United States v. Wescott

                      United States Court of Appeals,

                             Eleventh Circuit.

                                  No. 94-2759.

          UNITED STATES of America, Plaintiff-Appellee,

                                       v.

           Stuart Martin WESTCOTT, Defendant-Appellant.

                                  May 24, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 94-3-CR-OC-10), Wm. Terrell Hodges,
Judge.

Before BIRCH, Circuit Judge, GODBOLD, Senior Circuit Judge, and
O'KELLEY*, District Judge.

     O'KELLEY, District Judge:

     Defendant-appellant Stuart Martin Westcott appeals pretrial

rulings   of    the    district    court    regarding   evidence   and   jury

instructions.         Defendant entered a conditional plea, pleading

guilty to two counts of falsely pretending to be a Special Agent of

the United States Secret Service, while reserving his right to

appeal the challenged pretrial rulings.

     The main issue on appeal is whether the district court abused

its discretion in ruling that, if defendant introduced certain

psychiatric testimony, the court would instruct the jury regarding

the insanity defense.       We conclude that the district court did not

abuse its discretion in prohibiting defendant from admitting the

proffered testimony without an insanity defense instruction.

                                      FACTS

     Defendant Westcott was charged with two counts of falsely

     *
      Honorable William C. O'Kelley, U.S. District Judge for the
Northern District of Georgia, sitting by designation.
representing himself to be a United States Secret Service Agent, in

violation of 18 U.S.C. § 912.    The incidents giving rise to the

charges occurred on January 5 and 6, 1994.

     Pursuant to Rule 12.2(a) and (b) of the Federal Rules of

Criminal Procedure, defendant timely filed notice of his intent to

rely on the insanity defense and of his intent to introduce expert

testimony relating to mental disease or defect.    On February 24,

1994, at a status conference before the district court, defendant

withdrew the notice of intent to rely on a defense of insanity,

intending to use expert psychiatric testimony only to demonstrate

that he lacked the necessary mens rea for the specific intent crime

with which he was charged.    The United States filed a motion     in

limine to prohibit or limit defendant's use of expert testimony.

     On March 9, 1994, the district court held a hearing on pending

motions in limine. Defendant proffered the testimony of Dr. Ernest

Miller, a psychiatrist retained by defendant for the purpose of

examining defendant.   Dr. Miller testified that defendant suffered

from bipolar disorder and that, due to altered brain chemistry,

defendant believed himself to be a United States Secret Service

Agent.   When examined by defense counsel, Dr. Miller testified:

     Q: Now, Mr. Westcott's accused of representing himself to be
     a Secret Service Agent back in January 5th and January 6th of
     this year and attempting to have motel clerks accept his
     personal check for payment of a motel room. How does that—or
     does his representation that he was a Secret Service agent,
     does that relate in any way to his mental condition at the
     time?

     A: Yes.   In my opinion it was a—this misidentification of
     himself, which I think he truly believed himself to be a
     member of the Secret Service, was a product of the altered
     brain chemistry which is associated with this genetically
     related metabolic defect, the—which causes what we, what we
     have labeled bipolar disorder to manifest itself.
          He—he saw himself as a Secret Service agent only because
     his brain chemistry alters his ability to perceive himself
     correctly.

     Q: Are you saying that Mr. Westcott did not know that he was
     lying? Assuming that he's not a Secret Service agent. He's
     not.   Are you saying that Mr. Westcott didn't understand,
     didn't know that he really wasn't a Secret Service agent?

     A: In my opinion the patient believed himself to be a Secret
     Service agent and connected in some manner with the
     government, the Treasury Department and/or Secret Service.

                       *   *    *   *   *   *

     Q: Could a person suffering from Mr. Westcott's mental
     disease, in the condition he was at the time of the charged
     acts, be able to form or to have what the law refers to as
     criminal intent in your opinion?

     A: No. My opinion—his mental condition was such that he could
     not form the intent.

     Q: Could a person, such a person suffering from the disease
     Mr. Westcott suffered and the condition he was in at the time,
     be said to knowingly and willfully commit the crime that he's
     charged with committing?

     A: No.

     Q: Could you briefly explain to the Court why not?

     A: He truly believed himself to be a representative of the
     United States government in one of those agencies which I
     mentioned. He believed this because of a state involuntarily
     placed upon him by way of his genetics and other features
     which factor into the development of bipolar disorder.

          As a result of this, he was under the illusion, slash,
     delusion that he was a representative of the United States
     government, and the representations he made, he truly believed
     and did not—that these were not fabrications or, or designs on
     his part in order to manipulate others to gain a profitable
     end, or something of that sort.

Dr. Miller was questioned by the trial judge:

     THE COURT:   All right.   Assume for the purpose of my next
     question then that the term "insanity" means a severe mental
     disease or defect as a result of which one is unable to
     appreciate the wrongfulness of his acts.

