              Case: 14-14081   Date Filed: 12/11/2015   Page: 1 of 16


                                                            [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                            Nos. 14-14081; 14-14088
                            Non-Argument Calendar
                          ________________________

          D.C. Docket Nos. 1:12-cr-20123-RNS-1; 1:08-cr-21158-RNS-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                     versus

JOEL STEINGER,
a.k.a. Joel Steiner,

                                                            Defendant-Appellant.

                          ________________________

                   Appeals from the United States District Court
                       for the Southern District of Florida
                          ________________________

                               (December 11, 2015)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Joel Steinger is serving a total 240-month sentence after pleading guilty to 2

counts of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C.

§ 1349. Steinger’s convictions arose from two separate cases, but we have

consolidated his appeals because they raise the same issues concerning Steinger’s

competence to plead guilty. After careful review, we affirm.

                                 I. BACKGROUND

A.    2008 and 2012 Indictments

      In 2008, Steinger was charged with conspiracy to commit mail and wire

fraud, in violation of § 1349; substantive mail and wire fraud, in violation of 18

U.S.C. §§ 2, 1341, and 1343; and conspiracy to commit money laundering, in

violation of 18 U.S.C. § 1956(h), all in connection with a scheme to fraudulently

sell interests in third parties’ life insurance policies (hereinafter, the “2008 case”).

      In 2012, while Steinger was out on bond awaiting trial, he was indicted in a

separate action for conspiracy to commit mail and wire fraud and substantive mail

and wire fraud, based on his participation in a scheme to fraudulently obtain health

insurance (hereinafter, the “2012 case”).




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       In December 2012, after holding multiple status conferences, the district

court presiding over Steinger’s 2008 case sua sponte scheduled a competency

hearing and ordered mental and physical competency evaluations of Steinger. 1

B.     2013 Competency Evaluation Report

       On May 3, 2013, the district court received a forensic evaluation of Steinger

under seal. Psychiatrist Ralph Newman, M.D., and psychologist Adeirdre Stribling

Riley, Ph.D., authored the report describing Steinger’s mental and physical

condition. They stated that Steinger was 63 years old and suffered from spinal

stenosis, myeloradiculopathy, chronic obstructive pulmonary disease, which

required oxygen, benign prostatic hypertrophy, gastro-esophageal reflux disease,

polyps on the gallbladder, sleep apnea, insomnia, obesity, and incontinence, and

had masses on his parotid glands and needed a catheter to urinate.

       Between 1994 and 2009, Steinger had three surgeries for his spinal stenosis.

While awaiting trial, Steinger was housed at Larkin Community Hospital

(“Larkin”), where physicians recommended that he be evaluated for further

surgical intervention. Steinger, however, refused to have any operation at Larkin,

and requested instead that he be transferred to the University of Miami Hospital

(“UMH”) for the recommended evaluation.

       1
          Steinger raised competency concerns in his 2012 case. The parties ultimately agreed
that the results of the competency hearing in the 2008 case would be binding on both cases.
Consequently, all of the proceedings relevant to Steinger’s competency and the appeals before us
occurred in the 2008 case.
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      Steinger relied on a battery of drugs to control his pain. He used a fentanyl

patch and took venlafaxine, ozcarbazepine, ibuprofen, acetaminophen, methadone,

and morphine. He also took Ativan for anxiety, in addition to other miscellaneous

medications for his gastrointestinal and prostate ailments. Steinger rated his pain

as ten out of ten.

      As to Steinger’s mental health, Dr. Newman and Dr. Stribling Riley

concluded:

      [A]lert and oriented to person, place, time, and situation. His memory
      is intact for immediate, recent, and remote recall to include details of
      the alleged offense . . . . Thought processes are well-organized
      without a thought disorder. He denies delusions or hallucinations. He
      is somatically preoccupied with his pain and discomfort, which
      appears to be genuine, although pain is subjective.

They noted that Steinger was “more depressed than the average person” but “less

depressed than the average pain patient.” His anxiety was average when compared

to the general community but “considerably below average for pain patients.”

      Overall, the doctor examiners determined that Steigner was competent to

stand trial. They opined that Steigner did not suffer from a severe mental disease

or defect, and that he understood the charges against him and the possible penalties

and benefits associated with pleading guilty. Steinger could assist counsel in his

defense, and his medication regimen did not impede his ability to do so or to

understand the proceedings. Finally, the doctors documented some malingering,



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noting that Steigner sought to “portray himself with a severe physical disability

which would limit his ability to participate in . . . legal activities.”

