United States v. Johnnie Masthers

of America UNITED STATES MASTHERS, Appellant.

Johnnie 74-1602.

No. Appeals, Court

United States

District of Columbia Circuit.

Argued Oct. April

Decided 15, 1976. Denied June

Rehearing En Banc Washington, (ap- D. C. Lowy,

Arthur Court) pointed by with whom Nathan Rubinstein, appellant. was on the brief Plotkin, C., Washington, Robert D. Paul Friedman for the Mental Health Law Project amicus curiae. as McGuire, Atty., Asst. U. Edward C. S. C., Washington, D. with whom Earl J. Sil- bert, Atty., Terry, John A. U. S. Stuart M. Bullock, Gerson and David M. Asst. U. S. C., Attys., Washington, D. were on the brief appellee. BAZELON, Judge, Before Chief HAST-I E,* Judge for the Senior Circuit Third ROBB, Judge. Circuit and Circuit Opinion by Judge filed BAZELON. Chief Concurring opinion Judge filed Circuit HASTIE.

Dissenting opinión Judge filed Circuit ROBB.

BAZELON, Judge: Chief plea These motions to vacate a (28 2255) and U.S.C. to withdraw the § (Rule 32(d) of the Federal Rules of Criminal Procedure) appellant’s are on based claim of incompetence at the time the was en- tered. we find that Since record does “conclusively show that the prisoner is relief,”1 entitled to no it follows that in denying district court erred these mo- hearing. tions a without I.

Appellant and a co-defendant were charged a three-count indictment with * infra, Sitting by designation pursuant to 28 1. 28 2255. See n. 35. U.S.C. 294(d). Upon entry guilty plea robbery,2 robbery,3 assault Novem- armed 26,1973, trial charges The ber when the dangerous weapon.4 addressed a gas appellant personally,7 simply responded, robbery station stemmed from “No, “Yes, Henderson; Ma’am” or Ma’am” to all in cash and but $104 and one Leon queries.9 complain- one8 court’s watch were taken. $60 witness, Henderson, ing thereupon Mr. ex- out- very were indications from the There his pressed appel- to the court belief that appellant mentally set that was deficient. “good” a “illiterate” man lant was but who appointed counsel moved for a pretrial At crime, “put up must have been to” the and asserting hearing, appellant that Miranda that urged Appel- he not be incarcerated.'10 knowingly intelligently not waived had counsel specifically suggested, lant’s pre- rights. his Fifth Amendment At the apparently agreed, the court that “in the appearance, prosecutor trial admitted presentence aspect of this case difficulty that “there some paid some attention to the psychologi- [be] “may and that he not it.”5 confession” use aspect,” cal a program that suitable of in Papers proceed- filed connection with the rehabilitation be devised.11 ings appellant below reveal that could not name; Sentencing sign signature delayed his was was pending prepara- his when presentence report tion required, printed his name in of and an appellant evalua- appellant’s scrawling suitability letters.6 tion of block for rehabilita- 2. §§ nothing D.C.Code 3202. hasn’t did but work on the trash route, on truck his and how it was—how he 3. D.C.Code 2901. got fellow—what his name —Snow —that [appellant’s or whatever it co-defendant] is— 4. D.C.Code 502. it, put up him, him I don’t it believe is in Honor, appreciate, I you and would Your if 5. p. Transcript Hearing, of 2. November please give would him a break because if he jail go going good he is not to be no when form, 6. See Pretrial Release November get he out. Application Support in of and Affidavit Honor, MR. LOWY: Your if Mr. Hender- Costs, Prepayment April of Proceed without son would like to tell Your Honor about what 1974. considers, he on based what he knows about 7. F.R.Cr.Pro., Masthers, Rule 18 U.S.C. state, Mr. about mental and the has, kind of mind that he and whether he— stated, age, appellant When asked “Twen- you judge would tell like to about that? ty-three.” Transcript of November Well, my opinion, MR. HENDERSON: in Hearing, p. 7. Honor, my opinion, Your the man is—he is good hard-working man he because is a Transcript Hearing, pp. of November I man. have him seen work. 2-8. my opinion But to don’t know whether —I stated, Masthers, point At one the court “Mr. like he it or not—but he is illiterate. you allegations have heard made you Do understand what I mean? He has Attorney.” Assistant United States When deprived been of his education he is from “any asked if he had corrections or additions to from, South, I am where from the and he make to what torney] At- [the Assistant States needs, hasn’t had the education that he said, own,” any explanation or of [his] is, you know, readily he he is led some- appellant remained silent. When the court re- smart, body you know, that is like one of phrased inquiry, asking its “Is that correct?” gangsters that, something these or like “Yes, characteristically replied, only is I reason can see that he did it Transcript Ma’am.” of November him, because it is it is not in him. I have Hearing, p. long. him known It is not in him. 10. Mr. Henderson’s full statement was as fol- things. Because he asked has me for He lows: nothing. never has took He asked me * * * MR. HENDERSON: things. surprised And that what me. Honor, heart, my Your I believe in I believe Transcript Hearing, pp. of November own, that he do this was didn’t on his that he 5-6. this, put up you do and 1 wish take would your judgment Transcript Hearing, p. into that he didn’t be- of November him, long knowing cause as as I been he Test, which Stanford Achievement Addict Rehabilita- the Narcotics

