Legal Case Summary

Mr. Fajr, Mr. Fajr's counsel brought to the court's attention that Mr. Fajr is struggling with linear thought and he was struggling with paying attention to what Mr. Fajr's counsel was telling him. In addition to what counsel himself had observed through his dozen visits with Mr. Fajr, Mr

. Fajr's counsels associate and investigator, it also visited Mr. Fajr and observed the same thing. Well the district court did a pretty thorough exploration of that with Mr. Fajr. Well I would disagree, Your Honor. The district court asked Mr

. Fajr a couple of questions but the district court's interactions with Mr. Fajr were qualitatively less meaningful that Mr. Fajr's own counsel would have been over the course of six months. Here all the, well as I read the record counsel didn't say that this had happened over a series of six months, he said to me and recently noted this and I you know nobody's there so we have to trust what the district court's conclusions are but the cold record sounds Mr. Fajr is a lot more competent than some lawyers before. Well a few things, Your Honor

. First, it's true that things were getting progressively worse over time but defense counsel had to be able to observe Mr. Fajr over that extended period and could see Mr. Fajr deteriorate. In the same reason why this court might want to defer to a cold record with respect to the district court are the exact reasons why the district court should defer to defense counsel who after all is in the best position to know whether a client is able to assist counsel. He waits until the Friday before the trials to start to finally come up and say hey I've got a problem with this guy. That's true Your Honor but that's one of the problem arose

. Defense counsel's letter to the court he acknowledges was on the eve of trial and said this was the least possible moment I could raise this concern. The company determination is obviously an ongoing issue and in cases like DROP the Supreme Court may clear that sometimes even mid-trial the defendant's competency might be called in the question. There was any indication on the or out of us on the day of trial that he was under the influence or was having any difficulties understanding what was going on. Well the only evidence would have been the comments from defense counsel himself who stuck by his claims that he had concerns about Mr. Fajr's competency and Mr. Fajr himself when asked while never dropped the address and whether he felt he was competent or not did say that he was having mental health issues

. He had been prescribed two different anti-psychotic medications so those certainly were red flags for the district court and again the issue here is not whether ultimately he was in competence or not but instead whether he merely raised a reasonable cost to believe he was incompetent and that's a much lower standard. That basically was my question. What would have indicated to the judge that on the day of trial he's having difficulty consulting with his lawyer and understanding what's going on? The indication he would have had is from defense counsel himself who told the judge essentially that about things he had observed in the past but not that particular day. I don't think so, Your Honor. The defense counsel wrote the letter I think on the 31st and then two days letter they had the hearing and at that hearing defense counsel essentially reiterated what he had said in his letter that he was having concerns with Mr. Fajr his ability to pay attention and in response to all this information to the district court the district court never really analyzed the assist counsel prong of the competency test instead the district court all the district court said and denied Mr

. Fajr hearing was simply that he doesn't appear delusional and he can express himself and while that might have been true that's not the competency standard. The competency standard asked whether there's reasonable cost to believe he could assist counsel. So for instance in the the drope case the Supreme Court case the defendant that case wasn't delusional and a psychiatrist had found that he was well well oriented and can express himself. Nevertheless in that case the Supreme Court held that that defendant was incompetent. So I think there was just a mismatch and what the district court was trying to do and what the standard actual requires. But even if the district court applied the right standard all the district court had to support its opinion that Mr

. Fajr there wasn't even a reasonable cost to believe Mr. Fajr was incompetent with its own brief observations of Mr. Fajr and while again I understand this court will typically want to defer to the trial court who's going to see the defendant have a better sense of whether the defendant's comp that are not here this wasn't in case like Bernard for instance where the district court had an entire trial to observe the defendant before this hearing date on June 5th the first day of trial the district court had seen Mr. Fajr twice and both those hearings were over a year before that hearing. Mr. Fajr had written two letters to the district court

. One of those letters was a year old. The other letter was a little more recent. It was a couple weeks before the hearing. It's unfortunately not at the record. But that's the entirety of the district court's interaction with Mr. Fajr

. He essentially had to go on a letter and his brief back and forth Mr. Fajr at this initial hearing on a day of trial. He had a way that against what defense counsel who had substantial amount of experience with Mr. Fajr thought about Mr. Fajr's competency. What the counsel thought was that this defendant was taking drugs in jail

. Now what indication is that if he's not on drugs that he has a difficulty talking to his lawyer understanding what he's told and understanding the proceeding? Well I mean defense counsel did speculate and did think that the source of what he was seeing that the glazy eyes the inability to pay attention he sourced that to what he thought was illegal drug use and Mr. Fajr obviously disputed that. But the point with the district court shouldn't focused on was not so much at that point what was causing this glazy eyedness what was causing Mr. Fajr's inability to pay attention he should have been figuring out given that that's what defense counsel observed. Can he assist counsel? It might have only been drugs. It might have been that he was being over prescribed his prozac, his neurotin. It just wasn't clear and it's not clear because the district court held a pretty short hearing about this and didn't really push back at all it inquiring to sort of anything about what might be causing the source of this and that's what should have happened at a competency hearing. Mr. Fajr could have been evaluated by a psychiatrist more information could have been gathered and then he could have made a proper determination on Mr. Fajr's competency but that never happened here. So the best lawyer says Judge when I talked to him before what I'm seeing and what I'm hearing from him in my evaluation of what I'm of his being in front of me leaves me to think he's got mental. He may be incompetent but when he's in front of the judge and the judge is doing the same thing I'm looking at him and I'm listening to him and I don't see a problem

