Opposition Brief — Ader v. United States

fh Supreme Court, U.S.

(4 RILED

AUG 10 1987

No. 86-1950 JOSEPH F. SPANIOL, JR.

Iu the Supreme Court of the United States

OCTOBER TERM, 1987

PHILLIP N. ADER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS -

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether petitioner was denied his right to pre-

sent his insanity defense because the district court

disallowed testimony from a psychiatrist that at the

time petitioner committed the crimes in question, he

was unable to appreciate the wrongfulness of his

acts.

2. Whether the verdict form used by the district

court met the requirement of 18 U.S.C. (Supp. III)

4242(b) that a special verdict be returned in cases

involving insanity pleas.

3. Whether the prosecutor’s rebuttal argument

prejudiced petitioner’s right to a fair trial.

(I)

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TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases: .

United States v. Edwards, No. 86-5373 (11th Cir.

RE RUE i CERO A 11

United States v. Frady, 456 U.S. 152 (1982) _........ 12

United States v. Mest, 789 F.2d 1069 (4th Cir.

1986), cert. denied, No. 85-7202 (Oct. 6, 1986) .... 11

United States v. Murphy, 768 F.2d 1518 (7th Cir.

1985), cert. denied, No. 85-924 (Feb. 24, 1986) .. 14

United States v. Stefan, 784 F.2d 1093 (11th Cir.

1986), cert. denied, No. 86-363 (Oct. 6, 1986) ...... 14

United States v. Young, 470 U.S. 1 (1985) -........... 12, 14

Statutes and rule:

Comprehensive Crime Control Act of 1984, Pub. L.

No. 98-473, Tit. II, § 402(a), 98 Stat. 2057 _........ 7

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Teen in cinnnasacsstadnewasonsesanssines 2

Tee sca nasiaeinnuniteisaocanionens 2

Fed. R. Evid.:

ERS ORGIES SS 8

ERE IAI OO 4, 6,8

Miscellaneous :

American Psychiatric Association Statement on

the Insanity Defense (Dec. 1982) —...........00000000... 9

S. Rep. 98-225, 98th Cong., lst Sess. (1983) ........ 8,9

(IIT)

In the Supreme Court of the United States

OCTOBER TERM, 1987

No. 86-1950

PHILLIP N. ADER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.

1-14) is reported at 816 F.2d at 673 (Table).

JURISDICTION

The judgment of the court of appeals was entered

on April 10, 1987. The petition for a writ of cer-

tiorari was filed on June 8, 1987. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the Western District of North Caro-

lina, petitioner was convicted of conspiracy to possess

marijuana with intent to distribute it, in violation

of 21 U.S.C. 846 (Count 3), and possession of mari-

juana with intent to distribute it, in violation of 21

U.S.C. 841(a)(1) (Counts 4 and 16).’ He was sen-

tenced to consecutive terms of ten years’ imprison-

ment on each of Counts 3 and 4, and to a concurrent

two-year term of imprisonment on Count 16. In ad-

dition, he was sentenced to a six-year special parole

term on Count 4 and a four-year special parole term

on Count 16.

“1. The evidence at trial is summarized in the

opinion of the court of appeals (Pet. App. 2-3). Peti-

tioner was an associate of Kay Huggins, a drug traf-

ficker who was transporting marijuana in his motor

home from Louisiana to New York. Huggins’s motor

home developed problems, and he arranged to store

900 pounds of the marijuana for a few weeks at the

North Carolina home of drug trafficker Leonard

Re; nolds. Reynolds and his associate Rollins Frazier,

however, stole Huggins’s marijuana and moved it

to a mini-storage warehouse in Kingsport, Tennes-

see. When Huggins discovered the theft he called in

petitioner and another associate known as “Jim Bob.”

Petitioner and Jim Bob took Reynolds to a cabin in

the woods, where they gave him a polygraph examin-

ation and Jim Bob beat Reynolds. Reynolds admitted

stealing the marijuana and revealed its location.

