United States v. Murray Bowman Brown, United States of America v. Murray Bowman Brown, A/K/A Bowman Brown, (Two Cases)

821 F.2d 986

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 24, 1987
• Docket: 85-5561(L), 86-5595 and 86-5637
• Status: Published

Opinions

WILKINSON, Circuit Judge:

Murray Bowman Brown was charged with drug smuggling and tax evasion. A trial was scheduled for January of 1985. Brown entered the hospital shortly before the trial date and was therefore granted a continuance. After granting further continuances, the district court held a hearing in November on Brown’s ability to stand trial. The district court concluded that Brown was healthy enough to stand trial and participate in his defense. In June of 1986, after receiving more continuances, Brown entered a conditional guilty plea, reserving the right to appeal the issue of his ability to stand trial. In August, Brown was sentenced.

Brown contends on appeal that the district court erred in denying him an additional continuance on account of his health and that the district court denied him the right to allocution at his sentencing. Finding no merit in these contentions, we affirm.

I.

Following the continuance of his first trial date in January of 1985, Brown entered the United States Medical Center in Springfield, Missouri, for a thirty day examination. Brown’s examination took place from late July until late August. The doctors who examined him concluded that, although Brown was an overweight man in his sixties who suffered from a number of ailments, his physical and mental condition were good enough for him to stand trial.

The district court scheduled a hearing on Brown’s health for September 27. Brown requested and was granted a postponement of the hearing on the ground that his attorney needed additional time to review the Center’s report and to consult with local physicians.

The hearing took place on November 1. Five doctors from the Center testified. The district court also had before it extensive medical reports from the defendant and the prosecution. After hearing the testimony and reviewing the medical records, the court determined that Brown suffered from high blood pressure and had previously suffered a number of small strokes, but that these conditions would not prevent him from participating in his trial. The court noted that Brown’s health improved markedly in the controlled setting of the Center, where his diet and medication were supervised. The court also noted evidence that Brown had exaggerated his mental problems.

A second trial date of January 6, 1986 was set for Brown. Some of his codefendants were to be tried on the same date. He moved for a severance based on antagonistic defenses. This motion was granted; the trial of his codefendants proceeded.

Another trial date was set for March 10. Brown again moved for a continuance due to ill health. The district court granted this motion, ordering Brown to submit weekly medical reports. On May 21, the court held another hearing on Brown’s condition. Brown was found capable of standing trial and a trial date was set for June 2. The district court stated that it would accept further medical reports up to and including the date of the trial. Also, the court told Brown’s attorney that it would attempt to protect Brown’s health from the stress of the trial:

Now, I would advise you, Mr. Hammer, that you should ... coordinate it with the U.S. attorney’s office and with my office, if it’s necessary ... to have Mr. Brown’s doctor available.

If you feel that any special limitations are in order to the length of time we would run every day, breaks that we should take, et cetera, I will be glad to hear from you concerning that. I will do everything within my power to make this trial as uneventful physically, emotionally, and from a stress standpoint on Mr. Brown as is humanly possible.

On June 2, Brown entered a conditional plea of guilty pursuant to Fed.R.Crim.P. 11(a)(2). He pled guilty to importing 35,-000 pounds of marijuana, conspiring to import marijuana, and evading income taxes. He reserved the right to argue on appeal that he was not healthy enough to participate in a trial.

Brown was given a ten year prison term and a ten year term of special parole and was fined $40,000. The court imposed the prison term under 18 U.S.C. § 4205(b)(2) so that the U.S. Parole Commission could grant him parole at any time.

II.

