Case o' The Week: Crazy Like a (Bipolar, Delusional) Fox - Brugnara, Edwards, and Faretta self-representation

 Can one be a schmuck, and be mentally incompetent?

 Not, apparently, in the Ninth.

United States v. Luke Brugnara, 2017 WL 1947893 (9th Cir. May 11, 2017), decision available here.

Players: Decision by Judge Wallace, joined by Judge M. Smith and DJ Erickson. 

  Hard-fought appeal by ND Cal CJA attorney Dena Young.

Facts: Brugnara, a San Francisco real estate tycoon, sought fine art from a dealer. Id. at *1. The art was delivered and stored in his garage, but payment never happened. (One crate reportedly contained a statue of Edgar Degas’s “Little Dancer.” It has never been found). Id. at *2.

   Brugnara was charged and incarcerated, but was placed on “furlough” by the district judge -- permitting him to leave lock-up in the federal building to review discovery and meet with his attorney.

 He escaped. Id.

  Later captured, Brugnara successfully moved to represent himself. Id. “From the moment the trial began, Brugnara’s behavior could be described as appalling.” Id. at *2.

  During the third day of trial, advisory counsel suggested a competency evaluation. That suggestion was rejected by the district judge. Id. at *3.

  During trial Brugnara earned over a dozen summary contempt holdings, for a total of 471 custodial days. Id. at *3.

  At sentencing new counsel was appointed. This CJA attorney promptly hired a psych. The psych opined, “Brugnara likely suffers from bipolar disorder, delusional disorder, and narcissistic personality disorder.” Id. at *11.

Mr. Luke Brugnara

  Now armed with this report from a mental health expert, defense counsel formally moved for a competency evaluation and a hearing on Brugnara’s competency. Id. at *4.

  The motion was denied.

  Brugnara was sentenced to eighty-four months in custody. Id. at *4.

Issue(s): “[Brugnara] contends both that the district judge should have terminated his self-representation when it became clear that he could not control his behavior, and that the district judge should have held a competency hearing, either sua sponte during trial or at counsel's request during sentencing.” Id. at *10.

Held: “Throughout the trial, [Brugnara] asked coherent questions and made rational arguments—the only flaw was that his legal theory of the case was wrong. At most, Brugnara’s afflictions, such as they are, make him rude and impulsive; they do not rise to the level of a ‘severe mental illness’ precluding competent self-representation. Edwards, 554 U.S. at 178. The district court's finding that Brugnara was competent to represent himself was . . . not clearly erroneous . . . . Accordingly, the district court did not deny Brugnara a fair trial by allowing him to represent himself for the duration of the proceeding.” Id. at *11.

  “We hold that a reasonable judge, faced with this record, would not have found it necessary to doubt Brugnara’s competency. On the contrary, the evidence reveals that Brugnara’s obstinate and pugnacious behavior was nothing more than a deliberate attempt to circumvent the court’s rules. This makes him a nuisance, not incompetent. The district court reached a similar determination, and did not err in doing so. There was therefore no need to hold a competency hearing sua sponte during trial.” Id. at *12.

Of Note: In 2010, the Ninth upheld convictions resulting in 20+ year sentences for a pair of Faretta “fools.” United States v. Johnson, 610 F.3d1138 (9th Cir. 2010), see also blog entry here.

  The Johnson case arose out of the same NorCal district court that presided over Brugnara. See id.

  Seven years later, Judge Wallace expressly relies on the Johnson decision in Brugnara, to uphold the (same) district court’s refusal to order a competency evaluation of this mentally-ill Faretta defendant. 2017 WL 1947893, at *11.

  Judge Reinhart predicted this outcome, many years ago. United States v. Farhad, 190 F.3d 1097, 1107 (9th Cir. 1999) (J. Reinhard, concurring). The Ninth should revisit Judge Reinhart's prescient Faretta warnings, and revisit this deeply troubling Johnson / Brugnara line of Faretta / Edwards authority.

How to Use: The lesson of Brugnara? When your crazy client gets that self-representation urge, hurry to file a written § 4241(a) competency motion before you are fired. (NB: In Brugnara, Judge Wallace discounts advisory counsel’s suggestion for a competency evaluation made during trial, because “advisory counsel was not conducting [Brugnara’s] defense.”   2017 WL 1947893, at *12).

  We CJA attorneys are a dime a dozen: we can be replaced if this competency motion damages your relationship with your client. Without this timely motion for a competency eval by defense counsel in the record, however, this Brugnara tragedy is the outcome.

