                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0105n.06

                                        Case No. 14-3847

                          UNITED STATES COURT OF APPEALS
                                                                                        FILED
                                                                                  Feb 19, 2016
                               FOR THE SIXTH CIRCUIT
                                                                              DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE NORTHERN DISTRICT OF
LOUIS D. AMIR,                                      )       OHIO
                                                    )
       Defendant-Appellant.                         )
                                                    )
____________________________________/               )


Before: MERRITT, GIBBONS, and SUTTON, Circuit Judges.

       MERRITT, Circuit Judge. Louis D. Amir challenges his criminal conviction and

sentence, arguing that he did not receive constitutionally adequate counsel at a competency

hearing conducted before his trial. The district court determined that Amir’s counsel at his

competency hearing satisfied the standard required by United States v. Ross, 703 F.3d 856 (6th

Cir. 2012). We agree with the district court and affirm Amir’s conviction.

                                I. Facts and Procedural History

       In October 2010, Amir was indicted on charges relating to a series of financial

transactions involving property in Ohio. From the outset of his prosecution, Amir has attempted

to argue that he is not a citizen of the United States, but a citizen of the “Republic of Ohio,” to

whom our federal courts’ jurisdiction does not apply.
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United States v. Amir

       Shortly after Amir’s arraignment, the government filed a motion pursuant to 18 U.S.C.

§ 4241 for a determination of his mental competency. At a subsequent hearing on that motion,

the district court granted defense counsel’s motion to withdraw in light of Amir’s stated intent to

represent himself, but appointed Lawrence Whitney as standby counsel because of a concern

over whether Amir had the ability to waive his right to counsel given the competency issue the

government had raised.     After another hearing, the district court granted the government’s

request for a mental competency evaluation. Following a court-ordered competency evaluation

of Amir by psychologist Dr. Dia Brannen, a magistrate judge conducted a competency hearing,

during which Amir represented himself with appointed standby counsel Whitney present. The

government presented Brannen’s report on Amir’s mental competency, which concluded that he

was competent to stand trial. While asserting his competence, Amir refused to stipulate to the

report and denied the statements contained within it. Standby counsel Whitney did not take an

active role in the hearing. The magistrate judge accepted the report’s findings and recommended

that Amir was competent to stand trial; the district court accepted that recommendation.

       Amir’s case proceeded to trial, which resulted in convictions of wire fraud, conspiracy to

commit wire fraud, money laundering, and perjury.         The district court sentenced Amir to

151 months of imprisonment followed by three years of supervised release and ordered him to

pay restitution in the amount of $6,592,637.

       Amir appealed his conviction to our Court, raising his jurisdictional defense in a pro se

brief. His appointed counsel also filed a brief arguing that Amir had been denied counsel at his

competency hearing in violation of the Sixth Amendment. Another panel of our Court held that

the record before it was insufficient to determine if Whitney’s performance as standby counsel

had satisfied Amir’s Sixth Amendment right to counsel by providing “‘meaningful adversarial

testing’ of Amir’s competency” and remanded the case to the district court “for an evidentiary
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United States v. Amir

hearing to determine whether Amir was unconstitutionally deprived of representation at his

competency hearing.” United States v. Amir, No. 11-4413, slip op. at 3-4 (6th Cir. May 15,

2014) (quoting Ross, 703 F.3d at 874).

        At the evidentiary hearing, Whitney testified to his experience, indicating: that he had

nearly 40 years of criminal defense experience; that competency or insanity evaluations had been

involved in several of his federal representations and 12 to 15 of his state representations; that he

had experience reviewing psychological examination reports and independently assessing a

defendant’s competency; that he had served as standby counsel several times in federal court;

that he believed standby counsel had an independent obligation to alert the court to any concerns

about the defendant’s competency; and that he had notified courts when he had had such

concerns in the past.

        As to his standby representation of Amir, Whitney testified: that he met with Amir

several times before his competency hearing; that he communicated to Amir that he did not

believe Amir’s jurisdictional defense would succeed; that he nonetheless believed Amir to be

competent because he could rationally and logically discuss his case; that he discussed with Amir

the process involved in a competency evaluation; that he met with Dr. Brannen to discuss the

findings in Dr. Brannen’s report; that he agreed with the report’s findings; and that he delivered

the report to Amir, discussed its conclusions with Amir, and encouraged Amir to stipulate to it.

        As to the competency hearing, Whitney testified that he made a strategic decision not to

challenge the psychological evaluation report, or cross-examine Dr. Brannen because he agreed

with the report and because his own independent assessment was that Amir was competent.

