Joseph Duncan, III v. USA

Filing

FILED OPINION (SUSAN P. GRABER, RAYMOND C. FISHER and MILAN D. SMITH, JR.) This panel will assume jurisdiction over any future appeals in this case. REVERSED and REMANDED with instructions. Judge: SPG Authoring, FILED AND ENTERED JUDGMENT. [7814100]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH EDWARD DUNCAN, III,
Defendant-Appellant.

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No. 08-99031
D.C. No.
2:07-cr-00023-EJL-1
OPINION

Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted
January 12, 2011—Seattle, Washington
Filed July 11, 2011
Before: Susan P. Graber, Raymond C. Fisher, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Graber

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COUNSEL
Joseph Schlesinger, Assistant Federal Defender, Sacramento,
California, for the defendant-appellant.
Wendy J. Olson and Syrena C. Hargrove, Assistant United
States Attorneys, Boise, Idaho, for the plaintiff-appellee.

OPINION
GRABER, Circuit Judge:
Defendant Joseph Edward Duncan, III, pleaded guilty to
three capital charges and seven other charges in connection
with the kidnapping, sexual abuse, and murder of D.G., a 9year-old boy, and the kidnapping and sexual abuse of Sh.G.,
an 8-year-old girl. Defendant exercised his right to represent
himself during his penalty phase hearing. His lawyers challenged his competence to do so, but the district court rejected
that challenge without having held a hearing. Defendant
received a death sentence.
Standby counsel filed a timely notice of appeal but, at a
hearing, Defendant told the district court that he did not want
to appeal. The district court accepted Defendant’s waiver of
appeal, ruling that it had been made competently. We nevertheless agreed to hear this appeal for the limited purpose of
reviewing the district court’s competency determinations. In
the circumstances, we agree with standby counsel that a competency hearing was required. We therefore reverse and
remand for a retrospective competency hearing.

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I.

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Background

In the early hours of May 16, 2005, Defendant drove to a
secluded house in Coeur d’Alene, Idaho, intending to kidnap
two of the children who lived there. Brenda G. was asleep
inside, along with her three children—13-year-old Sl.G., 9year-old D.G., and 8-year-old Sh.G.—and Brenda’s boyfriend, Mark M. Defendant had surveilled the house and knew
who was inside. He came prepared with a loaded sawed-off
shotgun, a hammer, night-vision goggles, duct tape, and a
package of zip ties. He wore a hat, a mask, and gloves.
Defendant entered the house through the unlocked back
door. He found Brenda asleep in the living room. He awakened her at gunpoint. At Defendant’s direction, Brenda took
Defendant to each of the three bedrooms. One by one, Defendant collected the family members, assembled them facedown on the floor of the living room, and bound their arms
and legs with zip ties and duct tape.
Defendant then took D.G. and Sh.G. into the back yard and
lay them on the grass. He went back into the house to retrieve
Sl.G. After leading Sl.G. into the back yard, Defendant hit
him in the back of the head with the hammer several times
until he fell to the ground and stopped moving. Defendant
then went back into the house and killed Brenda and Mark,
using the hammer, as they lay on the living room floor. Satisfied that his three victims were dead or nearly so, Defendant
took D.G. and Sh.G. to his stolen rental car and drove them
to a secluded area of the Lolo National Forest in Montana.
There, Defendant set up camp.
Defendant held D.G. and Sh.G. at the campsite for almost
seven weeks. He threatened to kill them with the shotgun if
they tried to leave. During that time, Defendant repeatedly
and savagely abused both children. He made video recordings
of some of the abuse and stored the recordings on an electronic micro drive, which police later recovered. On or about

