U.S. v. Crosby

• Citation: 739 F.2d 1542
• Decision Date: 27 August 1984
• Docket Number: No. 83-3328,83-3328
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Arlington CROSBY and John Doe, a/k/a John Howard Hirsch, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1542

739 F.2d 1542

UNITED STATES of America, Plaintiff-Appellee, v. James Arlington CROSBY and John Doe, a/k/a John Howard

Hirsch, Defendants-Appellants.

No. 83-3328.

United States Court of Appeals,

Eleventh Circuit.

Aug. 27, 1984.

Ronald E. Clark, Palatka, Fla., for Crosby.

Archibald J. Thomas, III, Howard W. Skinner, Asst. Federal Public Defenders, Jacksonville, Fla., for Doe.

Ernst Mueller, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, JOHNSON and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The defendants appeal from their convictions of conspiracy to manufacture methamphetamine, a Schedule II controlled substance, and of possession of phenyl acetone (P2P), also a Schedule II controlled substance, with intent to manufacture methamphetamine, in violation of 21 U.S.C. Secs. 841(a)(1), 846. The defendants' activities came to the attention of the Drug Enforcement Administration, following a phone call from an employee of a chemical company, who indicated that Hirsch had contacted her in an effort to purchase P2P. The DEA furnished P2P to the chemical company employee, who in turn sold it to Hirsch. Following the sale at the chemical company, Hirsch left in a car driven by defendant Crosby; they managed to evade DEA agents who were following them, and in the interim disposed of the P2P, which was never found. DEA agents later arrested Hirsch at a house rented by Crosby where both defendants were living (the 2 Oceanside residence), and undertook a concededly illegal search of the home. The government subsequently discovered a written lease for a structure several miles from the 2 Oceanside residence (the dome house), naming Hirsch as the lessee, and cosigned by Crosby. Crosby claimed the government agents discovered the lease at the illegally searched 2 Oceanside residence, but the record was not made clear with respect to this fact. A search of the dome house pursuant to a search warrant produced chemical equipment and written instructions used in the production of methamphetamine and P2P, and this prosecution ensued.

I. Whether the Trial Court Committed Reversible Error When It Declined to Accept Defendant Hirsch's Plea of Guilty.

On March 30, 1983, John Howard Hirsch filed notice of his intention to plead guilty on Count II of the indictment, possession with intent to manufacture a controlled substance. The following hearing was held on the notice on April 4, the morning of trial:

THE COURT: Now, one other matter before we bring the jury in. Mr. Thomas, you have filed a notice of intention to plead guilty to Count II of this indictment.

MR. THOMAS: That's correct, Your Honor.

THE COURT: That comes much too late. The plea date in this case was February 21, 1983.

MR. THOMAS: I was never informed of that, Your Honor.

THE COURT: Pardon?

MR. THOMAS: I was never informed that February 21, 1983 was the deadline for pleading guilty. I was told by the Court, my recollection was that February 21, 1983 was the deadline for any plea agreements. However, we have no plea agreement in this case.

THE COURT: Well, I don't know what your strategy is, what tactical advantage you think you might get by pleading guilty to Count II and going to trial on Count I. In my experience I've never had this happen before, but I don't intend to accept that plea at this time. I'm going to put the government to its proof.

(Record Vol. 1A at 38-39).

A trial court may refuse to accept a guilty plea within its sound discretion; unless the refusal is without justification and the court is thereby shown to have abused its discretion, the ruling will not be disturbed on appeal. United States v. Hamilton, 492 F.2d 1110, 1114 (5th Cir.1974). The justification for refusing to grant Hirsch's request to plead guilty to Count II in this case, is unclear at best. The February 21 cutoff date to which the court referred applied explicitly to "plea agreements," and not outright pleas of guilty. ¹ Moreover, the government never objected to Hirsch's notice of intent to plead guilty, either in writing or at the hearing. In short, no lucid explanation exists or was given as to why the plea was rejected.

Nevertheless, Hirsch has been unable to demonstrate that the district court's decision to put the government to its proof, prejudiced his defense in any way. The defendant's suggestion that had his plea as to Count II been accepted, the government might have been willing to drop the charges as to Count I in return for Hirsch's cooperation in the prosecution of Crosby, is wholly speculative. Absent a showing of prejudice, any error committed by the trial court in declining to accept the guilty plea does not warrant reversal. United States v. Hamilton, 492 F.2d 1110, 1115 (5th Cir.1974).

