United States v. Yvonne Cooks Johns
728 F.2d 953
7th Cir.
1984
Check Treatment

*1 Woodman, salaries. In re Bankr. receivable when the accounts receivable Rather, 688 (Bkrtcy.W.D.Wis.1981). came into 547(e)(3) existence. Section does of their employers portion owed that sala- not come into in play this case simply be- directly garnishment plaintiffs ries to the garnishment cause after a order providing were to the plaintiffs liable those continuing for a lien Indiana, is entered in wages amounts if the were not withheld debtor acquire will never in rights por- True, pursuant to the orders. tion of her wages garnished his or to be in employers wages were not liable until the garnishment future. Once a order has earned, were actually but once court been aby court, entered the debtor’s rights orders were entered the debtors were no in 10%of his or her wages future are irrev- longer entitled to of their legally 10% fu- ocably transferred garnishment ture salaries. Because the court orders le- plaintiff. gally transferred 10%of wages the debtors’ Accordingly, affirm the order of the garnishment plaintiffs, there were no bankruptcy judge. garnish- transfers the time of the actual ments in question. Bankruptcy Judge

ruled correctly because no transfer of

the debtors’ within property occurred nine- ty days filing of the petition, there preference avoidable either of in cases before us. argue 547(e)(3)2 debtors re- § quires different result. We disagree. America, UNITED STATES of This section was enacted to overrule this Plaintiff-Appellee,

court’s decision in Grain Merchants of Indi- ana, Co., Inc. v. Bank Savings Union 408 F.2d 209 (7th Cir.1969). Sen.Rep. No. JOHNS, Yvonne Cooks 95-989, Cong., 95th 2d Sess. 89 Defendant-Appellant. printed in 1978 Cong. U.S.Code & Ad.News 5787, 5875; H.R.Rep. 95-595, No. 95th No. 83-1595. Cong., 1st 374(1978), Sess. reprinted in 1978 Appeals, States Court of U.S.Code & Cong. Ad.News 6330. In Seventh Circuit. Merchants, Grain this court held that rights acquired in accounts receivable within the Argued Nov. 1983. preference period preference were not a Decided March 1984. when bank’s security interest after- acquired perfected accounts receivable was

more than filing four months

bankruptcy petition. Although there are factual similarities between Grain Mer-

chants and us, the cases before the analogy perfect. is not important most distinc- law, tion is that under Indiana the debtors retained no their interest 10% of future

wages following garnish- entry of contrast, ment orders. filing of fi- nancing statements in Grain Merchants did

not transfer ownership of the debtor’s fu- receivable;

ture accounts that debtor would acquire some the future accounts 547(e)(3) (1982) acquired rights U.S.C. prop- states: “For the until the debtor in the section, purposes erty of this is not transfer made transferred.” *2 Ill., Pomeranz, for de Chicago, L.

Kay fendant-appellant. Lewis, Atty., Springfield, A. Asst. U.S.

James l., plaintiff-appellee. for Il ESCHBACH, Circuit BAUER and Before CAMPBELL, District Senior Judges, and Judge.* ESCHBACH, Judge. Circuit to kid- pled Yvonne Cooks Johns of 18 U.S.C. § in violation napping fifty years. sentenced to a term of and was there is whether appeal issue on sole the trial was sufficient evidence fide doubt about to raise a bona there We hold competency. was, the case to the therefore remand further proceedings. court for district

I. kidnap- charged was

The defendant February returned in an indictment ping and at appointed, was 1983. Counsel 15, the February opening of ensued: following colloquy plead? How do Court: guilty. attorney]: Not Noll [defense Honor. pled guilty, I Johns: [sic] guilty, Not Your Honor. Noll: Yes, guilty. plead I I want to Johns: do. guilty. plead I am Noll, objections, his client’s again over Mr. hear- When the a short recess. suggested resumed, leave to requested Mr. Noll ing counsel, informing the as Johns’ withdraw * by designation. sitting Campbell, Senior Dis- William J. The Honorable Illinois, Judge Northern District of trict for the plead guilty that his client’s desire to am able represent —God his recommendation. fense. am —I don’t need —I don’t need questioned anyone. Ackerman and her of counsel’s plea, Mr. Noll then allowed to withdraw as The defend- opposing plea. reasons attorney. *3 responded: ant At presentencing hearing February me, Honor, forgive but mockery the 24, Judge Ackerman told the defendant lord I reigneth is over. The in me. can- that he wanted to sure she understood plead innocent or not some- guilty to consequences the of both her guilty thing I am I am of. I do se. to proceed pro and her decision plead guilty. to questioning by the judge, Judge Ackerman then questioned either not respond defendant did or answer- fendant background. He “yes” ed “no.” merely At the March completed high ascertained that Johns had sentencing hearing, following discussion school,” years “x-ray school that ensued: she had come Illinois to work in a house Johns, Court: Miss do you want of prostitution where she had remained for anything to the Court? You want week, that she had no friends or relatives say anything before sentence im- area, in the and that she had never been in posed? trouble with the law or treated for mental Johns: No. Judge