C.        May 2013 Competency Hearing

          After receiving the report, the district court held a competency hearing on

May 29, 2013. Dr. Newman testified that: (1) there was “no doubt in [his] mind”

that Steinger had the mental competency to undergo trial and assist in his defense;

(2) Steinger’s medications were “not particularly cognitively impairing” in their

current doses; and (3) pain is subjective and can be easily exaggerated, and it was

suspicious if a person claiming extreme pain refused a surgery that could provide

relief.

          Dr. Stribling Riley testified that Steinger was competent to stand trial.

Steinger was on medication when she examined him and he was still able to

complete 1 hour and 15 minutes’ worth of psychological tests and give coherent

and rational responses to the questions. Dr. Stribling Riley observed that it was

“remarkable, given the length of testing, that there were no complaints of pain or

observable signs of pain.” She waited about 15 minutes after he took his

medication to begin the tests because she was concerned that he could be distracted

by his pain or temporarily sedated by the medication. She observed that Steinger

had the wherewithal to be aware of his pain and request medication when he

needed it.


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      Steinger addressed the district court and stated that he was in such pain that

he screamed and cried all the time. He said it was “common sense” that morphine

affected his ability to concentrate and that, without the morphine, he was in such

pain that he could not focus. Steinger explained that “[t]his all could be solved” if

he received a spinal surgery at a hospital that was better equipped to handle the

risky procedure and subsequent physical therapy than Larkin. He suggested UMH,

and explained that he had previously declined the operation because he did not

have faith in his Larkin doctors’ abilities.

      The district court found that Steinger was competent to stand trial. It

determined that he did not have a serious mental disease or defect and that his

medication was not affecting his ability to assist his attorneys. The district court

stated that it would continue to monitor Steinger’s health and medication regimen

during the months leading up to trial.

D.    September 2013 Status Conference

      On September 9, 2013, the district court conducted a status conference, in

which Steinger spoke at length about his health and requested a continuance. He

stated that his medical condition had changed rapidly over the intervening months

and he could not stand the pain any longer. He was past taking morphine and now

required heavier drugs, which still did not give him relief. Steinger described

himself as “a walking dope man” and said that he did not “even know what’s going


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on half the time.” Steinger’s counsel also stated that Steinger was preoccupied by

his health during attorney-client interviews. Counsel requested a continuance

because Steinger had a surgical consult scheduled at UMH and the surgery could

alleviate Steinger’s pain. The district court severed Steinger’s case from his co-

conspirators’ cases and ordered a continuance.

E.    December 2013 Status Conference

      The parties met for another status conference on December 19, 2013. UMH

personnel related to the district court that Steinger had a surgical consult on

September 19, 2013, and the neurosurgeon scheduled Steinger’s surgery for the

next day. Steinger, however, refused the surgery on September 20, and refused the

surgery on two more occasions. Eventually, UMH discharged Steinger because the

surgery was not going to occur. Steinger’s surgeon stated that the procedure would

likely have a worse outcome now that Steinger delayed it.

      Steinger testified that he refused to have surgery on September 20 because

he had not met the surgeon and no one had explained the procedure to him or told

him about the rehabilitation process. He denied refusing the surgery on the second

date that it was scheduled. Steinger stated that, on that occasion, he simply wanted

to speak to the surgeon about arrangements for his rehabilitation before consenting

to the procedure. After the second attempted surgery, Steinger learned for the first

time that he needed work on multiple areas of his spine. He was surprised to hear


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that. He also learned that pre-surgical testing revealed that he had suffered a heart

attack at an unknown time. He returned to Larkin to make arrangements and think

things over in light of the new information, and his pain continued to worsen.

      Steinger told the district court that he still wanted the surgery but only if

satisfactory arrangements for his rehabilitation could be made. Steinger’s treating

physician at Larkin testified that, despite the pain since his return from UMH,

Steinger had a good memory and was “with it 100 percent.” The district court

scheduled the trial to begin in April 2014 regardless of whether Steinger had the

operation.

F.    March 2014 Plea

      But in March 2014, Steinger accepted a plea agreement for both cases. At

the consolidated change-of-plea hearing, Steinger testified that he was taking

Dilaudid for his back pain, which was stronger than morphine. He also took

OxyContin and Ativan prior to the hearing. The district court asked him whether

he could think clearly and understand what was happening, and Steinger replied

that he could.

