Joint appeal by Jessie Oliver and Gregory Cooper from judgments entered in the Western District of New York by Judge John T. Elfvin convicting them, after separate jury trials, of aggravated bank robbery, 18 U.S.C. § 2113(d) and conspiracy to commit bank robbery, 18 U.S.C. § 371. The conviction of Oliver is affirmed. The conviction of Cooper is reversed and his case remanded for a new trial.
Before Waterman, Mansfield and Timbers, Circuit Judges.
Gregory Cooper and Jessie Oliver, who were named with Ethel Mae Ridgeway*fn1 in a four-count indictment charging bank robbery, jointly appeal from judgments entered in the Western District of New York by Judge John T. Elfvin convicting each, after separate jury trials, of one count of aggravated bank robbery, 18 U.S.C. § 2113(d), and one count of conspiracy to commit bank robbery, 18 U.S.C. § 371.*fn2 The convictions occurred after Oliver's trial was severed from that of his co-defendants and each was tried before a separate jury in October and November 1979. We affirm Oliver's conviction, reverse Cooper's and remand the latter's case for a new trial.
On June 27, 1979, the West Utica Street office of the Liberty National Bank, Buffalo, New York, was robbed by three black individuals who used hand guns to hold up the bank personnel, took approximately $12,355 and left in an automobile driven by a black woman. On August 8, 1979, Oliver was taken into custody by two FBI agents. After waiving his Miranda rights, he related his participation and that of Cooper and Ridgeway in the robbery. After being indicted, Oliver moved to suppress this statement. At the suppression hearing one of the FBI agents testified as to the circumstances of the confession, detailing his impressions of Oliver's appearance and abilities. The suppression motion was denied.
On October 2, 1979, Oliver pleaded guilty to count two of the indictment which charged bank larceny, 18 U.S.C. § 2113(b), pursuant to a plea bargain agreement which provided that the other counts would be dismissed at the time of sentencing in exchange for Oliver's promise to testify truthfully at the trial of his co-defendants and to assist the government in identifying a fourth individual involved in the bank robbery. Before accepting Oliver's guilty plea, Judge Elfvin placed Oliver under oath and questioned him about his involvement in the robbery.
The trial of Cooper and Ridgeway followed during the period October 17-22, 1979. Three bank employees who had been on duty on June 27 described the robbery. Although one employee (Sally Panepinto) described the general appearance of one of the robbers, neither she nor another employee (Anne Lindemann) could identify the defendants. A third employee (Denise Cook) described one of the robbers who jumped the counter and, although unable to identify him at trial, had selected a "mug-shot" type of photo of Cooper from an array as the person whom she thought was one of the robbers. The photo was received in evidence. Two witnesses who were outside of the bank immediately after the robbery testified to seeing black individuals flee the scene in a gold colored car bearing a certain Colorado license plate number. Another, who was acquainted with Oliver, testified to seeing Oliver and Ridgeway seated in a beige colored auto, bearing Colorado plates, with two other black persons in a parking lot near the bank. On June 30, 1979, three days after the robbery, Cooper bought a 1979 Chevrolet Monte Carlo car, paying cash on July 2, 1979, of which approximately $2,000 consisted of consecutively numbered $100 bills.
During the trial of Cooper and Ridgeway, Oliver was brought before the court and examined outside the presence of the jury because of concern that he may have changed his mind and might not testify. Under oath Oliver admitted his involvement in the robbery and detailed the participation of his co-defendants. Yet when called to testify before the jury the next morning he refused to answer any questions at all. After excusing the jury Judge Elfvin informed Oliver that, contrary to what his attorney may have advised him, Oliver did not have a Fifth Amendment privilege, and that his refusal to testify would constitute a breach of his plea agreement. Oliver nevertheless persisted in his refusal to answer any questions and he was excused. At that point Oliver's attorney asked permission to withdraw, and new counsel was appointed.