. It just wasn't clear and it's not clear because the district court held a pretty short hearing about this and didn't really push back at all it inquiring to sort of anything about what might be causing the source of this and that's what should have happened at a competency hearing. Mr. Fajr could have been evaluated by a psychiatrist more information could have been gathered and then he could have made a proper determination on Mr. Fajr's competency but that never happened here. So the best lawyer says Judge when I talked to him before what I'm seeing and what I'm hearing from him in my evaluation of what I'm of his being in front of me leaves me to think he's got mental. He may be incompetent but when he's in front of the judge and the judge is doing the same thing I'm looking at him and I'm listening to him and I don't see a problem. Are you saying then the judge has an obligation to send him for a mental evaluation when the judge's own personal observations are completely different from what the lawyers tell him and what the judge sees indicates he's competent? Well I think at least in this case I mean a few things are on our first there wasn't just defense counsel's observation I will note that Mr. Fajr himself said he had he had mental health issues he had surfs he'd just been released from prison for rape for 16 years he never committed he was on at least two anti-psychotic medications so there were other other red flags besides what defense counsel observed but setting that aside I do think most I do think the district court should have put more weight into what defense counsel was telling him so yes the district court had an object had in the ability to have a brief back and forth with the defendant but that's just qualitatively less meaningful than what defense counsel would have had and and the the conversations defense counsel have with his client are going to be different than the the conversation I was at the bench in this case the defense counsel told me asking Mr. Fajr questions about what happened with the crime what he observed those sorts of things he's going to have to draw out of his client to properly defend him and I think that's what was happening here is that Mr. Fajr wasn't able to do that wasn't able to pay attention wasn't able to follow those sorts of questions which are going to be different than the questions the district court was asking and again I'll remind the court that here all the district court ended up saying was that Mr. Fajr is not delusional and he can express himself and certainly that this court could defer to the district court on those two points and I won't quarrel with those two points but the competency determination is much more diverse than simply those two things and so if the court is known for the questions that issue I was going to turn to the C plea issue the district court also aired when it sentenced Mr. Fajr because rather than ask what sentence was sufficient but not greater than necessary which is the the sentencing standard the district court in effect applied an appellate presumption of reasonfulness not to the guideline but to the C plea saying quote that the sentence was within the range of reasonfulness and while one could debate whether the sentence should be higher or lower here the parties that come to an agreement and it found no reason to find that unacceptable

. Are you saying then the judge has an obligation to send him for a mental evaluation when the judge's own personal observations are completely different from what the lawyers tell him and what the judge sees indicates he's competent? Well I think at least in this case I mean a few things are on our first there wasn't just defense counsel's observation I will note that Mr. Fajr himself said he had he had mental health issues he had surfs he'd just been released from prison for rape for 16 years he never committed he was on at least two anti-psychotic medications so there were other other red flags besides what defense counsel observed but setting that aside I do think most I do think the district court should have put more weight into what defense counsel was telling him so yes the district court had an object had in the ability to have a brief back and forth with the defendant but that's just qualitatively less meaningful than what defense counsel would have had and and the the conversations defense counsel have with his client are going to be different than the the conversation I was at the bench in this case the defense counsel told me asking Mr. Fajr questions about what happened with the crime what he observed those sorts of things he's going to have to draw out of his client to properly defend him and I think that's what was happening here is that Mr. Fajr wasn't able to do that wasn't able to pay attention wasn't able to follow those sorts of questions which are going to be different than the questions the district court was asking and again I'll remind the court that here all the district court ended up saying was that Mr. Fajr is not delusional and he can express himself and certainly that this court could defer to the district court on those two points and I won't quarrel with those two points but the competency determination is much more diverse than simply those two things and so if the court is known for the questions that issue I was going to turn to the C plea issue the district court also aired when it sentenced Mr. Fajr because rather than ask what sentence was sufficient but not greater than necessary which is the the sentencing standard the district court in effect applied an appellate presumption of reasonfulness not to the guideline but to the C plea saying quote that the sentence was within the range of reasonfulness and while one could debate whether the sentence should be higher or lower here the parties that come to an agreement and it found no reason to find that unacceptable. He gave him the sentence he and his lawyer wanted agreed to. That's true Your Honor despite that fact though the district court still understand but that's the sentence he wanted and agreed to and gave up his get waived his right to appeal based on getting that sentence. That's all true and at the same time though the district court still has this independent obligation and that that is an important part of the process and that's part of the what Mr. Fajr bargained for part of what he bargained for was to go before the judge and have the judge decide whether not only accept the plea but to potentially give him a lower sentence. Certainly one option in the case like this is you go into court and the judge looks at the sentence says you know what I think I'm going to give you 10 years as opposed to 12 years. That's part of the process and at that point the government if that would have happened could have withdrew from the plea or it could not have and we even see that expressly in the plea as part of what Mr

