United States v. Steven Michael Marks

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10463

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEVEN MICHAEL MARKS,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:17-cr-00257-PGB-LHP-1

____________________

Before JORDAN, LAGOA, and TJOFLAT, Circuit Judges.

JORDAN, Circuit Judge:

Stephen Michael Marks pled guilty to one count of entice-

ment of a minor to engage in sexually explicit conduct for the pur-

pose of producing a visual depiction of such conduct, in violation

of 18 U.S.C. § 2251(a). Prior to the entry of the guilty plea, the

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2 Opinion of the Court 23-10463

district court—following hearings before a magistrate judge—

twice found Mr. Marks competent and ultimately accepted his

guilty plea.

Mr. Marks now appeals his conviction. He argues that the

magistrate judge and the district court erred in placing on him the

burden to prove that he was incompetent. He also contends that

the evidence showed that he was not competent.

We affirm. First, placing the burden on Mr. Marks did not

matter because the evidence on the issue of competency was not

in equipoise. Second, the district court did not clearly err in finding

that Mr. Marks was competent.

I

In 2017, a grand jury indicted Mr. Marks on three counts of

enticement of minors to engage in sexually explicit conduct for the

purpose of producing a visual depiction of such conduct, in viola-

tion of 18 U.S.C. § 2251(a), (e); one count of receipt of child por-

nography, in violation of 18 U.S.C. § 2252A(a)(2), (b)(1); and one

count of possession of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B), (b)(2). The charges stemmed from Mr. Marks tar-

geting young children in online chat rooms for approximately five

months.

A

Following the indictment, Mr. Marks and the government

jointly filed a motion for a psychiatric/psychological examination.

They asserted that Mr. Marks’ “developmental history [and] the

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23-10463 Opinion of the Court 3

severity of his autism defects” evidenced the need for the district

court to undertake a competency determination. See D.E. 73 at 1.

A magistrate judge conducted a two-day competency hear-

ing in April of 2019 pursuant to 18 U.S.C. § 4241. The judge heard

testimony from three expert witnesses—Dr. Randy Otto, a court-

appointed forensic psychologist who interviewed Mr. Marks for

about four hours; Dr. Lynda Geller, a psychologist engaged by the

defense who evaluated Mr. Marks for autism spectrum disorder;

and Dr. Jeffrey Danziger, a forensic psychiatrist who reviewed re-

ports from other doctors and issued his own report following an

interview with Mr. Marks. All of the experts agreed that Mr. Marks

was autistic. Dr. Otto opined that Mr. Marks was competent, while

Dr. Geller and Dr. Danziger opined that he was incompetent. Both

parties then submitted memoranda presenting their arguments and

challenging the other side’s expert witnesses.

The magistrate judge recommended that the district court

find Mr. Marks incompetent to stand trial. Although neither side

addressed who bore the burden on the issue of competency, and

both sides had jointly requested the hearing, the judge placed the

burden of proving incompetency on Mr. Marks. The judge rea-

soned that, because Mr. Marks raised the question of his compe-

tency and consistently argued that he was not competent to pro-

ceed, he bore the burden.

In his evaluation of the medical evidence, the magistrate

judge acknowledged that Mr. Marks had autism. Giving greater

weight to the opinions of Dr. Otto and Dr. Danziger—who were

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4 Opinion of the Court 23-10463

experts in forensic psychology and psychiatry—over the opinion of

Dr. Geller, the judge found that Mr. Marks had difficulty under-

standing the nature of legal proceedings in general, the facts of his

own case, who his attorneys were and how they could help him,

the charges he faced, the difference between probation and a plea

agreement, and why he had previously appeared in court. The

judge also reviewed additional evidence, including a recording and

transcript of Mr. Marks’ interview with Dr. Otto, chat transcripts

between Mr. Marks and the alleged victims, a recording and tran-

script of Mr. Marks’ interview with the police, and reports by other

medical professionals that the expert witnesses had relied upon to

render their opinions. Ultimately, the judge concluded that Mr.

Marks did not possess a rational and factual understanding of the

proceedings against him or the capacity to engage in the reasoning

necessary to decide whether or not to plead guilty, and recom-

mended that the district court find him incompetent.

The government objected to the magistrate judge’s report

and recommendation, and asserted that Mr. Marks had the burden

to establish that he was incompetent. Mr. Marks also objected to

the report and recommendation, but only on the ground that he

believed he should be committed to the custody of the Attorney

General due to his incompetency.

The district court sustained the government’s objections

and found Mr. Marks competent to stand trial. The court agreed

with the magistrate judge that the parties did not contest that the

burden of proof rested with Mr. Marks to prove he was

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23-10463 Opinion of the Court 5

incompetent. The court found, however, that Mr. Marks demon-

strated a lay person’s understanding of the legal system. He could,

moreover, make an informed decision about proceeding to trial,

could consult with his attorneys and review documents and evi-

dence in the case, and could ultimately decide whether to plead

guilty.

B

Following the district court’s ruling, Mr. Marks signed a plea

agreement in which he agreed to plead guilty to one count of en-

ticing a minor to engage in sexually explicit conduct for the pur-

pose of producing a visual depiction of such conduct, in violation

of 18 U.S.C. § 2251(a), as charged in a superseding information filed

in April of 2021. A few weeks later, however—and before entry of

a guilty plea—Mr. Marks moved for another competency hearing.

His attorneys represented to the district court that, after meeting

with him, they believed his responses to their questions showed

that he was in fact incompetent to proceed. The government did

not oppose the motion, and requested that a psychiatric examina-

tion be conducted before the change of plea hearing.

Prior to the second competency hearing, the government

argued that its evidence continued to show that Mr. Marks was

competent. Dr. Ashley Jenkins, a forensic psychologist with the

Bureau of Prisons, had issued a report following an extensive eval-

uation and found that Mr. Marks had a rational and factual under-

standing of the proceedings against him and could assist his

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6 Opinion of the Court 23-10463

attorneys with his defense. The government asserted that Dr. Jen-

kins’ report demonstrated that Mr. Marks was competent.

