Rodriguez v. United States of

• Court: Court of Appeals for the First Circuit
• Decided: March 16, 1992
• Docket: 91-1295
• Status: Published

Opinion

USCA1 Opinion

March 16, 1992           ____________________

        No. 90-1295

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  ARTHUR CARY PRYOR,
                               a/k/a CAMDEN M. PELLER,

                                Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                      [Hon. Conrad K. Cyr, U.S. District Judge]
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                                        Before

                                 Selya, Circuit Judge,
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                      Aldrich and Bownes, Senior Circuit Judges.
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Scott McLarty for appellant.
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            Margaret  D.  McGaughey, Assistant  United  States  Attorney, with
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        whom Richard S. Cohen,  United States Attorney, and Jay  P. McCloskey,
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        Assistant United States Attorney, were on brief for appellee.

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ALDRICH, Senior Circuit Judge.   As a result  of an
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            amended  brief,  a supplemental  brief,  and  a reply  brief,

            defendant   Arthur   Cary    Pryor,   through   counsel   and

            individually, has  presented some  eleven  points on  appeal,

            including  the  defense of  insanity.    All can  be  readily

            disposed of.

                      Defendant was  convicted of robbery of  a federally

            insured bank in Blue  Hill, Maine, by force and  violence and

            placing a life in jeopardy, 18 U.S.C.    2113(a) and (d), and

            possession  of a  sawed-off  unregistered shotgun,  26 U.S.C.

               5845(a)(4); 5861(d) and 5871.  When committing the robbery

            he was  highly made-up, costumed  and hatted to  emulate "Boy

            George," an androgynous pop  star.  Afterwards he distributed

            largesse to his landlord and,  ultimately, drove in a stretch

            limousine costing $900 to a  Cambridge, Massachusetts, hotel,

            where he rented the presidential suite.

                      Before  defendant  was  apprehended the  government

            obtained warrants to search  his apartment in Castine, Maine,

            and  his  Cambridge  hotel  room.   He  moved,  pretrial,  to

            suppress the  fruits.   The  court  denied, after  a  lengthy

            evidentiary  hearing, with  a fully  persuasive opinion.   We

            need  not repeat;  there  was no  error.   United  States  v.
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            Rutkowski, 877 F.2d 139 (1st Cir. 1989).
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                      Before  trial   the  government  had   performed  a

            psychiatric examination of  defendant.  18  U.S.C.   4247(b).

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Defendant complains that it  was delayed beyond the statutory

            schedule.  It does not appear how he was prejudiced.

                      Next, defendant  complains that the  court did  not

            hold a  hearing on his competency to  stand trial.  18 U.S.C.

              4241(a) requires the  court, on defendant's, or  on its own

            motion, to hold a hearing . . .

                      if there is  reasonable cause to  believe
                      that  the  defendant  may   presently  be
                      suffering from a mental disease or defect
                      rendering him mentally incompetent to the
                      extent  that he  is unable  to understand
                      the  nature  and   consequences  of   the
                      proceedings  against  him  or  to  assist
                      properly in his defense.

            Defendant did not move for a hearing;  nor did the court hold

            one of  its own accord.   We are satisfied that  there was no

            sufficient  cause  to  spark   court  action.    It  is   not

            determinative  that  defendant  had  had  drug  problems  and

            psychiatric treatment  in the  past.  Hernandez-Hernandez  v.
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            United States, 904 F.2d 758, 760-61 (1st Cir. 1990).  More to
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            the  point  is the  fact that  the  court had  seen defendant

            vigorously, and rationally,  participating in his defense  at

            the  pretrial  proceedings,  see Figueroa-Vasquez  v.  United
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            States, 718 F.2d 511, 512 (1st Cir. 1983), and had determined
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            that he had the capacity to waive counsel and defend himself.

            For that  hearing the court had a psychiatrist's finding that

            defendant was "oriented to time, place  and person," and that

            his  "judgment  and insight,  as  well  as abstract  thinking

            appeared to be  intact."  The court's  finding that defendant

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was   competent   to  waive   counsel,  viz.,   "knowing  and

            intelligent,"  Faretta  v.  California,  422  U.S.  806,  835
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            (1975), more  than covered  ability to understand  and assist

            properly  in his defense.   Cf. United States  v. Haffen, 726
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            F.2d  21, 25 (1st Cir.),  cert. denied, 466  U.S. 962 (1984).
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            There was no cause for the court to hold a further hearing.

