656 F.2d 512 (9th Cir. 1981), 78-3513, Chavez v. United States

Docket Nº:78-3513.
Citation:656 F.2d 512
Party Name:Ruben Portillo CHAVEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellant.
Case Date:September 14, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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656 F.2d 512 (9th Cir. 1981)

Ruben Portillo CHAVEZ, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellant.

No. 78-3513.

United States Court of Appeals, Ninth Circuit

September 14, 1981

Argued and Submitted March 19, 1980.

As modified Oct. 28, 1981.

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[Copyrighted Material Omitted]

Page 514

Hal D. Meltzer, Lawrence, Kan., for petitioner-appellant.

Sanford Svetcov, Asst. U. S. Atty., San Francisco, Cal., for respondent-appellant.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, Chief Judge, and KENNEDY and SKOPIL, Circuit Judges.

SKOPIL, Circuit Judge:

The government has moved to expand the record to include the transcript of the competency and guilty plea proceedings held October 7, 1976. It also moves for rehearing based on the expanded record. Despite the government's egregious and unexcused delay, we grant the motion and the petition.

The central issue on this appeal has always been whether Chavez was denied due process because the trial court failed to order, on its own motion, a hearing on Chavez's competence to plead guilty. A showing that the October 7, 1976 proceeding included such a hearing and a judicial determination of competence is of critical significance to the government's case. Before this motion to expand the record was made, our original decision in favor of the petitioner had issued, the case had been under submission for 13 months, and two years and five months had elapsed since the transmission of the record on appeal to this court.

Justice requires timeliness and finality. We are not omniscient. We must make our decisions on the basis of the record the parties, including the government, present to us. In this case the government failed in its responsibility to those it represents and to this court. Nevertheless, the interests of justice also require, in a case such as this, that we not "shield ourselves from the knowledge of what transpired below." United States v. Aulet, 618 F.2d 182, 187 (2d Cir. 1980).

The motion to expand the record and the petition for rehearing are GRANTED. Our opinion filed March 16, 1981 is WITHDRAWN and the following is substituted.

Appellant Ruben Portillo Chavez pleaded guilty to three counts of bank robbery. He moved the district court to vacate his sentence and plea pursuant to 28 U.S.C. § 2255. The district court denied the motion. Chavez appeals. Because the trial court held a hearing on Chavez's competence to plead guilty, and its determination was not clearly erroneous, we affirm.

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FACTS AND PROCEEDINGS BELOW

On May 19, 1976 Chavez was indicted by a federal grand jury on three counts of bank robbery. 18 U.S.C. § 2113(a). On the same day he was arraigned and pleaded not guilty.

On May 27, 1976 Chavez appeared with his appointed counsel before the trial judge and expressed his desire to represent himself and to plead guilty in an emotional outburst that resulted in his being removed from the courtroom. The court appointed another lawyer to counsel Chavez. On June 3 the court granted a motion made pursuant to 18 U.S.C. § 4244. Chavez was ordered committed to the correctional facility at Terminal Island for a ninety day study concerning his competence to stand trial or plead guilty. The June 3 order was expanded on June 14 to include an inquiry into Chavez's "mental competency and criminal responsibility ... at the time of the alleged commission of crimes...."

On August 23, 1976 the warden at Terminal Island sent the court a copy of the report prepared by Dr. Meyer, following the section 4244 examination.

On September 16, 1976 the trial court granted defense counsel's motion, pursuant to 18 U.S.C. § 3006A(e), for appointment of a psychiatrist to assist in pre-trial and trial preparation. The competency hearing originally scheduled for September 23 was vacated and continued to September 30.

On September 18, 1976 Dr. Levy, the independent psychiatrist appointed to assist the defense, issued a report of his findings. The report indicated that additional records concerning Chavez probably existed from earlier psychiatric treatment. Dr. Levy said his opinion about Chavez's criminal responsibility might be changed if he could see the earlier records. (He tentatively concluded that Chavez was not insane at the time of the crimes.) The defense requested a further continuation of the competency hearing and plea. On September 27 the district court continued the hearing until October 7.

On September 30, 1976 Chavez met with his counsel. Chavez told his attorney he wished to plead guilty. He apparently also dismissed his attorney at that time. On October 1 the attorney advised Chavez by letter of the possible consequences of a guilty plea. He wrote that he believed it unwise for Chavez to plead guilty or take any further action until the old psychiatric reports could be obtained for Dr. Levy's evaluation.

