Opinion
Case No. 8:06-cr-472-T-17TGW, 8:10-cv-2900-T-17TGW.
November 22, 2011.
Counsel of Record, Patrick Doherty, Esq.
ORDER
This cause is before the Court on Miguel Rendon's 28 U.S.C. § 2255 allegation that his retained trial counsel, Patrick Doherty (hereinafter "Doherty"), was ineffective for failing to move for a competency hearing for Rendon prior to Rendon's trial, and that Rendon's appellate attorney was ineffective for failing to raise this issue on appeal. (Doc 1).
The parties dispute the appropriate standard of review as to the challenged evidentiary rulings in this case. Because we conclude there was no error as to either issue on appeal, the standard of review is not outcome determinative, and we need not determine whether we review the district court's rulings for abuse of discretion or plain error.
On October 14, 2011, the Court held an evidentiary hearing on this claim. Retained counsel Michael Robert Ufferman and Don Pumphrey, Jr. represented Rendon at the hearing. Assistant United States Attorney Christopher Tuite appeared for the Government. Special Agent Dan Gordon, the Drug Enforcement Agent on Rendon's underlying criminal case, joined AUSA Tuite at counsel table.
On behalf of Defendant Rendon, the Court heard testimony from Dr. Darren Rothschild (hereinafter "Dr. Rothschild"), a board certified forensic psychiatrist. The Government called Doherty to testify.
At the conclusion of the evidentiary hearing, the Court deferred ruling on the Government's oral motion that Rendon had not met his burden of demonstrating that Doherty was ineffective for failing to move for a competency hearing for Rendon prior to Rendon's trial. (Doc 31). After a review of the testimony at the evidentiary hearing, the record, and the submissions of the parties, this Court has determined that Rendon failed to meet his burden and that Doherty was not ineffective for failing to move for a competency hearing for Rendon prior to Rendon's trial. In addition, appellate counsel was not ineffective for failing to raise this issue on appeal.
BACKGROUND AND PROCEDURAL HISTORY
This case stems from an investigation conducted by federal, state, and local law enforcement that targeted a large-scale drug trafficking organization operating in the Middle District of Florida, Texas, and California. The investigation involved the use of confidential informants, physical surveillance, telephone records, and federal wiretaps. The wiretaps led to the interception of hundreds of drug-related calls involving Rendon and co-conspirators. Law enforcement was ultimately able to seize over 500 kilograms of cocaine and approximately three millions dollars in drug proceeds and assets from the organization.
Evidence obtained by law enforcement revealed that Rendon had been involved in the conspiracy from at least the late 1990's through Spring 2006, and that he had played a multi-faceted role in the organization. Rendon's role included distributing kilogram quantities of cocaine and pound quantities of both methamphetamine and marijuana to co-conspirators; investing in shipments of these drugs; providing high-interest loans to finance the organization's drug operation; storing large amounts of drug proceeds for the organization; and renting properties to members of the conspiracy for illicit use, sometimes in exchange for drug payments.
On November 14, 2007, Rendon was charged via a Superseding Indictment, with conspiracy to possess with intent to distribute 5 kilograms or more of cocaine, 500 grams or more of methamphetamine, and 1,000 kilograms or more of marijuana.
On May 12, 2008, Rendon's case proceeded to trial. Immediately prior to the commencement of trial, the Court held a hearing during which Doherty read into the record the contents of a letter dated May 9, 2008, from Dr. Douglas R. Sinclair. The letter, which was written at the request of Carol Rendon, Rendon's wife, addressed memory problems that Rendon might experience if he testified at the trial. At the hearing, Doherty also referred to an April 6, 2007, medical report from Rendon's treating physician, Dr. Philip Rizzuto, which essentially stated that Rendon's recent and remote memory were normal. Doherty stated that he brought the matter to the Court's attention out of "an abundance of caution," but he made clear that, in the "year or so" he had been representing Rendon, he "never had any impression that... [Rendon] had a mental or memory problem." He also indicted that he believed Rendon was competent to stand trial; therefore he did not move for a competency hearing.
During cross examination at the subsequent October 14, 2011 evidentiary hearing, attorney Doherty made it clear that when the May 9, 2008, Sinclair letter was presented to him, Doherty believed the letter was based on the results of a new examination by Dr. Sinclair. (Doc 36 — Pgs 244-246).
During the seven-day trial, the Government called six co-operating defendants who testified regarding Rendon's involvement in the conspiracy. The jury listened to a number of wiretap calls in which Rendon and co-conspirators used code words, including terms such as "ice," "white girls," "young girls," etc. to refer to the cocaine, methamphetamine, and marijuana they were trafficking. In addition, the Government presented testimony and evidence concerning the large quantities of narcotics, drug proceeds, and drug distribution paraphernalia that law enforcement seized during the course of its investigation, much of which was seized from properties Rendon owned and rented to co-conspirators. The Government also presented testimony regarding a box containing $27,930 that Rendon allegedly found on his property. Furthermore, testimony revealed that when law enforcement confronted Rendon about his role in the conspiracy, he admitted to participating in the off-loading of "bricks" of cocaine. Rendon claimed, however, that he thought he was unloading money, not drugs.
In Rendon's case-in-chief, Doherty called several witnesses — Rendon's friend and member of the local community, Kenneth Lee Bright, Jr., Rendon's sister-in-law, Jean Johnson, and Rendon's wife, Carol Rendon — to refute the government's evidence.
At the conclusion of the case, the jury deliberated for several hours before returning a verdict finding Rendon guilty of conspiracy to distribute all three of the drugs alleged in the Superseding Indictment. In addition, the jury found Rendon accountable for the maximum quantities of those drugs set by statute. On September 19, 2008, the Court sentenced Rendon to 235 months incarceration.
Rendon directly appealed his final judgment to the Eleventh Circuit, arguing that this Court abused its discretion by admitting certain evidence at trial. On September 28, 2009, the Eleventh Circuit affirmed Rendon's conviction. (Copy of opinion attached as Exhibit 1.)
On December 27, 2010, Rendon timely filed a 28 U.S.C. § 2255 motion raising six grounds for relief. In a previous order dated July 15, 2011 (Doc 19), this Court denied all grounds except Rendon's claim that Doherty was ineffective for failing to move for a competency hearing for Rendon prior to Rendon's trial and his claim that appellate counsel was ineffective for failing to raise the issue on appeal.
RENDON'S REMAINING 28 U.S.C. § 2255 CLAIM
Ground one of Rendon's 28 U.S.C. motion to vacate alleges:
The Petitioner was not competent at the time of the trial. Trial counsel was therefore ineffective for failing to move for a competency hearing. To the extent the issue was preserved for appeal, appellate counsel was ineffective for failing to raise this issue on appeal. As a result, the Petitioner was denied his right to effective assistance of counsel in violation of the Sixth Amendment to the Constitution. But for counsel's ineffectiveness, the result of the proceeding would have been different.
(Doc 1). Rendon's memorandum in support of the motion to vacate (Doc 2), elaborates on the claim.
Rendon's Memorandum
The evidence against Rendon was fact-intensive. Almost all of the government's evidence came from alleged co-conspirators who entered into plea agreements which required them to testify favorably for the Government. Rendon's best defense was to impeach these witnesses based on inconsistencies in their stories. To effectively implement this defense, trial counsel needed Rendon's input to understand the factual background of the case and relationship between Rendon and the government witnesses. Ultimately, only Rendon and his wife could provide the necessary information to trial counsel to enable trial counsel to properly impeach the government's witnesses.
However, Rendon submits that he was not competent at the time of the 2008 trial. At the time of trial, Rendon was 73 years old. Rendon claims that in 2008 he suffered from cognitive problems, including beginning stages of dementia. As a result, Rendon suffered memory loss, thereby preventing him from consulting with trial counsel and assisting counsel in properly impeaching the government witnesses. Moreover, according to Rendon, his mental health problems prevented him from voluntarily, knowingly, and intelligently waiving his right to testify at trial. He also contends that, had he testified, Rendon's mental health problems would have prevented his properly and effectively testifying.
Prior to trial, trial counsel introduced a letter from Dr. Douglas Sinclair, wherein Dr. Sinclair stated:
I'm seeing Mr. Miguel A. Rendon 8/02/1934 in my neurologic practice here in Bradenton. I am writing this letter at the request of he [sic] and his wife. He has a mild cognitive impairment which is a sign or form of early dementia.
He would be expected to have some difficulty with memory or if under duress, such as testifying for Court, could have some trouble formulating thought. I have some suspicion that he also has depression, a likely reaction to his given circumstance, which can impair memory and attention.
This should be taken under consideration if he is to testify. If you have any further questions, contact me.
s/Douglas Sinclair, D.O., Bradenton Neurology.
After learning of Dr. Sinclair's concern, counsel and the Court proceeded to ask Rendon questions. The Court stated:
This defendant has an absolute perfect right to take the stand if he elects to do so. if he elects to do so, if this is a sample of his memory, and what he remembers and what he doesn't remember, we may have a few problems.
The Court later added:
You all are put on notice as far as I'm concerned, both sides, both the government and the defense. You do whatever you want to do.
Rendon points out that, despite Dr. Sinclair's concern, trial counsel failed to move for a competency hearing. Rendon claims that there was "reasonable cause" to believe that he was not competent to stand trial, especially in light of Dr. Sinclair's letter.
In addition to Dr. Sinclair's letter, prior to trial, Carol Rendon repeatedly raised concerns with trial counsel regarding Rendon's competency and memory loss.
In support of this assertion, Rendon retained Dr. Rothschild. His report is dated December 23, 2010. In preparing the report, Rothschild reviewed information related to Rendon's case and opined that "the available information supports an assertion that Rendon had problems in his ability to consult with his attorney and assist in preparing his defense, i.e. due from cognitive dysfunction (poor memory, difficulty processing information, etc.)." (See Copy of Dr. Rothschild's December 2010 report attached as Exhibit 2 to this Order and Dr. Rothschild's October 7, 2011 updated report attached to this Order as Exhibit 2a. Exhibit 2a was introduced at the evidentiary hearing as Rendon's Exhibit 1 and Dr. Rothschild testified on and was cross examined on the original and updated reports.)
Rendon claims that the issue regarding his competency also affected his ability to make a proper decision regarding whether or not to testify during the trial. At the time of the trial, Rendon had no criminal history and the only valid reason that was discussed between trial counsel and Rendon's family as to why Rendon would not testify was a concern regarding: 1) his competency to testify; 2) his ability to understand and answer the questions; and 3) whether he would look confused in the eyes of the jury (and therefore not credible — meaning that his testimony would cause more harm than good). Yet, Rendon claims, based on the nature of this case, Rendon's testimony was needed to refute the testimony of the government witnesses and deny his guilt to the jury.
Rendon contends that, due to his competency concerns, the decision regarding whether he would testify was not made by Rendon. Instead, the decision was made by trial counsel, with input from Rendon's famly. He also claims that he was not competent to make a decision as to whether he should testify. Rendon claims that he believed he could testify during the appeal, even if he did not testify at trial. Rendon claims his incompetency resulted in his being denied his right to make a proper decision regarding his constitutional right to testify at trial. Rendon contends that, had he been competent, he would have decided to testify and thereafter professed his innocence to the jury and refuted the testimony of the government witnesses.
Rendon's Reply to the Government's Response to Motion To Vacate
In his reply to the government's reponse to his motion to vacate, Rendon claims that the Government "completely failed" to address or acknowledge the report submitted by Dr. Rothschild, where Dr. Rothschild recently concluded that "[i]t is my opinion that the record and available collateral information support an assertion that during Rendon's trial in May 2008, he was not competent to stand trial." He contends the factors that the Government focused on are refuted or explained by Dr. Rothschild in his report. For example, the Government relies on the answers given by Rendon during the May 12, 2008, colloquy: "Rendon reluctantly conceded at one point that he could remember events dating as far back as the year 2000."
However, in his report, Dr. Rothschild addressed Rendon's testimony during the May 12, 2008, colloquy:
The pretrial court transcript on May 12, 2008, gives a glimpse into Mr. Rendon's cognitive functioning at the time of the trial, which correlates with the family's description of Mr. Rendon's cognitive problems. Mr. Rendon was questioned by Mr. Doherty, Mr. Tuite, and the presiding judge in an apparent exploration of Mr. Rendon's competence to stand trial. Mr. Doherty presented the letter from Dr. Sinclair, but did not assert the possibility that Mr. Rendon was incompetent to stand trial. Rather, Mr. Doherty's questions seemingly intended to demonstrate that the defendant did not have significant cognitive problems and that he was competent. Mr. Doherty asked several questions about Mr. Rendon's background and Mr. Rendon's responses demonstrated an acceptable memory for remote events. (Remote memory is typically preserved in the early phases of dementia.) However, Mr. Rendon's recent memory was not adequately assessed. Mr. Rendon gave affirmative answers to leading questions without an assessment of whether or not he provided correct affirmations. For example, when asked if he knew that the date was May 12, 2008, Mr. Rendon said, "Yes." The following responses to questions from Mr. Doherty provide another example of this and demonstrate the appellant's lack of awareness (or denial) of his memory problems.
Q: Do you have difficulty understanding or recalling back to 2000, the year 2000?
A: I can give it a try to remember whatever question you ask.
Q: You can remember?
A: Yeah — yes.
Mr. Rendon could not recall back to the preceding year when he was asked a series of questions about when he last visited with Dr. Sinclair, his Neurologist, which according to medical records occurred in August 2007. Mr. Rendon initially said that he did not remember when he last met with Dr. Sinclair. Mr. Tuite and the presiding judge attempted to ascertain the approximate date by asking the appellant [Rendon] approximately thirteen questions about when the last visit with Dr. Sinclair occurred. Mr. Rendon said that he did not remember and ultimately testified, incorrectly, that the most recent visit occurred after January 2010. Following this inquiry, the Judge at a sidebar said, "The defendant has an absolute perfect right to take the stand if he elects to do so. If this is a sample of his memory, and what he remembers and what he doesn't remember, we may have a few problems." (emphasis added).
(Doc 2 — Exhibit 1). (The complete transcript of the colloquy (Doc. cr-109) is attached to this order as Exhibit 3.)
The Government also relied, in its response to Rendon's 28 U.S.C. § motion to vacate, on the fact that Rendon "flatly 'denie[d] any history of mental or emotional problems.'"(quoting from the PSR at ¶ 50). But as explained by Dr. Rothschild, "Mr. Rendon [had a] lack of awareness about his cognitive problems, and [he had a] tendency to minimize [] them." Finally, Rendon complains that the Government relied on the statements of Rendon's trial counsel regarding his belief that Rendon was competent. Dr. Rothschild included in his report a comment that he "recently" contacted Doherty when preparing his report and Doherty stated that "he (Doherty) would 'not be surprised if (Rendon's) mental capacity was not all there … He was not hitting on all cylinders.'" Rendon claims that this case does not concern an after-the-fact attempt to create a previously nonexistent postconviction claim. According to Rendon, there is a reasonable probability, based on Dr. Rothschild's recent report, Dr. Douglas Sinclair's pretrial letter, and the record in this case, that Rendon was not competent at the time of trial, and therefore was not able to consult with counsel or assist with the defense due to memory loss and/or was not able make a proper decision regarding whether he should testify.
Doherty made clear at the evidentiary hearing that Dr. Rothschild misunderstood the time frame Doherty was referring to when the two had their brief conversation regarding Rendon's mental state. As Doherty testified, "I actually thought we were talking about Miguel Rendon as of the date of the phone call — not as of the date of the trial. I'm clear on what I think on the date of the trial," namely, that Rendon was fully competent to stand trial. (Doc. 36 — pg 218).
TESTIMONY AT THE EVIDENTIARY HEARING Dr. Darren Rothschild, Board Certified Forensic Psychiatrist
Dr. Rothschild was accepted by the Court as "qualified to render an opinion in these proceedings." (Doc. 36 — Pg 22). Dr. Rothschild testified that he was asked to perform an evaluation regarding Rendon's competency at the time of trial. (Doc 36 — Pg 24). Dr. Rothschild reviewed collateral information in conducting his evaluation. (Doc 36 — Pgs 26). In particular, Dr. Rothschild interviewed family members, reviewed medical records and trial transcripts, and had phone conversations with Rendon's neurologist and Doherty. (Doc 36 Pg 26, 29). Dr. Rothschild wrote that in order for a criminal defendant to be competent, the defendant must have a present rational and factual understanding of the charges or allegations against him or her, the defendant must appreciate the potential consequences, and the defendant must have a present ability to assist in his or her own defense. (Doc 36 Pg 27). Dr. Rothschild explained that as part of the "ability to assist component of competency," a defendant must be able to provide historical accounts to defense counsel in preparation of the defense and a defendant must be able to remember facts during the trial as such facts are being presented so that the defense can adequately confront witnesses during the trial. (Doc 36 — Pg 27). Dr. Rothschild also stated that "decision making capacity" is also a factor to be considered when determining competency (i.e., one's ability to understand and potentially waive rights, such as the decision to testify). (Doc 36 — Pg 27).
Dr. Rothschild explained that memory is a type of cognitive functioning that can affect competency. (Doc 36 — Pg 31). He stated that dementia often affects the ability to learn new memories (i.e., a person with dementia may have difficulty remembering a name that was just recently said). (Doc 36 — Pgs 33-34). Dr. Rothschild opined that Rendon's ability to form "new memories" was an issue in this case:
So if there's a two-minute statement by a witness, he has to be able to remember all of that so he can go to his attorney and say this is not consistent with that, or I remember that this really happened then, but that — so if he can't record new memories, then that would bear on his competency.
(Doc 36 — Pgs 48-49).
Dr. Rothschild testified that it is common for someone with dementia to be unaware of the deficit. (Doc 36 — Pg 34). Dr. Rothschild stated that Rendon fit within this category (i.e., his family observed cognitive problems but Rendon was not aware of the problems). (Doc 36 — Pgs 34-35).
Dr. Rothschild stated that sometimes people are aware of their cognitive deficits but they do not want to admit that they are suffering such problems. (Doc 36 — Pg 35).
Dr. Rothschild explained that prior to trial, Carol Rendon noticed that Rendon had gradually been suffering from memory problems for approximately the previous ten years. (Doc 36 — Pg 35). Dr. Rothschild opined that based on all of the information that he reviewed, Rendon suffered from mild cognitive impairment, which was the same conclusion that Rendon's treating physician, Dr. Sinclair, had reached. (Doc 36 — Pg 37). Dr. Rothschild added that Dr. Sinclair's letter stated that prior to trial, Rendon was suffering from symptoms of depression and anxiety and that he was under a significant amount of stress. Dr. Rothschild explained that cognitive problems become more pronounced when the person with the cognitive problem is under stress. (Doc 36 — Pg 37).
Dr. Rothschild testified that he reviewed Rendon's prison records (i.e., records created following the trial in this case) and that the records contain notations about possible dementia and memory loss. (Doc 36 — Pg 40). Dr. Rothschild added that the Pinellas County Jail records also mention that Rendon suffered from memory problems. (Doc 36 Pg 42).
Dr. Rothschild stated that when he talked to Carol Rendon and Miguel Rendon, Jr. (hereinafter "Mike Rendon") Rendon's son, "both gave fairly consistent descriptions of a progression of cognitive changes and the nature of the cognitive changes...." (Doc 36 Pg 43). For example, Carol Rendon and Mike Rendon stated that Rendon would frequently get lost while driving around his neighborhood, a neighborhood in which he had lived for several years. (Doc 36 — Pg 43). Additionally, Mike Rendon explained that his father would need "prompts to stay on track during conversations" — for example, Rendon would be in the middle of a conversation and would forget what he was talking about. (Doc 36 — Pg 44). Finally, Carol Rendon recalled instances when Rendon would start cooking (put a pot of water on the stove to boil) and then leave the house — forgetting that he had started to cook — and she found the pot on the stove and the stove was still turned on. (Doc 36 — Pg 44).
Dr. Rothschild testified that he reviewed Dr. Sinclair's medical records. Dr. Rothschild stated that Rendon met with Dr. Sinclair approximately three times. (Doc 36 Pg 114). Dr. Rothschild explained:
My communication with Dr. Sinclair was based on objective findings, not just the reports from the defendant's wife at the time that there was decline. But his objective findings were that there were some office based tests, including the mini-mental status examination that he felt substantiated a cognitive decline.
