United States v. Clark ( 1995 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 94-10833
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LONNIE D. CLARK,
a/k/a Chick Clark,
Defendant-Appellant.
_______________________________________________
Appeal from the United States District Court
For the Northern District of Texas
(5:94-CR-18-C-01)
_______________________________________________
(April 24, 1995)
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
After the district court declared Lonnie D. Clark competent to
stand trial, Clark pled guilty to mail fraud, see 18 U.S.C. § 1341
(Supp. V 1993) and 18 U.S.C. § 1342 (1988). Clark appeals his
conviction, asserting that the district court erred in determining
that he was competent to stand trial. We affirm.
*
Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
I
Over a fifteen month period, Clark obtained numerous
disability insurance policies with an aggregate monthly benefit
amount of more than $97,000. In the superseding information to
which Clark pled guilty, the Government alleged that Clark had
obtained these policies under false and fraudulent pretenses as
part of an intentional scheme to defraud and obtain money from
various insurance companies.
After all but one of the disability policies became effective,
Clark was involved in an automobile accident. Hospital records
indicate that he was unconscious and unresponsive to pain, but
suffered from no obvious external trauma.1 Doctors diagnosed Clark
as having a closed-head injury and possible diffuse swelling of the
brain.2 One day later, Clark was transferred to another hospital,
where doctors found only that small areas of Clark's brain might
have suffered from a lack of oxygen.3 Shortly thereafter, Clark
was admitted to another hospital, where he incorrectly informed the
staff that he had been unconscious for twenty-four hours after the
accident.4 During a psychological assessment, Clark complained of
1
According to the hospital records, Clark was unconscious for seven
and one-half hours, after which he awoke, complaining of dizziness and a
headache.
2
While the record reflects considerable disagreement over the severity
of Clark's head injury, the occurrence of the accident and the existence of some
head injury are not in dispute.
3
In the report she prepared for the competency hearing, Dr. Emily
Follis, a forensic study specialist for the Bureau of Prisons, noted that a
normal brain that had not suffered any trauma could also display signs of having
suffered from a lack of oxygen.
4
Clark also told the staff that, before the accident, he had never
experienced any of the problems of which he was complaining. Bureau of Prisons
records indicated, however, that Clark had reported being involved in numerous
severe disorientation, cognitive confusion, blurred vision, and
ringing in his ears, complaints not listed in records from the
other two hospitals. Although an IQ test indicated that Clark
possessed average or above-average abstract thinking capabilities,
the psychologist diagnosed Clark as showing cognitive dysfunction
due to organic brain damage.
After Clark was discharged, a neurosurgeon referred him to Dr.
Randall Wolcott. Clark told Wolcott that he had been unconscious
for nineteen hours after the accident. Based on the neurosurgeon's
referral and information given by Clark, Wolcott diagnosed Clark as
suffering from a significant post-concussion syndrome.5 Clark then
visited Dr. Bilde, Medical Director of the Comprehensive Medical
Rehabilitation Center, to whom he provided similarly erroneous
information concerning the length of his unconsciousness. Bilde
stated that Clark manifested signs of "symptom magnification" and
appeared mentally competent. Clark was later examined and tested
by other health-care providers, who diagnosed Clark as suffering
from varying degrees of cognitive impairment and memory loss.6
Throughout the period that he was being examined, tested, and
automobile and plane crashes, and had at various times complained of dizziness,
seizures, fainting spells, breathing problems, muscle spasms, and knee, neck, and
back problems.
5
Among the symptoms Clark described to Wolcott were headaches,
fainting spells, back pain, ringing in his ears, memory impairment, slowed
thinking, irritable moods, and sleep disturbances. In making his diagnosis,
Wolcott did not review Clark's past medical records.
6
Dr. Follis identified several inconsistencies among the reports from
persons evaluating Clark, including the independent neuropsychologists to whom
the FCI sent Clark. She concluded that these inconsistencies were the result of
both the false information supplied to the doctors by Clark and Clark's
consistent exaggeration of his symptoms.