                      Defendant  complains  that   at  trial  a   witness

            referred to his having  stolen a bed.  The  court immediately

            struck the testimony and instructed the jury to disregard it.

            This was a minor  matter, and fully cured.   United States v.
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            Paiva, 892 F.2d 148, 160 (1st Cir. 1989).
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                      The  same with  respect  to a  witness speaking  of

            defendant's being  subjected to  a disciplinary hearing  as a

            result of  a fight in jail.   Here the court,  in addition to

            instructing the jury to  disregard the testimony, informed it

            the  next day that defendant had been cleared as having acted

            in self-defense.  (Apparently  it was known that he  had been

            in jail.)  There was no prejudice.

                      In   respect   to   excluded  evidence,   defendant

            complains  because the  court refused  to  admit a  letter he

            wrote his counsel at the time of his arrest as indicating his

            state  of mind.  As to  his state of mind at  the time of the

            offense, it  was hearsay.  As  at the time of  the arrest, it

            was irrelevant.   A proffered newspaper  article was properly

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excluded within the court's discretion; indeed  we do not see

            how it was admissible at all.

                      Next, defendant  complains of the  burden put  upon

            him to prove insanity "by clear and convincing evidence."  18

            U.S.C.   17(b).   The constitutionality  of such a  burden is

            settled.     Leland   v.   Oregon,  343   U.S.  790   (1952);
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            reconsideration refused  in Rivera v. Delaware,  429 U.S. 877
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            (1976).   Defendant would circumlocute these  cases by saying

            his  offenses   require  wilful  knowledge,   which  insanity

            negates.   There is, however,  no such identity.   See United
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            States  v. Cameron,  907 F.2d  1051,  1066 (11th  Cir. 1990);
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            United States v.  Byrd, 834  F.2d 145, 147  (8th Cir.  1987).
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            Hence defendant's contention of  a conflict with the criminal

            burden of proof as to knowledge,  In re Winship, 397 U.S. 358
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            (1970), does not exist.

                      Next, defendant would have it that the evidence did

            not support the jury's finding that he was not insane.  Quite

            apart  from the fact  that he failed  to move for  a directed

            verdict at the  close of  the evidence, the  burden being  on

            him, this claim is specious.  But even were the burden on the

            government, there was ample evidence that defendant knew what

            he was  doing, and  "appreciate[d] . . . the  wrongfulness of

            his act."  18 U.S.C.   17(a).

                      Defendant   complains   that   instead  of   merely

            instructing  the jury  that  a verdict  of insanity  requires

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confinement in a mental  institution until found to  be sane,

            as requested by him,  the court gave the further  detail that

            the confinement might be for only 40 days.  This addition was

            correct.  18 U.S.C.    4243(c).  If, instead of  requesting a

            partial instruction  defendant had asked that  there be none,

            we might have  a different  question.  Cf.  United States  v.
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            Frank, ___ F.2d ___ (9th Cir., February 11, 1992) (1992 U. S.
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            App. Lexis 1512).

                      Defendant  contends the  judge should  have recused

            himself and not have presided over  the sentencing because of

            bias due to the fact that  defendant had brought a civil suit

            against  him.  This question  was purely for  the court's own

            decision.   It  cannot be  that an  automatic recusal  can be

            obtained by the simple act of suing the judge.  See Ronwin v.
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            State  Bar of  Arizona, 686  F.2d 692,  701 (9th  Cir. 1982),
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            cert. denied, 461  U.S. 938  (1983); cf. In  re Union  Leader
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            Corp., 292 F.2d 381,  389 (1st Cir.), cert. denied,  368 U.S.
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            927 (1961).

                      Defendant finally  complains of the sentence.  This

            was pre-Guidelines, and  it was within statutory limits.   We

            have  no  right  to review  except  if  the  court failed  to

            "individualize."  United  States v. Jiminez-Rivera, 842  F.2d
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            545, 548 (1st Cir.), cert. denied, 487 U.S. 1223  (1988).  It
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            did not fail.

                      Affirmed.
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