USA v. Giovanella, Jr.

• Court: District Court, D. New Hampshire
• Decided: August 16, 1993
• Docket: CR-92-87-B
• Status: Published

Opinion

USA v. Giovanella, Jr. CR-92-87-B 08/16/93

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 92-087-B

Albert L. Giovanella, Jr.

O R D E R

The defendant, Albert L. Giovanella, Jr., has been charged

in an eleven count indictment with wire fraud, bank fraud,

conspiracy, money laundering, engaging in a monetary transaction

involving criminally derived proceeds, and the use of false

documents to avoid student loan payments. The defendant was

arraigned on July 6, 1993 and pleaded guilty to one count of wire

fraud pursuant to a plea agreement reached with the government.

Because the defendant had taken prescription medications shortly

before his plea, I deferred a decision on whether to accept the

plea until I could receive and consider medical evidence

concerning the effect of the medications on his ability to

knowingly, voluntarily, and competently plead guilty. For the

reasons that follow, I now find that the defendant is competent

and that his plea of guilty was knowingly and voluntarily made. DISCUSSION

The facts of this case raise several difficult issues that

bear on the defendant's competence and his ability to knowingly

and voluntarily plead guilty. The defendant has a serious

medical condition, and he has a history of psychiatric problems;

he took several potent medications prior to the entry of his

guilty plea; he made statements at various points during the plea

hearing that raise guestions concerning his understanding of the

charges against him and the conseguences of his decision to plead

guilty; and he expressed concern at the plea hearing that he was

under pressure to plead guilty to help his son and other members

of his family.

In considering the many issues presented by the defendant's

proposed plea, I begin by discussing the general principles that

must guide my analysis. I then turn to the specific issues

presented by this case.

A. The Legal Standards

The legal standard used to determine whether a defendant is

competent to plead guilty is the same as the standard used to

determine a defendant's competency to stand trial. Godinez v.

Moran, 113 S. C t . 2680, 2684-88 (1993). In determining a

defendant's competency, the guestion that must be answered is

2 "whether the defendant has 'sufficient present ability to consult

with his lawyer with a reasonable degree of rational

understanding' and has 'a rational as well as factual

understanding of the proceedings against him.'" Id. at 2685

(guoting Dusky v. United States, 3620 U.S. 402 (I960)).

Competency alone is not enough to permit a defendant to

plead guilty. In addition, the defendant's decision must be

knowing and voluntary. Henderson v. Morgan, 426 U.S. 637, 645

(1976); McCarthy v. United States, 394 U.S. 459, 467 (1969).

Whereas competency depends upon a defendant's capacity to

understand and assist, voluntariness reguires actual

understanding. Godinez, 113 S. C t . at 2687 n.12. Thus, a

defendant must understand the essential elements of the offense

to which he is pleading guilty and the relationship of the

material facts to the offense. McCarthy, 394 U.S. at 466-67.

Egually important, the defendant must understand both the

constitutional rights he waives by pleading guilty, Boykin v.

Alabama, 395 U.S. 238, 243-44 (1969), and the potential sentence

he faces as a result of his guilty plea. Mabry v. Johnson, 467

U.S. 504, 510 (1984). Finally, the defendant's decision must not

have been induced by threats or improper promises. Mabry, 4 67

U.S. at 509-10; Machibroad v. United States, 368 U.S. 487, 492

3 (1962) .

B. Defendant's Physical Condition and Psychiatric History

The defendant suffers from post-polio syndrome. This

condition develops twenty-five to thirty-five years after the

onset of polio and manifests itself by weakness in the muscles in

areas previously affected by the polio. In the defendant's case,

the condition has impaired his ability to breathe for prolonged

periods without the support of a ventilator.

The defendant also has a significant history of psychiatric

illness. At one time he apparently suffered from Bipolar

Disorder. However, after a 1992 examination, the defendant's

psychiatrist determined that the defendant instead suffered from

adjustment disorder with anxiety. The defendant has received

electroconvulsive treatment in the past, and he has taken anti­

anxiety and anti-depressant medications for a prolonged period.

He also has a history of suicide attempts.

The defendant initially attempted to have his trial

indefinitely postponed because he claimed that the post-polio

syndrome and his psychiatric condition were so serious that he

could not withstand the rigors of trial. After an evidentiary

hearing, I concluded that although the defendant was seriously

ill, his conditions would not prevent him from participating in a

4 trial if proper safeguards were followed.

Notwithstanding this finding, the defendant failed to appear

at his arraignment because he developed an episode of respiratory

distress on the way to the courthouse that he now claims was

caused by an anxiety attack.1 In light of the defendant's

behavior, I ordered that the defendant be examined to determine

whether his apparent anxiety attacks, together with his delicate

physical condition, rendered him intermittently incompetent to

stand trial.

