UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

KLAT, SUSAN VIOLA


99-3103a

D.C. Cir. 2000


*	*	*


Karen LeCraft Henderson, Circuit Judge: Susan Viola  Klat was convicted
of threatening to assault the Chief Justice  of the United States and
the Clerk of the United States  Supreme Court in violation of 18
U.S.C. ss 115, 1114. On  appeal after the conviction, we remanded for
the district court  to determine whether there was a reasonable
possibility that  appointment of counsel to represent Klat would have
changed  the outcome of the pre-trial competency hearing in which 
Klat, upon her insistence, appeared pro se. See United  States v.
Klat, 156 F.3d 1258, 1267 (D.C. Cir. 1998). On  remand the district
court found "no reasonable possibility  that counsel could have
affected the outcome of defendant's  competency hearing." United
States v. Klat, 59 F. Supp. 2d  47, 55 (D.D.C. 1999). Klat appeals,
seeking reversal of the  district court's order on remand and a new
trial. She argues  counsel could have affected the outcome of the
competency  hearing by (1) sharing his observations regarding her
under- standing of the proceedings and her ability to assist counsel, 
(2) advising her to participate more fully in the psychological 
evaluation, (3) challenging the findings of the forensic psy-
chologist who examined her, (4) retaining an independent  expert to
examine Klat and (5) advising her not to waive her  right to counsel.
Her arguments, whether standing alone or  in combination, do not
persuade us to overturn the district  judge's determination that
counsel could not have affected the  outcome of the competency


I.


Based on conduct law enforcement officers viewed as  threats directed
toward the Chief Justice and toward person- nel of the United States
Supreme Court, Klat was arrested  and presented to a magistrate for a
preliminary hearing,  where she was represented by counsel from the
Federal  Public Defender's office. The magistrate judge found proba-


ble cause and ordered Klat to undergo a competency exami- nation. On
September 3, 1996 Bruce Cambosos, M.D., a  psychiatrist, concluded
Klat was competent to stand trial and  she was released on her own
recognizance. She filed a  motion three weeks later seeking removal of
counsel so that  she could represent herself.


On October 25, 1996 Klat was indicted on two counts for  threatening to
assault, in violation 18 U.S.C. ss 115 and 1114,  an officer and
employee of the United States and a United  States judge. Klat first
appeared before the district court at  a November 1, 1996 arraignment
hearing. The record of the  hearing reflects Klat's determination to
represent herself.  See Klat, 59 F. Supp. 2d at 47-48. During the
hearing,  counsel moved to withdraw from the case, citing a lawsuit 
Klat had filed seeking to hold the United States liable for his 
representation of her. The court granted the motion to  withdraw but
found that Klat's "bizarre behavior" provided  reasonable cause to
order a competency evaluation. Joint  Appendix (JA), tab F, at 2.


Klat was then transferred to Carswell Medical Center in  Fort Worth,
Texas, where James A. Shadduck, a forensic  psychologist, performed a
competency evaluation. Klat was  interviewed and otherwise examined by
Shadduck and others  who conducted "psychiatric consultation," "social
work consul- tation" and "behavioral observation." JA, tab E, at 3.
They  also interviewed Klat's former counsel and her former co-
workers. Shadduck interviewed Klat five times for a total of 
approximately ten hours. Klat, however, refused to take both  an IQ
test and the Multi-Phasic Personality Inventory  (MMPI). Shadduck
submitted his report to the court on  December 16, 1996. Citing Klat's
in-depth knowledge of the  legal process, of the charges against her
and of potential  outcomes, as well as her at least average
intellectual capacity,  Shadduck concluded that she was competent to
stand trial.  He diagnosed her as possessing a narcissistic
personality  disorder and potential bipolar disorder.


One month after Shadduck submitted his report, the dis- trict court
conducted a competency hearing at which Klat 


appeared pro se. No witnesses were called. The govern- ment did not
challenge Shadduck's evaluation and Klat, while  taking issue with
certain aspects of the diagnosis, maintained  she was competent. She
did agree to the government's  proposal that she accept appointment of
stand-by counsel.  The court specifically cited Klat's demeanor during
the hear- ing as indicative of her competence.1 The court accepted 
Shadduck's opinion and found Klat competent to stand trial  and, in
particular, that she had demonstrated both an under- standing of the
charges and an ability to conduct her defense.  See JA, tab F, at 4.


