United States v. Malmstrom ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1218
UNITED STATES OF AMERICA,
Appellee,
v.
ERIC MALMSTROM,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
[Hon. John H. Rich, U.S. Magistrate Judge]
Before
Howard, Chief Judge,
Torruella and Selya, Circuit Judges.
Jane Elizabeth Lee on brief for appellant.
Halsey B. Frank, United States Attorney, and Benjamin M.
Block, Assistant United States Attorney, on brief for appellee.
July 20, 2020
SELYA, Circuit Judge. In the wrong hands, a telephone
can be a fearsome weapon. So it was here and — when the dust
settled — a jury convicted defendant-appellant Eric Malmstrom on
three counts of transmitting threatening interstate communications
by telephone. See 18 U.S.C. § 875(c). The district court
sentenced him to serve a twenty-seven-month term of immurement.1
On appeal, Malmstrom — represented by newly appointed appellate
counsel — presses only a single claim of error: he argues that
the district court, on its own initiative, should have insisted
that he undergo a competency evaluation.
We do not gainsay that the course of conduct in which
Malmstrom engaged when committing the crimes of conviction was
bizarre. But bizarre behavior is not always a telltale sign that
a criminal defendant is lacking in competency to stand trial.
Reviewing the record as a whole, we conclude that the district
court did not abuse its discretion in failing to order a competency
evaluation sua sponte. Accordingly, we affirm Malmstrom's
conviction and sentence.
We start by rehearsing the relevant facts and travel of
the case. In the fall of 2017, the Swedish Embassy in Washington,
1Some pretrial proceedings were heard before a magistrate
judge, who also presided over jury empanelment. For present
purposes, it would serve no useful purpose to distinguish between
the district judge and the magistrate judge. Instead, we take an
institutional view and refer throughout to the district court.
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D.C., began receiving phone calls from an individual who identified
himself as Eric Malmstrom of Vinalhaven, Maine. The calls were
replete with threats of violent mutilation of Swedish women and
sprinkled with references to Islam and to an imaginary Swedish
monarch. Malmstrom placed these calls both to the Swedish
Embassy's main line and to the direct line of a consular employee,
Zandra Bergstedt. Embassy officials notified the authorities.
As time went by, Malmstrom's unsettling calls
multiplied. During a single week in February of 2018, Malmstrom
left over one hundred voice messages on Bergstedt's line while she
was away on vacation. In the following weeks, Malmstrom's calls
to Bergstedt included content of an increasingly personal and
disturbing nature, such as threatening to harm Bergstedt's
children and alluding to her partner.
On March 5, 2018, Malmstrom called and spoke with
Bergstedt. During this conversation, he told Bergstedt that he
planned to travel by ferry from Maine to Washington to slit her
throat and make her children watch. The next day, Malmstrom called
Bergstedt from a different telephone number — one in southern
Maine. Noting that Malmstrom was heading south, the authorities
concluded that he was acting upon his threat to harm Bergstedt and
obtained a warrant for his arrest. Federal agents detained
Malmstrom later that month in Sanford, Maine. In due course, a
federal grand jury sitting in the District of Maine returned an
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indictment charging him with four counts of transmitting
threatening interstate communications. See 18 U.S.C. § 875(c).
In all, Malmstrom placed 121 calls to the Swedish Embassy's main
line and 187 calls to Bergstedt's direct line. Over 60 of these
calls were recorded on voicemail.
Leading up to trial, Malmstrom's court-appointed
attorney twice filed motions to withdraw. The first withdrawal
motion was filed in May of 2018 because Malmstrom wished to be
represented by a Muslim lawyer. At a hearing on that motion,
Malmstrom's attorney told the district court that "there's no issue
with my ability to communicate with him." The court denied the
motion.
The second withdrawal motion was filed in July of 2018.
It was rooted in the attorney's frustration about Malmstrom's
refusal to cooperate with him. Upon Malmstrom's agreement to
resume cooperation, the district court denied the motion. During
a later conference with the court and the prosecutor, Malmstrom's
attorney acknowledged his client's mental instability generally
but underscored that mental illness had not been raised in any
formal way. He went on to emphasize that Malmstrom "doesn't see
himself as mentally ill" and would "object vigorously" to any
evidence of mental illness being introduced at trial.
Malmstrom's case was set for trial in late August of
2018. The government dropped one of the charged counts, and the
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trial — which lasted only a single day — proceeded on the remaining
three counts. Malmstrom waived his right to testify, acknowledging
that he had been afforded sufficient time to consult with his
attorney about the waiver. The jury found Malmstrom guilty on all
three counts.
