Case Information
*1 Before: CLAY, GILMAN, and GRIFFIN, Circuit Judges.
_________________
COUNSEL ARGUED: Doris A. Randle-Holt, FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, Appellant in 14-6290. Megan L. Rodgers, COVINGTON & BURLING LLP, Washington, D.C., Appellant in 14-6376. Sonja Ralston, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Doris A. Randle-Holt, FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, Appellant in 14-6290. Megan L. Rodgers, Benjamin C. Block, Catlin M. Meade, COVINGTON & BURLING LLP, Washington, D.C., Appellant in 14-6376. Sonja Ralston, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
1
_________________
OPINION
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CLAY, Circuit Judge. Defendant Rosaire Dubrule (“Mr. Dubrule” or “Dubrule”), a former medical doctor, was convicted on one count of conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846, and forty-four counts of distributing controlled substances in violation of 21 U.S.C. § 841(a)(1). Defendant Kim Dubrule (“Kim”), Mr. Dubrule’s wife and medical assistant, was convicted of conspiring with her husband to distribute controlled substances in violation of 21 U.S.C. § 846. The district court sentenced Rosaire Dubrule to 150 months’ imprisonment and Kim Dubrule to 18 months’ imprisonment. Both Mr. Dubrule (Appeal No. 14-6376) and Kim Dubrule (Appeal No. 14-6290) appeal from their judgments of conviction, raising issues concerning Mr. Dubrule’s mental health.
In Appeal No. 14-6376, Mr. Dubrule argues that: (1) the district court erred by finding him competent to stand trial and proceed with sentencing; (2) the district court erred by failing to sua sponte order a competency hearing either before or during trial; (3) his pre-trial attorney and standby counsel at trial provided ineffective assistance by failing to request a competency evaluation; (4) the district court erred by holding that he had waived his insanity defense; and (5) his due process and Sixth Amendment rights were violated when the district court, in making its competency determination, relied upon an expert opinion that misleadingly claimed to be “peer reviewed.” In Appeal No. 14-6290, Kim Dubrule argues that she is entitled to a new trial because Mr. Dubrule’s post-trial competency evaluation constituted newly discovered evidence that Mr. Dubrule was incapable of forming a conspiracy.
For the reasons set forth below, we AFFIRM the district court’s judgments as to both Defendants.
BACKGROUND
A. Pre-trial events
In August 2004, federal agents executed a warrant to search Rosaire Dubrule’s medical office in connection with an investigation into Dubrule’s alleged operation of a “pill mill”—a medical clinic known for freely prescribing highly addictive prescription pain medication. Soon thereafter, the Tennessee Board of Medical Examiners (“TBME”) held hearings that culminated in an order, signed by Mr. Dubrule, suspending his medical license and stipulating that he had prescribed controlled substances “not in good faith . . . or in amounts and/or for durations not medically necessary.” (R. 205, PageID 2195.)
On August 15, 2007, a grand jury indicted Rosaire and Kim Dubrule (collectively “Defendants”) on charges stemming from the same federal investigation. Defendants were released on bond. Mr. Dubrule initially retained the same attorneys who had represented him during his hearings before the TBME. But soon after he was indicted, Mr. Dubrule fired those attorneys “abruptly” and “without warning” during a hearing before a magistrate judge. (A. 44, at 97.) Dubrule thereafter filed three pre-trial motions pro se , including a motion to suppress, a motion requesting access to the transcripts of the grand jury procеedings, and a motion seeking the return of certain items seized during the August 2004 search of his medical office. After these motions were denied, Dubrule retained Marty McAfee as counsel.
In July 2008, the government filed a motion to revoke Mr. Dubrule’s bond, citing several incidents that had occurred during pendency of the criminal proceedings. In one incident, Mr. Dubrule was arrested for reckless driving, driving while intoxicated on prescription drugs, and resisting arrest. Immediately after his arrest, Dubrule made a number of bizarre statements, including that the government was “trying to kill him and that he was a world famous physician. Dubrule also went into a [tirade] about how hurricane Katrina was caused by the government and that Jewish people were responsible for destroy[ing] the dams in New Orleans.” (R. 52, PageID 120.) In a separate incident, Dubrule sent a letter to the Tennessee Department of Health, asserting that the transcripts of his 2004 hearings before the TBME contained “critical omissions.” ( Id. at 122.) Among those omissions, he alleged, was testimony
about the stock market securities con game which was realized in only 30 days when Merck corporation suffered a contrived loss of 1.6 BILLION dollars in one day. Of greater interest to the public however will be the coverup [sic] of deviant sexual assault against children to cover up theft of privilege.
( Id. ) The government’s motion to revoke Mr. Dubrule’s bond concluded that “it appears [Mr. Dubrule] is acting erratically and may be using drugs illegally or dealing with mental health issues.” ( Id. at 123.) The motion was referred to a magistrate judge who ultimately allowed Mr. Dubrule to remain free under modified conditions.
