United States v. Makris

• Decision Date: 16 July 1975
• Docket Number: Cr. No. 72-H-92.
• Citation: 398 F. Supp. 507
• Parties: UNITED STATES of America v. Michael A. S. MAKRIS.
• Court: U.S. District Court — Southern District of Texas

398 F. Supp. 507

UNITED STATES of America v. Michael A. S. MAKRIS.

Cr. No. 72-H-92.

United States District Court, S. D. Texas, Houston Division.

July 16, 1975.

Edward B. McDonough, Jr., U. S. Atty., James R. Gough, Alvin A. Horne and George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., for plaintiff.

David Berg, Harold Lloyd, Houston, Tex., for defendant.

MEMORANDUM AND OPINION

CARL O. BUE, Jr., District Judge.

This criminal action is currently before the Court as a consequence of the mandate of the Fifth Circuit Court of Appeals in its decision United States v. Makris, 483 F.2d 1082 (5th Cir. 1973). Pursuant to that decision, this Court is to ascertain, first, if it is possible to conduct at the present time a hearing for the purpose of determining nunc pro tunc the competency of the defendant to stand trial in June, 1972, and second, depending upon the resolution of the first question, to make a finding as to the defendant's competency vel non during the 1972 trial and, if incompetent, to retry the defendant at such time as he is found to be competent.

BACKGROUND

This criminal action for perjury stems from the testimony of the defendant before the Securities and Exchange Commission in December, 1970, at which time defendant denied discussing with Frank Sharp a trust fund of securities allegedly belonging to refugees of Nazi Germany, denied discussing financial matters with Father Michael Kennelly of the Strake Jesuit School and denied any knowledge of a corporation known as Bed Rock Petroleum. In a trial to the Court, defendant was found guilty of three counts of perjury. On appeal, the Circuit Court upheld this Court's determination that defendant was sane at the time that the offense was committed, but set aside the verdict of guilty with respect to Count I for insufficient evidence. Additionally, the case was remanded for the purpose of determining defendant's competency at the time of trial in view of the failure of this Court to issue specific findings in that respect and to hold a hearing for that purpose as required by 18 U.S.C. § 4244.

Defendant's allegation of incompetency at the June, 1972, trial stems from the fact that he underwent surgery in April, 1970, for the removal of a pituitary adenoma that resulted as a matter of necessity in the extensive manipulation of the frontal lobes of the brain and in the destruction of the pituitary gland itself. The principal thrust of his assertion of incompetency is that under stress he experiences deterioration of his personality to the extent that his responses are random and irrational and result in psychic and physical instability.

In an effort to comply with the mandate of the Court of Appeals, this Court required the defendant to undergo mental examinations at the Medical Center for Federal Prisoners at Springfield, Missouri, in April, 1974, for a period of thirty days. The competency hearing required by the Court of Appeals was then set for May 30, 1974. With considerable reluctance, but out of an abundance of caution, this Court continued that hearing to permit further examinations, tests and treatment of the defendant in view of his allegation that he had suffered a stroke during the latter portion of his stay at Springfield and accompanying medical testimony focusing on the potential hazards of proceeding ahead at that time. Ultimately, the competency hearing was commenced on December 3, 1974. At that time the defendant apparently suffered some type of seizure in the courtroom. This episode resulted in his hospitalization and prompted defense counsel to move once more for a continuance. Recognizing defendant's theory of incompetency under the stress of a courtroom proceeding and the resulting procedural impasse that could confound and indefinitely delay any meaningful resolution of this case, the Court ruled that the hearing would proceed, even though it meant that the defendant would be absent for most of the testimony. (Hearing Transcript 81-91.)

Accordingly, it is necessary for the Court first to determine if it was proper for the Court to proceed with the § 4244 hearing directed by the Court of Appeals in the absence of the defendant. If such evidence can be considered, it will then be necessary for the Court to consider if it can adjudge nunc pro tunc the defendant's competency at the time of trial in June, 1972. Depending upon the outcome of this determination, it will be necessary for the court either to evaluate the defendant's competency at the time of trial or at the present time for purposes of retrial. Additionally, the Court must consider and resolve defendant's Motion for Judgment of Not Guilty or for Dismissal of Charges or for a New Trial premised upon his assertion that certain key medical records had been altered or omitted from those supplied to him and his counsel.