illness. Ackerman then carefully you Court: Would know this is a for- —I outlined the defendant mal place. ... Would you like to talk be relinquishing guilty plea, would with a you to me? Would like to tell any- me questioned defendant about her thing you ought think I to know rights. these your ... to make sentence less or make understood, plied she and the following me more your understand situation or colloquy ensued: perspective? over, Johns: My grief and —it’s over. I See what I mean? would also like to waive to an you Would like tell me about this? attorney because I don’t need one. no Receiving response, the judge left Court: Okay. bench to sit with the defendant and asked Johns: The lord is my attorney. three more times if the defendant had Okay. get just Court: We will government’s case. Again, Are you okay? a minute. Do you the defendant nothing. judge said want a short recess? then asked whether the defendant had read Johns: No. presentence report. The defendant said questioned Johns was then sworn and not, she had and then that she had read judge concerning the factual basis of some of it. judge suggested a short plea. helped Johns insisted that no one report, recess so could read the but kidnapping, despite commit the having defendant refused: told several inconsistent stories to various no, Court: You say you don’t to? want law enforcement judge authorities. The Johns: believe in Jesus Christ. again asked Johns whether she ever had You Court: believe in the Lord. I under- illness, been treated for mental and Johns stand, but— replied that had not. He then asked Johns: believe in Christ. Mr. Noll if he believed Johns Okay. Yes. Court: understand that. tent. Noll replied judge she was. The How about the presentence report. tentatively accepted guilty plea, Johns' but Have it? read the defendant it advised that was unwise to I really say. Johns: have no more to proceed a lawyer. without The defendant replied: Court: You have no to say? more 1251, 1255(8th Cir.1975).2 When a head.) (Shook

Johns: compe findings about had made hear- one month of Within defendant, we will overturn of a tency was transferred ing, showing that only upon a findings those in West Penitentiary at Alderson hospital erroneous. See clearly they hospital Virginia. She remained Voice, Cir. States trans- May month and on one But when 1980), and cases cited therein. Psychiatric Service Female ferred there been Correctional Center Federal Ward determination, review is our judicial Lexington, Kentucky. Cha comprehensive. II. vez, 656 F.2d 512 cir presented If At first raise a fide doubt bona cumstances *4 Ackerman, the defendant contradicted con “present ability a defendant’s until evidently a de who had believed attorney, his with reasonable lawyer sult with into call intended understanding,” or the defendant gree of rational moment that well as a defendant’s “rational question attorney requested not plead proceedings,” of the factual his be to withdraw because that he allowed 402, States, 362 402, v. United Dusky U.S. posi him in “difficult plea placed client’s a 788, 789, (1960) (per 4 L.Ed.2d 824 80 S.Ct. tion,” “this woman but maintained that hearing to curiam), the must hold a counsel.” The defend needs assistance of compe the defendant determine whether counsel, assistance of ant soon after waived Chavez, 512 v. F.2d tent. United States 656 attorney.” stating “The lord DiGilio, States v. Cir.1981); 538 United (9th statements, coupled defendant’s actions denied, cert. (3d Cir.), 429 U.S. F.2d 972 at pled an the fact with 733, (1976); 1038, 97 50 L.Ed.2d 749 S.Ct. at with no stage proceedings early States, 1149 Wolcott v. F.2d United 407 suspi should have raised tempt bargain, denied, cert. Cir.) (en banc), 396 U.S. (10th with ability to “consult cion about her [her] 879, 156, 24 137 90 L.Ed.2d S.Ct. degree of ra attorney with a reasonable exists to courts, if reasonable cause federal v. United understanding.” Dusky tional time competence at a defendant’s doubt 789, States, 788, 80 4 362 U.S. S.Ct. prior imposition arrest to the Unit curiam). (1960) (per 824 L.Ed.2d sponte must sua sentence, order a a Chavez, v. 512, ed States 656 F.2d 519 defendant. Cir.1981) (court factors considered similar good-faith a doubt 4244.1 Once 18 U.S.C. § doubt). raising bona fide as evidence exists, on the de may the court rule Suspicions about defendant’s before it orders competency fendant’s a fide the level of bona doubt tency reached v. Met 4244 examination. United States § se pro appear- next the defendant’s calfe, at cert. (7th Cir.), 881 — court. The defendant of- denied, —, ances before the 103 76 S.Ct. U.S. States, questioned by the Rose v. when ten remained silent (1983); L.Ed.2d 814 pertinent ings pending. Upon upon part: motion or such U.S.C. 4244 states 1. 18 § accused, in behalf or motion impo- a similar Whenever after arrest and motion, upon its court shall cause At- own ... the United States sition of sentence as to torney to be examined his to believe a the accused ... cause reasonable against by qualified person charged with an offense mental condition least one may presently insane or report United States psychiatrist, to the court. who shall mentally incompetent toas otherwise so preliminary may unable to a understand The court hold defense, properly request him or assist in his own he acting a 4244 exami- before for judicial determina- shall file motion for prop- request whether nation determine competency ac- tion of such mental Metcalfe, supra; erly cause. shows reasonable cused, ground setting for such belief forth Rose, supra. proceed- in which such trial court