In September 2008, McAfee moved to withdraw as Mr. Dubrule’s counsel. McAfee’s motion stated that working with Dubrule was difficult because he “focus[ed] all of his attention on conspiracy theories.” (R. 64, PageID 138.) Nevertheless, McAfee declared his belief that Dubrule was competent; McAfee opined that Dubrule may have been “taking his advice elsewhere.” ( Id. ) The magistrate judge later granted McAfee’s motion, citing “the continued breakdown in communications with counsel and the failure of Dubrule to pay his legal fees.” (R. 73, PageID 146.)
Upon McAfee’s withdrawal, Mr. Dubrule moved to proceed to trial pro se . A hearing on this motion was held before the magistrate judge, at which Dubrule testified that he had taken correspondence courses in law, had studied “the law as it relates to pain medicine,” had familiarized himself with Federal Rules of Criminal Procedure 12–24, was studying the crimes with which he was charged, and would locate and familiarize himself with the Federal Rules of Evidence. (R. 345, PageID 3370–72, 3387.) Dubrule also stated that he had successfully represented himself in prior legal disputes, that he understood he was facing “very serious penalties” if convicted ( id. at 3376), and that he had been advised by his former attorneys regarding the import of the federal sentencing guidelines. During the hearing, the magistrate judge asked no questions and made no findings regarding Mr. Dubrule’s mental health.
The magistrate judge ultimately granted Dubrule’s motion to proceed pro se , but ordered that аn attorney from the CJA panel be appointed to serve as Mr. Dubrule’s “standby or elbow counsel” during trial. ( Id. at 3391.) Attorney Ross Sampson was later selected to serve in that capacity. Mr. Dubrule thereafter filed another series of pre-trial motions raising sometimes valid—though more often ill-conceived—legal arguments. One of these motions asserted that Dubrule had been the victim of “government break-ins” prior to the 2004 search of his medical office (R. 113, PageID 237–38); a second motion stated that the TBME order that he signed “was created in relation to a financial scheme,” and cryptically alleged that his leg was “intentionally broken in a related incident.” (R. 128, PageID 302–03.)
B. Trial
Defendants’ cases proceeded to trial on July 28, 2010. During its case in chief, the government presented documents and witness testimony indicating that between 2002 and 2004, Defendants issued more than 30,000 prescriptions for controlled substances. This number was alarming, given that Dubrule maintained a solo practice in a town of about 4,000 people. Witnesses testified that patients traveled from neighboring towns, counties, and states to see Mr. Dubrule due to his reputation for prescribing controlled substances. An agent with the Tennessee Bureau of Investigation testified that on a single day during the course of the Dubrules’ “pill mill” conspiracy—January 5, 2004—Mr. Dubrule saw 75 different patients, all of whom received a prescription for opioids. On that day alone, Mr. Dubrule prescribed some 7,539 pills. Witnesses testified the Kim Dubrule played a significant role in the distribution of controlled substances; she would often fill out pre-signed prescription pads when patients returned to the clinic looking for refills.
Acting as his own attorney, Mr. Dubrule presented a defense premised on the medical appropriateness of his prescriptions. Specifically, Dubrule argued that his patients were suffering from untreated chronic pain. During the proceedings, Dubrule questioned patients about improvements in their conditiоns during treatment. He also testified on his own behalf, focusing on particular patients and the reasons why he prescribed certain medications at particular times. Kim Dubrule’s defense strategy largely involved deflecting blame on to Mr. Dubrule. Through appointed counsel, Kim argued that “it’s the doctor’s responsibility” to make medical decisions, and that as a medical assistant, she was merely following Mr. Dubrule’s directions. (R. 203, PageID 2116, 2128.)
During trial, Mr. Dubrule’s questioning and narrative testimony were on many occasions subject to objections for relevancy, hearsay, and lack of foundation. When facing such objections, Dubrule often defended the reasoning behind his questioning and testimony. He responded to sustained objections by either rephrasing his question or moving on to a different topic. Trial transcripts also indicate several instances in which Mr. Dubrule apparently consulted with his standby counsel. At two points during trial, Mr. Dubrule inquired about the appropriate procedure for filing a Rule 29 motion for judgment of acquittal. He also asked the court whether a favorable ruling on Kim Dubrule’s Rule 29 motion would affect his own case: “Your Honor, being a nonlawyer, if you do rule on that motion in favor of dismissal of the [conspiracy] charges against my wife, would that not automatically allow the conspiracy charge to be dropped against me? Because doesn’t it take more than one person to be in a conspiracy?” (R. 201, PageID 1718–19.)
