Ninth Not Crazy for Limitations on Defense Shrink: Christian and Defense Experts

Hon. Raymond C. Fisher

  A shrink finds a defendant suffers from psychosis, has probable delusions, and a borderline personality disorder, but the psych can’t testify as a defense expert on diminished capacity.

  Crazy? The Ninth thinks so, too. United States v. Christian, 2014 WL 1491887 (9th Cir. Apr. 17, 2014), decision available here.

Players: Decision by Judge Fisher, joined by Judge Berzon. (Good) concurring and dissenting decision by Judge Alarcón. Id. at *10-*11.

Facts: When Christian’s car was repossessed he was displeased with the inability of the police department to help. Id. at *2. So displeased, in fact, that he emailed threats to a police officer and to a prosecutor. Id. He was tried before a jury for emailing threats, in violation of 18 USC § 875(c). Id. at *3. 

  Before this federal trial (near the time the emails were sent), Christian had been evaluated by a psychologist for competency in unrelated state proceedings. Id. That psych considered Christian incompetent, diagnosed him with a psychosis, and recommended that he be sent to a facility for therapeutic care and treatment. Id. 

  Federal defense counsel noticed this psych as an expert to testify on diminished capacity. Id. The district court refused to allow this testimony, because of the different legal standards for competency and dim cap. Id. 

  With no psych evidence, a dim cap instruction was denied, and Christian was convicted. Id. at *2, *3.

Issue(s): Christian “argues that the district court should have allowed his expert, a psychologist who had earlier examined him for competency to stand trial, to testify regarding his diminished capacity defense and that he was entitled to a jury instruction on diminished capacity even without such expert testimony.” Id. at *1.

Held: “[T]he district court abused its discretion by excluding Christian’s expert solely because he examined Christian for competency rather than for diminished capacity. Instead of focusing exclusively on the different legal standards governing the conclusions the expert was asked to draw, the district court should have evaluated whether the substance of the expert’s testimony would have helped the jury decide whether Christian could form the specific intent to threaten the recipients of his emails . . .” “[T]he court should not have excluded such testimony without conducting a voir dire or otherwise giving the expert an opportunity to explain how he could provide meaningful and relevant testimony on diminished capacity from the competency evaluation that he had conducted . . . We . . . vacate Christian’s conviction and remand. . .” Id. at *2.

Of Note: Judge Fisher provides a thoughtful analysis of the true focus of the inquiry in this case – the relevance of the omitted testimony. Id. at *5-*7. Christian is one of the best opinions on defense expert witnesses to come out of the Ninth: it is well worth a close read. In addition to the valuable core holding, Judge Fisher sets forth a great new rule for the Ninth: “We . . .  hold that the rule requiring a new trial when a district court erroneously admits prejudicial expert testimony in a civil trial, . . . also applies to the erroneous exclusion of expert testimony from a criminal trial.” Id. at *2. (internal citation and quotations omitted). There is, admittedly, a caveat or two to this new rule. See id. at *7 & n.3. Nonetheless, very welcome new law.

How to Use: There are few things more aggravating than a court who won’t allow a clean defense offer of proof. That happened here: “the district court several times interrupted defense counsel’s attempt to make a more complete offer of proof.” Id. at *4. 

  Fortunately, the Ninth dislikes this practice, too. In Christian, the interruptions helped the defense dodge the tough plain error standard on appeal. Id. This passage is a handy little trial tool to shoehorn in a defense offer of proof.

                                               

For Further Reading: What really determines a federal sentence? The offense? The judge? Or the largely unfettered power of AUSAs? Prosecutors “have immense discretion to decide which charges to prosecute and what charging concession to offer in the course of plea bargaining, yet a paucity of empirical research exists on these consequential decisions.” Assoc. Prof. Brian Johnson, “The Missing Link: Examining Prosecutorial Decision Making Across Federal Courts.” 

   This interesting new 150+ page empirical report, relying on data from the DOJ, is now available here. 

Image of the Hon. Raymond Fisher from http://www.swlaw.edu/swlawonline/winter04/bigchill.htm

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

.

.

Case o' The Week: Ninth Not Sweet on "Anthrax" Sugar - Keyser, Hoaxes and Threats

It is imprudent to threaten the members of three powerful institutions: Congress, McDonald's, and Starbucks.

Marc McMain Keyser is three for three. 

See United States v. Keyser, 2012 WL 6052248 (9th Cir. Dec. 6, 2012), decision available here.

Players: Decision by Judge Clifton, joined by Judges Reinhardt and N.R. Smith. Hard-fought appeal by former ED Cal AFPD John Balazs.