Brown argues that the district court erred in refusing to grant another continuance beyond the June 2 trial date. A district court’s decision to deny a motion for a continuance can be reversed on appeal only for an abuse of discretion. Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616-17, 75 L.Ed.2d 610 (1983); Latham v. Crofters, Inc., 492 F.2d 913, 915 (4th Cir.1974). See also Bernstein v. Travia, 495 F.2d 1180, 1182 (2d Cir.1974); United States v. Costello, 760 F.2d 1123, 1129 (11th Cir.1985). We do not review the medical information before the district court de novo; instead, we look to see whether the district court had sufficient evidence before it to support its decision. We hold that the district court did not abuse its discretion in denying the continuance in this case.¹

Whether a defendant’s physical condition requires a continuance can be difficult for a trial judge to determine. Medical forecasts are uncertain, and the evidence before the judge will rarely point in just one direction. The judge must assess the degree to which a defendant’s health might impair his participation in his defense, especially his right to be present at trial, to testify on his own behalf, and to confront adverse witnesses. If the judge determines that the proceeding is likely to worsen the defendant’s condition, that too is relevant. Among the factors that the trial judge may properly consider are the medical evidence, the defendant’s activities in the courtroom and outside of it, the steps the court can take to reduce the medical risks, and the steps that defendant himself is or is not taking to improve his condition. See, e.g., United States v. Goldstein, 633 F.Supp. 424, 427 (S.D.Fla.1986).

A trial, however, will often produce anxiety on the part of those involved, not least on the defendant himself. For a denial of a continuance to constitute an abuse of discretion, the medical repercussions must be serious and out of the ordinary; the impending trial must pose a substantial danger to a defendant’s life or health. Latham, supra; see also United States v. Daly, 716 F.2d 1499, 1511 (9th Cir.1983). The fact that the event is by its nature ordealistic cannot abrogate the public interest in bringing those accused of criminal misconduct promptly to account.

More than sufficient evidence supported the conclusion that Brown was capable of standing trial.² The court had before it the reports of the personnel at the U.S. Medical Center in Springfield, where Brown had been observed for thirty days. The court also heard testimony for a full day from doctors at the Center who were familiar with Brown’s condition through medical reports and in some instances through personal observation. Dr. Richard Joseph D’Andrea, a psychologist at the Center, stated that Brown had exaggerated his emotional instability and that he was competent to go to trial and assist his counsel. Dr. Donald R. Butts, a psychiatrist, stated the same conclusion; “there was no strong evidence at all that he was impaired with an organic brain disease such as senility, Alzheimer’s, post-stroke, anything of that nature.” Dr. D’Andrea and Dr. Butts testified that they based their conclusions on observation and clinical testing. Dr. Donald Milton Lieberwitz, an osteopath, stated that Brown’s blood pressure readings were “in a very good range” for a man of his weight. Dr. Karl Albaeck, a neurosurgeon, stated that Brown’s tests indicated no organic brain damage.

Brown submitted material from other physicians who stated that he should not stand trial. These physicians stated that the stress of a trial would aggravate Brown’s hypertension, diabetes, and heart disease to a dangerous extent; they also stated that Brown lacked the ability to concentrate on trial proceedings sufficiently to comprehend them. The court put greater weight on the Medical Center information than on these reports because the Medical Center had observed Brown “during the course of [a] prolonged structured treatment of the Defendant.” A report from one of Brown’s physicians (Dr. Fisher) was termed “rather cursory”; a report from another of his physicians (Dr. Gross-man) was termed “the most tentative report this Court has ever seen.”

In addition to information presented by numerous doctors, the court also referred to its own observation of Brown at various pretrial proceedings. It was entirely proper, of course, for the court to consider its observations of the defendant’s activity and alertness in ascertaining his physical and mental capabilities. United States v. Silverthorne, 430 F.2d 675, 677 (9th Cir.1970). The court stated that Brown had displayed a clear understanding of the nature of the charges contained in the indictment, that Brown and his counsel had frequently conferred during pretrial proceedings, and that the court had witnessed nothing to suggest that he would be “unable to properly and adequately assist his lawyers in the defense of this case.”

Finally, as noted earlier, the court told defense counsel that it would take whatever measures necessary to protect Brown’s health at trial, such as having a physician present and scheduling breaks. The availability of such measures is an important consideration in determining whether a trial would impair defendant’s health or impair his ability to participate in his defense. Bernstein, supra; Goldstein, supra; United States v. Mosley, 500 F.Supp. 601, 605 (N.D.N.Y.1980).

