JOSEPH THOMAS MANLEY, PETITIONER V. UNITED STATES OF AMERICA No. 90-5162 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. I) is reported at 893 F.2d 1221. JURISDICTION The judgment of the court of appeals was entered on February 6, 1990. A petition for rehearing was denied on April 9, 1990. The petition for a writ of certiorari was filed on June 5, 1990. The jurisdiction of the Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether Fed. R. Evid. 704(b) barred petitioner, who had asserted an insanity defense to an indictment charging him with bank robbery, from asking expert witnesses a hypothetical question that called for an opinion or inference regarding his ability, as a result of mental disease or defect, to appreciate the nature and quality or the wrongfulness of his acts. STATEMENT Following a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted on one count of bank robbery in violation of 18 U.S.C. 2113(a), and three counts of bank robbery with a firearm, in violation of 18 U.S.C. 2113(d). He was sentenced to 18-year, concurrent terms of imprisonment on each count. He was also ordered to make full restitution. 1. The evidence showed that petitioner robbed four banks between October 30 and November 25, 1987. He committed the robberies in essentially the same fashion: he would enter a bank near closing time, approach a teller (sometimes after waiting in a line of customers), and instruct her to give him all her large bills. He would warn her not to give him bait money or set off any alarms. While taking money from her, petitioner would demand money from other tellers as well. If they did not comply quickly enough for him, he would snatch the money from their hands or jump the counter and grab it from their money drawers. He would then run out of the bank. During three of the robberies, he threatened the tellers with a gun. At no time during any of the robberies did he display any difficulty in communicating with bank employees. Gov't C.A. Br. 2-7. Petitioner was arrested in a motel room from which police retrieved bait money from the fourth robbery and $18,400 in cash. Gov't C.A. Br. 7. Petitioner had about a pound of cocaine with him, for which he admitted having paid $12,000 in cash. Gov't C.A. Br. 11. 2. a. Petitioner testified at trial. He conceded that he had robbed the banks, that he had changed get-away cars and hotels for each of the robberies, and that he had shaved his moustache after the first two robberies. Gov't C.A. Br. 11-12. His defense was that he had been insane when he committed these crimes. He said that he suffered from a mental illness known as bipolar disorder (manic depression) for which he required lithium to remain rational. He claimed that he had not taken lithium for two years before the first robbery, and that he committed the robberies out of an uncontrollable desire to put himself in a position where someone would kill him. Ibid. b. Petitioner called several witnesses, including family members and social workers, who testified about his experience with bipolar disorder. Gov't C.A. Br. 8-11, 16-17, 24-25. In addition, he called Dr. Mary Frenzel, a clinical psychologist who had been his therapist at a correctional facility since 1988. Gov't C.A. Br. 8. Qualified as an expert, Dr. Frenzel explained that bipolar disorder is characterized by mood swings between manic and depressed phases, and that it can be controlled with medication. Gov't C.A. Br. 8, 16. During her testimony, the following colloquy took place: Q: Let me ask you a hypothetical question: An individual who is diagnosed as having a bipolar disorder which is manifested by someone who has the suicidal ideations that you referred to, who has used controlled substances, has demonstrated mood swings, there is a family history of depression, manic/depressive or bipolar, would that person -- well is the bipolar disorder, would that be considered a severe mental disorder or defect? A: It is a major mental illness, yes, serious. Q: And would that person as described be able to appreciate the nature and quality or the wrongfulness of their actions? The prosecutor: Objection: 704(b), Your Honor. Defense counsel: Hypothetically. The court: Sustained. 893 F.2d at 1222. Dr. Frenzel next testified that although she had determined that petitioner experiences depression, she was unclear about whether he actually had bipolar disorder because, on the 26 occasions they had met, she had never seen him have the mood swings characteristic of that disorder. 3 R. 132, 133. Petitioner also called Dr. Adolfo Vilasuso, a psychiatrist at the correctional facility who had first begun treating him about ten years earlier when he was imprisoned for bank robbery. 4 R. 207; Gov't C.A. Br. 10, 17-19. Defense counsel asked the court if he could begin Dr. Vilasuso's testimony "with a hypothetical and ask him a hypothetical opinion on the ultimate issue." 4 R. 178. Specifically, counsel wanted to pose to Dr. Vilasuso the same hypothetical that he had posed to Dr. Frenzel, which he admitted tracked the language of the insanity defense set forth in 18 U.S.C. 17(a). 4 R. 178-180. /1/ The court denied the request, explaining that, if the hypothetical "isn't based on your client, it is irrelevant; and if it is based on your client, 704(b) simply bars it." 4 R. 179. /2/ Dr. Vilasuso testified that petitioner had bipolar disorder, a severe mental disease or defect that can impair thinking, behavior, and the ability to plan, but that can be controlled with lithium. Gov't C.A. Br. 10-11, 25. Dr. Vilasuso admitted that he did not know what petitioner had said or done during the robberies, or whether petitioner had tried to change his appearance thereafter. 