United States v. Kowalczyk
| Decision Date | 04 November 2015 |
| Docket Number | 14–30219.,Nos. 14–30198,s. 14–30198 |
| Citation | 805 F.3d 847 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Andrew Franklin KOWALCZYK, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen R. Sady (argued), Chief Deputy, Federal Public Defender, Portland, OR, 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, OR, for Plaintiff–Appellee.
Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding. D.C. No. 3:08–cr–00095–MO–1.
Before: HARRY PREGERSON, N. RANDY SMITH, and JOHN B. OWENS, Circuit Judges.
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; (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.
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.
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.
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.”
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-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 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.”
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 under 18 U.S.C. §§ 4241(d) and 4247(d). Kowalczyk was transferred to...
To continue reading
Request your trial
-
United States v. Quintero
...and questions of statutory construction de novo. United States v. Strong , 489 F.3d 1055, 1060 (9th Cir. 2007) ; United States v. Kowalczyk , 805 F.3d 847, 856 (9th Cir. 2015).III. DISCUSSIONThe Insanity Defense Reform Act (IDRA), 18 U.S.C. §§ 17, 4241 – 47, governs pretrial competency eval......
-
United States v. Thomsen
...of statutory interpretation. See, e.g. , Fang Lin Ai v. United States , 809 F.3d 503, 506 (9th Cir. 2015) ; United States v. Kowalczyk , 805 F.3d 847, 856 (9th Cir. 2015). We recently stated,When interpreting a statute, we are guided by the fundamental canons of statutory construction and b......
-
State v. Allen
...hearing is a critical stage. See United States v. Collins , 430 F.3d 1260, 1264 (10th Cir. 2005) ; see also United States v. Kowalczyk , 805 F.3d 847, 856 (9th Cir. 2015) ; United States v. Ross , 703 F.3d 856, 874 (6th Cir. 2012) ; Raymond v. Weber , 552 F.3d 680, 684 (8th Cir. 2009) ; App......
-
In re Shelton
...to testify constitutes structural error after concluding that the denial was not harmless in that case); but see United States v. Kowalczyk, 805 F.3d 847, 860 (9th Cir. 2015) (finding harmless district court's refusal to allow defendant to speak at a hearing on supplemental briefing). Even ......
-
Trials
...v. Thompson, 698 F.3d 609, 640 n.19 (7th Cir. 2012) (same); Raymond v. Weber, 552 F.3d 680, 684 (8th Cir. 2009) (same); U.S. v. Kowalczyk, 805 F.3d 847, 859 (9th Cir. 2015) (same); U.S. v. Bergman, 599 F.3d 1142, 1147 (10th Cir. 2010) (same); U.S. v. Klat, 156 F.3d 1258, 1263 (D.C. Cir. 199......