....
And he — he — I recall him saying he considered the possibility that this was being drummed up for court and he didn't have a sense that this was being falsified or exaggerated.
....
And if you look back at those medical records from the first visit to the last visit he performs tests in which the defendant at the time could have easily exaggerated symptoms or if the defendant wanted to report to have memory problems it would have been very easy for him to so. And he didn't.
Nonetheless, there were objective findings in those — each of those visits that — that shed light onto the possibility that there was a genuine cognitive problem besides what either the defendant or his wife had told him, and those were contained in the mini-mental status examination, the MMSE.
(Doc 36 — Pgs 113-15).
Dr. Rothschild referenced the May 12, 2008, colloquy. Dr. Rothschild stated that during the colloquy, "it was taken at face value that what [Rendon] was saying was correct when it was wrong." (Doc 36 — Pg 46). Yet, Dr. Rothschild explained that no one realized during the May 12, 2008, colloquy that Rendon's answers were incorrect and therefore his answers were "used to determine that he knew what he was saying and what was happening." (Doc 36 — Pg 46). Dr. Rothschild stated that Rendon's testimony during the May 12, 2008, colloquy "raises a question or concern about his ability to testify" at trial. (Doc 36 — Pg 55). Dr. Rothschild testified that Rendon's testimony during the May 12, 2008, colloquy "supports that proposition which was suggested by his wife and by his son that at the time of the trial he was too confused to speak coherently." (Doc 36 — Pg 55).
Dr. Rothschild explained that a proper evaluation of Rendon's condition would require some specialized skill:
Given the nature of mild cognitive impairment, given the reported deterioration in the preceding four months prior to the trial, Mr. Rendon's described nature of understating his problems — this wasn't someone who was saying when he went to the doctor to see Dr. Sinclair, I can't remember anything, I can't do anything.
There was no exaggeration according to Dr.Sinclair. If anything, Dr. Sinclair's impression was either that Mr. Rendon wasn't as aware of his problems or that he wasn't fully admitting them. So when people aren't telling you what the problems are, it's hard to know unless you have a thorough evaluation. And mild cognitive impairment is in the gray area where someone might be competent, they might not be competent. And getting a full assessment of what they can do and what they can't do would require some objective testing, neuropsychological testing to determine what his capacities are.
And if there was a deficiency, let's say he had a hard time paying attention for more than a minute, then accommodations could be made where there's pauses and he's allowed to process information, talk to his attorney. If there's a problem with hearing, then, you know, accommodations are made.
So those types of fine tuning would have required the expertise of a forensic neuropsychologist, psychologist, or psychiatrist.
(Doc 36 — Pgs 50-52).
Dr. Rothschild added that although Rendon expressed a desire to testify at trial, when his family told him that the prosecutor would be able to cross-examine him, Rendon "glazed over" and the cross-examination procedure "wasn't registering" with Rendon. (Doc 36 — Pg 58). Therefore, Dr. Rothschild questioned whether Rendon was able to rationally or knowingly make a decision to waive his right to testify at trial, which according to Dr. Rothschild "bears heavily on his competency at the time." (Doc 36 — Pg 59).
Ultimately, Dr. Rothschild concluded that there is "a substantial doubt that [Rendon] was not competent" at the time of trial. (Doc 36 — Pg 62). Dr. Rothschild stated that "if [Rendon] lacked memories for some of the alleged events, the circumstances, his ability to provide other witnesses or facts that would be helpful in his defense would have been prevented, and that would have been an issue affecting his competency, his ability to process what's happening during the trial, to be able to understand the proceedings." (Doc 36 — Pgs 57-58).
On cross examination, the Court learned that Rendon, or his wife, hired Dr. Rothschild to engage in a retrospective assessment of Rendon's competency at the time of trial in May 2008. Dr. Rothschild was paid approximately $13,000 for his services (Doc 36 — Pg 97), and ultimately opined in his report that while Rendon "likely had a rational as well as factual understanding of the proceedings against him,... the available information supports an assertion that... [he] had problems in his ability to consult with his attorney and assist in preparing his defense." (Doc 36 — Pgs 75-76); (See Def.'s Hrg. Exh. 1 at 5-6).
Dr. Rothschild stated that he was to be paid by "the attorney," but he did not know who was paying the attorney. (Doc. 36 — Pg 97).
Dr. Rothschild candidly admitted at the evidentiary hearing that "the bar for competency is a fairly low one" (Doc 36 — Pg 63), and that even "people of low intelligence" or "near mental retardation can be found competent to stand trial." (Doc 36 — Pg 32). Dr. Rothschild also conceded that rendering a retrospective evaluation of a defendant's competency — as he did with Rendon — is inherently problematic, and is particularly difficult where, as here, he did not have an opportunity to examine Rendon prior to or at the time of trial. (Doc 36 — Pg 71).
Dr. Rothschild also acknowledged that, while he reviewed Rendon's trial transcript, he did not have the benefit of sitting through the trial itself, nor did he have the opportunity to interview or listen to the numerous witnesses — including the 6 cooperating coconspirators/defendants whom the government called — describe their many interactions with Rendon over the extended period of time they dealt with Rendon between at least the late 1990's through late 2005. (Doc 36 — Pgs 99-100). Nor, apparently, did Dr. Rothschild listen to the actual wiretap calls involving Rendon. (Doc 36 — Pgs 107-09).
Instead, Dr. Rothschild admitted that he relied almost exclusively on a limited number of "collateral" sources of information, the bulk of which were derived from either Carol Rendon or Mike Rendon. (See, e.g., Doc 36 — Pgs 87-90). Indeed, Dr. Rothschild devoted almost 4 hours to speaking with Carol Rendon and Mike Rendon. (Doc 36 — Pg 98). In contrast, he spent only 10 minutes interviewing Dr. Sinclair and even less time- 5 minutes — speaking with Doherty on the telephone. (Doc 36 — Pgs 98, 215). Further, he relied on the information provided by Mike Rendon, in part, to corroborate the information he received from Carol Rendon. (See, e.g., Doc 36 — Pgs 43-44, 92, 99).
See Footnote 4 above in which Doherty testified, "I actually thought we were talking about Miguel Rendon as of the date of the phone call — not as of the date of the trial. I'm clear on what I think on the date of the trial," namely, that Rendon was fully competent to stand trial. (Doc 36 — Pg 218).
Dr. Rothschild did not interview either Carol or Mike Rendon in person, and instead spoke with them only on the telephone. (Def.'s Hrg. Exh. 1 at 2-4). Further, his telephone conversations with these two occurred within a 3-day time span of each other, and included discussions with the two of them on the same day. (Def.'s Hrg. Exh. 1 at 2-4; Doc. cv- 36 at 98). Although Dr. Rothschild subsequently devoted the majority of the "Sources of Information" portion of his report to the assertions Carol and Miguel Rendon, Jr. made about Rendon's competency, at no point in his report did Dr. Rothschild address the possibility that these two loved ones conferred with each other ahead of time as to what they were going to tell him, or that they were even present when the other was being interviewed. (Doc 36 — Pg 99). Nor did he address, or even acknowledge, the conflict between what Carol and Mike Rendon told him and what the witnesses — including the 6 cooperating defendants — testified to at trial regarding Rendon's ample mental capabilities.
Despite Dr. Rothschild's extensive reliance on the information supplied to him by Carol Mike Rendon, Rendon's attorneys did not call either of these two family members to testify at the evidentiary hearing. Nor did they call Dr. Sinclair to testify regarding his analysis of Rendon's mental capabilities based on his examinations of Rendon prior to trial.
Patrick Doherty, Esquire
Doherty testified at the October 14, 2011 evidentiary hearing that he is a 1972 graduate of Loyola Law School, where he served on the school's Law Review and authored several articles about criminal law. (Doc 36 — Pg 156). Following his graduation, Doherty worked for 3 years as an Assistant Public Defender at the Pinellas County Public Defender's Office. (Doc. 36 — Pgs 156-57). During his tenure there, Doherty handled up to 300 — 400 felony cases a year and defended clients in a total of 42 trials, most of which involved defendants accused of "life felonies," including rapes, robberies and first degree murder. (Doc 36 — Pgs 157-58). Doherty was ultimately put in charge of all capital cases in North Pinellas County. (Doc 36 — Pg 157).
Upon leaving the Public Defender's Office, Doherty joined the private criminal defense bar. (Doc 36 — Pg 158). Since then, Doherty has focused exclusively on criminal defense work and has represented hundreds, if not thousands, of defendants in both Federal and State court. (Doc 36 — Pgs 158-59). He has also tried roughly 200 cases during that time period, including the "Commissioner's" trial and the "BCCI" case, both of which lasted 6 months. (Doc 36 — Pgs 157-59). In addition, Doherty has handled a number of death penalty cases over the years, almost all of which involved defendants with psychiatric issues and which required extensive work with psychiatrists. (Doc 36 — Pgs 160-61).
Doherty's abilities as a defense attorney have earned him a number of awards, including the St. Petersburg Times' Nelson Pointer Award for his work with civil liberties. (Doc 36 — Pg 161). He has also been twice elected by his peers as the President of the Pinellas County Criminal Defense Lawyers, and has served on the Board of Governors for Young Lawyers. In addition, since 1985, he has been rated by Martindale- Hubbell as an A-rated lawyer. (Doc 36 — Pg 161).
Based on his extensive experience as a criminal defense attorney, both as an Assistant Public Defender and in private practice, Doherty is intimately familiar with issues pertaining to his clients' competency. That experience is predicated not only on his countless interactions with the many clients he has represented, but includes numerous conversations he has had over the years with the psychiatrists with whom he has worked. (Doc 36 — Pgs 168-69). Doherty considers the matter of his client's competency to be the proverbial "elephant in the room," and the one "single fact" a defense attorney must know about his client throughout the time period of representing that individual. (Doc 36 — Pgs 164- 65, 172-73).
In determining whether his client's competency is suspect, Doherty looks at a number of factors, ranging from the particular facts of the case, to his clients' appearance (hygiene, grooming, etc.), their attentiveness, their speech pattern and expressions, the responsiveness and coherence of their answers, their possible changes in behavior throughout the period of representation, and even their timeliness for appointments. (Doc 36 — Pgs 162-68).
In the end, Doherty recognizes from experience that his clients can become less competent as time progresses, and thus remains vigilant in his attentiveness to the issue throughout the course of his representation. (Doc 36 — Pgs 162-68). Doherty also recognizes, however, that he cannot simply assert issues of competency as a strategic ploy to gain his client an advantage in the courtroom, and instead knows that, as an officer of the Court, he must have a good faith belief that his client is incompetent before bringing the issue to the Court's attention. (Doc 36 — Pgs 162-68). As Doherty explained in this regard at the evidentiary hearing:
Q. What does it take for you as a practitioner, whether in State or Federal Court, to file a motion with the Court to seek a competency evaluation?
A. Yeah, that's a good question. I think it takes a good faith basis, a good faith belief on my part that there's something arguably wrong here. That my client is arguably not competent to stand trial.
Not that they miss a word, not that they are slow to recall an address or a name. But there's got to be some reason to believe... that there's an arguable case that they're not competent to stand trial. That's what I think.
And I think in this case and in every case is not something I can defer to my client's wife and say, well, she thinks he's not competent and so I'm going to file the motion. I can't do that. I'm an officer of the court. I have to take the responsibility here to make this judgment myself.
And I really feel like the Court is counting on me to make a fair judgment here. Is this an issue or isn't it an issue. And if it is, raise it. And if it's not, don't raise it.
(Doc 36 — Pgs 162-68).
In this case, as evidenced by his testimony at the evidentiary hearing, Doherty did not have a good faith basis to pursue a competency hearing for Rendon based on his extensive interactions with Rendon during the year-and-a-half he represented him. (Doc 36 — Pg 214). Indeed, as set forth below, Doherty found Rendon throughout the period of representation to be "clearly" and "completely competent," (Doc 36 — Pgs 190, 268), and, in fact, as someone who "function[ed] on one of the highest level[s] of anybody... [he had]represented recently." (Doc 36 — Pg 256).
Doherty began representing Rendon in December 2006 and continued to represent him through the conclusion of Rendon's trial in May 2008. (Doc 36 — Pgs 169-70). During that time period, Doherty met with Rendon in person on "at least" 15 occasions — "typically for an hour or more" — and spoke with Rendon on at least a handful of other occasions as well. (Doc 36 — Pg 10). While the majority of Doherty's face-to-face meetings with Rendon took place at Doherty's office, some of them occurred at Rendon's home in Bradenton. (Doc 36 — Pgs 170-71).
Doherty's meetings with Rendon began even before he received the government's discovery and involved discussions with Rendon regarding Rendon's knowledge of the facts of the case. (Doc 36 — Pgs 171, 195). As time went on and the government's discovery began to come in, Doherty spoke with Rendon more and had an even greater opportunity to see him "interact with the evidence as it[] unfold[ed]." (Doc 36 — Pgs 171; 195-96).
During his many meetings and conversations with Rendon, Doherty watched Rendon "like a hawk," listening carefully to "every word" he said and examining "everything he d[id]" for any possible issues with respect to his competency. (Doc 36 — Pgs 172-73, 227, 235- 36). In all of this time, however, Doherty never witnessed anything that would have remotely led him to suspect Rendon was incompetent. Doherty, for example, never saw Rendon express any signs of dementia, never saw any distinction between Rendon's remote and present memory, never found Rendon to be non-responsive towards him, and never saw him lose his train of thought. (Doc 36 — Pgs 173-74, 184).
Quite the opposite, Doherty found Rendon to be "very bright" and "one of the most capable people" he had ever met, a self-made man fluent in 2 languages who had both successfully built-up and continued to manage up until the time of his trial 2 legitimate, hands-on businesses — one involving his rental properties and the other involving the sale of palm trees — while at the same time, at least until 2006, trafficking in major quantities of narcotics. (Doc 36 — Pgs 175-77, 196-97, 260).
Doherty also found Rendon's memory to be "great" (Doc 36 — Pg 175), so much so that he was able to provide Doherty with a vivid description of the material aspects of his case, including his relationship with his co-conspirators and the circumstances surrounding his arrest. (Doc 36 — Pgs 174-177, 251). In one of their meetings together in Bradenton which occurred in late 2006 or early 2007, prior to Doherty's receipt of the government's discovery, Rendon drove Doherty "around to all of the rental units" implicated in the case, and explained to Doherty "who rented those units, which of these co-conspirators — the people who would later testify against him — lived in which rental unit, how long they'd lived in the rental units, when they vacated the rental units and anything he thought would cause them to testify falsely against him." (Doc 36 — Pgs 175-76). At the evidentiary hearing, Doherty explained the significance of this episode as it related to the issue of Rendon's competency:
In other words, at that moment in the case I don't have discovery yet. He's telling me what the case is about. And so he's telling me that these people are testifying falsely against him and that they are his tenants. And this is where this one lives and this is where this one lives. And, by the way, this one pays this amount of rent and this one is behind on the rent.
And this one over here on Sneed Avenue had too many people in the house, and I threw them out because the septic tank was overloading and on and on and on. He was rich in detail as to who was living where and what they were paying and what — what his relationships were with them.
(Doc 36 — Pg 176).
As another example of Rendon's competency, Doherty testified about a proposed examination of Rendon and his wife that he received from Carol Rendon prior to trial. (Doc 36 — Pgs 202-03; Govt's Hrg. Exh. 3). Included in those proposed examinations were detailed descriptions of the factual circumstances surrounding many of Rendon's co-conspirators. Of significance, however, as Carol Rendon had claimed that she knew nothing about these co-conspirators, it was evident to Doherty that the information contained in the document had come from Rendon, thereby further evidencing his competency. (Doc 36 — Pgs 206-08).
Like many of his clients, the only instances in which Rendon expressed any real hesitancy in answering Doherty's inquiries regarding the case was when he was asked to explain a particularly incriminating piece of evidence for which there was no answer consistent with innocence . (Doc 36 — Pgs 181-84, 194, 252). Then, and only then, would Rendon respond, "I don't know." (Doc 36 — Pgs 181-84, 194, 252).
Doherty also had no reason to suspect Rendon's competency from his knowledge of the facts of Rendon's case. In this regard, it became clear to Doherty, both from his review of the evidence and his many interactions with Rendon, that Rendon had, for many years, been successfully able to "liv[e] 2 different lives," run "3 different businesses," and "speak[] 2 [different] languages." (Doc 36 — Pg 175). As Doherty explained at the evidentiary hearing:
[Rendon] not only managed... [his rental] properties, he managed those properties in a hands on way. He kept the ledgers and the books. He also did the plumbing. He did the ceramic work. He did the painting. He did all the maintenance that he could.
He's a smart business person, and part of being a smart business person is he knows to keep his overhead as low as he can. And he's doing that while he's also running a palm business where he plants palm trees and grows them to maturity and sells those. Plus, there's substantial evidence that he was running a third business as well that was criminal in nature.
(Doc 36 — Pgs 196- 97).
Doherty's receipt of Dr. Sinclair's report in April 2007 buttressed his conclusions regarding Rendon's competency. As a prelude to that report, Doherty had noticed that — like any 72 year old in his eighth decade of life — Rendon occasionally had moments where he would "pause[] to think of a name," an "address" or "a date." (Doc 36 — Pgs 173, 258-59). While Doherty considered such instances wholly unremarkable, particularly since — in addition to his age — Rendon was communicating with him in English, not his native tongue of Spanish (Doc 36 — Pgs 173-75, 256), Carol Rendon, would interrupt her husband when he hesitated to answer a question and say "Well, you've got dementia." (Doc 36 — Pg 173). Doherty obviously disagreed with Carol Rendon, concluding — in his experienced judgment — that Rendon was "not suffering from dementia," and was instead "normal." (Doc 36 — Pg 223).
Nonetheless, as Doherty explained at the evidentiary hearing, to appease Carol Rendon, he ultimately recommended that she take her husband to a physician of her own choosing and, once she did, that physician — Dr. Sinclair — determined that Rendon was, in fact, normal.
Miguel [Rendon] would pause on a word as I just did, and his wife would speak over him and say, well, he's got dementia and/or Alzheimer's or something like that.
And to me it just seemed like he was a normal fellow of 72 years of age who was having... the normal 72 years of age things happen to him.... But she kept bringing it up. So I said to her, if you think this is a problem, go to a doctor and have him looked at.... I didn't chose the doctor because I didn't want to get involved. I didn't want them to say that I chose the doctor or something.
So they went to see Dr. Sinclair. They bring me back a report and... the report says that he's normal.
(Doc 36 — Pg 210).
In that report, which was dated April 6, 2007, and which Doherty reviewed with Rendon, Dr. Sinclair stated that Rendon's "mental status is normal, that he did an MMSE, which is a memory test,"... [a]nd... [that Rendon] got 28 questions right out of 30." (See Govt's Hrg. Exh. 1). In the same report, Dr. Sinclair also indicated:
[Rendon's] recent and remote memory are within normal limits, immediate recall is normal. There's no aphasia, apraxia or agnosia noted. No right or left confusion was appreciated. There's no visual spacial distortions. No signs of thought disturbances. The patient was oriented as to time, place and person attention span and concentration are normal and the fund of knowledge is normal. He does have mild memory loss which, of course, every 71-year old has.
(Govt's Hrg. Exh. 1). Dr. Sinclair's assessment that Rendon's mental status was normal was one that Doherty shared, as did Rendon himself. (Doc 36 — Pgs 211, 221-22, 226). As Doherty explained at different points during the evidentiary hearing:
[T]his is exactly what I was seeing when I was talking to Mr. Rendon. He is a very pleasant — he's great guy,... and he's a very effective guy. I never thought he was perfect, but I definitely knew he was normal. And so I got this report back and the first word is that his mental status is normal.
***
We had a guy... — meaning Mr. Rendon, who says he's fine. I've got a doctor who says he's normal. And I'm looking at him and he is normal.
