United States v. James Andrew Cooper

465 F.2d 451, 1973 U.S. App. LEXIS 12191

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 12, 1973
• Docket: 71-1687
• Status: Published

Opinions

HUFSTEDLER, Circuit Judge:

Cooper appeals from his conviction for robbery (18 U.S.C. §§ 2113(a), 2113(d)). We reverse because the Government failed to carry its burden of proving beyond a reasonable doubt that Cooper was sane when he robbed the bank.

The Court appointed a psychiatrist, Dr. Polos, to examine Cooper to determine his mental competence to stand trial and his sanity when the offense was committed. In his initial report to the court, Dr. Polos concluded that Cooper was competent to stand trial. He further reported that it was difficult to decide whether Cooper was sane at the time of the offense without more testing and in-depth psychiatric evaluation.¹ At Dr. Polos’ request, the United States Attorney’s office gave him statements from Cooper’s coworkers and from persons who observed him before and after commission of the crime, FBI reports and interviews, and medical reports. Cooper was referred to Dr. Paulson of the UCLA Neuropsychiatric Institute for testing to ascertain the degree of Cooper’s mental illness and his intellectual level and to determine whether Cooper was lying or malingering. Dr. Polos reexamined Cooper after he had studied the reports of Dr. Paulson and the materials he had received from the United States Attorney. He made a second report in which he stated:

“In my report of June 18, 1970, I indicated that the only question I found impossible to answer at that time was his capacity to appreciate the nature of his conduct at the time of the crime. There is no doubt that he had been taking excessive amounts of Valium as well as suffering from an acute onset of Bell’s palsy. The consumption of the tranquilizer Valium was primarily to control emotional symptoms that he was experiencing at that time and created drowsiness and confusion in him.

“Diagnostically Mr. Cooper has a chronic anxiety reaction with a moderately severe depression, as well as a schizoid personality.

“It is my psychiatric opinion that at the time of the crime he was under severe emotional stress as well as the effect of Valium, consequently his capacity function was impaired. His behavior was the result of an anxiety state rather than of a psychotic state. However, I do not believe that he was fully capable of controlling his impulses. I realize that this opinion is not exact or clearcut, but I do believe that Mr. Cooper definitely has a mental illness, and along with the excessive use of Valium caused him to act out in a manner that he ordinarily would not. Furthermore, I believe that he is treatable and should be placed in a psychiatric facility for complete rehabilitation. If this is possible, I believe he will be fully capable of eventually returning to society as a useful member rather than a severely and chronically mentally ill individual, or someone with bitterness and criminal tendencies.”

Dr. Polos testified at the trial. In the course of his testimony, he said that Cooper had told him that he had been taking Valium which had been prescribed for him. The existence of the prescription “wasn’t established as a fact until [Dr. Polos] got the reports from . . . the FBI concerning the two doctors that had given [Cooper] prescriptions [for Valium].” He stressed that his opinion about Cooper’s mental condition at the time of the crime was not solely based on Cooper’s ingesting Valium. “It’s the pain and disturbance from [the paralysis of one half of the face] as well as his mental illness.” He also testified that on the basis of his examination of Cooper and his evaluation of the psychological tests, he had “no doubt in his mind that [Cooper] was being honest and was not attempting to lie or distort any of the material that was asked of him.”

Evidence in addition to Cooper’s statements tended to substantiate Dr. Polos’ view that Cooper had been taking large amounts of Valium. Cooper had access to Valium from two prescriptions, and he also had access to a friend’s Valium. He was in pain from the palsy, and he had reason to seek relief using Valium. His employer saw Cooper taking pills the week before the robbery, and at that time Cooper did not appear to be wide awake. There was testimony that one of the effects of Valium was drowsiness. His employer, coworkers, and social friends testified to Cooper’s abrupt personality change shortly before the robbery and to his peculiar behavior then.

The Government offered no expert testimony directed to the sanity issue. The prosecutor called two doctors, neither of whom was qualified to make a psychiatric diagnosis and neither of whom was asked to do so. Dr. Toomajian, a jail physician, saw Cooper for five minutes the day after the robbery. He diagnosed Cooper’s facial paralysis as Bell’s palsy and gave him some vitamins. Dr. Bruce, a general practitioner, had treated Cooper two years earlier for a cervical spine injury and had not thereafter examined him. He gave some opinions about the effects of excessive dosages of Valium. There was no substantial conflict between Dr. Polos’ and Dr. Bruce’s opinions about the effects of Valium.

