United States v. Baraban, 80-219-Cr

Decision Date04 December 1984
Docket Number82-2661-CIV.,No. 80-219-Cr,80-219-Cr
Citation599 F. Supp. 1171
PartiesUNITED STATES of America, Plaintiff, v. Peter F.K. BARABAN, Defendant.
CourtU.S. District Court — Southern District of Florida



Jane Moscowitz, Asst. U.S. Atty., Miami, Fla., for plaintiff.

R. Stan Mortenson, Washington, D.C., for defendant.


SPELLMAN, District Judge.

On December 31, 1980, Peter F.K. Baraban was convicted, after a trial by jury, of three counts of evading federal income taxes in violation of 26 U.S.C. § 7201. This Court sentenced him to a total of six years imprisonment. On December 1, 1981, the Court of Appeals for the Eleventh Circuit affirmed the convictions, per curiam, without opinion. The United States Supreme Court declined review.

Baraban retained new counsel and filed the instant motion pursuant to 28 U.S.C. § 2255. Baraban now claims that his conviction is invalid and that he is entitled to a new trial on the grounds that (1) he was incompetent to stand trial at the time of his conviction; (2) he was deprived of effective assistance of counsel; and (3) the trial judge had an ex parte communication with a juror under circumstances in which the record fails to establish that such communication was not prejudicial.

This Court held extensive hearings on these claims and has reviewed the various expert reports and the comprehensive memoranda submitted by counsel. For the reasons detailed below, the Court finds that Baraban's motion to set aside his conviction must be DENIED. The opinion which follows constitutes this Court's findings of facts and conclusions of law.


The conviction of an accused while he is legally incompetent violates due process. E.g., Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966). The standard for whether a defendant is competent to stand trial is well-established. The relevant question is whether the defendant

has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and whether he has a rational and factual understanding of the proceedings against him.

Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

Although it is preferable to make a concurrent determination of an accused's mental status at the time of trial, an accused does not waive the issue of competency by failing to raise it at trial. Pate, 383 U.S. at 384, 86 S.Ct. at 841. When the issue of competency is raised for the first time in a habeas proceeding, as it is here, a petitioner is entitled to a hearing on the issue if he can come forward with "enough probative evidence to raise substantial doubt as to competence." Bruce v. Estelle, 536 F.2d 1051, 1058-59 (5th Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977).1 But once a hearing has been ordered, the petitioner "must then go further and prove the fact of incompetency, at least by a preponderance of the evidence". Id.; accord Zapata v. Estelle, 585 F.2d 750 (5th Cir.1978) (en banc).

At the hearing on this matter, Baraban was unable to meet this latter burden. At best, the evidence he presented demonstrated that he suffers from certain personality disorders, and that he was severely depressed during periods prior to his trial. This Court finds, however, that the greater weight of the evidence points to the fact that Baraban was competent under the relevant legal standards in that he understood the proceedings against him and was able to consult with his lawyer.

A. Background

The testimony at the hearing established the following: Peter F.K. Baraban was a successful criminal defense lawyer practicing in Miami, Florida. As early as 1977 the IRS commenced a criminal investigation of the defendant. In 1979, a federal grand jury began investigating Baraban in connection with various narcotics and tax offenses. At about this same time, those persons closely associated with him saw a notable change in his behavior. He began failing to appear at the office, ignored outside contact, and repeatedly missed scheduled court appearances. By February 1980, Baraban had virtually abandoned his practice. His secretary was forced to enlist other lawyers to take over his cases.

By approximately May of 1980, Baraban's condition had so infected his relationship with his associates that they took steps to terminate their dealings with him and prompted him to seek psychiatric treatment. Baraban refused to seek help.

The indictment in this case was returned on June 12, 1980. Just five days later, on June 17, 1980, George Gold, a close friend and associate, was murdered in the hallway just outside Baraban's office door. The circumstances of the shooting led many people to speculate that Baraban was actually the gunman's target. Baraban was arraigned on three counts of tax evasion the day after the murder.

