United States v. Rosaire Dubrule , 822 F.3d 866 ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0108p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│
v. > Nos. 14-6290/6376
│
│
KIM DUBRULE (14-6290); ROSAIRE DUBRULE (14- │
6376), │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 2:07-cr-20246—S. Thomas Anderson, District Judge.
Argued: March 9, 2016
Decided and Filed: May 6, 2016
Before: CLAY, GILMAN, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Doris A. Randle-Holt, FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, Appellant in 14-6290. Megan L. Rodgers,
COVINGTON & BURLING LLP, Washington, D.C., Appellant in 14-6376. Sonja Ralston,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Doris A. Randle-Holt, FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, Appellant in 14-6290. Megan L. Rodgers,
Benjamin C. Block, Catlin M. Meade, COVINGTON & BURLING LLP, Washington, D.C.,
Appellant in 14-6376. Sonja Ralston, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
1
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 2
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OPINION
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CLAY, Circuit Judge. Defendant Rosaire Dubrule (“Mr. Dubrule” or “Dubrule”), a
former medical doctor, was convicted on one count of conspiracy to distribute controlled
substances in violation of 21 U.S.C. § 846, and forty-four counts of distributing controlled
substances in violation of 21 U.S.C. § 841(a)(1). Defendant Kim Dubrule (“Kim”), Mr.
Dubrule’s wife and medical assistant, was convicted of conspiring with her husband to distribute
controlled substances in violation of 21 U.S.C. § 846. The district court sentenced Rosaire
Dubrule to 150 months’ imprisonment and Kim Dubrule to 18 months’ imprisonment. Both
Mr. Dubrule (Appeal No. 14-6376) and Kim Dubrule (Appeal No. 14-6290) appeal from their
judgments of conviction, raising issues concerning Mr. Dubrule’s mental health.
In Appeal No. 14-6376, Mr. Dubrule argues that: (1) the district court erred by finding
him competent to stand trial and proceed with sentencing; (2) the district court erred by failing to
sua sponte order a competency hearing either before or during trial; (3) his pre-trial attorney and
standby counsel at trial provided ineffective assistance by failing to request a competency
evaluation; (4) the district court erred by holding that he had waived his insanity defense; and
(5) his due process and Sixth Amendment rights were violated when the district court, in making
its competency determination, relied upon an expert opinion that misleadingly claimed to be
“peer reviewed.” In Appeal No. 14-6290, Kim Dubrule argues that she is entitled to a new trial
because Mr. Dubrule’s post-trial competency evaluation constituted newly discovered evidence
that Mr. Dubrule was incapable of forming a conspiracy.
For the reasons set forth below, we AFFIRM the district court’s judgments as to both
Defendants.
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 3
BACKGROUND
A. Pre-trial events
In August 2004, federal agents executed a warrant to search Rosaire Dubrule’s medical
office in connection with an investigation into Dubrule’s alleged operation of a “pill mill”—a
medical clinic known for freely prescribing highly addictive prescription pain medication. Soon
thereafter, the Tennessee Board of Medical Examiners (“TBME”) held hearings that culminated
in an order, signed by Mr. Dubrule, suspending his medical license and stipulating that he had
prescribed controlled substances “not in good faith . . . or in amounts and/or for durations not
medically necessary.” (R. 205, PageID 2195.)
On August 15, 2007, a grand jury indicted Rosaire and Kim Dubrule (collectively
“Defendants”) on charges stemming from the same federal investigation. Defendants were
released on bond. Mr. Dubrule initially retained the same attorneys who had represented him
during his hearings before the TBME. But soon after he was indicted, Mr. Dubrule fired those
attorneys “abruptly” and “without warning” during a hearing before a magistrate judge. (A. 44,
at 97.) Dubrule thereafter filed three pre-trial motions pro se, including a motion to suppress, a
motion requesting access to the transcripts of the grand jury proceedings, and a motion seeking
the return of certain items seized during the August 2004 search of his medical office. After
these motions were denied, Dubrule retained Marty McAfee as counsel.
In July 2008, the government filed a motion to revoke Mr. Dubrule’s bond, citing several
incidents that had occurred during pendency of the criminal proceedings. In one incident, Mr.
Dubrule was arrested for reckless driving, driving while intoxicated on prescription drugs, and
resisting arrest. Immediately after his arrest, Dubrule made a number of bizarre statements,
including that the government was “trying to kill him and that he was a world famous physician.
Dubrule also went into a [tirade] about how hurricane Katrina was caused by the government and
that Jewish people were responsible for destroy[ing] the dams in New Orleans.” (R. 52, PageID
120.) In a separate incident, Dubrule sent a letter to the Tennessee Department of Health,
asserting that the transcripts of his 2004 hearings before the TBME contained “critical
omissions.” (Id. at 122.) Among those omissions, he alleged, was testimony
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 4
about the stock market securities con game which was realized in only 30 days
when Merck corporation suffered a contrived loss of 1.6 BILLION dollars in one
day. Of greater interest to the public however will be the coverup [sic] of deviant
sexual assault against children to cover up theft of privilege.
(Id.) The government’s motion to revoke Mr. Dubrule’s bond concluded that “it appears [Mr.
Dubrule] is acting erratically and may be using drugs illegally or dealing with mental health
issues.” (Id. at 123.) The motion was referred to a magistrate judge who ultimately allowed
Mr. Dubrule to remain free under modified conditions.
In September 2008, McAfee moved to withdraw as Mr. Dubrule’s counsel. McAfee’s
motion stated that working with Dubrule was difficult because he “focus[ed] all of his attention
on conspiracy theories.” (R. 64, PageID 138.) Nevertheless, McAfee declared his belief that
Dubrule was competent; McAfee opined that Dubrule may have been “taking his advice
elsewhere.” (Id.) The magistrate judge later granted McAfee’s motion, citing “the continued
breakdown in communications with counsel and the failure of Dubrule to pay his legal fees.”
(R. 73, PageID 146.)
Upon McAfee’s withdrawal, Mr. Dubrule moved to proceed to trial pro se. A hearing on
this motion was held before the magistrate judge, at which Dubrule testified that he had taken
correspondence courses in law, had studied “the law as it relates to pain medicine,” had
familiarized himself with Federal Rules of Criminal Procedure 12–24, was studying the crimes
with which he was charged, and would locate and familiarize himself with the Federal Rules of
Evidence. (R. 345, PageID 3370–72, 3387.) Dubrule also stated that he had successfully
represented himself in prior legal disputes, that he understood he was facing “very serious
penalties” if convicted (id. at 3376), and that he had been advised by his former attorneys
regarding the import of the federal sentencing guidelines. During the hearing, the magistrate
judge asked no questions and made no findings regarding Mr. Dubrule’s mental health.