. He gave him the sentence he and his lawyer wanted agreed to. That's true Your Honor despite that fact though the district court still understand but that's the sentence he wanted and agreed to and gave up his get waived his right to appeal based on getting that sentence. That's all true and at the same time though the district court still has this independent obligation and that that is an important part of the process and that's part of the what Mr. Fajr bargained for part of what he bargained for was to go before the judge and have the judge decide whether not only accept the plea but to potentially give him a lower sentence. Certainly one option in the case like this is you go into court and the judge looks at the sentence says you know what I think I'm going to give you 10 years as opposed to 12 years. That's part of the process and at that point the government if that would have happened could have withdrew from the plea or it could not have and we even see that expressly in the plea as part of what Mr. Fajr bargained for paragraph 15 of the plea sort of memorializes the fact that the district court does have independent role so while yes the parties did agree there there is another player there isn't their player there and that was a district court and respectfully I think here the district court just didn't serve its role of determining independently what sentence was sufficient but not greater than necessary. In other words you think that the district court should have gone through the 3553 factors. Absolutely yes I mean he should be well are you familiar with Freeman versus United States? I am your honor. So what do we do about that Supreme Court case? Well all that case says is that I mean that case affirms the fact that the defendant I'm sorry the district court has independent obligation to determine the sentence. It says sentencing under see agreements is different at the time of sentencing the term of imprisonment imposed pursuant to a see agreement does not involve the court's independent calculation of the guidelines or consideration of the other 3553 a factors the court may only accept or reject the agreement and if it chooses to accept its sentencing the court may only impose the term of imprisonment the agreement calls for the court may not change its terms. Now that was just a sort of my ear concurring but the concurring opinion was controlling because as you know it was a fracture for for opinion it seems to me that she directly rejects the argument that you have to consider these 3553 factors

. Fajr bargained for paragraph 15 of the plea sort of memorializes the fact that the district court does have independent role so while yes the parties did agree there there is another player there isn't their player there and that was a district court and respectfully I think here the district court just didn't serve its role of determining independently what sentence was sufficient but not greater than necessary. In other words you think that the district court should have gone through the 3553 factors. Absolutely yes I mean he should be well are you familiar with Freeman versus United States? I am your honor. So what do we do about that Supreme Court case? Well all that case says is that I mean that case affirms the fact that the defendant I'm sorry the district court has independent obligation to determine the sentence. It says sentencing under see agreements is different at the time of sentencing the term of imprisonment imposed pursuant to a see agreement does not involve the court's independent calculation of the guidelines or consideration of the other 3553 a factors the court may only accept or reject the agreement and if it chooses to accept its sentencing the court may only impose the term of imprisonment the agreement calls for the court may not change its terms. Now that was just a sort of my ear concurring but the concurring opinion was controlling because as you know it was a fracture for for opinion it seems to me that she directly rejects the argument that you have to consider these 3553 factors. Well a few things are on her first I think even in that quote it's certainly the case that the district court doesn't have to independently determine the guideline range because it's the sentence. I thought you said that you had to consider that's why it's again it has to but she says you don't consider the 3553 factors. Well I first that was the the concurring opinion but too I think what the court there was just for me it's controlling just for purposes of our argument here you can argue that it's not. Sure of course so even if that is controlling I think what the court in that case was dealing with someone fundamentally different than what's that issue here I I don't think what just a sort of more cement was that somehow see please you don't have to follow the sentencing statute at the end of the day 1835 53a says you have to determine what sentence is sufficient but not greater than necessary and that's what controls. But that's part of the that's part of the court deciding whether or not to take the seat plate. Once you've taken the seat plate you you you've essentially determined that you believe that's an appropriate sentence under the under what's been given the district court at the time of sentence

