                                 REVISED October 14, 2008

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

                                                                             FILED
                                                                        September 30, 2008
                                         No. 07-30934
                                                                      Charles R. Fulbruge III
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellant,
v.

REGINALD B. ATKINS,

                                                     Defendant - Appellee.



                      Appeal from the United States District Court
                         for the Western District of Louisiana
                                  5:06-CR-50081-ALL


Before GARZA and DENNIS, Circuit Judges, and MILLS, District Judge.*
PER CURIAM:**
       The Government appeals the district court’s pre-trial order suppressing
in the “interest of justice” certain statements that the defendant, Reginald B.
Atkins, allegedly made to law enforcement officers, but which the defendant




       *
           Chief District Judge of the Northern District of Mississippi, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30934

could not subsequently recall as a result of amnesia. For the following reasons,
we REVERSE and REMAND.
          The defendant, Reginald B. Atkins, was indicted and arrested for being a
felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1). After his
arrest, while on bond, the defendant suffered an episode of hypoxic
encephalopathy, resulting in a medically verifiable brain injury. As a result of
the defendant’s condition, the defendant was unable to recall certain events
leading up to his arrest. Specifically, the defendant did not recall inviting three
officers into the house in which he was residing, leading the officers to a garage
filled with guns, and then, when referring to a case with two rifles in it, telling
the officers: “Those two are mine,” or “Those are my two sniper rifles.” The
defendant also did not recall telling the officers, who informed the defendant
that they were investigating a report of a missing shotgun, that “They’re over
there” in referring to the guns located in the garage.1
          A magistrate judge conducted a competency hearing to determine whether
the defendant could obtain a fair trial despite his amnesia. The magistrate
judge found that the defendant’s amnesia was real, but nonetheless concluded
that the defendant was competent to stand trial.                 The magistrate judge
acknowledged that the defendant’s statements presented a “real challenge,” but
observed that “the fact that he does not remember the statement does not,
standing alone, render the statement inadmissible. The District Judge will be
able to deal with any issues regarding the statement in the context of the actual
trial.”
          The district court then held a pre-trial conference, in which the court sua
sponte expressed its intent to suppress the defendant’s statements.                     The


          1
         The defendant’s mother, Wanda Lacy, called the police to report that a shotgun owned
by her late husband was missing from a house she owned, but in which her son, the defendant,
was residing. Her call is what led the police to the defendant.

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                                           No. 07-30934

defendant made an oral motion to suppress the statements, which the district
court granted, “[o]n the grounds that he cannot remember giving the statement
and cannot question how it was given, when it was given, and whether it was
given, and the nuances thereunder.”
          The Government moved the district court to reconsider its ruling and
requested an evidentiary hearing on the defendant’s motion to suppress. The
district court held a suppression hearing in which the three law enforcement
officers and the defendant’s mother testified. After the hearing, at the district
court’s request, the Government filed a letter stating that it had no evidence in
the case beyond the defendant’s statements and his physical possession of the
rifles.
          The district court issued a written order. In the order, the district court
concluded, consistent with the magistrate judge’s report and recommendation,
that the defendant was competent to stand trial. Nonetheless, the district court
held that
          in light of the evidence before this Court regarding Atkins’ lack of
          memory surrounding his statements to [the officers] on February 25,
          2005, related to Atkins’ ownership of the two sniper rifles, and
          Atkins’ inability to contradict the testimony of those officers or
          assist counsel in his defense as it relates to his making those
          statements, the interest of justice compels suppression of those
          statements.
Pursuant to 18 U.S.C. § 3731,2 the Government appealed the district court’s
suppression order.


          2
              Section 3731 provides in relevant part:
          An appeal by the United States shall lie to a court of appeals from a decision or
          order of a district court suppressing or excluding evidence or requiring the
          return of seized property in a criminal proceeding, not made after the defendant
          has been put in jeopardy and before the verdict or finding on an indictment or
          information, if the United States attorney certifies to the district court that the
          appeal is not taken for purpose of delay and that the evidence is a substantial
          proof of a fact material in the proceeding.

