United States v. Agbonifo ( 2022 )

Case: 20-20293 Document: 00516242286 Page: 1 Date Filed: 03/16/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 16, 2022
No. 20-20293 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Michael Ojegba Agbonifo,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CR-462-1
Before Barksdale, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
A jury convicted Defendant-Appellant Michael Ojegba Agbonifo of
passport fraud and visa fraud. The district court sentenced him to time
served and supervised release. On appeal, Agbonifo argues that he was not
competent to stand trial or waive his right to counsel and that the district
court should have sua sponte held a hearing to confirm his competency before
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-20293
trial. Agbonifo also argues that the district court violated his due process
rights by ordering that he be forcibly medicated to restore his competency.
For the following reasons, we AFFIRM.
I. Facts & Procedural History
On March 7, 2017, the Government issued a ten-count superseding
indictment charging Agbonifo with fraud and identity theft offenses. Before
trial, Agbonifo’s counsel moved to have a psychiatrist examine him, citing
her interactions with Agbonifo and documents that he wrote containing
“fantastic ideation.” In one document, Agbonifo alleged that (1) the United
States Postal Inspector who arrested him had threatened his life, sexually
assaulted him, coerced him into giving a statement, forced him to consent to
a search, and threatened his family; (2) the Government fabricated the
charges against him to cover up the postal inspector’s actions; and (3) his
previously appointed attorneys were working with the Government. The
district court granted counsel’s motion.
Dr. Gerald E. Harris examined Agbonifo and concluded that he was
not competent to stand trial. In his report, Dr. Harris observed that Agbonifo
had an animated affect, pressured speech, shifting moods, and a limited
ability to speak rationally or coherently. Dr. Harris also noted Agbonifo’s
tales of bullets ricocheting off his skin, his allegation that the postal inspector
sexually assaulted him, and his belief that his prosecution was a cover-up.
Considering Dr. Harris’s report, Agbonifo’s counsel and the Government
jointly moved to hospitalize Agbonifo under 18 U.S.C. § 4241(d) for mental
health treatment to restore his competency. The district court granted the
motion, without holding a hearing, on April 28, 2017.
On July 6, 2017, Agbonifo was transferred to the United States
Medical Center for Federal Prisoners (the “Medical Center”), where
Dr. Elizabeth Tyner diagnosed him with “Delusional Disorder, Persecutory
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Type.” In her report, Dr. Tyner cited Agbonifo’s belief that he was the
victim of an elaborate conspiracy to cover up the postal inspector’s alleged
sexual assault. Dr. Tyner noted that, although Agbonifo had “a factual
understanding of the nature of the proceeding against him,” he was
“preoccupied with delusional ideation regarding the conspiracy against
him,” which “significantly hinder[ed] his rational understanding of his
current legal situation and hinder[ed] his ability to assist properly in his
defense.” The Government moved for Agbonifo to be involuntarily
medicated to restore his competency for trial under United States v. Sell, 539
U.S. 166 (2003). On July 26, 2018, the district court granted the motion,
which Agbonifo’s counsel did not oppose, without holding a hearing.
On November 25, 2019, the Medical Center Warden certified that
Agbonifo’s competency had been restored. Dr. Tyner submitted a report
supporting that conclusion. Although Agbonifo retained some delusional
thinking, Dr. Tyner opined that it was less intense and that there was “no
indication that any residual delusional thinking [that Agbonifo might]
currently experience significantly impact[ed] his competency-related
abilities.” She noted that Agbonifo scored well on a test of his factual and
rational understanding of legal proceedings and his ability to assist in his
defense, indicated that he trusted and could work with his attorney,
recognized that his charged offenses were substantiated, set aside the alleged
sexual assault, and described a rational defense strategy. Dr. Tyner stressed,
however, that Agbonifo had a chronic and severe mental illness that required
continued medication to remain in remission.
Sometime in December 2019, Agbonifo was transferred from the
Medical Center to a federal detention center. On December 20, 2019, the
district court held a hearing to determine whether Agbonifo had regained
competency. Having received no objection from either party, the district
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court found Agbonifo competent to stand trial. Three days later, Agbonifo
sought leave to proceed pro se.
