U.S. v. Caplan

• Decision Date: 01 December 1980
• Docket Number: No. 79-1374,79-1374
• Citation: 633 F.2d 534
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elliott CAPLAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 534

633 F.2d 534

UNITED STATES of America, Plaintiff-Appellee, v. Elliott CAPLAN, Defendant-Appellant.

No. 79-1374.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 10, 1979.

Decided Dec. 1, 1980.

Norman R. Freeman, Tucson, Ariz., for defendant-appellant.

Jon R. Cooper, Tucson, Ariz., on brief; Rhonda L. Repp, Asst. U.S. Atty., Tucson, Ariz., argued for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before KENNEDY, TANG and ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

I. PROCEDURAL BACKGROUND

Elliott Caplan, under the alias of Vernon Frank Mitchell, was charged by indictment in the District of Arizona on January 12, 1977 with conspiracy to possess marijuana with the intent to distribute and conspiracy to import marijuana in violation of Title 21, United States Code, §§ 841(a)(1) and 846, and §§ 952(a), 960(a)(1) and 963, respectively. On September 14, 1978, appellant's trial counsel made a motion requesting a psychiatric examination to determine appellant's competence to stand trial pursuant to 18 U.S.C. § 4244 ¹ and to determine appellant's sanity at the time of the commission of the offense. ² In part, the motion stated that "the defendant is presently being examined by Dr. Marshall Jones and Dr. Allan Beigal as a result of a Rule 11 motion filed and granted in Pima County Superior Court, and, therefore, their findings and reports might suffice for the purposes of this motion." ³ The prosecution also filed a motion on October 11, 1978, expressing doubt as to appellant's competency to stand trial and requesting that the court consider the two psychiatric reports referred to in appellant's motion. Accordingly, on October 13, 1978, a hearing was held to determine appellant's competency to stand trial. Based upon the evidence submitted, the court found appellant incompetent to stand trial and vacated his trial date. ⁴

Pursuant to an order of the Pima County Superior Court dated October 30, 1978, appellant was committed to the Arizona State Hospital as incompetent to stand trial on the state charges. During this commitment, appellant was subjected to psychiatric evaluation. A psychiatric examination report prepared for the Pima County Superior Court was forwarded to the United States District Court of the District of Arizona. This evaluation was received by the federal court on March 7, 1979. An order was entered on March 16th by United States District Judge Mary Anne Richey stating that all pending matters in appellant's case would be heard before the Honorable Robert C. Belloni on March 26, 1979 and that the trial date would be set for March 29, 1979 before the same judge.

On March 26, 1979 Judge Belloni heard and granted appellant's motions for disclosure of the Grand Jury transcript and for a Bill of Particulars. He also set the trial to begin the afternoon of March 28th instead of the morning of the 29th.

The court's attention then turned to the matter of appellant's present competency to stand trial:

"THE COURT: The Clerk tells me that you wish to discuss the competency matter.

MR. JENSEN (defense counsel): The Clerk brought it up to me, your Honor, or to us, that no formal determination I believe of the Defendant's competency has been made in this Court. One has been made, I believe, in state Court.

THE COURT: That he is incompetent that he is competent to stand trial

MR. JENSEN: Right, in state Court.

THE COURT: and assist in his own defense?

MR. JENSEN: At the time it was made, your Honor.

THE COURT: I have the

MR. JENSEN: I beg to differ with it, but then I considering the Defendant's medical background and the various institutions he's been in, he's been in solitary confinement in St. Peters Institution for 23 days. That didn't do him much good. He's been in confinement at various other places, and he's been seen by various other psychiatrists and counseling personnel for three years.

Irrespective of what the state Court has said based on here and the state hospital, I would submit that there's some doubt as to the Defendant's competency.

THE COURT: Well, I think what the Clerk said, and I agree too, if there's a competency matter to be raised, it should be raised now rather than the last minute.

MR. JENSEN: I agree, your Honor.

THE COURT: I have read a sealed report of Dr. Michael F. Cleary of the Arizona State Hospital. Have you had a chance to see it?

MR. JENSEN: I have it. Not today, your Honor, but I have

THE COURT: But you have seen it?

MR. JENSEN: Yeah. A copy was sent to me.

THE COURT: Okay. Well, are you agreeable that the Court can consider this report?

