March 23, 1994 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-1584
UNITED STATES OF AMERICA, Appellee,
v.
ANGEL A. SOLDEVILA-LOPEZ, a/k/a "ANGELO," Defendant, Appellant.
ERRATA SHEET
The opinion of this Court issued on March 3, 1994, is amended as follows:
Page 2, line 3 - delete "by a jury."
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
UNITED STATES OF AMERICA,
Appellee,
ANGEL A. SOLDEVILA-LOPEZ, a/k/a "ANGELO,"
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Henry F. Furst for appellant.
Jorge E. Vega-Pacheco, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, was on brief for
appellee.
March 2, 1994
TORRUELLA, Circuit Judge. On August 17, 1992, a jury
found defendant-appellant Angel A. Soldevila-L pez ("Soldevila")
guilty jury of four counts of conspiracy to possess with the
intent to distribute fifty kilograms of cocaine and using a
communication facility in the commission of the offense, in
violation of 18 U.S.C. 2 and 21 U.S.C. 841(a)(1), 843(b),
and 846.
On November 27, three days before sentencing date of
November 30, trial counsel for Soldevila, Nicol s Nogueras
("Attorney Nogueras") raised the issue of Soldevila's competence
to be sentenced in a motion requesting psychiatric and
psychological examination. The district court granted
Soldevila's motion.
Following a psychiatric evaluation by both a court
appointed psychiatrist and a court appointed psychologist, a
competency hearing was set for May 24, 1993. At the hearing,
upon the suggestion of counsel for Soldevila, the court concluded
that Soldevila should be reevaluated on that day to determine his
competency for sentencing purposes. Dr. Scott A. Duncan, the
court appointed psychologist, reevaluated Soldevila and the
hearing continued on the next day.
On May 25, doctor Duncan presented an addendum to his
previous evaluation of Soldevila, stating for the first time that
Soldevila was "malingering" (i.e., feigning incompetency). The
district court denied Soldevila's motion for a continuance, found
Soldevila competent to be sentenced and imposed sentence.
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Soldevila appeals from the final judgment of conviction and
sentence.
BACKGROUND
Soldevila has a recent history of psychiatric problems.
As recently as the spring of 1992 he was receiving psychotherapy,
including prescription medications for his illness.1 This
information, however, was not brought to the attention of the
district court at any time during trial or at anytime prior to
Attorney Nogueras' motion for psychiatric and psychological
evaluation of November 27, 1992. In the November 27 motion,
Attorney Nogueras stated that Soldevila, in conversation with
counsel, "looks and reacts introvertedly, like absent from the
conversation, very depressed, and in a mental and emotional
condition that requires a psychiatric and psychological
examination before sentencing." Attorney Nogueras indicated that
he had observed related symptoms during trial, but had attributed
them to Soldevila's anxiety, believing they were "due to the
tension created by his arrest, imprisonment and trial."
Following trial, Attorney Nogueras discovered additional facts
which led him to conclude that he had "undervalued or
underestimated the nature and extent of [Soldevila's] mental and
1 Appellate counsel obtained Soldevila's medical history from Soldevila's daughter, Blanca. Much of the history is contained in photostatic copies of prescriptions appended to Soldevila's brief and in a letter dated May 10, 1993, written by Blanca in which she observes that she had supplied Attorney Nogueras, with various medical records in June of 1992. She also stated that she had suggested to Nogueras that he submit a motion to provide Soldevila with proper medical treatment but that her advice was not heeded.
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emotional condition at the time of the alleged commission of the
offense . . . and at the time of trial." In particular, in a
November 23, 1992 conversation between counsel and Dr. Jorge
Prieto, the prison's doctor, doctor Prieto, informed Attorney
Nogueras that Soldevila was prescribed "Xanax," used for the
management of anxiety disorder or the short term relief of
symptoms of anxiety, Physicians' Desk Reference at 2456 (48th ed.
1994) (herinafter "PDR"), and "Ativan"2 during trial in doses
"[c]ounsel believed did not affect defendant's awareness of the
consequences of the proceedings against him." Doctor Prieto said
that his observations of Soldevila on June 29 (i.e. prior to
trial), led him to conclude that Soldevila had a "psychiatric
condition." Doctor Prieto also indicated that, by May 27, 1992,
Soldevila "was not communicative and had lapses of absence."
Therefore, Attorney Nogueras felt that a psychiatric examination
was needed.
