United States Court of Appeals
For the First Circuit
No. 00-1258
UNITED STATES OF AMERICA,
Appellee,
v.
OCTAVIANO GIRON-REYES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Circuit Judge.
Terrance J. McCarthy, by Appointment of the Court, for
appellant.
Terrence P. Donnelly, Assistant U.S. Attorney, with whom
Margaret E. Curran, United States Attorney, was on brief for
appellee.
December 12, 2000
COFFIN, Senior Circuit Judge. Defendant-appellant
Octaviano Giron-Reyes appeals from a conviction upon a plea of
guilty to illegally re-entering the United States after
deportation. The sole issue addressed in this appeal is whether
a competency hearing should have been held in accordance with 18
U.S.C. § 4241(e) before a plea was taken. Because the express
language of, and policy behind, that statutory provision require
the court to hold a hearing and to make a finding of competency,
we vacate the conviction and remand for a determination of
appellant's competency to plead guilty.
Background
The underlying facts are not in dispute. Appellant's
appointed trial counsel raised the issue of his client's
competency in April 1999 when he filed a motion for funds for a
psychiatric examination. The court dismissed that motion as
moot when it ordered appellant, who was detained pending trial,
examined at a Bureau of Prisons facility. For two weeks in May
1999, appellant was evaluated at the Federal Correctional
Institution (FCI) in Petersburg, Virginia, where he was
determined to be incompetent. The Petersburg forensic report
stated: "Mr. Giron-Reyes is suffering from a mental disease or
defect that renders him unable to understand the nature and
consequences of the proceedings against him and unable to assist
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properly in his defense. With extensive treatment, it is
possible that Mr. Reyes could be restored to competency."
After a hearing on June 18, 1999, at which no evidence
was presented because the government did not dispute the
Petersburg report, the court found appellant incompetent and
ordered him hospitalized for treatment pursuant to 18 U.S.C. §
4241(d), which permits custodial treatment "for such a
reasonable period of time, not to exceed four months, as is
necessary to determine whether there is a substantial
probability that in the foreseeable future he will attain the
capacity to permit the trial to proceed." 18 U.S.C. §
4241(d)(1). Appellant was thereafter sent for treatment to the
FCI in Butner, North Carolina, where he underwent testing and
observation from July 7 through September 29. On October 12,
1999, the warden of FCI Butner certified appellant as competent,
diagnosing him as a malingerer.
Two weeks later, on October 26, 1999, the court held
a status conference in chambers. The case was calendared for
trial without objection of counsel and without a motion for a
hearing. Another fortnight hence, appellant pleaded guilty
pursuant to a written plea agreement. At the Rule 11 colloquy,
the court found appellant "fully capable and competent" to enter
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an informed plea. Appellant was sentenced to seventy months'
imprisonment and took this appeal.
Because no motion for a second competency hearing was
filed and no objection was made to scheduling the case for jury
selection, our review is for plain error. See Fed. R. Crim. P.
52(b). Appellant claims that the district court plainly erred
in failing to hold a second competency hearing even absent a
request. Under the circumstances of this case, we agree.1
Discussion
The test for determining competency to plead guilty is
the same as the test for determining competency to stand trial:
a defendant must be able to understand the proceedings against
him and have sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding. See
Godinez v. Moran, 509 U.S. 389, 398 (1993); see also Dusky v.
United States, 362 U.S. 402, 402 (1960). The conviction of an
incompetent defendant violates due process. See Pate v.
Robinson, 383 U.S. 375, 385 (1966). Section 4241 prescribes the
procedure by which courts are to determine a criminal
defendant's competency. Although non-compliance with the
1 We reach neither of appellant's two alternative
arguments: that his trial counsel was ineffective for failing to
request a hearing, and that the court plainly erred in failing
to authorize funds to retain a defense expert to examine
defendant's competency.
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procedure set out in the statute does not necessarily violate
due process, on this record we believe appellant's rights were
not adequately protected.
We begin by setting forth the complete statutory
framework, recognizing that the district court fully and
sensitively complied with the section involving the exercise of
discretion. Subsection (a) of § 4241 imposes a duty on district
courts to order a hearing sua sponte in order to make an initial
determination of competency "if there is reasonable cause to
believe that the defendant may presently be suffering from a
mental disease or defect rendering him mentally incompetent . .
. ." 18 U.S.C. § 4241(a); see also Hernandez-Hernandez v.
United States, 904 F.2d 758, 760 (1st Cir. 1990) ("A court is
required to hold a competency hearing sua sponte whenever there
is 'reasonable cause . . . .'"). We have held that there is no
reasonable cause to hold an initial competency hearing where
"all the information from the [examining] psychiatrist, the
defense counsel and the judge himself [from a plea colloquy]
were [sic] in agreement." United States v. Lebron, 76 F.3d 29,
33 (1st Cir. 1996); see also United States v. Pryor, 960 F.2d 1,
2 (1st Cir. 1992) (affirming conviction without competency
hearing where "the court had seen defendant vigorously, and
rationally, participating in his defense").
