United States v. Schneider

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1281

UNITED STATES OF AMERICA,

Appellee,

v.

LAWRENCE G. SCHNEIDER,

Defendant, Appellant.

The opinion of this court issued April 17, 1997, should be
changed as follows:

Page 18, line 9: Change the word inference to the word
interference.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1281

UNITED STATES OF AMERICA,

Appellee,

v.

LAWRENCE G. SCHNEIDER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

Before

Boudin, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Lynch, Circuit Judge.

Robert B. Mann with whom Mann & Mitchell was on brief for

appellant.
Richard W. Rose, Assistant United States Attorney, with whom

Sheldon Whitehouse, United States Attorney, was on brief for the

United States.

April 17, 1997

BOUDIN, Circuit Judge. Lawrence Schneider was convicted

on multiple counts of mail and wire fraud and now appeals,

presenting two difficult issues. One concerns the district

court's refusal to allow Schneider's expert medical testimony

proffered as pertinent to his state of mind; the other

relates to the denial of Schneider's new trial motion based

on jury-questionnaire information about one of the jurors.

On both issues, we agree with the district court's outcome

and affirm.

What Schneider did was largely undisputed at trial,

although his state of mind was very much in dispute.

Schneider ran two businesses from his home in Warwick, Rhode

Island, engaged in buying and selling real estate and

restoration of old houses. In mid-1990, Schneider was under

financial pressure and unable to pay his bills. Starting in

May 1990 and continuing through October 1990, he ordered on

credit a variety of goods, including computer equipment and

jewelry, the total value of which exceeded $200,000.

Beginning shortly thereafter, Schneider began to resell

the same goods and pocket the money. Between June 1990 and

October 1990, Schneider placed 25 classified advertisements

in the Providence daily newspaper, offering to resell the

goods in question at deep discounts. He gave purchasers

false stories about the origin of the goods or how he

acquired them. Schneider paid nothing to his suppliers. The

government describes this as a classic "bust-out" scheme.

See, e.g., United States v. DeVincent, 632 F.2d 147, 149 (1st

Cir.), cert. denied, 449 U.S. 986 (1980).

In December 1994, Schneider was indicted and charged

with six counts of wire fraud and three counts of mail fraud

based on his use of such facilities in the conduct of his

scheme. 18 U.S.C. 1343, 1341. The government's theory of

fraud was that Schneider never intended to pay for the goods

but ordered them with the aim of reselling them immediately

and bilking the sellers. In addition, the government also

relied upon an affirmative misstatement, made on several of

Schneider's credit applications, that he had 35 employees,

which was untrue.

Schneider did not dispute the core events described by

the government, but argued that he did not have the requisite

specific intent to defraud. He pointed out that he had

businesses, a home and a good credit rating, so his behavior

made no sense as a rational criminal act; it followed, he

argues on appeal, "that his behavior is inexplicable absent

an understanding of the defendant's mental status." At

trial, he sought to introduce medical evidence to explain his

behavior.

The proffered evidence was testimony from two doctors.

One was Dr. Wartenberg, who specialized in internal medicine

and addiction medicine; he proposed to testify that

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Schneider's capacity and judgment were significantly impaired

by misprescription and overprescription of medical drugs

during the relevant period. A psychiatrist, Dr. Roth, was

also prepared to testify to impaired judgment, based on

chemical dependency and major depression with probable mania.

This testimony, of which more will be said later, was taken

as an offer of proof outside the presence of the jury.

In due course, the district judge ruled that the

testimony would not be admitted. The court's explanation is

summed up in the final sentences of a longer oral ruling:

It seems to me that the evidence does not suggest
that the Defendant did not act purposefully, that
to accept this evidence as a defense [of lack of]
mens rea manipulates the concept of intent beyond
the intent required and that under all the
circumstances, having considered all of the
evidence, the Court will sustain the government's
objection to any offer of that proof before the
jury and Defendant may have an exception.

As a preface to this conclusion, the district court described

in some length the opinion in United States v. Pohlot, 827

F.2d 889 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988),

discussing the pertinence of psychiatric testimony in a

murder-for-hire case.

After this evidentiary ruling, the case was tried in May

1995. The jury deadlocked on eight counts and acquitted on

one count. In October 1995, Schneider was retried on the

remaining eight counts. The district court stood by its

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earlier ruling that the medical testimony was not admissible.

This time the jury convicted on all eight counts.

