U.S. v. Swanson

Decision Date05 May 1978
Docket NumberNo. 76-3484,76-3484
Citation572 F.2d 523
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert Hilton SWANSON and Jack Lavoied Phipps, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Charles Van Mottola, Newnan, Ga., (Court-appointed), for Swanson.

John A. Nuckolls, Atlanta, Ga., (Court-appointed), for Phipps.

William L. Harper, U. S. Atty., Glenna L. Stone, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before JONES, GODBOLD and GEE, Circuit Judges.

GODBOLD, Circuit Judge:

Phipps and Swanson were jointly indicted and convicted of conspiracy and extortion through the mails in violation of 18 U.S.C. §§ 371 and 876. Swanson alleges that the evidence was insufficient to support his conviction. Phipps primarily contends that the trial court erred in refusing to grant a continuance because his amnesia concerning the events constituting the crime rendered him incompetent to stand trial. Phipps' other contentions are discussed below. We affirm the convictions.

On February 12, 1976, 28 residents of LaGrange, Georgia, received threatening letters, each stating that a member of the addressee's family would meet a "FATEL (sic) accident" if the addressee did not give $1,000 per month to "a man sent by our company." These frightening communications were the product of what appears from the record to be almost casual planning and participation.

Swanson and Phipps had been introduced by a mutual acquaintance, Adamson. On approximately January 17, 1976, Swanson received a phone call from an unnamed person whom he later identified as Phipps. The caller stated that he had a $2,000 per month job for Swanson. Swanson, after learning enough details to characterize the scheme to his friends as "blackmail," asked the caller to send him a letter outlining the particulars. After a second phone call Swanson received an unsigned letter on January 22, 1976, describing his role in the scheme. The letter advised him to attempt to convince several named persons in Carrollton, Georgia, to act as collection agents. Acting according to the instructions in the letter, Swanson tried to telephone Hall, Pike and Dobson. Only Dobson could be located, but he declined the offer of employment after learning a few details.

Further acting according to instructions in the letter, Swanson supplied his mysterious correspondent with the names of 25 LaGrange, Georgia, men with families. Swanson later discussed these men and their financial status over the phone with the person he identified as Phipps. Sixteen of the persons who received extortionate letters were on the list prepared by Swanson.

On February 11, 1976, the postmark date of the extortion letters, Phipps traveled from Carrollton, Georgia, to Thomaston, Georgia, to visit his parents. A letter mailed along the route would have carried the same postmark as the extortion letters. On his way to Thomaston, Phipps visited a former employer, Charles Carter, at his home. The visit, though uneventful, is significant because the extortion letters advised the recipients to "Check the postmark date of this letter and a Carrollton, Ga. newspaper and you will realize the letter was mailed the night before the FATEL (sic) accident in the Charles Carter family of Carrollton, Ga." The letters were received by the addressees on February 12. Phipps stayed in Thomaston from February 11 until February 13. Phipps left Georgia for Florida but voluntarily returned to answer questions by the FBI.

The government presented strong circumstantial evidence to connect Phipps to the crime. The letter to Swanson and all the extortion letters bore one or more of Phipps' fingerprints or palmprints on the letter or envelope. The typewriter used for the letters was one to which Phipps had free access. In a spelling test administered by the FBI, Phipps misspelled the same words misspelled in the letters. Moreover, Swanson identified Phipps as his mysterious caller.

I. Phipps continuance because of amnesia

Prior to trial Phipps moved for a dismissal. 1 Phipps claimed that he suffered amnesia and was unable to recall the telephone calls to Swanson or mailing the letters, although he had otherwise normal recall of his activities between January 20 and February 12, 1976. Phipps contended that because of his inability to recall crucial events he was unable to participate in his defense and, thus, should not be required to stand trial.

Pursuant to 18 U.S.C. § 4244, Phipps was examined by his own and government psychiatrists. The defense's expert, Dr. Hendry, classified Phipps' inability to remember as hysterical amnesia and diagnosed Phipps as suffering from a dissociated state. Dr. Hendry had administered sodium amytal, a barbiturate, to Phipps. He testified that while under the influence of the drug Phipps was able to recall facts that, were he able to recount them on the stand, would either exculpate him or substantially rebut the government's case. The government psychiatrist did not directly contradict Dr. Hendry, although he testified that one suffering from the more usual sort of amnesia cannot recall anything that occurred during the amnesiac period. The court found Phipps capable of standing trial.

The federal standard for judging competency to stand trial prohibits trial if the court finds the accused to 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. . . ." Dusky v. U. S., 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), elaborated upon the § 4244 test and held that the

test must be whether (the defendant) 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.

Several constitutional concerns underlie Dusky and § 4244. At bottom, § 4244 enforces the due process requirement that no person be convicted of a crime while he is incompetent to stand trial. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Beyond this elemental concern, Dusky makes clear that § 4244 also is concerned with protecting an accused's Fifth and Sixth Amendment rights to a fair trial and effective assistance of counsel. See Wilson v. U. S., 129 U.S.App.D.C. 107, 391 F.2d 460 (1968).

While bearing in mind these constitutional and statutory issues, we decline, as have all other courts to consider the problem, 2 to hold that amnesia per se constitutes incompetency to stand trial. Rather, recognizing that the fundamental fairness of trying an amnesiac defendant may vary depending on the crime and the circumstances surrounding the claimed loss of memory, we hold that the propriety of trying an amnesiac defendant is a question to be determined according to the circumstances of each individual case. 3

Although the competency determination cuts to the heart of the trial process, the standard for determining the competency of an amnesiac defendant must remain flexible. Amnesia is a complex condition that may be caused by a variety of factors. See Comment, Amnesia: A Case Study in the Limits of Particular Justice, 71 Yale L.J. 109 (1961). Because nonpathological amnesia may be difficult to ascertain, the district judge is in the best position to make a determination between allowing amnesia to become an unjustified haven for a defendant and, on the other hand, requiring an incompetent person to stand trial.

The inquiry may proceed on two levels. At the subjective level, the district court may apply the Dusky standard and look to the defendant's present ability to consult with counsel and to understand the proceedings against him. In evaluating the propriety of requiring the trial to proceed, the court may additionally consider other factors relevant to the defendant's particular situation. These might include the defendant's present ability to take the stand on matters other than the amnesiac event and whether the defendant suffers from some other pathological or psychological condition apart from the amnesia that hinders his present ability to participate in his defense. See U. S. v. Wilson, supra. One important factor is whether a continuance is likely to do any good. Granting a continuance to a defendant whose amnesia has been diagnosed as temporary may materially increase his ability to stand trial. If the amnesiac condition is unlikely to abate, the judge may question whether the defendant will ever be in any better position to stand trial. A presently incompetent defendant may never be able to stand trial and may have to be released. See Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). On the other hand, a presently competent defendant whose amnesia seems permanent would not benefit from a continuance; moreover, because the continuance would delay the trial the recall of other witnesses would decrease, making it more difficult to give the amnesiac defendant a fair trial. Finally, the judge can evaluate the nature of the amnesia and the strength of the evidence that the condition is real and not feigned.

The necessity for a continuance should also be considered from the objective standpoint of whether the defendant can receive a fair trial despite his amnesia. Among the relevant questions bearing on fair trial and effective assistance of counsel which the judge might consider are these: Can the crime and the defendant's whereabouts be reconstructed without his testimony? The strength of the case against the defendant may make his own testimony less critical than in a weaker case. Would access to government files help the defendant prepare a defense? If information held by the prosecution could fill in gaps in the defendant's memory, the possibility of prejudice may be lessened.

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