NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 11 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10187
Plaintiff-Appellee, D.C. No. 3:18-cr-00061-WHO-1 v.
ROSS GORDON LAVERTY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding
Argued and Submitted December 5, 2023 San Francisco, California
Before: COLLINS, FORREST, and SUNG, Circuit Judges.
Ross Gordon Laverty appeals his conviction and sentence for two counts of
mailing explosive devices with the intent to kill or injure in violation of 18 U.S.C.
§§ 1716(a) and (j)(2), two counts of receiving or possessing a destructive device in
violation of 26 U.S.C. § 5861(d), and two counts of using or carrying an explosive
device to commit the charged offenses in violation of 18 U.S.C. §§ 844(h)(1) and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. (2). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. We decline Laverty’s invitation to adopt a heightened competency
standard. Laverty argues that the Supreme Court’s decision McCoy v. Louisiana,
138 S. Ct. 1500 (2018), impliedly abrogated the application of the Dusky
competency standard in cases, such as this, where the defendant refuses to plead
guilty in the face of overwhelming evidence. See Dusky v. United States, 362 U.S.
402 (1960). We disagree. Given “the Supreme Court’s repeated admonitions that it
is that Court’s ‘prerogative alone to overrule one of its precedents,’” Kashem v.
Barr, 941 F.3d 358, 376 (9th Cir. 2019) (citations omitted), we generally do not
find abrogation by implication. Further, we do not see a basis for implied
abrogation here. In McCoy, the Court held that counsel could not override the
defendant’s decision to assert innocence, even though counsel believed that the
evidence of guilt was overwhelming and conceding guilt would best serve the
defendant’s interest in avoiding the death penalty. McCoy, 138 S. Ct. at 1508–09.
In so holding, the Court explained that where the trial court has determined that the
defendant is competent under the Dusky standard, counsel cannot override the
defendant’s “steadfast[] refus[al] to plead guilty in the face of overwhelming
evidence.” Id.; see also id. at 1509 (“In this case, the court had determined that
McCoy was competent to stand trial, i.e., that McCoy had ‘sufficient present
ability to consult with his lawyer with a reasonable degree of rational
2 understanding.’ If, after consultations with [counsel] concerning the management
of the defense, McCoy disagreed with [counsel]’s proposal to concede McCoy
committed three murders, it was not open to [counsel] to override McCoy’s
objection.”) (citations omitted). Thus, we see no basis for Laverty’s argument that
McCoy demands a higher standard of competency than the Dusky standard.
2. The district court did not err in not ordering a pretrial evidentiary hearing
on competency. Under 18 U.S.C. § 4241(a),
the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, 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.
The district court complied with these requirements. In response to Laverty’s
motion, the court ordered a competency evaluation to be performed by the parties’
agreed-upon expert, Dr. Chamberlain. After receiving the evaluation, which
indicated Laverty was competent, the court held a status hearing and asked Laverty
whether an evidentiary hearing was needed. Laverty’s counsel indicated he did not
see a need at that time, but asked for “a brief period” to make objections to the
report if further review revealed issues. Counsel never filed objections, requested a
hearing, or took any additional steps concerning competency pretrial.
3 Further, the court did not plainly err by deciding not to sua sponte conduct
the evidentiary hearing. Given Dr. Chamberlain’s competency evaluation, and the
absence of any dispute regarding that evaluation, the district court reasonably
found no genuine doubt regarding Laverty’s competency. 18 U.S.C. § 4241(a);
United States v. Garza, 751 F.3d 1130, 1134 (9th Cir. 2014) (“Failing to sua sponte
hold a competency hearing is plain error only if the evidence of incompetence was
such that a reasonable judge would be expected to experience a genuine doubt
respecting the defendant’s competence.” (quotation marks and citation omitted)).
Ordering an examination does not itself mandate an evidentiary hearing. Garza,
751 F.3d at 1138.
3. The district court did not err in denying Laverty’s request for a post-trial
evidentiary hearing to determine his current and past competency to stand trial.
When reviewing a district court’s denial of a motion for a competency hearing, we
use “a practical standard” that asks “whether a reasonable judge, situated as was
the trial judge who denied the motion, should have experienced doubt with respect
to the defendant’s competence.” United States v. Duncan, 643 F.3d 1242, 1247
(9th Cir. 2011) (citation omitted). “We engage in a comprehensive review of the
evidence, and we are not limited by either the abuse of discretion or clearly
erroneous standard.” Id. (quotations omitted). Here, in response to Laverty’s post-
trial motion, the district court ordered another expert competency evaluation, and
4 then properly considered all the experts’ competency evaluations, the
representations of Laverty’s attorneys, and the court’s own observations of
Laverty. Id. Based on that evidence, the district court again reasonably found that
there was no doubt with respect to Laverty’s competence.1
4. The district court’s factual findings regarding Laverty’s competence were
not clearly erroneous. United States v. Turner, 897 F.3d 1084, 1105 (9th Cir.