      Steinger then signed the plea agreement and stated that he understood the

factual proffer, terms, conditions, maximum statutory sentence, the method in

which his sentence would be calculated under the Sentencing Guidelines, and the

rights that he was giving up by pleading guilty. No one had coerced him into


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entering the plea or made any promises. Steinger explained that he had talked with

his attorney about his case and his decision to plead guilty. Finally, the district

court discussed Steinger’s sentence appeal waiver and Steinger did not express any

misunderstandings or concerns.

       The district court accepted Steinger’s guilty plea and determined that he was

“fully competent and capable of entering an informed plea.” The court stated that,

due to Steinger’s health issues, it had paid particular attention to his answers and

“condition” in reaching this conclusion.

G.     August 2014 Sentencing

       At a consolidated sentencing hearing that August, the district court

sentenced Steinger to concurrent 239-month sentences in both the 2008 and 2012

cases, and imposed a consecutive 1-month sentence under 18 U.S.C. § 3147

because Steinger committed the 2012 offense while he was on bond from the 2008

offense. Steinger now appeals his convictions.

                   II. GUILTY PLEA AND APPEAL WAIVER

A.     Legal Principles

       Because Steinger did not object to the district court’s determination that he

was competent to enter a guilty plea, our review is for plain error only. 2 United

States v. Rodriguez, 751 F.3d 1244, 1251 (11th Cir.), cert. denied, 135 S. Ct. 310

       2
         A defendant’s sentence appeal waiver cannot bar his claim that he was incompetent to
plead guilty. United States v. Wingo, 789 F.3d 1226, 1234 n.8 (11th Cir. 2015).
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(2014). “To establish plain error, a defendant must show that there is (1) error,

(2) that is plain, and (3) affects substantial rights.” Id. (quotations omitted). In

addition, in the context of guilty pleas, the defendant must show that, but for the

error, there was a reasonable probability that he would not have entered the plea.

Id. at 1252.

      Defendants have a fundamental right under the Due Process Clause not to be

convicted while incompetent. United States v. Wingo, 789 F.3d 1226, 1235 (11th

Cir. 2015). Thus, a defendant’s guilty plea, and any corresponding waiver of his

appellate rights, is not valid if the defendant was incompetent at the time of the

plea. See id. A defendant is competent to enter a guilty plea only when 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.” Rodriguez, 751 F.3d at 1252 (quotation marks omitted).

      Federal Rule of Criminal Procedure 11 safeguards a defendant’s right not to

plead guilty while incompetent by requiring the district court to “conduct an

inquiry into whether the defendant makes a knowing and voluntary guilty plea.”

United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir. 2000). The court

must address three core concerns: (1) whether the plea is free from coercion;

(2) whether the defendant understands the nature of the charges; and (3) whether

the defendant knows and understands the consequences of his plea. Id.


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      A similar inquiry is required in order for a sentence appeal waiver to be

enforceable. The record must make clear that the defendant “understood the full

significance of the waiver,” or that “the district court specifically questioned the

defendant about the waiver” during the plea colloquy. United States v. Johnson,

541 F.3d 1064, 1066 (11th Cir. 2008).

B.    Discussion

      The record evidence establishes that the district court did not err, plainly or

otherwise, by accepting Steinger’s guilty plea. In May 2013, about ten months

before Steigner pled guilty, two mental health professionals evaluated him and

agreed that he could understand the charges against him and participate in his own

defense. They concluded that Steinger’s medications did not impede his cognitive

abilities and he was competent to stand trial.

      Specifically, the medical experts found that Steinger was alert and oriented

and was able to give coherent responses to questions. Accordingly, at this

juncture, there was no evidence that Steinger was incompetent. See Rodriguez,

751 F.3d at 1252.

      While Steinger contends that his health deteriorated between May 2013 and

March 2014, causing him to become incompetent, the record does not support his

contention. Steinger spoke at two status conferences before pleading guilty in

March 2014, and he provided lucid and pointed commentary about his health on


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each occasion. He also presented seemingly rational reasons for delaying his

spinal surgery at UMH; although, based on Dr. Newman’s and Dr. Stribling

Riley’s suggestion that Steinger was malingering, it was reasonable to believe that

he was delaying the surgery to manipulate his legal proceedings. Furthermore,

while it appears that Steinger began taking stronger pain medications at some time

before the December 2013 status conference, there was no indication that Steinger

was unable to focus during the proceedings, and his treating physician testified that

he was “with it 100 percent.”

