          United States Court of Appeals
                        For the First Circuit


No. 19-1218

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                            ERIC MALMSTROM,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. D. Brock Hornby, U.S. District Judge]
               [Hon. John H. Rich, U.S. Magistrate Judge]


                                Before

                         Howard, Chief Judge,
                 Torruella and Selya, Circuit Judges.


     Jane Elizabeth Lee on brief for appellant.
     Halsey B. Frank, United States Attorney, and Benjamin M.
Block, Assistant United States Attorney, on brief for appellee.


                             July 20, 2020
             SELYA, Circuit Judge.      In the wrong hands, a telephone

can be a fearsome weapon.         So it was here and — when the dust

settled — a jury convicted defendant-appellant Eric Malmstrom on

three counts of transmitting threatening interstate communications

by   telephone.     See   18   U.S.C.   § 875(c).    The   district   court

sentenced him to serve a twenty-seven-month term of immurement.1

On appeal, Malmstrom — represented by newly appointed appellate

counsel — presses only a single claim of error:            he argues that

the district court, on its own initiative, should have insisted

that he undergo a competency evaluation.

             We do not gainsay that the course of conduct in which

Malmstrom engaged when committing the crimes of conviction was

bizarre.    But bizarre behavior is not always a telltale sign that

a criminal defendant is lacking in competency to stand trial.

Reviewing the record as a whole, we conclude that the district

court did not abuse its discretion in failing to order a competency

evaluation    sua   sponte.      Accordingly,   we   affirm   Malmstrom's

conviction and sentence.

             We start by rehearsing the relevant facts and travel of

the case.    In the fall of 2017, the Swedish Embassy in Washington,



      1Some pretrial proceedings were heard before a magistrate
judge, who also presided over jury empanelment.      For present
purposes, it would serve no useful purpose to distinguish between
the district judge and the magistrate judge. Instead, we take an
institutional view and refer throughout to the district court.


                                   - 2 -
D.C., began receiving phone calls from an individual who identified

himself as Eric Malmstrom of Vinalhaven, Maine.                   The calls were

replete with threats of violent mutilation of Swedish women and

sprinkled with references to Islam and to an imaginary Swedish

monarch.      Malmstrom       placed     these   calls   both    to    the   Swedish

Embassy's main line and to the direct line of a consular employee,

Zandra Bergstedt.          Embassy officials notified the authorities.

             As     time     went    by,    Malmstrom's       unsettling        calls

multiplied.       During a single week in February of 2018, Malmstrom

left over one hundred voice messages on Bergstedt's line while she

was away on vacation.            In the following weeks, Malmstrom's calls

to Bergstedt included content of an increasingly personal and

disturbing    nature,        such   as   threatening     to     harm   Bergstedt's

children and alluding to her partner.

             On    March    5,   2018,   Malmstrom    called     and    spoke   with

Bergstedt.        During this conversation, he told Bergstedt that he

planned to travel by ferry from Maine to Washington to slit her

throat and make her children watch. The next day, Malmstrom called

Bergstedt from a different telephone number — one in southern

Maine.     Noting that Malmstrom was heading south, the authorities

concluded that he was acting upon his threat to harm Bergstedt and

obtained a warrant for his arrest.                   Federal agents detained

Malmstrom later that month in Sanford, Maine.                   In due course, a

federal grand jury sitting in the District of Maine returned an


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indictment     charging    him   with   four   counts     of   transmitting

threatening interstate communications.          See 18 U.S.C. § 875(c).

In all, Malmstrom placed 121 calls to the Swedish Embassy's main

line and 187 calls to Bergstedt's direct line.            Over 60 of these

calls were recorded on voicemail.

            Leading   up    to   trial,     Malmstrom's    court-appointed

attorney twice filed motions to withdraw.          The first withdrawal

motion was filed in May of 2018 because Malmstrom wished to be

represented by a Muslim lawyer.            At a hearing on that motion,

Malmstrom's attorney told the district court that "there's no issue

with my ability to communicate with him."          The court denied the

motion.