A jury trial commenced in February 1997 and, after open- ing statements
and the government's first two witnesses, Klat  requested that
stand-by counsel conduct the rest of the trial.  She was convicted on
February 26, 1997 and was held in jail  pending sentencing. Thomas
Goldman, M.D., a psychiatrist,  examined Klat on March 26, 1997 at her
counsel's request.  Although he determined that she was not competent
to  continue representing herself, he did not state that she was  not
competent to be sentenced. On May 27, 1997 Klat was  sentenced to a
term of 57 months' imprisonment on each  count, to run concurrently.


Klat appealed and we rejected all of her challenges but one.  See
United States v. Klat, 156 F.3d 1258 (D.C. Cir. 1998).  We held that
the district court erred in allowing Klat to  appear without
representation at the hearing to determine  her competence to stand
trial while at the same time it  expressed misgivings about her


In the instant case, appellant had clearly indicated her  desire to
waive her right to counsel and to proceed pro  se. However, at the
November 1, 1996 arraignment  hearing the district court made an
explicit finding that  there was "reasonable cause" to believe that
appellant  was mentally incompetent to stand trial. Under these 
circumstances, we find that the district court erred in 




__________

n 1 The district court found Klat's demeanor "controlled and appro-
priate for the situation." JA, tab F, at 4.


allowing appellant's appointed counsel to withdraw with- out appointing
new counsel to represent appellant until  the issue of her competency
to stand trial had been  resolved. This finding is based on our
conclusion that,  where a defendant's competence to stand trial is
reason- ably in question, a court may not allow that defendant to 
waive her right to counsel and proceed pro se until the  issue of
competency has been resolved.


156 F.3d at 1262-63 (footnotes omitted). We held that the  district
court's error constituted a violation of Klat's sixth  amendment right
to counsel. See id. at 1263. Accordingly,  we remanded "for an
evidentiary hearing to determine wheth- er counsel could have made a
difference in the outcome of  appellant's competency hearing." Id. at
1267. We instructed  the district court to vacate the conviction and
sentence only if  it determined counsel could have affected the
outcome but  otherwise affirmed both her conviction and sentence. See


The district court held an evidentiary hearing on April 14,  1999
during which the government presented only one wit- ness, James
Shadduck, and Klat through counsel presented  four: Shelly Stanton,
M.D., a psychiatrist; Thomas Goldman,  the psychiatrist who had
examined her before sentencing;  Richard Schmitt, a psychologist; and
Klat's former counsel  who withdrew at arraignment. On
cross-examination Shad- duck testified that it was possible, but not
probable, that the  MMPI test (which Klat refused) could have affected
his  opinion to some degree and that it was possible, but not 
probable, that Klat was suffering from a delusional disorder  when he


All of Klat's expert witnesses examined her at some point  after the
competency hearing; Goldman's exam occurred  approximately two months
later and the rest were even later.  Goldman concluded, on the basis
of a fifty-minute interview  and his review of Klat's trial counsel's
case file, that Klat was  not competent to proceed pro se. He
testified that if he had  been asked in March 1997 about her
competence to stand  trial one month earlier, he would have deemed her
incompe- tent. Stanton examined Klat later, in August 1997, after she


had begun a hunger strike, and found she had a delusional  disorder.
Stanton testified that, if Klat was in the same  condition at the time
of the competency hearing in January  1997 as she was when he saw her
several months later in  August 1997, he would opine she was not
competent at the  earlier time. Schmitt, who examined Klat in
September 1997,  testified that she suffered not only from a
narcissistic disor- der but also from a delusional disorder. Based in
large part  on his conclusion that Klat misapprehended the facts of
her  case and exhibited "a paranoid distrust of her attorneys," 
Transcript (Tr.) 4/14/97 at 157, Schmitt opined that Klat was  not
competent when he examined her. Shadduck, Goldman  and Stanton agreed,
however, that Klat's conviction could  have caused "decompensation,"
that is, a worsening of her  condition. See Tr. 4/14/97 at 18-19
(Shadduck), 69 (Stanton)  and 110 (Goldman).


Klat's former counsel testified that Klat's conduct after the  August
30, 1996 preliminary hearing and Cambosos's initial  competency
determination on September 3 led him to believe  she was incompetent.
He cited Klat's tape-recording a meet- ing with him and her irrational
views on how to proceed in  the case: for example, refusing the
negotiated pre-trial diver- sion offer and seeking indictment so that
she could go to trial  and expose the government conspiracy against
her. He gave  as reasons for his failure to voice his concerns to the
magis- trate judge his then-recent appointment and insufficient infor-
mation, and for his subsequent failure to express his misgiv- ings to
the district court the legal action Klat had by then  instituted and
his reliance on the government to challenge her  competence.