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diagnosed by health-care providers, Clark also attended to his
several business ventures. Within two months of the accident,
Clark began collecting monthly payments under some of the
disability insurance policies, which, by the date of his arrest and
indictment in 1994, paid him over $ 917,000. Clark "rolled" the
insurance proceeds by purchasing cashier's checks, holding the
checks for a while, and then using them to buy new cashier's checks
in a different payee's name. Clark also opened five new bank
accounts, three of which were in Clark's name but under his son's
social security number. The other two were corporate accounts for
Nevada Gold & Silver, Inc., a corporation Clark had formed.7 He
transferred to Nevada Gold & Silver the titles to eleven vehicles
registered in his name originally. After these transfers, Clark
claimed an exemption from Texas' use tax law for the vehicles.8
Clark engaged in other post-accident business dealings. At an
auction in Dallas, Texas, he purchased more than $20,000 in goods,
designating them for resale to avoid paying Texas' sales tax. He
also made a number of oil and gas investments with Michael Smith,
the President and CEO of Skully and Smith Oil Corporation.
7
Clark established Nevada Gold & Silver with the assistance of Derrick
Rolley, Vice President of Corporate Service Center (CSC). CSC is a Nevada
company that forms corporations, files corporate papers, acts as a resident
agent, and provides other services to corporations. Rolley testified that,
although he normally spent about an hour with a client who wanted to form a
corporation, he spent only 15 to 20 minutes helping Clark set up Nevada Gold &
Silver because Clark appeared to know exactly how he wanted the corporation
structured.
8
The last of the transfers occurred while Clark was on furlough from
the Federal Correctional Institution (FCI), where the district court had sent him
for his competency evaluation.
-4-
According to Smith's testimony, Clark was a reasonably
sophisticated investor who was conversant in oil and gas industry
jargon and with whom Smith had no trouble communicating.9 Two
months before his arrest and indictment, Clark, as a co-applicant
with Nevada Gold & Silver, opened an account with Kennedy & Cabot,
a discount brokerage firm.10 Kennedy & Cabot places stock orders
exclusively for sophisticated investors who do not require advice
concerning how or with whom to invest. Some of the stock orders
placed through Kennedy & Cabot were for stocks sold on Canadian
exchanges. Many of the orders were limited, that is, Clark or Jose
Fernandez, his associate, directed the transactions by specifying
prices at which to buy or sell shares.11
Based on his allegedly illegal transactions, Clark was
indicted on charges of mail fraud, money laundering, and criminal
forfeiture. On the Government's motion, the district court ordered
that Clark be committed to the FCI for a thirty-day evaluation of
his mental competency to stand trial. While Clark was at the FCI,
Dr. Emily Follis evaluated and observed Clark. After reviewing his
available medical history and conducting interviews with Clark and
9
Smith testified that Clark understood industry terms such as royalty
interest, working interest, current, and turnkey, and that Clark was aware that
the meanings of these terms might vary from one operator to the next. Smith also
testified that Clark discussed his past and current legal problems during the
course of their business conversations.
10
The account was opened with a $ 100,000 cashier's check purchased by
Clark, and the account records listed Clark's name and Brownfield, Texas, address
and telephone number, although another person, Jose Fernandez, was also listed
as a co-applicant.
11
It is unclear from the record how many, if any, of the stock
transactions were conducted by Fernandez and how many by Clark.
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FCI staff members who interacted with Clark,12 Follis prepared a
comprehensive report concluding that Clark was mentally competent.
After a competency hearing at which the trial court found Clark
competent to stand trial, Clark pled guilty to mail fraud. He was
sentenced to thirty-three months in custody and two years of
supervised release, and ordered to pay $ 917,470.69 restitution and
a $ 50 special assessment.13 Clark appeals his conviction, claiming
that the district court erred in declaring him competent to stand
trial.
II
"The question of competency . . . is a mixed question of law
and fact which has direct constitutional repercussions." United
States v. Makris, 535 F.2d 899, 907 (5th Cir. 1976), cert. denied,
430 U.S. 954, 97 S. Ct. 1598, 51 L. Ed. 2d 803 (1977). We will
overturn a district court's determination of a defendant's
competency to stand trial or to plead guilty only if it is "clearly
arbitrary or unwarranted." United States v. Dockins, 986 F.2d 888,
890 (5th Cir.) (quoting United States v. Birdsell, 775 F.2d 645,
648 (5th Cir. 1985), cert. denied, 476 U.S. 1119, 106 S. Ct. 1979,
12
With the exception of their last meeting at the FCI, all of Follis'
attempts to interview Clark were, for the most part, unsuccessful. Clark
typically responded to Follis' questions with silence or "I don't know."