C. Post-trial events
On August 11, 2010, the jury returned verdicts of guilty on all counts against both Defendants. After filing several unsuccessful post-trial motions pro se , Dubrule requested appointment of counsel. That motion was granted, and Sampson was appointed as Dubrule’s attorney. As his first act as Mr. Dubrule’s attorney, Sampson moved for an evaluation of Dubrule’s competence to proceed to sentencing. In this motion, Sampson expressed his opinion that Mr. Dubrule might be suffering from “an underlying, undiagnosed psychotic and/or personality disorder.” (R. 182, PageID 498.) The motion wаs granted, and Dubrule was subjected to a mental evaluation by Dr. Jeremiah Dwyer. Dr. Dwyer, a forensic psychologist for the Bureau of Prisons (“BOP”), evaluated Mr. Dubrule for approximately eight hours in early 2011, conducting a series of tests and face-to-face interviews. Dr. Dwyer thereafter submitted a report opining that Mr. Dubrule apparently suffered from paranoid or grandiose delusions, and that such delusions rendered him incompetent to proceed to sentencing.
On May 19, 2011, Kim Dubrule filed a motion pursuant to Federal Rule of Criminal Procedure 33(b)(1), arguing that Dr. Dwyer’s report constituted “newly discovered evidence” warranting a new trial. (R. 192, PageID 519.) A minute entry for proceedings held on June 30, 2011 indicates that the district court decided “to delay ruling on” the motion, presumably until after issues of Mr. Dubrule’s competency had been fully resolved. ( See R. 206.) However, the record below does not contain any order explicitly disposing of Kim Dubrule’s motion for a new trial.
Based on Dr. Dwyer’s report, Mr. Dubrule’s counsel moved for an evaluation of Dubrule’s competence at the time of trial and at the time of the offenses. [1] The motion was granted, and a second evaluation was conducted by Dr. David Morrow. Dr. Morrow was also a forensic psychologist for the BOP. He evaluated Mr. Dubrule for approximately seven or eight hours in late 2011 and early 2012; he also reviewed the trial transcripts. In his resulting report, Dr. Morrow asserted that Dubrule suffered from personality and delusional disorders. Dr. Morrow opined that such disorders evidently impaired Dubrule’s ability to represent himself at trial because, based on Dubrule’s raw intelligence, he “should have been able either to present a much more coherent defense or to have accepted a plea agreement prior to trial.” (A. 44, p. 73.) Finally, Dr. Morrow’s report concluded that Dubrule required treatment before any firm conclusions could be made about his sanity at the time he committed the offenses.
Citing concerns with the quality of the reports prepared by Drs. Dwyer and Morrow, the government moved for a third evaluation by a new expert. That order was granted, and Mr. Dubrule was thereafter evaluated by Dr. Bernice Marcopulos. Dr. Marcopulos was a consultant for The Forensic Panel [2] and a published professor of clinical psychology and neuropsychology at James Madison University. Her evaluation of Dubrule lasted roughly two-and-a-half days. Dr. Marcopulos interviewed Mr. Dubrule, several of his family members, and former colleagues, employees, and attorneys; she conducted multiple tests; and she reviewed the trial transcripts, pre- and post-trial motions, and the reports prepared by Drs. Dwyer and Morrow. Although the government’s motion to have Dubrule evaluated by Dr. Marcopulos stated that her final report would be “peer reviewed” by other members of the Forensic Panel, in fact her evaluation process itself was developed in consultatiоn with two colleagues from the Panel.
As with the prior two evaluators, Dr. Marcopulos concluded that Dubrule suffered from personality and delusional disorders. Unlike Drs. Dwyer and Morrow, however, Dr. Marcopulos opined that Dubrule’s disorders did not make him incompetent to stand trial, represent himself, or proceed to sentencing. Her report stressed the fact that “competency is a task-specific ability” (A. 44, p. 115), and that her interviews, Dubrule’s test results, and the trial transcripts all indicated that Dubrule was up to the task. Dr. Marcopulos’ report also discussed evidence indicating that Mr. Dubrule was sane at the time of the alleged offenses.
After receiving Dr. Marcopulos’ report, the district court held two competency hearings at which it heard testimony from Drs. Dwyer, Morrow, and Marcopulos; the court also heard testimony from Marty McAfee, Mr. Dubrule’s former attorney. During those hearings, all three experts testified to and were cross-examined on their qualifications, their evaluation processes, and the bases for their conclusions. Notably, Dr. Marcopulos testified that her interviews with Mr. Dubrule revealed that some of his delusions were not “firmly held”—that is, when confronted with contradictory evidence, Dubrule would often back away from his apparently delusional claims. McAfee testified that during strategy meetings, Mr. Dubrule would “almost always . . . talk[] about his conspiracy theories, which are numerous and legion.” (R. 252, PageID 2608.) On cross examination, however, McAfee reaffirmed the statement in his motion to withdraw that Mr. Dubrule “had everything he needed to proceed competently.” ( Id. at 2620.) McAfee also testified that Dubrule participated in discussions regarding the hiring of an outside expert to evaluate the government’s case by offering names of potential experts.
