F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 4, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 05-2219
G ILBER T H ER RER A,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D .C . NO. CR-04-1348-M CA)
Robert J. Gorence, Gorence & Oliveros, P.C., Albuquerque, New M exico, for
Defendant-Appellant.
David N. W illiams, Assistant United States Attorney (David C. Iglesias, United
States A ttorney, and Laura Fashing, Assistant United States A ttorney, with him
on the brief), Office of the United States Attorney, Albuquerque, New M exico,
for Plaintiff-Appellee.
Before H E N RY, SE YM OU R, and TYM KOVICH, Circuit Judges.
T YM K O VIC H, Circuit Judge.
Gilbert Herrera was convicted of conspiring to traffic cocaine after a four-
day jury trial. Four months after his conviction, Herrera filed a motion for a new
trial claiming newly discovered evidence would show that he had not been
competent during trial. The motion contended that the cognitive effects of acute
diabetes combined with a severe staph infection which was diagnosed only after
trial impaired Herrera’s ability to interact with counsel at trial. The district court
denied the motion without the benefit of an evidentiary hearing on competency,
concluding that no bona fide doubt existed that Herrera had in fact been
competent at trial.
On appeal, we must decide whether the district court erred in denying the
motion for new trial w ithout first conducting an evidentiary hearing. W e hold
that the district court did not abuse its discretion, and therefore AFFIRM .
I. Background
After nearly a four-year investigation conducted by the Federal Bureau of
Investigation, the government charged Gilbert Herrera, along with his brother-in-
law , Louis Chavez, with conspiracy to distribute 500 grams or more of cocaine in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. Herrera and Chavez were
tried together before a jury beginning on November 9, 2004. After several
witnesses testified against the two, including a Herrera family friend, a jury found
them guilty of the charges on November 15, 2004.
Four months later Herrera filed a motion for a new trial pursuant to Rule 33
of the Federal Rules of Criminal Procedure on the basis of newly discovered
evidence that he was not competent to stand trial. Specifically, Herrera claimed
2
he was diagnosed with adult diabetes on November 16, 2004, the day after his
trial ended. Herrera contended that the previously undiagnosed and untreated
diabetes coupled with a staph infection afflicting his lower body and extremities
during trial rendered him unable to understand the legal proceedings against him
or to ably assist his attorney.
A summary of medical records from his detention facility indicates that
Herrera suffered from and was treated for a highly contagious and difficult to
treat bacterial infection in the months leading up to trial. On September 7, 2004,
Herrera complained of a foot wound, which was treated with an anti-fungal cream
and antibiotic. Then on October 14, 2004, Herrera complained of foot pain and
requested inserts for his shoes. M edical personnel again gave him an anti-fungal
cream on November 3, 2004 for a bad rash on his legs. Nothing in the record
indicates Herrera received any medications that could have impaired his cognitive
abilities.
On the day before his trial began, Herrera made a sick call complaining, “I
am bleeding all over the place. I need to be seen ASA P. I will be in trial
tomorrow on 11/15/04. And I will advise my law yer Robert Gorence about this
problem. I am in Bad Pain. I need to be seen when I get back.” I Aplt. App. at
39. On November 16, 2004, the day after the trial concluded, medical personnel
noted Herrera’s complaint of “red spots on arms and buttocks” and observed that
3
the skin on his left forearm and buttocks was “red, swollen and tender.” Id. H e
was administered an antibiotic for the skin infection.
At the November 16 visit, a physician for the detention facility formally
diagnosed Herrera with diabetes and prescribed a diabetic medication and diet to
control his blood-glucose levels. Before that date, the summary indicates that
medical personnel had begun to administer tests to determine Herrera’s blood-
glucose levels, and diabetes was listed as a potential diagnosis as early as August
18, 2004. The tests indicated that Herrera’s blood sugar level in the four months
preceding trial averaged 234, where the normal range is 70-109. Before his
November 16 diagnosis, Herrera received no treatment for his diabetes.
