UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
December 30, 2009
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
JOURNEY MARIE NO RUNNER, DEFENDANT-APPELLANT.
Appeal from the United States District Court for the District of Montana. Sam E. Haddon, District Judge, Presiding. D.C. No. 4:08-cr-00088-SEH-1.
The opinion of the court was delivered by: Fisher, Circuit Judge
Argued and Submitted November 3, 2009 -- Portland, Oregon.
Before: Alex Kozinski, Chief Judge, Raymond C. Fisher and Richard A. Paez, Circuit Judges.
Journey Marie No Runner appeals from a pretrial order finding her competent to stand trial. Because a pretrial competency determination is a non-final order and the collateral order doctrine does not apply, we dismiss her appeal for lack of jurisdiction.
The government charged No Runner with stealing a sport utility vehicle, driving recklessly and causing an accident that killed one person and injured two others. She faces one count of involuntary manslaughter, 18 U.S.C. §§ 1153(a) and 1112, one count of theft, 18 U.S.C. §§ 1153(a) and 661, and two counts of assault resulting in serious bodily injury, 18 U.S.C. §§ 1153(a) and 113(a)(6).
No Runner pled not guilty, and moved for a psychiatric competency examination under 18 U.S.C. § 4241, arguing that she suffered "traumatic brain injury in the accident" and "has no memory of the events of the Indictment." The district court granted the motion, and Cynthia A. Low, Ph.D., a psychologist, conducted a forensic evaluation of No Runner at the Federal Detention Center in Seatac, Washington. Low acknowledged that No Runner lacked any memory of the events charged in the indictment, but nonetheless concluded that she was competent to stand trial:
Overall, Ms. No Runner demonstrated an average ability to understand the nature and consequences of the court proceedings against her, and an average ability to properly assist counsel in her defense. From the available information, there is no evidence to indicate that Ms. No Runner suffers from a mental disorder that would substantially impair her present ability to understand the nature and consequences of the court proceedings brought against her, or impair her ability to assist counsel in her defense. Although her memory for the events described in the indictment is essentially nonexistent, she is able to consult with her attorney beyond this circumscribed amnesia, and is able to testify in her own behalf.
The district court held a competency hearing. Low, the only witness, testified that No Runner's claimed memory loss was genuine, and that No Runner suffered from post-traumatic amnesiac disorder that deprived her of any memory of the events surrounding the accident. Nonetheless, Low opined that No Runner was competent to stand trial because "she's going to be able to consult and assist with her attorney beyond that very circumscribed memory loss." The district court found No Runner competent to stand trial. No Runner appealed. The district court proceedings have been stayed while this appeal has been pending.
On appeal, No Runner contends that we have jurisdiction to review the district court's pretrial competency order under the collateral order doctrine, and that the court erred by finding her competent to stand trial. We conclude that the collateral order doctrine does not apply and that we lack jurisdiction. We therefore do not reach No Runner's contention that the district court's competency determination was in error.
 As a general rule, we have jurisdiction to review only "final decisions of the district courts." 28 U.S.C. § 1291. "In criminal cases, this rule ordinarily prohibits appellate review until a defendant is convicted and sentenced." United States v. Friedman, 366 F.3d 975, 978 (9th Cir. 2004). Under the collateral order doctrine, however, a non-final order is appealable if three conditions are satisfied.
First, it "must conclusively determine the disputed question"; second, it must "resolve an important issue completely separate from the merits of the action"; third, it must "be effectively unreviewable on appeal from a final judgment."
Flanagan v. United States, 465 U.S. 259, 265 (1984) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (footnote omitted)).
Although it is undisputed that the district court's competency order satisfies the second condition for application of the collateral order doctrine because the order addressed an issue - competency - completely separate from the merits of the case, the order fails to satisfy the first and third conditions. A pretrial competency order does not conclusively determine the question of competency and it can be effectively reviewed following the final judgment.
