United States Court of Appeals

For the First Circuit

No. 04-2398

UNITED STATES OF AMERICA,

 Appellee,

v.

COREY D. WIGGIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Lynch, Circuit Judge,

 Stahl, Senior Circuit Judge,

and Lipez, Circuit Judge.

Judith H. Mizner, Assistant Federal Public Defender, for

appellant.

Mark E. Howard, Assistant United States Attorney, with whom

Thomas P. Colantuono, United States Attorney, was on brief, for

appellee.

November 17, 2005
-2-

LYNCH, Circuit Judge. Corey D. Wiggin was convicted,

after a jury trial, of conspiracy to distribute cocaine. The

conspiracy involved at least twenty kilograms of cocaine per year

and continued for several years. Wiggin, twenty-six years old at

the time of sentencing, received the statutory minimum term of

imprisonment of ten years.

On appeal, Wiggin presents one challenge to his

conviction and one to his sentence. He first argues that the

district court, in denying his post-trial claim of incompetency to

stand trial, misapplied the legal standard by not properly

considering whether he had the ability to assist his counsel. The

main argument for incompetency was that Wiggin suffered mental

deficiencies from an accident which led him, against his selfinterest, to refuse to enter a plea agreement under which he might

have received only a five-year sentence. As to his sentence,

Wiggin urges that ambiguities in the jury instructions and verdict

slip could have misled the jury into believing the amount of

cocaine involved in the overall conspiracy and the amount

attributable to him had to be the same, and that therefore the jury

did not truly make a defendant-specific drug quantity finding. We

affirm Wiggin's conviction and sentence.
 A superseding indictment on April 30, 2003 re-charged the same 1

conspiracy offense against Wiggin, two others from the initial

indictment, and two additional defendants. 

-3-

I.

A. The Trial and Sentence

On February 6, 2002, Wiggin and six others were charged

by indictment with conspiring to distribute five or more kilograms

of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The 1

government tendered plea agreements to Wiggin and some of the other

defendants, offering reduced sentences in exchange for cooperation.

Several of the defendants -- including Robert DeFelice, who had

sold Wiggin substantial quantities of cocaine, and Todd Burley, the

higher-level dealer who had sold to DeFelice –- accepted these

offers and agreed to testify. Wiggin, however, refused. 

The government had offered as part of its proposal to

Wiggin to stipulate that the amount of cocaine involved in his case

was 500 grams; this stipulation would have permitted the court to

sentence Wiggin to as little as five years in prison. See 21

U.S.C. § 841(b)(1)(B) (statutory minimum of five years'

imprisonment for distribution of amounts from 500 grams up to, but

not including, five kilograms). Wiggin's attorney, who considered

the offer "very reasonable," communicated it to Wiggin and

recommended that he accept it. Wiggin refused, in part because he

believed DeFelice and Burley would not testify against him -- a

belief he maintained even after his attorney showed him proof that
 DeFelice bought between eight and thirty ounces of cocaine from 2

Burley per transaction, with one transaction every seven to

fourteen days, over an extended period of time.

-4-

the men had reached plea agreements and had consented to testify.

Wiggin stated at the post-trial competency hearing (discussed

later) that DeFelice had told him that he "had nothing to worry

about" and that "he wasn't going to testify to anything against

me." 

At trial, the government presented evidence that Wiggin

had dealt cocaine from 1999 through 2001. Burley and DeFelice

testified against Wiggin. Their testimony and that of other

witnesses showed that DeFelice had sold cocaine to Wiggin thirty to

forty times, that the quantities per transaction varied but

"towards the end" were often eight to ten ounces, and that the

largest quantity DeFelice had sold to Wiggin was fifteen ounces.

DeFelice testified that Wiggin had told him he subsequently resold

the cocaine to multiple people. Further, Burley testified that

Wiggin personally brought money to Burley's home to pay for cocaine

at least three times and accompanied DeFelice to Burley's home to

make payments on at least twenty occasions.2

At the conclusion of the six-day trial, the district

court instructed the jury that the government had to prove beyond

a reasonable doubt that Wiggin conspired to distribute cocaine. If

the jury found that the government had so proved, it had to "go on
-5-

to consider the weight of the cocaine that was involved in the

conspiracy and is attributable to the defendant." The court added:

A given amount of cocaine was involved in the

conspiracy if the government proves beyond a

reasonable doubt that the conspirators agreed

to distribute that amount of cocaine. A given

amount of cocaine is attributable to the

defendant if he knew or could have reasonably

foreseen that the conspiracy involved that

amount of cocaine. The government must prove

beyond a reasonable doubt both that the

conspiracy involved a given amount of cocaine

and that the defendant knew or could have

reasonably foreseen that a conspiracy involved

that amount of cocaine. 