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June 22, 2005, Defendant killed D.G. by shooting the boy
with the shotgun.
On July 2, 2005, Defendant decided to take Sh.G. back to
Idaho. When they reached Coeur d’Alene, Defendant took
Sh.G. to a Denny’s restaurant. A waitress and a customer each
recognized Sh.G. and called the police. Police officers
arrived, and they arrested Defendant.
In August 2005, the State of Idaho charged Defendant with
three counts of first-degree murder and three counts of firstdegree kidnapping for the murders of Mark M., Brenda G.,
and Sl.G. After Defendant reached a bargain with the prosecution, he pleaded guilty on all charges. The court sentenced
Defendant to three consecutive life sentences on the kidnapping charges but, consistent with the terms of Defendant’s
plea bargain, the court deferred sentencing Defendant on the
murder charges to await the outcome of this federal case.
Idaho retains the right to seek the death penalty on the three
murder convictions if these proceedings do not result in a
valid death sentence.
In January 2007, a federal grand jury indicted Defendant on
ten counts, all related to the kidnapping, rape, and abuse of
the two children and the murder of D.G. The United States
timely noticed its intent to seek the death penalty, under the
Federal Death Penalty Act of 1994, for the three capital
charges. At a hearing on December 3, 2007, with the support
of counsel and without a deal with the government, Defendant
pleaded guilty to all ten charges in the indictment.
Jury selection for Defendant’s penalty phase hearing began
as scheduled on April 14, 2008. During the second day of jury
selection, though, Defendant informed the court that he
wanted to represent himself. The court held a hearing on
Defendant’s request, concerned particularly with Defendant’s
competence. After examining Defendant, the court directed
the parties to confer and to submit the names of three local

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experts who could evaluate Defendant’s competence to proceed without counsel. One week after that hearing, the court
issued an order referring Defendant to a local clinical psychologist whom the parties jointly recommended to evaluate
Defendant’s competence. The court stated its preliminary conclusion that Defendant had the competence to proceed.
On May 2, 2008, defense counsel formally moved for an
order finding Defendant incompetent or, in the alternative, for
a hearing on Defendant’s competence. Counsel filed reports
from three experts in support of the motion, all of whom had
examined Defendant personally and had found him to be
incompetent to represent himself. The doctors all thought that
Defendant suffered from delusions that impaired his judgment
and rendered him unable to understand the proceedings or to
waive his right to counsel intelligently.
On May 8, 2008, the court-appointed psychologist filed his
report with the court. The psychologist had interviewed
Defendant three times. Although he found Defendant’s
thoughts to be “somewhat unusual,” the psychologist concluded that Defendant was not delusional. He opined that
Defendant could understand the nature and consequences of
the proceedings against him, that Defendant could assist properly in his defense, and that Defendant had waived counsel
knowingly, intelligently, and voluntarily.
The government initially moved to have Defendant evaluated by a second expert. But, after receiving the courtappointed psychologist’s report, the government withdrew
that motion. Nevertheless, the district court, acting on its own
motion, decided to order a second evaluation to be conducted
by the Federal Bureau of Prisons. The court sent Defendant
to the Metropolitan Detention Center in SeaTac, Washington,
for an evaluation. Defendant’s period of assessment began on
May 23, 2008, and lasted six weeks.
During that time, a forensic psychologist observed Defendant’s behavior, reviewed Defendant’s medical and mental

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health records, and spoke extensively with Defendant’s lawyers. She also reviewed the reports prepared by Defendant’s
three experts and the other court-appointed psychologist. For
the most part, Defendant refused to participate in the evaluation.
The forensic psychologist found no evidence of psychotic
behaviors or thought processes. Though Defendant held
“some very strong spiritual and ideological viewpoints
regarding religion,” the psychologist did not think that those
beliefs were delusional because such beliefs are “not uncommon among other subsets of highly religious, devout, or spiritual individuals.” She concluded that Defendant could
represent himself competently.
On July 24, 2008, the district court denied defense counsel’s motion for a competency hearing and allowed Defendant
to proceed without counsel. The court found the opinions of
the court-appointed psychologists to be more credible than
those of the defense experts, and the court agreed with the
court-appointed psychologists that Defendant’s ideas, though
“uncommon,” showed “a level of intelligence more than sufficient to evidence his understanding of [the] proceeding and
his competency to proceed.” In addition, the court observed
that Defendant had not displayed irrational behavior in court;
that Defendant had stated that he understood the nature of the
proceedings during his plea hearing; that defense counsel had
never before called into question Defendant’s competence;
and that no question regarding Defendant’s competence arose
during the state court proceedings. For those reasons, and on
the recommendations of the court-appointed psychologists,
the court denied defense counsel’s motion to declare Defendant incompetent. The court appointed Defendant’s three lawyers to act as Defendant’s standby counsel.
The penalty phase hearing convened on August 13, 2008.
The government spent ten days presenting its evidence. After
the government rested, Defendant called himself as his only

