09-2558-cr
United States v. Harper
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE
32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 5th day of May, two thousand eleven.
PRESENT:
AMALYA L. KEARSE,
DENNY CHIN,
Circuit Judges,
JED S. RAKOFF,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
-v.- 09-2558-cr
KENNETH HARPER,
Defendant,
GLENN HARPER,
Defendant-Appellant.
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FOR DEFENDANT-APPELLANT: BRIAN SHEPPARD, Law Office of Brian
Sheppard, New Hyde Park, New York,
and David M. Samel, Law Office of
David M. Samel, New York, New York.
FOR APPELLEE: STEPHAN J. BACZYNSKI, Assistant
United States Attorney, of counsel,
for William J. Hochul, Jr., United
States Attorney for the Western
District of New York, Buffalo, New
York.
*
The Honorable Jed S. Rakoff, United States District
Judge for the Southern District of New York, sitting by
designation.
Appeal from the United States District Court for the
Western District of New York (Larimer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment is AFFIRMED.
Defendant-appellant Glenn Harper appeals from a
judgment of the district court entered, after a jury trial, on
June 10, 2009, convicting him of one count of felony possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1), and
sentencing him principally to 327 months' imprisonment.
Harper challenges his conviction primarily on five
grounds. First, he argues that the district court abused its
discretion in admitting evidence that was the product of an
allegedly defective search warrant. Second, he asserts that the
district court erroneously admitted purportedly irrelevant and
unfairly prejudicial evidence about the provenance of the
firearm. Third, Harper contends that the court violated his due
process rights when it treated his absence at a competency
hearing as a knowing and voluntary waiver of his right to be
present. Fourth, he challenges the substance of the court's
determination that he was competent to stand trial. Finally,
Harper argues that he was denied due process when he was required
to wear restraints at trial.
We consider these arguments in turn and assume the
parties' familiarity with the facts and procedural history of the
case as well as the issues presented for review.
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(1) The Warrant
After de novo review and consideration of the totality
of the circumstances, see Illinois v. Gates, 462 U.S. 213, 238
(1983); United States v. Irving, 452 F.3d 110, 125 (2d Cir.
2006), we conclude that the warrant application established
probable cause to believe that illegal firearms would be found in
Harper's home, for substantially the reasons articulated by the
district court in its May 30, 2006, decision and order adopting
the March 10, 2006, report and recommendation of the magistrate
judge recommending denial of Harper's motion to suppress. The
details in the warrant application were sufficient to facilitate
the issuing judge's independent determination that the
confidential informant who alerted police to the firearms in
Harper's home was reliable. See United States v. Gagnon, 373
F.3d 230, 235-36 (2d Cir. 2004). We also agree with the district
court's conclusion that, in any event, the officers executing the
warrant were entitled to rely in good faith on its validity. See
United States v. Leon, 468 U.S. 897, 923 (1984).
Finally, the no-knock provision included in the warrant
was justified, as investigating officers reasonably believed that
firearms were present in Harper's home and that announcing their
presence therefore would be dangerous. See United States v.
Ramirez, 523 U.S. 65, 71 (1998).
(2) Evidence that the Firearm was Stolen
Harper made gratuitous inquiries to officers during a
post-arrest interview regarding whether he would face burglary
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and stolen property charges for the items found in his bedroom.
The fact that he asked such questions was relevant under Federal
Rule of Evidence 401. Harper's possession of the shotgun charged
in the indictment was the primary issue at trial, and the
questions he asked betrayed his knowledge of the gun's illicit
provenance. Linden Smalt testified at trial that the shotgun
had, in fact, been stolen in a burglary of Smalt's house days
before Harper's arrest.
The district court considered the prejudicial potential
of this evidence in its balancing analysis under Federal Rule of
Evidence 403. There is no basis to conclude that the court's
determination under Rule 403 was irrational or arbitrary. See
United States v. Bicaksiz, 194 F.3d 390, 396 (2d Cir. 1999).
(3) Harper's Absence from the Hearing
Due process protected Harper's right to be present at
the pretrial examination of the Federal Medical Center ("FMC")
forensic psychologist who evaluated his competency to stand trial
only "'to the extent that a fair and just hearing would be
thwarted by [his] absence.'" Polizzi v. United States, 926 F.2d
1311, 1318 (2d Cir. 1991) (quoting Kentucky v. Stincer, 482 U.S.
730, 745 (1987)); see also United States v. Purnett, 910 F.2d 51,
55 (2d Cir. 1990) (holding that a competency hearing is a
critical event in a prosecution); cf. Fed. R. Crim. P. 43(a)
(codifying the right to be present "at every trial stage"). As
defense counsel thoroughly cross-examined the psychologist
regarding her evaluation of Harper and the report of her
findings, we are satisfied that the hearing was fair, and any
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error in treating Harper's absence as a waiver was harmless. See
United States v. Magassouba, 544 F.3d 387, 414-15 (2d Cir. 2008).
In any event, we find no clear error in the district
court's conclusion that Harper was competent to waive attendance
at the hearing and that he did so knowingly and voluntarily. See
United States v. Nichols, 56 F.3d 403, 413 (2d Cir. 1995).