(Doc 36 — Pgs 211, 226). Doherty also recognized that the portion of Rendon's neurological history in Dr. Sinclair's report which purported that Rendon had any kind of mental issues was "almost entirely made up of what Mrs. Rendon sa[id]." (Doc 36 — Pg 224; see also Doc 36 — Pg 245)("the neurological history[] went on ten times to say she said, she said and she said[, b]utwhen it came down to doing the tests and running the tests and reading the data, his mental status was normal").
In the days leading up to trial, Doherty had two meetings with Rendon to address the issue of whether Rendon was going to testify at trial. (Doc 36 — Pgs 185-89). During the first meeting, which occurred on May 8, 2008, and which Carol Rendon apparently also attended, Doherty conducted a mock cross-examination of Rendon and found that, while Rendon did "fine on a lot of details and a lot of the lead up," as before, he did not have an answer consistent with innocence for the particularly incriminating proof against him. (Doc 36 — Pg 185). Doherty met again with Rendon and his wife the next day and experienced the same phenomenon. (Doc 36 — Pg 187). Aside from that issue, Doherty perceived no issues with either Rendon's recent or remote memory. (Doc 36 — Pg 187). In the end, Doherty recommended that Rendon not testify because Rendon could not provide an innocent explanation for the incriminating proof against him. As Doherty made unequivocally clear at the evidentiary hearing, however, his recommendation that Rendon not testify had nothing to do with any concerns over Rendon's competence. (Doc 36 — Pgs 189-90, 194, 214).
The reason [Rendon] couldn't testify was entirely different from that. It was that he could not explain what he had done, explain what he had said and explain where he had been and what he had in his garage in any way that was consistent with innocence. That was his problem.
(Doc 36 — Pg 194).
Once at trial, Doherty found Rendon to be coherent and more than able to assist in his own defense. (Doc 36 — Pgs 195-96). There was never a question in Doherty's experienced judgment that Rendon continued to have a rational as well as factual understanding of the proceedings against him, and a sufficient, present ability to consult with Doherty with a reasonable degree of rational understanding. (Doc 36 — Pgs 195-96). Based on Doherty's observations, Rendon was "functioning mentally every step of the way. He's testing this information every step of the way. He's telling me questions to ask or offering me pointers on questions to ask every step of the way." (Doc 36 — Pg 255). As evidence of the latter point, Doherty provided the following example at the evidentiary hearing:
When we were in trial, Mr. Rendon was trying to explain to me and was explaining to me that the testimony that we just heard that somebody had gotten a truck and a trailer and backed it into — on a lot that abutted one of his rental properties and then off-loaded drugs into the rental property from this vacant lot.
He explained to me that would be very difficult, if not impossible to do, because the lot was so long and narrow and — the one that backed up to his rental apartment, it was so long and narrow that it would be, he said, impossible to get a trailer to go straight back to his rental unit... [H]e went so far as to draw me a little map to show me on 54th Avenue how you got to get into this vacant lot to off-load this — these drugs. And I still have it.
* * *
But to me it tells me, A, I know what the witness is saying. B, I know what property he's talking about that I own. C, I know the adjacent property. I know the problems with the adjacent property and the approximate dimensions of that property enough to discuss it intelligently with my lawyer, which he did.
(Doc 36 — Pgs 178-79). In short, Doherty had absolutely no difficulties communicating with Rendon and, in fact, found him to be "one of the most functional people you'll ever meet." (Doc 36 — Pg 255).
Doherty's experience with Rendon's wife, Carol Rendon, during the time period Doherty represented Rendon, revealed that she had a vested interest in Rendon's case beyond simply her love for her husband. (Doc 36 — Pgs 197-98). While the Rendons had worked hard to amass their rental properties, it was clear to Doherty that Rendon had involved every one of these properties in his drug scheme and, thus, had subjected them all to forfeiture. (Doc 36 — Pg 196). Doherty raised this possibility with the Rendons from the outset and "sometimes... got the impression that Mrs. Rendon wanted to preserve those properties at all costs... " (Doc 36 — Pg 198).
It ultimately became evident to Doherty that "somebody [wa]s trying to sand bag" him by setting-up a false litigation strategy. (Doc 36 — Pg 243). This suspicion was confirmed on the day of trial when Carol Rendon provided him with a short letter from Dr. Sinclair, which stated the following:
I'm seeing Mr. Miguel A. Rendon 8/02/1934 in my neurologic practice here in Bradenton. I am writing this letter at the request of he and his wife. He has a mild cognitive impairment which is a sign or form of early dementia.
He would be expected to have some difficulty with memory or if under duress, such as testifying for Court, could have some trouble formulating thought. I have some suspicion that he also has depression, a likely reaction to his given circumstance, which can impair memory and attention.
This should be taken under consideration if he is to testify. If you have any further questions, contact me.
(See Govt's Hrg. Exh. 2) (emphasis added). While noting the considerations that should be taken into account should Rendon testify, at no point in his letter did Dr. Sinclair indicate that Rendon was not competent to stand trial.
Nonetheless, in abundance of caution, Doherty promptly brought Dr. Sinclair's letter to the Court's attention the morning of trial, along with Dr. Sinclair's earlier medical report detailing his examination of Rendon in April 2007. Doherty explained his reasons for taking this precautionary measure at the evidentiary hearing:
... I wanted to do that [i.e. to bring the note to the Court's attention] in abundance of caution because... this [note] is a loaded gun...
It[ was] obvious[] to me that somebody's going to be saying something at a later date, and it's obvious to me that somebody is trying to set-up a record to say something at a later date.
I want[ed] to make it clear if I can make it clear on the record that this gentleman, Mr. Rendon, is competent to stand trial on May 12, 2008, the day he's going to trial. And that I believe it. I've believed it from the beginning and I believe it now.
(Doc 36 — Pgs 213-14; 240-43).
After Dr. Sinclair's letter was read into the record, Rendon took the stand outside the presence of the jury and testified that, although a wealthy man of retirement age, he continued ably to manage a half dozen or more rental properties that were collectively worth a million dollars, if not more. (Doc cr-109 — Pgs 7, 9). Rendon also admitted that his real estate business required him to take care of these properties, to collect rents on them, and to maintain records and ledgers as a mechanism for keeping track of his rental income. (Doc cr-109 — Pgs 8-10). To the extent Rendon had any real, as opposed to feigned, lapses of memory during this colloquy, Doherty made clear to the Court that, in the roughly 18 months he had represented him, he had "never had any impression that this gentleman had a mental or memory problem." (Doc cr-109 — Pg 19).
In a subsequent exchange with the Court, Doherty emphasized again that he had no reservations about Rendon's competency and only raised the matter of Dr. Sinclair's letter to insure that he preserved the record for appeal.
Government: [The defendant's] obviously — and I want to make this clear — fully competent at this point to assist in his own defense with respect to the government's case.
Court: (to Doherty) You are not making any suggestion otherwise?
Doherty: No, I'm certainly not. Court: As an officer of the Court.
Doherty: I really am bringing this up in an abundance of caution in three years' time, four years' time, I don't want somebody to say that you had this letter and you didn't mention it. Court: You did the right thing, Patrick, absolutely.
(Doc cr-109 — Pg 21) (emphasis added).
Doherty reiterated this point at the evidentiary hearing.
Q. You made a representation as an officer of the Court at the time this issue came up in front of Her Honor that there was no issue with respect to the defendant's competency?
A. There was no issue.
Q. No good faith basis even to raise it at all?
A. No....
(Doc 36 — Pg 214) (emphasis added); see also (Doc 36 — Pg 216) ("there's just no question that this guy [i.e. Rendon] was satisfactory to me in terms of his mental function... Was he perfect? No, he wasn't perfect. But he was certainly satisfactory and he was certainly competent.") (emphasis added); (Doc 36 — Pg 244) ("My client's competence was never in question to me.") (emphasis added).
On May 12, 2008, Rendon's case proceeded to trial. (Doc cr-100). At that trial, which lasted 7 days, the government called 6 cooperating defendants who testified regarding Rendon's pervasive and long-standing involvement in the conspiracy, including his renting of properties to co-conspirators for their use in the drug trade, often in exchange for drug proceeds; Rendon's active involvement in the off-loading of drug shipments; and his conducting of drug deals himself. (See PSR at ¶ 11-19, 21); (Docs cr-101, 102, 104, 112).
In Rendon's case-in-chief, Doherty called several witnesses — including Carol Rendon and a former Palmetto Police Department Chief — to refute the government's proof. Of significance to the instant section 2255 motion, at no point during her testimony did Carol Rendon indicate that her husband was not competent to stand trial.
At the conclusion of the case, the jury found Rendon guilty as charged. (Doc cr-118). In advance of sentencing, Rendon was interviewed by the Probation Office and flatly "denie[d] any history of mental or emotional problems or history of treatment for such problems," and noted only that he was "depressed because of being tried and convicted of the instant offense." (PSR at ¶ 50).
On September 19, 2008, the Court sentenced Rendon to a term of imprisonment of 235 months. (Docs cr-144, 150).
Rendon directly appealed his final judgment to the Eleventh Circuit, arguing that the Court had abused its discretion in admitting certain evidence at trial. Rendon's appellate counsel, however, did not raise any issue with respect to Rendon's competency to stand trial. On September 28, 2009, the Eleventh Circuit affirmed Rendon's conviction in an unpublished, per curiam opinion. See United States v. Rendon, 359 Fed. App'x 80 (11th Cir. 2009); (Doc cr-187).
Doherty was adamant during cross examination that Rendon was competent to stand trial because he met the standard: Rendon understood the nature and consequences of the proceedings against him and he was able to assist properly in his defense. (See Doc 36 — Pgs 217-269 [transcript of cross examination] attached to this Order as Exhibit 4.)
DISCUSSION
Under the two (2) prong analysis announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), a section 2255 movant asserting ineffective assistance of counsel claims must show (1) that his attorney's performance fell below an objective standard of reasonable professional assistance, and (2) that he was prejudiced by that deficient performance. Id. at 687. A petitioner's failure to prove both of these prongs is fatal to any request for collateral relief. Id. at 697. For an attorney's performance to be deemed constitutionally deficient, a section 2255 movant bears the "heavy" burden of showing that his counsel's conduct fell outside the wide range of professionally competent assistance under the particular facts of his case. Id. at 690; Chandler v. United States, 218 F.3d 1305, 1313-14 (11th Cir. 2000) (en banc). In other words, "a petitioner must establish that no competent counsel would have taken the action that his counsel did take." Chandler, 218 F.3d at 1315. The issue in this regard "is not what is possible or 'what is prudent or appropriate, but only what is constitutionally compelled.'" Id. at 1313 (quoting Burger v. Kemp, 483 U.S. 776 (1987)).
In undertaking this analysis, courts "must avoid second-guessing counsel's performance," must avoid "using 'the distorting effects of hindsight,' and must evaluate the reasonableness of counsel's performance 'from counsel's perspective at the time.'" Id. at 1314, 1316 (quoting Strickland, 466 U.S. at 689). Furthermore, "[c]ourts must 'indulge [the] strong presumption' that counsel's performance was reasonable and that counsel 'made all significant decisions in the exercise of reasonable professional judgment.'" Id. (quoting Strickland, 466 U.S. at 689-90).
With respect to the second prong of the Strickland analysis, a section 2255 movant must demonstrate that there is a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Rendon has failed to satisfy his heavy burden. It is well settled that a defendant is deemed to be incompetent to stand trial only if he "lacks '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.'" United States v. Mateo, 413 Fed. Appx. 197, 203 (2011) (quoting Watts v. Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996)); see also Sanchez v. U.S., 2009 WL 812064, at *3 (M.D. Fla. Mar. 25, 2009) (Kovachevich, J.).
In this case, even Dr. Rothschild concedes that Rendon "likely had a rational as well as factual understanding of the proceedings against him." Dr. Rothschild's conclusion is abundantly supported by all of the evidence before the Court, including Doherty's testimony to the same effect, as well as the Court's own observations of Rendon's behavior during the course of his criminal case. Rendon cannot now credibly claim that, in light of all of this information, no competent counsel would have concluded — as Doherty did and as Dr. Rothschild now does — that Rendon did not have a rational as well as factual understanding of the proceedings against him.
The only issue posed by Rendon's motion, therefore, is whether Doherty was constitutionally ineffective in concluding that Rendon also had the sufficient, present ability to consult with him with a reasonable degree of rational understanding. As with first prong, Rendon must demonstrate in this regard that "no competent counsel" would have arrived at the same determination that Doherty did based on Doherty's perspective at the time. Chandler, supra. In doing so, Rendon must overcome the "strong presumption" that Doherty's performance was reasonable and that he "made all significant decisions in the exercise of reasonable professional judgment.'" Id. This Rendon has not done.
Doherty is one of the most experienced and distinguished members of the criminal defense bar, and both his credibility before the Court as well as his reputation as one of the best defense attorneys in the area is beyond challenge. His position that Rendon was fully competent to stand trial has been both unequivocal and unwavering. Dating back to the commencement of the trial in May 2008, Doherty made clear as an officer of the Court that he had no reservations whatsoever regarding Rendon's competency.
Doherty reiterated that position during the course of his testimony at the evidentiary hearing and explained in abundant detail the reasons for his assessment that Rendon was competent. Despite watching Rendon "like a hawk" for a year and a half, Doherty saw nothing in his many meetings and conversations with Rendon that would have led him to remotely suspect Rendon was incompetent.
Doherty's experienced assessment that Rendon was "clearly" and "completely competent" — born as it was of his many years as a defense lawyer as well as his many months representing Rendon — is entitled to tremendous weight here. As the Eleventh Circuit recently pointed out in Mateo, supra, "'[b]ecause legal competency is primarily a function of [a] defendant's role in assisting counsel in conducting the defense, the defendant's attorney is in the best position to determine whether the defendant's competency is suspect.'" United States v. Mateo, 413 Fed. Appx. 197, 203 (2011) (quoting Watts v. Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996)).
Rendon's efforts to attack Doherty's experienced judgment through Dr. Rothschild fail, as the Court rejects Dr. Rothschild's testimony as unpersuasive. Dr. Rothschild's testimony is the type of "second guessing" which both the Supreme Court and the Eleventh Circuit have explicitly admonished the courts to avoid. Reduced to its essence, Dr. Rothschild's retrospective assessment of Rendon's competency — which he conceded is inherently problematic — is built upon unchallenged hearsay statements made mainly by two witnesses, Carol and Mike Rendon, both of whom have a clear bias and both of whom, rather conspicuously, were never called by Rendon to testify at the evidentiary hearing. Had they been, they would have been impeached, in the case of Carol Rendon, by her own trial testimony, and, in the case of both her and Mike Rendon, by the other evidence presented at trial which contradicted the assertions they made to Dr. Rothschild. Even Dr. Sinclair — who found Rendon's mental status to be normal in his only report documenting a full examination of Rendon — was not called by Rendon to provide his thoughts on the matter of Rendon's mental status prior to trial.
Finally, Rendon has not shown, as he must, that he was prejudiced by Doherty's handling of the competency issue. Dr. Sinclair's cursory letter presented to Doherty on the morning of trial pertains only to Rendon's ability to testify at trial, yet it was decided for independent reasons by both Rendon and Doherty that Rendon would not testify in his own defense.
Rendon claims that, based on the record and the testimony presented at the evidentiary hearing, defense counsel rendered ineffective assistance of counsel by failing to properly challenge Rendon's competency to stand trial. Rendon properly contends that a defendant is mentally incompetent to stand trial when he is "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." 18 U.S.C. § 4241(a). United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir. 1986) (quotation omitted).
Rendon relies on Dr. Rothschild's testimony to meet the Strickland prejudice standard. Dr. Rothschild opined that there is "a substantial doubt that [Rendon] was not competent" at the time of trial (i.e., there is a probability sufficient to undermine confidence in the conclusion that Rendon was competent at the time of trial). (Doc 36 — Pg 62). Rendon contends that because the Government has not presented any medical/expert testimony to refute Dr. Rothschild's opinion, Dr. Rothschild's opinion stands. The Court rejects this argument because the most appropriate person to determine whether Rendon met the two prong test of whether Rendon was competent at the time of trial (i.e. the Defendant lacks 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) was Doherty, who did testify at the evidentiary hearing.
The Court finds Doherty's testimony at the evidentiary hearing credible and finds that, based on the testimony at the hearing and on the entire record in the criminal and civil case, Rendon had sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and had a rational as well as factual understanding of the proceedings against him.
Likewise, the Court rejects Rendon's contention that no reasonable attorney, — upon being presented with Dr. Sinclair's letter on the eve of trial — would fail to request a competency evaluation. It is true that 18 U.S.C. § 4241(a) provides, in pertinent part, that "[a]t any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant... the defendant... may file a motion for a hearing to determine the mental competency of the defendant," which the court shall grant "if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent." Doherty had no reasonable cause to believe that Rendon was incompetent.
Rendon also claims that Doherty should have filed a motion for a competency hearing based on the colloquy conducted before the trial began, following Doherty's calling Dr. Sinclair's letter to the attention the Court. This claim has no merit. Doherty spent a great deal of time with Rendon prior to trial and was convinced, as an officer of the court, that Rendon was competent. Doherty recognized the possibility of being "sandbagged," by this letter. The brief colloquy, conducted as a result of the letter requested by Carol Rendon did not demonstrate that Rendon was incompetent.
In short, Rendon has failed to show — as he must — that Doherty's handling of the alleged incompetency issue fell below an objective standard of reasonable professional assistance, and that he was prejudiced by that allegedly deficient performance. Rendon has not shown that Doherty was ineffective for failing to move for an competency hearing for Rendon prior to trial.
APPELLATE COUNSEL NOT INEFFECTIVE
The governing standard for ineffective assistance of appellate counsel is the same as set forth in Strickland, supra: counsel rendered deficient performance, and the deficient performance prejudiced the petitioner. Appellate counsel does not perform deficiently for failing to raise every non-frivolous ground for appeal. Smith v. Robbins, 528 U.S. 259, 288, (2000). Indeed, "the practice of 'winnowing out' weaker arguments on appeal, so to focus on those grounds that are more likely to prevail, is the 'hallmark of effective appellate advocacy.'" Hargrove v. Solomon, 227 Fed. Appx. 806, 808 (11th Cir. 2007) (citing Smith v. Murray, 477 U.S. 537, 536 (1986)). Furthermore, for the petitioner to be prejudiced, he must show a reasonable probability that the outcome of the appeal would have been different, not the outcome of the trial on remand. Clark v. Crosby, 335 F.3d 1303, 1312 n. 9 (11th Cir. 2003).
Because Doherty was not ineffective for failing to move for a competency hearing for Rendon prior to trial, appellate counsel was not effective for failing to raise this issue on direct appeal.
Accordingly, the Court orders:
1. The Court adopts and incorporates herein Document Nineteen (Doc 19) which denies grounds two, three, four, five, and six of Rendon's 28 U.S.C. § 2255 motion to vacate, set aside, or correct an illegal sentence.
2. That Rendon's 28 U.S.C. § 2255 motion to vacate, set aside, or correct an illegal sentence (Doc 1; Doc cr 200) is denied.
3. That the government's oral motion for miscellaneous relief, specifically that Rendon has not met his burden (Doc 31) is granted.
The Clerk is directed to enter judgment against Rendon and to close this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Defendant is not entitled to a certificate of appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue AAA only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Defendant "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Defendant has not made the requisite showing in these circumstances.
Finally, because Defendant is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
JUDGMENT
A True Copy — Attested clerk U.S. Court of Appeals Eleventh Circuit
It is hereby ordered, adjudged, and decreed that the attached opinion included hereih-by reference, is entered as the judgment of this Court.
Entered: September 28, 2009
For the Court: Thomas K. Kahn. Clerk
By: Gilman. Nancy
PER CURIAM:
Miguel A. Rendon appeals his conviction for conspiracy to distribute cocaine, methamphetamine, and marijuana, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A), and 846. Rendon asserts the district court abused its discretion when it (1) admitted out-of-court statements by co-conspirators under Federal Rule of Evidence 801(d)(2)(E) because those statements were not in furtherance of the conspiracy, and (2) admitted testimony regarding a suicidal gesture Rendon made during an interview with law enforcement because its probative value was substantially outweighed by the danger of unfair prejudice. We address each issue in turn, and affirm Rendon's conviction.
