
USCA1 Opinion

	




          March 23, 1994    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1584                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              ANGEL A. SOLDEVILA-LOPEZ,                                   a/k/a "ANGELO,"                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET               The  opinion of  this  Court issued  on  March 3,  1994,  is          amended as follows:               Page 2, line 3 - delete "by a jury."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1584                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              ANGEL A. SOLDEVILA-LOPEZ,                                   a/k/a "ANGELO,"                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                _____________________               Henry F. Furst for appellant.               ______________               Jorge E.  Vega-Pacheco,  Assistant United  States  Attorney,               ______________________          with whom Guillermo Gil, United States Attorney, was on brief for                    _____________          appellee.                                 ____________________                                    March 2, 1994                                 ____________________                    TORRUELLA, Circuit  Judge.  On August 17,  1992, a jury                               ______________          found defendant-appellant Angel A.  Soldevila-L pez ("Soldevila")          guilty  jury of  four counts  of conspiracy  to possess  with the          intent  to  distribute fifty  kilograms  of cocaine  and  using a          communication  facility  in the  commission  of  the offense,  in          violation of  18 U.S.C.    2 and 21 U.S.C.     841(a)(1), 843(b),          and 846.                    On November  27, three  days before sentencing  date of          November  30,  trial  counsel  for  Soldevila,  Nicol s  Nogueras          ("Attorney Nogueras") raised the issue  of Soldevila's competence          to  be   sentenced  in   a  motion  requesting   psychiatric  and          psychological   examination.      The  district   court   granted          Soldevila's motion.                    Following  a  psychiatric  evaluation by  both  a court          appointed  psychiatrist and  a  court  appointed psychologist,  a          competency hearing  was set for  May 24,  1993.  At  the hearing,          upon the suggestion of counsel for Soldevila, the court concluded          that Soldevila should be reevaluated on that day to determine his          competency  for sentencing  purposes.  Dr.  Scott A.  Duncan, the          court  appointed  psychologist,  reevaluated  Soldevila  and  the          hearing continued on the next day.                    On  May 25, doctor Duncan  presented an addendum to his          previous evaluation of Soldevila, stating for the first time that          Soldevila was "malingering"  (i.e., feigning incompetency).   The                                        ____          district court denied Soldevila's motion for a continuance, found          Soldevila  competent  to  be  sentenced  and  imposed   sentence.                                         -2-                                          2          Soldevila  appeals  from the  final  judgment  of conviction  and          sentence.                                      BACKGROUND                                      BACKGROUND                                      __________                    Soldevila has a recent history of psychiatric problems.          As recently as the spring of 1992 he was receiving psychotherapy,          including  prescription  medications  for  his  illness.1    This          information, however, was  not brought  to the  attention of  the          district court  at any time during  trial or at anytime  prior to          Attorney  Nogueras'  motion  for  psychiatric  and  psychological          evaluation of  November 27,  1992.   In  the November 27  motion,          Attorney Nogueras  stated  that Soldevila,  in conversation  with          counsel, "looks  and reacts  introvertedly, like absent  from the          conversation,  very  depressed, and  in  a  mental and  emotional          condition  that   requires   a  psychiatric   and   psychological          examination before sentencing."  Attorney Nogueras indicated that          he had observed related symptoms during trial, but had attributed          them  to Soldevila's  anxiety, believing  they  were "due  to the          tension   created  by  his   arrest,  imprisonment   and  trial."          Following  trial, Attorney  Nogueras discovered  additional facts          which  led   him  to  conclude   that  he  had   "undervalued  or          underestimated the nature and  extent of [Soldevila's] mental and                                        ____________________          1   Appellate counsel  obtained Soldevila's medical  history from          Soldevila's daughter, Blanca.  Much  of the history is  contained          in  photostatic copies  of prescriptions appended  to Soldevila's          brief and  in a letter dated  May 10, 1993, written  by Blanca in          which she observes that she  had supplied Attorney Nogueras, with          various  medical records in  June of 1992.   She also stated that          she had suggested to Nogueras that he submit a motion  to provide          Soldevila with proper  medical treatment but that her  advice was          not heeded.                                         -3-                                          3          emotional  condition at the time of the alleged commission of the          offense .  . . and at  the time of  trial."  In particular,  in a          November  23, 1992  conversation  between counsel  and Dr.  Jorge          Prieto, the  prison's  doctor, doctor  Prieto, informed  Attorney          Nogueras  that Soldevila  was  prescribed "Xanax,"  used for  the          management  of  anxiety  disorder or  the  short  term  relief of          symptoms of anxiety, Physicians' Desk Reference at 2456 (48th ed.          1994)  (herinafter "PDR"),  and "Ativan"2  during trial  in doses          "[c]ounsel believed  did not affect defendant's  awareness of the          consequences of the proceedings against him."  