2018). In defense counsel’s view, it was “irrational” for Laverty to reject the plea
offer and proceed to trial, but that alone cannot establish a defendant’s
incompetence. See McCoy, 138 S. Ct. at 1508.
5. Laverty’s ineffective assistance of counsel claims are premature. “[A]s a
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 11 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10187
Plaintiff-Appellee, D.C. No. 3:18-cr-00061-WHO-1 v.
ROSS GORDON LAVERTY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding
Argued and Submitted December 5, 2023 San Francisco, California
Before: COLLINS, FORREST, and SUNG, Circuit Judges.
Ross Gordon Laverty appeals his conviction and sentence for two counts of
mailing explosive devices with the intent to kill or injure in violation of 18 U.S.C.
§§ 1716(a) and (j)(2), two counts of receiving or possessing a destructive device in
violation of 26 U.S.C. § 5861(d), and two counts of using or carrying an explosive
device to commit the charged offenses in violation of 18 U.S.C. §§ 844(h)(1) and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. (2). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. We decline Laverty’s invitation to adopt a heightened competency
standard. Laverty argues that the Supreme Court’s decision McCoy v. Louisiana,
138 S. Ct. 1500 (2018), impliedly abrogated the application of the Dusky
competency standard in cases, such as this, where the defendant refuses to plead
guilty in the face of overwhelming evidence. See Dusky v. United States, 362 U.S.
402 (1960). We disagree. Given “the Supreme Court’s repeated admonitions that it
is that Court’s ‘prerogative alone to overrule one of its precedents,’” Kashem v.
Barr, 941 F.3d 358, 376 (9th Cir. 2019) (citations omitted), we generally do not
find abrogation by implication. Further, we do not see a basis for implied
abrogation here. In McCoy, the Court held that counsel could not override the
defendant’s decision to assert innocence, even though counsel believed that the
evidence of guilt was overwhelming and conceding guilt would best serve the
defendant’s interest in avoiding the death penalty. McCoy, 138 S. Ct. at 1508–09.
In so holding, the Court explained that where the trial court has determined that the
defendant is competent under the Dusky standard, counsel cannot override the
defendant’s “steadfast[] refus[al] to plead guilty in the face of overwhelming
evidence.” Id.; see also id. at 1509 (“In this case, the court had determined that
McCoy was competent to stand trial, i.e., that McCoy had ‘sufficient present
ability to consult with his lawyer with a reasonable degree of rational
2 understanding.’ If, after consultations with [counsel] concerning the management
of the defense, McCoy disagreed with [counsel]’s proposal to concede McCoy
committed three murders, it was not open to [counsel] to override McCoy’s
objection.”) (citations omitted). Thus, we see no basis for Laverty’s argument that
McCoy demands a higher standard of competency than the Dusky standard.
2. The district court did not err in not ordering a pretrial evidentiary hearing
on competency. Under 18 U.S.C. § 4241(a),
the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, 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.
The district court complied with these requirements. In response to Laverty’s
motion, the court ordered a competency evaluation to be performed by the parties’
agreed-upon expert, Dr. Chamberlain. After receiving the evaluation, which
indicated Laverty was competent, the court held a status hearing and asked Laverty
whether an evidentiary hearing was needed. Laverty’s counsel indicated he did not
see a need at that time, but asked for “a brief period” to make objections to the
report if further review revealed issues. Counsel never filed objections, requested a
hearing, or took any additional steps concerning competency pretrial.
3 Further, the court did not plainly err by deciding not to sua sponte conduct
the evidentiary hearing. Given Dr. Chamberlain’s competency evaluation, and the
absence of any dispute regarding that evaluation, the district court reasonably
found no genuine doubt regarding Laverty’s competency. 18 U.S.C. § 4241(a);
United States v. Garza, 751 F.3d 1130, 1134 (9th Cir. 2014) (“Failing to sua sponte
hold a competency hearing is plain error only if the evidence of incompetence was
such that a reasonable judge would be expected to experience a genuine doubt
respecting the defendant’s competence.” (quotation marks and citation omitted)).
Ordering an examination does not itself mandate an evidentiary hearing. Garza,
751 F.3d at 1138.
3. The district court did not err in denying Laverty’s request for a post-trial
evidentiary hearing to determine his current and past competency to stand trial.