D. The district court’s order on competency
On October 1, 2013, the district court issued a forty-one-page order and opinion concluding that Mr. Dubrule (1) was competent to stand trial, (2) was competent to proceed to sentencing, and (3) had waived his insanity defense by failing to raise it prior to trial. In finding that Dubrule was competent to stand trial and proceed to sentencing, the district court relied heavily on Dr. Marcopulos’ testimony and report, which it described as “exhaustive and detailed.” (R. 255, PageID 2798.) The court credited Dr. Marcopulos as having “more specialized expertise” in competency determinations ( id. at 2798), and found that her report was more thorough and convincing than both Dr. Dwyer’s and Dr. Morrow’s. The district court also relied on its own observations of Mr. Dubrule at trial, Dubrule’s use of pre-trial motions and the arguments made therein, Dubrule’s discussions with his attorneys and his reasoned decision to represent himself pro se , and the fact that the government’s request for revocation of Dubrule’s bond was based primarily on Dubrule’s abuse of controlled substances.
After the district court denied Defendants’ motions for reconsideration, their cases proceeded to sentencing. On October 21, 2014, the district court entered judgment of conviction as to Kim Dubrule, sentencing her to 18 months’ imprisonment. On November 7, 2014, the district court entered its judgment as to Rosaire Dubrule, sentencing him to 150 months’ imprisonment. Both defendants timely appealed from their respective judgments.
Appeal No. 14-6376; Defendant Rosaire Dubrule
I. THE DISTRICT COURT DID NOT CLEARLY ERR BY FINDING DUBRULE
COMPETENT TO STAND TRIAL AND PROCEED TO SENTENCING
Standard of Review
“A defendant’s competence is a question of fact, which we review for clear error.”
Harries v. Bell
, 417 F.3d 631, 635 (6th Cir. 2005). “A factual finding . . . ‘will be deemed
clearly erroneous only where it is against the clear weight of the evidence or when upon review
of the evidence, the appellate court is left with the definite and firm conviction that a mistake has
been committed.’”
United States v. Grubbs
,
Analysis
To be competent to stand trial or proceed to sentencing, a criminal defendant must
possess (1) a “sufficient present ability to consult with his lawyer with a reasonable degree of
rationаl understanding,” and (2) “a rational as well as factual understanding of the proceedings
against him.”
Dusky v. United States
,
Below, the district court found Mr. Dubrule competent to stand trial and proceed to
sentencing. In so finding, the district court thoroughly reviewed the three experts’ opinions and
ultimately found most persuasive Dr. Marcopulos’ opinion that Dubrule was competent. On
review of the record, we cannot say that this finding was clearly erroneous.
See Harries
,
In addition to Dr. Marcopulos’ opinion, the district court relied on its own observations of Dubrule’s demeanor. Because Mr. Dubrule acted as his own attorney over the course of a ten- day trial, there was ample opportunity for the district court to interact with Mr. Dubrule, to observe his behavior, and to otherwise evaluate the extent of his “rational as well as factual understanding of the proceedings against him.” Dusky , 362 U.S. at 402. Reflecting on these interactions, the district court opined:
[A]s the trial progressed, Defendant generally complied with the Court’s instructions and procedures. Defendant made an opening statement and a closing argument to the jury. Defendant cross-examined witnesses, sometimes posing relevant questions but other times raising irrelevant issues. . . . [The] evidence tends to show that Defendant understood his rights, the burden of proof in the case, and the role of the Court and the jury.
(R. 255, PageID 2800–01.) The district court also recalled that Dubrule “made motions with the Court, participated in sidebars and preliminary arguments, and appeared to comprehend routine trial procedure” ( id. at 2800); he also “consulted with standby counsel throughout the trial.” ( Id. at 2799.)
On our review of the record, we conclude that these findings are not clearly erroneous. Although Dubrule’s questioning and narrative testimony were frequently subject to objections, the trial transcripts indicate that Dubrule often defended himself against such objections; his arguments were coherent and occasionally successful. The colloquies between Dubrule and the court regarding the law of conspiracy and Rule 29 motions likewise demonstrated that Dubrule had a working knowledge of the relevant law, and that he maintained “a rational as well as factual understanding of the proceedings” as they progressed through the various stages of trial. Dusky , 362 U.S. at 402. And because the trial transcripts indicate several instances in which Mr. Dubrule apparently conferred with standby counsel, we find nothing clearly erroneous about the district court’s recollection that Dubrule maintained the ability “to consult with his lawyer with a reasonable degree of rational understanding.” Id.
The district court also relied on McAfee’s statement, contained in his motion to
withdraw, that “at this time it does appear to counsel that Defendant is competent to proceed.”