In an affidavit supporting his Rule 33 motion, Herrera claimed he felt
“faint, nauseous, and for the most part delirious” at trial. Id. at 43. He argues
that his undiagnosed diabetes exacerbated the problems. For example, he claims
he ate many candy bars leading up to his trial because of stress.
In addition, Herrera affirmed,
[T]he sores on my body were so painful that I had trouble
concentrating on issues during the trial to any degree whatsoever.
. . . As much as I tried to overcome my medical problems during
trial, I did not have the ability to understand the evidence
presented at trial, nor did I have the ability to understand the
legal issues presented at trial. . . . I now understand that I was
not capable of assisting my attorney in my defense during the
trial.
Id.
4
Herrera’s defense counsel also included an affidavit in support of the Rule
33 motion. Counsel stated that Herrera reported various complaints about his
health. Counsel further observed that Herrera seemed “lackadaisical and
different” at the trial, and that he had a “very difficult time communicating with
M r. Herrera during the trial because of his listlessness and inability to
concentrate.” Id. at 55–56. In hindsight, counsel believed that Herrera was not
capable of assisting him effectively because of the cognitive deficits associated
with Herrera’s medical condition during trial.
Herrera also provided the curriculum vitae of David H. Goldstein, M .D., a
physician and medical consultant. Although Dr. Goldstein did not personally
examine Herrera, counsel indicated that the doctor could opine generally to the
cognitive manifestations of the onset of acute diabetes, magnified by a staph
infection. According to Herrera’s motion papers, the combination of medical
conditions could cause “cognitive deficits related to a lack of concentration and
diminished mental functioning.” Id. at 53.
The government opposed the motion claiming that Herrera exhibited no
irrational or bizarre demeanor or any signs of physical illness during the trial.
The government noted that Herrera and his counsel failed to communicate his
medical condition to the district court. Furthermore, the government argued that
the district court had no jurisdiction over the motion since Herrera’s complaint
did not involve newly discovered evidence.
5
The district court denied Herrera’s motion for a new trial without holding
an evidentiary hearing. Herrera was sentenced to prison for 120 months followed
by a supervised release term of eight years.
II. Analysis
Herrera’s central claim is that the district court erred in denying his motion
for a new trial on the basis of newly discovered evidence without first conducting
an evidentiary hearing. Herrera contends that his post-trial diagnosis of acute
adult diabetes constitutes newly discovered evidence of his incompetence to stand
trial. He also claims the district court should have granted a mistrial after it
admitted hearsay evidence in violation of his Sixth A mendment rights.
A. M otion to G rant a New Trial
Rule 33 authorizes trial courts to grant new trials “if the interest of justice
so requires.” Fed. R. Crim. P. 33(a). A motion for a new trial is not regarded
with favor and is only issued with great caution. United States v. Trujillo, 136
F.3d 1388, 1394 (10th Cir. 1998). W e ordinarily review the denial of a new trial
for abuse of discretion. United States v. Quintanilla, 193 F.3d 1139, 1146 (10th
Cir. 1999). “A decision is an abuse of discretion only if it is arbitrary, capricious,
whimsical, or manifestly unreasonable.” United States v. Combs, 267 F.3d 1167,
1176 (10th Cir. 2001) (internal quotes omitted).
M otions for new trial filed more than seven days after a verdict or a finding
of guilt must be grounded on newly discovered evidence. Fed. R. Crim. P. 33(b).
6
Since Herrera filed this motion four months after trial, newly discovered evidence
is the only ground available to Herrera for a new trial. For Herrera to prevail on a
motion for a new trial based on newly discovered evidence, he must show that:
(1) the evidence was discovered after trial; (2) the failure to learn
of the evidence was not caused by his own lack of diligence; (3)
the new evidence is not merely impeaching; (4) the new evidence
is material to the principal issues involved; and (5) the new
evidence is of such a nature that in a new trial it would probably
produce an acquittal.
