USA v. Francisco Martin

Filing

OPINION filed : We therefore REVERSE the judgment of the district court and REMAND the case for a new competency hearing and, if Martin is found competent, a new trial. Decision not for publication. Martha Craig Daughtrey, (Authoring) Circuit Judge; Karen Nelson Moore, (Dissenting) Circuit Judge and Eric L. Clay, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0284n.06
No. 11-6544

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

FRANCISCO MARTIN,
Defendant-Appellant.

BEFORE:

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FILED
Apr 15, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE

DAUGHTREY, MOORE, and CLAY, Circuit Judges.

MARTHA CRAIG DAUGHTREY, Circuit Judge. At his initial appearance following
his indictment on three related charges involving child pornography, defendant Francisco Martin
invoked his right to self-representation, waived his right to an attorney, and was appointed
standby counsel. At the same time, the magistrate judge gave instructions that standby counsel
could only answer Martin’s questions and file pleadings that Martin drafted. In light of Martin’s
largely incomprehensible pleadings and his report of disturbances in his mental health, the
government moved for a competency hearing. The district court granted the motion and ordered
a psychiatric examination. Based on the resulting report finding Martin competent to stand trial
and on Martin’s verbal assurance to the court that he considered himself to be competent, the
magistrate judge found him competent to stand trial. Martin subsequently represented himself at
trial and was convicted of all the charges against him. He now contends that the magistrate

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judge’s instructions to standby counsel unconstitutionally deprived him of counsel during his
competency hearing. In response, the government argues that the case should be remanded for
an evidentiary hearing to determine whether standby counsel’s non-participation during Martin’s
competency hearing was in compliance with the limitations placed on counsel’s role or was the
result of an independent, strategic decision by standby counsel not to contest competency.
Because there is nothing in the record to suggest that counsel represented Martin at the hearing
or participated in any way in the determination of Martin’s competency, we conclude that the
convictions must be set aside and the case remanded to the district court for a valid competency
hearing and, if justified, a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
Following the return of the three-count indictment charging receipt, possession, and
distribution of child pornography, Martin made his initial appearance before the magistrate judge
and waived his right to counsel, despite repeated urging by the court that he accept the
appointment of counsel. Martin did, however, agree to the appointment of standby counsel. In
appointing standby counsel, the magistrate judge instructed Martin that his decision to represent
himself barred standby counsel from doing anything more than answering legal questions Martin
had and typing and filing pleadings written by Martin:
[Y]ou need to understand, Mr. Martin, stand-by counsel, you cannot be halfway
represented by an attorney and halfway represented by yourself. It’s all or
nothing. Stand-by counsel, if appointed for you, Mr. Martin, will [sit] behind
you; and if you have a question about an evidentiary matter or rule of procedure
or something like that, you can turn around and ask your lawyer advice, your
stand-by lawyer advice; and then based upon that advice, which you may or may
not take, you can proceed accordingly; but the lawyer, stand-by lawyer, will not
participate actively to any extent in a trial of the case or any pretrial proceeding.

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The magistrate judge emphasized that standby counsel could not take an active role in
representing Martin: “[S]tandby counsel,” the court informed Martin, “can’t do anything except
talk to you, that’s about the bottom line, give you advice. You are representing yourself; so
whatever happens in this case, Mr. Martin, will be you. Your lawyer will not do anything on
your behalf. He cannot do anything on your behalf.”
When asked to enter his plea during his initial appearance, Martin referred to the Uniform
Commercial Code’s section 1-207. This action, as well as Martin’s indication to a probation
officer that he had recently suffered suicidal ideation and anxiety, spurred the government to
move for a competency hearing. The district court granted the motion and ordered the Bureau of
Prisons to conduct a mental health assessment of Martin’s condition in preparation for the
hearing. The mental health evaluation, completed by a clinician at the Lexington, Kentucky
Federal Medical Center, concluded that Martin was not suffering from any mental disease or
defect that would render him mentally incompetent to stand trial. The magistrate judge ordered
the hand-delivery of the evaluation to Martin “since he [was] representing himself.”
The entire discussion of Martin’s competency at the competency hearing before the
magistrate judge consisted of the following exchange:
THE COURT: Alright. We’re here today because the District Judge ordered that
Mr. Martin undergo a forensic examination to determine his competency to stand
trial. That examination has taken place, and the Court has received the report of
FMC Lexington, and Mr. Martin, you need to confirm for me, please, Sir, that you
got a copy of that?
MR. MARTIN: That’s correct, Your Honor.
THE COURT: Alright. Well, okay. And Mr. Martin, as I am sure you are aware,
the bottom line of that report is that you are quite competent to look after your
own interest, know what you’re doing and so forth and so on. Do you disagree
with that conclusion?