On September 12, 2003, the jury returned a guilty verdict

against Wiggin:

1) We, the jury in the above captioned case,

return the following verdicts:

COUNT ONE:

 Not Guilty X Guilty

2) We, the jury, find that the weight of

cocaine involved in the conspiracy described

in Count One of the indictment and

attributable to defendant was:

DRUG WEIGHT:

X Five (5) kilograms or more of cocaine

Five hundred (500) grams or more, but

less than five (5) kilograms, of

cocaine

Less than five hundred (500) grams of

cocaine

Based on this drug quantity finding, the district court sentenced

Wiggin to the statutory minimum of ten years' imprisonment, see 21
-6-

U.S.C. § 841(b)(1)(A), to be followed by five years of supervised

release.

B. The Competency Issue

On September 19, 2003, which was a week after the jury

returned its guilty verdict but prior to sentencing, Wiggin's

attorney moved pursuant to 18 U.S.C. § 4241 for a hearing to

determine whether Wiggin had been competent to stand trial. The

attorney and Wiggin's mother submitted affidavits stating, inter

alia, that Wiggin (1) had broken his neck in a 1997 motorcycle

accident and had subsequently suffered memory loss and a reduction

in cognitive capacities, (2) had abused marijuana and cocaine for

years, (3) had unwisely rejected the favorable plea offer, (4) had

had difficulty remembering events and providing non-contradictory

answers to his attorney's questions, and (5) had not given his

attorney important details about the criminal case prior to trial.

Wiggin's attorney attempted to explain the belated timing of his

motion in an affidavit, stating that he "was first apprised of Mr.

Wiggin's memory loss and his reduced cognitive ability on the

fourth day of the [six-day] trial by his mother and his girl

friend." 

The district court held an initial hearing on the

competency motion on June 14, 2004. Two psychologists testified

for the defense, having examined Wiggin after the trial had

concluded. The first, Dr. Alexandria Weida, a forensic
 At least one of the meetings was in March 2004; the date of the 3

other is not clear from the record.

-7-

psychologist for the Commonwealth of Massachusetts, stated that she

had met with Wiggin on two occasions and administered various 3

psychological tests, including the Bender-Gestalt test and the

Wechsler Memory Scales. She testified that when she asked Wiggin

whether he understood terms such as "conspiracy," he answered in

the affirmative but could not provide a coherent explanation when

pressed for details. She also said Wiggin was "confused" about the

role of his attorney and the consequences of plea bargaining. Dr.

Weida concluded that at the time of the trial, Wiggin was not able

rationally to understand the proceedings and charges against him

and was not "competent to fully assist his counsel." 

The second psychologist, Dr. Frederick Kelso, met with

Wiggin in May 2004 and also concluded that Wiggin had been

incompetent to stand trial. Dr. Kelso cited two causes: (1) a

mental defect and cognitive deficits caused by mild traumatic brain

injury, and (2) the mental disease of cocaine abuse. Dr. Kelso

testified that Wiggin had a "minimal understanding" of the concept

of conspiracy. He stated that he had administered a test that

showed Wiggin had trouble thinking in abstractions; the sort of

results he observed were "very commonly seen in certain kinds of

patients who have suffered a traumatic brain injury." Dr. Kelso

opined that Wiggin's decision to trust DeFelice's assurances that
 Dr. Ryan testified that he interviewed Wiggin during Wiggin's 4

stay at a federal prison, which he believed lasted from "October

through pretty late in December."

 By "consistently answer," Dr. Ryan testified, he meant that 5

Wiggin gave answers that matched up logically with answers

elsewhere on the test. For example, if a test-taker were to mark

"true" next to the statement "I am always depressed," he would have

to mark "false" next to the statement "I am never depressed" in

order to be answering consistently. Dr. Ryan testified that

consistent answers indicate that "the person is understanding the

questioning."