In the end, the district court rejected Klat's arguments, the  same
five arguments she makes here, and concluded there  was no reasonable
possibility that counsel could have changed  the result of the
competency hearing. The district court  emphasized that Klat
"repeatedly demonstrated her total  unwillingness to follow advice
from others, especially counsel"  and that "three separate mental
health experts evaluated Klat 


at three separate times,"2 none of whom found her incompe- tent. 59 F.
Supp. 2d at 51. The district court discounted  counsel's doubts as to
Klat's competence as cumulative in  light of the court's
observations.3 See id. at 53. The court  also noted that counsel had
represented Klat only at the  preliminary hearing stage.


Rejecting Klat's argument that counsel could have advised  her to
participate in further psychological testing, the court  stated that,
given her resistance to counsel's advice and  efforts, "there is
absolutely no evidence to give rise to the  inference of a reasonable
possibility that defendant would  have acted in accordance with such
advice." 59 F. Supp. 2d  at 53. The court dismissed the argument that
counsel's  cross-examination of Shadduck, assuming testimony had been 
taken, would have persuaded it that Klat was not competent.  The court
again relied on the opinions of the two experts  (Cambosos and
Shadduck) whose evaluations were before it  when it originally
concluded she was competent. See id. at  54. Responding to Klat's
fourth argument that counsel could  have secured another expert
opinion, the court noted that she  proceeded in forma pauperis and
found no reasonable possi- bility that the court would have approved
the hiring of an  independent expert to conduct what would have been
the  third evaluation in three and one-half months. See id. Final- ly,
the district court concluded that counsel's advice not to  proceed pro
se would not have affected the outcome in light of  Klat's earlier
rejection of the advice of both counsel and the  court that her pro se
stance was imprudent. See id. at 54-55.




__________

n 2 Although the district court's count included Goldman who evalu-
ated Klat after conviction, in its analysis the court relied on the 
opinions of Cambosos and Shadduck who had evaluated Klat before  the
court found Klat competent to stand trial. See 59 F. Supp. 2d  at


3 The district court concluded that counsel's description of Klat's 
obstinacy in ignoring his efforts to communicate and her inflated 
opinion of her defense could not have affected the outcome because  it
had itself noted the same behavior. See 59 F. Supp. 2d at 53.


II.


The applicable standard of review is, not surprisingly, in  dispute.
Klat argues that the determination is a mixed  question of law and
fact which should be reviewed de novo.  She likens the issue before us
to our review of the "reason- able probability of a different outcome"
determination in an  ineffective assistance of counsel claim.4 The
government, on  the other hand, contends that the determination
amounts to a  finding of fact warranting review only for clear error.
It  compares the issue before us to a competency determination  which
we review for clear error. See United States v. Cald- well, 543 F.2d
1333, 1349 (D.C. Cir. 1974).5


In our review of the district court's conclusion that there  was no
reasonable possibility counsel could have effected a  different
outcome, the factual basis of the competency deter- mination
necessarily comes into play. Nevertheless our task  is to decide the
legal question whether a constitutional error  may have so affected
the proceeding below that the reason- able possibility standard is
met. We must therefore apply a  legal standard to a particular set of
facts. Accordingly, we  are reviewing a mixed question of law and
fact. See Barbour  v. Browner, 181 F.3d 1342, 1345 (D.C. Cir. 1999).


In Barbour we discussed the factors involved in determin- ing whether a
mixed question of law and fact deserves  deferential or independent
review:




__________

n 4 Our standard of review for ineffective assistance of counsel 
claims is itself subject to debate. See United States v. Askew, 88 
F.3d 1065, 1070 (D.C. Cir. 1996) (unnecessary to pass on unsettled 
issue of standard of review).


5 "Competence to stand trial requires 'sufficient present ability to 
consult with his lawyer with a reasonable degree of rational under-
standing and ... a rational as well as factual understanding of the 
proceedings against him.' " Caldwell, 543 F.2d at 1348 (quoting  Dusky
v. United States, 362 U.S. 402 (1960) and citing Pouncey v.  United
States, 349 F.2d 699, 701 (D.C. Cir. 1965)). Competence to  stand
trial vel non is decided by a preponderance of the evidence.  See 18
U.S.C. s 4241(d).


As to so-called "mixed questions of law and fact," ...  there is no
obvious way to decide whether determinations  made at the trial level
should be reviewed deferentially  or independently. Therefore, the
reviewing court must  make a reasoned judgment whether the risk of an
erro- neous trial level decision, or the need to clarify the 
governing law, or any other value secured by review de  novo, is
warranted in view of the added costs of such  review.


