U.S.A v. Mackovich

• Decision Date: 25 April 2000
• Docket Number: 99-2179,No. 99-2006,99-2006
• Citation: 209 F.3d 1227
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN VINCENT MACKOVICH, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1227

209 F.3d 1227 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN VINCENT MACKOVICH, Defendant-Appellant.

No. 99-2006, 99-2179

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 25, 2000

APPEAL FROM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CR-98-343-LH)

[Copyrighted Material Omitted] Vicki Mandell-King, Assistant Federal Public Defender, (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colorado, for the appellant.

Gregory J. Fouratt, Assistant United States Attorney (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, New Mexico, for the appellee.

Before BRISCOE, ANDERSON, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

John Mackovich appeals his conviction and sentence for armed bank robbery (18 U.S.C. 2113(a) and (d)) and for using and carrying a firearm during a crime of violence (18 U.S.C. 924(c)). These convictions arose out of Mackovich's April 1998 armed robbery of the Valley Bank of Commerce in Roswell, New Mexico. Law enforcement officials quickly apprehended Mackovich and recovered the keys to the getaway vehicle, the money stolen from the bank, and the disguise used to facilitate the crime. At the time of conviction, Mackovich had two prior convictions for violent felonies. Applying what is commonly known as the "Three Strikes" statute, the district court sentenced Mackovich to life imprisonment. Mackovich contends on appeal that the district court erroneously (1) determined that he was competent to stand trial; (2) denied his request to fire his attorney and proceed pro se; and (3) rejected his argument that one of his prior convictions did not qualify as a "strike" under 18 U.S.C. 3559. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742 and affirm.

I. Competency

A. Background

The district court's inquiry into Mackovich's competence began in August 1998, when Mackovich's counsel filed a "Motion To Determine Mental Competency." Record on Appeal ("ROA"), Vol. I, Doc. 20. The court granted the motion and appointed Dr. Kenneth Bull to conduct a psychiatric examination. Dr. Bull determined that Mackovich was competent to stand trial, and submitted a one-page report setting forth his conclusions in September 1998. Approximately one month later, after Mackovich obtained a new lawyer, the government filed a motion for a supplemental psychiatric evaluation. The principal basis for the motion was that Mackovich's counsel had "learned of new information" relevant to Mackovich's fitness to stand trial, including "psychiatric reports that were generated during the pendency of [Mackovich's] 1977 prosecution for armed robbery." ROA, Vol. I, Doc. 37 at 2 ( 6). The district court granted this motion as well. Dr. Bull conducted a supplemental examination on November 8, 1998, and submitted another report. In this second report, Dr. Bull presented "a different psychiatric diagnosis than that derived originally. It would appear that Mr. Mackovich is not suffering primarily from a depressive disorder, but more likely a schizo-affective disorder." Supplemental Record on Appeal ("SROA"), Vol. III, Doc. 50 at 2; see also id. (stating that Mackovich "could benefit from anti-psychotic medications in addition to the anti-depressants he is currently on"). Nonetheless, Dr. Bull explained that "the new information and diagnosis obtained does not affect my judgment of Mr. Mackovich's present mental competency to stand trial." Id.

The court conducted an evidentiary hearing to explore Mackovich's competence in November 1998. The first witness to testify at the hearing was Dr. Bull. Dr. Bull stated that he interviewed Mackovich for 30 to 40 minutes in August 1998, and that this examination led him to believe that Mackovich was competent to stand trial. Dr. Bull explained that he interviewed Mackovich for a longer period of time during the supplemental examination in November 1998, taking into account Mackovich's "previous psychiatric records." Id., Vol. II, at 6, 12-14. Dr. Bull confirmed that Mackovich was likely suffering from a schizo-affective disorder, "sort of a cross between schizophrenia and manic depressive illness." Id. at 8. According to Dr. Bull, this diagnosis was "serious" because in some individuals a schizo-affective disorder "renders them unable to manage their own lives." Id. at 8-9. In Dr. Bull's opinion, Mackovich's representation that he previously served as a "jailhouse lawyer" indicated that Mackovich possessed "knowledge of the legal process." Id. at 9, 16-17. Dr. Bull recommended additional psychiatric treatment, but affirmed his finding of competency based on Mackovich's "understand[ing of] the legal process and the charges against him." Id. at 11-12.

