                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0719n.06

                                           No. 12-3592

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                    Aug 06, 2013
                                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff S Appellee,                     )
                                                 )    ON APPEAL FROM THE UNITED
v.                                               )    STATES DISTRICT COURT FOR THE
                                                 )    NORTHERN DISTRICT OF OHIO
JOHNNY SUGGS,                                    )
                                                 )                     OPINION
       Defendant – Appellant.                    )
                                                 )

       Before: KEITH, WHITE, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. A jury convicted Johnny Suggs of conspiracy to

commit mortgage fraud and bank fraud, making a false statement to a bank, bank fraud, mail fraud,

and passing U.S. Treasury checks with forged endorsements. He challenges these convictions on

four grounds: (1) the evidence was insufficient to prove the endorsements on the U.S. Treasury

checks were forged and that he knew they were forged; (2) the district court violated his

confrontation rights and the hearsay rule when it admitted a document and witness testimony relating

to the forged check endorsements; (3) the jury venire was not drawn from a fair cross-section of the

community, in violation of his Sixth Amendment rights; and (4) the district court erroneously denied

his pretrial motion to re-evaluate his competency to stand trial. We AFFIRM the convictions.




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                         I. FACTS AND PROCEDURAL HISTORY

       The trial proof showed that, from September 1998 through September 2005, Suggs and others

engaged in a conspiracy to obtain mortgage loans on high-priced residential properties by presenting

fraudulent applications and income documentation to lending institutions. Suggs and his co-

conspirators represented to lenders that they earned substantial monthly compensation as employees

of the James and Albert Group, LLC or the James and Albert Corporation, but these companies were

sham entities that did not engage in any legitimate business activities. After obtaining a mortgage

loan and taking ownership of a residence, Suggs lived at the location without paying the mortgage

until the bank took possession of the property through a foreclosure action or he sold the home to

a co-conspirator at an inflated price—obtaining a second fraudulent mortgage loan from a different

lender in the process—taking the “equity” in cash. The scheme defrauded federally insured banks

and mortgage lending companies.

       Using false documentation supplied by Suggs, Carlos Crespo purchased a multi-family

property. After taking possession of the property, Crespo and his grandmother, Aida Cardona-Cruz,

who is now deceased, lived in downstairs apartments, while Suggs inhabited an upstairs apartment.

Cardona-Cruz received monthly Supplemental Security Income (SSI) checks from the federal

government. While she was visiting relatives in Puerto Rico for several months in 2004, Crespo

retrieved two of the SSI checks from the mail and cashed them, purportedly with the consent of

Cardona-Cruz. Five more SSI checks bearing forged endorsements were deposited into bank

accounts Suggs controlled.

       The indictment charged Suggs in eight counts, including conspiracy under 18 U.S.C. § 371

(count 1); making a false statement to a bank in violation of 18 U.S.C. §§ 1014 & 2 (count 2); bank


                                                 2
fraud in violation of 18 U.S.C. §§ 1344 & 2 (counts 3, 4, and 6); mail fraud in violation of 18 U.S.C.

§§ 1341 & 2 (count 5); passing, uttering, or publishing U.S. Treasury checks bearing falsely made

or forged endorsements exceeding an aggregate face value of $1,000 in violation of 18 U.S.C.

§§ 510(a)(2) (count 7); and making, uttering or possessing a counterfeit or forged Sprint check in

the amount of $1,200 in violation of 18 U.S.C. §§ 513(a) and 2. R. 1. Before trial, the government

voluntarily dismissed counts 4, 6, and 8 and struck from count 7 one of the six U.S. Treasury checks

listed in that count. Prosecutors presented the testimony of eighteen witnesses and introduced into

evidence numerous exhibits. Suggs testified in his own defense, but he did not call any witnesses

or present any new exhibits.

       The jury returned guilty verdicts on counts 1, 2, 3, 5, and 7 as charged, finding specifically

with regard to count 7 that Suggs, with the intent to defraud, passed five of Cardona-Cruz’s SSI

checks bearing false or forged endorsements. The district court sentenced Suggs to 60 months of

imprisonment on each count, to be served concurrently, followed by three years of supervised

release. The court also ordered Suggs to pay joint and several restitution to financial institutions in

the amount of $869,731.00. We have jurisdiction of this timely appeal under 28 U.S.C. § 1291.

                                          II. ANALYSIS

A. Forged endorsements on U.S. Treasury checks

       Suggs challenges the sufficiency of the evidence to convict him on count 7 of the indictment.