            The second withdrawal motion was filed in July of 2018.

It was rooted in the attorney's frustration about Malmstrom's

refusal to cooperate with him.            Upon Malmstrom's agreement to

resume cooperation, the district court denied the motion.           During

a later conference with the court and the prosecutor, Malmstrom's

attorney acknowledged his client's mental instability generally

but underscored that mental illness had not been raised in any

formal way.     He went on to emphasize that Malmstrom "doesn't see

himself as mentally ill" and would "object vigorously" to any

evidence of mental illness being introduced at trial.

            Malmstrom's case was set for trial in late August of

2018.     The government dropped one of the charged counts, and the


                                   - 4 -
trial — which lasted only a single day — proceeded on the remaining

three counts. Malmstrom waived his right to testify, acknowledging

that he had been afforded sufficient time to consult with his

attorney about the waiver.        The jury found Malmstrom guilty on all

three counts.

             The district court convened the disposition hearing on

February 26, 2019.     Malmstrom testified in order to assert a claim

of privilege over his mental health records.             The court imposed a

twenty-seven-month term of immurement together with a three-year

term of supervised release.        Malmstrom's attorney objected to the

special mental health condition that the court incorporated into

the supervised release conditions — a special condition that

obligated    Malmstrom   to    undergo   mental     health     evaluation   and

treatment.       The   attorney    asserted       that   the   condition    was

unwarranted in light of Malmstrom's belief that he did not suffer

from mental illness.          The district court rejected Malmstrom's

importunings,    and   this    timely    appeal    followed.      Before    us,

Malmstrom is represented by successor counsel.

             Malmstrom's sole claim of error is that the district

court blundered by failing to order a competency evaluation under

18 U.S.C. § 4241(a) sua sponte. In his view, the irrational nature

of his offense conduct, without more, gave the district court ample

reason to believe that he might well be incompetent to stand trial.




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            We review the district court's decision not to order a

competency hearing that neither side had sought for abuse of

discretion.      See United States v. Kenney, 756 F.3d 36, 43 (1st

Cir. 2014).      The abuse-of-discretion standard is not monolithic:

under it, we review findings of fact for clear error and questions

of law de novo.     See United States v. Nygren, 933 F.3d 76, 82 (1st

Cir.), cert. denied, 140 S. Ct. 606 (2019).

            We     agree     with        Malmstrom's    underlying     premise:

convicting a legally incompetent individual would violate due

process.   See Pate v. Robinson, 383 U.S. 375, 378 (1966); Pike v.

Guarino, 492 F.3d 61, 75 (1st Cir. 2007).              As a means of guarding

against    any   infringement       of    this   constitutional    protection,

Congress enacted 18 U.S.C. § 4241.               Section 4241(a) requires a

district   court    to     order    a    competency    hearing   "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."

            Withal, we disagree with the conclusion that Malmstrom

would have us draw from this uncontroversial premise.                   We have

observed before that sometimes "words are like chameleons; they

frequently have different shades of meaning depending upon the

circumstances."      United States v. Romain, 393 F.3d 63, 74 (1st


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Cir. 2004).     "Competency" is such a word.              Competency to stand

trial is considerably narrower than competency generally, with the

result that competency to stand trial "must not be confused with

broader or different uses of the term."           Robidoux v. O'Brien, 643

F.3d 334, 339 (1st Cir. 2011).

           In the last analysis, competency to stand trial "is a

functional concept focusing on the defendant's part in the trial."

Id. (emphasis in original).         The test for competency in this

context   is    whether   a   defendant    is    able     to   understand   the

proceedings against him and consult rationally with his counsel so

as to assist in his own defense.       See United States v. Brown, 669

F.3d 10, 17 (1st Cir. 2012); United States v. Giron-Reyes, 234

F.3d 78, 80 (1st Cir. 2000).

