USA. v. Martinez

• Decision Date: 02 August 1999
• Docket Number: VERDUZCO-MARTINEZ,No. 98-8099,98-8099
• Citation: 186 F.3d 1208
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE AURELIO, also known as Federico Nunez, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1208

186 F.3d 1208 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE AURELIO VERDUZCO-MARTINEZ, also known as Federico Nunez, Defendant-Appellant.

No. 98-8099

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 2, 1999

Appeal from United States District Court for the District of Wyoming. D.C. No. 97-CR-127-01-B

[Copyrighted Material Omitted] Harry G. Bondi of Harry G. Bondi Law Offices, P.C., Casper, Wyoming, for the appellant.

John A. Masterson, Assistant United States Attorney, Casper Wyoming, and David D. Freudenthal, United States Attorney, District of Wyoming, for the appellee.

Before BALDOCK, BARRETT, and BRORBY, Circuit Judges.

BARRETT, Senior Circuit Judge.

After examining the briefs and the appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Jose Aurelio Verduzco-Martinez (Verduzco-Martinez) appeals his convictions for conspiracy to possess with intent to distribute and to distribute methamphetamine and attempt to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 21 U.S.C. § 846.

Facts

On October 29, 1997, Rafael Victor Torres Andrade (Andrade) and Verduzco-Martinez purchased a one-way airline ticket for Andrade on a flight from Casper, Wyoming to Los Angeles, California. Verduzco-Martinez accompanied Andrade to the Natrona County International Airport in Casper, Wyoming. Andrade then flew to Los Angeles and picked up a van to drive back to Wyoming.

On October 30, 1997, at 3:54 a.m., the California Highway Patrol stopped Andrade for failure to have a working rear license plate light. After Andrade received a verbal warning for the license plate light, he consented to the search of the van. During the search, the officers observed duct-taped packages hidden in the cowling of the van beneath the windshield wipers that the officers believed to contain methamphetamine. Andrade was then arrested for possession of illegal narcotics. Seven packages were recovered from the van containing approximately 3.2 kilograms of methamphetamine.

At the Barstow Police Department, Andrade verbally waived his Miranda rights and told the investigating officer, Deputy Silva, that he was being paid $2,000 to drive the van from Los Angeles, California, to Casper, Wyoming, plus an additional $450 in expense money. (ROA, Vol. 4 at 105, 109.) He also told Officer Silva that he knew he was transporting "crank" or methamphetamine. Id. at 109, 112. Andrade then agreed to make a controlled delivery of the van in Wyoming.

Once in Casper, Andrade called the telephone number he had been given prior to the trip and spoke with "Nene." Andrade then delivered the van to 1831 Boxelder Street. Upon arrival, Andrade honked the horn and Verduzco-Martinez came out of the residence. Verduzco-Martinez and Andrade discussed the van and Verduzco-Martinez received the key to the van. They were arrested as they attempted to leave the area.

On November 20, 1997, the grand jury indicted Verduzco-Martinez on charges of conspiracy to possess with intent to distribute and to distribute methamphetamine and attempt to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 21 U.S.C. § 846. Id. Vol. 1 at Tab 19. Following a hearing on June 22, 1998, the district court found Verduzcvo-Martinez competent to stand trial. Id. at Tab 93. The district court found that Verduzco-Martinez did not suffer from a mental disease or defect rendering him mentally incompetent, had a factual and rational understanding of the proceedings against him, and was able to properly assist in his defense. Id.

In August, 1998, Verduzco-Martinez and Andrade were tried together. On August 17, 1998, the jury found Verduzco-Martinez guilty on all counts. Id. at Tab 132. He was sentenced to the mandatory minimum of 120 months imprisonment. Id. at Tab 151.

On appeal, Verduzco-Martinez contends that: (1) the district court erred in finding him competent to stand trial, (2) the admission of Andrade's redacted statements violated his Sixth Amendment right to confrontation, and (3) the evidence was insufficient to support his conviction.

Discussion

I. Competency

Verduzco-Martinez contends that the evidence taken at the competency hearing on June 22, 1998, was insufficient to establish he was competent to stand trial. Verduzco-Martinez points out that he tested at an extremely low level of intellectual functioning and asserts that Dr. Ihle placed too much emphasis on his ability to function in society in reaching the conclusion that he was capable of understanding the criminal trial process and the legal concepts involved.

