USA v. Tyrone Hine

Filing

OPINION filed [1397530] (Pages: 21) for the Court by Judge Henderson [11-3037]

USCA Case #11-3037

Document #1397530

Filed: 10/02/2012

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2012

Decided October 2, 2012

No. 11-3037
UNITED STATES OF AMERICA,
APPELLEE
v.
TYRONE HINES,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cr-00150-1)

Matthew Gardner Kaiser, appointed by the court, argued
the cause for the appellant.
Suzanne Grealy Curt, Assistant United States Attorney,
argued the cause for the appellee. Ronald C. Machen, Jr.,
United States Attorney, and Roy W. McLeese III and John P.
Mannarino, Assistant United States Attorneys, were on brief.
Elizabeth Trosman, Assistant United States Attorney, entered
an appearance.
Before: HENDERSON and BROWN, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.

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KAREN LECRAFT HENDERSON, Circuit Judge: Appellant
Tyrone Hines was convicted of one count of bank robbery and
two counts of attempted bank robbery and was sentenced to
concurrent terms of 132 months on each count. He challenges
his conviction on the grounds that the district court erred in
failing to hold a competency hearing and in extending the
thirty-day deadline for indicting a defendant following arrest
under the Speedy Trial Act (STA, Act), 18 U.S.C. §§ 3161 et
seq. He also challenges his sentence, asserting the district
court erroneously increased his offense level for obstruction
of justice pursuant to section 3C1.1 of the United States
Sentencing Guidelines (Guidelines) based on a statement he
made at a pre-trial suppression hearing, which the court found
to be deliberately false. Notwithstanding the able and
vigorous advocacy of Hines’s appellate counsel, we affirm
Hines’s conviction and his sentence.
I.
Hines was arrested on March 9, 2010 and charged in a
criminal complaint with the March 4, 2010 attempted robbery
of a BB&T Bank branch in Washington, D.C.1 A magistrate
judge denied Hines’s motion for release from custody and
committed him to government custody, concluding there were
“no conditions that [he] could set that would reasonably
assure [Hines’s] appearance or that he would not commit new
crimes if released, and he should be detained pending trial.”
Detention Mem. at 4, United States v. Hines, Cr. No. 10-150
(D.D.C. Mar. 24, 2010).
Under the STA, the government must indict a defendant
within thirty days after his arrest, 18 U.S.C. § 3161(b), and try
him within seventy days after the indictment, id.
§ 3161(c)—except that a pre-trial detainee, such as Hines,

1

All dates are in 2010 unless otherwise noted.

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must be tried within ninety days after he is first detained, id.
§ 3164(b)2—all subject to the exclusion of “periods of delay”
as authorized under 18 U.S.C. § 3161(h). On April 7 and May
4, a magistrate judge granted joint motions filed by Hines’s
then-counsel and the government seeking two separate,
successive thirty-day “interests-of-justice” continuances to be
excluded from the STA calendar pursuant to 18 U.S.C.
§ 3161(h)(7), which lists as one of the periods which “shall be
excluded in computing the time within which an information
or an indictment must be filed, or in computing the time
within which the trial of any such offense must commence”:

2

The STA provides in relevant part:

(b) Any information or indictment charging an individual
with the commission of an offense shall be filed within
thirty days from the date on which such individual was
arrested or served with a summons in connection with such
charges. . . .
(c)(1) In any case in which a plea of not guilty is entered,
the trial of a defendant charged in an information or
indictment with the commission of an offense shall
commence within seventy days from the filing date (and
making public) of the information or indictment, or from the
date the defendant has appeared before a judicial officer of
the court in which such charge is pending, whichever date
last occurs.
18 U.S.C. § 3161(b)-(c); and:
The trial of any [detained person who is being held in
detention solely because he is awaiting trial] shall
commence not later than ninety days following the
beginning of such continuous detention . . . . The periods of
delay enumerated in section 3161(h) are excluded in
computing the time limitation specified in this section.
Id. § 3164(b).

