           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 17, 2008
                                     No. 07-40816
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

AMIR MOGHADDAM, also known as Houshi

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:05-CR-700-3


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       A jury convicted Amir Moghaddam of conspiring to possess with intent to
distribute one or more kilograms of heroin and possession of more than 100
grams but less than one kilogram of heroin with intent to distribute, in violation
of 18 U.S.C. §§ 841, 846 (2002). On appeal, Moghaddam contends that the
district court erred in three respects: (1) by denying him the opportunity to
testify and consult with his attorney before finding him competent to stand trial;



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 07-40816

(2) by finding him competent to stand trial; and (3) by denying him a third
competency hearing after his trial began. We affirm.
      The conviction of a mentally incompetent defendant violates the Due
Process Clause of the United States Constitution. Pate v. Robinson, 383 U.S.
375, 378 (1966). A defendant is competent to stand trial if he “has a rational as
well as factual understanding of the proceedings against him”; “sufficient
present ability to consult with his lawyer with a reasonable degree of rational
understanding”; and the capacity “to assist in preparing his defense.” Indiana
v. Edwards, 128 S. Ct. 2379, 2383 (2008) (quotation marks omitted). Once the
defendant’s competency has been called into question, the burden is on the
prosecution to show by a preponderance of the evidence that the defendant is
competent to stand trial. United States v. Makris, 535 F.2d 899, 906 (5th Cir.
1976).
      The record demonstrates that the district court did not deprive
Moghaddam of the opportunity to testify and consult with his attorney at the
hearing where he was deemed competent to stand trial. In fact, just the opposite
is true; Moghaddam did receive the opportunity to consult with his attorney and
testify as to his competency. Moghaddam, however, told the court that he
wanted to consult with his attorney not to discuss his competency, but to discuss
general matters in a convenient environment where their conversations would
not be recorded. Ultimately, it was Moghaddam who chose not to testify so as
to “get on with the case.” Moghaddam has failed to demonstrate that the district
court erred in this respect.
      Likewise, the district court did not err by finding Moghaddam competent
to stand trial. A district court’s competency determination, a mixed question of
law and fact with “direct constitutional repercussions,” is reviewed for clear
error. Makris, 535 F.2d at 907. The determination “may not be set aside on
review unless it is clearly arbitrary or unwarranted.” United States v. Dockins,
986 F.2d 888, 890 (5th Cir. 1993). The first expert to evaluate Moghaddam

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concluded that 120 days of inpatient psychiatric treatment would be adequate
time to achieve “good symptom relief” and “stabilization,” particularly for
someone like Moghaddam who, according to the expert, “has the underlying
cognitive and even emotional abilities” to be competent to stand trial. The
expert psychologist who subsequently oversaw Moghaddam’s inpatient
treatment concluded that he was competent upon completing his 120 days of
treatment. The district court also heard expert testimony that, in some respects,
Moghaddam had exaggerated his symptoms. Based on the record, we cannot
find that the district court’s competency determination was clearly arbitrary or
unwarranted.
      Finally, the district court did not err by failing to hold a third competency
hearing for Moghaddam after his trial began. A defendant has a right to a
competency hearing if “‘the trial judge receive[s] information which, objectively
considered, should reasonably have raised a doubt about [the] defendant’s
competency and alerted [the trial judge] to the possibility that the defendant
could neither understand the proceedings or appreciate their significance, nor
rationally aid his attorney in his defense.’” United States v. Williams, 819 F.2d
605, 607 (5th Cir. 1988) (quoting Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.
1980)). There is no “‘general standard for the nature or quantum of evidence
necessary to trigger a competency procedure.’” Id. at 608 (quoting Lokos, 625
F.2d at 1261). This court does, however, consider three factors in determining
whether a competency hearing is required: “‘[1] a history of irrational behavior,
[2] the defendant’s demeanor at trial, and [3] a prior medical opinion.’” Id.
(quoting Lokos, 625 F.2d at 1261). Here, Moghaddam did have some history of
irrational behavior. It was because of his irrational behavior that the district
court ordered Moghaddam to receive 120 days of inpatient psychiatric treatment.
However, after Moghaddam completed his treatment, the district court heard
expert testimony that Moghaddam was competent to stand trial. Furthermore,
the district court found Moghaddam’s “rather dramatic theatrics” before the jury

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incredible. The district court noted the convenient and particularly disruptive
timing of Moghaddam’s “feigned” dizzy spell during the Government’s opening
statement. The district judge was in the best position to evaluate Moghaddam’s
conduct at that moment and assess whether his behavior was genuine or a
contrivance. Considering the aforementioned factors and facts, we find no error
in the district court’s denial of a third competency hearing.
      The judgment of the district court is AFFIRMED.




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