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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br>                       ____________________ <br> <br> <br>No. 99-1403 <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>               JOSELITO ABREU, a/k/a JOSE A. LORA, <br>                                 <br>                     Defendant, Appellant. <br>                                 <br>                      ____________________ <br>                                 <br>                                 <br>          APPEAL FROM THE UNITED STATES DISTRICT COURT <br>                                 <br>                FOR THE DISTRICT OF RHODE ISLAND <br>                                 <br>          [Hon. Ernest C. Torres, U.S. District Judge] <br>                                 <br>                      ____________________ <br>                                 <br>                             Before <br>                                 <br>                     Torruella, Chief Judge, <br>                 Coffin, Senior Circuit Judge,  <br>                   and Lynch, Circuit Judge. <br>                                 <br>                      ____________________ <br>                                 <br>                                 <br>  Thomas G. Briody for appellant. <br>  Donald C. Lockhart, Assistant U.S. Attorney, with whom <br>Margaret E. Curran, United States Attorney, and Zechariah Chafee, <br>Assistant U.S. Attorney, were on brief, for appellee. <br> <br>                       ____________________ <br>                         January 31, 2000 <br>                       ____________________

  LYNCH, Circuit Judge.  This case concerns the <br>administration of justice for indigent defendants under the <br>Criminal Justice Act, 18 U.S.C.  3006A.  More particularly, it <br>concerns applications by indigent defendants for government funding <br>of expert services "necessary for adequate representation."  18 <br>U.S.C.  3006A(e)(1).  Because the district court violated the <br>provision of this statute providing that such applications be heard <br>ex parte, we vacate and remand. <br>  Joselito Abreu pled guilty to possession with intent to <br>distribute over 500 grams of cocaine in violation of 21 U.S.C. <br> 841(a)(1) and (b)(1)(B).  Abreu is a citizen of the Dominican <br>Republic and required the assistance of an interpreter throughout <br>the legal proceedings.  He has a history of small criminal offenses  <br>and, in this case, was caught with about $30,000 worth of cocaine <br>and related paraphernalia in his apartment.  After his arrest, the <br>Justice Department notified the facility in which he was being held <br>that "Abreu had some suicidal and mental health concerns."  During <br>his initial screening at the facility, Abreu indicated that he had <br>attempted suicide the night before.  <br>  In preparation for Abreu's change of plea hearing, his <br>court-appointed counsel asked him whether he was taking a certain <br>medication.  Abreu said he was; however, the nurse at the detention <br>facility said Abreu was not taking the medication and had not been <br>doing so for several weeks.  When asked about the medication at the <br>plea hearing, Abreu contradicted the nurse and said that he had <br>taken the medication "[a]bout four days ago" (although he <br>maintained that this medication did not affect his ability to make <br>a plea).  When asked by the court whether he had been read the <br>indictment, Abreu said he could not remember and that he sometimes <br>had problems remembering things.  <br>  Concerned about these facts, about Abreu's difficulties <br>in understanding certain things, and about inconsistent statements <br>Abreu made to him (that counsel felt were protected by the <br>attorney-client relationship), Abreu's counsel sought an evaluation <br>by a licensed psychologist before sentencing.  Because Abreu is <br>indigent, counsel utilized the procedure set forth in 18 U.S.C. <br> 3006A and filed an ex parte application for the funding of expert <br>services.  The sum sought was $550.  Counsel represented that while <br>he believed there was a basis to seek a psychological evaluation, <br>it was not clear whether such an evaluation would support a request <br>for a downward departure for "diminished capacity" under U.S.S.G. <br> 5K2.13.  If the evaluation did, counsel indicated that he might <br>seek such a departure at sentencing.  If it did not, he would not. <br>  The district court first held an ex parte hearing to <br>determine whether it should consider the application ex parte.  It <br>determined that it would not.  At the court's direction, counsel <br>for Abreu then refiled the application for funding with notice to <br>the government and the government filed an opposition.  