Count 7 charged that, between August 10 and December 31, 2004, Suggs knowingly and with intent

to defraud passed, uttered, or published one or more U.S. Treasury checks with an aggregate face

value exceeding $1,000.00 and that those checks bore falsely made or forged endorsements or

signatures.


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       The applicable statute provides that “[w]hoever, with intent to defraud . . . passes . . . any

Treasury check . . . of the United States bearing a falsely made or forged endorsement or signature[]

shall be fined under this title or imprisoned not more than ten years, or both.” 18 U.S.C. § 510(a)(2).

“If the face value of the Treasury check . . . or the aggregate face value, if more than one Treasury

check . . . , does not exceed $1,000 . . . the penalty shall be a fine under this title or imprisonment

for not more than one year, or both.” 18 U.S.C. § 510(c).

       We ordinarily review a challenge to the sufficiency of the evidence by considering “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979); United States v. Kennedy, 714 F.3d 951, 956–57 (6th Cir. 2013).

But we do not employ that standard of review if a defendant makes a motion for judgment of

acquittal under Federal Rule of Criminal Procedure 29 at the end of the government’s case-in-chief,

but fails to renew the motion at the close of all the evidence. See Kennedy, 714 F.3d at 957.

       Suggs moved for judgment of acquittal under Rule 29 at the close of the government’s

evidence, but he did not renew the motion at the close of all the evidence. The omission results in

a forfeiture of his right to challenge the sufficiency of the evidence to support conviction under

count 7 unless the record demonstrates a “manifest miscarriage of justice.” Kennedy, 714 F.3d at

957 (quoting United States v. Swidan, 888 F.2d 1076, 1080 (6th Cir. 1989)). We will reverse the

conviction only if the record is “devoid of evidence pointing to guilt.” United States v. Kuehne, 547

F.3d 667, 697 (6th Cir. 2008) (quoting United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002)).

       Before delving into the trial evidence in support of count 7, we must address a discrepancy

in the parties’ views concerning the elements the government must prove beyond a reasonable doubt


                                                   4
to obtain a conviction under § 510(a)(2). Without citation to authority, Suggs contends the

government was required to prove five elements: (1) the defendant passed or uttered a forged U.S.

Treasury check; (2) the Treasury check bore a falsely made or forged endorsement; (3) the defendant

knew the Treasury check bore a falsely made or forged endorsement; (4) the defendant had the intent

to defraud; and (5) the face value of the Treasury check or the aggregate face value of the Treasury

checks totaled more than $1,000.00. Appellant’s Br. at 15. By contrast, the government asserts it

is not required to prove that the defendant knew the Treasury checks bore falsely made or forged

endorsements; rather, it must prove four elements only: the first, second, and fourth elements listed

above and that the defendant acted knowingly and willfully.

       The government’s formulation of the elements on appeal, which is borrowed from Bobb v.

Attorney General, 458 F.3d 213, 227 (3d Cir. 2006) (citing United States v. Rosario, 118 F.3d 160,

(3d Cir. 1997)), fails to include the requirement that the government prove the aggregate face value

of the Treasury checks exceeded $1,000.00. The statute requires such proof to obtain a felony

conviction. 18 U.S.C. § 510(a)(2) & (c). The Third Circuit noted in Bobb that the monetary element

was met in that case because the defendant pled guilty to an indictment establishing a loss greater

than $10,000.00. Bobb, 458 F.3d at 227. Though not at issue in Bobb, proof of value exceeding

$1,000.00 is a necessary element of the felony offense.

       We have not had occasion to decide whether, to obtain conviction under § 510(a)(2), the

government must prove that the defendant knew the Treasury check bore a falsely made or forged

endorsement or signature. The Third Circuit did not require such proof in Rosario and Bobb, nor

did the Second Circuit require it United States v. Hopkins, 853 F.2d 118, 119 (2d Cir. 1988) (per

curiam). In Hopkins, the court reasoned that the language of § 510(a)(2) does not impose any


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“requirement that a person who passes a Treasury check with a forged endorsement specifically

know that the endorsement is forged.” Id. The court found “no reason to believe that Congress

intended anything other than the express language of the statute, and no reason for us to inquire

beyond those words.” Id.

