U.S. v. Percy, 84-5189

• Decision Date: 27 June 1985
• Docket Number: No. 84-5189,84-5189
• Citation: 765 F.2d 1199
• Parties: 18 Fed. R. Evid. Serv. 602 UNITED STATES of America, Appellee, v. James PERCY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1199

765 F.2d 1199

18 Fed. R. Evid. Serv. 602

UNITED STATES of America, Appellee, v. James PERCY, Appellant.

No. 84-5189.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 6, 1985.

Decided June 27, 1985.

Alan B. Plevy, Fairfax, Va., for appellant.

Lawrence J. Leiser, Asst. U.S. Atty. (Lawrence J. Leiser, Asst. U.S. Atty., on brief), for appellee.

Before MURNAGHAN and SNEEDEN, Circuit Judges, and KISER, United States District Judge for the Western District of Virginia, sitting by designation.

SNEEDEN, Circuit Judge:

James Percy appeals his conviction, following a jury trial in the United States District Court for the Eastern District of Virginia, for participating in a conspiracy to distribute cocaine. Percy alleges several errors on the part of the district court below. We find no error and accordingly affirm his conviction.

I.

On May 1, 1984, Percy was convicted of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846; distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1); and travel in interstate commerce to promote, manage, or facilitate the distribution of cocaine in violation of 18 U.S.C. Sec. 1952 and 18 U.S.C. Sec. 2. In late 1982 and early 1983, Percy and others engaged in a conspiracy to obtain cocaine in Florida and to transport it to and distribute it in the Washington, D.C. area. The Florida source for the cocaine was a Vincent De-Morzo, whom Percy had met in the summer of 1982 through a mutual friend, Paul Francois Pratt. Pratt, who had previously purchased cocaine from Percy, recruited Percy to distribute cocaine for De-Morzo in the Washington area. In November of 1982, Savino Recine also became a participant in the conspiracy and was to obtain cocaine for distribution from Percy. In mid-November, De-Morzo introduced Recine to Percy and told Recine that Percy could be trusted because he and Percy had been in business together a long time. On several occasions after that, Recine obtained cocaine from Percy at the latter's apartment.

The conspiracy began to unravel in early 1983 when Recine was arrested in his attempt to sell cocaine to an undercover agent for the Drug Enforcement Agency. Through Recine's cooperation, the other co-conspirators were eventually apprehended. Percy was arrested on January 27, 1983, as he arrived at his residence in Northern Virginia, having driven there from Miami, Florida. His car was impounded and subsequently found to contain a .38-caliber gun and approximately one-half kilogram of cocaine having a street value of over $100,000.

The procedural history of this case is a rather tortured one since the case was scheduled for trial no less than five times. On February 11, 1983, Percy and four others were indicted by a grand jury on fourteen counts relating to their conspiracy. Percy's trial was set for April 7, 1983. On April 6, 1983, Percy was hospitalized for a heart problem; and the trial was rescheduled for May 5, 1983. On May 4, Percy attempted suicide by taking an overdose of medication. The trial was again continued--this time until June 1, 1983. On May 18, 1983, Percy filed a motion, pursuant to 18 U.S.C. Sec. 4244, for a determination of his mental competency to stand trial. A competency hearing was held on May 25. Percy was found to be incompetent to stand trial at that time and was sent to the Federal Correctional Institute at Butner, North Carolina. The trial date was continued and later set for September 28, 1983. On September 23, Percy filed another motion for a competency hearing. At a hearing held on September 29, Percy was again found to be incompetent to stand trial and was returned to Butner. On March 2, 1984, the district court granted Percy's motion to be released on bail and determined that Percy was finally competent to stand trial. A trial date of April 30, 1984, was set. On April 25, Percy again filed a motion for a competency hearing and a continuance of the trial. At a hearing on April 26, the district court found Percy to be competent to stand trial and denied his motion for another examination regarding his competency. The court also denied Percy's motion for a continuance. Trial began on April 30, 1984, and ended the following day with Percy's conviction on all three counts for which he was tried.

II.

Percy first contends that the district court erred in denying his motion for a psychiatric examination, pursuant to 18 U.S.C. Sec. 4244, to determine his mental competency to stand trial. ¹ Percy apparently argues that he was denied his due process right to a fair trial.