     THE WITNESS:   Yes, sir.
     THE COURT: All right. How does that definition of "insanity"
     differ, if at all, from the opinions you have given here
     concerning Mr. Westcott's mental state on or around January 5,
     1994?

     THE WITNESS: There is no bottom line difference as I perceive
     it, Your Honor.

     On the basis of Dr. Miller's testimony, defendant requested

that the jury be instructed that defendant's mental condition could

be considered in determining whether the government had proven the

required element of specific intent, and that no instruction be

given as to the affirmative defense of insanity.                On March 21,

1994, prior to the time opening statements were to be given, the

district    court     ruled   that   Dr.   Miller's   proffered    testimony

constituted evidence of insanity, as defined by the Insanity

Defense Reform Act, 18 U.S.C. § 17.         Accordingly, the court ruled

that, if defendant introduced Dr. Miller's testimony, the court

would instruct the jury regarding the affirmative defense of

insanity.

     Defendant then entered a conditional guilty plea, reserving

the right to appeal the district court's ruling with respect to Dr.

Miller's testimony.

                               LEGAL ANALYSIS

I. Standard of Review

      Questions of law are subject to de novo review.                 United

States v. Cameron, 907 F.2d 1051, 1061 (11th Cir.1990). A district

court's    decision    regarding     the   admissibility   of    psychiatric

evidence is generally subject to the abuse of discretion standard

of review.    Id.     A district court's refusal to give a requested

jury instruction is reviewed under an abuse of discretion standard.
United States v. Maduno, 40 F.3d 1212, 1215 (11th Cir.1994), cert.

denied, --- U.S. ----, 116 S.Ct. 123, 133 L.Ed.2d 72 (1995)

(citation omitted).      Reversible error occurs if the requested

instruction was substantially correct and not addressed by other

charges which were given, and if failure to give the instruction

seriously impaired the defendant's ability to present an effective

defense.   Id.

II.   Did the district court abuse its discretion in ruling
      defendant's proffered psychiatric testimony to be admissible
      only if accompanied by an instruction regarding the insanity
      defense?

       The district court based its ruling regarding Defendant's

proffered expert psychiatric testimony on the Insanity Defense

Reform Act of 1984, 18 U.S.C. § 17.    The Insanity Defense Reform

Act provides a statutory definition of insanity and establishes

that insanity is an affirmative defense which the defendant must

prove by clear and convincing evidence.    The Act also eliminates

all other affirmative defenses or excuses based upon mental disease

or defect.   Through the Act, Congress intended to prohibit the

presentation of evidence of mental disease or defect, short of

insanity, to excuse conduct.     United States v. Pohlot, 827 F.2d

889, 897 (3d Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710,

98 L.Ed.2d 660 (1988).

       The Act does not, however, completely eliminate the use of

mental disease or defect evidence outside of attempts to establish

the affirmative defense of insanity.      The Act does not, by its

terms, prohibit psychiatric evidence relevant to issues other than

excuse or justification of otherwise criminal conduct.        If a

subjective state of mind is an element of a crime, evidence
regarding the existence or absence of that state of mind is

evidence    relevant    to   whether    a   crime      was    in   fact   committed.

Psychiatric evidence which negates mens rea thus negates an element

of the offense rather than constituting a justification or excuse.

United States v. Cameron, 907 F.2d 1051, 1065 (11th Cir.1990). The

plain language of the Act, as well as its legislative history,

indicates that Congress did not intend to exclude psychiatric

evidence which negates the mens rea element of a charged crime.

Id. at 1064-65.        Thus, in     Cameron, this court held that the

Insanity    Defense    Reform     Act   does     not    bar    the   admission      of

psychiatric evidence to negate mens rea.                Id. at 1062.

       The Cameron court noted that the use of psychiatric evidence

to negate mens rea "may easily slide into wider usage that opens up

the jury to theories of defenses more akin to justification."                       Id.

at 1067 (quoting Pohlot, 827 F.2d at 904-05).                      Therefore, only

psychiatric evidence which supports a "legally acceptable theory of

lack of mens rea " should be admitted.            Id. (emphasis in original).

Psychiatric evidence is admissible to negate mens rea when the

evidence focuses on the defendant's specific state of mind at the

time the offense was committed.              Id. at 1067.          Evidence that a

defendant    lacks     the   capacity       to   form    mens      rea    is   to   be

distinguished from evidence that the defendant actually lacked mens

rea.   Pohlot,   827 F.2d at 905.           While the two may be logically

related, only the latter is admissible to negate the mens rea

element of an offense.        Id.

       In the instant case, defendant Westcott was charged with a

specific intent crime.       Dr. Miller's proffered testimony provides
evidence both that defendant lacked the capacity to form the intent

to commit the crime with which he was charged, and that defendant

actually lacked such intent. Dr. Miller testified that defendant's

"mental condition was such that he could not form the intent"

required for the charged crime.       Dr. Miller further stated that

defendant actually "believed himself to be a Secret Service agent"

and truly believed the representations he made which form the basis

of the charges. Dr. Miller's testimony thus focuses on defendant's

state of mind at the time of the allegedly criminal incidents, and

therefore supports the contention that defendant actually lacked

the mens rea required for the charged specific intent crime of

impersonating a United States Secret Service Agent.