In addition to psychological difficulties, Baraban also experienced serious medical problems. During the summer of 1980, Baraban was hospitalized as a result of complications from kidney stones.

Baraban retained Hugh Culverhouse Jr. as his attorney shortly before he was indicted. Although Baraban met with Culverhouse and discussed the charges with him, by the early fall, his physical and emotional problems made him so completely unavailable that Culverhouse notified the Court of his difficulties communicating with his client. The Court indicated that if at any point Culverhouse felt that his client may be incompetent to stand trial it would order an inpatient psychiatric examination pursuant to 18 U.S.C. § 4244.

When Culverhouse told Baraban that he had discussed his difficulties in communicating with Baraban with the Court, Baraban's behavior changed markedly. According to Culverhouse, by the middle of November, Baraban became completely available for meetings about the case and actively sought witnesses who could aid in his defense. Culverhouse testified unequivocably that in the middle of December, when Baraban went to trial, he believed Baraban to be entirely competent.

B. Evidence That Baraban Was Competent

There is considerable evidence that Baraban was capable of functioning adequately at the time of his trial. For example, just one month before his own trial Baraban ably defended a criminal defendant in federal court. In United States v. Sutton, No. 79-417-Cr-EBD, one of the issues raised pre-trial by Baraban was whether Sutton's long history of alcoholism rendered him incompetent to stand trial. Baraban filed motions and memoranda of law in which he discussed the competence issue in a sophisticated manner. Baraban's opposing counsel was Leah Simms, now a judge in the County Court, Dade County, Florida. Judge Simms testified that there was nothing unusual about Baraban's behavior in court. In fact, during jury selection on November 13, 1980, he demonstrated an extraordinary ability to memorize the names of the entire venire on one pass, which permitted him to question each potential juror, individually by name. The voir dire Baraban conducted, which this court ordered transcribed, shows that Baraban had a great deal of charm and a complete grasp of the issues involved. After the jury selection, Baraban negotiated a plea arrangement in which Sutton pled guilty to one count of a three count indictment and received a sentence of probation.

As for preparing for Baraban's own trial, notwithstanding the period in which he was unavailable to Culverhouse, Baraban related the facts about his case and discussed strategy with Culverhouse. He told Culverhouse the source of his money, and when Culverhouse explained that the money would be taxable and thus not provide a defense, he changed his description of the source of the money to a loan which would not be taxable. Thus, he grasped the difference between a taxable and a non-taxable event. Furthermore, he confirmed the net worth expenditures which comprised the government's case.

By late November, 1980, Baraban was actively involved with counsel in searching for witnesses. He also hired Dr. Barry Crown, a psychologist often used by defense attorneys to help select the jury and to give advice on trial strategy. On the eve of trial, he participated in plea negotiations and discussed the matter with Culverhouse and solicited the opinions of other attorneys. He ultimately made the decision to go to trial because he believed that he would not get any larger sentence after a trial than the prosecutor would recommend to the Court after a plea.

At the trial, which began on December 16, 1980, Baraban conferred with Dr. Crown and his attorneys in picking the jury. He discussed the question of whether he should testify in his own behalf with Culverhouse on more than one occasion. He decided against testifying primarily because he believed that the jury would not find him sympathetic. He also considered however, that his testimony would subject him to cross-examination that the source of the money was narcotics. During the trial, Baraban took copious notes. He consulted with counsel when the government's exhibits were offered into evidence. And finally, at the time of sentencing, Baraban spoke eloquently on his own behalf.

In sum, it is undisputed that Baraban had serious emotional and physical difficulties at around the time he was indicted in this case. But notwithstanding these difficulties, Baraban provided his counsel with important facts about his case, actively sought defense witnesses, and hired a psychologist to help select the jury. At the time of trial he was capable of intelligently making such critical decisions as to whether he should proceed to trial or enter a plea and whether he should testify in his own behalf. During the trial, his demeanor was entirely appropriate and at the time of sentencing, he allocuted eloquently. These facts are...

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