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witness. Defendant did not make a statement in his defense.
When the government indicated that it had no questions,
Defendant left the stand and rested his case. After its deliberations, the jury unanimously recommended death sentences on
all three capital counts. The district court sentenced Defendant to death.
Standby counsel filed a timely notice of appeal. The government moved to strike the notice because Defendant had
informed the government that he had not given his consent to
the appeal. Thereafter, the court received a letter from Defendant stating, “This is to inform the Court that if any appeal is
initiated on my behalf it is done contrary to my wishes.”
The district court held a hearing on the government’s
motion. The court first asked Defendant whether he understood his right to appeal. After several rambling responses,
Defendant eventually answered, “I certainly understand my
right, my right in quotes, and I have no desire, as I mentioned
in the letter I wrote to you, to invoke it.” On the basis of
Defendant’s statements, and in view of the court’s previous
competency determination, the court ruled that Defendant had
knowingly, intelligently, and competently waived his right to
appeal. The court therefore granted the government’s motion
to strike the notice of appeal.
We nevertheless agreed to hear an appeal limited to two
issues: whether we lack jurisdiction because standby counsel
has no standing to appeal; and, if we have jurisdiction,
whether the district court erred in its determination that
Defendant competently could represent himself and waive his
right to appeal.
II.

Discussion
A.

Standards of Review

We review de novo the district court’s ruling on standing.
La Asociacion de Trabajadores de Lake Forest v. City of Lake

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Forest, 624 F.3d 1083, 1087 (9th Cir. 2010). We employ a
practical standard to review the denial of a motion for a competency hearing. We ask whether a reasonable judge, situated
as was the trial judge who denied the motion, should have
experienced doubt with respect to the defendant’s competence. de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir.
1976) (en banc). We engage in a “comprehensive” review of
the evidence, and we are “not limited by either the abuse of
discretion or clearly erroneous standard.” Id.
B.

Jurisdiction

[1] We begin, as we must, with the threshold jurisdictional
question. When standby counsel filed their notice of intent to
appeal, Defendant had no interest in appealing his sentence.1
We therefore consider whether standby counsel may, against
the wishes of their client, appeal from the district court’s competency determination.
We already have answered that question in the affirmative.
In Mason ex rel. Marson v. Vasquez, 5 F.3d 1220, 1221 (9th
Cir. 1993), a death-sentenced state prisoner sought a writ of
habeas corpus in federal district court. Before his petition
could be heard, the petitioner decided to abandon his petition.
When his lawyer opposed that decision, the petitioner discharged him. The lawyer nevertheless moved the district court
for an order finding the petitioner incompetent to abandon his
petition. The district court convened a competency hearing
1

Shortly before argument, standby counsel informed us that Defendant
has changed his mind and now wishes to endorse this appeal. We need not
decide whether a defendant may withdraw his waiver of appeal, because
standby counsel have standing in their own right to appeal the district
court’s competency ruling. And, because we hold that the district court
made that ruling in error, we need not and do not reach any of standby
counsel’s other arguments. Standby counsel may press those arguments if,
after the competency hearing for which we remand, they deem it appropriate to do so.

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and, at its conclusion, ruled that the petitioner competently
had decided to dismiss his habeas petition. Id.
[2] Undeterred, the lawyer appealed that determination to
this court. Id. at 1223. We held that, in the “unusual circumstance in which the petitioner and his appointed attorney are
actively contesting the petitioner’s competence” as between
themselves, the lawyer, “as a participant for [the petitioner] in
the proceedings, is . . . entitled to appeal the court’s decision
of mental competence, which would otherwise remain unreviewed in a death penalty case.” Id. Indeed, we recognized
that in some cases a lawyer bears an “ethical obligation, acting in the best interest of his client, to contest [his client’s]
competency to dismiss his action.” Id. (citing Lenhard v.
Wolff, 603 F.2d 91, 92-93 (9th Cir. 1979) (per curiam)).
Although “the petitioner is entitled to guide the course of his
litigation, including dismissing his action either on his own or
through an attorney of his choice,” he must be “mentally competent to do so.” Id. His lawyer therefore has limited standing
to appeal from a finding of mental competence to ensure the
validity of a petitioner’s decision to dismiss his habeas petition.
The government would have us distinguish Mason from the
facts here because Mason arose in the context of a habeas proceeding, while this case involves Defendant’s direct appeal.
We see no legal significance in that distinction. A defense
lawyer’s obligation to protect his client from incompetently
waiving the right to a direct appeal is at least as strong as is
the lawyer’s obligation to prevent his client from incompetently dismissing a federal habeas petition. Indeed, in the former circumstance there has been no process by which to
review a defendant’s conviction and sentence, while in the latter circumstance the state courts remain available to perform
such a review.
In Mason, for instance, the California Supreme Court had
considered the merits of the petitioner’s habeas claims three