       Tracking the express language of § 510(a)(2), count 7 of the indictment against Suggs did

not specifically charge that Suggs knew the Treasury checks bore false or forged endorsements or

signatures. But the government’s proposed jury instruction on count 7 included as the third element

“that defendant knew that the Treasury check bore a falsely made or forged endorsement.” The

district court read the government’s proposed instruction to the jury with only minor stylistic changes

and neither party objected. This explains why Suggs now repeats on appeal the same five elements

the district court read to the jury. The legal basis for giving the instruction is not revealed in the

record, but because the government specifically requested and received an instruction that required

it to meet a higher burden than the statute may require, we will measure the government’s proof in

this case against that higher burden. The parties have not requested a specific ruling delineating the

elements of the crime, and we do not render a definitive ruling on whether § 510(a)(2) requires the

government to prove that the defendant knew the Treasury check bore a false or forged endorsement

or signature.

       Turning again to the evidence, Suggs contends that the government failed to prove the

endorsements on the five Treasury checks were falsely made or forged and that he knew they were;

that he intended to defraud the government; and that the aggregate face value of the checks exceeded

$1,000.00. He also contends that one Treasury check introduced into evidence was dated outside

the time frame specified in count 7 of the indictment. The trial evidence contradicts each of these


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arguments. Because the record is not devoid of evidence pointing to Suggs’s guilt, we conclude

there has not been a manifest miscarriage of justice warranting reversal of the conviction on count

7 for insufficient evidence. See Kennedy, 714 F.3d at 957; Kuehne, 547 F.3d at 697.

       The government proved that the endorsements on the five Treasury checks were not the

signatures of the named payee, Aida Cardona-Cruz, and that Suggs knew the endorsements were

falsely made or forged. According to the evidence, in late 2003 Suggs helped Cardona-Cruz’s

grandson, Carlos Crespo, take ownership of a building at 3460 West 58th Street in Cleveland, Ohio,

by submitting false documentation to a lending institution to obtain a mortgage. Suggs, Crespo, and

Cardona-Cruz all lived in separate apartments at that address. At that time, Cardona-Cruz was in

her seventies and suffering from memory loss. She did not know Suggs or have any relationship

with him. A native Puerto Rican, Cardona-Cruz spoke Spanish and little English. She received

monthly SSI checks from the U.S. Treasury. For several months in mid- to late-2004, Cardona-Cruz

lived in Puerto Rico, but she failed to notify the Social Security Administration to stop sending

checks to her Ohio address.

       The apartment mailboxes at Crespo’s property sat near each other, and Suggs put the names

of his fictitious entities on three of them. According to Crespo, Suggs “was always pretty much

paying attention to the mail.” When Cardona-Cruz’s June 2004 SSI check arrived in the mail, Suggs

handed the check to Crespo, who cashed it at Gas USA. Crespo claimed he did so with his

grandmother’s permission, keeping $150 as rent and sending her the rest. In July 2004 Crespo asked

Suggs to retrieve Cardona-Cruz’s SSI check from the mail and slide it under Crespo’s apartment

door, and Suggs complied. Crespo also cashed that check at Gas USA. Thereafter, Crespo did not

receive his grandmother’s SSI checks. He asked Suggs if he had seen the checks, but Suggs told him


                                                7
that none had arrived in the mail. Crespo could not think of any reason why Suggs would have the

checks. When a Secret Service agent approached Crespo to inquire about Cardona-Cruz’s cashed

SSI checks, Crespo admitted that he signed and cashed the first two, but he thought the government

stopped sending the checks after his grandmother moved away. Crespo repaid Gas USA for the two

checks he cashed there.

       After Cardona-Cruz returned from Puerto Rico in late 2004, she moved to Michigan to live

with her granddaughter, Elizabeth Crespo-Pattah. Cardona-Cruz did not remember whether she had

closed her social security case when she went to Puerto Rico. On January 18, 2005, Crespo-Pattah

accompanied her grandmother to the local social security office where they learned that her case was

still open, her SSI checks were being delivered to her old apartment in Cleveland, and the checks had

been cashed.

       The agency representative asked Cardona-Cruz to complete a form relating to the September

2004 check for the purpose of starting an investigation. This form warned the claimant that she

could be prosecuted under federal law for making a false statement or claim. Crespo-Pattah

translated and explained the form to her grandmother, and then filled in the answers to the questions

as Cardona-Cruz gave them. Cardona-Cruz understood why the form was being completed, and she

signed it. Crespo-Pattah signed the form as a witness to her grandmother’s signature. Just above

the signature lines, the form stated that the claim was being made for the proceeds of the check and

warned that legal action could ensue if the claimant received and cashed checks to which she was

not entitled. On the second part of the form, Cardona-Cruz certified that she answered the questions

truthfully to the best of her knowledge, again signed the form, and presented three more examples




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of her signature. The social security representative also required Cardona-Cruz to provide a

handwriting exemplar that consisted of multiple repetitions of her signature.

