United States v. Sterling

Case: 23-30069 Document: 103-1 Page: 1 Date Filed: 04/25/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

April 25, 2024

No. 23-30069

____________ Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Elliott Sterling,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:20-CR-52-1

______________________________

Before Higginbotham, Smith, and Higginson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

In this criminal case, appellant Elliott Sterling raises several Sixth

Amendment claims in support of his bid to overturn his conviction and

sentence following a jury trial in which he appeared pro se. As a review of the

record indicates that the district court was conscientious in its inquiries

throughout the proceedings, we find no merit to Sterling’s procedural or

substantive challenges and, accordingly, AFFIRM.

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No. 23-30069

I.

A.

For over two years, from approximately September 2017 through

November 2019, Elliott Sterling engaged in a complex scheme that took

advantage of the Department of Education’s Federal Student Aid (FSA)

Program, which financially assisted qualified students in obtaining a college

education, to fraudulently obtain loan and grant funds intended for students.

The first step for obtaining FSA funds was to complete a Free Application

for Federal Student Aid (FAFSA) and provide information to ensure that the

applicant would meet eligibility requirements—including, among others,

that they had a high school diploma or equivalent, were enrolled in a DOE-

approved institution, and were in financial need.

Sterling committed extensive fraud in connection with the numerous

FAFSA applications he submitted on behalf of students, both real and

fictional: He not only concealed his identity as a paid preparer on the forms,

but also falsely represented the eligibility, qualifications, and academic

history of students who were applying for admission to Baton Rouge

Community College (including forging high school diplomas), and paid

people to impersonate students to the Baton Rouge Community College

financial aid office. All told, the Department of Education disbursed

$2,760,422 in loans and grants for a total of 262 students due to Sterling’s

unlawful scheme. Some of those students were unable to obtain credit as a

result of the fraudulent student loan that Sterling obtained in their names;

nearly all 262 students’ credit scores were adversely affected due to the

outstanding amounts on the fraudulent loans in their names.

Sterling also committed fraud in connection with Sterling Educational

Consulting (SEC), the educational consulting business that he established

and incorporated. In 2020, he submitted an application to the Small Business

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Administration’s Economic Injury Disaster Loan Program, in which he

falsely represented SEC’s finances and concealed a prior felony conviction.

The Small Business Administration approved Sterling for a $90,000 loan, a

portion of which Sterling used for unauthorized purposes.

For the activities described above, Sterling was ultimately indicted for

seven counts of wire fraud in violation of 18 U.S.C. § 1343; two counts of

financial aid fraud in violation of 20 U.S.C. § 1097; and six counts of engaging

in monetary transactions involving property derived from specified unlawful

activity in violation of 18 U.S.C. § 1957. The court appointed Brent M.

Stockstill to represent Sterling under the Criminal Justice Act (CJA). Less

than two months later, Sterling wrote a letter to the court listing his

grievances with Stockstill, , which the district court construed as a motion to

appoint new counsel.1 After a hearing, the court denied that request, and

Sterling elected to proceed pro se. Following two hearings on the issue, the

district court found that Sterling competently waived his right to counsel and

allowed him to proceed pro se in his own defense—including at a later

competency hearing and at trial. After a 9-day jury trial, Sterling was

convicted on all counts. The district court denied Sterling’s post-trial

counsel’s motion for a competency evaluation, and sentenced Sterling to 132

months of imprisonment, followed by a 3-year term of supervised release.

Sterling timely appealed, presenting five issues on appeal: (1) the

district court’s denial of his motion for substitute counsel, (2) the district

court’s determination that he validly waived counsel, (3) the district court’s

permitting him to proceed pro se at his own competency hearing, (4) the

_____________________

1

Although Sterling’s motion for new counsel was decided by a magistrate judge,

none of Sterling’s claims turns on the distinction between the magistrate and district court

judge. For ease, therefore, this opinion will refer to the magistrate judge’s actions as actions

of the district court.

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district court’s determination that he was competent to proceed pro se at trial,

and (5) the district court’s denial of his request for a presentencing

competency hearing. Each is addressed in turn.

II.

A.

Sterling first appeals from the district court’s denial of his motion for

substitute counsel, arguing that the refusal to appoint another CJA lawyer to

replace Stockstill was a violation of Sterling’s Sixth Amendment rights.

i.

Claims of violations of the Sixth Amendment are reviewed de novo.

United States v. Simpson, 645 F.3d 300, 307 (5th Cir. 2011). In the absence of

a finding of a Sixth Amendment violation, however, “the trial court’s refusal

to appoint substitute counsel is reviewed for an abuse of discretion.” Id.

(citing United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973)).

“Although an indigent criminal defendant has a right to be

represented by counsel, he does not have a right to be represented by a

particular lawyer, or to demand a different appointed lawyer except for good

cause.” Young, 482 F.2d at 995 (citation omitted). In this context, a

defendant can establish good cause for substituting his lawyer by showing

“there is a substantial . . . problem affecting the [lawyer’s] ability to

represent the defendant,” United States v. Mitchell, 709 F.3d 436, 441 (5th

Cir. 2013), such as “a conflict of interest, a complete breakdown in

communication or an irreconcilable conflict which leads to an apparently

unjust verdict,” Young, 482 F.2d at 995 (citation omitted). In addition, “[i]f

a court refuses to inquire into a seemingly substantial complaint about

counsel when he has no reason to suspect the bona fides of the defendant, or

if on discovering justifiable dissatisfaction a court refuses to replace the

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attorney, the defendant may then properly claim denial of his Sixth

Amendment right.” Id. (citation omitted).

ii.

Sterling makes three main arguments as to why the district court

erred. First, he claims the district court’s inquiry into Sterling’s

dissatisfaction with Stockstill was inadequate, improperly focusing more on

qualifications and ability as an attorney, rather than Sterling’s concerns about

communication and the quality of the attorney-client relationship. Second,

Stockstill’s Facebook friendship with John McLindon, the “attorney who

represented the officers who killed . . . [Sterling’s] cousin, [Alton],”

allegedly posed an irreconcilable conflict. According to Sterling, it also

furthered Sterling’s concern that he was being selectively prosecuted for

“publicly speaking out against the Department of Justice for its handling of

[Alton’s] case.” Third, the request for substitute counsel was made well

before trial, so denial of the timely request was reversible error.