The Government presented five lay witnesses who had seen Cooper the day of the robbery. The bank teller saw Cooper somewhere between three and five minutes. She testified that when he demanded the cash, he spoke “very slowly” and a “little mumbly.” He appeared “overly calm.” She did not notice any facial paralysis. Mrs. Alexson saw the robbery as she was waiting at the drive-in window of the bank. She said he walked away from the teller’s window after he received the money. As she drove out of the lot, she saw Cooper taking “real large steps, and running.” Deputy Sheriff Leake stopped Cooper’s car a few minutes after the robbery and arrested him. When Cooper got out of his car, Leake noticed that Cooper “appeared to be bent over to the right slightly and a slight shuffle or dragging of one leg.” “[H]is eyes were not coordinated.” Leake made no close observation of Cooper, but, he said, Cooper did not appear to him to be under the influence of drugs. Mr. Chance, who booked Cooper, did not notice anything unusual about him, except that there was something wrong with half of his face, “ [1] ike maybe he had had a shot of Novocain or something that would have impaired” his face and “his right eye had difficulty closing.” Cooper complained of pain, and Officer Chance gave him two aspirin tablets. He appeared alert to Officer Chance and Officer Chance made no effort to examine him for signs of drugs. Officer Chance had heard that Valium was a muscle relaxant; he otherwise knew nothing about the drug. Finally, the Government called the FBI agent who had interrogated Cooper about four hours after the robbery. He observed that Cooper “had difficulty in his speech,” but “his speech was intelligible.” He saw the paralysis of the right side of Cooper’s face. Cooper was relaxed and friendly and did not appear to be drowsy.

We held in Buatte v. United States (9th Cir. 1964), 330 F.2d 342 (Buatte I) that when the defendant introduces expert psychiatric testimony that is sufficient to support a finding of insanity and when the Government relies entirely on lay witnesses to prove sanity, the Government has failed to carry its burden of proof as a matter of law.

To sustain Cooper’s conviction, the Government must accomplish two feats: (1) It must find a way to destroy Dr. Polos’ testimony to eliminate Buatte I, and (2) after razing Dr. Polos’ testimony, it must find enough affirmative evidence of Cooper’s sanity to prove that he was sane beyond a reasonable doubt. The Government did not succeed on either count.

The Government’s arguments are directed to the first point. The Government contends that Dr. Polos’ testimony, can be disregarded because he relied, in part, on Cooper’s taking large amounts of Valium. There was evidence, it says, from which the jury could have decided that Cooper did not take large amounts of Valium. Therefore, the jury could reject Dr. Polos’ opinion, citing United States v. Ingman (9th Cir. 1970), 426 F.2d 973.²

The evidence that Cooper was taking excessive quantities of Valium came from several sources: Cooper’s statement to Dr. Polos that he had done so; reports from the FBI stating the prescriptions (with prescription numbers) for Valium given to Cooper by two doctors, which reports were given to Dr. Polos by the FBI. There also was evidence that Cooper had access to a friend’s supply of Valium. Independent tests of Cooper were made at Dr. Polos request by Dr. Paul-son, chief of the psychological outpatient department at U.C.L.A. and the Neuropsychiatric Institute, to determine whether Cooper had told Dr. Polos the truth. Dr. Paulson reported to Dr. Polos that there was “no doubt that the defendant was being honest and was not attempting to lie or distort any of the material that was asked of him.”

The Government’s argument that Cooper was not taking large amounts of Valium rests on inferences that the Gov-eminent draws from testimony by Dr. Bruce that one who took excessive amounts of Valium would be drowsy and would go to sleep and the testimony of lay witnesses who saw Cooper on the day of the robbery and who said that Cooper appeared alert, and not drowsy, when he robbed the bank. The Government argues that because Cooper was neither asleep nor drowsy, he could not have been taking large amounts of Valium as Dr. Polos believed.

To illustrate the problem and not to imply that the effect of Valium is medically similar to alcohol, we put the testimony hypothetically in the more familiar context of alcohol consumption. Dr. Polos testifies that Cooper had been drinking heavily, suffered from Bell’s palsy, and had a schizoid personality. At the time of the robbery, the combination of his physical disease, mental illness, and over-consumption of alcohol rendered him incapable of controlling his impulses. Dr. Bruce testifies that people who consume excessive amounts of alcohol are not alert, become drowsy, go to sleep, and lose consciousness. Government lay witnesses testify that Cooper appeared alert, not sleepy, and was not unconscious. From this evidence, the Government argues, the jury could find that Cooper had not been drinking heavily, and, therefore, it could completely discredit Dr. Polos’ opinion.

The Government’s assumption in the hypothetical is that from proof that one who consumes excessive amounts of alcohol becomes drowsy, goes to sleep, and loses consciousness and from proof that the defendant did not exhibit those symptoms, it follows that defendant was not drinking heavily. The difficulty is that there is not sufficient information in the proof to permit the inference to be drawn. It is common knowledge that the effects of alcohol vary depending upon tolerance of the individual to alcohol, the amount consumed, the timing of the consumption, and other factors. It is also common knowledge that consumption of alcohol affects behavior before the consumer exhibits more acute symptoms.