(R. 64, PageID 138.) On appeal, Mr. Dubrule notes that McAfee’s motion also stated that
working with Dubrule was difficult because he “focus[ed] all of his attention on conspiracy
theories.” (
Id
.) But the motion thereafter asserted that Dubrule “must be taking his advice
elsewhere” (
id.
), suggesting a belief that Dubrule merely refused to take advice from McAfee in
particular. Moreover, McAfee testified at the competency hearing that Dubrule substantively
participated in discussions regarding the hiring of an outside expert to evaluate the government’s
case. In sum, record evidencе supports the conclusion that Dubrule was capable of consultation
when he so desired. Competency requires only “the ability” to consult with one’s attorney,
Dusky
,
The district court also concluded that Mr. Dubrule’s bond revocation proceedings were
not particularly relevant to an analysis of his competency. We find nothing clearly erroneous
about that determination because the best-supported explanation for the erratic behavior
prompting the bond revocation proceedings was Dubrule’s abuse of prescription drugs. We
likewise find no clear error in the district court’s determination that Dubrule’s pre- and post-trial
filings merely “raised meritless arguments, indulged . . . misguided theories of the case, or
misapplied the law.” (R. 275, PageID 2870–71.) The majority of Dubrule’s
pro se
motions
contained no plainly delusional material. And when read in the context of the entire record,
many of the potentially “delusional” statements in Dubrule’s motions could be viewed as
intentional, if wholly inartful, attempts to misrepresent the record or garner sympathy from the
court. Although other interpretations of Dubrule’s motions might be reasonable, we cannot
reverse the district court simply because “[we] would have weighed the evidence differently.”
Anderson
,
Finally, we reject Mr. Dubrule’s contention that his overconfidence before trial, and poor
performance during trial, render the district court’s finding of competence clearly erroneous.
Dubrule relies on
United States v. Zaki
, No. 14-20281,
“It is undeniable that in most criminal prosecutions defendants could better defend with
counsel’s guidance than by their own unskilled efforts.”
Faretta v. California
, 422 U.S. 806,
834 (1975). For that very reason, this Circuit “has adopted a rather lengthy series of questions
from 1
Bench Book for United States District Judges
1.02–2 to –5 (3d ed. 1986) that a district
court should ask in order to ensure that a defendant’s waiver of counsel is knowing and
intelligent.”
United States v. Cromer
,
I must advise you that in my opinion you would be far better defended by a trained lawyer than you can be by yourself. I think it is unwise of you to try to represent yourself. You are not familiar with the law. You are not familiar with court procedure. You are not familiar with the rules of evidence. I would strongly urge you not to try to represent yourself.
McDowell
,
Common sense would seem to instruct that a criminal defendant who chooses to
represent himself after receiving this rather dire warning—from the judge, no less—is either
grossly overconfident or actively engaged in some form of self-sabotage. But it cannot be the
case that a defendant’s knowing and voluntary decision to exercise his right to self-
representation necessarily indicates that he lacks the competence to proceed to trial.
See Faretta
,
Notably, Mr. Dubrule’s expressions of “overconfidence” can only be so described
because he proved ineffective at establishing his innocence. In that way, his argument on appeal
also suffers from hindsight bias. That same bias undergirds Dubrule’s second argument, in
which he cites Dr. Morrow’s conclusion that he “should have been able either to present a much
more coherent defense or to have accepted a plea agreement prior to trial.” (A. 44, p. 73.) The
fact that he failed to do so despite his impressive intellect, the argument goes, constitutes a clear
indication that he was suffering from a mental impairment that rendered him incompetent. We
reiterate, however, that we are less persuaded by arguments and expert opinions that “tend to
look back at decisions that turned out badly for [the defendant] and label them as irrational based
on their ultimate outcome.”
Harries
, 417 F.3d at 636 (internal quotation marks omitted).
Indeed, giving dispositive weight to such arguments would provide
pro se
defendants with a
guaranteed second bite at the apple.
Cf. McKaskle v. Wiggins
,
This is not to say that that a defendant who waives the right to counsel necessarily
forgoes any claim that he was incompetent to stand trial.
See Indiana v. Edwards
,
II. THE DISTRICT COURT DID NOT ERR BY FAILING TO ORDER A
COMPETENCY EVALUATION SUA SPONTE
Standard of Review
Under 18 U.S.C. § 4241, a district court “shall order [a competency] hearing on its own
motion, if there is reasonable cause to believe” that the defendant is incompetent to stand trial or
proceed to sentencing. We have held that “[t]he district court has a measure of discretion in
determining whether there is ‘reasonable cause’ to believe that a defendant is incompеtent.”
United States v. Jones
, 495 F.3d 274, 277 (6th Cir. 2007). Thus, “[t]his Court reviews the
determination of whether there is reasonable cause to question a defendant’s competence . . .
under an abuse of discretion standard.”
