12-3623-CR
United States v. Anthony Harry

                                 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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
19th day of December, two thousand thirteen.

Present:    ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
            RICHARD C. WESLEY,
                        Circuit Judges.
_________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,

                           -v-                                                12-3623-cr

ANTHONY HARRY,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:           Ian S. Weinstein (James A. Cohen, Jeffrey D. Coleman, Nathanial
                                   J. McPherson, Timothy J. Straub, on the brief), Fordham
                                   University School of Law, Lincoln Square Legal Services, New
                                   York, N.Y.

Appearing for Appellee:            Adam J. Fee, Assistant United States Attorney (Preet Bharara,
                                   United States Attorney for the Southern District of New York,
                                   Michael Alexander Levy, Assistant United States Attorney, on the
                                   brief), New York, N.Y.
        Appeal from the United States District Court for the Southern District of New York
(Stein, J.).
        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Following a jury trial, Anthony Harry was convicted of two counts of threatening to harm
the family of a United States Probation Officer, in violation of 18 U.S.C. § 115(a)(1)(A). On
September 5, 2012, the district court sentenced Harry to forty-six months’ imprisonment on each
count, to run concurrently, followed by one year of supervised release, and a special assessment
of $200. Harry now appeals from his September 7, 2012 conviction.

       On appeal, Harry asserts that the district court should have ordered a competency hearing
during the proceedings, as there was more than reasonable cause to believe that Harry may have
been incompetent to stand trial, and also argues that he was improperly precluded from
presenting evidence that would have assisted his defense. We assume the parties’ familiarity
with the underlying facts, procedural history, and specification of issues for review.

I.     Competency Hearing

       “Due process requires that ‘a person whose mental condition is such that he lacks the
capacity to understand the nature and object of the proceedings against him, to consult with
counsel, and to assist in preparing his defense may not be subjected to a trial.’” United States v.
Arenburg, 605 F.3d 164, 168-69 (2d Cir. 2010) (quoting Drope v. Missouri, 420 U.S. 162, 171
(1975)). “Because this constitutional right spans the duration of a criminal proceeding, ‘a trial
court must always be alert to circumstances suggesting a change that would render the accused
unable to meet the standards of competence to stand trial.’” Id. at 169 (citing Drope, 420 U.S. at
181) (emphasis in original).

        We review for abuse of discretion a district court’s determination not to hold a
competency hearing. See United States v. Quintieri, 306 F.3d 1217, 1232-33 (2d Cir. 2002). “In
deciding that an evidentiary hearing is unnecessary, a court may rely not only on psychiatrists’
reports indicating competency but also on its own observations of the defendant.” United States
v. Nichols, 56 F.3d 403, 414 (2d Cir.1995).

        In total, Harry points to two distinct moments that he argues gave the district court
reasonable cause to hold a competency hearing: (1) his conduct at the pre-trial conference when
he expressed frustration at not being able to see certain documents and asked to be taken out of
the courtroom, and (2) his counsel’s acknowledgment at sentencing that “the trend” of Harry’s
lack of “active participation” in the case had continued in the pre-sentencing stages of the
proceeding. However, in each of these circumstances, a review of the record and transcript
shows that the district court inquired into how Harry was communicating with counsel, and in

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each circumstance, the district court was satisfied that even if Harry was angry or unwilling to
discuss certain issues at length, Harry had an understanding of the proceedings against him, and,
when he chose to, was fully able to participate in his own defense. It also bears noting that the
record indicates Harry was able to remain calm in the presence of the jury during his trial,
indicating he was indeed capable of controlling his behavior and expressions of frustration.

        We have acknowledged that “some degree of mental illness cannot be equated with
incompetence to stand trial.” United States v. Auen, 846 F.2d 872, 878 (2d Cir. 1988) (internal
quotation marks omitted). Here, all parties, including the district court and the doctors who
performed an initial competency evaluation on Harry, acknowledged that Harry suffered from
some form of mental illness. However, it was not an abuse of discretion for the district court to
conclude that Harry’s outbursts did not demonstrate that he was unable to understand the nature
of the proceedings against him, or assist counsel with his own defense. This is evidenced by
Harry’s expressed decision not to assert an insanity defense and his specific request at
sentencing to receive mental health treatment as part of his sentence . See Nichols, 56 F.3d at
412 (“Mason argues that the transcripts of the early court appearances, together with the
Batchelder affidavit, demonstrate his mental incoherence and his failure to comprehend the
charges against him. While that is one plausible reading, it is at least equally plausible to read
Mason’s statements as evincing resignation and frustration but not irrationality. We must in these
circumstances defer to the judgment of the district court.”).

         We also note that while it was unfortunate that Harry’s case ended up before three
different district court judges over the course of this case, each evinced a clear understanding of
a district court’s statutory obligations under 18 U.S.C. § 4241(a). See Arenburg, 605 F.3d at
170. Thus, for the reasons discussed above, we conclude that the decision not to order a
competency hearing for Harry, either before, during, or after trial, was not an abuse of discretion.



II.    Evidentiary Ruling

       Next, Harry challenges the district court’s exclusion of unredacted voicemails, which
included discussions of Harry’s participation in particular substance abuse/mental health
programs, from evidence. Harry asserts that these recordings were necessary to show the
complexities of his relationship with the probations officers.

         “Under Rule 403, so long as the district court has conscientiously balanced the proffered
evidence’s probative value with the risk for prejudice, its conclusion will be disturbed only if it
is arbitrary or irrational.” United States v. Awadallah, 436 F.3d 125, 131 (2d Cir. 2006). We
conclude that the district court’s determination that the limited probative value of admitting the
unredacted voicemails in full was substantially outweighed by the risk of misleading or
confusing the jury as to the issue of Harry’s mental health was not an abuse of discretion.

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         Moreover, a review of the transcripts from trial suggest that Harry’s counsel was able to
delve into the complexities of Harry’s relationship with the probation officers, even without the
ability to present the full, unredacted voicemails to the jury. For example, defense counsel was
able to cross-examine Supervisory United States Probation Officer Rodriguez about his
relationship with Harry, and question him about the fact that he had encouraged Harry to contact
him and provided him with his email and cell phone number, even after Harry had been
transferred to another Supervisory Probation Officer. Counsel also elicited testimony from
Rodriguez about Rodriguez “personally” transporting Harry to his “community access program,”
and that Harry had confided in him that he had a strained relationship with his father. Rodriguez
testified that they shared a long car ride and conversed, and that he believed that Harry was
“comfortable speaking with him.”Harry’s counsel also cross-examined the “line officer” to
whom Harry was transferred as to whether she was trying to assist Harry with his substance
abuse problems, his housing situation, his ability to receive benefits, and generally to help him
rehabilitate himself. Thus, because there was ample evidence offered about Harry’s relationship
with probation, we conclude that Harry was not prejudiced by the district court’s exclusion of the
unredacted voicemail recordings. On this basis, Harry has not demonstrated a fundamental
unfairness that would have violated his right to present a defense and his right to a fair trial. See
United States v. Williams, 205 F.3d 23, 29-30 (2d Cir. 2000) (citation omitted).

      We have considered Harry’s remaining arguments and find them to be without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.



                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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