United States v. Journey No Runner ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30449
Plaintiff-Appellee, D.C. No.
v.  4:08-cr-00088-
JOURNEY MARIE NO RUNNER, SEH-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
November 3, 2009—Portland, Oregon
Filed December 30, 2009
Before: Alex Kozinski, Chief Judge, Raymond C. Fisher
and Richard A. Paez, Circuit Judges.
Opinion by Judge Fisher
16837
UNITED STATES v. NO RUNNER 16839
COUNSEL
Eric Vincent Carroll, Assistant U.S. Attorney, Great Falls,
Montana, for the plaintiff-appellee.
R. Henry Branom, Jr., Assistant Federal Public Defender,
Great Falls, Montana, for the defendant-appellant.
OPINION
FISHER, Circuit Judge:
Journey Marie No Runner appeals from a pretrial order
finding her competent to stand trial. Because a pretrial compe-
tency determination is a non-final order and the collateral
order doctrine does not apply, we dismiss her appeal for lack
of jurisdiction.
16840 UNITED STATES v. NO RUNNER
BACKGROUND
The government charged No Runner with stealing a sport
utility vehicle, driving recklessly and causing an accident that
killed one person and injured two others. She faces one count
of involuntary manslaughter, 18 U.S.C. §§ 1153(a) and 1112,
one count of theft, 18 U.S.C. §§ 1153(a) and 661, and two
counts of assault resulting in serious bodily injury, 18 U.S.C.
§§ 1153(a) and 113(a)(6).
No Runner pled not guilty, and moved for a psychiatric
competency examination under 18 U.S.C. § 4241, arguing
that she suffered “traumatic brain injury in the accident” and
“has no memory of the events of the Indictment.” The district
court granted the motion, and Cynthia A. Low, Ph.D., a psy-
chologist, conducted a forensic evaluation of No Runner at
the Federal Detention Center in Seatac, Washington. Low
acknowledged that No Runner lacked any memory of the
events charged in the indictment, but nonetheless concluded
that she was competent to stand trial:
Overall, Ms. No Runner demonstrated an average
ability to understand the nature and consequences of
the court proceedings against her, and an average
ability to properly assist counsel in her defense.
From the available information, there is no evidence
to indicate that Ms. No Runner suffers from a mental
disorder that would substantially impair her present
ability to understand the nature and consequences of
the court proceedings brought against her, or impair
her ability to assist counsel in her defense. Although
her memory for the events described in the indict-
ment is essentially nonexistent, she is able to consult
with her attorney beyond this circumscribed amne-
sia, and is able to testify in her own behalf.
The district court held a competency hearing. Low, the only
witness, testified that No Runner’s claimed memory loss was
UNITED STATES v. NO RUNNER 16841
genuine, and that No Runner suffered from post-traumatic
amnesiac disorder that deprived her of any memory of the
events surrounding the accident. Nonetheless, Low opined
that No Runner was competent to stand trial because “she’s
going to be able to consult and assist with her attorney beyond
that very circumscribed memory loss.” The district court
found No Runner competent to stand trial. No Runner
appealed. The district court proceedings have been stayed
while this appeal has been pending.
DISCUSSION
On appeal, No Runner contends that we have jurisdiction
to review the district court’s pretrial competency order under
the collateral order doctrine, and that the court erred by find-
ing her competent to stand trial. We conclude that the collat-
eral order doctrine does not apply and that we lack
jurisdiction. We therefore do not reach No Runner’s conten-
tion that the district court’s competency determination was in
error.
[1] As a general rule, we have jurisdiction to review only
“final decisions of the district courts.” 28 U.S.C. § 1291. “In
criminal cases, this rule ordinarily prohibits appellate review
until a defendant is convicted and sentenced.” United States
v. Friedman, 366 F.3d 975, 978 (9th Cir. 2004). Under the
collateral order doctrine, however, a non-final order is appeal-
able if three conditions are satisfied.
First, it “must conclusively determine the disputed
question”; second, it must “resolve an important
issue completely separate from the merits of the
action”; third, it must “be effectively unreviewable
on appeal from a final judgment.”
Flanagan v. United States, 465 U.S. 259, 265 (1984) (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)
(footnote omitted)).