Facts: Keyser, an aspiring author, wanted to publicize his self-published book on the dangers of anthrax. Id. at *2. To do so, he sent a CD of his book with a spray can labeled “anthrax” to a media company in 2007. Id. 911 was called, the building was evacuated, emergency agencies responded. Id. FBI agents visited Keyser and chewed him out: Keyser promised not to do it again. Id. 

In 2008, Keyser mailed out the CD again, this time with a white sugar packet with the label, “Anthrax,” “Sample” in smaller letters, and a biohazard symbol. Id. He sent 120 of these packages out, including one to a Congressman, one to the “Manager” of Starbucks, and another to the “Manager” of McDonalds. Id. at *2-*3. Evacuations and law enforcement response followed at each. Id. Keyser testified at trial, and was convicted of five of the thirteen threat and hoax counts charged. Id. at *3.

Issue(s): “Keyser contends that his convictions under 18 U.S.C. § 876(c) cannot stand because his mailing to Starbucks and McDonald’s were not addressed to specific persons, as he argues is required by the statute. The relevant statutory language criminalizes the mailing of a threat ‘addressed to any other person.’ 18 U.SC. § 876(c).” Id. at *7.

Held: “Earlier this year, an en banc panel of this court interpreted the ‘addressed to any other person’ clause of the statute to require that the relevant mailing be addressed to a natural person or persons rather than non-natural entities, such as corporations. United States v. Havelock, 664 F.3d 1284, 1293 (9th Cir. 2012) (en banc). The addresses in question satisfy this statutory requirement. The envelopes had the business name (Starbucks or McDonald’s) on the first line of the address, the word ‘Manager’ on the second line, and no further indication of an address within the contents of the mailing. The use of ‘Manager’ in the address sufficiently transforms the addressee from the corporation to a natural person – a Starbucks or McDonald’s manager is a natural person.” Id. at *7.

Marc McMain Keyser

Of Note: Exactly eleven months before the Keyser opinion, a divided en banc Court gave us the great Havelock decision on the meaning of “person” in the threat statute. See blog here.  Interestingly, both Judges N.R. Smith and Reinhardt were on the Havelock en banc court, both jurists wrote separate opinions parting ways with the reasoning of the en banc plurality, and both were also on this Keyser panel. See Havelock, 664 F.3d 1284, 1297 (9th Cir. 2012) (en banc) (Judge N.R. Smith concurring); id. at 1303 (J. Reinhardt concurring and dissenting).  Unfortunately, their various concerns in Havelock didn’t trouble them here: both join in the holding that a “manager” is enough of a “natural person” to create criminal liability under the threat statute.

How to Use: Keyser is not a great case for those who defend the troubled folks who face federal threat and hoax charges. In addition to the threat holding discussed above, Judge Clifton finds no First Amendment bar to the hoax convictions, 2012 WL 6052248, *6, rejects a “theory of the defense” instruction challenge, id. at *8, and tolerates a sketchy “reasonable person” instruction with some prosecutorial vouching thrown in. Id. at *9-*10. For better or worse, Keyser joins Bagdasarian, 652 F.3d 1113 (9th Cir. 2011), and Havelock as required reading for the evolving law of threat and hoax prosecutions.  

                                               

For Further Reading: Quoting Protestant reform leader Martin Luther, Keyser refused to recant: “I neither can nor will make any retraction, since it is neither safe nor honorable to act against conscience.” For an interesting article reporting interviews with Mr. Keyser, see article here.

Image of Starbucks and McDonalds from http://www.famousbloggers.net/wp-content/uploads/2011/11/mcdonalds-starbucks.jpg. Image of Mr. Keyser by Michael A. Jones / Sacramento Bee, via AP, from http://www.cleveland.com/nation/index.ssf/2008/10/feds_suspect_in_hoax_anthrax_s.html  Image of relabeled sugar packet from http://www.nti.org/gsn/article/anthrax-hoax-suspect-indicted-on-13-counts/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

.

Case o' The Week: Corporations are people too -- sometimes. Havelock and federal mail-threats statute

Is a corporation a "person?" That question has sparked a potent political debate, between the Occupy Folks and presidential candidate Mitt Romney. See article here.

Sitting en banc, the Ninth has also recently wrestled with that question -- and answered (in a different context), "no." As used in a federal threats statute, a "person" means a "natural person" -- a human being. See United States v. Havelock, 2012 WL 29347 (9th Cir. Jan. 6, 2012) (en banc), opinion
available here).