. Well a few things are on her first I think even in that quote it's certainly the case that the district court doesn't have to independently determine the guideline range because it's the sentence. I thought you said that you had to consider that's why it's again it has to but she says you don't consider the 3553 factors. Well I first that was the the concurring opinion but too I think what the court there was just for me it's controlling just for purposes of our argument here you can argue that it's not. Sure of course so even if that is controlling I think what the court in that case was dealing with someone fundamentally different than what's that issue here I I don't think what just a sort of more cement was that somehow see please you don't have to follow the sentencing statute at the end of the day 1835 53a says you have to determine what sentence is sufficient but not greater than necessary and that's what controls. But that's part of the that's part of the court deciding whether or not to take the seat plate. Once you've taken the seat plate you you you've essentially determined that you believe that's an appropriate sentence under the under what's been given the district court at the time of sentence. That's right your honor I suspect I think that's what just a sort of I was getting at the once you accept the plea certain things follow you don't then independently sentence but the predicate to accepting the seat plate it must be the case that the predicate to accepting the seat plate is first independently determining whether that sentence is sentenced you would have no I take what I read to you where she says it does not involve the court's independent calculation of the guidelines or consideration of the 3553 factors is that we regard this as a contract between the parties and the party the defendant is responsible for determining whether in fact this is consistent with 3553 and that that the court either accepts it or rejects it I mean that's what you said right out I yeah I don't know the quote in front of you I would just push back a little bit and say I think the court in that case was was thinking about a funnily different problem than than the question here and and the reason probably I say that is it I don't think it could possibly be the case that in a seat plea context the sentencing statute somehow doesn't control I mean I think at the end of the day that's that's the overarching principle and I know the the for justice plurality is clear on that point and I don't we consider the sentencing guidelines that's true but you don't consider the 3553 factors so she says I would just dispute that I think what she meant in context was different than you're saying you're on right I certainly take your point but I would just push back and say that it can't be the case that you don't consider the factors before you then accept the plea I think it is the case that once you accept the plea the judges tied his or her hands and that's the sentence you get independent of anything else but I think the predicate to all of that before you accept the seat plea is going for the factors in and only determining that yes in fact I agree this sentence is sufficient I greater than necessary if the court is no further questions I'll return to the rest of my time thank you Mr. Keller good morning John Cippell Assistant United States Attorney from the District of Maryland may it please the court the district court did not abuse its discretion in this case by not holding a competency hearing prior to Frazier's trial or guilt as it turned out guilty plea in this case as the court is aware from the record Mr. Frazier was indicted in February of 2011 he appeared for emotions hearing in December of 2011 defense counsel as Judge Cobbler noted the day the business day before trial I believe it was actually midday the business day before trial father letter raising concerns about Mr. Frazier's competency Mr. Frazier then appeared our for trial in June the 3rd of last year and as Judge Mott's noted and I think is what's important in telling in this case is there was lengthy colloquy between Judge Garbis and Mr. Frazier and his counsel that day and I'm not talking just about the the closed proceeding that I was not the government was not in attendance but during the rule 11 colloquy as well where Mr