The psychiatric evaluation conducted by the staff at the

Federal Medical Center was extremely thorough. After reviewing

the defendant's prior medical and psychiatric history, the

results of numerous psychological tests, and after a lengthy

interview, the reviewing psychologist. Dr. Thomas Kurcharski,

concluded that the defendant was competent to stand trial. He

also determined that: (i) the defendant "has a substantial

characterological disorder with very histrionic, narcissistic,

borderline and antisocial features"; (ii) the results of

psychological testing indicate that the defendant is feigning or

1The defendant had previously experienced a similar episode when he was brought to the Federal District Court for the District of Massachusetts to respond to criminal charges that were pending against him in that district.

5 exaggerating his medical and psychiatric difficulties; and (ill)

the defendant is able to control the anxiety he appears to

experience when confronted with stressful situations. In

summary. Dr. Kucharski's report provides compelling evidence that

neither the defendant's serious illness nor his psychiatric

history adversely affect his competence to stand trial or his

ability to knowingly and voluntarily plead guilty.

C. Defendant's Use of Prescription Medications

At the plea hearing, the defendant disclosed that he had

recently taken several potent prescription medications at the

direction of his physician. These medications include the anti­

anxiety drug, Xanax, the anti-depressant, Prozac, and the

hypnotic, Halcion. When, as in the present case, a defendant has

taken prescription medications prior to a plea hearing that could

significantly affect his cognitive functioning, it is imperative

that expert testimony be considered to evaluate the likely effect

of the medications on the defendant's ability to competently and

voluntarily plead guilty. See United States v. Parra-IBonez,

936 F.2d 588, 594-96 (1st Cir. 1991). Conseguently, I directed

the court reporter to prepare a transcript of the plea hearing

and instructed the parties to obtain affidavits from gualified

medical personnel concerning the affect of the medications on the

6 defendant's ability to competently and voluntarily plead guilty.

In response to my order, the defendant obtained affidavits

from his treating physician. Dr. Douglas Johnson, and a

psychiatrist who had formerly treated him. Dr. Clifford Askinazi.

The government obtained an affidavit from Dr. Bartolome Celli,

the defendant's former pulmonologist. All three physicians

acknowledge that the medications the defendant took, especially

in combination, could cause drowsiness or even induce stupor in a

patient who was not accustomed to taking the medications.

However, Dr. Askinazi and Dr. Celli noted that these effects

would likely be less pronounced in a patient such as the

defendant who had been taking the medications for some time.

Most importantly, all three physicians agreed after reviewing the

transcript of the plea hearing that the medications the defendant

took did not prevent him from being able to consult with his

attorneys, participate meaningfully in the proceedings, or plead

guilty with an understanding of the charges against him and the

conseguences of his decision.

My own observations of the defendant at the plea hearing are

consistent with the opinions of the three physicians. Although

the defendant claimed that the medications had dulled his

thinking and had caused him to become sleepy and weak, his

7 cognitive abilities did not appear to have been significantly

affected. As the record indicates, the defendant was an active

participant throughout the hearing. Although he had his eyes

closed for a brief period, the defendant remained responsive and

appeared to be following the proceedings closely. On several

occasions, he interjected to correct a misstatement made by

someone else. He freguently asked me to explain things that he

did not understand, and he was guick to clarify his responses to

my guestions to ensure that he said nothing that might further

implicate his son. In short, while the medications undoubtedly

helped him to deal with the stress and anxiety of the hearing, I

find that they did not render him incompetent or prevent him from

voluntarily and knowingly pleading guilty.2

D. The Defendant's Understanding of the Charge and the Consequences of his Decision to Plead Guilty

Several of the responses the defendant gave to my guestions

at the plea hearing raised guestions concerning his understanding

of the trial process. Particularly at the beginning of the

2I also note that an emergency medical technician ("EMT") and a respiratory therapist attended the hearing and closely monitored the defendant's condition in order to assist me in ensuring that he was at all times able to participate meaningfully in the plea hearing. At no point did either the EMT or the respiratory therapist indicate that the defendant was having any difficult in meaningfully participating. hearing, the defendant seemed not to understand certain basic

matters such as the right to a trial by jury and the burden of

proof. Moreover, rather than responding directly to my

guestions, the defendant seemed more interested in discussing

various other matters such as his feelings of guilt over the harm

that his criminal conduct had caused to his family, his desire to

avoid a trial, and his interest in seeing that I and the

government were made aware of the fact that others had escaped

prosecution for their involvement in his criminal scheme.