      Similarly, at the change-of-plea hearing in March 2014, Steinger acted

appropriately and stated that he was thinking clearly, could understand what was

happening, and understood his plea agreement and the factual proffer. There is no

doubt that Steinger suffered from serious physical health conditions and was taking

a number of medications to control his pain, but Steinger’s own admissions and

behavior throughout his two cases showed that his cognitive abilities remained

intact. At the worst, Steinger was distracted and anxious because of his health

conditions and 26-month hospitalization, but there was no indication that he failed

to appreciate the proceedings against him or assist his attorneys in preparing a

defense. See id. Rather, the record of the proceedings showed that Steinger

consistently was alert, articulate, and attentive to the factual basis of the




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proceedings and had the ability to consult with his counsel. 3 See id. Therefore, the

district court did not err by determining that Steinger was competent to enter a

guilty plea.

       Finally, to the extent that Steinger seeks to invalidate his guilty plea or

sentence appeal waiver for reasons other than his competency, his arguments fail.

At the change-of-plea hearing, the district court confirmed that Steinger understood

the nature of the charges against him and the consequences of pleading guilty. See

Fed. R. Crim. P. 11; Hernandez-Fraire, 208 F.3d at 949. Steinger further agreed

that no one coerced him into entering his plea. See Fed. R. Crim. P. 11;

Hernandez-Fraire, 208 F.3d at 949. Likewise, the district court questioned

Steinger about the provisions of the sentence appeal waiver and Steinger did not

express any misunderstandings. See Johnson, 541 F.3d at 1066. Steinger’s plea

agreement and sentence appeal waiver are both valid and enforceable.

                     III. SECOND COMPETENCY HEARING

A.     Legal Principles

       Whether a defendant is competent is an ongoing inquiry, and the defendant

must be competent at all stages of trial. Drope v. Missouri, 420 U.S. 162, 181, 95



       3
          We also note that Steinger’s attorney, who had been attentive to Steinger’s physical and
mental health needs throughout the two cases, did not raise concerns about Steinger’s
competency at the change-of-plea hearing. While this is not dispositive, it is further evidence
that Steinger’s competency was not in doubt. See Watts v. Singletary, 87 F.3d 1282, 1288 (11th
Cir. 1996).
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S. Ct. 896, 908 (1975). Pursuant to 18 U.S.C. § 4241(a), when there is “reasonable

cause to believe that the defendant may presently be [incompetent],” the district

court must order a competency hearing sua sponte. 18 U.S.C. § 4241(a). The

“reasonable cause” standard is satisfied when there is a “bona fide doubt regarding

the defendant’s competence.” See Wingo, 789 F.3d at 1236 (quotation marks

omitted).

      This Court has identified three factors to consider when determining whether

there was a bona fide doubt about the defendant’s competence: “(1) evidence of the

defendant’s irrational behavior; (2) the defendant’s demeanor at trial; and (3) prior

medical opinion regarding the defendant’s competence to stand trial.” Id.

(quotation marks omitted). The district court “must consider the aggregate of

evidence pertaining to all three prongs and not evaluate each prong in a vacuum.”

Id.

      While we normally review issues not raised below for plain error, the abuse-

of-discretion standard always applies when reviewing a district court’s failure to

sua sponte order a competency hearing. See id. at 1234, 1236 (reviewing a

§ 4241(a) claim for abuse of discretion despite the fact that no objection was made




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in the district court); United States v. Williams, 468 F.2d 819, 820 (5th Cir. 1972)

(applying the same standard). 4

B.     Discussion

       The district court did not abuse its discretion by determining that Steinger

was competent to plead guilty without ordering a second competency evaluation.

Each medical professional who evaluated Steinger concluded that he was

competent to stand trial. See Wingo, 789 F.3d at 1236. Furthermore, while

Steinger was often agitated and angry during hearings and status conferences, he

was attentive to the proceedings, provided meaningful responses to questions, and,

during the change-of-plea hearing, explicitly indicated that he was thinking clearly

and could understand the significance of his guilty plea. See id. While Steinger

now contends that his decision to cancel his spinal surgery was irrational, the

record shows that Steinger had concerns about rushing the procedure and receiving

inadequate physical therapy. These concerns, and any desire to avoid trial,

however, were understandable under the circumstances and did not evidence

irrationality. See id.

       As Steinger was alert, articulate, and rational during his two cases, and did

not have any prior medical diagnoses suggesting he was incompetent, there was no


       4
         This Court has adopted as binding precedent all decisions of the former Fifth Circuit
handed down before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).
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bona fide doubt about his ability to understand the proceedings and participate in

his defense. See id. Accordingly, the district court did not abuse its discretion by

failing to order a second competency hearing sua sponte. See 18 U.S.C. § 4241(a);

Wingo, 789 F.3d at 1236.

      In light of all the foregoing, we affirm Steinger’s two convictions.

      AFFIRMED.




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