According to Follis, her discussions with other FCI staff who had dealt with
Clark revealed that Clark had no problems communicating with other inmates or
with the FCI staff. Further, a neurologist and a neuropsychologist outside FCI
who tested Clark during his stay at FCI reported no difficulty conversing with
him, eliciting his medical history, or asking him questions.
13
In accordance with a plea agreement, the Government then moved to
dismiss two prior indictments. Clark and his son had been indicted previously
on charges of mail fraud, and the competency matters in both indictments were
consolidated on the Government's unopposed motion.
-6-
90 L. Ed. 2d 662 (1986)), cert. denied, ___ U.S. ___, 114 S. Ct.
149, 126 L. Ed. 2d 111 (1993).14
"The conviction of a mentally incompetent defendant violates
the Due Process Clause." DeVille v. Whitley, 21 F.3d 654, 656 (5th
Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 436, 130 L. Ed. 2d
348 (1994). In order to declare a defendant incompetent to stand
trial, a district court must find "by a preponderance of the
evidence that the defendant is presently suffering from a mental
disease or defect rendering him mentally incompetent to the extent
that he is unable to understand the nature and consequences of the
proceedings against him or to assist properly in his own defense."
18 U.S.C. § 4241(d) (1988); Dockins, 986 F.2d at 890.15 The
standard for determining a defendant's competency to plead guilty
is identical to that for assessing a defendant's competency to
stand trial. DeVille, 21 F.3d at 656.
Six witnesses testified at the competency hearing: four lay
witnesses and one expert witness for the government, and one expert
witness for Clark. Follis based her testimony on several
interviews with Clark while he was confined at the FCI, as well as
14
We will, however, "take a hard look at the trial judge's ultimate
conclusion and not allow the talisman of clearly erroneous to substitute for
thoroughgoing appellate review of quasi-legal issues." Id. (quoting Makris, 535
F.2d at 907; Birdsell, 775 F.2d at 648.
15
The court's determination is often phrased in substantively similar
language derived from Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L.
Ed. 2d 824 (1960), which applied an earlier version of the statute: "[W]hether
the defendant 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.'" Godinez v. Moran, ___
U.S. ___, ___, 113 S. Ct. 2680, 2685, 125 L. Ed. 2d 321 (1993) (quoting Dusky,
362 U.S. at 402, 80 S. Ct. at 789); see also DeVille, 21 F.3d at 656 (applying
Dusky).
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interviews with others who dealt with Clark during his stay at the
FCI. Follis also reviewed all of Clark's available medical
records; his prior criminal history, including previous
incarcerations; transcripts from earlier cases in which Clark was
involved; and transcripts of Clark's telephone conversations during
calls placed from the FCI. Follis testified that in his phone
conversations, Clark seemed to have no problem communicating about
and even giving directions for the resolution of his legal
problems.16 Follis also secretly observed Clark, during which time
he was visibly free of the head twitches that he ordinarily
displayed in her presence. In Follis's opinion, although Clark did
suffer a head injury in the 1991 automobile accident, he was apt to
exaggerate his symptoms whenever he could gain from doing so.17
Follis attempted to administer a psychological test, but Clark
marked every answer false.18 Follis testified that, in her opinion,
Clark understood the nature of the proceedings against him and was
able to assist his attorney in his own defense.
16
During the two phone calls transcribed in Follis's report, Clark
discussed his legal problems with both his common-law wife and a friend. Clark
directed his friend to prepare a writ of habeas corpus for him because Clark had
been researching habeas corpus cases and considered this court reluctant to grant
a writ of mandamus.
17
Upon reviewing Clark's previous criminal and medical history, Follis
indicated that Clark typically exaggerated his mental or physical disabilities
when he stood to gain from appearing feeble, but minimized those traits when he
needed to appear fit. According to Follis, Clark's malingering was apparent in
his attempts to use medical complaints to influence sentencing decisions in
previous criminal cases, and in the conspicuous cessation of Clark's complaints
of chronic pain and seizures when he had a chance to receive furloughs or work
as a town driver.
18
Because Clark provided inconsistent information to many of the
persons who evaluated him, including those who administered objective tests,
Follis discounted their conclusions to the extent that they were partially based
upon the erroneous information given by Clark.