United States v. Ross
,
Analysis
Under 18 U.S.C. § 4241, “the district court has not only the prerogative, but the duty, to
inquire into a defendant’s competency whenever there is ‘reasonable cause to believe’ that the
defendant is incompetent to stand trial.”
United States v. White
, 887 F.2d 705, 709 (6th Cir.
1989). In determining whether there was “reasonable cause” to doubt the defendant’s
competency, we look to “evidence of a defendant’s irrational behavior, his demeanor at trial, and
any prior medical opinion on competence to stаnd trial.”
Drope v. Missouri
,
Roughly five months after the jury rendered its guilty verdicts, the district court granted Mr. Dubrule’s motion to determine his competency pursuant to 18 U.S.C. § 4241(b). On appeal, Dubrule argues that there was reasonable cause to question his competency prior to and during trial, and that the district court abused its discretion by failing to sua sponte order a competency evaluation earlier. [5] In support of his argument, Mr. Dubrule cites facts that, in his belief, should have created the “reasonable cause” necessary to issue such an order—namely, the government’s motion to revoke his bond and the resulting order, his pro se pre-trial motions, and his apparently strained relationships with his attorneys.
These facts are examined in greater detail in section I,
supra
, where we conclude that the
district court did not clearly err when it found that those facts did not render Dubrule
incompetent. For similar reasons, we conclude that the district court did not “commit[] a clear
error of judgment,”
Yoder & Frey
,
Most importantly, however, the facts on which Dubrule relies do not exist in a vacuum;
the district court’s reluctance to order a competency hearing was undoubtedly based on “all of
the information before it.”
Tucker
,
For these reasons, we find no basis on which to conclude that the district court
“commit[ed] a clear error of judgment” by failing to
sua sponte
order a competency hearing prior
to or during trial.
See Yoder & Frey
,
III. DUBRULE’S ATTORNEYS DID NOT PROVIDE INEFFECTIVE ASSISTANCE
BY FAILING TO REQUEST A COMPETENCY EVALUATION PRIOR TO OR DURING TRIAL
Standard of Review
We review
de novo
a defendant’s claim of ineffective assistance of counsel.
United
States v. Pierce
,
Analysis
“A convicted defendant’s charge that he was denied effective assistance of counsel, to be
successful, requires that the defendant prove: (1) that counsel’s performance was deficient; and
(2) that the deficient performance prejudiced the defense so as to deprive the defendant of a fair
trial.”
Meeks v. Bergen
, 749 F.2d 322, 327 (6th Cir. 1984). To be constitutionally deficient,
counsel’s performance must “[fall] below an objective standard of reasonableness.”
United
States v. Doyle
, 631 F.3d 815, 817 (6th Cir. 2011) (citing
Strickland v. Washington
, 466 U.S.
668, 687–88 (1984)). “[C]ounsel’s failure to request the trial court to order a hearing or
evaluation on the issue of the defendant’s competency” might render counsel’s performance
objectively unreasonable, “provided there are sufficient indicia of incompetence to give
objectively reasonable counsel reason to doubt the defendant’s competency.”
Jermyn v. Horn
,
266 F.3d 257, 283 (3d Cir. 2001). To demonstrate prejudice under that theory, however, Mr.
Dubrule would need to prove that “there is a reasonable probability that, but for counsel’s
[failure to request a competency evaluation prior to or during trial], the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”
Strickland
,
Even assuming that objectively reasonable counsel in McAfee’s and Sampson’s positions
would have requested a competency evaluation, Dubrule cannot demonstrate that any prejudice
resulted from their failure to do so. In finding Mr. Dubrule competent, both the district court and
Dr. Marcopulos closely examined facts arising out of the time periods during which McAfee and
Sampson served as Mr. Dubrule’s counsel. Those facts included: Dubrule’s pre-trial motions;
his apparently reasoned decision to proceed without counsel, as evidenced by his testimony
during his
Faretta
hearing; McAfee’s motion to withdraw; the bond revocation proceedings; and
Dubrule’s behavior during trial. Although we appreciate the “difficulty of retrospectively
determining an accused’s competence to stand trial,”
see Pate v. Robinson
, 383 U.S. 375, 387
(1966), it is nevertheless Dubrule’s burden to show a reasonable probability that an earlier
evaluation of such evidence would have produced a different result. Because the district court’s
finding of competency was not clearly erroneous, and because Dubrule fails to point out
evidence suggesting that the district court’s finding would have been different had his
competency been evaluated earlier, there is not “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland
,
IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY HOLDING
THAT DUBRULE WAIVED HIS INSANITY DEFENSE
Standard of Review
Federal Rule of Criminal Procedure 12.2(a) requires that a defendant provide notice of
his intent to offer an insanity defense “within the time provided for filing a pretrial motion.” If
the defendant fails to file notice within that time, he “cannot rely on an insanity defense.”
