                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 10-2529
                                      ____________

                            UNITED STATES OF AMERICA

                                            v.

                                     PERRY BURNS,
                                  also known as AMIGO

                                            Perry Burns,
                                                 Appellant
                                      ____________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                              (D.C. No. 2-08-cr-00701-004)
                      District Judge: Honorable William J. Martini
                                       ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 24, 2011

             Before: FUENTES, FISHER and NYGAARD, Circuit Judges.

                                  (Filed: June 16, 2011 )
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Perry Burns was convicted of conspiracy to distribute and possession with intent

to distribute cocaine and heroin. On appeal, he claims that the District Court clearly
erred by declining to hold a retrospective competency hearing and abused its discretion

by denying his motion for a new trial. For the reasons stated below, we will affirm.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       In June 2007, the FBI launched “Absolute Cintron,” a drug trafficking

investigation focused on Edwin Cintron. The FBI uncovered a conspiracy whereby

Burns and Cintron arranged deals to import large quantities of cocaine and heroin into the

United States. Burns was charged with conspiracy to distribute and possession with

intent to distribute at least five kilograms of cocaine and at least one kilogram of heroin,

in violation of 21 U.S.C. §§ 841 and 846.

       During the course of the trial, Burns was caring for his ailing wife, spending

considerable time traveling between his home and the courthouse daily. As the trial

progressed, defense counsel informed the District Court that Burns‟ wife had passed

away. The District Court granted defense counsel‟s request to adjourn early the next day

to allow Burns to attend the funeral. Despite the District Court‟s willingness, Burns gave

no indication of a desire for more time. On January 27, 2009, a jury convicted Burns on

both counts. Thereafter, defense counsel argued that Burns should be released pending

sentencing in light of his age, health, and the physical and emotional strain he had


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experienced as a result of the long commute during trial. In April 2009, Burns retained

new counsel because he wanted to raise the issue of his competency to stand trial and this

would require the testimony of his original defense counsel. The District Court held a

hearing to discuss the possibility of holding a retrospective competency hearing. Burns‟

original defense counsel testified that he observed no change in Burns‟ mental state

during trial.

       On September 8, 2009, Burns‟ new defense counsel retained Catherine M. Barber,

Ph.D., to perform a psychological examination. In the report she prepared, Dr. Barber

observed that Burns did not show any signs of psychological impairment; however, she

left open the possibility that Burns “may have been suffering from a mental disorder that

has now resolved.” (App. at 1117.) Her report stated that Burns expressed his inability

to focus on the trial sufficiently due to his emotional distress and fatigue. In addition, she

noted that the death of one‟s spouse is “one of the most severe emotional stressors an

individual can experience.” (Id. at 1118.) The circumstances Burns experienced at the

time of trial, including serving as his wife‟s caretaker at night, Dr. Barber posited, would

“significantly interfere with the emotional and cognitive capacities of the average

individual.” (Id.) Even so, she could not “provide a firm diagnosis of any mental

disorder retroactively.” (Id.) The report also noted that Burns had no prior history of

psychiatric disorders.




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       On April 29, 2010, Burns moved for a new trial on the grounds of ineffective

assistance of counsel and lack of competency to stand trial. The motion included Dr.

Barber‟s report. The District Court denied the requests for a competency hearing and a

new trial, sentencing Burns to the mandatory minimum of 240 months‟ imprisonment.

Burns filed a timely notice of appeal.

                                             II.

       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231,

and we have jurisdiction pursuant to 28 U.S.C. § 1291. “Since we must decide whether

the district court properly applied the standard for determining the necessity of a

competency hearing, our review is plenary.” United States v. Jones, 336 F.3d 245, 256

(3d Cir. 2003) (internal quotation marks omitted). “If the District Court applied the

proper legal standard, we review factual findings regarding competency for clear error.”

Id. We review the District Court‟s denial of a new trial motion for an abuse of discretion.

United States v. Saada, 212 F.3d 210, 215 (3d Cir. 2000).

                                            III.

       A competency hearing shall be held “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




                                             4
consequences of the proceedings against him or to assist properly in his defense.”1 18

U.S.C. § 4241(a). “Where such „reasonable cause‟ exists, even if neither the defendant

nor the Government moves for such a hearing, the court shall conduct such a hearing on

its own motion.” Jones, 336 F.3d at 256. The prohibition against subjecting a mentally

incompetent criminal defendant to a trial is “fundamental to an adversary system of

justice.” Drope v. Missouri, 420 U.S. 162, 172 (1975). There are no “„fixed or

immutable signs‟” of the need for a competency hearing. Jones, 336 F.3d at 256 (quoting

Drope, 420 U.S. at 180). In evaluating if reasonable cause exists, a district court must

consider whether the defendant “„(1) has the capacity to assist in her or his own defense

and (2) comprehends the nature and possible consequences of a trial. If either prong is

not met, a court has reasonable cause to order a competency hearing.‟” Id. at 256-57

(quoting United States v. Leggett, 162 F.3d 237, 242 (3d Cir. 1998)). A district court

must consider several factors, including “evidence of a defendant‟s irrational behavior,

his demeanor at trial, and any prior medical opinion on competence to stand trial.” Id. at

256 (internal quotation marks omitted). “[A]n attorney‟s representation about his client‟s

competency” is also relevant to this inquiry. Id. (internal quotation marks omitted).