The <br>district court held a hearing at which the government was present.  <br>Because the government was present, defense counsel declined to <br>place on the record certain confidential matters that formed part <br>of the basis for the application.  The court denied the request for <br>services.  The defense, deprived of the expert examination it had <br>requested, did not argue for a lesser sentence on the basis of <br>diminished mental capacity.  Abreu was eventually sentenced to 70 <br>months imprisonment.  He now appeals. <br>  This court has appellate jurisdiction over  3006A <br>determinations that impact a defendant's trial or sentence.  See <br>United States v. Manning, 79 F.3d 212, 218-19 (1st Cir. 1996) <br>(reviewing a district court's denial of a request for expert <br>services for trial under  3006A); United States v. Mateos-Sanchez, <br>864 F.2d 232, 239-40 (1st Cir. 1988) (reviewing a district court's <br>decision to deny travel expenses requested under  3006A for the <br>purpose of interviewing potential witnesses); see also United <br>States v. Bloomer, 150 F.3d 146, 149 (2d Cir. 1998) (noting that <br>appellate review is available for  3006A determinations "that <br>impact a defendant's trial, sentence, or collateral challenge to a <br>conviction or sentence"). <br>  Abreu says that the district court violated the plain <br>terms of the statute -- which requires that applications for such <br>funding by indigent defendants be handled ex parte -- and requests <br>that the matter be remanded for reconsideration ex parte; <br>alternatively, Abreu says that the court should review and reverse <br>the district court's ultimate determination that his request for <br>the $550 expenditure was not necessary. <br>  The prosecution does not concede that the application was  <br>required to be heard ex parte by the statute, but neither does it <br>defend the trial court's decision to make the application the <br>subject of an adversary proceeding.  At oral argument, the <br>government said it had initially considered requesting a limited <br>remand so that the court could hear ex parte the additional <br>information that Abreu's counsel viewed as confidential and <br>reconsider the matter.  The government decided to contest the <br>matter, however, since, it argues, a remand is not necessary <br>because there was, in the end, no prejudice to the defendant.  <br>There was no prejudice, the government says, because it was clear <br>from the record and from the judge's own observations that the <br>defendant would never have been able to meet the high threshold <br>necessary for a "diminished capacity" adjustment.  See U.S.S.G. <br> 5K2.13; see also United States v. Nuez-Rodriguez, 92 F.3d 14, 24 <br>(1st Cir. 1996). <br>  The government's first instincts were correct.  We think <br>it premature to reach the question of prejudice or the merits of <br>the decision to deny funding.  As to the government's argument that <br>we should overlook any problem, it is true, as the government says, <br>that review of the merits of such a  3006A decision is <br>deferential.  See Manning, 79 F.3d at 218 ("A district court's <br>denial of a request for such [expert] services [under  3006A] is <br>reviewed only for an abuse of discretion.").  But because the trial <br>court did not follow the required procedures, material information <br>is not in the record and reaching the merits would be <br>inappropriate. <br>  The district court committed error in refusing to <br>entertain the application ex parte under 18 U.S.C.  3006A(e)(1).  <br>The statutory provision says: <br>    (e)  Services other than counsel. -- <br>             (1)  Upon request. -- Counsel for a person who is <br>         financially unable to obtain investigative, <br>         expert, or other services necessary for <br>         adequate representation may request them in <br>         an ex parte application.  Upon finding, <br>         after appropriate inquiry in an ex parte <br>         proceeding, that the services are necessary <br>         and that the person is financially unable to <br>         obtain them, the court . . . shall authorize <br>         counsel to obtain the services. <br> <br>18 U.S.C.  3006A(e)(1).  Although the statute expressly provides <br>that the proceeding be ex parte, the district court found the <br>statute's language to be "very ambiguous."  The judge did not <br>explain why he viewed this language as ambiguous.  At the adversary <br>hearing, the court simply said that "it just didn't seem to make <br>sense" to hear the application ex parte where "the Defendant had <br>already pled guilty, and what we were dealing with was a sentencing <br>issue." <br>  The distinction the district court drew, for  3006A <br>purposes, between sentencing and trial strikes us as unsound.  