counsel
3
retained Haber to evaluate Izquierdo, which she did on November 21, 2001. The
Haber Report concluded that Izquierdo was incompetent.
In her Report, Haber summarized her evaluation of Izquierdo. Haber
administered a mental status examination, a clinical interview, a standardized
intelligence test, a test of reading, spelling, and arithmetic achievement, and a
measure of visual-motor coordination, perceptual organization, and memory.2
Haber also consulted Izquierdo’s mother and sister. Prior to Haber’s evaluation,
Izquierdo was told that the results of the examination would be given to his
attorney and to Juan’s attorney.
Based on Haber’s discussions with Izquierdo, his mother and sister, and
Juan’s attorney, the Haber Report stated that Izquierdo: (1) was born with his
umbilical cord tight around his neck, and as a result, he suffered a lack of oxygen
and was developmentally slow;3 (2) quit school in the eighth grade after being
expelled for fighting several times, and was unable to learn to read or write; (3) ran
away from home as a teenager because he did not want to receive psychological
treatment; (4) never held a driver’s license because he could not pass the test; (5)
2
Haber administered the Wechsler Adult Intelligence Scale-III, the Wide Range
Achievement Test-3, and the Bender Gestalt & Bender Gestalt Recall Test.
3
Izquierdo’s mother informed Haber that Izquierdo did not begin walking until age two,
did not begin talking until age three, and did not learn to tie his shoes or dress himself until age
nine.
4
suffered a concussion at age twenty-two; (6) has a history of frequent drug and
alcohol use; (7) has trouble falling asleep; (8) did not understand everything that
happened when he pleaded guilty, including the meaning of the word “parole”; and
(9) did not ask questions at his plea colloquy because he did not want people to
think he was stupid. Additionally, based on Haber’s tests and observations, the
Haber Report concluded that Izquierdo: (1) was “well oriented in all spheres with
attention and concentration intact”; (2) had “coherent, productive and goal-
oriented” thought processes; (3) when left alone, attempted to complete a problem
that he had been unable to complete during his test, indicating his involvement in
the process; (4) could add one-digit numbers with some mistakes, but could not
add two-digit numbers; (5) knew the alphabet, but could not spell on a first grade
level; and (6) had a generally inadequate “fund of information.” The Haber Report
concluded that intellectually, Izquierdo had an IQ of fifty-three to sixty-one, a
range corresponding to “moderate to mild mental retardation, and that test results
“suggest[ed] that he [was] not competent to proceed,” although, notably, “[a]
formal competency evaluation was not performed.” The Haber Report
recommended that a formal competency evaluation be conducted. Based on the
Haber Report, the district court declared a mistrial in Juan’s case.
5
C. The First FMC Report
Subsequently, on December 7, 2001 (four days before his scheduled
sentencing), Izquierdo filed an unopposed motion for an independent
psychological evaluation, supported by the Haber Report. On December 13, 2001,
the district court granted Izquierdo’s motion and recommended that Izquierdo’s
competency be evaluated at the Federal Medical Center in Butner, North Carolina
(“FMC”). At the FMC, Izquierdo was evaluated by a psychiatric team led by
Robert Lucking, M.D., (“Lucking”), a psychiatrist. On March 25, 2002, Lucking
authored a report of his team’s findings based on their evaluation of Izquierdo (the
“First FMC Report”).
Based on the FMC team’s interviews with Izquierdo, the First FMC Report
stated, among other things, that Izquierdo: (1) suffered a blow to the head in 1995,
as well as other head trauma; (2) could not read or write; (3) had been treated eight
times as a juvenile for drug and alcohol abuse, but had refused to consistently
attend psychiatric treatment in spite of a recommendation that he receive such
treatment; (4) did not sleep well; (5) suffered from mood swings but not
hallucination; (6) had a history of anoxia (decreased oxygen to the brain); (7) never
passed his driver’s test, but drove anyway; and (8) often got lost, even while
attempting to locate his own home.