As to the first, the record reveals that the district court conducted

extensive questioning over the course of a 47-minute hearing to explore

Sterling’s concerns. These included the three grievances raised in Sterling’s

letter to the court: the difficulty of communication between Stockstill and

him; his frustrations about discovery; and the conflict regarding Stockstill’s

relationship with McLindon. As to discovery, the court inquired into the

potential reasons for delay in discovery, whether discovery that had been

received was made available to Sterling, and even into administrative details

such as Sterling’s preference for having paper copies of the discovery,

ultimately concluding there were no issues. As to communication, the court

inquired into the frequency of communication between Sterling and

Stockstill, confirming that they still spoke and that Stockstill planned to

communicate more after he had the chance to review the discovery. And as

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to the alleged conflict of interest, the court asked Stockstill about his

relationship with McLindon, and probed deeper into the nature of Sterling’s

concern, finding that Stockstill had no meaningful relationship with

McLindon—and, above all, that “there [was] no actual conflict of interest.”

Throughout, the court was conscientious in evaluating Sterling’s concerns to

its satisfaction, which was reflected in the comprehensive detail included in

the written order denying the motion. We are satisfied that this inquiry

allowed the court “to assess if there [wa]s a problem that could affect the

lawyer’s ability to represent the defendant.” United States v. Quinn, 826 F.

App’x 337, 341 (5th Cir. 2020).

As to the second—Sterling’s allegation of irreconcilable conflict—we

also find no error. The court concluded that Stockstill’s relationship with

McLindon was practically nonexistent and “would have no bearing on Mr.

Stockstill’s representation in [Sterling’s] case.”2 Sterling nonetheless argues

that his mistrust of and conflict with Stockstill was so deep that Sterling was

presented with an unconstitutional “Sophie’s Choice” and, under those

circumstances, effectively driven to pro se representation. But as is evident

even in the authorities that Sterling invokes, more is required than the dislike

or distrust of which Sterling complains to constitute an irreconcilable

conflict. His client-attorney relationship with Stockstill was not “a stormy

one with quarrels, bad language, threats, and counter-threats,” United States v.

Williams, 594 F.2d 1258, 1260 (9th Cir. 1979),3 nor was Stockstill a lawyer

_____________________

2

As McLindon was a member of the CJA panel, that professional association would

be shared by any replacement CJA counsel the court could appoint for Sterling.

3

Sterling also alleged that Stockstill stated he “wasn’t hired to win” the case

(which Sterling interpreted as Stockstill’s statement that he would not try to win the case),

but this is a representation that Stockstill refuted (Stockstill explained that he stated that

he could not guarantee winning the case in light of its complexity and the government’s

evidence).

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“with whom [Sterling] would not cooperate, and with whom [Sterling]

would not, in any manner whatsoever, communicate,” Brown v. Craven, 424

F.2d 1166, 1169 (9th Cir. 1970); see also United States v. Mullen, 32 F.3d 891,

897 (4th Cir. 1994) (finding irreconcilable conflict where defendant did not

speak to attorney in the entire month before trial—including the day

before—and where the lawyer’s “own description of his preparation

tend[ed] to show that the lack of communication hampered his ability to put

together an adequate defense”). Of course, a defendant need not always

show a near total lack of communication with his lawyer to prove

irreconcilable conflict, and the district court would have been within its

discretion to permit Sterling to substitute counsel. But the district court was

not required to do so, even if there was ample time for counsel to be

substituted.4 As a result, there was no Sixth Amendment violation in the

district court’s denial of Sterling’s motion for substitute counsel.

B.

Sterling next challenges the district court’s finding that Sterling

voluntarily, knowingly, and intelligently waived counsel when he insisted on

proceeding pro se.

i.

On January 26, 2021, nearly three months after Sterling’s request for

new counsel was denied, Stockstill filed a motion for Sterling to proceed pro

_____________________

4

Sterling’s third argument—that the request for substitute counsel was made well

before trial, so denial of the timely request was reversible error—is also unavailing.

Although there are cases where courts deny motions to substitute counsel because they

would impact the case schedule, Sterling cites no authority to establish the converse—that

the absence of an impact on the schedule operates as an independent legal basis for

compelling substitution. Indeed, the “good cause” showing required of defendants would

suggest there is no automatic right to substitute counsel upon a timely request for such.

Young, 482 F.2d at 995.

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se. The court scheduled two hearings for the matter. In the first hearing on

February 24, 2021, the court inquired after Sterling’s dissatisfactions with

Stockstill, and warned Sterling of the dangers of self-representation. After

that first hearing concluded, the court set a second hearing on Sterling’s

motion to proceed pro se and appointed another attorney, Harry L. Daniels,

III, to serve as co-counsel with Stockstill. Nonetheless, during the second

hearing on March 16, 2021, Sterling expressed that he wanted to represent

himself, and the court, finding him competent to make the decision,

ultimately granted the motion. A third lawyer, Gideon T. Carter, was

thereafter appointed as Sterling’s stand-by counsel.

ii.

The Sixth Amendment guarantees defendants the right to counsel “at

all critical stages of the criminal process.” United States v. Mesquiti, 854 F.3d

267, 271 (5th Cir. 2017) (quoting Iowa v. Tovar, 541 U.S. 77, 80–81 (2004)).

As we have noted, the right to counsel “is not limitless”: “A defendant is

entitled to counsel capable of rendering competent, meaningful assistance,”

but “[n]o defendant has a right to more.” United States v. Capistrano, 74

F.4th 756, 774–75 (5th Cir.) (cleaned up) (quoting McQueen v. Blackburn, 755

F.2d 1174, 1178 (5th Cir. 1985)), cert. denied, 144 S. Ct. 516 (2023), reh’g

denied, 144 S. Ct. 882 (2024), and cert. denied sub nom. Thomas v. United

States, 144 S. Ct. 517 (2023). Moreover, right to counsel can be waived, as

“[a] criminal defendant [also] has a Sixth Amendment right to conduct his

own defense, even if he does so to his detriment, if his decision to do so is

voluntary, knowing, and intelligent.” United States v. Romans, 823 F.3d 299,

313 (5th Cir. 2016) (citing Faretta v. California, 422 U.S. 806, 833–34, 835–

36 (1975)).