United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997) (internal quotes
omitted).
In this case, Herrera’s newly discovered evidence does not bear on the
probability of his acquittal, but rather on his competence to stand trial. “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 (1975). Thus, “where the newly
discovered evidence pertains not to the defendant’s guilt, but to his competency to
stand trial,” the relevant inquiry is whether the new evidence indicates that the
defendant did not have “‘sufficient . . . [present] ability to consult with his lawyer
with a reasonable degree of rational understanding’ and ‘rational as well as
factual understanding of the proceedings against him.’” United States v.
M cCarthy, 54 F.3d 51, 55 (2d. Cir. 1995) (quoting Dusky v. United States, 362
7
U.S. 402, 402 (1960)); see also M aynard v. Boone, 468 F.3d 665, 676 (10th Cir.
2006).
The district court denied the motion for two reasons: (1) the evidence was
not newly discovered; and (2) Herrera did not raise a bona fide doubt he was
incompetent during trial. W e agree with both conclusions.
1. The Evidence Was Not Newly Discovered.
The district court denied the Rule 33 motion on the ground that Herrera
failed to show that the evidence in question was “newly discovered” after trial.
W hile H errera’s specific diagnosis of diabetes was made a day or two after trial,
the district court concluded that the symptoms or physical manifestations of the
illness, rather than its formal diagnosis by a physician, formed the basis for his
competency claim. The district court held that such symptoms or physical
manifestations do not qualify as “newly discovered evidence” for purposes of
Rule 33.
According to the record, Herrera was aware of the symptoms of his medical
condition prior to trial. The district court found that Herrera had consulted a
doctor before trial and had advised his trial counsel of various health problems
both before and during trial. Indeed, doctors suspected Herrera suffered from
diabetes as early as August of 2004, well before trial. W hat Herrera did not know
was the formal diagnosis of his diabetes. And, in at least one post-trial medical
8
opinion, a doctor suggested to trial counsel that the untreated diabetes coupled
with his staph infection could have some effect on a person’s cognitive abilities.
Nonetheless, the district court was satisfied that Herrera (while not
knowing the precise diagnosis) was well-aware during trial that he was
experiencing certain physical symptoms. Those symptoms w ere communicated to
his lawyer, who concluded they were not serious enough to advise the court. The
district court, moreover, saw nothing in Herrera’s demeanor and behavior at trial
to suggest that he could not consult with his trial counsel or understand the
proceedings against him. In these circumstances, the diagnosis of his medical
condition does not constitute new evidence justifying a new trial.
This is not to say that a post-trial diagnosis of a serious medical condition
cannot satisfy Rule 33. Several cases suggest that diagnoses made available only
after trial could in some circumstances form a basis for a new trial, even where
the symptoms were known or knowable during trial. See, e.g., Nagell v. United
States, 354 F.2d 441 (5th Cir. 1966) (holding that a previously unknown brain
injury the defendant suffered more than ten years prior is newly discovered
evidence of his competence even though defendant knew about the injury); United
States v. M assa, 804 F.2d 1020, 1022–23 (8th Cir. 1986) (disagreeing with a
district court holding that a post-trial psychiatric assessment could not be newly
discovered evidence because the factual circumstances supporting the evaluation
were known to defendant at trial); United States v. Escobar, 68 F.App’x. 836 (9th
9
Cir. 2003) (finding that a post-trial re-evaluation of defendant’s intelligence could
be newly discovered evidence); Smith v. United States, 1993 U.S. App. LEXIS
14520 (7th Cir. June 14, 1993) (deciding that an after trial diagnosis of “possible
paranoid schizophrenia” could be newly discovered evidence, even though motion
was rejected on other grounds).
These cases, of course, involve serious mental conditions and not physical
infirmities that might affect the defendant’s ability to assist counsel. Suffice it to
say that the evidence must firmly point to a serious mental or physical condition
that affected the competency of the defendant at trial to assist in his defense.
