                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 13a0182n.06

                                             No. 10-6479                                   FILED
                                                                                       Feb 20, 2013
                            UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
                Plaintiff-Appellee,              )
                                                 )   ON APPEAL FROM THE UNITED
 v.                                              )   STATES DISTRICT COURT FOR
                                                 )   THE EASTERN DISTRICT OF
DARRYL LAMONT DAVIS,                             )   TENNESSEE
                                                 )
                Defendant-Appellant.             )   OPINION
                                                 )


        Before: MARTIN and GILMAN, Circuit Judges; and Fowlkes, District Judge.*

        RONALD LEE GILMAN, Circuit Judge. Darryl Davis appeals his conviction on multiple

counts relating to armed robberies in the spring of 2007. For the reasons set forth below, we

AFFIRM the judgment of the district court.

                                        I. BACKGROUND

        The relevant facts are not in dispute. Davis was arrested in June 2007 pursuant to a federal

complaint that charged him with bank robbery and interfering with interstate commerce through

robbery. A federal grand jury later returned an eight-count indictment charging Davis with one count

of bank robbery with a dangerous weapon, in violation of 18 U.S.C. § 2113(a), (d) (Count One),

three counts of using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C.

        *
        The Honorable John T. Fowlkes, Jr., United States District Judge for the Western District
of Tennessee, sitting by designation.

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§ 924(c) (Counts Two, Four, and Six), two counts of obstruction of commerce by robbery, in

violation of 18 U.S.C. § 1951 (Counts Three and Five), one count of being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count Seven), and one count of obstruction of

justice by tampering with evidence, in violation of 18 U.S.C. § 1512(c) (Count Eight). Davis was

convicted on all counts following a two-day jury trial in September 2009. The district court

sentenced him in November 2010 to a total term of 762 months in prison. On appeal, Davis

contends that (1) the district court erred in admitting evidence of his prior felony convictions, (2) his

trial counsel was ineffective for failing to file a motion to suppress DNA evidence gathered from a

warrantless swabbing of his inner cheek (called a “buccal swab”), and (3) the district court erred in

finding him competent to stand trial.

                                           II. ANALYSIS

A. Evidence of prior felony convictions

        Davis first contends that the district court erred in denying his motion in limine requesting

that the court “enter an order precluding the Government from offering any evidence with regard to

the prior felony conviction.” This contention is clearly without merit. Because being a felon is an

element of a felon-in-possession offense, see 18 U.S.C. § 922(g), the government was required under

Count Seven to prove that Davis had at least one prior felony conviction. The government

accordingly offered, as it does in many cases, to stipulate to Davis’s prior felony convictions without

disclosing the nature of the felonies. But Davis declined the stipulation, electing instead to hold the

government to its proof. This obliged the government to introduce a certified judgment of Davis’s

prior felony convictions (for attempted murder and automobile theft), as well as testimony limited




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to the admission of the judgment. The government did not, however, introduce any evidence

respecting the factual details of the prior felonies.

        Having refused a stipulation that would have expedited the trial and benefitted him by not

disclosing the nature of his prior felonious conduct, Davis has no cause to complain about the

introduction of evidence proving that he was in fact a convicted felon. Davis has cited no authority

that would limit the government’s right to introduce such evidence as an element of the felon-in-

possession charge. The authority he cites, Old Chief v. United States, 519 U.S. 172 (1997), simply

held that when the defendant offered to stipulate to a prior felony conviction without specifying the

name and nature of the offense, the government’s decision to reject that offer and instead introduce

evidence of the old conviction (for assault causing serious bodily injury) unfairly prejudiced the

defendant. That is of course the opposite of what happened in the present case, where the stipulation

was offered by the government and refused by Davis. The contention that the trial court erred by

admitting evidence of Davis’s prior felony convictions is therefore without merit.

        Nor can we find any error in the district court’s handling of such evidence. In admitting the

evidence of Davis’s prior convictions, the district court instructed the jury in the following words:

        Ladies and gentlemen of the jury, I am going to at this time give you a limiting
        instruction. You have heard testimony introduced by the government that the
        defendant has been previously convicted of two felony convictions; one for auto
        theft, one for attempted murder. You are instructed that this evidence is relevant only
        to Count 7 of the indictment charging violation of 18 United States Code § 922(g)(1),
        that is, being a convicted felon in possession of a firearm and is to be considered by
        you as relevant to no other count of the indictment for which the defendant is
        currently under indictment and is being tried.