“Sixth Amendment challenges to the validity of a waiver of counsel

are reviewed de novo.” Capistrano, 74 F.4th at 774 (quoting Mesquiti, 854 F.3d

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at 271). “Where a fundamental constitutional right, such as the right to

counsel, is concerned, courts indulge every reasonable presumption against

waiver.” Id. (quoting Mesquiti, 854 F.3d at 272). In the absence of “a clear

election to forgo counsel, a court should not quickly infer that a defendant

unskilled in the law has waived counsel and has opted to conduct his own

defense.” Id. (internal quotation marks omitted) (quoting Burton v. Collins,

937 F.2d 131, 133 (5th Cir. 1991)).

For a proper waiver, “[t]he defendant must ‘unequivocally inform the

court of his desire to represent himself,’ and the court must determine,

through a Faretta hearing, whether the defendant is ‘knowingly and

intelligently’ choosing to represent himself.” Romans, 823 F.3d at 313

(quoting United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008)). This

determination can come in the form of either “clear conduct” or an “express

statement” by the defendant. Mesquiti, 854 F.3d at 272. Moreover, in light of

the limits on the right, a defendant’s “refusal without good cause to proceed

with able appointed counsel” may also “constitute[] a voluntary waiver of

the right to counsel,” so long as that refusal “take[s] the form of a persistent,

unreasonable demand for dismissal of counsel.” Capistrano, 74 F.4th at 774

(internal quotation marks and citations omitted).

Sterling argues his constitutional right to counsel was violated when

the court accepted his waiver, which was made neither clearly and

unequivocally, nor voluntarily, knowingly, or intelligently.

iii.

We first consider whether Sterling’s waiver was clear and

unequivocal, a requirement we have “strictly construed.” Burton, 937 F.2d

at 133. Sterling argues that it was obvious that his main objective during the

Faretta hearings was to obtain different counsel, rather than to represent

himself. In particular, he argues that in the context of his repeated requests

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for new counsel, his “inquiries about his assets so that he could hire an

attorney” serve as a “simple qualifying statement” sufficient “to create a

vitiating ambiguity.”

Although Sterling argues that any of his “initial requests to represent

himself . . . were subsequently waived by his continued assertions to the

district court that he wanted counsel,” the record does not bear this out. On

the contrary, Sterling’s actions reflect a commitment to pro se representation.

Sterling took the affirmative step of having his lawyer actually file a motion

for him to proceed pro se. He also continued to insist on pro se

representation—commenting that he himself would do the best job—and did

so across not one but two Faretta hearings, nearly a month apart, during which

the court emphasized both the seriousness of the crimes with which Sterling

was charged and the difficulty of defending the case, and repeatedly checked

if Sterling was sure of his decision. Unlike disgruntled comments made in the

middle of trial that could reasonably be interpreted as indicating

“dissatisfaction with his attorney and nothing more,” there is not “more

than one reasonable interpretation” of the totality of Sterling’s actions.

Burton, 937 F.2d at 134. Indeed, Sterling’s clear conduct and express

statements are distinct from the types of requests that this court has found

not to be clear and unequivocal: Sterling’s words and actions cannot be

construed as “verbal protests meant to express [the defendant’s]

disagreement with his detention and the whole notion of a trial on his guilt or

innocence rather than an assertion of the right to self-representation,” United

States v. Ibarra, 236 F. App’x 10, 14 (5th Cir. 2007) (per curiam), nor “a

request to fire his appointed attorney, but not a clear and unequivocal request

to represent himself,” United States v. Long, 597 F.3d 720, 725 (5th Cir.

2010).

Our conclusion is not altered by Sterling’s references to his assets,

which he maintains he made to inquire into hiring an attorney. Contrary to

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Sterling’s argument, those references do not equate to qualifying language

that either contradicts Sterling’s request to proceed pro se or otherwise

render it ambiguous. In Johnson v. McCotter, for instance, we found a

defendant’s request ambiguous where contradictory, qualifying language led

to a reasonable assumption that the defendant was actually accepting counsel:

Is it written in the law that I can not represent myself? You see,

I would choose to represent myself, providing I had the proper

equipment. . . .

. . . Please understand, I do not need a lawyer to talk for me, or

to question my witness.

It is said I will have to [bear] with the decision of the court and

a court appointed attorney. If at any time, my attorney appears

not to be representing me properly, I will have him removed

from my case immediately!

803 F.2d 830, 833 (5th Cir. 1986) (per curiam). No similar ambiguity is

present here. That Sterling would prefer a lawyer of his choosing is obvious.

But as the denial of substitute counsel was justified, Sterling’s preference for

another attorney does not negate the fact that, as between a court-appointed

lawyer and proceeding pro se, he clearly and repeatedly made known that his

preference was the latter option.5 This is even more starkly supported by

Sterling’s repudiation of any appointed counsel—evinced through his

insistence on representing himself even after the court had appointed

additional co-counsel (Daniels) to assist him. In light of these explicit and

continued actions, we therefore agree that Sterling’s waiver was clear and

unequivocal.

_____________________

5

Moreover, the instances in which Sterling contests his inability to use funds to

hire an attorney seem more to be protests regarding his inability to access his funds and his

general preference for private over court-appointed attorneys.

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iv.

We next evaluate whether Sterling’s waiver was voluntary, knowing,

and intelligent.

“Because of the vast differences from case to case, and defendant to

defendant, a district court must consider the totality-of-circumstances in

determining whether a defendant has properly waived his right to counsel.”

United States v. Virgil, 444 F.3d 447, 453 (5th Cir. 2006) (citing United States

v. Davis, 269 F.3d 514, 518 (5th Cir. 2001)). This inquiry involves considering

“the defendant’s age and education, and other background, experience, and

conduct” and “the stage of the proceedings and the setting in which the

waiver is advanced,” as well as ensuring “that the waiver is not the result of

coercion or mistreatment of the defendant,” and “that the accused

understands the nature of the charges, the consequences of the proceedings,

and the practical meaning of the right he is waiving.” Id. (citations omitted).