The facts of this case illustrate perfectly the basis of appellate deference to trial judges in determining whether to grant a continuance on grounds of physical or emotional distress. Conflicting medical evidence, including live testimony, was presented for the trial judge to resolve. The trial judge listened to the doctors and considered his perceptions of the defendant in the courtroom. He monitored defendant’s medical condition on a regular basis until the time of trial. He possessed the critical first-hand impressions that we lack. Cf. Anderson v. City of Bessemer, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

Other circuits have deferred to the findings of trial courts in circumstances where the defendant’s health was impaired to a far greater extent than Brown alleges his is. In Costello, supra, the appellate court upheld the trial court’s refusal to continue a sentencing hearing, even though the defendant had attempted suicide that morning and had been treated with Valium and was acting as his own counsel. In Bernstein, supra, the appellate court upheld the trial court’s refusal to continue a trial of a defendant whose previous myocardial infarction and present symptoms of angina pectoris made him especially vulnerable to a heart attack. Without expressing an opinion as to how we would rule in such cases, we think it helpful as a matter of perspective to note that Brown’s situation is less serious.

III.

The district judge had to weigh in this case the conflicting testimony of various physicians, as well as his own observations. Where a district judge must weigh such conflicting evidence in deciding a motion for a continuance, we think it would be extremely unwise to attempt to prescribe specific evidentiary rules for the judge to follow. In particular, we reject the various rules suggested by the dissent in this case.

The dissent faults the district judge for placing insufficient weight on the testimony of Brown’s personal physician. On the contrary, a district judge’s discretion in these matters properly includes the power to discount such testimony. He might find a treating physician’s testimony unpersuasive because he lacks confidence in the physician’s qualifications or abilities. The trial judge must also weigh, implicitly or explicitly, a treating physician’s candor and objectivity. These are classic credibility questions which the district court is better able to resolve than the dissent.³

The dissent cites decisions in which we found inadequate weight was given to a treating physician’s testimony. Those decisions involved the weighing of evidence by administrative law judges in cases involving disability benefits. Even at the administrative level, a treating physician’s conclusions are not dispositive. 20 C.F.R. § 404.1527. In any event, rules developed by appellate courts in limiting the discretion of administrative law judges and administrative agencies — rules motivated in part by concerns about agency independence and bias — have little or no relevance to the exercise of discretion by a district court. See J. Mashaw, Bureaucratic Justice 41-44 (1983); Note, Administrative Law Judges, Performance Evaluation, and Productions Standards: Judicial Independence Versus Employee Accountability, 54 Geo.Wash.L.Rev. 591, 617-18 (1986).

After criticizing the district judge for giving too little weight to the testimony of Brown’s physicians, the dissent criticizes the judge for giving too much weight to the thirty-day examination in Springfield and to his own observations. It is true, as the dissent points out, that the Springfield examination addresses Brown’s condition as of August 1985, not as of the date of the last competency hearing or the scheduled trial date. This does not mean the judge had to disregard it, however. The judge was informed that Brown had suffered from the same health problems in varying degrees since the 1970’s. Moreover, a considerable delay will almost always occur between a physical examination and a court appearance. This is especially true where, as here, the defendant himself has sought and received postponements after the physical examination.

The dissent’s implication that the thirty-day examination in Springfield was limited to Brown’s mental status is simply incorrect. The record shows that the examination and the subsequent testimony of the Springfield doctors covered Brown’s physical status as well. According to the final report concerning his examination, Brown “had a History and Physical, a chemistry panel, a serology, a complete blood count, complete urinalysis, and a chest X-ray. He also had several brain scan evaluations, CT scan of the abdomen, electrocardiograms and EEG.” Dr. Lieberwitz of the Springfield staff prepared a thorough report on Brown’s physical health.