In response to Soldevila's motion, the district court
judge stated that he had seen Soldevila "interact with counsel
during the case, and [Soldevila] was fully oriented,
participated, from what I could see from the bench, fully reacted
when there was something to react to. [Sic] Smiled and dealt
with the points that were scored when the defense scored such
points. It was quite obvious that the person that was before me
2 Ativan is an antianxiety agent which "is not recommended for use in patients with a primary depressive disorder or psychosis." PDR at 2516. With regards to this medication, the PDR warns that "[i]n patients with depression accompanying anxiety, a possibility for suicide should be borne in mind." Id.
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here was not a zombie of any kind. He was a person who was here
oriented in all spheres." Still, the district court granted
Soldevila's motion and ordered that Soldevila undergo
psychological and psychiatric evaluation at the Springfield,
Missouri Medical Center for Federal Prisoners to determine
whether he suffered from a mental disease and then return to
Puerto Rico for final sentencing. The district court entered a
provisional sentence against Soldevila pursuant to 18 U.S.C.
4244(d).
On March 9, the Bureau of Prisons issued a forensic
evaluation of Soldevila, signed by Scott A. Duncan, Psy.D,
Forensic Studies Coordinator of the United States Penitentiary in
Atlanta ("doctor Duncan"), Angel L pez M.Ed. and Sara
Boucchechter, M.A.. The report concluded that Soldevila suffered
from "major Depression, Recurrent, With Psychotic Features, Mood
Congruent."
On April 20, 1993, in response to the court's inquiry
regarding "the approximate time frame that Mr. Soldevila-L pez
suffered from psychotic depression," doctor Duncan submitted to
the district judge an "Addendum to Psychological Evaluation."
In this addendum, doctor Duncan concluded that, in his
professional opinion, Soldevila's psychotic depression
"originated approximately in September/October 1992 as a result
of stress stemming from being found guilty of his current
charges, being tried . . . and being housed in a stressful
environment."
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On April 27, 1993, the district court ordered that
Soldevila be transferred to Puerto Rico no later than May 20,
1993, for a competency hearing to be held on May 24, 1993. On
May 12, 1993, Henry F. Furst, current appellate counsel for
Soldevila, ("Attorney Furst") sent Attorney Nogueras a letter via
telefax informing Nogueras that the Soldevila family wanted a
psychiatrist, Dr. Steven S. Simring, to examine Soldevila as soon
as possible. Soldevila was transferred to the Metropolitan
Detention Center in Guaynabo, Puerto Rico ("MDC") on May 20,
1993, four days before the competency hearing was to take place.
Attorney Nogueras moved for a continuance, in order for doctor
Simring to evaluate Soldevila and be presented as an expert
witness on Soldevila's behalf. The district court denied the May
21, 1993 motion for a continuance.
On the same day, Soldevila filed a motion requesting
the district court's permission to have doctor Simring interview
him for a psychiatric assessment, to allow Attorney Furst to
appear at the competency hearing, and to duplicate copies of
records, transcripts and tapes used during the trial. The
district court granted Soldevila's latter motion in all respects.
The competency hearing took place on May 24 and 25,
1993. On May 24, Attorney Nogueras told the court he had visited
Soldevila recently but that Soldevila was not communicative.
Attorney Nogueras said he found "[him]self completely
incapacitated to convey to [Soldevila] the meaning of this
hearing." Attorney Nogueras further informed the court that one
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of the prison guards referred to Soldevila as "my Valium man."
Attorney Nogueras also alluded to the availability of doctor
Simring to examine Soldevila, but suggested this was not possible
given the court's denial of Soldevila's motion for a continuance.
Doctor Duncan then testified that when Soldevila arrived at the
United States Penitentiary in Atlanta, on February 3, 1993,
Soldevila was suicidal and possibly suffering from psychosis. He
was unable to concentrate sufficiently to complete psychological
testing. Soldevila was then administered "Haldol," an
antipsychotic medication. In doctor Duncan's last contact with
Soldevila, ten days prior to the hearing, Soldevila appeared
"oriented to time, place, person, and reason of being there."
Doctor Duncan indicated that he stood by his previous report of
March 9 in which he gave his opinion that Soldevila needed
immediate hospitalization for treatment for psychotic depression
and that he should remain on "Haldol."