Mr. Marks responded that he was still incompetent. He

maintained, for example, that he still lacked decisional compe-

tence.

In December of 2021, the magistrate judge held a second

competency hearing over the course of three days. The judge

heard testimony from Dr. Jenkins; Gretchen Bennett, a licensed

speech language pathologist; Dr. Rosa Negrón-Muñoz, a forensic

psychiatrist; and Dr. Angela Baird-Hepworth, the clinical executive

director of a residential program in which Mr. Marks had partici-

pated. Dr. Jenkins maintained her opinion that Mr. Marks was

competent. Ms. Bennett and Dr. Negrón-Muñoz, who testified as

expert witnesses, opined that Mr. Marks was incompetent. Dr.

Baird-Hepworth, who testified as a lay witness, discussed her ob-

servations of Mr. Marks’ abilities while living in the residential pro-

gram.

After the hearing, Mr. Marks filed a memorandum address-

ing the burden of proof issue. He argued that 18 U.S.C. § 4241, the

federal competency statute, was silent as to which party bears the

burden of proof and that, under earlier Eleventh Circuit precedent,

the burden was on the government.

The magistrate judge issued his second report and recom-

mendation in 2022, this time recommending that the district court

find Mr. Marks competent. The judge agreed with the government

that the applicable standard was lower than decisional

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competency. The judge also noted that he had previously placed

the burden of proof on Mr. Marks, a burden which he did not chal-

lenge at the time. Reviewing the new burden-of-proof argument

made by Mr. Marks, the judge explained that he failed to present

legal authority to support his contention, and ruled that the burden

of proof remained on him to prove by a preponderance of the evi-

dence that he was incompetent. Weighing the evidence and cred-

iting Dr. Jenkins, the government’s expert witness, over the de-

fense experts, the judge found that Mr. Marks did not carry his bur-

den of proof, and recommended that the district court find him

competent.

Overruling Mr. Marks’ objections, the district court adopted

the magistrate judge’s second report and recommendation and

found that Mr. Marks was competent. The court rejected Mr.

Marks’ argument that the burden of proof was on the government.

The court also agreed with the magistrate judge on the applicable

competency standard, and found that his credibility determinations

were fair.

In October of 2022, following a change-of-plea hearing be-

fore the magistrate judge, the district court accepted Mr. Marks’

guilty plea to the charge of violating § 2251(a). The court sen-

tenced him to 156 months of imprisonment, to be followed by 10

years of supervised release.

II

Mr. Marks appeals the competency determination of the dis-

trict court. He argues that the court erred by placing the burden of

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8 Opinion of the Court 23-10463

proof on him because (a) the competency statute, 18 U.S.C. § 4241,

is silent as to which party bears the burden; and (b) binding Elev-

enth Circuit precedent under the predecessor statute places the

burden on the government. He also contends that the constitu-

tional competency standard requires a showing of decisional com-

petency and that the district court clearly erred in ultimately find-

ing him competent.

Our review of legal issues, including constitutional ques-

tions and the interpretation of a criminal statute like § 4241, is ple-

nary. See United States v. Butler, 117 F.4th 1309, 1316 (11th Cir.

2024); United States v. Shamsid-Deen, 61 F.4th 935, 944 (11th Cir.

2023). The district court’s competency determination, however, is

a finding of fact that we review for clear error. See United States v.

Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010).

III

A mentally incompetent defendant “may not be subjected to

a trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975). As we have

explained, the trial or guilty plea conviction of a person who is

mentally incompetent is prohibited by the Due Process Clause of

the Fifth and Fourteenth Amendments. See United States v. Rodri-

guez, 751 F.3d 1244, 1252 (11th Cir. 2014); Sheley v. Singletary, 955

F.2d 1434, 1437 (11th Cir. 1992).

A

The constitutional test for competency, as articulated by the

Supreme Court, is “whether [the defendant] has sufficient present

ability to consult with his lawyer with a reasonable degree of

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rational understanding—and whether he has a rational as well as

factual understanding of the proceeding against him.” Dusky v.

United States, 362 U.S. 402, 402 (1960). Accord Drope v. Missouri, 420

U.S. 162, 171 (1975) (“[A] person whose mental condition is such

that he lacks the capacity to understand the nature and object of

the proceeding against him, to consult with counsel, and to assist

in preparing his defense may not be subjected to a trial.”). Simi-

larly,18 U.S.C. § 4241(d) provides that a defendant is incompetent

if a preponderance of the evidence shows that a mental disease or

defect makes him “unable to understand the nature and conse-

quences of the proceeding against him or to assist properly in his

defense.”

Mr. Marks argues, as he did below, that the Dusky standard

for incompetency encompasses “decisional competency” such that

the defendant must be able to “rationally and competently make

trial decisions.” Appellant’s Br. at 23. See generally Rashmi Goel,

Not Demented Enough: Dementia and Competency to Stand Trial, 25

Nev. L. J. 203, 227 (2025) (“Decisional competency involves the de-

fendant's capacity to make important decisions, such as whether to

accept a plea deal, to testify, or to plead guilty.”). Based on binding

precedent, we reject Mr. Marks’ formulation of the constitutional

competency standard.

In Godinez v. Moran, 509 U.S. 389, 399 (1993), the Supreme

Court adhered to the Dusky standard and held that the competency

required to plead guilty or waive counsel is the same as that re-

quired to stand trial. In reaching that conclusion, the Court

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10 Opinion of the Court 23-10463

discussed the Ninth Circuit’s competency standard for defendants

who are pleading guilty—that the defendant have “the capacity for

‘reasoned choice’ among the alternatives available to him.” Id.

at 394. The Court remarked that “[h]ow th[at] standard is different

from (much less higher than) the Dusky standard—whether the de-

fendant has a “rational understanding” of the proceeding—is not

readily apparent to us.” Id. at 397.