The magistrate judge ultimately granted Dubrule’s motion to proceed pro se, but ordered
that an attorney from the CJA panel be appointed to serve as Mr. Dubrule’s “standby or elbow
counsel” during trial. (Id. at 3391.) Attorney Ross Sampson was later selected to serve in that
capacity. Mr. Dubrule thereafter filed another series of pre-trial motions raising sometimes
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 5
valid—though more often ill-conceived—legal arguments. One of these motions asserted that
Dubrule had been the victim of “government break-ins” prior to the 2004 search of his medical
office (R. 113, PageID 237–38); a second motion stated that the TBME order that he signed “was
created in relation to a financial scheme,” and cryptically alleged that his leg was “intentionally
broken in a related incident.” (R. 128, PageID 302–03.)
B. Trial
Defendants’ cases proceeded to trial on July 28, 2010. During its case in chief, the
government presented documents and witness testimony indicating that between 2002 and 2004,
Defendants issued more than 30,000 prescriptions for controlled substances. This number was
alarming, given that Dubrule maintained a solo practice in a town of about 4,000 people.
Witnesses testified that patients traveled from neighboring towns, counties, and states to see Mr.
Dubrule due to his reputation for prescribing controlled substances. An agent with the
Tennessee Bureau of Investigation testified that on a single day during the course of the
Dubrules’ “pill mill” conspiracy—January 5, 2004—Mr. Dubrule saw 75 different patients, all of
whom received a prescription for opioids. On that day alone, Mr. Dubrule prescribed some
7,539 pills. Witnesses testified the Kim Dubrule played a significant role in the distribution of
controlled substances; she would often fill out pre-signed prescription pads when patients
returned to the clinic looking for refills.
Acting as his own attorney, Mr. Dubrule presented a defense premised on the medical
appropriateness of his prescriptions. Specifically, Dubrule argued that his patients were
suffering from untreated chronic pain. During the proceedings, Dubrule questioned patients
about improvements in their conditions during treatment. He also testified on his own behalf,
focusing on particular patients and the reasons why he prescribed certain medications at
particular times. Kim Dubrule’s defense strategy largely involved deflecting blame on to Mr.
Dubrule. Through appointed counsel, Kim argued that “it’s the doctor’s responsibility” to make
medical decisions, and that as a medical assistant, she was merely following Mr. Dubrule’s
directions. (R. 203, PageID 2116, 2128.)
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 6
During trial, Mr. Dubrule’s questioning and narrative testimony were on many occasions
subject to objections for relevancy, hearsay, and lack of foundation. When facing such
objections, Dubrule often defended the reasoning behind his questioning and testimony. He
responded to sustained objections by either rephrasing his question or moving on to a different
topic. Trial transcripts also indicate several instances in which Mr. Dubrule apparently consulted
with his standby counsel. At two points during trial, Mr. Dubrule inquired about the appropriate
procedure for filing a Rule 29 motion for judgment of acquittal. He also asked the court whether
a favorable ruling on Kim Dubrule’s Rule 29 motion would affect his own case: “Your Honor,
being a nonlawyer, if you do rule on that motion in favor of dismissal of the [conspiracy] charges
against my wife, would that not automatically allow the conspiracy charge to be dropped against
me? Because doesn’t it take more than one person to be in a conspiracy?” (R. 201, PageID
1718–19.)
C. Post-trial events
On August 11, 2010, the jury returned verdicts of guilty on all counts against both
Defendants. After filing several unsuccessful post-trial motions pro se, Dubrule requested
appointment of counsel. That motion was granted, and Sampson was appointed as Dubrule’s
attorney. As his first act as Mr. Dubrule’s attorney, Sampson moved for an evaluation of
Dubrule’s competence to proceed to sentencing. In this motion, Sampson expressed his opinion
that Mr. Dubrule might be suffering from “an underlying, undiagnosed psychotic and/or
personality disorder.” (R. 182, PageID 498.) The motion was granted, and Dubrule was
subjected to a mental evaluation by Dr. Jeremiah Dwyer. Dr. Dwyer, a forensic psychologist for
the Bureau of Prisons (“BOP”), evaluated Mr. Dubrule for approximately eight hours in early
2011, conducting a series of tests and face-to-face interviews. Dr. Dwyer thereafter submitted a
report opining that Mr. Dubrule apparently suffered from paranoid or grandiose delusions, and
that such delusions rendered him incompetent to proceed to sentencing.
On May 19, 2011, Kim Dubrule filed a motion pursuant to Federal Rule of Criminal
Procedure 33(b)(1), arguing that Dr. Dwyer’s report constituted “newly discovered evidence”
warranting a new trial. (R. 192, PageID 519.) A minute entry for proceedings held on June 30,
2011 indicates that the district court decided “to delay ruling on” the motion, presumably until
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 7
after issues of Mr. Dubrule’s competency had been fully resolved. (See R. 206.) However, the
record below does not contain any order explicitly disposing of Kim Dubrule’s motion for a new
trial.
Based on Dr. Dwyer’s report, Mr. Dubrule’s counsel moved for an evaluation of
Dubrule’s competence at the time of trial and at the time of the offenses.1 The motion was
granted, and a second evaluation was conducted by Dr. David Morrow. Dr. Morrow was also a
forensic psychologist for the BOP. He evaluated Mr. Dubrule for approximately seven or eight
hours in late 2011 and early 2012; he also reviewed the trial transcripts. In his resulting report,
Dr. Morrow asserted that Dubrule suffered from personality and delusional disorders. Dr.
Morrow opined that such disorders evidently impaired Dubrule’s ability to represent himself at
trial because, based on Dubrule’s raw intelligence, he “should have been able either to present a
much more coherent defense or to have accepted a plea agreement prior to trial.” (A. 44, p. 73.)
Finally, Dr. Morrow’s report concluded that Dubrule required treatment before any firm
conclusions could be made about his sanity at the time he committed the offenses.
Citing concerns with the quality of the reports prepared by Drs. Dwyer and Morrow, the
government moved for a third evaluation by a new expert. That order was granted, and Mr.
