U.S. v. Warren

Decision Date27 January 1993
Docket NumberNo. 91-10527,91-10527
Citation984 F.2d 325
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Johnnie T. WARREN, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Rustam A. Barbee, and Birney B. Bervar, Asst. Federal Public Defenders, Honolulu, HI, for defendant-appellant.

Edward H. Kubo, Jr., Asst. U.S. Atty., Honolulu, HI, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before: BROWNING, NORRIS and REINHARDT, Circuit Judges.

JAMES R. BROWNING, Circuit Judge:

Johnnie Warren appeals his convictions for first degree murder (18 U.S.C. § 1111), attempted murder (18 U.S.C. § 1113), and assault with a deadly weapon (18 U.S.C. § 113). We reverse Warren's murder conviction.


On January 5, 1991, 19-year-old Johnnie Warren and a group of his friends were drinking beer at the home of one of the group when Derek Johnson, another friend, arrived and reported a man had accosted Warren's sister at a store on a local army base, Schofield Barracks. Warren and the others set out in search of the man. Several hours later, they confronted William Canady and Rogers Watson near the Paradise Club, an enlisted men's club on the Schofield base. Warren stabbed Canady once in the chest and a second time in the back as Canady collapsed. Warren then stabbed Watson, threw the knife into the bushes, and fled. Canady died from his wounds; Watson recovered.

The jury convicted Warren on all charges. The court sentenced Warren to life without parole for the murder of Canady, 20 years for the attempted murder of Watson, and five years for assault with a deadly weapon.


Warren asserts the government failed to prove, and the court failed to instruct the jury, that the offense was committed within the special maritime and territorial jurisdiction of the United States. 1 Because Warren did not object at trial we review for plain error, and will reverse only in " 'exceptional circumstances.' " United States v. Hegwood, 977 F.2d 492, 495 (9th Cir.1992) (quoting United States v. Marsh, 894 F.2d 1035, 1039 (9th Cir.1989)); see generally Fed.R.Crim.P. 52(b). 2

A district court "may determine as a matter of law the existence of federal jurisdiction over the geographic area, but the locus of the offense within that area is an issue for the trier of fact." United States v. Gipe, 672 F.2d 777, 779 (9th Cir.1982) (citing United States v. Jones, 480 F.2d 1135, 1137 (2d Cir.1973)). The district court did not instruct the jury that Schofield Barracks was within the special territorial jurisdiction of the United States as a matter of law, and also failed to instruct the jury that to convict the jury must find beyond a reasonable doubt that the crime was committed on Schofield Barracks. The court's failure "to charge a necessary element of the offense generally is plain error." United States v. King, 587 F.2d 956, 965 (9th Cir.1978); see also United States v. Aguon, 851 F.2d 1158, 1168 (9th Cir.1988) (en banc) (failure to charge on "vital" element is plain error). 3 However, if such an error is harmless then, by definition, it does not affect a defendant's substantial rights and is not reviewable as plain error. See Fed.R.Crim.P. 52. "The failure to instruct on every element of an offense is harmless error only if the omitted element is undisputed, and, therefore, its omission could not possibly have been prejudicial." King, 587 F.2d at 966; see also Hennessy v. Goldsmith, 929 F.2d 511, 514-16 & n. 3 (9th Cir.1991) (failure to instruct on element of crime may be harmless beyond a reasonable doubt).

In this case, the prosecution presented uncontroverted testimony that the crime occurred outside the Paradise Club, that the Paradise Club was an enlisted men's club at Schofield Barracks, and that Schofield Barracks was a United States Army base in Hawaii. An army base is within the special jurisdiction of the United States as defined in 18 U.S.C. § 7(3). Warren made no attempt to impeach this testimony and offered no contrary evidence. Indeed, in questioning a witness Warren's counsel referred on the record to the fact that the Paradise Club was located on the Schofield base. There is no reasonable possibility that failure to instruct the jury on the jurisdictional element of the offense affected the verdict. United States v. Rubio-Villareal, 967 F.2d 294, 296 n. 3 (9th Cir.1992) (en banc); see also United States v. Cubean, 611 F.2d 257, 258 (8th Cir.1979) (failure to instruct on jurisdiction was harmless because there was no prejudice to defendant where issue was proved beyond a reasonable doubt and was uncontroverted at trial). Therefore, the judge's failure to instruct the jury that it must find beyond a reasonable doubt that the crime was committed on the Schofield Barracks was not plain error.