-8-
In addition to Follis's expert testimony, the Government
called four lay witnesses at the competency hearing. Jesse Horton,
a postal inspector, testified about Clark's activities in procuring
the disability insurance policies, collecting on the policies,
converting the insurance proceeds to cashier's checks, and
transferring personal assets to Nevada Gold & Silver for tax
purposes. Consistent with Follis's testimony regarding Clark's
controlled manifestation of his symptoms, Horton testified that he
had secretly observed Clark walking briskly around Clark's home
without a trace of the limping or shaking that Clark normally
displayed when he knew he was being watched. Of the other lay
witnesses, Clark's business associates each testified about their
business dealings with Clark. Not only did Smith and Rolley not
have difficulty communicating with Clark, each considered Clark at
least as sophisticated or knowledgeable as an average client.
Also, Michael Smith, one of the business associates, testified that
during business calls after Clark had been released from the FCI,
Clark had discussed his legal problems with Smith and had expressed
a desire to continue his investments after resolution of his legal
problems. Finally, although the record does not clearly establish
whether Clark or Fernandez directed the stock dealings with Kennedy
& Cabot, the evidence suggests that Clark placed some of the
orders.
Clark called as an expert witness Dr. Randall Wolcott, who had
treated Clark periodically from a few months after the automobile
accident until Clark's arrest two years later. Wolcott diagnosed
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Clark as having suffered a severe coma as a result of the accident.
Wolcott testified that Clark suffered from cognitive deficits--such
as memory deficits, decreased abstraction, decreased learning
abilities, illogical thoughts, difficulty with generalization,
distractibility, and fatigue--that commonly manifest in persons who
have suffered closed-head injuries. According to Wolcott, Clark
had difficulty remembering important facts and events, placing
events in a proper temporal sequence, and focusing on more than one
problem at a time. In Wolcott's view, the consequence of these
cognitive deficiencies was that Clark was unable properly to assist
in his own defense.19
Clark argues that the district court should have followed Dr.
Wolcott's diagnosis and conclusions.
In the final analysis, [however,] the determination of
competency is a legal conclusion; even if the experts'
medical conclusions of impaired ability are credited, the
judge must still independently decide if the particular
defendant was legally capable of reasonable consultation
with his attorney and able to rationally and factually
comprehend the proceedings against him.
Makris, 535 F.2d at 908. Although objective tests administered by
different health care providers indicated that Clark suffered from
some cognitive impairment, there was ample evidence to support a
conclusion that Clark exaggerated his mental disabilities and was
competent to stand trial. See Dockins, 986 F.2d at 892 (holding
that trial court properly concluded defendant "was simply
attempting to manipulate the court" based on expert opinion that
19
Wolcott's diagnosis was based on information given to him by Clark,
his ongoing observations of Clark, and results of tests conducted by other health
care providers.
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defendant "was in control of his memory loss"). In finding that
Clark did not suffer from a mental disease or defect that would
render him unable to understand the nature of the proceedings
against him or properly assist in his own defense, the district
court credited the testimony of the Government witnesses over that
of Wolcott. We cannot say that the district court was clearly
arbitrary or unwarranted in so doing. See id. at 893 (upholding
competency determination as not arbitrary or unwarranted where
trial judge credited subjective evaluations and testimony over
testimony by doctor who performed objective tests); see also
Birdsell, 775 F.2d at 651 (upholding competency determination where
district court reasonably credited government witnesses' testimony
over defendant's expert's testimony); United States v. Fratus, 530
F.2d 644, 647 (5th Cir.) (affirming trial court's competency
determination where experts for government and defendant each gave
strong but conflicting testimony), cert. denied, 429 U.S. 846, 97
S. Ct. 130, 50 L. Ed. 2d 118 (1976).
Moreover, the lay testimony supported Follis's conclusion that
Clark was able to understand the nature and consequences of the
proceedings against him and assist properly in his own defense.
See Makris, 535 F.2d at 908-09 (upholding competency determination
where "overwhelming" lay testimony regarding defendant's business
acuity and ability to conduct complicated transactions led to
conclusion that defendant, though somewhat impaired, was highly
competent); cf. United States v. Gray, 421 F.2d 316, 318 (5th Cir.
1970) (recognizing potential importance of lay testimony in
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competency hearing). Having considered all of the evidence
presented at the competency hearing, we conclude that the district
court's finding that Clark was competent to stand trial was not
clearly arbitrary or unwarranted. Accordingly, Clark's guilty plea
and conviction were proper.
III
For the foregoing reasons, WE AFFIRM Clark's conviction.
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