USA v. Bryan Ro

Filing

OPINION filed : AFFIRMED, decision not for publication. Danny J. Boggs, Circuit Judge; Jane Branstetter Stranch, Authoring Circuit Judge and James G. Carr, Senior U.S. District Judge for the Northern District of Ohio, sitting by designation.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0511n.06

FILED

No. 13-2253

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
BRYAN ROSS,
Defendant-Appellant.

BEFORE:

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Jul 21, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
OPINION

BOGGS and STRANCH, Circuit Judges; CARR, District Judge.*

JANE B. STRANCH, Circuit Judge. This appeal after remand concerns a single issue:
whether defendant Bryan Ross received constitutionally adequate representation during a pretrial
competency hearing. Ross represented himself leading up to and during the hearing, but was
aided by court-appointed standby counsel, Allen Early. In a prior joint direct criminal appeal
before this panel, Ross and codefendant Robert Burston challenged their convictions on multiple
counts relating to a counterfeit-check scheme. United States v. Ross, 703 F.3d 856, 865 (6th Cir.
2012). They brought twelve different types of claims between them, and we upheld the district
court’s rulings on all save the one before us here. Finding the record insufficient to determine
whether Early’s representation met the minimum constitutional standard, we remanded the case
with instructions to hold an evidentiary hearing on the issue. After taking testimony from Early,
*

The Honorable James Carr, Senior United States District Judge for the Northern District of Ohio, sitting
by designation.

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the district court issued an order establishing that Ross was adequately represented at the
competency hearing. Ross appealed. With the benefit of the district court’s additional fact
finding, we now affirm Ross’s conviction.
Before trial and while represented by Early (his third successive attorney in the case),
Ross filed a motion to waive counsel and represent himself. Ross, 703 F.3d at 865. The
Government then filed a motion for a competency examination and hearing, voicing concern
about signs of delusion and paranoia Ross had exhibited and Ross’s inability to get along with
any of the different lawyers who had represented him. Id. The court denied Ross’s motion
solely out of concern that, without counsel, he would misspend defense funds provided to him by
virtue of his indigent status. Id.
On June 10, 2008, Ross filed another motion to “substitute counsel until trial,” which also
expressed his ongoing desire to represent himself. Id. at 865-66. The court denied Ross’s
request for a new attorney, but permitted Ross to represent himself after determining that he
knowingly and voluntarily waived his right to counsel. Id. at 866. The court then shifted Early
to the role of standby counsel. Id. On July 30, the Government filed a second motion for a
competency examination and hearing, which the court granted in an August 5 hearing without
reappointing fulltime counsel. Id. On October 29, 2008 the court held the competency hearing
and found Ross competent to stand trial based on the court’s own observations and the report of
a psychologist the court itself had selected, Dr. William Nixon. Id. at 866, 873. Ross later
represented himself at trial with the assistance of yet another attorney acting as standby counsel
and was convicted of conspiracy and five of six substantive counts against him. Id. at 866.
We review the district court’s legal conclusions concerning Early’s representation de
novo, and review its factual findings under a clear error standard. See Ornelas v. United States,

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517 U.S. 690, 699 (1996) (appellate courts review questions of law de novo and questions of
historical fact for clear error with respect to probable cause determinations); First Options of
Chicago, Inc. v. Kaplan, 514 U.S. 938, 948 (1995) (same, with regard to parties’ agreement to
submit their dispute to arbitration).
On the initial appeal, we noted that “[i]t is well-settled that complete absence of counsel
at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting
reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice or
harmless error.” Ross, 703 F.3d at 873-74 (quoting Van v. Jones, 475 F.3d 292, 311-12 (6th Cir.
2007)), and held that a competency hearing is a critical stage, id. at 874. We further noted that it
was not clear on the record whether Early, acting as standby counsel, provided the
constitutionally required “meaningful adversarial testing” leading up to and during Ross’s
competency hearing. Id. at 872 (citing United States v. Cronic, 466 U.S. 648, 656-57 (1984)).
Here, satisfaction of the Cronic standard “requires evidence, at a minimum, that standby
counsel (1) conducted an adequate investigation into Ross’s competency, including reading and
analyzing Dr. Nixon’s report, and preparing for the hearing, and (2) chose not to contest Ross’s
competency based on his own strategic decision rather than a belief that he simply had no
obligation to do so over Ross’s instructions.” Ross, 703 F.3d at 874. The record created on
remand supports the district court’s conclusion that standby counsel met both requirements.
At the post-remand evidentiary hearing, Early testified that once the government filed its
second motion for a competency evaluation, he began preparing for the motion hearing and was
exercising independent judgment as an attorney for Ross, though he already had been assigned
the role of standby counsel. At the August 5, 2008 hearing to decide the Government’s motion
to conduct a competency evaluation of Ross, Early stated his view that Ross’s erratic behavior

