Hessam Ghane was charged with criminal possession of potassium cyanide. The district court 1 found that Ghane was rationally unable to understand the charges against him and was therefore mentally incompetent to stand trial under 18 U.S.C. § 4241. Ghane appeals, arguing that the district court erred by finding him incompetent. We affirm.
On February 4, 2003, Ghane was admitted to an emergency room in Overland Park, Kansas stating he intended to kill himself using a solid form of cyanide that he had acquired through his years as a chemist and stored in his home. He consented to a search of his home where police found a bottlе under the sink half filled with a powder later determined to contain seventy five percent potassium cyanide. Ghane stated he did not know it was illegal to possess potassium cyanide and claimed he intended to use it in teaching, to conduct experiments, or to commit suicide. He was indicted for criminal possession of potassium cyanide in violation of 18 U.S.C. §§ 229(a)(1) and 229A(a)(l).
The district court ordered that he undergo a competency evaluation. Dr. Robert G. Lucking, a psychiatrist, evaluated Ghane and in an August 15, 2003 report diagnosed him with delusional disorder— paranoid type. Ghane believed the prosecution was part of a wide ranging government conspiracy against him dating back to the early 1990s when he was terminated from the Army Corps of Engineers and purportedly refused to work as a spy for the CIA. Dr. Lucking opined that these delusions rendered Ghane unable rationally to understand the charges against him and mentally incompetent to stand trial. At the October 30, 2003 competency hearing, the parties stipulated to the contents and findings of Dr. Lucking’s report and the district court found Ghane not competent to stand trial.
Despite the finding of incompеtency Ghane was not committed to the custody of the Attorney General for hospitalization and treatment, pursuant to 18 U.S.C. § 4241(d)
2
, because he indicated an unwill
The district court issued an order granting the government’s
Sell
motion after receiving the report and testimony of Dr. John H. Wisner, the court appointed psychiatrist. We reversed, stating there was no substantial likelihood the medications would restore Ghane’s competency as required under
Sell. United States v. Ghane,
Dr. Lucking evaluated Ghane again and found that the medication enabled him to put aside his belief of government persecution and to discuss his defense against the criminal charges realistically. He recommended the district court find Ghane competent to stand trial, but he warned that Ghane would require further evaluation if the stress of the legal proceedings were to trigger his delusional beliefs. At a July 13, 2005 competency hearing, the parties stipulated to the contents and findings of Dr. Lucking’s July 5, 2005 report. The district court found Ghane was сompetent to stand trial and to assist in his defense. Trial was set for January 9, 2006.
Five days before trial was scheduled to begin, Ghane’s attorney contacted the district court with concerns about his competency. At a January 6, 2006 hearing counsel stated that he believed Ghane’s core dеlusional beliefs had returned and referenced Dr. Lucking’s July 5, 2005 report warning that the stress of legal proceedings could trigger a reemergence of Ghane’s delusional beliefs. The district court ordered Ghane to undergo a competency evaluation conducted by Dr. Lucking, who issued his third сompetency report on April 12, 2006. In preparing his report Dr. Lucking discovered that a staff psychiatrist had discontinued Ghane’s anti-psychotic medication when he had returned to the CCA facility in June 2005 because of a concern that the medicine was having a negative effect.
Ghаne started taking his medication again in early 2006 and thereafter returned to the “baseline level of functioning” at which Dr. Lucking considered him competent. At the May 2, 2006 competency hearing the parties stipulated to the contents and findings of Dr. Lucking’s April 12, 2006 report, and the district court found that Ghane was competent. Trial was reset for July 31, 2006.
In the meantime, the Office of the Chief Disciplinary Counsel of the Missouri Bar had received a letter from Ghane on April 7, 2006 stating, “I have no dought [sic] that my attorneys have sold me to the Prosecutor.” It appears the letter was written on March 28, 2006, a date on which Ghane was receiving antipsychotic medication. Dr. Lucking later testified that his April 12, 2006 competency finding was based in part on Ghane’s indication that he could work with his lawyers and no longer believed they were working against him, and that he likely would have found Ghane incompetеnt had he known then about the Disciplinary Counsel letter.
In early July 2006 the court received five pro se letters from Ghane even though
Upon receiving notice of the Disciplinary Counsel letter and the five рro se filings, the United States filed a motion to determine Ghane’s competency. The district court granted the motion and requested that Dr. Wisner conduct the evaluation and prepare a report, which he issued on July 27, 2006. The court held a competency hearing over three days in August 2006.
