UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 94-5700

MICHAEL KOKOSKI,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, District Judge.
(CR-92-90)

Argued: February 2, 1996

Decided: April 17, 1996

Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

COUNSEL: David L. White, BRUMFIELD & WATSON, Bluefield,
West Virginia, for Appellant. Miller Allison Bushong, III, Assistant
United States Attorney, Charleston, West Virginia, for Appellee. ON
BRIEF: Rebecca A. Betts, United States Attorney, John C. Parr,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Michael Kokoski conditionally pled guilty to knowingly and inten-
tionally employing a person under age 18 to distribute lysergic acid
diethylamide (LSD). See 21 U.S.C. §§ 841(a)(1), 861(a)(1). He was
sentenced to 144 months imprisonment. On appeal Kokoski argues
that (1) the determination that he was competent to stand trial was
clearly erroneous, (2) the procedures used to determine his compe-
tency violated due process, and (3) the denial of a three-level reduc-
tion under USSG § 3E1.1 for acceptance of responsibility was
erroneous. Finding no error, we affirm.

I.

On July 14, 1992, Kokoski was indicted for conspiracy to distribute
and possession with intent to distribute LSD and marijuana, see 21
U.S.C. § 846, two counts of distributing LSD to an individual under
age 21, see 21 U.S.C. §§ 841(a)(1), 859, and employing a person
under age 18 to distribute LSD, see 21 U.S.C§§ 841(a)(1), 861(a)(1).

On September 8, 1992, Kokoski's counsel moved for a pretrial
mental competency evaluation. The court granted the motion and
Kokoski was sent to the Federal Correctional Institution at Butner
("Butner") for a thirty-day evaluation. Byron Herbel, M.D. and Rush-
ton A. Backer, Ph.D. staff psychologist, completed a report conclud-
ing that Kokoski was suffering from an unspecified psychotic
disorder that rendered him incompetent. However, they said there was
a "substantial probability that Mr. Kokoski's competency can be
restored with treatment," including administration of antipsychotic
drugs.

On November 5, 1992, the district court held a competency hearing
and, based on the Butner staff conclusions, committed Kokoski to

                    2
Butner for a four-month treatment period. In February 1993 Butner
began administering Kokoski antipsychotic medication. On March 1,
1993, the court granted Butner's request to extend the treatment
period an additional four months based upon the facility's representa-
tion that Kokoski would attain competency. On June 7, 1993, Dr.
Herbel and Dr. Backer completed another report. Although it again
concluded that Kokoski was not yet competent, it opined that there
remained a "substantial probability that in the foreseeable future he
will attain the capacity to permit the trial to proceed." On July 11,
1993, the court held another competency hearing and ordered
Kokoski returned to Butner for further treatment.

Butner certified Kokoski as competent on September 24, 1993. The
treatment team stated that "the antipsychotic medication that he is
currently taking appears to be helpful to him." It also said that "the
primary diagnosis is now listed as Malingering." Counsel for Kokoski
challenged the competency finding and requested the opportunity to
depose Dr. Herbel and Dr. Backer. The district court granted the
request.

On November 18, 1993, the district court reviewed the deposition
transcripts and conducted another competency hearing. The court
determined that the depositions were "inconclusive and not very help-
ful because it was unclear whether the defendant's competency was
restored as a result of the antipsychotic drugs and whether he would
be competent to stand trial without the benefit of the drugs." Because
it was unable to reach a decision, the court again ordered Kokoski to
be evaluated, this time with a "clean slate." He was committed to the
Federal Medical Camp Rochester where he was evaluated by M. A.
Conroy, Ph.D., who was not furnished with Kokoski's records from
Butner. Dr. Conroy found evidence of a long-standing thought disor-
der and evidence of malingering. Dr. Conroy concluded that the
weight of the evidence supported genuine mental illness and declared
Kokoski incompetent.

At still another competency hearing on January 28, 1994, the court
approved the United States' request to have the case reviewed by an
expert in the field of malingering. The court invited Kokoski to select
his own expert, but he did not do so. The government's expert, Rich-

                    3
ard Rogers, Ph.D., rendered an opinion that Kokoski was competent
to stand trial and that he was malingering.

