U.S. v. Fessel, 75--1860

• Citation: 531 F.2d 1275
• Decision Date: 20 May 1976
• Docket Number: No. 75--1860,75--1860
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond M. FESSEL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1275

531 F.2d 1275

UNITED STATES of America, Plaintiff-Appellee, v. Raymond M. FESSEL, Defendant-Appellant.

No. 75--1860.

United States Court of Appeals Fifth Circuit.

May 20, 1976.

Brian E. Berwick, Austin, Tex. (Court-appointed), for defendant-appellant.

H. Patrick Shovlin, U.S. Atty., James W. Kerr, Jr., Asst. U.S. Atty., San Antonio, Tex., Ronald Ederer, Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, GODBOLD and LIVELY, ^* Circuit Judges.

WISDOM, Circuit Judge:

The defendant-appellant, Raymond M. Fessel, was convicted by a jury of importing approximately seven pounds of marijuana. On appeal he urges reversal of that conviction based both on the inadequate representation provided by his court-appointed counsel and on the failure of the district judge to grant a continuance to permit him to secure information allegedly necessary to his defense. We find merit in both these contentions. We reverse and remand.

Fessel was committed to a mental hospital in New Jersey in April 1973, after an automobile accident. May 1, 1973, against medical advice, he left the mental hospital.

In July 1973, three months later, Fessel was arrested at the United States-Mexico border and charged with attempting to import marijuana in violation of 21 U.S.C. § 952(a). On the advice of court-appointed counsel, the defendant pleaded guilty, but sentence was deferred pending observation and study under the Youth Corrections Act. 18 U.S.C. § 5010(e). ¹ Based on a report submitted to the district court by the Bureau of Prisons following two extensions of the normal observation period, ² the trial judge held a hearing to determine Fessel's mental competency at the time his guilty plea was entered. The trial judge found that the defendant had been incompetent at the time, set aside the plea, and committed him to the custody of the Attorney General for confinement and observation under 18 U.S.C. § 4246, 'until the accused shall be mentally competent to stand trial'. ³ Over the next several months, Fessel was observed and treated by staff psychiatrists at medical centers for federal prisoners at El Reno, Oklahoma, and Springfield, Missouri.

In August 1974, five months after his commitment under § 4246, and about one year after the alleged offense, Fessel moved for a speedy trial, asserting that he was then competent to stand trial. By order of the court, he was examined by Dr. John C. Sparks, a psychiatrist at Lackland Air Force Base who determined that the defendant was then competent to face trial. ⁴ He was reindicted in November for possession with intent to distribute and importation of marijuana. 21 U.S.C. §§ 841(a)(1), 952(a), 960(a)(1). The court ordered a competency hearing held on December 17 and, based on Dr. Sparks' report and testimony, ⁵ declared Fessel competent to stand trial. Trial was set for two days later.

Shortly after trial commenced, the defendant's court-appointed counsel informed the court that Fessel wished to defend himself. The court permitted him to do so, with counsel serving in an advisory capacity, but denied his request that he be permitted to find another attorney. The following morning, Fessel filed a formal motion for a continuance, arguing that he had not known until two days before that he would be going to trial that day, and that his repeated requests to his attorney to secure important psychiatric information had proven unavailing. ⁶ Specifically, Fessel stated that he needed the live testimony of certain government staff psychiatrists who had examined him during his recent confinement at the El Reno and Springfield facilities, as well as the records of a private psychiatrist who had examined and treated him during his confinement in a New Jersey mental institution shortly before his arrest. The trial judge, concluding that the motion was 'purely for delay', denied the request, but indicated that the defendant would be permitted to read from any reports prepared by government psychiatrsts during his confinement at El Reno and Springfield.

In the course of trial, the appellant did read from reports prepared by staff psychiatrists, but presented no live expert testimony in his favor. His attorney had neither deposed nor subpoenaed the records of the New Jersey doctor who had examined the defendant shortly before his arrest. The only live expert testimony was that of Dr. Sparks, who stated his conclusion, based on recent examinations, that Fessel was then competent to stand trial and had been competent at the time of the offense. ⁷

Thus, the jury had before it the live testimony of only one expert witness, Dr. Sparks, whose testimony was clearly adverse to the defendant. ⁸ Jurors were not permitted to consider either the reports of the one doctor who had examined Fessel shortly before his arrest, nor the testimony of the staff doctors from El Reno and Springfield who had examined him in the months following his arrest, and whose reports indicated that their testimony would have supported the defendant's claim of incompetency. ⁹

The same day the trial began, the jury returned its verdict, finding the defendant guilty on the first count of importation and not guilty on the second count charging possession of marijuana with intent to distribute.

