                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-1448
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                               v.

RODNEY ANDREWS,
                                           Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
              for the Western District of Wisconsin.
           No. 05 CR 56—Barbara B. Crabb, Chief Judge.
                        ____________
  ARGUED SEPTEMBER 19, 2006—DECIDED DECEMBER 7, 2006
                        ____________

 Before RIPPLE, MANION, and WOOD, Circuit Judges.
  MANION, Circuit Judge. Rodney E. Andrews is a serial
bank robber and long-time drug addict. After Andrews
was found competent to stand trial and agreed to a bench
trial, the district court found him guilty of robbing a
bank. Andrews, however, allegedly suffered from amne-
sia for the period of time surrounding the robbery. He
claims that this rendered him incapable of assisting his
attorney in preparing his defense and thus incompetent
to stand trial. Because we find that the district court did
not abuse its discretion when it declined Andrews’ re-
quest for a second competency exam and it did not com-
2                                             No. 06-1448

mit clear error when it found Andrews competent to
stand trial despite his claimed amnesia, we affirm.


                            I.
  On the morning of May 11, 2001, an individual, later
identified as Andrews, entered the Anchor Bank in Madi-
son, Wisconsin. He handed a bank teller a small bag from
which he pulled out a piece of notebook paper that read:
“Fill the bag. I have a gun.” Andrews verbally repeated
the same to the bank teller as she filled the bag with
$1,837.00. He took the bag and immediately fled the scene.
  Prior to the alleged robbery, a witness saw a man fitting
the description of the bank robber pacing back and forth in
front of the Anchor Bank while chain-smoking cigarettes.
Surveillance video of the interior of the Anchor Bank taken
during the robbery clearly depicted the robber and
matched the witness’ description of the man pacing and
smoking outside of the bank prior to the robbery. A Mad-
ison police officer found fresh cigarette butts in the area
where the witness saw the man pacing. The cigarette butts
were stored as evidence. Three years later, in August 2004,
the Madison Police Department sent the cigarette butts to
the Wisconsin Crime Laboratory for DNA analysis. A DNA
forensic analyst obtained and identified a DNA profile
from one of the cigarette butts, which she compared
to profiles of known offenders in the Wisconsin and FBI
DNA databases. The DNA profile taken from the cigarette
butt matched the DNA profile of convicted bank robber
Rodney E. Andrews, who had been convicted of robbery
in Indiana and had recently been paroled. Law enforce-
ment authorities located Andrews, and with his consent
the FBI obtained from him a DNA sample to confirm the
No. 06-1448                                                 3

positive match results. The Wisconsin Crime Laboratory
confirmed the results to a reasonable degree of scientific
certainty.
  A grand jury subsequently indicted Andrews on one
count of robbing the Anchor Bank in violation of 18 U.S.C.
§ 2113(a). The government also informed Andrews that
he was a suspect in four other bank robberies that oc-
curred between April 27, 2001 and May 11, 2001. Andrews’
counsel stated that it was his understanding that the
government intended to bring a superseding indictment
charging Andrews with all five bank robberies, unless
Andrews pleaded guilty to the charged robbery and
stipulated to his culpability for the other four. Due to prior
convictions, Andrews would be classified as a career
offender for sentencing purposes if he was convicted of
any one of the other bank robberies.
  In advance of the hearing, Andrews’ counsel filed a
motion under 18 U.S.C. §§ 4241, 4242 and Federal Rule
of Criminal Procedure 12.2(c) for an order for Andrews
to undergo a psychiatric and psychological examination
to determine his present competency and his sanity at
the time of the alleged bank robbery. The motion stated
that Andrews had been a heavy user of heroin and
alcohol at the time of the alleged robberies, and, as a re-
sult of his illegal drug and alcohol abuse, he has no pres-
ent memory of where he was, or what he was doing,
during the early to middle part of 2001. Andrews further
claimed that he does not remember being in Wisconsin
other than the time he spent as an inmate at Federal
Correction Initiation in Oxford, Wisconsin, and when the
United States Marshals Service transported him to Wis-
consin for purposes of this case. The government did not
oppose Andrews’ motion. Magistrate Judge Stephen L.
4                                                  No. 06-1448

