United States v. Andrew Kowalczyk , 805 F.3d 847 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-30198
Plaintiff-Appellee, 14-30219
v. D.C. No.
3:08-cr-00095-
ANDREW FRANKLIN KOWALCZYK, MO-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted
July 6, 2015—Portland, Oregon
Filed November 4, 2015
Before: Harry Pregerson, N. Randy Smith, and
John B. Owens, Circuit Judges.
Opinion by Judge Pregerson
2 UNITED STATES V. KOWALCZYK
SUMMARY*
Criminal Law
The panel affirmed the district court’s order finding a
defendant incompetent to stand trial and referring him to a
federal medical center for further evaluation, and remanded.
The panel held that 18 U.S.C. § 4247 creates a non-
waivable right to counsel during competency proceedings,
and that the defendant was entitled to be represented by an
attorney at his competency hearing. The panel held that the
“meaningful adversarial testing” standard applies to assessing
whether amicus counsel, appointed by the district court,
satisfied the requirement of the right to counsel, and
concluded that the defendant’s amicus counsel did provide
meaningful adversarial testing.
The panel rejected the defendant’s claim that he was
denied his constitutional right to testify in his competency
hearings, and held that any potential abuse of discretion in not
allowing the defendant to speak at a hearing on supplemental
briefing was harmless.
The panel held that because multiple competency
evaluations and determinations are permitted by 18 U.S.C.
§ 4241, the panel did not commit process error when, after
finding the defendant incompetent for the first time and
referring him for treatment, the district court held a second
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. KOWALCZYK 3
competency hearing and ordered him committed and treated
a second time.
The panel saw no reason to reassign the case to a different
district court judge on remand.
COUNSEL
Stephen R. Sady (argued), Chief Deputy, Federal Public
Defender, Portland, Oregon, for Defendant-Appellant.
Gary Y. Sussman (argued), Assistant United States Attorney,
Kelly A. Zusman, Appellate Chief, S. Amanda Marshall,
United States Attorney, United States Attorney’s Office,
Portland, Oregon, for Plaintiff-Appellee.
OPINION
PREGERSON, Circuit Judge:
During the long running course of Andrew Kowalczyk’s
prosecution for production of child pornography the district
court conducted two separate competency hearings to
determine whether Kowalczyk was competent to stand trial.
During the second competency hearing, the district court
appointed amicus counsel. After both competency hearings
the district court found Kowalczyk incompetent to stand trial
and referred Kowalczyk to a federal medical center for
further evaluation. Kowalczyk appeals the second
commitment order. Kowalczyk argues that the second
competency hearing violated his constitutional rights because
it: (1) deprived him of his Sixth Amendment right to counsel;
4 UNITED STATES V. KOWALCZYK
(2) deprived him of his right to testify; and (3) deprived him
of the procedural protections outlined under 18 U.S.C. § 4241
for finding an individual incompetent. We affirm the district
court’s commitment order and remand for further
proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On February 21, 2008, a federal grand jury in the District
of Oregon returned a one count indictment charging
Kowalczyk with production of child pornography in violation
of 18 U.S.C. § 2251(a) and (e). On March 20, 2012 the grand
jury returned a superseding indictment charging Kowalczyk
with eight additional counts of producing child pornography.
On February 22, 2008, Kowalczyk’s case was assigned to
District Judge Garr M. King. Kowalczyk first appeared in
court on August 20, 2009, and pleaded not guilty. Federal
Public Defenders Francesca Freccero and Ellen Pitcher were
appointed to represent Kowalczyk.
On December 2, 2009, Freccero and Pitcher moved to
withdraw as Kowalczyk’s attorneys because of a conflict with
Kowalczyk. The district court granted the motion to withdraw
and appointed Matthew Schindler to represent Kowalczyk.
Priscilla Seaborg was subsequently appointed as co-counsel.
Schindler and Seaborg moved to withdraw ten months later
on October 15, 2010. The district court warned Kowalczyk
that if his actions caused another attorney to resign he would
have to represent himself. On October 22, 2010, the district
court granted Schindler’s and Seaborg’s motion to withdraw
and appointed Michael Levine and Matthew McHenry to
represent Kowalczyk.
UNITED STATES V. KOWALCZYK 5
Soon after, Levine and McHenry filed a motion to
withdraw, explaining that a “mutual loss of trust ha[d] led to
an irreconcilable breakdown in the attorney–client
relationship.” Kowalczyk stated that he did not wish to
represent himself, and the district court denied the attorneys’
motion to withdraw. On May 5, 2011, Levine and McHenry
filed a second motion to withdraw, explaining that the
“attorney–client relationship [was] shattered and irreparably
broken.” The district court granted Levine and McHenry’s
motion to withdraw, and appointed the seventh attorney, Noel
Grefenson, to represent Kowalczyk.