At the request of Attorney Nogueras, the proceedings
were adjourned to permit doctor Duncan to interview Soldevila and
to review his medical charts and determine whether he had
continued to take the medication prescribed to him in Atlanta.
The court directed doctor Duncan to provide the defense access to
information regarding the medication Soldevila was receiving at
MDC, as well as a copy of Soldevila's medical chart.3 The court
3 After Attorney Nogueras asked the court to order him access to information regarding the medication Soldevila had been taking at MDC, the following exchange took place:
MR. NOGUERAS: Your Honor, of course, your
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also indicated that doctor Simring, would be permitted to examine
Soldevila if he flew to Puerto Rico.
On May 25, Soldevila filed a motion requesting further
psychiatric evaluation. The motion stated that the government
had not complied with the court's May 24 order to provide defense
counsel a copy of Soldevila's chart and requested that the
government comply. Attached to the motion was the May 10th
letter sent to doctor Duncan by Soldevila's daughter, Blanca,
setting forth Soldevila's medical history of psychiatric
problems. Attorney Nogueras indicated that he was attempting to
locate Dr. Agust n Garc a, a local psychiatrist or clinical
psychologist, to analyze Soldevila's psychiatric condition.
Also, on May 25, doctor Duncan filed a second addendum
to the forensic report. The addendum concluded that Soldevila
was malingering. Doctor Duncan indicated that the previous day
he reviewed Soldevila's medical records and met with Dr. Vasco
Daub n, the chief psychologist at MDC, and together they
conducted an interview of Soldevila.
During the interview, doctors Duncan and Daub n gave
Soldevila a neuropsychological memory test for malingering,
called the Rey 15-item test. Because Soldevila's performance was
Honor has to understand that if we get the information this afternoon, we do have to make a decision in regard to whether we would be then having the time to get to doctor Simring to react on this information.
THE COURT: Believe me, I will give you the time you need. Just remember also that you have had since November 3rd [sic] to do this.
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lower than that expected of even someone who was severely brain
damaged, doctor Duncan concluded Soldevila was malingering. As
further evidence of malingering, doctor Duncan indicated that
Soldevila claimed to have practically every symptom about which
he was asked, whether or not they were actually symptoms of
psychosis. Additionally, Soldevila complained of hearing voices
primarily at night, a time of day when his use of "Haldol" was in
fact maximized. On occasion, Soldevila was able to understand
questions asked him in English and to respond in Spanish, an
ability requiring high cognitive skills, inconsistent with
psychosis. Doctor Duncan concluded that he had seen nothing that
would indicate Soldevila was incapable of understanding the
charges or cooperating with his lawyer and that he was competent
for sentencing purposes. Doctor Daub n testified to his
participation in the interviews of Soldevila and agreed with
doctor Duncan's diagnosis of malingering.
On May 25, 1993, the court found that Soldevila was
competent to be sentenced. The court pointed out that, until the
verdict, there had been no indication that Soldevila had any kind
of mental defect that would have impeded the trial. The court
found that Soldevila "understood what was happening and . . .
assisted his lawyer in the preparation of the case." The
district court judge further stated that "[h]ad it been
different, I would have been notified by Mr. Nogueras, and he did
not tell me anything at the time." The court found that once
found guilty and placed in the Puerto Rico State penitentiary,
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Soldevila became depressed and psychotic, but that, he was
prescribed medication and presently "is competent to be
sentenced."
On appeal, Soldevila argues that (1) Attorney Nogueras'
failure to timely investigate and argue Soldevila's lack of
competency to stand trial denied Soldevila effective assistance
of counsel; (2) Attorney Nogueras had an actual conflict of
interest with Soldevila and the district court erred in failing
to bring this conflict to the attention of Soldevila; and (3) the
district court erred in refusing to grant Soldevila's motion for
a continuance of the competency hearing and in finding that
Soldevila was competent to be sentenced.
INEFFECTIVE ASSISTANCE OF COUNSEL
Soldevila's claim that trial counsel's failure to
timely investigate and argue Soldevila's lack of competency to
stand trial denied Soldevila effective assistance of counsel is
raised for the first time on direct appeal. In this circuit "a
fact-specific claim of ineffective legal assistance cannot be
raised initially on direct review of a criminal conviction, but
must originally be presented to the district court." United
States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991), cert.
denied, 112 S. Ct. 986 (1992) (citations omitted). An exception
to this rule exists "where the critical facts are not genuinely
in dispute and the record is sufficiently developed to allow
reasoned consideration of an ineffective assistance claim." Id.
