                                                                                   F I L E D
                                                                             United States Court of Appeals
                                                                                     Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                    NOV 27 2001
                                 TENTH CIRCUIT
                            __________________________                         PATRICK FISHER
                                                                                         Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                           No. 00-8044
                                                                (D. Wyo.)
 GLEN WAYT,                                              (D.Ct. No. 99-CR-92-5)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before MURPHY, Circuit Judge, and PORFILIO and BRORBY, Senior Circuit
Judges.



      Glen Wayt appeals from the district court’s determination he was competent

to stand trial. Mr. Wayt contends the district court incorrectly determined a

personality disorder is not a “mental disease or defect,” as used in 18 U.S.C.

§ 4241(d). 1 Mr. Wayt also asserts the district court committed plain error when it

      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

      1
          18 U.S.C. § 4241(d) provides:

               Determination and disposition. – If, after the hearing, the
allowed him to assume the burden of proving his incompetence.



      After reviewing the district court’s ruling, we hold the district court applied

the proper legal standard. The district court’s decision was a factual one,

supported by specific findings, and its conclusion that Mr. Wayt was competent

pursuant to 18 U.S.C. § 4241 was not clearly erroneous. Mr. Wayt’s second claim

of error also fails because the assignment of the burden of proof did not affect the

district court’s determination. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and affirm the district court’s decision.



                                       FACTS

      Glen Wayt was indicted in the United States District Court for the District

of Wyoming on conspiracy, possession of methamphetamine with intent to

distribute, and aiding and abetting possession with intent to distribute

methamphetamine charges, in violation of 21 U.S.C. §§ 846, and 841(a)(1),




             court finds by a preponderance of the evidence that the
             defendant is presently 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,
             the court shall commit the defendant to the custody of the
             Attorney General.


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(b)(1)(A) and (b)(1)(C). Mr. Wayt was evaluated by Dr. Ralph Ihle, at the

government’s request, after Mr. Wayt’s counsel alleged a jailhouse fight resulted

in a head injury that rendered Mr. Wayt unable to understand the proceedings

against him or to assist counsel in his case. When Mr. Wayt asked for an

evaluation by Dr. Grant Fleming, the district court granted his motion. Mr. Wayt

then requested and received a competency hearing pursuant to 18 U.S.C. §§ 4241

and 4247.



      Both doctors testified at the competency hearing and provided copies of

their reports. The doctors agreed on several points: 1) Mr. Wayt possessed the

cognitive capability to understand the proceedings; 2) Mr. Wayt did not exhibit

paranoia sufficient to constitute a psychotic disorder; and 3) tests indicated signs

of malingering. The doctors differed on whether Mr. Wayt could properly assist

counsel in his defense.



      Dr. Fleming testified he spoke with Mr. Wayt’s girlfriend, who described

Mr. Wayt as a long-term user of methamphetamine. Dr. Fleming explained Mr.

Wayt exhibited characteristics of a long-term user and Mr. Wayt’s long-term

methamphetamine abuse resulted in paranoia. Dr. Fleming concluded Mr. Wayt’s

paranoia was so strong it would significantly affect his ability to assist counsel


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and he was not competent to provide adequate information for his defense.



      Dr. Ihle recognized that whether a personality disorder was severe enough

to be a “mental disease or defect” under 18 U.S.C. § 4241 is “ultimately the

court’s decision.” Dr. Ihle did not find any major mental disorder that would

result in significant impairment of Mr. Wayt’s ability to understand the nature of

the proceedings or impair his ability to properly assist counsel. Weighing this

testimony, the district court found Mr. Wayt competent to stand trial.



      After the district court resolved the competency issue, Mr. Wayt entered a

conditional guilty plea to the conspiracy count as part of a plea agreement with

the government. The parties stipulated to the relevant conduct, and the district

court sentenced Mr. Wayt to 121 months imprisonment and five years supervised

release.



                                   DISCUSSION

      Mr. Wayt contends the district court incorrectly concluded, as a matter of

law, that a personality disorder derived from long-term substance abuse cannot

constitute a mental disease or defect under 18 U.S.C. § 4241. The government

argues the district court’s ruling was a factual analysis specifically applying the


                                         -4-
law to Mr. Wayt’s situation, not a legal conclusion precluding all defendants with

personality disorders from the protection of 18 U.S.C. § 4241.



