U.S. v. Makris

• Decision Date: 23 July 1976
• Docket Number: No. 75-3090,75-3090
• Citation: 535 F.2d 899
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael A. S. MAKRIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 899

535 F.2d 899

UNITED STATES of America, Plaintiff-Appellee, v. Michael A. S. MAKRIS, Defendant-Appellant.

No. 75-3090.

United States Court of Appeals, Fifth Circuit.

July 23, 1976.

Michael Anthony Maness, Houston, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before DYER and CLARK, Circuit Judges, and KRAFT, ^* District Judge.

CLARK, Circuit Judge:

This is the second appeal emanating from the 1972 federal perjury conviction of Michael A. S. Makris for falsely testifying before the Securities and Exchange Commission. Pursuant to the mandate of this court issued in defendant's first appeal, the district court conducted a nunc pro tunc competency hearing to determine whether Makris was competent to stand trial in 1972. After deciding the threshold question that a meaningful hearing was possible, the court received extensive medical and lay testimony and concluded that Makris was legally competent under the standard enunciated in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). We affirm.

The factual background and procedural history of this litigation is detailed in our prior opinion. United States v. Makris, 483 F.2d 1082 (5th Cir. 1973). In brief, Makris' legal problems stem from his December 1970 appearance before the SEC when he denied involvement in two allegedly fraudulent securities schemes then under investigation. In June 1972, Makris was tried and convicted under a three-count perjury indictment and given a consecutive sentence. To expedite the criminal appeals process, this court chose to resolve Makris' challenges to the sufficiency of the evidence in his direct appeal, reversing his conviction under Count I but rejecting that attack on the remaining counts.

What could not be finally decided in our prior disposition was the crucial question of defendant's competency to stand trial. In April 1970, approximately two years before trial, Makris underwent radical brain surgery for the removal of a large pituitary tumor. The operation required manipulation of the frontal lobes and destruction of the pituitary gland itself. All experts agree that the surgery left defendant impaired both physically and mentally. The extent of that impairment and the legal effects that flow therefrom are the central issues in this case.

From the outset of this litigation, the proper assessment of defendant's mental state has been of major concern. Prior to the bench trial, the judge appointed a psychiatrist to examine Makris and report on his condition to the court. In addition, the court held an extensive pretrial hearing, pursuant to a defense suppression motion, which in effect determined Makris' sanity at the time of the offense. Although affirming the district court's finding of sanity on appeal, we were constrained to hold the procedures employed deficient, in that no hearing directed to the issue of competency to stand trial had been conducted, a violation of the strictures of 18 U.S.C. § 4244. We remanded for the two-step determination of whether a meaningful nunc pro tunc hearing was possible and, if so, whether Makris was fit to stand trial in 1972.

Following remand, the district court directed defendant to undergo further psychiatric evaluation at the Medical Center for Federal Prisoners at Springfield, Missouri. The tests were conducted in April 1974 and the competency hearing set for May 30, 1974. A continuance was granted when defendant alleged that he suffered a stroke during his stay at Springfield. When the hearing finally commenced on December 3, 1974, Makris apparently suffered a seizure in the courtroom. Although defendant was hospitalized and thus unable to be present for most of the hearing, the court elected to proceed. The district court held that proceeding in the defendant's absence did not violate Makris' statutory or constitutional rights. Defendant does not complain of this ruling on appeal.

The district court's lengthy opinion (reported at 398 F.Supp. 507) adequately summarizes the extensive testimony received at the competency hearing as well as evidence gleaned from the transcript of the 1972 perjury trial and the 1970 SEC hearing. Having served as the trial judge in this case, the court could also take advantage of its recollections of defendant's demeanor during the critical time-frame. The voluminous record built up pertinent to defendant's mental status contains lay and medical observations contemporaneous with the trial as well as current expert evaluation based on recent medical examinations.

