Louis Joseph Marion Marvin Ives appeals his conviction for murder on an Indian reservation in violation of 18 U.S.C. §§ 1111 and 1153. We reverse.

* Ives' appeal is before us for the third time. We first affirmed his conviction in United States v. Ives, 504 F.2d 935 (9th Cir. 1974) (Ives I). The Supreme Court granted certiorari, 421 U.S. 944, 95 S. Ct. 1671, 44 L. Ed. 2d 97 (1975), and vacated and remanded to us for further consideration in light of Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). In United States v. Ives, 547 F.2d 1100 (9th Cir. 1976) (Ives II ), cert. denied, 429 U.S. 1103, 97 S. Ct. 1130, 51 L. Ed. 2d 554 (1977), this Court reinstated parts I, III and IV of its original decision, vacated part II and remanded to the district court for further proceedings pertaining to the competency issues contained in part II in light of both Drope and de Kaplany v. Enomoto, 540 F.2d 975 (9th Cir. 1976) (en banc), cert. denied, 429 U.S. 1075, 97 S. Ct. 815, 50 L. Ed. 2d 793 (1977).

The district court, in an unpublished memorandum opinion dated August 2, 1977, held that at the time of trial no genuine or bona fide doubt was raised as to Ives' competency and therefore no evidentiary hearing was required. This decision, rendered by a new judge following the death of the original trial judge, was based on a review of trial records and files.

The facts relating to the issue of Ives' competency to stand trial, listed chronologically, are as follows:

March 29, 1971: Ives is indicted for first degree murder.

September 7, 1971: Following a court-ordered examination pursuant to 18 U.S.C. § 4244, Ives is found incompetent to stand trial and committed to the Federal Correction Center at Springfield, Missouri.

January 27, 1972: Following a hearing, Ives is determined to be competent.

February 23, 1972: First trial begins.

March 1, 1972: Mistrial is declared; after a hearing, Ives is judged incompetent and recommitted to Springfield.

August 10, 1972: District court finds Ives competent to stand trial on prosecutor's ex parte application based on certification by Springfield psychiatric staff in June 1972.

November 6, 1972: Second jury trial begins.

November 15, 1972: Ives' counsel moves for psychiatric examination pursuant to § 4244, offering the testimony of two psychiatrists; motion is denied.

A guilty verdict was returned on November 17, 1972. We reverse for failure to permit testimony on the issue of Ives' competency during the second trial.1

Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975), held that the trial court is responsible for insuring that a defendant is not subjected to trial if his mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in the preparation of his defense. This responsibility continues throughout the trial. Thus, "(e)ven when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change" in his competency. Id. at 181, 95 S.Ct. at 908. Further inquiry is required whenever there is information available to the court which raises sufficient doubt regarding a defendant's competency to stand trial. Id. Drope does not strictly delimit the kind or quantum of evidence necessitating a hearing; rather, "sufficient doubt" may be predicated on any relevant evidence, including evidence of a defendant's irrational behavior, his demeanor at trial, or medical opinion, either taken alone or considered together. Id. at 180, 95 S. Ct. 896.

In de Kaplany v. Enomoto, 540 F.2d 975, 977-85 (9th Cir. 1976) (en banc), cert. denied, 429 U.S. 1075, 97 S. Ct. 815, 50 L. Ed. 2d 793 (1977), the nature of evidence which may raise "sufficient doubt" was further considered. We held that a hearing is required sua sponte whenever the trial judge doubts the defendant's competency to stand trial based on the evaluation of all available pertinent evidence. de Kaplany stressed comprehensive evaluation of all such information. Thus, a defendant's bizarre actions or statements, or counsel's statement that the defendant is incapable of cooperating in his own defense, or even psychiatric testimony need not alone raise sufficient doubt.

Both Drope and de Kaplany involved state court proceedings where the failure of the trial judge to grant a hearing in light of the available evidence was challenged as violative of the defendant's due process rights. In the present case, the question of Ives' competency to stand trial was raised by motions made pursuant to 18 U.S.C. § 4244.2

Under the decisions of this Circuit, an initial § 4244 motion gives the moving party a right to a mandatory psychiatric examination of the defendant. It is not within the discretion of the trial court to deny the examination on the ground that there is no reasonable cause to believe the defendant incompetent. Meador v. United States, 332 F.2d 935, 937-38 (9th Cir. 1964). But the trial court may in its discretion refuse to order a psychiatric examination or to hold a hearing on a subsequent § 4244 motion. United States v. Cook, 418 F.2d 321, 324 (9th Cir. 1969).

Drope did not invalidate Cook. United States v. Bodey, 547 F.2d 1383, 1386-87 (9th Cir.), cert. denied, 431 U.S. 932, 97 S. Ct. 2639, 53 L. Ed. 2d 249 (1977). In the context of a second § 4244 motion, Drope and de Kaplany elucidate the approach to be followed by a federal trial judge in dealing with the question of a defendant's present competency thus raised. Counsel's belief that the defendant is incapable of cooperating in his own defense, as demonstrated by the motion itself, and the offer of competent proof thereof, are factors which the trial judge must evaluate in determining whether there is sufficient doubt to require a hearing. But pursuant to Cook, the decision to hold an evidentiary hearing on a subsequent § 4244 motion rests in the sound discretion of the trial judge. Absent abuse of that discretion, the determination will not be overturned. Bodey, 547 F.2d at 1387; Cook, 418 F.2d at 324.3

Applying the principles enunciated above to the facts of this case, we conclude that the trial court abused its discretion in denying appellant's motion for a subsequent § 4244 psychiatric examination without permitting the proffered testimony of two psychiatrists and a deputy U.S. marshal.4 The refusal to accept this evidence under the particular circumstances of this case was clearly outside the standards set by Drope and de Kaplany, which require evaluation of all available pertinent information as a basis for establishing whether doubt of the defendant's competency is sufficient to warrant a hearing.

The trial court's refusal to consider evidence of a possible change in Ives' ability to stand trial during the five months since his last psychiatric examination, when there had been four alternating determinations of competency and incompetency in less than a year, amounted to a violation of his due process rights. At the time the § 4244 motion was made, eight months had elapsed since Ives' first trial ended upon a finding that he was incompetent, and five months had elapsed since he was found competent by Government psychiatrists. New evidence of incompetency offered by counsel should at least have been considered. While a trial judge has discretion to deny a subsequent § 4244 motion because there is not sufficient doubt based on all available pertinent evidence, given the frequent fluctuations in Ives' competency to stand trial, the court's refusal to consider evidence of another possible change constituted an abuse of that discretion.

The trial court's failure to receive the proffered testimony cannot now be redressed by a new hearing on the issue of Ives' competency in 1972. There has been a six-year lapse since trial. The judges in both of Ives' previous trials are dead. In addition, there is no psychiatric evidence of Ives' competency in November 1972; he was determined competent at that time based on a June 1972 report, and the testimony of the psychiatrists at trial was aimed at establishing sanity at the time the offense was committed. The circumstances surrounding the case do not permit a fair retrospective determination of the defendant's competency at the time of trial. See Drope v. Missouri, 420 U.S. at 183, 95 S. Ct. 896; de Kaplany v. Enomoto, 540 F.2d at 986 n.11. Hence, Ives is entitled to a new trial.

REVERSED.