      Competency to stand trial is an issue of constitutional significance, and a

question concerning whether the district court applied the appropriate test is a

question of law, subject to de novo review. See Lafferty v. Cook, 949 F.2d 1546,

1550 (10th Cir. 1991), cert. denied, 504 U.S. 911 (1992). However, the question

of whether a defendant is competent to stand trial is a factual determination, set

aside only if clearly erroneous. United States v. Verduzco-Martinez, 186 F.3d

1208, 1211 (10th Cir. 1999). A finding is clearly erroneous when the reviewing

court is left with the “definite and firm conviction that a mistake has been

committed.” Id. (quotation marks and citation omitted).



      The district court’s ruling had four parts: 1) Mr. Wayt was casting about

for a defense and his complaints about lost memory were not credible; 2) Dr.

Fleming’s conclusions concerning Mr. Wayt’s drug use were unreliable because

the reports of his drug use are unreliable; 3) even if the reports were reliable, Dr.

Fleming did not present a causal connection between drug use and Mr. Wayt’s

personality disorder; and 4) even if Mr. Wayt had a personality disorder with

paranoid features, “it ha[d] not been established by a preponderance of the


                                          -5-
evidence for purposes of the Court ruling as to the incompetence of this particular

accused.” In other words, Mr. Wayt’s personality disorder 2 did not meet the

statutory standards, and he was competent to stand trial.



      Although the government contended a personality disorder is not a mental

disease or defect, the district court’s thorough competency ruling was based on

factual findings. In sum, the district court concluded Mr. Wayt was competent to

stand trial. The district court’s findings are not clearly erroneous. Contrary to

Mr. Wayt’s contentions, the district court’s ruling does not convey a generalized

legal rule that personality disorders do not qualify for consideration under 18

U.S.C. § 4241. We find more than adequate support in the record for its findings

and, therefore, uphold the district court’s decision.



      As his second issue on appeal, Mr. Wayt asserts the district court

committed plain error when it allocated the burden of proof. To establish plain

error, Mr. Wayt must show: 1) there was an error; 2) the error was clear or

obvious under current law; and 3) the error affected substantial rights. United


      2
        The presence of some degree of mental disorder does not necessarily mean the
defendant is incompetent to assist in his own defense. See United States v. Mackovich,
209 F.3d 1227, 1233 (10th Cir.), cert. denied, 531 U.S. 905 (2000); accord Verduzco-
Martinez, 186 F.3d at 1212.


                                          -6-
States v. Whitney, 229 F.3d 1296, 1308 (10th Cir. 2000). If these three elements

are met, we may exercise our “discretion to correct the error if it ‘seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” Id.

(quotation marks and citations omitted).



      The federal statute providing for competency hearings does not allocate the

burden of proof. United States v. Nichols, 56 F.3d 403, 410 (2d Cir. 1995); 18

U.S.C. §§ 4241, 4247. We need not resolve the question here, because the district

court’s allocation of the burden of proof did not affect the outcome of its

competency determination. The district court correctly noted the standard of

proof in the competency hearing was the preponderance of the evidence. 18

U.S.C. § 4241(d). “[T]he allocation of the burden of proof to the defendant will

affect competency determinations only in a narrow class of cases where the

evidence is in equipoise; that is, where the evidence that a defendant is competent

is just as strong as the evidence that he is incompetent.” Medina v. California,

505 U.S. 437, 441, 449 (1992) (applying state law with “preponderance of the

evidence” standard).



      The evidence in this case was not in equipoise. When the district court

concluded Mr. Wayt was competent, it found: 1) Dr. Fleming’s conclusions were


                                           -7-
based on unreliable information and were therefore unreliable; 2) Mr. Wayt was

not credible but was casting about for defenses; and 3) Dr. Fleming did not

establish a causal connection between Mr. Wayt’s drug use and his personality

disorder. In contrast, the district court found Dr. Ihle, and the information he

relied upon, extremely credible. Therefore, we find no error. However, even if

we had found error, the fairness, integrity, or public reputation of the proceedings

were not seriously affected. Accordingly, we AFFIRM the district court’s

competency determination.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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