           Malmstrom invites us to disregard this particularized

framework and focus instead on the eccentric character of the

behavior that gave rise to the indictment.                He insists that the

irrational nature of his offense conduct itself gave the district

court reasonable cause to believe that it should order a competency

evaluation sua sponte.        Because this insistence is misplaced, we

decline his invitation.

           To    be   sure,   Malmstrom's       offense    conduct   raises   a

legitimate question about his overall mental health.              That mental

health issues exist, though, is not a per se bar to a finding of

competency to stand trial.        See United States v. Widi, 684 F.3d


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216, 221 (1st Cir. 2012).            One main reason that this distinction

is logically compelled is that a competency evaluation under

section 4241(a) is aimed at assessing a defendant's present ability

to participate meaningfully in his trial, not his mental state at

the time he perpetrated his offense.                 See Kenney, 756 F.3d at 44;

Robidoux, 643 F.3d at 339.           Thus, we train the lens of our inquiry

on what the record shows regarding Malmstrom's capabilities at the

time of the proceedings below.

             Our starting point is Malmstrom's ability vel non to

consult with his trial attorney.                    Malmstrom suggests that his

attorney's motions to withdraw are telltale signs that his ability

to communicate with counsel was somehow impaired.                  This suggestion

elevates hope over reason.

             It is a bedrock principle — and one that we reaffirm

today — that a defendant must possess the ability to communicate

with   his   counsel     so   that   he       can   assist   meaningfully    in   the

preparation and presentation of his defense.                 See Kenney, 756 F.3d

at   43;    see   also   18   U.S.C.      §    4241(a).      The   attorney-client

relationship, though, need not be congenial.                  See Brown, 669 F.3d

at   18    (concluding    that   attorney-client          disagreements     did   not

prevent defendant from consulting with counsel with a reasonable

degree of rational understanding).                    Here, Malmstrom fails to

identify anything in the record that would justify a reasonable




                                       - 8 -
inference that he was unable to consult rationally with his trial

attorney.

            Of course, Malmstrom at one point refused to cooperate

with his attorney, prompting the latter to file a second motion to

withdraw.    Viewed in context, though, that disagreement did not

constitute reasonable cause to question Malmstrom's competency to

stand trial.   A defendant's refusal to participate in his defense,

as opposed to his inability to participate in his defense, does

not, standing alone, signal his incompetency to stand trial.    See

id.   Such a signal is plainly absent here:     by the end of the

hearing on the second motion to withdraw, Malmstrom had relented

and agreed to continue working with his attorney.

            We add, moreover, that "defense counsel enjoys a unique

vantage for observing whether [his] client is competent."   United

States v. Muriel-Cruz, 412 F.3d 9, 13 (1st Cir. 2005).         This

vantage is especially important with respect to whether defense

counsel's client was able to consult rationally with him.      As a

result, we afford significant weight to a lawyer's views as to

whether his client has "sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding."

Id. (emphasis in original) (quoting Giron-Reyes, 234 F.3d at 80).

In this instance, Malmstrom's trial attorney — in response to a

direct question posed in May of 2018 — unequivocally assured the

district court that he was unaware of any communication issues.


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At a post-trial hearing, Malmstrom's attorney stated that he and

his client had been able to repair any past communication issues.

                 Let us be perfectly clear. Malmstrom's trial attorney

did indicate an awareness that his client might have mental health

issues.      But a lawyer's general acknowledgement that his client

may suffer from mental health issues does not, without more, "reach

the     'reasonable         cause'      threshold     to     require      a     sua     sponte

[competency] hearing" under section 4241(a).                           United States v.

