                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-9-1998

United States v. Haywood
Precedential or Non-Precedential:

Docket 97-1652




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Recommended Citation
"United States v. Haywood" (1998). 1998 Decisions. Paper 218.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/218


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Filed September 9, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-1652

UNITED STATES OF AMERICA

v.

JAZZ HAYWOOD

       JAZZ HAYWOOD a/k/a
       TORRIE GRAHAM,
       Appellant

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. Action No. 94-cr-00497-8)

Argued: June 9, 1998

BEFORE: STAPLETON, COWEN and RENDELL,
Circuit Judges

(Opinion Filed September 9, 1998)

       Stephen J. Britt (Argued)
       Assistant U.S. Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106
        Attorney for Appellee

       Mark D. Mungello (Argued)
       103 LaCosta Drive
       Blackwood, NJ 08012
        Attorney for Appellant
OPINION OF THE COURT

STAPLETON, Circuit Judge:

Jazz Haywood was convicted of conspiring to distribute
heroin and distributing heroin within 1000 yards of a
school. On direct appeal, Haywood seeks a new trial on the
grounds that he was denied effective assistance of counsel.
Haywood also argues that the government failed its burden
of proof concerning the amount of drugs attributable to him
and that the court erred by failing to order a hearing sua
sponte on his competence to stand trial. We will affirm with
respect to the ineffective assistance and sufficiency of the
evidence claims but remand based on the court's failure to
order a competency hearing.

I.

In 1992, the federal Drug Enforcement Agency initiated
an investigation of an alleged heroin distribution ring, the
"Nissan Heroin Organization" ("NHO"), and began
surveillance of the corner of Birch and Hancock Streets in
Philadelphia. On December 17, 1992, a DEA Agent
purchased 19 packets of heroin from appellant Haywood at
that location. Two years later, a federal grand jury indicted
24 people in a 51-count indictment. The indictment alleged
that Haywood was a "shift worker" in a structured heroin
distribution organization and charged him with conspiracy
to distribute heroin in violation of 21 U.S.C. S 846,
distribution of heroin in violation of 21 U.S.C.S 841(a)(1),
and distribution of heroin within 1000 feet of an elementary
school in violation of 21 U.S.C. S 860.

Haywood was arrested and trial was scheduled for April
1996. On April 1, Haywood exhibited psychiatric problems
while awaiting trial at the Federal Correction Center in
Fairton, New Jersey. The Fairton staff psychologist
examined Haywood and concluded that he had "a psychotic
condition that has become worse since October 1995 and is
in need of attention in an acute forensic psychiatric
setting." App. at 17. Consequently, the United States

                               2
Marshal's Service moved Haywood to the Philadelphia
Detention Center. Haywood's trial counsel, James Garrett,
informed the United States Attorney's Office that Haywood
was on "suicide watch" at the Detention Center and that, in
his opinion, Haywood was unable to participate in his own
defense.

In response to these developments, the government asked
the district court to order a competency examination for
Haywood, and the court complied. On April 15 1996, the
examining physician, Dr. Edward B. Guy, diagnosed
Haywood as having schizophrenia and determined that he
was not then competent to assist in his defense. Dr. Guy
reported the following observations:

       During my evaluation, Mr. Haywood was very
       withdrawn, had great difficulty concentrating, and was
       a poor historian.

       He complained that he was hearing accusatory voices
       who were telling him to harm himself.

       He was very distracted during the interview and
       seemed to be responding to internal stimuli at times.

       He does not express any organized delusional system,
       but he is suspicious and fearful that he is going to be
       harmed.

       Mr. Haywood was not able to give abstract answers to
       proverbs and he also did poorly on similarity questions.

       He was so withdrawn that he could not participate in
       much of the mental status examination and it was
       difficult for me to maintain his focus on the questions
       I was asking. He does understand that he is in prison.
       He understands that he is charged by federal
       authorities on a drug charge, but he did not seem to
       know the details. At the same time, he understands the
       possible consequences of these charges to him, and he
       was able to answer questions about the functions of
       the various participants in a criminal trial situation.

       At the same time, his general functioning is
       compromised by his mental illness and his
       distractibility. I feel that his attorney will have difficulty

                               3
       in working with him at this time in the preparation of
       a defense.

App. at 24-25. Dr. Guy also opined, however, that Haywood
could "regain his competence with intensive treatment."
App. at 25.

Dr. Guy served as Program Director of the Hahnemann
University Correctional Mental Health Services Program. On
his recommendation, Haywood was transferred to the
Program's Inpatient Psychiatric Unit in the Philadelphia
Prison System for treatment and observation. The court
ordered a continuance of the trial.