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                                  No. 07-30934

      The parties debate the applicable standard of review. The Government
argues that the district court’s suppression order is most analogous to an
application of the exclusionary rule based upon a violation of the defendant’s
constitutional rights under the Fourth or Fifth Amendment. As such, the
Government argues that the court should review the district court’s findings of
fact for clear error, but that the court should review de novo whether the district
court properly applied the exclusionary rule.        See, e.g., United States v.
Tompkins, 130 F.3d 117, 119–20 (5th Cir. 1997) (“With regard to ruling on a
motion to suppress, we review the district court’s factual findings for clear error
and its ultimate conclusion as to the constitutionality of the law enforcement
action de novo.” (internal quotation marks omitted)). On the other hand, the
defendant argues that the district court’s decision was an evidentiary ruling,
which we should review only for an abuse of discretion. See United States v.
Crawley, 533 F.3d 349, 353 (5th Cir. 2008) (“Evidentiary rulings are reviewed
for an abuse of discretion.”).    We decline to resolve this dispute because
reviewing the district court’s order under either standard, we conclude that the
district court erred in suppressing the defendant’s statements by invoking the
“interest of justice.”
      The district court’s order articulated no legal authority for suppressing the
defendant’s statements. We cannot countenance the district court’s exercise of
unbridled discretion to admit or exclude evidence based on the district court’s
unelaborated invocation of the “interest of justice.” See generally In re Dean, 527
F.3d 391, 394 (5th Cir. 2008) (“With due respect for the district court’s diligent
efforts to do justice, we conclude that, under the specific facts and circumstances
of this case, it was contrary to the provisions of the CVRA for the court to permit
and employ the ex parte proceedings that have taken place-proceedings that
have no precedent, as far as we can determine.”). The interest of justice guides
us always in performing our duties. Nonetheless, reliance on the “interest of

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                                        No. 07-30934

justice,” without more, does not afford the district court any basis to ignore the
Federal Rules of Evidence or to disregard established precedent defining the
contours of the exclusionary rule. Because the district court’s only basis for
suppressing the defendant’s statements—invocation of the “interest of
justice”—is insufficient to support that ruling, we REVERSE and REMAND.3




       3
         We express no opinion on the district court’s competency ruling. The district court is
free to reconsider or not reconsider its competency decision on remand. Furthermore, we
reverse only the district court’s exclusion of the evidence based on the court’s invocation of the
“interest of justice,” as that was the only basis for the court’s decision.

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                                  No. 07-30934

DENNIS, Circuit Judge, specially concurring.
      I fully concur in the majority opinion reversing the suppression of the
defendant’s statements and remanding to the district court. I write separately
to note that the defendant’s competency appears to present serious
constitutional issues which the district court may reconsider.
      The defendant’s amnesia may prevent him from receiving a fair trial
because of the particular context of this case, and a brief overview of the facts is
warranted. At the time of his arrest the defendant was living in a house owned
by his mother, who resided elsewhere, and which had previously been occupied
by his mother and step-father. On February 24, 2005, Wanda Lacy, the
defendant’s mother, brought her grandson with her to the house in which the
defendant was living in order to take an inventory of a collection of guns left
there by her late husband. Lacy and her grandson did not believe the defendant
to be home. As they were packing up the guns, however, the defendant appeared
and accused them of trying to steal the guns. Lacy was frightened, and she and
her grandson left the house without taking any of the firearms. According to
Lacy, she then called the Caddo Parish Sheriff’s Office and asked for assistance
removing the guns, reported one particular gun as missing, and told the police
that Atkins was a convicted felon. Later that night, according to Lacy, Lacy’s
grandson told her he had seen the supposedly missing gun in the garage at the
residence occupied by the defendant, and she informed the police that the gun
had been located.
      The police, however, claim Lacy never told them that the defendant was
a convicted felon. Instead, they assert that after Lacy called to report the gun
missing they went to the house to speak to the defendant but did not find him
there. The next day they returned, despite Lacy’s testimony that she had
reported that the gun had been found, and according to their testimony they
found the defendant, who told them he had the missing gun and that it was in