After Godinez, the Court again reiterated that Dusky and

Drope set out the constitutional standard for competency. See Indi-

ana v. Edwards, 554 U.S. 164, 174 (2008) (“[T]he Court’s ‘mental

competency cases set forth a standard that focuses directly upon a

defendant’s ‘present ability to consult with his lawyer,’ a ‘capac-

ity . . . to consult with counsel,’ and an ability ‘to assist [counsel] in

preparing his defense[.]’”) (quoting Dusky and Drope). And we have

explained that “the test for competency is not whether [the defend-

ant] always acted in his own best interests; rather it is whether he

had sufficient present ability to consult with his lawyer with a rea-

sonable degree of rational understanding.” Raheem v. GDCP War-

den, 995 F.3d 895, 931 (11th Cir. 2021) (describing the competency

inquiry as “narrow”) (internal quotation marks and citation omit-

ted).

Based on these authorities, the district court correctly ap-

plied the Dusky test as it has long been understood. See generally 2

David S. Rudstein et al., Criminal Constitutional Law § 11.03[2]

(2023) (“[A]n accused must have the capacity to assist in preparing

his or her defense. This does not mean, however, that the accused

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must fully comprehend the intricacies of the legal questions and

theories involved in the case, or that he or she be able to suggest a

particular trial strategy, or choose among alternative trial de-

fenses.”) (footnotes omitted). We reject Mr. Marks’ contrary argu-

ment. 1

B

The next question, as framed by Mr. Marks, is which party

bears the burden of proof with respect to competency under 18

U.S.C. § 4241. For reasons we will explain, we need not provide a

definitive answer today.

1

The federal competency statute states in relevant part as fol-

lows:

At any time after the commencement of a prosecu-

tion for an offense and prior to the sentencing of the

defendant . . . the defendant or the attorney for the

1 We recognize that, in a different scenario, the Supreme Court has articulated

a competency standard that approximates decisional competency. See Rees v.

Payton, 384 U.S. 312, 314 (1966) (remanding for the district court to determine

whether the petitioner in a capital habeas corpus case was competent to with-

draw his certiorari petition, and framing the issue as “whether he has capacity

to appreciate his position and make a rational choice with respect to continu-

ing or abandoning further litigation or on the other hand whether he is suffer-

ing from a mental disease, disorder, or defect which may substantially affect

his capacity in the premises”). Mr. Marks’ case, however, is governed by Dusky

and Drope rather than by Rees. See Ford v. Haley, 195 F.3d 603, 617 (11th Cir.

1999) (explaining that Rees “established the test for determining competency

to waive post-conviction review in a capital case”).

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12 Opinion of the Court 23-10463

Government may file a motion for a hearing to deter-

mine the mental competency of the defendant. The

court shall grant the motion, or shall order such a

hearing on its own motion, if there is reasonable

cause to believe that the defendant may presently be

suffering from a mental disease or defect rendering

him mentally incompetent to the extent that he is un-

able to understand the nature and consequences of

the proceeding against him or to assist properly in his

defense.

§ 4241(a). The statute is silent on the burden of proof, but one sub-

section provides that the standard of proof is preponderance of the

evidence:

If, after the hearing, the court finds by a preponder-

ance of the evidence that the defendant is presently

suffering from a mental disease or defect rendering

him mentally incompetent to the extent that he is un-

able to understand the nature and consequences of

the proceeding against him or to assist properly in his

defense, the court shall commit the defendant to the

custody of the Attorney General.

§ 4241(d).

Mr. Marks contends that our circuit precedent, particularly

United States v. Makris, 535 F.2d 899 (5th Cir. 1976), places the bur-

den of proof as to competency on the government. See Appellant’s

Br. at 14–16. The government, relying on the preponderance-of-

the-evidence language in § 4241(d) and our decision in United States

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23-10463 Opinion of the Court 13

v. Izquierdo, 448 F.3d 1269, 1276–77 (11th Cir. 2006), responds that

the burden is on the defendant to prove that he is incompetent.

In Makris, which involved a federal prosecution for perjury,

we interpreted and applied the former competency statute, 18

U.S.C. § 4244. Although that statute was (like § 4241(a) today) si-

lent on the burden of proof, we held that “[t]here can be no ques-

tion that in federal criminal cases the government has the burden

of proving the defendant competent to stand trial at the [§] 4244

hearing or its nunc pro tunc substitute.” 535 F.2d at 906. We also

rejected a beyond-a-reasonable-doubt standard of proof, and opted

for preponderance of the evidence. See id.

Much like § 4241(a) today, at the time of Makris the former

§ 4244 was silent on the burden of proof:

Whenever after arrest and prior to the imposition of

sentence or prior to the expiration of any period of

probation the United States Attorney has reasonable

cause to believe that a person charged with an offense

against the United States may be presently insane or

otherwise so mentally incompetent as to be unable to

understand the proceeding against him or properly to

assist in his own defense, he shall file a motion for a

judicial determination of such mental competency of

the accused, setting forth the ground for such belief

with the trial court in which proceeding are pending.

63 Stat. 686 (1949) (amended 1984). See also United States v. Edwards,

488 F.2d 1154, 1159 n.3 (5th Cir. 1974) (quoting the former § 4244).

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14 Opinion of the Court 23-10463

In 1984, Congress amended the competency statute through

the Insanity Defense Reform Act and recodified it as 18 U.S.C.

§ 4241. As noted, the current version of § 4241 allows either party

to move for a competency determination once prosecution has

commenced and specifies that the standard of proof is preponder-

ance of the evidence. See § 4241(a), (d).