Crocker granted Andrews’ motion and subsequently
ordered the examination.
  Andrews was examined at the New York Metropolitan
Correctional Center by Dr. Cristina Liberati, a licensed
psychologist. In her report dated August 2, 2005,
Dr. Liberati concluded that Andrews, at the time of the
evaluation, was not suffering from a mental disease or
defect. Her report further stated that Andrews was com-
petent to stand trial because he “has a rational and factual
understanding of the proceedings against him and he is
capable of assisting counsel with his defense.” Regarding
Andrews’ criminal responsibility at the time of the of-
fense, Dr. Liberati concluded that Andrews “did not have
a mental illness impairing his ability to appreciate the
wrongfulness of his conduct.”
   After Andrews was found competent to stand trial, he
filed a new motion requesting an additional psychological
examination. Andrews’ second motion was based on his
assertion that further examination was warranted be-
cause Dr. Liberati did not address specifically the effect
of Andrews’ claimed lack of memory during the period of
the alleged robbery on his ability to assist his counsel. In
his second motion, Andrews acknowledged that “the law
of the Seventh Circuit does not currently recognize amne-
sia as a competency or due process issue.” In its response,
the government conceded, arguendo, that Andrews
actually suffers amnesia regarding the events surround-
ing the robbery, but asserted that Andrews’ motion
should be denied based on existing precedent in this
circuit, specifically United States v. Stevens, 461 F.2d 317 (7th
Cir. 1972), and Leach v. Kolb, 911 F.2d 1249 (7th Cir. 1990).
On September 28, 2005, Magistrate Judge Crocker denied
Andrews’ motion for a second competency exam, stating
No. 06-1448                                                  5

that “given the law of this circuit, it does not appear that
anything legally useful would be obtained by attempting
to pinpoint more precisely any organic basis for Andrews’
amnesia.”
  On November 3, 2005, prior to his trial, Andrews stip-
ulated to the government’s evidence against him, includ-
ing the photographic and DNA evidence, as well as
testimony from eyewitnesses and law enforcement per-
sonnel. The district court conducted a bench trial, and
based on the stipulated evidence adjudged Andrews
guilty of robbing the Anchor Bank. The district court later
sentenced Andrews to a 151-month term of imprisonment.
Andrews appeals.


                              II.
  On appeal, Andrews argues that his amnesia regard-
ing the period during which the charged crime occurred
rendered him unable to assist in his own defense at trial,
and thus the district court should have declared him
incompetent to stand trial. Andrews also claims that the
district court erred in denying his request for a second
competency examination and hearing to evaluate the
impact of his claimed amnesia on his fitness to stand trial.
We consider each issue in turn.
  As this court explained in United States v. Collins, 949 F.2d
921 (7th Cir. 1991), “[u]nquestionably, due process re-
quires a defendant to be competent to stand trial.” Id. at
924. To be competent, a defendant must have the “suffi-
cient present ability to consult with his lawyer with a
reasonable degree of rational understanding . . . [and must]
ha[ve] a rational as well as factual understanding of the
proceedings against him.” Leach v. Kolb, 911 F.2d 1249, 1260
6                                              No. 06-1448

(7th Cir. 1990) (internal quotations omitted). Regardless of
whether the defendant moves for a competency evalua-
tion, “the due process clause requires the trial judge to
inquire sua sponte into a defendant’s mental state if events
in court imply that the accused may be unable to appreci-
ate the nature of the charges or assist his counsel in pre-
senting a defense.” Timberlake v. Davis, 409 F.3d 819, 822
(7th Cir. 2005).
  In this case, Andrews claims that his amnesia prevented
him from assisting his attorney in presenting a defense.
Specifically, he argues that he was incompetent because he
lacked any memory of the time period surrounding the
alleged bank robbery, and thus he could not respond to
the evidence presented against him. Andrews acknowl-
edges that this court has held previously that “amnesia
is not a bar to prosecution of an otherwise competent
defendant,” United States v. Stevens, 461 F.2d 317, 320 (7th
Cir. 1972), but argues that we should revisit that decision.
We begin by reviewing our past decision in Stevens.
  In Stevens we considered a factual and legal scenario very
similar to this case. The defendant in Stevens stated that
he had “been a chronic user of an indiscriminate variety
of drugs for more than twenty years,” and that his years
of substance abuse had deprived him of any memory of
substantial portions of his life, including the period dur-
ing which the alleged crime of which he was convicted
occurred. Id. at 318. The district court ordered a psychi-
atric examination. Id. The defendant was found to under-
stand “the nature and quality of the act with which he
was changed and the nature of his defense.” Id. at 319. On
appeal, the defendant argued that the evidence pre-
sented at trial of his sporadic amnesia presented a bona
fide doubt as to whether he was competent to stand trial,
No. 06-1448                                                     7

