United States v. Garza, 12–10294.

• Decision Date: 20 May 2014
• Docket Number: No. 12–10294.,12–10294.
• Citation: 751 F.3d 1130
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Albert GARZA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

751 F.3d 1130

UNITED STATES of America, Plaintiff–Appellee,

v.Albert GARZA, Defendant–Appellant.

No. 12–10294.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 14, 2014.

Filed May 20, 2014.

Carolyn Wiggin (argued), Assistant Federal Public Defender, Sacramento, CA, for Defendant–Appellant.

Brian W. Enos (argued), Assistant United States Attorney, Eastern District of California, Office of the United States Attorney, Fresno, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Eastern District of California, Anthony W. Ishii, Senior District Judge, Presiding. D.C. No. 1:10–cr–00165–AWI–1.

Before: RICHARD C. TALLMAN and SANDRA S. IKUTA, Circuit Judges, and BEVERLY REID O'CONNELL, District Judge.^*

OPINION

TALLMAN, Circuit Judge:

Albert Garza was sentenced to 20 years in prison after a jury convicted him of one count of “receipt or distribution” and one count of “possession” of child pornography. Garza appeals his conviction and sentence on several grounds. In a memorandum disposition we address all but one of Garza's arguments. In this opinion we decide whether the district court plainly erred by failing to sua sponte convene a hearing on Garza's competency. It did not, so we affirm.

I

A

By monitoring an online file-sharing network, federal agents discovered that Garza was downloading child pornography. Warrant in hand, the agents went to his home. While some searched, a pair of agents interviewed Garza at length. During the interview, he confessed to everything. The search turned up two computers and a compact disc containing thousands of photographs and videos of child pornography. Garza was arrested and indicted for one count of “receipt or distribution” under 18 U.S.C. § 2252(a)(2) and one count of “possession” under § 2252(a)(4)(B).

B

Shortly after Garza's indictment, his first lawyer hired Dr. Thomas Middleton, a clinical psychologist, to examine Garza and prepare a written competency report. The report paints Garza as mentally and emotionally crippled by various disabilities and the impact of his arrest. Middleton diagnosed Garza with anxiety and with dementia caused by uncontrolled diabetes. He concluded, if obliquely,¹ that Garza was incompetent to stand trial. Middleton based these conclusions on a single interview and several aptitude tests. He reviewed no medical records.

Relying on Middleton's report, the parties stipulated to, and the district court entered, an order committing Garza to the Attorney General's custody for a competency evaluation. Garza was sent to a Bureau of Prisons facility in Los Angeles for several weeks. There, he was observed at length, tested, and interviewed by government doctors. A comprehensive report was prepared. ² Dr. Lisa Hope, a forensic psychologist and the report's author, wrote that Garza suffered from an anxiety disorder but not dementia. She concluded that he was competent to stand trial.

Hope also concluded that Middleton's dementia diagnosis was speculative. She noted that a proper diagnosis requires access to records that Middleton did not have and testing that Middleton did not do. Hope also reported that Garza was malingering—trying to appear incompetent—by deliberately throwing some of his aptitude tests. Oddly, she also wrote that Garza “appeared motivated for testing, and put forth sufficient attention and concentration ... he would say ‘Yes!’ out loud once he figured out [the answer.] Overall, he seemed to enjoy the testing process....” Her report never reconciled this apparent contradiction.

Potential malingering aside, Hope's observations were consistent with her competency finding. She wrote that Garza exhibited appropriate behavior in his interactions with other prisoners and staff. She wrote about Garza's commendable work history—he was steadily employed as a mechanic for decades until a heart attack left him unable to work. Moreover,Hope made clear that Garza understood his situation. He was able to describe the charges he faced and the identities and roles of the various actors in the criminal process. Garza told Hope that he liked and trusted his lawyer.

After Garza was released from medical custody and Hope's report was circulated, the competency issue was dropped. Garza's lawyer (a new one) never raised the issue with the trial judge nor moved for a hearing. None was ever held. Accordingly, the district court made no specific finding as to Garza's competency.