6
The First FMC Report also noted, based on a multitude of tests 4 conducted
by Lucking and his team, that Izquierdo: (1) was oriented to people and places, but
not time; (2) had difficulty finding the correct words for objects; (3) performed
simple memory tasks adequately, but could not recite the months of the year in
correct order; (4) was able to count from one to twenty and twenty to one without
error, but with some difficulty; (5) was below average in recalling ideas expressed
in a story and was unable to think abstractly at any level using similarities,
differences, or proverbs; (6) showed no significant language deficits, but showed a
deficit in visual memory; (7) could not explain how similar items were related; (8)
could draw simple two-dimensional and three-dimensional objects without issue,
but struggled with drawing more difficult three-dimensional objects; (9) had a well
below normal “fund of general information”; (10) lacked math ability and had
difficulty putting letters in sequential order; (11) could not identify which object in
a series was unlike the others; (12) understood the concept of “finders-keepers,”
and was able to explain correctly “why we have fire insurance,” but was confused
by the concept of planning a three-day trip from Miami to Tampa Bay and could
4
According to the First FMC Report, Lucking’s team administered the following
procedures during Izquierdo’s first evaluation: (1) clinical interviews; (2) behavioral
observation; (3) physical examination; (4) Magnetic Resonance Imaging (“MRI”) of Izquierdo’s
brain; (5) Bender Visual Motor Gestalt Test; (6) Bender Visual Motor Gestalt Recall Test; (7)
Trail Making Test; (8) Rey Auditory-Verbal Learning Test (“RAVLT”); (9) Booklet Category
Test (“BCT”); and (10) Validity Indicator Profile (“VIP”).
7
not progress beyond the step of borrowing a car to make the drive. According to
the First FMC Report, although Izquierdo’s overall test results indicated no brain
damage, they did indicate cognitive difficulties and memory impairments.
In the First FMC Report, Lucking noted some irregularities in Izquierdo’s
test results. On one test (the RAVLT), Lucking noted that Izquierdo performed
worse than moderately impaired Alzheimer’s and Parkinson’s disease patients.
Lucking also noted that Izquierdo may have been exaggerating his level of
impairment on the BCT, because Izquierdo missed more than the usual number of
easy questions on that test—items that are generally missed by less than five
percent of brain-damaged people. Finally, Lucking observed that Izquierdo’s
responses on the VIP test indicated a lack of motivation and interest, and the First
FMC Report concluded that Izquierdo’s performance on the VIP “probably [did]
not reflect his true ability.”
Nevertheless, in the First FMC Report, Lucking ultimately concluded that
Izquierdo: (1) had shown a basic consistency and no attempt to mislead, and had
performed in a moderately to severely impaired range; (2) responded to some tests
in a random manner and may not have demonstrated his true abilities on some
tests; (3) suffered from “mild” mental retardation; (4) was not attempting to
malinger and made a valid attempt to participate in the testing; and (5) made an
8
effort to disguise himself as functioning at a higher level to avoid humiliation.
Finally, the First FMC Report determined that Izquierdo was not competent and
was unlikely to become competent, and that Izquierdo did not understand the
meaning of “guilty,” “not guilty,” or the nature and consequences of the criminal
proceedings against him.
The First FMC Report also recommended that Izquierdo be returned to
Butner for a period of 120 days, pursuant to 18 U.S.C. § 4241(d), to determine if
his competency could be restored. Lucking later explained that if Izquierdo’s
“deficits” were due to an organic brain injury, it would be unlikely that Izquierdo
could be restored to competency, but Lucking further indicated that “we wouldn’t
[have] be[en] able to tell for certain unless we had him back and we attempted to
educate him regarding the trial process.” Additionally, Lucking found no evidence
of hallucinations or delusions. The First FMC Report cautioned that because
Izquierdo’s primary language was Spanish, his ability to read and write in English
was not to be given excess weight in assessing his intelligence.
D. Motion to withdraw and the first competency hearing
On May 6, 2002, Izquierdo filed a motion to withdraw his guilty plea and to
be declared incompetent. Izquierdo’s motion was based on the Haber Report and
the First FMC Report. In response, the government advised the district court that
9
Oscar Diaz (“Diaz”), an inmate at the federal detention center where Izquierdo had
been held, had told agents that Izquierdo had told Diaz, prior to Izquierdo’s FMC
evaluation, that he planned “to act crazy” in order to be found incompetent. The
government also argued that Izquierdo acted rationally during his plea hearing and
that Izquierdo himself demanded a plea concession from the government,
demonstrating his lucidity and focus. The district court referred the issue to a
magistrate judge, who ordered an evidentiary hearing.
The hearing took place on June 21, 2002. After Lucking was sent out of the
courtroom, Diaz testified for the government. Specifically, Diaz testified that
Izquierdo told him in December 2001 that Izquierdo was pretending to be “ill” and
acting like he was “crazy” so that the doctors would find him mentally ill.