After releasing Reynolds, petitioner and Huggins

1 Petitioner was acquitted on one count of kidnapping and

one count of conspiracy to distribute marijuana.

3

went with Frazier to Kingsport to recover the mari-

juana. After retrieving the marijuana in Kingsport,

petitioner and Jim Bob returned to North Carolina,

where they released Frazier. Reynolds later reported

the events to the police, who arrested petitioner. Dur-

ing a search of petitioner’s car, the police found a

warehouse key and receipt that led to the discovery

of about 60 pounds of marijuana and assorted drug

paraphernalia in a mini-storage locker.

2. Petitioner’s defense at trial was that he was

legally insane at the time he committed the offenses

in question. His sole witness at trial other than him-

self was Dr. Milton Burglass, an expert in psychia-

try, neurophysiology and medicine (II Tr. 416-417).

Dr. Burglass testified that petitioner had smoked

marijuana nearly every day since 1943 (II Tr. 461);

that in the 1950’s petitioner was heavily involved

with heroin and other injectable narcotics or opiate

drugs (ibid.); that in 1959, while serving a federal

prison sentence, petitioner had participated in a drug

research program administered by the Central Intel-

ligence Agency that involved LSD and other con-

trolled substances (II Tr. 444-446); that between

1959 and 1984 petitioner may have consumed more

than 300 doses of LSD (II Tr. 467); and that peti-

tioner frequently used marijuana, LSD, and cocaine

in conjunction (II Tr. 465-466). Dr. Burglass testi-

fied that after using marijuana heavily, petitioner

would go through a frenzied, manic state during

which his judgment would be markedly impaired and

he would be totally irrational (II Tr. 465). Accord-

ing to Dr. Burglass, when petitioner used marijuana

in conjunction with LSD and cocaine, he would go

into a psychotic state in which he lost touch with

reality (II Tr. 466).

4

Dr. Burglass then testified that at the time of his

arrest petitioner was suffering from substance abuse

disorder, marijuana dependence, and physiological

brain damage (II Tr. 473-474). One of the charac-

teristics of the mental disease identified by Dr. Bur-

glass was a significant compromise of “[c]onduct

that involves higher level judgment and reasoning

and longer term planning and evaluation of conse-

quences down the line” (II Tr. 480).

Outside the presence of the jury, petitioner’s coun-

sel then proffered testimony by Dr. Burglass that

at the time of his arrest petitioner “would * * * cer-

tainly not [have] been able to appreciate the wrong-

fulness of his acts” (II Tr. 482-484). The trial court

disallowed this testimony on the ground that it fell

within the prohibition of Fed. R. Evid. 704(b), which

enjoins an expert witness from stating an opinion as

to whether a defendant “did or did not have the men-

tal state or condition constituting an element of the

crime charged or of a defense thereto” (II Tr. 484-

485).

In his summation to the jury, defense counsel made

the following argument (IV Tr. 32 (opening and

closing statements) ) :

Now, understand that [petitioner’s] days behind

a desk like this in a court of law like this before

juries are not yet over. You heard the evidence.

He’s got music to face in Gaston County yet.

You heard, I think, during one of the govern-

ment’s witnesses or during opening statement, a

reference to the fact that Reynolds hadn’t been

taken across state lines; therefore, it wasn’t a

federal kidnapping. That that was a state mat-

ter. So, ladies and gentlemen of the jury, there’s

many more miles to go, many more roads to

5

travel, before [petitioner] ever sees what you

and I cherish so dearly.

In response to defense counsel’s argument, the prose-

cutor made the following statement during rebuttal

summation (Pet. App. 6-7; IV Tr. 64):

[Defense counsel] wants to bring up that there

are other charges out here, I guess saying, “You

let him go today, and somebody else will get him

tomorrow.” Well, if this jury passes on insanity

today, no telling what might happen to him as

to the other charges and other acts [petitioner]

has committed or will commit.

