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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