The district court convened the disposition hearing on
February 26, 2019. Malmstrom testified in order to assert a claim
of privilege over his mental health records. The court imposed a
twenty-seven-month term of immurement together with a three-year
term of supervised release. Malmstrom's attorney objected to the
special mental health condition that the court incorporated into
the supervised release conditions — a special condition that
obligated Malmstrom to undergo mental health evaluation and
treatment. The attorney asserted that the condition was
unwarranted in light of Malmstrom's belief that he did not suffer
from mental illness. The district court rejected Malmstrom's
importunings, and this timely appeal followed. Before us,
Malmstrom is represented by successor counsel.
Malmstrom's sole claim of error is that the district
court blundered by failing to order a competency evaluation under
18 U.S.C. § 4241(a) sua sponte. In his view, the irrational nature
of his offense conduct, without more, gave the district court ample
reason to believe that he might well be incompetent to stand trial.
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We review the district court's decision not to order a
competency hearing that neither side had sought for abuse of
discretion. See United States v. Kenney, 756 F.3d 36, 43 (1st
Cir. 2014). The abuse-of-discretion standard is not monolithic:
under it, we review findings of fact for clear error and questions
of law de novo. See United States v. Nygren, 933 F.3d 76, 82 (1st
Cir.), cert. denied, 140 S. Ct. 606 (2019).
We agree with Malmstrom's underlying premise:
convicting a legally incompetent individual would violate due
process. See Pate v. Robinson, 383 U.S. 375, 378 (1966); Pike v.
Guarino, 492 F.3d 61, 75 (1st Cir. 2007). As a means of guarding
against any infringement of this constitutional protection,
Congress enacted 18 U.S.C. § 4241. Section 4241(a) requires a
district court to order 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."
Withal, we disagree with the conclusion that Malmstrom
would have us draw from this uncontroversial premise. We have
observed before that sometimes "words are like chameleons; they
frequently have different shades of meaning depending upon the
circumstances." United States v. Romain, 393 F.3d 63, 74 (1st
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Cir. 2004). "Competency" is such a word. Competency to stand
trial is considerably narrower than competency generally, with the
result that competency to stand trial "must not be confused with
broader or different uses of the term." Robidoux v. O'Brien, 643
F.3d 334, 339 (1st Cir. 2011).
In the last analysis, competency to stand trial "is a
functional concept focusing on the defendant's part in the trial."
Id. (emphasis in original). The test for competency in this
context is whether a defendant is able to understand the
proceedings against him and consult rationally with his counsel so
as to assist in his own defense. See United States v. Brown, 669
F.3d 10, 17 (1st Cir. 2012); United States v. Giron-Reyes, 234
F.3d 78, 80 (1st Cir. 2000).
Malmstrom invites us to disregard this particularized
framework and focus instead on the eccentric character of the
behavior that gave rise to the indictment. He insists that the
irrational nature of his offense conduct itself gave the district
court reasonable cause to believe that it should order a competency
evaluation sua sponte. Because this insistence is misplaced, we
decline his invitation.
To be sure, Malmstrom's offense conduct raises a
legitimate question about his overall mental health. That mental
health issues exist, though, is not a per se bar to a finding of
competency to stand trial. See United States v. Widi, 684 F.3d
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216, 221 (1st Cir. 2012). One main reason that this distinction
is logically compelled is that a competency evaluation under
section 4241(a) is aimed at assessing a defendant's present ability
to participate meaningfully in his trial, not his mental state at
the time he perpetrated his offense. See Kenney, 756 F.3d at 44;
Robidoux, 643 F.3d at 339. Thus, we train the lens of our inquiry
on what the record shows regarding Malmstrom's capabilities at the
time of the proceedings below.
Our starting point is Malmstrom's ability vel non to
consult with his trial attorney. Malmstrom suggests that his
attorney's motions to withdraw are telltale signs that his ability
to communicate with counsel was somehow impaired. This suggestion
elevates hope over reason.
It is a bedrock principle — and one that we reaffirm
today — that a defendant must possess the ability to communicate
with his counsel so that he can assist meaningfully in the
preparation and presentation of his defense. See Kenney, 756 F.3d
at 43; see also 18 U.S.C. § 4241(a). The attorney-client
relationship, though, need not be congenial. See Brown, 669 F.3d
at 18 (concluding that attorney-client disagreements did not
prevent defendant from consulting with counsel with a reasonable
degree of rational understanding). Here, Malmstrom fails to
identify anything in the record that would justify a reasonable
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inference that he was unable to consult rationally with his trial
attorney.
Of course, Malmstrom at one point refused to cooperate
with his attorney, prompting the latter to file a second motion to
withdraw. Viewed in context, though, that disagreement did not
constitute reasonable cause to question Malmstrom's competency to
stand trial. A defendant's refusal to participate in his defense,
as opposed to his inability to participate in his defense, does
not, standing alone, signal his incompetency to stand trial. See
id. Such a signal is plainly absent here: by the end of the
hearing on the second motion to withdraw, Malmstrom had relented
and agreed to continue working with his attorney.