4 R. 201-203. c. On rebuttal, the government introduced evidence of an escape attempt by petitioner en route to his arraignment. Petitioner told the agents who had foiled the attempt that it was his job to get away and their job to stop him. Gov't C.A. Br. 12. The government also called Dr. Albert C. Jaslow, a psychiatrist whom the court appointed to examine petitioner after he indicated his intention to raise the insanity defense. Dr. Jaslow explained that people with bipolar disorder may have periods of remission during which there are no active symptoms of either the depressed or manic phases, and that even when a person is in one or the other phase, the level of disturbance can range from extreme to mild. Dr. Jaslow accepted the diagnosis of bipolar disorder in petitioner's case, but -- based upon his review of the bank surveillance films, the tellers' statements, and petitioner's efforts to avoid detection -- he concluded that petitioner had demonstrated control and judgment in carrying out the robberies as he did, and that his behavior was inconsistent with active symptoms of either phase. 4 R. 310-314; Gov't C.A. Br. 12-13. 4. The court of appeals affirmed. 893 F.2d 1221-1225. The court rejected petitioner's argument that the hypothetical nature of the question that he had been precluded from asking his expert witnesses, coupled with its assumption of facts not yet in evidence, exempted it from Fed. R. Evid. 704(b). Id. at 1223. Characterizing this argument as "formalistic" (ibid.) the court found that the question "was specifically structured to elicit the expert's opinion on the ultimate legal issue in the case, the legal accountability of (petitioner)." Id. at 1225. Thus, the fact that it had been framed as a hypothetical was "immaterial." Ibid. The question "functioned almost as an outline for petitioner's entire case," inasmuch as he subsequently elicited testimony from Dr. Frenzel and others tending to prove each of its underlying assumptions, and effectively identifying himself as the person described in it. Id. at 1224. Moreover, it "directly tracked the language of the insanity statute." Id. at 1225. Accordingly, the court ruled that petitioner had been properly barred from using "his thinly veiled hypothetical" (id. at 1224) as "a vehicle to circumvent the clear mandate of Rule 704(b)." Id. at 1223. ARGUMENT Petitioner's sole contention (Pet. 13-25) is that the district court erred when it barred his hypothetical question on insanity under Fed. R. Evid. 704(b). 1. Petitioner concedes (Pet. 15) that his hypothetical called for an opinion on the ultimate issue in the case, i.e., an opinion as to whether or not he had "the mental state or condition constituting an element" of his defense to the crimes charged (Fed. R. Evid. 704(b)). Expert testimony that states an opinion or inference on such ultimate issues is barred by Rule 704(b), which in terms reserves those issues "for the trier of fact alone." Petitioner also concedes (Pet. 18) that one of Congress' purposes in enacting Rule 704(b) was to avoid usurpation of the jury's "function of determining whether the defendant was legally responsible for his acts" by "psychiatric experts," who would confuse the jury by "drawing different legal conclusions from the same set of facts." See S. Rep. No. 225, 98th Cong., 2d Sess. 230 (1984) (Rule 704(b) is intended to limit psychiatric experts "to presenting and explaining their diagnoses, such as whether the defendant had a severe mental disease or defect and what the characteristics of such a disease or defect, if any, may have been"). Nevertheless, petitioner claims (Pet. 18-19, 24) that his hypothetical question was proper because it "avoided the pitfalls" that prompted Congress to enact Rule 704(b). In his view, the hypothetical was "non-specific" (Pet. 24) to him, and did not offend the Rule because the jury was still permitted to decide whether the underlying assumptions of the hypothetical had been proven, and whether to accept or reject the conclusion drawn by the psychiatrist. As the court of appeals correctly observed, however, petitioner's "reliance on the form of his question is misplaced. The crux of this issue is not (his) use of a thinly veiled hypothetical but rather (his) attempt to elicit the expert's opinion on the ultimate issue in the case." 893 F.2d at 1224. Contrary to petitioner's suggestion (Pet. 18-19), the fact that a court might permit hypothetical questions when they will assist the trier of fact in resolving subsidiary issues is no justification for ignoring Congress' decision to bar categorically those questions -- hypothetical or otherwise -- that call for an expert opinion on an accused's sanity when sanity is an ultimate issue in the case. 2. a. Petitioner's attempt to find support for his position in United States v. Davis, 835 F.2d 274 (11th Cir.), cert. denied, 487 U.S. 1219 (1988), and United States v. Edwards, 819 F.2d 262 (11th Cir. 1987), is unavailing. /3/ In Davis, the district court asked a psychologist whether a person diagnosed with multiple personalities would be able to understand what he was doing. 