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Any period of delay resulting from a continuance
granted by any judge on his own motion or at the
request of the defendant or his counsel or at the
request of the attorney for the Government, if the
judge granted such continuance on the basis of his
findings that the ends of justice served by taking
such action outweigh the best interest of the public
and the defendant in a speedy trial. No such period
of delay resulting from a continuance granted by the
court in accordance with this paragraph shall be
excludable under this subsection unless the court sets
forth, in the record of the case, either orally or in
writing, its reasons for finding that the ends of justice
served by the granting of such continuance outweigh
the best interests of the public and the defendant in a
speedy trial.
The stated purpose of each exclusion motion was to allow
ongoing plea negotiations to continue and the second motion
sought as well “an opportunity to complete a mental health
evaluation.” Joint Mot. to Exclude Additional Time Under
the Speedy Trial Act, United States v. Hines, Cr. No. 10-150
(D.D.C. Apr. 30, 2010). Together, the two continuances
extended the indictment deadline to June 7. Shortly after the
second motion was filed, however, Hines informed his
counsel that he did not want a plea offer and, upon being so
notified, the government proceeded with the indictment. On
June 3, the grand jury returned an indictment charging Hines
with three counts: (1) robbery of a Citibank branch on
February 26; (2) attempted robbery of a Bank of America
branch on March 4; and (3) attempted robbery of the BB&T
Bank branch on March 4 (all in violation of 18 U.S.C.
§ 2113(a)).
Hines was arraigned on June 16 and pleaded not guilty.
At the arraignment, the district court asked Hines’s counsel

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about the nature of the two STA exclusions, in particular
whether they applied to both the thirty-day indictment
deadline and the additional ninety-day trial deadline or only to
the former. Counsel responded that she did not believe her
client “specifically agreed to any exclusion of time, other than
the exclusion of time within which to indict him” and that he
“was excluding time within which the Government would
have to indict him to give [her] an opportunity to present to
him the best plea offer.” Tr. of Arraignment at 8, 10, United
States v. Hines, Cr. No. 10-150 (D.D.C. June 16, 2010). She
also informed the court the mental health evaluation
mentioned in the second motion to exclude “was at [her]
request,” was “still an ongoing process” and “was done for the
purposes of trying to convince the Government to give
[Hines] a better plea offer.” Id. at 7. Concluding the matter
was not “as clear-cut as it might be,” the court indicated it
would examine the record further and invited counsel to file a
written explanation of her position. Id. at 9. Later during the
proceedings, counsel informed the court that Hines had
“expressed dissatisfaction with her representation.” Id. at 22.
After questioning Hines about his willingness to proceed with
his current counsel, and explaining to Hines that appointing
new counsel would delay the case, the court agreed to look
into finding new counsel to represent him. On June 21, the
district court conducted a status hearing at which new counsel
represented Hines. The government moved to exclude from
the STA calendar the period from June 26 to July 7 to make
up for the delay caused by changing counsel.3 Hines agreed
to the exclusion.

3

The government explained that “previous defense counsel was
prepared to file [certain motions] on the 26th and new defense counsel
understandably needs until July 7th.” Tr. of Status Hr’g at 20, United
States v. Hines, Cr. No. 10-150 (D.D.C. June 21, 2010).

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On July 19, Hines moved the court for release pending
trial, asserting “a violation of his rights under the [STA].”
Mot. to Recons. Def.’s Bond at 1, United States v. Hines, Cr.
No. 10-150 (D.D.C. July 19, 2010). According to the motion,
Hines’s first lawyer “excluded the time to indict [Hines], but
did not exclude the time to bring [him] to trial” so that “[t]he
ninety-day (90) period for [Hines] to go to trial tolled on
Monday June 7, 2010 and therefore [he] should be released
pending his trial.” Id. at 2. The district court denied the
motion on the ground that a continuance under section
3161(h) “appl[ies] both in calculating the time within which
an indictment must be filed under section 3161(b) as well as
in calculating the time within which a trial must begin under
either section 3161(c)(1) or section 3164(b).” Mem. Order at
6, United States v. Hines, Cr. No. 10-150 (D.D.C. July 30,
2010) (citing U.S.C. §§ 3161(h), 3164(b)).
In a July 30 hearing, Hines informed the court that he and
his second lawyer were experiencing “irreconcilable
differences,” Tr. of Status Hr’g at 23, United States v. Hines,
Cr. No. 10-150 (D.D.C. July 30, 2010), but ultimately agreed
he was “satisfied” and would “work with” his lawyer, id. (ex
parte) at 7. Nonetheless, on August 23, his lawyer filed a
motion to withdraw as counsel, citing “irreconcilable
differences which have resulted in the parties[’] inability to
discuss the case.” Mot. to Withdraw as Counsel for Def. at 1,
United States v. Hines, Cr. No. 10-150 (D.D.C. Aug. 23,
2010). At the hearing on the motion, Hines recited various
objections to his lawyer’s representation.
Despite its
skepticism of Hines’s complaints, the court agreed to appoint
new counsel.
Meanwhile, at an August 8 evidentiary hearing on
Hines’s two motions to suppress, the court had asked Hines’s
second lawyer if a mental evaluation had ever been
performed. Counsel reported that it had but “they did not find