On June 1, 2012, Kowalczyk filed a pro se motion
objecting to Grefenson’s representation and requesting new
or additional counsel. The district court denied the motion.
On October 29, 2012, defense counsel Grefenson filed an
ex parte motion requesting funds for a psychological
evaluation of Kowalczyk. Grefenson explained that
Kowalczyk insisted that he receive a competency evaluation,
though Grefenson, admitting he was not a mental health
professional, did not believe his client was incompetent. The
district court denied the request, finding that there was no
indication “Kowalczyk was mentally unstable to the point
where he could not understand the proceedings or consult
with his lawyer.”
The district court noted that this was not the first time
Kowalczyk requested medical attention shortly before trial
was scheduled to begin. On August 10, 2012, less than a
month before a scheduled trial date, Kowalczyk complained
of a hernia and said he needed surgery. A doctor determined
surgery was not necessary and that the symptoms were likely
due to obesity.
6 UNITED STATES V. KOWALCZYK
In November 2012, Kowalczyk’s father hired a clinical
and forensic psychologist, Dr. Donald True, to evaluate
Kowalczyk. Dr. True concluded Kowalczyk was not presently
competent to stand trial and was unable to work with
attorneys due to irrational paranoia.
On November 16, 2012, the district court held an ex parte
hearing to address Kowalczyk’s continued requests for a new
attorney. Grefenson informed the court that Kowalczyk had
filed a lawsuit against him. Kowalczyk maintained that he
wanted to be represented by an attorney.
The district court summarized the procedural history of
the case and opined that it appeared as if Kowalczyk was
looking for ways “to avoid going to trial.” Because of the
conflict of interest created by the lawsuit Kowalczyk filed
against Grefenson, the district court decided to appoint new
counsel. But the court warned Kowalczyk that this was the
final lawyer that would be appointed and if Kowalczyk did
“anything that causes the lawyer to have to resign, . . . [the
court would] assume [he was] doing it in order to avoid going
to trial and [would] assume that [he had] waived [his] right to
counsel.” Kowalczyk then submitted Dr. True’s report to the
court. During the November 16, 2012 hearing, Judge King
transferred the case to Judge Mosman because Judge King
was scheduled to undergo surgery.
On November 30, 2012, Judge Mosman appointed Mark
Cross, the eighth attorney to represent Kowalczyk. The
district court again reminded Kowalczyk that Cross was his
“last lawyer” and that it would “deem [Kowalczyk] to be
representing [himself]” if “anything [got] in the way of the
continued representation.”
UNITED STATES V. KOWALCZYK 7
On March 11, 2013, the government moved for a
competency hearing, a psychological evaluation, and
discovery of prior psychological reports. The district court
granted the government’s motion and ordered Kowalczyk to
undergo psychological evaluation in preparation for the
competency hearing and asked that a report be prepared
pursuant to 18 U.S.C. § 4247.1
In May 20, 2013, Kowalczyk, acting pro se, moved for
substitution of counsel. He complained that, among other
things, Cross had not spent much more than an hour of face-
1
Psychiatric or psychological reports.— A psychiatric or
psychological report ordered pursuant to this chapter shall be
prepared by the examiner designated to conduct the psychiatric
or psychological examination, shall be filed with the court with
copies provided to the counsel for the person examined and to
the attorney for the Government, and shall include—
(1) the person’s history and present symptoms;
(2) a description of the psychiatric, psychological, and
medical tests that were employed and their results;
(3) the examiner’s findings; and
(4) the examiner’s opinions as to diagnosis, prognosis,
and—
(A) if the examination is ordered under section
4241, whether the person is 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. § 4247(c).
8 UNITED STATES V. KOWALCZYK
time with him. Cross moved to withdraw as counsel that same
day.
On May 29, 2013, the district court held a status
conference to discuss both motions. The court summarized
the case’s drawn out procedural history, including references
to the eight court-appointed attorneys whose representation
was withdrawn, with the court’s consent, because of serious
conflicts that arose with their client Kowalczyk. The court
asked Cross whether he believed Kowalczyk was “mentally
competent to proceed with pro se representation.” Cross
responded, “I don’t believe in good faith that I can represent
in my opinion that he is not competent.” The court then
stated:
I’m inclined to find that the defendant has
been acting in a manner that’s dilatory and
hinders the efficient administration of justice;
that as Judge King said . . . that the
defendant’s conduct seems calculated to
prevent the trial from happening now five and
a half years later and eight attorneys later, and
that therefore he should be deemed to have
waived his right to counsel and proceed pro
se.