-8-

Wiggin "didn't have anything to worry about," even after his

attorney told him DeFelice would testify for the prosecution, was

connected to Wiggin's difficulty in thinking in abstractions. Dr.

Kelso concluded that Wiggin's assessment of the possibility of

accepting a plea deal had not been rational.

Dr. William Ryan, a forensic psychologist with the

Federal Bureau of Prisons, testified for the government. Dr. Ryan

testified that he had interviewed Wiggin in the fall of 2003 and 4

had subjected him to a test called the Minnesota Multiphasic

Personality Inventory, 2nd Edition. He stated that Wiggin's

results indicated that (1) he had basic comprehension skills and

could understand and consistently answer true-false questions; and 5

(2) he was exaggerating any mental illness he suffered, suggesting

"either a cry for help or some deliberate attempt to portray

himself as very mentally ill." Dr. Ryan testified that he had

spoken with staff members at the prison where Wiggin was

incarcerated and had been told that Wiggin functioned adequately
-9-

and understood directions. He also testified that, during an

interview, Wiggin was able to count backward by threes, indicating

an ability to concentrate, and was able to give adequate

definitions of legal terms such as perjury, witness, verdict, and

sentence. Wiggin was unable adequately to define several other

legal terms when first asked, but when Dr. Ryan explained them to

him and then asked later if he remembered what they meant, Wiggin

was able to recall the definitions.

According to Dr. Ryan, Wiggin said during the interview

that he had not trusted his attorney at trial but later realized

his attorney had been trying to help him. Asked on crossexamination whether he found Wiggin's decision to trust his friends

and family instead of his attorney irrational, Dr. Ryan responded:

"it may not have been a good decision, but there was no irrational,

you know, mental illness entering into that decision." Based on,

inter alia, the testing he administered, his interview of Wiggin,

and his interviews of prison staff, Dr. Ryan opined that Wiggin

suffered from depressive symptoms, post-traumatic stress disorder,

and a cognitive disorder possibly due to head trauma. However, he

concluded that Wiggin was nonetheless functional, rational, and

competent. He testified that Wiggin "conversed, he discussed, he

remembered, . . . he retained what he learned, it all impressed me

as a person who was competent to stand trial." 
 This was the date of the second portion of the competency 6

hearing and of Wiggin's sentencing, which immediately followed the

district court's competency ruling.

 Dr. Drukteinis testified that his examination necessarily 7

evaluated competency at present, not the time of the trial.

However, he added that in Wiggin's case, "if he had the capacity to

understand things like conspiracy today and the capacity to

understand the seriousness of this charge today, then there's no

reason why he couldn't have had that capacity then barring some

extra aggravating [effects] of cocaine that he was using."

-10-

After hearing this testimony, the district court found

that the defense had not established by a preponderance that Wiggin

was incompetent to stand trial. However, the court noted that it

was troubled that the record was not developed with respect to

Wiggin's possible organic brain injury: the testifying

psychologists had inferred such an injury, but no physician had

examined Wiggin for purposes of the competency hearing. The court

therefore ordered that Wiggin be examined by Dr. Albert Drukteinis,

a physician and forensic psychiatrist, "to establish whether or not

he does suffer from some mental defect or disease" and offer an

opinion on whether Wiggin "was mentally competent to stand trial."

Dr. Drukteinis examined Wiggin pursuant to the district

court's order and submitted a report on August 19, 2004. On

September 30, 2004, he testified that Wiggin was competent to 6

stand trial. Dr. Drukteinis said Wiggin "has some . . . problems 7

with memory, concentration, maintaining attention," though there

was no "real evidence that [those problems were] because of

traumatic brain injury." Dr. Drukteinis' report stated that Wiggin
-11-

had told him that at the time of trial he did not think the

criminal charges he faced were serious, and that he thought so in

part because his friends and family -- including his parents, his

fiancée, and DeFelice -- did not seem particularly worried. Asked

by defense counsel whether he thought Wiggin's faith in his family

rational, Dr. Drukteinis replied: "I don't see where that would be

irrational. I think people listen to lots of different sources in

that kind of a predicament." Dr. Drukteinis testified that

Wiggin's failure to assist defense counsel stemmed more from

Wiggin's lack of trust in his attorney than from any mental disease

or defect.

