United States Court of Appeals
For the First Circuit
No. 04-2398
UNITED STATES OF AMERICA,
Appellee,
v.
COREY D. WIGGIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Mark E. Howard, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief, for
appellee.
November 17, 2005
LYNCH, Circuit Judge. Corey D. Wiggin was convicted,
after a jury trial, of conspiracy to distribute cocaine. The
conspiracy involved at least twenty kilograms of cocaine per year
and continued for several years. Wiggin, twenty-six years old at
the time of sentencing, received the statutory minimum term of
imprisonment of ten years.
On appeal, Wiggin presents one challenge to his
conviction and one to his sentence. He first argues that the
district court, in denying his post-trial claim of incompetency to
stand trial, misapplied the legal standard by not properly
considering whether he had the ability to assist his counsel. The
main argument for incompetency was that Wiggin suffered mental
deficiencies from an accident which led him, against his self-
interest, to refuse to enter a plea agreement under which he might
have received only a five-year sentence. As to his sentence,
Wiggin urges that ambiguities in the jury instructions and verdict
slip could have misled the jury into believing the amount of
cocaine involved in the overall conspiracy and the amount
attributable to him had to be the same, and that therefore the jury
did not truly make a defendant-specific drug quantity finding. We
affirm Wiggin's conviction and sentence.
-2-
I.
A. The Trial and Sentence
On February 6, 2002, Wiggin and six others were charged
by indictment with conspiring to distribute five or more kilograms
of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846.1 The
government tendered plea agreements to Wiggin and some of the other
defendants, offering reduced sentences in exchange for cooperation.
Several of the defendants -- including Robert DeFelice, who had
sold Wiggin substantial quantities of cocaine, and Todd Burley, the
higher-level dealer who had sold to DeFelice –- accepted these
offers and agreed to testify. Wiggin, however, refused.
The government had offered as part of its proposal to
Wiggin to stipulate that the amount of cocaine involved in his case
was 500 grams; this stipulation would have permitted the court to
sentence Wiggin to as little as five years in prison. See 21
U.S.C. § 841(b)(1)(B) (statutory minimum of five years'
imprisonment for distribution of amounts from 500 grams up to, but
not including, five kilograms). Wiggin's attorney, who considered
the offer "very reasonable," communicated it to Wiggin and
recommended that he accept it. Wiggin refused, in part because he
believed DeFelice and Burley would not testify against him -- a
belief he maintained even after his attorney showed him proof that
1
A superseding indictment on April 30, 2003 re-charged the same
conspiracy offense against Wiggin, two others from the initial
indictment, and two additional defendants.
-3-
the men had reached plea agreements and had consented to testify.
Wiggin stated at the post-trial competency hearing (discussed
later) that DeFelice had told him that he "had nothing to worry
about" and that "he wasn't going to testify to anything against
me."
At trial, the government presented evidence that Wiggin
had dealt cocaine from 1999 through 2001. Burley and DeFelice
testified against Wiggin. Their testimony and that of other
witnesses showed that DeFelice had sold cocaine to Wiggin thirty to
forty times, that the quantities per transaction varied but
"towards the end" were often eight to ten ounces, and that the
largest quantity DeFelice had sold to Wiggin was fifteen ounces.
DeFelice testified that Wiggin had told him he subsequently resold
the cocaine to multiple people. Further, Burley testified that
Wiggin personally brought money to Burley's home to pay for cocaine
at least three times and accompanied DeFelice to Burley's home to
make payments on at least twenty occasions.2
At the conclusion of the six-day trial, the district
court instructed the jury that the government had to prove beyond
a reasonable doubt that Wiggin conspired to distribute cocaine. If
the jury found that the government had so proved, it had to "go on
2
DeFelice bought between eight and thirty ounces of cocaine from
Burley per transaction, with one transaction every seven to
fourteen days, over an extended period of time.
-4-
to consider the weight of the cocaine that was involved in the
conspiracy and is attributable to the defendant." The court added:
A given amount of cocaine was involved in the
conspiracy if the government proves beyond a
reasonable doubt that the conspirators agreed
to distribute that amount of cocaine. A given
amount of cocaine is attributable to the
defendant if he knew or could have reasonably
foreseen that the conspiracy involved that
amount of cocaine. The government must prove
beyond a reasonable doubt both that the
conspiracy involved a given amount of cocaine
and that the defendant knew or could have
reasonably foreseen that a conspiracy involved
that amount of cocaine.