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that there were any issues that rose to the level of not being
competent.” Tr. of Mot. Hr’g at 5, United States v. Hines, Cr.
No. 10-150 (D.D.C. Aug. 8, 2010). The court concluded
“there didn’t appear to be any competency issues” and
counsel agreed. Id. at 8.
At a status hearing on August 11, the court denied the
motions to suppress, in part because it discredited Hines’s
claim that he was interviewed and confessed on March 10,
rather than on March 9, as the government witnesses and
other evidence indicated. Hines, she observed, “could be
confused or decided based on his own legal research that he
could raise an issue to get his confession suppressed by
changing the timing.” Tr. of Status Hr’g at 18, United States
v. Hines, Cr. No. 10-150 (D.D.C. Aug. 11, 2010). At the
hearing, the court again observed—this time in the context of
Hines’s Miranda rights waiver—that the mental health
evaluation had not raised any competency issues with him.
At an August 30 status hearing, Hines’s third
lawyer—who had just been appointed—reported that the first
defense counsel had agreed to obtain a written assessment
from the psychologist who had assessed Hines’s mental health
and stated that his brief conversations with Hines had not
raised any competency concerns with him.
Hines’s criminal trial began on October 26. The
government presented overwhelming evidence of Hines’s
guilt—including his confession to all three offenses, his
identification by one of the tellers, his image on bank
surveillance tapes and his fingerprints on a note demanding
$5,000 from the BB&T Bank teller. Hines elected not to
present any evidence. The jury retired to deliberate shortly
after 3:00 p.m. on October 27 and around noon the next day
returned a verdict of guilty on all three counts of the
indictment.

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Hines was sentenced on March 30, 2011. Expressly
adopting the pre-sentencing report, the court calculated a
Guidelines sentencing range of 140 to 175 months, based on a
criminal history of V and an adjusted offense level of 29,
including a two-point enhancement for obstruction of justice
premised on the court’s factual finding “by clear and
convincing” evidence at the August 11 status hearing that
Hines’s suppression hearing testimony regarding the date of
his interview and confession “was false” and Hines
“deliberately lied.” Tr. of Sentencing Hr’g at 21, United
States v. Hines, Cr. No. 10-150 (D.D.C. Mar. 30, 2011). The
court then sentenced Hines to concurrent terms of 132 months
on each count, to be followed by a three-year period of
supervised release, and ordered him to pay three $100 special
assessments and restitution of $5,000.
Hines timely appealed his conviction and sentence.
II.
We address Hines’s three grounds for appeal separately.
A. Speedy Trial Act
First, Hines contends the district court should have sua
sponte dismissed the indictment because he was not indicted
within thirty days after his arrest as required under the STA,
18 U.S.C. § 3161(b). In particular, Hines argues that the two
thirty-day continuances the court ordered when it granted the
joint motions by Hines and the government were not properly
subtracted because the court did not set out in the record
adequate “reasons for finding that the ends of justice served
by the granting of such continuance outweigh the best
interests of the public and the defendant in a speedy trial”
pursuant to 18 U.S.C. § 3161(h)(7)(A). Accordingly, he
asserts, his “rights under the Speedy Trial Act were violated”
and “the indictment against him should be dismissed.”
Appellant’s Br. at 48. We need not decide the propriety of the