On January 8, 2020, the district court held a hearing, in accordance
with Faretta v. California, 422 U.S. 806 (1975), to determine whether
Agbonifo was knowingly and voluntarily waiving his right to counsel. At the
Faretta hearing, Agbonifo asserted that he was competent to stand trial.
Although his counsel did not object to this assertion, the Government
questioned whether Agbonifo was behaving rationally. It noted that if
Agbonifo had pleaded guilty, he would likely have already served his time.
But instead, Agbonifo faced up to a 32-year sentence. The Government also
questioned whether Agbonifo had stopped taking his medication following
his release from the Medical Center.
Agbonifo responded that he had been taking his medication and that
he hoped to avoid the collateral consequences of pleading guilty. Although
Agbonifo told Dr. Tyner that he planned to plead guilty, he explained at the
Faretta hearing that he had lied so that she would find him competent.
Agbonifo also said that he wanted an opportunity to present his case and
reasserted that he was the victim of a cover-up. The Government again
questioned whether Agbonifo was competent. In response, the district court
asked what more he could do to confirm Agbonifo’s competency and gave
the Government an opportunity to interrogate him. After the Government
declined and Agbonifo’s lawyer confirmed her client’s desire to proceed pro
se, the district court found that Agbonifo “was mentally and physically
competent to represent himself” and therefore granted his motion.
Agbonifo’s counsel did not object.
In March 2020, the Government proceeded to trial on only counts
nine and ten of the indictment, which charged passport fraud and visa fraud
in violation of 18 U.S.C. §§ 1543 and 1546(a), respectively. Proceeding pro
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se, Agbonifo could generally answer questions and make arguments
regarding his case and reasserted that he was competent to stand trial. He
added that he had “never at no point [been] incompetent” and alleged that
the Government involuntarily medicated him because he refused to plead
guilty. As for his defense theory, Agbonifo argued that the Government
fabricated the evidence against him. He reasserted that the prosecution was
a cover-up for the postal inspector’s alleged sexual assault.
During the trial, Agbonifo admitted that, soon after the Faretta
hearing, prison officials discovered that he had been refusing his medication
since his release from the Medical Center and that he was off his medication
at the Faretta hearing despite his representation otherwise. Agbonifo
complained that after he was transferred to a second federal detention center,
the Government resumed involuntarily medicating him. Allegedly, the
medication gave him side effects, including a loss of focus, shaking, the
growth of breasts, and health problems. At various points, Agbonifo became
agitated, prompting the district court to admonish him and prematurely
terminate his cross examination.
A jury convicted Agbonifo of both charged offenses. The district court
sentenced him to time served and three years of supervised release. 1
Agbonifo sought to have counsel appointed to represent him on appeal. The
district court appointed appellate counsel, and Agbonifo timely appealed.
1
Although Agbonifo has already completed his sentence of time-served and is
subject to removal from the United States, this does not moot his challenge to his
convictions. See United States v. Flores-Martinez, 677 F.3d 699, 705 n.3 (5th Cir. 2012).
Moreover, he remains subject to a term of supervised release. See United States v. Heredia-
Holguin, 823 F.3d 337, 340–43 (5th Cir. 2016) (en banc).
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II. Discussion
On appeal, Agbonifo argues that he was not competent to stand trial
or waive his right to counsel and that the district court should have sua sponte
held a hearing to confirm his competency before trial. He also challenges the
district court’s order requiring that he be forcibly medicated. We address
these arguments below.
A. The District Court’s Competency Determination
The Due Process Clause of the Constitution prohibits the conviction
of a defendant who is mentally incompetent. United States v. Flores-Martinez,
677 F.3d 699, 705 (5th Cir. 2012). “A defendant is 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.’” United States v. Joseph, 333 F.3d 587, 589
(5th Cir. 2003) (quoting Dunn v. Johnson, 162 F.3d 302, 305 (5th Cir. 1998)
(alteration in original)). In evaluating a defendant’s competency, a district
court may consider, among other things, “its own observations of the
defendant’s demeanor and behavior; medical testimony; and the
observations of other individuals that have interacted with the defendant.”
United States v. Porter, 907 F.3d 374, 380 (5th Cir. 2018) (quotation omitted).