We add, moreover, that "defense counsel enjoys a unique
vantage for observing whether [his] client is competent." United
States v. Muriel-Cruz, 412 F.3d 9, 13 (1st Cir. 2005). This
vantage is especially important with respect to whether defense
counsel's client was able to consult rationally with him. As a
result, we afford significant weight to a lawyer's views as to
whether his client has "sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding."
Id. (emphasis in original) (quoting Giron-Reyes, 234 F.3d at 80).
In this instance, Malmstrom's trial attorney — in response to a
direct question posed in May of 2018 — unequivocally assured the
district court that he was unaware of any communication issues.
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At a post-trial hearing, Malmstrom's attorney stated that he and
his client had been able to repair any past communication issues.
Let us be perfectly clear. Malmstrom's trial attorney
did indicate an awareness that his client might have mental health
issues. But a lawyer's general acknowledgement that his client
may suffer from mental health issues does not, without more, "reach
the 'reasonable cause' threshold to require a sua sponte
[competency] hearing" under section 4241(a). United States v.
Ahrendt, 560 F.3d 69, 74 (1st Cir. 2009). Here, there was no
"more." Even though Malmstrom's trial attorney was generally aware
of his client's mental instability, he affirmatively represented
to the district court that Malmstrom could communicate
meaningfully with him and assist in the defense. In a similar
vein, Malmstrom himself expressed a desire to aid in his defense
and participate fully in it. Given the totality of the
circumstances (including the absence of any motion for a competency
evaluation, see United States v. Landers, 564 F.3d 1217, 1221 (10th
Cir. 2009)), we conclude that the district court lacked reasonable
cause to believe that Malmstrom's mental health issues
incapacitated him from communicating effectively with his attorney
and assisting with his defense.
To complete the picture, we must inquire into
Malmstrom's ability to understand the nature and consequences of
the proceedings against him. Malmstrom points out that a defendant
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must have a "rational understanding" of the nature of the
proceedings, Muriel-Cruz, 412 F.3d at 13, and argues that his
offense conduct demonstrated a detachment from reality that called
into question his rationality. But this argument mixes plums with
pomegranates: the rational "'understanding' required is of the
essentials." Robidoux, 643 F.3d at 339. This encompasses matters
such as "the charges, basic procedure, [and] possible defenses."
Id. It does not, however, extend to matters "of legal
sophistication." Id. After all, a defendant's understanding is
not expected to reach the same order of magnitude as a lawyer's
understanding. Rather, due process demands an understanding of
only the most "critical parts of the proceeding." Giron-Reyes,
234 F.3d at 83.
Malmstrom offers scant support for the proposition —
advanced for the first time by his appellate counsel — that his
understanding was so impaired as to require the district court on
its own initiative to evaluate his competency to stand trial. He
points to a solitary phrase his attorney uttered at the hearing on
the second motion to withdraw: "I'm a little concerned about
[Malmstrom's] level of understanding." But the attorney went on
to say — in a portion of the same statement that Malmstrom's
appellate counsel ignores — that he could bring Malmstrom "up to
speed" well before the trial commenced. And at another point,
Malmstrom's trial attorney indicated that Malmstrom was able to
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"receive[]" information regarding the proceedings and was able to
"process that information."
A hoary maxim teaches that actions sometimes speak
louder than words — and here, the record makes manifest that
Malmstrom's actions loudly proclaimed his grasp of basic
procedure. We list a few examples:
 Malmstrom spoke directly to the court at the
hearing on the second motion to withdraw,
indicating that he had rethought the matter and was
willing, going forward, to resume communicating
with his attorney and assist fully in his defense.
 Malmstrom expressed a desire to be present for jury
empanelment and to participate in jury selection.
 At trial, Malmstrom engaged in a reasoned colloquy
with the district court, relinquishing his right to
testify in his own defense.
 At the disposition hearing, Malmstrom testified
lucidly while asserting a privilege related to his
medical records.
 Malmstrom listened to the pronouncement of
sentence, apparently appreciated what it signified,
and immediately requested an appeal.
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These examples illustrate Malmstrom's ability to understand the
most critical parts of the proceeding.
A defendant has a right, within wide limits, to shape
his own defense. Even so, a district court must be watchful for
signs that the defendant's competency to stand trial is in doubt.
If the court has reasonable cause to believe that a substantial
question exists concerning the defendant's competency to stand
trial, it should not hesitate to order a competency evaluation sua
sponte. See Nygren, 933 F.3d at 86; United States v. Maryea, 704
F.3d 55, 69 (1st Cir. 2013). But where, as here, the record
reveals no reasonable cause to undergird such a belief, the court's
intervention is not required. It follows that the court below did
not abuse its discretion in failing to order a competency
evaluation sua sponte.
We need go no further. For the reasons elucidated above,
Malmstrom's conviction and sentence are
Affirmed.
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