Dusky, Not “Decisional Competency,” Controls; Misallocation of the § 4241 Burden Is Harmless Absent Evidentiary Equipoise

Introduction

In United States v. Steven Michael Marks, the Eleventh Circuit affirmed a conviction following a guilty plea for enticement of a minor to produce child pornography in violation of 18 U.S.C. § 2251(a). The appeal focused not on the merits of the underlying offense but on whether the district court erred in adjudicating the defendant’s competency. Mr. Marks, who has autism spectrum disorder (ASD), claimed that the magistrate judge and district court misallocated the burden of proof in his competency hearings and that, in any event, the evidence required a finding of incompetence.

The court addressed two principal issues:

Whether the constitutional and statutory standard for competency includes “decisional competency” beyond Dusky’s rational-and-factual understanding test.
Whether placing the burden of proof on the defendant under 18 U.S.C. § 4241 was legal error requiring reversal, given the statute’s silence and conflicting precedent.

The panel (Jordan, Lagoa, Tjoflat, JJ.) affirmed. It rejected the invitation to expand the competency standard to include a separate decisional-capacity requirement and declined to resolve the circuit split on burden allocation because the record was not in evidentiary equipoise and the district court’s competency finding was not clearly erroneous. Judge Tjoflat concurred, contending that § 4241’s text makes burden allocation functionally irrelevant in all but the most unusual cases and, in any event, that a court may adjudge a defendant incompetent only if incompetence is proven by a preponderance.

Summary of the Opinion

The Eleventh Circuit held:

The governing competency standard is Dusky v. United States: whether the defendant has a rational and factual understanding of the proceedings and the present ability to consult with counsel with a reasonable degree of rational understanding. The court expressly rejected an independent “decisional competency” requirement for pleading guilty or making other litigation choices, in line with Godinez v. Moran.
The court did not decide which party bears the burden of proof under 18 U.S.C. § 4241 because the allocation would matter only if the evidence were in equipoise; here, it was not. The district court’s competency finding, resting on credibility determinations and extensive expert testimony, was not clearly erroneous.
Accordingly, any potential error in assigning the burden to Mr. Marks was harmless, and the conviction was affirmed.

Factual and Procedural Background

Mr. Marks was indicted in 2017 on multiple counts including enticement of minors to produce sexually explicit images, as well as receipt and possession of child pornography. Both parties initially sought a competency evaluation, citing Mr. Marks’ developmental history and autism.

Two competency proceedings followed:

2019 hearing: Experts agreed Mr. Marks is autistic. The court-appointed forensic psychologist (Dr. Randy Otto) found him competent; defense experts (Dr. Lynda Geller, psychologist, and Dr. Jeffrey Danziger, forensic psychiatrist) opined he was incompetent. The magistrate judge recommended a finding of incompetency. The district court disagreed and found Mr. Marks competent.
2021 hearing: After Mr. Marks moved for a second competency hearing (post-plea agreement but pre-plea colloquy), additional experts testified. The Bureau of Prisons’ forensic psychologist (Dr. Ashley Jenkins) found him competent after an extensive, multi-session evaluation; defense experts (Gretchen Bennett, speech-language pathologist, and Dr. Rosa Negrón-Muñoz, forensic psychiatrist) opined incompetency, and a lay witness (Dr. Angela Baird-Hepworth) described Mr. Marks’ functional limitations in a residential setting. This time, the magistrate judge recommended a finding of competency, and the district court adopted that recommendation.

The district court accepted Mr. Marks’ guilty plea to one count under § 2251(a) and imposed a 156-month sentence with 10 years’ supervised release. On appeal, Mr. Marks challenged the competency rulings, arguing misallocation of the burden of proof and substantive error under what he called a “decisional competency” standard.

