# U nitedStates C ou rt o f App eal s For th e Firs t C ircu it

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, Assista n t Federal Public Defender, for appellant. Mark E. Howard, Assistant United S t a t es Attorney, with whom Thomas P. Colantuono, United States Attorney, w as 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 t o his conviction and one to his sentence. He first ar g u e s t h a t the district court, in denying his post-trial claim of incompetency to stand trial, misapplied the leg a l standard by not properly considering whether he had the ability to assist his counsel. The main argument for incompetency was that Wiggin suffer e dmentaldeficiencies 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, 20 0 3 re-charged the same 1 con s p i r a c yo f f e n s e a g a i n s t W i g g i n , t w o o t h e r s f r o mt h e i n i t ial 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 DeF e l ice, 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 o f 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 mini m u m 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, " c ommunicated 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 thatDeFelice 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) t h a t D e F e l ice 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 t e stimony 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 of t e n eight to ten ounces, and that the l a r g e s t 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, Bur l e y 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 d i s t rict 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 tha t w as 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 defe n dant 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 t h e above captioned case, return the following verdicts:
COUNT ONE: Not Guilty XGuilty 2) W e , t h e j u r y , f i n d t h a t t h e w e i g h t 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 h u n d r ed (500) grams or more, but less than five (5) kilograms, of cocaine
Less than five hundred (50 0 ) g r ams 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 t o 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 af f i d avits stating, inter alia, that Wiggin (1) had broke n h is 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 attempt e d t o 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 abilit yo n the fourth day of the [six-day] trial by his mother a nd his girl friend." The district court held an initial hearing on the competency motion on June 14, 2 0 0 4 . Two psychologists testified for the defense, having examined Wiggin after the trial had concluded. The first, Dr. Alexandria Weida, a forensicAt 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 w i t h Wiggin on two occasions and administered various 3 psychological tests, including the B e n d er-Gestalt test and the Wechsler Memory Scales. She testified that when she asked Wiggin whether he understood ter m s s u ch 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 rationa l l yto understand the proceedings and charges against him and was not "competent to fully assist his counsel."

The second psycho l o g ist, Dr. Frederick Kelso, met with Wiggin in May 2004 and also concluded that Wiggin had been incompetent to stand trial. Dr. K e l so cited two causes: (1) a mental defect and cognitive deficits caused by mild traumatic brain injury, and (2) th e m e n t a l disease of cocaine abuse. Dr. Kelso testified that Wiggin had a "minimal understanding" of the concept of conspiracy. He st a t e d that he had administered a test that showed Wiggin had trouble thin k i ng 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 thatDr. Ryan t e s t ified 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 t e s tified, he meant that 5 Wiggin gave answers that matched up logic a l l y 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 " f a l s e " n e x t t o t h e s t a t e m e n t " I a m n e v e r d e p r e s s e d " in order to be answering consistentl y . Dr. Ryan testified that consistent answers indicate that "the person is understanding the questioning." -8- Wiggin "didn't have a n y thing 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.
K e l s o concluded that Wiggin's assessment of the possibility of accepting a plea deal had not been rational.

D r . W i lliam Ryan, a forensic psychologist with the Federal Bureau of Prisons, testified for the government. Dr. Ryan testified that he had interviewed Wiggin in the f a ll of 2003 and 4 had subjected him to a test called the Minnesota Mult i p hasic Personality Inventory, 2nd E d i tion. He stated that Wiggin's results indicated that (1) he h a d 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 hims e l f a s v e r ym e n t a l l yi l l
. " D r . R y a n t e s t i f i e dt h a t h e h ad spoken with staff members at the prison where Wiggin was incarcerated and had been told th a t Wiggin functioned adequately-9-

a n d u nderstood 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 o t her 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 h a dnot trusted his attorney at trial but later realized hi s a t t o r n e yh a db e e n t r y i n gt o h e l p h i m . A s k e do n c r o s sexamination 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, ratio nal, 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 testifi e d 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 understan d t h e 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 distr i c t 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 i njury, 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 s u f f e r f r om 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 submi t t ed a report on August 19, 2004. On September 30, 2004, he testified that Wiggin w a s c o mpetent 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 d i d n o t 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 mo r e from Wiggin's lack of trust in his attorney than from any mental disease or defect. Wiggin hi m s elf 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 agains t h i m w a s related to his mental defects. "He didn't know me, I was saying things h e 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 [Wi g g i n 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 b ya 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 r e p l i e d : "[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 t h e standards laid out at 18 U.S.C.Section 4241 adopts the competency test articulate d b y the 8 Supreme Court in Dusky v. United States, 362 U.S. 402 (1960) (per curiam). -13- § 4241. This provision st a t e s t h a t 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 d e f endant. 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 de f e n d a n t i s 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 defen s e , 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 d etermination is] clearly

erroneous. " U n i t e dS t a t e s v . S a n t o s , 1 3 1 F . 3 d1 6 , 2 0 ( 1 s t C i r. 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 p r o c e e d i n g s" 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 th a t 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 iss u e d 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 witnes s t h a t c o mp e t e n c yr e q u i r e s t h e c a p a c i t yt o " a d e q u a t e ly participate in [one's] defense" and to "meaningfu l l yassist in [one's] defense"; it also concluded the competency hearing by reiterating that it had found that Wiggin did not have a " m e n tal 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 incorr e c t r u l e 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 i d
. 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 t o credit that testimony. See
San t o s , 1 3 1 F . 3 da t 2 0

- 2 1
. C o mp e t e n t p e o p l e c a n a n dd o m a ke decisions which others consider irrational. Star t i n g 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 l a w y e r h e did notknow, Wiggin's decision not to accept the plea was naive and illinformed, b u t n o t 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 attri b u t a b le 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 er r o r review of jury inst r u c t i ons); 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 j u r yinstructions 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 t o drug amounts attributable to, or foreseeable by, [the] defendant").

The d i s trict 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 sugge s t s t hat the conjunctive phrasing of this instruction implies that the two amounts are i d e n t ical, 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.