Dubrule was thereafter evaluated by Dr. Bernice Marcopulos. Dr. Marcopulos was a consultant
for The Forensic Panel2 and a published professor of clinical psychology and neuropsychology at
James Madison University. Her evaluation of Dubrule lasted roughly two-and-a-half days. Dr.
Marcopulos interviewed Mr. Dubrule, several of his family members, and former colleagues,
employees, and attorneys; she conducted multiple tests; and she reviewed the trial transcripts,
pre- and post-trial motions, and the reports prepared by Drs. Dwyer and Morrow. Although the
government’s motion to have Dubrule evaluated by Dr. Marcopulos stated that her final report
1
The district court later construed Mr. Dubrule’s “motion to determine competency . . . during commission
of the indicted offenses” as a late notice of intention to assert an insanity defense under Federal Rule of Criminal
Procedure 12.2(a). (See R. 255, PageID 2809–11.)
2
According to the government’s motion for a competency evaluation, “The Forensic Panel is a group of
psychiatrists and psychologists that specialize in forensic evaluations.” (R. 228, PageID 2403.) Dr. Marcopulos
testified that when hired to provide an expert opinion, “The Forensic Panel . . . will examine the case to see what
type of expert might be most appropriate,” will assign a “primary forensic examiner” to conduct an evaluation of the
defendant, and will make other experts available for consultation and review of the final report. (R. 252-1, PageID
2643.)
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 8
would be “peer reviewed” by other members of the Forensic Panel, in fact her evaluation process
itself was developed in consultation with two colleagues from the Panel.
As with the prior two evaluators, Dr. Marcopulos concluded that Dubrule suffered from
personality and delusional disorders. Unlike Drs. Dwyer and Morrow, however, Dr. Marcopulos
opined that Dubrule’s disorders did not make him incompetent to stand trial, represent himself,
or proceed to sentencing. Her report stressed the fact that “competency is a task-specific ability”
(A. 44, p. 115), and that her interviews, Dubrule’s test results, and the trial transcripts all
indicated that Dubrule was up to the task. Dr. Marcopulos’ report also discussed evidence
indicating that Mr. Dubrule was sane at the time of the alleged offenses.
After receiving Dr. Marcopulos’ report, the district court held two competency hearings
at which it heard testimony from Drs. Dwyer, Morrow, and Marcopulos; the court also heard
testimony from Marty McAfee, Mr. Dubrule’s former attorney. During those hearings, all three
experts testified to and were cross-examined on their qualifications, their evaluation processes,
and the bases for their conclusions. Notably, Dr. Marcopulos testified that her interviews with
Mr. Dubrule revealed that some of his delusions were not “firmly held”—that is, when
confronted with contradictory evidence, Dubrule would often back away from his apparently
delusional claims. McAfee testified that during strategy meetings, Mr. Dubrule would “almost
always . . . talk[] about his conspiracy theories, which are numerous and legion.” (R. 252,
PageID 2608.) On cross examination, however, McAfee reaffirmed the statement in his motion
to withdraw that Mr. Dubrule “had everything he needed to proceed competently.” (Id. at 2620.)
McAfee also testified that Dubrule participated in discussions regarding the hiring of an outside
expert to evaluate the government’s case by offering names of potential experts.
D. The district court’s order on competency
On October 1, 2013, the district court issued a forty-one-page order and opinion
concluding that Mr. Dubrule (1) was competent to stand trial, (2) was competent to proceed to
sentencing, and (3) had waived his insanity defense by failing to raise it prior to trial. In finding
that Dubrule was competent to stand trial and proceed to sentencing, the district court relied
heavily on Dr. Marcopulos’ testimony and report, which it described as “exhaustive and
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 9
detailed.” (R. 255, PageID 2798.) The court credited Dr. Marcopulos as having “more
specialized expertise” in competency determinations (id. at 2798), and found that her report was
more thorough and convincing than both Dr. Dwyer’s and Dr. Morrow’s. The district court also
relied on its own observations of Mr. Dubrule at trial, Dubrule’s use of pre-trial motions and the
arguments made therein, Dubrule’s discussions with his attorneys and his reasoned decision to
represent himself pro se, and the fact that the government’s request for revocation of Dubrule’s
bond was based primarily on Dubrule’s abuse of controlled substances.
After the district court denied Defendants’ motions for reconsideration, their cases
proceeded to sentencing. On October 21, 2014, the district court entered judgment of conviction
as to Kim Dubrule, sentencing her to 18 months’ imprisonment. On November 7, 2014, the
district court entered its judgment as to Rosaire Dubrule, sentencing him to 150 months’
imprisonment. Both defendants timely appealed from their respective judgments.
Appeal No. 14-6376; Defendant Rosaire Dubrule
I. THE DISTRICT COURT DID NOT CLEARLY ERR BY FINDING DUBRULE
COMPETENT TO STAND TRIAL AND PROCEED TO SENTENCING
Standard of Review
“A defendant’s competence is a question of fact, which we review for clear error.”
Harries v. Bell, 417 F.3d 631, 635 (6th Cir. 2005). “A factual finding . . . ‘will be deemed
clearly erroneous only where it is against the clear weight of the evidence or when upon review
of the evidence, the appellate court is left with the definite and firm conviction that a mistake has
been committed.’” United States v. Grubbs, 773 F.3d 726, 731 (6th Cir. 2014) (quoting Smoot v.
United Transp. Union, 246 F.3d 633, 641 (6th Cir. 2001)). In the absence of such a definite and
firm conviction, we cannot reverse the district court’s findings—even if “[we] would have
weighed the evidence differently.” Anderson v. Bessemer City, 470 U.S. 564, 574 (1985).
Analysis
To be competent to stand trial or proceed to sentencing, a criminal defendant must
possess (1) a “sufficient present ability to consult with his lawyer with a reasonable degree of
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 10
rational understanding,” and (2) “a rational as well as factual understanding of the proceedings
against him.” Dusky v. United States, 362 U.S. 402, 402 (1960); see also 18 U.S.C. § 4241(a);
United States v. Washington, 271 F. App’x 485, 490 (6th Cir. 2008) (applying the Dusky
standard when evaluating defendant’s competency to proceed to sentencing). In applying this
standard, we have noted that “even if [the defendant is] mentally ill, ‘[i]t does not follow that
because a person is mentally ill he is not competent to stand trial.’” United States v. Davis, 93
F.3d 1286, 1290 (6th Cir. 1996) (quoting Newfield v. United States, 565 F.2d 203, 206 (2d Cir.