tion under 2.2, indicating operates that he scored “extremely low lev- Appellant’s Act.12 tion grade “at above second slightly level “con- any and his lack intelligence” el of academic achievement.”17 throughout were stressed cept time” The NARA staff report.13 presentence sentencing on March counsel At addiction to be narcotic appellant’s found appellant’s reminded the court of “extraor- “special ed- and recommended questionable, dinarily suggested low intelligence,”18 training”14 rather vocational ucational or supervision. probationary When asked treatment, “his since than NARA pending marriage girl- about a an old extremely hinder him capabilities friend, appellant told the that “we intensive, therapeutic type together years haven’t been for about three [NARA’s] low level Again, appellant’s program.”15 getting we were married this month noted, supported by the month, last like she is expecting a kid.”19 Intelligence Beta The judge replied, yours, the Revised trial “Not I take results of it,” 57,16 Test, appellant and responded, scored to which “I don’t on which seq. TABLE 4251 et 12. 18 U.S.C. § Report, December 13. See Presentence pp. 8. prepared re- probation officer who The during appel- port the interview indicated lant upon a constant smile his sat with face, attempt- especially when he noticed questions. frankly respond to asked He ed appear to either initiate or hold his does not during ques- but must be own a conversation “ Diagnostic Psychiatric Association, American and specifically at each instance in which tioned Mental Disorders II Manual of Statistical person anticipate average the re- the sponse would Manual ready Deficiency, Mental immediately respond Association on ““American be and Terminology Re- Classification in Mental on appear a with the answer. He would loner, to be 1973). (Grossman, Ed. tardation selecting probably few those with simi- alone, however, peer intelligence group. a as of his is not definitive meas- lar members IQ diagnosis Id. of mental ure of retardation. “[A] fifth-grade Although appellant criteria, a multiple claimed edu- is based on includ- retardation cation, “questioned probation staff office (usually quantified ing as measured actually anywhere had attained whether he Quotient), adaptive Intelligence level behavior grade in a education while school.” near fifth (sometimes quantified Quotient), as a Social Id. at 7. Roos, medical classification.” “Basic Retardation,” Legal in Facts About Mental Justice, Department of Bureau States 14. United Mentally Handicapped, (En- p. Rights of the Institution, Prisons, Mi- Federal Correctional of Friedman, 1973). Eds. The American nis and lan, Study, February Michigan, Classification Deficiency defines men- Association Mental 27, 1974, p. referred as Classi- 3 [hereinafter “significantly subaverage tal retardation as Study]. fication general functioning existing concur- intellectual rently adaptive in deficits behavior Id., of Beall. cover letter Warden during developmental period.” manifest Deficiency, Association on Mental American reported Study his 57 The Classification Classification, Terminology and su- Manual on ‘mentally places appellant “in defective’ IQ category.” “Definition, pra, Hughes, Diag- at 5. See also Id. at nosis, and Associated Classification Problems Appellant’s place him in “mild- IQ Retardation,” Psychology Law & in Re- category Mental ly most under the schemes retarded” table, (Spring widely today. following adapt- view used The Simmons, Valente, Tymchuk and ed from Study, at 3. 17. Classification Retarded,” Mentally and Care of “Treatment Psychiatric Armais summarizes Hearing, p. Transcript of March major systems classifying the de- the two severity grees of retardation in terms 4-5. 19. Id. at of IQ: competence the accused’s ... a imposed a suit- know.”20 The court sentence able must be held.”25 years. two to six After a motion reconsideration It is axiomatic that an accused denied, appellant reduction of sentence competent must enter valid guilty plea present filed the motions to vacate plea plea: guilty “A ... is itself a under 28 and to Like a of a jury conviction. verdict it is plea 32(d), withdraw the Rule P.R.Cr. required; More is conclusive. not the court Pro. nothing give judgment to do but A defendant who

