                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         APR 21 2004
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,                        No. 03-1254
 v.                                                    (D. Colorado)
 CARY J. GAGAN,                                  (D.C. No. 02-CR-193-MK)

             Defendant-Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to decide this case on the briefs without oral argument. See Fed. R.

App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted

without oral argument.

      Cary J. Gagan was indicted by a grand jury on three counts of making false

statements in violation of 18 U.S.C. § 1001 and three counts of making

threatening communications in violation of 18 U.S.C. § 876. The district court


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
ordered Mr. Gagan to be committed for a competency evaluation. Subsequently,

Mr. Gagan submitted pro se filings to       this court challenging on various grounds

the district court proceedings regarding the commitment order and the

competency evaluation. These documents were construed as a misdirected timely

pro se notice of appeal of the commitment order and were forwarded to the

district court for docketing. Rec. doc. 91;        see Fed. R. App. P. 4(d).   Mr. Gagan’s

attorney filed a brief in this court pursuant to      Anders v. California , 386 U.S. 738

(1967), and sought leave to withdraw. We conclude that we must DISMISS

several of Mr. Gagan’s claims because we lack jurisdiction. Mr. Gagan’s

remaining claims regarding the commitment order lack merit; therefore, we

AFFIRM the district court’s commitment order and GRANT his counsel’s motion

to withdraw.



                                    I. BACKGROUND

       On April 21, 2003, counsel for Mr. Gagan filed a motion for a hearing to

determine the competency of his client pursuant to 18 U.S.C. § 4241(a). At the

time, Mr. Gagan was incarcerated in Colorado on a 26-year state sentence. On

May 5, 2003, the district court granted the motion, ordered a psychiatric

examination, and set a date for a competency hearing.

       On May 22, 2003, the district court conducted a conference call hearing


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with the attorneys for the government and Mr. Gagan. Mr. Gagan was not

present at this conference call hearing, and his appearance was not waived. See

Rec. doc. 86. At this hearing, the district court vacated its order for a psychiatric

examination and committed Mr. Gagan to the Bureau of Prisons for a

competency evaluation pursuant to 18 U.S.C. §§ 4241(b) and 4247(b). Rec. doc.

87.

      Although the district court ordered Mr. Gagan to be transferred to the

Federal Medical Center in Butner, North Carolina, Rec. doc. 86, the record

indicates that he was actually evaluated at the Federal Medical Center in Devens,

Massachusetts. See, e.g., Rec. doc. 96, at 6. The warden there requested and

received two thirty-day extensions from the district court to complete Mr.

Gagan’s evaluation.



                                 II. DISCUSSION

      Mr. Gagan’s attorney has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and has moved for leave to withdraw as counsel. Pursuant

to Anders, “if counsel finds his case to be wholly frivolous, after a conscientious

examination of it, he should so advise the court and request permission to

withdraw.” Id. at 744.

      Mr. Gagan has submitted pro se filings claiming that (1) his indictment


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was forged, causing the district court and this court to be without jurisdiction

over his case; (2) the district court engaged in judicial misconduct by ignoring

irregularities in his indictment; (3) the record was devoid of evidence of his

incompetence; (4) his rights were violated because he was not present at the May

22, 2003, conference call; (5) his rights were violated because he was transferred

to an institution 2000 miles from Colorado for the psychiatric evaluation; (6) he

was denied his right to proceed pro se; (7) his counsel has engaged in “deliberate

ineffectiveness [by] acting as an advocate of the government,” Aplt’s Obj. to

Counsel’s Anders Br., at 7 n.4; (8) his rights were violated by the duration of his

commitment, which exceeded the time limits set forth in § 4247(b); and (9)

“upon the filing of the notice of appeal on May 30, 2003, the district court was

divested of jurisdiction over this criminal case until the court of appeals reached

the merits of the appeal.” Aplt’s Letter, filed Jan. 28, 2004, at 3.