Defense counsel objected to this statement. Subse-

quently, after the jury had been instructed on the

law and excused for the day, defense counsel moved

for a mistrial (III Tr. 668-669). The district court

denied the motion on the ground that the prosecutor’s

statement was not so prejudicial as to warrant a mis-

trial (III Tr. 670). The next morning, the court

gave the following instruction to the jury (III Tr.

670-671) :

Now, Members of the Jury, I recall that last

night just at the end of the prosecutor’s state-

ments to you, that he mentioned something about

the fact that—and you’ll have to remember the

words—to the effect that if the defendant, if you

didn’t find the defendant guilty, no telling what

he might do, or words to that effect. Now, the

only thing you’re concerned with in this case is

whether or not the defendant was guilty of the

crimes charged. You will not consider anything

about what he will do or may do in the future.

It is up to you to decide whether or not the

government has produced evidence beyond a rea-

sonable doubt to satisfy you that the defendant

is guilty of the crimes charged under the instruc-

tions of the Court * * *.

6

In its closing instructions, the district court ex-

plained that if the jurors found petitioner guilty on

any of the counts, they should then determine

whether petitioner was not guilty on those counts

only by reason of insanity (Pet. App. 15; III Tr. 664-

665, 671). The verdict form that the jury received

(Pet. App. 13, 16) similarly required the jurors first

to indicate as to each count whether they found peti-

tioner guilty or not guilty. The form then read

(Pet. App. 16 (emphasis in original) ) :

If the jury has answered this Count “Guilty,”

then does the jury find [petitioner] “Not Guilty”

only by reason of insanity? (Check either “YES”

or “NO”.) ——(YES) ——(NO)

3. The court of appeals affirmed petitioner’s con-

victions (Pet. App. 1-14). The court found that the

district court properly excluded Dr. Burglass’s testi-

mony that petitioner could not appreciate the wrong-

fulness of his acts. Such testimony, held the court,

would have represented an opinion as to an ultimate

legal issue concerning petitioner’s mental state and

was therefore prohibited by Fed. R. Evid. 704(b).

Pet. App. 8-12. The court agreed with petitioner as

to the impropriety of the prosecutor’s reference dur-

ing closing argument to acts petitioner might commit

in the future, a statement the court viewed as di-

recting the jury to consider whether petitioner

“Twould] commit future crimes if he [was] not

convicted of the present charges” (Pet. App. 6-7).

The court of appeals also agreed that it would have

been preferable for the district court to have given

an immediate curative instruction following the im-

proper remark, rather than waiting until the follow-

ing morning to do so. The court, however, rejected

7

petitioner’s claim that the delay in giving the in-

struction resulted in prejudice that called for rever-

sal, especially given the isolated nature of the prose-

cutor’s remark. Pet. App. 7-8.

Finally, the court of appeals rejected petitioner’s

claim that the district court’s instructions concerning

the verdict, and the verdict form that was used, de-

viated so far from the requirements of 18 U.S.C.

(Supp. III) 4242(b) as to constitute reversible error.

The court expressed reservations about the verdict

notation form but found that even if the district court

had used a form closer to the one suggested by Sec-

tion 4242(b), the jury still would have found peti-

tioner guilty on three counts and not guilty (on the

merits) on two counts. Pet. App. 13-14.

ARGUMENT

1. Petitioner argues (Pet. 7-9) that the district

court prevented him from fully presenting his in-

sanity defense by excluding testimony from Dr. Bur-

glass that petitioner was unable to appreciate the

wrongfulness of his actions.

The Comprehensive Crime Control Act of 1984

(Pub. L. No. 98-473, Tit. II, § 402(a), 98 Stat.