On September 12, 2003, the jury returned a guilty verdict
against Wiggin:
1) We, the jury in the above captioned case,
return the following verdicts:
COUNT ONE:
Not Guilty X Guilty
2) We, the jury, find that the weight of
cocaine involved in the conspiracy described
in Count One of the indictment and
attributable to defendant was:
DRUG WEIGHT:
X Five (5) kilograms or more of cocaine
Five hundred (500) grams or more, but
less than five (5) kilograms, of
cocaine
Less than five hundred (500) grams of
cocaine
Based on this drug quantity finding, the district court sentenced
Wiggin to the statutory minimum of ten years' imprisonment, see 21
-5-
U.S.C. § 841(b)(1)(A), to be followed by five years of supervised
release.
B. The Competency Issue
On September 19, 2003, which was a week after the jury
returned its guilty verdict but prior to sentencing, Wiggin's
attorney moved pursuant to 18 U.S.C. § 4241 for a hearing to
determine whether Wiggin had been competent to stand trial. The
attorney and Wiggin's mother submitted affidavits stating, inter
alia, that Wiggin (1) had broken his neck in a 1997 motorcycle
accident and had subsequently suffered memory loss and a reduction
in cognitive capacities, (2) had abused marijuana and cocaine for
years, (3) had unwisely rejected the favorable plea offer, (4) had
had difficulty remembering events and providing non-contradictory
answers to his attorney's questions, and (5) had not given his
attorney important details about the criminal case prior to trial.
Wiggin's attorney attempted to explain the belated timing of his
motion in an affidavit, stating that he "was first apprised of Mr.
Wiggin's memory loss and his reduced cognitive ability on the
fourth day of the [six-day] trial by his mother and his girl
friend."
The district court held an initial hearing on the
competency motion on June 14, 2004. Two psychologists testified
for the defense, having examined Wiggin after the trial had
concluded. The first, Dr. Alexandria Weida, a forensic
-6-
psychologist for the Commonwealth of Massachusetts, stated that she
had met with Wiggin on two occasions3 and administered various
psychological tests, including the Bender-Gestalt test and the
Wechsler Memory Scales. She testified that when she asked Wiggin
whether he understood terms such as "conspiracy," he answered in
the affirmative but could not provide a coherent explanation when
pressed for details. She also said Wiggin was "confused" about the
role of his attorney and the consequences of plea bargaining. Dr.
Weida concluded that at the time of the trial, Wiggin was not able
rationally to understand the proceedings and charges against him
and was not "competent to fully assist his counsel."
The second psychologist, Dr. Frederick Kelso, met with
Wiggin in May 2004 and also concluded that Wiggin had been
incompetent to stand trial. Dr. Kelso cited two causes: (1) a
mental defect and cognitive deficits caused by mild traumatic brain
injury, and (2) the mental disease of cocaine abuse. Dr. Kelso
testified that Wiggin had a "minimal understanding" of the concept
of conspiracy. He stated that he had administered a test that
showed Wiggin had trouble thinking in abstractions; the sort of
results he observed were "very commonly seen in certain kinds of
patients who have suffered a traumatic brain injury." Dr. Kelso
opined that Wiggin's decision to trust DeFelice's assurances that
3
At least one of the meetings was in March 2004; the date of the
other is not clear from the record.
-7-
Wiggin "didn't have anything to worry about," even after his
attorney told him DeFelice would testify for the prosecution, was
connected to Wiggin's difficulty in thinking in abstractions. Dr.
Kelso concluded that Wiggin's assessment of the possibility of
accepting a plea deal had not been rational.
Dr. William Ryan, a forensic psychologist with the
Federal Bureau of Prisons, testified for the government. Dr. Ryan
testified that he had interviewed Wiggin in the fall of 20034 and
had subjected him to a test called the Minnesota Multiphasic
Personality Inventory, 2nd Edition. He stated that Wiggin's
results indicated that (1) he had basic comprehension skills and
could understand and consistently answer true-false questions;5 and
(2) he was exaggerating any mental illness he suffered, suggesting
"either a cry for help or some deliberate attempt to portray
himself as very mentally ill." Dr. Ryan testified that he had
spoken with staff members at the prison where Wiggin was
incarcerated and had been told that Wiggin functioned adequately
4
Dr. Ryan testified that he interviewed Wiggin during Wiggin's
stay at a federal prison, which he believed lasted from "October
through pretty late in December."