The district court granted Cross’s motion to withdraw and
stated that Kowalczyk’s motion for substitute counsel would
be resolved on the date set for the competency proceeding:
June 10, 2013. The court also had government counsel
remind Kowalczyk of the elements of the charged offense and
the potential punishment. The court found Kowalczyk
“competent to represent himself though the competency
hearing,” finding “that defendant has a rational as well as
UNITED STATES V. KOWALCZYK 9
factual understanding of the proceedings against him and that
he has the mental capacity to conduct basic defense and trial
tasks as well as other pro se defendants.”
Self-Representation and First Competency Hearing
On June 6, 2013, Kowalczyk filed an emergency petition
for writ of mandamus with our court, challenging the district
court’s authority to require him to represent himself at his
own competency hearing. Our court denied the emergency
petition on the ground that any harm would be “correctable
on appeal.”
On June 10, 2013, the district court held the first hearing
during these proceedings to address Kowalczyk’s
competency. The district court denied Kowalczyk’s motions
for substitute or standby counsel, consistent with its earlier
finding that Kowalczyk was “competent to represent himself
through the competency hearing.”
Government psychologist Dr. Eric Johnson submitted his
report to the court. The report stated that there were “findings
both in support of and not in support of incompetency.” Dr.
Johnson recommended a finding of incompetence and referral
to a facility where Kowalczyk can be “closely observed,
treated, and evaluated.” Defense psychologist Dr. True
determined, based on his own assessment, that Kowalczyk
was not competent to stand trial.
The district court was concerned that Kowalczyk was
malingering, but in light of the defendant’s and government’s
psychological reports, the district court found Kowalczyk
incompetent to stand trial. The district court ordered
Kowalczyk committed to the custody of the Attorney General
10 UNITED STATES V. KOWALCZYK
under 18 U.S.C. §§ 4241(d) and 4247(d). Kowalczyk was
transferred to the United States Medical Center for Federal
Prisoners in Springfield, Missouri (“FMC Springfield”)
pursuant to the court’s order.
Bureau of Prisons forensic psychologist Dr. Richart
DeMier evaluated Kowalczyk during his commitment at
FMC Springfield from July 2013 until October 2013.
Return from FMC Springfield and Second Competency
Hearing
Dr. DeMier determined that Kowalczyk was competent to
proceed with the case, finding “no mental illness which
would preclude [defendant’s] ability to understand the nature
of the proceedings against him or to assist properly in his
defense.” Kowalczyk returned to the district court for further
proceedings.
On October 9, 2013, the district court set further
competency proceedings for November 26, 2013. Before the
hearing, the government moved the district court to appoint
counsel to represent Kowalczyk at the competency hearing.
The court granted the government’s motion, appointed Todd
Bofferding as Kowalczyk’s legal counsel, and rescheduled
the competency hearing for January 9, 2014. On January 7,
2014, Bofferding and Kowalczyk filed a joint motion to
withdraw, citing concerns that Kowalczyk would soon file a
lawsuit and state bar complaint against him.
On January 9, 2014, the district court found that
Kowalczyk had “waived by action his right to be fully
represented at the competency hearing.” The court granted
Bofferding’s motion to withdraw. The court decided to
UNITED STATES V. KOWALCZYK 11
appoint amicus counsel, finding that “the law technically
requires representation at a competency hearing.” When
Kowalczyk asked the court to explain the role of amicus
counsel, the court provided the following:
[An attorney appointed by the court] to do his
best to present any views opposing the
Government’s views in court. He won’t be
representing you. So you won’t be able to fire
him, but he will be doing his level best to
represent the interests of justice that any
defendant would be wanting to advance in a
case like this.
The court appointed Robert Reid as amicus counsel and
ordered him “to advocate, as an attorney independent of both
the prosecution and Mr. Kowalczyk, the position of
competency that Mr. Kowalczyk has advised the Court he
intends to pursue in his pro se capacity.”
On February 4, 2014, Kowalczyk moved pro se for
appointment of counsel for the competency hearing, which
the government opposed. The court denied the motion and
stated:
By his own actions, defendant has made
appointing him a lawyer impossible and
repeatedly demonstrated his intention to use
such appointments as a tactical delay. For him
to now complain that he cannot proceed
without counsel is like Penelope complaining
that her tapestry is not finished.
