U.S. v. Hogan

• Decision Date: 03 March 1993
• Docket Number: No. 90-5595,90-5595
• Citation: 986 F.2d 1364
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Joseph HOGAN, a/k/a Hal Winter; Michael Trupei, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1364

986 F.2d 1364

UNITED STATES of America, Plaintiff-Appellee, v. Charles Joseph HOGAN, a/k/a Hal Winter; Michael Trupei Defendants-Appellants.

No. 90-5595.

United States Court of Appeals Eleventh Circuit.

March 3, 1993.

C. Craig Stella, Ft. Lauderdale, FL, for Hogan.

Barry L. Halpern, Coconut Grove, FL, for Trupei.

Dexter W. Lehtinen, U.S. Atty., Miami, FL, Michael Walleisa, Asst. U.S. Atty., Linda C. Hertz, Alice Ann Burns, Anne M. Hayes, Ft. Lauderdale, FL, for U.S.

Appeals from the United States District Court for the Southern District of Florida.

Before FAY, DUBINA and CARNES, Circuit Judges.

CARNES, Circuit Judge:

This case is an appeal by two defendants from convictions for conspiracy to possess a controlled substance with intent to distribute, conspiracy to manufacture a controlled substance with intent to distribute, and the use of a telephone to facilitate the manufacture and distribution of such substances.

In March 1988, Appellant Charles Joseph Hogan, a 74-year-old man with impaired hearing, was introduced by a confidential informant to Detective Alfred Scotti of the Fort Lauderdale, Florida Police Department. Scotti posed as a drug dealer willing to transport drugs from one area to another. Hogan spoke to Scotti about transporting one or two 55-gallon drums of phenylacetone ("P-2-P"), a controlled substance, from Germany to the United States. Hogan told Scotti how he had used P-2-P to make methamphetamine, also a controlled substance, in the past. Hogan and Detective Scotti agreed to meet again to further discuss a possible venture.

The conspiracy developed over subsequent meetings and telephone conversations, many of which were recorded by government agents. The parties' plans changed several times during the course of the conspiracy, and included variations in the source of drugs and chemicals, the nature and quantity of the drugs, and the means and route by which they would be transported. Appellant Michael Trupei was involved in these conversations as a contact with German or Brazilian suppliers of P-2-P and as a potential pilot for air transport of the materials. He was implicated by Hogan numerous times and incriminated himself to undercover agents in the two meetings at which he was present. No transaction ever occurred and no drugs were ever seized.

Charles Hogan was arrested and charged with conspiring both to possess P-2-P with intent to distribute and to manufacture and distribute methamphetamine (Count One); conspiring to possess cocaine with intent to distribute (Count Two); using a telephone to facilitate both the possession of cocaine with intent to distribute (Count Three); and the manufacture and distribution of methamphetamine (Counts Four through Ten). Trupei was charged under Count One along with Hogan and two other codefendants who are not before the Court in this appeal. The case proceeded to trial and Hogan was convicted by a jury on Counts One, Two, Four, Eight, and Ten. Trupei was convicted as charged under Count One. Both appellants are presently incarcerated.

Hogan claims on appeal that he was incompetent to stand trial and that the district court committed error in admitting his prior conviction for conspiracy to manufacture methamphetamine and possess cocaine. Trupei argues that the evidence was legally insufficient to convict him, that he was unfairly prejudiced by the district court's refusal to sever him from Hogan's trial, and that the transcripts of recorded conversations were erroneously admitted into evidence based on an improper foundation. Each issue will be discussed in turn.

I. COMPETENCY TO STAND TRIAL

Hogan's attorney questioned his competence to stand trial, and the district court held a hearing on the issue. After hearing the evidence, the court found that Hogan was competent to stand trial, a determination Hogan contests on this appeal. ¹

At the competency hearing Dr. Joel Klass, a psychiatrist, testified in Hogan's behalf, stating that while Hogan appeared superficially competent, there were areas of "Alzheimer changes," that Hogan's rendition of events leading up to his arrest was not coherent, and that he had trouble putting things in context accurately and giving specific dates. Although Dr. Klass found Hogan at least marginally competent, given the complexity of the case against him, it was his professional opinion that Hogan would have trouble assisting counsel in preparing a theory of defense or cross examination of government witnesses.

The government's expert psychiatric witness, Dr. Albert Jaslow, also examined Hogan and testified that he had a rational and factual comprehension of the proceedings against him and sufficient ability at the time of the hearing to consult with his lawyer with a reasonable degree of rational understanding. The district court found Hogan competent to stand trial.

