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February 21, 1968


The opinion of the court was delivered by: Decker, District Judge.


This is a petition under 28 U.S.C. § 2255 for an order to vacate the sentence imposed upon petitioner by the late Judge LaBuy of this court in 1964. An evidentiary hearing was held before me on November 29, 1967 and December 1, 1967, after which the petition was taken under advisement. After due consideration of the petition, memoranda, original trial transcript, and evidence presented here, I have concluded that the petition must be denied.

Petitioner was tried before a jury and convicted in March, 1964 of the offense of conspiracy to transport and conceal unlawfully imported heroin, a narcotic drug, in violation of 21 U.S.C. § 174. A sentence of twelve years was imposed on April 28, 1964. Judgment was affirmed on appeal, United States v. Owens et al., 346 F.2d 329 (7 Cir. 1965). The two principal grounds of the present petition may be stated as follows: (1) The admission at trial of an inculpatory statement made by petitioner to police was in violation of the Fifth Amendment because the statement was not voluntarily made, but instead was given under the pressure of promises by the police that they would give petitioner the heroin he needed at that time if he would give them a confession. (2) Petitioner was denied due process in the conduct of his trial because the trial court failed to inquire into petitioner's competency to stand trial, even though it knew that petitioner had been addicted to narcotics at a time prior to the trial.

The evidentiary hearing which I granted in this case was limited to the question of whether petitioner, as a result of his alleged use of narcotics during his trial, was unable to understand the nature of the charges against him and was unable to assist his counsel during the course of trial. Ruling was reserved as to whether petitioner is entitled to a hearing regarding his allegation that his confession was inadmissible because it was the result of physical and psychological coercion.

The constitutional requirement that in some circumstances a defendant is entitled as a matter of due process to a hearing on his competency to stand trial was brought to light in Pate v. Robinson, 383 U.S. 375, 384-386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). That case made clear that a certain quantum of evidence pointing toward present incompetency imposes upon the trial judge the constitutional duty to conduct a hearing as to the accused's competency. The standard of competency was stated in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960):

  "[T]he `test must be whether [the accused] 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.'"

The question which Robinson and Dusky require to be answered here is whether sufficient evidence of incompetency was before the trial judge so that his failure to conduct a competency hearing constituted an abuse of his discretion in the conduct of the proceedings and a denial of petitioner's constitutional right to a fair trial.

It is clear that a factual inquiry is necessary in order for this question to be answered. In the recent case of Heard v. United States, 263 F. Supp. 613, 617-618 (D.D.C. 1967), it was held that

  "insufficient evidence of mental incompetency
  existed at trial to raise a bona fide doubt
  requiring the trial court judge sua sponte to order
  a hearing."

The Heard decision is very close to the present case factually and in the legal issues presented. Heard involved a conviction for a narcotics violation, and the issue was raised there as to whether the accused's "recognized addiction to narcotics and other indications of mental aberration" required the trial court to order a competency hearing irrespective of the absence of any request. The court in Heard denied the motion under § 2255, finding that the petitioner had not presented enough evidence to raise a "bona fide doubt" of his competency. This standard of bona fide doubt appears to have been taken by the court from the Supreme Court opinion in Pate v. Robinson, 383 U.S. 375, at 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Although it is not fully clear that the Supreme Court intended to offer this as a standard, it appears to be an apt way of describing the factual determination which the trial judge must make in these cases.

In Heard the factual material presented by petitioner was held to amount to nothing more than

  "the bare fact of his recognized addiction to
  narcotics over a long period of years and certain
  nebulous allegations that his behavior at trial
  evidenced incompetency." 263 F. Supp. at 616.

This was not considered enough to justify a requirement that a competency hearing be held. The conduct of the accused in submitting to his attorney and the judge a list of doctors whom he desired to subpoena was described by the court as "action [which] demonstrated a reasonable degree of rational understanding both as to the proceedings against him and as to the tactical presentation of an insanity defense." Id. at 617.

In United States v. Tom, 340 F.2d 127 (2d Cir. 1965), a very similar result was reached, also on a narcotics conviction which was being attacked on a ยง 2255 motion. The court found, in a decision which antedated Pate v. Robinson, that the petitioner had failed to ...

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