I.
Out-of-court statements offered in evidence to prove the truth of the matter asserted are generally inadmissible as hearsay. Fed.R.Evid. 801(c), 802. An outof-court statement, however, is not hearsay if it is offered against a party and is "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). As a prerequisite to the admission of a co-conspirator's statement, the Government, as the proponent, "must prove by a preponderance of the evidence that (1) a conspiracy existed, (2) the conspiracy included the declarant and the defendant against whom the statement is offered, and (3) the statement was made during the course of and in furtherance of the conspiracy." United States v. Underwood, 446 F.3d 1340, 1345-46 (11th Cir. 2006). We apply "a liberal standard in determining whether a statement is made in furtherance of a conspiracy. The statement need not be necessary to the conspiracy, but must only further the interests of the conspiracy in some way." United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002) (internal citation and quotation marks omitted). "[I]f the statement could have been intended to affect future dealings between the parties, then the statement is in furtherance of the conspiracy." United States v. Caraza, 843 F.2d 432, 436 (11th Cir. 1988) (internal quotation marks omitted).
In general, the out-of-court statements made by co-conspirators Jose Ibarra and Pedro Medina-Villegas to other co-conspirators communicated Rendon's role in the conspiracy. These communications helped maintain good working relations among the co-conspirators and therefore furthered the conspiracy. Id. For example, Medina-Villegas's statement to his daughter about Rendon's drug customers could have reassured her of Rendon's role in the conspiracy, and his statements to his son about a loan from Rendon, or to his daughter about Rendon's demand for money for an erroneously delivered package, could have provided guidance about how those co-conspirators should deal with Rendon, reducing the risk of a confrontation that would derail the conspiracy. Likewise, Medina Villegas's statements to co-conspirator Jose Luis Sandoval-Ochoa about the amount of marijuana Medina-Villegas received and unloaded at Rendon's property could have been a tool to encourage Sandoval-Ochoa to take a larger role in the conspiracy (which he eventually did).
Finally, although not made to maintain good working relations among the co-conspirators, Medina-Villegas's statement to a buyer about where the marijuana was grown furthered the conspiracy by helping influence the buyer to pay a higher price. Given the liberal standard for determining when a statement furthers the conspiracy, we conclude the district court did not errfn1 by admitting the statements because they maintained the functioning of the conspiracy. Miles, 290 F.3d at 1351.
II.
Under the Federal Rules of Evidence, all relevant evidence is admissible. Fed.R.Evid. 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Nonetheless, relevant evidence may be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403. "The term 'unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Old Chief v. United States, 117 S. Ct. 644, 650 (1997).
Rule 403, however, is "an extraordinary remedy which the district court should invoke sparingly, and [t]he balance... should be struck in favor of admissibility." United States v. Tinoco, 304 F.3d 1088, 1120 (11th Cir. 2002) (internal quotation marks omitted; alternation in original). "In reviewing issues under Rule 403, we look at the evidence in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact." Id.(internal quotation marks omitted). "The major function of Rule 403 is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect." United States v. Cross, 928 F.2d 1030, 1048 (1 lth Cir. 1991) (internal quotation marks omitted).
In this case, the testimony regarding Rendon's suicidal gesture to a law enforcement officer had probative value because the gesture suggested Rendon wanted to avoid explaining incriminating evidence, which indicated he did not have an exculpatory explanation. This probative value was not substantially outweighed by the danger of unfair prejudice, see Fed.R.Evid. 403, and thus the district court did not err in admitting the testimony regarding Rendon's suicidal gesture. Accordingly, we affirm Rendon's conviction.
AFFIRMED.
Sheryl L. Loesch Clerk, U.S. District Court 801 N FLORIDA AVE RM 220 TAMPA FL 33602-3849
Appeal Number: 08-15498-JJ Case Style: USA v. Miguel A. Rcndon District Court Number: 06-00472 CR-T-17-TGW £
The enclosed certified copy of the judgment and a copy of this court's opinion archereby issued as the mandate of this court.
Also enclosed arc the following:
Original Exhibits, consisting of: one box, one pst Original record on appeal or review, consisting of: eleven volumes
The clerk of the court or agency shown above is requested to acknowledge receipt on the copy of this letter enclosed to the clerk.
A copy of this letter, and the judgment form if noted above, but not a copv of the court's decision, is also being mailed to counsel and pro se parties. A copy of the court s decision was previously mailed to counsel and pro se parties on the date it was issued.
Sincerely,
THOMAS Ft. KAHN, Clerk
Exhibit 1
Competency to Stand Trial
Dear Mr. Ufferman,
Per your request and related to a possible appellate issue, I have endeavored to retrospectively evaluate Miguel Rendon's competency to stand trial in 2008, i.e., when a jury found him guilty of conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine, 500 grams or more of methamphetamine, and 1000 kilograms or more of marijuana. As you know, Mr. Rendon is currently serving a prison sentence of 235 months in FCI Coleman. At the time of this communication, FCI Coleman would not permit a direct evaluation of Mr. Rendon's mental status, which limits my ability to reach certain conclusions and adds limitation to the inherently challenging task of retrospectively evaluating competency.
SOURCES OF INFORMATION
Competency Standard
1. U.S. Department of Justice DEA Investigative Reports related to this case.
2. Documents provided by Carol Rendon, appellant's wife including rental agreements and personal history for Miguel Rendon.
3. Medical Records from Douglas Sinclair, D.O., Neurologist, dated April 6, 2007, through August 17, 2007, along with a letter from Dr. Sinclair to "Whom It May Concern," dated May 9, 2008. The letter states: "I am seeing Mr. Miguel A. Rendon (08/02/1934) at my neurologic practice here in Bradenton. I am writing this letter at the request of he and his wife. He has Mild Cognitive Impairment, which is a sign or form of early dementia. He would be expected to have some difficulty with memory or if under duress (such as testifying for court) and could have some trouble formulating thought. I have some suspicion that he also has depression (likely reaction formation to given circumstance), which can also impair memory and attention. This should be taken under consideration if he is to testify. If you have any questions, please contact me."
4. Telephone conversation with Douglas Sinclair, D.O., on December 1, 2010, for approximately ten minutes. Dr. Sinclair recalled that Mr. Rendon was evaluated for cognitive decline noticed primarily by Mr. Rendon's wife, who was present at the appointments. He said that Mr. Rendon lacked awareness of the cognitive decline. Dr. Sinclair said that formal neuropsychological testing was not performed. While Mr. Rendon "did well" on most "office-based" cognitive tests, he did have identifiable problems on some of them, including one-minute naming of words starting with the letter "F." After Mr. Rendon's cognitive symptoms did not improve with Vitamin B-12 injections, which were prescribed for a marginally low Vitamin B-12 level, an anti-dementia medication (Aricept) was offered but not accepted by Mr. Rendon.
5. Letter dated May 10, 2007, from Carol Rendon to Pat (Doherty). In the letter, Mrs. Rendon updates Mr. Doherty with recent records from the neurologist. "I am praying that the B-12 shots will improve his memory and stop his confusion. I have known for years that Mike was having a problem but thought it was his sugar fluctuating and/or his hearing loss causing a problem in combination with the aging process... I don't know what you think, but I think that these are issues that may need to be brought up in court on Mike's behalf."
6. Telephone conversation with Miguel Rendon, Jr., appellant's son, on December 6, 2010, for approximately one hour and fifteen minutes. The appellant's son said that his father had an "insidious" decline in his cognitive functioning, which in hindsight, started in the mid 1990's. Prior to such cognitive changes, his father reportedly had a "fantastic memory" and was cognitively "very sharp." Mr. Rendon, Jr., recalled that by the mid 1990's, his father would occasionally start sentences, stumble over his words, and forget what he was going to say. He described his father as being very proud and "good at covering" his confusion by changing the subject or downplaying the confusion. For many years, Mr. Rendon, Jr., attributed these intermittent cognitive problems to possible drops in his father's blood sugar, i.e. due medications he was taking for diabetes mellitus. Mr. Rendon, Jr., also said that he was reluctant to acknowledge that his father was losing some of his capacities. By the early 2000's, it was undeniable to Mr. Rendon, Jr., that his father had declined cognitively.
Mr. Rendon, Jr., described several changes that he thought exemplified his fathers cognitive problems and which had clearly manifested in the early 2000's. Mr. Rendon, Jr., reported frequently having to restart conversations with his father because his father would have no idea about what they were talking. His father "needed prompts to stay on track during conversations." He said that his father was no longer comfortable driving in areas that his father had known well for decades because his father became disoriented easily and consequently feared getting lost. Mr. Rendon, Jr., said that his father was forgetful in daily activities such as going to the store, where he would not remember essential items that he had gone to purchase. He said that his father had to maintain a "routine" of doing very similar activities each day and if the routine was broken, he would become more confused and/or anxious.
Mr. Rendon, Jr., said that prior to the arrest, his father was still functioning within the confines of a simple routine. Each day his father would breakfast at a local restaurant and have a list of things that needed to be accomplished, which he would either do by himself or have others help. After his arrest, he said that his father was under a lot of stress and that he had more problems with forgetfulness and confusion. He said that his father's cognitive dysfunction was greatest leading up to the trial, during the trial, and immediately after he was incarcerated. Mr. Rendon Jr. has noticed some improvements in his father's cognitive functioning since his father has settled into a routine within prison. However, he said that his father still has the cognitive problems that were present prior to the arrest. In particular, his father still has problems with calculations, he still loses track during conversations (i.e. he needs to be prompted as to what they are discussing), and his memory for recent events is poor. He said that his father still has good long-term memory, e.g., for events that occurred thirty to forty years ago.
When asked questions about his father's cognitive functioning as it related to the trial in 2008, Mr. Rendon, Jr., responses indicated that his father had a rational understanding of the charges against him along with the possible consequences, (e.g. going to prison and having his properties seized). Mr. Rendon, Jr., had significant concerns about his father's capacity to process information during the trial. He was concerned that his father's cognitive problems limited his father's ability to put coherent thoughts together and that this would have impaired his ability to testify relevantly. He said that his father wanted to testify during the trial and that Mr. Doherty made it "our choice" (i.e. between he, his mother, and his father) about whether his father would testify. Mr. Rendon, Jr., said that he and his mother decided against allowing his father to testify because the appellant appeared "glazed" and was at the time "unable to make decisions" for himself. Mr. Rendon, Jr., said that after his father's opportunity to testify passed, his father subsequently asked when he was going to testify, not realizing that it was too late.
Mr. Rendon, Jr., said that prior to his father's trial he was not familiar with the possibility of having his father's competency to stand trial evaluated. However, he did recall that concerns about his father's cognitive brought to Mr. Doherty before the trial. Mr. Rendon, Jr., recalled that immediately prior to the trial, the attorneys and judge asked his father questions to assess his cognitive ability. He that recalled that this limited inquiry included asking his father about recent visits with his doctors and that his father did not provide accurate responses to these questions. Instead, his father seemed confused in the process. He also recalled that his father was asked a question about whether he understood something and that his father answered affirmatively. Mr. Rendon, Jr., recalled thinking that his father did not understand and instead thought that his father was "covering" his cognitive problems, which was typical for him.
7. Telephone conversations with Carol Rendon, appellant's wife, on 12/03/10, and 12/06/10, for a total of two and a half hours. Mrs. Rendon has known the appellant for over fifty years and described him as "pretty smart" but that cognitive decline started in the late 1990's and was most evident during the time period after he was arrested and during his trial. She described her husband's cognitive decline and identified problems similar to what her son had reported (as above). She first noticed that Mr. Rendon had a harder time with calculations and became more forgetful. Like her son, she initially attributed much of his losing track in conversations to him either not understanding (because he did not hear well) and/or causing cognitive problems due to drops in his blood sugar,
She continues to visit her husband regularly and stated that, cognitively, he is no worse than he was at the time of the trial. Similar to her son's observation, she has noticed some cognitive improvement, i.e., since Mr. Rendon has settled into a routine within prison.
Mrs. Rendon said that her husband has several medical problems, including "a macular hole" in his eye, chronic back problems, diabetes mellitus since the late 1970's, and hearing problems. When his hearing was tested in approximately 2006, he reportedly missed approximately 5 out of 25 words in both ears. However, he was not interested in obtaining a hearing aid.
During the trial, she recalled that Mr. Rendon wanted to testify "so bad," and her attorney telling her that it was "up to us whether he testified." She and the attorney explained to appellant that if he testified, the prosecutor would be able to cross-examine him, which her husband did not appear to understand. She was concerned that he would not be able to hold his train of thought long enough to answer questions relevantly and therefore felt that it was in his best interest not to testify.
8. Brief telephone conversation with Patrick Doherty on December 7, 2010. Mr. Doherty was the appellant's defense attorney leading up to and during his trial. Mr. Doherty stated that he would need an authorization to speak with me in detail about Mr. Rendon, but described Mr. Rendon as a "really nice person" and that he (Mr. Doherty) would "not be surprised if (Mr. Rendon's) mental capacity was not all there... He was not hitting on all cylinders." At the time of this report, Mr. Doherty had recently received of a signed authorization for release of information from Mr. Rendon. However, time constraints and missed phone calls prevented further communication with Mr. Doherty prior to the submission of this report.
9. Pretrial and Trial transcripts dated May 12, 2008, through May 21, 2008, and a sentencing transcript from September 19, 2008.
10. Initial brief for appellant, Miguel Rendon vs. United States, dated December 18, 2008.
11. Brief from The United States of America in response to Mr. Rendon's appeal, dated February 19, 2009.
The applicable standard for competency to stand trial was established by Dusky v. United States, 362U.S.402, 8 S. Ct.788, 4 L. Ed. 2d 824 (1960) and Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975), which specify that the Constitution does not permit trial of an individual who lacks "mental competency." Dusky defines the competency standard as including both (1) "whether" the defendant has "a rational as well as factual understanding of the proceedings against him" and (2) whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." Drope repeats that standard, stating that it "has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial."
Background
Collateral information obtained from the appellant's family, his treating neurologist, and his defense attorney indicate that, at the time of the trial, Mr. Rendon was having cognitive problems. In April 2007, Mr. Rendon had a Neurologic evaluation by Dr. Sinclair who diagnosed Mr. Rendon with "Mild Cognitive Impairment, an early form of dementia." Dr. Sinclair also opined that depression and sleep disruptions were confounding Mr. Rendon's cognitive problems. According to family members, Mr. Rendon's cognitive problems started long before his legal problems arose, worsened leading up to the trial, and have subsequently improved to a limited degree, but persist. The available information is not suggestive or indicative that Mr. Rendon was malingering cognitive problems, i.e., intentionally feigning or exaggerating cognitive symptoms to avoid prosecution. Rather, if anything, the appellant reportedly tried to downplay his cognitive deficits and/or lacked awareness of them. Individuals with genuine cognitive decline commonly lack awareness of their cognitive problems.
Appellant's competency to stand trial
Due to the aforementioned limitations, I cannot reach conclusions with a reasonable degree of certainty regarding the nature of Mr. Rendon's reported cognitive problems. However, the available information suggests that the appellant probably had a rational as well as factual understanding of the proceedings against him. To the contrary, the available information supports an assertion that Mr. Rendon had problems in his ability to consult with his attorney and assist in preparing his defense, i.e., due from cognitive dysfunction (poor memory, difficulty processing information, etc.). Mr. Rendon's cognitive problems, i.e., due to Mild Cognitive Impairment, were likely exacerbated in the context of the stress of standing trial (as stated in Dr. Sinclair's letter).
The pretrial court transcript on May 12, 2008, gives a glimpse into Mr. Rendon's cognitive functioning at the time of the trial, which correlates with the family's description of Mr. Rendon's cognitive problems. Mr. Rendon was questioned Mr. Doherty, Mr. Tuite, and the presiding judge in an apparent exploration of Mr. Rendon's competence to stand trial. Mr. Doherty presented the letter from Dr. Sinclair, but did not assert the possibility that Mr. Rendon was incompetent to stand trial. Rather, Mr. Doherty's questions seemingly intended to demonstrate that the defendant did not have significant cognitive problems and that he was competent. Mr. Doherty asked several questions about Mr. Rendon's background and Mr. Rendon's responses demonstrated an acceptable memory for remote events. (Remote memory is typically preserved in the early phases of dementia.) However, Mr. Rendon's recent memory was not adequately assessed. Mr. Rendon gave affirmative answers to leading questions without an assessment of whether or not he provided correct affirmations. For example, when asked if he knew that the date was May 12, 2008, Mr. Rendon said, "Yes." The following responses to questions from Mr. Doherty provide another example of this and demonstrate the appellant's lack of awareness (or denial) of his memory problems.
Q: Do you have difficulty understanding or recalling back to 2000, the year 2000?
A: I can give it a try to remember whatever question you ask.
Q: You can remember?
A: Yeah-yes.
Mr. Rendon could not recall back to the preceding year when he was asked a series of questions about when he last visited with Dr. Sinclair, his Neurologist, which according to medical records occurred in August 2007. Mr. Rendon initially said that he did not remember when he last met with Dr. Sinclair. Mr. Tuite and the presiding judge attempted to ascertain the approximate date by asking the appellant approximately thirteen questions about when the last visit with Dr. Sinclair occurred. Mr. Rendon said that he did not remember and ultimately testified, incorrectly, that the most recent visit occurred after January 2010. Following this inquiry, the Judge at a sidebar said, "The defendant has an absolute perfect right to take the stand if he elects to do so. If this is a sample of his memory, and what he remembers and what he doesn't remember, we may have a few problems."
Lack of memory for the incidents and details of alleged events, probably interfered with Mr. Rendon's ability disclose pertinent facts to his attorney before and during the trial. According to Mrs. Rendon, the appellant did not provide any pertinent information that was helpful in his defense. If the appellant, genuinely lacked memory (i.e., had amnesia) for the allegations or details of the conspiracy alleged against him, such amnesia is likely permanent. According to Wilson v. The United States of America (1968), permanent amnesia does not bear on competency to stand trial unless the amnesia precludes a fair trail, which is to be evaluated after completion of the trial. In Mr. Rendon's case, there was inadequate consideration as to whether Mr. Rendon had memory deficits regarding the alleged crime and there was no documented consideration regarding whether or not such memory deficits affected the fairness of his trial.
According to the available information, Mr. Rendon's cognitive issues likely caused several problems with in his capacity to consult with his attorney and to assist in preparing his defense. Mr. Rendon's memory problems likely affected his abilities to identify and locate witnesses, to disclose pertinent facts surrounding the alleged events, to follow testimony for contradictions, and to challenge prosecution witnesses. Mr. Rendon reportedly also had difficulty comprehending legal advice and had questionable ability to make decisions with such advice (i.e., he appeared "glazed" after discussing whether or not he should testify). His family decided for him that he should not testify because he frequently lost his train of thought and was easily confused.
As stated by the Judge, there was reason for concern about his ability to testify relevantly. During the courtroom inquiry into his competency and with regards to when he last met with Dr. Sinclair, Mr. Rendon's testimony about the date of the last visit to Dr. Sinclair confused the attorneys and ultimately yielded incorrect information. Mr. Rendon wanted to testify. Based on the available information, he probably would have had difficulty testifying in a relevant manner, particularly if he was asked questions about the recent events.
Finally, it is not clear that Mr. Rendon knowingly or competently exercised his right to remain silent during the trial nor that he fully appreciated or participated in the decision to remain silent. The appellant reportedly did not know that he was not going to testify until it was too late.
Whether or not Mr. Rendon had the requisite capacity to consult with his counsel and assist in preparing his defense should have been evaluated by a qualified Forensic Psychiatrist or Psychologist prior to the trial. The courtroom inquiry of Mr. Rendon's cognitive status was substantially inadequate due to the nature of Mr. Rendon's reported cognitive problems, Mr. Rendon's lack of awareness about his cognitive problems, and his tendency to minimize his them. Nonetheless, Mr. Rendon's cognitive problems were evident during the inquiry and the Judge recognized them. It is my opinion that the record and available collateral information support an assertion that during Mr. Rendon's trial in May 2008, he was not competent to stand trial.