Ahrendt, 560 F.3d 69, 74 (1st Cir. 2009).                         Here, there was no

"more." Even though Malmstrom's trial attorney was generally aware

of his client's mental instability, he affirmatively represented

to    the        district       court      that   Malmstrom           could     communicate

meaningfully with him and assist in the defense.                              In a similar

vein, Malmstrom himself expressed a desire to aid in his defense

and     participate        fully     in    it.       Given      the    totality       of    the

circumstances (including the absence of any motion for a competency

evaluation, see United States v. Landers, 564 F.3d 1217, 1221 (10th

Cir. 2009)), we conclude that the district court lacked reasonable

cause       to        believe   that       Malmstrom's       mental      health         issues

incapacitated him from communicating effectively with his attorney

and assisting with his defense.

                 To     complete     the     picture,      we     must        inquire      into

Malmstrom's ability to understand the nature and consequences of

the proceedings against him. Malmstrom points out that a defendant


                                            - 10 -
must   have    a   "rational    understanding"    of    the   nature     of   the

proceedings, Muriel-Cruz, 412 F.3d at 13, and argues that his

offense conduct demonstrated a detachment from reality that called

into question his rationality.       But this argument mixes plums with

pomegranates:         the rational "'understanding' required is of the

essentials."       Robidoux, 643 F.3d at 339.     This encompasses matters

such as "the charges, basic procedure, [and] possible defenses."

Id.     It     does    not,   however,   extend    to   matters    "of    legal

sophistication."        Id.   After all, a defendant's understanding is

not expected to reach the same order of magnitude as a lawyer's

understanding.        Rather, due process demands an understanding of

only the most "critical parts of the proceeding."                 Giron-Reyes,

234 F.3d at 83.

              Malmstrom offers scant support for the proposition —

advanced for the first time by his appellate counsel — that his

understanding was so impaired as to require the district court on

its own initiative to evaluate his competency to stand trial.                 He

points to a solitary phrase his attorney uttered at the hearing on

the second motion to withdraw: "I'm a little concerned about

[Malmstrom's] level of understanding."            But the attorney went on

to say — in a portion of the same statement that Malmstrom's

appellate counsel ignores — that he could bring Malmstrom "up to

speed" well before the trial commenced.             And at another point,

Malmstrom's trial attorney indicated that Malmstrom was able to


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"receive[]" information regarding the proceedings and was able to

"process that information."

             A   hoary     maxim    teaches        that   actions    sometimes     speak

louder than words — and here, the record makes manifest that

Malmstrom's          actions    loudly      proclaimed      his     grasp    of    basic

procedure.       We list a few examples:

                     Malmstrom     spoke       directly   to     the   court     at   the

                      hearing      on     the    second     motion      to   withdraw,

                      indicating that he had rethought the matter and was

                      willing, going forward, to resume communicating

                      with his attorney and assist fully in his defense.

                     Malmstrom expressed a desire to be present for jury

                      empanelment and to participate in jury selection.

                     At trial, Malmstrom engaged in a reasoned colloquy

                      with the district court, relinquishing his right to

                      testify in his own defense.

                     At the disposition hearing, Malmstrom testified

                      lucidly while asserting a privilege related to his

                      medical records.

                     Malmstrom         listened     to    the    pronouncement        of

                      sentence, apparently appreciated what it signified,

                      and immediately requested an appeal.




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These examples illustrate Malmstrom's ability to understand the

most critical parts of the proceeding.

              A defendant has a right, within wide limits, to shape

his own defense.      Even so, a district court must be watchful for

signs that the defendant's competency to stand trial is in doubt.

If the court has reasonable cause to believe that a substantial

question exists concerning the defendant's competency to stand

trial, it should not hesitate to order a competency evaluation sua

sponte.   See Nygren, 933 F.3d at 86; United States v. Maryea, 704

F.3d 55, 69 (1st Cir. 2013).           But where, as here, the record

reveals no reasonable cause to undergird such a belief, the court's

intervention is not required.      It follows that the court below did

not   abuse    its   discretion   in   failing   to   order   a   competency

evaluation sua sponte.

              We need go no further. For the reasons elucidated above,

Malmstrom's conviction and sentence are



Affirmed.




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