Following trial, two jurors contacted the district

judge, expressing concerns about another member of the jury

panel. On inquiry, the district judge discovered that after

the verdict, the juror in question had said that she wanted

to get out of jury service because she was "mental." A

review of that juror's questionnaire revealed that the juror

had affirmatively answered the question: "Do you have any

physical or mental disability that would interfere or prevent

you from serving as a juror?" On the reverse side of the

questionnaire, the juror had written the following:

I have an upsetting emotional handicap
since my children have been with the DCYF
[a Rhode Island state agency], and the
strain is sometimes too great for me and
the walking to the bus stop especially in
inclement weather would be kind of hard
at this time. I am presently looking for
housing for my family.

After an investigation of the juror and a personal

interview by the district court, the court ruled that it was

"completely satisfied that the juror was competent and

mentally capable at the time of the trial . . . ." Schneider

nevertheless sought a new trial on the ground that he would

have used his peremptory challenges differently if he had

known about the information in the questionnaire. The

district court denied the motion.

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In due course, Schneider was sentenced to 33 months in

prison (he had a prior conviction for a "bust-out" offense

some years before), and was ordered to make restitution of

about $220,000. On this appeal, he claims as error the

refusal to admit the medical testimony; and he argues that a

new trial should have been granted because he could have used

a peremptory challenge to dismiss the juror if he had known

of the information in the questionnaire.

We begin with the harder of the two issues and ask

whether the district court erred in refusing to admit the

medical evidence. The standard of review depends upon what

has been decided: rulings of law are reviewed de novo while

review is typically deferential on so-called "mixed

questions." Bergersen v. Commissioner of Internal Revenue,

F.3d , 1997 WL 120530, at *5 (1st Cir. Mar. 21, 1997).

Here, a legal issue--the meaning of a federal statute--stands

at the threshold.

In 1984, Congress enacted the Insanity Defense Reform

Act, 98 Stat. 2057, redefining insanity and making it an

affirmative defense to be proved by clear and convincing

evidence. See 18 U.S.C. 17. The statute also states:

"Mental disease or defect does not otherwise constitute a

defense." Id. 17(a). Elsewhere, the government has argued

that this quoted language is meant to rule out any mental-

condition defense or testimony that does not reach the

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heights of a properly pleaded insanity defense. E.g.,

Pohlot, 827 F.2d at 890.

In this case, Schneider did not offer an insanity

defense, but he argues that his medical evidence is pertinent

in helping a jury decide whether he had the requisite state

of mind necessary for the offense charged. The government,

in turn, says that a number of courts have admitted

psychological evidence to negate specific intent but the

First Circuit has suggested otherwise;1 that the First

Circuit's view is consistent with the final sentence of the

statute just quoted; and that it is nevertheless unnecessary

to resolve the issue in this case because the evidence here

was not relevant in any event.

Aside from the final sentence of section 17(a), in

principle there should be no bar to medical evidence that a

defendant, although not insane, lacked the requisite state of

mind. As LaFave and Scott say:

The reception of evidence of the defendant's
abnormal mental condition, totally apart from the
defense of insanity, is certainly appropriate
whenever that evidence is relevant to the issue of
whether he had the mental state which is a
necessary element of the crime charged.

1Compare United States v. Cameron, 907 F.2d 1051, 1065-

66 (11th Cir. 1990), and United States v. Twine, 853 F.2d

676, 678-79 (9th Cir. 1988), with United States v. White, 766

F.2d 22, 24-25 (1st Cir. 1985), and United States v. Kepreos,

759 F.2d 961, 964 n.4 (1st Cir.), cert. denied, 474 U.S. 901

(1985).

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1 LaFave & Scott, Substantive Criminal Law 4.7, at 530.

The circuits that have considered the question have taken

this view. See United States v. Marenghi, 893 F. Supp. 85,

89 (D. Me. 1995) (collecting cases). After all, if state of

mind is a potential issue--as it is in most but not all

criminal cases--why should expert medical evidence be

excluded out of hand?

We doubt that the final sentence of section 17(a) was

intended to exclude mental-condition evidence short of

insanity. Pohlot canvassed the arguments and legislative

history at length, and concluded (1) that the statute does

not preclude a defendant from offering evidence to negate a

requisite state of mind, 827 F.2d at 903, but (2) that--apart

from such a negation--it does preclude any other new and

different defense of diminished responsibility to excuse or

mitigate the offense. Id. at 905-06.2 Pohlot's analysis

seems to us persuasive on both issues.