II. Whether the District Court Erred in Refusing Hirsch's Request for an Instruction on the Issue of Entrapment.

The evidence in this case conclusively established that it was not until after Hirsch approached the chemical company and attempted to purchase P2P that the government became involved. The government did no more than furnish the chemical that Hirsch had actively sought to procure. Well before the occurrence of this transaction, Hirsch had amassed virtually all of the materials needed to manufacture the controlled substances for which he was tried and convicted in this case.

It is settled in this circuit that the defense must produce evidence that shows government inducement. Further, the nature of the required showing is that some evidence must be shown, but more than a scintilla must be presented. [citation omitted]. If this level of evidence is met, then the entrapment instruction should be given.

United States v. Lee, 694 F.2d 649, 653 (11th Cir.1983). In light of the complete absence of evidence indicating that the government in any way induced Hirsch to purchase P2P or to manufacture methamphetamine, the district court properly declined to give an entrapment instruction.

III. Whether the District Court Erred in Denying Defendant Crosby's Motion for a Continuance for the Purpose of Having Crosby Undergo a Psychiatric Examination to Determine Competence Pursuant to 18 U.S.C. Sec. 4244.

On the day the trial was scheduled to begin, Crosby filed an "amended motion for a continuance," requesting that the trial be postponed pending extensive testing of Crosby by a neurologist. Crosby's attorney had previously indicated in his original motion for continuance, that "counsel has had a very difficult time communicating with the Defendant, getting very illogical responses and a definite display of loss of memory as to the events surrounding the alleged crime." (Record Vol. 1 at 89). In support of his amended motion, Crosby proffered the testimony of his personal physician, Dr. William Thompson.

Dr. Thompson testified that Crosby suffered from cortical atrophy, a neurological disorder that causes the thought process areas of the brain to shrink, the net effect of which is to interrupt the patient's ability to think logically. Dr. Thompson indicated that Crosby had complained of debilitating headaches over the course of the previous two years, and that after an automobile accident in January 1983, Crosby reported that the headaches had become worse. The doctor further noted that Crosby could not recall any details of the accident, and was unable to remember so much as whether the emergency room physician had wanted to operate on him. In response to a direct question of whether Crosby would have recall sufficient to aid his counsel in assisting him in the defense, Dr. Thompson replied "I don't know"; he emphasized that he was not an expert, and indicated that such questions were better answered by Dr. Heillman, a neurologist who was available to examine Crosby within three weeks. (T. v. 1 at 13-14). Following Dr. Thompson's testimony, and brief argument from counsel, the district court ruled as follows: "Well, let the record reflect the Court is satisfied that the defendant is competent to stand trial, and accordingly the amended motion for continuance will be denied."

Although Crosby's motion was styled as one for continuance rather than for judicial determination of mental competency pursuant to 18 U.S.C. Sec. 4244, it is clear that the court and parties understood the substance of the motion to call Crosby's competence into question. Indeed, at the outset of the hearing, counsel for the government stated "I think we should hear Dr. Thompson's testimony and--on the issue of whether or not Mr. Crosby is competent to proceed. That's what I see the issue as being. This is a sort of indirect raising of incompetence is the way I see it," to which the court responded "All right. Let's hear Dr. Thompson." Accordingly, the provisions of 18 U.S.C. Sec. 4244, outlining the procedures employed when the court or counsel for either party moves for a determination of the defendant's competency to proceed, were triggered in this case.

Title 18 U.S.C. Sec. 4244 provides that if counsel for either party or the court "has reasonable cause to believe" that the defendant "may be presently ... so mentally incompetent as to be unable to assist in his own defense, he shall file a motion for a judicial determination of such mental competency...." Provided that a party so moves, and the movant has reasonable cause to believe that the defendant may be incompetent to proceed, the district court "shall cause the accused to be examined by at least one qualified psychiatrist who shall report to the court." Crosby's counsel moved for what was recognized by all present as a judicial determination of competency, yet the court did not cause Crosby to be examined, as counsel requested. The court's failure to do so was improper unless Crosby's attorney lacked reasonable cause to believe the defendant may be incompetent.

The Fifth Circuit's decision in ...