       Burns raises four arguments as to why the District Court erred in denying his

request for a retrospective competency hearing. We address each in turn. First, Burns


       1
         Burns‟ motion for a competency hearing prior to sentencing was timely because
the statute permits such a motion “at any time after the commencement of prosecution for
an offense and prior to the sentencing of the defendant.” 18 U.S.C. § 4241(a).

                                             5
claims that the District Court should have afforded more weight to his original defense

counsel‟s post-trial comment about the strain on Burns‟ mind and body during trial.

Burns asserts that this remark implies that his wife‟s death interfered with his ability to

assist in his defense. We disagree. Original defense counsel did not raise the issue of

Burns‟ mental competence at any point during the trial. Moreover, original defense

counsel stated to the District Court that he observed no change in Burns‟ mental state.

The District Court properly evaluated original defense counsel‟s representation of Burns‟

competency, noting that a competent lawyer would have voiced concern if Burns had

difficulty understanding the advice of counsel. The absence of communication problems

between Burns and his original counsel provides “substantial evidence of the defendant‟s

competence.” United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986).

       Second, Burns claims that the District Court clearly erred by misinterpreting his

decision to proceed without further adjournment. This argument lacks merit. Although

Burns may regret not requesting a longer adjournment, his decision was not a clear sign

of incompetence on his part. The District Court properly evaluated Burns‟ “demeanor at

trial” and was alert for “irrational behavior.” Jones, 336 F.3d at 256 (internal quotations

marks omitted). The District Court described its observations of Burns during trial: “I

never got a sense that he wasn‟t understanding these proceedings. From my observations

anyhow, I have no basis on which to even think that he might not have been competent to

stand trial.” (App. at 1100.) Because the question of competency is limited to the time of


                                              6
trial, we defer to the District Court‟s assessment, which relied on first-hand observations

of Burns during the proceedings. See Vamos, 797 F.2d at 1150. According to the District

Court‟s findings, Burns behaved rationally and was attentive during the trial. Because no

evidence clearly points to the contrary, these findings support the District Court‟s denial

of a mental competency hearing.

       Third, Burns claims that the District Court lacked evidence that he participated in

his defense. Burns did not, however, provide details of his suffering during the trial and

its effect on the proceedings. In fact, the District Court‟s observations of his “demeanor”

and his “attorney‟s representation” of his competency suggest that Burns was adequately

involved in his defense. Jones, 336 F.3d at 256 (internal quotations omitted).

       Finally, Burns asserts that Dr. Barber‟s report raised sufficient doubt as to his

mental competence. We are not persuaded. Although Dr. Barber discussed the typical

effects associated with the death of a spouse, the District Court found that her opinions

were “vague and inconclusive.” (App. at 1138.) The record supports this conclusion

because Dr. Barber could not provide a “firm diagnosis,” and she discussed what an

“average individual” might experience. (Id. at 1118.) Moreover, although she mentioned

that an average individual could possibly experience “Major Depressive Episode or

Dyssomnia” under the circumstances, Dr. Barber did not link the potential diagnosis with

Burns‟ competency to stand trial. (Id.) As long as a defendant is capable of

“understanding the proceedings and assisting in his defense,” mental disorders and


                                              7
mental illness do not necessarily render a defendant incompetent to stand trial. Jermyn v.

Horn, 266 F.3d 257, 293 (3d Cir. 2001). Finally, the fact that the evaluation was several

months after trial and not based on a description of Burns‟ condition during trial

significantly undermined its reliability. See Williams v. Woodford, 384 F.3d 567, 609-10

(9th Cir. 2002) (noting that the lack of contemporaneous reports reduces the likelihood of

an accurate retrospective determination). The District Court gave due consideration to

Dr. Barber‟s “prior medical opinion on competence to stand trial.” Jones, 336 F.3d at

256 (internal quotations marks omitted).

         The District Court applied the proper legal standard in deciding that Burns

“(1) ha[d] the capacity to assist in [] his own defense and (2) comprehend[ed] the nature

and possible consequences of a trial.” Id. (internal quotation marks omitted). In light of

the District Court‟s observations of Burns during trial, his lack of history of mental

illness, Dr. Barber‟s inconclusive examination, and original defense counsel‟s failure to

raise the issue of Burns‟ competency, the District Court did not clearly err in finding no

reasonable cause to hold a retrospective competency hearing. Likewise, it was not an

abuse of discretion to deny the motion for a new trial.

                                             IV.

         For the foregoing reasons, we will affirm the judgment and sentence of the District

Court.




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