     Case: 16-30962      Document: 00514254999         Page: 1    Date Filed: 11/30/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-30962                                   FILED
                                  Summary Calendar                         November 30, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BRIAN CAVALIER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:14-CR-146-1


Before WIENER, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Brian Cavalier appeals his conviction and the 92-
month sentence imposed after he pleaded guilty to two counts of making
threats by mail. Cavalier contends that the district court erred in relying on
the testimony of Dr. Joseph Zonno, a forensic psychologist, to determine that
Cavalier was competent to stand trial.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-30962

      Despite the existence of an unambiguous waiver of appeal provision in
his written plea agreement, we shall consider Cavalier’s challenge to the
district court’s competency determination because it affects the validity of the
plea agreement itself. See United States v. Harrison, 777 F.3d 227, 233-34 (5th
Cir. 2015). We shall not disturb the district court’s competency determination
absent a finding that the decision was “clearly arbitrary or unwarranted.”
United States v. Simpson, 645 F.3d 300, 306 (5th Cir. 2011) (internal quotation
marks and citations omitted).
      Cavalier argues that the district court gave too much weight to Dr.
Zonno’s report and testimony because they lacked an adequate evidentiary
basis given Dr. Zonno’s inadequate interview process and failure to administer
any objective tests personally. Contrary to Cavalier’s assertions, the district
court based its determination that Cavalier was presently able to understand
the nature of the proceedings against him and to assist his attorney on
sufficient evidence. See id. (noting that when evaluating competency, a district
court can consider, among other things, its own observations of the defendant;
medical testimony; and the observations of others who have interacted with
the defendant). That evidence consisted of (1) testimony from two competency
hearings; (2) the testimony of Dr. Zonno, who based his analysis on (a) a three-
hour personal evaluation of Cavalier, (b) the observations of other medical,
correctional, and mental health staff who interacted with Cavalier and
observed him for approximately four months during his stay at a federal
medical center, (c) ongoing clinical interviews, (d) ongoing behavioral
observations, (e) a physical examination, and (f) various collateral sources,
including records from Cavalier’s previous legal proceedings and the results of
objective tests administered by Dr. Jeremiah Dwyer during Cavalier’s initial
forensic evaluation; and (3) the testimony and analysis of Dr. Dwyer.



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                                 No. 16-30962

      Dr. Dwyer had diagnosed Cavalier with malingering, one essential
feature of which included the intentional exaggeration of psychological or
physical symptoms, motivated by external incentives such as evading criminal
prosecution.   Dr. Dwyer expressed a strong suspicion that Cavalier was
competent but stopped short of making an overt declaration because Cavalier
had not made a formal display of competency during the short evaluation
period. Dr. Dwyer recommended a period of restoration at a federal medical
center where professionals could make more detailed and personal
observations of Cavalier on a daily basis.
      Dr. Zonno also diagnosed Cavalier with malingering, but was unable to
administer any objective tests personally because Cavalier selectively stopped
cooperating with him.     The mere failure to cooperate does not render a
defendant incompetent, and the presence of reliable grounds to believe that the
defendant is malingering is sufficient to support the court’s belief that the
defendant is intentionally and selectively not cooperating and is not
incompetent. See Simpson, 645 F.3d at 306-07.
      As noted, Cavalier spent approximately four months at the federal
medical center, and Dr. Zonno had sufficient observational and collateral
information with which to complete an analysis. As Cavalier concedes, there
is no minimum required number of hours or number of interviews in which a
medical professional must engage with a patient before his expert opinion is
acceptable.    Neither is there a prohibition against medical professionals
interpreting the results of objective tests administered by other medical
professionals. The district court could properly consider Dr. Zonno’s testimony
when making its determination. See Simpson, 645 F.3d at 306-07 (noting that
the district court may rely on medical evidence, such as expert testimony, to




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                                No. 16-30962

reconstruct defendant’s mental state) (internal quotations and citations
omitted).
     Inasmuch as the district court held two competency hearings and
considered expert medical testimony and considered the results of numerous
objective tests and reports detailing the observations of several medical and
mental health professionals, its competency decision was neither unwarranted
nor clearly arbitrary.   See Simpson, 645 F.3d at 306-07; United States v.
Joseph, 333 F.3d 587, 589 (5th Cir. 2003). The judgment of the district court
is AFFIRMED.




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