
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1998                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 STEPHEN F. KIVLEHAN,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Walter  F.  McKee  with  whom  Lipman  &  Katz  was on  brief  for            _________________              _______________        appellant.            Margaret D.  McGaughey,  Assistant  United States  Attorney,  with            ______________________        whom  Gail F.  Malone, Assistant  United States  Attorney, and  Jay P.              _______________                                           ______        McCloskey, United States Attorney, were on brief for appellee.        _________                                 ____________________                                  February 27, 1998                                 ____________________                      ALDRICH, Senior  Circuit Judge.   Defendant Stephen                               _____________________            F. Kivlehan, sentenced  as an armed career  offender pursuant            to  U.S.S.G.   4B1.4(b)(3)(A), whose  conviction was under 18            U.S.C.   922(g)  for, as  a felon, being  in possession  of a            firearm,  appeals for  evidentiary  error;  for  not,  as  an            indigent,  being   provided  with  funds  for  a  psychiatric            examination prior to  sentencing; for the court's  refusal to            hold a competency hearing, and for  its adding a point to his            offense  level  for using  the firearm  in connection  with a            crime of violence.  We affirm.                                 Fingerprint Testing                                 ___________________                      Defendant  was  arrested after  having  alerted his            neighbors  by the  noise of  a vigorous  sexual and  physical            assault on his  wife.  After receiving consent  to search the            premises, the police  found a revolver that  defendant's wife            adequately connected with  the incident, post.   Witnesses at                                                     ____            trial   testified  to  the  uniqueness  of  the  revolver,  a            specially  built  competition  pistol,  and  to  having  seen            defendant previously with  his hands on it.   However, it was            returned from  testing for  prints with  none of  defendant's            found.                      Over defendant's objection,  a police detective was            allowed to  testify that in  his twenty years  experience, it            was "very  rare" to  match positively a  known set  of prints            with those  found on a weapon -- in  fact, he could recall no                                         -3-            case.    The  objection  made   was  hearsay.    This  is  an            interesting question.  The witness  was speaking from his own            experience,  but the  effect, perhaps, was  to vouch  for the            accuracy of past reports or the testing process itself.                      In   any   event,  this   whole   matter  was   not            prejudicial.  The revolver had a serial number.  It was noted            at the time of the arrest; the revolver at the trial  had the            same  number.  Also, four witnesses positively identified it,            including  both  its  prior  owner  as  well  as  defendant's            brother,  a professional gunsmith.   Of what  consequence the            absence of fingerprints?   Given such  overwhelming evidence,            any  error  in   admitting  the  detective's   testimony  was            harmless.  See  United States v. Bartelho, 129  F.3d 663, 670                       ___  _____________    ________            (1st  Cir. 1997).    We pass  the question  whether defendant            himself first "opened the door" to this testimony.                              Mental Competency Testing                              _________________________                      There was  no claim  that defendant  was unable  to            stand  trial,  or  that he  had  any  mental defect  defense.            However, after trial, defendant's counsel asked for funds for            psychiatric testing, pursuant to 18 U.S.C.   3006A(e)(1), and            later moved to determine  defendant's competency, pursuant to            18  U.S.C.   4241.    His  psychological  condition,  it  was            thought,  would be relevant to where  in the applicable range            he  should be sentenced and, also, whether downward departure            under U.S.S.G.    5K2.13 (diminished capacity)  could be had.                                         -4-            Counsel's most  tangible basis  was the  fact that  defendant            would not  communicate with  him and  rejected all  his mail,            returned  unopened.  Apart  from that were  little fragments,            including general  comments from defendant's  mother and  his            probation   officer   about   his   apparent,   lay-described            "paranoia," and the argument that unless a test was made, how            could it be known that it was not needed?                      Whether  to   authorize  funds   for  psychological            testing is within the  trial court's discretion.   Cf. United                                                               ___ ______            States  v. Mateos-Sanchez,  864 F.2d  232,  239-40 (1st  Cir.            ______     ______________            1988) (investigative  expenses).  Refusal  is not  reversible            absent  clear and  convincing evidence  of  prejudice to  the            accused.  See United  States v. Canessa, 644 F.2d 61, 64 (1st                      ___ ______________    _______            Cir. 1981).    A determination of competency  may be had when            there is reasonable  cause to believe that the defendant, due            to mental  defect,  is unable  to understand  the nature  and            consequences  of the  proceedings against  him  or to  assist            properly in his defense.   See 18 U.S.C.   4241.   