United States v. McEachern, 71-3296.

• Decision Date: 04 December 1972
• Docket Number: No. 71-3296.,71-3296.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Eugene McEACHERN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.2d 833 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Eugene McEACHERN, Defendant-Appellant.

No. 71-3296.

United States Court of Appeals, Fifth Circuit.

August 14, 1972.

Certiorari Denied December 4, 1972.

Kirk Patton, Texarkana, Tex., Court-appointed for defendant-appellant.

Roby Hadden, U. S. Atty., Tyler, Tex., J. C. Hawthorn, Asst. U. S. Atty., Beaumont, Tex., for plaintiff-appellee.

Before AINSWORTH, GODBOLD and MORGAN, Circuit Judges.

Certiorari Denied December 4, 1972. See 93 S.Ct. 539.

GODBOLD, Circuit Judge:

Kenneth McEachern appeals from his jury conviction of violating 18 U.S.C. § 1792 by willfully and knowingly making and possessing a weapon inside the Federal Correctional Institution at Texarkana, Texas. He contends that the District Court erred by denying his pre-trial motion for a mental competency examination under 18 U.S.C. § 4244, by refusing to issue a subpoena on his motion pursuant to Fed.R.Crim.P. 17(b), and by recalling the jury after two hours of deliberation and delivering an Allen charge.

This case requires us to examine the ultimate inquiry which is at the heart of 18 U.S.C. § 4244 and the scheme provided and contemplated by that statute for the pursuit of such inquiry. Having made such examination we reverse for failure to grant the § 4244 motion.

One week before trial, which commenced on November 2, 1971, appellant's counsel filed a § 4244¹ motion requesting a mental competency examination. We set out in the margin the body of the motion.² The gist of it was that appellant's counsel had reason to believe that appellant might be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense (this being the language of § 4244). The "reasonable cause to believe that the accused may be * * * so mentally incompetent (etc.)" was based upon the statement of counsel that he had been advised by appellant that during a previous confinement medical officers in the California penal system concluded on the basis of psychiatric examinations that appellant was psychotic and should be committed to a state institution. Without eliciting any further information the District Judge denied the motion, stating that he was "of the opinion that defendant is not presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly assist in his own defense." The basis for this conclusion by the court is not revealed by the record.

The case proceeded to trial. At the conclusion of evidence the judge, presumably having some doubts about his pre-trial ruling, excused the jury and questioned McEachern to determine whether he claimed to be insane either presently or at the time of the offense. A lengthy colloquy ensued, participated in by the court, the appellant, and defense counsel. McEachern was told by the court that he would be entitled to a psychiatric examination only if he were asserting that he was "insane" (the District Court's word) at the time of the offense or "at the present time." Appellant replead that he was making no claim that he was insane at either of the times mentioned. To a specific question from his counsel as to whether he was consenting to withdrawal of his motion for an examination or consenting to the court's overruling it, McEachern replied in the negative, adding that he would like to have a psychiatric examination but did not think he was insane. Counsel responded that unless he was asserting "this" i. e., insanity there was no right to request an examination. Appellant then stated he would waive it.

Though not crucial to our view of the line of questioning by the court, we note the possible confusion caused by use of the term "insane" when the relevant inquiry is competence to stand trial. "We . . . deplore with others the use of the terms `presently insane' and `present insanity' in § 4244. Such terminology is unfortunate since it confuses competency to stand trial—the only relevant inquiry under § 4244—with the entirely different question of criminal responsibility. As to these two distinct questions, there is a difference in the mental capacity required and the times at which it is required. See Johnson v. United States, 5 Cir., 1965, 344 F.2d 401, 406 n. 13, 408 n. 16. Compare Rees v. Peyton, 1966, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (mental capacity to withdraw petition for certiorari)." Floyd v. United States, 365 F.2d 368, 374 n. 9 (5th Cir. 1966). See C. Wright, Federal Practice & Procedure (Criminal) § 196, at 418.

During the colloquy McEachern told the court that in 1964 psychiatric treatment was recommended for him by a judge in California, examining psychiatrists, a probation officer, and his (then) counsel, but that he did not receive any treatment as a result. After further questioning, the court announced its finding that McEachern was sane at the present time and at the time of the offense as well.