sentence.”26 enters such privilege against waives “his compul II. self-incrimination, right sory his to trial by adversary It is “fundamental to an jury, right confront system justice”21 an individual The test of validity accusers.”27 of the that he whose “mental condition is such is whether it is “an waiver intentional relin nature capacity lacks understand the or quishment abandonment of a known him, object proceedings against privilege.”28 right If a is not counsel, to consult with and to assist voluntary “equally knowing, it has preparing be sub his defense”22 been obtained violation of due process jected to a trial.23 conviction of an Moreover, and is therefore void. because a mentally incompetent accused who is vio is an guilty plea admission of all the ele- process.24 lates due Where the “circum charge, ments of a formal criminal it cannot generat[e] a substantial voluntary stances doubt as to the truly unless defendant (1966); States, Bishop 20. Id. at 5. 815 v. L.Ed.2d United 961, 440, 350 U.S. 76 explained S.Ct. 100 L.Ed. judge 835 The then to that it (1956). that, would be reasonable to assume the circumstances, the child was not his. Timm, 25. United States v. Caldwell and n. Missouri, 172, 162, Drope 420 21. v. U.S. 95 denied, (D.C.Cir.), 1087, 61 cert. 423 U.S. 96 896, 103, 904, (1975). L.Ed.2d S.Ct. 43 113 877, (1976). 47 S.Ct. L.Ed.2d 97 See Pate v. U.S; Robinson, supra, 24, 385-6, n. 383 at 86 171, 903, 22. Id. at at 43 at 113. 95 S.Ct. L.Ed.2d 842, 822; S.Ct. at 15 L.Ed.2d at Grennett v. States, 202, U.S.App.D.C. 131 United 403 F.2d against prohibition trying incompe- 23. The an 928, (1968); States, 932 Hansford v. United early origins. tent defendant has common law 387, U.S.App.D.C. 920, 924-5, 124 365 F.2d reh. (9th 4 Ed. See Biackstone’s Commentaries 24 359, denied, 127 384 F.2d 311 1783). It to be the law from the was said (1966). “. if at earliest times that . it is found the prisoner trial of the that he cannot understand States, 220, 26. v. Kercheval 274 U.S. proceedings, judge ought discharge the the to 223, 582, 583, 1009, 47 S.Ct. 71 L.Ed. 1012 trial, jury put an end to the order a the dr See, (1927). States, Machibroda v. United 368 L.R., guilty.” Reg. Berry, 1 verdict of not v. 487, 493, 510, 513, 473, U.S. 82 7 S.Ct. L.Ed.2d 447, (1876), cited in Accused 451 “The Q.B.D. Retardate,” (1962); Sieling Eyman, 211, 478 v. 478 F.2d 213 239, Col.Hum.Rights 242 4 L.Rev. (9th 1973). Cir. (1972). States, 402, Dusky 80 In v. United 362 U.S. States, McCarthy 459, v. United 394 U.S. 788, (1960), Supreme 824 S.Ct. 4 L.Ed.2d the 466, 1166, 1171, 418, S.Ct. 89 22 L.Ed.2d 425 competency: Court the test enunciated (footnote (1969) omitted). Boykin See v. Ala present whether the accused “has sufficient bama, 238, 243, 395 U.S. 89 S.Ct. 23 ability lawyer with his a reason- to consult with 274, (1969). generally, Bishop, L.Ed.2d 279 See understanding degree rational able —and Guilty,” “Waivers in Pleas of 60 F.R.D. 513 a rational factual whether he has understanding as well as Comment, (1974); Guilty “The Plea as a Waiv- proceedings against the him.” Guilt,” Rights er and as an Admission 44 This codified standard is 24 D.C.Code Temple (1971). 540 L.Q. 301(a) (1973). 458, Missouri, 21; Zerbst, 464, supra, Drope n. Pate v. 28. Johnson v. 304 U.S. 58 Robinson, U.S. 86 S.Ct. S.Ct. 82 L.Ed. petitioner capac A who lacked the law in understanding an possesses entered intelligent to have an ity facts.”29 relation to the plea pursuant 32(d), to Rule withdraw collaterally and/or attack F.R.Cr.Pro.33 competency must A defendant’s to pursuant and sentence conviction to the specific reference “with be assessed 2255.34 One who seeks such relief which the decisions gravity of [he] an opportunity present offered must be capable of an accused is Whether faced.”30 the at a evidence motion “[u]nless essential choice”31 “reasoned making the files and the case and the records of conclu plea and the waiver validity prisoner is entitled sively show rights such as of constitutional . . . .”35 no relief upon par- . “depend[s] entails surrounding not, and circumstances ticular facts The trial court did and indeed expe- not, case, including background, rely upon showing could such a [the] Instead, ease.36 it denied rience, of the accused.”32 instant relief and conduct States, supra, See, McCarthy g., States, v. United n. e. Sanders v. United 373 U.S. 22 L.Ed.2d at 425 89 S.Ct. (1963); U.S. at 83 S.Ct. 10 L.Ed.2d 148 Rose v. omitted). (footnotes States, (8th 1975); 513 F.2d 1251 Cir. States, Floyd (5th v. United 365 F.2d 368 Cir. (foot- Eyman, supra, Sieling n. 26 at 215 1966), 376-7; and cases cited therein at Nelms omitted). Relying v. Arizo- on Westbrook note na, (4th 1963), 318 F.2d 150 Cir. 16 L.Ed.2d 153; and cases cited therein at Smith v. United distinguished compe- between which U.S.App.D.C. 169, 270 F.2d 921 competence waive trial tence to stand (en banc). generally, See Brakel and counsel, Sieling right held court in Rock, Mentally Law, p. Disabled pretrial competency is determination of that a (1971 ed.); Swadron, “Collateral Attack of plead inadequate competence to measure of an guilty. Federal Convictions on the Ground of Mental Note, “Competence Plead See Incompetency,” (1966); Temple Or- Standard,” L.Q. Guilty: Duke L.J. 149. A New field, Criminal