United States of America v. Duane M Ckinney

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 22, 2013 Decided December 17, 2013
No. 12-3110
UNITED STATES OF AMERICA ,
APPELLEE
v.
DUANE M C KINNEY ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00113-1)
Mary E. Davis, appointed by the court, argued the cause
and filed the briefs for appellant.
Gilead I. Light, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen
Jr., U.S. Attorney, and Elizabeth Trosman, Virginia
Cheatham, and Colleen Kennedy, Assistant U.S. Attorneys.
Before: HENDERSON, ROGERS and T ATEL , Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL .

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TATEL , Circuit Judge: Appellant challenges the district
court’s finding that he was not suffering from a severe mental
illness when he represented himself at trial nearly six years
ago. Finding no clear error, we affirm.
I.
In July 2007, a grand jury indicted appellant Duane
McKinney on one count of conspiracy, four counts of mail
fraud, two counts of wire fraud, three counts of unlawful
monetary transactions, and four counts of first degree theft
after he allegedly engaged in an elaborate scheme to first
“obtain title to properties through forged deeds” and then “sell
the property, thus gaining in excess of $770,000.”
Superseding Indictment 4. After representing himself for three
of the ten days of trial, McKinney moved for a mental
competency exam, arguing that he suffered from bipolar
disorder, chronic anxiety, and insomnia, and that he was
taking medication that he claimed induced fatigue and
memory loss. See Trial Tr. 2–4 (Jan. 28, 2008). Although
suspicious that McKinney’s claim of mental incompetence
represented a “last minute” attempt to “circumvent” the trial,
id. at 9, the district court worried that McKinney had
displayed “red flag[s]” that gave the court “concern” that he
was “somebody just so mentally deranged that they just don’t
understand, despite the mountain of evidence, that what they
did is wrong,” Trial Tr. 13–14 (Jan. 29, 2008). After an
overnight competency screening proved inconclusive, the
court ordered a “full mental health evaluation” at the Federal
Correctional Institution at Butner, North Carolina, asking
medical personnel there to “determine (1) whether the
defendant is mentally competent to stand trial or plead guilty;
and (2) whether the defendant was mentally competent to
waive his right to counsel and conduct his own defense.”
Order (Jan. 30, 2008). The Butner psychologist concluded

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that although McKinney met the diagnostic criteria for
Antisocial Personality Disorder, he exhibited no signs of
psychosis at the time he moved to proceed pro se. On the
specific question of McKinney’s competency to waive his
right to counsel and represent himself, the psychologist found
“no evidence of a severe mental illness or of an individual
who was unable to function in a rational, reasonable manner,”
and no evidence that “McKinney did not understand the
potential limitations of him acting as his own attorney.”
Butner Forensic Report 10.
At times assisted by court-appointed standby counsel,
McKinney represented himself for most of the remaining trial,
and the jury convicted him on eleven of the fourteen counts.
McKinney then moved for a new trial, claiming that the court
should have appointed counsel notwithstanding his desire to
represent himself. See Def.’s Mot. for Reconsideration 5. In
support, he cited the Supreme Court’s intervening decision in
Indiana v. Edwards, 554 U.S. 164 (2008), in which the Court
held that “the Constitution permits States to insist upon
representation by counsel for those competent enough to stand
trial . . . but who still suffer from severe mental illness to the
point where they are not competent to conduct trial
proceedings by themselves.” Id. at 178. The district court
denied McKinney’s motion. Although “not sure” if
McKinney’s mental health “had something to do with” his
“horrible” self-representation, the court was “absolutely
certain that the result [of a new trial] would end up being the
same” because the government’s evidence was “just so
overwhelming.” Hearing Tr. 20–21 (Nov. 14, 2008).
McKinney appealed, and this Court remanded to the
district court “to determine with clarity whether the defendant
lacked the mental capacity to represent himself at trial.”
United States v. McKinney, 373 Fed. App’x 74 (D.C. Cir.