Analysis

Precedents Cited and Their Influence

Dusky v. United States (1960) and Drope v. Missouri (1975): These cases establish the constitutional baseline: competency requires a rational and factual understanding of the proceedings and the present ability to consult with counsel. The panel applied Dusky as the controlling standard.
Godinez v. Moran (1993): The Supreme Court held the competency required to plead guilty or waive counsel is the same Dusky standard applicable to standing trial. The Eleventh Circuit relied on Godinez to reject a higher “decisional competency” threshold.
Indiana v. Edwards (2008): Reaffirmed that competency doctrine centers on the ability to consult with counsel and assist in defense; the Court allowed states to insist on counsel for defendants competent to stand trial but not to represent themselves, without altering Dusky’s baseline. The panel cites Edwards to underscore the governing framework.
Rees v. Peyton (1966): Articulated a decisional-capacity-like standard in the narrow context of waiving further review in a capital habeas case. The panel correctly confined Rees to that context, distinguishing it from trial-competency evaluations under Dusky.
Medina v. California (1992) and Cooper v. Oklahoma (1996): Medina upheld a state rule placing the burden to prove incompetence on the defendant by a preponderance; Cooper struck down a clear-and-convincing standard as violating due process. The panel used these decisions to frame why the burden-allocation question is not constitutionally predetermined and why equipoise matters to whether the allocation affects outcomes.
United States v. Makris (5th Cir. 1976): A former Fifth Circuit case (binding in the Eleventh Circuit pre-October 1981) placing the burden on the government under the predecessor statute, § 4244. The panel recognized Makris but noted the statutory landscape changed in 1984 (IDRA), and later Eleventh Circuit cases narrowed Makris’ force.
United States v. Izquierdo (11th Cir. 2006) and United States v. Bradley (11th Cir. 2011): Izquierdo suggested the movant may bear the burden (and ultimately placed it on a defendant seeking to withdraw a plea for incompetency), while Bradley (in dicta) echoed the idea that a petitioner claiming incompetency bears the burden by a preponderance. The panel read these cases as not resolving the global burden question under § 4241 and declined to do so here.
Standard-of-review authorities: The court emphasized deferential clear-error review for competency findings (e.g., United States v. Saingerard). It cited Anderson v. City of Bessemer City for the principle that when a trial court chooses among plausible, internally consistent expert accounts, clear error is rarely found. It also referenced general authorities (Goldman Sachs; Schaffer) on why burden allocation matters only when evidence is in equipoise.
Circuit split on burden allocation under § 4241:
- Defendant bears burden: Fourth (Robinson), Eighth (Washington).
- Government bears burden: Third (Velasquez), Fifth (Pervis), Ninth (Hoskie).
- Seventh Circuit has conflicting cases (Morgano vs. Teague); Second (Nichols) and Sixth (Dubrule) have left the question open.
The panel cataloged this division but found it unnecessary to choose sides because the evidence here was not balanced.

Legal Reasoning

The court’s reasoning proceeds in two tracks: the governing standard for competency and the effect (if any) of burden allocation under § 4241.

Governing standard: The panel reaffirmed that Dusky sets the constitutional benchmark and that Godinez forecloses any additional, higher “decisional competency” test for pleading guilty or making litigation decisions. The competency inquiry is “narrow”: a defendant need not perfectly navigate legal strategy, foresee every consequence, or act in his own best interests; he must be able to understand the nature and consequences of proceedings and assist counsel with a reasonable degree of rational understanding.
Burden allocation and equipoise: Although § 4241(d) specifies a preponderance standard for finding incompetence, it does not assign the burden. Rather than resolve the split, the court emphasized a pragmatic rule derived from Cooper and general burden principles: the assignment of burdens “has bite” only if the evidence is in equipoise. Because the record in Marks was not balanced, any misallocation was harmless.
Clear-error review of the record: The district court presided over two extensive competency records (2019 and 2021), each featuring multiple experts with deep, conflicting opinions. The magistrate judge and district court ultimately credited the government’s BOP psychologist, Dr. Jenkins, and the court-appointed forensic psychologist, Dr. Otto, over defense experts. The panel emphasized that appellate courts do not reweigh expert credibility and that acceptance of one plausible expert narrative over another is almost never clearly erroneous, especially where corroborated by broader record evidence (e.g., interview transcripts, assessments, observed functioning).
Why the evidence was not in equipoise: Even though both sides fielded multiple qualified experts, the panel underscored that “equal number” does not equal “equipoise.” The magistrate judge’s 2021 determination—after more data, more time, and targeted education attempts—that the evidence “conclusively establishes” present competence reinforced that the scales had tipped. The district court likewise found Mr. Marks understood the proceedings sufficiently and could consult with counsel, review case materials, and make informed choices, even if he processed information atypically due to ASD.

The Concurrence (Tjoflat, J.): Burden Allocation Is a Red Herring Under § 4241

Judge Tjoflat concurred to argue more broadly that competency hearings under § 4241 do not need burden assignments at all, for three reasons:

Textual focus on what, not who: Section 4241(d) authorizes suspension and hospitalization only if the court “finds by a preponderance” that the defendant is incompetent. This frames the inquiry as a judicial duty, not a party’s burden. If the court cannot find incompetence by a preponderance (including when the evidence is exactly balanced), the defendant must be adjudged competent.
Systemic design and production of evidence: The statute charges the court with ordering and supervising the forensic evaluation (§ 4247), ensuring that sufficient evidence is developed without making parties shoulder a production burden in an adversarial posture. Either party may move; the court also must act sua sponte when it has reasonable cause.
Doctrinal clarity about “burden of persuasion” vs. “burden of production”: The concurrence explains these distinct concepts and concludes that neither should change outcomes in § 4241 hearings. In particular, some circuits’ rule placing on the government a burden to prove competence misreads § 4241(d)’s preponderance requirement, which speaks in terms of proving incompetence.