A criminal defendant also has a constitutional right to defend himself
in court. Faretta, 422 U.S. at 819. The standard for determining a defendant’s
competency to stand trial also applies to determine whether he is competent
to waive the right to counsel. Godinez v. Moran, 509 U.S. 389, 399 (1993). The
question of whether a defendant is competent to waive the right to counsel is
distinct from whether he can competently represent himself. Id. at 399–400.
“In addition to determining that a defendant who seeks to . . . waive counsel
is competent, a trial court must satisfy itself that the waiver of his
constitutional rights is knowing and voluntary.” Id. at 400.
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This court will not reverse the district court’s competency
determination “unless it is clearly arbitrary or unwarranted—a species of
clear error review—but this mixed question of fact and law requires us to re-
analyze the facts and take a hard look at the trial judge’s ultimate
conclusion.” Joseph, 333 F.3d at 589 (quoting United States v. Doke, 171 F.3d
240, 247 (5th Cir. 1999)).
Agbonifo contends that the district court “should have realized” at
the Faretta hearing that he “no longer possessed the competency necessary
to proceed to trial without representation.” Conceding that the district court
correctly found him competent on December 20, 2019, Agbonifo asserts that
he had significantly regressed by the time of the Faretta hearing on January
8, 2020. He says that his “strange behavior,” “bizarre thoughts,” and “far-
fetched defense theories,” combined with his known history of mental
illness, placed the district court on notice that he lacked competency. In
response, the Government argues that available medical evidence and
Agbonifo’s conduct supports the district court’s competency determination.
The district court’s determination in December 2019 that Agbonifo
was competent to stand trial reflected the opinions of the medical providers
who had treated him at the Medical Center, defense counsel, and the
Government. Less than three weeks later, at the Faretta hearing, Agbonifo
maintained that he was competent to proceed. Although his consistent
denials of having any mental illness undermine his credibility, Agbonifo’s
counsel did not question her client’s competency and confirmed his desire to
represent himself. She did not object to the district court’s competency
determination. The Government, however, twice questioned Agbonifo’s
competency at the Faretta hearing, including asking whether he had stopped
taking his medication. In response, the district court confirmed with
Agbonifo that he was still taking his medication. Agbonifo’s response was
inaccurate, but that did not become evident until the trial two months later.
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Thus, considering the information before it, the district court’s competency
determinations were not “clearly arbitrary or unwarranted.” Joseph, 333 F.3d
at 589.
B. The District Court’s Failure to Hold a Competency Hearing
The Due Process Clause also guarantees a criminal defendant
“procedures adequate to guard [his] right not to stand trial or suffer
conviction while incompetent.” Flores-Martinez, 677 F.3d at 705–06 (quoting
Holmes v. King, 709 F.2d 965, 967 (5th Cir. 1983)). Showing a violation of this
procedural due process right requires the accused to identify “evidence
before the trial court that raised a bona fide doubt about competency.” Id. at
706 (quoting Holmes, 709 F.2d at 967). Moreover, under statute, the trial
court must sua sponte 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.” Id. (quoting 18 U.S.C. § 4241).
To determine whether bona fide doubt or reasonable cause to conduct
a competency hearing existed, this court considers “(1) the existence of a
history of irrational behavior, (2) the defendant’s demeanor at trial, and (3)
[any] prior medical opinion on competency.” United States v. Ruston, 565
F.3d 892, 902 (5th Cir. 2009) (reasonable cause); Mata v. Johnson, 210 F.3d
324, 329 (5th Cir. 2000) (bona fide doubt). “Even 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.” Drope v. Missouri, 420
U.S. 162, 181 (1975).
This court reviews for abuse of discretion a district court’s failure to
sua sponte hold a competency hearing. Ruston, 565 F.3d at 901. We have
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recognized that “[t]he district court is in the best position to determine the
need for a competency hearing.” Id. (quoting United States v. Alden, 527 F.3d
653, 659 (7th Cir. 2008)). “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) (quotation omitted). If, however, the trial court
received evidence that objectively “should have raised a reasonable doubt as
to competency, yet failed to make further inquiry, the defendant has been
denied a fair trial.” Flores-Martinez, 677 F.3d at 706 (quoting Mata, 210 F.3d
at 329).