Wiggin himself also testified at the September 30

hearing. Asked by his attorney what he thought when he was told

his friends were going to testify against him, Wiggin replied: "I

didn't think it was true." He stated that DeFelice had told him he

would not testify for the prosecution and that he had no reason to

doubt DeFelice's assurances. Asked why he rejected the plea offer

and went to trial, Wiggin replied: "I just, to be honest with you,

I don't know. I just, my family and my friends, I was listening to

them."

Following this testimony, Wiggin's counsel summarized his

competency argument, saying Wiggin's faith that his friends would

not testify against him was related to his mental defects. "He

didn't know me, I was saying things he didn't want to hear,"
-12-

Wiggin's attorney argued. "He rejected that and that's . . . an

irrational position."

After listening to defense counsel's summation, the

district court ruled from the bench that Wiggin had been competent

to stand trial. The court stated:

I think [Wiggin has] made a series of just

terrible decisions that are certainly not the

product of informed consideration, but I

credit Dr. Drukteinis's evaluation and I

credit Dr. Ryan's evaluation that he was

competent to stand trial at the time of trial.

He is competent to stand trial now. . . . I

find by a preponderance of the evidence that

he simply did not suffer from a mental disease

or defect that renders him mentally

incompetent; that is, that he was or is unable

to understand the nature and consequences of

the proceeding against him or to assist

properly in his defense. 

Defense counsel objected that Dr. Ryan and Dr. Drukteinis made

determinations of competency at the time of examination, not at the

time of the September 2003 trial. The court replied: "[A]s Dr.

Drukteinis made clear, there's nothing to suggest that [Wiggin's]

condition was any different at the time of trial than it was at the

time Dr. Ryan examined him or Dr. Drukteinis examined him." 

II.

A. The Competency Determination

The determination of a criminal defendant's competency to

stand trial is governed by the standards laid out at 18 U.S.C.
 Section 4241 adopts the competency test articulated by the 8

Supreme Court in Dusky v. United States, 362 U.S. 402 (1960) (per

curiam).

-13-

§ 4241. This provision states that at any time prior to 8

sentencing, "the defendant or the attorney for the Government may

file a motion for a hearing to determine the mental competency of

the defendant. The court shall grant the motion, or shall order

such a hearing on its own motion, if there is reasonable cause to

believe" that the defendant is incompetent. Id. § 4241(a). It

further provides: 

If, after the hearing, the court finds 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 defense, the court shall commit the

defendant to the custody of the Attorney

General [for hospitalization].

Id. § 4241(d).

"We uphold a district judge's determination of competency

after a [§ 4241] hearing unless [that determination is] clearly

erroneous." United States v. Santos, 131 F.3d 16, 20 (1st Cir.

1997). Wiggin, as we understand his argument, contends that the

district court erred in concluding that he met the second prong of

the competency test -- that he was able "to assist properly in his

defense." He argues that the error is demonstrated by two things:

(1) that the court referred to the "understand the nature and
-14-

consequences of the proceedings" prong of the § 4241 test a few

times without also referring at the same time to the second prong,

and (2) that the evidence showed that Wiggin could not in fact

assist his counsel. He also argues that point (1) demonstrates

that the district court incorrectly applied the law to the facts,

and that as a result our review in this instance should be plenary,

instead of for clear error.

None of these arguments has any merit. As to point (1)

and the standard of review issue, the district court at the time it

made its competency determination specifically and correctly

described both prongs and issued a finding as to each: it stated

that Wiggin "simply did not suffer from a mental disease or defect

that renders him . . . unable to understand the nature and

consequences of the proceeding against him or to assist properly in

his defense." Further, the court also described the second prong

correctly at least three other times during the two-day hearing: it

noted during separate colloquies with defense counsel and an expert

witness that competency requires the capacity to "adequately

participate in [one's] defense" and to "meaningfully assist in

[one's] defense"; it also concluded the competency hearing by

reiterating that it had found that Wiggin did not have a "mental

disease or defect that . . . deprived him of the ability . . . to

adequately assist in his defense."
-15-

This is not an instance in which a court articulated what

is said to be an incorrect rule of law. In that circumstance, a

matter of pure law, we would review the question de novo. Here the

trial court articulated the correct standard. Indeed, we have

upheld findings of competency where the district court offered far

less of an articulation, saying the court need not "parse the

definition of 'competency'" nor "arrive at specific findings as to

each component." United States v. Muriel-Cruz, 412 F.3d 9, 14 (1st

Cir. 2005) (reviewing for plain error); see also id. at 12 ("Not

only can we ascertain no plain error, we are unable to discern what

additional actions reasonably could have been expected of the

district court.").

