U.S. v. Soldevila-Lopez

• Decision Date: 05 November 1993
• Docket Number: No. 93-1584,SOLDEVILA-LOPEZ,93-1584
• Citation: 17 F.3d 480
• Parties: UNITED STATES of America, Appellee, v. Angel A., a/k/a "Angelo," Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 480

17 F.3d 480

UNITED STATES of America, Appellee, v. Angel A. SOLDEVILA-LOPEZ, a/k/a "Angelo," Defendant, Appellant.

No. 93-1584.

United States Court of Appeals, First Circuit.

Heard Nov. 5, 1993.

Decided March 3, 1994.

Henry F. Furst, Union City, NJ, for defendant, appellant.

Jorge E. Vega-Pacheco, Asst. U.S. Atty., Hato Rey, PR, with whom Guillermo Gil, U.S. Atty., Washington, DC, was on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and BOUDIN, Circuit Judge.

TORRUELLA, Circuit Judge.

On August 17, 1992, a jury found defendant-appellant Angel A. Soldevila- Lopez ("Soldevila") guilty of four counts of conspiracy to possess with the intent to distribute fifty kilograms of cocaine and using a communication facility in the commission of the offense, in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 841(a)(1), 843(b), and 846.

On November 27, three days before the sentencing date of November 30, trial counsel for Soldevila, Nicolas Nogueras ("Attorney Nogueras") raised the issue of Soldevila's competence to be sentenced in a motion requesting psychiatric and psychological examination. The district court granted Soldevila's motion.

Following a psychiatric evaluation by both a court appointed psychiatrist and a court appointed psychologist, a competency hearing was set for May 24, 1993. At the hearing, upon the suggestion of counsel for Soldevila, the court concluded that Soldevila should be reevaluated on that day to determine his competency for sentencing purposes. Dr. Scott A. Duncan, the court appointed psychologist, reevaluated Soldevila and the hearing continued on the next day.

On May 25, doctor Duncan presented an addendum to his previous evaluation of Soldevila, stating for the first time that Soldevila was "malingering" (i.e., feigning incompetency). The district court denied Soldevila's motion for a continuance, found Soldevila competent to be sentenced and imposed sentence. Soldevila appeals from the final judgment of conviction and sentence.

BACKGROUND

Soldevila has a recent history of psychiatric problems. As recently as the spring of 1992 he was receiving psychotherapy, including prescription medications for his illness. ¹ This information, however, was not brought to the attention of the district court at any time during trial or at anytime prior to Attorney Nogueras' motion for psychiatric and psychological evaluation of November 27, 1992. In the November 27 motion, Attorney Nogueras stated that Soldevila, in conversation with counsel, "looks and reacts introvertedly, like absent from the conversation, very depressed, and in a mental and emotional In response to Soldevila's motion, the district court judge stated that he had seen Soldevila "interact with counsel during the case, and [Soldevila] was fully oriented, participated, from what I could see from the bench, fully reacted when there was something to react to. [Sic] Smiled and dealt with the points that were scored when the defense scored such points. It was quite obvious that the person that was before me here was not a zombie of any kind. He was a person who was here oriented in all spheres." Still, the district court granted Soldevila's motion and ordered that Soldevila undergo psychological and psychiatric evaluation at the Springfield, Missouri Medical Center for Federal Prisoners to determine whether he suffered from a mental disease and then return to Puerto Rico for final sentencing. The district court entered a provisional sentence against Soldevila pursuant to 18 U.S.C. Sec. 4244(d).

                condition that requires a psychiatric and psychological examination before sentencing."   Attorney Nogueras indicated that he had observed related symptoms during trial, but had attributed them to Soldevila's anxiety, believing they were "due to the tension created by his arrest, imprisonment and trial."   Following trial, Attorney Nogueras discovered additional facts which led him to conclude that he had "undervalued or underestimated the nature and extent of [Soldevila's] mental and emotional condition at the time of the alleged commission of the offense ... and at the time of trial."   In particular, in a November 23, 1992 conversation between counsel and Dr. Jorge Prieto, the prison's doctor, doctor Prieto, informed Attorney Nogueras that Soldevila was prescribed "Xanax," used for the management of anxiety disorder or the short term relief of symptoms of anxiety, Physicians' Desk Reference at 2456 (48th ed. 1994) (hereinafter "PDR"), and "Ativan" 2 during trial in doses "[c]ounsel believed did not affect defendant's awareness of the consequences of the proceedings against him."   Doctor Prieto said that his observations of Soldevila on June 29 (i.e. prior to trial), led him to conclude that Soldevila had a "psychiatric condition."   Doctor Prieto also indicated that, by May 27, 1992, Soldevila "was not communicative and had lapses of absence."   Therefore, Attorney Nogueras felt that a psychiatric examination was needed
                

On March 9, the Bureau of Prisons issued a forensic evaluation of Soldevila, signed by Scott A. Duncan, Psy.D, Forensic Studies Coordinator of the United States Penitentiary in Atlanta ("doctor Duncan"), Angel Lopez M.Ed. and Sara Boucchechter, M.A. The report concluded that Soldevila suffered from "major Depression, Recurrent, With Psychotic Features, Mood Congruent."