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MR. MARTIN: I agree that I am competent, Your Honor.
THE COURT: I’m sorry?
MR. MARTIN: I agree that I am competent.
THE COURT: Okay. Well, under the circumstances, Mr. Martin, I would ask if
there’s any more evidence regarding your competency to be placed in the record,
but since you agree with the conclusions of FMC Lexington, there’s not a whole
to do. Do you?
MR. MARTIN: I would like to give a standing objection to the Plaintiff’s use of
the jurisdiction of this Court.
THE COURT: Well, okay. That’s noted, and you don’t need to broach that
subject every time, ‘cause your, your objection is noted. But as far as your
competency, Mr. Martin, do you have anything else you wish to say? I don’t
know what it would be since you agree with the report, but do you, bottom line,
do you agree that you are competent?
MR. MARTIN: Yes, Your Honor.
Standby counsel, though present during the hearing, was not addressed, questioned, or
acknowledged at any point during this discussion. The parties devoted the remainder of the
hearing to admitting Martin’s mental health evaluation into evidence, scheduling the trial, and
hearing Martin’s argument that the charges against him had to be dismissed for lack of
jurisdiction. Based on the mental health evaluation—the only piece of evidence presented to the
court on Martin’s competence—and Martin’s agreement with the evaluation’s conclusion that he
was competent, the court found Martin competent to proceed to trial.
As previously noted, Martin unsuccessfully represented himself at trial—the jury found
him guilty on all of the counts against him. The district court sentenced him to 156 months’
imprisonment.

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After Martin timely appealed his conviction and sentence, standby counsel moved to
withdraw on the grounds that Martin’s appeal presented no legally non-frivolous questions. We
denied the motion, however, and directed counsel to brief whether, under the Sixth Circuit’s
decision in United States v. Ross, 703 F.3d 856 (6th Cir. 2012), Martin was unconstitutionally
denied counsel during his competency hearing. The present appeal was filed in compliance with
that order.
DISCUSSION
Legal Standard
The Ross panel did not establish the appropriate standard of review for claims based on
the denial of counsel at a competency hearing.

See generally Ross, 703 F.3d at 868-873

(establishing that deprivation of counsel at competency hearing may run afoul of the Sixth
Amendment right to counsel). Though neither party here proposes the standard of review that
should generally be applied to cases of this nature, the government contends that the appropriate
standard of review in this case must be de novo because Ross was decided subsequent to
Martin’s competency hearing and, thus, the parties and the district court did not develop a record
on the Ross issue. Given that we normally review questions of law in constitutional challenges
to criminal convictions de novo, see United States v. Watkins, 509 F.3d 277, 280 (6th Cir. 2007),
and that Martin has presented no argument for why this level of review is inappropriate here, we
will review Martin’s Ross claim de novo.