"Competency to stand trial is a factual determination that can be set aside only if it is clearly erroneous." United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir. 1998) (citing United States v. Crews, 781 F.2d 826, 833 (10th Cir. 1986)), cert. denied, ___ U.S. ___ (1999). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). See Exxon Corp. v. Gann, 21 F.3d 1002, 1005 (10th Cir. 1994). The district court need not be correct, but its finding must be permissible in light of the evidence. Bill's Coal Co., Inc. v. Board of Pub. Util. of Springfield, Mo., 887 F.2d 242, 244 (10th Cir. 1989).

Competency involves the defendant's mental state at the time of trial. "[T]he criminal prosecution of an accused person while legally incompetent offends the Due Process Clause of the Fourteenth Amendment." United States v. Williams, 113 F.3d 1155, 1159 (10th Cir. 1997) (citing Bishop v. United States, 350 U.S. 961 (1956); Pate v. Robinson, 383 U.S. 375, 385 (1966)). "The focus of a competency inquiry is the defendant's mental capacity; the question is whether he has the ability to understand the proceedings." Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993). "Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel." Id. at 402. "It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." Drope v. Missouri, 420 U.S. 162, 171 (1966). To be competent to stand trial, a defendant must have "'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding'" and "'a rational as well as factual understanding of the proceedings against him.'" Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)). "'In making a determination of competency, the district court may rely on a number of factors, including medical opinion and the court's observation of the defendant's comportment.'" Boigegrain, 155 F.3d at 1189 (quoting United States v. Nichols, 56 F.3d 403, 411 (2d Cir. 1995)). See Williams, 113 F.3d at 1159.

During the June 22, 1998, competency hearing, the district court heard the testimony of Dr. Ihle who examined Verduzco-Martinez and administered intellectual functioning tests. (ROA, Vol. 2 at 137.) Dr. Ihle testified that due to the Anglo-Saxon cultural bias of the verbal portion of the intellectual functioning test, he gave Verduzco-Martinez only the performance section and a test of nonverbal intelligence. Id. at 137-38. Verduzco-Martinez showed low intellectual functioning on the performance test, scoring in the lower five percent of people given the test. Id. at 148. Dr. Ihle testified, however, that "even though [Verduzco-Martinez] evidenced some deficits in intellectually functioning from the tests and some of the evaluation process," he was competent to stand trial. Id. at 140. Dr. Ihle noted that despite his low intellectual functioning, Verduzco-Martinez functioned well in society, i.e., had a driver's license, assisted his wife with finances, and worked. Id. at 140, 151. Dr. Ihle testified that Verduzco-Martinez's "intellectual deficits did not seem to significantly impair his ability to learn and work with some of the legal issues" and that Verduzco-Martinez was able to logically talk about his behavior and the circumstances surrounding the relevant time period, to articulate what he was charged with, and to discuss a felony versus a misdemeanor. Id. at 141. Verduzco-Martinez was also able to discuss confidentiality with his attorney, issues related to participants in the courtroom, his attorney, what his attorney was going to do during trial, and what his role in the courtroom was, i.e., to listen to witnesses and look for errors. Id. 141-42.

We agree with the district court that Verduzco-Martinez, although of limited intellectual functioning, was competent to stand trial. The district court did not place undue emphasis on Verduzco-Martinez's ability to function in society. There is nothing in the record to contradict Dr. Ihle's testimony that Verduzco-Martinez was capable of understanding the trial process and assisting his attorney. Thus, we hold that the district court was not clearly erroneous in finding Verduzco-Martinez competent to stand trial. See Miles v. Dorsey, 61 F.3d 1459, 1472 (10th Cir. 1995) ("'The presence of some degree of mental disorder in the defendant does not necessarily mean that he is incompetent to . . . assist in his own defense.'") (quoting Wolf v. United States, 430 F.2d 443, 444 (10th Cir. 1970)), cert. denied, 516 U.S. 1062 (1996).

II. Coconspirator's Statements

...