1977)); see also United States v. Miller, 531 F.3d 340, 350 (6th Cir. 2008) (“the bar for
incompetency is high”). Nor is a defendant “rendered incompetent . . . merely because he cannot
get along with his counsel or disapproves of his attorney’s performance.” Miller, 531 F.3d at
349. And in cases where a criminal defendant elects to represent himself, “the mere fact that
[he] espouses a far-fetched, or even bizarre, legal-defense theory is insufficient to clear the high
hurdle for incompetency.” United States v. Davis, 515 F. App’x 486, 493 (6th Cir. 2013).3
Below, the district court found Mr. Dubrule competent to stand trial and proceed to
sentencing. In so finding, the district court thoroughly reviewed the three experts’ opinions and
ultimately found most persuasive Dr. Marcopulos’ opinion that Dubrule was competent. On
review of the record, we cannot say that this finding was clearly erroneous. See Harries,
417 F.3d at 635. The experts’ reports and testimony established that Dr. Marcopulos possessed
more training and experience in forensic psychology than Drs. Dwyer and Morrow, her opinion
was based on a more extensive evaluation of Mr. Dubrule, and her conclusions were more
thoroughly explained. These circumstances provided an adequate basis for giving Dr.
Marcopulos’ report more evidentiary weight. See, e.g., United States v. Mathis, 738 F.3d 719,
740 (6th Cir. 2013) (holding no clear error where “the court thoughtfully considered and
weighed the testimony from the parties’ experts, finding the government’s [expert] more
persuasive”); Bernier v. United States, 816 F.2d 678 (6th Cir. 1987) (table) (holding same where
“the magistrate chose to give greater weight to the defendant’s expert witnesses because their
3
Defendants note that this Circuit has never explicitly stated who bears the burden of proving a defendant’s
competency. However, because (1) the district court assumed that the burden rested with the government, (2) the
district court found that the government had met its burden, and (3) we conclude that the district court’s finding was
not clearly erroneous, we decline to rule on the burden of proof issue in this case.
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 11
experience was qualitatively and quantitatively superior to plaintiff’s expert witnesses’
experience”).
In addition to Dr. Marcopulos’ opinion, the district court relied on its own observations of
Dubrule’s demeanor. Because Mr. Dubrule acted as his own attorney over the course of a ten-
day trial, there was ample opportunity for the district court to interact with Mr. Dubrule, to
observe his behavior, and to otherwise evaluate the extent of his “rational as well as factual
understanding of the proceedings against him.” Dusky, 362 U.S. at 402. Reflecting on these
interactions, the district court opined:
[A]s the trial progressed, Defendant generally complied with the Court’s
instructions and procedures. Defendant made an opening statement and a closing
argument to the jury. Defendant cross-examined witnesses, sometimes posing
relevant questions but other times raising irrelevant issues. . . . [The] evidence
tends to show that Defendant understood his rights, the burden of proof in the
case, and the role of the Court and the jury.
(R. 255, PageID 2800–01.) The district court also recalled that Dubrule “made motions with the
Court, participated in sidebars and preliminary arguments, and appeared to comprehend routine
trial procedure” (id. at 2800); he also “consulted with standby counsel throughout the trial.” (Id.
at 2799.)
On our review of the record, we conclude that these findings are not clearly erroneous.
Although Dubrule’s questioning and narrative testimony were frequently subject to objections,
the trial transcripts indicate that Dubrule often defended himself against such objections; his
arguments were coherent and occasionally successful. The colloquies between Dubrule and the
court regarding the law of conspiracy and Rule 29 motions likewise demonstrated that Dubrule
had a working knowledge of the relevant law, and that he maintained “a rational as well as
factual understanding of the proceedings” as they progressed through the various stages of trial.
Dusky, 362 U.S. at 402. And because the trial transcripts indicate several instances in which
Mr. Dubrule apparently conferred with standby counsel, we find nothing clearly erroneous about
the district court’s recollection that Dubrule maintained the ability “to consult with his lawyer
with a reasonable degree of rational understanding.” Id.
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 12
The district court also relied on McAfee’s statement, contained in his motion to
withdraw, that “at this time it does appear to counsel that Defendant is competent to proceed.”
(R. 64, PageID 138.) On appeal, Mr. Dubrule notes that McAfee’s motion also stated that
working with Dubrule was difficult because he “focus[ed] all of his attention on conspiracy
theories.” (Id.) But the motion thereafter asserted that Dubrule “must be taking his advice
elsewhere” (id.), suggesting a belief that Dubrule merely refused to take advice from McAfee in
particular. Moreover, McAfee testified at the competency hearing that Dubrule substantively
participated in discussions regarding the hiring of an outside expert to evaluate the government’s
case. In sum, record evidence supports the conclusion that Dubrule was capable of consultation
when he so desired. Competency requires only “the ability” to consult with one’s attorney,
Dusky, 362 U.S. at 402; it does not require the defendant to do so in every instance. See Miller,
531 F.3d at 349.
The district court also concluded that Mr. Dubrule’s bond revocation proceedings were
not particularly relevant to an analysis of his competency. We find nothing clearly erroneous
about that determination because the best-supported explanation for the erratic behavior
prompting the bond revocation proceedings was Dubrule’s abuse of prescription drugs. We
likewise find no clear error in the district court’s determination that Dubrule’s pre- and post-trial
filings merely “raised meritless arguments, indulged . . . misguided theories of the case, or
misapplied the law.” (R. 275, PageID 2870–71.) The majority of Dubrule’s pro se motions
contained no plainly delusional material. And when read in the context of the entire record,
many of the potentially “delusional” statements in Dubrule’s motions could be viewed as
intentional, if wholly inartful, attempts to misrepresent the record or garner sympathy from the
court. Although other interpretations of Dubrule’s motions might be reasonable, we cannot
reverse the district court simply because “[we] would have weighed the evidence differently.”
Anderson, 470 U.S. at 565.
Finally, we reject Mr. Dubrule’s contention that his overconfidence before trial, and poor
performance during trial, render the district court’s finding of competence clearly erroneous.
Dubrule relies on United States v. Zaki, No. 14-20281, 2015 WL 1004860, at *3–*4 (E.D. Mich.