Harper does not argue that his absence was not actually knowing
and voluntary or that he was actually incompetent at the time,
i.e., he could not (1) consult with counsel "'with a reasonable
degree of rational understanding,'" or (2) understand the
proceedings against him. See id. at 410 (quoting Dusky v. United
States, 362 U.S. 402, 402 (1960) (per curiam)).
Even if the record could be plausibly read to the
contrary, we give deference to the district court's determination
that a defendant is competent, see United States v. Morrison, 153
F.3d 34, 46 (2d Cir. 1998), as well as its "differentiation
between a defendant who is incompetent to stand trial and a
defendant who simply wants a court or a jury to believe that is
the case," United States v. Arenburg, 605 F.3d 164, 170-71 (2d
Cir. 2010) (per curiam). See generally Polizzi, 926 F.2d at 1319
(holding that to the extent that a knowing and voluntary waiver
"rested in part on a credibility appraisal, even greater
deference is accorded the trial court's findings"). The record
is clear that Judge Larimer "did not harbor serious doubts about
[Harper's] competency at the time of waiver" and had ordered the
competency evaluation only "as a precautionary measure," upon
defense counsel's request and with the government's consent,
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Nichols, 56 F.3d at 414. His acceptance of the waiver was
supported by many courtroom interactions with and ex parte
letters from Harper, a report detailing the marshals' efforts to
bring Harper to court on the day of his competency hearing,2 and
the FMC report summarizing clinical and correctional staffs'
observations of Harper's "unremarkable" behavior during his
month-long, residential competency evaluation (J.A. 151).
On this record, we reject Harper's contention that
Judge Larimer harbored a "reasonable cause" to doubt Harper's
competence when he accepted Harper's waiver without the benefit
of a hearing. See 18 U.S.C. § 4241(a). That the court went
ahead with the hearing anyway -- evidently believing that it was
required by 18 U.S.C. § 4247(d) to give the defense an
opportunity to challenge the FMC report -- did not invalidate
that finding. See Nichols, 56 F.3d at 414-15; cf. United States
v. Oliver, 626 F.2d 254, 258-59 (2d Cir. 1980) (upholding a
determination of competence based entirely on the court's
observations).
(4) Harper's Competency to Stand Trial
The district court did not abuse its discretion in
refusing to grant Harper's request for a second, "independent
forensic exam" of his competency after determining by a
preponderance of the evidence that Harper was competent to stand
trial. See Nichols, 56 F.3d at 410.
2
Harper refused to leave his cell that day, despite
being advised repeatedly of the nature of the hearing by both the
marshals and his lawyer and being informed that the judge
requested his presence. See Nichols, 56 F.3d at 416-17; cf.
United States v. Tureseo, 566 F.3d 77, 83-84 (2d Cir. 2009).
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We note that Harper did not object at the outset to FMC
as the site of his evaluation or to FMC's affiliation with the
government. See United States v. Zhou, 428 F.3d 361, 380 (2d
Cir. 2005) (holding that a district court evaluating competency
may reasonably "rely on the expertise of a forensic psychologist
associated with the [Bureau of Prisons]," who is "presumably
familiar with patients similarly situated"). Harper had no right
to further testing once the district court was satisfied of his
competency, and the court had no duty to seek out opinions
contrary to FMC's. Cf. Ake v. Oklahoma, 470 U.S. 68, 83 (1985)
(finding no right to a competency examination by a psychiatrist
of one's choosing);2 United States v. Schmidt, 105 F.3d 82, 84
(2d Cir. 1997) (affirming a competency determination where the
"proceedings conducted in the district court accorded [defendant]
all the legal rights to which she was entitled").
We are not persuaded that any incompleteness in the
court's knowledge of Harper's personal history undermined its
determination that he was competent. Regardless of any
informational deficit, FMC staff observed Harper almost
continuously for an entire month and reported that his behavior
was "unremarkable," confirming Judge Larimer's suspicion that the
belligerent behavior at the heart of the competency inquiry was
within Harper's control and calculated to delay trial, not the
product of a mental defect that rendered him unable to consult
with his lawyer or understand the proceedings against him.
2
Harper's competency to stand trial, not his "sanity at
the time of the offense," was at issue, and therefore his
reliance on Ake is misplaced. See Ake, 470 U.S. at 72, 74, 83.
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(5) Use of Restraints at Trial
Finally, the district court did not abuse its
discretion in requiring Harper to wear physical restraints during
trial. See Hameed v. Mann, 57 F.3d 217, 222 (2d Cir. 1995). The
court considered, but did not defer to, the recommendation of the
marshals' service that Harper be shackled, and its decision was
informed by experience with, inter alia, Harper's outbursts in
court, his destruction of a steel partition in his holding cell
after an adverse evidentiary ruling, and his physical assault of
his prior lawyer. Further, the court ordered measures to
minimize the chances that Harper's shackling would be visible to
the jury, and there is no evidence that the jury ever knew of the
restraints. Even assuming arguendo that it was error to retrain
Harper, we conclude that the error was harmless in light of the
measures taken and "in light of "the strength of the case." Id.;
see also Davidson v. Riley, 44 F.3d 1118, 1124 (2d Cir. 1995).
We have considered Harper's remaining arguments and
conclude that they are without merit. Accordingly, the judgment
of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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