     Accordingly, under Cameron, Dr. Miller's testimony constitutes

evidence admissible to negate the mens rea element of the charged

crime.   And, the district court ruled Dr. Miller's testimony to be

admissible.      Defendant argues that the district court erred in

refusing   his   proposed   jury   instruction   regarding   psychiatric

evidence and mens rea.      Notably, however, there is no evidence in

the record that the district court intended to give a jury charge

which prevented the jury from considering evidence of mental

abnormality in determining whether the state had proven its case.

See Martin v. Ohio, 480 U.S. 228, 233-34, 107 S.Ct. 1098, 1101-02,

94 L.Ed.2d 267 (1987) (noting the dubious constitutionality of

instructing a jury to consider self-defense evidence only in regard

to the affirmative defense of self-defense and not in regard to

whether the government established its case).        In this case, the

district court merely ruled that Dr. Miller's testimony was only
admissible if accompanied by a jury instruction regarding the

affirmative defense of insanity. In so doing, the court noted that

its decision was made "in view of especially Dr. Miller's testimony

that it's his opinion that, due to mental disease or defect at the

time, the defendant was unable to appreciate the wrongfulness of

his conduct, which is precisely the definition of "insanity'

provided by Section 17 of Title 18."            Dr. Miller testified that

Defendant's mental condition which caused him to lack the mens rea

required for the charged crime also caused Defendant to meet the

test for insanity, as defined by the Insanity Defense Reform Act.

     Defendant objects to the court's ruling that Dr. Miller's

testimony was only admissible if accompanied by a jury instruction

regarding the affirmative defense of insanity.            Defendant's desire

to argue that he lacked mens rea rather than that his conduct was

excused by virtue of insanity is strategically warranted.                    The

government bears the burden of proving beyond a reasonable doubt

that a defendant had the required specific intent to commit a

charged   crime,     yet   the   defendant     is   required   to    prove   the

affirmative defense of insanity by clear and convincing evidence.

See United States v. Moody,         763 F.Supp. 589, 604 (M.D.Ga.1991),

aff'd, 977 F.2d 1420 (11th Cir.1992), cert. denied, 507 U.S. 944,

113 S.Ct. 1348, 122 L.Ed.2d 730 (1993).             Moreover, a jury finding

of "not guilty by reason of insanity" results in civil commitment

proceedings, while a finding that mens rea is lacking results in

acquittal.   See id.

     We   conclude    that   the    district    court   did    not   abuse   its

discretion   in    ruling    that    Dr.     Miller's   testimony     must    be
accompanied by an insanity defense instruction.                  In enacting the

Insanity Defense Reform Act, Congress changed the burden and

standard of proof to require the defendant to prove the affirmative

defense of insanity by clear and convincing evidence. Cameron, 907

F.2d at 1061.    Congress did so based on testimony regarding the

difficulty of proving a defendant sane beyond a reasonable doubt.

Pohlot, 827 F.2d at 900.             In this case, the district court

determined    that   allowing    defendant        to     present    Dr.   Miller's

testimony only to negate mens rea would contravene the requirements

of the Insanity Defense Reform Act.         The court was persuaded by the

fact that Dr. Miller's testimony did not relate only to mens rea;

Dr. Miller also testified that defendant's mental condition met the

definition of insanity under the Insanity Defense Reform Act.

Therefore, admitting Dr. Miller's testimony solely as mens rea

evidence would allow defendant to present insanity defense evidence

while avoiding the burden of proof mandated by the Insanity Defense

Reform Act.

     Defendant   also   argues       that   the    district        court's   ruling

regarding the insanity defense instruction impermissibly imposed an

insanity defense on him.        Defendant relies on             United States v.

Marble, 940 F.2d 1543 (D.C.Cir.1991), for the proposition that the

insanity   defense   cannot     be   imposed      over    the    objection    of   a

competent defendant. Id. at 1548. Yet defendant's reliance on the

Marble case is misplaced.       In Marble, the D.C. Circuit affirmed the

district court's decision not to impose the insanity defense

against the defendant's will.         In the instant case, however, the

district court did not insist that the insanity defense be raised
after defendant had waived the defense.         Rather, defendant sought

to present evidence of insanity without assuming the burden of

proof required by the Insanity Defense Reform Act.              The district

court ruled defendant's proffered evidence to be admissible when

accompanied by a proper jury instruction.         The district court did

not improperly impose a defense on defendant.

                               CONCLUSION

     Because   defendant's     proffered     psychiatric   testimony      both

negates mens rea and provides support for an insanity defense, the

district   court   did   not   abuse   its   discretion    in    ruling    the

psychiatric testimony to be admissible only if accompanied by an

insanity   defense   instruction.      Accordingly,    the      judgment    of

conviction is AFFIRMED.