U.S. v. Cheama, 85-1248

• Decision Date: 05 February 1986
• Docket Number: No. 85-1248,85-1248
• Citation: 783 F.2d 165
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lennie CHEAMA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 165

783 F.2d 165

UNITED STATES of America, Plaintiff-Appellee, v. Lennie CHEAMA, Defendant-Appellant.

No. 85-1248.

United States Court of Appeals, Tenth Circuit.

Feb. 5, 1986.

Edwin Macy, Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

William L. Lutz, U.S. Atty., and David N. Williams, U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.

Before BARRETT, SEYMOUR and MOORE, Circuit Judges.

SEYMOUR, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that this case should be submitted without oral argument. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e).

Lennie Cheama challenges the constitutionality of an order of the United States District Court for the District of New Mexico, hospitalizing him under Chapter 313 of the United States Criminal Code, 18 U.S.C. Secs. 4241 et seq. (1982), amended by 18 U.S.C.A. Secs. 4241 et seq. (1985). ¹ We vacate the order and remand with instructions.

On April 20, 1983, Cheama was indicted on federal charges of murder and assault with intent to commit murder under 18 U.S.C. Secs. 111, 113, and 1153 (1982). At his arraignment, he pled not guilty to both charges. Defense counsel subsequently requested a psychiatric examination to determine Cheama's competency to stand trial. The examining physician diagnosed his condition as chronic undifferentiated schizophrenia, with possible organic brain syndrome due to drug abuse. The physician also concluded that his condition might improve with medication. The district court then transferred Cheama to the Federal Medical Center in Springfield, Missouri for treatment and further evaluation. The Medical Center confirmed the initial diagnosis, noted little improvement from treatment, concluded that he remained incompetent to stand trial, and opined that he probably would remain incompetent in the foreseeable future.

The district court received the Medical Center's report in September 1983. Cheama In May 1984, the district court held a second competency hearing. Cheama's condition had not changed. Concerned over the length of his detention in light of a poor prognosis, the court opted to proceed under former section 4247 to determine whether extended commitment, in lieu of further competency proceedings, was warranted. The Chief of Forensic Psychiatry testified that it was, but the court postponed a final decision pending completion of additional psychiatric evaluations requested by defense counsel.

                immediately moved to dismiss the indictment, claiming in summary fashion that the Government could not detain him indefinitely and that the Federal Medical Center was an inadequate treatment facility.  Proceeding under the authority of former sections 4244 and 4246, the district court held a hearing, found Cheama incompetent to stand trial, and remanded him to the custody of the Attorney General until either he became competent or the charges were dropped.  The court also ordered a report on Cheama's condition within six months.  A panel of this court dismissed Cheama's subsequent appeal.    See United States v. Cheama, 730 F.2d 1383 (10th Cir.1984).  Observing that the district court had yet to make a final determination of Cheama's competency to stand trial and was otherwise clearly proceeding properly under former sections 4244 and 4246, the panel concluded that the appeal was premature and remanded the case for further proceedings consistent with the statute.    Id. at 1386
                

Upon receiving the results of these evaluations, the district court held another hearing in January 1985. The sole issue considered was the propriety of commitment under former section 4247. In its final order, the court found: (1) that Cheama remained incompetent to stand trial, (2) that he was "unlikely to be competent ... in the foreseeable future," and (3) that he required "a semi-structured environment with close monitoring and supervision to lessen the possibility of his being a substantial risk to others." Rec., vol. I, at 56. On the basis of these findings, and acting under the authority of former section 4247, the district court committed Cheama to an appropriate hospital "for confinement until the sanity or mental capacity of Defendant is restored or until the mental condition of Defendant is so improved that if released he will not endanger the safety of himself or others, or until suitable arrangements have been made for the care and custody of the Defendant by the State of New Mexico, which ever event should first occur." Id. The court also ordered the Attorney General to submit annual reports on Cheama's condition.