The ultimate goal of the Faretta hearing and the district court’s evaluation is

to be sure that the defendant is “made aware of the dangers and

disadvantages of self-representation, so that the record will establish that he

knows what he is doing and his choice is made with his eyes open.” United

States v. Joseph, 333 F.3d 587, 590 (5th Cir. 2003) (internal quotation marks

and citations omitted).

Sterling argues that the waiver was involuntary due to improper

pressure created by the court’s repeated statements, during the prior hearing

on the motion to substitute counsel, that if Sterling did not want to accept

Stockstill’s competent representation, he could represent himself. This is an

extension of Sterling’s earlier argument that the district court erred in its

refusal to grant substitute counsel. As we have already discussed, the district

court properly concluded that Sterling had no good cause requiring substitute

counsel. While “a court cannot force a defendant to choose between

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constitutionally deficient or disqualified counsel and no counsel at all, [a]

defendant’s refusal without good cause to proceed with able appointed

counsel constitutes a voluntary decision to proceed pro se.” Romans, 823

F.3d at 313 (internal quotation marks and citation omitted); see Capistrano,

74 F.4th at 774. Therefore, Sterling’s “persistent, unreasonable demand for

dismissal of counsel” constituted a voluntary waiver. Capistrano, 74 F.4th at

774 (citation omitted); see Romans, 823 F.3d at 312–13 (concluding that

“[a]lthough it [wa]s evident that [the defendant] mistrusted and disliked [his

lawyer],” the defendant’s waiver was voluntary even though “it occurred

only after the district court refused to substitute counsel”).

Sterling next argues that the waiver was neither knowing nor

intelligent because the district court gave only generalized warnings about the

dangers of self-representation and failed to sufficiently inquire into Sterling’s

background and medical history. But these arguments, too, are unsupported

by the record. The district court did inquire into Sterling’s education and

background, ensure Sterling understood the nature and severity of the

charges against him, and explain in detail the dangers of self-representation.6

The district court specifically delved into the disadvantages of proceeding pro

se, emphasizing that Sterling’s comparative lack of experience and ignorance

of the rules might hinder his effective participation in the trial, and cautioning

that even for “an experienced trial lawyer, by representing themselves [they]

often do so at a great disadvantage and they themselves are found

guilty. . . . [V]ery often [pro se defendants] are found guilty because of the

challenges presented by that dual role [of defendant and lawyer].” Despite

these warnings, Sterling answered affirmatively that he was not being

_____________________

6

Moreover, the court’s questions closely followed those recommended in the

Benchbook for U.S. District Court Judges. See United States v. Jones, 421 F.3d 359, 363–64

(5th Cir. 2005) (approvingly citing the Benchbook).

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“coerce[d]” into proceeding pro se, he understood that the district court

believed “a trained lawyer would defend [him] in this matter far better than

[him] defending [him]self,” but he was nonetheless willing to “bear the risk”

of doing so.

The district court also clearly took into consideration Sterling’s

mental health. At Sterling’s initial appearance, the government expressed to

the court that it had been reported to the government that Sterling had talked

about suicide when he learned of the prosecution’s investigation.

Accordingly, one of Sterling’s special conditions of release was medical or

psychiatric treatment “as deemed necessary by pretrial services.” At the

direction of pretrial services, Sterling was evaluated twice: once on

September 10, 2020, by a licensed clinical social worker from Baton Rouge

Behavioral Health, and another time on October 23, 2020, by an advanced

practice registered nurse from Baton Rouge Mental Health Clinic.7 In those

evaluations, Sterling denied any mental health symptoms or psychiatric

history, and a mental status evaluation indicated that his functioning was

normal. The social worker did diagnose Sterling with “acute stress

reaction,” but Sterling declined psychotherapy that was offered to deal with

stress.

During the first Faretta hearing, the district court asked whether

Sterling had “been under the care of a psychiatrist or a mental health

counselor for any reason,” and asked follow-up questions about the

evaluation that pretrial services had ordered for Sterling shortly after his

initial appearance. Upon realizing that neither Sterling nor Stockstill had

information about that evaluation, the district court indicated it wanted to

_____________________

7

While the record does not contain the actual report associated with those

evaluations, the findings of those evaluations are summarized in a competency report

prepared by Dr. John W. Thompson and in the PSR.

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follow up and review the evaluation report, and declined to rule during the

hearing. The court then scheduled a second Faretta hearing, prior to which it

received and reviewed that evaluation. Across both hearings, the district

court covered Sterling’s interactions with doctors, the medication he was

prescribed, and other aspects of his medical history. This series of inquiries

clearly demonstrates consideration of Sterling’s mental health and is far more

comprehensive than those at issue in the cases that Sterling invokes. See, e.g.,

United States v. Klein, 420 F. App’x 471, 472 (5th Cir. 2011) (per curiam)

(noting that the district court granted a waiver after only “a terse colloquy”

of “essentially . . . only two questions”: a confirmation of the defendant’s

“understanding (1) that he was not a lawyer and (2) that the court would not

assist him in his defense”); id. (explaining that the information regarding the

defendant’s mental instability “should have raised a red flag for further

questioning, or at least spurred the court to give more specific warnings about

the disadvantages of pro se representation”). We therefore find that

Sterling’s waiver was voluntary, knowing, and intelligent.

C.

Sterling’s third issue on appeal presents the question of whether it is

lawful to allow a criminal defendant to represent himself at his own

competency hearing.

i.

On July 13, 2021, approximately four months after permitting Sterling

to proceed pro se, the court sua sponte ordered—without elaboration—a

competency examination of Sterling, to be conducted by Dr. John W.

Thompson. This evaluation was to include five topics, including Sterling’s

“history and present symptoms”; “a description of the psychiatric,

psychological, and medical tests that were employed and their results”; “the

examiner’s findings”; “the examiner’s opinions as to diagnosis, prognosis”;

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and “whether Defendant is suffering from a mental disease or defect

rendering him mentally incompetent.” Dr. Thompson conducted his

examination and issued a report concluding that Sterling had “no psychiatric

diagnoses,” and was “competent to represent himself.” The court

subsequently held a competency hearing, during which the report was

introduced and Dr. Thompson was examined by both parties. The district

court orally ruled that Sterling was competent to proceed to trial pro se at the

conclusion of the hearing, which it put in writing the next day.

ii.