The picture of Makris' mental condition presented by these diverse sources is conflicting. There is no dispute, however, that prior to surgery, defendant was considered an extremely brilliant man, able to speak three languages (Greek, English, Spanish) and make a lucrative income from operating various businesses and dealing in securities. How much Makris changed as a result of the operation is the highly contested matter. At the risk of oversimplifying, it is fair to state that the bulk of lay testimony pointed to competency, while the expert medical evidence suggested incompetency.

The many physicians who examined Makris characterized the effects of the brain surgery as an organic brain syndrome. In particular, Makris experienced difficulty with speech perception, his recent memory was impaired and his overall intellectual capacity diminished. The removal of the pituitary gland also necessitated that Makris undergo hormone replacement therapy because of his body's inability to produce and secrete cortisone. The experts explained that prescribing the correct dosage to suit an individual patient's physical and psychological needs was not a simple task. If the amount of medication were insufficient, the user might become disoriented or irrational. Finally, it was repeatedly acknowledged that the brain-damaged person might develop psychological side effects from the depressing realization that he was no longer able to function at his previous level. The doctors also emphasized that each of these three disabilities could be exacerbated by stress. In their opinion, although Makris might be able to function normally in his normal environment, when confronted with a stressful situation (such as a criminal prosecution) his responses might become unpredictable and random.

The crucial question as to what extent these admitted deficiencies operated to impair defendant's ability to understand the proceedings in 1972 and to assist his defense attorneys did not produce a single answer from the experts who testified at the competency hearing. What emerges as significant, however, is that no medical expert would categorically state that Makris was legally competent in 1972. Three witnesses from the Menninger Clinic (a psychiatrist, a psychologist and a neurologist) who conducted a weeklong evaluation of defendant in the fall of 1974 concluded that Makris was incompetent at the time of trial. In contrast, doctors from the Springfield facility refused to express any opinion on defendant's condition in 1972, but agreed that at the time of their examination in 1974 Makris was competent. A Houston psychiatrist appearing as a government witness also declined to diagnose defendant's state as of 1972 because he lacked sufficient collateral information upon which to formulate an opinion. The two experts who had the benefit of examining defendant close to the trial date agreed that Makris was incapable of assisting in his own defense. Dr. Riley, a neurologist, based his opinion on Makris' general condition:

The man has an organic brain syndrome. Such a person, no matter how optimal you might make all other aspects of his medical situation, cannot be relied upon to perform in a predictable and consistently meaningful way under stress.

Dr. Vogt, the psychiatrist appointed by the court to examine Makris prior to trial, concluded that defendant was unable to communicate effectively with trial counsel, partly because of his attorney's forthright temperament:

I just don't think that he (the attorney) would sit still for waiting for Mike Makris to get himself organized, and if he pushed him, he damn sure wouldn't get him organized to give relevant and pertinent information.

In addition to live expert testimony, the court had before it medical reports from several other physicians verifying the existence and seriousness of defendant's impairment and documentary evidence indicating that Makris' cortisol level was very low just a week before trial.

Some of the evidence received from non-experts tended to corroborate the view of Makris as a brain-damaged person likely to become incapacitated in stressful situations. Members of defendant's family testified that they never let defendant travel alone for fear he might become ill. Friends and business associates recounted how defendant left meetings abruptly, suffering from vomiting, trembling and perspiration. On occasion Makris would lose his facility with the English language and grope for words. Most significantly, two of Makris' defense attorneys testified at trial that defendant was absolutely no help in preparing for trial and that his responses to their questions were slow and illogical.

In marked contrast, several business associates and other lay witnesses who had contact with Makris during the critical time-frame related that defendant behaved in a highly competent fashion and showed no signs of debilitating mental illness. Only a few months subsequent to surgery, Makris was actively engaged in coordinating a complex financial transaction directed at acquiring a large fund of foreign securities. Witnesses appearing before the SEC in 1970 and at the perjury trial gave rather consistent accounts of Makris as a shrewd businessman who conducted his...