    Case: 11-51084     Document: 00512145644      Page: 1   Date Filed: 02/18/2013




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

                                                                    FILED
                                                                  February 18, 2013
                                  No. 11-51084
                                                                   Lyle W. Cayce
                                                                        Clerk



UNITED STATES OF AMERICA,

                                            Plaintiff–Appellee,

versus

TERRENCE DEVONT MITCHELL,

                                            Defendant–Appellant.




                 Appeal from the United States District Court
                      for the Western District of Texas




Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      Terrence Mitchell appeals the revocation of his conditional release under
18 U.S.C. § 4243(g), arguing that the district court erred by not sua sponte order-
ing a competency hearing at his § 4243(g) hearing; by denying his request for
new counsel; and by revoking his conditional release on a finding that he was a
substantial risk of bodily injury to others. We affirm.
    Case: 11-51084     Document: 00512145644      Page: 2   Date Filed: 02/18/2013



                                  No. 11-51084

                                        I.
      Congress enacted the Insanity Defense Reform Act of 1984 to establish an
affirmative defense of insanity, a verdict of “not guilty only by reason of insan-
ity,” and a corresponding civil-commitment procedure under § 4243. Shannon
v. United States, 512 U.S. 573, 577 (1994). After a verdict of not guilty only by
reason of insanity, the defendant must prove, at a § 4243(c) hearing, “that his
release would not create a substantial risk of bodily injury to another person or
serious damage of property of another due to a present mental disease or defect.”
§ 4243(d).
      The burden of proof depends on the underlying offense—the defendant
must provide clear and convincing evidence if it was “an offense involving bodily
injury to, or serious damage to the property of, another person, or involving a
substantial risk of such injury or damage”[;] otherwise, the applicable burden is
preponderance of the evidence. Id. If the defendant fails to meet the burden, the
court shall commit him to the custody of the Attorney General under § 4243(e).
      The length of a § 4243(e) commitment is indefinite, but if the director of
the facility providing treatment determines the individual is no longer a risk, the
court shall release him or hold a release hearing under § 4243(f). The defendant
must show that his “release would no longer create a substantial risk of bodily
injury to another person or serious damage to property of another.” § 4243(f)(1).
This hearing adopts the burden from the initial § 4243(c) hearing. § 4243(f).
      Alternatively, the individual may present evidence that a “conditional”
release, involving a “prescribed regimen of medical, psychiatric, or psychological
care or treatment,” would remove the risk. § 4243(f)(2). In that case, the court
may order a conditional discharge and “order, as an explicit condition of release,
that he comply with the prescribed regimen.” § 4243(f)(2)(B).
      A § 4243(f)(2) conditional releaseSSlike an initial § 4243(c) commitmentSS
is not necessarily permanent; § 4243(g) allows for the revocation of a conditional

                                        2
    Case: 11-51084     Document: 00512145644      Page: 3   Date Filed: 02/18/2013



                                  No. 11-51084

release. Where the court is given “probable cause to believe that the person has
failed to comply with the prescribed regimen,” he may be arrested, § 4243(g),
after which there is a hearing to “determine whether the person should be
remanded to a suitable facility on the ground that, in light of his failure to com-
ply . . . his continued release would create a substantial risk of bodily injury to
another person or serious damage to property of another.” Id.


                                        II.
      Mitchell was charged in 1996 with murder and was deemed legally compe-
tent after receiving treatment. At a bench trial before United States District
Judge Walter Smith, Mitchell was found not guilty of second degree murder only
by reason of insanity and was committed to the Attorney General’s custody
under § 4243(e).
      In 2002, after finding Mitchell no longer to be a substantial risk to others
if he followed a strict treatment regimen, the court conditionally released him,
under § 4243(f)(2), to a residential mental health facility; in 2003, he was moved
to an outpatient facility. In 2004, the government filed a motion to rescind the
conditional discharge, and Mitchell was arrested and committed. The following
year, a psychiatric report led the court to grant Mitchell a second conditional
release to a residential treatment facility. In 2006, the court allowed him to
relocate and use outpatient services.
      The government filed a sealed motion in July 2011 to revoke Mitchell’s
conditional release under § 4243(g). Mitchell resisted the subsequent arrest,
attacking the U.S. Marshals with a chain. Before his hearing, the court ordered
a medical evaluation by Dr. Maureen Burrows, who diagnosed Mitchell with
schizophrenic disorder, bipolar type with psychotic features, and adult anti-
social behavior; determined he had a moderate to high risk of violence, along
with a history of violence; that his most violent acts happened during psychosis,