There was a marked difference in the character of the

defendant's responses during the second part of the hearing,

however. When I guestioned the defendant on the elements of the

offense to which he was pleading guilty and the facts pertaining

to the offense, it was obvious from his answers that he

understood the charge. It was also apparent that the defendant

understood the conseguences of his decision to plead guilty. He

expressed an understanding of the specific constitutional rights

that he was surrendering by pleading guilty, and he understood

the maximum penalty he faced as a result of his decision.

Moreover, he also claimed to understand that no one could predict

the length of his sentence and that it was my duty to sentence

him after considering the presentence report and the applicable sentencing guidelines. Accordingly, I am convinced that the

defendant understood the charge to which he pleaded guilty and

the conseguences of his decision.

E. Threats or Improper Promises

The final issue presented by the defendant's proposed plea

is whether the plea was induced by threats or improper promises.

During the plea hearing, the defendant repeatedly complained that

the government had improperly threatened to bring criminal

charges against innocent members of his family. He also feared

that the government would not support a sentence reduction motion

for his son unless he pleaded guilty. As a result, the defendant

refused to sign the plea agreement because the agreement provided

that it had been reached "without promise of benefit of any kind

(other than concessions contained in the plea agreement), and

without threats, force, intimidation, or coercion of any kind."

A guilty plea is not involuntary simply because it is

induced in part by the government's promise to exercise leniency

in dealing with a person other than the defendant. United States

v. Tursi, 576 F.2d 396, 398 (1st Cir. 1978); United States v.

Marquez, 909 F.2d 738, 741-42 (2d Cir. 1990), cert, denied, 498

U.S. 1084 (1991). However, under such circumstances, special

care must be exercised to ensure that a guilty plea is truly

10 voluntary. Tursi, 576 F.2d at 398.

In the present case, the defendant's decision to plead

guilty was undeniably motivated in part by guilt stemming from

his son's conviction and a hope that pleading guilty might

somehow benefit his son and the rest of his family.

Nevertheless, this is not a case where such concerns reguire me

to reject the defendant's guilty plea. First, no evidence has

been presented to suggest that the government engaged in any

improper threats or promises in an attempt to induce the

defendant to plead guilty. Although the government has

apparently agreed to support a reguest by the defendant's son to

reduce his sentence in exchange for the son's agreement to

testify against his father, the government readily acknowledges

that the defendant's decision to plead guilty will not affect its

agreement with the defendant's son. Similarly, no evidence has

been presented to suggest that the government has threatened to

bring criminal charges against members of the defendant's family

if he refuses to plead guilty. To the contrary, the only

evidence in the record on this point is the government's

statement that it has no present intention of bringing charges

against members of the defendant's family regardless of whether

the defendant pleads guilty. Thus, this is hardly a case where

11 the government has inappropriately attempted to induce a

defendant's guilty plea through threats or improper promises.

Second, this is not a case where there is a danger that an

innocent man might have been induced to plead guilty to an

offense he did not commit in order to obtain leniency for a

family member. As the defendant himself admits, the evidence of

his guilt is overwhelming and it is a virtual certainty that he

would have been convicted if this case had gone to trial.

Finally, notwithstanding the defendant's understandable

effort to characterize his decision to plead guilty as a selfless

act to protect the family he loves, the reality is that the

defendant is the only person who stands to benefit from his

decision to plead guilty. The defendant's recognition of this

fact is evidenced by his persistence in his decision even after

he was informed that his guilty plea would have no affect on his

son or the rest of his family. In summary, I find that the

defendant's decision to plead guilty was not induced by any

threats or improper promises from the government.3

3Ihe defendant also complained that his family was pressuring him into accepting the plea. However, " [u]navoidable influence or pressure from sources such as . . . friends or family does not make a plea involuntary . . . ." Stand v. Dugger, 921 F.2d 1125, 1142 (11th Cir. 1991), cert, denied, sub nom. Stano v. Singletary, 112 S. C t . 116 (1991).

12 CONCLUSION

I find that the defendant has a sufficient present ability

to consult with his lawyer with a reasonable degree of rational

understanding and that he has a rational as well as factual

understanding of the proceedings against him. Accordingly, I

find that he is competent.

I also find that the defendant understands the offense with

which he was charged, the potential sentence he faces, and the

constitutional rights he has waived. Finally, I find that the

defendant's plea was not coerced and that it was free from any

improper threats or promises. Accordingly, I find that the

defendant's guilty plea was knowingly, voluntarily, and

intelligently made.

The defendant's plea of guilty is accordingly accepted and

he is hereby adjudged guilty of the offense to which he has

pleaded guilty.

SO ORDERED.

Paul Barbadoro United States District Judge

August 16, 1993

13 cc: Mark Larsen, Esq. Kenneth Glidden, Esq. United States Attorney United States Marshal United States Probation