United States v. Thomas Ernst ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4013
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS J. ERNST,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:11-cr-00116-CMH-1)
Submitted: June 25, 2012 Decided: July 16, 2012
Before MOTZ, KING, and THACKER, Circuit Judges.
Affirmed in part, dismissed in part, and remanded by unpublished
per curiam opinion.
Rebecca S. Colaw, REBECCA S. COLAW, P.C., Suffolk, Virginia,
for Appellant. Neil H. MacBride, United States Attorney, Thomas
J. Krepp, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas J. Ernst appeals his forty-eight-month sentence
and $4,490,966.08 restitution order following a guilty plea to
endeavoring to obstruct the administration of the Internal
Revenue Laws, in violation of 26 U.S.C. § 7212(a) (2006), and
failure to file tax returns, in violation of 26 U.S.C. § 7203(2006). On appeal, Ernst argues that: (1) he did not knowingly
and intelligently waive his right to appeal; (2) his trial
counsel was constitutionally ineffective for failing to request
a mental evaluation; (3) the district court erred by failing to
sua sponte order a mental evaluation and conduct a competency
hearing; and (4) the district court erred by failing to make
specific factual findings with respect to his financial
resources, financial needs, and earning ability in making its
restitution order.
The Government seeks to enforce the appellate waiver
provision of the plea agreement, arguing that Ernst is precluded
from challenging the district court’s restitution order. In the
plea agreement, Ernst agreed to waive the right to appeal “the
conviction and any sentence within the statutory maximum . . .
on any ground whatsoever.” A defendant may, in a valid plea
agreement, waive the right to appeal under 18 U.S.C. § 3742(2006). United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990). An appellate waiver must be “the result of a knowing and
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intelligent decision to forgo the right to appeal.” United
States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)
(internal quotation marks and citation omitted). We review de
novo whether a defendant has effectively waived his right to
appeal. United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992).
To determine whether a waiver is knowing and
intelligent, we examine “the totality of the circumstances,
including the experience and conduct of the accused, as well as
the accused’s educational background and familiarity with the
terms of the plea agreement.” United States v. General, 278
F.3d 389, 400 (4th Cir. 2002) (internal quotation marks and
citation omitted). Generally, if a court fully questions a
defendant regarding the waiver of his right to appeal during the
Rule 11 colloquy, the waiver is both valid and enforceable.
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
However, this court will “refuse to enforce an otherwise valid
waiver if to do so would result in a miscarriage of justice.”
Id. (internal quotation marks and citation omitted).
We find that Ernst knowingly and intelligently waived
his right to appeal his convictions and sentence. Ernst asserts
that his waiver was not knowing and intelligent “because there
was an underlying mental condition” and “lack of rationality.”
However, despite the fact that Ernst was on medication for
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depression at the time of the hearing, nothing in the plea
colloquy transcript indicates that his condition affected his
ability to understand the proceedings or comprehend the rights
he waived in the plea agreement. During the Rule 11 hearing,
the court specifically questioned Ernst regarding the waiver
provision. Ernst, a sixty-six-year-old man with two college
degrees, a Ph.D candidacy, and a law degree, confirmed that he
had read, reviewed, and understood the plea agreement, and did
not have any questions. On the record before us, we conclude
that the appellate waiver is valid and enforceable.
Pursuant to 18 U.S.C. § 3663(a)(3), a district court
may “order restitution in any criminal case to the extent agreed
to by the parties in the plea agreement.” Ernst’s plea
agreement provides: “The defendant agrees to pay restitution to
the Internal Revenue Service pursuant to 18 U.S.C.
§ 3663(a)(3),” the full amount to be determined by the court
after the preparation of the presentence report (“PSR”). The
district court was authorized to impose restitution by statute,
and the imposition of $4.49 million in restitution did not
exceed the statutory maximum. See United States v. Cohen, 459
F.3d 490, 497 (4th Cir. 2006) (“[A] defendant who has agreed
‘[t]o waive knowingly and expressly all rights, conferred by 18
U.S.C. § 3742, to appeal whatever sentence is imposed,’ . . .
has waived his right to appeal a restitution order.”). Thus,
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Ernst’s challenge to the restitution order falls within the
scope of the waiver provision and may not be reviewed by this
court.
The waiver provision, however, does not preclude this
court from considering claims of ineffective assistance of
counsel, which are not exempt from even valid waivers of
appellate rights. Nonetheless, claims of ineffective assistance
of counsel should be raised in a 28 U.S.C.A. § 2255 (West Supp.
2010) motion rather than on direct appeal, unless the appellate
record conclusively demonstrates ineffective assistance. United
States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Because
the record before us does not conclusively establish that
Ernst’s trial counsel was ineffective by failing to investigate
Ernst’s mental condition or failing to request a mental
evaluation, we decline to review these claims on direct appeal,
and we affirm his convictions.
We now turn to Ernst’s argument that the district
court abused its discretion in failing to sua sponte order a
mental evaluation and conduct a competency hearing. The
conviction of a defendant when he is legally incompetent is a
violation of due process, and Congress has safeguarded this
right by providing that trial courts may conduct competency
hearings. Beck v. Angelone, 261 F.3d 377, 387 (4th Cir. 2001);
United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).