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That's right your honor I suspect I think that's what just a sort of I was getting at the once you accept the plea certain things follow you don't then independently sentence but the predicate to accepting the seat plate it must be the case that the predicate to accepting the seat plate is first independently determining whether that sentence is sentenced you would have no I take what I read to you where she says it does not involve the court's independent calculation of the guidelines or consideration of the 3553 factors is that we regard this as a contract between the parties and the party the defendant is responsible for determining whether in fact this is consistent with 3553 and that that the court either accepts it or rejects it I mean that's what you said right out I yeah I don't know the quote in front of you I would just push back a little bit and say I think the court in that case was was thinking about a funnily different problem than than the question here and and the reason probably I say that is it I don't think it could possibly be the case that in a seat plea context the sentencing statute somehow doesn't control I mean I think at the end of the day that's that's the overarching principle and I know the the for justice plurality is clear on that point and I don't we consider the sentencing guidelines that's true but you don't consider the 3553 factors so she says I would just dispute that I think what she meant in context was different than you're saying you're on right I certainly take your point but I would just push back and say that it can't be the case that you don't consider the factors before you then accept the plea I think it is the case that once you accept the plea the judges tied his or her hands and that's the sentence you get independent of anything else but I think the predicate to all of that before you accept the seat plea is going for the factors in and only determining that yes in fact I agree this sentence is sufficient I greater than necessary if the court is no further questions I'll return to the rest of my time thank you Mr. Keller good morning John Cippell Assistant United States Attorney from the District of Maryland may it please the court the district court did not abuse its discretion in this case by not holding a competency hearing prior to Frazier's trial or guilt as it turned out guilty plea in this case as the court is aware from the record Mr. Frazier was indicted in February of 2011 he appeared for emotions hearing in December of 2011 defense counsel as Judge Cobbler noted the day the business day before trial I believe it was actually midday the business day before trial father letter raising concerns about Mr. Frazier's competency Mr. Frazier then appeared our for trial in June the 3rd of last year and as Judge Mott's noted and I think is what's important in telling in this case is there was lengthy colloquy between Judge Garbis and Mr. Frazier and his counsel that day and I'm not talking just about the the closed proceeding that I was not the government was not in attendance but during the rule 11 colloquy as well where Mr. Frazier was able to lucidly and intelligently respond to questions both by his by the court by his own counsel there's no evidence of irrational behavior before the court again he was able to communicate with the court he responded to all the court's questions during the proceeding he did not demonstrate any demeanor that would raise questions about his competency as noted by Judge Garbis the district court in this case but I also think is is telling it that we didn't court do not discuss Doreen opposing counsel's argument is that Mr. Frazier's counsel raised issues about his drug use now what I think is impressive in this case and I was I didn't know at the time I actually didn't learn the government didn't learn about this until the appellate record I was created is that Judge Garbis actually obtained medical records through the Marshall service from the detention facility to Chesapeake detention facility where Mr. Frazier was housed during the entire proceeding those medical records indicated that Mr. Frazier was not taking illicit drugs all of his your analyses were clean and then during the rule 11 college I think it does that is acting crazy but he's not taking it illegal drugs well I don't think there's evidence that he's acting crazy the only evidence that we have that he's acting crazy is from his defense lawyer and again as you noted Judge Traxler when he's in front of the court he's acting fine on that one day on that he's not acting out of line or showing irrational other than defense councils this didn't come up until the day before trial we didn't hear about this a month before trial or two months before trial and again all the proceedings where Mr. Frazier appeared before the court he appeared just fine in that case and again I think it's it's it's commendable that Judge Garbis was able to maintain medical records on such short notice on a Friday afternoon from the Marshall service on a Monday with a trial schedule Monday and those records tell us two things that he's taking his medications as prescribed for he had issues with stress and anxiety and how do we know that he's taking it it was noted I think Judge Garbis noted in the medical records that the records indicated that he was taken and under oath I mean he was being given he was being given medications and I think I don't know if he's taking it about no you're on I'm not a surprise in one he's given the medications but I I assume that based on the medical records if he goes to the medical facility and he's given his medication that he he takes his medication but we don't we don't know that you're on we don't know that you know those those things become articles of commerce and attention center it's sometimes I believe you're probably right or sometimes they do but he under again at the rule 11 colloquy under oath he told the court that he was taking his medications told the court that he hadn't taken any drugs or consumed any drugs or alcohol for one week prior to the rule 11 colloquy so I think all of those pieces collectively support the district court's decision that there is no need for a competency here in this case because what evidence it was before the court we have a defendant who is able to respond to the court's questions and is denying any drug use and is a pity that he's taking his medication as prescribed um I'm just not sure what judge garbis was supposed to do in this situation because if judge garbis would have delayed trial and said that a competency hearing would be required I can guarantee you this every defendant at the Chesapeake the Fitch of Facility would raise an issue of competency on the eve of trial in an effort to delay the trial um well but but the situation is different in that you have a pretty well established and well respected defense lawyer initiating this I I don't take any bad inference that this is on the eve of trial and I also think that it's a pretty reasonable letter and and as um your colleague mentioned in court the defense counsel seemed to feel still at the end of the hearing or whatever it was um the dialogue the initial dialogue that judge had with the defendant he stood by his contention that there was a problem now he did think there was drug misuse and the records seemed to indicate that that's not so the defendant said it wasn't so that's correct Ronner the medical records say it wasn't so the defendant said it wasn't so but I also think it's important to note that that day as well that defense counsel applying that mr. phrasier was competent when at the time that we were ready to the government was ready to proceed to trial there are some brief discussions uh defense counsel inquired with government counsel whether the plea plea offer that had been tendered from actually the initial almost the initiation of the case the indictment uh was open and government counsel said yes please still available and he decided to take the plea and he stood in front of court and answered questions under oath uh his counsel said he reviewed the plea letter with the defendant and the defendant I think the quote was asked intelligent questions about the plea and the court asked him several questions uh through the role uh typical during a rule 11 colloquy there's no sign or indication that he didn't understand what was happening or that he didn't want to enter into the plea in fact he noted on several occasions during the rule 11 colloquy that he did want to plead guilty and that the 144 month to 12 year C plea is exactly what he he wanted to do faced with very serious charges and some very steep mandatory minimum sentences had he proceeded to trial um but outside of what we discussed the really was no evidence or reasonable cause if you will for judge garbis to hold a competency hearing his his actions cannot be described as arbitrary or capricious in this case and fact I think judge garbis took it a actually took it a step above by requesting the medical records from the Marshall service from the Chesapeake Detention Facility to flush out some of these issues that were raised in defense counsel's letter so taking the uh totality of the circumstances if you will there's just no basis no reason for judge garbis to have a continuance and order a competency hearing because at that point you have a defendant who is lucid answering all the court's questions indicates that he's able to understand denying drug use the medical records indicate that he's not on any drugs um and he took a plea that had been on the table for for over maybe it was almost believed two years or maybe not quite two years a year and a half and finally decided to uh to take take the plea agreement um so outside of those facts your honors I don't think the district court acted inappropriately or arbitrarily or a capricious I think they I think judge garbis did exactly what he was supposed to do um which is switched over to the argument on the senator for sure your honor uh the plea agreement in this case and government counsel kind of was shocked at the argument because I think judge codburn noted I don't want to mean the overs oversimplify but this essentially is a is a contract when the government enters into a what we call a c plea under rule 11 c1c I believe it is it's a contract and it's an understanding that the defendant accepts the the term of imprisonment that's contained in the plea and as does the government and it's also accepted that both parties believe that sentence to be within the realm of reasonableness have you ever heard of buyers remorse yes I have your honor numerous times unfortunately as a prosecutor you hear you hear about buyers remorse on several occasions but unfortunately our buyers remorse should not be permitted to upend what is an otherwise valid plea agreement the rule 11 colloquially was proper the plea agreement was proper there's no errors or problems with the plea agreement there's no problems with the way the rule 11 colloquially and I think now judge garbis perhaps didn't go into great detail but if you look on page 75 of the joint appendix he does indicate that he's aware of the facts of the case and he discussed the different police scenarios in the different situations the different defendants and ultimately concluded that sentence is in the range of reasonableness and that's at the bottom of joint appendix page 75 was accepted to plea before he does that he really should have made that determination and then accepted that's correct right but he the overall gist is and I think as you noted in the freemium case he he did accept the plea and then he did make this finding that it was it was reasonable and again I think the I get not to oversimplify but it's a contractual agreement and just as judge tracks one of may maybe perhaps now mr

