U.S. v. Morrison
| Decision Date | 13 August 1998 |
| Docket Number | No. 97-1370,97-1370 |
| Citation | 153 F.3d 34 |
| Parties | UNITED STATES of America, Appellee, v. Arthur MORRISON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Daniel H. Murphy, II, Pelham Manor, NY, for Defendant-Appellant.
Roman E. Darmer II, Assistant United States Attorney, Southern District of New York (Mary Jo White, United States Attorney, Ira M. Feinberg, Assistant United States Attorney, of counsel), for Appellee.
Before OAKES, WALKER and MAGILL, * Circuit Judges.
Arthur Morrison appeals from a judgment of conviction and sentence of incarceration for three hundred months followed by three years of supervised release, entered on April 14, 1997, in the United States District Court for the Southern District of New York, Kimba M. Wood, Judge. Morrison was convicted, after a three-week trial by jury, of five counts of transmitting through interstate commerce threats to injure the property and reputation of the investment firm of Smith Barney, Harris Upham & Co. ["Smith Barney"] and one of its managing directors, with the intent to extort money, in violation of 18 U.S.C. § 875(d); four counts of wire fraud in violation of 18 U.S.C. § 1343; and five counts of transmitting in interstate commerce threats to injure certain persons, in violation of 18 U.S.C. § 875(c).
Morrison, through his counsel, claims that the district court erred in finding him competent to represent himself in his trial. Morrison challenges, both through counsel and pro se, the district court's decision to allow him to represent himself at a hearing in which Morrison's competency was at issue, the sufficiency of the evidence to establish that certain of Morrison's communications took place across state lines, and the district court's substantial upward departures from the United States Sentencing Guidelines. Morrison, pro se, finds additional error in the district court's denials of his motion for recusal of Judge Wood and his motions to dismiss the indictment filed against him, and claims the Government offered insufficient evidence to establish guilt for each count for which he was convicted. Morrison also challenges the district court's rulings concerning admission of certain evidence at his trial, and he claims that his standby counsel ineffectively assisted him, that the Government engaged in vindictive prosecution of him, and that the Government destroyed exculpatory evidence. We reject each of Morrison's arguments and affirm.
Morrison was arrested July 29, 1992, in Newark, New Jersey. Represented by counsel, Morrison pled guilty on November 13, 1992, to two counts of the original indictment filed against him. On February 1, 1993, Morrison submitted a pro se letter to the court, seeking to withdraw his plea, claiming that he misunderstood the terms of his plea agreement, and asking that new counsel be appointed. On February 3, 1993, the court granted Morrison's motion for appointment of new counsel. On February 8, 1993, Morrison requested that yet another attorney be appointed, and on February 19, 1993, the court appointed Ellen Yaroshefsky to represent him. Represented by Yaroshefsky, Morrison filed a motion to withdraw his guilty plea, including Yaroshefsky's affidavit submitting that Morrison might be suffering from a psychiatric disorder. On May 7, 1993, the court held a pre-trial conference, in which Morrison requested that new counsel be appointed, in part based on his disagreement with her allegations regarding his mental health. However, Yaroshefsky insisted at this conference that while she thought Morrison might have a defense to the charges based on his mental health, she found no question that Morrison was competent to stand trial. She stated that she had had lengthy conversations with Morrison that left no doubt in her mind that he was able to assist in his own defense, as he had in fact already done so.
On July 1, 1993, Morrison filed a motion to dismiss Yaroshefsky and for leave to represent himself pro se. The district court found that there was reasonable cause to conduct a competency hearing in light of Morrison's pro se filings and his behavior in court, and stated that she would postpone ruling on Morrison's motion to represent himself until after Morrison had been examined by a psychiatrist. Over Morrison's objection, the district court ordered Morrison to submit to a psychiatric examination by Dr. Naomi Goldstein. Because Morrison refused to comply with this order, the district court ordered Morrison to be transported to a federal medical center for evaluation, as provided in 18 U.S.C. §§ 4241 and 4244.