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2010). In accordance with Edwards’s holding that a court may
insist on representation by counsel only in instances where a
defendant “suffer[s] from severe mental illness to the point
where [he is] not competent to conduct trial proceedings by
[himself],” 554 U.S. at 178, we held that “severe mental
illness” was a “threshold” for requiring a defendant to accept
appointed counsel, McKinney, 373 Fed. App’x at 75. We
therefore directed the district court to determine whether
McKinney had a severe mental illness during his self-
representation, and if so, to “exercise its discretion to
determine whether to grant [McKinney’s] motion for a new
trial.” Id. at 76. In other words, if the district court determined
that McKinney had been incompetent to represent himself
during trial and that it should have insisted upon
representation by counsel, it should “conduct a new trial, with
[McKinney] represented by counsel.” Id. Consistent with
Edwards, we believed that the district court was ideally
placed to “make [a] more fine-tuned mental capacity
decision[]” based on McKinney’s mental health evaluations
and the court’s own observations, leaving it up to the district
court to decide whether to “take additional evidence or allow
briefing on the defendant’s state of mind at the relevant time.”
Id. at 75–76 (internal quotation marks omitted).
The district court then ordered an additional mental
health evaluation at Butner to determine whether McKinney
was competent to represent himself at the 2008 trial. See
Order 2 (June 13, 2011); Hearing Tr. 5, 34 (Oct. 12, 2012). In
response, the medical staff again examined McKinney and,
observing no symptoms of bipolar disorder during his eight
month stay at Butner, concluded that McKinney suffered from
no severe mental illness and had been competent to waive his
right to counsel and represent himself during trial. See
Hearing Tr. 34, 62 (Oct. 12, 2012). After “careful
consideration” of this and other mental health examinations,

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and given its own observations of McKinney’s behavior, the
district court found that McKinney suffered not from a severe
mental illness, but from a personality disorder that gave him
“this grandiose idea about his ability to appropriately
represent himself in this case.” Hearing Tr. 5 (Dec. 14, 2012).
McKinney, moreover, had “devised a fairly sophisticated
scheme to acquire the ownership, possession of others’
property for the purpose of materially enriching himself,” and
had allowed his standby counsel to deliver his closing
argument—both signs of his competency. Id. at 4–5. Finding
that McKinney “ha[d] the ability to make an informed
decision about his desire to represent himself and that he was .
. . competent to make that decision and to waive his right to
counsel,” the district court denied McKinney’s motion for a
new trial. Id. at 6.
McKinney appeals. We will uphold the district court’s
conclusion that McKinney was competent to represent
himself—as we would any competency determination—
“unless it is clearly arbitrary or erroneous.” United States v.
Battle, 613 F.3d 258, 262 (D.C. Cir. 2010) (internal quotation
marks omitted).
II.
Arguing that the district court erroneously found him
competent to represent himself, McKinney relies heavily on
the Supreme Court’s decision in Edwards, which involved a
defendant with schizophrenia whom the trial court found
competent to stand trial but incompetent to represent himself.
554 U.S. at 169. As mentioned above, the Supreme Court held
that the Constitution “permits States to insist upon
representation by counsel for those competent enough to stand
trial . . . but who still suffer from severe mental illness to the
point where they are not competent to conduct trial
proceedings by themselves.” Id. at 178. While noting that a

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“higher standard” applies to assessing the competency for
self-representation, compared to the competency to stand trial
or to waive counsel, 554 U.S. at 172–76, the Court expressly
declined to adopt a “specific standard” to determine when
exactly a defendant lacks the mental capacity to defend
himself, id. at 178. Instead, “the trial judge, particularly one . .
. who preside[s] over . . . competency hearings and [trial], will
often prove best able to make more fine-tuned mental
capacity decisions, tailored to the individualized
circumstances of a particular defendant.” Id. at 177.
At the outset, we note that this case differs from Edwards
in an important respect: whereas Edwards decided whether
the trial court improperly forced counsel upon a severely
mentally ill defendant, McKinney argues that the district court
here improperly failed to do the same. In other words,
McKinney asks us to hold that Edwards means not just that a
trial court may insist upon representation for defendants who,
due to severe mental illness, are incompetent to proceed pro
se, but that it must do so. As our earlier order made clear,
however, a district court’s “discretion . . . to limit [a]
defendant’s right to self-representation” is triggered only if
the court “first determine[s] whether the defendant ‘suffer[s]
from severe mental illness to the point where [he is] not
competent to conduct trial proceedings by [himself].’”
McKinney, 373 Fed. App’x at 75 (quoting Edwards, 554 U.S.
at 178). As we explain below, because we see no clear error in
the district court’s finding that McKinney failed to meet this
“threshold” level of incompetency under Edwards, we have
no need to determine whether “may” means “must” with
respect to representation in the Edwards context.
McKinney contends that the district court’s competency
finding was fundamentally flawed because it assessed his
competency to waive his right to counsel, not his competency