On May 20, again on the government's motion, the court
ordered another competency examination. In a letter dated
that day and addressed to the trial judge, Dr. Guy reported
that Haywood was still suffering from schizophrenia, that
he was being treated daily with substantial doses of
antipsychotic medication, and that he purported to lack an
understanding of his legal circumstances. Dr. Guy also
reported, without further explanation, that Haywood's
attorney could expect "considerable frustration in trying to
defend this young man." App. at 28. Nevertheless, Dr.
Guy's professional opinion at that time was that Haywood
"had a clearer understanding of his legal circumstances
than he was willing to admit" (App. at 27) and that he was
"competent to proceed" (App. at 28). The report concluded
with the recommendation that Haywood's then current
"treatment continue into the foreseeable future in order
that he maintain his present level of functioning." Id.

The trial commenced nine weeks later without any
further inquiry into Haywood's mental state. During trial,
the court asked Haywood's counsel whether the defense
intended to offer evidence. The following colloquy ensued:

       MR. GARRETT: . . . My client has told me that he is in
       no shape to testify.

       THE COURT: Very well. So, he's not going to testify?

       MR. GARRETT: No, he's not.

       THE COURT: Very well. All right.

App. at 30-31; N.T. 7/24/96 at 71-72.

                                4
The jury returned a guilty verdict on the conspiracy and
"schoolyard" counts on July 25, 1996. Within a week,
Haywood's counsel filed a motion for a new trial. In that
motion, counsel represented that "Mr. Graham's
psychological profile on the days of trial was such that he
could not effectively participate in the defense of his case."
Appellant's Br. at 8; Def.'s Mot. for Judgment of Acquittal
or for a New Trial at P5. Despite counsel's representations
to the court, at no time did he move for a competency
hearing; nor did the court ever order such a hearing on its
own motion.

In preparing the Presentence Investigation (PSI) Report,
the probation officer estimated the total amount of drugs
sold during the 25-month conspiracy and allocated the
sales to the individual defendants according to a
mathematical formula.1 In Haywood's case, the officer
determined that Haywood was a member of the conspiracy
for about 5-6 months, and that his shift distributed about
980 grams of heroin during that time period. Accordingly,
the PSI Report recommended that Haywood be sentenced to
210-262 months imprisonment. Paragraph 123 of the PSI
Report stated that there were no factors warranting a
downward departure.

Haywood's counsel moved for a downward departure for
significantly reduced mental capacity pursuant to USSG
S 5K2.13.2 In attempting to determine whether Haywood
_________________________________________________________________

1. Paragraph 52 of the PSI Report explained:

       Based on the evidence (buys, surveillance, video and audio
       recordings, proffers), it is estimated that the Nissan Heroin
       Organization sold approximately 700 bundles of heroin weekly. The
       following weekly sales percentages have been adduced through
       extrapolation, as to each individual shift: . . . night shift, 28%
or
       196 bundles . . . .

Each bundle contained 10 to 12 packets; each packet contained
approximately 0.025 grams of heroin. PSI Rep. at 2 n.1.
2. USSG S 5K2.13 provides:

       If the defendant committed a non-violent offense while suffering
       from significantly reduced mental capacity not resulting from
       voluntary use of drugs or other intoxicants, a lower sentence may
be
       warranted to reflect the extent to which reduced mental capacity
       contributed to the commission of the offense, provided that the
       defendant's criminal history does not indicate a need for
       incarceration to protect the public.
5
indeed suffered from a significantly reduced mental
capacity at the time of the offense, the court considered a
psychiatric report made contemporaneously with the date
of the offense. On October 30, 1992, Dr. Richard Saul
observed that Haywood's social adjustment was within
acceptable limits and that he was oriented as to time,
person, and place. Nonetheless, Dr. Saul diagnosed
Haywood as suffering from a "Schizoid Personality Disorder"
and described his prognosis as guarded. Suppl. App. at 27-
28.

The district court found that Haywood had established by
a preponderance of the evidence that he suffered from a
significantly reduced mental capacity at the time of his
offense. However, it also found that Haywood had not
shown that such reduced capacity contributed to the
commission of the offense. Consequently, the district court
reserved a ruling on the motion "pending a hearing and in
anticipation of Dr. Guy's, Dr. Saul's or another expert's
testimony regarding the likelihood that Schizoid Personality
Disorder contributed to defendant's offense." App. at 34.