To <br>our knowledge, no reported decision has held that the ex parte <br>provisions of  3006A do not apply to the sentencing stage, and the <br>government does not argue that  3006A does not apply to <br>sentencing.  Further, nothing in the statute limits its <br>applicability to pre-sentencing proceedings.  Rather, the statutory <br>structure indicates that it does apply. Subsection (e) refers to <br>services "necessary for adequate representation."  18 U.S.C. <br> 3006A(e)(1).  Under the statute, appointed counsel represent <br>indigent clients through sentencing and beyond.  In fact, <br>subsection (c) of the statute, provides that: <br>    A person for whom counsel is appointed shall be <br>  represented at every stage of the proceedings from his <br>  initial appearance before the United States magistrate or <br>  the court through appeal, including ancillary matters <br>  appropriate to the proceedings. . . . <br> <br>18 U.S.C.  3006A(c).  The legislative history associated with this <br>provision reaffirms that "adequate representation" requires support <br>throughout all phases of the proceedings:  "This provision <br>[subsection (c)] is necessary to insure that the rights of the <br>person are fully protected.  Many times remedies technically <br>outside the scope of the trial proper may be necessary . . . ."  <br>H.R. Rep. 91-1546 (1970), reprinted in 1970 U.S.C.C.A.N. 3982, <br>3989; see also H.R. Rep. 88-864 (1963), reprinted in 1964 <br>U.S.C.C.A.N. 2990, 2992 ("[A] defendant is entitled to <br>representation by counsel at every stage of the proceedings, from <br>his initial appearance through appeal.").  Thus, reading the <br>statute as a whole, it appears that Congress intended the <br>provisions of subsection (e) to apply to sentencing.  While other <br>circuits have assumed this to be so, see e.g., Bloomer, 150 F.3d at <br>148 (noting that "applications for appointment of an expert are ex <br>parte and nonadversarial" in a case where expert fees for testimony <br>at re-sentencing were sought); United States v. Roman, 121 F.3d <br>136, 143 (3d Cir. 1997) (reviewing a  3006A application for a <br>psychiatric evaluation to aid in requesting a downward departure at <br>sentencing); United States v. Harden, 70 F.3d 1263 (unpublished <br>table decision), in 1995 WL 703543, at *1 (4th Cir. 1995) (same); <br>United States v. Smith, 987 F.2d 888, 891 (2d Cir. 1993) (same), it <br>appears that this may be the first circuit opinion to so hold.  It <br>was error for the district court to conclude that the "ex parte <br>proceeding" language of subsection (e) did not apply to sentencing. <br>  Nor do we see any ambiguity at all in subsection (e)'s <br>use of the term "ex parte."  The statute says plainly that <br>proceedings and applications should be ex parte.  The text is not <br>ambiguous in any sense and the meaning of "ex parte proceeding" is <br>well established.  See, e.g., United States v. Meriwether, 486 F.2d <br>498, 506 (5th Cir. 1973).  Black's Law Dictionary defines it as a <br>"proceeding in which not all parties are present or given the <br>opportunity to be heard."  Black's Law Dictionary 1221 (7th ed. <br>1999).  It further defines "ex parte" as "[d]one or made at the <br>instance and for the benefit of one party only, and without notice <br>to, or argument by, any person adversely interested."  Id. at 597.  <br>  This lack of ambiguity is underscored by provisions in <br>the Guide to Judiciary Policies and Procedures, promulgated <br>pursuant to  3006A(h), which says that the Judicial Conference of <br>the United States "may, from time to time, issue rules and <br>regulations governing the operation of plans formulated under this <br>section."  18 U.S.C.  3006A(h).  The Guide provides: <br>    Ex parte applications for services other than counsel <br>  under subsection (e) shall be heard in camera, and shall <br>  not be revealed without the consent of the defendant.  <br>  The application shall be placed under seal until the <br>  final disposition of the case in the trial court, subject <br>  to further order of the court.  Maintaining the secrecy <br>  of the application prevents the possibility that an open <br>  hearing may cause a defendant to reveal his or her <br>  defense. <br> <br>7 Administrative Office of the United States Courts, Guide to <br>Judiciary Policies and Procedures, ch. III, pt. A,  3.03. <br>  This is consistent with the legislative history, which <br>states that an ex parte proceeding is provided for in subsection <br>(e) so as to "prevent[] the possibility that an open hearing may <br>cause a defendant to reveal his defense."  