Mar. 6, 2015), in which the court found the defendant incompetent based partly on his
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 13
overconfidence in his likelihood of success at trial. Notwithstanding the fact that Zaki is
distinguishable because the defendant in that case exhibited more severe symptoms of
incompetence than Mr. Dubrule, see, e.g., id. at *3 (defendant believed “that God had facilitated
mental communication between [him] and a [jail official]”), we note that a pro se defendant’s
overconfidence in his likelihood of success at trial, standing alone, seems a poor indicator of
incompetence.
“It is undeniable that in most criminal prosecutions defendants could better defend with
counsel’s guidance than by their own unskilled efforts.” Faretta v. California, 422 U.S. 806,
834 (1975). For that very reason, this Circuit “has adopted a rather lengthy series of questions
from 1 Bench Book for United States District Judges 1.02–2 to –5 (3d ed. 1986) that a district
court should ask in order to ensure that a defendant’s waiver of counsel is knowing and
intelligent.” United States v. Cromer, 389 F.3d 662, 680 (6th Cir. 2004) (citing United States v.
McDowell, 814 F.2d 245, 247, 250 (6th Cir. 1987)). At the end of those questions is an explicit
warning:4
I must advise you that in my opinion you would be far better defended by a
trained lawyer than you can be by yourself. I think it is unwise of you to try to
represent yourself. You are not familiar with the law. You are not familiar with
court procedure. You are not familiar with the rules of evidence. I would
strongly urge you not to try to represent yourself.
McDowell, 814 F.2d at 251 (quoting the Bench Book).
Common sense would seem to instruct that a criminal defendant who chooses to
represent himself after receiving this rather dire warning—from the judge, no less—is either
grossly overconfident or actively engaged in some form of self-sabotage. But it cannot be the
case that a defendant’s knowing and voluntary decision to exercise his right to self-
representation necessarily indicates that he lacks the competence to proceed to trial. See Faretta,
422 U.S. at 834 (“[A]lthough [a defendant] may conduct his own defense ultimately to his own
detriment, his choice must be honored out of that respect for the individual which is the lifeblood
of the law.” (internal quotation marks omitted)). Thus, Mr. Dubrule’s expressions of
4
Such a warning was issued to Mr. Dubrule at his Faretta hearing.
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 14
overconfidence do not provide us with “the definite and firm conviction that” the district court’s
finding of competence was clearly erroneous. Grubbs, 773 F.3d at 731.
Notably, Mr. Dubrule’s expressions of “overconfidence” can only be so described
because he proved ineffective at establishing his innocence. In that way, his argument on appeal
also suffers from hindsight bias. That same bias undergirds Dubrule’s second argument, in
which he cites Dr. Morrow’s conclusion that he “should have been able either to present a much
more coherent defense or to have accepted a plea agreement prior to trial.” (A. 44, p. 73.) The
fact that he failed to do so despite his impressive intellect, the argument goes, constitutes a clear
indication that he was suffering from a mental impairment that rendered him incompetent. We
reiterate, however, that we are less persuaded by arguments and expert opinions that “tend to
look back at decisions that turned out badly for [the defendant] and label them as irrational based
on their ultimate outcome.” Harries, 417 F.3d at 636 (internal quotation marks omitted).
Indeed, giving dispositive weight to such arguments would provide pro se defendants with a
guaranteed second bite at the apple. Cf. McKaskle v. Wiggins, 465 U.S. 168, 177 (1984) (noting
that “a defendant who exercises his right to appear pro se cannot thereafter complain that the
quality of his own defense amounted to a denial of effective assistance of counsel” (internal
quotation marks omitted)).
This is not to say that that a defendant who waives the right to counsel necessarily
forgoes any claim that he was incompetent to stand trial. See Indiana v. Edwards, 554 U.S. 164,
177–78 (2008) (“[T]he Constitution permits judges to take realistic account of the particular
defendant’s mental capacities by asking whether a defendant who seeks to conduct his own
defense at trial is mentally competent to do so.”). Rather, it is enough for our purposes to
conclude that Mr. Dubrule’s post-conviction hindsight is not a compelling enough basis on
which to overturn the district court’s considered determination of competency.
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 15
II. THE DISTRICT COURT DID NOT ERR BY FAILING TO ORDER A
COMPETENCY EVALUATION SUA SPONTE
Standard of Review
Under 18 U.S.C. § 4241, a district court “shall order [a competency] hearing on its own
motion, if there is reasonable cause to believe” that the defendant is incompetent to stand trial or
proceed to sentencing. We have held that “[t]he district court has a measure of discretion in
determining whether there is ‘reasonable cause’ to believe that a defendant is incompetent.”
United States v. Jones, 495 F.3d 274, 277 (6th Cir. 2007). Thus, “[t]his Court reviews the
determination of whether there is reasonable cause to question a defendant’s competence . . .
under an abuse of discretion standard.” United States v. Ross, 703 F.3d 856, 867 (6th Cir. 2012)
(citing Jones, 495 F.3d at 277); United States v. Abdulmutallab, 739 F.3d 891, 900 (6th Cir.
2014) (“On appeal, we review under an abuse of discretion standard a district court’s
determination whether there is ‘reasonable cause’ to believe that a defendant is incompetent and
whether to hold a competency hearing.”). “A court abuses its discretion when it commits a clear
error of judgment.” Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 774 F.3d 1065,
1070 (6th Cir. 2014) (quoting Jones v. Ill. Cent. R.R. Co., 617 F.3d 843, 850 (6th Cir. 2010)).
Analysis
Under 18 U.S.C. § 4241, “the district court has not only the prerogative, but the duty, to
inquire into a defendant’s competency whenever there is ‘reasonable cause to believe’ that the
defendant is incompetent to stand trial.” United States v. White, 887 F.2d 705, 709 (6th Cir.
1989). In determining whether there was “reasonable cause” to doubt the defendant’s
competency, we look to “evidence of a defendant’s irrational behavior, his demeanor at trial, and
any prior medical opinion on competence to stand trial.” Drope v. Missouri, 420 U.S. 162, 180
(1975); see also id. (noting that “[t]here are, of course, no fixed or immutable signs which
invariably indicate the need for further inquiry”); United States v. Tucker, 204 F. App’x 518, 520
(6th Cir. 2006) (“In deciding whether or not to hold a competency hearing, a court may consider
all of the information before it.”). The court may also consider an attorney’s opinion about his
client’s competency. Tucker, 204 F. App’x at 520 (citing Owens v. Sowders, 661 F.2d 584, 586
(6th Cir. 1981)); see also Miller, 531 F.3d at 350 (considering trial counsel’s failure to raise
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 16
competency issue). “[E]ven one of these factors standing alone may, in some circumstances, be
sufficient” to warrant a competency hearing. Drope, 420 U.S. at 180.
