United States v. Paul Hill

ROSENN, Circuit Judge,

dissenting.

I respectfully dissent because I believe that (1) the trial judge’s evidentiary ruling on the need of a foundation for the expert’s testimony was not error and did not amount to a compulsory waiver of the defendant’s right not to testify, and (2) the expert psychological testimony proffered by the defense to establish the defendant’s unique susceptibility to inducement is controlled by Fed.R.Crim.P. 12.2(b), and was therefore properly excluded.

In response to an objection of the Government pertaining to the relevancy of the expert testimony proffered by the defendant, defense counsel informed the trial judge that the psychologist’s testimony was relevant because it was

likely to shed some light on the issue in question [which] is what the defendant contends is his capacity, is his state of mind, is his ability to withstand what we say is inducement by the government.

The trial judge sustained the Government’s objection to this testimony because no foundation had been laid for any opinion the doctor may have had that was based on “the nature of any assertions that were made to Mr. Hill by the witness [informant] Mr. Daniels.” In support of his ruling, the judge stated that the doctor was not in the courtroom to hear Daniels testify and would therefore not be in a position to offer an opinion on the effect of Daniels’ conversation on the defendant. In response, defense counsel stated he intended to offer a complete profile of the defendant from records and tests and ask the doctor to testify, based on Hill’s history and the doctor’s examination of him, as to the likelihood that Hill could “resist the skill or cunning of an informer.” The court thereupon pointed out to counsel that he could not be sure whether the jury would find that Daniels was “skilled and cunning” and, more importantly, that the doctor “had no knowledge whatsoever” about the substance and duration of the conversation between Hill and *519 Daniels. Although defense counsel thereupon modified his offer to have the doctor testify whether Hill would be able to “resist the urgings of a skillful and communicative informant, agent or police officer,” the court suggested that the defendant lay a foundation for the expert testimony by first having Hill testify and having the doctor hear that testimony and Hill’s recitation of his conversation with Daniels. In the absence of a proper foundation, the court would not permit the proffered testimony. 1

At no time did the court impose as a condition for the expert’s testimony that Hill testify, although in fact Hill did subsequently testify even without any expert testimony. The psychologist, however, did not remain in the courtroom to hear Hill’s testimony. I see no error in the ruling of the district court in rejecting the proffered testimony on this record. Under the terms of the proffer, the witness was not merely offering an opinion on (1) the mental condition of the defendant, but also (2) on his capacity to respond to the manipulations of a skillful and perhaps even cunning informant. The expert, however, had no solid basis for testifying to the second aspect of this proposed composite rendition. The expert had failed to observe the informant or hear any testimony from him concerning the nature of the alleged inducements he may have offered Hill and Hill’s response to the inducements. The defense also failed to demonstrate that the psychologist had any expertise concerning “skillful and communicative” informants. The trial judge acted well within his authority under Fed.R.Evid. 705 in insisting that a proper foundation be laid for Dr. Brutten’s testimony, especially in light of the surprise that testimony presented to the prosecution. See 3 Wein-stein’s Evidence 1 705[01] at 705-9. The rule’s relaxation of the requirement that facts and data underlying an expert’s opinion be disclosed routinely does not affect the requirement that they exist. See Fed. R. Evid. 703.

The majority are able, upon reflection and after briefing and argument, to reduce Hill’s proffer to three components and to then conclude that as to two of the three components a proper foundation had been laid. The majority concede, however, that “[t]he offer of proof was somewhat confusing and may have led to its being misapprehended by the trial judge.” Maj. op., at 515. I am in agreement with the Government that when counsel makes a proffer of evidence, the terms of the proffer govern admissibility. Thus, I do not believe it is the trial judge’s responsibility — nor ours— painstakingly to dissect a “confusing” proffer of evidence to determine whether, presented in a different manner, it might be admissible under some other rule of law.

Moreover, the trial court has wide discretion in determining whether to admit or exclude evidence, particularly in the case of expert testimony, and only if the reviewing court determines that the trial judge’s decision is “manifestly erroneous” is there an abuse of discretion and ground for reversal. Salem v. U.S. Lines Co., 370 U.S. 31 , 82 S. Ct. 1119 , 8 L.Ed. 313 (1962); Fuentes v. Reilly, 590 F.2d 509 (3d Cir. 1978). See United States v. Benveniste, 564 F.2d 335, 339 (9th Cir. 1977). Because Fed.R.Evid. 611(a) specifically requires the trial judge to exercise reasonable control over the order of the witnesses 2 and in view of the defense’s failure to lay a proper foundation for the expert’s testimony, I do not believe a reviewing court can say that under such *520 circumstances it was manifestly erroneous to reject the testimony of the expert.