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        Davis contends that this instruction “was not sufficient to address the prejudicial effect of

the evidence” because “the court failed to instruct the jury about considering the evidence as it

related to the character of [Davis].” But Davis did not object to the instruction at trial. And he did

not—and, for that matter, still does not—offer an alternative instruction that he thinks would be

preferable. We thus have no basis to doubt the adequacy of the instruction or the jury’s ability to

follow it. See, e.g., United States v. Cunningham, 679 F.3d 355, 383 (6th Cir. 2012) (“‘Juries are

presumed to follow their instructions,’ and the record provides no basis to believe that the jury here

did otherwise.”) (quoting Richardson v. Marsh, 481 U.S. 200, 211 (1987)) (brackets omitted).

B. Ineffective assistance of counsel

        Davis next claims that his trial counsel was ineffective because counsel failed to object to

the introduction of DNA evidence obtained by a warrantless buccal swab. We decline to review this

claim on direct appeal, however, because it is premature. See United States v. Martinez, 430 F.3d

317, 338 (6th Cir. 2005) (“As a general rule, a defendant may not raise ineffective assistance of

counsel claims for the first time on direct appeal, since there has not been an opportunity to develop

and include in the record evidence bearing on the merits of the allegations. This court has routinely

concluded that such claims are best brought by a defendant in a post-conviction proceeding under

28 U.S.C. § 2255 so that the parties can develop an adequate record on this issue.”) (internal citations

and quotation marks omitted).

C. Competency to stand trial

        Finally, Davis claims that the district court erred when it found him competent to stand trial.

“A criminal defendant is incompetent if he lacks ‘sufficient present ability to consult with his lawyer

with a reasonable degree of rational understanding’ or if he does not have ‘a rational as well as


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factual understanding of the proceedings against him.’” United States v. Miller, 531 F.3d 340, 348

(6th Cir. 2008) (quoting Drope v. Missouri, 420 U.S. 162, 172 (1975)). The “bar for incompetency

is high,” and “a defendant is not rendered incompetent to stand trial merely because he cannot get

along with his counsel or disapproves of his attorney’s performance.” Id. at 350, 349. Because

Davis’s attack on the district court’s finding of competency is predicated on an alleged error of fact

rather than of law, we will review the finding under the clearly-erroneous standard. See, e.g., United

States v. Ford, 184 F.3d 566, 581 (6th Cir. 1999).

       Davis’s appellate counsel, who was not his trial counsel, claims, without describing any

specific events or testimony, that Davis “refused to listen to counsel and sought to have counsel

removed,” “made rants about government conspiracies indicating his paranoia,” and “was not able

to assist at trial because he suffered from the delusion that his lawyer worked against him.”

Evaluating these allegations requires a review of the competency proceedings below.

       In October 2007, pursuant to motions by both the government and Davis, the district court

ordered a psychiatric evaluation of Davis. The evaluation was performed by Dr. Tanya L. Cunic,

a forensic psychologist with the Bureau of Prisons. Dr. Cunic based her evaluation on observations,

medical examinations, psychological tests, and interviews with Davis from late November 2007

through late January 2008, as well as her review of several documents and a telephonic interview

with Davis’s mother.

       The forensic report issued by Dr. Cunic found that Davis “does not appear to suffer from any

major mental illness,” “his thinking was goal- and future-oriented,” and he was “an essentially

healthy male.” Observations of Davis’s interactions in the prison ward revealed that he “appeared

to function adequately,” was “polite” toward the staff, “maintained good hygiene and adequate


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attention to personal appearance,” and “was able to successfully negotiate a relatively large

compound with minimal assistance from staff.” Dr. Cunic found Davis’s interactions during the

interviews to be indicative of good memory and understanding, a “cooperative” attitude, the ability

to “follow directions,” and the ability to ask relevant and appropriate questions. “He denied

symptoms associated with a mood or anxiety disorder” and “his behavioral presentation coincided

with his assertion.”

       Dr. Cunic conducted one psychological test on Davis and attempted to conduct others, but

Davis became resistant and refused further testing as the questions became more difficult. Davis’s

resistance to further testing stemmed from his belief that Dr. Cunic was attempting to “‘revive’ past

problems he has since overcome.” He was apparently referring to problems associated with an

automobile accident in March 2003 that had resulted in “traumatic brain injury,” including

“generalized right side weakness, slowed speech, and memory deficits.” All of these problems were

“successfully rehabilitated” according to medical records and Davis’s mother.