In Medina v. California, 505 U.S. 437, 452 (1992), the Supreme

Court held that a California statute which established a presump-

tion of competency, and placed the burden of proving incompe-

tency on the defendant by a preponderance of the evidence, did not

violate due process. In the course of its opinion, the Court stated

that “there is no settled tradition on the proper allocation of the

burden of proof in a proceeding to determine competence,” and

noted that “there remains no settled view of where the burden of

proof should lie.” Id. at 446–47. 2

Four years later, in Cooper v. Oklahoma, 517 U.S. 348, 355–56

(1996), the Supreme Court struck down on due process grounds an

Oklahoma law which required a defendant to prove incompetency

2 In a 1995 habeas corpus case where the petitioner challenged the state court’s

competency determination, we stated that “a petitioner raising a substantive

claim of incompetency is entitled to no presumption of incompetency and

must demonstrate his or her incompetency by a preponderance of the evi-

dence.” Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995). Medina relied

on and quoted James v. Singletary, 957 F.2d 1562, 1571 (11th Cir. 1992), for this

proposition, but James—another habeas corpus case—did not cite any author-

ity for its one-sentence characterization of the burden of proof. In any event,

Medina and James do not solve the burden of proof issue here because they did

not address § 4241.

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by clear and convincing evidence. The Court said in dicta that, in

enacting § 4241, “Congress has directed that the accused in a fed-

eral prosecution must prove incompetence by a preponderance of

the evidence.” Id. at 362.

In Izquierdo, a 2006 decision, we discussed § 4241(a) and said

that it “arguably contemplates that the burden will lie with the party

making a motion to determine competency.” 448 F.3d at 1276–77

(emphasis added). We also noted that “the Supreme Court has

stated, albeit in dicta, that the burden of establishing incompetence

rests with the defendant.” Id. at 1277 (citing Cooper, 517 U.S. at

362).

The defendant in Izquierdo had filed a motion to withdraw

his guilty plea on the basis of incompetency. We concluded that

Makris “[was] not on point because it involved the government’s pre-

trial motion to determine the competency of the defendant, and

did not involve a defendant’s motion to withdraw a guilty plea based

on incompetency.” Id. at 1277 (emphasis in original). We also ex-

plained that, “[m]ore importantly,” the former § 4244—the statute

at issue in Makris—“was a different statute with different language”

than § 4241 because it “placed more emphasis on the government’s

role in filing an incompetency motion.” Id. at 1277–78. We held

that, under the “particular circumstances of the case,” the “district

court did not err in placing the burden of proof on [the defendant]

as to his own motion to withdraw his guilty plea based on incom-

petency.” Id. Given that the competency determination was made

following the defendant’s motion to withdraw his guilty plea, we

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16 Opinion of the Court 23-10463

said that we “need not resolve where the burden of proof lies in

situations other than the narrow one before [us].” Id. at 1278.

We next returned to the burden of proof issue in United

States v. Bradley, 644 F.3d 1213, 1267–69 (11th Cir. 2011). In that

case, the defendant—who had requested a competency hearing in

the district court—challenged the finding that he was competent.

Although the defendant did not raise a burden of proof issue, and

only asserted a substantive incompetency claim, we cited Izquierdo

and said in dicta that “[w]hile earlier precedent [such as Makris]

tends to the contrary . . . we have since decided that a petitioner

raising a substantive claim of incompetency is entitled to no pre-

sumption of incompetency and must demonstrate his or her in-

competency by a preponderance of the evidence.” Id. at 1268 (in-

ternal citation and quotation marks omitted). We then concluded,

based on our review of the evidence, that the district court had not

clearly erred in finding that the defendant was competent. See id.

at 1269–70.

The circuits which have directly addressed the burden of

proof under § 4241 are divided. The Fourth and Eighth Circuits

have held that the defendant bears the burden of proving his in-

competency. See United States v. Robinson, 404 F.3d 850, 856 (4th

Cir. 2005); United States v. Washington, 968 F.3d 860, 864 (8th Cir.

2020). The Third, Fifth, and Ninth Circuits, on the other hand,

place the burden of proving competency on the government. See

United States v. Velasquez, 885 F.2d 1076, 1089 (3d Cir. 1989); United

States v. Pervis, 937 F.3d 546, 554 (5th Cir. 2019); United States v.

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Hoskie, 950 F.2d 1388, 1392 (9th Cir. 1991). The Seventh Circuit

seems to have conflicting decisions on the issue. Compare United

States v. Morgano, 39 F.3d 1358, 1373 (7th Cir. 1994) (“The starting

point in all this is the notion that a criminal defendant is presumed

to be competent to stand trial and bears the burden of proving oth-

erwise.”), with United States v. Teague, 956 F.2d 1427, 1431 n.10 (7th

Cir. 1992) (“We note that once the issue of the defendant’s mental

competency is raised, the government bears the burden of proving

that the defendant is competent to stand trial.”). The Second and

Sixth Circuits have left open the question. See United States v. Nich-

ols, 56 F.3d 403, 410 (2d Cir. 1995); United States v. Dubrule, 822 F.3d

866, 876 n.3 (6th Cir. 2016).

2

We need not definitively decide whether, as a general mat-

ter, § 4241 places the burden of proof as to competency on the de-

fendant in all cases, or on the government in all cases, or whether

the burden of proof depends on which party requests the compe-

tency hearing. The allocation of the burden of proof is a procedural

rule which “affects the outcome only in a narrow class of cases

where the evidence is in equipoise; that is, where the evidence that

a defendant is competent is just as strong as the evidence that he is

incompetent.” Cooper, 517 U.S. at 355 (internal citation and quota-

tion marks omitted). See also Goldman Sachs Grp., Inc. v. Ark. Tchr.

Ret. Sys., 594 U.S. 113, 127 (2021) (noting that the burden of proof

“will have bite only when the court finds the evidence in equi-

poise—a situation that should rarely arise”); Schaffer ex rel. Schaffer

v. West, 546 U.S. 49, 58 (2005) (“In truth, however, very few cases

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18 Opinion of the Court 23-10463

will be in evidentiary equipoise.”). As we explain below, the evi-

dence here was not in equipoise, and the district court did not

clearly err in finding Mr. Marks competent.