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two continuances because, under 18 U.S.C. § 3162(a)(2),
Hines waived his right to dismissal by failing to move to
dismiss the indictment before his trial commenced.
In construing section 3162(a)(2)’s waiver provision, we
“[p]roceed[] as we must from the fundamental canon that
statutory interpretation begins with the language of the statute
itself.” United States v. Hart, 324 F.3d 740, 745 (D.C. Cir.
2003) (quotation marks omitted). Section 3162(a) provides:
(a)(1) If, in the case of any individual against
whom a complaint is filed charging such individual
with an offense, no indictment or information is filed
within the time limit required by section 3161(b) as
extended by section 3161(h) of this chapter, such
charge against that individual contained in such
complaint shall be dismissed or otherwise dropped.
In determining whether to dismiss the case with or
without prejudice, the court shall consider, among
others, each of the following factors: the seriousness
of the offense; the facts and circumstances of the
case which led to the dismissal; and the impact of a
reprosecution on the administration of this chapter
and on the administration of justice.
(2) If a defendant is not brought to trial within
the time limit required by section 3161(c) as
extended by section 3161(h), the information or
indictment shall be dismissed on motion of the
defendant. The defendant shall have the burden of
proof of supporting such motion but the Government
shall have the burden of going forward with the
evidence in connection with any exclusion of time
under subparagraph 3161(h)(3). In determining
whether to dismiss the case with or without
prejudice, the court shall consider, among others,
each of the following factors: the seriousness of the

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offense; the facts and circumstances of the case
which led to the dismissal; and the impact of a
reprosecution on the administration of this chapter
and on the administration of justice. Failure of the
defendant to move for dismissal prior to trial or
entry of a plea of guilty or nolo contendere shall
constitute a waiver of the right to dismissal under
this section.
18 U.S.C. § 3162(a)(1)-(2) (emphasis added). Although the
italicized waiver language appears only in subsection (a)(2)
(addressing tardy-trial dismissals) and not in subsection (a)(1)
(addressing tardy-indictment dismissals), as we observed in
United States v. Bittle, 699 F.2d 1201 (D.C. Cir. 1983), the
waiver provision may well apply to both subsections. See
Bittle, 699 F.2d at 1207 n.15 (“Perhaps the provision in
subsection (a)(2) governs subsection (a)(1) because the
provision refers to ‘section’ rather than ‘subsection,’ but we
need not decide this issue.” (emphases added)); cf. United
States v. Taylor, 497 F.3d 673, 676 n.3 (D.C. Cir. 2007)
(“[U]nder § 3162(a)(2), a defendant’s failure to ‘move for
dismissal prior to trial’ constitutes waiver of § 3161(c) claims.
It is unclear whether [the defendant’s] motion to dismiss
based on a separate provision [§ 3161(b)] suffices to avoid
waiver.”). Since Bittle, three of our sister circuits have so
construed the waiver language.
See United States v.
Spagnuolo, 469 F.3d 39, 44 (1st Cir. 2006) (“Applying the
normal rules of statutory construction leads us to conclude
that the motion and waiver provision of § 3162(a)(2) also
applies to § 3162(a)(1) speedy indictment claims, because
‘section’ must refer to all of § 3162, and not just to the
paragraph in § 3162 where the motion and waiver provision
was (improvidently) located.”); United States v. Brown, 287
F.3d 684, 687–88 (8th Cir. 2002) (“[W]e conclude that Brown
waived his right to appeal the speedy trial issue when he
failed to seek a dismissal of the indictment prior to trial.”

