WALLACE RUSSELL WHITEHEAD, PETITIONER V. UNITED STATES OF AMERICA No. 89-7606 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 432-436) is reported at 896 F.2d 432. JURISDICTION The judgment of the court of appeals was entered on February 22, 1990. The petition for a writ of certiorari was filed on May 21, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court properly refused to instruct the jury on the affirmative defense of insanity where the court determined that no reasonable juror could conclude that petitioner had carried his burden of demonstrating insanity by clear and convincing evidence. STATEMENT After a jury trial in the United States District Court for the District of Arizona, petitioner was convicted of bank robbery, in violation of 18 U.S.C. 2113(a). He was sentenced to a twelve-year term of imprisonment, to be followed by three years' supervised release conditioned upon his participation in drug counseling and treatment and upon his paying restitution to Citibank of the stolen funds. The court of appeals affirmed. Pet. App. 432-436. 1. The evidence at trial, the sufficiency of which is not challenged, showed that petitioner entered a Citibank branch bank in Tempe, Arizona, on April 12, 1988, demanded that a bank teller hand over money, and fled with $604. Pet. App. 433. The robbery was recorded on bank surveillance photographs and petitioner was identified as the robber by his brother and sister. Ibid. The sole defense offered by petitioner was that he was legally insane at the time of the robbery. His key witness, Dr. Brian Yee, an Arizona psychologist experienced in treating patients with PostTraumatic Stress Disorder (PTSD), diagnosed petitioner as suffering from PTSD as a result of a traumatic Vietnam War experience involving the death of innocent children. Pet. App. 433 & n.2. Dr. Yee testified, however, that the PTSD symptoms were "not necessarily" manifesting themselves on the date of the robbery (Gov't C.A. Br. 7 (quoting RT 84)) and went on to state twice that it would be "totally speculation" to opine how PTSD had manifested itself that day. Pet. App. 434. Dr. Yee further acknowledged that even a person suffering from PTSD would be aware of his actions in entering a bank and demanding and receiving money from the teller. Gov't C.A. Br. 9-10. The district court decided there was insufficient evidence to instruct the jury on the insanity defense, and therefore told the jury to disregard the evidence of petitioner's "mental disorders and drug usage." Pet. App. 434. The jury subsequently returned a guilty verdict. Ibid. 2. The court of appeals affirmed. Pet. App. 432-436. In accordance with the Eleventh Circuit's opinion in United States v. Owens, 854 F.2d 432 (1988), the court held that since petitioner had the burden under 18 U.S.C. 17 of proving his insanity by "clear and convincing" evidence, the issue should be submitted to the jury only if the district court determined that a reasonable juror could find that petitioner had carried this burden. Pet. App. 434-435. Reviewing the record de novo, the court concluded that "(a)lthough Dr. Yee found it possible that some of (petitioner's) symptoms were present that day, no reasonable fact finder could view his testimony as establishing with convincing clarity that (petitioner) could not appreciate the nature or wrongfulness of the robbery." Pet. App. 435. ARGUMENT Petitioner does not contest the determinations of the district court and the court of appeals that he failed to introduce clear and convincing evidence of insanity. He contends (Pet. 6-8) only that he was entitled to a jury instruction on any defense having "some foundation in the evidence, even though the evidence may be weak." Pet. 7. This claim does not merit further review. The court of appeals properly rejected petitioner's argument as inconsistent with the Insanity Defense Reform Act of 1984, Pub. L. No. 98-473, Section 402, 98 Stat. 2057 (currently codified at 18 U.S.C. 17). That Act restricts the availability of the insanity defense to federal crimes in several significant ways. First, a defendant can successfully assert an insanity defense only by showing that "as a result of a severe mental disease or defect, (he) was unable to appreciate the nature and quality or the wrongfulness of his acts." 18 U.S.C. 17(a); see United States v. Freeman, 804 F.2d 1574, 1575 (11th Cir. 1986). Second, unlike prior decisional law -- which required the government to prove sanity beyond a reasonable doubt once a federal defendant properly raised the issue (see Davis v. United States, 160 U.S. 469 (1895)) -- the Act now places the burden of "clear and convincing" proof upon the defendant to show insanity. 18 U.S.C. 17(b); see Freeman, 804 F.2d at 1575. This Court has recognized that "a higher burden of proof should have a corresponding effect on the judge when deciding whether to send the case to the jury." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); see also id. at 252 ("the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits"). As the Court noted there, the inquiry "is no different from the consideration of a motion for acquittal in a criminal case, where the beyond-a-reasonable-doubt standard applies and where the trial judge asks whether a reasonable jury could find guilt beyond a reasonable doubt." Ibid. Thus, the district court in this case properly considered that a defendant's sanity is no longer an element of a crime that the government must prove, but is instead an affirmative defense that the defendant must demonstrate by "clear and convincing evidence." 18 U.S.C. 17(b). Allowing a defendant who admittedly has not introduced this requisite quantum of evidence nevertheless to submit the issue to the jury, in the apparent hope that the jury will act irrationally and acquit him even though he is guilty beyond a reasonable doubt of all elements of the offense, would upset the limited role Congress provided for the insanity defense. Accord United States v. Owens, 854 F.2d 432, 434-436 (11th Cir. 1988). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General SEAN CONNELLY Attorney OCTOBER 1990