Because Mr. Rendon's current cognitive status is reportedly better than it was at the time of the trial, a current evaluation would not directly answer the question about his competency to stand trial in 2008. Rather, a current evaluation could assess his present cognitive abilities and whether or not he currently meets criteria for competency to stand trial. If he does not presently meet criteria for competency to proceed, then it would reasonable to conclude that he did not meet them at the time of his trial in 2008, (i.e., because he is reportedly better cognitively now than he was in 2008). However, because of such improvement, present competency to stand trial would not necessarily indicate that he was competent in 2008.
Despite its limitations, I hope you find this report helpful. The above opinions are based on the available information and could change in light of additional information. I am awaiting communication with Mr. Doherty and intend inquire as to why he, at the time of the trial, did not have concerns about Mr. Rendon's competence to stand to trial. Additionally, direct evaluations of Mr. Rendon could shed additional light on the question about Mr. Rendon's competence to stand trial in 2008. If such an evaluation is to be performed, it should incorporate objective measures of Mr. Rendon's cognitive functioning, i.e., neuropsychological testing, which would require the involvement of a Forensic Psychologist.
If you have any questions concerning this report, I would be happy to discuss them with you. I can be reached by telephone at (727) 786-8000.
Thank you for the opportunity to provide my services in this matter.
Respectfully submitted,
Digitally signed by Darren M. Rothschild, M.D. Date: 2010.12.23 15:21:12-O5'0O'
Darren M. Rothschild, MD Board Certified in General Psychiatry Board Certified in Forensic Psychiatry Board Certified in Addiction Medicine
Dear Mr. Ufferman,
Per your request and related to an appellate issue, I have endeavored to retrospectively evaluate Miguel Rendon's competency to stand trial in 2008, i.e., when a jury found him guilty of conspiracy to distribute and to possess with intent to distribute live kilograms or more of cocaine, 500 grams or more of methamphctamine, and 1000 kilograms or more of marijuana. As you know, Mr. Rendon is currently serving a prison sentence of 235 months in FCI Coleman. At the time of this communication, FCI Coleman would not permit a direct evaluation of Mr. Rendon's mental status, which limits my ability to reach certain conclusions and adds limitation to the inherently challenging task of retrospectively evaluating competency.
SOURCES OF INFORMATION
1. U.S. Department of Justice DEA Investigative Reports related to this case.
2. Documents provided by Carol Rendon, appellant's wife, including rental agreements and personal history for Miguel Rendon.
3. Medical Records from Douglas Sinclair, D.O., Neurologist, dated April 6, 2007, through August 17, 2007, along with a letter from Dr. Sinclair to "Whom It May Concern," dated May 9, 2008. The letter states: "I am seeing Mr. Miguel A. Rendon (08/02/1934) at my neurologic practice here in Bradenton. I am writing this letter at the request of he and his wife. Me has Mild Cognitive Impairment, which is a sign or form of early dementia, lie would be expected to have some difficulty with memory or if under duress (such as testifying for court) and could have some trouble formulating thought. I have some suspicion that he also has depression (likely reaction formation to given circumstance), which can also impair memory and attention. This should be taken under consideration if he is to testify. If you have any questions, please contact me."
4. Telephone conversation with Douglas Sinclair, D.O., on December 1, 2010, for approximately ten minutes. Dr. Sinclair recalled that Mr. Rendon was evaluated for cognitive decline, noticed primarily by Mr. Rendon's wife, who was present at the appointments. He said that Mr. Rendon lacked awareness of the cognitive decline. Dr. Sinclair said that formal neuropsychological testing was not performed. While Mr. Rendon "did well" on most "office-based" cognitive tests, he did have identifiable problems on some of them, including one-minute naming of words starting with the letter "F." Mr. Rendon's cognitive symptoms did not improve with Vitamin B-12 injections, which were prescribed for a marginally low Vitamin B-12 level. Dr. Sinclair recommended an anti-dementia medication (Aricept), which Mr. Rendon declined to try.
5. Letter dated May 10,-2007, from Carol Rendon \o Paf*(Dbherty); In the letter, Mrs. Rendon updates Mr. Doherty with recent records from the neurologist. "I am praying that the B-12 shots will improve his memory and stop his confusion. I have known — for years that Mike was having a problem but thought it was his sugar fluctuating and/or his hearing loss causing a problem in combination with the aging process... I don't know what you think, but I think that these are issues that may need to be brought up in court on Mike's behalf."
6. Telephone conversation with Miguel Rendon, Jr., appellant's son, on December 6, 2010, for approximately one hour and fifteen minutes. The appellant's son said that his father had an "insidious" decline in his cognitive functioning, which in hindsight, * started in the mid I990's. Prior to such cognitive changes, his father reportedly had a "fantastic memory" and was cognitively "very sharp." Mr. Rendon, Jr., recalled that by the mid 1990's, his father would occasionally start sentences, stumble over his words, and forget what he was going to say. He described his father as being very proud and "good at covering" his confusion by changing the subject or downplaying the confusion. For many years, Mr. Rendon, Jr., attributed these intermittent cognitive problems to possible drops in his father's blood sugar, i.e. due to medications he was taking for diabetes mellitus. Mr. Rendon, Jr., also said that he was reluctant to acknowledge that his father was losing some of his capacities. By the early 2000's, it was undeniable to Mr. Rendon, Jr., that his father had declined cognitively.
Mr. Rendon, Jr., described several changes that he thought exemplified his fathers cognitive problems and which had clearly manifested in the early 2000's. Mr. Rendon, Jr., reported frequently having to restart conversations with his father because his father would have no idea about what they were talking. His father "needed prompts to stay on track during conversations." He said that his father was no longer comfortable driving in areas that his father had known well for decades because his father became disoriented easily and consequently feared getting lost. Mr. Rendon, Jr., said that his father was forgetful in daily activities such as going to the store, where he would not remember essential items that he had gone to purchase. He said that his father had to maintain a "routine" of doing very similar activities each day and if the routine was broken, he would become more confused and/or anxious.
Mr. Rendon, Jr., said that prior to the arrest, his father was still functioning within the confines of a simple routine. Each day his father would cat breakfast at a local restaurant and have a list of things that needed to be accomplished, which he would either do by himself or have others help. After his arrest, he said that his father was under a lot of stress and that he had more problems with forgetfulness and confusion. He said that his father's cognitive dysfunction was greatest leading up to the trial, during the trial, and immediately after he was incarcerated. Mr. Rendon Jr. has noticed some improvements in his father's cognitive functioning since his father has settled.into jx routine within prison. However, he said that.his fajher still has the cognitive problems that were present prior to the arrest. In particular, his father still has problems with calculations, he still loses track during conversations (i.e. he needs to be prompted about what they arc discussing), and his memory for recent events is poor. He said that his father still has good long-term memory, e.g., for events that occurred thirty to forty years ago.
When questioned about his father's cognitive functioning during the trial in 2008, Mr. Rendon, Jr., responses indicated that his father had a rational understanding of the charges against him, along with the possible consequences, (e.g., going to prison and having his properties seized). Mr. Rendon, Jr., had significant concerns about his father's capacity to process information during the trial. He was specifically concerned that his father's cognitive problems limited his ability to put coherent thoughts together and that this would have impaired his ability to testify relevantly. He said that his father wanted to testify during the trial and that Mr. Doherty made it "our choice" (i.e. between he, his mother, and his father) about whether his father would testify. Mr. Rendon, Jr., said that he and his mother decided against allowing his father to testify because the appellant appeared "glazed" and was at the time "unable to make decisions" for himself. Mr. Rendon, Jr., said that after his father's opportunity to testify passed, his father subsequently asked when he was going to testify, not realizing that it was too late.
Mr. Rendon, Jr., said that prior to the trial he was not familiar with the possibility of a competency evaluation. However, he recalled that concerns about his father's cognitive problems were brought to Mr. Doherty's attention before the trial. Mr. Rendon, Jr., also recalled that immediately prior to the trial, the attorneys and judge asked his father questions to assess his cognitive ability. He said that this inquiry included asking his father about recent visits with his doctors and that his father did not provide accurate responses to these questions. Instead, his father seemed confused in the process. He also recalled that his father was asked a question about whether he understood something and that his father answered affirmatively. Mr. Rendon, Jr., recalled thinking that his father did not understand and instead thought that his father was "covering" his cognitive problems, which was typical for him.
7. Telephone conversations with Carol Rendon, appellant's wife, on 12/03/10, and 12/06/10, for a total of two and a half hours. Mrs. Rendon has known the appellant for over fifty years and described him as "pretty smart." She said that his cognitive decline started in the late I990's and that it was most evident during the time period following his arrest and during his trial. She identified problems similar to what her son had reported (as above). She first noticed that Mr. Rendon had a harder time with calculations and became more forgetful. Like her son, she initially attributed much of his losing track in conversations to him either not understanding (because he did not hear well) and/or drops in his blood sugar causing cognitive problems.
She continues to visit her husband regularly and stated that, cognitively, he is no worse than he was at the time of the trial. Similar to her son's observation, she has — — noticed some cognitive improvement, i.e.. since MrrRendon has settled into a routine within prison.
Mrs. Rendon said that her husband has several medical problems, including "a macular hole" in his eye, chronic back problems, diabetes mellitus since the late 1970's, and hearing problems. When his hearing was tested in approximately 2006, he reportedly missed approximately 5 out of 25 words in both ears. However, he was not interested in obtaining a hearing aid.
During the trial, she recalled that Mr. Rendon wanted to testify "so bad," and her attorney told her that it was "up to us whether he testified." She and the attorney explained to the appellant that if he testified, the prosecutor would be able'to cross-examine him, which her husband did not appear to understand. She was concerned that he would not be able to hold his train of thought long enough to answer —questions relevantly and therefore felt that it was in his best interest not to testify.
8. Brief telephone conversation with Patrick Doherty on December 7, 2010. Mr. Doherty was the appellant's defense attorney leading up to and during his trial. Mr. Doherty stated that he would need an authorization to speak with me in detail about Mr. Rendon, but described Mr. Rendon as a "really nice person" and that he (Mr. Doherty) would "not be surprised if (Mr. Rendon's) mental capacity was not all there... He was not hitting on all cylinders." After receiving authorization to communicate with me, Mr. Doherty did not respond to my subsequent attempts to obtain information regarding Mr. Rendon.
9. Pretrial and Trial transcripts dated May 12, 2008, through May 21, 2008, and a sentencing transcript from September 19, 2008.
10. Initial brief for appellant, Miguel Rendon vs. United States, dated December 18 2008.
11. Brief from The United States of America in response to Mr. Rendon's appeal, dated February 19, 2009.
12. Medical Records from the Pinellas County Jail dated July 11, 2008, through January 5, 2009.
13. Medical records from the Federal Bureau of Bureau of Prisons dated January 6, 2009, through August 4, 2011.
Competency Standard
The applicable standard for competency to stand trial was established by Dusky v. United States, 362U.S.402, 8 S. Ct.788, 4 L. Ed. 2d 824 (1960) and Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975), which specify that the Constitution does not permit trial of an individual who lacks "mental competency." Dusky defines the competency standard as including both (1) "whether" the defendant has "a rational as well as factual understanding of the proceedings against him" and (2) whether the defendant, "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." Drope repeats that standard, stating that it "has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the. nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial."
Background
Collateral information obtained from the appellant's family, his treating neurologist, and his defense attorney indicate that, at the time of the trial, Mr. Rendon was having cognitive problems. In April 2007, Mr. Rendon had a Neurologic evaluation by Dr. Sinclair who diagnosed Mr. Rendon with "Mild Cognitive Impairment, an early form of dementia." Dr. Sinclair also opined that depression and Sleep disruptions were confounding Mr. Rendon's cognitive problems. According,to family members, Mr. Rendon's cognitive problems started long before his legal problems arose, worsened leading up to the trial, and have subsequently improved to a limited degree, but persist. The available information is not suggestive or indicative that Mr. Rendon was malingering cognitive problems, i.e., intentionally feigning or exaggerating cognitive symptoms to avoid prosecution. Rather, if anything, the appellant reportedly tried to downplay his cognitive deficits and/or lacked awareness of them. Individuals with genuine cognitive decline commonly lack awareness of their cognitive problems.
Appellant's competency to stand trial in 2008
Due to the aforementioned limitations, I cannot reach conclusions with a reasonable degree of certainty regarding the nature of Mr. Rendon's reported cognitive problems. However, the available information substantiates a finding that Mr. Rendon had significant cognitive problems around the time of trail. Based on information from his son, the appellant likely had a rational as well as factual understanding of the proceedings against him. To the contrary, the available information supports an assertion that Mr. Rendon had problems in his ability to consult with his attorney and assist in preparing his defense, i.e., due to cognitive dysfunction (poor memory, difficulty processing information, etc.). Mr. Rendon's cognitive problems, i.e., due to Mild Cognitive Impairment, were likely exacerbated in the context of the stress of standing trial (as stated in Dr. Sinclair's letter).
The pretrial transcript on May 12, 2008, includes Mr. Doherty, Mr. Tuite, and the presiding judge questioning Mr. Rendon in an apparent exploration of his competence to stand trial. This transcript gives a glimpse into Mr. Rendon's cognitive functioning at the time of the trial and corroborates his family's description of his cognitive problems. Mr. Doherty presented the aforementioned letter from Dr. Sinclair.
Instead of asserting the possibility that Mr. Rendon was incompetent to stand trial, Mr. Doherty's questions to Mr. Rendon seemingly intended to demonstrate that the appellant did not have significant cognitive problems and that he was competent. Mr. Doherty asked several questions about Mr. Rendon's background and Mr. Rendon's responses demonstrated an acceptable memory for remote events (remote memory is often preserved in the early phases of cognitive decline.) Mr. Rendon's recent memory was not appropriately assessed. Mr. Rendon gave affirmative answers to leading questions without' an assessment of whether or not he provided correct affirmations. For example, when asked if he knew that the date was May 12, 2008, Mr. Rendon said, "Yes." The following responses to Mr. Doherty provide another example of this and demonstrate the appellant's lack of awareness (or denial) of his memory problems.
Q: Do you haye difficulty understanding or recalling, back to 2000, the year 2000?
A: I can give it a try to remember whatever question you ask.
Q: You can remember?
A: Yeah-yes.
Mr. Rendon could not recall back to the preceding year when he was asked a series of questions about when he last visited with Dr. Sinclair, his Neurologist, which according to medical records occurred in August 2007. Mr. Rendon initially said that he did not remember when he last met with Dr. Sinclair. Mr. Tuite and the presiding judge attempted to ascertain the approximate date of the last meeting by asking the appellant approximately thirteen questions about when the last visit with Dr. Sinclair occurred. Mr. Rendon said that he did not remember and ultimately testified, incorrectly, that the most recent visit occurred after January 2008. At a sidebar following this inquiry, the Judge said, "The defendant has an absolute perfect right to take the stand if he elects to do so. If this is a sample of his memory, and what he remembers and what he doesn't remember, we may have a few problems."
Impaired memory can impact a defendant's ability to assist in their defense. If the appellant genuinely lacked memory (i.e., had amnesia) regarding details about his whereabouts, involvement, or lack of involvement with his alleged conspirators, it is my opinion that such amnesia is likely permanent. According to Wilson v. The United States of America (1968), permanent amnesia did not bear on competency to stand trial unless the amnesia precluded a fair trail, which was to be evaluated after completion of the trial. In Mr. Rendon's case, there was inadequate consideration as to whether Mr. Rendon had memory deficits regarding the alleged crime and there was no documented consideration regarding whether or not such memory deficits affected the fairness of his trial.
According to the available information, Mr. Rendon's cognitive issues likely diminished his capacity to consult with his attorney and to assist in preparing his defense. Mr. Rendon's memory problems likely affected his abilities to identify and locate witnesses, to disclose pertinent facts surrounding the alleged events, to follow testimony for contradictions, and to assist in challenging prosecution witnesses. According to Mrs. Rendon, the appellant did not provide any pertinent information that was helpful in his defense.
Mr. Rendon reportedly had difficulty comprehending legal advice and had questionable ability to make decisions with such advice (i.e., he appeared "glazed" after discussing whether or not he should testify). His family decided for him that he should not testify'' because he frequently lost his train of thought and was easily confused.
The Judge expressed concern about his ability to testify relevantly. During the courtroom inquiry into his competency and with regards to when he last met with Dr. Sinclair, Mr. Rendon's testimony about the date of the last visit to Dr. Sinclair confused the attorneys and ultimately yielded inaccurate information.. Mr.. Rendon wanted to testify. Based on the available information, he probably would have had problems testifying in a relevant manner.
It is unlikely that Mr. Rendon knowingly or competently exercised his right to remain silent during the trial nor that he fully appreciated or participated in the decision to remain silent. The appellant reportedly did not know that he was not going to testify until it was too late.
The decision whether to testify should have been his to make and it should not have been influenced by an inability to testify relevantly due to cognitive problems. If he was unable to testify relevantly due to cognitive problems, he was not competent to stand trial.
The courtroom inquiry of Mr. Rendon's cognitive status was substantially inadequate due to the nature of Mr. Rendon's reported cognitive problems, i.e., his lack of awareness about his cognitive problems, and his tendency to minimize his them. Nonetheless, Mr. Rendon's cognitive problems were evident during the inquiry and the Judge recognized them.
Mr. Rendon's competency to stand trial warranted a contemporaneous evaluation by a forensic psychiatrist or psychological with incorporation of objective measures of cognitive functioning, i.e., neuropsychological testing with validity measures. Because Mr. Rendon's current cognitive status is reportedly better than it was at the time of the trial, a current evaluation would not directly answer the question about his competency to stand trial in 2008. Rather, a current evaluation would assess his present cognitive abilities and whether or not he currently meets criteria for competency to stand trial. If he did not presently meet criteria for competency to proceed, then it would be reasonable to conclude that he did not meet them at the time of his trial in 2008, (i.e., because he is reportedly better cognitively now than he was in 2008). However, because of such improvement, present competency to stand trial would not necessarily indicate that he was competent in 2008.
In addition to cognitive issues, hearing impairment is a factor that may have affected Mr. Rendon's competency to proceed. Medical records and the appellant's family indicate that Mr. Rendon had significant hearing impairment (he misses five out of twenty-five words per wife), which was not accommodated during the trial and may have confounded his "cognitive problems.
In sum, it is my opinion that there is reasonable probability that Mr. Rendon was not competent to proceed during his trial in 2008.
If you have any questions concerning this report, I would be happy to discuss them with you, J can be reached by telephone at (72Z) 786-8000......
Thank you for the opportunity to provide my services in this matter.
Respectfully submitted,
Darren Rothschild 2011.10.0716:34:23 -04'00'
Darren M. Rothschild, MD Board Certified in General Psychiatry Board Certified in Forensic Psychiatry Board Certified in Addiction Medicine
EXCERPT
THE COURT: Now, I think it would be easier if the defendant came forward and the clerk swore him. And we'll put him in the witness box.
Raise your right hand, sir, to be sworn. COURTROOM DEPUTY CLERK: Do you solemnly swear or affirm that answers you will give in this cause shall be the truth, the whole truth, and nothing but the truth so help you God?
THE DEFENDANT: Yes.
THE COURT: Fine. Okay, sir. If you'd go over to this witness box right here. There's an opening.
THE DEFENDANT: This right here?
THE COURT: Right there. Watch your step. Take a seat right there, sir. Have a seat. Pull that chair forward towards the desk area so you'll be closer to the microphone.
Leave the microphone where it is. State your name for the record.
THE WITNESS: My name is Mike Rendon.
THE COURT: And are you the defendant in this case that I have just called?
THE WITNESS: Yes, ma'am.
THE COURT: Okay. Now, your attorney, Mr. Doherty, is about to read into the record Court's Exhibit No. 1, which is a letter from Dr. Sinclair regarding you.
If you'll read the total contents into the record at this time. And you listen carefully, Mr. Rendon, and if you don't hear something or you don't understand what's being said, you let us know okay.
THE DEFENDANT: Yes, ma'am.
THE COURT: You may proceed, Mr. Doherty.