Both the magistrate judge and district court reviewed the

following testimony following the 2021 competency proceeding:

• Dr. Jenkins, a BOP forensic psychologist who served as a

witness for the government, submitted a competency eval-

uation examining Mr. Marks prior to the hearing and testi-

fied to her opinion. Her report integrated information

learned over six sessions that involved about ten hours of

interviews with Mr. Marks; psychological testing; commu-

nications with others who had contact with Mr. Marks, such

as his attorneys, his family, the police, and other expert wit-

nesses; and review of discovery documents and other re-

cordings. She reported that Mr. Marks understood the pro-

ceeding against him and could fully assist counsel, testify at

trial, and make decisions regarding his case. She diagnosed

him with autism spectrum disorder without accompanying

intellectual impairment, suggested that he had “high-func-

tioning autism,” and noted that he had major depressive dis-

order in full remission. She also diagnosed Mr. Marks with

“specific learning disorder with impairment in math and so-

cial anxiety disorder” but did not believe these diagnoses fac-

tored into his competency.

• In her testimony during the competency proceeding, Dr.

Jenkins opined that she did not observe memory

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23-10463 Opinion of the Court 19

impairments, an inability to make decisions or advocate for

himself, any “severe deficits in executive functioning,” a lack

of understanding of the case and severity of the charges he

faced, or a parroting of responses back to her based on her

questioning. She placed his communication at the level of a

young adult, rather than that of a young child. In her view,

he was competent to stand trial or plead guilty, and could

testify at trial with appropriate breaks in questioning.

• Ms. Bennett, a speech and language pathologist who served

as a witness for Mr. Marks, testified to her evaluation of him.

Her evaluation and testimony consisted of an interview of

over four hours with Mr. Marks; insight provided by his fa-

ther; and review of the police interview, communications

with his legal counsel, discovery materials, and reports from

other expert witnesses.

• According to Ms. Bennett, Mr. Marks struggled with under-

standing communications involving unfamiliar vocabulary

terms and higher-level language, recognizing the behaviors

of other people, and processing complex information. She

also noted that the results of her linguistic tests showed that

Mr. Marks had limited language abilities, around the range

of a 9- to 14-year-old child’s, but that he understood the

straightforward questioning he faced during his police inter-

view. She identified his language impairment as a receptive

and expressive language disorder, which was consistent with

his behavior parroting back his understanding of evaluative

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20 Opinion of the Court 23-10463

questions and facts about his case, the charges he faced, and

future consequences. She believed that Mr. Marks’ impair-

ments affected his ability to make decisions and understand

advice from counsel, ultimately impacting his competence.

• Dr. Negrón-Muñoz, a forensic psychiatrist who served as a

witness for Mr. Marks, testified to her diagnoses of autism

with intellectual impairment and other language disorders.

She conducted over three recorded clinical interviews with

him and reviewed discovery materials and his interviews

with counsel, the police, and other expert witnesses.

• For her evaluation, Dr. Negrón-Muñoz focused on Mr.

Marks’ competency at the time he signed the plea agree-

ment, though she had previously met with him and inte-

grated her thoughts from those interactions into her testi-

mony because his historical condition was still relevant to

her opinion. She opined that his autism, although not se-

vere, compromised his ability to engage in daily living activ-

ities such that he would need daily support and she empha-

sized that he did not have decisional competency. She also

concluded that Mr. Marks’ social, coping, play, and leisure

skills were that of a 3- to 9-year-old, and she interviewed him

as if she were interviewing a 9-year-old child. She further

discussed issues she perceived in Dr. Jenkins’ methodology

and testimony.

• Dr. Baird-Hepworth, a psychologist and the clinical execu-

tive director of a residential program in which Mr. Marks

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23-10463 Opinion of the Court 21

had resided, served as a defense lay witness. She testified to

her observations of him at the facility.

• While Mr. Marks was in-residence for over four years, Dr.

Baird-Hepworth saw him during therapy sessions, and re-

ceived staff reports on a regular basis about his behavior.

She testified to his inability to conduct daily tasks without a

routine or prompting from residential staff, make decisions

for himself, comfortably interact with others in a group set-

ting, and express his feelings.

In their evaluation of Mr. Marks’ competency in 2021, the

magistrate judge and the district court also considered the expert

testimony and evidence previously presented in the 2019 compe-

tency proceeding. See D.E. 302 at 12 n.11.

• Dr. Otto, a forensic psychologist who was appointed by the

court, served as an expert witness for the government. He

based his testimony on an approximately four-hour inter-

view and review of discovery materials, a police interview,

and other expert reports. He opined that Mr. Marks was

conversant and able to communicate, recalled his arrest and

interactions with law enforcement in some detail, could un-

derstand his attorneys and the court, thought logically,

could make legal decisions with his attorneys’ advice and in-

put, could assist his attorneys and testify at trial, and under-

stood the charges he faced and that he could go to prison.

These abilities weighed in favor of finding him competent.

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22 Opinion of the Court 23-10463

• Based on his evaluation, Dr. Otto diagnosed Mr. Marks with

autism with difficulty processing language but without ac-

companying intellectual impairments, as well as anxiety,

and ultimately believed he was “functioning in some reason-

able ways despite his autism.” He did not believe Mr. Marks

had post-traumatic stress disorder (PTSD), and concluded

that, despite his autism, diminished understanding of the le-

gal process, struggle at times with rational understanding

given his language processing impairment, and ability to

make long-term decisions, Mr. Marks was competent to

stand trial.

• Dr. Geller, a psychologist specializing in developmental dis-

abilities, served as a witness for Mr. Marks. She based her

testimony on three interviews conducted over the course of

five hours and her review of discovery materials and reports

from other expert witnesses and psychological evaluators

who met with him. She diagnosed Mr. Marks with autism

and PTSD, characterized his interpersonal social skills as

that of a 3-year-old, and believed he would have difficulty

testifying on the stand because of how he processed infor-

mation and needed it to be presented in a simple way that a

child would understand.

• Dr. Geller opined that Mr. Marks had difficulty with his

working memory, which he would need to use in deciding

whether or not to accept a plea because it involves consider-

ing the future consequences of the decision. She concluded

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23-10463 Opinion of the Court 23

that he parroted facts back in response to Dr. Otto’s ques-

tions. In her view, his counsel would be making the

guilty/not guilty decision for him because he would not be

capable of deciding on a plea for himself. She also did not

believe he was capable of assisting counsel as a witness. Ul-

timately, she opined that Mr. Marks was incompetent.