Doctor Prieto said          that  his observations  of Soldevila  on June  29 (i.e.  prior to                                                             ____          trial), led  him to conclude  that Soldevila  had a  "psychiatric          condition."   Doctor Prieto also indicated that, by May 27, 1992,          Soldevila  "was not  communicative  and had  lapses of  absence."          Therefore, Attorney Nogueras felt  that a psychiatric examination          was needed.                    In response to  Soldevila's motion, the district  court          judge stated  that he had  seen Soldevila "interact  with counsel          during   the   case,   and   [Soldevila]   was   fully  oriented,          participated, from what I could see from the bench, fully reacted          when there  was something  to react to.   [Sic] Smiled  and dealt          with the points  that were  scored when the  defense scored  such          points.   It was quite obvious that the person that was before me                                        ____________________          2  Ativan  is an antianxiety agent which "is  not recommended for          use in patients with a primary depressive disorder or psychosis."          PDR at 2516.  With regards to this medication, the PDR warns that          "[i]n   patients   with   depression   accompanying   anxiety,  a          possibility for suicide should be borne in mind."  Id.                                                             ___                                         -4-                                          4          here was not a zombie of any kind.   He was a person who was here          oriented  in all  spheres."   Still, the  district court  granted          Soldevila's   motion   and   ordered   that   Soldevila   undergo          psychological  and psychiatric  evaluation  at  the  Springfield,          Missouri  Medical  Center  for  Federal  Prisoners  to  determine          whether  he suffered  from a  mental disease  and then  return to          Puerto Rico  for final sentencing.   The district court entered a          provisional  sentence against  Soldevila  pursuant  to 18  U.S.C.            4244(d).                    On  March 9,  the Bureau of  Prisons issued  a forensic          evaluation  of  Soldevila,  signed  by Scott  A.  Duncan,  Psy.D,          Forensic Studies Coordinator of the United States Penitentiary in          Atlanta   ("doctor   Duncan"),  Angel   L pez   M.Ed.  and   Sara          Boucchechter, M.A..  The report concluded that Soldevila suffered          from "major Depression, Recurrent,  With Psychotic Features, Mood          Congruent."                    On April 20,  1993, in response to the  court's inquiry          regarding  "the approximate time  frame that  Mr. Soldevila-L pez          suffered from  psychotic depression," doctor  Duncan submitted to          the district  judge an  "Addendum to Psychological  Evaluation."           In  this   addendum,  doctor   Duncan  concluded  that,   in  his          professional    opinion,    Soldevila's   psychotic    depression          "originated approximately  in September/October 1992 as  a result          of  stress stemming  from  being  found  guilty  of  his  current          charges, being  tried  . .  .  and being  housed in  a  stressful          environment."                                         -5-                                          5                    On  April 27,  1993,  the district  court ordered  that          Soldevila be transferred  to Puerto  Rico no later  than May  20,          1993, for  a competency hearing to be  held on May 24,  1993.  On          May  12,  1993, Henry  F.  Furst, current  appellate  counsel for          Soldevila, ("Attorney Furst") sent Attorney Nogueras a letter via          telefax  informing Nogueras  that the  Soldevila family  wanted a          psychiatrist, Dr. Steven S. Simring, to examine Soldevila as soon          as  possible.   Soldevila  was  transferred  to the  Metropolitan          Detention  Center in  Guaynabo, Puerto  Rico ("MDC")  on May  20,          1993,  four days before the competency hearing was to take place.          Attorney Nogueras  moved for a  continuance, in order  for doctor          Simring  to evaluate  Soldevila  and be  presented  as an  expert          witness on Soldevila's behalf.  The district court denied the May          21, 1993 motion for a continuance.                    On the  same day,  Soldevila filed a  motion requesting          the district court's permission  to have doctor Simring interview          him  for a  psychiatric assessment,  to  allow Attorney  Furst to          appear  at the  competency hearing,  and to  duplicate copies  of          records,  transcripts and  tapes  used  during  the trial.    The          district court granted Soldevila's latter motion in all respects.                    The competency  hearing took place  on May  24 and  25,          1993.  On May 24, Attorney Nogueras told the court he had visited          Soldevila  recently but  that  Soldevila  was not  communicative.          Attorney   Nogueras   said   he   found   "[him]self   completely          incapacitated  to  convey  to  [Soldevila] the  meaning  of  this          hearing."   Attorney Nogueras further informed the court that one                                         -6-                                          6          of  the prison guards referred  to Soldevila as  "my Valium man."          Attorney  Nogueras also  alluded  to the  availability of  doctor          Simring to examine Soldevila, but suggested this was not possible          given the court's denial of Soldevila's motion for a continuance.          Doctor Duncan then testified that  when Soldevila arrived at  the          United  States  Penitentiary in  Atlanta,  on  February 3,  1993,          Soldevila was suicidal and possibly suffering from psychosis.  He          was unable to concentrate  sufficiently to complete psychological          testing.     Soldevila   was  then   administered  "Haldol,"   an          antipsychotic medication.   