The only other witness who testified at the hearing was Mackovich himself. Responding to questions posed by his counsel, Mackovich stated that he believed he would be acquitted at trial and his acquittal would trigger Armageddon. Mackovich testified that he and his sister had been receiving "prophecies" from God, and discussed how a burglar had broken into his house and "shot at me and my girlfriend and . . . my dog." Id. at 22-23. Mackovich also stated that prosecutors in another case wrongly accused him of soliciting a bribe, but that he was exonerated at trial according to God's plan. On cross-examination, Mackovich stated that he had been helping his current attorney by "telling him what's going to be happening, and the prophecy." Id. at 31. Mackovich testified that he had provided his attorney with information that permitted the attorney to file a notice of alibi. Mackovich stated that he believed he was charged with bank robbery, although he did not remember the name of the bank. Mackovich likewise did not remember his prior convictions, and indicated that he was not a "Three Strikes" candidate because he was innocent. Mackovich explained that he had falsely confessed to several bank robberies, including the Roswell bank robbery, because he was being pressured by prosecutors and wanted to expose government corruption.

After receiving this testimony and considering further arguments from counsel, the district court concluded that Mackovich was competent to stand trial. The court reasoned that it

has had the defendant examined twice, and on both occasions Dr. Bull, who is a highly qualified psychiatrist, has concluded that the defendant is competent to stand trial. That is, that he understands the nature and consequences of the proceeding against him and that he is capable of assisting properly in his defense. I find that those conclusions by Dr. Bull are correct by a preponderance of the evidence, and therefore the defendant is competent . . . .

Id. at 46-47. Mackovich was "especially noisy" when the court delivered its oral ruling, making "loud and inappropriate comments" while sitting at his counsel's table. Id., Vol. I, Doc. 53, at 1.¹ The court memorialized its ruling in a written order, stating that "Mackovich is not presently suffering from a mental disease or defect that impairs his ability to understand the nature and consequences of the proceedings against him or that impairs his ability to assist properly in his defense." Id. Doc. 55.

B. Analysis

The Constitutional principles governing competency determinations are clearly established. "It is settled that trying an incompetent defendant violates due process." Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir. 1999); see also United States v. Williams, 113 F.3d 1155, 1159 (10th Cir. 1997) (recognizing that "the criminal prosecution of an accused person while legally incompetent offends the Due Process Clause"). "Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel." Godinez v. Moran, 509 U.S. 389, 402 (1993). Accordingly, the test for competency is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him." Drope v. Missouri, 420 U.S. 162, 171 (1975) (quoting Dusky v. United States, 362 U.S. 402 (1960)); accord Miles v. Dorsey, 61 F.3d 1459, 1472 (10th Cir. 1995).

Our standard of review is equally clear. "Competency to stand trial is a factual determination that can be set aside only if it is clearly erroneous." United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir. 1998), cert. denied, 119 S. Ct. 828 (1999). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Verduzco-Martinez, 186 F.3d 1208, 1211 (10th Cir. 1999) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). The district court "need not be correct," but its finding "must be permissible in light of the evidence." Id. (citing Bill's Coal Co. v. Board of Pub. Util. of Springfield, Missouri, 887 F.2d 242, 244 (10th Cir. 1989)). When assessing a defendant's competence, "the district court may rely on a number of factors, including medical opinion and the court's observation of the defendant's comportment." Boigegrain, 155 F.3d at 1189 (citation omitted); see also Williams, 113 F.3d at 1159 (indicating that a district court may review "evidence of defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence") (citation omitted).

The district court's finding that Mackovich was competent to stand trial was not clearly erroneous. First, in both his testimony and his written reports, Dr. Bull concluded that Mackovich was able to understand the proceedings against him. See, e.g., SROA, Vol. III, Doc. 50 at 2 (setting forth Dr. Bull's "professional opinion that 1) Mr. Mackovich has a...