Procedure under the Federal McGough ex v. Hew- States rel. But see United (3d 11.26 itt, Rules § 342 n. 2 Cir. 528 F.2d similarly recognized that the “level haveWe comprehension” necessary 28 2255. § 35. U.S.C. of awareness rights dif- waiver of constitutional for a valid course, petitioner automatically Of is “[a] not necessary to stand trial. the level fers from hearing incompeten- entitled to on his mental David, 117, U.S.App.D.C. v. 167 United States cy. He must set forth sufficient facts in his 355, (1975). n. In re 362 19 See 511 F.2d petition properly from which the court can de- Williams, F.Supp. (D.D.C.), order mod- 165 879 hearing.” that there termine is a need for a Overholser, grounds, v. ified on other Williams Estelle, (5th Bruce v. 483 F.2d n. 16 18, U.S.App.D.C. 259 F.2d 175 cert. 104 it Cir. But has said been that “[ordinar- 982, denied, States, v. United 379 U.S. Williams ily question competency of the to stand 689, (1965). 13 L.Ed.2d 572 Cf. Rees v. 85 S.Ct. trial is not one which comes within the excusa- 312, 1505, Peyton, 86 16 L.Ed.2d 384 U.S. S.Ct. tory provision 2255, making of 28 U.S.C. § (1966). 583 unnecessary "a . .” Nelms v. 215, supra, citing Sieling Eyman, at 31. v. n. 26 States, supra, n. 154. 34 at Hufstedler, Dunbar, Judge v. 423 Schoeller denied, Cir.), (9th 400 U.S. cert. F.2d 834, The district court 36. here noted that (1970). 27 L.Ed.2d 66 91 S.Ct. per- has Since somewhat more latitude to [it] 32(d), mit withdrawal under Rule it will view Zerbst, supra, U.S. at n. 32. Johnson light the Motion in the most favorable to the at 1466. See at 82 L.Ed. post-conviction defendant and consider the 30; David, supra, Na- n. United States also motions, 32(d). motions under Rule 8A U.S.App.D.C. ples v. United 32.07(4). Moore’s fl 307 F.2d Order, May p. 1. Memorandum 32(d) Joslin, Unlike 28 U.S.C. Rule has See, g., no United States v. e. “hearing” (1970); express provision, App.D.C. F.2d but “the same McGirr, 1970); (4th ordering hearing appears Cir. States v. F.2d for standard to be appropriate.” Gearhart 8A Federal Moore’s Practice (1959); v. Hol- 272 F.2d 499 United States § 32.07[4] land, (D.D.C.1959). F.Supp. 83 cy to (1) appellant’s prior failure to raise the issue conviction to on: is no bar based sentencing; (2) “it prior contradictory argue issue to its relief since is competence may incompetent, that a defendant be appellant observation of the personal yet knowingly intelligently dis- ‘waive’ his understanding apparent right the capac- to have court determine re- as evidenced his affirmative played, ity to trial.”42 stand colloquy; during guilty plea sponses, his role (3) appellant’s admissions of there Although early signs were suggest- course, grounds, robbery. These do retardation,43 ing appellant was first tested support without a the denial of relief plea. after of his entry Counsel informed hearing. only upon that learning appel- IQ appreciate lant’s he did import empha- The repeatedly district court signs those earlier and realize appel- that that sized factors “[a]ll lant might have been incompetent.44 Coun- as known raised bases for withdrawal were argued sel that sentencing.”37 The court observed prior he was misled defendant’s attitude capacity the defendant’s lack of that “[i]f and manner into believing that defendant claim, truly certainly serious it was a the proceedings understood con- and the prior sentencing, apparent sequences of his guilty. Defend- been raised at time.”38 This have ant appeared agreeable to be sug- to all misapplication reflects both a proposition gestions, nodding to though counsel as law, and a “basic failure criminal of our (Em- understood explanation.45 counsel’s system recognize special pro- justice phasis added.) must sometimes be made visions Counsel’s initial failure recognize ap- mentally retarded.”39 pellant’s retardation appellant’s appar- 32(d) specifically provides Rule ent acquiescence must be examined in the after conviction withdrawal both light example, of available research. For sentencing.40 There no limita time studies could introduced proper at a filing tion for of a 28 subject hearing, to examination cross- Supreme recog The examination, motion.41 Court indicating mentally competen- that the failure to nized raise the retarded often demonstrate an exaggerated Order, 9,May p. injustice 37. Memorandum correct manifest “[T]o the court may judgment after sentence set aside the permit Id. conviction and the defendant with- 32(d), plea.” draw his F.R.Crim.P. 18 U.S.C. Curiae, (footnote pp. Brief of Amicus 6-7 omitted). position of the Amicus is not 41. “A motion for such relief be made may subjected the retarded never to that be the See, any g., Bishop time.” 28 U.S.C. 2255. e. laws, for criminal this would be “antithetical to States, supra, (§ n. 24 2255 available professional efforts to the treat- ‘normalize’ challenge 17-year-old conviction); Bostic v. retarded, grant of the them ment and to full United F.2d See, citizenship. g., Kugel Wolfensberger, e. & (1961) (24-year-old conviction). also See Changing in Patterns Residential Services for Collier, (7th v. United States 399 F.2d 705 Cir. Mentally (President’s the Retarded Committee 1968). Retardation, 1969); Associ- Mental National Citizens, Policy of ation Retarded Statement on Robinson, supra, 42. Pate v. n. at 383 U.S. Rather, (1969).” Residential Care Id. the at 7. at 15 L.Ed.2d at 821. See frequently point is that “a retarded individual also, Estelle, supra, 35; Floyd v. Bruce n. requires good the offices of nonre- and efforts States, supra, n. 34. citizens in order his or tarded to have her safeguarded,” welfare American Association on 43. Supra, pp. Deficiency, 722-724. Papers, Rights Mental Position Mentally Persons, p. Retarded and See, Guilty Motion to Vacate Plea of may especially be ensure that true to the April p. 28 U.S.C. § preservation complex rights constitutional layper- sophisticated which even the most may Appellant, pp. be son unfamiliar. 