According to Diaz, Izquierdo told him that in order to appear mentally ill,
Izquierdo “told the doctor that he couldn’t sleep, that he had a lot of headaches,
that he had . . . visions at night . . . [and] that he felt like he was sick.” When Diaz
asked Izquierdo if all of that was true, Izquierdo explained that there was nothing
actually wrong with him. Diaz also testified that he had seen Izquierdo reading
books in his cell, writing postcards and poetry, and drawing tattoos. Diaz
acknowledged that he once had to read a letter to Izquierdo because it was written
in Spanish. Diaz further testified that he did not know that Izquierdo was born in
10
Spain and raised in the Dominican Republic.
Izquierdo’s mother and Lucking also testified at the hearing, in a manner
substantially consistent with their statements as recorded in the First FMC Report
and the Haber Report. Izquierdo’s mother stated that Izquierdo was born with the
umbilical cord twisted around his neck and that he developed slowly. Lucking
essentially reiterated his opinions contained in the First FMC Report, including
that Izquierdo was incompetent.
However, Lucking acknowledged that it was possible that Izquierdo was
being deceitful on two of the tests; that Izquierdo showed some inconsistencies
during testing; that the MRI of Izquierdo’s brain was normal; and that no test
confirmed his family’s claim that Izquierdo had suffered brain damage. Moreover,
Lucking testified that at the time he first tested Izquierdo and wrote the First FMC
Report, he was unaware of Diaz’s claim that Izquierdo intended to malinger.
Lucking further testified that if he had known about Diaz’s claims at the time of
the First FMC Report, he would have “look[ed] closer at the data, and . . . may
have sought some additional confirmatory evidence that [he] did not seek.”
Lucking ultimately agreed that further evaluation of Izquierdo was necessary,
testifying that he “would like to see . . . Izquierdo for some more time to reassess
this.”
11
Ultimately, the magistrate judge found it significant that Lucking
acknowledged that he might have evaluated Izquierdo differently if he had known
about Diaz’s testimony at the time of the First FMC Report. As such, the
magistrate judge ordered that Izquierdo be returned to the FMC for further
evaluation.
E. The Second FMC Report
The government filed a second report after Lucking’s team re-evaluated
Izquierdo at the FMC (the “Second FMC Report”). In the Second FMC Report,
dated February 13, 2003, Lucking concluded that Izquierdo: (1) was competent,
understood the charges against him, and could assist in his own defense; (2) had
attempted to mislead Lucking in the earlier evaluation; (3) did not suffer from
brain damage; (4) was malingering; and (5) was functionally illiterate. In his
second evaluation of Izquierdo, Lucking conducted: (1) clinical interviews; (2) a
behavioral observation; (3) a physical examination; (4) the VIP test; and (5) the
Minnesota Multiphasic Personality Inventory (second edition). All of these
procedures were performed in Lucking’s first evaluation, except for the Minnesota
Multiphasic Personality Inventory. See supra note 4.
Lucking’s new opinion was based on several factors, including: (1) Diaz’s
testimony; (2) letters given to Lucking by Izquierdo indicating that Izquierdo could
12
read and write, including one from Izquierdo’s brother that said, “I want to hear
from you too, and don’t tell me no sh-t that you cant wright [sic], cause I’ve seen
you do it”; (3) a statement from a government agent that surveillance indicated that
Izquierdo did not appear to get lost while returning to his house, could use the
Internet, had a Florida driver’s license, could negotiate gun and drug sales, and
bragged about eight prior robberies; (4) the government agent’s belief that
Izquierdo could have carried out a criminal plan; (5) Izquierdo’s refusal to sign his
Miranda5 waiver until it was read to him; (6) inconsistent and exaggerated test
scores that indicated to Lucking that Izquierdo was performing poorly on purpose,
including the Minnesota Multiphasic Personality Inventory test, on which Lucking
concluded that Izquierdo was “endorsing multiple psychological symptoms” in
order to “appear more ill than he is”; (7) Izquierdo’s participation in a cigarette
trafficking scheme while at Butner; (8) Izquierdo’s involvement in a gang at
Butner; (9) Izquierdo’s coherent provision of information to government agents
regarding inmate activity while in prison; (10) Izquierdo’s statement that he knew
his actions to be wrong; and (11) information that Izquierdo had approached other
inmates with a plan to frame another inmate for possession of a homemade knife.
