09-2558-cr
United States v. Harper

               UNITED STATES COURT OF APPEALS
                   FOR THE SECOND CIRCUIT

                          SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE
32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 5th day of May, two thousand eleven.

PRESENT:
            AMALYA L. KEARSE,
            DENNY CHIN,
                           Circuit Judges,
            JED S. RAKOFF,
                           District Judge.*

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UNITED STATES OF AMERICA,
          Appellee,

            -v.-                                      09-2558-cr

KENNETH HARPER,
          Defendant,

GLENN HARPER,
          Defendant-Appellant.

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FOR DEFENDANT-APPELLANT:            BRIAN SHEPPARD, Law Office of Brian
                                    Sheppard, New Hyde Park, New York,
                                    and David M. Samel, Law Office of
                                    David M. Samel, New York, New York.

FOR APPELLEE:                       STEPHAN J. BACZYNSKI, Assistant
                                    United States Attorney, of counsel,
                                    for William J. Hochul, Jr., United
                                    States Attorney for the Western
                                    District of New York, Buffalo, New
                                    York.


      *
          The Honorable Jed S. Rakoff, United States District
Judge for the Southern District of New York, sitting by
designation.
           Appeal from the United States District Court for the

Western District of New York (Larimer, J.).
           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment is AFFIRMED.

           Defendant-appellant Glenn Harper appeals from a

judgment of the district court entered, after a jury trial, on

June 10, 2009, convicting him of one count of felony possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1), and

sentencing him principally to 327 months' imprisonment.

           Harper challenges his conviction primarily on five

grounds.   First, he argues that the district court abused its

discretion in admitting evidence that was the product of an

allegedly defective search warrant.   Second, he asserts that the

district court erroneously admitted purportedly irrelevant and

unfairly prejudicial evidence about the provenance of the

firearm.   Third, Harper contends that the court violated his due

process rights when it treated his absence at a competency
hearing as a knowing and voluntary waiver of his right to be

present.   Fourth, he challenges the substance of the court's

determination that he was competent to stand trial.   Finally,

Harper argues that he was denied due process when he was required

to wear restraints at trial.

           We consider these arguments in turn and assume the

parties' familiarity with the facts and procedural history of the

case as well as the issues presented for review.




                                -2-
(1)   The Warrant

           After de novo review and consideration of the totality

of the circumstances, see Illinois v. Gates, 462 U.S. 213, 238

(1983); United States v. Irving, 452 F.3d 110, 125 (2d Cir.

2006), we conclude that the warrant application established

probable cause to believe that illegal firearms would be found in

Harper's home, for substantially the reasons articulated by the

district court in its May 30, 2006, decision and order adopting

the March 10, 2006, report and recommendation of the magistrate

judge recommending denial of Harper's motion to suppress.     The

details in the warrant application were sufficient to facilitate

the issuing judge's independent determination that the

confidential informant who alerted police to the firearms in

Harper's home was reliable.   See United States v. Gagnon, 373
F.3d 230, 235-36 (2d Cir. 2004).      We also agree with the district

court's conclusion that, in any event, the officers executing the

warrant were entitled to rely in good faith on its validity.      See

United States v. Leon, 468 U.S. 897, 923 (1984).

           Finally, the no-knock provision included in the warrant

was justified, as investigating officers reasonably believed that

firearms were present in Harper's home and that announcing their

presence therefore would be dangerous.     See United States v.
Ramirez, 523 U.S. 65, 71 (1998).
(2)   Evidence that the Firearm was Stolen

           Harper made gratuitous inquiries to officers during a

post-arrest interview regarding whether he would face burglary

                                -3-
and stolen property charges for the items found in his bedroom.

The fact that he asked such questions was relevant under Federal

Rule of Evidence 401.   Harper's possession of the shotgun charged

in the indictment was the primary issue at trial, and the

questions he asked betrayed his knowledge of the gun's illicit

provenance.   Linden Smalt testified at trial that the shotgun

had, in fact, been stolen in a burglary of Smalt's house days

before Harper's arrest.

           The district court considered the prejudicial potential
of this evidence in its balancing analysis under Federal Rule of

Evidence 403.   There is no basis to conclude that the court's

determination under Rule 403 was irrational or arbitrary.    See
United States v. Bicaksiz, 194 F.3d 390, 396 (2d Cir. 1999).
(3)   Harper's Absence from the Hearing

           Due process protected Harper's right to be present at

the pretrial examination of the Federal Medical Center ("FMC")

forensic psychologist who evaluated his competency to stand trial

only "'to the extent that a fair and just hearing would be

thwarted by [his] absence.'"   Polizzi v. United States, 926 F.2d
1311, 1318 (2d Cir. 1991) (quoting Kentucky v. Stincer, 482 U.S.

730, 745 (1987)); see also United States v. Purnett, 910 F.2d 51,

55 (2d Cir. 1990) (holding that a competency hearing is a

critical event in a prosecution); cf. Fed. R. Crim. P. 43(a)

(codifying the right to be present "at every trial stage").    As

defense counsel thoroughly cross-examined the psychologist

regarding her evaluation of Harper and the report of her

findings, we are satisfied that the hearing was fair, and any

                                -4-
error in treating Harper's absence as a waiver was harmless.    See

United States v. Magassouba, 544 F.3d 387, 414-15 (2d Cir. 2008).

          In any event, we find no clear error in the district

court's conclusion that Harper was competent to waive attendance

at the hearing and that he did so knowingly and voluntarily.    See

United States v. Nichols, 56 F.3d 403, 413 (2d Cir. 1995).