12 UNITED STATES V. KOWALCZYK
The district court began competency proceedings on April
10 and 11, 2014. On April 10, the government called and
examined one witness, Dr. DeMier, who was subsequently
cross-examined by both Reid as amicus counsel and
Kowalczyk acting pro se. At the conclusion of testimony that
day, the court asked the parties which witnesses they would
be presenting the next day. Both Kowalczyk and amicus
counsel Reid separately offered the names of witnesses, but
neither Kowalczyk nor Reid asked to have Kowalczyk testify
on his own behalf. On April 11, Kowalczyk released his two
witnesses without questioning them and, upon his request,
was escorted out to a remote viewing room when Reid called
Kowalczyk’s mother as a witness. After Kowalczyk returned,
Reid called and examined Kowalczyk’s father and Dr. True,
both of whom Kowalczyk cross-examined. The court then
concluded taking of evidence in the case. In all respects,
Kowalczyk fully participated in both days of the competency
proceedings, often being allowed by the court to speak out of
turn.
The district court also determined that Reid did a “truly
masterful job” representing Kowalczyk’s interests over the
two days, both by cross-examining the government expert,
Dr. DeMier, and by calling Kowalczyk’s parents and Dr. True
as friendly witnesses.
Dr. DeMier, the evaluating doctor from FMC Springfield,
testified that Kowalczyk seemed “very invested in convincing
me that he was mentally ill,” which is uncommon for people
who are actually mentally ill and is more common in those
who are malingering. Dr. DeMier did not administer any
psychological tests because he believed that they would not
be accurate due to Kowalczyk’s knowledge of the purpose of
UNITED STATES V. KOWALCZYK 13
the tests. Dr. DeMier testified that he believed Kowalczyk
was malingering and that he was competent to stand trial.
Dr. True, the defense expert, testified that Kowalczyk
suffered from paranoid schizophrenia with a pattern of
delusional disorder, a diagnosis similar to his first assessment
of Kowalczyk where he found that Kowalczyk had
Delusional Disorder, paranoid type. Dr. True testified that
Kowalczyk’s mental illness affects his competency because
it impacts his ability to work with attorneys and may lead him
to fire them. Dr. True also emphasized the importance of
using objective tests during psychological examinations.
The court found that while Kowalczyk clearly understood
the proceedings against him and was therefore competent on
that factor, it was unclear whether Kowalczyk was
incompetent on the second competency factor—his ability to
work with attorneys—and requested supplemental briefing on
that issue from the parties. The district court specifically
asked for briefing on whether: (1) “Dr. DeMier’s
methodology [was] so flawed as to make his conclusion of
competence unreliable,” (2) there is “solid evidence” to
support a finding that Kowalczyk was suffering from
delusions and paranoia, and (3) there is evidence that the
trouble with Kowalczyk’s attorneys was caused by his
paranoia and delusions. Amicus counsel Reid filed a 69-page
supplemental brief in response to the district court’s request
for further briefing on the issue of whether Kowalczyk was
competent to work with his attorneys. The government and
Kowalczyk also filed supplemental briefs, arguing
respectively for competency and incompetency.
On July 23, 2014, the district court held a hearing after
the supplemental briefings. After the government and amicus
14 UNITED STATES V. KOWALCZYK
counsel argued the issues, Kowalczyk requested to speak. The
court initially denied his request, instead ruling that it found
“a better-than-average chance” that Kowalczyk was “merely
malingering.” However, the court also found that Dr.
DeMier’s competency evaluation and finding of competence
was inadequate, as was the incompetency finding by Dr.
True. Thus, the court decided to send Kowalczyk for
“renewed evaluation” by someone other than Dr. DeMier and
directed that the evaluation include a “thorough review of the
record in this case.”
After ruling, the court allowed Kowalczyk to speak.
Kowalczyk informed the court that he did not wish to return
to FMC Springfield. The court granted his request and
suggested that he be sent to a different facility.
On September 2, 2014, the district court ordered that
Kowalczyk be committed to the custody of the Attorney
General “who shall hospitalize defendant for evaluation and
treatment” for not more than four months “to determine
whether there is a substantial probability that in the
foreseeable future defendant will attain the capacity to permit
the proceedings to go forward.” If the evaluator determined
Kowalczyk was malingering and was competent, the
evaluator is required to issue a report to the court. If the
evaluator determined Kowalczyk had regained competency
then he or she is ordered to file a certificate with the court.
Finally, the court determined that if, at the end of the four
month period, Kowalczyk remained incompetent, a hearing
would be held to address further proceedings under 18 U.S.C.
§§ 4246 and 4248.
Kowalczyk appealed the district court’s order. Kowalczyk
also sought the appointment of counsel. Our court appointed
UNITED STATES V. KOWALCZYK 15
Chief Deputy Federal Public Defender Steve Sady to
represent Kowalczyk in his appeal. Kowalczyk filed an
emergency motion in this court to stay the district court’s
commitment and treatment order. That motion was granted
without prejudice; the order stated:
All proceedings under 18 U.S.C. § 4241(d)
are stayed pending this appeal. This order is
without prejudice to the district court’s entry
of a new order for psychiatric or
psychological examination of appellant and
the preparation of a psychiatric or
psychological report to be filed with the court
pursuant to 18 U.S.C. § 4241(b). However, no
use of the transcripts or other records of
appellant’s prior competency hearings shall be
made in any examination or evaluation of
appellant pending this appeal.