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(citing 18 U.S.C. § 3162(a)(2))); United States v. Gamboa,
439 F.3d 796, 803–04 (8th Cir. 2006) (citing 18 U.S.C.
§ 3162(a)(2) and concluding defendant waived his right to
raise a speedy-indictment issue on appeal by failing to move
for dismissal on that ground before trial in district court);
United States v. Lewis, 980 F.2d 555, 560 (9th Cir. 1992) (“A
defendant seeking to dismiss a case for a claimed violation of
the STA’s speedy indictment provisions must move for
dismissal prior to trial (although not necessarily before
indictment) or he waives his right to dismissal under
§ 3162(a)(1)” (emphasis in original)), abrogated on other
ground by Bloate v. United States, 130 S. Ct. 1345 (2010).
We do so now as well.
The Congress “ordinarily adheres to a hierarchical
scheme in subdividing statutory sections,” which scheme
uses, successively, “subsections” (e.g., “(a)”), “paragraphs”
(e.g., “(1)”), subparagraphs (e.g., “(A)”) and “clauses” (e.g.,
“(i)”). Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50,
60-61 (2004). Elsewhere in the STA, the Congress used its
customary language. See, e.g., 18 U.S.C. § 3161(d)(2) (“The
sanctions of section 3162 apply to this subsection.”), (h)(3)(B)
(“For purposes of subparagraph (A) of this paragraph . . . .”),
(h)(7)(B)(iv) (referring to “clause (ii)”) (emphases added).
Thus, had the Congress intended to limit the waiver provision
to dismissals for untimely trials only (and not extend it to
untimely indictments as well), we would expect the statute to
read: “Failure of the defendant to move for dismissal prior to
trial or entry of a plea of guilty or nolo contendere shall
constitute a waiver of the right to dismissal under this
paragraph”—or perhaps even “under this subsection,” see
Bittle, 699 F.2d at 1207 n.15. As written, however, the
language provides for waiver of the right to dismissal under
the entire section, including dismissal both for an untimely
indictment and for an untimely trial. Accord Spagnuolo, 469
F.3d at 44.

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The literal construction of the waiver provision (applying
to both (a)(1) and (a)(2) dismissals) is also supported by its
legislative history. The House of Representatives Report on
the 1975 House bill that enacted section 3162—and it was the
House bill that was subsequently enacted by both chambers of
the Congress—appears to treat indictment and trial dismissals
identically, requiring that in either case the defendant file a
motion to dismiss and providing that he waives the right to
dismissal if he does not so move before his trial begins:
Dismissal with prejudice
In the event that the time limits of the bill,
subject to the various exclusions, are not met, the
court on motion of the defendant may dismiss the
complaint, information or indictment against the
individual. This sanction applies to both the period
between arrest and indictment and between
indictment and trial. The effect of a dismissal would
be to bar any future prosecution against the
defendant for charges arising out of the same
conduct. Dismissal with prejudice would apply to
those offenses which were known or reasonably
should have been known at the time of dismissal. A
defendant must move to dismiss the case prior to
trial, entry of a plea of guilty or nolo contendere, or
he waives the right of dismissal with prejudice on
grounds that the requirements of this legislation
were not met. [Section 3162(a)].
H.R. Rep. No. 93-1508, at 23 (1974), reprinted in 1974
U.S.C.C.A.N. 7401, 7416 (emphases added).
Moreover, applying the waiver to section 3162(a)(1)
dismissal is also consistent with the waiver provision’s
purpose. The United States Supreme Court has observed that
section 3162(a)(2)

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serves two unrelated purposes. First, § 3162(a)(2)
assigns the role of spotting violations of the Act to
defendants—for the obvious reason that they have
the greatest incentive to perform this task. Second,
by requiring that a defendant move before the trial
starts or a guilty plea is entered, § 3162(a)(2) both
limits the effects of a dismissal without prejudice (by
ensuring that an expensive and time-consuming trial
will not be mooted by a late-filed motion under the
Act) and prevents undue defense gamesmanship.
Zedner v. United States, 547 U.S. 489, 502-03 (2006)
(footnote omitted). These same two purposes apply equally to
dismissal of an indictment under section 3162(a)(1). Without
the waiver provision, a defendant has no incentive to police
the government’s compliance with the STA’s indictment
deadlines. More importantly, without the waiver constraint a
defendant may freely game the system by rolling the dice on a
trial and then seeking a section 3162(a)(1) dismissal for
failure to timely indict—if he is unhappy with the
result—putting the prosecution and the court through the time,
effort and expense of a trial that may subsequently be mooted
at the defendant’s whim. See Spagnuolo, 469 F.3d at 44 (“The
Act created incentives both for compliance by the government
and for enforcement by defendants. It would be odd to use a
different set of incentives for the two situations of speedy
indictment and speedy trial. Under both, a defendant must
move promptly, or waive his rights.”).
Applying the waiver to tardy-indictment dismissals is
also consistent with other provisions of the Act, which
generally (but for the different deadlines for each) treat
indictments and trials identically. Significantly, for example,
the STA treats an exclusion under section 3161(h) as having
the same effect on both the time for indictment and the time
for trial. See 18 U.S.C. § 3161(h) (“The following periods of