In rejecting the expert’s testimony, the trial court also relied on the failure of the defense to comply with Rule 12.2(b) of the Federal Rules of Criminal Procedure. The rule provides in pertinent part:

If a defendant intends to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue whether he had the mental state for the offense charged, he shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the attorney for the government in writing of such intention .... The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

Rule 12.2(b) is an expression of a modern trend in the law to enhance the search for truth in a criminal proceeding and reduce the element of strategic surprise, at the same time avoiding a possible need for continuance and mid-trial recesses. Hill plainly disregarded the notice requirements of Rule 12.2(b). Hill’s counsel subpoenaed defendant’s school records on the third day of trial, Thursday, September 6, 1979. He knew then that he was endeavoring to establish defendant’s mental condition as an essential arm of his entrapment defense. However, he waited until Wednesday, September 12, 1979, before he gave notice to the Government and the court. Without timely notice, the Government had little or no opportunity to consult with its expert in preparation for cross-examination of the defendant’s expert or to provide the government expert with the necessary opportunity to observe the defendant and to hear his testimony and that of his expert. The majority conclude that Rule 12.2(b) does not specifically address the requirement of notice in relation to an entrapment defense, maj. op., at 517, and therefore hold that it is an insufficient basis on which to exclude the proffered testimony. I cannot agree with this holding.

Subsection (b) specifically requires written notice to the Government if the defendant intends to introduce expert testimony relating to a “mental disease, defect,, or other condition bearing upon the issue whether he had the mental state required for the offense charged . . . . ” The purpose of this rule, according to the Notes of the Advisory Committee, 18 U.S.C.A. Rule 12.2, is to prevent the need for a continuance when such evidence is offered without prior notice and to avoid unnecessary delay when “prior notice of intention to use expert testimony on the issue of mental state” is not provided. The caption of the section gives notice that the Rule applies to a “Defense Based upon Mental Condition.” The proffer of the evidence to the trial judge spoke directly to the defendant’s “state of mind” and his mental ability to withstand governmental inducement. Although the defendant did not raise his mental condition as a defense to the substantive offense of distributing drugs, he nonetheless raised it as a major element of a defense to relieve him of responsibility for the crimes which he concedes he committed. The purpose in requiring notice of mental condition evidence is as compelling in an entrapment defense as it is in an insanity defense. In either case, the Government must prepare for a psychiatric defense and it should have the requisite notice to avoid trial delay and provide adequate preparation.

Hill contended that his mental condition made him susceptible to entrapment by the Government. Entrapment goes to the defendant’s predisposition, his state of mind at the time the Government allegedly commenced the inducement. Here, the defendant specifically offered expert testimony to provide evidence of a mental condition that made defendant’s state of mind particularly susceptible to inducement. This testimony of mental condition was therefore pertinent to the issue raised by the defense to the crime charged. Thus, the Government should have had timely notice of this defense unless for cause shown the trial court permitted late filing. Were the majority to prevail, it would render Rule 12.2(b) ineffective with respect to a vast number of narcotics prosecutions where the defense is built around entrapment.

Therefore, because I believe that the district court properly ruled on the proffer as made at trial, I would affirm Hill’s conviction. I would also hold that expert testimony on the defendant’s mental condition bearing on his susceptibility to inducement, when offered in support of an entrapment defense, falls within the scope of Fed.R. Crim.P. 12.2(b) and that notice of its intended use must be given to the prosecution.

*521 SUR PETITION FOR REHEARING

Present: ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVI-TER, Circuit Judges.

The petition for rehearing filed by Appel-lee in the above entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges in the circuit in regular active service not having voted for rehearing by the Court in banc, the petition for rehearing is denied.

Judges Hunter, Weis and Garth would grant the petition for rehearing.

Judges Adams and Garth would grant rehearing in this matter because they are concerned that the interpretation of Federal Rule of Criminal Procedure 12.2(b) announced by the majority would result in serious disruptions of many criminal trials, particularly in narcotics cases. This is a matter that they believe is of sufficient import to merit consideration by the entire Court before the interpretation becomes uniform throughout the circuit.

. In his opinion denying motions for judgment of acquittal and new trial, the trial judge explained his ruling on this issue:

The defendant had not as yet been called to the stand and therefore the doctor obviously had not heard his testimony, nor could he know how Hill would respond to cross-examination. I suggested to counsel for the defendant that Dr. Brutten remain in the courtroom so that he could at least hear Hill describe his various encounters with Daniels. Dr. Brutten, however, had other appointments and I was told that he could not remain. ...

Primarily, my ruling was based on the complete absence of any foundation for the testimony. ... I did not refuse to permit the doctor to testify — I only insisted that there be some sort of minimal foundation for him to do so.

United States v. Hill, 481 F.Supp. 558, 561-62 (E.D.Pa.1979).

. Fed.R.Evid. 611(a) provides in pertinent part:

(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time....