I. Inadequacy of Counsel

On appeal, Fessel's first challenge to the verdict below rests on the allegedly inadequate representation provided by his court-appointed counsel. The appellant contends that the failure of his attorney to prepare an insanity defense by showing his probable incompetence at the time of the offense violated his Sixth Amendment right to effective assistance of counsel. Specifically, Fessel cites his attorney's failure to move, under 18 U.S.C. § 3006A(e) ¹⁰ for a court-appointed psychiatrist to assist in the preparation of an insanity defense. This failure, Fessel contends, deprived him of psychiatric testimony necessary to the preparation of his defense, and thus fell below the minimum level of representation guaranteed by the Sixth Amendment. We agree with this contention.

The standard for determining adequate assistance of counsel under the guarantees of the Sixth Amendment has been stated by this Court on numerous previous occasions. In MacKenna v. Ellis, 5 Cir. 1960, 280 F.2d 592, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78, we rejected the 'mockery of justice' standard; we defined 'effective counsel' in terms of a 'reasonable counsel' standard:

We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.

The Court has reaffirmed this principle in a number of decisions. See, for example, Herring v. Estelle, 5 Cir. 1974, 491 F.2d 125, 127, see esp. n.4 at 127; United States v. Edwards, 5 Cir. 1974, 488 F.2d 1154, 1163.

This Court has repeatedly stressed the 'particularly critical interrelation between expert psychiatric assistance and minimally effective representation of counsel.' United States v. Edwards, 488 F.2d at 1163. In Edwards, this Court noted the importance of psychiatric assistance provided by a psychiatrist appointed under § 3006A(e). There we found ineffective assistance of counsel when the defendant's attorney had moved for a § 3006A(e) appointment, but had failed to pursue the motion after the district court mistakenly treated the resulting report as a § 4244 report. In United States v. Hamlet, 5 Cir. 1972, 456 F.2d 1284, we held that a psychiatrist appointed by the court under § 4244 to determine the present competency of the defendant to stand trial 'falls short of fulfilling the role of an expert selected under § 3006A(e) whose responsibility is to assist the defense'. ¹¹ There we held that the trial judge's refusal to grant the § 3006A(e) motion denied the defendant a fair trial and constituted grounds for reversal.

These cases--others could be cited--illustrate the principle that when an insanity defense is appropriate and the defendant lacks funds to secure private psychiatric assistance, it is the duty of his attorney to seek such assistance through the use of § 3006A(e). This assistance is required whenever the services are 'necessary to the preparation and presentation of an adequate defense.' United States v. Chavis, 1973, 155 U.S.App.D.C. 190, 476 F.2d 1137, 1143, cited with approval in United States v. Edwards, 488 F.2d 1162 at n.6; see United States v. Theriault, 5 Cir. 1971, 440 F.2d 713, 715, cert. denied, 1973, 411 U.S. 984, 93 S.Ct. 2278, 36 L.Ed.2d 960. In the instant case, there could be little doubt as to the appropriateness of an insanity defense and the need for psychiatric assistance to prepare it. The evidence showing Fessel guilty of committing the acts charged was virtually uncontested. The only issue for the jury to consider therefore was the sanity of the defendant at the time of the offense. In the absence of live psychiatric testimony favorable to the defendant, the need for a § 3006A(e) motion was manifest. In these circumstances, we hold that the failure of counsel to utilize § 3006A(e) denied the accused services 'necessary to the preparation and presentation of an adequate defense', and thus denied him the minimally effective representation guaranteed by the Sixth Amendment.

II. Denial of Continuance

As an alternative ground for reversing his conviction, one that is indeed serious, the appellant argues that the district judge abused his discretion in failing to grant a continuance to permit him to secure materials necessary to his defense. Fessel points out that a continuance would have permitted him to secure the records of the New Jersey psychiatrist who had examined and treated him shortly before the offense. He emphasizes, too, his counsel's failure to...