(citations omitted). Under such circumstances, "an appellate
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court may dispense with the usual praxis and determine the merits
of such a contention on direct appeal." Id. (citations omitted).
The present case does not fall within this exception. In
determining the merits of a claim for ineffective assistance of
counsel, our review of counsel's performance is "not in
hindsight, but based on what the lawyer knew, or should have
known, at the time his tactical choices were made and
implemented." United States v. Natanel, 938 F.2d 302 (1st Cir.
1991). In the present case, the district court did not make any
findings of critical facts such as when Attorney Nogueras became
aware of Soldevila's psychiatric history and the exact nature of
that history that would enable us to determine what Attorney
Nogueras "knew or should have known" at different stages during
his representation of Soldevila. Neither are these facts clear
from the record. The proper method for pursuing claims of this
nature is through a collateral proceeding in district court under
28 U.S.C. 2255 so that proper factual determinations can be
made. United States v. Sutherland, 929 F.2d 765, 774 (1st Cir.
1991), cert. denied, 112 S. Ct. 83 (1991) (citations omitted).
CONFLICT OF INTEREST
Soldevila argues that Attorney Nogueras had an actual
conflict of interest with Soldevila and that such conflict
requires the reversal of Soldevila's conviction. Soldevila
contends that the conflict developed after Attorney Nogueras
realized that he had erred by failing to raise the issue of
Soldevila's mental competence at an earlier stage in the
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proceedings. At that point, Attorney Nogueras had an interest in
raising the competency issue to appease Soldevila and Soldevila's
family, but also had an interest in losing the issue on the
merits to show that he was not at fault for having failed to
raise it in a timely fashion. Indeed, the worst case scenario
for Attorney Nogueras, argues Soldevila, would have been for the
court to have found that the competency issue may have had merit
but was waived or was now otherwise not susceptible to definitive
resolution. These potential problems for Attorney Nogueras were
neatly resolved by the court's denial of the defense claim on the
merits.
Although Soldevila's claim of actual conflict of
interest is, in effect, a claim of ineffective assistance of
counsel, we find the record "sufficiently developed to allow
reasoned consideration" of this particular claim on direct
appeal. See Natanel, 938 F.2d at 309; see discussion infra p.9.
Soldevila did not object to any conflict of interest at
trial. In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Supreme
Court established that "[i]n order to establish a violation of
the Sixth Amendment, a defendant who raised no objection at trial
must demonstrate that an actual conflict of interest adversely
affected his lawyer's performance." Cuyler, 446 U.S. at 348
(footnote omitted). Although this standard was first developed
in the context of counsel's joint representation of criminal
defendants, it has been applied generally to other conflict of
interest situations, including alleged conflicts between counsel
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and his or her client. United States v. Rodr guez, 929 F.2d 747,
749 (1st Cir. 1991) (citations omitted).
It is well settled that "some conflicts of interest so
affront the right to effective assistance of counsel as to
constitute a per se violation of the [S]ixth [A]mendment."
United States v. Aiello, 900 F.2d 528, 531 (2d Cir. 1990) (citing
Cuyler, 446 U.S. at 349-50). Such is the case where a lawyer
suffers from an actual conflict of interest that prevents him or
her from presenting a vigorous defense of a defendant. United
States v. Eisen, 974 F.2d 246, 264 (2d Cir. 1992). "Upon a
showing of such a conflict, a defendant need not demonstrate
prejudice because a conflict inhibiting a lawyer's performance is
such an affront to the right to effective assistance of counsel
that . . . [it] demonstrates a denial of that right." Id. See
also United States v. Marcano-Garc a, 622 F.2d 12, 17 (1st Cir.
1980) (citing United States v. Hurt, 543 F.2d 162, 165-68 (D.C.
Cir. 1976)) (effective assistance of counsel is impossible when
the attorney-client relationship is corrupted by competition
between the client's interests and the personal interests of his
attorney).
This circuit has held that in order to show an actual
conflict of interest, a defendant must show that (1) the lawyer
could have pursued a plausible alternative defense strategy or
tactic and (2) the alternative strategy or tactic was inherently
in conflict with or not undertaken due to the attorney's other
interests or loyalties. Guaraldi v. Cunningham, 819 F.2d 15, 17
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(1st Cir. 1987) (citations and quotations omitted). Courts have
recognized actual conflicts of interest between an attorney and
his client when pursuit of a client's interests would lead to
evidence of an attorney's malpractice. See United States v.
