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United States v. Ferguson

March 27, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
SHANE ROBERT FERGUSON, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. J. Spencer Letts, District Judge, Presiding. D.C. No. CR-05-01154-JSL-01.

The opinion of the court was delivered by: Graber, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted November 20, 2008 -- Pasadena, California

Before: Susan P. Graber and Richard R. Clifton, Circuit Judges, and David G. Trager,*fn1 District Judge.

Defendant Shane Robert Ferguson videotaped himself sexually molesting his four-year-old neighbor. The government indicted Defendant on one count of possession of child pornography and one count of production of child pornography. Defendant pleaded not guilty and insisted on representing himself at trial and sentencing. Throughout the pre-trial proceedings, Defendant exhibited bizarre behavior that befuddled everyone involved, including the district court. The district court several times expressed its desire to deny Defendant's request to represent himself. But binding law at the time required the district court to allow self-representation because Defendant was mentally competent to stand trial. Noting that its hands were tied, the district court acquiesced. Other than making a small number of nonsensical motions at sentencing, Defendant did nothing at trial or sentencing. A jury convicted Defendant, and the district court sentenced him to the statutory maximum of 480 months' imprisonment.

Today, we address the effect of the Supreme Court's intervening decision in Indiana v. Edwards, 128 S.Ct. 2379 (2008). In Edwards, the Court held that a different standard of mental competency applies when considering a defendant's request for self-representation than when considering whether a defendant may be tried at all. Id. at 2386. We remand to the district court to determine whether, in light of Edwards, it would have made a different mental competency decision. On all other issues, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In 2005, the grandparents of a four-year-old girl became concerned that Defendant was sexually molesting their granddaughter. Defendant, who was in his early 30s, was a neighbor and close friend of the victim's family. Acting on credible information, the police executed a search warrant at Defendant's house.

The search uncovered numerous incriminating items of child pornography, including known images and videos of child pornography, as well as a home-made video of Defendant molesting the victim. Defendant confessed that he had filmed the assault using a hidden pin-hole camera in his bedroom, that he had lured the victim into participating by showing her images of child pornography, and that he had molested the victim. The government indicted Defendant on one count of production of child pornography, in violation of 18 U.S.C. § 2251(a), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

As we detail below, Defendant's odd pre-trial conduct caused the district court much consternation. In a series of hearings and conferences, the court, Defendant's various lawyers, the government's lawyers, and Defendant himself engaged in lengthy discussions about self-representation and about Defendant's competency to stand trial.

The court originally appointed two defense lawyers to represent Defendant. At a pre-trial hearing, Defendant's lawyers requested a competency hearing because of their difficulties in communicating with Defendant. The court was initially skeptical and decided to question Defendant. Defendant addressed the court as follows, requesting six "duties," which would become a theme of Defendant's pre-trial conversations with the court:

I've requested these following six duties:

One, request that the judge issue me the appearance bond so that I may enter a plea; two, not to argue the facts; three, request the judge close all accounts; four, request the judge waive all public charges by the exemption in accordance to public policy; and, five, request the judge present me with the order of the court; and, six, request the judge release me.

When asked whether he wanted to plead guilty, Defendant responded, "Well, your honor, I fully accept the charges for value and for consideration. And I ask that these charges, these accounts be closed out and settled by the exemption in accordance to public policy." The court responded that it "ha[d] no idea what he's talking about." When Defendant explained his answers by reference to "House Joint Resolution 192, public law 73-10, and UCC 3-419," the court ordered a competency hearing. Defendant's reliance on the Uniform Commercial Code ("UCC") as a defense to his actions would also be a consistent theme of Defendant's.

Several weeks later, the district court conducted a competency hearing. The court-appointed psychologist had submitted a report on Defendant's mental competency to stand trial. The report concluded that Defendant "is presently mentally competent to stand trial," because he "is presently malingering mental illness and is consciously attempting to feign a disorder to delay or avoid prosecution." Neither party objected to the report's conclusions, and the district court ruled that Defendant was competent "to stand trial[ ] and . . . to assist counsel in the process of trial preparation and dealing with the trial matters."

Defendant again asked to address the court. He stated that he was "here by special appearance" (yet another theme) and that he wanted to "put these legal matters to peace . . . . [H]ow may I do that? How may we handle this in the private today?" After a discussion of why that was not possible, Defendant asked for "[o]ne last thing": "I'd like the record to reflect that I have presented [my lawyer] a notice of dishonor for not completing the six duties I have requested her to complete." The court told Defendant that it "[didn't] know where that stuff comes from," but that ...


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