The concurrence thus offers a bright-line implication: in rare true ties, competency must be found because incompetence has not been proven by a preponderance.

Impact

Reaffirmation of the Dusky-Godinez baseline in the Eleventh Circuit: Litigants in this circuit cannot demand a separate “decisional competency” showing as a constitutional prerequisite to pleading guilty or making other core decisions. Counsel should target evidence to Dusky’s prongs: rational/factual understanding and ability to consult/assist counsel.
Burden allocation remains open—but often immaterial: The Eleventh Circuit preserves the question whether § 4241 places the burden on the defendant, the government, or the movant. Practically, however, this decision signals that reversal will be rare absent a truly balanced record. Parties should therefore develop a record that clearly tips the scale; banking on a favorable burden allocation is a poor strategy.
Weight of BOP and court-ordered evaluations: The court’s deference to the district judge’s credibility determinations, including reliance on a lengthy, methodologically detailed BOP evaluation, indicates that well-documented, longitudinal assessments will carry significant weight.
Appellate posture and deference: The clear-error standard, coupled with Anderson’s instruction not to second-guess plausible credibility calls, makes competency findings hard to overturn. Counsel seeking reversal must identify more than a clash of experts; they must show a definite and firm conviction of mistake.
Potential future developments: The circuit split on burden allocation persists. The concurrence’s textual analysis may influence district courts within the Eleventh Circuit and provide a roadmap for future panels (or en banc review). Supreme Court intervention remains possible, though this case’s avoidance posture makes it an unlikely vehicle.
Practical defense implications for neurodivergent defendants: Diagnoses such as ASD, learning disorders, or anxiety do not equate to incompetence. Effective defense presentations will tie specific functional impairments to the Dusky elements—e.g., demonstrate how language processing or executive-function deficits concretely prevent rational understanding or the ability to consult with counsel, rather than focusing on general decisional difficulties or the wisdom of choices.

Complex Concepts Simplified

Dusky competency: Can the defendant understand what’s happening in court and work with their lawyer in a reasonably rational way?
“Decisional competency” (as argued by the defendant): A proposed higher bar requiring the defendant to rationally make specific litigation choices (e.g., accept a plea). The Eleventh Circuit says no separate requirement exists under the Constitution for pleading guilty; Dusky suffices.
Preponderance of the evidence: More likely than not. If the evidence is perfectly balanced, the side with the burden of persuasion loses.
Equipoise: A tie in the evidence—both sides equally strong. Only in this rare situation does “who bears the burden” typically decide the outcome.
Burden of production vs. burden of persuasion:
- Production: Who must put forward enough evidence so the court can decide an issue?
- Persuasion: Who must convince the court to a specified standard (here, preponderance)?
Clear error review: A highly deferential appellate standard. The appellate court will not overturn the trial court’s fact findings unless left with a firm conviction a mistake occurred, especially where the trial court chose between plausible, internally consistent expert accounts.

Conclusion

United States v. Marks cements two practical points in Eleventh Circuit competency jurisprudence. First, Dusky and Godinez control: courts assess whether the defendant presently understands the proceedings and can rationally assist counsel; there is no freestanding “decisional competency” requirement for pleading guilty. Second, while § 4241 is silent on who bears the burden of proof, that question seldom matters on appeal unless the evidence is in true equipoise. Here, the district court’s competency finding rested on extensive, coherent expert testimony and was not clearly erroneous.

The concurrence goes further, asserting that § 4241(d)’s text makes burdens largely beside the point and that—in the rare case of a tie—the statute itself compels a competency finding because incompetence has not been established by a preponderance. Whether or not future panels adopt that view explicitly, the operational takeaway for litigants is clear: build a robust, well-documented record that squarely addresses Dusky’s elements. Labels and diagnoses are insufficient; what matters is how, functionally, any mental disease or defect bears on the defendant’s rational understanding and ability to work with counsel.

Key Takeaways

Dusky remains the constitutional standard; no separate “decisional competency” requirement for guilty pleas in federal court.
Section 4241’s burden allocation remains unresolved in the Eleventh Circuit, but misallocation is harmless unless the evidence is in equipoise.
Competency findings are reviewed for clear error; credibility determinations among qualified experts will rarely be disturbed.
To challenge or defend competency effectively, present granular, function-focused evidence showing whether the defendant can rationally understand proceedings and assist counsel now.