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delay shall be excluded in computing the time within which
an information or an indictment must be filed, or in
computing the time within which the trial of any such offense
must commence: . . . .” (emphasis added)). Given the
Congress’s gamesmanship concern, we see no reason it would
have foreclosed a trial-time challenge once a trial begins,
while freely allowing through appeal an identical challenge to
the exclusion as applied to the time for indictment.
Hines raises a single argument in his reply brief opposing
the government’s waiver assertion. He urges that finding
waiver would be contrary to the Supreme Court’s decision in
Zedner. There, the Court concluded that a defendant had not
effectively waived his right to a speedy trial when, at the
district judge’s urging, he signed “a blanket, prospective
waiver of his rights under the Act,” waiving them “for all
time.” Zedner, 547 U.S. at 492, 494 (quotation marks
omitted). The Court reasoned that the STA “was designed
with the public interest firmly in mind” and “[t]hat public
interest cannot be served, the Act recognizes, if defendants
may opt out of the Act entirely.” Id. at 501. Thus, the Court
explained, “[a]llowing prospective waivers would seriously
undermine the Act because there are many cases—like the
case at hand—in which the prosecution, the defense, and the
court would all be happy to opt out of the Act, to the
detriment of the public interest.” Id. at 502. Waiver under
section 3162(a)(2), however, is not prospective but
retrospective, is authorized under the Act and is consistent
with its policies. See id. (“The sort of retrospective waiver
allowed by § 3162(a)(2) does not pose a comparable danger
because the prosecution and the court cannot know until the
trial actually starts or the guilty plea is actually entered
whether the defendant will forgo moving to dismiss. As a

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consequence, the prosecution and the court retain a strong
incentive to make sure that the trial begins on time.”).4
Accordingly, we conclude that under section 3162(a)(2)’s
waiver provision, Hines waived his right to seek dismissal
under section 3162(a)(1) based on an untimely indictment.5
B. Competency Hearing
Hines next challenges the district court’s failure to order
a competency hearing ex mero motu. We review the district
court’s failure to so order for abuse of discretion. United
States v. Jones, 642 F.3d 1151, 1159 (D.C. Cir. 2011); United
States v. Perez, 603 F.3d 44, 47 (D.C. Cir. 2010).
“A defendant has a right to a competency hearing ‘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

4

Under this reasoning, we cannot uphold the interests-of-justice
exclusions solely on the ground that Hines himself voluntarily
approved them—we would also have to examine the adequacy of the
district court’s findings supporting the exclusions. See Zedner, 547
U.S. at 500-01 (“The purposes of the Act also cut against exclusion on
the grounds of mere consent or waiver. If the Act were designed
solely to protect a defendant’s right to a speedy trial, it would make
sense to allow a defendant to waive the application of the Act. But the
Act was designed with the public interest firmly in mind.”).
5

Apart from the parties’ waiver discussions, Hines asserts that his
second lawyer was ineffective in failing to move for dismissal based
on the untimely indictment at the same time he moved for Hines’s
release under 18 U.S.C. § 3164(c). Given the facts in this case,
counsel’s failure to move for dismissal was not “outside the wide
range of professionally competent assistance.” Strickland v.
Washington, 466 U.S. 668, 694 (1984).

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proceedings against him or to assist properly in his defense.’ ”
Jones, 642 F.3d at 1159 (quoting 18 U.S.C. § 4241(a)).
“Competence to stand trial requires ‘sufficient present ability
to consult with his lawyer with a reasonable degree of rational
understanding and . . . a rational as well as factual
understanding of the proceedings against him.’ ” United
States v. Klat, 213 F.3d 697, 702 n.5 (D.C. Cir. 2000)
(quoting Dusky v. United States, 362 U.S. 402, 402 (1960))
(internal quotation marks omitted). The district court had no
reason to believe Hines lacked such competence. Among the
factors a court must consider are “a defense attorney’s view
about the competence of her client” and “the professional
evaluation of a psychologist.” Jones, 642 F.3d at 1160 (citing
Drope v. Missouri, 420 U.S. 162, 178 n.13 (1975)). Here the
court considered both factors and reasonably found they
provided no basis to question Hines’s competence.
Hines’s first counsel gave no indication she thought him
incompetent to stand trial. Although she requested a mental
health evaluation, she did so only “for the purpose of trying to
convince the Government to give [Hines] a better plea offer.”
Arraignment Tr. at 7.
Hines’s second lawyer informed the court that he had
talked to the person who performed the evaluation and
reported “they did not find that there were any issues that rose
to the level of not being competent.” Aug. 8, 2010
Suppression Mot. Hr’g Tr. at 5. The court responded: “I
guess from my perspective the evaluation indicated there
didn’t appear to be any competency issues. . . . [I]s there an
issue that needs to be raised at this point in the context of . . .
his competency now . . . ?” Id. at 8. Counsel replied:
I don’t believe so, Your Honor. I think that—the
only thing that I can say is that I think there are times
when I thought I might have had that sense, but in
more and more dealing with [Hines], it’s not my