       Crespo-Pattah authenticated the claim form and the handwriting exemplar during her

testimony. Having assisted Cardona-Cruz with her business matters between 2003 and 2005 and

having witnessed Cardona-Cruz write her signature numerous times, Crespo-Pattah was very familiar

with her grandmother’s handwriting and signature.

       Crespo-Pattah and Cardona-Cruz later returned to the social security office to examine six

to eight SSI checks made payable to Cardona-Cruz that had been endorsed by someone and passed.

The endorsements did not match Cardona-Cruz’s signature. At trial the prosecutor introduced into

evidence the checks for the months of September through December 2004, and January 2005. The

January check was dated December 30, 2004, and deposited on December 31, 2004, within the time

frame charged in count 7 of the indictment.

       Crespo-Pattah testified that the endorsements on the five checks did not match Cardona-

Cruz’s signature because of a difference in handwriting and because Cardona-Cruz customarily

signed both of her last names. Three of the five checks were endorsed “Aida Cardona.” Crespo-

Pattah did not know who actually endorsed the checks. Cardona-Cruz did not know Suggs and

Crespo-Pattah could think of no reason why Suggs would have possession of Cardona-Cruz’s SSI

checks. Crespo-Pattah explained that Cardona-Cruz endorsed the February 2005 check, which was

received at their Michigan address.

       The prosecution also presented testimony of Yvette Feliciano from the Cleveland office of

the Social Security Administration. She conducted an investigation into Cardona-Cruz’s missing

checks. By reviewing the documents in the agency’s file, Feliciano knew that Cardona-Cruz had


                                                9
visited a social security office to inquire about her checks. She told the jury that Cardona-Cruz

signed a claim form under penalty of perjury stating that she did not cash any of the checks because

she was in Puerto Rico and she did not authorize anyone else to cash the checks on her behalf.

Feliciano authenticated Government Exhibits 12 through 16 as the five SSI checks made payable to

Cardona-Cruz that Cardona-Cruz swore she did not receive or cash.

        Federal agent Jeffrey Maslar testified that, during execution of a search warrant at Suggs’s

home, he showed Suggs a copy of Cardona-Cruz’s September 2004 SSI check. Suggs admitted that

he forged the endorsement of Cardona-Cruz.

        Other evidence confirms that the five checks were deposited into bank accounts controlled

by Suggs and that the face value of the checks totaled $2,835.00. Jennifer Mattingly, loss prevention

manager for PNC Bank’s northern Ohio market, told the jury that she examined the bank records and

signature card for a money market savings account known as the Vandever Revocable Living Trust

of Deleware [sic] (VLT). The account documents listed Suggs as the trustee for the account. To

open the account on June 18, 2004, Suggs was required to show identification. He deposited one

penny that day and in August deposited $25. On September 17 and October 1, 2004, Suggs

deposited Cardona-Cruz’s September and October SSI checks, each in the amount of $564, into his

VLT account. When Suggs closed the account on November 1, 2004, it was overdrawn by $97,

resulting in a loss to the bank.

        Nora Koepf, an investigator with Charter One Bank, testified about bank records relating to

a checking account held in the name of James & Albert Group LLC, a fictitious business created by

Suggs. Suggs deposited three of Cardona-Cruz’s SSI checks—two in the amount of $564 and one




                                                 10
in the amount of $579—into this account for the months of November and December 2004 and

January 2005.

       All of this evidence supports the jury’s finding beyond a reasonable doubt that the

endorsements on five of Cardona-Cruz’s U.S. Treasury checks issued between September 1, 2004

and December 30, 2004, were forged. Because Suggs admitted to a federal agent that he forged one

check and because all five checks were deposited into bank accounts he controlled, the jury

reasonably could have inferred that Suggs forged the other four checks or that he knew they were

forged. The government produced witnesses who authenticated Cardona-Cruz’s signature on the

social security claim form and the handwriting exemplar. Federal Rule of Evidence 901(b)(3)

permits lay persons serving on the jury to compare signatures on documents with other signatures

that have been authenticated. See United States v. Saadey, 393 F.3d 669, 679 (6th Cir. 2005). By

this method, the jury was able to compare the endorsements on the five checks deposited into

Suggs’s accounts against the authenticated signatures of Cardona-Cruz. The jury was also able to

compare the endorsements on the five checks deposited into Suggs’s accounts with the endorsements

on the two checks Carlos Crespo admitted passing. The prosecution was not required to produce an

expert witness to give an opinion about the handwriting on the various documents. Id.