In this case, neither Drs. Polos nor Bruce tried to define excessive consumption of Valium. Unlike alcohol, there is no common knowledge about the effects of Valium consumption. Dr. Bruce’s testimony indicated that there were some variables in symptomology because he described pain relief, drowsiness, and sleep, obviously different conditions, but he did not explain the factors that controlled the incidence of any of them. Drs. Polos and Bruce did not disagree that at some point in time or quantity of ingestion the consumption of Valium would make the patient sleepy and he would go to sleep. However, there was no proof either about the timing of Cooper’s Valium consumption or about the quantity he took. Without greater precision in the testimony, no inference can be drawn that Cooper did not take excessive amounts of Valium.

The Government contends that our conclusion that it did not escape Buatte I is in conflict with United States v. Ingman, supra, 426 F.2d 973. It is not. Ingman was charged with federal marihuana offenses. His primary deense was insanity. Two psychiatrists testified on Ingman’s behalf that Ingman suffered an acute psychiatric episode following the taking of LSD. “[N]either psychiatrist based his opinion on objective symptoms . . . tests, or treatment. Rather, each relied on subjective symptoms revealed only through statements made to them by Ingman.” (426 F.2d at 977.) The Government introduced no expert testimony. The lay witnesses testified that they did not notice anything unusual about him. Two of the witnesses who had seen many persons under the influence of narcotics testified that Ingman was not under such influence when they observed him at the time of the offenses. Another witness testified that Ingman had told him that he did not use “acid” (LSD). The sole basis of the psychiatrists’ opinions was their belief in the truth of Ingman’s statement that he had been taking LSD. The truth of that report was directly impeached. We reaffirm the principle stated in Ingman: “A jury may, of course, reject expert opinion if it finds that the opinion was based on an incorrect view of the facts.” ³

In our case, Cooper’s taking large amounts of Valium was not impeached. Consumption of Valium was not the sole basis of Dr. Polos’ opinion. Dr. Polos did not rely only upon Cooper’s statements to him. Cooper was subjected to extensive observation, examination, tests, and treatment.

Even if we assumed, arguendo, that the Government avoided Buatte 1, it did not produce enough evidence to carry its burden of proving that Cooper was sane beyond a reasonable doubt.⁴ Cooper’s lay witnesses alone amply eradicated the presumption of sanity. All of Cooper’s lay witnesses attested to his erratic and peculiar behavior shortly before the robbery.

The Government cannot carry its burden by attacking the strength of Cooper’s case. To meet its burden, it must point to affirmative evidence which is adequate to prove sanity without the benefit of a sanity presumption. We thus ignore the testimony of the Government’s witnesses that Cooper did not appear to be under the influence of drugs. Proof of nondrug use does not prove sanity. All of the Government’s lay witnesses, except Mrs. Alexson, who saw Cooper only at a distance, noticed that something was wrong with him. The affirmative evidence is limited to this: Cooper could go through the motions to rob a bank, he could run, he appeared alert, his speech was intelligible, and he was relaxed and friendly. Grossly psychotic patients can perform all of these acts and maintain all of these appearances. Although this testimony may constitute some evidence bearing on sanity, it cannot be escalated to proof beyond a reasonable doubt that Cooper was sane.

Long before this case was tried the Government was aware that the sanity issue would be presented, and it had ample time within which to prepare and present further evidence on the issue if any were available. The record appears to have been developed as thoroughly as the Government was able to do. Under these circumstances we decline to remand for a new trial.

The judgment is reversed with directions to dismiss the indictment.

1 . On the second issue, the text of the report states:

“The question as to whether the defendant was legally insane at the time of the commission of the offense charged against him is difficult to answer at this time. It is my impression that there is a good chance had the defendant been taking as much as 100 to 150 milligrams of Valium per day he could have well have had a toxic reaction that would have rendered him incapable of having the capacity to appreciate the criminality of his conduct at the time of the crime. This question, I believe, can be answered by psychological tests, psychiatric evaluation in depth and the evaluation of material concerning his behavior the day prior to and the day of the commission of his crime.”

2 . United States v. Handy (9th Cir. 1972), 454 F.2d 885 and Buatte v. United States (9th Cir. 1965), 350 F.2d 389 (Buatte II) are not in point. Doth cases deal with conflicting expert testimony.

3 . The holding of Ingman is narrower. Ingman made no motion for judgment of acquittal. “Nonetheless, this court ‘may, and frequently does, review the sufficien-ey of the evidence to prevent a manifest miscarriage of justice.’ ” 426 F.2d at 976. We did review the sufficiency question and concluded that there had been no miscarriage of justice.

4 . Ingman did not reach this issue.