U.S. v. Vachon

• Decision Date: 01 November 1988
• Docket Number: Nos. 87-1737,87-1738,s. 87-1737
• Citation: 869 F.2d 653
• Parties: 27 Fed. R. Evid. Serv. 888 UNITED STATES of America, Appellee, v. Adelard VACHON, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 653

869 F.2d 653

27 Fed. R. Evid. Serv. 888

UNITED STATES of America, Appellee, v. Adelard VACHON, Defendant, Appellant.

Nos. 87-1737, 87-1738.

United States Court of Appeals First Circuit.

Heard Nov. 1, 1988.

Decided March 15, 1989.

Robert L. Sheketoff, by Appointment of the Court, with whom Zalkind, Sheketoff, Homan, Rodriguez & Lunt, David Kelston and Geller & Kelston, Boston, Mass., were on brief, for defendant, appellant.

Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., for appellee.

Before BOWNES, BREYER and SELYA, Circuit Judges.

BREYER, Circuit Judge.

The government tried the appellant, Adelard Vachon, for bank robbery. 18 U.S.C. Sec. 2113(a) (Supp.1988). The facts are not contested: Vachon apparently conceded that on two separate occasions (February 21 and March 14, 1986), he entered the branch of the Boston Five Cents Savings Bank located on 426 Boylston Street in Boston, and that on each occasion he obtained money by threatening to blow up the bank with an "explosive" that he pretended to have in a bag. Rather, his basic defense was insanity. 18 U.S.C. Sec. 17 (Supp.1988). And, his conduct (suicide attempt, refusal to cooperate with his lawyers, outbursts in court, insistence upon testifying to facts that harmed his defense) suggested that his insanity defense might have merit. Before trial the court held a competency hearing; it found Vachon competent to stand trial. After trial, the jury, rejecting his insanity defense, convicted him of bank robbery. Subsequently the court punished him for contempt of court committed during the trial. Fed.R.Crim.P. 42(a). Vachon appeals both his robbery and his contempt convictions. We have reviewed the record and conclude that the district court committed no legal error. Hence, we affirm the convictions.

1. Competency. The district court, after a hearing, found appellant mentally competent to stand trial. To put the matter in terms of the appropriate legal standard, the court decided that the evidence failed to show that

the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense....

18 U.S.C. Sec. 4241(d) (1982). Appellant argues that this finding is "clearly erroneous" and that the evidence shows he was "unable ... to assist properly in his own defense."

After reviewing the record in detail, we agree with the appellant that both before and during his trial he did not "assist properly in his defense." But, the legal question before the judge concerned not what he did do. It concerned what he was able to do. The district court found that he was unwilling to assist, not that he was "unable " to do so. And, the record contains adequate legal support for this conclusion.

For one thing, the court heard the prosecution's expert psychiatrist, who had thoroughly examined appellant several months before the hearing, testify that he was competent and able to cooperate with his attorney. The court heard the appellant's own psychiatrist state that "he does meet all the legal criteria required for mental competency." And, the court heard both prosecution and defense counsel recommend that he be found competent.

It is true that appellant's psychiatrist, later during the hearing, after consulting with Vachon and his attorney, backtracked, stating that Vachon "does not meet the one [criterion] wherein it's required that he be able to confer with his lawyer in his own defense;" but when later asked by the prosecutor whether he really meant that Vachon "is unable to cooperate" with his lawyer, the defense psychiatrist stated that he is able to cooperate but "he just is very ornery about it and won't cooperate with the counsel." The defense psychiatrist then went on to say,

I say that he is ornery and will not at this time cooperate with counsel. I believe he is able to do so.

For another thing, the district court not only observed the appellant first hand (an obvious help in deciding whether defendant's obstructive behavior flowed from lack of capacity or lack of will), but also paid close attention to the competency issue. It ordered the competency hearing sua sponte. And, the judge remained alert to the possibility that later events, at trial, could lead it to change its mind. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Indeed, the court said that

if as additional evidence comes before me in the trial I become persuaded that he is not competent to stand trial, I probably should declare a mistrial and enter whatever order is appropriate which would forestall trial of the case absent some change of circumstances.

