Malinauskas v. U.S., 74-1256

• Citation: 505 F.2d 649
• Decision Date: 19 December 1974
• Docket Number: No. 74-1256,74-1256
• Parties: Joseph V. MALINAUSKAS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 649

505 F.2d 649

31 A.L.R.Fed. 363

Joseph V. MALINAUSKAS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 74-1256.

United States Court of Appeals, Fifth Circuit.

Dec. 19, 1974.

Gregory A; Presnell, Orlando, Fla. (Court-appointed), for petitioner-appellant.

Jeffry Jontz, Robert Leventhal, Asst. U.S. Atty., Orlando, Fla., for defendant-appellee.

Before BROWN, Chief Judge, and AINSWORTH and DYER, Circuit Judges.

AINSWORTH, Circuit Judge:

Joseph V. Malinauskas, appellant, unsuccessfully sought relief in the District Court under 28 U.S.C. 2255, contending that his prior guilty plea of having violated the federal bank robbery statute, 18 U.S.C. 2113, was invalid upon essentially two grounds: (1) that he was mentally incompetent to plead guilty; and (2) that he was under the influence of drugs at the time of the plea. ¹

This appeal presents a question of law which has not previously been answered by this Court. We must determine the proper criteria for assessing the degree of mental competence required, of an accused who pleads guilty, to satisfy the demands of voluntariness under Rule 11, Fed.R.Crim.P. The contention of appellant is that competency to plead guilty voluntarily is of a higher degree than competency to stand trial. The District Court in its order denying relief obviously equated the two standards. We agree and, finding no merit to petitioner's additional contentions, affirm.

Petitioner was indicted on two counts of violations of 18 U.S.C. 2113. On arraignment, petitioner, represented by retained counsel, entered a plea of not guilty or not guilty by reason of insanity. Subsequent to arraignment petitioner was examined by Dr. Michael Gutman, psychiatrist, and Dr. Robert Edelman psychologist, who consulted with each other and then rendered written reports to petitioner's counsel.

Dr. Gutman reported that he interviewed petitioner and evaluated him in accordance with counsel's request. He found 'no evidence of psychotic thinking or behavior.' Petitioner was 'friendly and cooperative and appeared to be quite depressed over his present plight. There were strong leanings toward antisocial acting out, but there was also evidence of a very deep inner insecurity and feeling of inadequacy and lack of self-confidence and self-esteem. His intellectual functioning was very good and there was no evidence of organic deficit in his judgment. He showed a tendency toward understanding of what was right and what was wrong, but his ego control mechanisms indicate that he does not always have the ability to display control over his impulses.' Dr. Gutman concluded his report on petitioner by stating:

'I do not feel that this man is psychotic, nor does he fit either the Mcnaughten's Rule or the American Law Institute criteria for lack of criminal responsibility. I believe he is responsible for his acts. He is able to aid and assist counsel in his own defense.'

Dr. Edelman reported the significance of results of certain psychological evaluation tests administered to petitioner. He interpreted his behavioral pattern as 'consistent with self-punitive behavior because of its inept, obvious and eventually self-defeating nature.' His diagnostic impression on the basis of behavioral observation and test responses was 'dissociative reaction.'

As a result of these reports petitioner, again represented by retained counsel, withdrew his pleas on April 27, 1971 and entered a plea of guilty to Count 2 ² of the indictment, whereupon the Government dismissed the first count. Appellant was sentenced to thirty years' imprisonment at the Atlanta federal penitentiary.

This section 2255 petition was subsequently filed and an evidentiary hearing granted, for which counsel was appointed to represent petitioner. Prior to the hearing, petitioner by motion requested that seven witnesses, who allegedly observed his conduct prior to his plea, be subpoenaed to testify in regard to whether or not petitioner was mentally competent to enter an intelligent and voluntary plea. Appellant contended in his motion that the testimony of each of the seven witnesses, five of whom were incarcerated convicts, would corroborate his contention that his plea of guilty was the product of a mental disorder which created an irresistible impulse to suffer self-punitive action, that he had suicidal tendencies and that he was under the influence of drugs at the time that he changed his plea. The District Court permitted the subpoenaing of Edsel Griffin, a prisoner who had been incarcerated in the same cell block with petitioner, and the prison chaplain, James Bryan, who had ministered to petitioner prior to the entry of his plea, but denied the motion in respect to the additional five potential witnesses.

