Van De Bogart v. United States, 19446.

• Decision Date: 28 June 1962
• Docket Number: No. 19446.,19446.
• Citation: 305 F.2d 583
• Parties: Paul Milo VAN DE BOGART, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

305 F.2d 583 (1962)

Paul Milo VAN DE BOGART, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 19446.

United States Court of Appeals Fifth Circuit.

June 28, 1962.

Paul Milo Van de Bogart, Jr., for appellant.

Macon L. Weaver, U. S. Atty., R. Macey Taylor, Asst. U. S. Atty., Aubrey O. Lammons, Asst. U. S. Atty., Birmingham, Ala., for appellee.

Before TUTTLE, Chief Judge, and RIVES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This case presents again the difficult problem of determining the question of mental competency to stand trial for a criminal charge. Difficult it is, at least in the sense that since this reflects our basic notion that those incapable of understanding the nature of the proceedings taking place ought not to be tried, every case must be measured in like terms of fundamental satisfaction of that ideal. That invariably complicates the matter. For it may seldom any longer be true that the answer may be found in the simple terms of compliance or non-compliance with a specific statute. That certainly is true when the attack on mental competency to stand trial is asserted by post-conviction remedies of a collateral kind such as habeas corpus, or, for federal prisoners, 28 U.S.C.A. § 2255. All this adds up to make it even more difficult from the standpoint of the busy trial Judge faced with an overpowering docket. Thus he must make so many judgments in borderline situations whether, in any given case, a substantial enough showing is reflected in papers — often unartfully drawn by earnest but untrained laymen — to require a judicial hearing to determine the real medico-legal fact. If a District Judge may not satisfy the duty to provide a judicial ascertainment of the fact in a proper case — and it is certain he may not — merely because some statutory mechanisms relating to mentally incompetent defendants is utilized or ignored, then by the same token the Judge's actions are not to be declared erroneous simply because he uses the wrong statute, or a right statute in a wrong way. What he does, just as what he does not do, must be scrutinized in terms of the real substance of things.

So it is here. By a § 2255 proceeding, Petitioner sought to set aside a conviction based on his plea of guilty on the ground that he was not mentally competent to stand trial and, specifically, not competent therefore to enter the plea of guilty. The specific criticism is in three parts. The first is that the Judge misused 18 U.S.C.A. § 4208¹ as a means by which to ascertain the true facts as to Petitioner's mental condition. The second is that, in any event, on receipt of the report from the prison authorities, including the medical evaluation resulting from the interim sentence under § 4208, the Judge should then have vacated the plea of guilty, or at least judicially ascertained the true mental condition of the accused. The third is that since these same facts are now revealed in the § 2255 proceedings, the Judge either had to do now what he earlier should have done — revoke the plea of guilty thus setting aside the conviction — or, at least, should have had a judicial hearing to receive and evaluate the medical and other evidence bearing upon mental competency.

The District Court, denying the § 2255 petition without a hearing, rejected all of these contentions. Whether this was correct in the circumstances of this unique case depends on whether this satisfied the principles expounded by us in Gregori v. United States, 5 Cir., 1957, 243 F.2d 48, and since that time applied consistently in many situations. Brown v. United States, 5 Cir., 1959, 267 F.2d 42; Alexander v. United States, 5 Cir., 1961, 290 F.2d 252; Corbett v. United States, 5 Cir., 1961, 296 F.2d 131; Callahan v. United States, 5 Cir., 1961, 297 F.2d 79; Hughes v. United States, 5 Cir., 1962, 303 F.2d 776. Cf. Lee v. Wiman, 5 Cir., 1960, 280 F.2d 257 at 266.

The Petitioner was arrested on June 2, 1960, in the Northern District of Alabama under a warrant issued on charges arising in the Southern District of Florida for interstate transportation of counterfeited securities. 18 U.S.C.A. § 2314. On June 17, Petitioner initiated a request for a transfer to permit a plea of guilty under F.R.Crim.P. 20, 18 U.S. C.A. The Court thereupon appointed counsel. Thereafter counsel advised the Court he was ready to proceed and stated: "The plea is guilty * * * and Petitioner would like to ask the Court to assist him in getting a psychiatric examination." The Court after accepting written waiver of indictment replied to this request for psychiatric examination as follows: "Well there is a section of the Code which was adopted in 1958 which has become effective for a situation of that kind and I will certainly consider it."

