Opinion
S7 99 Cr. 1148 (LAP)
January 31, 2002
MEMORANDUM AND ORDER
Defendant Derrick Gabb ("Gabb") was tried on one count of conspiracy to distribute and possess with intent to distribute one kilogram and more of phencyclidine ("PCP") and one count of illegal re-entry into the United States. Gabb was convicted of both counts after a four-day bench trial. Gabb now moves pursuant to Rule 33 of the Federal Rules of Criminal Procedure for a new trial. For the reasons set forth below, Gabb's motion is denied.
BACKGROUND
On August 18, 2000, Gabb was indicted on one count of conspiracy to distribute and possess with intent to distribute more than one kilogram of PCP between in or about 1998 and on or about November 15, 1999, in violation of Title 21, United States Code, Sections 841(b)(1)(A) and 846, and one count of illegal re-entry into the United States, in the same time frame, after having been deported following the commission of an aggravated felony and without the consent of the Attorney General, in violation of Title 8, United States Code, Sections 1326(a) and (b)(2).
On September 14, 2000, in response to Gabb's request for a bench trial, the parties appeared before the Court. At the conference Gabb submitted a written waiver of his right to a jury trial. Gabb's counsel, Susan Wolfe, stated that she had discussed the issues with Gabb "at length." (Transcript of September 14, 2000 Conference, at 3). I questioned Gabb to assure that his waiver of this important constitutional right was knowing and voluntary. Specifically, Gabb indicated that he understood the following: (1) he had a right to a trial by jury; (2) the Government would have to prove each element of the offenses charged beyond a reasonable doubt and the jury's verdict would have to be unanimous; and (3) by waiving his right to a jury trial, Gabb would be choosing a trial before a single judge. (Id. at 3-4). I asked Gabb whether he had enough time to consider his decision to waive his constitutional right to a jury trial, to confer with his counsel and whether his counsel had answered all of his questions regarding the matter. The defendant responded "yes." (Id. at 4).
In addition, I asked Ms. Wolfe whether she knew of "any reason or ha[d] any doubts that the defendant [was] knowingly and voluntarily waiving his right to a jury trial." (Id.). She responded that she did not. (Id.). I found that Gabb had knowingly and voluntarily waived his right to a jury trial and that he was "competent to do so." (Id. at 5). As I stated on the record, I based my finding upon Gabb's responses to my inquiries and my observations of him on that day and on prior occasions. (Id.).
A four-day bench trial was conducted, commencing on October 3, 2000. At the conclusion of the trial, I found the sum of the evidence to be overwhelming and no credible evidence of Gabb's defenses. Thus, Gabb was found guilty beyond a reasonable doubt of the crimes charged.
On January 10, 2001, the Warden of the Metropolitan Correctional Center ("MCC") informed the Court via letter that Gabb had been prescribed psychiatric medication as a "medical necessity" and that the medication "may alter [his] courtroom behavior." (Affirmation of Susan C. Wolfe dated July 30, 2001 (hereinafter "Wolfe Aff."), Ex. C). On April 24, 2001, I ordered that Dr. Lauri Liskin be permitted to conduct a psychiatric evaluation of Gabb and to interview him at MCC.
According to Dr. Liskin's July 23, 2001 report, upon interviewing Gabb and reviewing his medical and psychiatric records she concluded that, prior to and during his trial, he was suffering from psychiatric illness that prevented him from being able to assist in his own defense. (Id., Ex. A). Dr. Liskin asserted that the illness related to Gabb's chronic use and discontinuation of PCP, marijuana and alcohol, along with his chronic pain disorder caused by two separate gunshot wounds Gabb sustained to his neck and face in 1994 and 1998. (Id. at 2-3). Dr. Liskin stated that "[w]hile [Gabb] was not formally diagnosed with any significant psychiatric disorder until November 2000, it is likely, given his history of chronic substance use, untreated pain, and personality characteristics, that he was suffering from psychiatric symptoms long before. . . . Mr. Gabb was not able to work with either of his attorneys, and could not assist in his defense as result [sic] of his mental illness." (Id. at 15). The psychiatric symptoms from which Gabb suffered included "paranoia, poor concentration, agitation, and rigid thought processes." (Id. at 3).
On July 30, 2001, Gabb filed the current motion for a new trial under Rule 33. Gabb argues that his motion is supported by newly discovered evidence of his physical and psychological condition prior to and during his trial, which rendered him incapable of assisting in his defense and unfit to stand trial.
DISCUSSION
Under Rule 33 of the Federal Rules of Criminal Procedure, a timely motion for a new trial may be granted "if the interests of justice so require." Rule 33 specifically provides that "newly discovered evidence" may provide the basis for such a motion. "A motion for a new trial based on newly discovered evidence is not favored and a district court must exercise great caution . . . and may grant the motion only in the most extraordinary circumstances." United States v. Petrillo, 237 F.3d 119, 123 (2d Cir. 2000) (citation omitted) (emphasis in original). In the case of newly discovered evidence, the court may provide relief only where the defendant makes a showing that the evidence could not have been discovered, in the exercise of due diligence, before or during trial. United States v. Spencer, 4 F.3d 115, 118 (2d Cir. 1993).
"Requiring that a criminal defendant be competent has a modest aim: it seeks to ensure that he has the capacity to understand the proceedings and to assist counsel." Godinez v. Moran, 509 U.S. 389, 402 (1993); see also 18 U.S.C. § 4241(d) (a defendant may be found incompetent if "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"). To be competent to stand trial, a defendant need only have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "a rational as well as factual understanding of the proceedings against him." United States v. Nichols, 56 F.3d 403, 410 (2d Cir. 1995) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)).