On August 2, 2006 Dr. Wisner testified in accordance with his July 27, 2006 report. Even though it is possible for an individual with delusional disorder to be competent, he believed Ghane was mentally incompetent to stand trial. Dr. Wisner had examined Ghane in 2003, reviewed his medical records and pro se letters, and attempted to intеrview him. Ghane refused, stating he believed Dr. Wisner had become part of the conspiracy to persecute him and was working for the government. Dr. Wisner testified that based on his review of this evidence he believed Ghane was paranoid and suspicious of his own counsel, the judge, and the еntire judicial process. He concluded that Ghane could not effectively assist his counsel in his defense, rendering him mentally incompetent to stand trial.
On August 10, 2006 Dr. Lucking testified that the Disciplinary Counsel letter and the pro se letters indicated Ghane’s active delusions interfered with his ability to work with and assist his lawyers and that Ghane was therefore mentally incompetent to stand trial. Dr. Lucking concluded that adequate doses of antipsy-chotic agents were not preventing the progression and expansion of Ghane’s delusional beliefs. At the time of this testimony, Dr. Lucking had not met with Ghane sincе March 2006 and had not issued a report regarding Ghane’s competency since April 12, 2006.
On August 30, 2006 Ghane testified on his own behalf that he was competent, understood the charges against him, and could work with his lawyers. He attempted to explain that his letter to the Disciplinary Counsel had been written in a moment of anger and that the witness list was relevant to the present charges. He also cited examples of his previous ability to function in the community as an employee of the Army Corps of Engineers and a professor. During the hearing Ghane claimed that he, rather than his lawyer, should cross examine Dr. Wisner and Dr. Lucking because his lawyer had not been present during the evaluations. He also continuously objected to the manner in which his lawyer presented evidence, despite his lawyer’s indication to the court that he had extensively explained to Ghane the prоcedure for presenting evidence.
After hearing the evidence, the district court found that Ghane’s delusions that his attorneys were working against his interest and not providing an adequate defense rendered him unable sufficiently to assist in his defense and therefore not competent to stand triаl. The district court also found that although Ghane had a factual
Ghane complains that the district court erred in finding him mentally incompetent to stand trial because the evidence was insufficient to support such a finding. He argues that the opinions of Dr. Lucking and Dr. Wisner should not have been considered as evidence because they “were not grounded in a current formal psychological or psychiatric examination of Ghane” and because the two doctors disagreed as to the length of time he had suffered from delusional disorder and the role of environmental/social factors in causing that disorder. He also argues there was evidence in the reсord to support a finding that he understood the charges against him and had “recently cooperated with his attorneys and accepted their advice on key issues.” The United States argues that the record developed at the competency hearing sufficiently established that Ghane’s delusional disorder rendered him incompetent to stand trial.
Determining whether a defendant is competent to stand trial is committed to the discretion of the district court.
United States v. Denton,
The first prong of the competency test requires the district court to determine if the defendant has “a rational as well as factual understanding of the proceedings against him.”
United States v. Robinson,
The second prong of the competency tеst requires the district court to determine whether the defendant is able to assist properly in his defense. In concluding that Ghane was unable to assist properly in his defense, the district court relied on the doctors’ reports and testimony at the competency hearing, Ghane’s letter to
Ghane relies on the district court’s previous findings that he was competent to stand trial, most recently from June 2005 through Januаry 2006, as evidence that the district court erred by finding him incompetent in August 2006. A competency finding is not static, however, and even when a defendant is found competent at the beginning of a trial, the court “must always be alert to circumstances suggesting a change that would render the accused unаble to meet the standards of competence to stand trial.”
United States v. Robinson,
We conclude that the district court did not clearly err in its finding that Ghane was mentally incompetent to stand trial at the time of the August 2006 hearing. There was sufficient evidence in the record to support this finding. The record shows that Ghane has varied between periods of competency and incompetency and that there remains the possibility that with medication and cooperation with his attorneys he may become sufficiently competent to stand trial at some future point. On the record now before the court, however, we- affirm the order of the district court.
Notes
. The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri.
. “[Upon a finding that the defendant is mentally incompetent to stand trial], the court shall commit the defendant to the custody of the Attorney General. The Attorney General
. Ghane’s suggestion that the doctors’ opinions should not have been relied upon because they "were made without any meaningful recent interviews” is not supported by the record or the case law.
. Ghane argues that the district court should have ignored these letters and filings because of his constitutional right to access the court and to speak freely. Ghane did exercise his right to access the court and he cites no support for his argument that the district court should not have considered his writings in making its competency determination.