Roughly five months after the jury rendered its guilty verdicts, the district court granted
Mr. Dubrule’s motion to determine his competency pursuant to 18 U.S.C. § 4241(b). On appeal,
Dubrule argues that there was reasonable cause to question his competency prior to and during
trial, and that the district court abused its discretion by failing to sua sponte order a competency
evaluation earlier.5 In support of his argument, Mr. Dubrule cites facts that, in his belief, should
have created the “reasonable cause” necessary to issue such an order—namely, the government’s
motion to revoke his bond and the resulting order, his pro se pre-trial motions, and his apparently
strained relationships with his attorneys.
These facts are examined in greater detail in section I, supra, where we conclude that the
district court did not clearly err when it found that those facts did not render Dubrule
incompetent. For similar reasons, we conclude that the district court did not “commit[] a clear
error of judgment,” Yoder & Frey, 774 F.3d at 1070, by failing to order a competency hearing
sua sponte on the basis of the same facts. Because they were prompted by behavior apparently
resulting from abuse of prescription drugs, Dubrule’s bond revocation proceedings provided little
basis for questioning his ability to conduct a defense when sober. Moreover, given the frequency
with which pro se defendants distort the record, file unorthodox motions, and espouse strange
theories, we decline to hold that the district court abused its discretion by failing to order a
competency hearing on the basis of strange statements contained in a few of Dubrule’s pre-trial
motions. See, e.g., United States v. James, 328 F.3d 953, 955 (7th Cir. 2003) (observing that
“[m]any litigants articulate beliefs that have no legal support” and collecting examples of strange
behavior that was not necessarily indicative of incompetence). And as explained above, the
record supports the conclusion that Mr. Dubrule was simply unwilling, rather than unable, to
cooperate with counsel.
5
Mr. Dubrule also argues that the district court’s post-trial competency evaluation was insufficient to
safeguard his constitutional rights where there was reasonable cause to believe him incompetent earlier on. See Pate
v. Robinson, 383 U.S. 375, 387 (1966) (“[W]e have previously emphasized the difficulty of retrospectively
determining an accused’s competence to stand trial.”). Because we conclude that the district court did not abuse its
discretion by failing to order an evaluation earlier, we do not address this argument further.
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 17
Most importantly, however, the facts on which Dubrule relies do not exist in a vacuum;
the district court’s reluctance to order a competency hearing was undoubtedly based on “all of
the information before it.” Tucker, 204 F. App’x at 520. In this case, such information included
numerous hours of face-to-face interaction between Mr. Dubrule and the district court judge. We
find here, as we have before, that “[t]he bare record that this court reviews on appeal is a poor
substitute for the district court’s personal observation of the defendant’s demeanor and the
district court’s considered judgment of the defendant’s ability to conduct trial proceedings.”
United States v. Stafford, 782 F.3d 786, 791 (6th Cir. 2015); see also Indiana v. Edwards,
554 U.S. 164, 177 (2008) (“[T]he trial judge . . . often prove[s] best able to make more fine-
tuned mental capacity decisions, tailored to the individualized circumstances of a particular
defendant.”). The district court’s recollection of Dubrule’s conduct during trial, as expressed in
the order on competency, indicates that the court conscientiously observed Mr. Dubrule
throughout the proceedings and found no reasonable cause to suspect incompetence.
For these reasons, we find no basis on which to conclude that the district court
“commit[ed] a clear error of judgment” by failing to sua sponte order a competency hearing prior
to or during trial. See Yoder & Frey, 774 F.3d at 1070.
III. DUBRULE’S ATTORNEYS DID NOT PROVIDE INEFFECTIVE ASSISTANCE
BY FAILING TO REQUEST A COMPETENCY EVALUATION PRIOR TO OR
DURING TRIAL
Standard of Review
We review de novo a defendant’s claim of ineffective assistance of counsel. United
States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995). “Judicial scrutiny of counsel’s performance
must be highly deferential. We presume from the outset that a lawyer is competent, and
therefore, ‘the burden rests on the accused to demonstrate a constitutional violation.’” Id.
(internal citation omitted) (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)).
Analysis
“A convicted defendant’s charge that he was denied effective assistance of counsel, to be
successful, requires that the defendant prove: (1) that counsel’s performance was deficient; and
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 18
(2) that the deficient performance prejudiced the defense so as to deprive the defendant of a fair
trial.” Meeks v. Bergen, 749 F.2d 322, 327 (6th Cir. 1984). To be constitutionally deficient,
counsel’s performance must “[fall] below an objective standard of reasonableness.” United
States v. Doyle, 631 F.3d 815, 817 (6th Cir. 2011) (citing Strickland v. Washington, 466 U.S.
668, 687–88 (1984)). “[C]ounsel’s failure to request the trial court to order a hearing or
evaluation on the issue of the defendant’s competency” might render counsel’s performance
objectively unreasonable, “provided there are sufficient indicia of incompetence to give
objectively reasonable counsel reason to doubt the defendant’s competency.” Jermyn v. Horn,
266 F.3d 257, 283 (3d Cir. 2001). To demonstrate prejudice under that theory, however, Mr.
Dubrule would need to prove that “there is a reasonable probability that, but for counsel’s
[failure to request a competency evaluation prior to or during trial], the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.
Even assuming that objectively reasonable counsel in McAfee’s and Sampson’s positions
would have requested a competency evaluation, Dubrule cannot demonstrate that any prejudice
resulted from their failure to do so. In finding Mr. Dubrule competent, both the district court and
Dr. Marcopulos closely examined facts arising out of the time periods during which McAfee and
Sampson served as Mr. Dubrule’s counsel. Those facts included: Dubrule’s pre-trial motions;
his apparently reasoned decision to proceed without counsel, as evidenced by his testimony
during his Faretta hearing; McAfee’s motion to withdraw; the bond revocation proceedings; and
Dubrule’s behavior during trial. Although we appreciate the “difficulty of retrospectively
determining an accused’s competence to stand trial,” see Pate v. Robinson, 383 U.S. 375, 387
(1966), it is nevertheless Dubrule’s burden to show a reasonable probability that an earlier
evaluation of such evidence would have produced a different result. Because the district court’s
finding of competency was not clearly erroneous, and because Dubrule fails to point out
evidence suggesting that the district court’s finding would have been different had his
competency been evaluated earlier, there is not “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694.
