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United States v. Kowalczyk

United States Court of Appeals, Ninth Circuit

November 4, 2015


Argued and Submitted July 6, 2015, Portland, Oregon

Appeal from the United States District Court for the District of Oregon. D.C. No. 3:08-cr-00095-MO-1. Michael W. Mosman, District Judge, Presiding.

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[Copyrighted Material Omitted]

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Criminal Law

The panel affirmed the district court's order finding a defendant incompetent to stand trial and referring him to a federal medical center for further evaluation, and remanded.

The panel held that 18 U.S.C. § 4247 creates a non-waivable right to counsel during competency proceedings, and that the defendant was entitled to be represented by an attorney at his competency hearing. The panel held that the " meaningful adversarial testing" standard applies to assessing whether amicus counsel, appointed by the district court, satisfied the requirement of the right to counsel, and concluded that the defendant's amicus counsel did provide meaningful adversarial testing.

The panel rejected the defendant's claim that he was denied his constitutional right to testify in his competency hearings, and held that any potential abuse of discretion in not allowing the defendant to speak at a hearing on supplemental briefing was harmless.

The panel held that because multiple competency evaluations and determinations are permitted by 18 U.S.C. § 4241, the panel did not commit process error when, after finding the defendant incompetent for the first time and referring him for treatment, the district court held a second competency hearing and ordered him committed and treated a second time.

The panel saw no reason to reassign the case to a different district court judge on remand.

Stephen R. Sady (argued), Chief Deputy, Federal Public Defender, Portland, Oregon, for Defendant-Appellant.

Gary Y. Sussman (argued), Assistant United States Attorney, Kelly A. Zusman, Appellate Chief, S. Amanda Marshall, United States Attorney, United States Attorney's Office, Portland, Oregon, for Plaintiff-Appellee.

Before: Harry Pregerson, N. Randy Smith, and John B. Owens, Circuit Judges.


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During the long running course of Andrew Kowalczyk's prosecution for production of child pornography the district court conducted two separate competency hearings to determine whether Kowalczyk was competent to stand trial. During the second competency hearing, the district court appointed amicus counsel. After both competency hearings the district court

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found Kowalczyk incompetent to stand trial and referred Kowalczyk to a federal medical center for further evaluation. Kowalczyk appeals the second commitment order. Kowalczyk argues that the second competency hearing violated his constitutional rights because it: (1) deprived him of his Sixth Amendment right to counsel; (2) deprived him of his right to testify; and (3) deprived him of the procedural protections outlined under 18 U.S.C. § 4241 for finding an individual incompetent. We affirm the district court's commitment order and remand for further proceedings.


On February 21, 2008, a federal grand jury in the District of Oregon returned a one count indictment charging Kowalczyk with production of child pornography in violation of 18 U.S.C. § 2251(a) and (e). On March 20, 2012 the grand jury returned a superseding indictment charging Kowalczyk with eight additional counts of producing child pornography.

On February 22, 2008, Kowalczyk's case was assigned to District Judge Garr M. King. Kowalczyk first appeared in court on August 20, 2009, and pleaded not guilty. Federal Public Defenders Francesca Freccero and Ellen Pitcher were appointed to represent Kowalczyk.

On December 2, 2009, Freccero and Pitcher moved to withdraw as Kowalczyk's attorneys because of a conflict with Kowalczyk. The district court granted the motion to withdraw and appointed Matthew Schindler to represent Kowalczyk. Priscilla Seaborg was subsequently appointed as co-counsel. Schindler and Seaborg moved to withdraw ten months later on October 15, 2010. The district court warned Kowalczyk that if his actions caused another attorney to resign he would have to represent himself. On October 22, 2010, the district court granted Schindler's and Seaborg's motion to withdraw and appointed Michael Levine and Matthew McHenry to represent Kowalczyk.

Soon after, Levine and McHenry filed a motion to withdraw, explaining that a " mutual loss of trust ha[d] led to an irreconcilable breakdown in the attorney--client relationship." Kowalczyk stated that he did not wish to represent himself, and the district court denied the attorneys' motion to withdraw. On May 5, 2011, Levine and McHenry filed a second motion to withdraw, explaining that the " attorney--client relationship [was] shattered and irreparably broken." The district court granted Levine and McHenry's motion to withdraw, and appointed the seventh attorney, Noel Grefenson, to represent Kowalczyk.

On June 1, 2012, Kowalczyk filed a pro se motion objecting to Grefenson's representation and requesting new or additional counsel. The district court denied the motion.

On October 29, 2012, defense counsel Grefenson filed an ex parte motion requesting funds for a psychological evaluation of Kowalczyk. Grefenson explained that Kowalczyk insisted that he receive a competency evaluation, though Grefenson, admitting he was not a mental health professional, did not believe his client was incompetent. The district court denied the request, finding that there was no indication " Kowalczyk was mentally unstable to the point where he could not understand the proceedings or consult with his lawyer."

The district court noted that this was not the first time Kowalczyk requested medical attention shortly before trial was scheduled to begin. On August 10, 2012, less than a month before a scheduled trial

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date, Kowalczyk complained of a hernia and said he needed surgery. A doctor determined surgery was not necessary and that the symptoms were likely due to obesity.

In November 2012, Kowalczyk's father hired a clinical and forensic psychologist, Dr. Donald True, to evaluate Kowalczyk. Dr. True concluded Kowalczyk was not presently competent to stand trial and was unable to work with attorneys due to irrational paranoia.

On November 16, 2012, the district court held an ex parte hearing to address Kowalczyk's continued requests for a new attorney. Grefenson informed the court that Kowalczyk had filed a lawsuit against him. Kowalczyk maintained that he wanted to be represented by an attorney.

The district court summarized the procedural history of the case and opined that it appeared as if Kowalczyk was looking for ways " to avoid going to trial." Because of the conflict of interest created by the lawsuit Kowalczyk filed against Grefenson, the district court decided to appoint new counsel. But the court warned Kowalczyk that this was the final lawyer that would be appointed and if Kowalczyk did " anything that causes the lawyer to have to resign, . . . [the court would] assume [he was] doing it in order to avoid going to trial and [would] assume that [he had] waived [his] right to counsel." Kowalczyk then submitted Dr. True's report to the court. During the November 16, 2012 hearing, Judge King transferred the case to Judge Mosman because Judge King was scheduled to undergo surgery.

On November 30, 2012, Judge Mosman appointed Mark Cross, the eighth attorney to represent Kowalczyk. The district court again reminded Kowalczyk that Cross was his " last lawyer" and that it would " deem [Kowalczyk] to be representing [himself]" if " anything [got] in the way of the continued representation."

On March 11, 2013, the government moved for a competency hearing, a psychological evaluation, and discovery of prior psychological reports. The district court granted the government's motion and ordered Kowalczyk to undergo psychological evaluation in preparation for the competency hearing and asked that a report be prepared pursuant to 18 U.S.C. § 4247.[1]

In May 20, 2013, Kowalczyk, acting pro se, moved for substitution of counsel. He complained that, among other things, Cross had not spent much more than an hour of face-time with him. Cross moved to withdraw as counsel that same day.

On May 29, 2013, the district court held a status conference to discuss both motions. The court summarized the case's drawn out procedural history, including ...

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