45. Brief of 12-13. cooperate,46 and a denying hearing and need on a suggestibility 2255 motion goes undetect- frequently raising the issue of competency. retardation The im- propriety personal of reliance on ed.47 observa- highlighted tion is in the case of a retarded can the court’s reliance on Nor defendant. appellant personal its observations Supreme of the Decisions although determinative.48 And the district court ad appeals50 and the various courts of Court49 dressed before accepting plea, clearly apparent indicate that the trial court’s obser it is standard Rule 1151 apparent rationality vation of a defendant’s colloquy may prove inadequate an measure an comprehension and insufficient basis of the validity plea proffered by great suggested, example, degree There are It has been that the differences in may just guilt please functioning adaptive ability retarded confess oth- intellectual among See, Coi.Hum.Rights L.Rev., supra, mentally regarded. Cytryn ers. n. 23 See 254; Mentally Lourie, Floyd, Retardation,” Comprehen- at Retarded Public “Mental in Law, p. (1968); Psychiatry (Freedman, Offender and the President’s sive Textbook of II Ka- Retardation, Sadock, Report plan on Mental Committee Eds. This extreme Law, also, p. (1963). heterogeneity the Task Force on See within the class of those con- Daniels, Commonwealth N.E.2d sidered retarded contribute to the difficul- (Mass.1975). ty average recognizing citizen has in anoth- mildly er’s mental retardation. Most retarded 3-year empirical study The results of a of the persons appear “normal,” to others to be affecting operation of civil and criminal laws though thinking, speaking “slower” in retarded, Law, conducted the Institute of See, moving. Giagiari, Mentally “The Retarded Psychiatry Criminology, reported are in Offender,” Delinq.Lit. 339, 3 Crime & 561-2 Allen, Unrecognized “The Retarded Offender: (1971). Prison,” in Court and Untreated in 32 Fed.Prob. (1968). 22 phase In the criminal law-correctional “personally 48. The court noted that it had ob- study, of the six adult correctional insti- questioned served and the defendant and is of housing tutions inmates with below 70 opinion, IQ’s considered, all other factors Responses canvassed. were demonstrated that voluntary the defendant entered a and know- every “a confession had been obtained from ledgeable plea.” May Memorandum Order of sample plead retardate in [the] did pp. who 3-4. . guilty, except one.” Id. at 26. And while “vir- Robinson, tually represented supra, all of them were 49. See Pate v. counsel n. only admissibility . three cases was S.Ct. at 15 L.Ed.2d at 822 (“While [respondent’s] objected might of the confession to at trial.” Id. demeanor at trial be relevant to the ultimate decision as to his observed, 47. As one commentator research in- sanity, upon dispense it cannot be relied recognize “failure to dicates [retardation and] very issue.”); with a on that Sanders v. insensitivity or indifference to it” often account supra, 19-20, n. 373 U.S. at for the fact that a defendant’s mental retarda- (“However 83 S.Ct. at regular 10 L.Ed.2d at 164 ordinarily prior tion is not disclosed at or proceedings signed at which [he] Allen, 22, supra, 32 Fed.Prob. n. 46 at 25. trial. indictment, waiver of declined assistance of Kelgord, Mentally also Talent and See “The counsel, pleaded guilty might appear from Probationer,” Retarded 39 Fed.Prob. 39 transcript, might the petitioner it still be the case that particularly revealing aFor illustration of the intelligent did not make an way goes retardation undetected in the crimi- understanding waiver .... That see, Udall, process Haggerty, nal Kane and “An judge may thought have that he acted with Essay Legal Rights Mentally on the Re- understanding responding tarded,” Family The authors L.Q. judge’s inquiries ‘conclusively cannot conclude: show,’ requires, as the statute that there is no Where the defendant in a criminal case is present Cf., claim.”). merit in his Machibroda retarded, rarely this fact is learned. One States, supra, v. United n. mentally pressing problems the most of the default, were, by retarded is that as it their See, Collier, g., supra, e. United States v. n. rights ignored, disregarded, legal often or are 41; States, 25; supra, Hansford v. United n. simply Generally speak- violated. . . . States, 34; Floyd supra, v. United n. Bostic v. lawyers ing, most are unfamiliar with the States, 41; supra, Taylor n. v. United mentally legal rights of the retarded. As a States, (8th 1960); 282 F.2d 16 Cir. Smith v. result, mentally retarded do not have the States, (9th 267 F.2d 210 Cir. protection rights. of those Supra, Id. at 60. n. 7.