       Dr. Cunic found that the limited psychological testing permitted by Davis did not provide

sufficient information to “assess the exact nature of his strengths and potential deficits.”

Nevertheless, Dr. Cunic found, based on clinical observations and interviews, that Davis was fully

functional, could “communicate fluidly with others and maintain activities of daily living without

difficu1ty,” and exhibited “no functional deficits in long- or short-term memory.” Davis therefore

did not “warrant[] a diagnosis that suggests he is experiencing a level of cognitive difficulty.”

       Dr. Cunic diagnosed Davis with “Antisocial Personality Disorder.” This disorder, as

described in the report, has nothing to do with a person’s ability to understand the proceedings

against him or to consult with counsel. Instead, a diagnosis of Antisocial Personality Disorder


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indicates an individual’s selfishness, arrogance or cockiness, “irritability and aggressiveness,”

propensity toward “deceitfulness or theft,” “failure to conform to social norms with respect to lawful

behaviors,” “disregard [for] the wishes, rights, and feelings of others,” and a willingness to deceive

or manipulate others “in order to gain personal profit or pleasure.”

        Dr. Cunic also evaluated Davis’s ability to understand and participate in the legal proceedings

against him. She found that Davis “was able to correctly identify the multiple participants involved

in legal proceedings,” “had a good understanding of general legal procedures,” and “displayed an

ability to communicate adequately and to cooperate” with his counsel. These conclusions in the

report were accompanied by specific questions and answers demonstrating that Davis had ample

knowledge (for a layman) of what a criminal prosecution entails and what a criminal defendant’s

rights and options are. With respect to the assistance of counsel, Dr. Cunic found that Davis had

“strong opinions” about how his attorney should represent him, but he “expressed respect and trust

for his attorney’s abilities.”

        Based on the foregoing, Dr. Cunic concluded that Davis “is not presently suffering from a

mental disease or defect” and “is competent to proceed.” She also concluded that Davis “will remain

competent for the foreseeable future.”

        In an addendum to the forensic report, Dr. Cunic evaluated Davis’s mental capacity at the

time of the alleged offense. The addendum reviewed Davis’s own recounting of his personal history,

the circumstances surrounding the alleged crimes, and Dr. Cunic’s observations and evaluations.

Dr. Cunic concluded that Davis “did not have symptoms of a major mental illness or defect which

would have precluded his ability to appreciate the nature and quality or wrongfulness of his actions.”




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        In light of Dr. Cunic’s report, counsel for Davis informed the district court that he did not

intend to pursue an insanity defense at trial. The court subsequently entered an order in March 2008

finding that Davis was not insane at the time of the charged offenses and was competent to proceed

to trial. There were no objections to the order. In July 2008, however, counsel for Davis filed a

motion expressing concerns that Davis might be incompetent to proceed and requesting another

psychological evaluation. The court granted the motion. This time, the evaluation was performed

by Dr. Diana McCoy, a private clinical psychologist. Dr. McCoy primarily based her evaluation on

a two-hour interview with Davis, but she also reviewed Dr. Cunic’s report, certain medical records,

the pretrial services report, and several letters written by Davis. She issued a forensic report that was

filed with the court in December 2008.

        Dr. McCoy’s report confirmed that Davis was articulate, “alert,” “adequately oriented to time,

place, person, and date,” and in possession of a good memory. The report also found that Davis

understood the nature of the criminal proceedings against him, the options available to a criminal

defendant, and the roles of various participants including the prosecutor, the defense attorney, the

witnesses, the judge, and the jury. To this extent, Dr. McCoy’s report was consistent with Dr.

Cunic’s.

        But Dr. McCoy came to a different conclusion regarding Davis’s competency to stand trial.

Her different conclusion was based on Davis’s notions about his legal defense and his perception of

a conspiracy against him. Dr. McCoy reported that Davis “was preoccupied with a 21-page

document” expounding the theory that “the United States government is bankrupt and therefore

unable to prosecute him.” According to this document, as recounted by Davis to Dr. McCoy, the

federal government is “a legal fiction,” and the entity that really “run[s] everything” is the “Uniform


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Commercial Code.” Davis also told Dr. McCoy that “there is a large scale conspiracy against him

that includes his defense attorney, the prosecutor, U.S. marshals, and the Court.” As “evidence” of

this supposed conspiracy, Davis pointed to the warrantless buccal swab taken from him, the search

of his car, the tapping of his prison phone, and a stipulation that his lawyer had asked him to sign.

(The stipulation apparently related to Davis’s prior felony convictions, discussed above in Part II.A.)