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Deprivation of Counsel
The Sixth Amendment secures to criminal defendants both the right to trial counsel and
the right to proceed without counsel. Faretta v. California, 422 U.S. 806, 834 (1975). The right
to represent oneself is not absolute, however; the Constitution requires that “any waiver of the
right to counsel be knowing, voluntary, and intelligent.” Iowa v. Tovar, 541 U.S. 77, 87-88
(2004).
When a criminal defendant’s competency to stand trial has been challenged, the validity
of the defendant’s waiver of counsel is suspended until the issue of his or her competency is
resolved. We have recently recognized the “common-sense viewpoint that a defendant cannot
represent himself at his own competency hearing, the purpose of which is to determine whether a
defendant understands and can participate in the proceedings in the first place.” Ross, 703 F.3d
at 869. In Ross, we determined that “the Constitution requires a defendant to be represented by
counsel at his own competency hearing, even if he has previously made a knowing and voluntary
waiver of counsel.” Id. at 871.
Although a criminal defendant is entitled to representation by counsel during his or her
competency hearing, Ross does not require that counsel be full-time. “[P]articipation by standby
counsel during a competency hearing may be sufficient to overcome a denial of counsel claim.”
Id.

But such participation is sufficient only when standby counsel conducts an adequate

investigation of the defendant’s competency and subjects evidence of the defendant’s
competency to meaningful adversarial testing. Id. at 866. Standby counsel need not present
argument during the competency hearing to satisfy this standard, as long as the decision not to
contest competency is an independent, strategic one, borne out of adequate investigation of the
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defendant’s competency and appropriate preparation for the hearing. Id. at 873. Adequate
investigation entails, at a minimum, reading and analyzing a mental health evaluation of the
defendant prepared for the hearing. Id. at 874.
Both parties agree that standby counsel’s lack of participation during Martin’s
competency hearing may have violated Martin’s Sixth Amendment right to counsel under Ross.
They depart on whether the record sufficiently establishes that standby counsel’s silence during
the hearing was not the result of an independent, strategic decision to defer to the mental health
evaluation’s conclusions.

Martin argues that the record shows conclusively that he was

completely deprived of counsel during his competency hearing; he asserts that the magistrate
judge’s initial instructions regarding the permissible scope of standby counsel’s representation,
which were not modified prior to the competency hearing, effectively “prohibited [standby
counsel] from providing . . . meaningful adversarial testing” of the mental health evaluation’s
competency findings. The government contends in response that the record cannot support such
a conclusion because it contains no factual findings on whether counsel investigated Martin’s
competence and made an “independent, strategic choice” not to contest the mental health
evaluation.
Given the record in this case, we can only conclude that Martin was deprived of counsel
during his competency hearing. But the inquiry does not end there. Ross did not hold that
whenever the record reflects that standby counsel did not participate in the competency hearing,
we must remand for an evidentiary hearing on whether that nonparticipation was a strategic
decision before we can decide whether it unconstitutionally deprived a criminal defendant of
counsel. Remand in Ross was appropriate because the record before the court revealed that

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standby counsel had expressed doubts that the defendant was incompetent prior to the
competency hearing, had provided documents regarding the defendant’s competence to the
clinician who evaluated the defendant and, during the competency hearing, had declined the
opportunity to present evidence regarding the defendant’s competence. Ross, 703 F.3d at 87273.

Standby counsel, in fact, explicitly stated that he would defer to the mental health

evaluation’s conclusions at the hearing. Id. at 873. Thus, the record in Ross contained ample
evidence that standby counsel had investigated his client’s competency, found nothing
suggesting that his client was incompetent, and, as a result, elected not to oppose a finding that
his client was competent. Critically, the district court in Ross placed no limitations upon standby
counsel’s scope of representation. Id. at 872. Accordingly, Ross’s standby counsel argued on
behalf of his client on the issue of competency prior to the competency hearing and, as noted
above, was offered the opportunity to argue and present evidence at the competency hearing. Id.
at 872, 873.
By contrast, nothing in the record here evidences that Martin’s standby counsel ever
expressed any position on his client’s competence; nor does the record indicate that standby
counsel ever reviewed any documents related to Martin’s competency, including the mental
health evaluation. In an attempt to bolster its argument that standby counsel’s nonparticipation
in Martin’s competency hearing may have resulted from an independent investigation of
Martin’s competency, the government notes that standby counsel was consulted by the clinician
who evaluated Martin. The government also argues that standby counsel had reason to not
contest Martin’s competency because Martin’s mental health evaluation offered no evidence that
Martin was incompetent. Missing from the record, however, is any evidence that standby
counsel actually reviewed Martin’s mental health evaluation. Notably, the district court ordered
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delivery of Martin’s mental health evaluation to Martin because “he [was] representing himself.”
The order did not provide for delivery to his standby counsel. Thus, the record suggests that
standby counsel had not reviewed Martin’s mental health evaluation before the hearing.
Even if standby counsel did investigate Martin’s competency, however, the magistrate
judge’s instructions effectively barred her from presenting any conclusions she may have drawn
from this investigation, because those instructions foreclosed any action by standby counsel on
Martin’s behalf beyond answering Martin’s legal questions and filing pleadings he drafted. The
instructions could not reasonably be understood to have permitted standby counsel to argue or
present evidence—critical components of “meaningful adversarial testing”—during his
competency hearing.

