United States v. Lebron

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 95-1096



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                     JOSE LEBRON,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                   [Hon. Steven J. McAuliffe, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
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                      Coffin and Rosenn,* Senior Circuit Judges.
                                          _____________________



                                _____________________



               David  A.F.   Lewis,  by  Appointment  of   the  Court,  for
               ___________________

          appellant.

               Jean B.  Weld, Assistant  United States Attorney,  with whom
               _____________

          Paul M.  Gagnon,  United  States   Attorney,  was  on  brief  for
          _______________

          appellee.


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                                  February 14, 1996

                                 ____________________


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          *  Of the Third Circuit, sitting by designation.



ROSENN, Circuit Judge.  This appeal from a guilty  plea
                    ROSENN, Circuit Judge.
                            _____________



          and  sentence  requires  that  we  consider  the  process  due  a



          defendant  whose  behavior  may  raise questions  concerning  his



          mental competency.



                                          I.
                                          I.



                    A federal  grand jury for the District of New Hampshire



          indicted  Jos  Lebr n on ten  counts stemming from  his two armed



          robberies  of a pawnshop and a bank in Manchester, New Hampshire.



          His co-defendants,  Paul Hazen  and Frank  Jones, pled  guilty to



          possession of a firearm by a convicted felon, 18 U.S.C.   922(g).



          The  court imposed sentence and neither of them appealed.  Lebr n



          requested  counsel  under the  Criminal  Justice  Act, 18  U.S.C.



            3006A.  However, he  vehemently objected to his court-appointed



          counsel and filed several motions  with the court requesting  new



          counsel.   A magistrate  judge denied  the  motion, finding  that



          Lebr n had  not articulated  sufficient reasons.   The magistrate



          informed  Lebr n  that  he  could  either  retain  his  appointed



          counsel, or proceed pro se.  
                              ___ __



                    At  a hearing  on  Lebr n's  motion  for a  new  court-



          appointed counsel,  the district court  found no valid  reason to



          substitute  counsel.   The  court informed  Lebr n that  he could



          proceed  pro se and that  his court-appointed counsel would stand
                   ___ __



          by, and take over the case if Lebr n did not conform to courtroom



          rules.  Lebr n  lost his  temper, and his  behavior prompted  the



          marshals to handcuff  him before  the hearing ended.   The  court



          denied his  motion  for reconsideration.    Lebr n then  filed  a


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Renewed Motion for Reappointment of Counsel, in which he asserted



          that there was medication  he could take which could  "affect his



          ability to be aware of exactly what is happening around him."



                    On May 10, 1994, Lebr n represented himself during jury



          selection.  Although he  initially asked for, and was  denied, an



          interpreter,  Lebr n  was  able  to communicate  with  the  jury.



          Several  of his objections to  jury members were  granted.  After



          jury  selection, the court held  an ex parte  session with Lebr n



          and his counsel to  enable them to air the  disagreements between



          them without compromising the attorney-client privilege.  At this



          session, the judge informed Lebr n that he had done a good job in



          jury  selection, but  that  he was  "not  competent to  represent



          himself  in the sense he's  not aware of  fundamental issues that



          ought  to be raised  on his  behalf."   Lebr n concedes  that the



          district  court  meant  this   statement  to  refer  to  Lebr n's



          competence as an attorney, not to Lebr n's mental competence.  At



          the  same ex parte  session, Lebr n's counsel  informed the court



          that  Lebr n  used to  receive  prescriptions  for thorazine  (an



          antipsychotic)  and  trazodone   (an  antidepressant)  from   the



          Veteran's Administration hospital, and that he would like to take



          these drugs during the trial.



                    In  response, the  judge  alerted  the Government  that



          Lebr n had a previous psychiatric history.  He believed that this



          might  be relevant  to the  defendant's ability  to intelligently



          waive his right to counsel.  The court then held  a hearing later



          that day  to  determine the  issue  of Lebr n's  competency,  and


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whether Lebr n should  be permitted to  take his requested  drugs



          during trial.  The  court took testimony from Dr.  Nathan Sidley,



          the  prison psychiatrist.    Sidley stated  that  he had  briefly



          reviewed Lebr n's Veteran's Administration medical records, which



          revealed  a possible  diagnosis  of schizophrenia  in the  1970s.