Similarly, our own decisions in White and Kepreos were

not intended to establish a general rule that mental-

condition evidence is always inadmissible except in relation

2Although phrases like "diminished responsibility" are
sometimes used to refer to evidence that negates intent, see

generally 1 LaFave & Scott, supra, 4.7, a different but

similarly named concept was developing in a few courts--prior
to the new federal statute--to excuse or lessen
responsibility, even where the impairment would not make out
an insanity defense or negate required intent. See, e.g.,

People v. Wolff, 394 P.2d 959, 976 (Cal. 1964).

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to insanity. In Kepreos, the court held that the specific

psychiatric testimony involved was misleading and of doubtful

utility, 759 F.2d at 964; in White, where no coercion defense

was offered, the court rejected psychiatric evidence that a

defendant engaged in a drug crime because "she was unable to

resist her mother's request for assistance . . . ." 766 F.2d

at 24. These cases largely turn upon their facts. See

Marenghi, 893 F. Supp. at 88-91.

Once past the threshold of section 17(a), the situation

becomes more difficult for the defendant. The specific

medical evidence offered may still be irrelevant to the

requisite intent, White, 766 F.2d at 24, or probative value

may be substantially outweighed by confusion or delay. Fed.

R. Evid. 403; Kepreos, 759 F.2d at 964. Finally, if the

evidence is expert testimony, it must meet the further

requisites of scientific reliability and helpfulness to the

jury. Fed. R. Evid. 702; Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 589-91 (1993).

In deciding such issues--relevance, confusion,

reliability, helpfulness--the district court has a

comparative advantage over an appeals panel. The issues

typically involve unique fact patterns and judgments of

degree, and the district judge is closer to the case. Thus,

so long as there is no misstatement of the legal standard and

the result reached is not clearly unreasonable, the district

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judge's ruling is usually respected. United States v. Shay,

57 F.3d 126, 132 (1st Cir. 1995).

Against this background, we return to the testimony in

this case. Dr. Wartenberg had examined Schneider for

approximately an hour and a half and reviewed his medical

records, including medicines prescribed for him over a three-

or four-year period. In his offer of proof, the doctor said

that the prescriptions were medically inappropriate and that

the drugs as prescribed "would impair intellectual function

in a variety of ways," produce blackouts, roller coaster

highs and lows, and permit misperception and delusion. Dr.

Wartenberg summarized his view as follows:

My opinion is that to a degree of
reasonable medical certainty that Mr.
Schneider's intellectual capacity,
cognitive function, ability to make
executive judgments and decisions would
have been impaired by that level of drug
prescribing.

On cross-examination, government counsel secured an

admission that Schneider during this period could engage in

"activity that is planned to carry out a purpose." Quite

properly, neither side asked Dr. Wartenberg the "ultimate"

question whether Schneider had intended to defraud, such

ultimate questions to experts now being forbidden as to

mental state in a criminal case under Fed. R. Evid. 704(b),

which is a companion amendment to section 17. See United

States v. Meader, 914 F. Supp. 656, 658 (D. Me. 1996).

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The expert psychiatrist, Dr. Roth, also offered

testimony after interviewing Schneider and examining records.

He said that Schneider suffered from chemical dependency and

"major depression with probable mania." He said also that

these conditions "impair[ed] . . . judgment." He declined to

express a view on Schneider's ability to form a purpose,

saying that he (Dr. Roth) was not there at the time, and that

terms like "purposeful" posed a metaphysical question.

As we read the district judge's ruling, he deemed the

medical testimony both irrelevant and misleading. Our own

view is that the evidence may have been relevant but only to

a limited degree, and that it had a substantial capacity to

mislead the jury. And we think that the district court

clearly would exclude the evidence under Fed. R. Evid. 403

even if told to view it as having limited relevance. To

remand, in order to make the district judge say this

explicitly, is a waste of time. Let us take these points in

turn.

Relevance, the ordinary starting point for

admissibility, Fed. R. Evid. 401, is a close issue. Here,

the government urged that Schneider had ordered the goods,

expecting never to pay for them but to resell them and pocket

the money and thereby "intended to deceive."3 Schneider's

3This, more precisely, is the "specific intent" element
that Schneider's evidence purported to negate. The fraud
charge in this case has several different elements (e.g., use

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answer was that he lacked this state of mind and the medical

evidence helped him support this view, that is (in the

language of the rule), that the medical testimony made his

intent to defraud "less probable than it would be without the

evidence." Fed. R. Evid. 401.