                                        3
     Case: 11-51084         Document: 00512145644         Page: 4    Date Filed: 02/18/2013



                                        No. 11-51084

which occurred when he did not take his medication; and that his paranoid delu-
sions were person-specific. Burrows concluded that Mitchell was not in compli-
ance with his treatment regimen and that releasing him under the current con-
ditions would create a substantial risk of injury to another person or property.
       At the revocation hearing in October 2011, the court admitted Burrows’s
report into evidence. Mitchell gave rambling and somewhat incoherent testi-
mony. At the conclusion of the hearing, Mitchell’s counsel admitted he had noth-
ing to rebut the government’s evidence. Mitchell then asked the court to remove
his counsel; the court rejected that request.
       Finding that Mitchell had failed to comply with the conditions of his
release and that he posed a substantial risk of bodily injury to others, the court
revoked the release and placed him back into the custody of the Attorney Gen-
eral. Upon Mitchell’s timely appeal, we review the revocation on appeal from a
final decision of a district court.1


                                              III.
       Mitchell argues that the district court erred in not sua sponte calling for
a competency hearing at his § 4243(g) hearing. “It has long been accepted that
a person whose mental condition is such that he lacks the capacity to understand
the nature and object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense may not be subjected to a trial.”2 Convict


       1
         28 U.S.C. § 1291; see United States v. Boggs, 68 F.3d 467 (5th Cir. 1995) (per curiam);
see also Sealed Appellee v. Sealed Appellant, 665 F.3d 620, 623 (5th Cir. 2011) (exercising jur-
isdiction over an analogous appeal regarding a revocation of conditional discharge under
§ 4246(f)); United States v. Jackson, 19 F.3d 1003 (5th Cir. 1994) (exercising jurisdiction over
an appeal of a § 4243(e) commitment); United States v. Crape, 314 F. App’x 199 (11th Cir.
2008) (exercising jurisdiction over an appeal of a revocation of conditional release under
§ 4243(g)).
       2
           Drope v. Missouri, 420 U.S. 162, 171 (1975); see also 18 U.S.C. § 4241(a); Cooper v.
                                                                                 (continued...)

                                                4
     Case: 11-51084       Document: 00512145644           Page: 5    Date Filed: 02/18/2013



                                       No. 11-51084

ing a legally incompetent person violates due process,3 and competency require-
ments have been applied to various parts of the adversarial process.4 In United
States v. Ruston, 565 F.3d 892, 901 (5th Cir. 2009), this court found that the
initial § 4243(c) hearing required competency. Although we have never imposed
a competency requirement on a § 4243(g) hearing, Mitchell asks that we extend
Ruston to impose such a requirement here. Even assuming arguendo that com-
petency is required, the district court did not err by failing to call sua sponte for
a competency hearing.
       We review for abuse of discretion a decision not to hold a competency hear-
ing. Flores-Martinez, 677 F.3d at 706. This court recognizes that the trial court
is in the best position to decide whether a competency hearing is necessary, and
“[w]hether reasonable cause exist[ed] to put the court on notice that the defen-
dant might be mentally incompetent is left to the sound discretion of the district
court.”5
       A court must sua sponte call for a competency inquiry “if there is reasona-
ble 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.” Flores-Martinez, 677 F.3d at 706 (quot-



       2
       (...continued)
Oklahoma, 517 U.S. 348, 354 (1996).
       3
       United States v. Flores-Martinez, 677 F.3d 699, 705 (5th Cir. 2012) (quoting Pate v.
Robinson, 383 U.S. 375, 378 (1966)).
       4
         See, e.g., Godinez v. Moran, 509 U.S. 389, 396 (1993) (holding that pleading guilty or
waiving a right to counsel requires competency); United States v. Garcia, 276 F. App’x 409, 410
(5th Cir. 2008) (per curiam) (applying the competency requirement to the sentencing phase).
       5
         United States v. Davis, 61 F.3d 291, 304 (5th Cir. 1995) (internal quotations omitted);
see also Flores-Martinez, 677 F.3d at 706; Ruston, 565 F.3d at 901; United States v. Messervey,
317 F.3d 457, 463 (5th Cir. 2002).