Players: Decision by Judge B. Fletcher. Big win by D. Az. AFPD Dan Kaplan.

Facts: Kurt Havelock (above left) bought an assault rifle. He then sent a batch of mail less than an hour before the ‘08 Superbowl. Id. at *1. This mail bore addresses of media outlets and music-related websites. Id. Inside each item was a “media packet” with a rambling “manifesto.” Id. The manifesto had allusions to violence; some in the past tense, and some prospective – like, “I will sacrifice your children upon the alter of your excess . . . . I will slay your children.” Id. at *2.

After visiting the Post Office, Havelock drove to a parking lot near the stadium where the Superbowl was to be played, to “wait for an opportunity to shoot people.” Id. He then had a change of heart, self-surrendered, confessed, and was ultimately charged with six counts of mailing threatening communications, in violation of 18 USC § 876(c). Id. Havelock’s motions to dismiss the indictment and for a judgment of acquittal were denied by the district court. Id. at *3.

Issue(s): 1. Issue One: “Person?” Havelock argues “that the phrase ‘any other person’ in § 876(c) refers exclusively to natural persons and, because the media packets were addressed to corporations, the indictment failed to allege facts sufficient to constitute an offense.” Id. at *3.

2. Issue Two: “Contents?” Havelock argues “that the district court erred in interpreting § 876(c) to allow a trier of fact to consult the content of a mailed communication to determine whether it was addressed to a natural person.” Id. at *3 (emphasis added).

Held: “The term ‘person’ as used in § 876(c) refers exclusively to natural persons. To determine whether a threatening communication is ‘addressed to any other person,’ § 876(c), a court may consult the directions on the outside of the envelope, the salutation line, and the contents of the communication. Havelock’s writings were not addressed to natural persons. Accordingly, we reverse Havelock’s convictions and remand to the district court for the entry of a judgment of acquittal.” Id. at *10 (emphases added).

Of Note: Five judges join Judge B. Fletcher in full. We need six to win. So what is the “holding” of Havelock?

The individual holdings – that “persons” means a natural person, and that you can look inside an envelope to determine to whom it is “addressed” – are found within subsections of the opinion. See, e.g., Section II A at *5 (“person” means a “natural” person). Each of those sub-holdings garnered at least six votes, but, different judges cast the sixth vote for different subsections and holdings. (For example, Section II.A won Judges Schroeder and Reinhardt over, II.B convinced Judges Wardlaw, Fisher, and N.R. Smith). Because every subsection in the opinion earned a six-judge majority (albeit shifting majorities), all the holdings are controlling law. See generally United States v. Rodriguez-Preciado, 399 F.3d 1118, 1138 (9th Cir. 2005) (Berzon, J., dissenting) (providing good primer on plurality decisions); cf. Bradley v. Henry, 518 F.3d 657 (2008) (ord.) (adding note describing limits of five-judge plurality).

How to Use: In a pointed concurrence and dissent, Judge Reinhardt takes issue with the holding that permits a court to rummage within a mailing to locate to whom it is “addressed.” Id. at *18. Judge Reinhardt explains this holding is unnecessary, because Havelock’s “manifesto” didn’t contain a true “threat.” Id.

It is a thoughtful discussion of “threats” and free speech, building on last year’s great Bagdasarian decision. Id. at *19. (Notably, several judges join this “threats” analysis). The encroachment of “threat” laws on the First Amendment is a hot new issue: last month, Maryland District Judge Roger Titus issued a terrific decision finding 18 USC § 2261A(2)(A) – the interstate stalking statute – unconstitutional in a case involving Twitter posts. United States v. Cassidy, 2011 WL 6260872 (D. Md. Dec. 15, 2011). Judge Reinhardt’s opinion in Havelock deserves a close read as we begin new “threat” battles.

For Further Reading: In 1997 Mel Gibson portrayed an angry, paranoid, crazy loner in Conspiracy Theory. (A prescient role for the actor). The movie posits that secret assassins are conditioned by the CIA to obsess on Catcher in the Rye, to permit the agency to track them. See article here.
It turns out that several notorious real-life shooters liked the book. See article here.
So did Kurt Havelock. Havelock, 2012 WL 29347, *2.



Image of Mr. Kurt Havelock from http://www.miamiherald.com/2012/01/07/2578200/court-tosses-conviction-in-super.html
Image of "The Catcher in the Rye" from http://jonathanmendelsohn.blogspot.com/2011_07_01_archive.html


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


.