MR. DOHERTY: Thanks, Judge. It is a letter To Whom It May Concern, and it says, "I'm seeing Mr. Miguel A. Rendon 8/02/1934 in my neurologic practice here in Bradenton. I am writing this letter at the request of he and his wife. He has a mild cognitive impairment which is a sign or form of early dementia.
"He would be expected to have some difficulty with memory or if under duress, such as testifying for Court, could have some trouble formulating thought. I have some suspicion that he also has depression, a likely reaction to his given circumstance, which can impair memory and attention.
"This should be taken under consideration if he is to testify. If you have any further questions, contact me. Douglas Sinclair, D.O., Bradenton Neurology."
DIRECT EXAMINATION
BY MR. DOHERTY:
Q. Mike, do you remember going to see Dr. Sinclair?
A. Yes, sir.
Q.Who'd you go with?
A.My wife Carol.
Q.Okay. Did you talk to him about what was going on in your mind, so to speak, your memory?
A.Oh, yes.
Q.Okay. How old are you?
A.How old am I now? I'm 73, plus I'll be 74 in August the 2nd.
Q. Okay. And August 2nd, 1934, is your date of birth?
A. My birthday, yes, sir.
Q. Where were you born?
A. I was born in South America, Peru, South America.
Q. Where in Peru?
A. A place they called — well, you wouldn't know but it's a small town. They call it Maricopa (phonetic).
Q. Is it near any bigger towns?
A. My keep an is a big town. I was born in not a small town. They call it — of course, you wouldn't know. La Punta, which is a point like Punta Gorda, something like that yes.
Q. When did you come to this country?
A. I got here in September 1957.
Q. So you've been here 51 years?
A. Just about right.
Q. When you got here, where did you go?
A. I came straight to a place they call the South Bend, Indiana. I had a brother and sister there.
Q. In South Bend?
A. Yes.
Q. Did you ultimately find yourself in Tennessee?
A. Yes. I was to go over there. We moved to Tennessee looking for work and going to school and whatever. And that was it. Tennessee.
Q. And you went to work there?
A. Yes. Off and on. Yes.
Q. Did you end up getting married there?
A. Yes.
Q. Who'd you marry?
A. I married a lady there. I went to church to find her.
Q. And you -
A. I was raised in church all my life. That's why.
Q. What kind of work did you do, Mike?
A. Whatever was available.
Q. Where did you live during that period of time?
A. I live in a place they call — in college there which it was a southern missionary college, and I went to school in South America in a bordering school which was related to this seven day — a business school. I had — going to school also over there.
Q. What kind of work have you done in your life?
A. You name it. All kind of construction work.
Q. Masonry?
A. Yes, yes. And I run a few jobs around.Yes.
Q. Plumbing? Did you ever do plumbing?
A. Plumbing?
Q. Yes.
A. I tried to, just about everything, you know.
Q. Okay. And ultimately you've come to own a series of rental properties in the Bradenton and Palmetto area?
A. Yes.
Q. And how did you get those?
A. By working. If you allow me to say something over here people — well, it's not how much money you make; it's not how much you save; it's how you invest. And that is the key for this success.
Q. And you would buy properties with money that you made?
A. Oh, yes.
Q. And ultimately have you come to a point in your life where you are retired?
A. Oh, yeah, yeah. I retire. But I would never retire. I mean, I work all my life and I continue working. When I say retire, I don't go off to the jobs, no. I used to travel all over the state. But now I can do my things around town, yes.
Q. Around Bradenton?
A. Bradenton, Palmetto, yes.
Q. And do you collect the rents on your properties?
A. Yeah, I collect the rents on the properties. Yes. I have to collect the rents.
Q. And you keep records?
A. Yes. Yes, sir.
Q. And you drive?
A. I drive, yes, to collect the rents. Yes.
Q. And you continue to drive?
A. Oh, yes, sir.
Q. Is there anything — do you have any difficulty understanding or recalling back to 2000, the year 2000?
A. I can give it a try to remember whatever question you ask.
Q. You can remember?
A. Yeah — yes.
MR. DOHERTY: I have nothing further, Judge.
THE COURT: Thank you. Mr. Tuite?
CROSS-EXAMINATION
BY MR. TUITE:
Q. Good morning, Mr. Rendon. I'm sure you recognize me. My name is Christopher Tuite. I'm the prosecutor on this case.
A. I recognize you, sir.
Q. Mr. Doherty mentioned that you have a number of rental properties; correct?
A. That is correct.
Q. And those rental properties are worth by this point a fair amount of money; correct?
A. Not now. The market is so far down I don't know how much it's worth.
Q. Well, in this case to make bail, you posted roughly a million dollars or a million and a half of property and other assets to gain your release; correct?
A. Yes.
Q. And those are properties that since you've had them you have been able to maintain them and keep track of the rental income property that has come into you; correct?
A. Yes.
Q. And you've maintained ledgers?
A. Yes.
Q. Regarding those properties. And you have been doing that now for a number of years; correct?
A. Yes.
Q. And we're talking about half a dozen or more rental properties that you have been managing now for many years; correct?
A. Since I — more than that.
Q. Fair enough. The date of this letter that you have tendered now to your attorney is May 9th of 2008. Do you have that letter in front of you?
A. I don't have anything in front of me, sir.
Q. All right. Well, let me just refresh your memory. Did you go see Dr. Sinclair on Friday?
A. I went to see Dr. Sinclair. I don't remember if it was Friday.
Q. Okay. It was last week?
A. No, no.
Q. Is there a reason why Dr. Sinclair waited until May 9th to write this letter?
A. No.
Q. How long ago did you see Dr. Sinclair?
A. How long ago? I don't remember exactly, no.
MR. DOHERTY: If I may clarify, Judge, the letter is dated — I was confused by that as well. The letter is dated 5/9/2008. And that's the date that he wrote the letter actually. But the actual visit was sometime prior to that.
THE COURT: Well, I'm getting that, gentlemen. Let me inquire. Sir, today is May the 12th. Do you realize that?
THE WITNESS: Yes, ma'am.
THE COURT: And last Friday was May the 9th; do you realize that?
THE WITNESS: That's correct.
THE COURT: Did you see this Dr. Sinclair some time this year from the first of January to now?
THE WITNESS: Yes.
THE COURT: Okay. So it was some time this year?
THE WITNESS: Yes.
THE COURT: Do you remember if it was before the time when the Easter celebration was going on in March? Was it before then or after then?
THE WITNESS: I don't remember.
THE COURT: You don't remember?
THE WITNESS: No.
THE COURT: Have you had many doctors' appointments since the beginning of year until May?
THE WITNESS: I was sick, yes. I went to a doctor.
THE COURT: One doctor?
THE WITNESS: Number one, the doctor I really go every four months or so is a Dr. Rizzuto (phonetic), which is for diabetic.
THE COURT: Uh-huh.
THE WITNESS: He send me to another doctor when he needs to.
THE COURT: When he needs to?
THE WITNESS: Yes.
THE COURT: That's why you went to see Sinclair?
THE WITNESS: Yes.
THE COURT: So this other doctor who usually treats you, you see him every four months?
THE WITNESS: Yes.
THE COURT: So you see him once, right, in four months usually?
THE WITNESS: Give or take, yes. Yes.
THE COURT: And he sent you to Sinclair; right?
THE WITNESS: Yes.
THE COURT: So you saw Sinclair?
THE WITNESS: Yes.
THE COURT: You don't remember when you saw your regular doctor, do you?
THE WITNESS: My regular doctor I seen him maybe month and a half or so ago.
THE COURT: Did you see Dr. Sinclair before or after you saw your regular doctor?
THE WITNESS: I seen him before.
THE COURT: Before you saw your regular doctor? Why did you do that?
THE WITNESS: Because Dr. Rizzuto send me over there.
THE COURT: So the previous time you sent Dr. Rosetto, is it?
THE WITNESS: I don't know the name.
THE COURT: Well, your doctor. What's your doctor's name?
THE WITNESS: Rizzuto.
THE COURT: Rizzuto. You saw Dr. Rizzuto a month and a half ago; right?
THE WITNESS: That's about right.
THE COURT: When did you see Dr. Rizzuto?
THE WITNESS: A year before that.
THE COURT: A year before that?
THE WITNESS: Or something. I don't remember, no, but before that. Yes.
THE COURT: And at that time did Dr. Rizzuto say you needed to see Dr. Sinclair?
THE WITNESS: If he send me over there, I'm pretty sure.
THE COURT: Well, if he sent you. Do you know whether or not he sent you?
THE WITNESS: He did send me. That's why I went over there.
THE COURT: So that was a year — over a year ago that you saw Dr. Rizzuto?
THE WITNESS: No.
THE COURT: No?
THE WITNESS: It was just about, I would say, four months I had to see Dr. Rizzuto.
THE COURT: All right. You saw Dr.Rizzuto, but when did you see Dr. Sinclair?
THE WITNESS: Exactly don't remember, no, ma'am. No, I don't.
THE COURT: But you say Dr. Rizzuto sent you a year ago?
THE WITNESS: No.
THE COURT: No?
THE WITNESS: I never say that.
MR. TUITE: If I may, Judge. I think he said a short time ago and I think you may have misheard what he said, a year ago. Obviously, the defendant can answer for himself.
THE COURT: Tell you what I'm trying to get clarified just so that we know. He saw Dr. Rizzuto a month and a half ago. That's fine.
THE WITNESS: It's not exactly.
THE COURT: That's close enough. But you're telling me that it wasn't after that that you saw Sinclair.
THE WITNESS: Before that.
THE COURT: Before that?
THE WITNESS: And I don't remember when before that.
THE COURT: Okay. And that was in response to Dr. Rizzuto sending you; correct?
THE WITNESS: I'm pretty sure that's what it was, yes, ma'am.
THE COURT: And it was as a result of Dr. Rizzuto seeing you some time a year ago; right?
THE WITNESS: If that's when I started seeing Dr. Sinclair, yes.
THE COURT: Counsel, come see me at sidebar.
(AT WHICH TIME THE FOLLOWING SIDEBAR DISCUSSION WAS HELD.)
THE COURT: Now, folks, I'm glad we've gone through this exercise. This defendant has an absolute perfect right to take the stand if he elects to do so. If he elects to do so, if this is a sample of his memory, and what he remembers and what he doesn't remember, we may have a few problems.
Do you have a medical report?
MR. DOHERTY: I have a medical report from Dr. Rizzuto which says his mental status is normal, that he did an MMSE, which is a memory test.
THE COURT: When did he do that?
MR. DOHERTY: This is eight — I'm sorry, 4/6 of 2007.
THE COURT: So I assume he goes to see him in the springtime. That's what it looks like.
MR. DOHERTY: Right. And he got 28 questions right out of 30, and the doctor indicates that recent and remote memory are within normal limits, immediate recall is normal. There's no aphasia, apraxia or agnosia noted. No right or left confusion was appreciated. There's no visual spacial distortions. No signs of thought disturbances. The patient was oriented as to time, place and person attention span and concentration are normal and the fund of knowledge is normal. He does have mild memory loss which, of course, every 71-year-old has.
THE COURT: Thank you.
MR. TUITE: Speak for yourself.
MR. DOHERTY: I'm a person unable to identify his own partner in a deposition a week ago.
THE COURT: I want you to know so the record is clear, I'm 71 and on my way to 72, Patrick.
MR. DOHERTY: I was asked who my partner was, and I could not say. But I did say he could use a haircut.
THE COURT: I think the government may want to have this independent medical exam. It's up to you. I want you to know I'm just up here calling the balls and strikes. But don't get me confronted with something where the man's going to take the stand.
And we got a whole evaluation here about his mental condition if he takes the stand. He's got some medical records here. You want to think about what you want to do. Do you want any more testimony from him.
MR. TUITE: Judge, I'd like to ask him some questions. But as you pointedly noted about yourself, while I'm married to a doctor, I'm not a doctor.
So I'm not in a position — while I'm not in a position to ask as probative a set of questions as I might ask particularly if the defendant's treating physician, Dr. Rizzuto, were on the stand. And we could inquire about this checkup that he had within the last year roughly —
THE COURT: That's right.
MR. TUITE: — where everything was normal. The defendant is otherwise competent. I find it on its face, perhaps not borne out by the facts, somewhat suspicious that here we are the Monday of trial and there's a physician's report dated as of Friday after the government's discovery has been released and the defendant is aware now of all the cooperating defendants who are going to testify against him, that he has some kind of mental capacity issue perhaps that would delay the trial. Particularly given his age.
By the way, I put none of this on Mr. Doherty.
MR. DOHERTY: Let me mention something in passing. That is that both Dr. A and Dr. B, Rizzuto and the second doctor says he has some mild memory loss. The latest doctor says it could be related to dementia. We know that it could be. He's not saying that it is. We need to be attentive to the dog that doesn't bark. He's not saying that it is. And I don't believe that it is.
And I have encountered much of what you have seen here I have encountered over the past year or so. I never had any impression that this gentleman had a mental or memory problem.
THE COURT: He's operating under obviously some duress.
MR. DOHERTY: And some strain.
THE COURT: He's a little depressed about this. That's understandable, too. There could be a lot of other dynamics going on about this man on which the Court is making no comment whatsoever.
You all are put on notice as far as I'm concerned, both sides, both the government and the defense. You do whatever you want to do. As I said, again, I am only calling balls and strikes up here. You all do whatever you want to do.
I just want to make sure that the jury that is picked in this case clearly can evaluate the credibility of the witness. And if he becomes a witness, they have to evaluate his credibility. And his credibility may or may not be affected by the contents of this letter dated May the 9th. Depression, duress, mild whatever that he may have. And I'm being nonspecific for a reason.
I don't know what his condition is. And I just think you all need to be prepared in the adversarial setting in which we find ourselves. That's what you get the big bucks for, fellows.
MR. TUITE: I'll let you know when that happens, Judge.
THE COURT: Anything else?
MR. DOHERTY: Do you want him to be examined?
MR. TUITE: Judge, I'm going to have to go and consult with my office both in terms of logistics of it and the merits of getting him evaluated. That's something that I'm sure I'll have a better feel for as the day progresses.
We have got a Friday off, Judge. He's not going to be testifying this week. He's obviously — and I want to make this clear — fully competent at this point to assist in his own defense with respect to the government's case.
THE COURT: You are not making any suggestion otherwise?
RM. DOHERTY: No, I'm certainly not.
THE COURT: As an officer of the Court.
MR. DOHERTY: I really am bringing this up in an abundance of caution in three years' time, four years' time, I don't want somebody to say that you had this letter and you didn't mention it to anybody.
THE COURT: You did the right thing, Patrick, absolutely. Anything else? Okay. Fine.
MR. DOHERTY: Thank you, Judge.
(WHEREUPON, THE SIDEBAR DISCUSSION WAS CONCLUDED AND THE PROCEEDING RESUMED AS FOLLOWS:)
THE COURT: No other questions?
MR. TUITE: I was going to ask a few questions.
THE COURT: Stay put, sir.
BY MR. TUITE:
Q. Now, Mr. Rendon, you recognize Special Agent Gordon in the courtroom?
A. Do I? Yes, sir.
Q. He's somebody that came to your house in April of 2006 to speak to you; correct?
A. I'm pretty sure that was the date.
Q. Well, roughly around that time.
A. Fine.
Q. And Special Agent Gordon spoke to you for a fair amount of time when he did come out to your house; correct?
A. Yes. The — hours, yes.
Q. And he spoke to you about a number of things having to do with this case; correct?
A. Will you repeat the question.
Q. He spoke to you about a number of aspects or things having to do with your case with the government; correct? Let me give you an example.
A. Yes.
Q. He spoke to you about roughly $27,930 that you said you found on your property; correct?
A. That is correct.
Q. And you told Special Agent Gordon that that had happened — you had found that money a number of months before; correct?
A. I guess. Yes.
Q. And you had no problem taking Special Agent Gordon to the exact point on your property where you said you found that money; correct?
A. No. That is wrong. I didn't take him there. The places I take Mr. Gordon is the — different places that I found.
Q. You had no difficulty recalling any of those places that you took Special Agent Gordon to. You had no difficulty saying, I'm going to take you to this place because this is where something happened, for example, the money. I'm going to take you to this place because this is where something else happened; correct?
A. Was in my garage. And I told him what I was — I told the chief of police that I had and I told him this is here, this is here, this is here and, you know. He asked me if I had any guns — yes. I show him the guns way up some place in a cabinet. Yes.
Q. Did you take him to a place on your property where you said you found the money?
A. No.
Q. You never did that?
A. No. I told him — I told the chief of police where I find the money.
Q. But you never took Special Agent Gordon to such a spot on your property when he was there?
A. As far as I know, no.
Q. Well, at the time you talked to the Chief of the Palmetto Police Department you had no difficulty recalling where you found the money?
A. I told him where I found the money, yes.
Q. When you spoke to Special Agent Gordon, you told Special Agent Gordon where you found the money. Maybe you didn't take him there, but you told him where you found the money; right?
A. I'm pretty sure I did.
Q. You didn't have any trouble recalling where you found the money when you spoke to Special Agent Gordon?
A. It's something you never forget, sir. I mean, you find some money and you have to remember that.
Q. Fair enough. Now, Special Agent Gordon talked to you in roughly the Spring of 2006; correct?
A. I guess — I don't remember exactly.
Q. It was a couple of years ago; correct?
A. Yes.
Q. And it was after everybody had been arrested in December of 2005; do you remember that?
A. Yes.
Q. And when Special Agent Gordon was talking to you, he asked you about a number of things that some defendants had said you did. Do you remember him asking you about things like that?
A. No, I don't recall that.
Q. But do you recall Special Agent asking you about your involvement -
MR. DOHERTY: At this point we'd object. We're getting into the facts of the case.
MR. TUITE: Judge, it has to do with the ability to recall something, and if I could make a proffer, when the defendant spoke with Special Agent Gordon on April 25th of 2006, he was asked about an offload of cocaine that had happened 6 to 9 months earlier.
He had no difficulty or expressed no difficulty to Special Agent Gordon about that particular incident when Special Agent Gordon brought up the matter. And in fact told Special Agent Gordon that he didn't think it was drugs that were being offloaded; he thought it was money.
The reason I'm asking him these questions is not to depose the defendant, but those are all issues that were raised by Special Agent Gordon. And there was no indication at the time that the defendant had any difficulty recalling the incidents that were being brought up.
THE WITNESS: If I may —
THE COURT: No. Just one second. Your attorney has objected so you just wait a second. The lawyers are fussing.
THE WITNESS: Okay.
THE COURT: You stay — just right there. I got to make a ruling. Okay?
THE WITNESS: Yes, ma'am.
THE COURT: All right. Now, what else do you want to say?
MR. TUITE: Judge, the last question I have is to just to confirm what the defendant told Mr. Doherty.
Q. Mr. Doherty asked you if you have any difficulty remembering things back as far as 2000 and you said no, I don't have any difficulty; is that correct?
A. Did I say that? Yes.
THE COURT: All right. Now, before you get away from that, Mr. Doherty is correct. We are getting into substance. I know the purpose for which you're asking the questions, but you are making a representation with which in the previous questions the defendant disagreed. Okay?
So Mr. Doherty let that go on and on, even a little longer than I thought he would. He's objected. It's sustained so you won't be allowed to pursue the line of inquiry during this examination we are having.
And it can be evaluated for whatever purpose it needs to be evaluated subsequently with regard to this case.
And here again the authenticity of what he is saying and the credibility of what he is saying would be for the jury to evaluate. But I think there may be another issue in this case that's going to be explored it appears to me based upon what I have heard is going to be explored.
So you got another aspect of your case, Mr. Tuite. Anything else that we need to do with the defendant on the stand?
MR. TUITE: Judge, can I ask one other question of the defendant.
Q. At the time that you went to see Dr. Sinclair, did you have a chance to review with Mr. Doherty the government's proof for this case?
A. Sir, I don't remember. I mean, it's so long. Let me ask you, do you remember what you eat yesterday. Do you remember it was yesterday, but we're talking about months.