                                               

For Further Reading: What are standby /advisory counsel’s ethical duties, while watching the self-immolation of an incompetent Faretta client? 

  For a thoughtful discussion of this ethical conundrum, see Charles Sevilla ethical discussion here.

Image of Degas’ “The Little Dancer” from http://www.metmuseum.org/toah/images/hb/hb_29.100.370.jpg

Image of Mr. Luke Brugnara from http://cdn.abclocal.go.com/content/kgo/images/cms/1043192_1280x720.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Jx, but Nixed: Godinez-Ortiz and "Dangerousness" Evaluations under 18 USC Section 4246

Judge Steven Trott (left) has the defense singing the blues in a case delivering the battle to the hard-fighting San Diego Defenders, but ceding the war to the government in a Section 4246 "dangerousness" case. United States v. Godinez-Ortiz,__ F.3d __, No. 08-50337, 2009 WL 1140278 (9th Cir. April 29, 2009), decision available here.


Players: Challenging case fought by veteran San Diego AFPDs Shereen Charlick and Vincent Brunkow.

Facts: Godinez-Ortiz finished an eight-year prison sentence for manslaughter in California, was deported to Mexico, and reentered fifteen days later. Id. at *1. He was charged with illegal reentry, found to be incompetent, and the BOP found he was not restorable to competency and thus could not be involuntarily medicated. Id. at *1.

The government then moved to dismiss the § 1326 charge and to return Godinez-Ortiz to the BOP at F.M.C. Butner, South Carolina, for a reevaluation and to obtain a certificate of “dangerousness” under 18 USC § 4246. Id. The court granted the government’s motions, the defense filed a notice of appeal. Id.

Issue(s): 1. Jurisdiction: “Godinez-Ortiz argues that this Court has jurisdiction to hear his appeal pursuant to the collateral order doctrine.” Id. at *2.

2. Authority to Commit and Institute § 4246 Proceedings: “Godinez-Ortiz asserts that the district court lacked authority to commit him to the custody of the Attorney General [the BOP at Butner] under § 4246 and to commence proceedings under § 4246.” Id. at *5.


Held: 1. Jurisdiction: “Because each requirement of the collateral order doctrine is satisfied, we have jurisdiction over this appeal.” Id. at *5.

2. Authority to Commit and Institute § 4246 Proceedings: “In authorizing the director to file a dangerousness certification, § 4246 necessarily contemplates the temporary commitment of that person so that the director can conduct the evaluation necessary to make the certification decision. Section 4241 and § 4246 do place limits on the district court’s authority to commit a person, but those limits were not exceeded in this case . . . . [W]e conclude the district court acted within its authority in temporarily returning Godinez-Ortiz to FMC-Butner to provide the director with an opportunity to consider whether the issue a dangerousness certificate pursuant to § 4246.” Id. at *8.

Of Note: There are two new Ninth rules in this decision by Judge Trott (joined by Judges Kleinfeld and Fisher). First, much to the government’s chagrin, there is a direct appeal from a district court order referring a client to BOP for a dangerousness evaluation under § 4246. Id. at *4-*5. (This, incidentally, effectively moots jurisdiction arising from a writ of mandamus. See id. at *8-*9). This is an important rule, and gives a “dangerous” defendant a shot at an appeal in the Ninth before being shuffled off to F.M.C. Butner and the warm embrace of the progressive Fourth Circuit.

The second new rule is less welcome: a district court has the authority to order a § 4246 evaluation and refer a defendant to the BOP even when the defendant is not hospitalized in F.C. custody and no certificate of dangerousness has been filed by the F.C. director. Id. at *7. The San Diego crew persuasively argued that the evaluation order in this case did not comply with the requirements of § 4246, but those arguments gained little traction in this opinion. Id. at *7-*8.

How to Use: Wading through the federal competency and dangerousness statutes and procedures can leave defense counsel feeling as loony as their clients. Here’s some basics as a starting point: 18 USC § 4241 is determination of mental competency to face trial, § 4246 is “dangerousness” commitment.

There are two key Supreme Court decisions on involuntary medication: Sell v. United States is involuntary medication to restore competency; Sell is a higher standard than Washington v. Harper – involuntary medication because an inmate presents a danger to himself or others while in custody. Each of these cases and statutes are discussed in Godinez-Ortiz.

For Further Reading: The Defender Services Training Branch website has a series of incredibly useful outlines on federal mental health and competency issues: they are all available here.

For an interesting, non-legal bio of the Honorable Steven Trott, visit The Original Highwaymen's site here.


Image of the Hon. Steven Trott from http://originalhighwaymen.com/p3trott.htm.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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