Here, given (1) Herrera’s knowledge of his physical symptoms prior to or
during trial, and (2) the lack of any suggestion at trial from counsel or the
defendant that he could not understand the proceedings, the district court
correctly concluded that the post-trial diagnosis that Herrera suffered from
diabetes and a staph infection did not qualify as newly discovered evidence under
Rule 33.
2. Herrera Did Not Raise a Bona Fide Doubt of Competency at Trial.
Even if the evidence were newly discovered, the district court also found
that the totality of the circumstances “do[es] not raise a bona fide doubt or
support a reasonable inference that [Herrera] was not competent to stand trial” in
November 2004. I Aplt. App. at 82. Herrera contends that the district court erred
10
in reaching this conclusion without the benefit of an evidentiary hearing. W e
disagree.
A claim complaining of “a trial court’s alleged failure to hold a competency
hearing” is a procedural due process claim. M cGregor v. Gibson, 248 F.3d 946,
952 (10th Cir. 2001). A violation of a procedural competency claim occurs when
a “reasonable judge should have had a bona fide doubt as to [the defendant’s]
competence at the time of trial” and no further competency inquiry was afforded
the defendant. Id. at 954; see also Pate v. Robinson, 383 U.S. 375, 385 (1966). 1
Accordingly, Herrera would have been entitled to an evidentiary hearing on his
motion for a new trial if his motion papers raised a “bona fide doubt” about his
competence at the time of trial. The district court concluded that Herrera failed to
show a contemporaneous inability to communicate with counsel at trial.
The well-settled legal standard for assessing competency is that the
defendant must have “sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding [and have] a rational as well as
factual understanding of the proceedings against him.” Dusky, 362 U.S. at 402. In
1
Herrera also raises a substantive due process claim on appeal. “[A]
substantive competency claim is founded on the allegation that an individual was
tried and convicted while, in fact, incompetent.” M cGregor, 248 F.3d at 952.
Since we conclude no bona fide doubt exists that Herrera was not incompetent at
trial, he likewise fails to make a substantive due process claim. See Walker v.
Gibson, 228 F.3d 1217, 1230 (10th Cir. 2000) (W here a petitioner cannot show a
bona fide doubt as to his competency, “he cannot meet the more stringent
substantive due process competency standard.”).
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determining whether “bona fide doubt” of competence exists, courts may look to
the defendant’s “irrational behavior,” “demeanor at trial,” “any prior medical
opinion[,]” “evidence of mental illness[,]” and “any representations of defense
counsel[.]” M cGregor, 248 F.3d at 954–55. “W e examine the totality of the
circumstances . . . . The question is . . . whether the trial court ‘failed to give
proper weight to the information suggesting incompetence which came to light
during trial.’” Id. at 955 (quoting Drope, 420 U.S. at 179).
W ith these standards in mind, we turn to the district court’s determination
that Herrera failed to raise a “bona fide doubt” as to his competence at trial. The
district court first found the documents supporting his motion for a new trial were
not credible. For example, H errera’s affidavit claimed that he felt “faint,
nauseous, and . . . delirious” during the trial, but neither Herrera nor his counsel
alerted the court to any health concerns during trial nor were these conditions
reflected in the summary of his medical records. In fact, Herrera specifically
asserted his right to a speedy trial and did not seek a continuance of his trial
based on his medical condition. Herrera failed to offer any explanation as to why
he was unable to communicate these health complaints to his counsel or the court.
Furthermore, we find no fault with the district court’s assessment of
Herrera’s demeanor at trial. The district court did not notice anything unusual in
Herrera’s demeanor or behavior during trial, which Herrera concedes on appeal.
The district court observed no signs that Herrera was inattentive, bleeding, faint,
12
nauseous, delirious, lackadaisical, or otherwise in distress. On the other hand, the
court found Herrera appeared to communicate with his counsel and attend to the
proceedings in a normal manner during the entire trial. In addition, there was
nothing out of the ordinary or unusually strenuous in the proceeding of the trial.