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times. Id. at 1221. Here, by contrast, no court has had an
opportunity to decide whether the district court afforded
Defendant the process necessary to impose a valid death sentence. Our concern that claims might “otherwise remain unreviewed in a death penalty case,” id. at 1223, is therefore
heightened here, not lessened.
The government argues that Defendant’s competence may
be challenged by a next friend in a habeas proceeding brought
under 28 U.S.C. § 2255, and so the government urges us to
deny standby counsel standing to proceed here and await a
§ 2255 motion. That suggestion ignores our holding in
Mason, 5 F.3d at 1223, that standby counsel have standing for
the limited purpose of appealing the district court’s competency determination. That holding is the law of this circuit,
and we have no authority to decide not to follow it. Miller v.
Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).
[3] In sum, our holding in Mason applies as much in the
context of a direct appeal as it does in the context of a federal
habeas proceeding. Having thus found standby counsel’s
standing firmly established in our precedent, we turn to the
main issue: whether the district court properly found Defendant to be competent without having held a hearing.
C.

The Competency Determination

We begin with first principles. The Constitution provides
criminal defendants with the right to be competent during
trial. Indiana v. Edwards, 554 U.S. 164, 170 (2008) (citing
Dusky v. United States, 362 U.S. 402 (1960) (per curiam), and
Drope v. Missouri, 420 U.S. 162 (1975)). At all times before
his conviction, a defendant must have “a rational as well as
factual understanding of the proceedings against him” and
“sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding.” Id. (internal
quotation marks and emphasis omitted). If a defendant fails to
satisfy either of those requirements, then the proceedings

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against him may go no further. Id. And the competency right
does not end at a conviction. In addition, a defendant must
have the “ ‘capacity to appreciate his position and make a
rational choice’ ” whether to challenge his conviction or sentence on appeal or in post-conviction proceedings. Miller ex
rel. Jones v. Stewart, 231 F.3d 1248, 1250 (9th Cir. 2000)
(quoting Rees v. Peyton, 384 U.S. 312, 313 (1966) (per
curiam)). That standard applies as well when a defendant
decides to abandon an appeal after having properly filed it. Id.
[4] The difficulty in this case arose when Defendant
decided to exercise two other rights given to him by the Constitution. First, he chose to waive his right to counsel and to
represent himself during his penalty phase trial. Second, he
decided to waive his right to appeal his sentence. Neither of
those decisions is valid if not competently made. Id. Here, we
must decide whether the district court properly found Defendant competent with respect to the appeal waiver without having held a hearing on the matter before making its decision.
[5] Congress has set out specific procedures for determining a criminal defendant’s mental competence. 18 U.S.C.
§ 4241. Those procedures apply here because Defendant’s
lawyers moved for a competency hearing before the trial. See
id. § 4241(a) (governing motions for competency hearings
made “[a]t any time after the commencement of a prosecution
. . . and prior to the sentencing of the defendant”). The statute
compels the district court to hold a competency hearing, either
on defense counsel’s motion or on its own motion, “if there
is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering
him mentally incompetent to the extent that he is unable to
understand the nature and consequences of the proceedings
against him or to assist properly in his defense.” Id. We must
decide whether the evidence established “reasonable cause” to
believe that Defendant lacked the competence required to represent himself and to waive his right to an appeal. We think

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that it did and, thus, that the district court erred when it concluded otherwise.2
[6] Standby counsel produced reports from three experts,
all well established and highly regarded in the field of neuropsychiatry, who had examined Defendant personally and had
found him to suffer from—in the words of one of the experts
—“delusional beliefs, paranoia, grandiosity, and psychotic
breaks with reality.” All three experts formed the same opinion that—in the words of another of the experts—Defendant’s
“mental diseases and defects render him incapable of rationally understanding and participating in the proceedings, and
therefore incompetent.”
[7] Standby counsel also produced results from a magnetic
resonance imaging (MRI) study and positron emission tomography (PET) scan of Defendant’s brain. The results of those
tests, according to one of Defendant’s experts, showed “an
unusual brain structure” consistent with behavioral deficits in
“the ability to make rational plans and modulate emotions.”
The expert opined that Defendant’s brain dysfunction contributes to his “severe psychosis” and “elaborate delusional system,” which “render[ ] him unable to have a rational
understanding of the proceedings or to waive his right to
2