729 questionable compe- defendant may It be argued that we should observed, Supreme As the Court tence. appellant’s order withdrawal of plea on the inquiry required by of the nature “[t]he ground that the district court abused its necessarily vary 11 must from case to Rule discretion in failing to do so. But we be inquiries, . . . . In all such case lieve that the interests of the appellant and ritual, and not mere reality, ‘[m]atters justice administration of criminal ”52 controlling.’ should be by best be served a hearing properly examine and assess the nature and extent or in (3) Finally, appellant’s guilt appellant’s disabilities. Such informa proper dispensing basis for nocence is not tion is essential compe whether the issue is While evidentiary hearing.53 with an trial, tency to stand 32(d) plea, withdrawal of a Rule “a failure to demonstrate inno cence, criminal guilt, responsibility sentencing.56 or an admission of has ordinari fatal,54 may Only light relief be with the ly been considered of such information can regardless under 28 2255 hope accorded we the path § find to accommodating petitioner’s guilt or innocence.55 society’s need for deeply-held order with its States, 27, McCarthy 1, supra, U.S.App.D.C. 283, 120 v. United n. 394 343 F.2d 284 468-9, 20, 1171, (dissenting opinion), citing U.S. at n. 89 22 S.Ct. Williams v. New 426, citing Kennedy States, York, 241, 247, L.Ed.2d at v. United 337 U.S. 69 S.Ct. 93 16, (6th Cir.), denied, denied, 961, 397 F.2d 17 cert. 394 U.S. L.Ed. reh. 337 U.S. 1018, 1636, (1969). 1529, 1760; 841, 23 L.Ed.2d 43 S.Ct. Ac- S.Ct. 93 L.Ed. 338 U.S. cord, Eyman, Cf., 34, Sieling supra, (1949). n. 26. Sand- S.Ct. 94 L.Ed. 514 States, 34; supra, ers v. United n. Von Moltke Congress provided has various resources to Gillies, 708, 332 U.S. 92 L.Ed. gathering assist such informa- David, (1948); supra, United States v. n. g., presentence report, tion —e. examination appointment under 24 D.C.Code § 301 and psychiatrist psychologist under 24 D.C. expressed district court concern over 53. The States, Code U.S.App.D.C. 106. See § Leach v. United the fact “told no than less five remand, 320 F.2d after people robbery of his role in the . U.S.App.D.C. (1964). 334 F.2d 945 gun admitted he was the one with the [and] availability efficacy An awareness of the 9,May . .” Memorandum Order of sentencing of various alternatives for the re- 1974, p. 3. tarded offender is also essential. There is evi- dence, example, indicating pris- that while Practice, supra, 54. Moore’s Federal n. 32.- § few, provide any, meaningful programs ons if 07(4). See Watts v. United retarded, or services for the Courtless, see Brown and App.D.C. (1960). 278 F.2d But Mentally “The Retarded in Penal and Project see American Bar Association on Mini- Institutions,” Psychi- Correctional 124 Amer. J. Justice, Standards mum for Criminal Standards atry (1968), nearly pris- of our 10% Relating Guilty, 2.l(a)(iii) (App. to Pleas of retarded, population contrasted with a 1967) (“The may Draft defendant move for general pop- incidence of retardation in the 3% ulation. alleging withdrawal of his without that he areas, geographic Id. In some charge is innocent of the to which the reportedly comprise retarded more than 24% entered.”). been prison Dennis, population. “Tennessee’s Project Research Demonstration on the Practice, supra, 55. Moore’s Federal n. 32.- Offender,” Retarded Juvenile The Naive Of- 07(4). Essays (New England fender Format and Semi- nar on Retarded Youth and the Law Enforce- judges 56. Trial are accorded wide latitude in 1971), ment Process gord, supra, cited Talent and Kel- exercising determining discretion in sentences. 47n. at 39. This McCoy, due to United States v. the fact that the retarded individual “is more 429 F.2d This is considered easily apprehended, confess, prone appropriate judge more because the “will have heard convicted, likely trial, more to be and ... in- the evidence at observed the demeanor of longer defendant, carcerated than the nonretarded offend- absorbed the information in the the presentence report, Allen, Fed.Prob., supra, any per- er.” n. 46 further at 25. and heard Research also indicates that the retarded are sonal information or assurances offered allocution,” id., particularly and because “it vulnerable to defendant’s victimization See, brighter peers. Blackhurst, can command ‘the fullest information “Mental Re- alone Delinquency,” possible concerning Special the defendant’s life and tardation J. Educa- ” Bennings tion 379 characteristics.’ every intelligence. dignity point and worth normal This is our concern for being. disagreement. human Remanded. and Reversed special provisions We make effort and litigant litigant the end that the deaf or the (concurring): HASTIE, Judge Circuit comprehension English whose of the lan- Judge opinion, Bazelon’s Joining in Chief guage poor is shall understand what is tran- concurring only comment because I add this spiring knowingly. in court and act It my dissenting opinion erroneously, seems neither fair nor humane to refuse to — jurispru decision as a pictures this analogous appropriate view— make an special ef- every illiterate “licenses that sport dential appears per- fort when it that an accused impunity.” with the law to violate moron comprehension substantially son’s is im- merely recognizes this decision actuality In paired because of mental retardation. the fundamental and firm implements proper In these it is our circumstances rule that “if a defendant’s ly established procedure, for fair constant concern equally voluntary and plea is not guilty aberration, any doctrinal that dictates an in violation been obtained knowing, it has determine, evidentiary hearing to in the and is therefore void.” See process due light of all that is now known about Masth- McCarthy v. United mentality, plea ers’ whether his was volun- 1166, 1171, 22 L.Ed.2d 466, 89 S.Ct. was, tary knowing. If it that would hand, end the matter. On the other if procedure in By proper post-conviction permitted should be plea, to withdraw his it court, appellant put Masthers the trial should not be too difficult to find someone guilty plea whether his question issue working skilled in communicating knowing.” And “voluntary and had been the mentally retarded who could and would evidentiary for an on that issue he asked him, communicate effectively with so that hearing. participation in any proceedings further evidentiary court denied an district knowing would be and meaningful. plea valid on the hearing and found the showing that had original basis of the been open acceptance before ROBB,

