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
                                      

          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
                                                 

          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
                                           

          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 &amp; 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
                                       

          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
                                                

          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
                                         

          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
                                       

          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
                                        

          "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