On April 20, 1993, in response to the court's inquiry regarding "the approximate time frame that Mr. Soldevila-Lopez suffered from psychotic depression," doctor Duncan submitted to the district judge an "Addendum to Psychological Evaluation." In this addendum, doctor Duncan concluded that, in his professional opinion, Soldevila's psychotic depression "originated approximately in September/October 1992 as a result of stress stemming from being found guilty of his current charges, being tried ... and being housed in a stressful environment."

On April 27, 1993, the district court ordered that Soldevila be transferred to Puerto Rico no later than May 20, 1993, for a competency hearing to be held on May 24, 1993. On May 12, 1993, Henry F. Furst, current appellate counsel for Soldevila, ("Attorney Furst") sent Attorney Nogueras a letter via telefax informing Nogueras that the Soldevila family wanted a psychiatrist, Dr. Steven S. Simring, to examine Soldevila as soon as possible. Soldevila was transferred to the Metropolitan Detention Center in Guaynabo, Puerto Rico ("MDC") on May 20, 1993, four days before the competency hearing was to take place. Attorney Nogueras moved for a continuance, in order for doctor Simring to evaluate Soldevila and be presented as an expert witness on Soldevila's behalf. The district court denied the May 21, 1993 motion for a continuance.

On the same day, Soldevila filed a motion requesting the district court's permission to have doctor Simring interview him for a psychiatric assessment, to allow Attorney Furst to appear at the competency hearing, and to duplicate copies of records, transcripts and tapes used during the trial. The district court granted Soldevila's latter motion in all respects.

The competency hearing took place on May 24 and 25, 1993. On May 24, Attorney Nogueras told the court he had visited Soldevila recently but that Soldevila was not communicative. Attorney Nogueras said he found "[him]self completely incapacitated to convey to [Soldevila] the meaning of this hearing." Attorney Nogueras further informed the court that one of the prison guards referred to Soldevila as "my Valium man." Attorney Nogueras also alluded to the availability of doctor Simring to examine Soldevila, but suggested this was not possible given the court's denial of Soldevila's motion for a continuance. Doctor Duncan then testified that when Soldevila arrived at the United States Penitentiary in Atlanta, on February 3, 1993, Soldevila was suicidal and possibly suffering from psychosis. He was unable to concentrate sufficiently to complete psychological testing. Soldevila was then administered "Haldol," an antipsychotic medication. In doctor Duncan's last contact with Soldevila, ten days prior to the hearing, Soldevila appeared "oriented to time, place, person, and reason of being there." Doctor Duncan indicated that he stood by his previous report of March 9 in which he gave his opinion that Soldevila needed immediate hospitalization for treatment for psychotic depression and that he should remain on "Haldol."

At the request of Attorney Nogueras, the proceedings were adjourned to permit doctor Duncan to interview Soldevila and to review his medical charts and determine whether he had continued to take the medication prescribed to him in Atlanta. The court directed doctor Duncan to provide the defense access to information regarding the medication Soldevila was receiving at MDC, as well as a copy of Soldevila's medical chart. ³ The court also indicated that doctor Simring, would be permitted to examine Soldevila if he flew to Puerto Rico.

On May 25, Soldevila filed a motion requesting further psychiatric evaluation. The motion stated that the government had not complied with the court's May 24 order to provide defense counsel a copy of Soldevila's chart and requested that the government comply. Attached to the motion was the May 10th letter sent to doctor Duncan by Soldevila's daughter, Blanca, setting forth Soldevila's medical history of psychiatric problems. Attorney Nogueras indicated that he was attempting to locate Dr. Agustin Garcia, a local psychiatrist or clinical psychologist, to analyze Soldevila's psychiatric condition.

Also, on May 25, doctor Duncan filed a second addendum to the forensic report. The addendum concluded that Soldevila was malingering. Doctor Duncan indicated that the previous day he reviewed Soldevila's medical records and met with Dr. Vasco Daubon, the chief psychologist at MDC, and together they conducted an interview of Soldevila.

During the...