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 19
IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY HOLDING
THAT DUBRULE WAIVED HIS INSANITY DEFENSE
Standard of Review
Federal Rule of Criminal Procedure 12.2(a) requires that a defendant provide notice of
his intent to offer an insanity defense “within the time provided for filing a pretrial motion.” If
the defendant fails to file notice within that time, he “cannot rely on an insanity defense.”
Fed. R. Crim. P. 12.2(a); United States v. Cox, 826 F.2d 1518, 1521 (6th Cir. 1987) (“By its
terms, . . . Rule 12.2(a) contemplates that a defendant who fails to comply with the time
requirements waives his right to an insanity defense.” (internal quotation marks omitted)
(quoting United States v. Duggan, 743 F.2d 59, 80 (2d Cir.1984))). Here, there is no dispute that
Dubrule’s post-conviction arguments regarding “competence at the time of the offense” did not
meet Rule 12.2(a)’s timing requirement.
However, Rule 12.2(a) states that “[t]he court may, for good cause, allow the defendant
to file the notice late . . . .” Fed. R. Crim. P. 12.2(a) (emphasis added). This Court reviews a
district court’s good-cause determination for abuse of discretion. See Cox, 826 F.2d at 1521
(quoting United States v. Veatch, 674 F.2d 1217, 1224 (9th Cir. 1981), for the proposition that
“[i]t is within the district court’s discretion to grant or deny a defendant relief from the exclusion
provision of Rule 12.2(a)” (internal quotation marks omitted)).
Analysis
“‘Cause’ consists not only of explanation for the belatedness of the party’s action, but
also of a showing of some merit in the position belatedly to be advanced.” Cox, 826 F.2d at
1521 (internal quotation marks omitted). Mr. Dubrule argues that his belatedness in asserting an
insanity defense was attributable to his incompetence to stand trial and to his self-representation
while incompetent. The district court concluded that because Mr. Dubrule was competent to
stand trial and represent himself, his excuse for belatedly asserting his insanity defense did not
constitute “good cause.” Because we affirm the district court’s findings on competence, we
conclude that the district court did not abuse its discretion by holding that Dubrule’s alleged
incompetence did not provide “good cause” for his belated filing.
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 20
V. THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR BY
CONSIDERING DR. MARCOPULOS’ REPORT AND TESTIMONY WHEN
MAKING ITS COMPETENCY DETERMINATION
Preservation of the Issue and Standard of Review
On appeal, Mr. Dubrule argues that the circumstances surrounding his evaluation by
Dr. Marcopulos and the Forensic Panel violated his due process and Sixth Amendment rights.
However, Dubrule concedes that this issue was not properly preserved below. This Court
reviews unpreserved constitutional claims for plain error. See United States v. Yancy, 725 F.3d
596, 600–01 (6th Cir. 2013). “To establish plain error, a defendant must show that: (1) an error
occurred in the district court; (2) the error was obvious or clear; (3) the error affected defendant’s
substantial rights; and (4) this adverse impact seriously affected the fairness, integrity, or public
reputation of the judicial proceedings.” United States v. Gardiner, 463 F.3d 445, 459 (6th Cir.
2006) (internal quotation marks omitted) (quoting United States v. Emuegbunam, 268 F.3d 377,
406 (6th Cir. 2001)).
Analysis
Mr. Dubrule asserts that “the government made . . . false representations about the
Forensic Panel’s ‘peer review’ process” because it failed to disclose that Dr. Marcopulos would
consult with other experts from the Panel prior to completion of her report. (Def.’s Br. at 60–
61.) He thereafter argues that
[h]ad he known that the “peer reviewers” would be providing input to
Dr. Marcopulos’ evaluation and directly influencing the formation of her opinions
about Dubrule’s competency, [counsel] could have objected . . . , requesting that
the process be adjusted and that the court include a specific procedure in its order.
(Def.’s Reply Br. at 30.) But even assuming for the sake of argument that depriving Dubrule’s
counsel of such an opportunity to object resulted in an obvious error, there is no reason to believe
that the error affected Dubrule’s substantial rights. See Gardiner, 463 F.3d at 459 (“To establish
plain error, a defendant must show that . . . the error affected defendant’s substantial rights.”);
United States v. Cotton, 535 U.S. 625, 632 (2002) (noting that affecting a defendant’s substantial
rights “usually means that the error . . . affected the outcome of the district court proceedings”).
That is because Dr. Marcopulos described her evaluation process at the competency hearing, and
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 21
defense counsel had a full and fair opportunity to cross-examine her regarding her methodology
at that time.
Furthermore, Mr. Dubrule’s own experts testified as to their opinions on consultation
between colleagues during the course of an evaluation. Dr. Dwyer stated that there is “nothing
wrong” with such consultation, and that, in fact, such consultation is beneficial. (See R. 252,
PageID 2527–28.) Indeed, Dr. Dwyer admitted on cross examination that, like Dr. Marcopulos,
he consulted with a colleague “at the time . . . this evaluation was going on” regarding
“clarification on diagnostic issues.” (Id. at 2527.) Dr. Morrow likewise admitted that he
“discussed [his report] with people,” but that he did not mention such discussions in his report.
(Id. at 2597.) In sum, there is nothing about the evidence in the record suggesting that
Dr. Marcopulos’ methods diminished the reliability of her opinion.6 We therefore find no plain
error in the circumstances of Mr. Dubrule’s evaluation by Dr. Marcopulos.
Appeal No. 14-6290; Defendant Kim Dubrule
VI. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY DENYING
KIM DUBRULE’S MOTION FOR A NEW TRIAL
Standard of Review
“This Court reviews for abuse of discretion a district court’s judgment on a Rule 33
motion for a new trial.” United States v. Sypher, 684 F.3d 622, 626 (6th Cir. 2012).
Analysis
A. Jurisdiction
On May 19, 2011, Kim Dubrule filed a motion for a new trial pursuant to Federal Rule of
Criminal Procedure 33(b)(1), arguing that Dr. Dwyer’s post-conviction report finding
Mr. Dubrule incompetent to proceed to sentencing constituted “newly discovered evidence.”