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impression that he has a competency issue, but I’m
not an expert. But to the extent that I can say, I think
that the more that I’ve dealt with [Hines], the more I
have a better understanding of some of the things
that he raises and why, and some of the adamancies,
for lack of a better word, therefrom. . . . But not that
I can say at this point, to the point where I’d say, oh,
he has a competency issue where he doesn’t
appreciate what’s going on.
Id. The Court then stated: “So, it sounds as if the evaluation
that [Hines’s first counsel] did doesn’t raise an issue, and you
in dealing with him, which his competency really to a large
degree comes up to what does he understand, can he
participate, defend himself, et cetera.” Counsel responded:
“Right.” Id. at 8-9. A few days later at the status hearing
denying Hines’s motions to suppress, the court observed that
Hines had been “examined by a psychologist at the request of
the defense counsel” and “[t]he findings show no competency
issues which would reflect on whether any mental incapacity
to interfere with his understanding his rights.” Aug. 11, 2010
Status Hr’g Tr. at 26.
Finally, during the first status hearing after he was
appointed counsel, Hines’s third lawyer told the court that his
“brief discussions” with Hines had not “raised a concern with
[him] that . . . there [was] anything going on that ha[d] a
bearing on his ability to communicate with counsel or to
effectively assist in structuring a defense.” Tr. of Status Hr’g
at 4, United States v. Hines, Cr. No. 10-150 (D.D.C. Aug. 30,
2010). At the sentencing, moreover, the lawyer assured the
court: “I’m not . . . requesting of the Court any kind of
forensic evaluation of [Hines] at this point. I do believe he’s
competent.” Sentencing Tr. at 3. All of the foregoing
evidence supports the court’s repeated opinion that Hines
presented no competency issues.

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Hines offers three grounds for rejecting the trial court’s
competency determination: (1) Hines was previously found
not guilty by reason of insanity (NGI) in a Virginia state
criminal prosecution; (2) he stated he had been diagnosed as
bipolar, apparently in 2009; and (3) his “conduct throughout
th[e] case leaves little doubt that he was unable to assist
counsel.” Appellant’s Br. at 26.
Regarding the NGI verdict, it came to light only after trial
and, as the district court observed, Hines’s lawyer in the
Virginia case had objected to the NGI verdict and the Virginia
judge had “made no findings” about it. Sentencing Hr’g Tr. at
4. Tellingly, the fact of a NGI verdict suggests the Virginia
court considered Hines competent at the time of his trial
(whatever his mental condition at the time of the crime).
Thus, the mere fact of the NGI verdict says nothing about
competence vel non at the time of his trial in October 2010.
Moreover, whether or not an accurate bipolar diagnosis
may have been made in 2009, as Hines asserted, the recent
July 2010 mental health evaluation Hines’s first lawyer
requested expressly “ruled out any bipolar disorder.”
Sentencing Hr’g Tr. at 38.
Finally, Hines’s conduct leading up to trial displayed an
awareness of the proceedings’ nature and significance and he
took an active (if sometimes misguided) role in his defense.
As the court observed, Hines “had ideas and some of them
may be fixed, but [he is] entitled to have [his] own ideas.”
Sentencing Hr’g Tr. at 7. Even if ill-advised, his proposed
defense strategies did not create reasonable cause to believe
him incompetent to stand trial. See Perez, 603 F.3d at 48
(“Although [the defendant] may have held dubious legal
views and pursued an inadvisable strategy, none of this
provided reasonable cause for the district court to question his
competence to stand trial. As the Seventh Circuit has
recognized, ‘persons of unquestioned competence have

