USA v. Timbana

• Decision Date: 22 March 2000
• Docket Number: No. 97-30001,97-30001
• Citation: 222 F.3d 688
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN TIMBANA, Defendant-Appellant. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 688

222 F.3d 688 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN TIMBANA, Defendant-Appellant.

No. 97-30001

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted March 22, 2000--San Francisco, California

Filed July 28, 2000

Greg S. Silvey, Boise, Idaho, for the defendant-appellant.

Joanne P. Rodriguez, Assistant United States Attorney, Boise, Idaho, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho, D.C. No. CR-96-00018-LBW; Lynn B. Winmill, District Judge, Presiding

Before: Arthur L. Alarcon, Pamela Ann Rymer and Andrew J. Kleinfeld, Circuit Judges.

ALARCON, Circuit Judge:

John Timbana appeals from the judgment entered following his plea of guilty to the crime of second-degree murder as part of a plea agreement. Timbana was indicted for first-degree murder committed on an Indian reservation in violation of 18 U.S.C. SS 1111(a) and 1153. He was represented by Monte R. Whittier at the time of his guilty plea.

Mr. Whittier filed a notice of appeal and an opening brief on behalf of Timbana. Mr. Whittier set forth in the brief the issues Timbana wanted presented to this court pursuant to Anders v. California, 386 U.S. 738 (1967). Mr. Whittier asserts that Timbana requested that this court vacate the district court's sentencing decision on the ground that it abused its discretion in failing to grant Timbana a downward departure from his applicable range under the United States Sentencing Guidelines. Mr. Whittier informed this court that he believed that this issue was not appealable. Nevertheless, Mr. Whittier argued that the district court abused its discretion in denying a downward departure based on evidence in the presentence report that would support findings that Timbana's behavior was aberrant, that he suffered from physical and mental impairments, and that his conduct was provoked by the victim.

Mr. Whittier further argued that, because Timbana had suffered a traumatic brain injury, is confined to a wheelchair due to paralysis on his left side, is severely impaired on his right side, and has an I.Q. of approximately 72, Timbana would be vulnerable to victimization if incarcerated. Mr. Whittier also cited cases to support the proposition that a deficient mental capacity coupled with a physical impairment would be proper grounds for a downward departure. Finally, Mr. Whittier asserted that, pursuant to U.S.S.G. S 5K2.10, Timbana was entitled to a downward departure because he was in fear of being struck on the metal plate in his head when he killed the victim.

On May 8, 1997, Mr. Whittier's motion to be relieved as counsel of record was referred to the panel assigned to consider the merits of the appeal. On the same date, Timbana's request for permission to file a supplemental brief was granted.

On November 4, 1997, this court's appellate commissioner granted Mr. Whittier's motion to be relieved as counsel of record. Timbana filed a pro se supplemental brief on August 5, 1998. On January 14, 1999, this matter was ordered submitted without argument pursuant to Rule 34(a)(2) of the Federal Rules of Appellate Procedure.

A majority and dissenting opinion were filed in this matter on May 7, 1999. On June 8, 1999, we filed an order withdrawing the May 7, 1999, opinion. On July 28, 1999, an order was filed appointing Greg S. Silvey as appellate counsel for Timbana. Mr. Silvey filed a brief on behalf of Timbana on November 3, 1999, in which he adopted the issues and arguments presented in Mr. Whittier's Anders brief and in Timbana's supplemental pro se brief. Accordingly, we will discuss the discrete contentions raised by and on behalf of Timbana separately. We begin our analysis with a summary of the facts in the record on the date Timbana entered his guilty plea.

I

Timbana was indicted on February 14, 1996, and charged with first-degree murder committed on an Indian reservation in violation of 18 U.S.C. SS 1111(a) and 1153. He was arraigned on February 16, 1996. On that date, his attorney requested a competency hearing. A competency hearing was conducted on July 18, 1996. In making its determination that Timbana was competent to stand trial, the court relied on reports submitted by Linda Berberoglu, Ph.D, a staff psychologist at the Federal Medical Center in Rochester, Minnesota, and Mark D. Corgiat, Ph.D., P.A., a clinical psychologist.