       In weighing the credibility of the witnesses, the jury resolved any discrepancies in the

testimony concerning whether Cardona-Cruz gave Carlos Crespo permission to cash her checks. The

jury rationally could have rejected Suggs’s testimony that he did not forge the checks, that he did not

know the checks were forged, and that he deposited the checks into accounts he controlled only

because Carlos Crespo asked him to cash the checks. Finally, the jury reasonably found, based on




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the evidence, that Suggs had the intent to defraud the government and that the aggregate face value

of the U.S. Treasury checks deposited into Suggs’s accounts exceeded $1,000.00.

        We find no merit in the contention that Suggs was prejudiced by the introduction into

evidence of Cardona-Cruz’s February 2005 SSI check. Suggs did not object to admission of the

exhibit, but in any event Elizabeth Crespo-Pattah testified that Cardona-Cruz received the check in

Michigan and endorsed it. The prosecution did not use this check dated outside the time frame

specified in count 7 to obtain conviction on that count. The check was offered to show Cardona-

Cruz’s authentic endorsement on an SSI check received after she changed her address at the social

security office.

        Because the record contains strong evidence of guilt and is not devoid of evidence that Suggs

committed the crime charged under § 510(a)(2), we conclude there has not been a manifest

miscarriage of justice warranting reversal of the conviction on count 7 for insufficient evidence. See

Kennedy, 714 F.3d at 957; Kuehne, 547 F.3d at 697.

B. Confrontation rights and hearsay exception

        Suggs next argues that the district court erred in permitting Elizabeth Crespo to testify about

Cardona-Cruz’s missing social security checks and in admitting into evidence Government

Exhibit 18, the claim form Cardona-Cruz submitted to the Social Security Administration about the

missing September 2004 check. He contends this evidence constituted inadmissible hearsay and

violated his confrontation rights under the Sixth Amendment. See Crawford v. Washington, 541

U.S. 36 (2004).

        The district court denied Suggs’s pretrial motion in limine seeking to exclude this evidence.

The court ruled that Elizabeth Crespo-Pattah could “testify if she has personal knowledge of what


                                                  12
went on with respect to these Social Security checks.” R. 131 Page ID 1280. Relying in part on

United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004), the court characterized the claim form

as non-testimonial, rejecting Suggs’s position that admitting the exhibit into evidence would violate

the Confrontation Clause. The court nonetheless cautioned the prosecution “not to go too far.” Id.

at 1281.

       We ordinarily review the district court’s evidentiary rulings for an abuse of discretion, see

United States v. Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir. 2009), but we “review de novo claims

that the admission of evidence violated the Confrontation Clause.” United States v. Johnson, 581

F.3d 320, 325 (6th Cir. 2009).

       The Confrontation Clause bars the admission of out-of-court testimonial statements made

by an unavailable witness that are offered to prove the truth of the matter asserted if the defendant

did not have a previous opportunity to cross-examine the witness. Crawford, 541 U.S. at 53–54;

United States v. Boyd, 640 F.3d 657, 665 (6th Cir. 2011). “It is the testimonial character of the

statement that separates it from other hearsay that, while subject to traditional limitations upon

hearsay evidence, is not subject to the Confrontation Clause.” Davis v. Washington, 547 U.S. 813,

821 (2006). If a statement is not testimonial, Confrontation Clause principles do not apply. See

Whorton v. Bockting, 549 U.S. 406, 420 (2007); Johnson, 581 F.3d at 325.

       Testimonial statements are “directed at establishing the facts of a past crime, in order to

identify (or provide evidence to convict) the perpetrator.” Davis, 547 U.S. at 826. In deciding

whether a statement is testimonial, we ask “whether the declarant intends to bear testimony against

the accused. That intent, in turn, may be determined by querying whether a reasonable person in the




                                                 13
declarant’s position would anticipate [her] statement being used against the accused in investigating

and prosecuting the crime.” Cromer, 389 F.3d at 675.

       Cardona-Cruz signed the claim form and provided a handwriting exemplar at the request of

the Social Security representative in the ordinary course of business for the purpose of launching an

agency investigation into a missing check. Her signature itself was not hearsay, was not testimonial,

and its admission did not violate Suggs’s confrontation right. The claim form itself is properly

characterized as a business or public record of the Social Security Administration. See Fed. R. Evid.