                                               5
     Case: 11-51084       Document: 00512145644         Page: 6     Date Filed: 02/18/2013



                                       No. 11-51084

ing 18 U.S.C. § 4241(a)). If, by a preponderance of the evidence, the defendant
is found to be incompetent, “the court shall commit the defendant to the custody
of the Attorney General,” and he is held until he has the capacity to proceed.
§ 4241(d).6
       There is no specific threshold or “quantum of evidence” that requires the
district court to order a competency hearing. Davis v. Alabama, 545 F.2d 460,
464 (5th Cir. 1977). Instead, this court considers three factors: “(1) the existence
of a history of irrational behavior, (2) the defendant’s demeanor at trial, and
(3) prior medical opinion on competency.” Ruston, 565 F.3d at 902. Signifi-
cantly, “the presence or absence of mental illness or brain disorder is not disposi-
tive” as to competency. Mata v. Johnson, 210 F.3d 324, 329 n.2 (5th Cir. 2000).
Mitchell attempts to piggyback on the court’s finding of error in Ruston, but “the
question is often a difficult one in which a wide range of manifestations and sub-
tle nuances are implicated.” Ruston, 565 F.3d at 902 (quoting Taylor v. Horn,
504 F.3d 416, 433 (3d Cir. 2007)).
       First, based on Pate, we consider Mitchell’s history of irrational behavior
and mental illness. In Pate, the Court noted that despite the defendant’s mental
alertness at trial, the district court erred by “ignoring the uncontradicted testi-
mony of [defendant’s] history of pronounced irrational behavior. While [his]
demeanor at trial might be relevant to the ultimate decision as to his sanity, it
cannot be relied upon to dispense with a hearing on that very issue.” Pate, 383
U.S. at 385–86.
       Unlike the court in Pate, the district court here did not ignore Mitchell’s


       6
         Alternatively, if “it is determined that the defendant’s mental condition has not so
improved as to permit proceedings to go forward, the defendant is subject to the provisions of
sections 4246 and 4248.” § 4241(d). Section 4246(d) requires commitment if “the court finds
by clear and convincing evidence that the person is presently suffering from a mental disease
or defect as a result of which his release would create a substantial risk of bodily injury to
another person or serious damage to property of another.”

                                              6
     Case: 11-51084            Document: 00512145644         Page: 7    Date Filed: 02/18/2013



                                            No. 11-51084

mental-health history. The court was well aware of his tumultuous past—Judge
Walter Smith presided over Mitchell’s numerous related appearances and hear-
ings. Considering both the court’s awareness and the fact that Mitchell’s mental
illness is not dispositive of incompetence, the court did not abuse its discretion
based solely on Mitchell’s medical history.7
          The next factor is demeanor at trial. Despite Mitchell’s illogical and ramb-
ling statements, this case is different from Ruston, in which the defendant “did
not demonstrate a rational as well as factual understanding of the proceedings
against him.” Ruston, 565 F.3d at 903 (internal quotations omitted). Mitchell’s
testimony instead illustrated his basic awareness and understanding of the
proceedings—he testified that he did not pose a threat to person or property and
was stable and able to take care of himself. His behavior indicated a man with
mental health issues, but he did not show a total lack of understanding.8
          In light of the evidence and all three factors viewed objectively, Ruston,
565 F.3d at 901–02, and considering that “[t]he district court is in the best posi-
tion to determine the need for a competency hearing,”9 the district court did not
abuse its discretion in not calling for a competency hearing.

          7
         See McCoy v. Lynaugh, 874 F.2d 954, 961 (5th Cir. 1989); see also United States v.
Lang, 447 F. App’x 552, 552 (5th Cir. 2011) (per curiam); Thompson v. Johnson, 7 F. Supp. 2d
848, 860 (S.D. Tex. 1998) (“[A] history of mental illness and/or attempts at suicide do not per
se establish a defendant’s incompetency to stand trial.”); Aldridge v. Thaler, Civ. Ac. No.
H-05-608, 2010 WL 1050335, at *7 (S.D. Tex. Mar. 17, 2010) (“Mental illness and incompe-
tence, nonetheless, are not necessarily coexistent conditions. The court must shift through the
indicia of mental illness to see if its pervasiveness and manifestation degrades the core con-
cerns of the competency inquiry: a defendant’s factual and rational understanding of his trial
and his rational ability to consult with counsel.”) (citation omitted).
          8
         The final factorSSprior competency examinationsSSis of little if any relevance. There
is no record of a competency examination more recent than the late 1990s, and reports almost
fifteen years old have little or no relevance in this inquiry. See Drope, 420 U.S. at 181 (recog-
nizing that competency can change from the commencement to the conclusion of trial); Ruston,
565 F.3d at 903 (refusing to rely on a six-month-old competency finding).
          9
              Ruston, 565 F.3d at 901 (quoting United States v. Alden, 527 F.3d 653, 659 (7th Cir.
2008)).