The Government then offered against Cooper, over his objection, Oliver's written statement detailing Cooper's participation in the robbery, which the court received in evidence against Cooper under Fed.Rule of Evid. 804(b)(3).*fn3 James Matthews, an acquaintance of Cooper and Oliver, testified that in mid-June 1979, Cooper told him as they were driving by that the bank would be "sweet to knock off," that in early July he saw Cooper in a new 1979 Monte Carlo, and that Cooper stated that he had robbed the bank.
On November 5, 1979, after the jury trying Cooper found him guilty, Oliver was permitted to withdraw his guilty plea and stand trial. At his trial his confession was received in evidence against him. Following a jury verdict finding him guilty, Judge Elfvin sentenced both defendants, entering the judgments of conviction from which they jointly appeal.
Title 18 U.S.C. § 4244 provides for the psychiatric examination of an accused where there is reasonable cause to believe he is incompetent to understand the proceedings or assist in his own defense.*fn4 A defendant is considered competent if "he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . and . . . has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). See also, United States v. Sullivan, 406 F.2d 180 (2d Cir. 1969). Guided by this test the judge must exercise his discretion to determine whether there is "reasonable cause" to believe that the defendant may be incompetent. Newfield v. United States, 565 F.2d 203, 206 (2d Cir. 1977). See also United States v. Hall, 523 F.2d 665, 667 (2d Cir. 1975); United States v. Vowteras, 500 F.2d 1210, 1212 (2d Cir.), cert. denied, 419 U.S. 1069, 95 S. Ct. 656, 42 L. Ed. 2d 665 (1974); Zovluck v. United States, 448 F.2d 339, 342-43 (2d Cir. 1971), cert. denied, 405 U.S. 1043, 92 S. Ct. 1327, 31 L. Ed. 2d 585 (1972); Mirra v. United States, 379 F.2d 782, 787 (2d Cir.), cert. denied, 389 U.S. 1022, 88 S. Ct. 593, 19 L. Ed. 2d 667 (1967).
The record here discloses no abuse of discretion by Judge Elfvin in making this determination. Prior to trial Oliver's counsel*fn5 moved to have him examined to determine pursuant to § 4244 his competency to stand trial. The supporting affidavit indicated Oliver's history of heavy drug use,*fn6 lapses of memory, unresponsiveness, inconsistent answers during interviews with counsel, low intelligence, and unexplained refusal to testify at the trial of his co-defendants. The record, however, reveals that Oliver's answers, although short, were responsive and evidenced no confusion or lack of understanding. Both during his trial and at the trial of his co-defendants Oliver demonstrated his understanding of the proceedings. Judge Elfvin had ample opportunity to observe him and directly questioned him. Before concluding that Oliver "appeared . . . to be alert and abreast of what was going on" Judge Elfvin justifiably relied on his extended observations of Oliver in deciding that he had sufficient mental capacity to stand trial. See Riccardi v. United States, 428 F. Supp. 1059, 1065 (E.D.N.Y.), affd., 573 F.2d 1294 (2d Cir. 1977); United States v. Vowteras, supra, 500 F.2d at 1212; Zovluck v. United States, supra; United States v. Sullivan, supra, 406 F.2d at 185; Mirra v. United States, supra, 379 F.2d at 787; 81 Harv.L.Rev. 454, 469 (1967). Oliver's intelligent responses to questions put to him by the court provide further evidence of his competency. See Falu v. United States, 308 F. Supp. 1051, 1052 (S.D.N.Y.), affd., 421 F.2d 687 (2d Cir. 1969).
Oliver's assertion of his history of heavy drug use called for more careful scrutiny of his claim despite the "apparent regularity of the proceedings," Wojtowicz v. United States, 550 F.2d 786, 790 (2d Cir.), cert. denied, 431 U.S. 972, 97 S. Ct. 2938, 53 L. Ed. 2d 1071 (1977). However, drug use does not per se render a defendant incompetent to stand trial. United States ex rel. Fitzgerald v. LaVallee, 461 F.2d 601, 602 (2d Cir.), cert. denied, 409 U.S. 885, 93 S. Ct. 121, 34 L. Ed. 2d 142 (1972). The use of drugs is merely a relevant factor in the trial judge's determination. Neither the FBI agents who arrested Oliver nor Judge ...