          Sidley had attempted to  meet with Lebr n, but Lebr n  terminated



          their meeting within the  first five minutes, upon  learning that



          their  discussion would  not be  confidential.   Sidley concluded



          that, based on  these facts,  Lebr n was not  psychotic, and  was



          competent to stand trial.  He further concluded that any possible



          benefits from the  drugs Lebr n requested were  outweighed by the



          detriments  of  giving  him  massive  quantities  needed  without



          sufficient time for the drugs to build up in his bloodstream.



                    Lebr n  then testified  that  he was  using heroin  and



          Valium, and  that he had  both drugs in  his system at  the time.



          Two  days later, the district  court judge issued  an order which



          continued the trial date, permitted Lebr n's counsel to withdraw,



          and appointed Paul Twomey as new counsel for Lebr n.  



                    The next day, the Government and Twomey jointly filed a



          request  for a  psychiatric evaluation  pursuant to  18 U.S.C.   



          4241,  which  the court  granted.   The  parties agreed  that Dr.



          Albert Druktenis  should perform  the evaluation.   Druktenis met



          with  Lebr n and evaluated him  pursuant to the  court's order to



          determine  both Lebr n's sanity at  the time of  the offense, and



          his  competency  to stand  trial now.   Druktenis  concluded that



          Lebr n was not insane at the time of the offense, and that he was


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competent to stand trial.  He noted that Lebr n's personality was



          manipulative, but that he  was aware of the charges  against him,



          and  had been able to speak  intelligently, lucidly and logically



          at  court  hearings.   Druktenis  also  addressed  the  issue  of



          Lebr n's  current medications, and  noted   that they  "would not



          cloud  his  thinking in  any substantial  way  and, in  fact, are



          probably helping him by reducing anxiety and agitation."



                    After  the psychiatrist  submitted this  report, Lebr n



          withdrew his  motion to  dismiss based  on incompetency,  and the



          parties reached  a plea agreement.  Under  this agreement, Lebr n



          would plead guilty to two counts of use and carrying of a firearm



          in  violation of  18 U.S.C.    924(c),  and the  Government would



          dismiss the remaining eight counts.



                    The  court  conducted  a  change  of  plea  hearing  on



          October 3,  1994.  Before the judge entered the courtroom for the



          hearing,  Lebr n  threw   a  pitcher   of  water   at  the   case



          investigators, narrowly missing one  agent.  Soon thereafter, the



          hearing  proceeded, with  the  court stating  that it  understood



          there was "no issue at this  point with regard to the defendant's



          competence."   Both  counsel  agreed that  Lebr n was  competent.



          Defense  counsel then added that  he had come  to that conclusion



          himself  independently  after reviewing  the  psychiatric report.



          The  court then asked Lebr n  if the Government's  proffer of the



          evidence to the  charges was  correct.  At  first Lebr n  claimed



          that he  could  not remember  any  of  the events.    On  further



          questioning,  he admitted to  the conduct.   After fully advising


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Lebr n of the rights he would waive by pleading guilty, the court



          accepted the plea.



                    The  court  sentenced Lebr n  to  imprisonment  for 240



          months  on one  count and 60  months on  the other,  to be served



          consecutively, three years supervised release with a condition of



          treatment for his chemical dependency, $500 in restitution, and a



          $100 special assessment.   Lebr n  appeals, raising  as his  sole



          issue  whether the district court  denied him due  process by not



          holding  a  hearing  under 18  U.S.C.     4241  to determine  his



          competency when he changed his plea.  We affirm.