The sum of the doctors' evidence is that Schneider was

depressed, that he had impaired judgment (due to his

depressed state and overmedication), and that he was subject

to blackouts. This might not appear at first to go very far

in negating his capacity to deceive, especially as

Schneider's scheme continued over several months. This

explains the district court's view that the medical evidence

did not negate an intent to deceive but instead amounted to a

forbidden claim in mitigation.

Still, evidence may be "relevant" under Rule 401's

definition, even if it fails to prove or disprove the fact at

issue--whether taken alone or in combination with all other

helpful evidence on that issue. In the latter instance, the

judge could direct a verdict if the issue were essential, but

not against the defendant in a criminal case. Schneider's

best argument is, therefore, that his medical evidence did go

some distance to negate intent to deceive and so was

relevant.

of the mails) for which there may also be state of mind
requirements but they are not important here. See generally

2 Sand et al., Modern Federal Jury Instructions 44-5 (1996).

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Where evidence goes "some distance" but manifestly not

far enough, it may be tempting to say that it is not

relevant. Frankly, Pohlot appears to us to take this course

by ruling that the psychological evidence of impairment was

irrelevant because "by his own admission," Pohlot had

"finalized an agreement to have his wife murdered and this

`purpose' to hire someone to kill his wife was enough

regardless of whether he `psychologically . . . understood

the full consequences of this activity.'" 827 F.2d at 889.

But we have some doubt that this usage comports with

Rule 401's definition quoted above. Nor do we think it

helpful in a case like ours to ask, as Pohlot did, whether

the conduct was "purposeful." Pohlot said that the ordinary

mens rea requirement is satisfied "by any showing of

purposeful activity, regardless of its psychological

origins." 827 F.2d at 904. But it is quite possible

purposefully to order goods on credit, and later not pay for

them, without having an intent to deceive.

Pohlot's other theme is the capacity of evidence of this

kind to mislead. Congress raised the hurdle for an insanity

defense and barred a new diminished capacity defense that

courts were beginning to invent. Yet the evidence offered,

both here and in Pohlot, suggests that the defendant was

temporarily out of his mind (even though not insane under

section 17(a)) and that his crime was mitigated by his

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psychological condition. Such evidence tends to reintroduce

the very concepts that Congress wanted to exclude and thereby

to mislead the jury.

In weighing relevance against ruck under Rule 403. The

government does not now challenge the evidence as unreliable

under Daubert--only its pertinence to this case. Nor do we

propose to decide here the issue explicitly reserved in Shay,

namely, whether and when the judge may exclude otherwise

relevant expert evidence on the ground that it will not

"assist" the jury. See Shay, 57 F.3d at 132-33. It is

enough that exclusion of the evidence here under Rule 403 is

eminently justifiable.

The evidence, as we have said, is of limited relevance:

showing "impaired" judgment might help piece out a lack of

deceit claim but falls well short of sufficient proof. At

the same time, the expert testimony offered here could easily

mislead the jury into thinking that such a medical condition

amounts to temporary insanity or ameliorates the offense.

The instructions required here to guard the jury on this

score would likely have gone very far to eliminate any use

the evidence might otherwise have to the defendant.

Thus, we conclude that the district court was free to

exclude this evidence on the ground that its capacity to

mislead the jury substantially outweighed its limited

relevance. Since exclusion was permitted but not required,

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we could remand for an explicit finding under Rule 403.

Shay, 57 F.3d at 134. But given the district court's evident

view of the matter, our limited disagreement with the

district court's reasoning would hardly alter the district

court's desire to exclude the evidence. A remand would serve

no purpose. See United States v. Dolloph, 75 F.3d 35, 38

(1st Cir.), cert. denied, 116 S. Ct. 1866 (1996).

Although our concerns about such evidence are

considerable, we shrink from any generic rule that would

forbid the district courts from resolving admissibility case

by case. Offenses differ from each other; the medical

evidence, taken alone and in combination with other evidence,

is going to vary widely; and this is an area in which

everyone is still learning. In the spirit of Daubert, we

rely heavily on the wise superintendence of the trial court.

509 U.S. at 592-93. In this case we have no quarrel with how

it was exercised.