Ellison, 798 F.2d 1102, 1106-08 (7th Cir. 1986), cert. denied,
479 U.S. 1038 (1987) (actual conflict where, in pro se hearing,
defendant alleged information which, if true, counsel
acknowledged, would be tantamount to malpractice on behalf of
counsel); see also Mathis v. Hood, 937 F.2d 790, 795 (2d Cir.
1991) (finding actual conflict of interest in lawyer's
representation of defendant during appeal where defendant filed a
grievance with disciplinary committee prior to appeal due to
attorney's delay in filing appellate brief).
In the present case, Soldevila has not made the
requisite showing of an actual conflict of interest. Soldevila
has not shown that Attorney Nogueras did not undertake an
alternative strategy or tactic due to Attorney Nogueras' other
interests or loyalties. The circumstances alleged by Soldevila,
as a matter of law, do not amount to an actual conflict of
interest between Attorney Nogueras and Soldevila. Unlike the
circumstances presented in Ellison or Mathis, at the time
Attorney Nogueras represented Soldevila, both at trial and during
the competency hearing, Soldevila had neither accused Attorney
Nogueras of malpractice nor filed any grievance regarding
Attorney Nogueras' representation. Neither are the circumstances
of this case akin to those which in which an actual conflict of
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interest amounting to a per se violation of the Sixth Amendment
has been found.4 Soldevila's claim that Attorney Nogueras had a
conflict of interest during his representation is based on mere
speculation. "A theoretical or merely speculative conflict of
interest will not invoke the per se rule." Id. (citing United
States v. Aeillo, 900 F.2d 528, 530-31 (2d Cir. 1990)).5
Soldevila further argues that the court's failure to
warn Soldevila of the serious conflicts lurking in his continued
representation by Mr. Nogueras deprived him of due process and of
effective assistance of counsel.
The Constitution does not require a trial court to warn
a defendant about the risk of conflict in every case. Guaraldi
4 Per se Sixth Amendment violations have been found where trial
counsel was implicated in the crime for which his client was on trial, Marcano-Garc a, 622 F.2d at 17 (citing United States v.
Cancilla, 725 F.2d 867 (2d Cir. 1984)), and where a defendant was
represented by a person not authorized to practice law. Marcano-
Garc a, 622 F.2d at 17 (citing Solina v. United States, 709 F.2d
160 (2d Cir. 1983)).
5 Because Soldevila has failed to show an actual conflict of interest, in order to prevail on his claims of ineffective assistance of counsel, "he must overcome the presumption that his counsel's conduct was reasonable by satisfying the two pronged standard of Strickland v. Washington, 466 U.S. 668 (1984). [He]
must show (1) that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Eisen, 974 F.2d at 265 (citing
Strickland v. Washington, 466 U.S. at 694 (internal quotations
and citations omitted)).
We express no view on whether Soldevila's allegations satisfy this standard as Soldevila claims only that Attorney Nogueras had an actual conflict of interest with Soldevila and we believe that
any other claims of ineffectiveness of counsel that may arise in the present case should not be addressed on direct appeal.
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v. Cunningham, 819 F.2d at 18. "Defense counsel have an ethical
obligation to avoid conflicting representations and to advise the
court promptly when a conflict of interest arises during the
course of trial. . . . Unless the trial court knows or
reasonably should know that a particular conflict exists, the
court need not initiate an inquiry." Id. at 18 (alteration in
original) (quoting Cuyler, 446 U.S. at 346-47).
We have not found an actual conflict of interest that
affected Soldevila's trial, thus the trial court could not have
known of one. "We see no 'special circumstances' that gave rise
in this case to greater potential conflicts of interest than
those that exist whenever a . . . lawyer" raises any issue in a
proceeding that if raised earlier would have been more
advantageous to his or her client. See id. Hence, we conclude
that the district court's failure to advise Soldevila of possible
conflicts of interest and the related risks of his continued
representation by Attorney Nogueras did not violate his
constitutional rights.
REFUSAL TO GRANT A CONTINUANCE & FINDING OF COMPETENCY
Soldevila contends that in light of the last minute
diagnosis of malingering, the district judge improperly denied a
continuance that would have allowed Soldevila to be examined by
his own expert and subsequently erred in finding that Soldevila
was competent to stand trial.