Harper does not argue that his absence was not actually knowing

and voluntary or that he was actually incompetent at the time,

i.e., he could not (1) consult with counsel "'with a reasonable

degree of rational understanding,'" or (2) understand the

proceedings against him.   See id. at 410 (quoting Dusky v. United
States, 362 U.S. 402, 402 (1960) (per curiam)).

          Even if the record could be plausibly read to the

contrary, we give deference to the district court's determination

that a defendant is competent, see United States v. Morrison, 153

F.3d 34, 46 (2d Cir. 1998), as well as its "differentiation

between a defendant who is incompetent to stand trial and a

defendant who simply wants a court or a jury to believe that is

the case," United States v. Arenburg, 605 F.3d 164, 170-71 (2d
Cir. 2010) (per curiam).   See generally Polizzi, 926 F.2d at 1319

(holding that to the extent that a knowing and voluntary waiver

"rested in part on a credibility appraisal, even greater

deference is accorded the trial court's findings").   The record

is clear that Judge Larimer "did not harbor serious doubts about

[Harper's] competency at the time of waiver" and had ordered the

competency evaluation only "as a precautionary measure," upon

defense counsel's request and with the government's consent,

                                -5-
Nichols, 56 F.3d at 414.    His acceptance of the waiver was

supported by many courtroom interactions with and ex parte

letters from Harper, a report detailing the marshals' efforts to

bring Harper to court on the day of his competency hearing,2 and

the FMC report summarizing clinical and correctional staffs'

observations of Harper's "unremarkable" behavior during his

month-long, residential competency evaluation (J.A. 151).

            On this record, we reject Harper's contention that

Judge Larimer harbored a "reasonable cause" to doubt Harper's

competence when he accepted Harper's waiver without the benefit

of a hearing.    See 18 U.S.C. § 4241(a).   That the court went

ahead with the hearing anyway -- evidently believing that it was

required by 18 U.S.C. § 4247(d) to give the defense an

opportunity to challenge the FMC report -- did not invalidate

that finding.    See Nichols, 56 F.3d at 414-15; cf. United States
v. Oliver, 626 F.2d 254, 258-59 (2d Cir. 1980) (upholding a

determination of competence based entirely on the court's

observations).
(4)   Harper's Competency to Stand Trial

            The district court did not abuse its discretion in

refusing to grant Harper's request for a second, "independent

forensic exam" of his competency after determining by a

preponderance of the evidence that Harper was competent to stand

trial.    See Nichols, 56 F.3d at 410.


      2
          Harper refused to leave his cell that day, despite
being advised repeatedly of the nature of the hearing by both the
marshals and his lawyer and being informed that the judge
requested his presence. See Nichols, 56 F.3d at 416-17; cf.
United States v. Tureseo, 566 F.3d 77, 83-84 (2d Cir. 2009).

                                 -6-
          We note that Harper did not object at the outset to FMC

as the site of his evaluation or to FMC's affiliation with the

government.   See United States v. Zhou, 428 F.3d 361, 380 (2d

Cir. 2005) (holding that a district court evaluating competency

may reasonably "rely on the expertise of a forensic psychologist

associated with the [Bureau of Prisons]," who is "presumably

familiar with patients similarly situated").   Harper had no right

to further testing once the district court was satisfied of his

competency, and the court had no duty to seek out opinions

contrary to FMC's.   Cf. Ake v. Oklahoma, 470 U.S. 68, 83 (1985)

(finding no right to a competency examination by a psychiatrist

of one's choosing);2 United States v. Schmidt, 105 F.3d 82, 84
(2d Cir. 1997) (affirming a competency determination where the

"proceedings conducted in the district court accorded [defendant]

all the legal rights to which she was entitled").

          We are not persuaded that any incompleteness in the

court's knowledge of Harper's personal history undermined its

determination that he was competent.   Regardless of any

informational deficit, FMC staff observed Harper almost

continuously for an entire month and reported that his behavior

was "unremarkable," confirming Judge Larimer's suspicion that the

belligerent behavior at the heart of the competency inquiry was

within Harper's control and calculated to delay trial, not the

product of a mental defect that rendered him unable to consult

with his lawyer or understand the proceedings against him.


     2
          Harper's competency to stand trial, not his "sanity at
the time of the offense," was at issue, and therefore his
reliance on Ake is misplaced. See Ake, 470 U.S. at 72, 74, 83.

                                -7-
(5)   Use of Restraints at Trial

           Finally, the district court did not abuse its

discretion in requiring Harper to wear physical restraints during

trial.   See Hameed v. Mann, 57 F.3d 217, 222 (2d Cir. 1995).    The

court considered, but did not defer to, the recommendation of the

marshals' service that Harper be shackled, and its decision was

informed by experience with, inter alia, Harper's outbursts in

court, his destruction of a steel partition in his holding cell

after an adverse evidentiary ruling, and his physical assault of

his prior lawyer.   Further, the court ordered measures to

minimize the chances that Harper's shackling would be visible to

the jury, and there is no evidence that the jury ever knew of the

restraints.   Even assuming arguendo that it was error to retrain
Harper, we conclude that the error was harmless in light of the

measures taken and "in light of "the strength of the case."     Id.;

see also Davidson v. Riley, 44 F.3d 1118, 1124 (2d Cir. 1995).

           We have considered Harper's remaining arguments and

conclude that they are without merit.    Accordingly, the judgment

of the district court is AFFIRMED.

                               FOR THE COURT:
                               CATHERINE O’HAGAN WOLFE, CLERK




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