THE VIABILITY OF THE COMPETENCY HEARING IN THE ABSENCE OF THE DEFENDANT

Upon the collapse of the defendant in the courtroom shortly after the commencement of the competency hearing on December 4, 1974, this Court proceeded to hear the expert and lay testimony from numerous witnesses over the strenuous objections of defense counsel. After review of appropriate legal authorities and an in-depth consideration of the facts leading to that decision to continue, the Court does not find that its view of the law now varies from that set forth in the Memorandum and Opinion issued on December 4, 1974. Admittedly, there is some authority elsewhere for the proposition that a competency hearing may not proceed in the absence of the defendant. See United States v. Horowitz, 360 F.Supp. 772 (E.D.Pa. 1973); United States v. Abrams, 35 F. R.D. 529 (S.D.N.Y.1964), aff'd 357 F.2d 539 (2d Cir.), cert. denied, 384 U.S. 1001, 86 S.Ct. 1922, 16 L.Ed.2d 1014 (1966); Martin v. Settle, 192 F.Supp. 156 (W.D.Mo.1961). Contra, Johnson v. United States, 293 F.2d 100 (5th Cir. 1961). However, upon closer examination of the question, this Court does not believe that the absence of the defendant from the hearing in December, 1974, precludes this Court from using that proceeding to satisfy the requisites of 18 U.S.C. § 4244.

The right of a defendant to be present during a criminal proceeding rests upon a threefold basis: (1) the provisions of Rule 43 of the Federal Rules of Criminal Procedure; (2) the confrontation clause of the Sixth Amendment; and (3) the due process clause of the Fifth Amendment. For the reasons set forth below, the Court does not find that the defendant's presence at the December hearing is mandated by these provisions.

Rule 43 of the Federal Rules of Criminal Procedure provides that

the defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules.

Of critical importance to the determination of the Court is the question of whether a competency hearing can be considered a "stage of the trial".

The notes of the advisory committee with respect to this rule provide that the principle requiring the defendant's presence "does not apply to hearings on motions made prior to or after trial". As support for this proposition, the committee cited United States v. Lynch, 132 F.2d 111 (3d Cir. 1943), which held that the defendant's right to be present at his trial did not "embrace a right to be present also at the argument of motions prior to trial or subsequent to verdict". Id. at 113. Accord, Williams v. United States, 358 F.2d 325 (9th Cir. 1966); Dunnivan v. Peyton, 292 F.Supp. 173 (W.D.Va.1968); Pope v. United States, 287 F.Supp. 214, 219 (W.D.Tex.1967), aff'd, 398 F.2d 834 (5th Cir. 1968), cert. denied, 393 U.S. 1097, 89 S.Ct. 886, 21 L.Ed.2d 787 (1969). Although it may be argued that the rationale of Lynch is inapplicable to a hearing in which evidence in addition to argument is presented, the Fifth Circuit Court of Appeals has held that an evidentiary suppression hearing is not a "`critical stage' of the proceedings within Rule 43 . . .." United States v. Gradsky, 434 F.2d 880 (5th Cir. 1970), cert. denied, 401 U.S. 925, 91 S.Ct. 884, 27 L.Ed.2d 828 (1971). See also Yates v. United States, 418 F.2d 1228 (6th Cir. 1969). Accordingly, the Court does not find that Rule 43 requires the presence of the defendant at a nunc pro tunc hearing pursuant to 18 U.S.C. § 4244.

Nor does the Court find that the presence of the defendant is required by the confrontation clause of the Sixth Amendment in order to enable defense counsel adequately to cross examine witnesses. See Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). As a matter of law, the Fifth Circuit in Gradsky refused to extend the right of presence of the defendant under the Sixth Amendment to an evidentiary hearing. Furthermore, it has been recognized in other aspects of the criminal process that the presence of the defendant to aid in cross-examining is not required in proceedings not involving questions of guilt or innocence. See United States v. Hayman, 342 U.S. 205, 222, 72 S.Ct. 263, 96 L.Ed. 232 (1952) (Sixth Amendment does not mandate presence of defendant at § 2255 proceeding); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed.2d 1337 (1949) (defendant not entitled to cross-examine witnesses supplying sentencing information).

Of signal importance, however, is that factually the circumstances at the commencement of the hearing indicate that defendant could have been of little assistance to his counsel in cross-examining witnesses. The major portion of the evidence at the competency hearing was composed of expert medical witnesses who testified with respect to matters that were not peculiarly within the knowledge of the defendant himself. Although defendant might have been able to assist his counsel in cross-examining certain of the lay witnesses, defense counsel, at the commencement of the proceeding, specifically...