JAMES DONALD SMITH, JR., PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6022

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The court of appeals' opinion (Pet. App. 1-7) is unreported, but is
noted at 909 F.2d 1480 (Table).

                             JURISDICTION

   The judgment of the court of appeals was entered on July 20, 1990.
The petition for a writ of certiorari was filed October 18, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the district court erred in not holding a second hearing on
the day of trial on the question of petitioner's competence to stand
trial.

                               STATEMENT

   After a jury trial in the United States District Court for the
Western District of Texas, petitioner was convicted of possessing a
firearm by a convicted felon, in violation of 18 U.S.C. 922(g)(1).  He
was sentenced to the minimum mandatory term of 15 years' imprisonment
under 18 U.S.C. 924(e)(1), because he had three previous convictions
for violent felonies.  The court of appeals affirmed.

   1. Around midnight on July 1, 1988, San Antonio Police Officer Lee
Tappan observed an automobile driving through a residential
neighborhood without headlights.  Officer Tappan stopped the car for
questioning.  Petitioner was the driver, and a woman was the sole
passenger.  When petitioner refused to produce his license and proof
of insurance in response to a request from Officer Tappan, he was
placed under arrest.  Pet. App. 2.

   Inside the automobile, draped over the front seat, the officer
found a man's blue jean jacket, the pocket of which held a .22 caliber
revolver.  When questioned by Officer Tappan, petitioner admitted that
he owned the gun and stated that he needed the gun for his personal
protection.  The officer also questioned the woman passenger, who made
no claim to the gun.  Pet. App. 2.

   In October 1988, Special Agent Dan Carrasco of the Bureau of
Alcohol, Tobacco and Firearms took petitioner's fingerprints and
questioned him about ownership of the gun.  Petitioner again admitted
that he owned the gun.  Pet. App. 2-3.

   2. Before trial, on the motion of petitioner's court-appointed
counsel, petitioner was transferred to the Medical Center for Federal
Prisoners in Springfield, Missouri, where mental health professionals
conducted a competency examination of petitioner.  Subsequently,
petitioner was examined separately by Dr. John C. Sparks, Director of
the Medical/Psychiatric Department for the County of Bexar, Texas, and
by Arthur G. Bouton, Ph.D., a clinical psychologist, who was assisted
by Betsy Bouton Puentes, M.A., a psychological associate.

   On September 12, 1989, the district court conducted a mental
competency hearing.  The court heard testimony from Dr. Sparks and Ms.
Puentes, and all three reports of petitioner's psychiatric
examinations were entered into evidence.  Pet. App. 3, 5.  All of the
examinations had similar findings.  Petitioner was diagnosed as being
schizophrenic and having intelligence in the subnormal range.  Id. at
5.  Dr. Sparks and Ms. Puentes testified that petitioner's
schizophrenia was then in remission due to medication.  The same
opinion was expressed in their reports.  Id. at 5-6.  The expert
reports and live witnesses were unanimous that petitioner was able to
understand the nature and consequences of the proceedings against him
and was able to assist properly in his defense.  Id. at 6.  The
district court found that petitioner was competent to stand trial.

   3. About two weeks later, on the day of trial, September 27, 1989,
petitioner's court-appointed counsel brought to the district court's
attention that petitioner recently had not been receiving his usual
medication, Thorazine, because he had adversely reacted to it, and
that petitioner instead was receiving Vistaril, an antipsychotic drug
with the same therapeutic effect as Thorazine.  3 Tr. 4.  Counsel told
the court:  "(T)he doctors both testified that without the medication
that (petitioner's) ability to communicate would diminish and that he
would be hallucinating.  I honestly need to explain to the court that
I have not discovered any symptoms, that I could see, of
hallucinations.  However, he, virtually, refuses to communicate with
me at all." Ibid.

   The district judge asked petitioner directly:  "Are you having
problems communicating with your attorney?  Do you get along with Mr.
Brake?" 3 Tr. 6.  Petitioner answered:  "I don't feel he's doing a
proper job." Ibid.  Based on petitioner's responsiveness to his
question and the substance of petitioner's response, the court found
that the problem of non-communication with counsel was within
petitioner's control.  The court therefore directed that the trial go
forward without another competency hearing.  3 Tr. 6-7.  /1/

   Petitioner was convicted of possessing the pistol while a convicted
felon.  Because petitioner had four previous burglary convictions, he
was subject to a mandatory minimum 15-year sentence under 18 U.S.C.
924(e)(1), and he received the minimum.

   4. Petitioner appealed and presented two arguments to the court of
appeals:  (1) the evidence was insufficient to prove that he possessed
the gun, and (2) the district court erred in finding that he was
competent to stand trial given the testimony of one expert that
petitioner would not be able to understand much of what was said in a
courtroom.  Br. of Appellant vii (Issues Presented for Review), 4-5
(Summary of the Arguments), 6-11 (Argument and Authorities).

