United States of America, Plaintiff-appellee, v. Elliott Caplan, Defendant-appellant, 633 F.2d 534 (9th Cir. 1980)

Elliott Caplan, under the alias of Vernon Frank Mitchell, was charged by indictment in the District of Arizona on January 12, 1977 with conspiracy to possess marijuana with the intent to distribute and conspiracy to import marijuana in violation of Title 21, United States Code, §§ 841(a) (1) and 846, and §§ 952(a), 960(a) (1) and 963, respectively. On September 14, 1978, appellant's trial counsel made a motion requesting a psychiatric examination to determine appellant's competence to stand trial pursuant to 18 U.S.C. § 4244¹  and to determine appellant's sanity at the time of the commission of the offense.²  In part, the motion stated that "the defendant is presently being examined by Dr. Marshall Jones and Dr. Allan Beigal as a result of a Rule 11 motion filed and granted in Pima County Superior Court, and, therefore, their findings and reports might suffice for the purposes of this motion."³  The prosecution also filed a motion on October 11, 1978, expressing doubt as to appellant's competency to stand trial and requesting that the court consider the two psychiatric reports referred to in appellant's motion. Accordingly, on October 13, 1978, a hearing was held to determine appellant's competency to stand trial. Based upon the evidence submitted, the court found appellant incompetent to stand trial and vacated his trial date.⁴ 

Pursuant to an order of the Pima County Superior Court dated October 30, 1978, appellant was committed to the Arizona State Hospital as incompetent to stand trial on the state charges. During this commitment, appellant was subjected to psychiatric evaluation. A psychiatric examination report prepared for the Pima County Superior Court was forwarded to the United States District Court of the District of Arizona. This evaluation was received by the federal court on March 7, 1979. An order was entered on March 16th by United States District Judge Mary Anne Richey stating that all pending matters in appellant's case would be heard before the Honorable Robert C. Belloni on March 26, 1979 and that the trial date would be set for March 29, 1979 before the same judge.

On March 26, 1979 Judge Belloni heard and granted appellant's motions for disclosure of the Grand Jury transcript and for a Bill of Particulars. He also set the trial to begin the afternoon of March 28th instead of the morning of the 29th.

The court's attention then turned to the matter of appellant's present competency to stand trial:

"THE COURT: The Clerk tells me that you wish to discuss the competency matter.

MR. JENSEN (defense counsel): The Clerk brought it up to me, your Honor, or to us, that no formal determination I believe of the Defendant's competency has been made in this Court. One has been made, I believe, in state Court.

THE COURT: That he is incompetent that he is competent to stand trial

MR. JENSEN: Right, in state Court.

THE COURT: and assist in his own defense?

MR. JENSEN: At the time it was made, your Honor.

THE COURT: I have the

MR. JENSEN: I beg to differ with it, but then I considering the Defendant's medical background and the various institutions he's been in, he's been in solitary confinement in St. Peters Institution for 23 days. That didn't do him much good. He's been in confinement at various other places, and he's been seen by various other psychiatrists and counseling personnel for three years.

Irrespective of what the state Court has said based on here and the state hospital, I would submit that there's some doubt as to the Defendant's competency.

THE COURT: Well, I think what the Clerk said, and I agree too, if there's a competency matter to be raised, it should be raised now rather than the last minute.

MR. JENSEN: I agree, your Honor.

THE COURT: I have read a sealed report of Dr. Michael F. Cleary of the Arizona State Hospital. Have you had a chance to see it?

MR. JENSEN: I have it. Not today, your Honor, but I have

THE COURT: But you have seen it?

MR. JENSEN: Yeah. A copy was sent to me.

THE COURT: Okay. Well, are you agreeable that the Court can consider this report?

MR. JENSEN: I would I have no objection to being submitted to that doctor, and that report would have to be

THE COURT: All right.

MR. JENSEN: considered, as much as I beg to differ with it, your Honor.

THE COURT: Certainly. Well, his conclusion seems to be that there simply is no that there is no mental defect and that he is competent to stand trial. And I also find that he is competent to participate in the proceedings and to assist in his own defense. So having that out of the way, then it will not have to be brought up at the last minute.

Is there anything else?

MR. JENSEN: No, your Honor.

MR. COOPER: No, your Honor.

THE COURT: All right."

The proceedings were adjourned. Trial began on March 28th and concluded on March 29th, when the jury brought in a verdict of guilty on each count charged.

The prosecution's case against appellant was based primarily upon the testimony of Alma Waits. Waits was indicted as a co-conspirator, pled guilty, and cooperated with the prosecution in testifying against appellant. According to her testimony, Waits took over her husband's marijuana business in January, 1976 when he was sentenced to serve a prison term. Waits first dealt with appellant in February, 1976 through a middleman. However, the middleman was quickly eliminated and Waits began dealing with appellant directly.