5
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
13
F. Second competency hearing
The magistrate judge held a second competency hearing on June 10, 2003, at
which Lucking testified that Izquierdo was, in fact, competent. Among other
things, Lucking testified that Izquierdo’s test results were consistent with the test
results from Lucking’s prior evaluation, but, because there was no medical
evidence of a brain injury, those test results now suggested to Lucking that
Izquierdo was attempting to portray himself as mentally ill when he was not in fact
mentally ill. On cross-examination, Lucking also admitted that Izquierdo’s ability
to relay information to government agents was not relevant to Izquierdo’s
competency and that Lucking’s expertise with tests designed to discover
malingering was limited.
After Lucking’s June 10, 2003 testimony, Izquierdo’s counsel obtained
permission to have Haber reevaluate Izquierdo. After reexamining Izquierdo on
September 24, 2003, Haber concluded that Izquierdo was not malingering. Haber
testified to that effect before the magistrate judge on March 2, 2004, and reiterated
her opinion that Izquierdo was not competent to stand trial or enter a guilty plea
and never would be.
G. Report and recommendation
Ultimately, on March 10, 2004, the magistrate judge issued a report (the
14
“R&R”) that recommended that Izquierdo’s motion to withdraw his guilty plea be
denied. The magistrate judge found that Izquierdo had failed to meet his burden of
establishing that he was incompetent. The R&R recounted at length Lucking’s
findings and opinions. The magistrate judge then expressly rejected Haber’s
opinion because, inter alia: (1) the historical evidence on which Haber had relied
was supplied exclusively by Izquierdo and his family, and Haber did not have
Izquierdo’s medical records in order to verify Izquierdo’s medical background; (2)
Haber testified that she would have been “surprised” by information in the First
FMC Report, despite the fact that she also testified that she had supposedly
reviewed the First FMC Report; and (3) information from the department of motor
vehicles contradicted Izquierdo’s claims that he had never possessed a driver’s
license and could not read or sign his name, and Haber had found those claims
significant in her evaluation. Finally, the magistrate judge noted that Izquierdo and
his counsel made no competency objection at the time of his plea hearing and that
the district court originally found Izquierdo competent to enter a guilty plea. The
district court summarily adopted the R&R and determined that Izquierdo was
competent to proceed to sentencing.
H. Sentencing
Izquierdo’s sentencing hearing took place on August 27, 2004. The plea
15
agreement stated that the government would recommend an offense level of thirty-
two and no offense level enhancements. In paragraph two of the agreement,
Izquierdo expressly agreed “that consecutive mandatory minimum sentences of ten
years as to each of [C]ounts II and III must be applied to the defendant.”
Paragraph four of the agreement also contained Izquierdo’s express
acknowledgment that “the court must impose a minimum term of imprisonment of
ten (10) years for [C]ount II, consecutive to a minimum term of imprisonment of
ten (10) years for [C]ount III, and may impose a statutory maximum term of
imprisonment of up to life imprisonment.” After reviewing a pre-sentencing report
and conducting a sentencing hearing, the district court sentenced Izquierdo to two
consecutive terms of 120 months’ imprisonment, for a total sentence of 240
months’ imprisonment. Izquierdo does not appeal his sentence, but he appeals the
denial of his motion to withdraw his guilty plea.
II. Standard of Review
A district court’s denial of a request to withdraw a guilty plea is generally
reviewed for abuse of discretion. See United States v. Freixas, 332 F.3d 1314,
1316 (11th Cir. 2003). The denial of a motion to withdraw a guilty plea is not an
abuse of discretion unless the denial was “‘arbitrary or unreasonable.’” United
States v. Weaver, 275 F.3d 1320, 1327 n.8 (11th Cir. 2001) (citation omitted). A
16
district court abuses its discretion if it “fails to apply the proper legal standard or to
follow proper procedures in making the determination, or makes findings of fact
that are clearly erroneous.” Birmingham Steel Corp. v. TVA, 353 F.3d 1331, 1335
(11th Cir. 2003) (citation, quotation marks, and alterations omitted).
We review a district court’s decision on “competency to stand trial as a
factfinding subject to reversal only for clear error.” United States v. Hogan, 986
F.2d 1364, 1371 (11th Cir. 1993) (reviewing our Circuit’s precedent on the proper
standard of review for a motion for competency to stand trial).
III. Discussion
We first examine whether the magistrate judge properly placed the burden of
proof on Izquierdo.