In doctor Duncan's  last contact with          Soldevila,  ten days  prior  to the  hearing, Soldevila  appeared          "oriented to  time, place, person,  and reason  of being  there."          Doctor Duncan indicated that  he stood by his previous  report of          March  9 in  which  he gave  his  opinion that  Soldevila  needed          immediate hospitalization for  treatment for psychotic depression          and that he should remain on "Haldol."                    At the request  of Attorney  Nogueras, the  proceedings          were adjourned to permit doctor Duncan to interview Soldevila and          to  review  his  medical  charts  and  determine  whether  he had          continued to  take the medication  prescribed to him  in Atlanta.          The court directed doctor Duncan to provide the defense access to          information regarding  the medication Soldevila was  receiving at          MDC, as  well as a copy of Soldevila's medical chart.3  The court                                        ____________________          3  After Attorney Nogueras asked the court to order him access to          information regarding the medication Soldevila had been taking at          MDC, the following exchange took place:                    MR. NOGUERAS:   Your  Honor, of  course, your                                         -7-                                          7          also indicated that doctor Simring, would be permitted to examine          Soldevila if he flew to Puerto Rico.                    On May 25, Soldevila  filed a motion requesting further          psychiatric evaluation.   The  motion stated that  the government          had not complied with the court's May 24 order to provide defense          counsel  a  copy  of Soldevila's  chart  and  requested  that the          government  comply.   Attached  to the  motion  was the  May 10th          letter  sent to  doctor Duncan  by Soldevila's  daughter, Blanca,          setting   forth  Soldevila's   medical  history   of  psychiatric          problems.  Attorney Nogueras indicated that he was attempting  to          locate  Dr. Agust n  Garc a,  a  local  psychiatrist or  clinical          psychologist, to analyze Soldevila's psychiatric condition.                    Also, on May  25, doctor Duncan filed a second addendum          to  the forensic report.   The addendum  concluded that Soldevila          was malingering.  Doctor  Duncan indicated that the previous  day          he reviewed Soldevila's  medical records and  met with Dr.  Vasco          Daub n,  the  chief  psychologist   at  MDC,  and  together  they          conducted an interview of Soldevila.                    During the  interview, doctors Duncan  and Daub n  gave          Soldevila  a  neuropsychological  memory  test  for  malingering,          called the Rey 15-item test.  Because Soldevila's performance was                                        ____________________                    Honor has  to understand  that if we  get the                    information this  afternoon,  we do  have  to                    make a decision in regard to whether we would                    be  then having  the  time to  get to  doctor                    Simring to react on this information.                    THE  COURT:  Believe me, I  will give you the                    time you  need.  Just remember  also that you                    have had since November 3rd [sic] to do this.                                         -8-                                          8          lower than that expected  of even someone who was  severely brain          damaged, doctor  Duncan concluded Soldevila was  malingering.  As          further  evidence  of malingering,  doctor Duncan  indicated that          Soldevila claimed  to have practically every  symptom about which          he  was  asked, whether  or not  they  were actually  symptoms of          psychosis.   Additionally, Soldevila complained of hearing voices          primarily at night, a time of day when his use of "Haldol" was in          fact  maximized.  On  occasion, Soldevila was  able to understand          questions  asked him  in English  and to  respond in  Spanish, an          ability   requiring  high  cognitive  skills,  inconsistent  with          psychosis.  Doctor Duncan concluded that he had seen nothing that          would  indicate  Soldevila  was  incapable  of  understanding the          charges  or cooperating with his lawyer and that he was competent          for  sentencing  purposes.     Doctor  Daub n  testified  to  his          participation  in the  interviews  of Soldevila  and agreed  with          doctor Duncan's diagnosis of malingering.                    On May  25, 1993,  the court found  that Soldevila  was          competent to be sentenced.  The court pointed out that, until the          verdict, there had been no indication that Soldevila had any kind          of mental defect  that would have  impeded the trial.   The court          found that Soldevila  "understood what  was happening and  . .  .          assisted  his  lawyer  in the  preparation  of  the  case."   The          district  court   judge  further  stated  that   "[h]ad  it  been          different, I would have been notified by Mr. Nogueras, and he did          not tell me  anything at the  time."  The  court found that  once          found  guilty and placed  in the Puerto  Rico State penitentiary,                                         -9-                                          9          Soldevila  became  depressed  and  psychotic, but  that,  he  was          prescribed  medication   and  presently   "is  competent   to  be          sentenced."                    On appeal, Soldevila argues that (1) Attorney Nogueras'          failure  to  timely investigate  and  argue  Soldevila's lack  of          competency to stand  trial denied Soldevila  effective assistance          of  counsel;  (2) Attorney  Nogueras  had an  actual  conflict of          interest with Soldevila  and the district court erred  in failing          to bring this conflict to the attention of Soldevila; and (3) the          district court erred in refusing to grant Soldevila's motion  for          a  continuance of  the  competency hearing  and  in finding  that          Soldevila was competent to be sentenced.                          