 A pretrial order finding a defendant competent to stand trial does not "conclusively determine" the defendant's competency. Rather, the question of competency remains open throughout the trial, and may be raised by the defendant, or by the court, at any time.*fn1 As the Supreme Court has explained, "[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." Drope v. Missouri, 420 U.S. 162, 181 (1975). The trial itself may furnish the strongest evidence of incompetency. "Among the factors we consider to determine whether there was sufficient evidence of incompetence are 'the defendant's irrational behavior, his demeanor in court, and any prior medical opinions on his competence.' " United States v. Marks, 530 F.3d 799, 814 (9th Cir. 2008) (quoting United States v. Fernandez, 388 F.3d 1199, 1251 (9th Cir. 2004)) (emphasis added).
 These considerations are particularly relevant where the question of competency turns on amnesia. Determining whether memory loss renders a defendant incompetent turns on consideration of several factors, including whether the crime and the defendant's whereabouts at the time of the crime can be reconstructed without the defendant's testimony and the strength of the government's case. E.g., United States v. Andrews, 469 F.3d 1113, 1119 (7th Cir. 2006).*fn2 The answers to these questions may not be known prior to trial; it may be the trial itself that illuminates them. In such cases, a pretrial finding of competency is necessarily subject to potential reconsideration. As the Seventh Circuit explained, "[i]f at any stage during or after trial, with or without motion by counsel, it becomes apparent that the defendant's amnesia may have rendered him incompetent and jeopardize the fairness of the trial, then the district court again must evaluate the defendant's competency." Andrews, 469 F.3d at 1120.
 rities convince us that a pretrial competency determination fails to satisfy the first condition for application of the collateral order doctrine. Such an order does not conclusively determine the issue of competency because the defendant may raise the issue anew during or following trial, or proceedings may compel the court to raise the issue sua sponte.
The district court's pretrial order also fails to meet the third condition for application of the collateral order doctrine. We are not persuaded that an order finding a defendant competent to stand trial would "be effectively unreviewable on appeal from a final judgment."
 ontends that the right of an incompetent defendant not to stand trial includes not only a right not to be convicted but also an absolute right not to be tried at all, i.e., a right that cannot be protected by post-conviction appellate review. In this respect, she analogizes her situation to the protection afforded by the Double Jeopardy Clause. See Flanagan, 465 U.S. at 266 ("The right guaranteed by the Double Jeopardy Clause is more than the right not to be convicted in a second prosecution for an offense: it is the right not to be 'placed in jeopardy' - that is, not to be tried for the offense."); Abney v. United States, 431 U.S. 651, 661-62 (1977) (holding that a pretrial order denying a motion to dismiss an indictment on the basis of double jeopardy is immediately appealable because double jeopardy protects against "being twice put to trial for the same offense"). No Runner argues that the right of an incompetent defendant not to be tried cannot be remedied by an appeal after judgment.
We disagree. Granted, the Supreme Court has, on occasion, described incompetency in terms of a right not to be tried. E.g., Godinez v. Moran, 509 U.S. 389, 396 (1993) ("A criminal defendant may not be tried unless he is competent."); Drope, 420 U.S. at 171 (holding that an incompetent defendant "may not be subjected to a trial"); id. at 172 (describing "a defendant's right not to be tried or convicted while incompetent"). If that were the nature of the right, then perhaps No Runner could satisfy the third condition for application of the collateral order doctrine.
 The Supreme Court, however, has never held that incompetency includes an absolute right not to be tried, or that a competency determination cannot be reviewed effectively on appeal after conviction. On the contrary, the Court has said that "[d]ouble jeopardy and speech or debate rights are sui generis in this regard." Flanagan, 465 U.S. at 267; see also Mohawk Indus., Inc. v. Carpenter, 558 U.S. ___, No. 08-678, slip op. at 12 (Dec. 8, 2009) ("[T]he class of collaterally appealable orders must remain 'narrow and selective in its membership.' " (quoting Will v. Hallock, 546 U.S. 345, 350 (2006))). At base, incompetency concerns a right to a fair trial. See Drope, 420 U.S. at 172 ("[T]he failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial."). That right can be protected adequately by post-conviction appellate review. Accordingly, the district court's pretrial order finding No Runner competent to stand trial also fails to satisfy the third condition of the collateral order doctrine.*fn3
 In sum, No Runner appeals from a non-final order. The collateral order doctrine does not apply. We therefore lack jurisdiction.