To be able                                       ___            to  assist  in one's  defense  means  to  have a  "sufficient            present  ability  to  consult  with  [one's]  lawyer  with  a            reasonable degree of rational  understanding."  United States                                                            _____________            v. Lebron, 76  F.3d 29, 31 (1st  Cir.), cert. denied, 116  S.               ______                               ____________            Ct. 2537  (1996).   Whether to  hold a    4241  hearing is  a            matter  within the trial  judge's discretion, reviewable only                                         -5-            for abuse.  See United States v. Morgano, 39 F.3d 1358,  1373                        ___ _____________    _______            (7th Cir. 1994), cert. denied, 515 U.S. 1133 (1995).                             ____________                      Given  the posture, all  defendant asked  for, with            evidence  of  incompetency,  was  a  favorable  exercise   of            discretion in sentencing.  The court's refusal to  pursue the            matter,  we think, indicates a  disinclination to be any more            favorable than it  was.  Further, the decision  was based, in            part, on  observations of  defendant's behavior  during trial            and  sentencing.     The  record  expressly  reflects   noted            instances of communication between defendant and  his counsel            during the  latter.   We have  reviewed the  district court's            findings "comprehensively," Lebron,  76 F.3d at 32;  read the                                        ______            record,   and  listened   to,  in   effect,   testimony  from            defendant's trial counsel, and we think the case  well summed            up by the court.                      If  I  thought   for  a  minute  that   a                      competency  exam  or a  psychiatric  exam                      would  in any way  flush out any problems                      that may exist or be determinative of any                      issue here, I'd order it, but that's  not                      the case  in the court's  humble opinion.                      And if I  were to order  competency exams                      on   each   one   of   these   sentencing                      proceedings,    there    aren't    enough                      psychiatrists   and    psychologists   to                      accommodate all the competency exams.  It                      is not unusual . . . for defendants, once                      they've gone through trial and are facing                      sentence,   to  develop   all  kinds   of                      anxieties. . . .   [I]t would  be strange                      if  they didn't.  And I think that's what                      we have here, and I'm not  a psychiatrist                      or a  psychologist, but I'm not  going to                      delay  this  matter  any further  on  the                      basis  of  what  I have  before  me  now,                                         -6-                      unless  someone can  convince me  that it                      would be useful.                           And   that,    coupled   with    the                      defendant's  request to  get this  matter                      over with, which is  really what he wants                      to do I  think, that's what I'm  going to                      do.            We find no abuse or prejudice.                                    Offense Level                                    _____________                      Finally,   defendant  complains   of  the   court's            connecting  the weapon  to the  assault.   The import  of the            alleged error was assigning offense level 34 rather  than 33,            making the applicable sentencing range 262-327 months instead            of  235-293.   Under U.S.S.G.    4B1.4(b)(3)(A), the  greater            figure applies if the firearm was "used or possessed . . . in            connection with a  crime of  violence."   It is  acknowledged            that  "'in connection with' should be interpreted broadly and            that  where a  defendant's possession  of a  firearm aids  or            facilitates the  commission of another offense, the requisite            link is present."   United States v.  Thompson, 32 F.3d 1,  7                                _____________     ________            (1st Cir. 1994) (footnote omitted).                      Reviewing the district  court's findings for  clear            error,  see United  States v.  Gary,  74 F.3d  304, 317  (1st                    ___ ______________     ____            Cir.),  cert. denied,  116 S.Ct. 2567  (1996), we  find none.                    ____________            The   defendant  had  a  history  of  threatening  his  wife,            sometimes with firearms.  During the events precipitating his            arrest,  he placed  the gun  on  the floor  of the  apartment            bedroom, openly visible.   He glanced  menacingly at the  gun                                         -7-            and then his wife, which she understood to be a threat, as he            attempted to have  her facilitate a sexual  encounter between            him and  another woman.   When that failed, he  compelled his            wife to endure three hours of sexual and physical abuse, some            of which  occurred in the room  with the gun.   He repeatedly            told her  that, in  her words, "You  probably ain't  going to            make it  through the night."  She said  she did not scream or            cry out  because she was  scared "because there was  a loaded            gun right beside the bed."  It is no stretch to conclude that            the  presence of  the gun  emboldened  the defendant  and, in            part, threatened  his victim into  submission, and  therefore            "aid[ed] or facilitat[ed]" the assault.  Thompson, 32 F.3d at                                                     ________            7; cf. United States  v. Sturtevant, 62 F.3d 33, 34 (1st Cir.               ___ _____________     __________            1995) (per curiam).                      Affirmed.                      _________                                         -8-