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Frazier was able to lucidly and intelligently respond to questions both by his by the court by his own counsel there's no evidence of irrational behavior before the court again he was able to communicate with the court he responded to all the court's questions during the proceeding he did not demonstrate any demeanor that would raise questions about his competency as noted by Judge Garbis the district court in this case but I also think is is telling it that we didn't court do not discuss Doreen opposing counsel's argument is that Mr. Frazier's counsel raised issues about his drug use now what I think is impressive in this case and I was I didn't know at the time I actually didn't learn the government didn't learn about this until the appellate record I was created is that Judge Garbis actually obtained medical records through the Marshall service from the detention facility to Chesapeake detention facility where Mr. Frazier was housed during the entire proceeding those medical records indicated that Mr. Frazier was not taking illicit drugs all of his your analyses were clean and then during the rule 11 college I think it does that is acting crazy but he's not taking it illegal drugs well I don't think there's evidence that he's acting crazy the only evidence that we have that he's acting crazy is from his defense lawyer and again as you noted Judge Traxler when he's in front of the court he's acting fine on that one day on that he's not acting out of line or showing irrational other than defense councils this didn't come up until the day before trial we didn't hear about this a month before trial or two months before trial and again all the proceedings where Mr. Frazier appeared before the court he appeared just fine in that case and again I think it's it's it's commendable that Judge Garbis was able to maintain medical records on such short notice on a Friday afternoon from the Marshall service on a Monday with a trial schedule Monday and those records tell us two things that he's taking his medications as prescribed for he had issues with stress and anxiety and how do we know that he's taking it it was noted I think Judge Garbis noted in the medical records that the records indicated that he was taken and under oath I mean he was being given he was being given medications and I think I don't know if he's taking it about no you're on I'm not a surprise in one he's given the medications but I I assume that based on the medical records if he goes to the medical facility and he's given his medication that he he takes his medication but we don't we don't know that you're on we don't know that you know those those things become articles of commerce and attention center it's sometimes I believe you're probably right or sometimes they do but he under again at the rule 11 colloquy under oath he told the court that he was taking his medications told the court that he hadn't taken any drugs or consumed any drugs or alcohol for one week prior to the rule 11 colloquy so I think all of those pieces collectively support the district court's decision that there is no need for a competency here in this case because what evidence it was before the court we have a defendant who is able to respond to the court's questions and is denying any drug use and is a pity that he's taking his medication as prescribed um I'm just not sure what judge garbis was supposed to do in this situation because if judge garbis would have delayed trial and said that a competency hearing would be required I can guarantee you this every defendant at the Chesapeake the Fitch of Facility would raise an issue of competency on the eve of trial in an effort to delay the trial um well but but the situation is different in that you have a pretty well established and well respected defense lawyer initiating this I I don't take any bad inference that this is on the eve of trial and I also think that it's a pretty reasonable letter and and as um your colleague mentioned in court the defense counsel seemed to feel still at the end of the hearing or whatever it was um the dialogue the initial dialogue that judge had with the defendant he stood by his contention that there was a problem now he did think there was drug misuse and the records seemed to indicate that that's not so the defendant said it wasn't so that's correct Ronner the medical records say it wasn't so the defendant said it wasn't so but I also think it's important to note that that day as well that defense counsel applying that mr. phrasier was competent when at the time that we were ready to the government was ready to proceed to trial there are some brief discussions uh defense counsel inquired with government counsel whether the plea plea offer that had been tendered from actually the initial almost the initiation of the case the indictment uh was open and government counsel said yes please still available and he decided to take the plea and he stood in front of court and answered questions under oath uh his counsel said he reviewed the plea letter with the defendant and the defendant I think the quote was asked intelligent questions about the plea and the court asked him several questions uh through the role uh typical during a rule 11 colloquy there's no sign or indication that he didn't understand what was happening or that he didn't want to enter into the plea in fact he noted on several occasions during the rule 11 colloquy that he did want to plead guilty and that the 144 month to 12 year C plea is exactly what he he wanted to do faced with very serious charges and some very steep mandatory minimum sentences had he proceeded to trial um but outside of what we discussed the really was no evidence or reasonable cause if you will for judge garbis to hold a competency hearing his his actions cannot be described as arbitrary or capricious in this case and fact I think judge garbis took it a actually took it a step above by requesting the medical records from the Marshall service from the Chesapeake Detention Facility to flush out some of these issues that were raised in defense counsel's letter so taking the uh totality of the circumstances if you will there's just no basis no reason for judge garbis to have a continuance and order a competency hearing because at that point you have a defendant who is lucid answering all the court's questions indicates that he's able to understand denying drug use the medical records indicate that he's not on any drugs um and he took a plea that had been on the table for for over maybe it was almost believed two years or maybe not quite two years a year and a half and finally decided to uh to take take the plea agreement um so outside of those facts your honors I don't think the district court acted inappropriately or arbitrarily or a capricious I think they I think judge garbis did exactly what he was supposed to do um which is switched over to the argument on the senator for sure your honor uh the plea agreement in this case and government counsel kind of was shocked at the argument because I think judge codburn noted I don't want to mean the overs oversimplify but this essentially is a is a contract when the government enters into a what we call a c plea under rule 11 c1c I believe it is it's a contract and it's an understanding that the defendant accepts the the term of imprisonment that's contained in the plea and as does the government and it's also accepted that both parties believe that sentence to be within the realm of reasonableness have you ever heard of buyers remorse yes I have your honor numerous times unfortunately as a prosecutor you hear you hear about buyers remorse on several occasions but unfortunately our buyers remorse should not be permitted to upend what is an otherwise valid plea agreement the rule 11 colloquially was proper the plea agreement was proper there's no errors or problems with the plea agreement there's no problems with the way the rule 11 colloquially and I think now judge garbis perhaps didn't go into great detail but if you look on page 75 of the joint appendix he does indicate that he's aware of the facts of the case and he discussed the different police scenarios in the different situations the different defendants and ultimately concluded that sentence is in the range of reasonableness and that's at the bottom of joint appendix page 75 was accepted to plea before he does that he really should have made that determination and then accepted that's correct right but he the overall gist is and I think as you noted in the freemium case he he did accept the plea and then he did make this finding that it was it was reasonable and again I think the I get not to oversimplify but it's a contractual agreement and just as judge tracks one of may maybe perhaps now mr. frasier's having some buyers remorse but the government should be able to rely on the cornerstone of sea pleas that if it enters in that the parties enter into a sea plea that that's the plea that's the deal and as long as the plea agreement is valid and the rule 11 colloquially is held in proper fashion that that should be the end of the story for the plea and sentencing phase of the case and that's exactly what we have here mr. frasier waived any right to appeal the sentence there's no technical or clear error involved in the plea agreement with the rule 11 colloquially so the appeal waiver that's contained in the plea agreement should be enforced so I guess the it's a taking judge tracks would only need to go back and bring back the competency but if the court deems that judge garbis did not abuse this discretion then that takes us to the plea agreement where he is waived as right to appeal on the other hand if court finds that there should be a competency hearing well obviously then there's issues as to whether the defendant was competent to even enter into the plea it just takes us backwards anyway so the government's position is that we have a valid plea valid rule 11 colloquially the defendant's competent the court determined that his plea was entered knowingly and voluntarily and because of that we have a valid plea waiver appeal waiver and the legal part of the case should end and with that so if the court doesn't have any further questions I think we understand your position all right thank you mr. Kellor just a few points are on on each of the two issues first on the competency issue I would take a I would dispute a little bit about the the the drug use issue the government seems to rely on that to say that well we don't know if he was on on drugs or not that's therefore a good fact for the government but I think it actually works the other way the the fact the matter is no one knew why mr. Frazier was acting that what he was defense counsel thought and I think based on what we know now incorrectly that it could be sourced to drug use but the fact that we don't know what was causing mr. Frazier's behavior should have required the district court to do more than what it did instead of simply saying well there's a dispute there I'll leave it alone second the government never really grapples with the fact hey manly the court did it its own personal investigation into the potential problems this your client was having by calling the jail and checking on which is unusual it's certainly unusual um and you know obviously to its credit it did that but I think that sort of shows where its focus was was not in the right place that the issue really wasn't ultimately at this early stage what was causing mr. Frazier to behave the way it was behaving instead it was given what defense counsel himself has observed what do we do with that is that enough to establish reasonable cause and here I think it was um and second I think the government's focusing a lot on uh this court and us here weighing where the we think the reasonable cost standard has been met and that is one of my arguments but I don't want to be lost and this is that independent of whether the court abuse its discretion by observing what it observed it's hiding what it decided it simply applied the wrong standard when you look at what it said it was doing it just wasn't asking the right question um it was it said that mr