The district court allowed breaks at regular intervals and Herrera enjoyed several
days off trial for a holiday and weekend.
Nor does the proffer of Dr. Goldstein w arrant a different conclusion. Dr.
Goldstein’s curriculum vitae indicates he is board-certified in pulmonary and
internal medicine, but nothing suggests he has medical expertise in diabetes or
mental health in general. M oreover, Dr. Goldstein never personally examined
Herrera, but intended to present testimony of general conclusions about possible
cognitive deficits associated with diabetes and a staph infection. The medical
personnel who actually did examine Herrera prior to trial made no note of any
mental infirmities or cognitive deficiencies in his medical records.
Finally, we consider trial counsel’s affidavit describing Herrera’s medical
conditions during trial and his post hoc determination that Herrera was unable to
assist counsel effectively during trial. Understandably, “defense counsel is often
in the best position to determine whether a defendant’s competency is
questionable.” M cGregor, 248 F.3d at 960. Nevertheless, “the concerns of
counsel alone are insufficient to establish doubt of a defendant’s competency.”
Id. at 959–60. W hile important evidence, those concerns must be w eighed against
13
the ability of the district court to assess the behavior of the defendant at trial.
W hen coupled with the fact that no doctor opined that Herrera was incompetent
before or even during trial, we see no clear error in the district court’s ruling.
Indeed, the behavior of Herrera was not significant enough for experienced trial
counsel to advise the court during trial proceedings of any inability to effectively
represent his client. Nor has counsel pointed to anything specific at trial that
Herrera did not understand or could not review , only that the confluence of events
raised concerns about Herrera’s condition. See Walker v. AG, 167 F.3d 1339,
1346–47 (10th Cir. 1999) (rejecting petitioner’s procedural incompetency claim,
in part because trial counsel never raised the issue of petitioner’s competency at
trial).
In sum, we do not find the district court “ignored evidence that, viewed
objectively, raised a bona fide doubt as to [defendant’s] competency.” Clayton v.
Gibson, 199 F.3d 1162, 1171 (10th Cir. 1999) (internal quote omitted). Even if
Herrera’s post-trial diagnosis with diabetes is properly “newly discovered
evidence” under Rule 33, it would not alter the district court’s calculation that no
bona fide doubt existed as to his competency. 2
2
For the same reasons, the district court did not err by failing to order a
competency hearing under 18 U.S.C. § 4241(a) (district court may order a
competency hearing if given “reasonable cause” to doubt defendant’s
competence).
14
Accordingly, the district court did not abuse its discretion in denying
Herrera’s motion for a new trial without the benefit of an evidentiary hearing on
competency.
B. M otion to G rant a M istrial
At trial, a government agent offered limited testimony of information he
obtained by listening to radio surveillance during a controlled narcotics buy. The
testimony placed Herrera at the scene of the buy. Herrera contends that the
district court erred by denying his motion to grant a mistrial after the court
allowed this hearsay testimony in violation of his Sixth Amendment right to
confront his accusers. This claim is the same argument made by a co-defendant
in United States v. Chavez, 05-2209.
In Chavez, we concluded that the admission of the evidence w as harmless
error since (1) substantial eyewitness evidence at trial disclosed that the
defendants, including Herrera, dealt drugs; (2) the FBI captured many of the
transactions on tape; (3) the testimony was of limited value to the case as a whole
in light of the eyewitness testimony; and (4) the trial court provided a curative
instruction immediately follow ing the hearsay testimony. For the same reasons,
we agree that any error was harmless as to Herrera.
Accordingly, we incorporate our holding in Chavez on this issue and affirm
the district court’s denial of the motion for mistrial.
15
III.Conclusion
For the foregoing reasons, we AFFIRM Herrera’s conviction and the denial
of his motion for a new trial.
16
United States v. Herrera
Court: Court of Appeals for the Tenth Circuit
Date filed: 2007-04-04
Citations: 481 F.3d 1266
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