H.R. Rep. No. 88-864 <br>(1963), reprinted in 1964 U.S.C.C.A.N. 2990, 2990; see United <br>States v. Gonzales, 150 F.3d 1246, 1258 n.16 (10th Cir. 1998).   <br>  The circuit courts have recognized the importance of such <br>applications being ex parte in trial proceedings.  In United States <br>v. Sutton, 464 F.2d 552 (5th Cir. 1972), the court reversed a <br>conviction where the trial court heard a request for an <br>investigator under  3006A(e) in the presence of the prosecution, <br>saying "[t]he ex parte requirement could hardly be expressed in <br>clearer language."  Id. at 553.  And in Marshall v. United States, <br>423 F.2d 1315 (10th Cir. 1970), the court reversed the judgment <br>where a  3006A(e) application was heard in an adversarial <br>proceeding, noting that "[t]he manifest purpose of requiring that <br>the inquiry be ex parte is to insure that the defendant will not <br>have to make a premature disclosure of his case."  Id. at 1318; see <br>also Lawson v. Dixon, 3 F.3d 743, 751 (4th Cir. 1993) (stating that <br> 3006A "has been interpreted as virtually guaranteeing that <br>decisions on expert-appointment motions will be made, as that <br>statute requires, 'after appropriate inquiry in an ex parte <br>proceeding'"); United States v. Chavis, 476 F.2d 1137, 1144 (D.C. <br>Cir. 1973) ("We agree that the statutory scheme means that not to <br>provide an opportunity for an ex parte hearing on the matter does <br>constitute error."). <br>  While evidentiary rules at sentencing may be relaxed, <br>see, e.g., United States v. Cetina-Gomez, 951 F.2d 432, 435 (1st <br>Cir. 1991), sentencing is still an adversarial proceeding, see <br>Burns v. United States, 501 U.S. 129, 135 (1991) (noting that the <br>Federal Rules of Criminal Procedure "contemplate[] full adversary <br>testing of the issues relevant to a Guidelines sentence"); United <br>States v. Pellerito, 878 F.2d 1535, 1544 (1st Cir. 1989).  <br>Defendants do not give up their Fifth Amendment rights at <br>sentencing.  See United States v. Montilla-Rivera, 115 F.3d 1060, <br>1065 (1st Cir. 1997).  Given the extent to which sentencing <br>determines a defendant's liberty, it is just as crucial that the <br>defendant have a fair opportunity to marshal a defense at the <br>sentencing phase as at any other phase of the criminal proceedings.  <br>In fact, the Supreme Court, in a capital case, has said that due <br>process requires that, where "the defendant's mental condition [is] <br>relevant to his criminal culpability and to the punishment he might <br>suffer," the government provide to indigent defendants expert <br>psychiatric testimony at "the sentencing phase."  Ake v. Oklahoma, <br>470 U.S. 68, 80, 83-84 (1985). <br>  There is another principle at stake: fair treatment of <br>indigents.  Defendants who are able to fund their own defenses need <br>not reveal to the government the grounds for seeking a psychiatrist <br>who might potentially testify at sentencing.  To require indigent <br>defendants to do so would penalize them for their poverty.  The <br>words of Judge Aldrich in an opinion of this court more than thirty <br>years ago still hold true: <br>    [W]e would regard the purpose of the . . . rule as <br>  apparent on its face to be in recognition of the <br>  principle that defendants are not to be avoidably <br>  discriminated against because of their indigency. <br> <br>Holden v. United States, 393 F.2d 276, 278 (1st Cir. 1968) <br>(construing the requirement in Rule 17(b) that subpoenas issue on <br>an ex parte application of a defendant). <br>  The district court was in error in not handling the <br>entire application on an ex parte basis.  The scope of the remand <br>is narrow.  The district court must hear ex parte any matters that <br>have not already been presented by counsel and then reconsider <br>whether it should grant the application.  The only new matters that <br>counsel may present are those he refrained from presenting before <br>on grounds of privilege or confidentiality.  If the court decides <br>to grant the application, then counsel for defendant must advise <br>the district court, after the psychological examination, whether <br>Abreu seeks re-sentencing.  If the court denies the application, <br>then a sentence of the same term as the original sentence will be <br>reinstated.  If Abreu wishes to take an appeal from the denial of <br>the application at that point, he must file a new notice of appeal.  <br>In the interim, the sentence is vacated and the case remanded for <br>further proceedings in light of this opinion. <br>  So ordered.</pre>

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