USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 97-1998

UNITED STATES OF AMERICA,

Appellee,

v.

STEPHEN F. KIVLEHAN,

Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Aldrich, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Walter F. McKee
_________________

with

whom

Lipman & Katz

_______________

was on

brief

appellant.
Margaret D. McGaughey,
______________________
whom

Assistant

Gail F. Malone, Assistant

_______________

United States

United States

Attorney,

Attorney, and

McCloskey, United States Attorney, were on brief for appellee.

_________

____________________

February 27, 1998

Jay
___

____________________

ALDRICH, Senior Circuit Judge.

_____________________

F. Kivlehan, sentenced

to

U.S.S.G.

U.S.C.

firearm,

indigent,

as an armed career

4B1.4(b)(3)(A), whose

922(g)

for, as

appeals for

being

provided

examination prior to

with

offender pursuant

conviction was under 18

a felon, being

evidentiary

Defendant Stephen

error;

funds

in possession

for

for

not,

sentencing; for the court's

of a

as

an

psychiatric

refusal to

hold a competency hearing, and for

offense

level

for using

crime of violence.

its adding a point to his

the firearm

in connection

with a

We affirm.

Fingerprint Testing
___________________

neighbors

Defendant

was

by the

noise of

assault on his

wife.

premises, the police

testified

specially

built

to

the

competition

testing for

pistol,

defendant's wife

prints with

Witnesses at

of

the

and

to

his hands on it.

physical

to search the

the incident, post.

____

uniqueness

alerted his

sexual and

found a revolver that

defendant previously with

returned from

a vigorous

having

After receiving consent

adequately connected with

trial

arrested after

revolver,

having

seen

However, it was

none of

defendant's

found.

Over defendant's objection,

allowed to

was "very

with those

testify that in

rare" to

a police detective was

his twenty years

match positively a

found on a weapon -- in

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experience, it

known set

of prints

fact, he could recall no

case.

The

objection

interesting question.

experience,

but the

made

was

The witness

hearsay.

This

is

an

was speaking from his own

effect, perhaps, was

to vouch

for the

accuracy of past reports or the testing process itself.

In

any

prejudicial.

event,

this

whole

matter

The revolver had a serial number.

was

It was noted

at the time of the arrest; the revolver at the trial

same

number.

including

brother,

both

error

its

prior

harmless.

owner

as

a professional gunsmith.

in

See
___

had the

Also, four witnesses positively identified it,

absence of fingerprints?

any

not

admitting

Given such

the

well

Of what

as

defendant's

consequence the

overwhelming evidence,

detective's

United States v. Bartelho, 129

_____________
________

testimony

was

F.3d 663, 670

(1st

Cir. 1997).

We pass

the question

whether defendant

himself first "opened the door" to this testimony.

Mental Competency Testing

_________________________

There was

stand

trial,

or

no claim

that he

that defendant

had

any

was unable

mental defect

to

defense.

However, after trial, defendant's counsel asked for funds for

psychiatric testing, pursuant to 18 U.S.C.

later moved to determine

18

U.S.C.

thought,

he

4241.

His

3006A(e)(1), and

defendant's competency, pursuant to

psychological

would be relevant to where

condition,

it

was

in the applicable range

should be sentenced and, also, whether downward departure

under U.S.S.G.

5K2.13 (diminished capacity)

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could be had.

Counsel's most

would not

returned

tangible basis

communicate with

unopened.

including general

probation

officer

Apart

was the

him and

fact that

defendant

rejected all

his mail,

from that were

little fragments,

comments from defendant's

about

his

apparent,

mother and

his

lay-described

"paranoia," and the argument that unless a test was made, how

could it be known that it was not needed?

Whether

to

testing is within the

States
______

clear and

accused.

expenses).

232,

psychological

Refusal

Cf. United
___ ______

239-40 (1st

is not

of

Cir.

reversible

prejudice to

A determination of competency

defect,

consequences

the

of the

in one's

may be had when

cause to believe that the defendant, due

is unable

to understand

proceedings against

properly in his defense.

assist

864 F.2d

convincing evidence

there is reasonable

to

for

See United States v. Canessa, 644 F.2d 61, 64 (1st

___ ______________
_______

Cir. 1981).

to mental

funds

trial court's discretion.

v. Mateos-Sanchez,
______________

1988) (investigative

absent

authorize

See 18 U.S.C.
___

defense

means

to

the nature

him

or to

and

assist

4241.