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                                   No. 07-30934

the garage. According to the police the defendant escorted them to the garage,
gestured at several gun cases, and told them the missing gun was in one of them.
The police testified that as they began opening the cases they discovered two
additional guns; according to the police the defendant then said one of the
following things: “Those two are mine,” “Those two rifles are mine,” or “Those are
my two sniper rifles” (the officers testified slightly differently on this score). The
police then called Lacy to notify her that they had found the gun and returned
to the police station, where they claim to have discovered for the first time that
the defendant was a convicted felon. They then obtained an arrest warrant for
the defendant and a search warrant for the house.
      The police attempted unsuccessfully to serve the warrant several times
over the following week - eventually, on March 2, 2005, the day the warrant
expired, the police informed Lacy that they would have to break into her house
to execute the search warrant. Lacy volunteered to bring the defendant to the
house to avert this possibility. When Lacy and the defendant arrived the police
arrested the defendant and executed the search warrant, seizing 25 guns
including the two sniper rifles defendant had allegedly claimed as his own
during his first encounter with the police. The defendant was released on bond,
and two months later, on April 25, 2005, he was admitted to the hospital for
hypoxic encephalopathy (lack of oxygen supply to the brain), sepsis, and acute
respiratory, renal and liver failure. The defendant was in the hospital for several
weeks, some of which were spent in a drug-induced coma. According to the
defendant’s doctor, Dr. Craig L. Miller, the illnesses and treatment resulted in
extensive brain damage.
      This brain damage gave rise to the defendant’s amnesia which is at the
center of this case. At a competency hearing held before a magistrate judge prior
to trial, experts for both the government and the defense testified that while the
defendant could rationally understand the charges and proceedings against him,


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                                  No. 07-30934

his brain injuries had left him amnesiac as to the events leading to his arrest.
The government’s expert, Dr. Robert Johnson, a forensic neuropsychologist
employed by the Federal Bureau of Prisons in Forth Worth, Texas, testified that
the defendant had an “amnesic disorder” that prevented him from remembering
the events leading to his arrest. Although Dr. Johnson testified he believed the
defendant was competent to stand trial because he understood the charges
against him, the possible punishments, and the nature of the court proceedings,
but he admitted that it was “a challenge” to see how the defendant could assist
his lawyer in his own defense, ROA at 147, since “if he has no memory, he’s not
going to be able to respond to [questions about the day he was arrested],” ROA
at 148. Dr. Seiden, a forensic psychiatrist who testified for the defense, testified
that the defendant was amnesic and that the question was not so much whether
he was competent, in terms of understanding the process, the parties, and the
consequences of the charges, but whether he could receive a fair trial given his
amnesia. Dr. Seiden agreed with Dr. Johnson that “If you ask [the defendant]
questions or if he has to challenge statements made during the time of his
amnesia, he would not be able to give you information.” ROA at 156. Dr. Seiden
also testified that the defendant’s amnesia was not likely to improve over time.
      Despite this testimony the magistrate judge found that the defendant was
competent to stand trial because, apart from his memory deficit, he “had a good
understanding of the charges against him and the roles of the various
participants in court proceedings.” ROA at 115. The magistrate judge also found
that the defendant could receive a fair trial despite his amnesia because the
issues in the case were “whether Defendant possessed the guns and whether he
was a convicted felon,” and these issues could be reconstructed based on the
government’s evidence and the testimony of the defendant’s mother, who was
involved in some of the events leading up to his arrest. ROA at 116. The district



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                                    No. 07-30934

court adopted these recommendations but suppressed the statements made by
the police about the defendant’s claims of ownership of the guns.
         The majority opinion fully and correctly addresses the suppression of these
statements in the “interests of justice.” I write separately here to explain my
view that the magistrate judge incorrectly applied the competency standard and
the case law in finding that the defendant was competent and could receive a
fair trial despite his amnesia as to the events leading to his arrest.
         Competency is an important component of due process in a criminal trial,
and, as this court has recognized, also implicates “an accused’s Fifth and Sixth
Amendment rights to a fair trial and effective assistance of counsel.” United
States v. Swanson, 572 F.2d 523, 526 (5th Cir. 1978).            As “an essential
consideration in the fairness of the trial,” it may be evaluated or reevaluated “at
any time during or after the trial . . .with or without a motion by counsel.” Id. at
526 n.3. See also 18 U.S.C. § 4241(a) (competency can be evaluated on motion of
the government or defendant or on court’s own motion at any time between
commencement of a prosecution and sentencing); United States v. White, 887
F.2d 705, 709 (6th Cir. 1989) (“It is also clear that [18 U.S.C. § 4241] in no way
limits the court to a single inquiry into a defendant’s competency. Indeed § 4241
contemplates inquiry over a wide period of time . . .”). Further, a magistrate
judge’s prior determination of competency does not prevent the parties or the
court from requesting or conducting further competency proceedings at trial.
White, 887 F.2d at 709. Thus the district court in this case has the authority -
even the responsibility - to reexamine competency on remand. 18 U.S.C. §
4241(a) (“The court . . . shall order [a competency] hearing on its own 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
. . . .”).