957 judge. reply, Finally, government When she did notes that the defense attorney, an in monosyllabic nonresponsive. were either court, stated his belief that the instance, quiry in- For to the court’s defendant was we competent. While have about whether she wanted to read quiry stated that an attorney’s representa presentence report, replied, tions about his client’s are enti v. “I in Jesus Osborne believe Christ.” See consideration, see, tled to e.g., United (M.D.Tenn. Thompson, 481 F.Supp. Metcalfe, (7th Cir.), 698 F.2d 877 aff’d, 1979), F.2d denied, — U.S. —, cert. 103 S.Ct. When times asked least three if 76 L.Ed.2d 814 we believe that anything would the court before explanation attorney’s where sentencing, defendant remained silent. assessment elicited of States, See Saddler fered, attorney’s familiarity and the (2d Cir.1976) (to protect 85-86 defendant’s his client has question by been drawn into allocution, right of court should not proceed surprise actions, his obvious at his client’s to sentencing nonrespon- where defendant’s dispositive. his assessment is not competency). sive raise doubt about replies We do not hold that defendant was government contends that the de- incompetent during the pro- district court testimony relating fendant’s the factual ba- ceedings. And note the defend- sis of her an ability indicates recall ant’s statements and actions be con- could *5 the and recount circumstances underlying strongly-held strued consistent a However, charge. at the belief God her own guilt. and Doubts hearing, government attorney the the told by actions, however, the raised defendant’s court: should not be resolved in favor of Miss on stories Johns told —told [T]he We hold the trial tency. that court should people occasions to various within many have ordered a psychiatric examination of and without law enforcement communi- the pursuant provisions defendant the of ties can to be said inconsist- 18 U.S.C. § thing The only ent .... consistent about urged We are reverse judgment the her always statement is that it seems to and sentence and remand the case previous evolve from a statement she’s district court for a trial. fashioning new In given upon based new whatever informa- however, remedy, a of cognizant the tion she think every learns.... that possibility conducting of a pro nunc tunc time there is a of piece new information determination of competency. that something contradicts previ- said ex Franzen, States rel. v. 686 Bilyew F.2d oh, is ously, willing she more than to say, 1238, 1246 Retrospective

yes, did that also. determinations, competency not fa while vored, Missouri, Drope 162, see v. 420 U.S. government The care points also 183, 896, 909, 43 95 S.Ct. L.Ed.2d 103 with which the trial de judge advised the may provided nevertheless be conducted a the rights fendant of she was relinquishing meaningful hearing on the issue the com of deciding plead guilty proceed pro and petency prior pro defendant se. de Ackerman’s concern that the See, is still ceedings possible. e.g., Bilyew, of fully apprised import fendant be of 1246; Estelle, 686 supra, Zapata F.2d at v. her decisions is from the evident record. 1017, (5th Cir.1979); 588 F.2d 1021 Harkins demonstrate, however, does record not 1308, v. 552 Wyrick, (8th F.2d 1311 Cir. competent that the defendant was to com DiGilio, 1977); United 538 F.2d prehend her and 972, (3d Cir.), denied, 989 cert. 429 U.S. States, her. See v. United Wolcott 1038, 733, (1976). 97 S.Ct. 50 L.Ed.2d 749 1149,1150-51 Cir.) (en banc), (10th denied, 156, cert. 396 90 24 U.S. S.Ct. Accordingly, we remand this case (1969). L.Ed.2d 137 district court with the instruc- following 958 guilty apparently that sur- plea true Johns’ court first determine