The district court has declined to order a new evaluation.
JURISDICTION
We have jurisdiction to review the district court’s
commitment order under 28 U.S.C. § 1291 because pretrial
commitment orders are final decisions under the collateral
order doctrine. United States v. Friedman, 366 F.3d 975,
979–80 (9th Cir. 2004).2
2
We do not address Kowalczyk’s argument that the district court
violated his Sixth Amendment rights and attorney–client privilege, by
questioning his attorneys regarding their opinion as to his competency and
opening sealed proceedings that allowed the prosecution access to
privileged information and trial strategy detrimental to his case. Because
16 UNITED STATES V. KOWALCZYK
DISCUSSION
I. Sixth Amendment Right to Counsel
Our court reviews Sixth Amendment claims and the
waiver of the right to counsel de novo. United States v.
Danielson, 325 F.3d 1054, 1066 (9th Cir. 2003); United
States v. Gerritsen, 571 F.3d 1001, 1006 (9th Cir. 2009). We
also review the interpretation of statutes de novo. United
States v. Thompson, 728 F.3d 1011, 1015 (9th Cir. 2013).
A. Counsel is Required During Competency Proceedings
The Sixth Amendment guarantees the waivable right to
counsel at all critical stages of criminal proceedings,
including during competency proceedings. United States v.
Hamilton, 391 F.3d 1066, 1070 (9th Cir. 2004) (noting that
“court-ordered psychiatric examinations to determine
the extent of such harm will be sufficiently protected by post-judgment
appeals, our jurisdiction to hear this claim is limited by the collateral order
doctrine. See United States v. Guerrero, 693 F.3d 990, 997 (9th Cir. 2012)
(noting that “decisions adverse to the attorney–client privilege, as a class,
are not effectively unreviewable on appeal of a final judgment, and
therefore not subject to collateral order review” (citing Mohawk Indus.,
Inc. v. Carpenter, 558 U.S. 100, 108–09 (2009))). Nonetheless, we note
that government intrusion into the attorney–client relationship is not per
se violative of the Sixth Amendment unless the defendant is substantially
prejudiced by such actions. United States v. Irwin, 612 F.2d 1182,
1186–87 (9th Cir. 1980). Substantial prejudice results, for example, from
“the prosecution’s use of confidential information pertaining to defense
plans and strategy, and from other actions designed to give the prosecution
an unfair advantage at trial.” Id. at 1187; see also United States v.
Danielson, 325 F.3d 1054, 1069–70 (9th Cir. 2003). Here, the trial is yet
to begin. The prosecution has yet to use any such information at trial in a
prejudicial way.
UNITED STATES V. KOWALCZYK 17
competency to stand trial and future dangerousness”
constitute a critical stage). At a competency hearing to
determine whether an individual is competent to stand trial,
“the person whose mental condition is the subject of the
hearing shall be represented by counsel and, if he is
financially unable to obtain adequate representation, counsel
shall be appointed for him.” 18 U.S.C. § 4247(d) (emphasis
added). “The word ‘shall’ is ordinarily the language of
command.” Alabama v. Bozeman, 533 U.S. 146, 153 (2001)
(internal quotation marks omitted).
Kowalczyk argues that § 4247 creates a non-waivable
right to counsel during competency proceedings and argues
that otherwise the statute would be superfluous because the
Sixth Amendment already guarantees the waivable right to
counsel. Kowalczyk notes that “courts should avoid
interpreting a statute in a way that renders a provision
meaningless.” Los Coyotes Band of Cahuilla & Cupeno
Indians v. Jewell, 729 F.3d 1025, 1036 (9th Cir. 2013) (citing
Gorospe v. C.I.R., 451 F.3d 966, 970 (9th Cir. 2006)). While
our court has yet to decide whether § 4247 creates a non-
waivable right to counsel, several other circuits have held that
a defendant whose competence to stand trial is in question
cannot legally waive his or her right to counsel. See United
States v. Ross, 703 F.3d 856, 871 (6th Cir. 2012) (“[T]he
Constitution requires a defendant to be represented by
counsel at his own competency hearing, even if he has
previously made a knowing and voluntary waiver of
counsel.”); United States v. Klat, 156 F.3d 1258, 1263 (D.C.