Q. We were set to go to trial in November of last year; correct?
A. I have — I don't remember, no, sir, just when — yes, I think so.
Q. You don't recall that we were about to go to trial?
A. Exactly, no, I don't.
Q. Well, last year at the end of the year; correct?
A. I guess, yes.
Q. Right after Thanksgiving?
A. I think so.
Q. Okay. And you had at that time been told who the government's cooperating defendants who would testify against you were going to be; correct?
A. I don't know — I don't remember.
Q. And wiretap calls had been given to you to review that were going to be used at trial; do you remember that?
A. Yes, yes, yes.
Q. And that was all before you went to see Dr. Sinclair?
A. Before — I guess, yes.1
MR. TUITE: That's all I have, Judge.
THE WITNESS: I mean, so far, so long, I don't remember everything. And I mean if — if I knew exactly the dates and all that, I will say yes, I know. I don't know how to explain this. I am being fair. I'm being — you know.
MR. TUITE: I'm going to ask of the defendant and defense counsel that I be provided with those medical records that are pertinent to this issue immediately.
I have already made a request repeatedly for reciprocal discovery. I think those are within the bounds of that.
THE COURT: Any problem with that, Mr. Doherty?
MR. DOHERTY: No. We can just make it Court's Exhibit 2. It was the document that I was quoting from at the Bench.
MR. TUITE: Judge, I had not had receipt of that document. Again, Mr. Doherty is doing everything he can. I had not had receipt of that.
THE COURT: Cindy will make it — you hadn't seen it at all. Clerk is going out again, and she will make two copies, one for the Court as Exhibit 2, returning the original to Mr. Doherty, and a copy for you.
Any further need for the defendant to be on the stand?
MR. TUITE: None from the government, Judge.
THE COURT: Any from you? You may step down, watch your step coming down. Resume your seat at counsel table. You go over there where you were sitting.
MR. DOHERTY: The reason I didn't give Mr. Tuite the report that I got was I didn't think it raised an issue.
THE COURT: Well, it is what it is. And we've heard what we're heard, and we'll go from there.
MR. DOHERTY: Thank you.
(REQUESTED EXCERPT CONCLUDED.)
I CERTIFY that the foregoing is a true and accurate transcription of my stenographic notes.
SANDRA K. LEE, RPR Official Court Reporter
THE COURT: Cross-examination.
THE COURT: Sir.
MR. PUMPHREY: May it please the Court. BY MR. PUMPHREY:
Q. Mr. Doherty, the — when Dr. Rothschild called you, did he identify himself as a psychiatrist?
A. Yes.
Q. And did he identify himself -BY MR. PUMPHREY:
Q. Did he identify that he was trying to make — gather information about competence? That he'd been hired about competence?
A. I don't think he did.
Q. Do you recall?
A. No. But I don't think he did.
Q. Okay. Did he -
A. Let me go one step further. I got the impression from Dr. Rothschild that he was a psychiatrist that was working with Miguel Rendon. And from that I think I deduced that he was a psychiatrist working on Miguel Rendon's mental health or whatever.
Q. You were aware of the ongoings of the 2255 proceeding?
A. No, I wasn't.
Q. You were not?
A. I was not.
Okay. And so do you recall Dr. Rothschild speaking to you about whether you had any questions of competency on Miguel — or on Mr. Rendon, not Miguel?
A. No. I actually thought we were talking about Miguel Rendon as of the date of the phone call -
Q. And -
A. - not as of the date of the trial. I'm clear on what I think on the date of the trial.
Q. All right. As to the date of the trial, do you recall Dr. Rothschild's inquiry about during the trial?
A. About what?
Q. During the trial.
A. No, I don't.
Q. You don't recall that?
A. No.
Q. All right. Do you recall any questions whatsoever that Dr. Rothschild asked you about during the trial and any concerns with Mr. Rendon?
A. No.
Q. And so it would be fair to say that if you were mentioning not having oars in the water or not hitting on all cylinders and that was brought up for an inquiry during the trial you can see how that would play out; correct?
A. I can see how it would play out? I don't know if I can see how it would play out.
Q. Now, you've been practicing for — since 1973 -
A. Uh-huh.
Q. - is that correct?
A. Yes.
That's a yes, just for her edification. The — and since you've been practicing since 1973, you've been committed to criminal defense?
A. Yes.
Q. All right. And in criminal defense you've handled a number of cases where you've had concerns about whether or not somebody was competent to stand trial?
A. Yes, I have.
Q. Okay. And in determining whether or not somebody was competent to stand trial, I noticed that you gave some examples of murder cases, very high profile cases where unquestionably the person had some mental defect; is that correct?
A. Yeah, yeah.
Q. On the other end of the spectrum though there are those cases, for example, where the dog doesn't bark; correct?
A. I don't know what that means.
Q. In other words, where persons are quiet or prideful and you see red flags but it appears that they're okay. You would agree?
A. I see red flags but it appears that they're okay? No, I don't agree.
Q. All right. Well, you said there was a loaded gun in this case. You had information from a medical doctor that indicated you said that mentally Mr. Rendon was okay; is that right?
A. Yes.
Q. And you read the report in its entirety?
A. Yes.
Q. You spoke to Dr. Sinclair?
A. I did not. I read the report.
Q. I'm sorry?
A. I read the report.
Q. Okay. Well, in the report did you also notice the cognitive deficits that were documented?
A. You mean that he missed two words?
Q. No, sir. The cognitive deficits.
A. Show them to me. No.
Q. Okay.THE WITNESS: What are we looking at? THE COURT: All right. MR. PUMPHREY: I believe it's Government's 1. MR. PUMPHREY: That is correct, Your Honor. THE WITNESS: It says his fund of knowledge is normal. He's oriented as to time, place and person. His attention span and concentration are normal. No behavioral abnormalities were witnessed. And there's no abnormal vocalizations or tics. No signs of thought disturbance were appreciated. No delusions, hallucinations or effective disturbances. THE WITNESS: His immediate recall is normal. Recent and remote memory are within normal limits. That's what I read.
Q. Now, are you familiar with MMSE 28 out of 30?
A. The MMSE 28 out of 30? Isn't that the yes, I'm vaguely familiar with that.
Q. All right. And I believe you testified that almost every time the wife was there she'd say, he has dementia or she would make a statement that he can't remember.
A. No. Really it was later that that came up. The first time that we — that's interesting that you should bring that up. Because the first time we met he had the problem of explaining to me how it is that he came to make what amounts to a confession to Agent Gordon.Which brings immediately to my mind why would you even say that if the guy was sitting next to you and he's suffering dementia. He's not suffering dementia. He's normal.
Q. Now, following that normal evaluation and understanding what you're reading did you follow-up with Dr. Sinclair to make sure that you were clearly understanding what he did document in there that may be questionable, as small as the 28 out of 30 MMSE?
A. No, I didn't. Let me just tell you why. When you look at Page 1, which is the neurological history, you know how many times it says she states in neurological history? About nine or ten times. She states that this happened more recently, and she states that his math is slower. He has noted symptoms for a year. She states it's been longer than a year but worse over the last year.And I looked at him and he said, I missed the exit on the interstate and she says I don't know where I am. You know, I'm sorry. I missed the exit on the interstate; I was talking. And so, yes, I looked at this, and I see that the neurological history is almost entirely made up of what Mrs. Rendon says, and he's saying what she says is an exaggeration.
Q. All right. And so in following the report — and if you'll go to Page 3 of 4 of Government's 1, the assessment and plan, did you read that section?
A. Yes.
Q. And you as a practitioner, did you have any concern about the mild memory loss?
A. No. Because it's followed right after that by saying today in the mini-mental status exam he does well, missing only two points.
Q. All right. If you'll go to Page 4 of 4.
A. Beg pardon?
Q. Page 4 of 4 of Government's 1.
A. All right.
Q. Can you read that section.
A. Yes. Did I read it or do you want me to read it?
Q. Please.
A. "I would not expect that he has worsened brain damage but just the stress tends to decompensate neurological events. He will return in three weeks' time."
Q. And just before that.
A. The sentence before that is, "If he's under a great deal of stress it would be expected that he would have worsened memory because of that."
Q. Now, you testified earlier that during you've actually had people die because of the stress of a trial; correct?
A. I haven't. But Bob Pollard, one of my friends, did.
Q. Okay. All right. But the stress is enormous on a person. And how — did you evaluate how that stress — that enormous amount of stress given this neurologic condition would affect Mr. Rendon's ability to present at trial?
A. Well, I didn't make any judgment about that. I just simply looked at this man and watched how he was doing and he was doing fine. He did excellently.
Q. What would be your standard though given this information to make a determination whether or not to ask — to have that good faith basis to have him evaluated to eliminate the competency issue?
A. I'd have to see some deficit on his part myself. Either that or if you take him to a doctor and the doctor says, this guy has got major mental problems. This guy has memory loss. This guy is speaking in tongues or this person has hallucinations. Anything along those lines would cause me to file a motion.
Q. So where the doctor says on Page 4 of 4 that if under a great deal of stress it would be expected that he would have worsened memory because of that -
A. All right.
Q. - and given your testimony about the stress of a trial -
A. But he didn't have worsened memory. You see what I'm driving at? I'm evaluating him not just at one point and then moving on. I'm evaluating — it's a running test. We're going through this ever minute of every day that he's with me and he's doing fine.
Q. Now — and agreed.
A. But when you get the letter on the day of trial — or the letter you received, the loaded gun letter — we'll call it that. Do you remember that letter?
A. Right.
Q. Okay. And so as a practitioner you're like, hey, hold on a minute. Need to notify the Court of this because now I have a report from the doctor that talks about basically mental decompensation. It mentions his memory will worsen if he's under stress. You know as a practitioner that the stress of the trial is great. And actually you observed that in Mr. Rendon. I believe that your testimony was that he was depressed, that he was decompensating -
A. Well, I don't want to medicalize this. He was getting — he was — Mr. Tuite said that as well. And I don't want to medicalize this. Mr. Rendon was sad. He was sad because he knew what the evidence was. He knew who was going to testify against him and he knew what they were going to say.
Q. Now, but in — in addition to all of that you brought it to the Court's attention and there was an inquiry of Mr. Rendon; right?
A. There was.
Q. Kind of a dry run to se, hey, can this guy answer questions correctly if he was called to testify; correct?
A. Uh-huh.
Q. That's a "yes"?
A. Yes.
Q. Okay. And so also as a practitioner, just to back up a minute, you said that the decision had been made for him not to testify three days earlier; correct?
A. Yeah. But that also is a floating decision. If on the day of trial he says, I've got to testify, then he is testifying.
Q. Right.
Intact, he can make that decision after the government rests and he can say, I don't want to testify. Decision is made. He can turn right around and lean over to you and say, I now want to testify. And what happens?
A. I'd ask the Court to allow him to testify.
Exactly.
So in leading up to that and the possibility of that happening, doesn't really matter that the decision was made three days earlier, does it?
A. Right. But I also know how this guy — what this guy thinks. You know what I mean? I'm talking to Mr. Rendon and I know how Mr. Rendon knows Mr. Rendon is doing. Now, Mr. Rendon knows Mr. Rendon is not doing well. I don't know is not an appropriate answer for when somebody asks you why are words coming out of your mouth. I don't know even — you know, it's pretty obvious even to Mr. Rendon that, hey, I don't have an answer for that.
Q. Now, I notice that you said on issues of incrimination or when you got really to the stressful point of your question -
A. No, no. Wasn't stressful. Because we're talking about as many as 6, 10, 12 months before trial. It's incriminating. It's where there is no answer consistent with innocence he would say I don't know.
Q. I don't know is not an answer consistent with anything, is it?
A. That's kind of a philosophical question. I don't know. I'd have to think that through.
Q. There are those three words again. Understood.
So moving on, so you do the dry run and you actually — there is a question obviously of competency and you want to eliminate that question because of the loaded gun; correct. When you bring the letter to the Court's attention -
THE COURT: Whoa, whoa, whoa, whoa. Whoa.
A. Okay. Yeah, we're talking about in court instead of - Q. I'll drag you back to court.MR. TUITE: Judge, can I just THE COURT: All of that is struck. You can instant replay it in a minute. What did you want to say? Object? Yes or no? THE COURT: That is good. It's moot because I just struck it. And we have a court reporter and an interpreter who have now worked probably 36 hours — try that while a trial is on, 36 hours transcribing and listening to tapes. They're just needing some answers from me about how much more money to spend. I've given them the answer. Spend the money. MR. TUITE: Judge, could I just ask one question — or one favor of Mr. Pumphrey. Instead of calling it the loaded gun letter can we refer to it by its exhibit number? THE COURT: I think that's well taken. What's the exhibit number? THE COURT: Government 2. Is that fair, Mr. Pumphrey? THE COURT: All right. Government 2, everybody.
Q. And so once you get to Government — MR. PUMPHREY: May I proceed, Your Honor? May it please the Court?BY MR. PUMPHREY:
Q. The Government 2 letter that you utilize, you bring it to the attention of the Court because this is an issue, you would agree?
A. Yes.
Q. And it's a fair issue, you would agree?
A. It's an issue.
Q. Well, if it's an unfair issue you wouldn't bring it to the attention of the Court, would you?
A. It's an issue.
Q. So this issue of Government's 2 you bring to the attention of the Court. And there is sufficient concern on your part as a practitioner of 30 years that we need to have a competency review or a dry run with this person; correct?
A. I don't really recall how that went. I don't really recall.
Q. Do you recall that Mr. Rendon was placed on the stand -
A. I do.
Q. - and you questioned him?
A. I do.
Q. Okay.
A. But I'm just saying I don't recall how that happened, whether it was at my request or Mr. Tuite's request or at the Court's request.
Q. Someone was concerned about competency?
A. Okay.
Q. Is that incorrect?
A. I don't know. I wasn't, but someone may have been.
Q. Well, as a practitioner of 30 years you're familiar with the reason why there was an inquiry as to Mr. Rendon's competence?
A. Yes.
Q. What was that?
A. Because this letter brought up an issue. And I believe the Court wanted to put Mr. Rendon on the stand and see whether this issue was resolved or resolvable.
Q. Now, as an officer of the court in this proceeding if Mr. Rendon is questioned and the questions he's giving the Court are incorrect and you know that as an officer of the court you have a duty to report that because it's part of the Court's inquiry into competency; correct?
A. I don't know how you're defining incorrect. Do you mean leading or do you mean -
Q. Factually incorrect.
You testified earlier that you would not let someone take the stand and lie; correct?
A. I'm not going to let somebody take the stand and lie.
Q. Understood. It's an ethics issue.
But equally you have a duty that if your client is on the stand under an inquiry by the Court to see whether or not he's answering the questions correctly, which is part of the competency evaluation, if the question is answered incorrectly you have a duty to bring that to the attention of the Court?
A. Gee, I don't know.
Q. Well, let me give you an example.
A. I'd have to think that true.BY MR. PUMPHREY:
Q. The Court — I'm at Line 7, Page 11. I'll pause for a moment so everybody can — the Court: "Did you see this Dr. Sinclair sometime this year from the 1st of January till now?"
The answer is, "Yes."
A. Okay.
Q. Now, you were familiar with the fact that your client had seen Dr. Sinclair; correct?
A. I was.
Q. In fact, you were watching him every day like a hawk; correct?
A. I was.
Q. Every minute of the day?
A. Uh-huh.
Q. That's a "yes"?
A. Yes.
Q. Okay. And so you're watching him every minute of the day. You know this is an issue. You've sent them to Dr. Sinclair. And so now you are monitoring this issue; correct?
A. I'm kind of always monitoring this issue.
Q. Right.
And so but Mr. Rendon when answering the Court's inquiry about the doctor at issue in Government's 2 had never seen the doctor since January. His answer was wrong.
A. Okay.
Q. And so doesn't that raise a question of whether or not he is competent to testify and answer questions accurately?
A. Not to me.
Q. You noticed -
A. Wait a second. Not to me, and here's why. Mr. Rendon had seen this doctor I think on April 6th. Then he saw him three weeks later. April 16th I believe is when he found him to be normal. Three weeks later he found him to be the same.
Then they ran over and I guess they got a doctor — got some kind of letter from 5/9/2008. Now, what I don't know is whether Rendon saw this doctor on 5/9/2008. I don't know that. I don't know. I hope to God he did see him on 5/9/2008, because otherwise this letter — if this letter is recapping his two previous letters, it doesn't do that accurately. Do you see what I'm driving at? And so I'm not sure whether he's right or wrong, but I thought he was right.
Q. So in raising the question of whether you didn't know whether the doctor was right or wrong, you went along with the inquiry though. You brought it to the attention of the Court?
A. I'm really getting confused. I'm saying to you that he saw Dr. Sinclair 4 — I think it's 4/16.
MR. PUMPHREY: Your Honor, may we take a minute so the witness can locate the document?
THE WITNESS: 4/6/2007. But he also had this Exhibit 2 from 5/9/2008. I assume he had gone to see Dr. Sinclair on 5/9/2008.
BY MR. PUMPHREY: Q.
Now, in watching him like every day and keeping tabs on him because you have this concern, you had no knowledge of whether he had actually seen the doctor or there had been any follow-up?
A. Sir, this was given to me on the day of trial.
Q. Understood.
A. I had — there were guns going off all over the place, and on the day of trial I get handed this thing. I assumed that he went to see this doctor on 5/9/2008. Because if this 5/9/2008 letter is merely some kind of synopsis of his previous stuff, this is not an accurate synopsis of the stuff I got.
Q. But you have a medical doctor who is now in conflict with what your synopsis is; correct?
A. No, no, no.
Q. Well -
A. No, I don't. I've got a medical doctor who's seeing the same thing I'm seeing, this guy is normal. And he sees him three weeks later and he says he's the same. And then I get this thing on 5/9/2008 and it talks about how he may have trouble testifying.
MR. PUMPHREY: Your, Honor may I approach the clerk for Government's 2?
THE COURT: Sure.
Q. Now, Mr. Doherty, do you have a copy of Government's 2?
A. Government's 3?
Q. Government's 2, which is the letter.
A. Yes, I got it.
Q. Okay. And you have the note that's part of one of Government's 2 -
A. Uh-huh.
Q. - is that correct?
A. Yes.
Q. Okay. And so we now have him going to the doctor, and you now have a letter from the doctor. And that letter you're saying says that Mr. Rendon is normal on the day of trial?
A. Yes. Unless he's contradicting his previous reports.
Q. All right.
A. If he is, he ought to let me know or he ought to let somebody know. And by the way, I got to tell you, this is like a note from my mom to the grade school. This is — this is — this, I thought was a product of a whole other exam. Are you telling me it's not?
Q. Well, I'll ask the questions.
But are you saying that you didn't know? A. Beg your pardon?
Q. Are you saying that you did not know?
A. I assumed that it was a synopsis of everything he had previously said because it didn't contain any of the other stuff.
Q. So you did not know?
A. I thought I did know.
Q. All right. If you believed that you knew on Government's 1, Page 4 of 4, the line that we talked about was that if Mr. — and I'm paraphrasing. But it says great deal of stress, it would expected that he would have worsened memory because of that.
A. Uh-huh.
Q. That was in the 4/6/2007 documentation that you were provided that you're saying was normal?
A. No, no, I'm not saying he's normal. The doctor is saying he's normal.
Q. Right.
But worsened memory is not a normal activity?
A. Sure it is.
Q. All right. So now on the day of trial you get a letter from the same doctor not knowing whether or not there's been a follow-up or anything else, but it obviously raises enough of an issue of not being normal that you bring it to the attention of the Court?
A. This lady handed me this note on the first day of trial. I felt like the Court is entitled to know about this, so I brought it to the Court's attention.
Q. Now, in this letter — you said she provided you a note. But there was a letter from a doctor; correct?
A. We're talking -
Q. Government's 2?
A. Yes.
Q. Okay.
A. I mean it's three — a letter.
And in Government's 2 it says that I'm writing this letter at the request of his wife. It doesn't say follow-up exam or that I met with this patient, does it? Does it?
A. Okay. No, it doesn't.
Q. All right. And so you know from the letter or the content of the letter that there's been no follow-up exam, but at the request of his wife the letter is written, if you rely on the content of the letter from the doctor -
A. Okay.
Q. - is that correct?
A. Okay. All right.
Q. And so in the letter the following statement says he has mild cognitive impairment, which is a sign or form of early dementia.