We review the district court's refusal to grant a
continuance for abuse of discretion. United States v. Rodr guez
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Cort s, 949 F.2d 532, 545 (1st Cir. 1991). Limits on the court's
discretion to grant a continuance are imposed by defendant's
constitutional rights, including his rights to assistance of
counsel and to the testimony of witnesses on his behalf. United
States v. Waldman, 579 F.2d 649 (1st Cir. 1978) (citations
omitted). "Only 'unreasonable and arbitrary insistence upon
expeditiousness in the face of justifiable request for delay'
constitutes an abuse of discretion." Rodr guez Cort s, 949 F.2d
at 545 (quoting United States v. Torres, 793 F.2d 436, 440 (1st
Cir.), cert. denied, 479 U.S. 889 (1986)).
In reviewing the district court's refusal to grant a
continuance for further psychiatric evaluations we consider: (1)
the extent of Soldevila's diligence in preparing his defense
prior to the date set for hearing; (2) the likely utility of the
continuance if granted; (3) the inconvenience to the court and
the opposing party, including witnesses; and (4) the extent to
which the moving party may have suffered prejudice from the
denial. United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.
1985), amended, 764 F.2d 675 (9th Cir. 1985); United States v.
Pope, 841 F.2d 954, 956 (9th Cir. 1988).
1. Diligence
It is clear that Attorney Nogueras could have exercised
greater diligence locating additional psychiatrists to examine
his client prior to the competency hearing. As pointed out by
appellate counsel for Soldevila, after Attorney Nogueras raised
the issue of Soldevila's competence to be sentenced, "defense
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counsel did nothing to support his previous suggestion that
defendant may have been incompetent . . . from November 30, 1992
to May 19, 1993, trial counsel did nothing, waiting virtually
until the eve of the next proceedings to take any action. Thus,
defense counsel never retained a psychiatrist to examine
defendant, nor did he take any other action calculated to flesh
out facts supporting the defense position."
At no time prior to May 25, the final day of the
competency hearing, did anyone contend that Soldevila was
malingering. Attorney Nogueras was not given doctor Duncan's
final report, concluding that Soldevila was malingering, until
after 4:00 p.m. on May 25, only moments before the final
hearing. In light of this surprise, attorney Nogueras was unable
to prepare any response to doctor Duncan's allegedly surprising
conclusion. Attorney Nogueras was diligent in responding to the
allegations that Soldevila was malingering as soon as possible.
By no means do we endorse Attorney Nogueras' behavior
in waiting until the last minute to try to obtain his own
experts, followed by what could be perceived as a strategy to buy
more time by first asking the court for a recess in order for
doctor Duncan to reevaluate Soldevila and then filing a motion
for a continuance in order to have time to respond to any
findings doctor Duncan might make.
Following doctor Duncan's new and unexpected
conclusion that Soldevila was malingering, however, Soldevila was
entitled to an opportunity to prepare a response to that finding.
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"[A]ppellant was entitled to call psychiatric witnesses of his
own choosing who, after examining appellant, could testify as to
his mental state." United States v. Flynt, 756 F.2d at 1359.
2. Utility of the Continuance
Where a continuance is sought in order to provide time
for a psychiatric evaluation, a defendant cannot be expected to
present to the court, in advance, the substance of the witness's
testimony in order to establish its utility. Pope, 841 F.2d at
954. The relevance of additional expert testimony, however,
should have been apparent from Soldevila's behavior and Attorney
Nogueras' comments at both the competency hearing and final
sentencing on May 24 and May 25. See id.
At the May 24 hearing, Attorney Nogueras informed the
court that on May 23, he and Attorney Furst went to see Soldevila
at the MDC and that during this visit, Attorney Nogueras was
unable "to get through to [Soldevila] at all," Attorney Nogueras
found himself completely incapacitated to convey to Soldevila the
meaning of the upcoming competency hearing, and Soldevila did not
recognize Attorney Furst, who had been his attorney for a long
time.
On May 25, before the district court judge imposed the
final sentence, Attorney Nogueras informed the court that he had
just asked Soldevila if he knew what was going on and Soldevila
said no. At sentencing the following exchange took place:
THE COURT: . . . If he admits guilt today, he says I am sorry, Judge, for what I did. I bought those 25 kilos of cocaine. He says that, I will give him the two points. If he
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doesn't say that, I won't . . . .
