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United States v. Perez

April 23, 2010

UNITED STATES OF AMERICA, APPELLEE
v.
FRANCIS PEREZ, APPELLANT



Appeal from the United States District Court for the District of Columbia (No. 1:07-cr-00013-JR-1)

The opinion of the court was delivered by: Griffith, Circuit Judge

Argued October 8, 2009

Before: GINSBURG, BROWN and GRIFFITH, Circuit Judges.

Francis Perez challenges his drug convictions on two grounds. He argues the district court erred by failing to order a hearing to evaluate his competency to stand trial, and he asserts that his trial counsel's performance fell short of what is required by the Sixth Amendment. We reject both arguments and affirm his conviction.

I.

On September 16, 2006, officers of the Metropolitan Police Department executed a search warrant for Perez's apartment and found him washing a white, powdery substance down his kitchen sink. The police discovered two kilograms of cocaine in the kitchen sink, on plates above the kitchen cabinets, and in a bag in the bedroom closet. The search also revealed acetone (a bleaching agent to whiten cocaine), an electronic scale, and approximately $3600 in cash. The police arrested Perez, and while in custody he admitted, "[T]hose drugs were given to me by a guy, [so] that I, sell it for the guy so I could help myself with something, because I can't work." Tr. of Interview of Perez at 12 (Sept. 16, 2006).

Perez pleaded guilty to possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii) (2006), and unlawful destruction, alteration, or concealment of tangible objects with intent to obstruct a federal investigation in violation of 18 U.S.C. § 1519. Pursuant to the plea agreement, Perez signed a proffer acknowledging that he had admitted his intent to sell the cocaine found in his apartment. Perez also waived the protection of Federal Rule of Evidence 410 by agreeing that his plea and the statements he made during the course of plea negotiations would be admissible against him in the event of a trial.

Against the advice of counsel, Perez moved to withdraw his guilty plea. His lawyer, who told the court the motion was ill-advised, suggested Perez had difficulty understanding "the evidence against him," Tr. at 11 (May 27, 2008), and "certain abstract concepts" such as "constructive possession and aiding and abetting," Tr. at 5, 7-8 (Jan. 24, 2008). He also speculated that Perez's desire to withdraw the plea might stem from "a lack of understanding of certain basic concepts or . . . a psychological impediment." Id. at 6.

For his own part, Perez remained, in the words of his counsel, "very firm" in his desire to withdraw his plea. Id. at 3. Perez told the court, "I was pressured into pleading guilty, and I wanted to take my case to trial. . . . I have a family, and I want to have a life with them. Six years [the low end of Perez's sentencing guideline range] will be a lot of time. . . . I know that what they found in the house was not mine. It belonged to someone else." Tr. at 12-13 (May 27, 2008). Perez also told the court he wished to withdraw his plea because the sentence under the plea would be "too much," and, in any event, the cocaine found in the apartment was not his. Tr. at 8 (Jan. 24, 2008).

The district court considered the matter during the course of three hearings before eventually granting the motion. Trial then began on May 28, 2008. Perez faced only the drug count because the government dropped the obstruction charge. The government put on evidence that the police found Perez in his apartment with cocaine, drug paraphernalia, and $3600 in cash, and that he admitted his intent to sell the drugs. The government also introduced Perez's proffer and guilty plea. Acting against his counsel's advice a second time, Perez asserted his right to testify. Just before he took the stand, Perez, frustrated by his attorney's handling of the case, asked the court to declare a mistrial: "My attorney told me last week that he wasn't prepared for trial, that he didn't have enough evidence and that he had not prepared for a trial. I need that evidence to be shown, and he doesn't have it in his hand." Tr. at 198 (May 29, 2008). Perez wanted his attorney to put on evidence that the cash found in the apartment was from the sale of his car and that he was leasing the apartment from its owner. In response, his counsel acknowledged that Perez "expressed a great deal of dissatisfaction with the way that this case has gone. He is very upset that certain testimony and certain items of evidence that he thought would be exculpatory have not been presented." Id. at 195. The district court refused to declare a mistrial.

Upon taking the stand, Perez testified that the cocaine was not his, but belonged instead to the owner of the apartment, who stayed there occasionally. He stated that the drugs found on top of the kitchen cabinets could not have been his because he could not reach that high due to his leg amputation. He also maintained that the money found in the apartment came from the sale of his car. To impeach Perez's credibility, the government offered evidence that he had been arrested again for selling cocaine, even after pleading guilty in this case.

The jury found Perez guilty, and the district court sentenced him to 97 months' imprisonment and 48 months' supervised release. We have jurisdiction over his appeal under 28 U.S.C. § 1291.

II.

Perez argues that the district court should have ordered a competency hearing. The Due Process Clause prohibits the trial of a person who lacks the mental capacity to participate in legal proceedings. See, e.g., Pate v. Robinson, 383 U.S. 375, 378 (1966). A criminal defendant is legally incompetent to stand trial if he lacks "a rational as well as factual understanding of the proceedings against him" or "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." Drope v. Missouri, 420 U.S. 162, 172 (1975); see United States v. Caldwell, 543 F.2d 1333, 1348 (D.C. Cir. 1975). In judging a defendant's ...


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