                                         II.
                                         II.



                    The  conviction of  a  criminal defendant  while he  is



          legally incompetent violates  due process.  Pate v. Robinson, 383
                                                      ____    ________



          U.S.  375, 378  (1965).    The  test  for  a  defendant's  mental



          competency to plead guilty  is the same as that  of a defendant's



          competence to stand  trial.   United States v.  Harlan, 480  F.2d
                                        _____________     ______



          515, 517 (6th Cir. 1973).  That test, as set forth by the Supreme



          Court,  is  whether  the  defendant  understands the  proceedings



          against him and  has sufficient present  ability to consult  with



          his lawyer  with a  reasonable degree of  rational understanding.



          Dusky v. United States, 362 U.S. 402 (1960).
          _____    _____________



                    To  assist courts  in  making this  test, Congress  has



          established  certain procedures.  Section 4241 of Title 18 of the



          United States  Code provides the relevant reference in matters of



          a  criminal  defendant's  competency  to stand  trial.    4241(a)



          provides in pertinent part:


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...[T]he  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.



          In  the  present case,  no such  hearing  was held  or requested.



          Lebr n, however,  asserts that the district  court had reasonable



          cause to believe  that he,  Lebr n, was suffering  from a  mental



          disease  or defect.  Therefore, he claims, the court violated his



          due  process rights by not  ordering a competency  hearing on its



          own motion.



                    By the language of the statute, a district court  judge



          has  a  duty to  order  a  competency hearing  only  if there  is



          "reasonable cause" to doubt the defendant's mental competence.  A



          district  court's findings  about the  competency of  a defendant



          after  holding  such a  hearing will  be  upheld unless  they are



          clearly erroneous.  United  States v. Collins, 949 F.2d  921, 927
                              ______________    _______



          (7th  Cir.  1991).   When  there  has  been  no hearing,  and  no



          examination of  the  defendant whatsoever,  the  appellate  court



          reviews the district court's findings comprehensively.  Id.  This
                                                                  __



          case falls in between these two standards.  



                    Although  the  trial  judge  did  not  order  a  formal



          hearing, he  carefully and painstakingly sought,  commencing with



          the  defendant's  initial  appearance before  him,  to  ascertain



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whether  there was  any  question  of  mental competency  and  to



          protect  Lebr n's due  process rights.   To  this end,  the judge



          discharged the  jury, continued the  trial and  ordered that  the



          defendant be examined  by a  psychiatrist.  Thus,  the court  had



          before  it  the  psychiatrist's   report,  as  well  as  Lebr n's



          Veteran's Administration medical records and the testimony of the



          prison psychiatrist.   In addition, defendant's  counsel also had



          concluded  that Lebr n was  mentally competent to  enter a guilty



          plea.  Because the judge had substantial facts before him when he



          made findings  as to  defendant's  competency, we  will give  his



          decision not to hold a competency hearing due deference.



                    Dr.  Druktenis, after  conducting a  two-hour interview



          with Lebr n, concluded  that Lebr n was competent to stand trial.



          If a psychiatrist has determined that a defendant is competent, a



          court  is not  required  to hold  a  further evidentiary  hearing



          absent extenuating circumstances.   See United States v. Prewitt,
                                              ___ _____________    _______



          553 F.2d  1082, 1086 (7th  Cir. 1977).   It was  well within  the



          district  court's discretion to  conclude that such circumstances



          were not present here.



                    Lebr n points to his irrational and outrageous behavior



          in the courtroom.    He claims that this  should have alerted the



          district court judge that Lebr n was incompetent to enter a plea.



          Lebr n had been  handcuffed at the April hearing.   Also, at this



          hearing,  he had  pleaded  to  be  removed  from  the  courtroom,



          stating, "I  have too much trouble  on my mind, your  Honor."  At



          the  change of plea hearing, Lebr n threw a pitcher full of water


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at  case  investigators.    Such behavior  may  be  uncontrolled,



          manipulative, or  even theatrical.   It  is not  determinative of



          competency.   Agitated or violent  courtroom antics alone  do not



          mandate a finding by the trial court of reasonable cause.  United
                                                                     ______



          States  v. Marshall,  458  F.2d  446, 450  (2d  Cir.  1972).   In
          ______     ________