Davis had refused to sign the stipulation because he believed that “the only way he can be legally

prosecuted is if he signs it.” “It means they can take you right into court under federal charges. They

can skip right over the U.S. Bankruptcy issue. Signing the Stipulation means I’m waiving my rights.”

       When Dr. McCoy asked Davis about his statements to Dr. Cunic that he trusted his attorney,

Davis responded that he used to trust the attorney but no longer did. Davis complained that

“everything went downhill” once he showed his attorney the 21-page document about the Uniform

Commercial Code. He insisted that “the jury needs to hear about the Uniform Commercial Code but

that the judge is seeking to prevent this.” Davis told Dr. McCoy that he is mentally sound and

competent to stand trial, but he did not want to go to trial because the government has no authority

to prosecute him and because he is the victim of a conspiracy. The report found that “although Mr.

Davis has the ability to describe the roles of people in the courtroom and shows the capacity to

behave appropriately in a courtroom setting, nonetheless he no longer is able to make rational

choices, exercise good judgment, and consult with his attorney, who he now believes to be his

enemy.”

       Based on the foregoing observations, Dr. McCoy diagnosed Davis with “Delusional Disorder,

Persecutory Type.” Dr. McCoy identified the “essential feature” of this disorder as “one or more

non-bizarre delusions that persist for at least one month.” She explained that a non-bizarre delusion,


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as opposed to a bizarre one, is a delusion that “can conceivably occur in real life.” Like Davis,

people afflicted with Delusional Disorder appear normal in all respects when discussing subjects

other than their conspiratorial delusions.      The report concluded that Davis’s condition had

“deteriorated to a significant extent” since Dr. Cunic’s evaluation and that Davis “is currently not

competent to proceed with trial.”

       After receiving Dr. McCoy’s report, the district court held a competency hearing in March

2009. Dr. McCoy testified first, recounting Davis’s statements during the two-hour interview, as

well as discussing letters written to her by Davis that expounded similar theories about the

government’s bankruptcy and a vast conspiracy and “fraud” perpetrated against him. She also read

excerpts from letters written by Davis to his attorney requesting that damages of $365 million be

sought for Davis’s “unlawful arrest” and charging that the attorney had “taken a pay-off early on to

sell [him] out.” Dr. McCoy testified that she did not dispute the conclusion that Davis was

competent to stand trial at the time of Dr. Cunic’s initial evaluation, but she believed that Davis had

become incompetent at some point after that evaluation, perhaps due to his placement in solitary

confinement.

       On cross-examination, the prosecutor asked Dr. McCoy whether she was aware that similar

theories about government bankruptcy, vast conspiracies, and the Uniform Commercial Code had

been espoused by many other criminal defendants. Dr. McCoy seemed to be unaware of the wide

dissemination of these theories, but stated that such dissemination, even if true, would not affect her

diagnosis.

       After Dr. McCoy’s testimony, the judge permitted Davis to address the court. Davis stated

that he is fully competent, per Dr. Cunic’s initial evaluation, and that his attorney “is trying to


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enforce an incompetence on me” because Davis refused to sign certain stipulations. He also repeated

his theories that the government is bankrupt, that his counsel was in cahoots with the prosecution

to convict him, and that his counsel had been trying to get him to divulge incriminating information

over the phone, which was being tapped, so as to gather evidence against him.

       The next witness to be called was Dr. Cunic, who reiterated the findings in her report. When

asked about Dr. McCoy’s diagnosis of Delusional Disorder, Persecutory Type, Dr. Cunic testified

that she “disagree[d] with her diagnosis.” Dr. Cunic stated that Davis was apparently employing the

so-called “Freeman defense.” She testified that she was familiar with that defense based on her

encounters with a number of other criminal defendants who “espoused the same philosophical ideas

and defense strategy.” Indeed, Dr. Cunic testified that out of the six to eight inmates that she had

examined every month during the past year, approximately one inmate per month adopted the same

Freeman strategy. Dr. Cunic accordingly stood by her initial determination that Davis was

competent to stand trial.

       After hearing from the witnesses, the district court noted that Dr. Cunic’s initial finding of

competency at the time of the first psychiatric evaluation still stood as unchallenged. But the judge

was unsure as to whether Davis’s condition had deteriorated in the year that had passed since the

March 2008 competency hearing, particularly in view of the fact that there had not been a full mental

evaluation of Davis in the interim. The court accordingly ordered another full evaluation in April

2009. For her second evaluation, Dr. Cunic observed and interviewed Davis over the course of a

month and a half during May and June 2009, administered a number of tests, and reviewed several

documents, including the documents considered by Dr. McCoy.