2057) made two changes in the federal insanity de-

fense. First, the Act added a new provision, now

18 U.S.C. (Supp. III) 20,2 which defines the in-

218 U.S.C. (Supp. III) 20 provides:

Insanity Defense

(a) Affirmative defense.—It is an affirmative defense to

a prosecution under any Federal statute that, at the time

of the commission of the acts constituting the offense,

the defendant, as a result of a severe mental disease or

defect, was unable to appreciate the nature and quality or

8

sanity defense and provides that the defendant has

the burden of proving insanity by clear and con-

vincing evidence. Second, Congress limited the scope

of expert testimony on the defendant’s insanity by

prohibiting experts from voicing an opinion as to

whether the defendant had the mental state or con-

dition constituting an element of the offense or of a

defense. Fed. R. Evid. 704(b).* Under the new rule,

when an insanity defense is raised, experts are not

permitted to testify that the defendant’s mental con-

dition rendered him unable to appreciate the nature

or wrongfulness of his acts. The experts are per-

mitted only to present and explain their diagnoses,

which can include whether or not the defendant had

a severe mental disease or defect and what the char-

acteristics of such a disease or defect may have been.

See S. Rep. 98-225, 98th Cong., Ist Sess. 225, 227,

230-231 (1983).

the wrongfulness of his acts. Mental disease or defect

does not otherwise constitute a defense.

(b) Burden of proof.—The defendant has the burden

of proving the defense of insanity by clear and convincing

evidence.

3 Rule 704, Fed. R. Evid., provides:

Opinion on ultimate issue

(a) Except as provided in subdivision (b), testimony

in the form of an opinion or inference otherwise admissi-

ble is not objectionable because it embraces ai. ultimate

issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the

mental state or condition of a defendant in a criminal!

case may state an opinion or inference as to whether the

defendant did or did not have the mental state or condition

constituting an element of the crime charged or of a de-

fense thereto. Such ultimate issues are matters for the

trier of fact alone.

9

Congress recognized that under prior law, an ex-

pert witness in an insanity case could testify about

so-called “ultimate” issues, such as whether the de-

fendant was “insane” or whether he lacked the

capacity to distinguish “right from wrong” (S. Rep.

98-225, supra, at 225). The Senate Committee stated

that its purpose in limiting the scope of expert testi-

mony in insanity cases was “to eliminate the con-

fusing spectacle of competing expert witnesses testi-

fying to directly contradictory conclusions as to the

ultimate legal issue to be found by the trier of fact’

(id. at 230). As the report explained (id. at 231,

quoting American Psychiatric Association Statement

on the Insanity Defense 18-19 (Dec. 1982) ) :

[I]t is clear that psychiatrists are experts in

medicine, not the law. As such, it is clear that

the psychiatrist’s first obligation and expertise

in the courtroom is to “do psychiatry,” i.e., to

present medical information and opinion about

the defendant’s mental state and motivation and

to explain in detail the reason for his medical-

psychiatric conclusions. When, however, “ulti-

mate issue” questions are formulated by the law

and put to the expert witness who must then

say “yea” or “nay,” then the expert witness is

required to make a leap in logic. He no longer

addresses himself to medical concepts but instead

must infer or intuit what is in fact unspeak-

able, namely, the probable relationship between

medical concepts and legal or moral constructs

such as free will. These impermissible leaps in

logic made by expert witnesses confuse the jury.

[Footnote omitted.] Juries thus find themselves

listening to conclusory and seemingly contradic-

tory psychiatric testimony that depfndants are

either “sane” or “insane” or that they do or do

10

not meet the relevant legal test for insanity. This

state of affairs does considerable injustice to

psychiatry and, we believe, possibly to crimi-

nal defendants. * * *

Psychiatrists, of course, must be permitted to

testify fully about the defendant’s diagnosis,

mental state and motivation (in clinical and

commonsense terms) at the time of the alleged

act so as to permit the jury or judge to reach

the ultimate conclusion about which they and

only they are expert. Determining whether a

criminal defendant was legally insane is a mat-

ter for legal fact-finders, not for experts.

In this case, the district court allowed Dr. Burglass

to testify that petitioner suffered from a mental dis-

ease and to explain the characteristics of that dis-

ease. Indeed, the district court gave Dr. Burglass

great leeway in this regard (see Pet. App. 11). Dr.

Burglass testified that petitioner was suffering from

substance abuse disorder, marijuana dependence, and

physiological damage to the brain (II Tr. 473-474).