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espoused ludicrous legal positions, but the articulation of
unusual legal beliefs is a far cry from incompetence.’ ”
(quoting United States v. Alden, 527 F.3d 653, 660 (7th Cir.
2008))).6
C. Obstruction of Justice Enhancement
Finally, Hines asserts the district court improperly
imposed a 2-point enhancement for obstruction of justice
based on its finding that he deliberately misrepresented that he
was not interviewed until March 10, 2010 when in fact he was
interviewed and confessed on March 9, 2010. We reject this
contention as well.
Hines argues that the district court’s finding at the March
30, 2011 sentencing hearing that he “deliberately lied” about
the date of his interview, Sentencing Hr’g Tr. at 21, is
inconsistent with its earlier statement at the August 11 status
hearing that Hines “could be confused or decided based on his
own legal research that he could raise an issue to get his

6

We reject outright Hines’s suggestion that the district court was
required to conduct a competency simply because it “questioned” his
competency to stand trial. Appellant’s Br. at 25. The court asked
about Hines’s mental state solely because one of the STA exclusion
motions sought time for a mental health examination—which Hines’s
counsel acknowledged was a strategic move intended to secure a more
favorable plea offer. Neither the fact of the examination nor the
court’s consequent inquiry regarding Hines’s mental health manifested
a reasonable cause to believe he was not competent to stand trial. See
Perez, 603 F.3d at 47-48; 18 U.S.C. § 4241(a). To the contrary, the
court made clear that it found that Hines presented no “competency
issues,” Aug. 8, 2010 Suppression Mot. Hr’g Tr. at 8, and, given all of
the evidence cited supra, this determination was not an abuse of
discretion.

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confession suppressed by changing the timing.”7 Aug. 11,
2010 Status Hr’g Tr. at 18. Not so. As the court explained at
sentencing, it made no finding of intent at the earlier hearing:
So, as part of my Court findings, I didn’t conclude or
make a finding one way or the other about his intent
or motivation for the false testimony, it was
immaterial at that time. I did make a finding I didn't
believe him by not crediting his testimony. All of the
evidence pointed to and supported March 9th as the
correct date. And even his own videotaped statement
supported March 9th as the date, and I made that
finding at the hearing for suppression.
Sentencing Hr’g at 20. At sentencing, however, when it came
time to make a finding on a U.S.S.G. § 3C1.1 obstruction of
justice enhancement, the court made an express finding “by
clear and convincing” evidence that Hines’s testimony
regarding the date of the confession “was false” and that
Hines “deliberately lied.” Sentencing Hr’g Tr. at 21. In so
finding, the court noted that at the status hearing (the

7

The court found it particularly significant that Hines had “done
. . . legal research” regarding the timing of his statement. Sentencing
Tr. at 22. The court “observed his demeanor” at the suppression
hearing and found that “he knew exactly what he was saying and why
he was claiming it was March 10th and not March 9th.” Id. The court
explained at the August 11 status hearing:
As the defendant testified, he had done legal research. He
testified that from arrest to the time of the statement it had
to be from three to six hours but not more than eight hours.
The Court would note that from arrest to statement, in D.C.
Superior Court, the time limit is three hours, in Federal
Court it is six hours for the confession to be admissible, if
it’s voluntary and conforms to other requirements.
Aug. 11, 2010 Status Hr’g Tr. at 18-19.

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transcript of which the court had reviewed before sentencing),
when asked about his videotaped interview and confession,
Hines “repeatedly stated, quote: I remember it was the 10th.
Unquote. Quote: I remember it was the l0th because I was
arrested on the 9th. Unquote.” Id. The court added: “He
never states he was confused, he can’t recall or equivocates in
any way. He makes a very definitive statement that the
interview was on March 10th.” Id. at 21-22. The court’s
finding of fact is “to be affirmed unless clearly erroneous.”
United States v. Davis, 635 F.3d 1222, 1224 (D.C. Cir. 2011).
Given the testimony on which the court relied, its finding is
not clearly erroneous.
For the foregoing reasons, Hines’s conviction and
sentence are affirmed.
So ordered.

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