   The court of appeals affirmed.  Pet. App. 1-7.  It upheld the
district court's finding that petitioner was competent to stand trial
based on the evidence presented at the pretrial competency hearing,
and it rejected petitioner's argument that the evidence was
insufficient to prove that he "possessed" the firearm.  The court of
appeals did not discuss the contention that petitioner now raises --
i.e., whether the district court erred in not holding a supplemental
competency hearing on the day of trial to determine whether petitioner
was still competent to stand trial -- because petitioner did not
present that claim to the court of appeals.

                               ARGUMENT

   Petitioner argues that the failure of the district court to conduct
a supplemental inquiry into petitioner's competency on the day of
trial violated due process and 18 U.S.C. 4241.  Pet. 5-13.  Because
that claim clearly lacks merit and since this case raises no
substantial question regarding the standard for conducting a
supplemental competency determination, this case does not warrant
further review by this Court.

   1. A defendant cannot be forced to stand trial if, due to a mental
disease or defect, he is "incompetent," 18 U.S.C. 4241(d);  Drope v.
Missouri, 420 U.S. 162, 171-172 (1975);  Pate v. Robinson, 383 U.S.
375, 378 (1966), and a defendant is incompetent if he lacks "a
rational as well as factual understanding of the proceedings against
him" or a "sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding," Dusky v. United
States, 362 U.S. 402, 402 (1960);  Drope v. Missouri, 420 U.S. at 172.
 A district court must hold a hearing on a defendant's competency if
there is "reasonable cause" to believe that he is incompetent to stand
trial.  18 U.S.C. 4241(a).  See also Drope v. Missouri, 420 U.S. at
172 (concluding that a "reasonable cause" standard "is, on its face,
constitutionally adequate to protect a defendant's right not to be
tried while legally incompetent").

   In this case, the district court conducted a pretrial hearing on
petitioner's competence to stand trial.  The court found that
petitioner was mentally ill, but nonetheless was competent to stand
trial.  The question whether the defendant is competent to stand trial
is a question of fact, Demosthenes v. Ball, 110 S. Ct. 2223, 2225
(1990);  Maggio v. Fulford, 462 U.S. 111, 117 (1983), and the record
amply supports the district court's finding in this regard.  See
Demosthenes v. Ball, 110 S. Ct. at 2225 (the record supported state
court's finding of competency when three psychiatrists who had
examined the prisoner testified that he was competent).  The court of
appeals unanimously upheld the district court's finding, and
petitioner does not challenge it in this Court.  Instead, he maintains
that the district court erred in not conducting a second competency
hearing on the day of trial.  That claim lacks merit.

   In Drope v. Missouri, supra, the Court considered the question
presented by this case:  what circumstances at trial indicate that the
trial judge should conduct an inquiry into the defendant's competence
to stand trial.  The Court explained that "evidence of a defendant's
irrational behavior, his demeanor at trial, and any prior medical
opinion on competence to stand trial are all relevant in determining
whether further inquiry is required, but that even one of these
factors standing alone may, in some circumstances, be sufficient." 420
U.S. at 180.  At the same time, the Court also cautioned that "(t)here
are, of course, no fixed or immutable signs which invariably indicate
the need for further inquiry to determine fitness to proceed;  the
question is often a difficult one in which a wide range of
manifestations and subtle nuances are implicated." Ibid.  Finally, the
Court also noted that "(e)ven when a defendant is competent at the
commencement of his trial, a trial court must always be alert to
circumstances suggesting a change that would render the accused unable
to meet the standards of competence to stand trial." Id. at 181.  On
the facts of that case, the Court ruled that the trial court had erred
in not conducting a hearing into Drope's competency based on the
evidence of his behavior before trial as well as his suicide attempt
during the trial.  Id. at 178-182.

   In this case, after a hearing petitioner was found competent to
stand trial based on the concurrent opinions of three experts who
conducted independent mental competency examinations focusing
specifically on petitioner's competence to stand trial.  No new
psychiatric or psychological evidence was thereafter presented to the
district court that could have impeached the court's finding.  When a
question arose on the day of trial regarding petitioner's reaction to
a change in his medication, the trial judge questioned petitioner
directly.  Petitioner's alert response to the judge's question
supported the judge's finding that petitioner understood what was
going on about him.  See Demosthenes v. Ball, 110 S. Ct. at 2225.
None of the factors articulated in Drope counselled in favor of
holding an additional competency hearing.

   The due process requirement that petitioner understand the
circumstances of the trial and its potential consequences for him was
satisfied by petitioner's evident awareness of what was happening.
Although petitioner appeared resistant to communicating with his
appointed counsel, the district court acted within its discretion in
finding that petitioner's noncommunicative attitude was a matter
within his control.  Thus, there was no infringement on petitioner's
right to counsel.