803(6) & (8); United States v. Miller, 394 F. App’x 18, 21 (4th Cir. 2010) (noting social security

employee, although not the records custodian, could authenticate records from a social security file).

       Assuming arguendo that the assertions in the claim form were testimonial hearsay, we

conclude nevertheless that admission of the form was harmless error. See United States v.

Henderson, 626 F.3d 326, 334 (6th Cir. 2010) (“[A]n error may be deemed harmless if the record

contains substantial evidence apart from the improperly admitted evidence so that there is no

reasonable probability that the admission made a difference to the jury’s verdict.”). It was clear that

Cardona-Cruz’s checks were deposited in Suggs’s account and Suggs admitted doing so. The core

issue involved a credibility contest between Suggs and Carlos Crespo—whether Suggs cashed and

deposited the checks at Crespo’s request with the understanding that Crespo had the authority to do

so. Crespo admitted that he had no such authority, denied endorsing the checks at issue, and claimed

that he asked Suggs, who lived in the same building, whether the checks had arrived in the mail and

Suggs denied that they had. Suggs testified that he did not live in the building, that Crespo’s father

began collecting the checks so Crespo asked Suggs to intercept the checks before his father could

get them, that he did so and slid the checks under Crespo’s door until Crespo asked him to cash the


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checks, and that he never endorsed the checks and did not profit from the proceeds. Suggs’s

testimony is inconsistent with the evidence that the checks were endorsed by someone and deposited

in his account, and there were no missing checks that might have been taken by Crespo’s father.

The SSI form added nothing to the evidence except Cardona-Cruz’s assertion that the checks were

cashed without her permission, which was clear from the other evidence without regard to the

statements on the form. See id.

        Further, Elizabeth Crespo-Pattah did not repeat in court any out-of-court statements Cardona-

Cruz made. Hearsay is a statement “the declarant does not make while testifying at the current trial

or hearing” and “a party offers in evidence to prove the truth of the matter asserted in the statement.”

Fed. R. Evid. 801(c); United States v. Boyd, 640 F.3d 657, 663 (6th Cir. 2011). Crespo-Pattah

communicated to the jury her own personal knowledge about events relating to her grandmother’s

missing SSI checks, never straying from the scope of testimony imposed by the district court when

it denied Suggs’s motion in limine. At no point during her testimony did defense counsel make a

hearsay objection. Accordingly, we conclude that the district court did not err in admitting Crespo-

Pattah’s testimony and that the admission of the claim form into evidence was harmless error.

C. Jury venire

        Suggs, an African American, next argues that his Sixth Amendment right to a jury chosen

from a fair cross-section of the community was denied. He claims that African Americans are

systematically underrepresented in the pool of potential jurors called for jury duty in the Northern

District of Ohio at Cleveland. In his particular case, the jury venire included forty-six jurors, only

two of whom were African American, and one of those two was excused for cause.




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        “Whether a defendant has been denied his right to a jury selected from a fair cross-section

of the community is a mixed question of law and fact, which we review de novo.” United States v.

Allen, 160 F.3d 1096, 1101 (6th Cir. 1998). The Sixth Amendment demands that the jury venire

represent a “fair cross-section” of the community. Berghuis v. Smith, 559 U.S. 314, 319 (2010);

Taylor v. Louisiana, 419 U.S. 522, 528 (1975).

        To show a prima facie violation of this requirement, Suggs must demonstrate “(1) that the

group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation

of this group in venires from which juries are selected is not fair and reasonable in relation to the

number of such persons in the community; and (3) that this underrepresentation is due to systematic

exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364 (1979).

Exclusion is “systematic” if it is “inherent in the particular jury-selection process utilized.” Id. at

366. Once a defendant establishes a prima facie case, the government has the burden to justify the

“infringement by showing attainment of a fair cross section to be incompatible with a significant

state interest.” Id. at 368.

        Suggs’s counsel first raised an issue about the racial composition of the jury venire during

voir dire as the parties and the Magistrate Judge discussed challenges for cause. In response to the

objection, the court responded: “The venire is what the venire is and there’s [sic] ways to challenge

that. Right now is not the appropriate way to challenge the venire.” R. 130 Page ID 1125.