Whether a pro se litigant can continue to represent himself at a

competency hearing is an issue on which other circuits are divided, and it is

an issue of first impression for our circuit. Accordingly, we have not

previously opined on the appropriate standard of review for a district court’s

decision to allow waiver of counsel for a competency hearing. In light of the

fundamental importance of the right to counsel at critical stages of the

criminal process, however, we adopt the general standard for constitutional

challenges and apply de novo review.8

iii.

On appeal, the parties press competing facets of the Sixth

Amendment. On the one hand, the Sixth Amendment guarantees

representation by competent counsel at all critical stages of a prosecution.

This right is so paramount that there are also statutory protections that

_____________________

8

In so doing, we follow “every federal court of appeals to take up the question”—

the Third, Fourth, Sixth, Eighth, Ninth, Tenth, and D.C. Circuits—in deeming a

competency hearing a “critical stage” of trial. United States v. Ross, 703 F.3d 856, 874 (6th

Cir. 2012) (citing Ronald A. Parsons, Jr., Being There: Constructive Denial of Counsel at a

Competency Hearing as Structural Error Under the Sixth Amendment, 56 S.D. L. Rev. 238,

242 & n.31 (2011)).

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further underscore it. Congress has mandated, for instance, that “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 unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense,” 18 U.S.C.

§ 4241(a), a court “shall” order a hearing, and that defendant “shall be

represented by counsel” at this hearing, 18 U.S.C. § 4247(d). Sterling

emphasizes that this fundamental Sixth Amendment guarantee was violated

when the district court permitted him to proceed pro se at his own

competency hearing.

At the same time, however, the Sixth Amendment also guarantees the

right to self-representation, the improper denial of which also constitutes

reversible error. The right to self-representation, the government argues,

would be implicated by a refusal to permit the defendant to represent

himself—particularly under circumstances where, as here, a district court

has already previously determined there was a valid waiver.

In the absence of controlling precedent in this circuit, the parties

invoke competing decisions of our sister circuits: Sterling urges us to follow

the approach taken by the Sixth Circuit in United States v. Ross, 703 F.3d 856,

867 (6th Cir. 2012), whereas the government urges us to follow Wise v.

Bowersox, 136 F.3d 1197 (8th Cir. 1998) and United States v. Morrison, 153 F.3d

34 (2d Cir. 1998) and hold that the Sixth Amendment does not require

representation by counsel at a competency hearing after a prior valid waiver.

In Ross, which presents the most thorough treatment of the issue, the

defendant “exhibited bizarre and paranoid behavior which led to the

withdrawal of three court-appointed attorneys.” 703 F.3d at 865. While

represented by his third court-appointed attorney, the defendant moved to

represent himself, which prompted the government to move for a

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competency examination. Id. The court denied both motions. As to the

motion to proceed pro se, it made no findings on the defendant’s ability to

represent himself. Id. And on the motion for competency evaluation, the

court found that the defendant’s “signs of delusion and paranoia and his

inability to get along with his lawyers did not give reasonable cause to order a

psychiatric exam at that time,” but urged the lawyers to alert the court if

there were any “additional developments that cause Counsel to question

th[at] conclusion[].” Id. Just over a week after this denial, the defendant filed

yet another motion to substitute counsel; the court denied substitution but

found, after an inquiry into the defendant’s “knowledge and ability to

represent himself,” that he had validly waived counsel. Id. at 865–66. The

following month, the government filed a second motion for a competency

examination and hearing, which was granted. Id. at 866. The defendant was

not reappointed counsel before the hearing, and after considering the report

of a court-appointed psychologist and its own observations of the defendant,

the court deemed him competent to stand trial. Id.

On these facts, the Sixth Circuit concluded that the district court had

erred in “failing to appoint counsel to represent [the defendant] at the

[competency] hearing” and allowing him to proceed pro se “despite having

questions about his competency.” Id. at 869. In so doing, it expressly rejected

the argument the government presses here—that “the court’s prior

determination” of the defendant’s competency to waive counsel “carried

over to the competency hearing.” Id. As “a finding of competency at one

point of the proceedings may be overcome later by further evidence that a

defendant is not competent,” id. (citing Drope v. Missouri, 420 U.S. 162, 181

(1975), “[e]ven when a defendant is competent at the commencement of his

trial, a trial court must always be alert to circumstances suggesting a change

that would render the accused unable to meet the standards of competence

to stand trial,” id. (quoting Drope, 420 U.S. at 181). Under this understanding

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of the need for constant vigilance, the court found that the right to counsel

necessarily superseded the right to self-representation, as requiring counsel

for a defendant under these circumstances would pose “no greater a denial

of a defendant’s right to self-representation than that of any other defendant

whose waiver has been found not to be knowing and intelligent.” Id. at 870.

At bottom, the Sixth Circuit reasoned that this position best

comported with the “common-sense viewpoint that a defendant cannot

represent himself at his own competency hearing, the purpose of which is to

determine whether a defendant understands and can participate in the

proceedings in the first place”—necessarily an antecedent inquiry. Id. at 869

(citing cases where courts “have concluded that a defendant may not be

permitted to waive counsel while the issue of competency is pending”); see

United States v. Purnett, 910 F.2d 51, 55 (2d Cir. 1990) (“Logically, the trial

court cannot simultaneously question a defendant’s mental competence to

stand trial and at one and the same time be convinced that the defendant has

knowingly and intelligently waived his right to counsel.”); United States v.

Martin, 608 F. App’x 340, 343 (6th Cir. 2015) (“When a criminal

defendant’s competency to stand trial has been challenged, the validity of the

defendant’s waiver of counsel is suspended until the issue of his or her

competency is resolved.”).9 Particularly in light of the district court’s own

finding, made at the hearing on the second competency motion, that “there

[wa]s reasonable cause to believe that [the defendant] may not be able to

_____________________

9

The Sixth Circuit also rejected the government’s attempt to distinguish these

cases on the basis that the defendants therein “had not actually been found competent to

waive counsel before they were allowed to proceed pro se into their competency hearings,”

because “the court’s continuing obligation to assess competency and resulting actions

removes the distinction.” Ross, 703 F.3d at 870.