          Marshall, the defendant  behaved belligerently in  the courtroom,
          ________



          shouted obscenities, and threw not only a water pitcher, but also



          a  chair in  the courtroom.    Two psychiatric  reports, however,



          disclosed that the defendant was competent, and predicted that he



          would engage in disruptive  behavior.  The Court of  Appeals held



          that the trial court was within its discretion in failing to hold



          a competency hearing.  Similarly here, two psychiatrists examined



          Lebr n and found him competent.1  



                    Lebr n  further argues  that  his  medical  record  and



          history of taking medications  should have provided the necessary



          reasonable cause.   However, past  treatment or drug  use is  not



          determinative of present competency.  United States v. Pryor, 960
                                                _____________    _____



          F.2d  1  (1st  Cir.  1992).   Lebr n's  Veteran's  Administration



          records were from  the 1970s,  twenty years ago.   Moreover,  Dr.



          Druktenis expressly addressed the issue of the medications Lebr n


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          1  Lebr n argues  that Dr. Sidley's opinion should  be discounted

          because their meeting was inadequate.  It is true that Sidley had

          little  contact with  Lebr n,  and that  his  review of  Lebr n's

          medical  records  was  cursory.    We  agree  that  Dr.  Sidley's

          testimony alone would not  have sufficient indicia of reliability

          to obviate the need for further findings.  However, Dr. Druktenis

          conducted an extended face-to-face examination of Lebr n.



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was  currently taking  and noted  that they  would not  cloud his



          thinking.



                    In  summary,  although   Lebr n  occasionally   behaved



          belligerently  and has  a medical  history showing  past possible



          mental   illness  and  past   drug  use,  these   are  more  than



          counterbalanced  by  Dr. Druktenis'  report  of Lebr n's  present



          competence, his counsel's assertion  that Lebr n was competent to



          enter the  plea,  and the  trial  court's careful  plea  colloquy



          ensuring that Lebr n understood the  charges against him, and the



          consequences  of pleading guilty to  them.  All  of these factors



          pointed  unequivocally  to  the  defendant's  mental  competency.



          There  was no  reasonable cause  for  the trial  court to  hold a



          hearing  when  all the  information  from  the psychiatrist,  the



          defense  counsel, and the judge  himself were in  agreement.  See
                                                                        ___



          id. United States v.  Pryor, 960 F.2d 1, 2  (1st Cir. 1992)(where
          ___ _____________     _____



          district court had an opportunity to observe defendant rationally



          and  vigorously  participating  in  his  defense  at  a  pretrial



          proceeding, and psychiatrist found that defendant was oriented as



          to time and place,  there was no  cause for the  court to hold  a



          further hearing, under  section 4241 despite  defendant's history



          of drug problems and psychiatric treatment).  



                    As this  court noted  in Hern ndez-Hern ndez  v. United
                                             ___________________     ______



          States,  904 F.2d 758  (1st Cir. 1990),  a ruling that  this case
          ______



          provides reasonable  cause for  a hearing  would  "come close  to



          requiring district courts to order competency hearings sua sponte



          in every case where  a defendant has some history  of psychiatric


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treatment  and, even vaguely, mentions the problem."  Id., at 760
                                                                ___



          (quoting  Figueroa-V zquez v.  United States,  718 F.2d  511, 612
                    ________________     _____________



          (1st Cir. 1983).  We decline to impose such a heavy, unnecessary,



          and costly burden on district courts.



                                         III.
                                         III.



                    We hold  that when a qualified  psychiatrist examines a



          defendant  before he enters a  plea to criminal  charges, and the



          psychiatric report and other pertinent current information reveal



          that  the  defendant  is competent  to  stand  trial,  it is  not



          reversible  error for  a  district court  to  fail or  refuse  to



          conduct  a formal  hearing under  the provisions  of 18  U.S.C.  



          4241(a).  Accordingly, the judgment of conviction and sentence is



          affirmed.
          affirmed
          ________


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