Haywood's counsel did not present the court with expert
reports on the reduced capacity departure issue. He did
present lay witnesses, Haywood's mother and his aunt, at
the sentencing hearing who testified that Haywood had
been afflicted with mental and emotional problems for
much of his life. In its ensuing order, the district court
made the following finding: "Based on Dr. Guy's two reports
and my own observations, I conclude the defendant was
suffering from a significantly reduced mental capacity at
the time of trial." App. at 33. Nonetheless, the court also
concluded that there was an insufficient showing of a
nexus between Haywood's mental affliction and his offense,
and denied the downward departure. The court sentenced
Haywood to 210 months of imprisonment.

Haywood appeals his sentence, asserting that his counsel
was ineffective because he failed to: (1) argue that Haywood
was incompetent to stand trial; (2) present expert testimony
that Haywood suffered from a significantly reduced mental
capacity that contributed to his commission of the offense;
and (3) object to statements in the PSI Report regarding the
amount of drugs attributable to Haywood. Relatedly,

                               6
Haywood argues that the government failed to prove by a
preponderance of the evidence the amount of drugs
attributable to Haywood. Finally, Haywood assigns as error
the trial court's failure to conduct a competency hearing
pursuant to 18 U.S.C. S 4241.

II.

Claims of ineffective assistance of counsel generally are
not entertained on direct appeal. See United States v.
Theodoropoulos, 866 F.2d 587, 598 (3d Cir. 1989),
overruled on other grounds by United States v. Price, 76
F.3d 526 (3d Cir. 1996). We have repeatedly held that "the
proper avenue for pursuing such claims is through a
collateral proceeding in which the factual basis for the
claim may be developed." Id. "There is, however, a narrow
exception to the rule that defendants cannot attack the
efficacy of their counsel on direct appeal. Where the record
is sufficient to allow a determination of ineffective
assistance of counsel, an evidentiary hearing to develop the
facts is not needed." United States v. Headley, 923 F.2d
1079, 1083 (3d Cir. 1991); see also Theodoropoulous, 866
F.2d at 598.

Nonetheless, Haywood's ineffective assistance claims do
not fall within this exception. At oral argument, Haywood's
counsel conceded that there is not enough information in
the record upon which we could base a judgment of trial
counsel's performance. We find this concession well-advised
and thus affirm Haywood's conviction regarding his
ineffective assistance claims. This disposition leaves
Haywood free to pursue these claims in a habeas corpus
proceeding under 28 U.S.C. S 2255.3
_________________________________________________________________

3. Although Haywood has asked us to remand the case so that the
district court might create a "fuller record" on the ineffective
assistance
claims, see Appellant's Br. at 8,16,18, our case law establishes that this
would be an inappropriate disposition. See Theodoropoulos, 866 F.2d at
598.

                                7
III.

At oral argument, Haywood's counsel advanced the claim
that the government failed to prove by a preponderance of
the evidence that 980 grams of heroin were attributable to
Haywood. Although ordinarily we do not entertain
arguments raised for the first time at oral argument,
Haywood's belief that "there was no evidence in existence
from which the Government could have proven by a
preponderance of the evidence that Mr. Haywood was
involved in the Nissan Heroin Organization (NHO) for a
period of 5 to 6 months" was the explicit premise of one of
his claims for ineffective assistance of counsel. Appellant's
Br. at 17. Therefore, we will consider this argument.

Pursuant to the Federal Rules of Criminal Procedure, a
district court, at a sentencing hearing, may accept the
presentence report as its findings of fact. Fed. R. Crim.
Proc. 32(b)(6)(D). At the same time, the Rules afford a
defendant numerous opportunities to object to the report's
findings and recommendations. E.g., Fed. R. Crim. Proc.
32(b)(6)(B). At the sentencing hearing, the district court
must rule on any unresolved objections to the presentence
report. The court must either make a finding on the issue
or determine that no finding is necessary because it will not
rely upon the controverted matter in sentencing the
defendant. Fed. R. Crim. Proc. 32(c)(1).

The record reveals that at the sentencing hearing, the
court asked Haywood and his counsel whether they had
"any objections or comments on the presentence report."
Sentencing Tr. at 14. Haywood's counsel responded that
they had both reviewed it and that "it appeared to be
correct." Id. Accordingly, the court adopted the factual
findings and guideline application in the PSI Report.