To be able

have a

"sufficient

present

ability

to

consult

with

reasonable degree of rational

v. Lebron, 76
______

Ct. 2537

matter

understanding."

F.3d 29, 31 (1st

(1996).

Whether to

within the trial

[one's]

lawyer

with

United States
_____________

Cir.), cert. denied, 116

____________

hold a

4241

hearing is

S.

judge's discretion, reviewable only

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for abuse.

See United States v. Morgano, 39 F.3d 1358,

___ _____________
_______

1373

(7th Cir. 1994), cert. denied, 515 U.S. 1133 (1995).

____________

Given

evidence

of

the posture, all

incompetency,

discretion in sentencing.

matter,

part, on

was.

observations of

sentencing.

The

favorable

latter.

exercise

Further, the decision

defendant's behavior

record

We have

of

pursue the

disinclination to be any more

expressly

reviewed the

findings "comprehensively," Lebron,

was based, in

during trial

reflects

instances of communication between defendant and

during the

for, with

The court's refusal to

we think, indicates a

favorable than it

and

was

defendant asked

noted

his counsel

district court's

76 F.3d at 32;

read the

______

record,

and

listened

to,

in

effect,

testimony

defendant's trial counsel, and we think the case

well summed

up by the court.

If

thought

competency
would

for

exam

minute

or a

in any way

that

psychiatric

a
exam

flush out any problems

that may exist or be determinative of any

issue here, I'd order it, but that's

not

the case

in the court's

humble opinion.

And if I

were to order

competency exams

on

each

one

of

proceedings,

there

psychiatrists

and

these

sentencing

aren't

enough

psychologists

accommodate all the competency exams.

to
It

is not unusual . . . for defendants, once

they've gone through trial and are facing
sentence,

to

develop

anxieties. . . .
if

they didn't.

[I]t would

delay

kinds

be strange

a psychiatrist

psychologist, but I'm not

this

of

And I think that's what

we have here, and I'm not

or a

all

matter

any further

going to
on

from

the

basis

of

what

I have

before

me

now,

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unless

someone can

convince me

that it

would be useful.

And

that,

defendant's

request to

over with, which is

to do I
do.

coupled

with

get this

the
matter

really what he wants

think, that's what I'm

going to

We find no abuse or prejudice.

Offense Level
_____________

Finally,

connecting

defendant

the weapon

to the

complains

of

assault.

the

The import

alleged error was assigning offense level 34 rather

court's

of the

than 33,

making the applicable sentencing range 262-327 months instead

of

235-293.

Under U.S.S.G.

4B1.4(b)(3)(A), the

greater

figure applies if the firearm was "used or possessed . . . in

connection with a

crime of

violence."

It is

acknowledged

that

"'in connection with' should be interpreted broadly and

that

where a

defendant's possession

facilitates the

link is present."

of a

firearm aids

or

commission of another offense, the requisite

United States v.
_____________

Thompson, 32 F.3d 1,
________

(1st Cir. 1994) (footnote omitted).

Reviewing the district

error,

see United States v.

___ ______________

Cir.),

cert. denied,
____________

The

defendant

had

he placed

Gary,
____

116 S.Ct. 2567

sometimes with firearms.

arrest,

court's findings for

history

304, 317

(1996), we

threatening

(1st

find none.

his

wife,

During the events precipitating his

the gun

bedroom, openly visible.

of

74 F.3d

clear

on

the floor

He glanced

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of the

apartment

menacingly at the

gun

and then his wife, which she understood to be a threat, as he

attempted to have

him and

her facilitate a sexual

another woman.

encounter between

When that failed, he

compelled his

wife to endure three hours of sexual and physical abuse, some

of which

occurred in the room

told her

that, in

her words, "You

make it

through the night."

cry out

because she was

gun right beside the bed."

the

presence of

part, threatened

with the gun.

the gun

He repeatedly

probably ain't

She said

going to

she did not scream or

scared "because there was

a loaded

It is no stretch to conclude that

emboldened

his victim into

the defendant

submission, and

and, in

therefore

"aid[ed] or facilitat[ed]" the assault.

7; cf. United States

___ _____________

1995) (per curiam).

Affirmed.
_________

Thompson, 32 F.3d at
________

v. Sturtevant, 62 F.3d 33, 34 (1st Cir.

__________

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