Cir. 1998) (“[W]here a defendant’s competence to stand trial
is reasonably in question, a court may not allow that
defendant to waive her right to counsel and proceed pro se
until the issue of competency has been resolved.”); United
States v. Purnett, 910 F.2d 51, 55 (2d Cir. 1990) (“[T]he trial
18 UNITED STATES V. KOWALCZYK
court cannot simultaneously question a defendant’s mental
competence to stand trial and at one and the same time be
convinced that the defendant has knowingly and intelligently
waived his right to counsel.”).
Reading § 4247 as creating a non-waivable right to
counsel during competency proceedings is consistent with the
Supreme Court’s holding in Pate v. Robinson, 383 U.S. 375
(1966). There, the Court held that “it is contradictory to argue
that a defendant may be incompetent [to stand trial], and yet
knowingly or intelligently ‘waive’ his right to have the court
determine his capacity to stand trial.” Id. at 384. This same
reasoning applies to a potentially incompetent defendant’s
inability to knowingly or intelligently waive his right to
counsel. Thus, we hold that, as a person whose competence
to stand trial was in question, Kowalczyk could not legally
waive his right to counsel; thus he was entitled to be
represented by an attorney at his competency hearing.
Further, “the Constitution permits States to insist upon
representation by counsel for those competent enough to
stand trial under Dusky [v. United States, 362 U.S. 402
(1960),] but who still suffer from severe mental illness to the
point where they are not competent to conduct trial
proceedings by themselves.” Indiana v. Edwards, 554 U.S.
164, 178 (2008). Essentially, the standard of competence for
waiving counsel and invoking the right to self-representation
may be higher than the standard of competence required to
stand trial. See United States v. Thompson, 587 F.3d 1165,
1172 (9th Cir. 2009) (holding that judges may “require a
higher level of competence for self-representation”). Thus, if
states can require a competent, but mentally ill, defendant to
have counsel, then surely Congress through § 4247(d) has the
authority to require representation by counsel for a defendant
UNITED STATES V. KOWALCZYK 19
whose competency is in question during competency
proceedings.
The government argues that in limited circumstances a
judge may force a defendant to proceed pro se if his or her
conduct “hinders the efficient administration of justice.” In
United States v. Sutcliffe, our court determined “that the
district court did not err in finding that Defendant knowingly
and intelligently waived his right to counsel through his
conduct.” 505 F.3d 944, 956 (9th Cir. 2007). However, unlike
Kowalczyk, the competence of the defendant in Sutcliffe was
no longer in question; he was in a position where he could
knowingly and intelligently waive his right to counsel.3
Kowalczyk’s situation is more comparable to that of the
defendant in United States v. Meeks, 987 F.2d 575 (9th Cir.
1993). Similar to Kowalczyk, Meeks’s “attempts to change
attorneys delayed his trial several times” and our court noted
the district court’s understandable frustration. Id. at 579. Our
court found that Meeks’s history of mental illness precluded
a finding of a “knowing, intelligent waiver.” Id. Though
Meeks was actually found competent to stand trial following
competency proceedings, his history of mental illness alone
convinced our court that he was unable to impliedly waive his
right to counsel at trial through his conduct. Id. at 577–79.
Our court “indulge[s] every reasonable presumption against
waiver of fundamental constitutional rights, and doubts must
be resolved in favor of no waiver.” Id. at 579 (internal
quotation marks omitted). Here, Kowalczyk, who also had a
history of mental illness and was found incompetent to stand
3
See Sutcliffe, 505 F.3d at 952, 956 (competency proceedings must
have resulted in a finding of competence because Sutcliffe’s case
proceeded to trial).
20 UNITED STATES V. KOWALCZYK
trial during his first competency hearing, was just as
incapable as Meeks of knowingly and intelligently waiving
his right to counsel through his conduct.
Accordingly, the district court was required to provide
Kowalczyk with an attorney during his competency
proceedings. We thus must consider whether the district
court’s appointment of amicus counsel satisfied this
requirement of the right to counsel.
B. The Meaningful Adversarial Testing Standard is
Applicable
“[A]ppointed counsel must function in the active role of
an advocate, as opposed to that of amicus curiae.” Entsminger
v. Iowa, 386 U.S. 748, 751 (1967). The government argues
that the district court’s appointment of amicus counsel
fulfilled Kowalczyk’s right to counsel at his competency
hearing because amicus counsel acted as if he were defense
counsel. We agree.
We follow the Sixth Circuit and apply the “meaningful
adversarial testing” standard of United States v. Cronic, 466
U.S. 648, 656 (1984). Ross, 703 F.3d at 872. Under Cronic,
counsel must “subject the prosecution’s case to meaningful
adversarial testing” in order to satisfy the Sixth Amendment’s
guarantee of the effective assistance of counsel. Cronic, 466
U.S. at 659. We agree with the Sixth Circuit that Cronic’s
“meaningful adversarial testing” standard “is the appropriate
standard for assessing whether [a defendant’s] standby
counsel provided representation that was adequate to
overcome [the defendant’s] claim that he was deprived of
counsel at his competency hearing.” Ross, 703 F.3d at 872.