Although Morrison refused to cooperate in his psychiatric evaluation at the Federal Medical Center in Rochester, Minnesota ["FMC"], a psychologist at the FMC issued a report on Morrison's medical condition. The report stated that Morrison was "alert," "calm" and "articulate," and that it was "highly unlikely" that Morrison suffered from any acute schizophrenic condition. While the report acknowledged that Morrison's refusal to cooperate hindered efforts to conduct the evaluation thoroughly, the report noted "no obvious aberrations in ... thought" and that "his speech was rational and goal-directed, without any evidence of confusion." While the author of the report stated that he could not rule out the possibility of delusional ideas, and found some suggestion of "grandiose or paranoid delusions" in some of Morrison's statements, the report concluded that "we have found no clear evidence to support a conclusion he is currently in need of custody for care or treatment...."
The court held a pre-trial conference on January 31, 1995, and found, based on the FMC report, that no reason existed to believe that Morrison was not competent to represent himself. The district court then advised Morrison of the potential penalties he faced if convicted, questioned him about his legal training and experience, explained the risks of self-representation, including compromise of his right against self-incrimination under the Fifth Amendment, and repeatedly advised Morrison to avail himself of counsel. Morrison nonetheless elected to represent himself. The district court ruled that Morrison would be permitted to represent himself, but assigned Yaroshefsky to act as Morrison's standby counsel, over Morrison's objection. After conducting several evidentiary hearings, the district court granted Morrison's motion to withdraw his guilty plea on February 9, 1996, and began trial preparation.
Shortly before trial, the district court relieved Yaroshefsky, at her request, and appointed Thomas F.X. Dunn to serve as Morrison's standby counsel.
On May 6, 1996, the district court held a pre-trial conference, expressing renewed concern regarding Morrison's competence. Certain investigations that Morrison requested to be performed led the court to wonder whether Morrison was delusional or simply making things up in order to delay the proceedings. Therefore, the court asked Dr. Goldstein to attend the conference in order to observe Morrison and help the court to resolve the issue. During the course of the conference, Judge Wood ruled on numerous motions filed by Morrison, and Morrison discussed in the presence of Dr. Goldstein the witnesses he wanted to call in his defense. At the end of the conference, Judge Wood called Dr. Goldstein to the witness stand, and advised Morrison and his standby counsel that Dr. Goldstein was available to them for cross-examination. Dr. Goldstein testified that Morrison understood the charges and proceedings and was capable of working with standby counsel. She based her opinion, inter alia, on her observations of Morrison at the conference, review of the charges against Morrison and some of the evidence the Government intended to submit against him, transcripts of Morrison speaking in court at prior conferences, and the FMC report. Morrison chose not to cross-examine Dr. Goldstein at that time. Based on Dr. Goldstein's testimony, and all the other evidence before her, Judge Wood found Morrison competent to stand trial.
Judge Wood then informed Morrison again of the dangers of representing himself, including the possibility of long-term imprisonment should he receive consecutive sentences for conviction on multiple counts. Morrison continued to assert his right to proceed pro se, and Judge Wood ruled that Morrison had chosen to do so knowingly and intelligently. Morrison did act as his own attorney at his trial.
Morrison's trial began May 29, 1996, and continued through June 21, 1996. A grand jury returned a superseding indictment shortly before Morrison's trial that contained fifteen counts. The indictment charged in Counts One through Five that Morrison "unlawfully, wilfully and knowingly, and with intent to extort money from ... Smith Barney, did transmit in interstate commerce communications containing threats to injure the property and reputation of Smith Barney and Marianne Spraggins," specifically setting forth five approximate dates of the call, and describing each charged call, in each of which Morrison threatened to contact media, public officials, or Smith Barney clients, or to sue Smith Barney and Spraggins. The indictment charged in Count Six that Morrison willfully and knowingly transmitted in interstate and foreign commerce a communication containing a threat to injure Spraggins, in that he called her at her New York City apartment and threatened to break her legs and neck. In Counts Seven through Ten, the indictment charged that Morrison unlawfully, willfully and knowingly devised a scheme and artifice fraudulently to obtain money by means of false representations, and transmitted in interstate commerce communications for the purpose of executing that scheme; specifically, that Morrison made misrepresentations in an attempt to obtain more than one hundred thousand dollars, to which he...
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