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When neither party moves for a competency hearing, the district
court shall sua sponte order such a 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.” 18 U.S.C. § 4241(a). In
addition, “[p]rior to the date of the hearing, the court may
order that a psychiatric or psychological examination of the
defendant be conducted.” § 4244(b).
A petitioner may make a procedural competency claim by
alleging that the trial court failed to hold a competency
hearing after the petitioner's mental competency was put in
issue. Beck, 261 F.3d at 387. To prevail, the petitioner must
establish that the trial court ignored facts raising a “bona
fide doubt” regarding the petitioner’s competency to stand
trial. Id. However, a defendant “need not demonstrate on
appeal that he was in fact incompetent, but merely that the
district court should have ordered a hearing to determine the
ultimate fact of competency.” United States v. Banks, 482 F.3d
733, 742 (4th Cir. 2007). Because the district court “is in a
superior position to adjudge the presence of indicia of
incompetency constituting reasonable cause to initiate a
hearing,” we review the district court’s determination that no
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reasonable cause existed to order a § 4241 competency hearing
for an abuse of discretion. Id. at 742-43.
We conclude that the district court did not abuse its
discretion in failing to sua sponte order a mental evaluation or
conduct a competency hearing. At sentencing, counsel for Ernst
expressed concern regarding Ernst’s mental health, stating that
Ernst “is not rational” and “has trouble accepting things.”
However, when asked for clarification by the district court,
Ernst’s counsel admitted, “I don’t think it’s a basic competency
issue,” and withdrew his request for a mental health evaluation.
Ernst’s trial counsel did not assert that Ernst was “unable to
understand the nature and consequences of the proceedings
against him or to assist properly in his defense,” as required
under 18 U.S.C. § 4241(a), and Ernst makes no such assertion on
appeal.
Moreover, Ernst’s diagnosis and treatment for
depression alone does not render him incompetent. See Hall v.
United States, 410 F.2d 653, 658 (4th Cir. 1969) (“[T]he
presence of some degree of mental illness is not to be equated
with incompetence to be sentenced.”). Beyond a broad assertion
that he was “wide-eyed and irrational,” Ernst fails to allege
that he has been diagnosed with an additional mental health
condition, fails to submit affidavits from his treating
psychiatrist addressing his mental health, and fails to
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articulate the impact of his alleged mental condition upon his
ability to understand the proceedings. In short, Ernst has not
presented facts that establish a “bona fide doubt” regarding his
competency to stand trial, as required to establish a procedural
competency claim. The district court therefore did not abuse
its discretion by failing to sua sponte order a mental
evaluation or conduct a competency hearing.
In addition, Ernst fails to establish that the
district court violated his substantive due process rights by
convicting him and sentencing him while he was incompetent.
“[A] petitioner raising a substantive claim of incompetency is
entitled to no presumption of incompetency and must demonstrate
his incompetency by a preponderance of the evidence.” Beck v.
Angelone, 261 F.3d 377, 388 (4th Cir. 2001). Ernst states on
appeal only that he “may or may not have been competent in this
matter.” Accordingly, he has not established by a preponderance
of the evidence that he was, in fact, incompetent at the time of
sentencing.
Although Ernst is precluded from appealing the
restitution order based upon his appellate waiver, the
Government requests that this court remand the case for the
limited purpose of determining a payment schedule that accounts
for Ernst’s financial condition, pursuant to 18 U.S.C.
§ 3664(f)(2). In fashioning a payment schedule for a
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restitution judgment, a district court must “make a factual
finding keying the statutory factors [listed in 18 U.S.C.A.
§ 3664(f)(2)] to the type and manner of restitution ordered.”
United States v. Dawkins, 202 F.3d 711, 716 (4th Cir. 2000).
The district court may satisfy this requirement by adopting the
proposed findings contained within the PSR. Id.Although the district court adopted the proposed
findings set forth in the PSR in this case, as the Government
emphasizes on appeal, the PSR is “devoid of any factual finding
that keys [the defendant’s] financial situation to the
restitution schedule ordered or finds that the order is
feasible.” Id. at 717. The PSR stated that, although Ernst
claimed to own gold mines in Colorado worth $300 million to $800
million, the Government questioned the veracity of these claims.
The PSR further noted that Ernst had no known liquid assets or
income, other than Social Security benefits. We note that the
district court was authorized to order payment of restitution
due immediately. See 18 U.S.C. § 3664(f)(3)(A)-(B). However,
given the ambiguity regarding Ernst’s financial resources, we
remand this case to the district court to make factual findings
regarding Ernst’s current financial assets and fashion an
appropriate payment schedule, as the Government has requested on
appeal.
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Accordingly, we affirm the judgment of conviction,
dismiss the appeal of the restitution order, and remand for the
district court to make factual findings consistent with this
opinion and determine an appropriate payment schedule for the
restitution order. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
DISMISSED IN PART,
AND REMANDED
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