A. Burden of proof
A defendant-movant clearly has the burden on a motion to withdraw a guilty
plea. See United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). That
burden does not shift to the government when the basis of the withdrawal motion is
incompetency at the time of the plea. See id. (noting that even in a case in which
the defendant attempted to withdraw his guilty plea in part because of his “mental
impairment resulting from a physical illness,” the defendant had “the burden of
showing a ‘fair and just reason’ for withdrawal of his plea”). This is especially
17
true here, where no concerns about Izquierdo’s competency were raised at the time
of the guilty plea and the district court conducted a plea colloquy and made a
finding that Izquierdo was competent to enter his plea.
Further, the relevant competency statute arguably contemplates that the
burden will lie with the party making a motion to determine competency. 18
U.S.C. § 4241. Specifically, 18 U.S.C. § 4241(a) provides that
[a]t any time after the commencement of a prosecution for an offense
and prior to the sentencing of the defendant, 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 . . . 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. § 4241(a). Moreover, the Supreme Court has stated, albeit in dicta, that
the burden of establishing incompetence rests with the defendant. See Cooper v.
Oklahoma, 517 U.S. 348, 362, 116 S. Ct. 1373, 1380 (1996) (“Congress has
directed that the accused in a federal prosecution must prove incompetence by a
preponderance of the evidence.”) (citing 18 U.S.C. § 4241); see also United States
v. Robinson, 404 F.3d 850, 856 (4th Cir.) (“Under federal law, the defendant has
the burden . . . ‘[to show] that the defendant is . . . mentally incompetent.’”) (citing
18 U.S.C. § 4241 and Cooper), cert. denied, __ U.S. __, __ U.S. __, 126 S. Ct. 288,
18
126 S. Ct. 469 (2005).
Although Supreme Court precedent points in that direction, our predecessor
court has stated that “[t]here can be no question that in federal criminal cases the
government has the burden of proving [a] defendant competent to stand trial at the
[competency] hearing.” United States v. Makris, 535 F.2d 899, 906 (5th Cir.
1976) 6 (emphasis added) (“Makris II”). However, Makris II is not on point
because it involved the government’s pre-trial motion to determine the competency
of the defendant, and did not involve a defendant’s motion to withdraw a guilty
plea based on incompetency.7
6
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit that were rendered prior to
October 1, 1981.
7
In United States v. Makris, 483 F.2d 1082 (5th Cir. 1973) (“Makris I”), the defendant
(Makris) was charged with perjury based on his testimony before SEC. Before testifying before
the SEC, Makris had brain surgery. Thus, “[p]rior to trial, the court on the government’s motion
appointed a highly qualified psychiatrist . . . to examine Makris and report to the court on his
competency to understand the proceedings against him and to properly assist in his own
defense.” Makris I, 483 F.2d at 1089. Makris also filed a motion to suppress his testimony
(claiming insanity at the time of the perjury offense), which was denied. Makris proceeded to
trial and was convicted. In Makris I, our predecessor court affirmed the district court’s
conclusion that Makris was sane at the time of his offense. As to competency at the time of the
trial, however, the Makris I court felt constrained to remand, because the district court had failed
to conduct a formal competency hearing as required by the competency statute, and the
psychiatrist’s report “indicated a substantial possibility” that Makris was incompetent at the time
of trial. Id. at 1090-92.
On remand, the district court conducted a competency hearing and concluded that Makris
was competent to stand trial at the time. Makris appealed again, arguing, among other things,
that the government should have been required to prove his incompetency beyond a reasonable
doubt. Makris II, 535 F.2d at 905-06. Our predecessor court disagreed, concluding that
although “in federal criminal cases the government has the burden of proving [the] defendant
competent to stand trial” at the competency hearing,” the government only had to establish the
19
More importantly, the competency statute in Makris II, 18 U.S.C. § 4244,
was a different statute with different language than the competency statute at issue
here.8 Section 4244, while also allowing competency motions to be filed by either
the government or the defendant, placed more emphasis on the government’s role
in filing an incompetency motion. See 18 U.S.C. § 4244 (1949) (“Whenever after
arrest and prior to the imposition of sentence or prior to the expiration of any
period of probation the United States Attorney has reasonable cause to believe that
a person charged with an offense against the United States may be presently insane
or otherwise so mentally incompetent as to be unable to understand the
proceedings against him or properly to assist in his own defense, he shall file a
motion for a judicial determination of such mental competency of the accused . . . .
Upon such a motion or upon a similar motion in behalf of the accused . . . .”)
(emphasis added).
Accordingly, we conclude that Makris II is materially distinguishable, and
Buckles is more on point. Here, the district court found Izquierdo competent to
enter his guilty plea, and this case is before us only on Izquierdo’s own motion to
withdraw his guilty plea. As such, we need not resolve where the burden of proof
defendant’s competence by a preponderance of the evidence. Id. at 906.