5
By "consistently answer," Dr. Ryan testified, he meant that
Wiggin gave answers that matched up logically with answers
elsewhere on the test. For example, if a test-taker were to mark
"true" next to the statement "I am always depressed," he would have
to mark "false" next to the statement "I am never depressed" in
order to be answering consistently. Dr. Ryan testified that
consistent answers indicate that "the person is understanding the
questioning."
-8-
and understood directions. He also testified that, during an
interview, Wiggin was able to count backward by threes, indicating
an ability to concentrate, and was able to give adequate
definitions of legal terms such as perjury, witness, verdict, and
sentence. Wiggin was unable adequately to define several other
legal terms when first asked, but when Dr. Ryan explained them to
him and then asked later if he remembered what they meant, Wiggin
was able to recall the definitions.
According to Dr. Ryan, Wiggin said during the interview
that he had not trusted his attorney at trial but later realized
his attorney had been trying to help him. Asked on cross-
examination whether he found Wiggin's decision to trust his friends
and family instead of his attorney irrational, Dr. Ryan responded:
"it may not have been a good decision, but there was no irrational,
you know, mental illness entering into that decision." Based on,
inter alia, the testing he administered, his interview of Wiggin,
and his interviews of prison staff, Dr. Ryan opined that Wiggin
suffered from depressive symptoms, post-traumatic stress disorder,
and a cognitive disorder possibly due to head trauma. However, he
concluded that Wiggin was nonetheless functional, rational, and
competent. He testified that Wiggin "conversed, he discussed, he
remembered, . . . he retained what he learned, it all impressed me
as a person who was competent to stand trial."
-9-
After hearing this testimony, the district court found
that the defense had not established by a preponderance that Wiggin
was incompetent to stand trial. However, the court noted that it
was troubled that the record was not developed with respect to
Wiggin's possible organic brain injury: the testifying
psychologists had inferred such an injury, but no physician had
examined Wiggin for purposes of the competency hearing. The court
therefore ordered that Wiggin be examined by Dr. Albert Drukteinis,
a physician and forensic psychiatrist, "to establish whether or not
he does suffer from some mental defect or disease" and offer an
opinion on whether Wiggin "was mentally competent to stand trial."
Dr. Drukteinis examined Wiggin pursuant to the district
court's order and submitted a report on August 19, 2004. On
September 30, 2004,6 he testified that Wiggin was competent to
stand trial.7 Dr. Drukteinis said Wiggin "has some . . . problems
with memory, concentration, maintaining attention," though there
was no "real evidence that [those problems were] because of
traumatic brain injury." Dr. Drukteinis' report stated that Wiggin
6
This was the date of the second portion of the competency
hearing and of Wiggin's sentencing, which immediately followed the
district court's competency ruling.
7
Dr. Drukteinis testified that his examination necessarily
evaluated competency at present, not the time of the trial.
However, he added that in Wiggin's case, "if he had the capacity to
understand things like conspiracy today and the capacity to
understand the seriousness of this charge today, then there's no
reason why he couldn't have had that capacity then barring some
extra aggravating [effects] of cocaine that he was using."
-10-
had told him that at the time of trial he did not think the
criminal charges he faced were serious, and that he thought so in
part because his friends and family -- including his parents, his
fiancée, and DeFelice -- did not seem particularly worried. Asked
by defense counsel whether he thought Wiggin's faith in his family
rational, Dr. Drukteinis replied: "I don't see where that would be
irrational. I think people listen to lots of different sources in
that kind of a predicament." Dr. Drukteinis testified that
Wiggin's failure to assist defense counsel stemmed more from
Wiggin's lack of trust in his attorney than from any mental disease
or defect.