Indeed, once the gag order was in place, it is unsurprising that the

magistrate judge did not offer standby counsel the opportunity to challenge Martin’s mental
health evaluation. Instead, during a brief discussion of Martin’s competency, the judge directed
his questions to Martin alone; the presence of standby counsel was never even acknowledged on
the record. The task of challenging the mental health evaluation, then, was left to the defendant
alone, who had already shown the court that he had little comprehension of the charges against
him, let alone a sufficient understanding of why or how to subject his mental health evaluation to
“meaningful adversarial testing.” Thus, the record leaves little question that the “meaningful
adversarial testing” required by the Sixth Amendment’s right to counsel was wholly absent from
Martin’s competency hearing. Because the record makes clear that Martin was effectively
unrepresented at the hearing, a remand to supplement that record is unnecessary here.
At least one other circuit court has found a Sixth Amendment violation of the right to
counsel when the record before it established that the district court directed all of its questions on

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the issue of the defendant’s competency to the defendant alone. See United States v. Purnett,
910 F.2d 51, 55-56 (2d Cir. 1990). The government asserts that Purnett is inapposite here
because the Second Circuit had not found that the presence of standby counsel could be
sufficient to overcome a deprivation-of-counsel claim. But that argument misunderstands the
import of Purnett to Martin’s Ross claim. Purnett did not hold that standby counsel could never
provide sufficient representation to overcome a deprivation-of-counsel claim; it held only that, if
the record revealed that standby counsel was given no opportunity to argue on behalf of the
defendant during the competency hearing, the appeals court could base its conclusion that the
defendant was unconstitutionally deprived of counsel during that hearing on the record alone. Id.
at 55-56.
CONCLUSION
It is well-established that a competency hearing is a “critical stage” of a criminal
proceeding. Ross, 703 F.3d at 874. It is also well-established that the complete deprivation of
counsel during a critical stage of the proceedings can be remedied only by reversal of the
judgment without consideration of prejudice. Id. Because Martin was completely deprived of
counsel during his competency hearing, his conviction and sentence must be vacated.
We therefore REVERSE the judgment of the district court and REMAND the case for a
new competency hearing and, if Martin is found competent, a new trial.

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KAREN NELSON MOORE, Circuit Judge, dissenting. I agree with the majority that
United States v. Ross, 703 F.3d 856 (6th Cir. 2012), controls this case. As in Ross, I believe that
we cannot, based on the record before us, make a conclusive determination regarding standby
counsel’s performance. The record does show, for instance, that standby counsel was contacted
by phone during Martin’s mental evaluation, and may have received a copy of this evaluation
prior to Martin’s competency hearing. The record also shows that standby counsel was present
at Martin’s competency hearing, where she promised to provide Martin with copies of some
legal documents. To be sure, the record does not otherwise speak to the extent of standby
counsel’s preparation. But that, in my view, is why an evidentiary hearing is warranted in this
case. As in Ross, I believe that such a hearing would help clarify whether standby counsel
actually provided Martin with “meaningful adversarial testing,” a question that we cannot yet
answer based on the record in front of us.
For the foregoing reasons, instead of vacating Martin’s conviction, I would grant the
government’s motion for a limited remand for an evidentiary hearing.

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