Specifically, Kim argued that this report raised new questions regarding Mr. Dubrule’s capacity
6
At the competency hearing, Dr. Marcopulos described the two experts with whom she consulted during
the course of her evaluation of Mr. Dubrule. The first was Dr. Michael Wellner, a board certified psychiatrist that
specialized in and had “extensive experience” with forensic cases. (R. 252-1, PageID 2648.) The second was
Dr. Diana Goldstein, a board certified clinical neuropsychologist with a forensic practice. (Id. at 2648–49.)
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 22
to form the two-person conspiracy for which she was convicted. See, e.g., United States v.
Fowler, No. 14-2412, 2016 WL 1381907, at *7 (6th Cir. Apr. 7, 2016) (noting that conviction
for conspiracy requires “an agreement with two or more persons”). However, the district court
never issued an order explicitly denying Kim Dubrule’s motion for a new trial. We raised this
apparent discrepancy at oral argument, and the parties thereafter submitted letter briefs
addressing whether we possess jurisdiction on appeal to rule on Kim’s motion for a new trial.
Unsurprisingly, Kim does not challenge our ability to review her own appeal. However,
she provides no legal authority in support of our jurisdiction to do so. The government agrees
that we should review Kim’s appeal on the merits, arguing that we have jurisdiction because:
(1) 28 U.S.C. § 1291(a) grants appellate jurisdiction over the district court’s “final decisions;”
and (2) the district court’s entry of judgment of conviction against Kim Dubrule on October 21,
2014, from which she now appeals, constituted a “final decision” despite the lack of an explicit
ruling on her motion for a new trial. In support of its argument, the government cites Addington
v. Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981), for the principle that entry
of final judgment implicitly denies pending motions. We find the government’s argument
persuasive under the factual circumstances of this case.
We have previously held that 28 U.S.C. § 1291 grants appellate jurisdiction over claims
implicitly denied by an otherwise final decision. See Ford Motor Co. v. Transp. Indem. Co.,
795 F.2d 538, 542 (6th Cir. 1986) (holding that if a “district court’s ruling on one claim
necessarily precludes an alternative or mutually exclusive claim, a final order will arise despite
the lack of an explicit declaration by the district court”); A.O. Smith Corp. v. United States,
774 F.3d 359, 369 (6th Cir. 2014) (citing Ford Motor Co. for the proposition that the Court had
jurisdiction to review a claim where “the district court implicitly rejected it”). And we have
held, under circumstances similar to those in this case, that a district court’s imposition of a
sentence and entry of judgment implicitly denied a criminal defendant’s pending motion.
See United States v. Burress, 105 F. App’x 766, 769 (6th Cir. 2004).
Moreover, those of our sister circuits to have commented on this issue appear to agree
that entry of final judgment constitutes an implicit denial of pending motions. See Keeton v.
Morningstar, Inc., 667 F.3d 877, 882 (7th Cir. 2012) (“Final judgment necessarily denies
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 23
pending motions.” (internal brackets and quotation marks omitted)); United States v. Jasso,
634 F.3d 305, 307 n.2 (5th Cir. 2011) (holding that “the denial of a pending motion may be
implied by the entry of final judgment”); Toronto-Dominion Bank v. Cent. Nat. Bank & Trust
Co., 753 F.2d 66, 68 (8th Cir. 1985) (“Denial of a pending motion may be implied from the entry
of final judgment or any order inconsistent with the granting of the motion.”); Addington v.
Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981) (“The denial of a motion by
the district court, although not formally expressed, may be implied by the entry of final
judgment.”); Pinson v. Berkebile, 576 F. App’x 710, 711 (10th Cir. 2014) (“[B]y entering final
judgment, the court implicitly denied the pending motions.”); Gorrell v. Hastings, 541 F. App’x
943, 946–47 (11th Cir. 2013) (“When a district court does not expressly rule on a party’s
pending motion, the entry of a final judgment against the party, as a general matter, implicitly
denies that motion.”).
Based on these principles, we conclude that we have jurisdiction to hear Kim Dubrule’s
appeal. As we discuss below, the district court’s holding that Mr. Dubrule was competent to
stand trial and proceed to sentencing undermined the basis for, and therefore essentially denied,
Kim’s motion for a new trial. And in any event, Kim’s pending motion was implicitly denied by
the district court’s entry of her sentence and final judgment of conviction on October 21, 2014.
B. Denial of Kim Dubrule’s motion for a new trial
In order to establish that evidence was “newly discovered” for the purposes of justifying
a new trial, “a defendant must normally show that the evidence (1) was discovered only after
trial, (2) could not have been discovered earlier with due diligence, (3) is material and not merely
cumulative or impeaching, and (4) would likely produce an acquittal if the case were retried.”
United States v. Garland, 991 F.2d 328, 335 (6th Cir. 1993). As noted above, Kim Dubrule’s
motion for a new trial relies on Dr. Dwyer’s post-conviction report discussing Mr. Dubrule’s
personality disorders and finding him incompetent to proceed to sentencing. But the district
court ultimately found Dr. Dwyer’s report unpersuasive, holding that Mr. Dubrule was
competent to stand trial and proceed to sentencing despite any disorders. For the reasons already
discussed in this opinion, that factual finding was not clearly erroneous.
Nos. 14-6290/6376 United States v. Dubrule, et al. Page 24
We conclude that the district court did not abuse its discretion by implicitly denying
Kim’s motion for a new trial where that motion was premised on a report that the district court
found unpersuasive. In so doing, we are cognizant of the fact that the standards for competency
and insanity are different. See, e.g., Duran v. Attorney Gen. of N.M., 565 F. App’x 719, 722 n.1
(10th Cir. 2014) (citing Medina v. California, 505 U.S. 437, 448–49 (1992), for the principle that
“a defendant who is found competent to stand trial may also have been insane (or unable to form
specific intent) at the time he committed the crime”); 18 U.S.C. § 4241(f) (establishing that a
finding of competency does not foreclose a defendant’s insanity defense; nor is a determination
of competency “admissible as evidence in a trial for the offense charged”). But that fact serves
only to reinforce the tenuous nature of Kim’s reliance on Dr. Dwyer’s report—because that
report concerned only Mr. Dubrule’s competency, it was not dispositive of his capacity to form a
conspiracy. The district court thus did not “commit a clear error of judgment,” see Yoder &
Frey, 774 F.3d at 1070, because such evidence was unlikely to “produce an acquittal if the case
were retried,” see Garland, 991 F.2d at 335.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment as to Rosaire
Dubrule (Appeal No. 14-6376), and AFFIRM the district court’s judgment as to Kim Dubrule
(Appeal No. 14-6290).