• Dr. Danziger, a forensic psychiatrist, served as a witness for

Mr. Marks. He based his testimony on reports he received

from other expert witnesses and evaluators, discovery mate-

rials, and discussions he had with people who met with him

over 14 months. He also had a conversation with Mr. Marks

for a few hours.

• Like Dr. Otto, Dr. Danziger concluded that Mr. Marks had

autism spectrum disorder with language impairment. He

did not believe, however, that Mr. Marks possessed a factual

understanding of the charges against him or a rational un-

derstanding of the proceeding, or was able to assist his attor-

neys, or could appreciate the harm of his conduct. He con-

cluded that Mr. Marks was not competent to stand trial.

Following Mr. Marks’ second competency proceeding in

2021, both the magistrate judge and the district court found that

Mr. Marks was competent to stand trial. The magistrate judge clar-

ified that even though he previously found Mr. Marks incompetent

to stand trial after the 2019 proceeding, “the sine qua non of the [sec-

ond] competency proceeding [was Mr.] Marks’ argument that the

evidence presented in 2019 and conclusions derived therefrom

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24 Opinion of the Court 23-10463

were purely speculative and forward thinking, and it is only now,

after attempts to educate [him], that there is sufficient evidence to

determine competency.” D.E. 302 at 107 n.59.

Both the 2019 and 2021 proceedings involved voluminous

lay and expert testimony as to Mr. Marks’ competence—multiple

forensic professionals, doctors, psychologists, and individuals with

an understanding of Mr. Marks’ autism testified. The government

presented Dr. Jenkins and Dr. Otto as expert witnesses—a forensic

psychologist and forensic psychiatrist, respectively—who reviewed

extensive materials and conducted interviews with Mr. Marks. Mr.

Marks presented Ms. Bennett, Dr. Negrón-Muñoz, Dr. Geller, and

Dr. Danziger as his expert witnesses—a speech language

pathologist, forensic psychiatrist, psychologist, and forensic psychi-

atrist, respectively—who also reviewed extensive materials and

conducted interviews with Mr. Marks. He also presented Dr.

Baird-Hepworth as a lay witness who testified to her observations

of him in his residential facility.

A finding of fact is “clearly erroneous only when [we] are left

with a definite and firm conviction that a mistake has been com-

mitted.” United States v. Hogan, 986 F.2d 1364, 1372 (11th Cir. 1992)

(quotation marks omitted). Our review is deferential, and a “find-

ing that is ‘plausible’ in light of the full record—even if another is

equally or more so—must govern.” Cooper v. Harris, 581 U.S. 285,

293 (2017) (citation omitted).

As a general matter, we will not find that the district court

clearly erred when, “[f]aced with diametrically opposite expert

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23-10463 Opinion of the Court 25

testimony, . . . [it] simply credit[ed] one opinion over another

where other record evidence exists to support the conclusion.”

Bradley, 644 F.3d at 1268 (quotation marks and brackets omitted).

That is the situation presented here, and “when a trial [court’s]

finding is based on his decision to credit the testimony of one of

two or more witnesses, each of whom has told a coherent and fa-

cially plausible story that is not contradicted by extrinsic evidence,

that finding, if not internally inconsistent, can virtually never be

clear error.” Anderson v. City of Bessemer City, 470 U.S. 564, 575

(1985).

Although both sides presented multiple expert witnesses

and additional evidence, that does not mean that the evidence was

in equipoise, i.e., that it was equal. See The American Heritage Dic-

tionary of the English Language 603 (4th ed. 2009). The district

court never suggested that the evidence was perfectly balanced

such that it could not choose which side’s evidence to credit. In-

deed, the magistrate judge, who found Mr. Marks incompetent af-

ter the 2019 proceeding, explained that the evidence in the 2021

proceeding “conclusively establishes that [Mr.] Marks is presently

competent pursuant to Dusky.” D.E. 302 at 107 n.59. See Ionmar

Compania Naviera, S.A. v. Olin Corp., 666 F.2d 897, 903–04 (5th Cir.

1982) (evidence as to the origin of a fire was “not in equipoise” once

the district court drew a compelling inference by giving “full cre-

dence to the opinions of admitted qualified experts” and the testi-

mony of other witnesses).

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26 Opinion of the Court 23-10463

Mr. Marks essentially asks us to step into the shoes of the

district court and reconsider its credibility and weight determina-

tions as the expert and lay witnesses. For example, Mr. Marks asks

us to give less weight to the testimony of Dr. Jenkins because of

things she did not do in reaching her conclusions. But this reweigh-

ing is not something we are permitted to do under clear error re-

view. In any event, the district court determined that Mr. Marks’

objection to the magistrate judge’s reliance on Dr. Jenkins’ opinion

had “taken [her] testimony out of context and oversimplifie[d] her

opinion regarding [his] mental competence.” D.E. 316 at 37.

Given the extensive record testimony considered by the dis-

trict court, we believe that placing the burden of proof on Mr.

Marks did not matter. The evidence was not in equipoise, and the

district court did not clearly err in finding that Mr. Marks was com-

petent. As a result, we need not decide which party bears the bur-

den of proof under 18 U.S.C. § 4241.

IV

Mr. Marks’ conviction is affirmed.

AFFIRMED.

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23-10463 TJOFLAT, J., Concurring 1

TJOFLAT, Circuit Judge, concurring:

I write separately because I believe the circuit split is mis-

guided. The majority correctly decides that the evidence here is not

in equipoise, therefore assigning the burden of proof is inapposite.

However, I further contend that assigning the burden should never

impact the outcome of a § 4241 competency hearing.