INEFFECTIVE ASSISTANCE OF COUNSEL                          INEFFECTIVE ASSISTANCE OF COUNSEL                          _________________________________                    Soldevila's  claim  that  trial  counsel's  failure  to          timely investigate  and argue  Soldevila's lack of  competency to          stand trial  denied Soldevila effective assistance  of counsel is          raised for the first time  on direct appeal.  In this  circuit "a          fact-specific claim  of  ineffective legal  assistance cannot  be          raised initially  on direct review of a  criminal conviction, but          must  originally be  presented to  the district  court."   United                                                                     ______          States   v.  Natanel, 938  F.2d 302,  309 (1st Cir.  1991), cert.          ______       _______                                        _____          denied,  112 S. Ct. 986 (1992) (citations omitted).  An exception          ______          to this rule exists  "where the critical facts are not  genuinely          in dispute  and the  record is  sufficiently  developed to  allow          reasoned consideration of an  ineffective assistance claim."  Id.                                                                        ___          (citations  omitted).   Under  such circumstances,  "an appellate                                         -10-                                          10          court may dispense with the usual praxis and determine the merits          of such a contention on direct appeal."  Id. (citations omitted).                                                   ___          The  present  case  does not  fall  within  this  exception.   In          determining  the merits of a  claim for ineffective assistance of          counsel,  our   review  of  counsel's  performance   is  "not  in          hindsight,  but based  on what  the lawyer  knew, or  should have          known,  at  the   time  his  tactical   choices  were  made   and          implemented."  United States  v. Natanel, 938 F.2d 302  (1st Cir.                         _____________     _______          1991).  In the present case,  the district court did not make any          findings of critical facts such as when Attorney Nogueras  became          aware of Soldevila's psychiatric history  and the exact nature of          that  history that  would  enable us  to determine  what Attorney          Nogueras  "knew or should have  known" at different stages during          his representation of Soldevila.   Neither are these facts  clear          from the record.  The proper  method for pursuing  claims of this          nature is through a collateral proceeding in district court under          28 U.S.C.    2255 so  that proper factual  determinations can  be          made.  United States v.  Sutherland, 929 F.2d 765, 774  (1st Cir.                 _____________     __________          1991), cert. denied, 112 S. Ct. 83 (1991) (citations omitted).                 ____________                                 CONFLICT OF INTEREST                                 CONFLICT OF INTEREST                                 ____________________                    Soldevila argues that Attorney  Nogueras had an  actual          conflict  of  interest  with  Soldevila and  that  such  conflict          requires  the  reversal  of Soldevila's  conviction.    Soldevila          contends  that  the conflict  developed  after  Attorney Nogueras          realized that  he  had erred  by failing  to raise  the issue  of          Soldevila's  mental  competence  at   an  earlier  stage  in  the                                         -11-                                          11          proceedings.  At that point, Attorney Nogueras had an interest in          raising the competency issue to appease Soldevila and Soldevila's          family, but  also  had an  interest in  losing the  issue on  the          merits  to show  that he was  not at  fault for  having failed to          raise it  in a timely fashion.   Indeed, the worst  case scenario          for Attorney  Nogueras, argues Soldevila, would have been for the          court to  have found that the competency issue may have had merit          but was waived or was now otherwise not susceptible to definitive          resolution.  These potential  problems for Attorney Nogueras were          neatly resolved by the court's denial of the defense claim on the          merits.                    Although  Soldevila's  claim   of  actual  conflict  of          interest  is, in  effect, a  claim of  ineffective  assistance of          counsel,  we find  the  record "sufficiently  developed to  allow          reasoned  consideration"  of  this  particular  claim  on  direct          appeal.  See Natanel, 938 F.2d at 309; see discussion infra p.9.                   ___ _______                   ___            _____                    Soldevila did not object to any conflict of interest at          trial.  In Cuyler v.  Sullivan, 446 U.S. 335 (1980),  the Supreme                     ______     ________          Court established that  "[i]n order to  establish a violation  of          the Sixth Amendment, a defendant who raised no objection at trial          must demonstrate  that an  actual conflict of  interest adversely          affected  his  lawyer's performance."  Cuyler,  446  U.S. at  348                                                 ______          (footnote omitted).   Although this standard  was first developed          in  the context  of  counsel's joint  representation of  criminal          defendants, it has  been applied generally  to other conflict  of          interest situations, including alleged conflicts  between counsel                                         -12-                                          12          and his or her client.  United States v. Rodr guez, 929 F.2d 747,                                  _____________    _________          749 (1st Cir. 1991) (citations omitted).                    