181 F.3d at 1345 (citations omitted). We cited the discussion  in
Miller v. Fenton, 474 U.S. 104, 114 (1985), to the effect that 
determining the applicable standard of review often turns  upon which
judicial actor "is better positioned than another to  decide the issue
in question." Barbour, 181 F.3d at 1345.  We cautioned, however, that
the goal of clarifying governing  law may be elusive if the case is
"intensely fact specific." Id.  at 1348. Here, the district judge who
presided over the  competency hearing is better positioned than we to
decide if  counsel could have affected his factual determination of
Klat's  competence. See Caldwell, 543 F.2d at 1349 (competency 
determination is question of fact). We conclude that our  review of
the mixed question of law and fact before us should  be more
deferential than independent and, therefore, gov- erned by the clearly


The reasonable possibility inquiry governing the district  court's
determination is similar to that made in determining  whether a trial
error of constitutional dimension is harmless:  that is, whether the
error is harmless beyond a reasonable  doubt. See Coleman v. Burnett,
477 F.2d 1187, 1211 n.158  (D.C. Cir. 1973) (noting that "[i]n Chapman
it was held that  before a federal constitutional error can be held
'harmless,'  the court must be of the belief that it was harmless
beyond a  reasonable doubt [and] must find that there is no reasonable
 possibility that the error complained of might have contribut- ed to
the conviction") (citing Chapman v. California, 386 U.S.  18, 24
(1967), overruled in part by Brecht v. Abrahamson, 507  U.S. 619
(1993), and Fahy v. Connecticut, 375 U.S. 85, 86-87 


(1963)) (emphasis added);6 United States v. Saro, 24 F.3d  283, 287
(D.C. Cir. 1994) ("For most constitutional errors, an  appellate court
is to reverse if it entertains a 'reasonable  doubt' about whether the
error affected the outcome below.");  see also Pyles v. Johnson, 136
F.3d 986, 994 (5th Cir. 1998)  (equating reasonable possibility
determination regarding ex- trinsic evidence in jury room to harmless
error review).


Of the five reasons Klat advances for asserting that counsel  could
have affected the outcome, the district court's rejection  of the
second and fifth reasons (counsel could have advised  her (2) to
participate more fully in the psychological evalua- tion and (5) not
to waive her right to counsel) is plainly  reasonable. We, therefore,
consider further only the others.


Klat first argues that counsel could have offered his own  observations
regarding her understanding of the proceedings  and her ability to
assist him. Because a large part of the  competency determination
turns upon a defendant's ability to  assist counsel, see Caldwell, 543
F.2d at 1348 (competence  requires ability to consult with counsel),
representation at a  competency hearing is important and we have so
recognized:


This court recognizes that in making a competency deter- mination it
may be very useful for the trial judge to  question both the defendant
and his counsel; the applica- ble criteria measure one's ability to
consult with his  lawyer and to understand the course of legal
proceed- ings. Thus counsel's first-hand evaluation of a defen- dant's
ability to consult on his case and to understand the 




__________

n 6 In Chapman, 386 U.S. at 24, the Court stated:


There is little, if any, difference between our statement in Fahy  v.
State of Connecticut about 'whether there is a reasonable  possibility
that the evidence complained of might have contrib- uted to the
conviction' and requiring the beneficiary of a  constitutional error
to prove beyond a reasonable doubt that  the error complained of did
not contribute to the verdict  obtained. We, therefore, do no more
than adhere to the  meaning of our Fahy case when we hold, as we now
do, that  before a federal constitutional error can be held harmless,
the  court must be able to declare a belief that it was harmless 
beyond a reasonable doubt.


charges and proceedings against him may be as valuable  as an expert
psychiatric opinion on his competency. This  is particularly so
when--as in the instant case--trial  counsel has independently
expressed 'misgivings' about  the defendant's competency.


United States v. David, 511 F.2d 355, 360 (D.C. Cir. 1975)  (footnotes
omitted); see also Drope v. Missouri, 420 U.S. 162,  177 n.13 (1975)
("Although we do not, of course, suggest that  courts must accept
without question a lawyer's representa- tions concerning the
competence of his client, an expressed  doubt in that regard by one
with the closest contact with the  defendant, is unquestionably a
factor which should be consid- ered.") (citations and internal