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                                    No. 07-30934

      A defendant must be declared incompetent to stand trial if the court finds
him to be “presently insane or otherwise so mentally incompetent that he is
unable to understand the proceedings against him or properly assist in his own
defense.” 18 U.S.C. § 4241(d). The Supreme Court has interpreted this test to be
an inquiry into whether the defendant “has sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding and whether
he has a rational as well as factual understanding of the proceedings against
him.” Swanson, 572 F.2d at 525-26 (referencing Dusky v. United States, 362 U.S.
402 (1960)).
      Although in most cases the competency inquiry focuses on whether the
defendant is able to understand the charges, the proceedings, and the roles of
the various players in the judicial process, a defendant is incompetent if he
cannot satisfy either part of the standard. “To show a substantive violation [of
defendant’s due process rights], an accused must prove an inability either to
comprehend or participate in the criminal proceedings.” Holmes v. King, 709
F.2d 965, 967 (5th Cir. 1983) (emphasis added). In ordinary circumstances a
defendant who cannot understand the charges, proceedings, or judicial process
is unlikely to be able to participate in his defense, and vice versa. It is only in the
rare case, as here, that the two parts of the test do not automatically follow from
one another. Nevertheless, the fact that the test is often collapsed does not mean
that the two parts are not still independent requirements.
      In the case of an amnesiac defendant who is otherwise generally mentally
sound, it is the second part of the test - the requirement that the defendant be
able to participate in his own defense - that is most relevant. This circuit has
dealt with this rare situation before. In United States v. Swanson, one of the
defendants to an extortion charge moved for dismissal on the grounds that his
amnesia as to the events in question prevented him from participating in his
own defense and receiving a fair trial. Swanson, 572 F.2d at 525. In that case,

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                                   No. 07-30934

this court indicated that a criminal defendant’s amnesia is not a per se bar to
trial, but instead triggers a case-by-case fact-based analysis. Id. at 526. The
inquiry into an amnesiac defendant’s competency proceeds on two levels. At the
first, “subjective” level, the court considers the defendant’s ability to participate
in his own defense. The factors at this stage include (1) the defendant’s ability
to take the stand on relevant matters other than those which he cannot
remember, (2) whether the defendant has any other conditions that hinder his
ability to participate in his own defense, (3) whether a continuance would
improve the chances of a fair trial or make a fair trial more difficult, and (4)
whether the amnesia appears to be real or feigned. Id. at 526-27. At the second,
“objective” level, the court considers whether the defendant can receive a fair
trial despite the challenges his amnesia may raise when it comes to assisting in
his own defense. Factors at this stage include (1) whether the crime and the
defendant’s whereabouts can be reconstructed without his testimony, (2) the
strength of the case against the defendant, and (3) whether some of the
disadvantage could be mitigated by giving the defendant access to the
government’s files. Id. at 527.
      The record in this case demonstrates that the defendant’s amnesia may
prevent him from receiving a fair trial. At the subjective level, only the first
factor applies here. The defendant cannot take the stand on related relevant
matters because there are no other relevant matters - the only relevant matters
are precisely those which he cannot remember, viz., what, if anything, he said
to the police about the guns that were found in his mother’s house.
      Both the first and second factors of the objective prong illustrate the
defendant’s disadvantage for the same reasons. There is no way to reconstruct
the scene accurately, through the time-tested method of the adversarial process,
without his testimony. Moreover, as the government has admitted, there is no
evidence supporting the charge of possession of a firearm except the testimony