A. Yeah.
Q. And you read that?
A. Uh-huh.
Q. That's a "yes"?
A. That is yes, I read that.
Q. He would be expected to have some difficulty with memory or if under duress, such as testifying for court.
A. Right.
Q. And so now you as a practitioner say, hey, I need to bring this to the attention of the Court; correct?THE COURT: Objection what? THE COURT: Overruled. BY MR. PUMPHREY:
Q. Now, in addition to combining this, in the letter it also says I have some suspicion that he also has depression, likely reaction formation to given circumstance, which can also — which also can impair memory and attention.
A. All right.
Q. Did you read that part?
A. Yep.
Q. And so in the inquiry the reason you bring it to the attention of the Court is you want to ferret all these issues out and eliminate them because it is an issue?
A. No, it's not an issue. I'm bringing it to the Court's attention because I can see that somebody is trying to sandbag me. That's the issue.
The real issue of this persons competence, there is no real issue of this persons's competence. I talk to this person all the time and he's fine and his memory is fine. And this doctor found his memory to be fine, and now they go get a doctor's note to say, well, based on what the wife says he might have mild dementia.
Q. Is that what the doctor says, based on the wife?
A. I am interpreting that that is what the -now that I've talked to you I'm interpreting that is exactly what this letter is saying. And I'm getting angrier and angrier about it because I thought that this doctor had actually done some kind of examination on May 9th.
But, no, he had done on it April 6th when he sent me the note that said — the entire report that said the man was normal. And this thing on May 9th is supposed to be a synopsis of this thing I got on April 6th and it's not. And it's making me angrier and angrier.
If this guy didn't do a medical exam on May 6th what's he writing me a doctor's note for? He's writing me a doctors note because the guy's wife wants to sandbag me and sandbag the Court.
Q. So in order to eliminate the sandbag concern, you have an opportunity to actually stop the proceedings and call this doctor to find out and get to the bottom of this; correct?
A. I was at the bottom of this. My client's competence was never in question to me. It was never in question to him. And as far as I know from this exam on April 6, 2007, it was never in question to this Dr. Sinclair.
Q. So Dr. Sinclair writes this letter. He signs it with his name, signs it with the patient information. And he's licensed by the State of Florida you would agree?
A. I don't know whether he is licensed by the State of Florida.
Q. And so in the letter other than it's at the request of his wife he lays out strong concerns regarding mild cognitive impairment -
A. No.
Q. - that he identifies — hold on. Hold on. I'm going to finish the question.
That he identifies that is consistent with his April 6th report on Page 4 of 4 of Government's 1; correct?
A. I think he's laying out at Mrs. Rendon's request — I now think he's laying out at Mrs. Rendon's request what she said in the neurological history, which went on ten times to say she said, she said and she said. But when it came down to doing the tests and running the tests and reading the data, his mental status was normal.
Q. And as a practitioner to assure his competence and to assure that you have the appropriate perspective, you did an investigation into his competence now that you have this second letter on the day of trial; is that correct?
A. He was questioned.
Q. In the questioning, which is captured in the transcript, it is clear that either he avoids the question or the question he's asked he answers incorrectly.
A. What a surprise.
Q. And so now you have — you have documentation from the doctor who has examined him, you have a letter the day of trial and you have him incorrectly answering the Court's questions.
A. I don't think he's incorrectly answering the Court's questions. At the time that he's testifying there on May 12, 2008, I thought he had actually had a mental status exam by Dr. Sinclair on May 9th, 2008.
Q. Now, you -
A. It's only now today that I realize that Dr. Sinclair was at Mrs. Rendon's request reverbalizing what she gave in her neurological history.
Q. Now, you're assuming that what she gave is incorrect or falsified; correct?
A. Now, no, no, I'm not assuming that. I'm just saying the jury's out on a lot of these things. You know, Mrs. Rendon will say, Mr. Rendon — when she needs to — when she needed to explain, for instance, or when we were asking for an explanation for why would Mr. Rendon speak in code, Mrs. Rendon would say, well, he can't hear. Well, that's one of the things that Dr. Sinclair addresses, isn't it?
Q. Well, you notice from going through -
THE COURT: Whoa, whoa, whoa.
MR. PUMPHREY: My apology.
THE COURT: Let him finish his answer.
THE WITNESS: His hearing, and he says that it is normal, isn't it? Yeah. I can't find it now, but it is normal.
Q. Are you relying on your memory or are you relying on the medical records?
A. I'm relying on the guy's report.
Q. I'm sorry. If you're done -
A. I'm relying — I think I'm relying on the doctor's report where he says that his hearing is normal.
Q. Were you aware that — you were aware and I'm sure Mr. Tuite — or it was implied when Mr. Tuite was questioning you that you were given an opportunity to review Dr. Rothschild's report; is that incorrect?
A. I didn't do it.
Q. Okay. But you were given the report?
A. No, I wasn't. I don't know if — well, let me just say I don't know that I was.
Q. Okay.
A. I think I may have been, but it was a long time ago.
Q. In your discussions with Mr. Tuite did he make you aware that the records disclose — show that not only did Mr. Rendon have a hearing deficit but he had the other things that Dr. Sinclair pointed out as far as the cognitive abilities?
A. That he has what? The cognitive problem?
Q. Cognitive problems.
A. Okay.
Q. Now, I want to ask you a little bit about your experience in identifying the differences between remote memory and recent memory. Can you define those two for me, Mr. Doherty.
A. Beg your pardon?
Q. Can you define the difference between remote memory and recent memory.
A. It just depends on what you're talking. If we're about talking about remote memory, we could be talking about Mr. Rendon's childhood, his education, his immigration to the United States, his work history.
Q. You would agree -
A. Recent memory I would look at — I'm not really too terribly interested in his everyday life, you know, and his recent days. I'm interested more in legal events like his arrest and things like that.
Q. During the 15 appointments you had with him, did you have an opportunity to observe recent memory versus remote memory?
A. Yes, I think I did.
Q. Okay. And what is — what is the definition of recent memory to you?
A. What happened last week, what happened last month, what happened last year and the year before.
Q. So if I were to ask you to take a piece of paper. I want you to fold it in half. I want you to take it with your right hand and place on the floor, you would be able to perform that task, would you not?
A. I don't know. I think I would.
Q. Okay. And so that's — you understood that's an example?
A. Wait a second. Let me think this through. Can you take a piece of paper, fold it in half, put it in my right hand and put it on the floor. Yes, I can do that.
Q. See?
And you went right through that because your cognitive ability allows you to do that because of your recent memory.
A. Okay.
Q. You understand the difference?
A. Uh-huh.
Q. Versus before you have dementia and before you have cognitive difficulties, things that are already imbedded and stored in your mind like a vault, you can recall those even if you're in real time having cognitive difficulty. You understand that delineation?
A. I don't know that to be true.
Q. You don't? Okay.
And so -
A. Are you talking like procedural memory, something like that?
Q. I'm talking about with Mr. Rendon.
A.
I know. I know. And you're talking about procedural memory, things like that?
Q. Yes.
A. I put my right shoe on my right foot.
Q. Well, that's learned behavior. But if you were instructed to do that, yes, it would be similar to the paper example.
A. Okay.
Q. And so you never looked at Mr. Rendon as far as his ability with recent memory or procedural memory?
A. I did.
Q. You did? Okay.
Tell us how you did that?
A. Well, we discussed what happened with his arrest. We discussed what happened with his tenants. We discussed his tenants and how many children they had and who they were and what their medical problems were. We discussed why his tenants would lie about him, which is what he said they were doing.
For instance, Sandoval Ochoa, just to pick one out at random, he said Sandoval Ochoa was a nice guy, but he rented this apartment from Mr. Rendon. And Mr. Rendon went over there and tried his key in the lock and it didn't work because Mr. Sandoval Ochoa had replaced the locks. And so he evicted Sandoval Ochoa and they had a big brouhaha over that.
Q. And that was an observation of remote memory or recent memory?
A. I think it was recent memory.
Q. All right.
A. In the past three years.
Q. Okay.
A. Past two or three years.
Q. During the period of time I believe you testified that you actually had a mock trial, is that right, or a mock cross-examination?
A. Yeah.
Q. Okay. And during the mock cross-examination, if I understood you correctly, he would answer I don't know to many of the questions? In fact, that led to -
A. No, no. He would answer I don't know only to the ultimate incriminating questions for which there was not a good answer that indicates innocence.
Q. Did he answer I don't know to only those questions?
A. Yeah.
Q. Okay. And so -
A. Well, I don't know. Let me — let me think about that. I'm not completely sure about that, but that is what it seemed to be.
Q. Okay. And when you say "seemed to be," your — your view of it?
A. Yeah. And my memory of it and what my notes say, of course.
Q. Because we notice in the transcript in the Court's inquiry there's is a similar pattern that you're are describing, but not as to any criminal activity or anything like that?
A. Uh-huh. I don't know.
Q. You would agree?
A. I — I wouldn't agree. I don't know what that transcript says.
Q. Well, you were there, weren't you?
A. I was.
Q. Okay. And you don't dispute the transcript, do you?
A. Sir?
Q. You don't dispute the transcript of the Court's inquiry -
A. No, no. Here's what I'm saying. There was a question in my mind when it was happening what is this guy being asked and — and is he being accurate or is he not being accurate — or I mean I was having some trouble following the questions myself.
Q. So would you feel that although — and very well respected for the last 30 years, and you've done hundreds of cases. Nobody is questioning that.
But are you starting to feel like that perhaps this is getting above your badge level as far as identifying these patterns? Because now we have in the transcript a pattern of the same activity you're describing as to the questioning you're doing that goes into the decision making process to testify. Is it possible that you should have had Mr. Rendon evaluated?
A. No — well, is it possible? Anything is possible? Is it necessary? No, I didn't think it was necessary because the problem is that as a practical matter — we're not talk about applied philosophy here. We're talking about a practical matter. Does this guy have trouble talking to me about the facts of this case and these witnesses, and he does not.
Q. Understand. Remote memory.
But we're talking about -
A. Any memory. The witnesses are testifying and he's hearing them testify for the first time and I'm hearing them testify for the first time and, say, Robert Macias testifies that he got 274 months.
Mr. Rendon does the math and it comes out to be 27 years — or 284 months, whatever it is. So he's functioning mentally every step of the way. He's testing this information every step of the way. He's telling me questions to ask or offering me pointers on questions to ask every step of the way.
And as for my difficulty with communicating with Mike Rendon, I had none. He may be one of the most functional people you'll ever meet.
Q. You mentioned something that when you first meet him there was a psych issue. Do you remember that?
A. There's a what issue?
Q. A psych issue. He had put his finger in his mouth and pulled the trigger. A suicide issue.
A. Oh, yeah, yeah, yeah.
Q. Okay. And you're still keeping that in mind when you're getting these — this information from the doctor about the cognitive problems; correct?
A. Uh-huh.
Q. Is that a "yes"?
A. Yes. This is not — let me just try to mention this to you. I thought this was self explanatory. But here's the thing. He's telling me a story about how bad of a guy Agent Gordon is, and he leaves out the single part of what Agent Gordon did — the single feature that makes every single thing that Agent Gordon did reasonable.
That's not a mistake. That is Mr. Rendon functioning as Mr. Rendon functions. That's like putting marijuana in the cat — in the cat food container like he did. That's that type of mentation right there.
Q. When you say Mr. Rendon's functioning how Mr. Rendon functions -
A. Yeah.
Q. - the same way he functioned with Dr. Sinclair?
A. Mr. Rendon functions on one of the highest level of anybody I've represented recently. He's running three businesses, running two separate lives and speaking two separate languages.
Q. Now -
A. He never spoke to me in his native language, by the way.
Q. Now, his wife is constantly parroting back to you I believe he has these problems; correct?
A. She is constantly telling me he's got hearing loss, he's got diabetes. She's also telling me he's got obsessive compulsive hoarding disorder which causes him to hoard the drugs, the guns, the money, the scales. Yeah, she's giving me a whole plethora of medical opinions.
Q. She's also telling you that he is forgetful?
A. Yes.
Q. She's also telling you that he's -
A. She's telling him that in front of me.
Q. And she's also sharing with you that it's her belief that he's having trouble processing information, he doesn't understand?
A. I don't know that she said that. He's having trouble understanding? No, I don't think she said that.
Q. You don't think or you know for sure? You know for sure she didn't say that?
A. I don't — I don't recall her saying that, no, that he's having trouble understanding information. I would talk to him, he would understand what I would say.
Q. Miss Carol, his wife, attended all the meetings or almost all of the meetings?
A. She attended all but about five — four or five, I think. I think I had one with Agent Gordon in which he was good enough to sit down and talk to us about the government's case and to basically tell Mike Rendon what it is that you're facing.
You know, this witness says this, this witness says that. The next witness says this. And that went on for about two or three hours and Mike Rendon and I sat there and listened to it and he was completely, of course, appropriate. He understood that. And he certainly understood the comment about finding himself in his socks and underwear out by the curb.
Q. So during — if I understand your testimony correctly, is during the entire period of time that you represented Mr. Rendon you never observed absolutely anything that would even cause concern for competency?
A. I saw in Mr. Rendon a normal 72-year old guy. I don't want to overstate what that is, but — but he had the normal kinds of things that I've become aware that people past age 60 seem to exhibit.
Q. What are those?
A. I hesitate to mention, but they include an inability to call to mind names immediately, dates immediately, addresses immediately, phone numbers immediately.
Mr. Rendon has — it's — it's not that Mr. Rendon ever had a problem with his mentation that I ever saw. He could have — it could be said that his rapid access memory was not as rapid as it had been.
Q. Now, did you have a baseline to measure that by?
A. No, no. I'm — I'm just telling what he told me. He would tell me time and again that and I believed him — that he worked from dawn till dark, that he was able to concentrate almost hours at a time, that he was able to do all sorts of things when he was 30 that he isn't able to do now.THE COURT: Yes.
Q. What were some of the other things that you observed about Mr. Rendon that you said would be normal for a 17-year old — or 72-year old?
A. I think that's about it.
Q. So -
A. In other words, he was well dressed, well groomed. He is a very polite and charming man.
Q. Very proud?
A. Very bright. Did you say bright or did I say bright? Because he is bright.
Q. And proud?
A. He's bright. He's very proud. And he's got a lot of attributes about his personality that are very pleasant. He's a — he's a person that's easy to like.
Q. And in giving the observations that you made with Mr. Rendon, you observed what you believe to be common activity for someone of his age; correct?
A. Right.
Q. And that is not being able to have rapid access memory, as you used it?
A. Right. On certain small things, yes.
Q. Now, you have had occasion in your 30 years to have that person that wants you to believe they're crazy, that they are incompetent to try to avoid their criminal case?
A. I know that such people exist, but let me think for a second. I don't know that I've actually had one. I know that such people exist and malingering is a problem I suppose. But I -I don't know that I've had one.
Q. So in all the experience that the government described, you've never had a psychological issue or competency issue with a client where you had to deal with malingering; is that correct?
A. That's hard to say. In other words, I've had cases where you've had dueling psychiatrists where one psychiatrists says that the guy is schizophrenic and the other person says he's a malingerer. I've had that. But I've never had that really resolved in my mind that my client's a malingerer.
Q. But it's your mind that makes a determination to call for a competency evaluation; correct?
A. I think it is.
Q. Okay. And in doing so, is it your testimony you've never dealt with a person that you've had the observation that they're malingering?
A. I don't know. I guess I have. I guess I have.
Q. And in having that person, you have the person that malingers and you realize they're competent. I don't need to bring it to the Court's attention; correct?
A. Mostly I've had it the other way. I've had it the opposite way where I'm dealing with somebody — I had a client back in the late '80s who was schizophrenic, but I really got a strong sense — she was clearly schizophrenic, but I got the strong sense that she could have been better — not normal, but better if she tried. Does that — is that what we're talking about?
Q. Actually, I'm — I'm glad you brought that up because the opposite of the malingerer is someone who tries to cover it up; correct?
A. Okay.
Q. No.
Would you agree? Is that fair?
A. Yes.
Q. Is that not what you just described?
A. Yeah.
Q. Okay. And so the opposite of the malingerer is the person who for whatever reason wants to try to cover up their mental defect; correct?
A. No. What I was describing is the person who is actually mentally ill who simply has let go. They've stopped trying. If they wanted to try, they could probably pass.
That crazy old lady on the block that runs out and grabs your ball when it comes in her yard, you know that lady? She would never be normal, but she could be better. She could be a lot better.
Q. But you understand what I'm getting to, that there are those persons that try to cover up for whatever reason their — their mental defect. You would agree?
A. I don't know that I've ever seen any, but I guess that's possible.
Q. If you've never seen any, then you would not be able to identify that person, would you?THE COURT: Yes. Sustained. BY MR. PUMPHREY:
Q. In your experience have you — have you dealt with circumstances where you later found out the person did have a psychological defect and you were unable to identify?
A. Yes.
Q. And so you're human; is that correct?
A. Beg your pardon?
Q. You're human?
A. Yes.
Q. And even as a practitioner of 30 years, it's quite possible somebody that somebody who's very prideful may hide or conceal something from you?
A. Anything is possible.
Q. Right.
Well, Mr. Doherty, you've had clients conceal things from you, haven't you before in your practice?
A. Have I had people what?
Q. Conceal things. Not be completely honest with you about things?
A. Oh, I've had people not be completely honest with me about their mental condition?
Q. Everything.
A. About everything? Yes, I've had many people not be completely honest with me.
Q. Let's get more specific. About their mental condition?
A. And you're saying to try to — a person who's in trouble trying to appear to be better mentally than they are?
Q. Yes.
A. I don't know that I've had that.
Q. So fair to say you would have a lot of trouble identifying them?
A. No, I don't think that is fair to say. I think I would have reasonable success identifying it. I don't think I've ever seen it. Wait a second. Let me see if I got this straight. You're saying somebody who's mentally ill who's trying to appear better than they are in a criminal system -
Q. Yes.
A. - where all of the secondary gain is to appear worse than you are? No, I'd have to say I've never seen that.
Q. Absent the last part, that would assume that the person does have that perspective?
A. That it does have what?
Q. The perspective that they have everything to lose; correct?THE WITNESS: I don't get it. THE COURT: Does the witness understand it? THE COURT: Let's try it again if you want to pursue that. That's struck, that one and the previous one because I don't understand what you're saying. Go ahead.
Q. Your evaluation of whether or not someone is competent, you described their appearance as being one; correct? If someone's dishevelled or they're not taking care of themselves, they have poor hygiene, obviously that's a red flag; correct?
A. It is.
Q. And you described people that also — they have inconsistent interactions or they appear psychotic.
A. Yes.
Q. That's pretty easy; right?
A. Those are pretty easy, right.
Q. How many persons have you represented with cognitive defects?
A. Probably hundreds.
Q. Hundreds?
A. Probably.
Q. And how did you identify the -MR. PUMPHREY: My apology, Your Honor. Madam Reporter, let's hear the question where the answer was interrupted, please. THE COURT: So answer your previous question, Mr. Doherty. BY MR. PUMPHREY:
Q. How did you know they had cognitive defects?
A. I guess you talk to them. I guess you look at them. I guess you listen to what they say in return. I guess you look at the facts of the case. I guess you talk to their family. You take what their family says and you weigh it with what you're seeing. You do all these things and you make a common sense judgment is this person — does this person have a cognitive defect. And when you say "cognitive defect," are we talking here about, say, mental retardation?
Q. No, sir.
A. No? Well, that would be a cognitive defect, wouldn't it?
Q. I'll ask the questions.
As to Mr. Rendon, you observed no absolutely no problems whatsoever other than what you testified here to today?
A. I think Mr. Rendon is not perfect. I think Mr. Rendon is completely competent.
MR. PUMPHREY: A moment, Your Honor? THE COURT: All right.
THE COURT: Yes.
MR. PUMPHREY: Your Honor, may I approach the clerk? MR. PUMPHREY: No further questions, Your Honor. THE COURT: All right. Have you got any redirect? THE COURT: All right. Any further need for the witness? May he be excused and discharged? Yes? THE COURT: Yes?