A. The Standard of Review

Beginning our review of the district court's finding of competency to stand trial with a search for the proper standard of review to be applied to such a finding, we run directly into a split of authority in this Circuit. We are certainly not the first panel to note the problem of our conflicting precedents on the issue of the standard of appellate review applicable to competency determinations. Writing for this Court in Bundy v. Dugger, 850 F.2d 1402, 1408 n. 5 (11th Cir.1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 849, 102 L.Ed.2d 980 (1989), Judge Johnson, beginning with charitable understatement, noted:

From our predecessor circuit we have inherited two somewhat inconsistent lines of authority with respect to the standard of review we should apply to the district court's finding that Bundy was competent to stand trial. Under one line of cases a district court's finding of competency to stand trial is a finding of fact that can be set aside only if clearly erroneous or arbitrary. See United States v. Hayes, 589 F.2d 811, 822 (5th Cir.), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979); United States v. Fratus, 530 F.2d 644, 647 (5th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 130, 50 L.Ed.2d 118 (1976); United States v. Stone, 472 F.2d 909, 913 (5th Cir.1973), cert. denied, 449 U.S. 1020, 101 S.Ct. 586, 66 L.Ed.2d 482 (1980); United States v. Gray, 421 F.2d 316, 317 (5th Cir.1970); see also United States v. Birdsell, 775 F.2d 645, 648 (5th Cir.1985), cert. denied, 476 U.S. 1119, 106 S.Ct. 1979, 90 L.Ed.2d 662 (1986). This is consistent with the approach taken by other circuits. See, e.g., McFadden v. United States, 814 F.2d 144, 146 (3d Cir.1987); United States v. Lovelace, 683 F.2d 248, 251 (7th Cir.1982); Chavez v. United States, 656 F.2d 512, 517 (9th Cir.1981); United States v. Caldwell, 543 F.2d 1333, 1349 (D.C.Cir.1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) (all using the clearly erroneous standard). In another line of cases, however, the Fifth Circuit has been less deferential, reviewing historical facts under a clearly erroneous standard but taking a more stringent "hard look" at the district court's ultimate finding of competency. See Lokos v. Capps, 625 F.2d 1258, 1267 (5th Cir.1980); Bruce v. Estelle, 536 F.2d 1051, 1059-60 (5th Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977); United States v. Makris, 535 F.2d 899, 907 (5th Cir.1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 803 (1977); see also Wheat v. Thigpen, 793 F.2d 621, 631 (5th Cir.1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1566, 94 L.Ed.2d 759 (1987).

See also United States v. Caraza, 843 F.2d 432, 437 (11th Cir.1988) ("This court cannot overturn a district court's competency determination unless it was 'clearly arbitrary or unwarranted.' "). Another panel in United States v. Clark, 893 F.2d 1277, 1281 (11th Cir.), cert. denied, 494 U.S. 1090, 110 S.Ct. 1833, 108 L.Ed.2d 962 (1990), concurred in the Bundy panel's observation, noting that "[t]here has been a divergence ... in binding authority on the issue." As the observations in the Bundy and Clark opinions evidence, we have an intracircuit split of authority on the standard of review applicable to a district court's competency finding.

Ideally, the phrase "intracircuit split of authority" should be oxymoronic, because it is the firmly established rule of this Circuit that each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court. E.g., Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). Unfortunately, no one is perfect, least of all federal appellate judges, and from our mistakes and oversights spring inconsistent decisions which we must deal with as best we can.

Given the delicate nature of the task, it is not surprising that one of the most favored means for resolving an inconsistency in circuit precedents is to determine that the inconsistency is more apparent than real. A panel of this Court is obligated, if at all possible, to distill from apparently conflicting prior panel decisions a basis of reconciliation and to apply that reconciled rule. Unfortunately, the present issue is one in which the conflict in our precedents is as real as it is apparent, and no reconciliation is possible, at least not so long as the focus is on circuit precedent per se.

Another common method for dealing with intracircuit conflicts is to recognize the split of authority and then proceed to determine whether the facts of the case at hand are such that resolution of the conflict is unnecessary to dispose of the case. Such an approach is often efficient and appropriate, but it has drawbacks. One is that it might appear to some cynical observers that judges could conceivably be tempted, if only subconsciously, to read the facts of a case in such a way as to avoid the more troublesome prospect of dealing with the conflict of authority. We are confident that no judge would...