. frasier's having some buyers remorse but the government should be able to rely on the cornerstone of sea pleas that if it enters in that the parties enter into a sea plea that that's the plea that's the deal and as long as the plea agreement is valid and the rule 11 colloquially is held in proper fashion that that should be the end of the story for the plea and sentencing phase of the case and that's exactly what we have here mr. frasier waived any right to appeal the sentence there's no technical or clear error involved in the plea agreement with the rule 11 colloquially so the appeal waiver that's contained in the plea agreement should be enforced so I guess the it's a taking judge tracks would only need to go back and bring back the competency but if the court deems that judge garbis did not abuse this discretion then that takes us to the plea agreement where he is waived as right to appeal on the other hand if court finds that there should be a competency hearing well obviously then there's issues as to whether the defendant was competent to even enter into the plea it just takes us backwards anyway so the government's position is that we have a valid plea valid rule 11 colloquially the defendant's competent the court determined that his plea was entered knowingly and voluntarily and because of that we have a valid plea waiver appeal waiver and the legal part of the case should end and with that so if the court doesn't have any further questions I think we understand your position all right thank you mr. Kellor just a few points are on on each of the two issues first on the competency issue I would take a I would dispute a little bit about the the the drug use issue the government seems to rely on that to say that well we don't know if he was on on drugs or not that's therefore a good fact for the government but I think it actually works the other way the the fact the matter is no one knew why mr. Frazier was acting that what he was defense counsel thought and I think based on what we know now incorrectly that it could be sourced to drug use but the fact that we don't know what was causing mr. Frazier's behavior should have required the district court to do more than what it did instead of simply saying well there's a dispute there I'll leave it alone second the government never really grapples with the fact hey manly the court did it its own personal investigation into the potential problems this your client was having by calling the jail and checking on which is unusual it's certainly unusual um and you know obviously to its credit it did that but I think that sort of shows where its focus was was not in the right place that the issue really wasn't ultimately at this early stage what was causing mr. Frazier to behave the way it was behaving instead it was given what defense counsel himself has observed what do we do with that is that enough to establish reasonable cause and here I think it was um and second I think the government's focusing a lot on uh this court and us here weighing where the we think the reasonable cost standard has been met and that is one of my arguments but I don't want to be lost and this is that independent of whether the court abuse its discretion by observing what it observed it's hiding what it decided it simply applied the wrong standard when you look at what it said it was doing it just wasn't asking the right question um it was it said that mr. Frazier wasn't delusional essentially and that he could express himself that's it it never addressed what I think is the real issue whether there's reasonable cost to believe he could assist counsel given what defense counsel himself had observed but what defense counsel had observed and it stated he'd observed recently he at least by the time that they came to the point where they were going to talk about the plea and actually take the rule 11 the same defense counsel said he was confident at that time he was in the right mind to make those decisions that he did take did he did go forward with with the with the plea so the same reporter who was saying that it something needed to be looked at says on the day that he decides he's going to plead he was he wants competent well I would disagree your honor defense counsel did say immediately before mr. Frazier told me pled that I think he's competent but I really think you have to read what defense counsel was saying in context this is the same defense counsel who'd been claiming up to that morning that mr. Frazier wasn't competent the judge tells my I hear what you're saying to me but that's not enough there's no basis and so defense counsel then operated in the shadow of that ruling so he didn't go back and say your honor I just want to reiterate that basically I said this morning I have concerns I now think he's competent instead he simply just move forward given what the court had already ruled and this is something you obviously see every day in your courtroom of you make an evidentiary objection defense counsel then acts according accordingly to that to your ruling on that objection the defense counsel isn't necessarily going to constate go back and say your honor I want to preserve what I said earlier instead you simply move forward what the court had said and here defense counsel had been told what you observed wasn't enough and so I think he acted appropriately in light of that ruling moving forward because the other reading of the record essentially is that after months of observing mr. Frazier and claiming that very morning he had concerns about mr. Frazier's competency all of a sudden he changed his mind I just don't think that's a reasonable reading of the record I think what's much more reasonable the much more reasonable reading is that he simply acted in reliance on what the district court had already told him that morning in other words you don't think there's any place in this record where defense counsel says indicates that he thinks that mr. Frazier's now competent he definitely does say he is competent I just think you have to read that saying in context of what he meant do you know where that is I've been looking for I believe it's I thought he said that too j 51 where he says I've talked to mr