MR. JENSEN: I would I have no objection to being submitted to that doctor, and that report would have to be

THE COURT: All right.

MR. JENSEN: considered, as much as I beg to differ with it, your Honor.

THE COURT: Certainly. Well, his conclusion seems to be that there simply is no that there is no mental defect and that he is competent to stand trial. And I also find that he is competent to participate in the proceedings and to assist in his own defense. So having that out of the way, then it will not have to be brought up at the last minute.

Is there anything else?

MR. JENSEN: No, your Honor.

MR. COOPER: No, your Honor.

THE COURT: All right."

The proceedings were adjourned. Trial began on March 28th and concluded on March 29th, when the jury brought in a verdict of guilty on each count charged.

II. THE PROSECUTION'S EVIDENCE

The prosecution's case against appellant was based primarily upon the testimony of Alma Waits. Waits was indicted as a co-conspirator, pled guilty, and cooperated with the prosecution in testifying against appellant. According to her testimony, Waits took over her husband's marijuana business in January, 1976 when he was sentenced to serve a prison term. Waits first dealt with appellant in February, 1976 through a middleman. However, the middleman was quickly eliminated and Waits began dealing with appellant directly.

In July, 1976, Waits contacted appellant to ask if he wanted to purchase marijuana. During negotiations, which took place at Waits' "stash house," ⁵ appellant expressed his dissatisfaction with the small quantity and high price of the particular marijuana that was available. Waits explained that things were tight at the border and that her Mexican suppliers were having difficulty getting the marijuana into the United States. Appellant advised her that she should "push harder." Subsequently, appellant met with Waits' Mexican suppliers directly in late July or early August, 1976. A large quantity of marijuana had already been delivered to appellant. He had not paid Waits for it, so she had not yet paid the suppliers. Nonetheless, appellant attempted to persuade the suppliers to deliver more and offered to pay for the total amount when the additional contraband was received. The Mexican suppliers told appellant that they could not purchase more marijuana to bring across the border until they had been paid for that which they had already delivered. These negotiations went on for two or three days.

Another sale, for approximately 200 pounds of marijuana, was negotiated in August, when appellant again met with the Mexican suppliers to argue over the price, quality and quantity of the shipment. He complained that the marijuana had too many sticks and seeds and that his people back east would not like it. Appellant, nonetheless, purchased the full 200 pounds offered.

In what was apparently their last transaction, Waits delivered a quantity of marijuana to appellant in Oklahoma City around the beginning of December, 1976, on the understanding that appellant would pay her for it when he had resold it in the east. Appellant subsequently paid for the marijuana by mail with three separate Western Union Moneygrams. This method of payment had been used on at least one other occasion when, according to Waits' testimony, she advanced a quantity of marijuana to appellant without payment so that he could sell it in the east.

III. APPELLANT'S CONTENTIONS ON APPEAL

Appellant Caplan appeals from the judgment on three grounds: (1) the court failed to act on his motion for a psychiatric examination to determine his sanity at the time of the commission of the offense; (2) the court failed to hold an evidentiary hearing to determine whether his competency to stand trial had been restored; (3) there was insufficient evidence upon which to convict him of conspiracy to either import, possess or distribute marijuana.

1. Propriety of Disposition of Motion for Psychiatric Examination to Determine Sanity

Appellant contends that the trial court erred in failing to appoint a psychiatrist to determine his sanity at the time of the offense as requested in his motion. He correctly points out that competency to stand trial and mental condition at the time of the charged offense are separate and distinct issues. Jackson v. Indiana, 406 U.S. 715, 739, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972). As noted above, when appellant's counsel initially moved for an examination to determine appellant's competency to stand trial, he also requested that appellant's mental condition at the time of the offense be determined. Based on state medical reports, the district court found that appellant was incompetent to stand trial. After further evaluation in a state mental hospital revealed that appellant was now incompetent and that his suspicious attitude towards society did not seem to result from any specific mental disorder, the district court ruled that appellant was competent to stand trial and to assist in his own defense. Appellant did not renew his motion for an examination to determine his sanity at the time of the offense after he was found competent to stand trial. By failing to do so, he effectively abandoned his request. ⁶ Further, appellant did not rely upon a defense of insanity at his trial. The defense's case...