        During trial, outside the presence of the jury, defense counsel made a short record to support

the objection he made during voir dire. He presented statistics obtained from the 2010 United States

Census for the Ohio counties of Lorain, Summit, Cuyahoga, and Lake showing that the African

American population in those four counties combined is twenty-one percent. By comparison, the


                                                  16
African American composition of the jury venire was two to two and one-half percent. The

prosecutor pointed out that the Northern District of Ohio includes more counties than the four

mentioned. Defense counsel agreed, but he did not have statistics to present for the other counties.

He stated his belief that the percentage of African Americans would be near twenty percent even if

those counties were considered. Having not conducted the voir dire, the district court did not make

any ruling.

       Suggs’s challenge to the composition of the jury venire fails because Suggs did not present

any evidence that the underrepresentation of African Americans was due to systematic exclusion of

that group in the jury-selection process, as required by the third element of his prima facie case. See

Duren, 439 U.S. at 364, 366; United States v. Smith, 463 F. App’x 564, 571 (6th Cir. 2012). It is

incumbent upon the defendant to show more than that a particular jury panel was unrepresentative.

See United States v. Odeneal, 517 F.3d 406, 412 (6th Cir. 2008); Allen, 160 F.3d at 1103. Suggs

made no effort to show that systematic underrepresentation was “inherent in the particular jury-

selection process utilized.” Duren, 439 U.S. at 366. Accordingly, we reject this challenge to the jury

venire as a basis for setting aside the convictions.

D. Competency to stand trial

       Finally, Suggs argues that the district court erred in finding him competent to stand trial, and

that the court should have granted his motion for a competency re-evaluation. We review “the

determination of whether there is reasonable cause to question a defendant’s competence and to grant

a competency hearing under an abuse of discretion standard.” United States v. Ross, 703 F.3d 856,

867 (6th Cir. 2012). We examine the district court’s factual findings concerning a defendant’s

competence for clear error. Id.


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       Suggs received a full competency evaluation under 18 U.S.C. § 4241(a) in September 2010

after the district court granted his request for an evaluation. The competency evaluator, Rodney B.

Delaney, Ph.D., reviewed materials he received from various sources, conducted a series of

interviews with Suggs over four days, and administered a battery of tests to Suggs. Dr. Delaney

offered his opinion, with a reasonable degree of clinical certainty, that the psychological and

emotional symptoms Suggs was experiencing did not rise to a level that would interfere with his

ability to assist properly in his defense and that he was competent to proceed to trial. Upon receipt

of the competency report and following a competency hearing, the district court ruled that Suggs was

competent to stand trial.

       The pretrial services office later referred Suggs to Edward Dutton, M.D., for a psychiatric

evaluation. He issued a report on May 16, 2011, finding that Suggs was competent to stand trial.

This document is not in the record so we cannot review it.

       In the motion to re-evaluate competency filed on January 12, 2012, five days before trial,

defense counsel represented that Suggs’s behavior had become increasingly alarming, indicating that

a competency re-evaluation was warranted. The district court held a hearing on January 17. Defense

counsel called as a witness Suggs’s treating psychiatrist, Dr. Olufunk Fajobi, but she declined to

testify because she had been instructed not to release any information about Suggs. Upon

questioning by the court, Suggs acknowledged that he had prohibited Dr. Fajobi from testifying, but

later he gave the court permission to ask her a few limited questions. Dr. Fajobi had not treated

Suggs in the prior thirty days or made any changes to his medication. She estimated she had not seen

Suggs for two months, but he was scheduled to see her on a regular basis every three months.




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        Suggs next called as a witness Colleen Smith, a licensed professional clinical counselor.

Suggs gave express permission for Smith to testify. She announced she was not qualified to render

an opinion on mental competency to stand trial, but she stated she had counseled Suggs every two

weeks for fifteen months for a total of thirty-three sessions as part of his pretrial services supervision.

Although Suggs mentioned in the initial evaluation that he experienced “some hallucinations of

sorts,” she was not aware that Dr. Desai had diagnosed delusional disorder and unspecified psychosis

on August 15, 2011. He was very consistent in attending counseling sessions and participated during

the sessions. He never described delusions or hallucinations of any kind. Smith met with Suggs on

December 5 and 20, 2011, and January 13 and 16, 2012. The sessions focused on managing his

anxiety and frustration about going to trial. She felt Suggs’s mood had improved over time and he

was better able to control feelings of depression and anxiety. She believed Suggs demonstrated odd

or eccentric personality traits. Suggs continued to take prescribed medication and demonstrated

resourcefulness in solving personal problems. She did not notice during their sessions in the

previous two months that he displayed any bizarre symptoms or diminished mental capacity. In

addition to Smith’s testimony, defense counsel referred the court to a May 5, 2010 Social Security

Administration application indicating that Suggs suffered from psychosis and delusional disorder.