A

First, some terminology. The phrase “burden of proof” is a

conglomerate; it incorporates at least two related but fundamen-

tally distinct concepts. Thayer was an early luminary:

In legal discussion, this phrase, “the burden of proof,”

is used in several ways. It marks (1) the peculiar duty

of him who has the risk of any given proposition on

which parties are at issue—who will lose the case if

he does not make this proposition out, when all has

been said and done. . . . (2) . . . the duty of going for-

ward in argument or in producing evidence; whether

at the beginning of a case or at any layer moment

throughout the trial or the discussion. (3) There is an

undiscriminated use of the phrase, perhaps more

common than either of the two, in which it may

mean either or both of the others.

James Bradley Thayer, A Preliminary Treatise on Evidence 355 (1898).

In drafting its Model Code of Evidence, the American Law

Institute split the term in half, dubbing the first notion “the burden

of persuasion” and the second “the burden of producing evidence.”

§ 5122 Policy Background; Burdens of Proof, Fed. Prac. & Proc.

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2 TJOFLAT, J., Concurring 23-10463

Evid. § 5122 (2d ed.). When necessary to distinguish, courts con-

tinue to use these terms and often shorten the latter phrase to the

“burden of production.” See, e.g., United States v. Shamsid-Deen, 61

F.4th 935, 949 (11th Cir. 2023) (explaining that the defendant had

“the burden of persuasion, as well as the burden of production” for

his affirmative defense).

The burden of persuasion is defined by Black’s Law Diction-

ary as “[a] party’s duty to convince the factfinder to view the facts

in a way that favors that party.” Burden of Persuasion, Black's Law

Dictionary (12th ed. 2024). The burden of persuasion must be met

by the applicable “standard of proof,” which refers to the “degree

or level of proof demanded in a specific case, such as ‘beyond a rea-

sonable doubt’ or ‘by a preponderance of the evidence.’” Standard

of Proof, Black's Law Dictionary (12th ed. 2024). In other words, the

standard of proof establishes the metaphysical evidentiary line that

must be crossed for a judge or jury to establish a fact. And the bur-

den of persuasion is borne by the party who must shepherd the

factfinder across that line. As the majority identifies, § 4241 pro-

vides a standard of proof but is silent on who bears the burden. See

18 U.S.C. § 4241.

The burden of production is more straightforward. It can be

understood as “[a] party’s duty to introduce enough evidence on

an issue to have the issue decided by the factfinder, rather than de-

cided against the party in a peremptory ruling such as a summary

judgment or a directed verdict.” Burden of Production, Black's Law

Dictionary (12th ed. 2024). In sum, there are two duties that can be

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23-10463 TJOFLAT, J., Concurring 3

allocated: (1) the duty of persuasion, which obligates a party to con-

vince the court that the evidence satisfies the applicable standard

of proof; and (2) the duty of production, which obligates a party to

proffer sufficient evidence for a factfinder to reach a determination.

B

Next, we consider when and why a particular allocation of

these burdens may impact a judicial outcome. I suggest that there

are three such cases. The first is where a party bearing the burden

of production fails to present any evidence or presents insufficient

evidence for a determination to be plausibly made in their favor. It

answers the question: if nothing happens, who wins? Because the

burden of production can shift, this may arise at varying points

throughout a proceeding. See, e.g., Texas Dep't of Cmty. Affs. v. Bur-

dine, 450 U.S. 248, 255, 101 S. Ct. 1089, 1094 (1981) (describing the

shifting burden of production in Title VII employment discrimina-

tion cases).

The second is where the evidence is exactly on the cusp of

meeting the standard of proof. If the standard of proof is a prepon-

derance of the evidence, 1 this condition exists when evidence is at

equipoise, or completely balanced. See Goldman Sachs Grp., Inc. v.

Arkansas Tchr. Ret. Sys., 594 U.S. 113, 127, 141 S. Ct. 1951, 1963

1 Our Circuit, along with the Supreme Court, often equates the “preponder-

ance of evidence” standard with the self-descriptive “more likely than not”

standard. See, e.g., Raijmann v. U.S. Atty. Gen., 313 F. App'x 236, 239 (11th Cir.

2009).

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4 TJOFLAT, J., Concurring 23-10463

(2021) (“The defendant’s burden of persuasion will have bite only

when the court finds the evidence in equipoise . . . .”). At this pre-

cise state—uncommon as it may be—the burden of persuasion is

typically dispositive, and the party who bears it will lose.

Lastly, there are certain cases where allocating the burden

of persuasion alters the nature of what must be proved. Consider

securities fraud actions brought under Securities and Exchange

Commission Rule 10b-5(b). Plaintiffs alleging fraud traditionally

had to prove that they relied on the misrepresentation at issue. See

Ernst & Ernst v. Hochfelder, 425 U.S. 185, 206, 96 S. Ct. 1375, 1387

(1976). But in 1988, the Supreme Court established a presumption

of reliance, 2 rebuttable only if defendants “show that the misrepre-

sentation in fact did not lead to a distortion of price.” Goldman Sachs

Grp., Inc, 594 U.S. at 125, 141 S. Ct. at 1962 (quoting Basic Inc., v.

Levinson, 485 U.S. 224, 248, 108 S. Ct. 978, 993 (1988)) (emphasis

added). It is not impossible to demonstrate the absence of some-

thing by a preponderance of the evidence, but “as a practical matter

it is never easy to prove a negative.” Elkins v. United States, 364 U.S.

206, 218, 80 S. Ct. 1437, 1444 (1960). Thus, sometimes assigning

burdens may do more than decide close calls.

2 The Court reasoned that investors rely on the integrity of prices in public

markets and that most publicly available information (including public mis-

representations) is reflected in a security’s market price. Basic Inc. v. Levinson,

485 U.S. 224, 247, 108 S. Ct. 978, 992 (1988).

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23-10463 TJOFLAT, J., Concurring 5

C

Returning to § 4241, I contend assigning burdens will not

impact competency determinations. Regarding the need to gather

sufficient evidence, which is normally achieved by assigning the

burden of production, § 4241 places the ball in the district court.

The psychiatric evaluation is ordered by the court, and pursuant to

§ 4247, the examiner is selected by the court. 18 U.S.C. § 4247(b).