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        The findings in Dr. Cunic’s second forensic report are fully consistent with those in her first

report; i.e., that Davis “function[ed] appropriately,” “maintained good hygiene and personal

appearance,” “did not display any bizarre behavior,” had a good memory, demonstrated “no evidence

of psychosis” or “paranoid behavior,” “did not exhibit any persecutory, grandiose, or bizarre

delusional ideas,” was “able to follow directions and ask relevant questions,” and was “cooperative.”

Indeed, he was even more cooperative than on the occasion of the first full evaluation in that he did

not resist psychological testing and even apologized for his prior resistance.

        Dr. Cunic determined, based on a Personality Assessment Inventory test, that Davis’s

“clinical profile does not reveal any significant psychopathology, but his profile does reveal

difficulties in the area of inflated self-esteem, antisocial behavior, and cognitive rigidity.” So even

though Davis “is reluctant to admit minor short-comings and may view himself in an overly positive

light,” he “does not meet the diagnostic criteria for any psychotic disorder, mood disorder, anxiety

disorder, or dissociative disorder.” Dr. Cunic accordingly concluded that her original diagnosis of

Antisocial Personality Disorder “remains unchanged.”

        Davis also took the Georgia Court Competency Test, which found, consistent with both Dr.

Cunic’s and Dr. McCoy’s earlier evaluations, that Davis had a fully adequate understanding of both

the charges pending against him and the process of criminal prosecution. Dr. Cunic’s report then

addressed Davis’s relationship with his defense attorney. Davis believed that his attorney “has not

effectively explained strategy to him or addressed pertinent legal issues,” and he was especially

critical of his attorney’s failure to file a motion to suppress evidence. The report found it “likely that

Mr. Davis and his attorney will have on-going conflict,” but noted that the “conflict is not due to a

severe mental disease or defect.”


                                                  -12-
        Dr. Cunic then specifically addressed Dr. McCoy’s diagnosis of Delusional Disorder. She

found that Davis’s espousal of a conspiracy theory involving the Uniform Commercial Code and his

refusal to trust any of the participants in the legal process, including his own attorney, was due to his

Freeman defense strategy rather than to a psychological disorder. The report concluded that “the

persecutory delusion to which Dr. McCoy refers is really the language of the ‘freeman’ groups. . . .

Mr. Davis has not displayed elements of a severe mental disease or defect in the recent past; it would

not be expected that he would exhibit a severe mental disease or defect in the foreseeable future.”

Dr. Cunic therefore opined that Davis “is competent to proceed” and “will remain competent for the

foreseeable future.”

        The district court then conducted a third competency hearing in July 2009 following the

issuance of Dr. Cunic’s second report. At this hearing, the record reflects that “[d]efense counsel

stated and the defendant agreed[] that the defendant was waiving a contested hearing and stipulating

to the most recent Forensic Report.” The court accordingly issued an order finding that Davis was

competent to stand trial. Davis was tried and convicted in September 2009, and the issue of mental

competency was not raised again until the present appeal.

        Considering the foregoing proceedings, and having carefully reviewed all three forensic

reports and the transcripts or records of all three competency hearings, we conclude that the district

court did not err in finding Davis competent to stand trial. Far from showing any evidence of clear

error, the district court’s approach to the competency issue was cautious and deliberate. Dr. Cunic’s

conclusions, based on two thorough evaluations, are not assailed in any meaningful detail on appeal

and were unchallenged below. The only indication of incompetency was found in Dr. McCoy’s

diagnosis of Delusional Disorder, Persecutory Type, based primarily on a single two-hour


                                                  -13-
examination. This diagnosis was rejected in Dr. Cunic’s second report, a rejection that was not

contested by Davis either personally or through counsel. We find Dr. Cunic’s rebuttal of Dr.

McCoy’s diagnosis entirely persuasive, and we note that the mere fact that a criminal defendant

espouses a far-fetched, or even bizarre, legal-defense theory is insufficient to clear the high hurdle

for incompetency that has been set by the prior decisions of the Supreme Court and this circuit. See

generally United States v. Miller, 531 F.3d 340, 348-50 (6th Cir. 2008) (discussing the standard for

incompetency, as established by the Supreme Court, and holding that the district court did not err

in failing to hold a competency hearing).

                                       III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM judgment of the district court.




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