U.S. v. Green, 74-2283

• Decision Date: 21 October 1976
• Docket Number: No. 74-2283,74-2283
• Citation: 544 F.2d 138
• Parties: 1 Fed. R. Evid. Serv. 387 UNITED STATES of America v. Michael Stanley GREEN a/k/a M. S. Greene, and Lulseged Tesfa a/k/a H. Teffa. Appeal of Lulseged TESFA.
• Court: U.S. Court of Appeals — Third Circuit

Page 138

544 F.2d 138

1 Fed. R. Evid. Serv. 387

UNITED STATES of America v. Michael Stanley GREEN a/k/a M. S. Greene, and Lulseged Tesfa a/k/a H. Teffa Appeal of Lulseged TESFA.

No. 74-2283.

United States Court of Appeals Third Circuit.

Argued Sept. 7, 1976.

Decided Oct. 21, 1976.

Alan M. Lerner, Philadelphia, Pa., for appellant.

J. Clayton Undercofler, III, Asst. U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief, Appellate Section, Carmen C. Nasuti, Asst. U.S. Atty., Asst. Chief, Crim. Div., Philadelphia, Pa., for appellee.

Before VAN DUSEN, HUNTER and WEIS, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Lulseged Tesfa has appealed from a conviction under 49 U.S.C. § 1472(i) (1970) ¹ on two counts of air piracy which occurred during July 12 and 13, 1972. For the reasons stated in the district court opinion, United States v. Tesfa, 404 F.Supp. 1259 (E.D.Pa.1975), and in this opinion, the judgment and commitment of the district court will be affirmed.

The defendant and his fellow conspirator, Michael Stanley Green, were arrested on July 13, 1972, while still aboard one of the hijacked aircraft. ² An apparent suicide attempt and other behavior by the defendant, shortly after his arrest, raised the question of his competency to assist in his defense and to stand trial. Consequently his trial was severed from that of his co-defendant, and he was sent to the Medical Center for Federal Prisoners, Springfield, Missouri (hereinafter Springfield), pursuant to 18 U.S.C. § 4244. See United States v. Pogany, 465 F.2d 72, 77 (3d Cir. 1972).

Tesfa remained at Springfield until December 18, 1972, when it was ordered that he be discharged and returned to the Eastern District of Pennsylvania for trial. Prior to the time of his discharge, he was examined by the Springfield staff pursuant to a court order. The staff's consensus report, dated October 31, 1972, indicated that the defendant was malingering. ³ This report was signed by Dr. Robert Jack Eardley, then the Deputy Coordinator for Mental Health, Springfield, and three other staff physicians.

On February 1 and 2, 1973, the trial court held its first competency hearing concerning this defendant, at which the testimony of several experts was received, including that of Dr. Eardley who testified as the court-appointed expert under 18 U.S.C. § 4244. After this hearing, the defendant was adjudged competent to stand trial. The defendant was incarcerated in Holmesburg Prison, Philadelphia, to await his trial.

On May 14, 1973, because of information received from the Holmesburg medical staff, the trial judge held another competency hearing, adjudged the defendant to be incompetent, and ordered him to be returned to Springfield. Among those who testified at the May 1973 hearing that the defendant was incompetent was Albert Levitt, Chief Psychologist for the Court of Common Pleas of Philadelphia County. ⁴

Upon his return to Springfield, the defendant was observed and examined by the staff over a prolonged period. However, as early as December 1973, the staff concluded that he was competent. On October 15, 1974, the trial judge began another pre-trial competency hearing. In a pre-trial competency determination in October 1974, Dr. Eardley again acted as the court's appointed expert under the provisions of 18 U.S.C. § 4244 (1970), ⁵ examined the defendant at Philadelphia on October 16, and testified that defendant was competent to stand trial; his testimony before the district court is challenged by defense counsel on this appeal (pages 29ff. and 41 & 42 of defendant's brief). In response to questions from the court, defense counsel stated that he was able to communicate with Tesfa. ⁶ The trial judge again found defendant competent (404 F.Supp. at 1263) and commenced the process of selecting a jury, after conducting a suppression hearing on October 17-18.