Although appellant behaved in a highly obstreperous, uncooperative, and possibly self-destructive way during the trial, his behavior was not so radically different from his pretrial behavior as to undermine the court's earlier determination that the behavior was willful or to require the court sua sponte to order additional competency hearings. United States v. Voice, 627 F.2d 138, 141 (8th Cir.1980) (refusal to conduct a second competency hearing must be affirmed unless the court abused its discretion in light of new evidence); United States v. Clark, 617 F.2d 180, 185 (9th Cir.1980) (in determining whether developments during the course of the trial suffice to create a reasonable doubt as to defendant's competency, the court should consider all available pertinent evidence; the emergence of such reasonable doubt in the mind of the trial judge is the consequence of his total experience and his evaluation of the events at trial).

All this is to say that our reading of the record finds adequate support for the trial court's conclusion that appellant was mentally competent to stand trial. The law commits the relevant legal determinations to the trial court in the first instance. And we cannot say that that court abused its lawful powers or that its decision was clearly arbitrary. United States v. Collins, 525 F.2d 213 (1st Cir.1975); In re Harmon, 425 F.2d 916 (1st Cir.1970). The cases appellant cites to the contrary involve instances where the court held no competency hearing before trial. Drope v. Missouri, supra; United States v. Pogany, 465 F.2d 72 (3d Cir.1972).

2. Pretrial Detention. Appellant points out that he suffered several months of "pretrial detention." The Bail Reform Act permits pretrial detention where "no condition or combination of conditions will reasonably assure the appearance of the person as required." 18 U.S.C. Sec. 3142(e) (Supp.1988). Vachon argues that the evidence before the magistrate did not satisfy the statutory standard; it did not show a significant risk of flight. The issue in respect to pretrial release, however, is moot. See Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (claim to pretrial bail became moot once defendant was convicted). Insofar as appellant claims that unlawful pretrial detention prejudiced his ability to defend himself, we reject the premise. That is to say, appellant's lack of family ties and other connections to the community, his lack of assets, his three prior bank robbery convictions, his prior sentence of ten years, the seriousness of the crimes charged, and the fact that conviction could well mean imprisonment for the rest of his life, provide adequate grounds in support of the magistrate's conclusion that "no condition or combination of conditions of release would reasonably assure his appearance at trial." Thus the magistrate's order was lawful. We recognize that during defendant's pretrial detention at Bridgewater Hospital, he was hurt through no fault of his own. We also recognize that he would have preferred a veterans' hospital to Bridgewater. Still, defendant had access to counsel and to a competent psychiatrist who served as his witness. We find nothing in the conditions of his confinement that violated the federal Constitution.

3. Speedy trial. The Speedy Trial Act requires that the government bring appellant to trial within seventy days "from the filing date [of the indictment or the date] defendant ... appeared before a judicial officer of the court" in which the indictment against him "is pending." 18 U.S.C. Sec. 3161(c)(1) (1982). In this case appellant first appeared before a magistrate on May 2, 1986. His trial began on June 16, 1987. His trial thus began not seventy days, but thirteen months, after his arraignment. He argues that the government therefore violated the statute.

The problem with appellant's argument is that the Act does not count days "resulting from any proceeding, including any examinations to determine the mental competency ... of the defendant," 18 U.S.C. Sec. 3161(h)(1)(A), nor "resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion," 18 U.S.C. Sec. 3161(h)(1)(F). Here, the trial court properly excluded from the "speedy trial" count numerous days involving mental examinations, changes of counsel, and the pendency of various of appellant's motions. The court, for example, excluded almost all the thirteen months in light of the fact that appellant's motion to exclude certain evidence was pending from May 14, 1986 until June 16, 1987. Appellant, pointing to United States v. Mitchell, 723 F.2d 1040 (1st Cir.1983), argues that this delay is excludable from the count only insofar as it is "reasonably necessary." He overlooks the legal fact, however, that the Supreme Court, in Henderson v. United States, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986) wrote that "all time between the filing of a motion and the conclusion of the hearing on that motion [is excludable], whether or not a delay in holding that hearing is 'reasonably necessary'." 476 U.S. at 330, 106 S.Ct. at 1876 (emphasis added). In light of...