Case o' The Week: Norwegian Wood May Overshadow Great Threats Case - Bagdasarian

Bagdasarian is a tough case. Writing for the panel, Judge Reinhardt authors a great decision that reverses threats convictions against a man who had made some terrible rants against (then-candidate) Obama. Dissenting Judge Wardlaw writes a thoughtful opinion chroniciling the terrorism and assasination attempts that have plagued our time -- she would uphold the convictions.

To complicate matters further, three days after the decision was delivered a Norwegian domestic terrorist killed nearly 100 victims in Oslo and a kids' camp.

A beautiful illustration of why the First Amendment wasn't designed for the easy cases, but to protect rights in the hard cases. United States v. Bagdasarian, 2011 WL 2803583 (9th Cir. July 19, 2011), decision available here.


Players: Decision by Judge Reinhardt joined by C.J. Kozinski; concurrence and dissent by Judge Wardlaw.

Facts: Bagdasarian, “an especially unpleasant fellow,” was convicted of two counts of threatening to kill or do bodily harm to a major presidential candidate, in violation of 18 USC 879(a)(3). Id. at *1. Weeks before the 2008 election, Bagdasarian made a bevy of racists posts about then-candidate Obama on a financial chat site under the username, “californiaradical.” Id. at *1. In addition, in one post he wrote regarding Obama, “he will have a 50 cal in the head soon.” Id. In another post, he wrote, (among other things), “shoot the nig . . .” Id. See also article here.

Others on the message board reported Bagdasarian to Secret Service, who tracked him down. A search of his house revealed a .50 caliber rifle and ammunition, other e-mail from election day with racist references to blowing up a car with a pistol, and links to a YouTube video with an exploding car. Id. at *2. Bagdasarian was convicted in a bench trial and appealed.

Issue(s): “[W]e begin by clearing up the perceived confusion as to whether a subjective or objective analysis is required when examining whether a threat is criminal under various threat statutes and the First Amendment.” . . .The issue is actually whether, as to a threat prosecuted under a particular threat statute, only a subjective analysis need be applied or whether both a subjective and an objective analysis is required.” Id. at *3

Held: “Two elements must be met for a statement to constitute an offense under 18 U.S.C. § 879(a)(3): objective and subjective. The first is that the statement would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for President . . . . The second is that the defendant intended that the statement be understood as a threat.” Id. at *4 (citation omitted). “Taking the two message board postings in the context of all of the relevant facts and circumstances, the prosecution failed to present sufficient evidence to establish beyond a reasonable doubt that Bagdasarian had the subjective intent to threaten a presidential candidate. For the same reasons that his statements fail to meet the subjective element of § 879, given any reasonable construction of the words in his postings, those statements do not constitute a “true threat,” and they are therefore protected speech under the First Amendment. . . . Accordingly, his conviction must be reversed.” Id. at *8.

Of Note: Though we hope Bagdasarian long remains the Ninth's lead threats decision, two things will make us hold our breath until the en banc and Supreme courts pass by.

First, Judge Wardlaw writes a heck of a dissent from the majority’s reversal. Id. at *8. We disagree with her conclusion, but one must concede that it is a well-written opinion by a respected jurist.

The second bad fact comes from Europe: three days after this decision was delivered Norwegian Anders Breivik committed one of the worst acts of domestic terrorism ever seen. While the First Amendment is indifferent to current events, jurists read the New York Times. Bagdasarian suffers from extraordinarily bad timing.

How to Use: Bagdasarian clarifies that there are dual intent requirements for this threat statute – a necessary duality, to survive First Amendment scrutiny. Every statute that criminalizes threats must have a subjective intent requirement to pass constitutional muster. Id. at *3. Some threat statutes also have an objective standard as well. Id. at *3. Section 879(a)(3) does, now. This is a valuable clarification – the government must now also show that “a reasonable person who [perceived the threats] within or without the relevant context would have understood [them] to mean that [the defendant] threatened to injure or kill the Presidential candidate.” Id. at *4.

Start with Bagdasarian for any threats case – its holding may export well to other threat statutes with unclear subjective/objective intent requirements.

For Further Reading: Hear about Bond v. United States, 131 S.Ct. 2355 (2011)? You will. This June decision on 10th Amendment standing joins the “65% good time” rumor plaguing federal facilities. Jailhouse lawyers tout Bond as the golden key that will ensure the release of our federal clients.

It ain’t, and it won’t.

For a “liberal” summary of Bond from a conservative commentator, see the article here. The case is just a vanilla standing opinion: the decision sadly does not invalidate the entire federal criminal code.


First Amendment flag from http://geekwhisperin.wordpress.com/2010/11/02/media-violence-children/


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


.