MR. NOGUERAS: I will ask my client that right now.
THE COURT: He will have to explain to me why he is sorry.
MR. NOGUERAS: To be on the record I want, I don't even know if he understands.
MR. NOGUERAS: Well, let the record show, your Honor, that I made four different questions to defendant. One, what was going on; number two, did he buy cocaine; number three, does he know that he might get two points reduced in his sentencing. He says, no, I don't remember what [sic].
THE COURT: Okay. So, he has no two points . . . .
(A. 232).
The continuance would have clearly been useful to
enable Soldevila to present expert testimony that might respond
to doctor Duncan's new allegations of malingering. See United
States v. Barrett, 703 F.2d 1076, 1081 (9th Cir. 1983)
("defendant 'probably could have obtained an expert to assist him
[if he had] been given more time. . . . In failing to grant the
requested continuance . . . the trial court clearly abused its
discretion.' (citation omitted)") (quoted in Flynt, 756 F.2d at
1360). The continuance would also have helped counsel prepare an
explanation for Soldevila's responses at sentencing.
3. Inconvenience
Undeniably, the prospect of a continuance implied some
inconvenience to the district court and to doctor Duncan. Doctor
Duncan was not a local witness. The postponement of the
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competency hearing from May 24 to May 25 had already required
doctor Duncan to remain in Puerto Rico an additional day.
"Nonetheless, the district court could have held the continuance
[Soldevila] sought to one or two days. Indeed, the district
court could have taken an active role in making sure the
evaluation took place and quickly. Balanced against . . .
[Soldevila's need for] a psychiatric evaluation, the
inconvenience did not justify the denial." Pope, 841 F.2d at
957.
4. Prejudice
In the present case, Soldevila was unable, without the
continuance, to present witnesses of his own choosing that might
have responded to doctor Duncan's new and serious charge that he
was malingering. A defendant's due process right to a fair trial
includes the right not to be tried, convicted or sentenced while
incompetent. Drope v. Missouri, 420 U.S. 162, 172-73 (1975).
Congress recognized and codified the right to a determination of
mental competency to stand trial in the Comprehensive Crime
Control Act of 1984, 18 U.S.C. 4241. This statute "permits
motions to determine [the] competency [of a defendant] 'at any
time after the commencement of prosecution for an offense and
prior to the sentencing of the defendant . . . .'" United States
v. Renfroe, 825 F.2d 763, 766 (3d Cir. 1987) (quoting 18 U.S.C.
4241(a)) (emphasis added).
Under 18 U.S.C. 4241(a), a court is required to hold
a competency hearing:
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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.
United States v. Pryor, 960 F.2d 1, 2 (1st Cir. 1992).
In order to find a defendant competent to stand trial
"it is not enough for the district court judge to find that the
defendant is oriented to time and place and has some recollection
of events." Dusky v. United States, 362 U.S. 402 (1960)
(internal quotations omitted). Instead, the "test must be
whether he has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding -- and
whether he has a rational as well as factual understanding of the
proceedings against him." Id. (internal quotations omitted).
Soldevila's responses to Attorney Nogueras' questions
and Soldevila's failure to make an allocution at sentencing
suggested that Soldevila may not have had the constitutionally
required "rational as well as factual understanding of the
proceedings." Although doctor Duncan's report suggested that
Soldevila was merely malingering, Soldevila was clearly
prejudiced by his inability to present witnesses that could
respond to doctor Duncan's report.
5. Conclusion
"We recognize that [Soldevila] might have exercised
greater diligence than he did [and] [w]e do not intend to suggest
that the degree of diligence demonstrated by [Soldevila] would
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necessarily be adequate under other circumstances." Flynt, 756
F.2d at 1360. However, because Soldevila has a constitutional
right not to be sentenced while incompetent and suffered
prejudice as a result of the denial of his motion for a
continuance and because a "continuance could have been brief
enough to cause only minimal inconvenience, and would have been
useful," we conclude that the court's denial of Soldevila's
motion for a continuance was arbitrary and unreasonable. See
Pope, 841 F.2d at 958. We therefore find that the district court
abused its discretion in denying Soldevila's motion and finding
Soldevila competent to be sentenced.
We vacate Soldevila's sentence and remand this case
for a full competency hearing and resentencing, if Soldevila is
found competent to be sentenced.
Vacated and remanded.
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