   Petitioner also does not suggest that there was any special feature
of this case that rendered it too complicated for someone like
petitioner to understand or to communicate effectively with his
counsel.  The proof that the gun was discovered in a man's coat on the
seat of the car next to petitioner, coupled with his admission on two
occasions that the gun belonged to him, provided irrefutable proof of
petitioner's guilt of possessing the weapon.  Petitioner also
apparently cooperated with counsel except for the few days before the
one day of trial.  Petitioner does not suggest what benefit freer
communication would have yielded during trial.  And since petitioner
received the statutory mandatory minimum term of imprisonment for his
offense, his sentence could not have been adversely affected by any
difficulty he had communicating with counsel.

   2. Petitioner refers to various cases that have articulated
different verbal formulations of the standard for deciding whether a
hearing on a defendant's competence is required.  Pet. 9-11.  He
claims that review is warranted to adopt a single formulation of the
appropriate standard.  That contention, however, lacks merit, for
several reasons.

   First, in Drope v. Missouri, 420 U.S. at 172, this Court held that
the Missouri standard there considered was facially adequate to
protect a defendant's right not to be tried while incompetent.
Missouri law required a court, on its own motion or the motion of the
prosecution or defendant, to order a psychiatric examination of a
defendant whenever the court "has reasonable cause to believe that the
accused has a mental disease or defect excluding fitness to proceed."
Mo. Rev. Stat. Section 552.020(2) (1969).  Federal law applies the
same standard.  18 U.S.C. 4241(a) (district court shall hold a
competency hearing "if there is reasonable cause to believe that the
defendant may presently be suffering from a mental disease or defect
rendering him mentally incompetent").  Accordingly, the federal
statutory standard is also constitutionally adequate on its face.
Because petitioner does not claim that the federal standard was
improperly applied in this case, review of the question he does
present is unnecessary.

   Second, it is doubtful whether the various standards set forth in
the cases petitioner cites -- e.g., a "bona fide doubt" as to
competency, a "reasonable doubt" as to competency, or a "reasonable
cause to doubt competency" -- differ in any material way from each
other.  The Court's decisions prove that point.  Drope v. Missouri,
420 U.S. at 172, concluded that the Missouri "reasonable cause"
standard is sufficient, while Pate v. Robinson, 383 U.S. at 385,
concluded that the Illinois "bona fide doubt" standard, Ill. Rev.
Stat. ch. 38, Section 104-2 (1963), is also sufficient.  Any
difference among these standards is a purely semantic one that is not
likely to have any practical effect in individual cases.  In that
regard, petitioner has not explained how his case would have been
resolved differently under these various standards.  As explained
above, there was an insufficient basis in this record for finding that
petitioner's mental state had changed sufficiently after the
competency hearing that the district court erred in not conducting
another hearing on the day of trial.

   Finally, as petitioner acknowledges, the court of appeals in this
case did not address this issue.  Accordingly, the decision below
cannot be said to have adopted a rule of law that conflicts with the
rule adopted by any other court.

   Petitioner criticizes the court of appeals for not considering this
issue, but petitioner did not present to the court of appeals as a
basis for reversal the claim that the district court erred in not
holding another competency hearing on the day of trial.  In fact,
petitioner mentioned this point in only one sentence in his brief, as
an aspect of the completely separate claim -- which he does not make
here -- that the district court erred in finding petitioner competent
in the first instance based on the psychiatric evidence at the
pretrial competency hearing.  Br. for Appellant 10 ("The error was
compounded when the court insisted in proceeding to trial even after
counsel informed him as the trial was about to begin, several days
after the competency hearing, that (petitioner) seemed less able than
ever to participate in his own defense.").  The court of appeals
cannot be faulted for not addressing an argument that petitioner never
made.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   RICHARD A. FRIEDMAN

      Attorney

   DECEMBER 1990

   /1/ The district court's reasoning is evident from the following
statement he made to petitioner immediately after petitioner answered
"I don't feel (counsel's) doing a proper job":

      Well, at this stage we already have a jury and they're going to
      go forward, and I think it's in your best interest to try to
      work with Mr. Brake so he can try to see if he can get you off
      on this case.  And, the harder time you give him, the more
      difficult it's going to be for him to try to properly represent
      you.  If you don't talk to him, he's in a hard situation to try
      to do what's best for you.  So, you need to try to cooperate and
      work with him.  And I think it's in your best interest that you
      try to do that.  Because, if he tries to defend you here and you
      refuse to talk to him, it could be a handicap for him and hurt
      your chances of convincing a jury of your innocence.

3 Tr. 6.  When counsel then asked petitioner, "Is there anything you
need to talk to me about?", petitioner responded, "Nope." 3 Tr. 7.