and that the district court should have conducted, sua
sponte, a competency hearing pursuant to 18 U.S.C.
§ 4241.1 Id. We noted that while a district court is not
expressly required to order further examination or a
hearing subsequent to a psychiatric report indicating
competency to stand trial, it is required to order such an
examination “should a bona fide doubt subsequently arise
during the trial.” Id. at 320 (citing Pate v. Robinson, 383
U.S. 375, 385 (1965)); see also Timberlake, 409 F.3d at 822.
Accordingly, the issue on appeal was whether evidence
presented at trial regarding the defendant’s inability to
recall events from his past at the time of trial could ren-
der Stevens incompetent to stand trial and trigger the dis-
trict court’s duty to order a second competency hearing.
   At the time of the Stevens decision, this issue was one of
first impression in this circuit. Stevens, 461 F.2d at 320-21.
However, the Second Circuit had decided a virtually
identical case in United States v. Sullivan, 406 F.2d 180 (2d
Cir. 1969), and this court in Stevens relied on the Second
Circuit’s decision to conclude that “amnesia is not a bar
to prosecution of an otherwise competent defendant.”
Stevens, 461 F.2d at 320. As in Stevens, the defendant in
Sullivan claimed that as a result of his substance abuse
he suffered from amnesia for the period during which
the alleged crime occurred, which “made him unable to
confer with counsel and to assist in the preparation of a


1
  The provisions currently contained in 18 U.S.C. § 4241, which
govern a psychiatric examination to determine the mental
competency of an accused after arrest and prior to trial, formerly
were contained in 18 U.S.C. § 4244. This change occurred
subsequent to our decision in Stevens. For clarity, we cite to
the current version of the psychiatric examination procedures.
8                                                No. 06-1448

defense in any meaningful sense.” Sullivan, 406 F.2d at 185
(stating that the defendant suffered from memory loss
characteristic of alcoholism). The Second Circuit con-
cluded:
    If [the defendant] had developed an amnesia prevent-
    ing his recollection of the events of the day in question,
    this would not in itself be a complete defense to the
    charge. There were other witnesses to the events who
    could and did testify. At the time of trial, [the defen-
    dant] was capable of understanding the charges and
    assist[ing] in the conduct of the trial. We cannot say
    that in these circumstances an amnesia for the events
    in question, if it were found that it actually existed,
    whether caused by drinking on the day in question or
    at a later date or dates ([the defendant] was out on
    bail for a period after arrest), or by later trauma,
    must constitute a defense to criminal prosecution for
    acts committed in an apparently sober and competent
    interlude.
Id. at 185-86.
  We noted in Stevens, though, that the Second Circuit left
open the possibility that amnesia could act as a bar to
prosecution, quoting with approval the following language
from Sullivan:
    Such a loss of memory may call for additional trial
    safeguards in particular circumstances, as where de-
    lay in trial has caused the loss of other evidence,
    but we are unwilling to hold that it is in all cases an
    automatic bar to prosecution for a crime amply estab-
    lished by competent evidence on trial.
Stevens, 461 F.2d at 320 (quoting Sullivan, 406 F.2d at 186)
(emphasis added).
No. 06-1448                                                     9

  Subsequent to our decision in Stevens, we have ad-
dressed this issue on only one other occasion. In Leach v.
Kolb, 911 F.2d 1249 (7th Cir. 1990), the defendant argued
that, as a result of head trauma, he suffered from amnesia
for the period of time during which the alleged crime
occurred. Id. at 1260. We noted that the defendant did not
advance any other theory or evidence other than his
alleged amnesia to support his incompetency claim. Id. at
1260-61. Accordingly, we concluded that the defendant’s
amnesia, standing alone, was “not a proper basis for a
finding that [he] was incompetent to stand trial.” Id.
  Reading Leach in conjunction with Stevens, it is clear
that amnesia alone does not render a defendant incom-
petent to stand trial, but that there may additional cir-
cumstances under which incompetency could be proven.
We have yet to elaborate on the additional circum-
stances that would support a finding of incompetency for
an amnesiac defendant, but several of our sister circuits
have considered the issue. In these decisions, the other
circuits have first noted that amnesia about the crime does
not render a defendant per se incompetent to stand trial.
See, e.g., United States v. Villegas, 899 F.2d 1324, 1341 (2d Cir.
1990) (“A defendant’s amnesia about events surround-
ing the crime will not automatically render him incom-
petent to stand trial.”); United States v. Rinchack, 820 F.2d
1557, 1569 (11th Cir. 1987) (same); Davis v. Wyrick, 766 F.2d
1197, 1202 (8th Cir. 1985) (same); United States v. Swanson,
572 F.2d 523, 526 (5th Cir. 1978) (same). Rather, an amne-
siac defendant, like any other defendant, must show that
he is unable “to satisfy the ordinary competency standard:
that is, he must be able ‘to consult with his lawyer with a
reasonable degree of rational understanding and . . . [have]
a rational as well as factual understanding of the proceed-
10                                               No. 06-1448