tions. The should waiving attorney, her that her prised hearing on the meaningful whether a significant implications to counsel carried prior proceed- fendant’s case, her statement that for her and that possibility ings possible. still was an unusual my attorney” Lord case such can be held this “[t]he relationship of way expressing the trial court by the fact that enhanced none though, of my opinion, God. exami- of psychiatric will have the benefit doubt about genuine statements raised shortly on the defendant performed nations “present ability to consult with [her] Rose v. United after her incarceration. degree of rational lawyer with a reasonable States, n. Cir. 1257 6 States, understanding.” Dusky 1975) of state of accused (evidence mental 80 S.Ct. L.Ed.2d U.S. soon relevant to determi- after explained to district court of at time of nation of accused’s state mind decisions, implications Johns of her could also attorney The defendant’s plea). do indicate that she Johns' not earlier testify concerning the basis of his appreciate significance failed to of determines, If the court assessment. inquired court also into actions. The basis of was the influence whether Johns under relevant, it deems testimony whatever had drugs, and whether ever alcohol hearing for the meaningful it can conduct a Although illness. been treated mental purpose determining opinion acknowledges the majority it conduct prior proceedings, at the should attorney Johns’ defense told If, hearing. hearing, such a after such mentally competent, he believed Johns competent, court concludes that Johns was questioning omits majority affirmed; if it the conviction shall stand commented that the court itself con- competent, concludes she to be competent: Johns seemed However, if the viction must set aside. Okay. The Court: meaningful initially determines attorney], Mr. Noll defense [appointed defend- hearing on *6 to you have talked Miss Johns. longer ant is no at vacated, possible, the must conviction to Any mentally reason think she’s at as and the defendant retried such time competent? competent found to stand trial. certainly appears mentally to She to me. competent III. Honor, she’s men- No, Mr. Noll: above,

For reasons we re- expressed tally competent. mand case to for fur- the district court 15, 1983, 29. Proceedings, Tr. of Feb. at ther proceedings opin- consistent with this majority's I also conclu- disagree ion. Rule not apply. Circuit 18 shall her responses sion that Johns’ next before the district court raised appearances BAUER, dissenting. Judge, Circuit to a suspicions about her pleading Defendant Johns insisted on majority opinion bona doubt. The fide counsel, guilty, waived her to silent, Johns’ as characterizes deep invoked a belief in God. I do not re- nonresponsive, yet monosyllabic, to believe that this evidence was sufficient transcript virtually view of the shows raise a bona fide doubt about Johns’ appropriate. all of answers were tency, respectfully and therefore I dissent were Her answers monosyllabic responses majority’s from the conclusion. “no,” in to “yes” principally response of to attempts appoint majority repeated states that Johns’ the court’s opinion her, silence was in at her new counsel for and her behavior first before asking whether suspicion court her to the court district raised a sentencing. It to anything consult is had attorney. ability nonresponsive Her was “I tigation. statement The court and the Assistant Unit- believe in the Lord Jesus Christ” in answer ed States Attorney repeatedly attempted to court’s inquiry whether she persuade Johns to reveal her in accomplices presentence wanted to read the entire the crime. When cooper- Johns refused to port. do not believe that this ate, the court sentenced her fifty years alone raises a regarding bona fide doubt the federal penitentiary with the admonish- of competency, especially light her ment want to be honest with “[i]f earlier-mentioned tendency express Court, you let me know.” Tr. of Pro- religious in an beliefs unorthodox fashion. ceedings, March at 14. Although agree with Johns’ contention I ani convinced that Johns’ reluctance to post-trial may help clarify events identify the other persons involved here, Appellant’s evidence br. disa- kidnapping, not mental ac- incompetency, gree with the conclusion that Johns draws counts for her actions. I re- Accordingly, post-trial developments. from those spectfully dissent. infers her transfer from penitentiary ward two months sentencing hearing helps to show mentally incompetent she was at the

time of trial. Neither Johns’ brief nor the however,

majority opinion, discloses that Johns since has been transferred back to importantly, More penitentiary. Director the Bureau of is re- Prisons NATIONAL LABOR RELATIONS quired by statute notify district BOARD, Petitioner, post-sentence inspection

if probable shows cause that a criminal defendant was men- tally incompetent at the time trial. 18 CORPORATION, ACME DIE CASTING U.S.C. 4245 The record void of Respondent. any indication that the district been any inspection notified of showing No. 83-1310. mentally Johns was incompetent, and Appeals, United States Court of thus, by negative implication, we can con- Seventh Circuit. clude that any examination Johns con- ducted at the psychiatric ward did not re- Argued Jan. 1984. veal mentally incompetent. that she was Decided March *7 provides The record a more logical expla- nation Johns’ behavior before the district

court. Initially, Johns had told the FBI

that she had been coerced into kidnapping the child and that the kidnapping was an

act of retaliation the child’s mother.

During appearances court, before the Johns stated else one had been

involved in the kidnapping. Johns took full

responsibility for the crime and claimed

that she kidnapped child for the money. ransom At the hearing, the district court told Johns that he be- story

lieved her earlier and was convinced kidnapping was in retaliation the mother’s cooperation Spring- with the

field Police an Department in earlier inves-