      After a review of the record and the applicable law, we conclude that we

lack jurisdiction over claims (1), (2), (7), and (9), therefore dismiss them.

Because the remaining claims lack merit, we affirm the district court’s

commitment order and grant counsel’s Anders motion.

A. Appellate Jurisdiction

      We must first determine whether we have jurisdiction over this appeal. In

order to do so, we consider the statutes at issue.


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       Mr. Gagan has challenged the district court’s commitment order, entered

pursuant to 18 U.S.C. §§ 4241 and 4247. Section 4241 provides that “[a]t any

time after the commencement of a prosecution for an offense and prior to the

sentencing of the defendant, the defendant or the attorney for the defendant may

file a motion for a hearing to determine the mental competency of the

defendant.” 18 U.S.C. § 4241(a). The court should grant the motion “if there is

reasonable cause to believe that the defendant may presently be 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.”   Id. The court may also order that a

psychiatric or psychological examination of the defendant be conducted prior to

the hearing. 18 U.S.C. § 4241(b). Under § 4247, the court may commit the

defendant to the custody of the Attorney General for placement in a suitable

facility where the psychiatric or psychological examination may be conducted.

       “[A] commitment order issued for the purpose of obtaining an evaluation

of the defendant’s competency to stand trial as described in 18 U.S.C. § 4241(b)

may be immediately appealed.” United States v. Deters, 143 F.3d 577, 581 (10th

Cir. 1998). Moreover, “[a]lthough [Mr. Gagan’s] initial commitment period has

expired, this case is not moot.” Id. at 579 n.2. Under 18 U.S.C. § 4247(b), “[a]

commitment order . . . [may] last[] a maximum of forty-five days, with a possible


                                             5
thirty-day extension upon a showing of good cause for the extension. Such an

order will rarely if ever outlive the appellate process. This case, therefore, is

‘capable of repetition, yet evading review and hence is justiciable.’” Id. (quoting

United States v. Boigegrain, 122 F.3d 1345, 1347 n.1 (10th Cir. 1997) (en banc)

(per curiam)). Accordingly, as further explained below, we conclude that we

have jurisdiction over the issues raised by Mr. Gagan that concern the district

court’s commitment order. However, the other issues raised by Mr. Gagan are

not properly before us, and we dismiss them.

B. Indictment Forgery and Judicial Misconduct

      Mr. Gagan’s first and second claims are not properly before this Court. As

to his claim that his indictment was forged, Mr. Gagan’s case is still pending in

the district court, and we will not address matters that the district court has not

yet ruled upon. See, e.g, Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712

(1996) (“[A] party is entitled to a single appeal, to be deferred until final

judgment has been entered, in which claims of district court error at any stage of

the litigation may be ventilated.”) (quotation marks omitted). We also do not

reach Mr. Gagan’s claims of judicial misconduct. Such claims are handled by

the chief judge of the circuit. 28 U.S.C. § 351(c).




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C. Evidence of Incompetence

      As for Mr. Gagan’s claim that the record was devoid of evidence of his

incompetence, we disagree. “Whether to order a competency examination is

reviewed for an abuse of discretion. . . . Absent findings of an insufficient

factual basis for a § 4241(a) motion, or a lack of good faith in making the

motion, a competency evaluation is required.” United States v. Ramirez, 304

F.3d 1033, 1035 (10th Cir. 2002). Upon a review of the record, we agree with

the district court that there was a sufficient factual basis for the motion and that

there is no indication that Mr. Gagan’s counsel made the motion in bad faith.

Thus, the district court did not abuse its discretion in ordering a psychological

evaluation to determine Mr. Gagan’s competency.

D. Mr. Gagan’s Absence from Conference Call

      Next, Mr. Gagan claims that his rights were violated because he was not

present at the May 22, 2003, conference call between his attorney, the district

court judge, and the prosecutor. At that hearing, the judge decided to change the

location and scheduling of the competency examination.