Wiggin himself also testified at the September 30
hearing. Asked by his attorney what he thought when he was told
his friends were going to testify against him, Wiggin replied: "I
didn't think it was true." He stated that DeFelice had told him he
would not testify for the prosecution and that he had no reason to
doubt DeFelice's assurances. Asked why he rejected the plea offer
and went to trial, Wiggin replied: "I just, to be honest with you,
I don't know. I just, my family and my friends, I was listening to
them."
Following this testimony, Wiggin's counsel summarized his
competency argument, saying Wiggin's faith that his friends would
not testify against him was related to his mental defects. "He
didn't know me, I was saying things he didn't want to hear,"
-11-
Wiggin's attorney argued. "He rejected that and that's . . . an
irrational position."
After listening to defense counsel's summation, the
district court ruled from the bench that Wiggin had been competent
to stand trial. The court stated:
I think [Wiggin has] made a series of just
terrible decisions that are certainly not the
product of informed consideration, but I
credit Dr. Drukteinis's evaluation and I
credit Dr. Ryan's evaluation that he was
competent to stand trial at the time of trial.
He is competent to stand trial now. . . . I
find by a preponderance of the evidence that
he simply did not suffer from a mental disease
or defect that renders him mentally
incompetent; that is, that he was or is unable
to understand the nature and consequences of
the proceeding against him or to assist
properly in his defense.
Defense counsel objected that Dr. Ryan and Dr. Drukteinis made
determinations of competency at the time of examination, not at the
time of the September 2003 trial. The court replied: "[A]s Dr.
Drukteinis made clear, there's nothing to suggest that [Wiggin's]
condition was any different at the time of trial than it was at the
time Dr. Ryan examined him or Dr. Drukteinis examined him."
II.
A. The Competency Determination
The determination of a criminal defendant's competency to
stand trial is governed by the standards laid out at 18 U.S.C.
-12-
§ 4241.8 This provision states that at any time prior to
sentencing, "the defendant or the attorney for the Government may
file a motion for a hearing to determine the mental competency of
the defendant. The court shall grant the motion, or shall order
such a hearing on its own motion, if there is reasonable cause to
believe" that the defendant is incompetent. Id. § 4241(a). It
further provides:
If, after the hearing, the court finds by a
preponderance of the evidence that the
defendant is presently suffering from a mental
disease or defect rendering him mentally
incompetent to the extent that he is unable to
understand the nature and consequences of the
proceedings against him or to assist properly
in his defense, the court shall commit the
defendant to the custody of the Attorney
General [for hospitalization].
Id. § 4241(d).
"We uphold a district judge's determination of competency
after a [§ 4241] hearing unless [that determination is] clearly
erroneous." United States v. Santos, 131 F.3d 16, 20 (1st Cir.
1997). Wiggin, as we understand his argument, contends that the
district court erred in concluding that he met the second prong of
the competency test -- that he was able "to assist properly in his
defense." He argues that the error is demonstrated by two things:
(1) that the court referred to the "understand the nature and
8
Section 4241 adopts the competency test articulated by the
Supreme Court in Dusky v. United States, 362 U.S. 402 (1960) (per
curiam).
-13-
consequences of the proceedings" prong of the § 4241 test a few
times without also referring at the same time to the second prong,
and (2) that the evidence showed that Wiggin could not in fact
assist his counsel. He also argues that point (1) demonstrates
that the district court incorrectly applied the law to the facts,
and that as a result our review in this instance should be plenary,
instead of for clear error.
None of these arguments has any merit. As to point (1)
and the standard of review issue, the district court at the time it
made its competency determination specifically and correctly
described both prongs and issued a finding as to each: it stated
that Wiggin "simply did not suffer from a mental disease or defect
that renders him . . . unable to understand the nature and
consequences of the proceeding against him or to assist properly in
his defense." Further, the court also described the second prong
correctly at least three other times during the two-day hearing: it
noted during separate colloquies with defense counsel and an expert
witness that competency requires the capacity to "adequately
participate in [one's] defense" and to "meaningfully assist in
[one's] defense"; it also concluded the competency hearing by
reiterating that it had found that Wiggin did not have a "mental
disease or defect that . . . deprived him of the ability . . . to
adequately assist in his defense."