ing against him.’ ” Rinchack, 820 F.2d at 1569 (quoting
Dusky v. United States, 362 U.S. 402 (1960)). Several factors,
however, guide a court “[i]n applying this standard to an
amnesiac defendant,” including:
     (1) Whether the defendant has any ability to partici-
         pate in his defense;
     (2) Whether the amnesia is temporary or permanent;
     (3) Whether the crime and the defendant’s where-
         abouts at the time of the crime can be reconstructed
         without the defendant’s testimony;
     (4) Whether access to government files would aid in
         preparing the defense;
     (5) The strength of the government’s case against the
         defendant.
See Rinchack, 820 F.2d at 1569. See also Villegas, 899 F.2d at
1341 (listing identical factors); Swanson, 572 F.2d at 526
(same); 820 F.2d at 1569 (same); Davis v. Wyrick, 766 F.2d
at 1202 n.8 (putting particular emphasis on strength of
government’s case against amnesiac defendant).
  We agree that the above factors may assist a district
court in applying the competency standard to an amnesiac
defendant, but stress that they are not intended to be
exhaustive or applied in a rote fashion. The trial judge “is
in the best position to make a determination between
allowing amnesia to become an unjustified haven for a
defendant and, on the other hand, requiring an incompe-
tent person to stand trial.” Swanson, 572 F.2d at 526.
Accordingly, decisions regarding the application of the
above factors, and the weight due each factor, is left to the
sound discretion of the district court.
No. 06-1448                                                11

  Although we expect that it would be an exceptionally
rare situation, a defendant’s lack of memory could lead a
district court to find a defendant incompetent to stand
trial. We thus need to consider the procedure the district
court must follow when making this competency deter-
mination. Andrews agues that this court should adopt
the rigid, two-step competency evaluation process set
forth by the D.C. Circuit in Wilson v. United States, 391
F.2d 460 (D.C. Cir. 1968). In Wilson, the D.C. Circuit
required the district court to make an initial determina-
tion regarding the defendant’s competency prior to trial,
and then, at the close of trial, make findings of fact that
the defendant had demonstrated his competency during
the trial. Id. at 463-64. No other circuit, however, has
adopted this comprehensive approach, and we decline to
adopt it. Instead, we will continue to follow our precedent,
which offers the district court flexibility in exercising its
discretion.
  First, a district court should make an initial evaluation
regarding whether to order a competency hearing and
evaluation pursuant to 18 U.S.C. § 4241. If the amnesiac
defendant is found to be competent, the trial should
proceed. During the course of trial, the district court should
be mindful of the above factors. If at any stage during or
after trial, with or without motion by counsel, it becomes
apparent that the defendant’s amnesia may have rendered
him incompetent and jeopardize the fairness of the trial,
then the district court again must evaluate the defendant’s
competency. Other than the suggested factors to be
utilized in assessing an amnesiac defendant’s competency,
this procedural safeguard in no way differs from the long-
standing requirement that district courts must, at all times
during the trial process, guard against trying an incompe-
12                                                No. 06-1448

tent defendant regardless of when the incompetency
materializes or what caused it to occur. See Stevens, 461
F.2d at 320; see also Timberlake, 409 F.3d at 822. The district
court, however, is not required to make a formal finding
at the conclusion of trial regarding the amnesiac defen-
dant’s competency, as required by the D.C. Circuit in
Wilson. This approach is in accord with the decisions of
our sister circuits.
  The question then remains whether Andrews’ claimed
amnesia rendered him incompetent to stand trial. “When
the trial court has held a hearing and made findings about
the competency of a defendant, as it did in this instance,
‘we will overturn those findings only upon a showing
that they are clearly erroneous.’ ” United States v. Moore, 425
F.3d 1061, 1074 (7th Cir. 2005) (quoting United States v.
Collins, 949 F.2d 921, 924 (7th Cir. 1991)); see also United
States v. Downs, 123 F.3d 637, 641 (7th Cir. 1997) (stating
that a district court’s “findings regarding competence are
reviewed only for clear error”). Based on the evidence
proffered by the government to obtain Andrews’ convic-
tion, and considering the above factors, we conclude that
the district court did not commit clear error in conclud-
ing Andrews was competent to stand trial. Specifically,
the stipulated evidence of Andrews’ guilt introduced by
the government during his bench trial was both over-
whelming and scientific in nature. The record indicates
that Andrews was capable of understanding the charges
against him, discussing the case with his counsel, and
evaluating the objective evidence being introduced to
prove his guilt. While Andrews’ amnesia regarding the
five Wisconsin bank robberies appears to be permanent,
there is nothing in the record to indicate that Andrews,
with the assistance of counsel, could not have recon-
structed his whereabouts at the time the bank robberies at
No. 06-1448                                             13