made in Judge (dissenting): Circuit simply here is whether plea. Thus issue premise From the the defendant permitted court should have the district intelligence Masthers was a man of limited establish, could, if he in this majority extracts education post-conviction proceeding that his was incompe- that he have been conclusion not, arraignment, as it had seemed at vol- guilty, tent to enter a so that a knowing. untary necessary is to determine his com- out, Judge points Chief Bazelon data As petency. agree. my opinion I cannot In appeal, not before the before us on but. nothing there is in the support record to arraignment, strongly court at indi- district inference that incompetent Masthers was level of cates that Masthers’ exactly that he did not know what he was great so low and his mental retardation so doing plea. when he entered his all and done on the said Indicted with a co-defendant for armed pleading irrebuttably occasion of his did not robbery personal recogni- and released on comprehension of the relevant cir- establish zance June 1972 the defendant failed to meaningful election to cumstances and a appear arraignment on June dissenting opinion plead guilty. The seems fugitive He was a from that date until that, to reason since it is not contended that October 1973 when he was arrested on a “insane”, legally capacity Masthers was bench warrant. Meanwhile co-defend- ordinary explanation to understand an ant, Masthers, implicated pleaded who had voluntary knowing then make a elec- must be measured the standard of and was sentenced. tion “continually November 1973 Masthers entered stated that in On fact he had com- question the plea guilty question. which is here. mitted offense in Additional- pursuant ly, government He was committed 18 U.S.C. witnesses were inter- prior Addict viewed to the guilty the Narcotic Rehabilitation coun- sel, Act, testimony determine whether he was an and their addict was definite that the defendant likely to be rehabilitated under did the act complained of and the defendant stated program. report- NARA The NARA staff the confession was not coerced.” When questionable ed that his addiction was he entered his plea of guilty his counsel told the likely that he was not to be rehabilitated court that he explained had the matter through program. report the NARA Masthers “doing who was this of his own free functioning noted that he was “not at an will”. In response questions educational, from the court mental or social level of the Masthers acknowledged that he understood average person program”, referred to this rights, his understood charge against I.Q. being place his score 57 “which would him, which the explained, and that ‘mentally category”. him in the defective’ government’s oral statement of the “op- An achievement test indicated he was facts of the case was accurate. Although erating grade the second slightly above lev- the majority thinks it significant Having el of academic achievement”. re- Masthers answered only “Yes Ma’am” to report, together a presen- ceived the various questions from the bench I fail officer, report probation tence from the said; to see what more needed to be there District Court on March 1974 sentenced was no occasion speech. for a Finally, at imprisoned Masthers to be for not less than the time of sentencing Masthers told the years. two nor more than six court: April 12, Masthers, through On I know I have did some things, bad but I counsel, filed a “Motion to Vacate Plea of haven’t did nothing this before in my like 2255”; Guilty under 28 United States Code life, but like Lowy Mr. I said [his counsel] 6,May and on 1974 he filed a Motion for don’t have education, much every- 32(d) Withdrawal of Plea Guilty body knows that. ground Fed.R.Crim.P. The of both motions The majority suggests that in this case subsequent was that to the plea guilty reality “matters of . should be counsel became aware of evidence in the controlling”. I agree. I think the realities reports on the defendant he had a in this case are that the defendant under- I.Q. incompetent subnormal and was stood that he charged was with the armed 6,1974 plead guilty. May stand trial or On robbery witness, complaining knew counsel also filed a Motion for Reconsidera- guilty, was understood that his imposed tion and Reduction of the Sentence of guilty subject punishment. him to upon Masthers. The District Court con- Any other would, conclusion from the facts together sidered the motions and memo- submit, I be a masterpiece of naivete. randum order them hearing. denied without right. I think the court was Since the defendant understood what he doing the question comes to this: May This is not a case in which an innocent man who freely and with the ad- ignorance, man because of stupidity or vice of acknowledges counsel guilt by overreaching pleaded guilty to a crime plea of guilty avoid the consequences of his he did not commit. The record discloses plea upon ground that he is an unedu- witness, complaining that the who was held cated dullard? I think the answer must be up gunpoint, knew Masthers and was no. identify therefore able to him without diffi- culty. freely guilt Masthers confessed his today Until the law of this circuit has police, probation to the officer and the been that evidence of a low quotient NARA staff. In his motion to vacate the rating evidence of a plea his counsel asserted that certainly Masthers defect and does not demonstrate concept States, accepted we have never Stewart incompetency; 159, 165, responsibility. 275 F.2d theory of diminished banc, (opinion by J.) en U.S.App. Burger, rev’d v. United McDonald (1962) grounds, F.2d en other U.S. S.Ct. D.C. banc; change L.Ed.2d 84 If we are now to U.S. Stewart F.2d the law that action should be taken App.D.C. court, by way panel opinion full not banc, grounds, 366 U.S. rev’d on other en implications. The ma- and its 941, L.Ed.2d 84 doctrines; for sound abandons these jority intelligence and mea- low