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If the court finds reasonable cause, and, after the
requisite hearing, determines by a preponderance of the evidence
that defendant is in fact incompetent, then the defendant must
be hospitalized for treatment in a suitable facility for up to
four months or until such time as defendant attains the capacity
to permit the trial to proceed. See 18 U.S.C. § 4241(d)(1).
Once the director of the facility in which the defendant is
hospitalized certifies that the defendant "is able to understand
the nature and consequences of the proceedings against him and
to assist in his defense," then the court "shall hold a hearing"
to once again evaluate the defendant's competency. 18 U.S.C. §
4241(e).
It is that second hearing, based on a report of
competence following an initial finding of incompetence, that is
at issue in this case. For several reasons, we believe that
subsection (e) required the district court to conduct such a
hearing, even absent a motion from appellant, and that its
failure to do so was plain error.
First, unlike subsection (a), which requires a hearing
only if there is "reasonable cause" to doubt the defendant's
competency, the text of subsection (e) contains no contingency,
unequivocally mandating a hearing by using the term "shall"
without qualification. The language could not be clearer.
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Second, the need for a hearing on competency is greater
at the later stage of proceedings governed by subsection (e).
Initial competency hearings under subsection (a) are not
mandated absent reasonable cause because the evidence of
competency may be so overwhelming as to render any such hearing
a superfluous formality. Subsection (e) hearings, by contrast,
always occur after an initial finding of incompetence and a
subsequent report, often less than four months later, that the
defendant has become competent. Subsection (e) hearings thus
compel courts to reconcile inconsistent reports. Subjecting the
differing views of the experts to the rigors of courtroom
scrutiny places the court in a better position to assess the
credibility of witnesses and the rationales of their seemingly
opposing opinions.
Third, the due process concerns undergirding the
subsection (e) procedure support a mandatory, rather than a
precatory, hearing. Defendants who are not competent cannot
waive their constitutional rights. See Godinez, 509 U.S. at
400-01. Although a psychiatric report attesting to a
defendant's competency following treatment may be evidence of
his condition, its conclusion will be at odds with an expert
judgment perhaps made only several months earlier. Imposing the
obligation to determine competency on the court after a full
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hearing ensures a complete and objective assessment. Even where
a defendant is ably represented, the acquiescence of counsel is
no substitute for judicial consideration after a hearing.2
The intent that a reported change in competency be
fully explored to meet due process concerns is evidenced,
moreover, by the explicit incorporation of § 4247(d) into
subsection (e).3 That provision guarantees that the defendant
"shall be afforded an opportunity to testify, to present
evidence, to subpoena witnesses on his behalf, and to confront
and cross-examine witnesses who appear at the hearing." 18
U.S.C. § 4247(d). To construe this procedure as discretionary
would be to negate protections Congress enacted to give
substance to a defendant's right to due process.
That the hearing is mandatory is also implicit in the
related requirement that the court make a specific finding by a
preponderance of the evidence "that the defendant has recovered
to such an extent that he is able to understand the nature and
consequences of the proceedings against him and to assist
2 Because there was no waiver evident from the record
here, we do not reach the question whether an affirmative waiver
of a subsection (e) hearing would satisfy the dictates of the
statute.
3 "The court shall hold a hearing, conducted pursuant to
the provisions of section 4247(d), to determine the competency
of the defendant." 18 U.S.C. § 4241(e).
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properly in his defense." 18 U.S.C. § 4241(e). We think this
provision can only be interpreted as anticipating a focused
inquiry into the nature of the defendant's original difficulties
and the basis upon which the experts concluded that there had
been a change. We do not see how this thorough assessment of
the defendant's assertedly changed condition can be accomplished
without the evidentiary hearing called for by the statute.
Consequently, we conclude that the statute cannot sensibly be
interpreted to allow the court discretionary authority to forego
the proceeding.
Ours is not the first circuit to consider the need for
§ 4241(e) hearings; the three other circuits that have
published decisions in analogous cases all hold that trial
proceedings may not resume after a finding of incompetence until
such a hearing has been held. See United States v. Haywood, 155
F.3d 674, 680-81 (3d Cir. 1998) (remanding for retrospective
determination of competency after jury conviction where no
request for a § 4241(e) hearing); United States v. Hutson, 821
F.2d 1015, 1018 (5th Cir. 1987) (same where "[t]he district
court erred by proceeding to trial without making a second
competency determination"); see also United States v. Nevarez-
Castro, 120 F.3d 190, 191 (9th Cir. 1997) (vacating conviction
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after jury trial where no § 4241(e) hearing held despite
motion).4
In Haywood, the Third Circuit remanded a jury
conviction for a retrospective competency determination, holding
that under subsection (e) "the court ha[d] a duty to hold a
hearing sua sponte," id. at 680, and concluding that "the
integrity of the court’s judgment was seriously impaired by the
absence of an independent judicial inquiry into [defendant]’s
competency." Id. at 681. Subsection (e), the court held,
"expressly assumes the existence of an expert opinion that the
defendant is competent and nevertheless mandates in no uncertain
terms that a hearing be held and a finding made." Id. at 681.