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properly assist in his defense,” id at 869, the Sixth Circuit held that it was

error to allow him to proceed pro se at the hearing.

In contrast to Ross, the Second and Eighth Circuits have held under

certain circumstances that representation by counsel at a competency

hearing is not mandated given a valid prior waiver of counsel. In Bowersox,

the defendant moved to represent himself during pretrial proceedings. 136

F.3d at 1202. The trial court conducted a hearing on his competence,

ultimately finding him competent to proceed pro se and assigning him standby

counsel. Id. at 1202–03. The following month, “at the instigation of [that]

standby counsel,” who believed defendant to be incompetent, the court held

a competency hearing. Id. at 1203. The Eighth Circuit found that the

defendant’s lack of counsel at this hearing was not error, because, “after a

thorough hearing on [his] competence, the trial court properly permitted him

to exercise that right”;10 therefore, the defendant “already properly was

representing himself,” and had “not request[ed] the assistance of a lawyer”

for that hearing. Id. Notably, moreover, though both parties “attempted to

demonstrate [the defendant’s] competence, the contrary point of view also was

well represented” by standby counsel, who “attempted to show [the

defendant’s incompetence] at the hearing” by “speak[ing] and []

examin[ing] both of the experts who testified.” Id. (emphasis added).

Citing Bowersox approvingly, the Second Circuit explained in Morrison

that although “a trial court [that] has cause to doubt the competency of the

defendant . . . must appoint counsel to serve until the issue with respect to

competency is resolved,” 153 F.3d at 47 (citing United States v. Purnett, 910

F.2d 51, 56 (2d Cir. 1990)), the court had “declined to extend Purnett to

_____________________

10

The “thorough hearing” to which Bowersox refers is the hearing on the

defendant’s competency to proceed pro se, analogous to Sterling’s two Faretta hearings.

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require appointment of counsel where, as here, the district court held a

hearing as a precautionary measure after making an initial determination of

the defendant’s competency based on psychiatric reports and the court’s

own observation,” id. (citing United States v. Nichols, 56 F.3d 403, 414–15 (2d

Cir. 1995)). In other words, a trial court was not required “to reappoint

counsel to a pro se defendant every time it revisits the issue of competency.”

Id. (emphasis added) (quoting Nichols, 56 F.3d at 415). Because the defendant

in Morrison challenged his lack of counsel during a second competency

hearing, the Second Circuit declined to find that the trial court had erred in

permitting the defendant to proceed pro se.

We agree with the Sixth Circuit that, due to the court’s continuous

duty to ensure the defendant’s competency, Drope, 420 U.S. at 181, and

because “a finding of competency at one point of the proceedings may be

overcome later by further evidence that a defendant is not competent,” Ross,

703 F.3d at 869, a determination of competency cannot stretch indefinitely

to displace the necessary investigation during subsequent competency

hearings.11 Rather, where a court has reasonable cause to question the

defendant’s competency, it must appoint counsel for the defendant until that

doubt is extinguished. See Purnett, 910 F.2d at 56.12

_____________________

11

The position we articulate today appears more flexible than that taken by the

Second Circuit, given its declaration that it will not “require a trial court to reappoint

counsel to a pro se defendant every time it revisits the issue of competency.” Morrison, 153

F.3d at 47.

12

Because there was no meaningful adversarial testing at the competency hearing

of Dr. Thompson’s expert opinion that Sterling was competent, we need not reach the

question of whether lack of counsel for the defendant may nonetheless be excused if

“meaningful adversarial testing” otherwise occurs. See Ross, 703 F.3d at 872 (discussing

Bowersox and adopting the “meaningful adversarial testing” standard for assessing whether

representation by standby counsel is sufficient to cure deprivation of counsel at

competency hearing). It is along this dimension that our case differs from Bowersox, see 136

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With that said, we cannot agree with Sterling that, on the specific facts

before us, the record shows the district court had cause to doubt his

competence. Sterling argues that such a conclusion is warranted from the

mere fact that the district court sua sponte ordered the hearing. In certain

instances, such an order may constitute circumstantial evidence tending to

show what Sterling argues. Yet here, as both parties acknowledge, the record

is devoid of any reasons for that order, because the district court did not

provide any. The court did not make a finding that “there is reasonable cause

to believe that [Sterling] may not be able to properly assist in his defense,”

Ross, 703 F.3d at 869, just as it did not “express[] renewed concern regarding

[Sterling’s] competence” and “wonder whether [he] was delusional”

because of “investigations that [Sterling] requested to be performed,”

Morrison, 153 F.3d at 40.13 Nor is Sterling’s a case where the opposing party

filed repeated motions for a competency evaluation. See Ross, 703 F.3d at

867–68. The absence of any corroborating evidence suggesting there was

sound reason to doubt Sterling’s competency therefore admits of the

possibility that the district court ordered the evaluation as a “precautionary

measure.” Morrison, 153 F.3d at 47. Furthermore, the district court

conducted thorough Faretta hearings—during which the court inquired after

and considered the results of a medical evaluation before rendering its

decision—and the record does not reveal bizarre behavior tending to cast

doubt on the defendant’s competency.

_____________________

F.3d at 1203, which we read to be less categorical than the Second Circuit’s approach in

Morrison.

13

Indeed, as the district court would later state (during its December 2022 hearing

to determine whether a presentencing competency evaluation of Sterling was necessary),

there was no evidence that Sterling was incompetent to proceed to trial before the evaluation

by Dr. Thompson, nor any indication that he had a history of irrational behavior.

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In sum, while we hold that as a general matter, a district court that has

reasonable cause to question a defendant’s competence errs when it allows

that same defendant to appear pro se at his own competency determination,

we conclude that the district court did not err in the limited facts of this case.

Under these specific circumstances, the record presents insufficient

indication that there was cause to doubt Sterling’s continued competency.

Accordingly, the district court was not required to appoint counsel for

Sterling for the competency hearing.