if the defendant’s incompetent make him

ger education incompetent perforce then he is

plead guilty trial, if he should be tried he stand the defense of in- successfully raise

could majority creates for Thus the

competence. against charges circuit a new defense responsibility not crime —a lack of ALIANZA FEDERAL de MERCEDES The decision licens- amounting insanity. al., Appellants, et the law every illiterate moron to violate es accept I cannot such a doc- impunity. Accordingly I dissent. trine. FEDERAL COMMUNICATIONS COM MISSION, Appellants, Hubbard Rehearing Sponte Motion for On Sua Broadcasting Inc., Intervenor. En Banc No. 74-1895. BAZELON, Judge, and Chief Before TAMM, WRIGHT, McGOWAN, LEVEN- Appeals, States Court of ROBINSON, MacKINNON, THAL, ROBB District of Columbia Circuit. WILKEY, Judges. Circuit Argued Sept. ORDER April Decided PER CURIAM. April As Amended rehearing en banc initiat- The motion for regular a member of the Court in

ed denied, majority

active service is regular Judges who are active

Circuit (Rule having voted in favor of it

service Procedure). Appellate Federal Rules Judge of rea- of Circuit ROBB

Statement rehearing en voting

sons for banc. Cir- TAMM, MacKINNON and Judges

cuit concur in this statement.

WILKEY Judge of Rea-

Statement Circuit ROBB Rehearing En Banc Voting

sons for suggestion by

I have voted in favor of the re- my colleagues

one of this case be my judgment major- In

heard en banc.

ity opinion attempt is an to introduce the responsibility of diminished into the

defense rejected

criminal law of this circuit. We

Case Details

Case Name: United States v. Johnnie Masthers

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 15, 1976

Citation: 539 F.2d 721

Docket Number: 74-1602

Court Abbreviation: D.C. Cir.