. Frazier you know he's competent and so you can take that one sentence in isolation and I will certainly admit it looks looks like he's saying he's competent but I do think you have to read it reasonably in in context and I think when you read it reasonably in context what I think he's just saying is look you've already shot me down early this morning I understand that so given that you told me isn't enough he's competent you have to take him in his word much you think he's saying my gosh this police so good I got to get this lunatic this plea right now I mean what I mean that's I mean if he's being honest about it as he as you're saying that he was when he on Friday sends the letter and he believes he's competent when he takes the plea on that day he'd been lucid apparently for a long time because there was nothing to the court from the lawyer all the way up to the end then there's some episode or episodes that cause him to write the letter on Friday but then on the day that he takes that he decides he's going to enter into the plea the attorney says he's competent he can take he can do this he knows what he's doing well the the only thing I would dispute is what he meant by that and I certainly understand what you're saying your honor but I think you do have to read it in context and if if I were him I think I would have said something similar that you know I raised my concerns that was my ethical obligation and my obligation a law to say judge here are my concerns the judges telling me that those concerns do not mean your client is incompetent and so then I'm going to move forward assuming that the judges told me he's competent based on what I've described and I'm going to I'm going to speak in light of that and I think that's exactly what happened here but he says that in in the context of there's this whole dialogue about the what the plea is and in the course of it he says this is what is client always wanted they wanted to get the gun out but they were ready for the to plead to the number of years and the client pipes up yes that's right that's what I just want it I mean it's a tough record for your argument it's tough but I just want to say I'm going over my time but if I could just say one more thing I think the the other reading of the record I think doesn't get the government anywhere because if it is true that defense counsel went from the morning of the hearings saying I think my guy is not competent to by the end of the day saying I think he's competent then I I don't think that I think would be entirely arbitrary for the district court is okay well the the defense attorney now thinks he's competent I'm going to rely on that if in other words if in the morning the district court should have held a hearing because defense counsel's comments should have rated it reasonable cause it can't be the case then the district court doesn't act arbitrary when it later relies on defense counsel flip flopping positions on the same day I think if it's taking it as word in the morning and if he was acting completely irrational by end of the day saying oh I think he's competent now I don't that's enough but again I just don't think that's the most reasonable reading of the record I think defense counsel here was simply responding to what the court had told him earlier that day okay thank you mr. Galler thank you no to your court appointed we appreciate very much your undertaking representation of mr. Razer well this case will conclude the service of the judge to my left judge cogman from the western district of North Carolina spent a pleasure having the you hear we look forward to your return thank you very much I will come down I'll ask the court to join the court and then we'll come back to the past this honorable court stands adjourned it's an a die god save united states and this honorable cour