16842 UNITED STATES v. NO RUNNER
Although it is undisputed that the district court’s compe-
tency order satisfies the second condition for application of
the collateral order doctrine because the order addressed an
issue — competency — completely separate from the merits
of the case, the order fails to satisfy the first and third condi-
tions. A pretrial competency order does not conclusively
determine the question of competency and it can be effec-
tively reviewed following the final judgment.
I.
[2] A pretrial order finding a defendant competent to stand
trial does not “conclusively determine” the defendant’s com-
petency. Rather, the question of competency remains open
throughout the trial, and may be raised by the defendant, or
by the court, at any time.1 As the Supreme Court has
explained, “[e]ven when a defendant is competent at the com-
mencement of his trial, a trial court must always be alert to
circumstances suggesting a change that would render the
accused unable to meet the standards of competence to stand
trial.” Drope v. Missouri, 420 U.S. 162, 181 (1975). The trial
itself may furnish the strongest evidence of incompetency.
“Among the factors we consider to determine whether there
was sufficient evidence of incompetence are ‘the defendant’s
irrational behavior, his demeanor in court, and any prior med-
ical opinions on his competence.’ ” United States v. Marks,
1
The governing statute states:
At 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 defen-
dant. The court shall grant the motion, or shall order such a hear-
ing on its own motion, if there is reasonable cause to believe that
the defendant may presently be suffering from a mental disease
or defect rendering him mentally incompetent to the extent that
he is unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense.
18 U.S.C. § 4241(a).
UNITED STATES v. NO RUNNER 16843
530 F.3d 799, 814 (9th Cir. 2008) (quoting United States v.
Fernandez, 388 F.3d 1199, 1251 (9th Cir. 2004)) (emphasis
added).
[3] These considerations are particularly relevant where the
question of competency turns on amnesia. Determining
whether memory loss renders a defendant incompetent turns
on consideration of several factors, including whether the
crime and the defendant’s whereabouts at the time of the
crime can be reconstructed without the defendant’s testimony
and the strength of the government’s case. E.g., United States
v. Andrews, 469 F.3d 1113, 1119 (7th Cir. 2006).2 The
answers to these questions may not be known prior to trial; it
may be the trial itself that illuminates them. In such cases, a
2
Although we have not previously had occasion to consider the effect
of memory loss on incompetency, other circuits have done so. These
courts have uniformly held that amnesia regarding the alleged crime does
not constitute incompetence per se but may establish a basis for a finding
of incompetence in a particular case. See Andrews, 469 F.3d at 1119;
United States v. Villegas, 899 F.2d 1324, 1341 (2d Cir. 1990); United
States v. Rinchack, 820 F.2d 1557, 1569 (11th Cir. 1987); Davis v. Wyrick,
766 F.2d 1197, 1202 (8th Cir. 1985); United States v. Swanson, 572 F.2d
523, 526 (5th Cir. 1978); see also 1 Wayne R. LaFave, Substantive Crimi-
nal Law § 8.1(a), at 567 (2d ed. 2003) (“[T]rial of an amnesiac defendant
can be fundamentally unfair in some circumstances, and consequently trial
judges must determine, on a case-by-case basis, whether the defendant
could likely receive (and, at the conclusion of the trial, whether he in fact
did receive) a fair trial.”). These courts have relied on several nonexhaus-
tive factors relevant to the competency determination, including: (1)
whether the defendant has the ability to participate in his defense, such as
by consulting with counsel and taking the stand on matters other than the
amnesiac event; (2) whether the amnesia is temporary or permanent; (3)
whether the crime and the defendant’s whereabouts at the time of the
crime can be reconstructed without the defendant’s testimony; (4) whether
access to government files would aid in preparing the defense; and (5) the
strength of the government’s case against the defendant. See Andrews, 469
F.3d at 1119; Villegas, 899 F.2d at 1341; Rinchack, 820 F.2d at 1569;
Swanson, 572 F.2d at 526-27; see also Davis, 766 F.2d at 1202 & n.8
(relying on similar factors); LaFave, supra, § 8.1(a), at 567 n.27 (discuss-
ing factors).
16844 UNITED STATES v. NO RUNNER
pretrial finding of competency is necessarily subject to poten-
tial reconsideration. As the Seventh Circuit explained, “[i]f at
any stage during or after trial, with or without motion by
counsel, it becomes apparent that the defendant’s amnesia
may have rendered him incompetent and jeopardize the fair-
ness of the trial, then the district court again must evaluate the
defendant’s competency.” Andrews, 469 F.3d at 1120.