At the evidentiary hearing the District Court heard testimony of petitioner, his former retained counsel, the two witnesses subpoenaed at the request of petitioner, Doctors Gutman and Edelman who had reexamined petitioner prior to the hearing, and Dr. Robert James MacMurray, psychiatrist, whom the judge had appointed to examine petitioner several days before the hearing. ³

Although there was testimony to the effect that petitioner was depressed, emotional, neurotic and tending toward self-punitive behavior, there is nothing in the evidence which would have caused the district judge to conclude that petitioner was mentally incompetent to intelligently and voluntarily plead guilty. To the contrary, Dr. Gutman, who had examined petitioner prior to his plea and again before the evidentiary hearing, was of the opinion that petitioner was mentally competent to stand trial, was aware of and understood the charges against him and capable of assisting counsel in his own defense. Dr. MacMurray's testimony corroborated that of Dr. Gutman. While Dr. Edelman expressed some doubt as to petitioner's ability to plead guilty, he admitted that had he been aware of petitioner's social history and involvement in prior crimes, he would have reconsidered his diagnosis.

The standard for mental competence of an accused to voluntarily plead guilty.

Counsel for appellant expressly admits that the district judge complied with all the 'technical requirements of Rule 11,' but contends that a different medical-legal standard should apply to the voluntariness of a guilty plea and that a defendant's competence to stand trial is not determinative of the issue.

Based on the evidence adduced at the hearing, the District Court found 'that the petitioner was competent to understand the nature of the proceedings against him and to assist his counsel in those proceedings at the time of the change of plea on April 27, 1971.' We have no difficulty in finding that the conclusion by the District Court is abundantly supported by both the medical and lay evidence and the record itself at the time of change of plea. This, however, does not fully answer appellant's contention. Admittedly, the District Court applied the Supreme Court's standard for judging an individual's competency to stand trial, set out in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960), in the following language: 'The test must be whether (the accused) 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.' ⁴

While appellant concedes that the test for competency to enter a guilty plea has not been precisely stated by the Federal Courts, he nevertheless contends that the standard of competency should be higher for the entry of a plea than that applied for a person to stand trial. In the case of In Re Williams, D.D.D. 1958, 165 F.Supp. 879, 881, cited by appellant, the psychiatric testimony established that petitioner did not completely understand the nature of a guilty plea or the nature of the punishment to be meted out. The court said: 'The issues involved in the plea of guilty and the consequences which attach to a plea require a greater degree of awareness than the competency to stand trial.' The D.C. Circuit quoted the Williams test in McCoy v. United States, 1966, 124 U.S.App.D.C. 177, 363 F.2d 306, 307 n. 3. There the court, in addressing itself to the discretion vested in the court to refuse to accept a plea of guilty voluntarily made with an understanding of the nature of the charge, cautioned that 'the plea should not be refused without good reason' and cited the Williams language for comparison. Language from United States v. Kincaid, 4 Cir., 1966, 362 F.2d 939, also relied on by appellant, is merely suggestive of the need of expansion of judicial inquiry beyond the requirements of Rule 11. The rule, commented the court, 'requires something more than conclusionary questions phrased in the language of the rule. It contemplates such an inquiry as will develop the underlying facts from which the court will draw its own conclusion.' Id. at 941. This observation by the court in Kincaid is in no way inconsistent with the District Court's application of the express and implied requisites of Rule 11. At the time of the entry of the guilty plea, defense counsel informed the court, in Malinauskas' presence, of the psychiatric and psychological examinations conducted and the results of those examinations which militated against the plea of insanity. ⁵ Thereafter, the court in an effort to determine if defendant acquiesced in counsel's advice ascertained from defendant that he had been represented by his attorney since shortly after apprehension, that he had had opportunity to consult with counsel during that time and that he was satisfied with the representation given him.

In arguing for a higher standard of competence for a voluntary guilty plea, appellant refers us to certain language in Johnson v. United States, 5 Cir., 1965, 344 F.2d 401, and White v United States, 5 Cir., 1972, 470 F.2d 727. In White we...