In July, 1976, Waits contacted appellant to ask if he wanted to purchase marijuana. During negotiations, which took place at Waits' "stash house,"⁵  appellant expressed his dissatisfaction with the small quantity and high price of the particular marijuana that was available. Waits explained that things were tight at the border and that her Mexican suppliers were having difficulty getting the marijuana into the United States. Appellant advised her that she should "push harder." Subsequently, appellant met with Waits' Mexican suppliers directly in late July or early August, 1976. A large quantity of marijuana had already been delivered to appellant. He had not paid Waits for it, so she had not yet paid the suppliers. Nonetheless, appellant attempted to persuade the suppliers to deliver more and offered to pay for the total amount when the additional contraband was received. The Mexican suppliers told appellant that they could not purchase more marijuana to bring across the border until they had been paid for that which they had already delivered. These negotiations went on for two or three days.

Another sale, for approximately 200 pounds of marijuana, was negotiated in August, when appellant again met with the Mexican suppliers to argue over the price, quality and quantity of the shipment. He complained that the marijuana had too many sticks and seeds and that his people back east would not like it. Appellant, nonetheless, purchased the full 200 pounds offered.

In what was apparently their last transaction, Waits delivered a quantity of marijuana to appellant in Oklahoma City around the beginning of December, 1976, on the understanding that appellant would pay her for it when he had resold it in the east. Appellant subsequently paid for the marijuana by mail with three separate Western Union Moneygrams. This method of payment had been used on at least one other occasion when, according to Waits' testimony, she advanced a quantity of marijuana to appellant without payment so that he could sell it in the east.

Appellant Caplan appeals from the judgment on three grounds: (1) the court failed to act on his motion for a psychiatric examination to determine his sanity at the time of the commission of the offense; (2) the court failed to hold an evidentiary hearing to determine whether his competency to stand trial had been restored; (3) there was insufficient evidence upon which to convict him of conspiracy to either import, possess or distribute marijuana.

1. Propriety of Disposition of Motion for Psychiatric Examination to Determine Sanity

Appellant contends that the trial court erred in failing to appoint a psychiatrist to determine his sanity at the time of the offense as requested in his motion. He correctly points out that competency to stand trial and mental condition at the time of the charged offense are separate and distinct issues. Jackson v. Indiana, 406 U.S. 715, 739, 92 S. Ct. 1845, 1858, 32 L. Ed. 2d 435 (1972). As noted above, when appellant's counsel initially moved for an examination to determine appellant's competency to stand trial, he also requested that appellant's mental condition at the time of the offense be determined. Based on state medical reports, the district court found that appellant was incompetent to stand trial. After further evaluation in a state mental hospital revealed that appellant was now incompetent and that his suspicious attitude towards society did not seem to result from any specific mental disorder, the district court ruled that appellant was competent to stand trial and to assist in his own defense. Appellant did not renew his motion for an examination to determine his sanity at the time of the offense after he was found competent to stand trial. By failing to do so, he effectively abandoned his request.⁶  Further, appellant did not rely upon a defense of insanity at his trial. The defense's case consisted entirely of cross-examination of the prosecution witnesses. Had trial counsel intended to interpose an insanity defense on appellant's behalf, he would have been required to notify the government in writing of such intention and file a copy of such notice with the clerk. If there is a failure to give such notice, insanity may not be raised as a defense. Rule 12.2, Fed. R. Crim. P. Appellant clearly waived an insanity defense by failing to pursue the determination of his sanity at the time of the offense by psychiatric examination and by failing to comply with Rule 12.2. Therefore, the failure of the trial court to order an examination of his sanity at the time of the commission of the offense cannot now be argued as a ground for reversal.

2. Necessity for Evidentiary Hearing to Determine Competency

Appellant argues that a prior judicial determination of incompetency is sufficient as a matter of law to raise a doubt as to present competency and to require automatically that an evidentiary hearing be held before criminal proceedings on the issue of guilt can be resumed. This argument, however, is foreclosed to appellant by our recent holding in United States v. Clark, 617 F.2d 180 (9th Cir. 1980). There we held that when a defendant has been committed as incompetent under 18 U.S.C. §§ 4244 and 4246 and has been returned to court as competent by the commitment institution, a second competency hearing is not automatically required. Id. at 184. Instead, whether a hearing is required will depend upon the facts of the particular case. Id.

Our task, then, in deciding whether a hearing is required, is to determine whether there is "substantial evidence" that the defendant may be mentally incompetent to stand trial. See Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972). As we indicated in our review of the evidence in Clark, evidence of past incompetency may be relevant in determining a defendant's present competence to stand trial. Clark, 617 F.2d at 184. This is consistent with Clark's reasoning that the necessity for an evidentiary hearing depends on the facts of a given case. Mechanical application of a rule that considers only the most recent report to be evidence of present incompetence could lead to the exclusion of highly probative evidence of present incompetence that may be contained in past reports. It takes little imagination to hypothesize a grossly unjust situation such a rule might create where there are detailed psychiatric reports of past incompetence followed by a single sketchy report of competence.

Of course, the probative value of past reports may dissipate over time. The court, therefore, having received a report of present competence, must reassess the quality of past evidence. It should consider, inter alia, the detail and thoroughness of the prior reports, the seriousness of illness reported, and the prognosis, if any, for future recovery. Cf. Clark, 617 F.2d at 186 (importance of prior reports diminished where psychiatrist expressed opinion that competency would return within reasonable time). Besides past reports, other factors for consideration could include the time elapsed for treatment, the opportunity to study the defendant during the time of treatment or commitment, and the court's own observation of the defendant. Although the ultimate report in which the defendant is found competent may often be the most probative information, that report must be carefully evaluated and weighed in light of the importance given to all other relevant indicia of the defendant's present mental health.