[4] These authorities convince us that a pretrial competency
determination fails to satisfy the first condition for application
of the collateral order doctrine. Such an order does not con-
clusively determine the issue of competency because the
defendant may raise the issue anew during or following trial,
or proceedings may compel the court to raise the issue sua
sponte.
II.
The district court’s pretrial order also fails to meet the third
condition for application of the collateral order doctrine. We
are not persuaded that an order finding a defendant competent
to stand trial would “be effectively unreviewable on appeal
from a final judgment.”
[5] No Runner contends that the right of an incompetent
defendant not to stand trial includes not only a right not to be
convicted but also an absolute right not to be tried at all, i.e.,
a right that cannot be protected by post-conviction appellate
review. In this respect, she analogizes her situation to the pro-
tection afforded by the Double Jeopardy Clause. See Flana-
gan, 465 U.S. at 266 (“The right guaranteed by the Double
Jeopardy Clause is more than the right not to be convicted in
a second prosecution for an offense: it is the right not to be
‘placed in jeopardy’ — that is, not to be tried for the
offense.”); Abney v. United States, 431 U.S. 651, 661-62
(1977) (holding that a pretrial order denying a motion to dis-
miss an indictment on the basis of double jeopardy is immedi-
ately appealable because double jeopardy protects against
UNITED STATES v. NO RUNNER 16845
“being twice put to trial for the same offense”). No Runner
argues that the right of an incompetent defendant not to be
tried cannot be remedied by an appeal after judgment.
We disagree. Granted, the Supreme Court has, on occasion,
described incompetency in terms of a right not to be tried.
E.g., Godinez v. Moran, 509 U.S. 389, 396 (1993) (“A crimi-
nal defendant may not be tried unless he is competent.”);
Drope, 420 U.S. at 171 (holding that an incompetent defen-
dant “may not be subjected to a trial”); id. at 172 (describing
“a defendant’s right not to be tried or convicted while incom-
petent”). If that were the nature of the right, then perhaps No
Runner could satisfy the third condition for application of the
collateral order doctrine.
[6] The Supreme Court, however, has never held that
incompetency includes an absolute right not to be tried, or
that a competency determination cannot be reviewed effec-
tively on appeal after conviction. On the contrary, the Court
has said that “[d]ouble jeopardy and speech or debate rights
are sui generis in this regard.” Flanagan, 465 U.S. at 267; see
also Mohawk Indus., Inc. v. Carpenter, 558 U.S. ___, No. 08-
678, slip op. at 12 (Dec. 8, 2009) (“[T]he class of collaterally
appealable orders must remain ‘narrow and selective in its
membership.’ ” (quoting Will v. Hallock, 546 U.S. 345, 350
(2006))). At base, incompetency concerns a right to a fair
trial. See Drope, 420 U.S. at 172 (“[T]he failure to observe
procedures adequate to protect a defendant’s right not to be
tried or convicted while incompetent to stand trial deprives
him of his due process right to a fair trial.”). That right can
be protected adequately by post-conviction appellate review.
Accordingly, the district court’s pretrial order finding No
Runner competent to stand trial also fails to satisfy the third
condition of the collateral order doctrine.3
3
Our holding is consistent with Friedman, where we found “particularly
persuasive” a Second Circuit passage stating that “a ruling that the defen-
dant is competent and must proceed to trial . . . could be effectively
reviewed and remedied, if erroneous, on appeal from any final judgment
16846 UNITED STATES v. NO RUNNER
[7] In sum, No Runner appeals from a non-final order. The
collateral order doctrine does not apply. We therefore lack
jurisdiction.
DISMISSED.
against him.” Friedman, 366 F.3d at 979 (quoting United States v. Gold,
790 F.2d 235, 239 (2d Cir. 1986)). It is also consistent with United States
v. Mandycz, 351 F.3d 222 (6th Cir. 2003). In Mandycz, the Sixth Circuit
stated, “[u]nlike the protection afforded by absolute immunity or the Dou-
ble Jeopardy Clause, the incompetency of a criminal defendant does not
implicate an absolute right not to be tried. Accordingly, . . . competency
determinations . . . are not appealable as collateral orders because they are
fully reviewable following the final judgment of the district court.” Id. at
225 (citation omitted).