That report and the subsequent testimony of the Springfield doctors presented the district court with a detailed picture of Brown’s health. Of course, while the dissent calls for scrutiny of how much the Springfield doctors investigated Brown’s physical condition and whether Brown’s ailments came within their particular specialties, it declines to apply any such scrutiny to the doctors testifying on behalf of Brown. The dissent’s eagerness to discredit Brown’s evaluation at the Springfield Center on any imaginable basis (too controlled, too specialized, too out-of-date, and so forth) undercuts a procedure whose thoroughness is to be commended, not condemned.

Finally, as to the judge’s reliance on his own observations of Brown, the dissent correctly notes that Brown was absent from the hearing on November 1, 1985. Brown was present before the same judge, however, at numerous earlier proceedings. Brown was also present at the January 6, 1986 hearing. The record does not disclose whether he was present at the May 21, 1986 hearing. In any event, the decision of the trial judge was amply supported by the evidence.

IY.

Brown also argues that he was denied his right of allocution under Fed.R. Crim.P. 32(a)(1) — that is, his right to present information on his own behalf at sentencing — because the trial judge stated that he had already made up his mind about the extent of Brown’s role in the drug smuggling conspiracy. We hold that the judge complied with the rule.

Fed.R.Crim.P. 32(a)(1)(B) requires the judge, before imposing sentence, to “afford counsel an opportunity to speak on behalf of the defendant.” Fed.R.Crim.P. 32(a)(1)(C) requires the judge to “address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.” The judge did both.

When Brown’s attorney was asked to speak, he objected to a number of passages in the presentence report that he felt exaggerated Brown’s role in the drug conspiracy. The judge ordered that these objections be noted in the report. The judge then added that he agreed with the facts presented in the report by the probation officer. During a colloquy between the judge and defense counsel regarding Brown’s role, the judge explained that he had made up his mind based on Brown’s plea and on two criminal trials involving other defendants in the conspiracy.

The judge then invited Brown to offer information on his behalf. The judge continued to make clear, however, that he concurred with the facts presented in the report:

[Hjaving sat through two trials in this matter, having taken numerous pleas, having heard of your involvement to everything from recruiting police officers to going to Alabama to buy a shrimping vessel to be used in this operation, I just find it unworthy of belief to conclude that your role in this thing was as minimal as you and/or your counsel would have me believe.

The judge was well informed on the nature of Brown’s criminal involvement. The requirements of Fed.R.Crim.P. 32(a)(1)(B) and 32(a)(1)(C) were fully discharged when the judge invited the defendant and his attorney to present any information they wanted on the defendant’s behalf. Fed.R. Crim.P. 32 does not require the judge to agree with what they said.

The judgment of the district court is therefore

AFFIRMED.

1 . We do not accept the government’s contention that Brown has waived his right to appeal this issue.

2 . This case therefore differs from Latham, supra, in which we reversed a denial of a continuance where all the evidence supported the likelihood that a trial would severely threaten the defendant’s health.

Latham was a civil case rather than a criminal case. The opinion indicated that a criminal case allows "more chance for a defendant to assert that the denial of a continuance violates a constitutional right than in a civil case.” We also made clear, however, that our precedents governing continuances in criminal cases "set forth the same basic rules of discretion in the district court as is applicable in civil litigation.” 492 F.2d at 914 n. 2.

3 . The dissent also contends that the district judge believed he was obligated to try Brown no matter how severe his health problems. This contention is as unsupportable as it is implausible. The record plainly shows that the district judge understood the question before him— whether Brown was mentally and physically able to stand trial — and understood that if Brown could not stand trial a further continuance would be necessary. For example, in the following colloquy with defense counsel, the judge acknowledged that Brown might never go to trial if his health were bad enough:

The Court: [W]hen does the medical evidence indicate Mr. Brown will be able to go to trial?

Mr. Howe: Maybe never. But that’s not my problem.

The Court: I understand that’s my problem.

Shortly afterward, the judge pointed out all the evidence he had before him that contradicted the reports of Brown’s doctors. As the dissent notes, the judge found that Brown suffered from a number of ailments; he also found, however, that these ailments were not so serious as to prevent him from standing trial. Nothing in the record indicates that the judge fully accepted the testimony of Brown’s doctors or that the judge misunderstood the issue before him.