                                                   7
     Case: 11-51084      Document: 00512145644         Page: 8    Date Filed: 02/18/2013



                                     No. 11-51084

                                           IV.
       Rulings on Sixth Amendment claims are reviewed de novo, and if there is
no violation, a “trial court’s refusal to appoint substitute counsel is reviewed for
an abuse of discretion.” United States v. Simpson, 645 F.3d 300, 307 (5th Cir.),
cert. denied, 132 S. Ct. 541 (2011). The Sixth Amendment guarantees the right
to counsel, but “indigent defendants have no right to appointed counsel of their
choice.” United States v. Fields, 483 F.3d 313, 350 (5th Cir. 2007). The court is
constitutionally required to provide substitute counsel only if there is a substan-
tial conflict or problem affecting the ability to represent the defendant—“a con-
flict of interest, a complete breakdown in communication or an irreconcilable
conflict which led to an apparently unjust verdict.”10
       Mitchell alleges both a complete breakdown in communication because of
his incompetency and a conflict because his attorney failed to rebut the govern-
ment’s evidence. Mitchell does not demonstrate how substitute counsel could
have performed any differently under the circumstances. He fails to raise a
valid Sixth Amendment complaint, and the district court did not abuse its discre-
tion in refusing to replace counsel. See id.


                                            V.
       Mitchell seeks to reverse the revocation, disputing the underlying findings
that he was not in compliance with his treatment regimen and that the non-
compliance created a substantial risk of bodily injury to others. He contests the
burden of proof as well as the court’s findings of fact.




       10
          United States v. Romero-Trejo, 476 F. App’x 790, 791 (5th Cir. 2012) (per curiam)
(alteration remarks removed) (quoting United States v. Young, 482 F.2d 993, 995 (5th Cir.
1973)).

                                            8
     Case: 11-51084       Document: 00512145644           Page: 9    Date Filed: 02/18/2013



                                       No. 11-51084

                                              A.
       Although probable cause of non-compliance with treatment is required to
arrest a conditionally-released person under § 4243(g), the statute is silent as to
the burden for the revocation hearing:
       The court shall, after a hearing, determine whether the person
       should be remanded to a suitable facility on the ground that, in light
       of his failure to comply with the prescribed regimen of medical, psy-
       chiatric, or psychological care or treatment, his continued release
       would create a substantial risk of bodily injury to another person or
       serious damage to property of another.

§ 4243(g). This silence is notable compared with the expressly established bur-
dens for other § 4243 hearings.11 We review issues of statutory interpretation
de novo. St. Paul Fire & Marine Ins. Co. v. Labuzan, 579 F.3d 533, 538 (5th Cir.
2009).
       First, we do not need to decide here which party carries the burden in a
§ 4243(g) hearing, because the evidence is sufficient even if, as Mitchell argues,
it falls to the government.12 In addition, Mitchell disputes the proper burden but
fails to argue what level of convincing force this court should require; he merely
notes the statutory silence and lack of precedent on the issue.13 Even under the




       11
          In the initial § 4243(c) hearing, to avoid commitment, “a person found not guilty only
by reason of insanity of an offense involving bodily injury” must prove “by clear and convincing
evidence that his release would not create a substantial risk of bodily injury to another.”
§ 4243(d). The statute requires the same showing for the court to grant a discharge, condi-
tional or otherwise. § 4243(f).
       12
          See United States v. Ambers, 360 F. App’x 39, 43 (11th Cir. 2010) (per curiam)
(acknowledging the ambiguity in § 4243(g) and declining to determine which party bears the
burden); see also United States v. Logsdon, 450 F. App’x 704, 707 (10th Cir. 2011) (declining
to decide which party bears the burden in a § 4243(g) hearing).
       13
         See Sealed Appellee, 665 F.3d at 622–23 (discussing § 4246(f)’s silence as to burden
and noting the absence of controlling caselaw for similar revocation proceedings, including
§ 4243(g)).