      Federal Rule of Criminal Procedure 43 requires a defendant to be present

at certain stages of the proceedings but not at others:

      (b) When Not Required. A defendant need not be present under any of
      the following circumstances:
             (1) Organizational Defendant. The defendant is an organization
             represented by counsel who is present.

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             (2) Misdemeanor Offense. The offense is punishable by fine or
             by imprisonment for not more than one year, or both, and with
             the defendant's written consent, the court permits arraignment,
             plea, trial, and sentencing to occur in the defendant’s absence.
             (3) Conference or Hearing on a Legal Question. The proceeding
             involves only a conference or hearing on a question of law.
             (4) Sentence Correction. The proceeding involves the correction
             or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c).

Fed. R. Crim. P. 43(b) (emphasis added).

      Although Rule 43 does not specifically address the circumstances here, the

May 22, 2003, conference call bears more resemblance to a conference or

hearing on a legal question, at which the defendant’s presence is not required,

than to any of the proceedings at which a defendant’s presence is required. See

id. at 43(a). Prior to the conference call, the district court had already conducted

a hearing and ordered the psychological evaluation, and Mr. Gagan has made no

claim that he was not present at that proceeding. The purpose of the conference

call was merely to address the location and scheduling of the evaluation.

Additionally, Mr. Gagan’s counsel was present for the conference call, and he

specifically raised Mr. Gagan’s objections to the competency evaluation in

general as well as his objections to being evaluated at a different location. Tr. of

Hr’g on Competency Examination, at 13-14. Therefore, we conclude that Mr.

Gagan’s rights were not violated by his absence from the conference call.

E. Location of Psychological Evaluation

      Mr. Gagan’s contention that his rights were violated because he was

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transferred to an institution 2,000 miles from Colorado for the psychological

evaluation also fails. 18 U.S.C. § 4247(b) states that “[u]nless impracticable, the

psychiatric or psychological examination shall be conducted in the suitable

facility closest to the court.” The record reflects that the district court and the

attorneys for Mr. Gagan and the government agreed upon a facility because they

believed that it was the only one doing such psychological evaluations. See Tr.

of Hr’g Regarding Competency Examination, at 8. Indeed, Mr. Gagan has not

argued that there was a suitable facility closer to Colorado. Therefore, it seems

that it was “impracticable” for Mr. Gagan’s evaluation to be conducted in a

facility nearer to Colorado. Moreover, the record is devoid of facts to support an

argument that the decision to transfer Mr. Gagan to a distant facility was

unreasonable, and any implication that the district court acted in bad faith is

gratuitous. See United States v. Taylor, 353 F.3d 868, 870 (10th Cir. 2003). See

also Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (“[T]here is no

federal constitutional right to incarceration in any particular prison or portion of

a prison.”). Thus, Mr. Gagan’s rights were not violated by the transfer.

F. Right to Proceed Pro Se

      Mr. Gagan also claims that he was denied his right to proceed pro se. The

district court declined to rule on Mr. Gagan’s pro se motions “until [Mr.

Gagan’s] competence to stand trial ha[d] been established and issues relating to


                                           9
his continued representation by counsel ha[d] been resolved.” Rec. doc. 103

(Order, filed June 30, 2003).

      “Criminal defendants have a constitutional right, rooted in the Sixth

Amendment, to conduct their own defense. Thus, a lawyer cannot be forced

upon a defendant who wishes to act as his own representative, even if

self-representation would be detrimental to the defendant.” Boigegrain, 155 F.3d

at 1185 (citations omitted). However, “the degree of competence necessary to

waive the right to counsel is identical to the degree of competence necessary to

stand trial. Therefore, it [is] impossible for the district court to allow the

defendant to waive counsel before determining whether he was competent to

stand trial.” Id. (citations omitted) (citing Godinez v. Moran, 509 U.S. 389, 399-

400 (1993)).