During the period of jury selection, the defendant behaved strangely in and out of the court room. ⁷ On October 23, 1974, the trial judge telephoned Dr. Eardley to report the defendant's behavior to him and to ascertain if this behavior in any way altered Dr. Eardley's earlier conclusion that the defendant was competent but malingering. Defense counsel was not present at nor a party to the call; however, the reasons for the call, the conversation which transpired, and Dr. Eardley's response were discussed by the trial judge in open court with defense counsel. No objection to the call was made by counsel at the time of this discussion. ⁸

At the completion of the jury selection process, on October 29, 1974, the court held another hearing on the issue of Tesfa's competency. Dr. Eardley testified in open court as the court's expert. On the day of his testimony, the court had allowed him an opportunity to review in chambers the record of the defendant's behavior during the period of jury selection; ⁹ the defendant contends that this opportunity for review also served to deny him the due process right of a full and open hearing and that it revealed a predisposition by the court to find that the defendant was competent. Dr. Eardley re-examined the defendant on October 29, along with Lois Briggs, a consulting psychologist at Springfield, who first interviewed Tesfa in August 1973. These two experts concluded that he was competent and disagreed with the conclusions of the privately retained defense expert, Dr. Gerald Cooke. Although by this time a consultant for the prosecution, Mr. Levitt, was called as a witness by the defense, his conclusions as to the defendant's competency supported those of Dr. Eardley.

Trial recommenced on October 30, 1974, continuing without any further competency hearings until November 21, 1974, when, after two hours and 55 minutes of deliberation, the jury returned a verdict of guilty on both counts of the indictment (see page 2 above).

At intervals, throughout the course of the trial, it was reported to the court that the defendant was not communicating with defense counsel or assisting in the presentation of his defense. ¹⁰ However, it was also reported to the court that when out of the view of the prosecutor, his counsel, the jury and the trial judge, the defendant's behavior was substantially different from the appearances of mental impairment he gave in the presence of the above-listed persons. ¹¹ On November 22, 1974, at a post-trial competency hearing, the trial judge revealed that from October 30 he had maintained careful notes of the defendant's behavior in the court room and had directed his law clerks to observe and record the defendant's actions when the defendant was outside of his observation. ¹² Each law clerk testified to observations consistent with an affected pose of mental impairment at times, including staring into space, looking at his fingers, holding them up and moving them around, laughing at inappropriate times, staring at people, etc. N.T. 15-30 ¹³ (Doc. 212, Crim. No. 72-425, E.D.Pa.). However, when the above-listed persons were not present, "Mr. Tesfa perked up and went to talk to his mother and talked to the marshals, got a cigarette from them and acted in a rather normal manner, seemed to easily communicate with them . . . and when the attorneys and Your Honor came back in he resumed his staring during the jury selection." Also, the defendant appeared to pay close attention to the expert testimony presented by both sides (e. g., N.T. 16, 19-21).

Further post-trial testimony concerning the defendant's competency was taken on November 22 (the day after return of the guilty verdict), December 3 and 10, 1974, Dr. Eardley testified during the course of these post-trial hearings, as did the defendant's privately retained experts, Dr. Cooke and Dr. Robert L. Sadoff, who had testified for the defendant in February 1973 and at trial. At the conclusion of the proceeding on December 10, 1974, defense counsel suggested for the first time that the trial judge's opinion of the defendant's competency was fixed and thus a different, independent expert should be appointed by the court to review the relevant testimony (pages 273-78 of Doc. 214, Crim. No. 72-425, E.D.Pa.). The court rejected this suggestion, but invited defense counsel to submit any additional evidence that he cared to provide. Nothing further was ever offered.

I. COMPETENCE OF THE DEFENDANT TO STAND TRIAL ¹⁴

A. Alleged prejudgment by the district court of defendant's competency to stand trial

For the first time the defendant, through his counsel, orally argued to this court that the trial judge denied him the fair trial mandated by the due process clause of the Fifth Amendment because he prejudged the issue of defendant's competency to stand trial through excessive reliance on the testimony of Dr. Eardley. ¹⁵ After a careful review of the record, we have concluded that the evidence fully justified the conclusion of the trial judge that the defendant was mentally competent to understand the proceedings against him and to assist his counsel in his defense, had he so desired, during (a) the selection of the jury, (b) his trial in October-November 1974, and (c) at the time of his sentencing in December 1974. See United States v. Tesfa, supra, at 1261-70 of 404 F.Supp.

B. The impartiality of Judge Ditter and Dr. Eardley

In United States v. Pogany, supra, Judge Hunter pointed out at page 77:

"Congress through Section 4244 has assured an accused that if his mental capacity to cope with the complexities of trial is in doubt, there will be a judicial determination of that issue. If made in good faith and not patently frivolous a Section 4244 motion requesting a psychiatric examination must be granted. (Citing cases.) Section 4244 provides that where the psychiatric report indicates a present state of mental incompetence, a hearing must be conducted for judicial determination of that issue. In applying § 4244, an accused is considered to have the mental capacity to stand trial if he 'has...