Court Finding That Defendant Is Competent to Stand Trial Not Subject to Interlocutory Appeal, Holds Tenth Circuit

In United States v. Perea, No. 19-2160 (10th Cir. Oct. 20, 2020), the Tenth Circuit holds that a finding of competency to stand trial in a federal criminal trial is not a collateral order subject to interlocutory appeal.

Defendant was indicted on nine counts of child pornography. The district court initially found him not competent to stand trial, based on an expert report offered by the defense and the testimony of a Federal Bureau of Prisons (BOP) psychologist. “During the pre-risk assessment and risk assessment interviews, however, [a different BOP psychologist] Dr. Chavez observed that Defendant presented as ‘notably different’ from his previous presentation, revealing a ‘higher level of understanding than portrayed previously.’ Based in part on this observation, Dr. Chavez issued a new report which found Defendant was, more likely than not, competent to proceed.” Following a testimonial hearing, the district court reversed itself and “entered an order finding Defendant competent to proceed to trial.”

The Tenth Circuit holds that the defendant may not take an interlocutory appeal of the pre-trial competency finding. The defense argued that there was appellate jurisdiction under the collateral order doctrine, under which an appeal will lie when an order (1) “conclusively determine[s] the disputed question”; (2) “resolve[s] an important issue completely separate from the merits of the action”; and (3) is “effectively unreviewable on appeal from a final judgment.” The panel finds that the appeal meets only the second condition.

The first condition is not met, the Tenth Circuit holds, because competency under 18 U.S.C. § 4241(a) may be reconsidered any time up until sentencing. The defense argues that the defendant’s “intellectual disability is relatively static and therefore not subject to change between now and sentencing. Because his condition will not change, Defendant reasons the district court will not likely reconsider its competency determination or order further evaluation. The law is clear, however. The trial itself may furnish evidence of incompetency, which would necessitate further inquiry into Defendant’s present ability to stand trial.”

The third condition is not met because the competency finding is fully reviewable on appeal. While there are “difficulties” inherent in “retrospectively determining competency,” the record in this case “is replete with psychiatric evaluations and hundreds of pages of testimony from two separate doctors. On appeal from a final judgment, this court will be able to review the record and adequately determine whether Defendant was tried and convicted while incompetent. Indeed, this is an inquiry we regularly undertake.”

The defense also argues that a defendant found incompetent has a Fifth Amendment due process right not to be tried, a right that would be irretrievably lost if the case moves forward. The panel holds that unlike the Fifth Amendment prohibition of double jeopardy and the Article I Speech and Debate clause – essentially constitutional immunities against prosecution – “no constitutional or statutory provision exists which guarantees an incompetent defendant will not be subjected to trial … Accordingly, Defendant has an effective remedy on appeal from the final judgment, and he cannot satisfy the third condition for application of the collateral order doctrine.”

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