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could be due to incompetence, but it could also be a bad-faith effort to create error in the record,
and that the court should hold a competency examination to “rule out” the competency issue.
Once the court ordered a competency hearing, Early undertook logistical tasks such as
compiling a list of experts acceptable to Ross and submitting them to the court. When it became
apparent that the parties could not agree on an expert, the court appointed its own selection, Dr.
Nixon. Early testified that he considered himself Ross’s counsel with respect to facilitating Dr.
Nixon’s evaluation of Ross.
Early reviewed Nixon’s background and found Nixon to be a “learned” and
“experienced” forensic psychiatrist. He submitted various relevant documents to Nixon to assist
in the evaluation and discussed the documents over the phone with him. Among others, he
provided Nixon with the complaint, indictment, case report, Ross’s criminal history, and several
of Ross’s pro se pleadings.

In addition, Early provided pertinent Supreme Court caselaw

pertaining to competence to represent oneself to Nixon, including the then-recent opinion in
Indiana v. Edwards, 554 U.S. 164 (2008). Early explained the details of Ross’s case to the
doctor, and told Nixon that “it was going to be a fairly extensive trial with a lot of documents”
and would be “a major undertaking.” Early also advised Nixon that he believed Ross to be
competent, testifying that:
I told him Mr. Ross was very sophisticated in terms of fact analysis, legal
analysis, arguments. That he could integrate the facts with the law. That he could
look at a witness sheet and pick it apart in terms of what was wrong with the
witness and how to attack the witness on cross examination. And that he could
interface with counsel. He understood the proceedings. And that this was not a
rudimentary type of knowledge that Mr. Ross had. That he had a very
sophisticated type of knowledge in terms of dealing with these issues. He was a
very sophisticated person.
R. 455, PageID# 5436.

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Once Nixon released his report finding Ross to be competent, Early studied it and
discussed it with the doctor. Early believed Nixon’s evaluation was thorough and complete, and
that Nixon had reached the correct result. Early sent a copy of Nixon’s report to Ross and
discussed it with him twice before the hearing. With Nixon, Ross, and Early all in agreement,
Early had nothing to add to the competency hearing aside from expressing his acceptance of
Nixon’s conclusion.
This record indicates that, though Early was standby counsel, he provided
constitutionally adequate representation to Ross leading up to and during the competency hearing
by: adequately considering Ross’s competency on his own, providing information to aid Nixon
in making an informed analysis, analyzing Nixon’s completed report, and preparing for the
hearing. Further, it is apparent that Early’s decision not to contest the report was based on his
agreement with it, rather than a belief that he simply had no obligation to do so.
On appeal, Ross argues that Early failed to provide meaningful adversarial testing
because he abstained from providing information relevant to the issue of competency at the
hearing and “simply relied on Dr. Nixon’s report.” As a result, according to Ross, “[n]obody
actually got up and argued that Mr. Ross was incompetent,” and “Early did not provide this court
what it required.” But Early did not “simply rely” on the report. Rather, he provided Nixon with
pertinent documents and his own perspective, which happened to be in accord with Nixon’s final
report. Early had no duty to argue that Ross was incompetent simply for the sake of playing
devil’s advocate and airing that perspective in court, given that Early, Nixon, and Ross himself
had all independently concluded that Ross was indeed competent.
Ross also argues that Nixon presented the wrong legal standard in his report, but this too
is unavailing. Though Nixon’s report does not explicitly address Indiana v. Edwards in its

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discussion of the mental competence standard for waiving counsel, the report directly quotes the
American Psychiatric Association’s position—quoted approvingly in Edwards—that:
[d]isorganized thinking, deficits in sustaining attention and concentration,
impaired expressive abilities, anxiety, and other common symptoms of severe
mental illnesses can impair the defendant’s ability to play the significantly
expanded role required for self-representation even if he can play the lesser role
of represented defendant.
Edwards, 554 U.S. at 176. Nixon’s report concludes that Ross “is not currently demonstrating
any of the above stated symptoms as outlined by the American Psychiatric Association.” This
demonstrates that Nixon was aware of Edwards’s discussion of a heightened standard of
competence for defendants seeking to represent themselves at trial, and found that Ross had met
it.
With the benefit of a sufficient record, we now AFFIRM Ross’s conviction.

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