It is well settled that "some conflicts of  interest so          affront the  right  to  effective assistance  of  counsel  as  to          constitute  a  per  se  violation of  the  [S]ixth  [A]mendment."                         _______          United States v. Aiello, 900 F.2d 528, 531 (2d Cir. 1990) (citing          _____________    ______          Cuyler, 446 U.S.  at 349-50).   Such is the  case where a  lawyer          ______          suffers  from an actual conflict of interest that prevents him or          her from   presenting a vigorous defense  of a defendant.  United                                                                     ______          States  v. Eisen,  974 F.2d  246, 264  (2d Cir.  1992).   "Upon a          ______     _____          showing  of such  a conflict,  a defendant  need not  demonstrate          prejudice because a conflict inhibiting a lawyer's performance is          such an affront to  the right to effective assistance  of counsel          that . . .  [it] demonstrates a denial  of that right." Id.   See                                                                  ___   ___          also United States v.  Marcano-Garc a, 622 F.2d 12, 17  (1st Cir.          ____ _____________     ______________          1980) (citing United States  v. Hurt, 543 F.2d 162,  165-68 (D.C.                        _____________     ____          Cir. 1976))  (effective assistance of counsel  is impossible when          the  attorney-client  relationship  is corrupted  by  competition          between the client's interests and the personal interests of  his          attorney).                    This circuit has held  that in order to show  an actual          conflict of interest, a  defendant must show that (1)  the lawyer          could have  pursued a  plausible alternative defense  strategy or          tactic and  (2) the alternative strategy or tactic was inherently          in  conflict with or not  undertaken due to  the attorney's other          interests  or loyalties.  Guaraldi v. Cunningham, 819 F.2d 15, 17                                    ________    __________                                         -13-                                          13          (1st Cir. 1987) (citations and quotations omitted).  Courts  have          recognized actual  conflicts of interest between  an attorney and          his client when  pursuit of  a client's interests  would lead  to          evidence  of an  attorney's malpractice.   See  United  States v.                                                     ___  ______________          Ellison,  798 F.2d 1102,  1106-08 (7th Cir.  1986), cert. denied,          _______                                             ____________          479 U.S. 1038 (1987)  (actual conflict where, in pro  se hearing,                                                           _______          defendant   alleged   information   which,   if   true,   counsel          acknowledged,  would be  tantamount to  malpractice on  behalf of          counsel); see also  Mathis v. Hood,  937 F.2d 790,  795 (2d  Cir.                    ________  ______    ____          1991)   (finding   actual  conflict   of  interest   in  lawyer's          representation of defendant during appeal where defendant filed a          grievance  with disciplinary  committee  prior to  appeal due  to          attorney's delay in filing appellate brief).                    In  the  present  case,  Soldevila  has  not  made  the          requisite showing of an  actual conflict of interest.   Soldevila          has  not  shown  that  Attorney  Nogueras did  not  undertake  an          alternative strategy  or tactic  due to Attorney  Nogueras' other          interests or loyalties.   The circumstances alleged by Soldevila,          as a  matter of  law,  do not  amount to  an  actual conflict  of          interest  between Attorney  Nogueras and  Soldevila.   Unlike the          circumstances  presented  in  Ellison  or  Mathis,  at  the  time                                        _______      ______          Attorney Nogueras represented Soldevila, both at trial and during          the competency  hearing, Soldevila  had neither  accused Attorney          Nogueras  of  malpractice  nor  filed   any  grievance  regarding          Attorney Nogueras' representation.  Neither are the circumstances          of this case akin to  those which in which an actual  conflict of                                         -14-                                          14          interest amounting to a  per se violation of the  Sixth Amendment                                   ______          has  been found.4  Soldevila's claim that Attorney Nogueras had a          conflict  of interest during his representation  is based on mere          speculation.   "A theoretical  or merely speculative  conflict of          interest will not  invoke the  per se rule."  Id. (citing  United                                         ______         ___          ______          States v. Aeillo, 900 F.2d 528, 530-31 (2d Cir. 1990)).5          ______    ______                    Soldevila further  argues that  the court's failure  to          warn  Soldevila of the serious conflicts lurking in his continued          representation by Mr. Nogueras deprived him of due process and of          effective assistance of counsel.                     The Constitution does not require a trial court to warn          a defendant about  the risk of conflict in  every case.  Guaraldi                                                                   ________                                        ____________________          4  Per se Sixth Amendment violations have  been found where trial             ______          counsel was  implicated in the crime for  which his client was on          trial, Marcano-Garc a,  622 F.2d at  17 (citing United  States v.                 ______________                           ______________          Cancilla, 725 F.2d 867 (2d Cir. 1984)), and where a defendant was          ________          represented by a person not authorized to practice law.  