On March 30, 1994, the court conducted its final competency hear-
ing at which all doctors who had evaluated Kokoski since September
1992 testified. Dr. Herbel testified that Kokoski had been malinger-
ing. Dr. Backer said that Kokoski was competent to stand trial, with
or without medication, and that Kokoski's malingering had fooled the
Butner team for some time. Dr. Conroy testified that she found evi-
dence of incompetency and malingering, but that the preponderance
of the evidence suggested incompetence. Finally, Dr. Rogers con-
cluded that Kokoski was malingering and that if Kokoski suffered
from a coexisting psychological disorder, it was not significant
enough to impair his ability to stand trial. He also concluded that
Kokoski was competent without medication.

In a thorough opinion, the district court concluded that Kokoski
was competent and that he was malingering. United States v. Kokoski,
865 F. Supp. 325, 330-36 (S.D. W. Va. 1994). The court believed that
Kokoski's behavior was a "scheme devised by him to avoid going to
trial or accepting responsibility for his conduct." Id. at 338.

On the day of trial, Kokoski conditionally pled guilty to knowingly
and intentionally employing a person under age 18 to distribute LSD.
At Kokoski's sentencing the court concluded that Kokoski had not
accepted responsibility for his actions. The court found that Kokoski
had intentionally faked his illness in order to avoid responsibility for
his crimes and that he had shown no remorse. The court sentenced
him to 144 months imprisonment. This appeal followed.

II.

Kokoski first contends that the district court erred in finding him
competent to stand trial. He insists that the court failed to appreciate
that malingering and mental disorders can and do coexist. Thus,
despite evidence of malingering, Kokoski says he was nonetheless
incompetent to stand trial. We disagree.

                     4
A defendant is competent to stand trial if "he has sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding and [ ] has a rational as well as factual understanding
of the proceedings against him." Dusky v. United States, 362 U.S.
402, 402 (1960).1 The district court's competency finding will not be
disturbed unless clearly erroneous. United States v. Hogan, 986 F.2d
1364, 1372 (11th Cir. 1993).

Here, all four doctors who testified at the final hearing offered evi-
dence of malingering. Dr. Backer and Dr. Rogers testified that they
believed Kokoski was competent without medication. And Dr. Rogers
testified that even if Kokoski suffered from a mental disorder that
coexisted with his malingering, the disorder was not substantial
enough to render him incompetent to stand trial. We think this testi-
mony amply supports the district court's competency finding.

III.

Kokoski argues that the district court's failure to adhere to 18
U.S.C. § 4241 and related statutory provisions denied him due pro-
cess of law. Section 4241 prescribes procedures for determining a
defendant's competency to stand trial.2 Kokoski cites four errors
which we address in turn.
_________________________________________________________________

1 This is also the standard for competency to enter a guilty plea.
Godinez v. Moran, 113 S. Ct. 2680, 2685 (1993).
2 The statute reads in pertinent part:

          § 4241. Determination of mental competency to stand trial

***

          (d) Determination and disposition.--If, after the hearing, the
          court finds by a preponderance of the evidence that the defendant
          is presently 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, the court shall
          commit the defendant to the custody of the Attorney General.
          The Attorney General shall hospitalize the defendant for treat-
          ment in a suitable facility--

                    5
He first argues that § 4241(d) limits the time he may be hospital-
ized to eight months: "a reasonable period of time, not to exceed four
months" and "an additional reasonable period of time," which he says
is also limited to four months. See #8E8E # 4241(d)(1) & (2). We reject this
argument. We think "an additional reasonable period of time" means
some reasonable, but statutorily undefined, period of time. United
States v. Ecker, 30 F.3d 966, 969 (8th Cir.) cert. denied, 115 S. Ct.
679 (1994). Here, we find that Kokoski's eighteen-month confine-
ment was reasonable. Every report issued before the Butner staff
declared Kokoski competent indicated that he was likely to regain
competency. The final six months of his confinement were necessary
to challenge and clarify Butner's conclusion. In light of the district
court's careful adherence to statutory procedures, we believe that
_________________________________________________________________
           (1) for such a reasonable period of time, not to exceed four
           months, as is necessary to determine whether there is a sub-
           stantial probability that in the foreseeable future he will
           attain the capacity to permit the trial to proceed; and

         (2) for an additional reasonable period of time until--

         (A) his mental condition is so improved that trial may
         proceed, if the court finds that there is a substantial proba-
         bility that within such additional period of time he will
         attain the capacity to permit the trial to proceed; or

         (B) the pending charges against him are disposed
         according to law;

         whichever is earlier.