After two earlier hearings in which Percy was determined to be incompetent, Judge Bryan found on March 2, 1984, that Percy was competent to stand trial based on a January 1984 report by a team of psychiatrists at Butner. When Percy again requested a competency examination just five days prior to his trial date, Judge Bryan held a competency hearing on April 26 at which Percy's psychiatrist, Dr. William Dodson, testified. Judge Bryan again found Percy competent to stand trial based on the report of the psychiatrists at Butner, Dr. Johnson and Dr. Samples, and on the testimony of Dr. Dodson that Percy's condition had not changed much within the last year. Judge Bryan made the following ruling from the bench on the motion for further evaluation:

I have before me the report of Dr. Samples and the report of Dr. Johnson on January 31 on the basis of which I found some time ago--I don't know the exact date--but I found the defendant competent to stand trial. The testimony of the witness today is that he is basically the same.... I find that he is competent to stand trial. I do not doubt the sincerity of Dr. Dodson. I know the seriousness with which he holds the opinion that he does. But I think the lack of change now and what was present in January of this year renders him still competent to stand trial. It may be difficult for him to go to trial, but I do not think that he cannot assist in his defense, and I think that he understands the nature and seriousness of the charges. He may not relate them to himself as a psychiatric matter, and I am not in a position to say he is a malingerer, but the eve-of-trial ailments that seem to increase in severity and become quite severe or at least they are brought to the attention of the Court on the very eve of trial as to their severity gives the Court some skepticism.... But I think Mr. Percy is competent to stand trial, and the motion for any further evaluation, in my opinion, should be denied. I do not think we will know any more about Mr. Percy after a further evaluation than we know about him right now. The motion for a 4244 evaluation or for a continuance, or for both, is denied.

Transcript of April 26, 1984, hearing at 32-33.

Percy argues that it was clear error for the district court to rely on a psychiatric report prepared several months prior to trial because it did not take into account a present sense of Percy's competency. The testimony of Percy's own psychiatrist, however, helped to provide that answer for the district court; and the court specifically noted Dr. Dodson's comments regarding the lack of significant change over the past year. In fact, Dr. Dodson testified that Percy had actually improved during that year. Transcript of April 26, 1984, hearing at 16-17. We do not find that the district court erred in continuing to rely on the report prepared by psychiatrists at Butner.

Section 4244, prior to amendment in 1984, provided that a defendant whose mental competency is in question shall be examined by at least one qualified psychiatrist. 18 U.S.C. Sec. 4244. Percy has certainly been examined by that number and more. The comment of the district court was quite apt when it stated that it would not "know any more about Mr. Percy after a further evaluation than we knew about him right now." Transcript of April 26, 1984, hearing at 33. Section 4244 further provided that a competency hearing should be held if the reporting psychiatrist indicated the defendant was insane or mentally incompetent. Although the report on which the court was relying indicated that Percy was competent to stand trial, the court nevertheless held a competency hearing and made a finding as to mental competency pursuant to that section. We find that the district court followed the strictures of Sec. 4244 and did not err in denying Percy's motion for further psychiatric examination.

The standard to be used in deciding whether a defendant is competent to stand trial is whether he " 'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him.' " Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975) (quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam) ). ² Although Percy does not specifically raise the issue of whether the district court's determination of Percy's competency was supported by the record, we have undertaken to review the record sua sponte and have determined that the finding was adequately supported. Judge Bryan had before him the report of the psychiatrists at Butner determining Percy to be competent. He also had the report of Percy's psychiatrist, Dr. Dodson, and had heard Dr. Dodson's testimony that, while he felt Percy was incompetent to stand trial, Percy's condition had much improved over the past year. Judge Bryan further had the opportunity to observe and question Percy himself. Although Percy, at the request of his own counsel, did not appear at the April 26 competency hearing, he did appear before Judge Bryan at the hearing on March 2, 1984, and was questioned by the judge. Judge Bryan also observed Percy throughout the trial. Apparently nothing occurred which caused him to doubt Percy's continued competency to stand trial. Thus, finding no error below, we conclude...