Agbonifo contends that the district court violated his right to
procedural due process when it failed to sua sponte order another
competency hearing before his trial in March 2020. He says that his conduct
at the Faretta hearing and trial sufficiently called into question his
competency. The Government counters that the district court was not
required to sua sponte hold a hearing on Agbonifo’s competency because he
was in fact mentally competent during the Faretta hearing and throughout his
trial. Additionally, the Government argues that Agbonifo’s conduct at trial
merely demonstrated his inability to competently represent himself, not his
lack of mental competency. According to the Government, throughout the
trial, Agbonifo “evidenced a rational and factual understanding of the
proceedings against him.” 2
We agree with the Government. Agbonifo’s conduct at trial suggested
that his mental illness was no longer in remission, but “the presence or
absence of mental illness or brain disorder is not dispositive” of competency.
2
The Government also dismisses Agbonifo’s tangents about the alleged conspiracy
to cover up a sexual assault as a “disagreement with the court.”
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United States v. Mitchell, 709 F.3d 436, 440 (5th Cir. 2013) (quoting Mata,
210 F.3d at 329 n.2). Here, the district court “was well aware of [Agbonifo’s]
tumultuous past” because the same judge had “presided over [his] numerous
related appearances and hearings.” Id. at 441. Although Agbonifo’s
demeanor at trial was concerning, his testimony and interactions with the
jury, prosecution, and judge nonetheless “illustrated his basic awareness and
understanding of the proceedings.” Id. In other words, “[h]is behavior
indicated a man with mental health issues, but he did not show a total lack of
understanding.” Id. Finally, Agbonifo’s mental health providers had
declared him competent only a few months before his trial, rendering
inapposite cases refusing to rely on significantly outdated medical opinions.
See Ruston, 565 F.3d at 903 (refusing to rely on a six-month-old competency
finding); Mitchell, 709 F.3d at 441 n.8 (noting that “reports almost fifteen
years old have little or no relevance in this inquiry”). Accordingly, the district
court did not abuse its discretion by failing to sua sponte hold a hearing to
determine Agbonifo’s competency.
C. Involuntary Medication
In a pro se supplemental brief, Agbonifo argues that the district court
violated his due process rights by ordering that he be forcibly medicated to
restore his competency to stand trial. He contends that his case did not meet
the constitutional requirements for forced medication. Allegedly, Agbonifo’s
medication caused side effects, including an inability to focus, that
undermined his self-representation and therefore deprived him of a fair trial.
Before reaching the merits, we consider whether Agbonifo’s pro se
supplemental brief is appropriately before the court. Agbonifo, through
counsel, sought leave to file a pro se supplemental brief before the
Government filed its brief. Although Agbonifo’s counsel had already filed a
competent brief on his behalf, this court granted the motion and denied the
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Government’s request for reconsideration of that decision. The Government
maintains that this court should not consider Agbonifo’s pro se supplemental
brief because defendants are not entitled to hybrid representation.
A criminal defendant has “no constitutional right to hybrid
representation,” partly by counsel and partly by himself. Myers v. Johnson, 76
F.3d 1330, 1335 (5th Cir. 1996). If a defendant accepts the assistance of
counsel on appeal, he cannot expect to be permitted to file a supplemental
pro se brief. Id. This court’s rules confirm that “[u]nless specifically directed
by court order, pro se motions, briefs or correspondence will not be filed if
the party is represented by counsel.” 5th CIR. R. 28.6. Moreover, “[a]
defendant abandons issues raised in a supplemental brief when not raised and
argued in the original brief.” United States v. Moore, 452 F.3d 382, 391 (5th
Cir. 2006) (citing United States v. Bullock, 71 F.3d 171, 178–79 (5th Cir.
1995)). We have applied this rule even after granting leave to file a pro se
supplemental brief, at least when “deeming [the] issues waived” would do
the defendant “no injustice.” Bullock, 71 F.3d at 179–78. We do so again here.
III. Conclusion
For the foregoing reasons, we AFFIRM Agbonifo’s convictions and
sentence.
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