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                                  No. 07-30934

by the police officers as to the defendant’s statements. ROA at 208. The
government has no evidence that the defendant purchased the guns, id., and
thus no way to prove ownership or possession apart from the alleged statements.
The fact that they were in the house belonging to his mother in which he was
living is not dispositive, since his step-father, who lived there previously, had
owned and kept a large collection of guns which remained in the house after his
death - inventorying those guns was the reason the defendant’s mother went
over to the house on February 24 in the first place.
      In addition, defendant’s counsel has no way of knowing how to cross-
examine the police officers since his client has no memory of the events in
question. The government’s expert admitted as much at the competency hearing.
ROA at 148. This case turns on a credibility determination among competing
witnesses - or rather, it would if the defendant could testify as to anything that
happened. The fact that the defendant’s mother’s testimony differs from that of
the police officers in troubling ways (she testifies that she told them he was a
convicted felon, the police say they had no idea; she testifies she told them the
gun had already been found before they went looking for the defendant, the
police went to look for the defendant anyway despite allegedly not knowing he
was a convicted felon) only emphasizes the importance that the defendant’s
testimony would have, were he able to give it. Given these facts, the
government’s case is extremely weak.
      Finally, with regards to the third factor, this disadvantage cannot be
mitigated by giving the defendant access to the government’s files. The
government has conceded there is no evidence beyond the statements of the
police officers.
      The magistrate judge who determined the defendant’s competency relied
heavily on United States v. Doke, 171 F.3d 240 (5th Cir. 1999), in which this
court found the district court did not err by finding a defendant competent to

                                       12
                                 No. 07-30934

stand trial despite his claims of amnesia as to the events leading to his arrest
and conviction for financial fraud. Doke, however, is distinguishable from this
case on several important points. First, in Doke, the defendant claimed to suffer
some “memory lapses” but there was no agreement, as there is here, on the
severity of the problem. The government expert in that case, in fact, believed
that the defendant’s “overall ability to utilize his memory functions is still
adequate and consistent with what might be expected from someone at his
intellectual level,” Doke, 171 F.3d at 248, and testified that “the defendant
“remembers a great deal, is aware of his intentions and plans concerning this
business at that time, and can even be reminded and sometimes remember
details if he is provided with helpful information.” Id. In its analysis in Doke,
this court noted particularly, in reference to how the amnesia might
disadvantage the defendant in assisting in his own defense, that access to
government files about the financial transactions could fill in the defendant’s
memory, and that “someone with no mental defects likely would have had
reduced memory of ten-year-old financial transactions.” Id.
      The facts in this case are very different. First, both the government and
the defense experts agree that the defendant has complete or near complete
amnesia about the events surrounding his arrest and is unlikely to recover from
it. The defendant has no memory of what happened, and cannot remember
anything either about his general disposition at the time or the precise events
that took place. As discussed earlier, the government files provide no additional
information. The magistrate judge, in comparing Doke to the instant case,
seemed to believe that the fact that Doke was a complicated financial case meant
that amnesia would be more of a problem in Doke, and thus that since the
defendant in Doke had been held competent the defendant here must be
competent too. ROA at 116 (“This is not a complicated fraud case which would
require Defendant to explain or justify detailed transactions that took place

                                       13
                                   No. 07-30934

years earlier”). But, in fact, it is the complex financial nature of Doke that made
the defendant’s amnesia less problematic there than it is here. Financial
transactions are the kind of evidence that appear in official records and can be
consulted by either party in preparation for trial - they are, to some extent at
least, verifiable facts. Their complexity is not the crucial factor - what is relevant
is that the defendant in Doke was in the position of having a sense of his general
approach to his business but not being able to remember every detail of
complicated transactions he made a decade prior to his trial. The defendant here
has no memory of anything that happened around his arrest, and whatever did
happen is not an independently verifiable recorded fact. If the government had
paperwork showing the defendant owned the guns that would be more analogous
to Doke - but as it has admitted, it has no such proof. Any statements of
ownership or non-ownership that the defendant may or may not have made are
not verifiable apart from eyewitness testimony.
       The magistrate judge also noted that since the defendant’s mother was
involved in some of the incidents leading to his arrest she could testify to fill in
the gaps. ROA at 116. But she was not present during the crucial conversation
in which the defendant allegedly claimed ownership of the guns. And to the
extent she has testified, as explained above, her testimony differs from that
given by the police, suggesting again that a credibility determination is essential
to this case and thus that the defendant’s testimony would be essential as well.
For all these reasons, the defendant’s amnesia may prevent him from receiving
a fair trial.




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