Appeal from orders entered in the United States District Court for the Western District of New York, Harold P. Burke, Judge, denying, without a hearing, petitions to vacate a bank robbery conviction on grounds of mental incompetence to stand trial.
Lumbard, Oakes and Meskill, Circuit Judges.
This is an appeal from orders entered in the United States District Court for the Western District of New York, Harold P. Burke, Judge, denying without hearings appellant Edward W. Newfield's "next friend" and pro se motions made pursuant to 28 U.S.C. § 2255*fn1 to vacate his bank robbery conviction on the ground that he was mentally incompetent to stand trial. Appellant Newfield also contends that the district court erred in failing to order sua sponte, as provided for in 18 U.S.C. § 4244,*fn2 a psychiatric examination at the time of trial.
Edward W. Newfield was indicted on June 16, 1972, for the December 1, 1971, robbery of $9,606.00 from the Security Trust Company of Rochester, New York. After a five-day jury trial, on May 28, 1974, he was convicted of violating 18 U.S.C. § 2113(a). On June 8, 1974, Newfield was sentenced to five years imprisonment, the sentence to run concurrently with a sentence for bank robbery that Newfield was serving after his parole had been revoked. Prior to sentencing, two psychiatric evaluations were submitted to the trial court. One of the evaluations, by Edward Kaufman, M.D., and dated October 17, 1973, reported that Newfield's "present anxiety, impairment of associative thought processes and paranoid thinking support a diagnosis of chronic undifferentiated schizophrenia." He also characterized Newfield as suffering from "severe mental illness." The other evaluation, by Morris Herman, M.D., and dated September 13, 1973, reported that Newfield had "important personality deficits" but it was "not clear that these deficits reached the intensity to be considered a psychosis." He concluded: "I cannot find sufficient symptoms at this time to diagnose schizophrenia but I can say that his personality and character structure are that [sic] of a schizoid person." Both evaluations were addressed to, and submitted by, Newfield's attorney.
On January 14, 1976, a "next friend" § 2255 motion was filed on Newfield's behalf alleging that Newfield was incompetent at the time of trial and that the bank robbery conviction and sentence should be set aside and vacated. Judge Burke denied the motion without a hearing on the ground that "the files and records of the case conclusively show that the petitioner is entitled to no relief." Nine days after this denial, Newfield filed a pro se § 2255 motion, again alleging legal incompetence at the time of trial and asking that the judgment and sentence be set aside and vacated. This motion was accompanied by Dr. Kaufman's 1973 evaluation as well as an evaluation authored by Dr. Kaufman in 1966 entitled "Report of Psychiatric Board of Examiners." The 1966 report was prepared by three professionals to support a § 2255 motion on Newfield's behalf to vacate a guilty plea to a prior bank robbery. This report stated that Newfield was a "relatively disturbed individual who made some attempt to appear sicker than he actually is by exaggeration of symptoms." The report also noted that Newfield had been addicted to heroin for 20 years, had a history of hospitalization and psychiatric care, exhibited some "anxiety and depression" and viewed the world in a "paranoid manner." The report diagnosed him as having "schizophrenic reaction, chronic undifferentiated type with some sociopathic trends," but concluded that he was "competent at the time of his crime and at the time of his trial." Newfield's pro se motion did not include the evaluation submitted by Dr. Herman. This motion was also denied by Judge Burke without a hearing, again on the ground that "the files and records of the case conclusively show that the petitioner is entitled to no relief." Newfield appeals both denials,*fn3 claiming again that he was incompetent by reason of mental disorder to stand trial. He also claims that, given the facts available at trial, the district court erred in not ordering sua sponte an inquiry into his competency to stand trial as provided for in 18 U.S.C. § 4244.
Whenever a trial court has "reasonable cause" to believe that a defendant is "presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense," a psychiatric examination must be ordered. If the examination indicates that the accused may be insane or incompetent, a hearing must be ordered. 18 U.S.C. § 4244. This Court has held that:
No part of a criminal proceeding may be proceeded with against a defendant who is at the time "insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense . . . ."
United States v. Sullivan, 406 F.2d 180, 185 (2d Cir. 1969); see United States v. Marshall, 458 F.2d 446, 449 (2d Cir. 1972). The test under the statute is stated in Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960):
The "test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he has a rational as well as factual understanding of the proceedings against him."
Whether "reasonable cause" exists under particular circumstances is a question left to the sound discretion of the district court. United States v. Hall, 523 F.2d 665, 667 (2d Cir. 1975); see United States v. Vowteras, 500 F.2d 1210, 1212 (2d Cir.), cert. denied, 419 U.S. 1069, 42 L. Ed. 2d 665, 95 S. Ct. 656 (1974); United States v. Marshall, supra, 458 F.2d at 450; Zovluck v. United States, 448 F.2d 339, 342 (2d Cir. 1971), cert. denied, 405 U.S. 1043, 31 L. Ed. 2d 585, 92 S. Ct. 1327 (1972). The court may consider a defendant's history of psychiatric treatment in making such a decision, but awareness of such a history does not automatically require a finding of incompetency. "It does not follow that because a person is mentally ill he is not competent to stand trial." United States v. Adams, 297 F. Supp. 596, 597 (S.D.N.Y. 1969).
Here, the psychiatric evaluations by Dr. Kaufman and Dr. Herman were in the possession of Newfield's trial counsel well before the trial began, yet counsel made no suggestion that competence was a factor in the case. Even had the evaluations been made available to the trial court during the trial, their conclusions were inconsistent as to the severity of Newfield's psychiatric problems and were intended to aid not in the determination of Newfield's competence to stand trial but in the determination of an appropriate sentence in the event of a conviction. His competence to stand trial was apparently assumed by both the examiners and counsel. There is no indication in the record that Newfield was unable to understand the proceedings against him or properly to assist in his defense. In addition, Judge Burke had five days of trial proceedings during which he observed Newfield's behavior, giving him ample opportunity to ...