Section 4244 provides for what is basically a three-step procedure. First, there must come to the attention of the court that there is "reasonable cause to believe that the accused may be * * unable to understand the proceedings against him or properly to assist in his own defense," which lack of capacity may take the form of insanity or other mental incompetency. Normally the situation is brought to the attention of the court by motion, filed on behalf of the accused or by the United States Attorney, alleging the existence of "reasonable cause to believe" and setting out the grounds for such reasonable cause. Or the court may proceed on its own motion, in which instance it will, of course, already be possessed of information giving it "reasonable cause to believe."

Second, "upon such a motion . . . the court shall cause the accused . . to be examined as to his mental condition by at least one qualified psychiatrist, who shall report to the court."

Third, if the psychiatrist's report indicates lack of requisite competency, the court shall hold a hearing, with notice, at which there may be submitted evidence of the accused's mental condition, and shall make a finding with respect thereto.

The order of the court for an examination follows after establishment to the court, normally by the motion itself, of reasonable cause to believe that the accused may be lacking in sufficient competency to be put to trial. In most instances there will be no evidentiary inquiry into the question of reasonable cause.

The statute does not provide for a framing of issue or a receiving of evidence on the question of cause for belief, so as to allow the court to weigh other facts against the grounds set out in the motion. And no intent to allow the court to engage in such a preliminary weighing of facts can be implied, for the language of the section is that "Upon such a motion * * the court shall cause the accused * * to be examined * * *." Indeed, for a court to undertake to resolve whether the elements of "reasonable cause to believe" impress as being preponderant or nonpreponderant in a particular situation, and to refuse on the basis of such a relative balancing to have a psychiatric examination made of the accused, would be for the court to obliquely pass upon the question of the accused\'s competency to stand trial or properly to assist in his own defense, and to make such an indirect consideration take the place of the examination, hearing and specific finding for which the statute provides.

Krupnick v. United States, 264 F.2d 213, 216 (8th Cir. 1959). See also Lewellyng v. United States, 320 F.2d 104 (5th Cir. 1963). But this is not to say that there never may be a hearing on reasonable cause or that factual data extrinsic to the bare motion may not come to the attention of the court and be considered by it on the issue of reasonable cause.³ Neither the scheme of the statute nor the phrase "upon such a motion" makes an automation of the court, requiring that a motion be granted merely because it has been filed. See United States v. Taylor, 437 F.2d 371, 376 n. 7 (4th Cir. 1971). The statute does not bar the presentation to the court of evidentiary material tending to show that factual matters alleged as grounds for the "reasonable cause to believe" do not in fact exist. Nor is the court barred from exercising its inherent power of conducting a hearing if it wishes, not on the issue of whether the accused lacks the requisite competency but on the issue of whether there really exist factual grounds supporting "reasonable cause to believe."

When a motion is made under § 4244 that is neither frivolous nor lacking in good faith, setting forth a ground constituting reasonable cause to believe the accused may be presently so incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense, the court is then under a mandatory duty to grant a § 4244 examination. See, e. g., Featherston v. Mitchell, 418 F.2d 582 (5th Cir. 1969), cert. denied, 397 U.S. 937, 90 S.Ct. 945, 25 L.Ed.2d 117 (1970); United States v. Wilkins, 334 F.2d 698 (6th Cir. 1964); Lewellyng v. United States, supra; Caster v. United States, 319 F.2d 850 (5th Cir. 1963), cert. denied, 376 U.S. 953, 84 S.Ct. 972, 11 L.Ed.2d 973 (1964); Kenner v. United States, 286 F.2d 208 (8th Cir. 1960); Krupnick v. United States, supra; Lebron v. United States, 97 U.S.App.D.C. 133, 229 F.2d 16 (1955) cert. denied, 351 U.S. 974, 76 S.Ct. 1035, 100 L.Ed. 1492 (1956). As Judge Ainsworth of this Circuit has remarked, the mandatory rather than discretionary nature of the duty arises from "the well-established principle in our jurisprudence that public justice is not served by trial of an individual for an alleged offense when that individual; is mentally unable reasonably to comprehend the action being taken against him or to assist in the defense of his liberty." Featherston v. Mitchell, supra, 418 F.2d...