Whitney also testified that his decision was made independent of Amir’s own belief in his

competence, and that had he been concerned about Amir’s competence, he would have raised the

issue to the court.
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United States v. Amir

        Amir also testified at the competency hearing, claiming that a detention facility case

worker — and not Whitney — delivered the psychologist’s report to him, and claiming that

Whitney never “inform[ed] me that he read the actual competency evaluation.”

        The district court credited Whitney’s testimony, and determined that his actions as

standby counsel amounted to meaningful adversarial testing sufficient to satisfy Amir’s Sixth

Amendment right to counsel. United States v. Amir, No. 1:10CR439, 2014 WL 4182735, at *4-5

(N.D. Ohio Aug. 21, 2014).

        Amir now brings this appeal, challenging the district court’s judgment that he was

adequately represented by counsel at his competency hearing.1

                                                 II. Discussion

        We review the constitutional adequacy of Amir’s standby counsel at his competency

hearing de novo, and we review the district court’s factual findings for clear error.2 United States

v. Ross (Ross II), 619 F. App’x 453, 455 (6th Cir. 2015) (citing Ornelas v. United States,

517 U.S. 690, 699 (1996); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 948 (1995)).

        A competency hearing is a “critical stage” of a criminal proceeding, and it is “settled that

a complete absence of counsel at a critical stage of a criminal proceeding is a per se Sixth

Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable,

without analysis for prejudice or harmless error.” Ross, 703 F.3d at 873-74 (6th Cir. 2012)

(citations and internal quotation marks omitted). Where a defendant is provided standby counsel


        1
           At the end of his brief, Amir informally raises the distinct argument that the district court erred by
determining only that he was competent to stand trial without also determining that he was competent to represent
himself at trial. This issue was neither raised by Amir in his first appeal, nor the subject of our Court’s limited
remand after that appeal. Thus, it is not properly before us. See United States v. McKinley, 227 F.3d 716, 718 (6th
Cir. 2000) (holding that a party waives a claim when it fails to seek review on initial appeal); United States v.
Moore, 131 F.3d 595, 599 (6th Cir. 1997) (limiting the district court and parties to issues presented in the limited
remand instruction).
        2
           Because Amir demonstrates no fault with the district court’s fact finding, and because our review of the
record indicates no clear error, we affirm and adopt the facts as found by the district court.
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Case No. 14-3847
United States v. Amir

at a competency hearing, standby counsel must offer “meaningful adversarial testing” of the

defendant’s competence in order to satisfy the defendant’s Sixth Amendment right to counsel.

Id. at 872 (citing United States v. Cronic, 466 U.S. 648, 656-57 (1984)).

       Where the defendant, standby counsel, and a psychologist evaluating the defendant’s

competence all independently believe that the defendant is competent, the “meaningful

adversarial testing” standard does not require standby counsel “to argue that [the defendant is]

incompetent simply for the sake of playing devil’s advocate and airing that perspective in court.”

Ross II, 619 F. App’x at 456. Instead, in such a scenario — like the one here — standby counsel

can satisfy the “meaningful adversarial testing” standard by: “adequately considering [the

defendant’s] competency on his own, providing information to aid [an evaluating psychologist]

in making an informed analysis, analyzing [the psychologist’s] completed report, and preparing

for the [competency] hearing.      Id.   If standby counsel does not contest the defendant’s

competence, it must be because he agrees the defendant is competent, “rather than a belief that

he simply had no obligation to do so.” Id. If standby counsel fails to participate in the

competency hearing for reasons other than strategy and an independent belief in the defendant’s

competence — such as instructions from the presiding judge foreclosing participation — the

defendant’s Sixth Amendment right to counsel may be violated. See United States v. Martin,

608 F. App’x 340, 344-45 (6th Cir. 2015).

       Amir’s case is very similar to Ross and Ross II. Ross sought to represent himself, but

was provided with standby counsel at a competency hearing before trial. Ross, 703 F.3d at 865-

66. A court-appointed psychologist concluded that Ross was competent, Ross believed himself

competent, and standby counsel independently concluded that Ross was competent. Ross II,

619 F. App’x at 456. Ross’s standby counsel “did not participate to any meaningful degree”

during the competency hearing, Ross, 703 F.3d at 873, but did provide Ross with a copy of the
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United States v. Amir

psychologist’s report and discussed it with both Ross and the psychologist. Ross II, 619 F.

App’x at 456. Ross’s attorney decided “not to contest the report [at the competency hearing]

based on his agreement with it, rather than a belief that he simply had no obligation to do so.”