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to represent himself. In support, he points to the district
court’s final sentence, which states, in pertinent part: “it is my
view that [McKinney] did, in fact, have the ability to make an
informed decision about his desire to represent himself and
that he was, in fact, competent to make that decision and to
waive his right to counsel.” Hearing Tr. 14 (Dec. 14, 2012)
(emphasis added). If this were all the district court had to say
about the issue, we might agree with McKinney. As Edwards
emphasizes, “‘the competence that is required of a defendant
seeking to waive his right to counsel is the competence to
waive the right, not the competence to represent himself.’”
554 U.S. at 172 (quoting Godinez v. Moran, 509 U.S. 389,
399 (1993)). Assessing the latter—that is, “whether a
defendant who seeks to conduct his own defense at trial is
mentally competent to do so”—calls for a “higher standard”
under Edwards. 554 U.S. at 173, 178–79. Our earlier order
remanding the case placed this inquiry squarely before the
district court, and had the court gauged only McKinney’s
competency to waive his right to counsel, not his competency
to represent himself, another remand would be necessary.
As the government points out, however, McKinney
“focuses on a single sentence in the trial judge’s findings and
ignores the larger context of the ruling.” Appellee’s Br. 35
(footnote omitted). Taken as a whole, the district court’s
actions following remand demonstrate that the court properly
focused on the Edwards issue, addressing McKinney’s
competency to represent himself, not just his competency to
stand trial or to waive counsel. The district court invited
additional briefing and ordered mental health evaluations
specifically on the Edwards issue. See Order n.1 (Mar. 18,
2010); Order 2 (June 13, 2011) (ordering Butner
psychologists to evaluate “whether, at the commencement of
his trial in this case in January of 2009, Mr. McKinney . . .
‘suffer[ed] from severe mental illness to the point where [he

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was] not competent to conduct trial proceedings by
[himself]’” (quoting Edwards, 554 U.S. at 178)). And in the
end, the district court expressly found that “based upon all of
the examinations that have been done, [McKinney] did not
suffer from a severe mental illness.” Hearing Tr. 5 (Dec. 14,
2012). Given this, we think it quite clear that the district court
deemed McKinney competent to represent himself at trial.
McKinney next argues that the district court “ignored . . .
a wealth of evidence” revealing that his mental health
concerns “went beyond a personality disorder.” Appellant’s
Br. 22. Specifically, McKinney points to his pre-trial
treatment for “depression with manic features,” a diagnosis of
“probable bipolar disorder during trial,” a post-trial “diagnosis
of depression with psychotic features,” and Bureau of Prisons
records showing that he was prescribed anti-psychotic
medications following trial. Id. at 22–23; Appellant’s Reply
Br. 5. But the mere existence of some evidence demonstrating
that McKinney was diagnosed with a severe mental disorder
or prescribed antipsychotic medications before or after the
trial does not suggest that the district court clearly erred in
basing its competency finding on “all of the circumstances
that have been presented,” including its “observations of Mr.
McKinney, both prior to and during the course of the trial and
subsequent to the trial and all of the examinations that have
been done.” Hearing Tr. 6 (Dec. 14, 2012) (emphasis added).
Moreover, despite this court’s previous statement that
additional evidence and briefing were optional, the district
court invited supplemental briefing, ordered fresh mental
health evaluations, and considered testimony about
McKinney’s competency to represent himself at trial. In its
thorough review, the district court took into account five
expert evaluations and months of transcripts, direct
observations, and first-hand interactions with McKinney
during competency hearings, status conferences, and trial.

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McKinney insists that the most recent mental health
evaluation, which found him competent to represent himself,
was “meaningless” because it “failed to review medical
records, school records, the presentence report, speak to
family members and defense counsel, or review the full
transcript of the trial.” Appellant’s Br. 23–25. But such
defects, even assuming they exist, would hardly call into
question the district court’s own observations or the
remaining evaluations, none of which conclusively found
signs of severe mental illness or incompetency to self-
represent during trial.
Finally, McKinney argues that the district court erred by
“[taking] the position that a personality disorder could not
qualify as a ‘serious mental illness.’” Appellant’s Br. 29. But
McKinney has given us no basis for deciding whether a
personality disorder can, in a clinical sense, constitute a
serious mental illness. Indeed, in Edwards the Supreme Court
expressly declined to define either “severe mental illness” or
“incompetency to proceed pro se.” See 554 U.S. at 178
(refusing to adopt “a more specific standard that would deny a
criminal defendant the right to represent himself at trial where
the defendant cannot communicate coherently with the court
or a jury” (internal quotation marks omitted)). In any event,
the district court determined that McKinney’s psychological
impairment—whatever diagnostic form it took—was
insufficiently severe to render him incompetent to represent
himself.
In sum, we have no reason to disturb the district court’s
“fine-tuned” judgment that McKinney did not “suffer from
severe mental illness to the point where [he was] not
competent to conduct trial proceedings by [himself].”
Edwards, 554 U.S. at 178. We therefore affirm.

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So ordered.

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