issue were committed. For instance, Andrews could have
asked his family members or friends where he had been
or with whom during the period in question. No such
efforts are noted in the record. Also, nothing in the rec-
ord indicates that Andrews could not have prepared a
defense without access to the government’s files, or that
the government rejected any such request from Andrews.
Finally, and most importantly, the strength of the gov-
ernment’s case lay in the clarity of its direct evidence of
Andrews’ guilt. The two primary sources of evidence
against Andrews were his DNA obtained from the scene
of the bank robbery and the surveillance video of the
interior of the bank taken during the robbery. Nothing in
the record indicates that Andrews’ claimed amnesia
rendered him incapable of challenging the government’s
DNA collection procedures or identification process, or
from offering an alternative explanation regarding why
his DNA was found on cigarette butts outside the scene
of the bank robbery. Further, Andrews has offered no
reason why his claimed amnesia would prevent him from
presenting an argument why he is not the man clearly
pictured in the bank’s surveillance video in the act of
robbing the bank. In short, Andrews has failed to offer
any suggestion that his claimed amnesia has prevented
him from raising any tenable defense to the overwhelm-
ing evidence of his guilt. Andrews’ alleged amnesia did
not impair his ability to defend himself at trial and there
was no other evidence of his incompetency. The district
court thus did not commit clear error when it found
Andrews competent to stand trial.
  Andrews     also claims that the district court erred in
refusing to   order a second competency examination or
holding a     second competency hearing. The decision
whether to    hold a competency hearing or order a com-
14                                                No. 06-1448

petency examination “is a discretionary decision of the
trial court.” Downs, 123 F.3d at 641. Accordingly, we will
review the district court’s decision not to order a sec-
ond competency hearing or examination for abuse of
discretion. United States v. Wilbourn, 336 F.3d 558, 559 (7th
Cir. 2003) (“[The defendant’s] sole claim on appeal is that
the court erred in denying his request for a second evalua-
tion. We review that decision for abuse of discretion.”).
Once a defendant has been found competent to stand
trial under the Pate standard, a district court’s decision
regarding whether amnesia renders an otherwise compe-
tent defendant incompetent to stand trial is not neces-
sarily based on additional medical or psychological testing,
but rather on whether “a bona fide doubt [regarding
the defendant’s competency] subsequently arise[s] during
the trial.” Stevens, 461 F.2d at 321 (citing Pate, 383 U.S. at
385); Wilbourn, 336 F.3d at 560 (finding “it was not an
abuse of discretion for the court to deny [the defendant’s]
request for a second evaluation when the sole basis for
that request was the fact that he continued to demonstrate
behavior that the court had already found to be malinger-
ing” (citing United States v. Prince, 938 F.2d 1092, 1095 (10th
Cir. 1991) (finding that the district court did not abuse
its discretion in refusing to order second competency
examination where there was “no evidence in [the] record
of any irrational behavior by [d]efendant that was not
adequately explained in the single competency report”))).
That subsequent competency determination, if neces-
sary, is based on an evaluation of the factors set forth
above, which bear on the defendant’s ability to participate
in the trial and defend himself in light of the facts at bar,
the evidence presented, and the reasonable defenses
available. Here, the district court ordered Andrews to
undergo an initial competency evaluation pursuant to 18
No. 06-1448                                             15

U.S.C. § 4241, and Dr. Liberati found Andrews competent
to stand trial. The evidence proffered by the government
against Andrews was overwhelming, and Andrews failed
to identify any reasonable defenses he was precluded from
raising due to his claimed amnesia. Magistrate Judge
Crocker thus did not abuse his discretion when he denied
Andrews’ motion for a second competency examination
on the ground that nothing legally useful would be ob-
tained by attempting to pinpoint more precisely any
organic basis for Andrews’ amnesia.


                           III.
  The district court did not commit clear error when it
found Andrews to be competent and allowed him to be
tried for allegedly robbing the Anchor Bank in Madison,
Wisconsin. The district court also did not abuse its dis-
cretion when it declined to order Andrews to undergo a
second competency examination. Andrews’ conviction,
therefore, is AFFIRMED.

A true Copy:
       Teste:

                        _____________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




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