When reviewing a district court’s denial of a motion for a competency hearing, we
use “a practical standard” that asks “whether a reasonable judge, situated as was
the trial judge who denied the motion, should have experienced doubt with respect
to the defendant’s competence.” United States v. Duncan, 643 F.3d 1242, 1247
(9th Cir. 2011) (citation omitted). “We engage in a comprehensive review of the
evidence, and we are not limited by either the abuse of discretion or clearly
erroneous standard.” Id. (quotations omitted). Here, in response to Laverty’s post-
trial motion, the district court ordered another expert competency evaluation, and
4 then properly considered all the experts’ competency evaluations, the
representations of Laverty’s attorneys, and the court’s own observations of
Laverty. Id. Based on that evidence, the district court again reasonably found that
there was no doubt with respect to Laverty’s competence.1
4. The district court’s factual findings regarding Laverty’s competence were
not clearly erroneous. United States v. Turner, 897 F.3d 1084, 1105 (9th Cir.
2018). In defense counsel’s view, it was “irrational” for Laverty to reject the plea
offer and proceed to trial, but that alone cannot establish a defendant’s
incompetence. See McCoy, 138 S. Ct. at 1508.
5. Laverty’s ineffective assistance of counsel claims are premature. “[A]s a
general rule, we do not review challenges to the effectiveness of defense counsel
on direct appeal.” United States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005),
overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957
(9th Cir. 2007) (en banc). There are two “extraordinary exceptions” to that general
rule: “(1) where the record on appeal is sufficiently developed to permit
determination of the issue, or (2) where the legal representation is so inadequate
1 The government argues that the district court lacked authority to hold an evidentiary hearing under Section 4241 to address Laverty’s past competency because Section 4241 concerns only present competency. We do not reach the merits of this argument because, even assuming that the district court had authority under § 4241 to hold a retrospective competency hearing, the district court correctly concluded that no such hearing was warranted here.
5 that it obviously denies a defendant his Sixth Amendment right to counsel.” Id. at
1156. Neither of those exceptions apply here. To determine whether Laverty’s
attorney, Babcock, was constitutionally ineffective when he declined to pursue an
evidentiary hearing regarding Laverty’s competence, or when he declined to
conduct further investigation of an insanity defense, a court would need additional
evidence regarding Babcock’s reasons for making those decisions. See, e.g.,
Washington v. Shinn, 46 F.4th 915, 921–22, 928 (9th Cir. 2022). Thus, we dismiss
Laverty’s ineffective assistance of counsel claim “without prejudice to its being
raised in a proceeding under 28 U.S.C. § 2255.” United States v. McGowan, 668
F.3d 601, 603 (9th Cir. 2012).
6. The district court did not abuse its discretion in denying Laverty’s Rule 45
motion. Laverty filed this motion eight months after the verdict. Therefore, Laverty
must demonstrate that his failure to file the motion within the 14-day limit was the
result of excusable neglect. Fed. R. Crim. P. 33(b)(2) & 45(b)(1)(B). To assess
whether the neglect was excusable, a court considers at least four factors: “(1) the
danger of prejudice to the opposing party; (2) the length of the delay and its
potential impact on the proceedings; (3) the reason for the delay; and (4) whether
the movant acted in good faith.” Bateman v. United States Postal Serv., 231 F.3d
1220, 1224 (9th Cir. 2000) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 396 (1993)). The district court’s analysis shows that it
6 properly considered the Pioneer factors and considered the complete record,
including its prior orders, in determining that Laverty’s failure to timely file was
not the result of excusable neglect.
7. The district court did not abuse its discretion in denying Laverty’s final
motion to continue sentencing. A defendant “establish[es] a Sixth Amendment
violation based on the denial of a motion to continue” by “show[ing] that the trial
court abused its discretion through an ‘unreasoning and arbitrary’ insistence upon
expeditiousness in the face of a justifiable request for delay.” Turner, 897 F.3d at
1102 (quoting Houston v. Schomig, 553 F.3d 1076, 1079 (9th Cir. 2008)). “Where
a denial of a continuance implicates a defendant’s Sixth Amendment right to
counsel,” we consider the five Turner factors: “(1) whether the continuance would
inconvenience witnesses, the court, counsel, or the parties; (2) whether other
continuances have been granted; (3) whether legitimate reasons exist for the delay;
(4) whether the delay is the defendant’s fault; and (5) whether a denial would
prejudice the defendant.” Id. (citation omitted). Here, the district court
appropriately considered the effect of an additional continuance on the victims of
the crime, the fact that sentencing had already been continued several times, and
the court’s reasonable determination that Laverty’s additional counsel was capable
of effectively representing Laverty at sentencing. The majority of the Turner
factors support the district court’s decision.
7 AFFIRMED.