The Rule 20 transfer was completed on July 29, 1960, at which time the judgment entered committed Petitioner to the custody of the Attorney General under the provisions of § 4208(b). That Section, see note 1, supra, permits the Court to commit the defendant to the custody of the Attorney General "if the court desires more detailed information as a basis for determining the sentence to be imposed." And such "commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law" for the offense charged. The purpose of the imprisonment is to enable a comprehensive study to be made of the prisoner as prescribed in subparagraph (c). But the purpose of such study is specifically confined to "determining the suitability of the prisoner for parole." In concluding the imposition of that sentence, the Judge then made this statement. "Now I am of the opinion that this defendant needs psychiatric help and he will get it under that sentence."

It should be pointed out here that at this stage, in speaking in terms of the need for psychiatric examination, neither the court-appointed counsel nor the Judge had in mind mental incompetence to stand trial. Each was thinking in terms of treatment. But this does not end the matter since the Judge's action must be tested in the light of information generated by the sentence imposed.

Pursuant to this sentence, Petitioner was sent to the United States Federal Penitentiary Terre Haute, Indiana, on August 3. On October 26, 1960, the Director of the Bureau of Prisons submitted the formal report required by § 4208(c). This was in the form of a Classification Study. The Director's transmittal letter stated that the "study includes a detailed medical and psychiatric report" and that the "psychiatrist has observed some symptoms of possible underlying acute mental illness."² Reflecting that the prison authorities considered the examination in the context of § 4208(c) — the suitability of Petitioner for parole — and not in terms of general mental competence, the report concluded that Petitioner "should not be considered a prospect for probation," and that a sentence of three years under § 4208(a) (2) was recommended as providing "ample time for institutional treatment and, in addition, to assure a period of supervision in the community following release."³

This Classification Study included as two separate subdivisions the Staff Evaluation and one described as Medical and Psychiatric. The Staff Evaluation report went into considerable detail in the history and the behavior problems of this frequently incorrigible young man who possessed an IQ of 124 and was characterized as one of "superior intelligence." Despite this and a good family background in California and a demonstrated capacity for a successful business career, the report, with regard to his mental-emotional aspect, concluded: "Psychiatrically, he is suspected of suffering from a schizophrenic illness which may ultimately lead to psychotic certification." Then followed the only reference, direct or indirect, to mental capacity in terms of legal accountability. "We feel," the Staff Evaluation continued, "that he was a responsible person at the time of the offense." Nothing was said there as to the time of arraignment, plea or sentence.

The Medical and Psychiatric Report reflected considerably more detail. Thus, the "Psychological evaluation while incarcerated in a military prison" shows that he "was diagnosed as being a psychopath * * *." Contemporary "psychological testing" at the prison "reveals * * * disturbing thoughts while trying to sleep, suicide wishes when depressed, thoughts of killing someone, * * *." The conclusions were stated in the "Summary" that "* * * we note also, inability at times to differentiate between reality and unreality, thought disturbance, feelings of having to kill someone * * *. This man would appear to the examiner to be suffering with a character disorder. At this time there would appear to be evidence of a more serious mental deteriorating process occurring." This was immediately followed by the tabulated diagnosis:

                  DIAGNOSIS:                                RECOMMENDATIONS
                  "Psychiatric: 000-X61 anti-social         I shall keep this man under observation
                                  reaction                  and report later whether
                                  000-X26Y Schizophrenic    I am able to confirm that he is
                                  reaction,                 suffering with a schizophrenic
                                  chronic undifferiated     illness. He is presently on tranquilizing
                                  type, suspected           medication for relief of
                                                                 tensions."
                

What the Judge did on consideration of that Report demonstrates positively that he did not think that it revealed any such mental incompetence as to (1) vitiate Petitioner's earlier plea of guilty or (2) require a further hearing to determine the fact. For the Judge, accepting the recommendation, then entered a three-year sentence as § 4208 permits.

In assaying the actions of the District Judge, it is no longer decisive whether this was a misuse of § 4208. Without a doubt it was if the Judge was...