Gabb is not entitled to a new trial pursuant to Rule 33. Gabb was obviously aware that he allegedly suffered from chronic pain prior to and during the course of his trial, even if his counsel was not. It cannot be said, therefore, that this information is "newly discovered" pursuant to the requirements of Rule 33.
Ms. Wolfe asserts in her affirmation that "[e]ither shortly before or during trial, Mr. Gabb mentioned his constant physical pain to me on one or, at most, two occasions." (Wolfe Aff. ¶ 6). This assertion, however, appears directly contrary to Dr. Liskin's statement in her report that "[b]oth of [Gabb's] attorneys were struck by his repetitive complaints of pain." (Id., Ex. A, at 16).
With respect to the psychotic illness from which Gabb purportedly suffered, Gabb's suggestion that this illness prevented him from assisting in the preparation of his defense is undermined by the silence of his counsel during that time. Ms. Wolfe has represented Gabb in connection with this matter since July 2000. Ms. Wolfe succeeded Gabb's initial counsel, Avi Moskowitz, after, according to Ms. Wolfe, "relations between Mr. Gabb and his prior attorney . . . broke down." (Wolfe Aff. ¶ 3). But neither Mr. Moskowitz nor Ms. Wolfe — both of whom are experienced and competent trial counsel — ever notified the Court of any concerns they may have had regarding Gabb's ability to assist in his own defense, either prior to or during Gabb's trial. "[S]ince incompetency involves an inability to assist in the preparation of a defense or rationally to comprehend the nature of the proceedings, failure by trial counsel to indicate the presence of such difficulties provides substantial evidence of the defendant's competence." United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986); see also United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (same).
The focus of a competence inquiry is an assessment of the defendant's ability to consult with his lawyer and to understand the proceedings. Godinez, 509 U.S. at 396, 401 n. 12. The fact that a defendant is a difficult client or chooses not to cooperate fully with his counsel due to a lack of trust or any other reason does not render him incompetent under the law. See, e.g., United States v. Grimes, 173 F.3d 634, 636 (7th Cir. 1999) (evidentiary hearing to determine defendant's competence not required; noting there was nothing unusual when a defendant is "suspicious of his lawyers," has trouble concentrating, or suffers from depression for which he takes Prozac); United States v. Leggett, 162 F.3d 237, 243 (3d Cir. 1998) (noting that the "district court advisedly refrained from reading a competency issue into the mere incompatibility of a defendant and one particular lawyer").
Also important in the assessment of a defendant's competence is the Court's opportunity to observe his demeanor. See, e.g., Kirsh, 54 F.3d at 1070 ("[T]he district court's view of the defendant's competency based on its observations at trial is entitled to deference."); United States v. Solomon, No. 95 Cr. 154 (LAP), 1997 WL 232523, at *10 (S.D.N.Y. May 8, 1997) (rejecting defendant's claim that he did not knowingly waive his right to counsel and finding defendant mentally competent where the Court had ample opportunity to observe the defendant when he decided to proceed pro se and during trial); Nichols, 56 F.3d at 411 (finding that the trial judge "was entitled to rely on his own observations and questioning of [the defendant], as he expressly did in making his final finding of competency").
I have had numerous opportunities to observe Gabb interact with counsel and the Court. I observed him especially closely on September 14, 2000, the date of the hearing in which I considered his request to waive his right to a jury trial. At that hearing, I questioned Gabb extensively to assure that his waiver was knowing and voluntary. His answers to those questions, which are entitled to a strong presumption of truth, United States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992) (citing Blackledge v. Allison, 431 U.S. 63, 74 (1977)), undermine his current contention that he was not competent at that time. Further, I paid close attention to Gabb during the entirety of his four-day bench trial. At no time did I perceive him to have any difficulty understanding the proceedings at trial, nor did I note anything to suggest that he was incapable of assisting counsel in his own defense. To the contrary, he appeared to be fully aware of the proceedings and to communicate frequently with counsel. For example, at the beginning of one of the trial days, Ms. Wolfe noted that Gabb was concerned because some of the legal papers he had brought with him to court had been taken by the Marshals and Gabb believed they had not been returned. (Trial Transcript dated October 4, 2000, at 169). Following Ms. Wolfe's notice, I consulted with the Marshals to remedy the problem. This is only one example of Gabb's active engagement in his case and ability to consult with his attorney.
Dr. Liskin's report of July 23, 2001, which asserts that Gabb was "unfit to proceed to trial in October 2000," does not alter my conclusion. The report, which was based upon her interview with Gabb and her review of his medical and psychiatric records, is dated nearly ten months after the completion of Gabb's trial. She did not meet with Gabb for the first time until April 26, 2001 — nearly seven months after Gabb's trial. Accordingly, the report is not "sufficiently reliable to undermine the Court's contemporaneous assessment of the defendant's competency." Collazo v. United States, No. 98 Civ. 7059 (DLC), 1999 WL 335146, at *4 (S.D.N.Y. May 26, 1999) (rejecting reliability of report submitted more than a year after the defendant's guilty plea was entered); Pate v. Robinson, 383 U.S. 375, 387 (1966) (competence cannot be precisely assessed retrospectively).
CONCLUSION
Gabb's motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure based upon newly discovered evidence is denied.
SO ORDERED.