He further testified that the characteristics of this

disorder were rapid fluctuation between sanity and

insanity, compromised rational judgment, and an im-

pairment of the ability to discriminate between types

of conduct (II Tr. 477-480). As the court below

explained (Pet. App. 11), if a characteristic of peti-

tioner’s mental disease had been an inability to ap-

preciate the wrongfulness of one’s conduct, Dr. Bur-

glass could have testified to that medical fact. A

particular individual’s inability to appreciate the

wrongfulness of his acts, however, is the legal defini-

tion of insanity. It was therefore proper for the

district court to prevent Dr. Burglass from testifying

that petitioner was unable to appreciate the wrong-

11

fulness of his acts. That was an issue for the jury

alone to decide. See United States v. Mest, 789 F.2*

1069, 1071 (4th Cir. 1986), cert. denied, No. 85-720z

(Oct. 6, 1986) (finding improper the question:

“““TD]o you have an opinion as to whether or not

[the defendant] at the time of this alleged event

could by virtue of his mental condition, discern the

wrongfulness of his behavior and had the capacity to

conform his behavior to the requirements of the law

should he have so chosen?’ ’’) .*

2. Petitioner next contends (Pet. App. 9-11) that

the verdict form used by the district court was mis-

leading because it caused the jury to believe that

even if petitioner was insane, he still could have been

guilty of committing the crimes. This claim is merit-

less.

Where the issue of insanity is raised, the jury or

the court (in the event of a bench trial) must find

the defendant either (1) guilty, (2) not guilty, or

(3) not guilty by reason of insanity (18 U.S.C.

(Supp. Ili) 4242(b)). In this case the district

court’s instructions and verdict form did not present

the three possibilities simultaneously. Instead, the

court indicated that the jurors should approach the

insanity question sequentially, first indicating

whether they found the defendant guilty or not guilty

and then, if they answered “Guilty” to any particular

count, indicating whether they found petitioner not

guilty only by reason of insanity.

*The Eleventh Circuit recently applied this principle in

United States v. Edwards, No. 86-5373 (June 12, 1987),

where the court of appeals upheld the district court’s decision

to admit expert psychiatric testimony that discussed the

usual symptoms of a mental disorder without expressing a

specific conclusion about the defendant’s status under the

relevant legal standard.

12

Petitioner cannot now object to the instructions

and the verdict form, because he did not object at

trial. Indeed, petitioner’s counsel specifically ap-

proved of the form used. Prior to closing instruc-

tions, the court inquired of the parties whether they

had any objection to the verdict form the court had

prepared (III Tr. 503-504). As originally prepared,

the verdict form directed the jury to indicate as to

each count whether they found the defendant (1)

guilty; (2) not guilty; or (8) not guilty only by rea-

son of insanity. The form directed that if the jurors

answered any count “guilty,” they should then indi-

cate whether they found petitioner “not guilty” only

by reason of insanity. The prosecutor objected to the

form in that version because the instructions ap-

peared repetitive and confusing. III Tr. 504. The

court then suggested an alternative version of the

verdict form to which petitioner now objects (III Tr.

503-504). Petitioner’s counsel stated that he saw no

problem with the format suggested by the court, and

that in his view he “[did not think] it ma[de] any

difference” (III Tr. 505-506). Having specifically

acquiesced in the present form, petitioner now can

challenge the district court’s jury charge and the ver-

dict form only if they constituted plain error. See,

¢.g., United States v. Young, 470 U.S. 1, 15-16

(1985) ; United States v. Frady, 456 U.S. 152, 168

(1982). Under this standard, the court of appeals

correctly rejected petitioner’s claim.

Although, as the court of appeals noted (Pet. App.