UNITED STATES V. KOWALCZYK 21
Without mentioning Cronic or the “meaningful
adversarial test” by name, the Eighth and Second Circuits
follow a similar approach to determine whether a defendant
was deprived of his right to counsel during competency
proceedings. See Wise v. Bowersox, 136 F.3d 1197, 1203 (8th
Cir. 1998) (finding no deprivation of due process, where
prosecution’s arguments for competency to stand trial were
challenged by standby counsel’s arguments for
incompetency); Purnett, 910 F.2d at 55–56 (2d Cir. 1990)
(holding that standby counsel was not an adequate
replacement for defense counsel during competency
proceedings, where the record showed that standby counsel
did not focus on his client’s competency and did not review
the client’s psychiatric report).
Here, Kowalczyk’s amicus counsel, Reid, provided
“meaningful adversarial testing.” Reid advocated for the same
incompetency position as Kowalczyk. Reid also filed a 69-
page supplemental brief, and thoroughly litigated
Kowalczyk’s interests, both by cross-examining the
government expert, Dr. DeMier, and by calling Kowalczyk’s
parents and Dr. True as friendly witnesses. The district court
determined that Reid did a “truly masterful job” representing
Kowalczyk’s interests.
Because amicus counsel provided “meaningful
adversarial testing,” we hold that Kowalczyk “was
sufficiently represented by counsel at the competency hearing
to overcome his denial of counsel claim.” Ross, 703 F.3d at
873.
22 UNITED STATES V. KOWALCZYK
II. Right to Testify During Competency Hearing
We review “de novo a defendant’s claim that he was
deprived of his constitutional right to testify.” United States
v. Gillenwater, 717 F.3d 1070, 1076 (9th Cir. 2013).
“[A] defendant in a criminal case has the right to take the
witness stand and to testify in his or her own defense.” Id. at
1077 (internal quotation marks omitted). The same right
applies in a competency hearing, a “critical stage” in the
adversarial process. Id. at 1077 n.5. A defendant’s right to
testify is personal and therefore may be relinquished only by
the defendant. Id. at 1079. Additionally, the “relinquishment
of the right [to testify] must be knowing and intentional.” Id.
(internal quotation marks omitted). “[W]aiver of the right to
testify may be inferred from the defendant’s conduct and is
presumed from the defendant’s failure to testify or notify the
court of his desire to do so.” United States v. Joelson, 7 F.3d
174, 177 (9th Cir. 1993).
The appellant argues that his right to testify during his
competency proceeding was violated when the court did not
allow him to speak during the July 23, 2014 hearing after
supplemental briefing. We disagree. The July 23 hearing after
supplemental briefing must be viewed in context of the two-
day evidentiary hearing which preceded it on April 10 and 11,
2014. On both days of this earlier hearing, Kowalczyk was an
active participant in the calling and examining of witnesses
and had ample opportunity to testify himself.
In Gillenwater, our court found that the district court had
denied the defendant’s right to testify. 717 F.3d at 1073–75.
The defendant had expressed his desire to testify during his
competency hearing, against the advice of his attorney. Id.
UNITED STATES V. KOWALCZYK 23
This led to the defendant’s disruptive outburst, removal from
the courtroom by the court, and denial of the defendant’s
right to testify. Id. On appeal, our court vacated and
remanded for a new competency hearing based on the district
court’s denial of the defendant’s right to testify. Id. at 1085.
Unlike the defendant in Gillenwater, Kowalczyk actively
participated in his competency hearing as a pro se defendant
and was given the opportunity to testify. On April 10, 2014,
the first day of the evidentiary hearing, Kowalczyk cross-
examined the government’s witness. At the conclusion of the
first day, the court asked all parties what evidence they
wanted to present the next day. At that time, Kowalczyk and
amicus counsel Reid named witnesses to be called the next
day, but neither asked to call Kowalczyk to testify. On April
11, 2014 Kowalczyk dismissed his two witnesses without
questioning but cross-examined witnesses called by Reid.
Initially, the court denied Kowalczyk’s request to speak
during the July 23 hearing. However, the record is not clear
that Kowalczyk was requesting to testify. Instead, he may
have been asking to argue, as other counsel had been
permitted to do. The record does show that the time to
provide testimony had passed. The court had concluded the
taking of evidence in the case on April 11 and called for
supplemental briefing to focus on key legal issues in another
hearing. Thus, we cannot agree with Kowalczyk that he was
denied his constitutional right to testify in his competency
hearings.