This brings us to Schneider's second claim of error,

namely, that the district court erred in refusing to grant a

new trial. The basis of the new trial motion was (so far as

pertinent here) that the juror questionnaire would, if

disclosed, have revealed mental or emotional problems

pertaining to the juror in question, perhaps prompting the

use of a peremptory challenge to remove the juror. Again, in

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considering the district court's action, our standard of

review depends upon what the district judge decided.

The district court ruled that Schneider had waived his

objection because he failed to move for disclosure of the

questionnaire answers prior to empanelment. We took such a

view in United States v. Uribe, 890 F.2d 554, 561 (1st Cir.

1989), but stopped just short of a definitive finding that

the Rhode Island federal juror selection plan permitted such

access to jury questionnaires. Id. In affirming, Uribe

relied heavily on the alternative ground that the defendant

had suffered no prejudice from the nondisclosure. Id. at

562.

On this appeal, the parties seek to litigate at length

whether Schneider did have effective access to the jury

questionnaires, which the governing statute treats somewhat

differently than jury lists.4 Neither the statute nor the

Rhode Island plan are crystal clear about access to

questionnaires. See 28 U.S.C. 1867(f); Davenport, 824 F.2d

at 1515. We have previously interpreted the statute not to

allow inspection of questionnaires "solely to aid in the voir

4See Jury Selection and Service Act of 1968, 28 U.S.C.

1861 et seq. Compare Test v. United States, 420 U.S. 28, 30

(1975) (per curiam) (litigants have "unqualified" right of
access to jury lists under 1867) with United States v.

Davenport, 824 F.2d 1511, 1514-15 (7th Cir. 1987)

(distinguishing juror lists from individual questionnaires
and holding that the latter were not available for
inspection).

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dire process." Jewell v. Arctic Enterprises, 801 F.2d 11, 13

(1st Cir. 1986).

Under these circumstances, we are reluctant to rest our

decision on waiver or forfeiture. Assuming arguendo that

Schneider might have sought access to the questionnaire based

on a showing of need, before trial he had no basis for such a

motion. This is not a case where, prior to empanelment, the

defendant knew or should have known of a potential problem

with a juror and failed to ask for the questionnaire. E.g.,

United States v. Aponte-Suarez, 905 F.2d 483, 492 (1st Cir.),

cert. denied, 498 U.S. 990 (1990).

On the other hand, Schneider has abandoned on appeal any

effort to show actual prejudice (e.g., by pointing to

characteristics of the juror that would likely have caused

her to take an adverse view of Schneider or to fall under the

sway of other jurors). Such contentions were made in the

district court but were rejected and are not now pursued.

Schneider's position instead is that prejudice is not

required, and he relies on our own statement in United States

v. Vargas, 606 F.2d 341, 346 (1st Cir. 1979):

[T]here is little doubt that if the court or
prosecution deprives a defendant of his right to
the effective exercise of peremptory challenges, it
would, without more, be grounds for a new trial.

In a number of cases involving interference with

peremptory challenges, the reviewing court has treated proof

of prejudice as unnecessary. See United States v. Annigoni,

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96 F.3d 1132, 1141 (9th Cir. 1996) (en banc) (collecting

cases). But such cases normally involve a deliberate denial

or interference. Without automatic reversal, such conduct

could rarely be corrected; by definition, lawyers use

peremptories where a challenge for cause will not work.

By contrast, a failure of the district court's screening

apparatus to uncover some piece of potentially useful

information in a raft of jury questionnaires is, if "error"

at all, a mistake of quite a different kind. At worst, such

a mistake might resemble the failure of the judge to ask

adequate voir dire questions, where we have insisted on a

showing of prejudice. United States v. Anagnos, 853 F.2d 1,

3-5 (1st Cir. 1988). See also 9A Wright & Miller, Federal

Practice & Procedure 2482 at 115 & n.8 (2d ed. 1995).

We need not try to draw a definitive line between cases

where a showing of prejudice is required and cases where it

is not, as this one so clearly falls on the former side of

the line. There was no direct interference with a peremptory

challenge, cf. United States v. Cambara, 902 F.2d 144, 147-48

(1st Cir. 1990), and no indication that useful information

was deliberately withheld. Here, as in Vargas (where a juror

withheld information), "[a] new trial [without a showing of

prejudice] would be a windfall for the defendant" without

much countervailing benefit. 606 F.2d at 346.

Affirmed.

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