13), the verdict form used by the district court might

conceivably have implied that “not guilty by reason

of insanity” is a subspecies of “guilty,” it seems un-

likely that the jury was misled in that fashion or that

any misconception on the jury’s part could have

13

affected the verdict. The district court’s verdict form

reflected, correctly, that insanity is the only differ-

ence between a defendant who is guilty and one who

is not guilty only by reason of insanity. The form

also suggested that the jury should follow the per-

missible course of assessing the insanity question

separately. Most importantly, the form made clear

to the jurors that if they found petitioner to be in-

sane at the time he committed the crimes in question,

they would have to find him “not guilty by reason of

insanity.” Indeed, as petitioner’s counsel himself re-

marked at the time he agreed to the changes in the

verdict form suggested by the court, “[i]t would be

an extraordinarily confused jury not to be able to

figure [the verdict form] out, in view of the opening

and anticipated closing” (III Tr. 506).

The form made it possible for the jury, as to each

count, to find petitioner guilty, not guilty, or not

guilty by reason of insanity. The jury found peti-

tioner guilty on three counts and, in accordance with

the court’s instructions and the instructicns written

on the verdict form, noted that for those three counts

petitioner was not found to be “not guilty only by

reason of insanity.” The jury also found petitioner

not guilty on two counts, and, in accordance with

the court’s instructions and the directions on the ver-

dict form, it did not signify whether the acquittal

was based on insanity or on the merits. Those cir-

cumstances make it virtually impossible for petitioner

to have been prejudiced, as he suggests (Pet. 10),

by the jury’s believing that it could convict him al-

though finding that he was insane.

In sum, as the court of appeals explained, the

district court’s instructions and the form made no

real difference in the jury’s analysis of the case.

14

The circumstances demonstrate that if the district

court had simply listed the three possible verdicts

under 18 U.S.C. (Supp. III) 4242(b), “the jury

would have found [petitioner] guilty on three counts

and not guilty (on the merits) on two counts” (Pet.

App. 14).

3. Finally, petitioner contends (Pet. 11-13) that

the prosecutor’s reference in closing argument to

“other acts [petitioner] has committed or will com-

mit” prejudiced petitioner’s right to a fair and im-

partial trial. Although, as the court of appeals found

(Pet. App. 7), the prosecutor’s comment was “indis-

putably improper,” it did not justify a reversal of

petitioner’s convictions. As this Court has recently

made clear (United States v. Young, 470 U.S. at 11-

12), inappropriate prosecutorial comments must be

examined in the context of the trial to determine

whether they constituted prejudicial error. Reversal

is warranted only if the remarks in question preju-

diced the defendant’s substantial rights (United

States v. Stefan, 784 F.2d 1093, 1100 (11th Cir.

1986), cert. denied, No. 86-363 (Oct. 6, 1986);

United States v. Murphy, 768 F.2d 1518, 1534 (7th

Cir. 1985), cert. denied, No. 85-924 (Feb. 24, 1986) ).

No substantial rights of petitioner were prejudiced.

The prosecutor’s comment was isolated, and petition-

er’s counsel himself conceded at trial that he did not

believe that the prosecutor intended to make the state-

ment (III Tr. 669). The context of the remark sug-

gests that the jury would not have thought it to have

independent, affirmative significance. The prosecutor,

in his rebuttal summation, was responding to the

suggestion made in closing argument by petitioner’s

counsel that because there were still outstanding

charges pending against petitioner, it would be a

15

long time before petitioner went free even if the jury

acquitted him of the instant charges. The main point

of the procecutor’s remarks, accordingly, was the

perfectly proper one that the jury should consider the

case on its own merits and not consider what might

happen to petitioner in other proceedings. More-

over, the court instructed the jurors the next morn-

ing that they were not to consider the prosecutor’s

comment concerning anything petitioner might or

might not do in the future, and that their only con-

cern should be whether petitioner was guilty of the

crimes charged in this case. The court of appeals’

finding that petitioner was not prejudiced by the

prosecutor’s comment warrants no further review.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F.. WELD

Assistant Attorney General

DEBORAH WATSON

Attorney

AUGUST 1987

W ov. 8. GOVERNMENT PRINTING OFFICE; 1987 181483 40477