D.

Sterling also challenges the district court’s determination, at the

conclusion of the competency hearing, that he was in fact competent to

represent himself at trial.

“Due process prohibits the prosecution of a defendant who is not

competent to stand trial.” Dunn v. Johnson, 162 F.3d 302, 305 (5th Cir. 1998)

(citations omitted). A defendant is mentally competent to stand trial if he has

“the ‘present ability to consult with his lawyer with a reasonable degree of

rational understanding’ and ‘has a rational as well as factual understanding

of the proceeding[] against him.’” Id. (quoting Dusky v. United States, 362

U.S. 402, 402 (1960) (per curiam)). “A district court can consider several

factors in evaluating competency, including, but not limited to, its own

observations of the defendant’s demeanor and behavior; medical testimony;

and the observations of other individuals that have interacted with the

defendant.” Simpson, 645 F.3d at 306 (citing Joseph, 333 F.3d at 589).

In appeals challenging a district court’s determination that a

defendant is competent to stand trial, this court engages in “a species of clear

error” review: “after ‘re-analyzing the facts and taking a hard look at the trial

judge’s ultimate conclusion,’ we will reverse only if the finding was ‘clearly

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arbitrary or unwarranted.’” Id. (cleaned up) (quoting Joseph, 333 F.3d at

589).

Applying this standard, we cannot say the court’s determination was

either clearly arbitrary or unwarranted. Sterling raises three objections, all of

which are unpersuasive. First, Sterling argues he had neither a sufficient

rational or factual understanding of the proceedings to qualify as competent

under Dusky. Though Sterling identifies certain behavior—such as having

outbursts and pointing to specific jurors during trial—not only do these

postdate the competency hearing, but Sterling also fails to show the bearing

that that behavior would have on his “ability to consult with his lawyer with

a reasonable degree of rational understanding” or his ability to have “a

rational as well as factual understanding of the proceeding.” Dunn, 162 F.3d

at 305. Against the preponderance of the evidence indicating that Sterling

was competent—such as Dr. Thompson’s report and conclusion, including

that Sterling “performed near perfect” on the competency test administered

to him, and the district court’s first-hand observation of Sterling’s demeanor

in court—the determination that Sterling was competent was not clearly

unwarranted.

Sterling next argues that the district court improperly relied only on

Dusky—which defines the standard test for competence to stand trial, see 362

U.S. at 402—but instead should have applied Indiana v. Edwards, which

teaches that there can be a higher threshold of competency for proceeding

pro se than for standing trial. 554 U.S. 164, 175–76 (2008). As a threshold

matter, the district court clearly did contemplate Edwards, citing the case in

its order. But even if we accept Sterling’s characterization of the district

court’s analysis, the instances which Edwards identifies—that is, where “an

individual may . . . satisfy Dusky’s mental competence standard, for he will

be able to work with counsel at trial, yet at the same time . . . be unable to

carry out the basic tasks needed to present his own defense without the help

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of counsel,” Edwards, 554 U.S. at 176–77—are “exceptional.” Panetti v.

Stephens, 727 F.3d 398, 414 (5th Cir. 2013). Sterling’s case does not present

those exceptional circumstances, as there is insufficient evidence on which

to conclude that he was unable to fulfill any necessary “basic tasks.” And

even if it were such an exceptional case, the permissive holding in Edwards

does not render the district court’s determination arbitrary or unwarranted.

See id. (explaining Edwards is best read as “allowing the [court] to insist on

counsel” for someone who satisfies the Dusky standard, “but not requiring

that the [court] do so”). Indeed, Edwards explains that the trial court is often

in the best position to judge the matter. 554 U.S. at 177 (“[T]he trial judge,

particularly one . . . who presided over one of [the defendant’s] competency

hearings and his two trials, will often prove best able to make more fine-tuned

mental capacity decisions, tailored to the individualized circumstances of a

particular defendant.”).

Third, Sterling argues that Dr. Thompson’s examination of Sterling

“did not take into consideration his past mental health history,” as his report

does not include every detail in Sterling’s history—largely because Sterling

denied any symptoms or ailments during his interview. The defense argues

this is inconsistent with Sterling’s actual psychiatric history, as he reported

“symptoms consistent with major depressive disorder and post-traumatic

stress” “[a]s early as 2014.” However, there is conflicting evidence,

revealing that assessments from the medical professionals—such as the 2014

records from Our Lady of the Lake Regional Medical Center (OLOL)—

concluded that Sterling “does not appear depressed” (even if he “report[ed]

feelings of depression”), and he denied suicidal ideations or auditory

hallucinations. But even if Dr. Thompson’s report omitted certain instances

of Sterling’s reported depression, those omissions would not, in this context,

change the ultimate competency determination. Dr. Thompson’s report

explicitly included in its sources of review the Behavioral Health Assessment

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and Psychiatric Evaluation ordered by the court (as well as a conversation

with Sterling), and does note Sterling’s depressive symptoms—thus

indicating that Sterling’s depression factored into the report’s analysis and

final conclusion regarding Sterling’s competency. As a result, Sterling has

presented no evidence to suggest that the district court’s competency

determination was clearly arbitrary or unwarranted.

E.

Sterling’s final issue on appeal concerns the district court’s refusal to

grant the motions for a competency evaluation and hearing prior to Sterling’s

sentencing.

i.

Trial concluded on March 16, 2022. About two weeks later, on March

30, 2022, Sterling enrolled attorneys from Longman Jakuback as his counsel,

ending his pro se representation.

On June 16, 2022, in advance of sentencing, defense counsel moved

for an examination of Sterling’s competency, arguing that new medical

developments warranted a reevaluation of Sterling’s competency. The

district court held an initial status conference on November 8, 2022. There,

the defense counsel acknowledged that Sterling “goes through phases where

he has an appearance of being very, very clear, very competent, very

clearheaded,” but added that he would at times “demonstrate[] to us . . . a

complete lack of factual understanding as to where his case is or what actions

we are taking on his behalf and then provide[] us with medical documentation

that indicates, from physicians, from doctors . . . that he is unwell.” Out of

concern that it had not been provided with “all of the relevant evaluation

reports,” which it would need to determine the necessity of the competency

evaluation, the district court adjourned the session and scheduled a follow-

up hearing for December 13, 2022.