On October 7, 1976 Chavez appeared with counsel and pleaded guilty to the three count indictment. The hearing was denominated 'competency proceedings' in the district court docket. The court inquired about Chavez's understanding of the proceedings and his competence. Defense counsel reported that other psychiatric materials existed that might reflect on competence, but that Chavez knew what it was and did not wish to pursue it. The court specifically found Chavez competent and accepted the guilty plea. On October 20 he was sentenced to ten years imprisonment. On December 13, 1976 Chavez wrote to the court requesting modification of his sentence. The motion was denied on January 11, 1977.

Chavez filed a motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, on March 13, 1978. The motion was based on the trial court's failure to order, on its own motion, a hearing on Chavez's competency to plead guilty. As a related ground, Chavez asserted that his attorney's failure to request such a hearing deprived him of the effective assistance of counsel.

DISCUSSION

I. Introduction.

Due process requires a trial court to hold a hearing, sua sponte, on a defendant's competence to plead guilty whenever the trial judge entertains or reasonably should entertain a good faith doubt as to the defendant's ability to understand the nature and consequences of the plea, or to participate intelligently in the proceedings and to make a reasoned choice among the alternatives presented. Sailer v. Gunn, 548 F.2d 271, 275 (9th Cir. 1977). On review, our

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inquiry is not whether the trial court could have found the defendant either competent or incompetent, nor whether we would find the defendant incompetent if we were deciding the matter de novo. We review the record to see if the evidence of incompetence was such that a reasonable judge would be expected to experience a genuine doubt respecting the defendant's competence. Bassett v. McCarthy, 549 F.2d 616, 621 (9th Cir.), cert. denied, 434 U.S. 849, 98 S.Ct. 158, 54 L.Ed.2d 117 (1977). 1

II. The Section 4244 Examination.

We note at the outset that the existence of a genuine doubt about a defendant's competence is not what determines whether the court must order an examination pursuant to 18 U.S.C. § 4244. 2 A defendant's first motion for a psychiatric examination under section 4244 may not be denied unless the court correctly determines that the motion is frivolous or not made in good faith. United States v. Ives, 574 F.2d 1002 (9th Cir. 1978), cert. denied, 445 U.S. 919, 100 S.Ct. 1283, 63 L.Ed.2d 605 (1980) (Ives III ); United States v. Bodey, 547 F.2d 1383 (9th Cir.), cert. denied, 431 U.S. 932, 97 S.Ct. 2639, 53 L.Ed.2d 249 (1977); Meador v. United States, 332 F.2d 935 (9th Cir. 1964). The court need not have reasonable grounds for believing the defendant incompetent. To the contrary, a trial court is not to make such an evaluation. Meador, supra, at 938. Once the motion is made, the trial court should defer making an evaluation of competency until after the examination has taken place.

By the terms of the statute, a hearing is required "(i)f the report of the psychiatrist indicates a state of present insanity or ... mental incompetency in the accused." A hearing is not required, on the basis of the section 4244 motion alone, if the psychiatrist's report does not indicate

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present incompetence. United States v. Winn, 577 F.2d 86, 92 (9th Cir. 1978) (dictum). A judicial determination of competence or incompetence is required after the mandatory psychiatric examination, regardless of the content of the report. Clark, supra, at 184 n.5; Ives III, supra, 574 F.2d at 1005 n.3.

We recognize that the trial court expanded the psychiatric examination to encompass the question of Chavez's competence to plead guilty under its inherent power and not under the authority of section 4244. United States v. Malcolm, 475 F.2d 420 (9th Cir. 1973). Nevertheless, the trial court's focus is the same in determining the need for a hearing. If all the evidence should raise a reasonable doubt about the defendant's competence, a hearing is required for due process reasons. This is true even if the psychiatrist's report "indicates" sanity or competence and thus would not require a hearing under the statute.

After the first (mandatory) section 4244 examination and determination, it is in the district court's discretion to grant or deny subsequent motions for psychiatric examination. United States v. Cook, 418 F.2d 321 (9th Cir. 1969). The trial judge must determine if there is sufficient doubt about the defendant's competence to make further inquiry necessary to afford the defendant due process. Clark, supra, at 185; Ives III, supra, 574 F.2d at 1005. While the trial court must...

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