Marcano-                                                                   ________          Garc a, 622 F.2d at 17 (citing Solina  v. United States, 709 F.2d          ______                         ______     _____________          160 (2d Cir. 1983)).          5   Because  Soldevila has failed  to show an  actual conflict of          interest,  in  order  to  prevail on  his  claims  of ineffective          assistance of counsel, "he must overcome the presumption that his          counsel's conduct  was reasonable  by satisfying the  two pronged          standard of Strickland  v. Washington, 466 U.S.  668 (1984). [He]                      __________     __________          must  show  (1)  that  counsel's  representation  fell  below  an          objective   standard   of    reasonableness   under    prevailing          professional norms and (2) a reasonable probability that, but for          counsel's  unprofessional errors,  the result  of the  proceeding          would  have  been different."   Eisen,  974  F.2d at  265 (citing                                          _____          Strickland v.  Washington, 466  U.S. at 694  (internal quotations          __________     __________          and citations omitted)).             We express no view  on whether Soldevila's allegations satisfy          this standard as Soldevila claims only that Attorney Nogueras had          an actual conflict of interest with Soldevila and we believe that             ______          any  other claims of ineffectiveness of counsel that may arise in          the present case should not be addressed on direct appeal.                                         -15-                                          15          v. Cunningham, 819 F.2d at 18.  "Defense counsel have an  ethical             __________          obligation to avoid conflicting representations and to advise the          court  promptly when  a  conflict of  interest arises  during the          course  of trial.  .  .  .    Unless the  trial  court  knows  or                                        ___________________________________          reasonably  should know  that a  particular conflict  exists, the          _________________________________________________________________          court need  not initiate an  inquiry."  Id. at  18 (alteration in          ____________________________________    ___          original) (quoting Cuyler, 446 U.S. at 346-47).                             ______                    We have not  found an actual conflict of  interest that          affected Soldevila's trial,  thus the trial court  could not have          known of one.   "We see no 'special circumstances' that gave rise          in  this case  to greater  potential conflicts  of interest  than          those that exist whenever a . .  . lawyer" raises any issue in  a                           ________          proceeding  that   if  raised   earlier  would  have   been  more          advantageous to his or her  client.  See id.  Hence,  we conclude                                               ___ ___          that the district court's failure to advise Soldevila of possible          conflicts  of  interest and  the related  risks of  his continued          representation  by  Attorney   Nogueras  did   not  violate   his          constitutional rights.                REFUSAL TO GRANT A CONTINUANCE & FINDING OF COMPETENCY                REFUSAL TO GRANT A CONTINUANCE & FINDING OF COMPETENCY                ______________________________________________________                    Soldevila  contends that  in light  of the  last minute          diagnosis of malingering, the  district judge improperly denied a          continuance  that would have allowed  Soldevila to be examined by          his own expert and subsequently  erred in finding that  Soldevila          was competent to stand trial.                    We  review  the district  court's  refusal  to grant  a          continuance  for abuse of discretion.  United States v. Rodr guez                                                 _____________    _________                                         -16-                                          16          Cort s, 949 F.2d 532, 545 (1st Cir. 1991).  Limits on the court's          ______          discretion  to grant  a  continuance are  imposed by  defendant's          constitutional  rights,  including his  rights  to  assistance of          counsel  and to the testimony of witnesses on his behalf.  United                                                                     ______          States  v.  Waldman,  579  F.2d 649  (1st  Cir.  1978) (citations          ______      _______          omitted).    "Only 'unreasonable  and  arbitrary insistence  upon          expeditiousness  in the  face of  justifiable request  for delay'          constitutes  an abuse of discretion."  Rodr guez Cort s, 949 F.2d                                                 ________________          at 545  (quoting United States v. Torres,  793 F.2d 436, 440 (1st                           _____________    ______          Cir.), cert. denied, 479 U.S. 889 (1986)).                 ____________                    In reviewing  the district  court's refusal to  grant a          continuance for further psychiatric evaluations we consider:  (1)          the  extent of  Soldevila's  diligence in  preparing his  defense          prior to  the date set for hearing; (2) the likely utility of the          continuance if  granted; (3) the  inconvenience to the  court and          the opposing party,  including witnesses; and  (4) the extent  to          which the  moving  party may  have  suffered prejudice  from  the          denial. United States  v. Flynt,  756 F.2d 1352,  1359 (9th  Cir.                  _____________     _____          1985),  amended, 764 F.2d 675  (9th Cir. 1985);  United States v.                  _______                                  _____________          Pope, 841 F.2d 954, 956 (9th Cir. 1988).          ____                                    1.  Diligence                                    1.  Diligence                                        _________                    It is clear that Attorney Nogueras could have exercised          greater  diligence locating  additional psychiatrists  to examine          his client prior to  the competency hearing.   