                                               9
    Case: 11-51084          Document: 00512145644        Page: 10     Date Filed: 02/18/2013

                                         No. 11-51084

high burden of clear and convincing evidence,14 Mitchell’s claim fails.


                                               B.
       We review the finding of dangerousness under § 4243 for clear error.15
“Clear-error review only requires a factual finding to be plausible in light of the
record as a whole.”16 There are two findings necessary for a § 4243(g) revocation:
that the individual failed to comply with his treatment regimen and that his
continued release would create a substantial risk of bodily injury to another.17
Assuming arguendo that the government must prove both by clear and
convincing evidence, the district court’s findings and conclusion to revoke
conditional release under § 4243(g) were not clearly erroneous.
       Considering the record as a whole, it was plausible for the court to find, by
clear and convincing evidence, that Mitchell was not complying with his treat-
ment. The government attached to its motion the report of U.S. Probation
Officer Tiffani Dabney, summarizing her visit to Mitchell’s house in June 2011.
Mitchell showed her a prescription bottle from January that still contained pills
but should have been empty; he said that he did not like taking the medicine
because of the side effects. The report also noted he had told his therapist that
he no longer wished to participate in his prescribed treatment. In addition to
Dabney’s report, Burrows’s report concluded Mitchell had not been taking his
medicine while on release and was not currently taking it after his arrest.
       Mitchell offers nothing to contest the government’s evidence, other than

       14
         “Preponderance means that it is more likely than not. Clear and convincing is a
higher standard and requires a high probability of success.” In re Briscoe Enter., Ltd., II, 994
F.2d 1160, 1164 (5th Cir. 1993) (internal quotations omitted).
       15
            See Jackson, 19 F.3d at 1006; see also Ambers, 360 F. App’x at 42.
       16
        United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (per curiam) (citing
United States v. Williams, 610 F.3d 271, 292 (5th Cir. 2010)).
       17
         Sealed Appellee, 665 F.3d at 623 (interpreting the analogous section 4246(f) revoca-
tion statute); see also United States v. Sealed Appellant 1, 169 F. App’x 415, 416 (same).

                                               10
    Case: 11-51084    Document: 00512145644      Page: 11   Date Filed: 02/18/2013

                                  No. 11-51084

merely concluding it is insufficient. Mitchell’s attorney expressly stated that he
      [did] not have any evidence that would rebut the government’s alle-
      gations that Mr. Mitchell failed to comply with the prescribed regi-
      men of medication. That’s based on reviewing the letter from Tif-
      fan[i] Dabney [and] Dr. Burrow’s report talking to Mr. Mitchell,
      talking to his mother and reviewing the letters that Mr. Mitchell
      has written me.

      It was also not clear error for the district court to find that Mitchell’s
release created a substantial risk that he would cause bodily injury to another
person. Considering the record as a whole, it was plausible for the court to find,
by clear and convincing evidence, that Mitchell posed a danger to others.
      The Dabney report noted Mitchell’s increased agitation and aggressive-
ness. Dabney was concerned about Mitchell’s therapist’s conclusion that Mit-
chell was a danger to the community, especially to women. Burrows also
reported Mitchell’s violent history, particularly during unmedicated periods.
Similarly to Dabney, Burrows reported that Mitchell’s paranoid delusions were
people-specific. Burrows explicitly concluded that releasing Mitchell would cre-
ate a substantial risk of bodily injury to others.
      In July 2011, the Magistrate Judge, who signed Mitchell’s arrest warrant,
found that the government had established by clear and convincing evidence
that Mitchell was a danger to the community. The Magistrate Judge recounted
Mitchell’s attack on the Marshals and his “previous dangerous encounters with
Phillips County Sheriffs Deputies in connection with terroristic threatening
charges.” Again, Mitchell offers nothing to rebut that evidence, stating only that
“[t]his finding is totally unsupported by the evidence.” The district court was
familiar with the record and Mitchell’s history, and the court committed no clear
error in its findings underlying the conclusion to revoke the conditional release.
      The order of revocation is AFFIRMED.




                                        11