As we have previously held, "Information used as a basis
for sentencing under the Guidelines must have `sufficient
indicia of reliability to support its probable accuracy.'"
United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993).
We find that the information contained in the PSI Report
contained the requisite indicia of reliability, and the court
was thus justified in relying upon it as well as counsel's
representations as to its accuracy. Regarding the amount of
drugs attributable to Haywood, the PSI Report stated:

                               8
       Jazz Haywood . . . was a seller of heroin during the
       night shift and was a member of the NHO for a period
       of 5 to 6 months. Haywood is being held responsible
       for 980 grams of the heroin distributed during the
       night shift.

PSI Rep. at P 60. Additionally, paragraph 94 of the PSI
Report indicated that police had observed Haywood
conducting a cocaine transaction at 2930 Hancock Street
on May 14, 1992, which was seven months before his sale
of heroin to the undercover agent. In connection with that
incident, Haywood was convicted of knowingly possessing a
controlled substance and possessing a controlled substance
with intent to distribute. Thus, there was evidence in the
PSI Report to support its finding that Haywood was a
member of the NHO for at least 5 to 6 months. In contrast,
there was nothing in the PSI Report that undermined this
finding. Nor did Haywood or his trial counsel indicate to the
court that there was any reason to doubt the information
contained in the PSI Report. In short, we find that sufficient
indicia of reliability supported the PSI Report's conclusion
that Haywood had been a member of the NHO for 5 to 6
months and was, therefore, responsible for 980 grams of
heroin; hence, the trial court's adoption of the PSI Report's
finding was not error.

IV.

Title 18 U.S.C. S 4241 provides in pertinent part:

       (a) Motion to determine competency of defendant.--At
       any time . . . prior to the sentencing of the defendant,
       the . . . court shall grant [a motion for a competency
       hearing], or shall order such a hearing on its own
       motion, if there is reasonable cause to believe that the
       defendant may presently be 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.

       (b) Psychiatric or psychological examination and report.
       --Prior to the date of the hearing, the court may order

                               9
        that a psychiatric or psychological examination of the
        defendant be conducted . . . .

* * *

        (d) Determination and disposition.--If, after the
        hearing, 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, the court shall commit the defendant to the
        custody of the Attorney General. The Attorney General
        shall hospitalize the defendant for treatment in a
        suitable facility--. . . .

        (e) Discharge.--When the director of the facility in
        which a defendant is hospitalized pursuant to
        subsection (d) determines that the defendant has
        recovered to such an extent that he is able to
        understand the nature and consequences of the
        proceedings against him and to assist properly in his
        defense, he shall promptly file a certificate to that effect
        with the clerk of the court that ordered the
        commitment. . . . The court shall hold a hearing . .. to
        determine the competency of the defendant. If, after the
        hearing, the court finds by a preponderance of the
        evidence that the defendant has recovered to such an
        extent that he is able to understand the nature and
        consequences of the proceedings against him and to
        assist properly in his defense, the court . . . shall set
        the date for trial.

Section 4241 provides a mandatory process. The steps in
that process are intended to culminate in a record-based
judicial determination of competence in every case in which
there is reason to doubt the defendant's competence to
stand trial. The Due Process Clause of the Constitution
requires no less. See Pate v. Robinson, 383 U.S. 375, 385
(1966); United States v. DiGilio, 538 F.2d 972, 987 (3d Cir.
1976).

Under subsection (a), a district court has a duty to order
a competency hearing sua sponte "at any time prior to the

                                10
sentencing of the defendant . . . if there is reasonable cause
to believe that the defendant may presently be suffering
from a mental disease or defect rendering him mentally
incompetent." Under subsection (b), the court may order "a
psychiatric . . . examination" to provide evidence for the
hearing. Under subsection (d), if a preponderance of the
evidence at the hearing indicates that he or she is
incompetent, the defendant will be hospitalized for
treatment in a suitable facility. Finally, under subsection
(e), if the director of the facility subsequently certifies that
the defendant is then competent, the court has a duty to
hold a hearing sua sponte to determine if "the defendant
has recovered to such an extent that he is able to
understand the nature and consequence of the proceedings
against him and to assist properly in his defense."

Here, the district court expressly invoked the authority of
section 4241(b) and ordered a psychiatric examination into
Haywood's competency to stand trial. Dr. Guy's April 15th
report expressed the opinion, supported by clinical
observation and history, that Haywood was suffering from
schizophrenia and was incompetent to stand trial. The
government does not, and could not, contend that this
document failed to provide the "reasonable cause" that
makes a hearing mandatory under subsection (a). While the
district court did not conduct a hearing, on the basis of Dr.
Guy's report and without objection from the government, it
did authorize the transfer of Haywood's custody to
Hahnemann's Inpatient Psychiatric Unit in the Philadelphia
Prison System. Thirty-five days later, the director of that
facility supplied an updated report representing that
Haywood had become competent to stand trial. Thereafter,
on at least two occasions prior to sentencing, the court
received additional information suggesting that Haywood
might not be competent to proceed. No hearing was ever
held, however, to provide an evidentiary basis for a judicial
finding of competence and no such finding was ever made.