The examiner must then provide a report pursuant to statutory

guidelines. 18 U.S.C. § 4247(c). While the parties may be permitted

to supplement the court-ordered report, it is not necessary for the

competency hearing to proceed.

The majority opinion leaves open the possibility that the

burden of persuasion might matter if the psychological evidence is

at equipoise. I disagree. As a threshold matter, balanced evidence

is rare, and judges are well equipped to make close calls. In such

extraordinary situations, § 4247 allows the court to order multiple

evaluations to get a better picture. 18 U.S.C. § 4247(b). Moreover,

if the judge truly cannot decide, a plain reading of the statute dic-

tates the outcome. Section 4241(d) states that a court can only sus-

pend proceedings (and hospitalize the defendant) if it finds “by a

preponderance of the evidence that the defendant is presently suffering

from a mental disease or defect rendering him mentally incompe-

tent . . . .” 18 U.S.C. § 4241(d) (emphasis added). In other words, the

court must find incompetence by a preponderance of the evidence.

Anything short of that, including where the evidence is at equi-

poise, requires the defendant be adjudged competent.

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6 TJOFLAT, J., Concurring 23-10463

Relatedly, assigning the burden of persuasion would not

change the nature of what must be established. The statute de-

mands that incompetence be established by a preponderance of the

evidence. See Id. If we were to assign a burden—which again, I feel

is unnecessary—we would be bound by the text to either require

the government or the defendant to prove incompetence. It is thus

perplexing that three circuits require the government to prove the

defendant competent. See United States v. Velasquez, 885 F.2d 1076,

1089 (3d Cir. 1989); United States v. Hutson, 821 F.2d 1015, 1018 (5th

Cir. 1987); United States v. Frank, 933 F.2d 1491, 1494 (9th Cir. 1991).

These circuits provide scant reasoning. The Third Circuit’s

decision in Velasquez cites precedent from 1976, which itself was

based on a predecessor statute to § 4241 with entirely different lan-

guage.3 885 F.2d 1076, 1089 (3d Cir. 1989) (citing United States v.

DiGilio, 538 F.2d 972, 988 (3d. Cir 1976)). The Fifth Circuit also

cited to precedent predating § 4241 and failed to grapple with the

updated language. See Hutson, 821 F.2d at 1018 (asserting the gov-

ernment bears the burden and citing a 1981 case predating § 4241).

3 That provision, § 4244, did not include language specifying whether compe-

tence or incompetence had to be established by a preponderance of the evi-

dence. Act of Sep. 7, 1949, Ch. 525, 63 Stat. 686, 686–687 (1949). Section 4241

was added with the Insanity Defense Reform Act of 1984, at which point §

4244 was amended to only apply in the post-conviction, pre-sentence posture.

Pub. L. No. 98–473, § 403(a), 98 Stat. 1837, 2057–2062 (1984). This Act was

passed in the wake of would-be Reagan assassin John Hinkley’s acquittal by

reason of insanity. United States v. Cameron, 907 F.2d 1051, 1061 (11th Cir.

1990). See also, S. Rep. 98-225, 222, 1984 U.S.C.C.A.N. 3182, 3404.

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23-10463 TJOFLAT, J., Concurring 7

And the Ninth Circuit, without conducting any analysis of its own,

cited to the Fifth Circuit. Frank, 933 F.3d at 1494 (citing to Hutson,

824 F.2d at 1018).

D

In § 4241, Congress spoke in terms of what must be shown,

rather than who must show it. I do not think this was an accident.

The Constitution and § 4241 prohibit a district court from trying

an incompetent person. Dusky v. United States, 362 U.S. 402, 402

(1960); 18 U.S.C. § 4241(d). To the extent there is a ‘burden,’ then,

it falls on the district judge to make the appropriate pretrial deter-

mination. As to the parties, competency hearings are not designed

to be adversarial per se. Section 4241 allows either the defendant or

the government to move for a competency hearing. 18 U.S.C.

§ 4241(a). And either party may argue either position.4

The mandatory elements of § 4241 are directed at the court,

and they are stated plainly. If there is cause to believe the defendant

may be incompetent, the court must grant a party’s motion for a

hearing to determine competency. 18 U.S.C. § 4241(a). If no such

motion exists, the court must order the hearing sua sponte. Id. See

4 Of course, it is common for the defendant to argue he is incompetent and

the government to argue the opposite. But an incompetency finding is not a

get-out-of-jail-free card. It merely suspends proceedings and hospitalizes the

defendant until he is deemed competent to proceed. 18 U.S.C. 4241(d). If the

defendant does not improve, he may remain institutionalized, subject to vari-

ous other provisions of the Code. See, e.g., 18 U.S.C. § 4246. It would not be

unreasonable for a prosecutor to argue incompetence or for a defendant to

argue competence.

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8 TJOFLAT, J., Concurring 23-10463

also, United States v. Wingo, 789 F.3d 1226, 1236 (11th Cir. 2015)

(“The plain language of Section 4241(a) . . . is unambiguous about

the court’s obligation to sua sponte hold a hearing if it has reasona-

ble cause to believe the defendant may be incompetent; the court

must conduct a hearing under those circumstances”) (internal quo-

tation marks omitted). Next, it must order a psychiatric evaluation

by one or more licensed providers, as necessary. 18 U.S.C.

§ 4241(b); 18 U.S.C. § 4247(b). Finally, at the hearing, the court

must decide whether, by a preponderance of the evidence, the de-

fendant is incompetent. 18 U.S.C. § 4241(d). If the court cannot so

find, the defendant must be found competent. See id. While parties

are free to persuade the court one way or the other, allocating bur-

dens should never impact a district court’s determination.5 For all

of these reasons, I believe the statute speaks for itself and adding

burdens would only complicate the matter.

5 I concede there is one bizarre scenario where a burden could impact the out-

come. If one party (say, the government) is assigned the burden to prove in-

competence but prefers to argue the defendant is competent, the judge might

have sufficient evidence to declare the defendant incompetent even though

the burden-bearing party failed to carry out its burden. What should the court

do then? This paradox further demonstrates why burdens do not belong in

competency hearings.