Dr. Berberoglu concluded as follows:

John Timbana is a 38-year-old, Native American male, who has significant brain damage, secondary to a head injury sustained in a car accident many years ago. Although he appears to have a moderate degree of cognitive impairment, his deficits are not severely disabling. His speech was somewhat simple and concrete at times, but his thought processes were very logical and rational, and he demonstrated adequate communication skills and reasoning ability when communicating with this examiner. He consistently demonstrated an awareness of the charges against him and repeatedly said, "They have to have evidence. They can't just go by hearsay or rumors." He was able to describe the roles of various judicial personnel. For example, he said the job of the judge is "to just sit there and listen to both sides. " He indicated the judge is in charge of the courtroom. When asked whose side the judge is on, he replied, "No one's really. He's right in the middle." He stated the defense attorney "defends the defendant . . . trying to shorten his moments of imprisonment . . . whatever the defendant is telling to the defense attorney, they have to keep it confidential. No one else can hear, just only them two." He repeatedly referred to the opposing attorney as the "offense," and said his job is "to prosecute me." He explained the prosecutor is "saying I'm the one that done the crime. The defendant's got rights to say he didn't do it, but the offense is trying to say he really done it." He said the jury's job is to "make the decision if I really done the crime," which he said means determining whether "that person is capable of committing the crime that got him in this situation." He said after both sides have been presented, the jury "goes in a solitary room and sits down," and decides "guilty or not guilty." He said the job of a witness is "testifying," which he defined as "they have to swear an oath to tell the truth . . . he or she has to testify about what happened and they cannot go by hearsay." He did not know the meaning of perjury and was told this term meant lying under oath. He paraphrased this as "when they swear to tell the truth and nothing but the truth, and they don't. They're perjuring, telling a false story." During subsequent interviews, Mr. Timbana was able to define the term. He defined probation as when "you have to be home at 10 o'clock, no alcohol, no monkeying around. You have to check in with your probation officer, and if you don't, that's a violation. They can give you more time to sit it out in jail." He listed his plea options as "guilty and not guilty." When asked for a third possibility, he replied, "insanity plea," which he said means, "that he's loco, that they did what they're charged with, but there's excuses." He understands the possible consequences of various pleas and said the advantage of a plea bargain was the defendant might receive "a lighter sentence. That's mainly up to the judge." He could provide reasonable ideas for defense and prosecution witnesses. He also demonstrated the ability to disclose details about the events surrounding the offense and those involved, which could be relevant to a possible defense strategy. Overall, his ideas for defense strategies were logical and appropriately self-serving. He recalled important statements he made to the police at the time of his arrest and logically refuted them. Mr. Timbana understands what constitutes appropriate verses inappropriate courtroom behavior and understands his attorney will speak for him in Court. He believes it is important to have an attorney and plans to rely upon his attorney for advice. Therefore, in my professional opinion, although John Timbana currently suffers from a mental disease or defect, it does not currently render him unable to understand the nature and consequences of the proceedings against him or to assist properly in his own defense.

Dr. Corgiat also concluded that Timbana was competent to stand trial. He expressed his conclusion in the following words:

It is my opinion that the defendant is capable of fully understanding the nature and object of the proceedings against him. I also find him capable of cooperating in a rational manner with counsel in presenting his defense. He appears to possess substantial capacity to appreciate the criminality of his conduct. He is also able to conform his conduct to the requirements of the law. He does appreciate and fully understands the charges against him. He demonstrates an adequate understanding of the legal adversarial system. He is able to explain the prosecutor's role as well as that of his attorney. He is also able to provide welldefined descriptions of the role of defense counsel, prosecuting attorney, judge, jury, defendant, and witnesses.

However, although Mr. Timbana is able to understand the relevant information to meet criteria for competency, the neurocognitive deficits which have been described above will clearly interfere with the quality of his ability to participate in his defense. There are two difficulties that bear directly on the issue of competency. First, the neurocognitive deficits as described above will reduce Mr. Timbana's problem-solving effectiveness, mental efficiency, and ability to adapt to these novel circumstances. As such, these deficits will render his opinions frequently concrete and at times frankly erred. His related lack of insight disallows him the opportunity to monitor these errors and appropriately adjust to...