Warren was indicted on January 30, 1991; trial was set for April 2. On March 26, 15 days before the Speedy Trial Act deadline for commencement of trial would be reached, the court ordered a competency examination and hearing, and tolled the running of time under the Act. Warren was examined at a federal facility and found competent. At a competency hearing on May 10 the court ruled Warren was competent to stand trial, and granted the defense's motion for a continuance. Trial began on May 21.

Warren challenges the district court's finding there was a good faith doubt as to his competence, and claims the court ordered the competency examination and hearing only to avoid the strictures of the Speedy Trial Act. We review the district court's finding of good faith doubt for clear error. United States v. Hoskie, 950 F.2d 1388, 1392 (9th Cir.1991).

At a status conference on March 25, seven days before the date set for trial, Warren's counsel informed the court that counsel would not be prepared for trial on the date set because of government delay in providing discovery and in bringing the defendant from prison in California to Hawaii where he would be available to counsel. Counsel also reported to the court that he had learned the previous day "there is a prior at least psychological interview with a professional in [Warren's] past"; that counsel had arranged to have a psychological evaluation of the defendant by a local physician; and that this evaluation might reveal the need for further delay in the trial. The court asked counsel whether Warren would seek a continuance, and counsel responded he would not.

At another status conference the following day, the court informed counsel that on consideration of the file the court had concluded there was a good faith doubt as to Warren's competence to stand trial, and the court intended to order a competency examination and hearing. 4 Warren's counsel objected, stating he did not question Warren's competency. Under questioning by the court, however, counsel admitted he too was concerned about Warren's competency. 5 The court ordered a competency examination and hearing pursuant to 18 U.S.C. § 4241(a), and continued the trial date. The court tolled the running of time under the Speedy Trial Act pursuant to 18 U.S.C. §§ 3161(h)(1)(A), 3161(h)(8)(A), & 4241(a).

It was the court's duty to order a competency hearing sua sponte if the court had reasonable grounds for concluding there was a good faith doubt as to Warren's competency. Chavez v. United States, 656 F.2d 512, 515 (9th Cir.1981); United States v. Ives, 574 F.2d 1002, 1004-05 (9th Cir.1978). Having ordered a hearing, the Court had discretion to order a competency examination sua sponte, 18 U.S.C. § 4241(b) ("Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted").

The defendant's prior psychological history was a relevant factor in deciding whether to order a competency hearing. Chavez, 656 F.2d at 518. Counsel's belief that the defendant might not be competent was also relevant. Ives, 574 F.2d at 1005; see also Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991) ("While the opinion of ... counsel certainly is not determinative, a defendant's counsel is in the best position to evaluate a client's comprehension of the proceedings."). The court also properly relied on "the manner and mode in which the crime allegedly took place." See Hernandez, 930 F.2d at 718 (nature of crime may be a factor in determining whether to hold competency hearing). Taken together these factors provided reasonable grounds for entertaining a good faith doubt about Warren's competency. Given the circumstances, the Court did not abuse its discretion in ordering a full evaluation at a federal facility rather than relying on the results of a limited examination by a private doctor arranged by Warren's counsel. 6


Warren's final claim relates only to the murder conviction. He asserts the district court responded inadequately to questions from the jury about premeditation and the consideration of second degree murder. We review for abuse of discretion. United States v. Hayes, 794 F.2d 1348, 1352 (9th Cir.1986).


On the first day of deliberation, the jury sent the court a note reading: "Is premeditated to 'hurt' the same as premeditated to 'kill'?" Warren argued the Court should answer the question "No" because premeditation to hurt, as distinguished from premeditation to kill, would not support a verdict of first degree murder. Over Warren's objection, the court instead referred the jury to a previously given instruction, Instruction No. 9, "and in particular, the third element of the offense" as defined in that instruction. 7

The jury's question indicated at least some jurors had been confused by the original instructions regarding a critical legal issue not specifically covered by those instructions--whether Warren could be found guilty of first degree murder if he intended only "to hurt" Canady rather than "to kill" him. The court's original instruction focused on the...

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