As pointed out  by          appellate  counsel for Soldevila,  after Attorney Nogueras raised          the  issue of  Soldevila's competence  to be  sentenced, "defense                                         -17-                                          17          counsel  did  nothing to  support  his  previous suggestion  that          defendant may have been  incompetent . . . from November 30, 1992          to May  19, 1993, trial  counsel did  nothing, waiting  virtually          until the eve of the next proceedings to take any  action.  Thus,          defense  counsel   never  retained  a   psychiatrist  to  examine          defendant, nor did he  take any other action calculated  to flesh          out facts supporting the defense position."                    At  no time  prior  to May  25, the  final  day of  the          competency  hearing,  did  anyone   contend  that  Soldevila  was          malingering.   Attorney  Nogueras was  not given  doctor Duncan's          final  report, concluding that  Soldevila was  malingering, until          after  4:00 p.m.  on  May 25,    only  moments  before the  final          hearing.  In light of this surprise, attorney Nogueras was unable          to prepare  any response to doctor  Duncan's allegedly surprising          conclusion.   Attorney Nogueras was diligent in responding to the          allegations that Soldevila was malingering as soon as possible.                    By no  means do we endorse  Attorney Nogueras' behavior          in  waiting until  the  last  minute to  try  to obtain  his  own          experts, followed by what could be perceived as a strategy to buy          more  time by first  asking the court  for a recess  in order for          doctor Duncan  to reevaluate Soldevila  and then filing  a motion          for  a  continuance in  order  to  have time  to  respond  to any          findings doctor Duncan might make.                    Following     doctor   Duncan's   new  and   unexpected          conclusion that Soldevila was malingering, however, Soldevila was          entitled to an opportunity to prepare a response to that finding.                                         -18-                                          18          "[A]ppellant was  entitled to  call psychiatric witnesses  of his          own choosing who, after examining  appellant, could testify as to          his mental state."  United States v. Flynt, 756 F.2d at 1359.                              _____________    _____                            2.  Utility of the Continuance                            2.  Utility of the Continuance                                __________________________                    Where a continuance is sought in order  to provide time          for a psychiatric evaluation,  a defendant cannot be expected  to          present  to the court, in advance, the substance of the witness's          testimony in order  to establish its utility.  Pope,  841 F.2d at                                                         ____          954.   The  relevance  of additional  expert testimony,  however,          should have been apparent  from Soldevila's behavior and Attorney          Nogueras'  comments  at both  the  competency  hearing and  final          sentencing on May 24 and May 25.  See id.                                            ___ ___                    At the  May 24 hearing, Attorney  Nogueras informed the          court that on May 23, he and Attorney Furst went to see Soldevila          at  the MDC  and that  during this  visit, Attorney  Nogueras was          unable "to get through to [Soldevila]  at all," Attorney Nogueras          found himself completely incapacitated to convey to Soldevila the          meaning of the upcoming competency hearing, and Soldevila did not          recognize  Attorney Furst, who had  been his attorney  for a long          time.                    On May 25, before the district court judge  imposed the          final sentence, Attorney  Nogueras informed the court that he had          just asked Soldevila  if he knew what was  going on and Soldevila          said no.  At sentencing the following exchange took place:                    THE COURT:  .  . . If he admits  guilt today,                    he says I am sorry, Judge, for what I did.  I                    bought those  25 kilos  of cocaine.   He says                    that,  I will give him the two points.  If he                                         -19-                                          19                    doesn't say that, I won't . . . .                    MR.  NOGUERAS:   I  will ask  my client  that                    right now.                    THE COURT:  He will have to explain to me why                    he is sorry.                    MR.  NOGUERAS:  To be on the record I want, I                    don't even know if he understands.                    MR.  NOGUERAS:   Well,  let the  record show,                    your   Honor,  that  I  made  four  different                    questions to defendant.  One, what  was going                    on; number  two, did  he buy  cocaine; number                    three,  does he  know that  he might  get two                    points reduced  in his sentencing.   He says,                    no, I don't remember what [sic].                    THE COURT:  Okay.   So, he has no  two points                    . . . .          (A. 232).                    The continuance  would  have  clearly  been  useful  to          enable Soldevila  to present expert testimony  that might respond          to doctor  Duncan's new allegations  of malingering.   See United                                                                 ___ ______          States  v.  Barrett,  703   F.2d  1076,  1081  (9th   Cir.  1983)          ______      _______          ("defendant 'probably could have obtained an expert to assist him          [if he had] been given more time. . . .  