         If, at the end of the time period specified, it is determined that
         the defendant's mental condition has not so improved as to per-
         mit the trial to proceed, the defendant is subject to the provisions
         of section 4246 [which prescribes steps to be taken if a defendant
         has not been found competent].

         (e) Discharge.-- When the director of the facility in which a
         defendant is hospitalized pursuant to subsection (d) determines
         that the defendant has recovered to such an extent that he is able
         to understand the nature and consequences of the proceedings
         against him and to assist properly in his defense, he shall
         promptly file a certificate to that effect with the clerk of the court
         that ordered the commitment. . . .

                    6
Kokoski's confinement was reasonable. See id. (confinement during
seven competency evaluations spanning nearly four years not unrea-
sonable).

Kokoski next argues that the district court failed to make findings,
prior to several confinements, that "there [was] a substantial probabil-
ity that . . . he [would] attain" competency. § 4241(d)(2)(A). The find-
ings that were made, he says, lacked factual support. He also argues
that he was entitled to a § 4246 hearing because no forensic report
stated that his condition was improving. We reject these arguments.
Each time the district judge committed Kokoski, she relied on foren-
sic reports written by qualified personnel stating that there was a sub-
stantial probability of future competency. In addition, the Butner
reports indicated that Kokoski's condition was improving. The
requirements of the statute were therefore satisfied.

Next, Kokoski argues that § 4241(e) requires issuance of a certifi-
cate of competency. He claims that the certificate Butner issued was
"invalid" because the competency finding was contingent upon
Kokoski's treatment with antipsychotic drugs. We reject this argu-
ment because at the final competency hearing, the Butner doctors tes-
tified that Kokoski was competent with or without medication.
Moreover, based on all of the evidence at the final hearing, the district
court issued a written order that Kokoski was competent. That was
sufficient to allow the case against Kokoski to proceed.

Finally, Kokoski argues that the court had no authority to authorize
the government to hire an expert in the field of malingering because
the examiner "shall be designated by the court." § 4247(b). This argu-
ment is meritless. The statute does not require the judge to personally
select the examiner. In any event, Kokoski was not prejudiced since
the court authorized him to select his own expert.

In short, we conclude that the district court adhered to statutory
procedures and that those procedures afforded Kokoski due process.
See Ecker, 30 F.3d at 969-70.

IV.

Finally, Kokoski argues that the district court improperly denied
him a three-level reduction of his offense level for accepting responsi-

                     7
bility for his offense. See USSG § 3E1.1(b). He insists that the district
court's finding that he faked mental illness is unsupported by the evi-
dence. We disagree.

A court may reduce by two levels the offense level of a defendant
who "clearly demonstrates acceptance of responsibility for his
offense." USSG §3E1.1(a). Certain defendants may receive an addi-
tional one-level reduction if they "assisted authorities in the investiga-
tion or prosecution of [their] own misconduct." USSG §3E1.1(b). The
district court's denial of a reduction under §3E1.1 cannot be disturbed
unless clearly erroneous. United States v. Cusack, 901 F.2d 29, 31
(4th Cir. 1990). In this case, Dr. Herbel testified that Kokoski's
malingering was an effort to avoid going to trial and receiving "a
potentially long sentence." In addition, the district judge found that
Kokoski had shown no remorse. At the sentencing hearing, Kokoski
adhered to his belief that LSD in any amount is nontoxic, nonaddic-
tive and nonlethal. The district judge concluded that "these beliefs are
certainly not indicative of a person who recognizes that he committed
a wrongful act and must be punished." The record simply does not
establish that the district judge's decision to deny an offense level
reduction was clearly erroneous. See United States v. Kerr, 13 F.3d
203, 205 (7th Cir. 1993), cert. denied, 114 S. Ct. 1629 (1994).

V.

The district court's judgment is affirmed.

AFFIRMED

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