835 F.2d at 276. The court of appeals ruled the question permissible, since it merely sought an explanation of the disease and its typical effect on a person's mental state; it did not call for an opinion on the defendant's ability to conform his conduct to the law at the time he committed the crime. Ibid. Davis also involved a hypothetical question by the prosecutor, which tracked the facts of the robbery and sought an opinion as to whether such behavior was indicative of an anti-social personality. Ibid. That question was also ruled proper on appeal, because it simply called for an opinion as to whether the defendant's behavior was consistent with a particular condition, while allowing the jury to decide whether that condition rendered the defendant insane at the time of the crime. Id. at 276-277. In Edwards, the ultimate legal issue was whether the defendant "lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." 819 F.2d at 265. The court of appeals ruled proper a question that the prosecutor had asked of a psychiatrist on rebuttal. The question concerned aspects of the defendant's life that might have led to depression. The court noted that the doctor's responses "offer no conclusions at all" about the defendant, but merely explained why his behavior did not necessarily indicate an active manic state. Ibid. In short, the Eleventh Circuit's decisions in Davis and Edwards, in which the testifying experts were not asked to give their opinions on the ultimate legal issues in those cases, lend no support to petitioner's claims. b. Petitioner fares no better under the cases he cites from other circuits. For example, petitioner relies (Pet. 20) on United States v. Cox, 826 F.2d 1518, 1524 (6th Cir. 1987), cert. denied, 484 U.S. 1028 (1988), for the proposition that courts have long taken a liberal approach toward admitting evidence on the issue of insanity. However, to the extent that Cox involved a psychiatric opinion on the defendant's sanity, that opinion was held not barred by Rule 704(b) precisely because "the ultimate issue of Cox's mental state was not his sanity or insanity, but his intent" to commit the crime. Ibid. The Sixth Circuit expressly acknowledged that expert opinions as to whether an accused had the mental state or condition constituting an element of a defense are impermissible under Rule 704(b). Ibid. Petitioner's reliance (Pet. 21-22) upon United States v. Porter, 842 F.2d 1021 (8th Cir. 1988), is equally misplaced. There, the Eighth Circuit upheld the prosecutor's questioning of a defense witness as to the defendant's sanity on the ground that the defense had opened the door to such testimony. Id. at 1025. The 704(b) issue in the instant case arose in an entirely different procedural context. /4/ 3. Even if the district court's barring of petitioner's hypothetical question were error, that error would have been harmless because petitioner nevertheless made a thorough presentation of his insanity defense to the jury. As defense counsel conceded at trial (4 R. 178-179), Dr. Frenzel had testified "in detail about what a bipolar disorder was, the effect on the person it has, the genetic component that runs in the family, (and) the effects that it has on the cognitive or the thought processes." Dr. Frenzel also testified that bipolar disorder was a major mental illness, and that petitioner experienced depression for which had been prescribed medication with positive results. 3 R. 130-136. Dr. Vilasuso testified that petitioner had bipolar disorder, which he described as a severe mental disease or defect that can impair thinking and judgment due to mood changes. He also testified that as long as petitioner takes lithium he is rational and coherent. 4 R. 184-185, 189-190, 193-194. In addition to the doctors' testimony, petitioner himself testified about his condition and introduced testimony from family members and social workers about his mood swings. Gov't C.A. Br. 25-26. Clearly, the jury rejected petitioner's insanity defense not because of the district court's 704(b) ruling, but because of the strength of the government's case, which was based upon uncontroverted evidence of the controlled and premeditated manner in which petitioner carried out the robberies and sought to avoid detection and prosecution. Thus, petitioner was not unfairly prejudiced by the ruling. 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 VICKI S. MARANI Attorney SEPTEMBER 1990 /1/ 18 U.S.C. 17(a) provides: 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 the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. /2/ Fed. R. Evid. 704(b) provides: 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 defense thereto. Such ultimate issues are matters for the trier of fact alone. /3/ Even if those cases were inconsistent with the instant decision, they would merely reflect an intra-circuit conflict that does not warrant review by this Court. See Wisniewski v. United States, 353 U.S. 901 (1957). /4/ Petitioner also relies on United States v. Gipson, 862 F.2d 714 (8th Cir. 1988). See Pet. 22-23. Gipson involved testimony from competing psychiatrists as to the defendant's mental state when he committed the crime. The court rejected a 704(b) challenge to the testimony of the government's expert because it did not contain "legal conclusions" as to whether the defendant had a specific intent to commit the crime. The court also determined that the testimony was independently admissible as fair rebuttal to defense testimony on the point. Id. at 716-717.