Nor do we believe the court abused its discretion by
initially refusing Kowalczyk’s request to speak during the
July 23 hearing. As the court in Gillenwater noted,
“[N]othing in our decision prevents the district court from
24 UNITED STATES V. KOWALCZYK
exercising discretion to limit testimony, focus the scope of
the proceeding, or exclude irrelevant testimony.” Id. at 1079.
Nevertheless, at the conclusion of the July hearing,
Kowalczyk was given the opportunity to tell the court of his
wish not to return to FMC Springfield. Moreover, the district
court ultimately decided the competency proceedings in
Kowalczyk’s favor by finding him incompetent and ordering
that he be committed to another medical center. Thus, any
potential abuse of discretion, in not allowing Kowalczyk to
speak at the July 23 hearing on supplemental briefing, was
harmless.
III. No Clear Procedural Violations Under 18 U.S.C.
§ 4241
Kowalczyk argues that the district court violated the
proper process for competency proceedings laid out in 18
U.S.C. § 4241, when, after finding Kowalczyk incompetent
for the first time and referring him for treatment, the district
court held a second competency hearing and ordered him
committed and treated a second time. We disagree.
Section 4241 is “a comprehensive provision detailing the
standards and procedures for finding an individual mentally
incompetent.” United States v. White, 887 F.2d 705, 707 (6th
Cir. 1989). The Sixth Circuit has found that § 4241 “in no
way limits the court to a single inquiry into a defendant’s
competency.” Id. at 709. As the Seventh Circuit has noted,
the issue of a defendant’s competency “can hardly be
considered final when the very objective of competency
determinations is to discover whether or when a defendant
will be competent to stand trial.” United States v. Sherman,
912 F.2d 907, 909 (7th Cir. 1990).
UNITED STATES V. KOWALCZYK 25
Because multiple competency evaluations and
determinations are permitted by § 4241, there is no process
error that would invalidate Kowalczyk’s commitment order.
IV. Remand to the Same District Court Judge
Kowalczyk argues that reassignment to a different district
court judge is necessary. In deciding whether remand to a
new judge is appropriate, this court considers:
(1) whether the original judge would
reasonably be expected upon remand to have
substantial difficulty in putting out of his or
her mind previously-expressed views or
findings determined to be erroneous or based
on evidence that must be rejected, (2) whether
reassignment is advisable to preserve the
appearance of justice, and (3) whether
reassignment would entail waste and
duplication out of proportion to any gain in
preserving the appearance of fairness.
United States v. Atondo-Santos, 385 F.3d 1199, 1201 (9th Cir.
2004). Kowalczyk argues, relying on the second factor, that
remand to the same judge would lead to the appearance of
unfairness. We disagree.
We reserve reassignment for “rare and extraordinary
circumstances,” Krechman v. Cnty. of Riverside, 723 F.3d
1104, 1112 (9th Cir. 2013), which we find absent in this
instance. The district court judge has taken extraordinary
measures across the lengthy duration of this case to treat
Kowalczyk fairly. In deciding Kowalczyk’s competency to
stand trial, for example, the district court judge took into
26 UNITED STATES V. KOWALCZYK
careful consideration Kowalczyk’s own and the government’s
psychological reports. Based on this evidence—and despite
the district court’s concerns that Kowalczyk was
malingering—the judge ultimately found Kowalczyk
incompetent to stand trial and ordered him transferred to
FMC Springfield.
Considerations of judicial efficiency further counsel
against reassignment. Given the lengthy procedural history of
this case, remanding the case to a different judge would entail
waste and duplication disproportionate to any appearance of
unfairness that may exist in this case. Indeed, the record does
not indicate that this case constitutes one of those “rare
occasions [where] . . ., both for the judge’s sake and the
appearance of justice,” assignment to a different judge is
warranted. United States v. Sears, Roebuck & Co., 785 F.2d
777, 780 (9th Cir. 1986).
We see no reason here to reassign this case to a different
district court judge on remand.
CONCLUSION
First, Kowalczyk had a non-waivable right to have
counsel during his competency proceedings. Amicus counsel
masterfully fulfilled that role by providing “meaningful
adversarial testing” of the prosecution’s case. Second, given
our review of Kowalczyk’s competency proceedings, he was
not denied the right to testify. Any potential abuse of
discretion, in not allowing Kowalczyk to speak at the July 23
hearing on supplemental briefing, was harmless. The bottom
line is that Kowalczyk got what he wanted: the court found
him incompetent to stand trial and ordered that he be treated
at a federal medical facility. We remand to the district court
UNITED STATES V. KOWALCZYK 27
for further proceedings consistent with the views herein
expressed.
AFFIRMED AND REMANDED.