USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 97-1998
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN F. KIVLEHAN,
Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Walter F. McKee with whom Lipman & Katz was on brief for
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appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
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whom Gail F. Malone, Assistant United States Attorney, and Jay P.
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McCloskey, United States Attorney, were on brief for appellee.
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February 27, 1998
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ALDRICH, Senior Circuit Judge. Defendant Stephen
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F. Kivlehan, sentenced as an armed career offender pursuant
to U.S.S.G. 4B1.4(b)(3)(A), whose conviction was under 18
U.S.C. 922(g) for, as a felon, being in possession of a
firearm, appeals for evidentiary error; for not, as an
indigent, being provided with funds for a psychiatric
examination prior to sentencing; for the court's refusal to
hold a competency hearing, and for its adding a point to his
offense level for using the firearm in connection with a
crime of violence. We affirm.
Fingerprint Testing
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Defendant was arrested after having alerted his
neighbors by the noise of a vigorous sexual and physical
assault on his wife. After receiving consent to search the
premises, the police found a revolver that defendant's wife
adequately connected with the incident, post. Witnesses at
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trial testified to the uniqueness of the revolver, a
specially built competition pistol, and to having seen
defendant previously with his hands on it. However, it was
returned from testing for prints with none of defendant's
found.
Over defendant's objection, a police detective was
allowed to testify that in his twenty years experience, it
was "very rare" to match positively a known set of prints
with those found on a weapon -- in fact, he could recall no
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case. The objection made was hearsay. This is an
interesting question. The witness was speaking from his own
experience, but the effect, perhaps, was to vouch for the
accuracy of past reports or the testing process itself.
In any event, this whole matter was not
prejudicial. The revolver had a serial number. It was noted
at the time of the arrest; the revolver at the trial had the
same number. Also, four witnesses positively identified it,
including both its prior owner as well as defendant's
brother, a professional gunsmith. Of what consequence the
absence of fingerprints? Given such overwhelming evidence,
any error in admitting the detective's testimony was
harmless. See United States v. Bartelho, 129 F.3d 663, 670
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(1st Cir. 1997). We pass the question whether defendant
himself first "opened the door" to this testimony.
Mental Competency Testing
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There was no claim that defendant was unable to
stand trial, or that he had any mental defect defense.
However, after trial, defendant's counsel asked for funds for
psychiatric testing, pursuant to 18 U.S.C. 3006A(e)(1), and
later moved to determine defendant's competency, pursuant to
18 U.S.C. 4241. His psychological condition, it was
thought, would be relevant to where in the applicable range
he should be sentenced and, also, whether downward departure
under U.S.S.G. 5K2.13 (diminished capacity) could be had.
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Counsel's most tangible basis was the fact that defendant
would not communicate with him and rejected all his mail,
returned unopened. Apart from that were little fragments,
including general comments from defendant's mother and his
probation officer about his apparent, lay-described
"paranoia," and the argument that unless a test was made, how
could it be known that it was not needed?
Whether to authorize funds for psychological
testing is within the trial court's discretion. Cf. United
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States v. Mateos-Sanchez, 864 F.2d 232, 239-40 (1st Cir.
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1988) (investigative expenses). Refusal is not reversible
absent clear and convincing evidence of prejudice to the
accused. See United States v. Canessa, 644 F.2d 61, 64 (1st
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Cir. 1981). A determination of competency may be had when
there is reasonable cause to believe that the defendant, due
to mental defect, is unable to understand the nature and
consequences of the proceedings against him or to assist
properly in his defense. See 18 U.S.C. 4241. To be able
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to assist in one's defense means to have a "sufficient
present ability to consult with [one's] lawyer with a
reasonable degree of rational understanding." United States
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v. Lebron, 76 F.3d 29, 31 (1st Cir.), cert. denied, 116 S.
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Ct. 2537 (1996). Whether to hold a 4241 hearing is a
matter within the trial judge's discretion, reviewable only
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for abuse. See United States v. Morgano, 39 F.3d 1358, 1373
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(7th Cir. 1994), cert. denied, 515 U.S. 1133 (1995).
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Given the posture, all defendant asked for, with
evidence of incompetency, was a favorable exercise of
discretion in sentencing. The court's refusal to pursue the
matter, we think, indicates a disinclination to be any more
favorable than it was. Further, the decision was based, in
part, on observations of defendant's behavior during trial
and sentencing. The record expressly reflects noted
instances of communication between defendant and his counsel
during the latter. We have reviewed the district court's
findings "comprehensively," Lebron, 76 F.3d at 32; read the
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record, and listened to, in effect, testimony from
defendant's trial counsel, and we think the case well summed
up by the court.
If I thought for a minute that a
competency exam or a psychiatric exam
would in any way flush out any problems
that may exist or be determinative of any
issue here, I'd order it, but that's not
the case in the court's humble opinion.
And if I were to order competency exams
on each one of these sentencing
proceedings, there aren't enough
psychiatrists and psychologists to
accommodate all the competency exams. It
is not unusual . . . for defendants, once
they've gone through trial and are facing
sentence, to develop all kinds of
anxieties. . . . [I]t would be strange
if they didn't. And I think that's what
we have here, and I'm not a psychiatrist
or a psychologist, but I'm not going to
delay this matter any further on the
basis of what I have before me now,
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unless someone can convince me that it
would be useful.
And that, coupled with the
defendant's request to get this matter
over with, which is really what he wants
to do I think, that's what I'm going to
do.
We find no abuse or prejudice.
Offense Level
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Finally, defendant complains of the court's
connecting the weapon to the assault. The import of the
alleged error was assigning offense level 34 rather than 33,
making the applicable sentencing range 262-327 months instead
of 235-293. Under U.S.S.G. 4B1.4(b)(3)(A), the greater
figure applies if the firearm was "used or possessed . . . in
connection with a crime of violence." It is acknowledged
that "'in connection with' should be interpreted broadly and
that where a defendant's possession of a firearm aids or
facilitates the commission of another offense, the requisite
link is present." United States v. Thompson, 32 F.3d 1, 7
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(1st Cir. 1994) (footnote omitted).
Reviewing the district court's findings for clear
error, see United States v. Gary, 74 F.3d 304, 317 (1st
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Cir.), cert. denied, 116 S. Ct. 2567 (1996), we find none.
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The defendant had a history of threatening his wife,
sometimes with firearms. During the events precipitating his
arrest, he placed the gun on the floor of the apartment
bedroom, openly visible. He glanced menacingly at the gun
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and then his wife, which she understood to be a threat, as he
attempted to have her facilitate a sexual encounter between
him and another woman. When that failed, he compelled his
wife to endure three hours of sexual and physical abuse, some
of which occurred in the room with the gun. He repeatedly
told her that, in her words, "You probably ain't going to
make it through the night." She said she did not scream or
cry out because she was scared "because there was a loaded
gun right beside the bed." It is no stretch to conclude that
the presence of the gun emboldened the defendant and, in
part, threatened his victim into submission, and therefore
"aid[ed] or facilitat[ed]" the assault. Thompson, 32 F.3d at
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7; cf. United States v. Sturtevant, 62 F.3d 33, 34 (1st Cir.
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1995) (per curiam).
Affirmed.
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