8
In 1984, 18 U.S.C. § 4244 was replaced by 18 U.S.C. § 4241.
20
lies in situations other than the narrow one before this Court. In light of Cooper,
Buckles, and 18 U.S.C. § 4241, we conclude only that in the particular
circumstances of this case, the district court did not err in placing the burden of
proof on Izquierdo as to his own motion to withdraw his guilty plea based on
incompetency.
B. Expert opinions
Given that the district court correctly allocated the burden of proof, we next
consider Izquierdo’s argument that the district court abused its discretion in
denying his motion to withdraw his plea of guilty. Izquierdo’s main contention is
that the district court erred in rejecting Haber’s opinion and in considering
Lucking’s revised opinion as to Izquierdo’s competency at the time of his plea.
A district court’s competency determination is primarily factual in nature.
See Hogan, 986 F.2d at 1371. Moreover, in Hogan, which involved a challenge to
the district court’s finding that the defendant was competent, this Court concluded
that “‘[a] finding of fact is clearly erroneous only when we are left with a definite
and firm conviction that a mistake has been committed.’” Id. at 1372 (citation
omitted). We further indicated that in reviewing a district court’s findings of fact
for clear error, we must give “‘due regard’ to the trial court’s opportunity to assess
the credibility of witnesses,” and noted that our review of a district court’s
21
competency determination is “deferential.” Id. (citation omitted).
The record here contains expert opinions that differ in their conclusions as to
Izquierdo’s competence. “Where there are two permissible views of the evidence,
the factfinder’s choice between them cannot be clearly erroneous.” Anderson v.
City of Bessemer City, 470 U.S. 564, 574, 105 S. Ct. 1504, 1511 (1985); see also
United States v. De Varon, 175 F.3d 930, 945 (11th Cir. 1999).
Given the different expert opinions, Izquierdo mainly argues that the district
court erred in considering Lucking’s revised opinion. We disagree. Here, the First
FMC Report reflects that even at the time of the first evaluation, Lucking had some
concerns about Izquierdo possibly malingering. Specifically, in the First FMC
Report, Lucking noted that Izquierdo had performed worse on the RAVLT than
moderately impaired Alzheimer’s and Parkinson’s disease patients; that Izquierdo
may have been exaggerating his level of impairment on the BCT; and that
Izquierdo’s performance on the VIP “probably [did] not reflect his true ability.”
Thus, it is not surprising that after Lucking was presented with Diaz’s testimony at
the first competency hearing, Lucking wanted to retest and reevaluate his data and
opinion about Izquierdo. It is undisputed that Lucking was unaware of Diaz’s
allegations at the time he originally examined Izquierdo, and that Lucking was
only informed of Diaz’s story on the date of the first competency hearing. Lucking
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candidly admitted that he needed to perform additional testing because of the new
information. Lucking then conducted additional testing, and the Second FMC
Report adequately explains why Lucking revised his previous opinion and found
Izquierdo competent. We also note that Haber, a psychologist, spent a maximum
of ten hours examining Izquierdo on two different days. By contrast, Lucking, a
psychiatrist, studied Izquierdo for several months during Izquierdo’s stays at
Butner and had the benefit of the observations and information collected about
Izquierdo by his forensic team. Lucking undisputedly examined Izquierdo more
closely than did Haber, and he provided a reasonable explanation for changing his
opinion. As such, we cannot say that the district court committed clear error in
crediting Lucking’s revised opinion that Izquierdo was competent.
Furthermore, the district court was not bound by Haber’s opinion or the First
FMC Report. It is well-settled that expert opinion as to competency is not binding
on the trier of fact if there is reason to discount it. Strickland v. Francis, 738 F.2d
1542, 1552 (11th Cir. 1984). Here, the magistrate judge’s R&R, which the district
court adopted, provided cogent reasons for discounting Haber’s opinion.
Moreover, as discussed above, there was ample reason for Lucking’s change of
opinion from the First FMC Report to the Second FMC Report. The district court
did not clearly err in rejecting Haber’s opinion, in crediting Lucking’s revised
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opinion, and in finding Izquierdo competent.
IV. Conclusion
For the foregoing reasons, we affirm the district court’s denial of Izquierdo’s
motion to withdraw his guilty plea and, in turn, affirm his convictions.
AFFIRMED.
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United States v. Javier Izquierdo
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2006-05-10
Citations: 448 F.3d 1269
Copy Citations