Cheama now challenges the power of the Government to commit him, given the likelihood that he will never become competent to stand trial. Arguing that the federal power to prosecute has been exhausted, he contends that the Tenth Amendment forecloses federal intervention into the realm of civil commitment. ² In Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412 (1956), the Supreme Court upheld against constitutional challenge the statutory framework under which Cheama has been committed. The Court limited its holding, however, to the facts before it. Id. at 376, 76 S.Ct. at 415. Cheama relies upon language in Greenwood which intimates that constitutional authority to commit a defendant may be lacking when the power to prosecute has been "irretrievably frustrated" under circumstances of continuing mental incapacity which the Court did not define. See 350 U.S. at 375-76, 76 S.Ct. at 415; see also Royal v. United States, 274 F.2d 846, 851 (10th Cir.1960). Cheama urges that the condition from which he suffers will prevent him from ever becoming competent to stand trial, ³ The Government responds that Cheama has not previously asserted any of his current arguments. Both hearings which raised the possibility of extended commitment under former section 4247 concerned only the prerequisites for commitment. Cheama did not mention or allude to any constitutional defects in either the statute or the circumstances of his confinement. Sixteen months earlier, in his initial motion to dismiss, he challenged only the power of the Government to detain a defendant indefinitely and deprive him of proper medical treatment without proceeding under former section 4247. See Cheama, 730 F.2d at 1384. Although the trial judge has demonstrated an awareness of Cheama's plight--extended detainment without final disposition--he never recognized or had cause to recognize the issues now presented. The Government therefore contends that Cheama's arguments are not properly before us and that he must pursue his challenge by filing a habeas corpus petition.

and that it was therefore error for the district court not to order his release.

We disagree. Although appellate courts do not generally consider issues not decided below, they may do so in their discretion to prevent manifest injustice and to promote procedural efficiency. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); Pell v. Azar Nut Co., 711 F.2d 949, 950 (10th Cir.1983); Gomes v. Williams, 420 F.2d 1364, 1367 (10th Cir.1970). The serious deprivation of Cheama's liberty warrants our consideration in this case.

We cannot reach a decision at this point, however, because questions not raised below should be declined on appeal when further development of the record is required. See Hormel v. Helvering, 312 U.S. 552, 556-57, 61 S.Ct. 719, 721-22, 85 L.Ed. 1037 (1941); Ahmed v. American Steamship Mutual Protection & Indemnity Association, 640 F.2d 993, 996 (9th Cir.1981) (case remanded for further factual development of issue not presented below), cert. denied, 464 U.S. 826, 104 S.Ct. 98, 78 L.Ed.2d 103 (1983); cf. United States v. Freire, 710 F.2d 1515, 1522 (11th Cir.1983) (question of law decided on appeal when facts fully developed below). The district court, proceeding without regard for the legal issue now presented, did not find that Cheama would never become competent to stand trial and made no findings whatever with respect to various subsidiary facts which Cheama now asserts as the basis for distinguishing this case from Greenwood and Royal. Greenwood warned against making legal judgments concerning continuing incompetency based upon uncertain medical evidence. See 350 U.S. at 375-76, 767 S.Ct. at 415. Any decision at this point would thus be ill-advised in the absence of factual findings directly addressing the issue of constitutional power. ⁴ We decline to decide whether the single finding made by the district court, that Cheama was unlikely to become competent in the foreseeable future, could provide a sufficient basis for distinguishing Greenwood and Royal.

Consideration of Cheama's constitutional challenge may also be unwarranted. The district court mistakenly entered its final order under the authority of former section 4247, which had been amended and redesignated as section 4246 three months before the January hearing. The new section provides in pertinent part:

"Determination and disposition.--If, after ... hearing, the court finds by clear and convincing evidence that the person is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall commit the person to the custody of the Attorney General. The Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment. The Attorney General (1) such a State will assume such responsibility; or

                shall make all reasonable efforts to cause such a State to assume such responsibility.    If, notwithstanding such efforts, neither such State will assume such responsibility, the Attorney General shall hospitalize the

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