C

Ultimately, plea negotiations failed and Garza went to trial. The investigating agents testified about how they located Garza and found child pornography at his home. A recording of Garza's interview with the arresting agents was played for the jury. The jurors heard him admit to the agents that he had searched for and downloaded child pornography for years.

Garza took the stand to testify in his own defense. On direct, his testimony hinted at incompetence. He testified that he'd seen numerous psychiatrists, that he was mentally disabled, and that “diabetes ... was eating [his] brain.” This last statement, though it sounds over the top, is arguably consistent with Middleton's opinion that Garza's unchecked diabetes may have caused brain damage.

This came later:

Q: Have there been times during this case when you haven't really understood everything that's been going on?

A: All of it.

Q: Sometimes when we talk, do you understand everything I'm telling you?

A: (Witness shakes head.)

Garza's lawyer elicited this testimony but did not move to have his client declared incompetent. Nor did the district court take any action on its own. Later, on cross-examination, Garza contradicted the arrest interview by testifying that he had never before seen child pornography.

The jury convicted Garza on both counts.

D

At the sentencing hearing, the district court and both parties repeatedly mentioned Garza's mental health, but never referred to his competency. Both Middleton's and Hope's reports were discussed. The district court said that it took “at face value” that Garza “does suffer from some mental defects or deficiencies....” The focus of all this discussion was mitigation. The talk never strayed toward competency.

In aggravation, the government argued, and the district court agreed, that Garza willfully perjured himself when he testified contrary to what he had told the arresting agents. To justify its finding that Garza's statements were deliberate lies, the court, reading from its own trial notes, offered its impression that Garza was playing possum on the stand—pretending to be confused on direct only to become alert and engaged on cross. Both the judge and the prosecutor noted that Garza even anticipated one of the prosecutor's questions. “I think Mr. Garza is malingering,” the court said.

It then sentenced Garza to 240 months on the receipt or distribution charge and 120 months on the possession charge, both terms to run concurrently. Garza's contribution to the hearing, his allocution, was this: “Just that I apologize, sir, for everything—I just want to get better. Sorry. I'm sorry.”

II

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

III

A defendant that “lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” See Drope v. Missouri, 420 U.S. 162, 171–72, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). And “the 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.” Id. at 172, 95 S.Ct. 896 (citing Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). Sometimes “adequate” means that the district court must sua sponte consider a defendant's competency. The question is whether this is one of those times.

Garza says yes. He argues that the district court plainly erred by failing to sua sponte hold a competency hearing.³ Failing to sua sponte hold a competency hearing is plain error only if “the evidence of incompetence was such that a reasonable judge would be expected to experience a genuine doubt respecting the defendant's competence.” Dreyer, 705 F.3d at 961 (internal citations and quotations omitted). To raise a genuine doubt, there must be “substantial evidence that, due to a mental disease or defect, the defendant is either unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” Id. (internal citations and quotations omitted) (emphasis in original). Relevant evidence falls into three broad categories: medical history, the defendant's behavior in and out of court, and defense counsel's statements about the defendant's competency. See, e.g., United States v. Marks, 530 F.3d 799, 814 (9th Cir.2008).

Our review is limited. We ask only whether substantial evidence exists such that a reasonable judge would harbor a genuine doubt.⁴See United States v. Mitchell, 502 F.3d 931, 986 (9th Cir.2007). Whether the defendant is, in fact, competent is a separate inquiry outside our ambit.

A

The substantial evidence standard is “not easily applied.” Bassett v. McCarthy, 549 F.2d 616, 619 (9th Cir.1977). “There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. That they are difficult to evaluate is suggested by the varying opinions trained psychiatrists can entertain on the same facts.” Drope, 420 U.S. at 180, 95 S.Ct. 896. Accordingly, it is understandable that our case law lacks specific rules about when the standard is met.

Nonetheless, general guidelines have emerged. For example, an appellant who has absolutely no medical history evidence indicating incompetency will almost certainly fail to upset his...