Nor was there error in the application of the law of

competency to the facts. The trial court, unlike Wiggin's experts,

had actually seen the defendant and his counsel interact at trial.

The court also had heard expert testimony that Wiggin was competent

and rational, and it was entitled to credit that testimony. See

Santos, 131 F.3d at 20-21. Competent people can and do make

decisions which others consider irrational. Starting with the

premise that he could rely on the assurances of his "friends" not

to turn on him and that he could not trust a lawyer he did not

know, Wiggin's decision not to accept the plea was naive and illinformed, but not irrational. Further, his lawyer never once

during trial suggested that Wiggin could not assist in his own
-16-

defense. Wiggin's regrets that he did not accept the plea bargain

he was offered are not enough. 

B. The Jury Instructions/Verdict Slip Issue

Wiggin's second argument is that "[c]ombined, the [jury]

instructions and verdict form are ambiguous and confusing" and that

the ambiguity requires vacation of his sentence and remand for

resentencing without the ten-year mandatory minimum. His position,

as we understand it, is that the judge's instructions gave the

impression that the total amount of cocaine involved in the

conspiracy and the amount attributable to Wiggin had to be

identical, and that the verdict form, with its single blank for

finding the weight of cocaine "involved in the conspiracy" and

"attributable to defendant," added to that impression. He argues

that this requires resentencing because, given the ambiguity, the

jury should not be deemed to have made the defendant-specific drug

quantity finding that triggered the ten-year statutory minimum.

Because the jury included a drug quantity finding on the verdict

form, the district court did not make such a finding at sentencing;

Wiggin therefore argues that if the jury's finding was invalid, no

actor made the requisite drug quantity finding.

Wiggin did not object to the instructions or verdict slip

at trial, and so we review for plain error. United States v.

Molina, 407 F.3d 511, 527 (1st Cir. 2005) (plain error review of

jury instructions); Negron v. Caleb Brett U.S.A., Inc., 212 F.3d
-17-

666, 672 (1st Cir. 2000) (plain error review where appellant had

objected to neither the jury instructions nor the verdict form).

To prevail under this standard, Wiggin must show that (1) an error

occurred, (2) the error was clear or obvious, (3) the error

affected his substantial rights, and (4) the error also seriously

impaired the fairness, integrity, or public reputation of judicial

proceedings. United States v. Olano, 507 U.S. 725, 732, 734

(1993).

This is not such a case. There was no error; much less

were the other three requirements of Olano met. The district court

began the relevant portion of the jury instructions by stating that

"[a] given amount of cocaine was involved in the conspiracy if the

government proves beyond a reasonable doubt that the conspirators

agreed to distribute that amount of cocaine." It then stated in a

separate sentence that "[a] given amount of cocaine is attributable

to the defendant if he knew or could have reasonably foreseen that

the conspiracy involved that amount of cocaine." This instruction

clearly and correctly states the law. See United States v. ColonSolis, 354 F.3d 101, 103 (1st Cir. 2004) (requiring, for sentencing

in drug conspiracy cases, "an individualized finding as to drug

amounts attributable to, or foreseeable by, [the] defendant"). 

The district court added that "[t]he government must

prove beyond a reasonable doubt both that the conspiracy involved

a given amount of cocaine and that the defendant knew or could have
-18-

reasonably foreseen that a conspiracy involved that amount of

cocaine." Wiggin suggests that the conjunctive phrasing of this

instruction implies that the two amounts are identical, and that

the phrasing of the verdict form did nothing to undo any confusion

on the point. We disagree. The instruction in fact stressed to

the jury that the reasonable doubt standard applied to both issues

(amount involved in the conspiracy and amount reasonably

foreseeable to the defendant). Further, the form itself makes

clear that the jury was to make a separate finding as to the amount

attributable to the defendant.

III.

We affirm Wiggin's conviction and sentence.