Id. Ross was found competent and proceeded to trial, where he was convicted. Ross, 703 F.3d

at 866.   Ross appealed his conviction to our Court, challenging, among other things, the

adequacy of his representation at the competency hearing. Id. at 871-873. Our Court determined

that the adequacy of counsel claim should be determined according to the “meaningful

adversarial testing” standard of Cronic, 466 U.S. at 656-57, but concluded that the record was

insufficient to allow a determination of the adequacy of Ross’s counsel at his competency

hearing. Id. at 872-873. So, our Court remanded to the district court with instructions to conduct

an evidentiary hearing and determine if Ross’s standby counsel had provided constitutionally

sufficient “meaningful adversarial testing” in his representation of Ross at the competency

hearing. Id. at 873-874. After the evidentiary hearing, the district court found that Ross had

been adequately represented at his competency hearing, and upheld his conviction. Ross II,

619 F. App’x at 454. Ross again appealed, challenging that district court’s determination that

standby counsel had provided sufficient “meaningful adversarial testing.”        Id.   Our Court

affirmed the judgment of the district court, finding that Ross’s standby counsel “provided

constitutionally adequate representation to Ross leading up to and during the competency hearing

by: adequately considering Ross’s competency on his own, providing information to aid [the

court-appointed psychologist] in making an informed analysis, analyzing [the psychologist’s]

completed report, and preparing for the hearing.” Id. at 456. Our court also emphasized that the

standby counsel’s “decision not to contest the report was based on his agreement with it, rather

than a belief that he simply had no obligation to do so.” Id.


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Case No. 14-3847
United States v. Amir

       Although Ross II is an unpublished decision that does not bind this Court, Scarber v.

Palmer, 808 F.3d 1093, 1096 (6th Cir. 2015), we are persuaded that its reasoning and result are

correct, and we follow it to reach the same result here. After its evidentiary hearing, the district

court gave a thorough explanation of its decision consonant with our reasoning in Ross II:

               [T]he Court underscores the fact that counsel (1) discussed the
               issue of competency with defendant and provided reasoned and
               appropriate counsel to defendant relative to it, (2) reviewed and
               analyzed the competency report, (3) made a sound and deliberate
               strategic decision not to cross-examine Dr. Brennan or challenge
               the findings in her report, and (4) made an independent
               determination absent defendant's statements that consulting with an
               independent psychologist was unnecessary. The Court also finds
               significant the fact that counsel at all times retained the
               independent obligation to raise with the Court the issue of
               defendant's competency if he believed that defendant was not
               competent to stand trial.

Amir, 2014 WL 4182735, at *4.

       We agree. Standby counsel Whitney: relied on his extensive experience with defendants

whose competence had been challenged to independently determine Amir was competent;

discussed Amir with Dr. Brannen; reviewed Brannen’s report; delivered the report to Amir and

explained it to him; explained the competency hearing procedure to Amir; encouraged Amir to

stipulate to Brannen’s report (although Amir declined); made the strategic decision not to assert

himself during the competency hearing because he did not doubt Amir’s competency or ability to

understand the proceedings; and remained aware of his independent obligation to present to the

court any concerns he might have had about Amir’s competency or ability to understand the

proceedings. In a scenario where neither the defendant, nor the court-appointed psychologist,

nor the standby counsel doubts the defendant’s competence to stand trial, “meaningful

adversarial testing” sufficient to satisfy the Sixth Amendment guarantee of counsel requires

nothing more. See Ross II, 619 F. App’x at 456.

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Case No. 14-3847
United States v. Amir

       Amir attempts to liken his case to Martin, in which our Court determined that a defendant

had been unconstitutionally deprived of counsel at a competency hearing because his standby

counsel had been “foreclosed” from participating in the hearing by instructions from the

presiding judge, did not appear to have “ever expressed any position” on the defendant’s

competence, and did not appear to have “reviewed any documents” concerning the defendant’s

competence. 608 F. App’x at 344-46. But Amir’s attempted comparison does not stand up.

Whitney believed he had an independent duty to raise any competency concerns with the court,

was not forbidden from participating in the competency hearing, and strategically chose not to

actively participate because he had reviewed Dr. Brannen’s report and agreed with its conclusion

that Amir was competent. Martin itself recognized that such actions by standby counsel can

satisfy a defendant’s Sixth Amendment right to counsel:

              Standby counsel need not present argument during the competency
              hearing to satisfy this standard, as long as the decision not to
              contest competency is an independent, strategic one, borne out of
              adequate investigation of the defendant’s competency and
              appropriate preparation for the hearing. . . . Adequate investigation
              entails, at a minimum, reading and analyzing a mental health
              evaluation of the defendant prepared for the hearing.

608 F. App’x at 344 (citing Ross, 703 F.3d at 873-74).

                                        III. Conclusion

       For the foregoing reasons, we hold that Whitney’s efforts as standby counsel provided for

“meaningful adversarial testing” of Amir’s competency to stand trial. Thus, Amir was not

deprived of counsel in violation of the Sixth Amendment.

       The judgment of the district court is AFFIRMED.




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