Based on the record presented to the district court, we conclude that the court did not err in denying an evidentiary hearing. The district court had before it the February 22, 1979 report of the psychiatrist at the Arizona State Hospital. That report, following a period of hospital care and treatment, revealed that, in the opinion of that psychiatrist, appellant was now competent to stand trial.⁷ 

In contrast, as evidenced in the passages of the transcript quoted previously, counsel for Caplan failed to offer any evidence of present mental incompetence to the district court other than generalized references to Caplan's medical history. He did not state that he was unable to communicate with appellant or that appellant was unable to cooperate in his defense. He did not even refer to the earlier reports of Dr. Jones and Dr. Beigel finding Caplan incompetent.⁸  Even if we assume that the district court read these reports (they were in the district court file), we find that they were not substantial evidence of appellant's present incompetency. Each of these reports addresses itself to appellant's mental capacity to stand trial as of the date of the examination and prior to any commitment for treatment. Dr. Jones' report specifically refers to appellant's "current mental state." Dr. Beigel's report states that appellant was not competent to stand trial "at the present time." Dr. Beigel also suggests that appellant's severe state of agitation which impaired his ability to assist counsel was "being contributed to by his current medication" and recommended that appellant "be reevaluated ... to determine whether his current state of agitation is secondary to a side effect from the medication." Neither report contains any opinion as to the capacity of appellant to stand trial at some future date. There were no later opinions of Dr. Jones or Dr. Beigel as to appellant's competency as of the March 26, 1979 date of determination of competency.⁹ 

Appellant claims that the evidence showed only that he was an occasional customer of Alma Waits, and not a co-conspirator. He freely admits that he possessed marijuana and distributed it within the United States, but contends that the government failed to show that he had any agreement or understanding with Waits upon which a conspiracy conviction could be supported.

In considering appellant's claim that the evidence is legally insufficient to establish a conspiracy, our task is to determine whether, after "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (emphasis in original); see also Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942). We have concluded that the evidence clearly establishes that appellant was a conspirator.

"A conspiracy is defined as a combination of two or more persons to accomplish some unlawful purpose, or some lawful purpose by unlawful means." United States v. Heck, 499 F.2d 778, 787 (9th Cir.), cert. denied, 419 U.S. 1088, 95 S. Ct. 677, 42 L. Ed. 2d 680 (1974). However, "(t)o establish a conspiracy, the government need not prove the existence of a formal agreement. Rather, an agreement may be inferred from the acts of the parties and other circumstantial evidence indicating concert of action for accomplishment of a common purpose." United States v. Martin, 567 F.2d 849, 851 (9th Cir. 1977). In the matter before us the evidence was sufficient to allow an inference to be made that such an agreement existed. The cases relied upon by appellant do not advance his argument to the contrary. Appellant refers us to the following three cases:

In United States v. Fellabaum, 408 F.2d 220 (7th Cir.), cert. denied, 396 U.S. 858, 90 S. Ct. 125, 24 L. Ed. 2d 109 (1969), the court summarized the familiar requirements for the crime of conspiracy and emphasized the need for an agreement between the conspirators. The court then concluded that sufficient evidence had been produced for the jury to infer that the charged conspiracy existed and that the defendants were conspirators therein. The court did not require that the evidence show a formal agreement. In United States v. Spanos, 462 F.2d 1012 (9th Cir. 1972), also cited by appellant, this court reversed a conspiracy conviction due to the failure of the prosecution to make out a prima facie case of the actual conspiracy charged. The most the evidence showed was that a certain person had bought amphetamines from the defendant on one occasion but had been refused purchase of additional quantities on two subsequent occasions. In United States v. Basurto, 497 F.2d 781 (9th Cir. 1974), this court reversed the conviction of one of the defendants on a conspiracy charge where the evidence merely showed that the defendant had been present at times when members of the conspiracy had been present, and that he was acquainted with some of the conspirators.

In Spanos and Basurto this court reversed the defendants' convictions because the evidence was insufficient to establish a criminal conspiracy. In the matter before us, there was substantial evidence to support the conviction.

As mentioned in detail above, Waits testified that she "fronted" a quantity of marijuana to appellant on her trip to Oklahoma City and that he did not pay her for it until he had resold it in the east. She also testified that appellant exhorted her to "push harder" to get the Mexican suppliers to bring more marijuana up from Mexico. Further, her testimony as to appellant's negotiations with the suppliers in regard to price, quality and quantity of marijuana paints a picture of someone substantially more involved in the overall operation of marijuana smuggling and sales than a mere occasional customer. This testimony taken together is clearly sufficient evidence from which the jury could have determined beyond a reasonable doubt that a concert of action existed between Waits, the appellant and others, for the accomplishment of a common unlawful purpose-the importation, possession and distribution of marijuana.

The judgment of conviction is AFFIRMED.