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At the December hearing, the district court first heard from both

parties. It then focused on the developments following Dr. Thompson’s July

30, 2021 evaluation, and traced the chronology of the submitted medical

records—a joint submission of over two thousand pages in total. The court

emphasized that, although Sterling had had six medical evaluations after Dr.

Thompson’s evaluation,14 there was only one diagnosis that noted a “major

depressive disorder . . . with what could be psychotic features,” 15 and

nothing in the evaluations contained evidence of a mental disease or defect

that would render Sterling mentally incompetent to proceed in the case.

Acknowledging the singular psychosis diagnosis and the diagnoses of

depression, the court reasoned that the diagnoses by themselves were

insufficient to overcome the other evidence of competency. It also noted that

there was evidence that Sterling would discuss his case and his discontent

with his potential sentence with medical personnel; that much of the

additional medical history was self-reported following the guilty verdict; and

therefore, that his episodes were likely “a reaction to the guilty verdict and

likely sentence.” The district court also explicitly covered the other factors

it was required to consider, adding that its observations of Sterling’s

demeanor at trial corroborated the conclusion that Sterling was competent.

_____________________

14

This included a May 2022 evaluation at OLOL, a May 2022 evaluation at Bridge

Center for Hope, a May 2022 evaluation at OLOL, a June 2022 evaluation at OLOL, a

June–August 2022 evaluation at Oceans Behavioral Hospital, and an October 2022

evaluation at OLOL. It did not include the last November-December admission to OLOL,

for which there were no records submitted and which the parties both agreed was outside

the scope.

15

In addition to the visits detailed in the district court’s order, Sterling apparently

also had a behavioral health assessment at Baton Rouge Behavioral Health on May 20,

2022, at which Sterling was diagnosed with a single episode of major depressive order, with

psychotic features, and was ordered to be hospitalized for 72 hours. There were also a few

other minor visits, though none as serious (or finding psychosis).

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Based on this analysis, the district court orally denied the competency

motion during the hearing, and followed with a written order nine days later.

At the sentencing hearing on January 10, 2023, defense counsel again raised

its belief that Sterling was “struggling with some very deep mental health

concerns” and “very, very troubled mentally.” The district court

nonetheless sentenced Sterling and recommended that he be incarcerated in

a facility capable of providing mental health treatment.

ii.

Under 18 U.S.C. § 4241(a), district courts are required to conduct a

competency hearing “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 unable to

understand the nature and consequences of the proceedings against him or

to assist properly in his defense.” See United States v. McEachern, 465 F.2d

833, 837 (5th Cir. 1972). “Whether ‘reasonable cause’ exists to put the court

on notice that the defendant might be mentally incompetent is left to the

sound discretion of the district court.” United States v. Davis, 61 F.3d 291,

304 (5th Cir. 1995) (citation omitted); Mitchell, 709 F.3d at 440 (“This court

recognizes that the trial court is in the best position to decide whether a

competency hearing is necessary . . . .”). Accordingly, “[a]n abuse of

discretion standard applies to [a] district court’s failure to sua sponte conduct

a mental competency hearing and its denial of the defense’s motion for a

mental competency evaluation.” United States v. Flores-Martinez, 677 F.3d

699, 706 (5th Cir. 2012).

The mere existence of “mental or emotional problems or mental

illness ‘is not dispositive as to . . . competency.’” United States v. Teijeiro, 79

F.4th 387, 393 (5th Cir. 2023) (citation omitted). Instead, this court

“consider[s] three factors to detect whether a court reversibly erred by failing

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to hold a competency hearing sua sponte: (1) any prior medical opinion on

competency, (2) the defendant’s demeanor at trial, and (3) any history of

irrational behavior.” Id. (citing United States v. Messervey, 317 F.3d 457, 463

(5th Cir. 2002)).

iii.

Upon review of the reasoning detailed by the district court and review

of the medical records, we cannot say the district court’s refusal to order

another competency evaluation was an abuse of discretion.

The defense did provide evidence to establish that Sterling was

suffering from certain mental illnesses—most predominantly, depression

and stress, but also potentially psychosis. However, “[a] history of suicidality

and depression . . . does not render a defendant incompetent” as a matter of

law. Austin v. Davis, 876 F.3d 757, 780 (5th Cir. 2017); see also Mata v.

Johnson, 210 F.3d 324, 330 (5th Cir. 2000) (explaining that even “a suicide

attempt, by itself, is not necessarily sufficient to create ‘reasonable cause’ for

a competency hearing”; “[i]nstead, that evidence must be weighed in

conjunction with all other evidence presented with respect to a defendant’s

mental stability and competence” (citing United States v. Davis, 61 F.3d 291,

304 (5th Cir. 1995))).

Moreover, with all parties acknowledging that Sterling “has not been

the most reliable narrator or forthcoming when it relates to his mental health

history,” it was not unreasonable for the district court to perceive Sterling’s

actions—including his self-submission to medical evaluations and expressed

desire to seek help—as rational. As the government explicitly argued, and the

court also alluded to, Sterling “did not report his history of depression prior

to trial when he took the position that he was competent, but he did report

his history of depression after trial when he took the position that he was not

competent.” “In other words,” therefore, he “reported a history of mental

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illness when it suited his purposes to do so, and he withheld information

about his mental health history when that suited his purposes. Those actions

were rational.”

Here, the district court conducted a careful and thorough evaluation

of the three factors to which this circuit looks: Sterling’s lack of history of

irrational behavior, his demeanor and behavior at trial, and medical records

and opinions regarding Sterling’s competency. Though Sterling’s post-trial

counsel suggested that Sterling had delusional thoughts and an inability to

understand the severity of the proceedings and “why punishment would be

administered in this case,” there was ample basis for the district court to find

that Sterling was able to understand the nature of the proceedings and

consequences before him. Given its superior position for observing and

evaluating Sterling, the district court’s determination of Sterling’s

competence does not therefore constitute an abuse of discretion.

III.

For the foregoing reasons, we AFFIRM the district court on all is-

sues.

30