In rejecting Klat's argument, the district court relied in  part on
counsel's failure to raise the competency issue at the  preliminary
hearing. Its reliance is misplaced for several  reasons. First,
counsel would have had more exposure to  Klat had he continued to
represent her at the competency  hearing. Furthermore, given the sole
purpose of the compe- tency hearing (and the distinct purpose of the
preliminary  hearing), it is more likely that counsel would have
voiced his  concerns there, particularly if the district court had
followed  the David holding's lead and sought his input. We may 
assume the ground for granting counsel's motion to withdraw  was valid
when the motion was granted at arraignment and  that therefore new
counsel would have been appointed to  represent Klat at the competency
hearing. It is also likely  that newly appointed counsel would have
raised the compe- tency issue. First, he had an ethical duty to do so,
assuming  he had doubts as to her competence, see, e.g., United States
v.  Boigegrain, 155 F.3d 1181, 1188 (10th Cir. 1998), and, second, 
Klat's steadfast refusal to follow advice of counsel, as empha- sized
by the court below, suggests that counsel could have  thought her
unable to consult with him rationally and, there- fore, unable to have
a rational understanding of the proceed- ings. See Caldwell, 543 F.2d
at 1348 (defendant must have  rational, not merely factual,


Decisive to our rejection of Klat's argument, however, is  that nearly
everything counsel could have offered was then  apparent to the
district court.7 See 59 F. Supp. 2d at 53. It  recognized that Klat
was untrusting, see id. at 51, that she  "had a distorted notion of
the merits of her case," id. at 53,  and that she refused to
communicate meaningfully with her  lawyer, see id. at 51, 53-54. In
fact, the district court's  observations to this effect are what
triggered it to order the  competency hearing. See JA, tab F, at 2
("Because of  defendant's bizarre behavior in open court, the court
ordered  that she be committed to the custody of the Attorney General 
for ... psychiatric examination."); see also 59 F. Supp. 2d at  53. It
is highly unlikely on this record that Klat would have  been receptive
to any counsel. The district court thus justifi- ably deemed any
observations of counsel "cumulative." See  59 F. Supp. 2d at 53. At
the hearing, it was reassured by two  expert opinions that Klat was
not incompetent. Accordingly,  the district court did not clearly err
in finding no reasonable  possibility that counsel's observations


Next, Klat argues counsel could have challenged Shad- duck's findings.
The district court dismissed this argument  because no live testimony
was taken at the competency  hearing and because Klat challenged only
Shadduck's conclu- sion, arguing that the facts before him should have
led him to  the opposite conclusion. See 59 F. Supp. 2d at 54. But 
counsel could have subpoenaed Shadduck and then questioned  his
opinion. See Caldwell, 543 F.2d at 1348 (D.C. Cir. 1975)  ("While the
proceeding need not be lengthy or involved, as a  minimum we think the
inquiry must be of record and both  parties must be given the
opportunity to examine all wit- nesses who testify.") (internal
quotation marks omitted); see  also United States v. Williams, 113
F.3d 1155, 1160 (10th Cir.  1997) (once doubt is raised as to his
competence "protections  of an adversary proceeding must be afforded




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n 7 As the court pointed out on remand, "Dr. Shadduck, like Dr. 
Cambosis [sic] before him, also observed this type of behavior and 
found defendant to be competent." See 59 F. Supp. 2d at 53.


The only point on which Shadduck's opinion appears assaila- ble,
however, is his inability to administer, and assess, the  personality
test (MMPI) Klat refused to take. In any event,  Shadduck testified at
the hearing on remand that, while the  lack of the MMPI result limited
the accuracy of his diagnosis,  it did not affect the accuracy of his
competency determina- tion.


Perhaps counsel's opportunity to expose this weakness in  Shadduck's
diagnosis would have enabled counsel to persuade  the court to appoint
another expert to evaluate Klat, which  leads to her last argument.
Klat claims counsel could have  retained an independent expert to
evaluate her. As the  district court recognized, however, Klat's
argument requires  several inferences to be stacked one upon the
other. See 59  F. Supp. 2d at 54. The weakest may be the foundational 
supposition that the district judge would have second-guessed 
Shadduck's opinion (the second competency determination in  three and
one-half months), whether based on cross- examination or on counsel's
doubts which mirrored his own,  and then authorized and credited


For the foregoing reasons, we conclude that the district  court did not
err, at least not clearly so, in determining that  there was no
reasonable possibility counsel could have affect- ed the outcome of
Klat's competency hearing. Accordingly,  we affirm the district


So ordered.




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n 8 Although Klat claims she has a right to another evaluation, that 
decision is committed to the trial court's discretion. See 18 U.S.C. 
s 4247(b) (providing that additional psychiatric or psychological 
examinations may be conducted "if the court finds it appropriate"); 
cf. id. s 4241(b) (same as to initial examination).