-14-
This is not an instance in which a court articulated what
is said to be an incorrect rule of law. In that circumstance, a
matter of pure law, we would review the question de novo. Here the
trial court articulated the correct standard. Indeed, we have
upheld findings of competency where the district court offered far
less of an articulation, saying the court need not "parse the
definition of 'competency'" nor "arrive at specific findings as to
each component." United States v. Muriel-Cruz, 412 F.3d 9, 14 (1st
Cir. 2005) (reviewing for plain error); see also id. at 12 ("Not
only can we ascertain no plain error, we are unable to discern what
additional actions reasonably could have been expected of the
district court.").
Nor was there error in the application of the law of
competency to the facts. The trial court, unlike Wiggin's experts,
had actually seen the defendant and his counsel interact at trial.
The court also had heard expert testimony that Wiggin was competent
and rational, and it was entitled to credit that testimony. See
Santos, 131 F.3d at 20-21. Competent people can and do make
decisions which others consider irrational. Starting with the
premise that he could rely on the assurances of his "friends" not
to turn on him and that he could not trust a lawyer he did not
know, Wiggin's decision not to accept the plea was naive and ill-
informed, but not irrational. Further, his lawyer never once
during trial suggested that Wiggin could not assist in his own
-15-
defense. Wiggin's regrets that he did not accept the plea bargain
he was offered are not enough.
B. The Jury Instructions/Verdict Slip Issue
Wiggin's second argument is that "[c]ombined, the [jury]
instructions and verdict form are ambiguous and confusing" and that
the ambiguity requires vacation of his sentence and remand for
resentencing without the ten-year mandatory minimum. His position,
as we understand it, is that the judge's instructions gave the
impression that the total amount of cocaine involved in the
conspiracy and the amount attributable to Wiggin had to be
identical, and that the verdict form, with its single blank for
finding the weight of cocaine "involved in the conspiracy" and
"attributable to defendant," added to that impression. He argues
that this requires resentencing because, given the ambiguity, the
jury should not be deemed to have made the defendant-specific drug
quantity finding that triggered the ten-year statutory minimum.
Because the jury included a drug quantity finding on the verdict
form, the district court did not make such a finding at sentencing;
Wiggin therefore argues that if the jury's finding was invalid, no
actor made the requisite drug quantity finding.
Wiggin did not object to the instructions or verdict slip
at trial, and so we review for plain error. United States v.
Molina, 407 F.3d 511, 527 (1st Cir. 2005) (plain error review of
jury instructions); Negron v. Caleb Brett U.S.A., Inc., 212 F.3d
-16-
666, 672 (1st Cir. 2000) (plain error review where appellant had
objected to neither the jury instructions nor the verdict form).
To prevail under this standard, Wiggin must show that (1) an error
occurred, (2) the error was clear or obvious, (3) the error
affected his substantial rights, and (4) the error also seriously
impaired the fairness, integrity, or public reputation of judicial
proceedings. United States v. Olano, 507 U.S. 725, 732, 734
(1993).
This is not such a case. There was no error; much less
were the other three requirements of Olano met. The district court
began the relevant portion of the jury instructions by stating that
"[a] given amount of cocaine was involved in the conspiracy if the
government proves beyond a reasonable doubt that the conspirators
agreed to distribute that amount of cocaine." It then stated in a
separate sentence that "[a] given amount of cocaine is attributable
to the defendant if he knew or could have reasonably foreseen that
the conspiracy involved that amount of cocaine." This instruction
clearly and correctly states the law. See United States v. Colon-
Solis, 354 F.3d 101, 103 (1st Cir. 2004) (requiring, for sentencing
in drug conspiracy cases, "an individualized finding as to drug
amounts attributable to, or foreseeable by, [the] defendant").
The district court added that "[t]he government must
prove beyond a reasonable doubt both that the conspiracy involved
a given amount of cocaine and that the defendant knew or could have
-17-
reasonably foreseen that a conspiracy involved that amount of
cocaine." Wiggin suggests that the conjunctive phrasing of this
instruction implies that the two amounts are identical, and that
the phrasing of the verdict form did nothing to undo any confusion
on the point. We disagree. The instruction in fact stressed to
the jury that the reasonable doubt standard applied to both issues
(amount involved in the conspiracy and amount reasonably
foreseeable to the defendant). Further, the form itself makes
clear that the jury was to make a separate finding as to the amount
attributable to the defendant.
III.
We affirm Wiggin's conviction and sentence.
-18-