      Here, Mr. Gagan filed his pro se motions when he was represented by

counsel and before a determination of competency by the district court. In these

circumstances, the district court did not violate Mr. Gagan’s right to proceed pro

se.

G. Ineffective Assistance of Counsel

      Mr. Gagan claims that his counsel has engaged in “deliberate

ineffectiveness [by] acting as an advocate of the government,” Aplt’s Objections

to Counsel’s Anders Brief, at 7 n.4, presumably by raising the issue of Mr.


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Gagan’s competence. “[A] motion brought under § 2255 is preferable to direct

appeal for deciding claims of ineffective-assistance.” Massaro v. United States,

123 S.Ct. 1690, 1694 (2003); United States v. Galloway, 56 F.3d 1239, 1240

(10th Cir. 1995) (en banc) (“Ineffective assistance of counsel claims should be

brought in collateral proceedings, not on direct appeal. Such claims brought on

direct appeal are presumptively dismissible, and virtually all will be dismissed.”).

Therefore, we decline to address Mr. Gagan’s claims in this direct appeal.

H. Duration of Commitment

      Mr. Gagan contends that his rights were violated by the duration of his

commitment, which exceeded the time limits set forth in § 4247(b). Section

4247(b) provides that “[f]or the purposes of an examination pursuant to an order

under section 4241 . . . the court may commit the person to be examined for a

reasonable period, but not to exceed thirty days. . . . The director of the facility

may apply for a reasonable extension, but not to exceed fifteen days under

section 4241 . . . upon a showing of good cause that the additional time is

necessary to observe and evaluate the defendant.” 18 U.S.C. § 4247(b).

      The record indicates that the district court granted two extensions of 30

days for the psychological evaluation to be completed, see Rec. doc. 109, 110,

and 111. Thus, we agree with Mr. Gagan that the district court exceeded the

statutorily prescribed 45-day limit on such evaluations. However, § 4247(b)


                                         11
“contains time limitations for a mental examination but no express remedy for

exceeding those limitations.” Taylor, 353 F.3d at 869. The warden of the

Federal Medical Center at which Mr. Gagan was being evaluated asked for the

extensions “due to the complexity of the case and the voluminous records sent to

be reviewed.” Rec. doc. 109. The implication that the district court acted in bad

faith or was unreasonable in granting the extensions is gratuitous. See id. at 870.

Thus, we hold that Mr. Gagan’s rights were not violated by the duration of his

commitment. See id.; but see id. (“Time limitations and provisions for

extensions of time have been set forth clearly by Congress. Custodial institutions

should read the statute and comply with its provisions.”) (Lucero, J., concurring).

I. Jurisdiction Pending Appeal

      Finally, Mr. Gagan contends that “upon the filing of the notice of appeal

on May 30, 2003, the district court was divested of jurisdiction over this criminal

case until the court of appeals reached the merits of the appeal.” Aplt’s Letter,

filed Jan. 28, 2004, at 3. The record does not indicate that Mr. Gagan requested

a stay of proceedings in the district court during the pendency of this

interlocutory appeal. Therefore, we decline to address this claim. See also

Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1174 (6th Cir. 1995)

(“[A]n appeal from an interlocutory order does not divest the trial court of

jurisdiction to continue deciding other issues in the case.”) (internal quotation


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marks omitted).

                               III. CONCLUSION

      Because we find that we lack jurisdiction over Mr. Gagan’s claims

regarding indictment forgery, judicial misconduct, ineffective assistance of

counsel, and jurisdiction pending appeal, we DISMISS these claims. With regard

to the commitment order, we find that Mr. Gagan’s claims regarding evidence of

his incompetence, his absence from the conference call, the location of his

psychological evaluation, his right to proceed pro se, and the duration of his

commitment lack merit. Therefore, we AFFIRM the commitment order and

GRANT counsel’s motion to withdraw.

                                       Entered for the Court,

                                       Robert H. Henry
                                       Circuit Judge




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