Fed. R. Crim. P. 12.2(a);
United States v. Cox
, 826 F.2d 1518, 1521 (6th Cir. 1987) (“By its
terms, . . . Rule 12.2(a) contemplates that a defendant who fails to comply with the time
requirements waives his right tо an insanity defense.” (internal quotation marks omitted)
(quoting
United States v. Duggan
,
However, Rule 12.2(a) states that “[t]he court may,
for good cause
, allow the defendant
to file the notice late . . . .” Fed. R. Crim. P. 12.2(a) (emphasis added). This Court reviews a
district court’s good-cause determination for abuse of discretion.
See Cox
, 826 F.2d at 1521
(quoting
United States v. Veatch
,
Analysis
“‘Cause’ consists not only of explanation for the belatedness of the party’s action, but also of a showing of some merit in the position belatedly to be advanced.” Cox , 826 F.2d at 1521 (internal quotation marks omitted). Mr. Dubrule argues that his belatedness in asserting an insanity defense was attributable to his incompetence to stand trial and to his self-representation while incompetent. The district court concluded that because Mr. Dubrule was competent to stand trial and represent himself, his excuse for belatedly asserting his insanity defense did not constitute “good cause.” Because we affirm the district court’s findings on competence, we conclude that the district court did not abuse its discretion by holding that Dubrule’s alleged incompetence did not provide “good cause” for his belated filing.
V. THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR BY
CONSIDERING DR. MARCOPULOS’ REPORT AND TESTIMONY WHEN MAKING ITS COMPETENCY DETERMINATION
Preservation of the Issue and Standard of Review
On appeal, Mr. Dubrule argues that the circumstances surrounding his evaluation by
Dr. Marcopulos and the Forensic Panel violated his due process and Sixth Amendment rights.
However, Dubrule concedes that this issue was not properly preserved below. This Court
reviews unpreserved constitutional claims for plain error.
See United States v. Yancy
, 725 F.3d
596, 600–01 (6th Cir. 2013). “To establish plain error, a defendant must show that: (1) an error
occurred in the district court; (2) the error was obvious or clear; (3) the error affected defendant’s
substantial rights; and (4) this adverse impact seriously affected the fairness, integrity, or public
reputation of the judicial proceedings.”
United States v. Gardiner
,
Analysis
Mr. Dubrule asserts that “the government made . . . false representations about the Forensic Panel’s ‘peer review’ process” because it failed to disclose that Dr. Marcopulos would consult with other experts from the Panel prior to completion of her report. (Def.’s Br. at 60– 61.) He thereafter argues that
[h]ad he known that the “peer reviewers” would be providing input to Dr. Marcopulos’ evaluation and directly influencing the formation of her opinions about Dubrule’s competency, [counsel] could have objected . . . , requesting that the process be adjusted and that the court include a specific procedure in its order.
(Def.’s Reply Br. at 30.) But even assuming for the sake of argument that depriving Dubrule’s
counsel of such an opportunity to object resulted in an obvious error, there is no reason to believe
that the error affected Dubrule’s substantial rights.
See Gardiner
,
Furthermore, Mr. Dubrule’s own experts testified as to their opinions on consultation between colleagues during the course of an evaluation. Dr. Dwyer stated that there is “nothing wrong” with such consultation, and that, in fact, such consultation is beneficial. ( See R. 252, PageID 2527–28.) Indeed, Dr. Dwyer admitted on cross examination that, like Dr. Marcopulos, he consulted with a colleague “at the time . . . this evaluation was going on” regarding “clarification on diagnostic issues.” ( Id. at 2527.) Dr. Morrow likewise admitted that he “discussed [his report] with people,” but that he did not mention such discussions in his report. ( Id. at 2597.) In sum, thеre is nothing about the evidence in the record suggesting that Dr. Marcopulos’ methods diminished the reliability of her opinion. [6] We therefore find no plain error in the circumstances of Mr. Dubrule’s evaluation by Dr. Marcopulos.
Appeal No. 14-6290; Defendant Kim Dubrule
VI. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY DENYING
KIM DUBRULE’S MOTION FOR A NEW TRIAL
Standard of Review
“This Court reviews for abuse of discretion a district court’s judgment on a Rule 33
motion for a new trial.”
United States v. Sypher
,
Analysis
A. Jurisdiction
On May 19, 2011, Kim Dubrule filed a motion for a new trial pursuant to Federal Rule of
Criminal Procedure 33(b)(1), arguing that Dr. Dwyer’s post-conviction report finding
Mr. Dubrule incompetent to proceed to sentencing constituted “newly discovered evidence.”
Specifically, Kim argued that this report raised new questions regarding Mr. Dubrule’s capacity
to form the two-person conspiracy for which she was convicted.
See, e.g.
,
United States v.