The “reasonable cause” standard set out in § 4241(a) tracks the standard for deciding the need for a competency hearing that we have used in
our cases. See de Kaplany v. Enomoto, 540 F.2d 975, 981 (9th Cir. 1976)
(en banc) (holding that, at any time “there is any evidence which, assuming its truth, raises a reasonable doubt about the defendant’s competenc[e],” the trial court “sua sponte must order an evidentiary hearing on the
competency issue”). At times, we have formulated our standard in slightly
different terms, holding that a competency hearing should take place “at
any time that there is ‘substantial evidence’ that the defendant may be
mentally incompetent to stand trial.” Moore v. United States, 464 F.2d
663, 666 (9th Cir. 1972) (per curiam). But both of our formulations lead
to the same bottom line. As we explained in Moore, “[e]vidence is ‘substantial’ if it raises a reasonable doubt about the defendant’s competenc[e]
to stand trial.” Id. Accordingly, the test, whether taken from § 4241(a) or
our cases, is the same.

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counsel and to represent himself.” Defendant’s other two
experts agreed with that conclusion.
In addition to the expert evidence, the district court had
before it several letters written by Defendant in prison while
waiting for his day in court. Often in those letters, Defendant
made philosophical observations and arguments rooted in his
religious beliefs. Some of those arguments appear rational.
For example, Defendant implored his family members not to
testify in his defense because, in his words, “there simply is
no excuse or mitigating evidence to justify or minimize what
I did.” That Defendant wants to accept punishment for his
crimes does not necessarily imply incompetence. See Davis v.
Woodford, 384 F.3d 628, 645 (9th Cir. 2004) (concluding
that, even though the defendant was “recalcitrant and acted in
ways that were detrimental to his case,” the trial judge was
not compelled to hold a competency hearing).
[8] But others of Defendant’s statements are unusual, and
his writings suggest that those unusual beliefs played a significant role in his decisions about how to conduct his defense.
It does not surprise us that different experts interpreted Defendant’s beliefs differently. Defendant’s experts all think that
his beliefs fall too far beyond mainstream religious thought to
be considered rational. The court-appointed experts both disagreed. While recognizing that Defendant’s beliefs fall at the
outer reaches of mainstream theology, those experts did not
find the beliefs unusual enough to be considered delusions.
[9] We express no opinion on which of the experts has the
better of the argument. That decision rests in the first instance
with the district court. We hold only that the evidence
described above creates a “reasonable doubt” about Defendant’s competence, such that § 4241(a) required a full competency hearing before the district court could reach a decision.

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III.

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Conclusion

[10] We remand to the district court for a hearing to determine whether Defendant competently waived his right to
appeal.3 If the court again finds that Defendant competently
waived his right to appeal, then the court should reinstate its
previous order. If the court finds that Defendant did not competently waive that right, then the court should proceed to
determine whether Defendant competently waived his right to
counsel before the penalty phase hearing. If the court further
finds that Defendant did not competently waive his right to
counsel, then it should vacate Defendant’s sentence and convene a new penalty phase hearing with Defendant properly
represented. We express no view on the merits of any of those
issues.
This panel will assume jurisdiction over any future appeals
in this case.
REVERSED and REMANDED with instructions.

3
We recognize that the Supreme Court has cautioned against retrospective assessments of a defendant’s competence. See Pate v. Robinson, 383
U.S. 375, 387 (1966) (rejecting the state’s suggestion to hold a retrospective competency hearing and requiring the state to retry the defendant
instead). But, in circumstances similar to those here, we have held that
such assessments can be made. In particular, “when the record contains
sufficient information upon which to base a reasonable psychiatric judgment,” we have declined to put the government to the expense of a new
trial. Odle v. Woodford, 238 F.3d 1084, 1089-90 (9th Cir. 2001); see also
de Kaplany, 540 F.2d at 986 n.11. Because this record falls comfortably
within that category, we remand for a retrospective competency hearing.