We conclude that under these circumstances section
4241 required the district court to order a hearing on
Haywood's competency and thereafter to make a finding of
competence before proceeding to trial. Under that statute,
receipt of Dr. Guy's April 15th report imposed a duty on the

                               11
district court to hold a competency hearing. Assuming that
it was relieved of the duty to do so immediately by its belief
in the accuracy of the report and the government's tacit
consent, the court was not free to dispense entirely with the
requisite hearing and finding based solely on an expert's
opinion that Haywood's mental condition had improved.
Subsection (e) of section 4241 expressly assumes the
existence of an expert opinion that the defendant is
competent and nevertheless mandates in no uncertain
terms that a hearing be held and a finding made.

We are mindful of the fact that the psychiatrist giving the
opinion upon which the court relied in proceeding to trial
was the same professional who provided "reasonable cause"
to believe Haywood might be incompetent. A trial court
might conceivably be justified in proceeding to trial without
a hearing when error is confessed and the opinion giving
"reasonable cause" is withdrawn by the psychiatrist for
credibly explained reasons. This is not such a case,
however. Dr. Guy did not withdraw his April 15th opinion;
rather his opinion was that Haywood's condition had been
improved with treatment. Indeed, we believe the
circumstances of the May 20th opinion and events at trial
rendered the need for a judicial determination particularly
compelling in this case. The reported change in condition
was attributed to a scant thirty-five days of treatment and
the opinion that Haywood was competent was predicated
on a credibility judgment -- Dr. Guy's disbelief of
Haywood's insistence that he lacked a clear understanding
of the nature and consequences of the proceedings against
him. Further, the trial then commenced on July 23, 1996,
after the passage of an additional nine weeks, during which
Haywood's mental condition could well have changed. Given
these facts and the additional information received by the
court in the subsequent proceedings, the integrity of the
court's judgment was seriously impaired by the absence of
an independent judicial inquiry into Haywood's competency
as close to the time of trial as possible.

Having determined that the court erred in not conducting
a competency hearing, we turn to the question of the
appropriate remedy. We have previously addressed this
issue in United States v. Renfroe, 825 F.2d 763 (3d Cir.

                               12
1987), where we also concluded that there was reasonable
cause to question the defendant's competency at trial and
sentencing, and that the district court erred in not
conducting a competency hearing. We there questioned
whether it would be appropriate to remand for a hearing to
determine the defendant's competency at the time of his
trial rather than for a new trial. We gave only conditional
approval to that approach:

       Given the inherent difficulties in retrospective
       competency determinations, such nunc pro tunc
       evaluations are not favored.

       However, such a determination may be conducted if
       a meaningful hearing on the issue of the competency of
       the defendant at the prior proceedings is still possible.
       The district court is in the best position to determine
       whether it can make a retrospective determination of
       [the defendant's] competency during his trial and
       sentencing. Here, because of the sparse testimony
       before the district court, we envision the taking of
       additional testimony to inform the district court's
       determination in that regard.

       If the court concludes that a retrospective
       determination is still possible, a competency hearing
       will be held, and if the conclusion is that [the
       defendant] was competent, no new trial will be
       required. If the district court determines that a
       meaningful hearing is no longer possible, [the
       defendant's] conviction must be overturned and a new
       trial may be granted when he is competent to stand
       trial.

825 F.2d at 767-68 (citations omitted).

We will remand so that the court can make the
determinations called for in Renfroe.

CONCLUSION

We decline to adjudicate Haywood's ineffective assistance
of counsel claims. We will affirm the district court's
determination of the quantity of drugs to be attributed to
Haywood. We conclude, however, that the district court

                                13
erred in failing to conduct a hearing and make afinding
regarding Haywood's competence to stand trial. We will
remand with instructions that the district court evaluate
whether a retrospective determination of Haywood's
competency to stand trial would be reasonably reliable. If
the court concludes that a reliable retrospective
determination is still possible, a competency hearing should
be held. If the court determines that such a determination
is no longer possible, Haywood's conviction must be
overturned. In that event, a new trial may be held when he
is found competent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               14