In failing to  grant the          requested continuance  . . . the  trial court clearly  abused its          discretion.' (citation  omitted)") (quoted in Flynt,  756 F.2d at                                                        _____          1360).  The continuance would also have helped counsel prepare an          explanation for Soldevila's responses at sentencing.                                  3.  Inconvenience                                  3.  Inconvenience                                      _____________                    Undeniably, the prospect of a  continuance implied some          inconvenience to the district court and to doctor Duncan.  Doctor          Duncan  was not  a  local  witness.    The  postponement  of  the                                         -20-                                          20          competency hearing from  May 24  to May 25  had already  required          doctor  Duncan  to  remain  in Puerto  Rico  an  additional  day.          "Nonetheless, the district court  could have held the continuance          [Soldevila]  sought to  one or  two days.   Indeed,  the district          court  could have  taken  an  active  role  in  making  sure  the          evaluation  took place  and  quickly.   Balanced  against .  .  .          [Soldevila's    need   for]   a   psychiatric   evaluation,   the          inconvenience did not  justify the  denial."  Pope,  841 F.2d  at                                                        ____          957.                                    4.  Prejudice                                    4.  Prejudice                                        _________                    In the present case,  Soldevila was unable, without the          continuance, to present witnesses of his own choosing  that might          have  responded to doctor Duncan's new and serious charge that he          was malingering.  A defendant's due process right to a fair trial          includes  the right not to be tried, convicted or sentenced while          incompetent.  Drope  v. Missouri,  420 U.S.  162, 172-73  (1975).                        _____     ________          Congress  recognized and codified the right to a determination of          mental  competency  to stand  trial  in  the Comprehensive  Crime          Control Act  of 1984, 18  U.S.C.    4241.  This  statute "permits          motions to  determine [the] competency  [of a defendant]  'at any                                                                     ______          time after  the commencement of  prosecution for  an offense  and          ____          prior to the sentencing of the defendant . . . .'"  United States                                                              _____________          v. Renfroe, 825 F.2d 763, 766 (3d Cir. 1987) (quoting 18 U.S.C.               _______          4241(a)) (emphasis added).                    Under  18 U.S.C.   4241(a), a court is required to hold          a competency hearing:                                         -21-                                          21                      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.           United States v. Pryor, 960 F.2d 1, 2 (1st Cir. 1992).          _____________    _____                    In order to  find a defendant competent  to stand trial          "it is not  enough for the district court judge  to find that the          defendant is oriented to time and place and has some recollection          of  events."   Dusky  v.  United  States,  362  U.S.  402  (1960)                         _____      ______________          (internal  quotations  omitted).    Instead, the  "test  must  be          whether he has  sufficient present  ability to  consult with  his          lawyer  with a reasonable degree of rational understanding -- and          whether he has a rational as well as factual understanding of the          proceedings against him."  Id. (internal quotations omitted).                                     ___                    Soldevila's responses to  Attorney Nogueras'  questions          and  Soldevila's  failure to  make  an  allocution at  sentencing          suggested that  Soldevila may  not have had  the constitutionally          required  "rational  as  well  as factual  understanding  of  the          proceedings."   Although  doctor Duncan's  report suggested  that          Soldevila   was   merely  malingering,   Soldevila   was  clearly          prejudiced  by  his inability  to  present  witnesses that  could          respond to doctor Duncan's report.                                    5.  Conclusion                                    5.  Conclusion                                        __________                    "We recognize  that  [Soldevila] might  have  exercised          greater diligence than he did [and] [w]e do not intend to suggest          that the  degree of  diligence demonstrated by  [Soldevila] would                                         -22-                                          22          necessarily be  adequate under other circumstances."   Flynt, 756                                                                 _____          F.2d at  1360.  However,  because Soldevila has  a constitutional          right  not  to  be   sentenced  while  incompetent  and  suffered          prejudice as  a  result  of  the  denial  of  his  motion  for  a          continuance  and because  a  "continuance could  have been  brief          enough to cause only  minimal inconvenience, and would have  been          useful,"    we conclude  that the  court's denial  of Soldevila's          motion for  a continuance  was arbitrary and  unreasonable.   See                                                                        ___          Pope, 841 F.2d at 958.  We therefore find that the district court          ____          abused its  discretion in denying Soldevila's  motion and finding          Soldevila competent to be sentenced.                       We vacate  Soldevila's sentence and  remand this  case          for  a full competency hearing  and resentencing, if Soldevila is          found competent to be sentenced.                    Vacated and remanded.                    ____________________                                         -23-                                          23