        The court called as a witness Suggs’s probation officer, Kara Cabanes, who began

supervising Suggs in January 2010. She met with him personally at least once each month and had

weekly telephone contact with him. She was aware that Suggs exhibited depressive symptoms due

to an unstable housing situation, the upcoming trial, and physical ailments, but she did not observe

any unusual or bizarre behavior that gave her concern. During the most recent visit on January 11,




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2012, Suggs talked with her about his attorney and stated that he wanted to go to trial. She did not

think he was unable to understand the case or that he would be unable to assist his lawyer at trial.

       Based on this testimony, the district court denied the request for a re-evaluation of mental

competency. Although Suggs’s motion suggested that his competency had deteriorated, the court

found the “unanimous and consistent” testimony indicated there had been no change in Suggs’s

behavior; if anything, he had improved. Having observed Suggs during the hearing, the court found

that he was very attentive, pleasant, and suitably dressed. He answered questions appropriately and

assisted his lawyer with information. The court stated “[h]e seems very much aware of who he is,

where he is—he’s nodding yes as I speak—and understands according to the testimony the gravity

of the trial and the consequences of the trial.” R. 92 Page ID 582. The court believed Suggs’s

anxiety about his upcoming trial was “a perfectly normal reaction.” Id. at 582–83. The court

considered medical evidence, as well as the treating physician’s “laundry list of diagnoses” and

Suggs’s Social Security application, but the court did not identify any evidence justifying a mental

re-examination. The court found Suggs was able to understand the proceedings against him and

assist his counsel. Thus, the court found him competent to proceed to trial.

       “A criminal defendant may not be tried unless he is competent.” Godinez v. Moran, 509 U.S.

389, 396 (1993). Incompetency manifests in the lack of sufficient ability to consult with a lawyer

with a reasonable degree of rational understanding or the inability to understand the criminal

proceedings. See United States v. Miller, 531 F.3d 340, 348 (6th Cir. 2008). In determining a

defendant’s competence, the court must consider such factors as evidence of the defendant’s

irrational behavior, his demeanor in the courtroom, and any prior medical opinion relating to




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competency to stand trial. Id. The court may also consider the opinion of the defendant’s attorney.

See United States v. Tucker, 204 F. App’x 518, 520 (6th Cir. 2006).

       As required, the district court considered the testimony presented at the hearing, the prior

competency evaluations, Suggs’s Social Security disability application, medical records, the

diagnosis of treating physicians, defense counsel’s opinion of Suggs’s competency as expressed in

the motion, and Suggs’s conduct in the courtroom. We are not persuaded that the district court’s

factual findings on competency made in light of all this evidence were clearly erroneous, see Ross,

703 F.3d at 867, or that Suggs’s due process rights were violated by the court’s decision to refuse

a third mental competency examination. See United States v. Redditt, 87 F. App’x 440, 447–48 (6th

Cir. 2003).

       The fact that Suggs may have experienced some level of mental disorder did not necessarily

render him incompetent to stand trial. See Miller, 531 F.3d at 349. Two previous competency

evaluators opined that Suggs was competent to stand trial, and the witnesses at the January 2012

hearing did not confirm that Suggs’s mental condition had deteriorated to the point that the trial

should be postponed. There is no indication in the trial transcript that Suggs struggled with mental

difficulties during trial. He rebuffed his attorney’s advice on critical matters—once in rejecting a

proffered plea agreement and once when taking the stand to testify—but rejection of legal advice

does not establish incompetency, especially on this record. See United States v. Moussaoui, 591 F.3d

263, 294 (4th Cir. 2010) (noting a defendant has an absolute right to reject defense counsel’s advice

and doing so does not make him incompetent).

       Suggs apparently had difficulty coping after the jury convicted him, requiring the court to

change the conditions of his release pending sentencing. But the court did not find it necessary to


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take Suggs into custody for his own protection, and in any event this post-trial development sheds

little light on whether the district court’s factual findings made on the day before trial were clearly

erroneous. Having carefully reviewed the evidence on the competency issue, we decline to overturn

the district court’s decision.

                                        III. CONCLUSION

        For all of the reasons stated, we find no justification to reverse these convictions.

Accordingly, we AFFIRM the judgment.




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