Fowler
, No. 14-2412,
Unsurprisingly, Kim does not challenge our ability to review her own appeal. However,
she provides no legal authority in support of our jurisdiction to do so. The government agrees
that we should review Kim’s appeal on the merits, arguing that we have jurisdiction because:
(1) 28 U.S.C. § 1291(a) grants appellate jurisdiction over the district court’s “final decisions;”
and (2) the district court’s entry of judgment of conviction against Kim Dubrule on October 21,
2014, from which she now appeals, constituted a “final decision” despite the lack of an explicit
ruling on her motion for a new trial. In support of its argument, the government cites
Addington
v. Farmer’s Elevator Mut. Ins. Co.
,
We have previously held that 28 U.S.C. § 1291 grants appellate jurisdiction over claims
implicitly denied by an otherwise final decision.
See Ford Motor Co. v. Transp. Indem. Co.
,
795 F.2d 538, 542 (6th Cir. 1986) (holding that if a “district court’s ruling on one claim
necessarily precludes an alternative or mutually exclusive claim, a final order will arise despite
the lack of an explicit declaration by the district court”);
A.O. Smith Corp. v. United States
,
Moreover, those of our sister circuits to have commented on this issue appear to agree
that entry of final judgment constitutes an implicit denial of pending motions.
See Keeton v.
Morningstar, Inc.
, 667 F.3d 877, 882 (7th Cir. 2012) (“Final judgment necessarily denies
pending motions.” (internal brackets and quotation marks omitted));
United States v. Jasso
,
634 F.3d 305, 307 n.2 (5th Cir. 2011) (holding that “the denial of a pending motion may be
implied by the entry of final judgment”);
Toronto-Dominion Bank v. Cent. Nat. Bank & Trust
Co.
,
Based on these principles, we conclude that we have jurisdiction to hear Kim Dubrule’s appeal. As we discuss below, the district court’s holding that Mr. Dubrule was competent to stand trial and proceed to sentencing undermined the basis for, and therefore essentially denied, Kim’s motion for a new trial. And in any event, Kim’s pending motion was implicitly denied by the district court’s entry of her sentence and final judgment of conviction on October 21, 2014.
B. Denial of Kim Dubrule’s motion for a new trial
In order to establish that evidence was “newly discovered” for the purposes of justifying
a new trial, “a defendant must normally show that the evidencе (1) was discovered only after
trial, (2) could not have been discovered earlier with due diligence, (3) is material and not merely
cumulative or impeaching, and (4) would likely produce an acquittal if the case were retried.”
United States v. Garland
,
We conclude that the district court did not abuse its discretion by implicitly denying
Kim’s motion for a new trial where that motion was premised on a report that the district court
found unpersuasive. In so doing, we are cognizant of the fact that the standards for competency
and insanity are different.
See, e.g.
,
Duran v. Attorney Gen. of N.M.
,
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment as to Rosaire Dubrule (Appeal No. 14-6376), and AFFIRM the district court’s judgment as to Kim Dubrule (Appeal No. 14-6290).
Notes
[1] The district court later construed Mr. Dubrule’s “motion to determine сompetency . . . during commission of the indicted offenses” as a late notice of intention to assert an insanity defense under Federal Rule of Criminal Procedure 12.2(a). ( See R. 255, PageID 2809–11.)
[2] According to the government’s motion for a competency evaluation, “The Forensic Panel is a group of psychiatrists and psychologists that specialize in forensic evaluations.” (R. 228, PageID 2403.) Dr. Marcopulos testified that when hired to provide an expert opinion, “The Forensic Panel . . . will examine the case to see what type of expert might be most appropriate,” will assign a “primary forensic examiner” to conduct an evaluation of the defendant, and will make other experts available for consultation and review of the final report. (R. 252-1, PageID 2643.)
[3] Defendants note that this Circuit has never explicitly stated who bears the burden of proving a defendant’s competency. However, because (1) the district court assumed that the burden rested with the government, (2) the district court found that the government had met its burden, and (3) we conclude that the district court’s finding was not clearly erroneous, we decline to rule on the burden of proof issue in this case.
[4] Such a warning was issued to Mr. Dubrule at his Faretta hearing.
[5] Mr. Dubrule also argues that the district court’s post-trial competency evaluation was insufficient to safeguard his constitutional rights where there was reasonable cause to believe him incompetent earlier on. See Pate v. Robinson , 383 U.S. 375, 387 (1966) (“[W]e have previously emphasized the difficulty of retrospectively determining an accused’s competence to stand trial.”). Because we conclude that the district court did not abuse its discretion by failing to order an evaluation earlier, we do not address this argument further.
[6] At the competency hearing, Dr. Marcopulos described the two experts with whom she consulted during the course of her evaluation of Mr. Dubrule. The first was Dr. Michael Wellner, a board certified psychiatrist that specialized in and had “extensive experience” with forensic cases. (R. 252-1, PageID 2648.) The second was Dr. Diana Goldstein, a board certified clinical neuropsychologist with a forensic practice. ( Id . at 2648–49.)