Even where it was the same psychiatrist who had initially opined
that defendant was incompetent and later changed his mind, the
Third Circuit held the subsection (e) hearing was required. See
id. ("A trial court might conceivably be justified in proceeding
to trial without a hearing when error is confessed and the
opinion giving 'reasonable cause' is withdrawn by the
psychiatrist for credibly explained reasons."). Because
different experts were in conflict here, we have even greater
reason to require another competency hearing.
4 The only contrary authority is an unpublished Second
Circuit opinion.
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Although the Third Circuit did not explicitly conduct
a plain error analysis, the Fifth Circuit did in Hutson, holding
that defendant's "substantive rights were affected only if she
was actually incompetent at the time of trial" and remanding to
see whether "[h]er procedural rights may be vindicated by a
meaningful retrospective hearing." 821 F.2d at 1018. The Ninth
Circuit went a step further, albeit not on plain error review,
vacating a conviction after a jury trial even though neither
party on appeal referred to § 4241(e). See Nevarez-Castro, 120
F.3d at 191-92.
Our careful study of the Rule 11 transcript reveals no
clear indication that the court made a considered determination
of competency or that the defendant waived his right to a
hearing on that issue. During the colloquy, appellant affirmed
that he understood that the doctors from FCI Butner had found
him competent. The court, however, did not query whether
appellant agreed with the Butner report or wished to contest it.
Although the court stated at the conclusion of the colloquy that
"the Defendant is fully capable and competent to enter[] an
informed plea," it did not expressly find that appellant had
"recovered to such an extent that he is able to understand the
nature and consequences of the proceedings against him and to
assist properly in his defense." 18 U.S.C. § 4241(e).
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Moreover, portions of the plea colloquy suggest that appellant
may not have been competent to waive trial and his associated
constitutional rights.5
The court asked appellant to consult with counsel
several times because he did not appear to understand critical
parts of the proceeding. For example, appellant initially
misunderstood the terms of the plea agreement, believing that it
provided for a three-year suspended sentence and a year
probation. He denied speaking with his attorney about the
sentencing guidelines, even though counsel stated that he had
explained them many times. After further elucidating the terms
of the plea agreement, the court was forced to recess when
appellant responded: "When I signed [the plea agreement], I was
not told about the things that I’m being told now."
Even after the recess, appellant exhibited what could
be taken as signs of incompetence. When asked to explain what
a jury does, he said: "A jury is to plead guilty voluntarily
leading to what one has done." When asked whether he agreed
with the offense conduct articulated by the prosecutor,
appellant responded: "That was what happened if he says so . .
5 Appellant never moved pursuant to Fed. R. Crim. P.
32(e) to withdraw his plea.
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. . Well, if they say it, I accept it, because I don’t remember
what happened on those days when I committed that crime."
Given these lapses evident from the record, we cannot
rule out the possibility that appellant was incompetent when he
pleaded guilty. In this circumstance, where the colloquy itself
suggests appellant may not have been competent, the rationale
for a hearing in accordance with subsection (e) is particularly
compelling. Because we are not confident that appellant's
substantive rights were unaffected, see Fed. R. Crim. P. 52(b);
Hutson, 821 F.2d at 1018, we vacate the conviction and remand
for a determination of appellant's competency to enter a guilty
plea. Under the circumstances of this case -- a conviction on
a plea of guilty in which the defendant's competence was not
apparent from the colloquy -- we think vacatur is the
appropriate remedy, but in other circumstances, such as a
conviction after a lengthy jury trial, we might well follow the
lead of our sister circuits. See Haywood, 155 F.3d at 680-81;
Hutson, 821 F.2d at 1018.
This disposition leaves the district court a choice in
how to proceed: it may, after the hearing, conduct a
retrospective determination of appellant's competency at the
time of his plea, and if found to have been competent, reinstate
the conviction; or, if no meaningful retrospective hearing can
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be held, it may assess his competency at the time of the
subsection (e) hearing, and if defendant is found competent,
permit him to replead. Should appellant be found competent
then, he would not be bound by the earlier plea agreement.
The conviction is vacated and the case remanded for
proceedings consistent with this opinion.
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United States v. Giron-Reyes
Court: Court of Appeals for the First Circuit
Date filed: 2000-12-12
Citations: 234 F.3d 78
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