554 F.2d 398 (10th Cir. 1977), 75-1873, United States v. Allen

Docket Nº:75-1873.
Citation:554 F.2d 398
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas ALLEN, Defendant-Appellant.
Case Date:April 26, 1977
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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554 F.2d 398 (10th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas ALLEN, Defendant-Appellant.

No. 75-1873.

United States Court of Appeals, Tenth Circuit

April 26, 1977

Argued and Submitted July 29, 1976.

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[Copyrighted Material Omitted]

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William S. Dixon, Albuquerque, N. M. (Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, N. M., on the brief), for defendant-appellant.

Victor R. Ortega, U. S. Atty., Albuquerque, N. M. (Mark C. Meiering, Asst. U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.

Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant Allen appeals his jury convictions on twenty counts charging violation of the mail fraud statute and causing the use of the mails therefor. 18 U.S.C.A. §§ 1341, 2. The Government's proof tended to show the following facts.

The Bureau of Land Management (BLM) controls the issuance of oil and gas leases on federal lands. 43 C.F.R. § 3100 et seq. Lands less valuable for oil and gas exploration are leased by simultaneous drawings. On the third Monday of each month the BLM posts a list of parcels which it proposes to lease by this procedure. Persons interested in a particular parcel must send in an application card, a $10 filing fee and a year's advance rental, computed at 50cents an acre. An applicant may submit only one card per parcel, but may enter the drawings on more than one parcel. On the fourth Monday of each month all of the cards are put in a hopper and one is selected. The winner is entitled to a 10-year lease to drill

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for oil and gas, provided he pays the annual rental. If production is obtained during the 10-year period, the lease is extended. The Government is entitled to a 121/2% royalty on production. The leases are assignable.

Defendant is president of Central Southwest Oil Corporation (Central), 1 a leasing service which assisted persons wishing to participate in the simultaneous drawings. Central advertised its services in national magazines and sent information, including BLM application cards, to persons responding to the ads. If a person decided to participate in the drawings, Central handled the filing of application cards and fees with the BLM for a service charge.

The indictment filed in August, 1974, charged that Allen and Central had used the mails in the furtherance of three schemes to defraud involving (1) the assignment of customers' leases to Central (counts I-VIII); (2) the purchase by Central of overriding royalties retained by successful customers (counts IX-X); and (3) the sale by Central to customers of royalty deeds in a supposedly valuable oil prospect called "Cable Ridge" (counts XI-XX).

After a trial lasting three weeks, guilty verdicts were returned against both defendants on all counts. A final judgment was later entered fining defendant Allen $1,000 on each count and also sentencing him to two-years' imprisonment on each count, the sentences to run concurrently. This appeal followed. We will detail additional facts in discussing the issues raised on appeal.

I

The claim of ineffective assistance of counsel and Allen's

competence to commit the offenses

Allen vigorously argues that his trial counsel's failure to investigate, prepare and assert insanity as a defense demonstrates such a deprivation of his Sixth Amendment right to effective assistance of counsel as to require reversal. Further he says that the trial court's denial of his motion for a new trial, which asserted this ground, was made without a hearing, and that if we believe additional evidence should be adduced on the issue, we should remand for a plenary hearing where Allen, his physicians and his trial counsel could testify. 2

Defendant's motion for a new trial essentially alleged these facts. Allen was suffering from a severe mental illness during the time of the offenses and was not responsible for his actions; specific intent is an essential element of the crimes; and defendant was incapable of recognizing the importance of information concerning his mental illness and presenting it to the court. On the date of first sentencing, 3 one of defendant's retained trial counsel 4 stated that he had not been aware of the seriousness of defendant's mental illness until a post-trial report from Dr. Winston L. Martin

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was received by the probation officer, and that if he had known of this information, he would have tried the case on an entirely different basis. 5 The motion for a new trial, filed by other counsel employed by defendant, stated (R. I, 138):

5. Defendant's incapacity and ignorance resulting from his mental illness, place such information in the capacity of newly discovered evidence; or alternatively, newly discovered evidence resulting from ineffective counsel, so as to deprive the Defendant of his 6th Amendment constitutional rights to competent counsel in a fair and just trial.

In further support of the motion, new counsel, Mr. Higginbotham, submitted his affidavit. It said that defendant Allen had stated that he was not aware of the importance of the information for purposes of trial until so advised by Mr. Higginbotham.

An affidavit of Dr. Winston L. Martin, a psychiatrist, was also submitted. It incorporated a history of defendant's mental condition, 6 opined that Allen was mentally ill in a legal sense when the alleged crimes were committed, 7 and claimed that defendant's failure to bring his mental illness into perspective had been due to his not comprehending its significance.

A psychologist who conducted psychological testing of Allen also submitted an affidavit. His impression of Allen's condition was that of "Schizophrenic potential in a basically obsessive-compulsive character with some defensive decompensation and a

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pervasive use of denial." This report was based on an examination of defendant in June, 1975, almost five months after his trial.

The Government's response to the motion and affidavits argued that the cited evidence of alleged insanity was not newly discovered; that Allen knew he had been under psychiatric care and, in fact, had testified about his hospitalization and electroshock treatments at the trial; and that defendant's trial counsel had been questioned by the trial judge and replied that claims of insanity or incompetence were not to be relied on.

The trial court denied the motion for a new trial after consideration of the motion and affidavits, but without a hearing, on the ground that "the evidence should have been discovered prior to trial through the exercise of due diligence by Mr. Allen or his attorneys." (R. I, 165). The court's reasons were explained in some detail. The order said that as early as August 1974 four months before trial the competency issue was raised by Allen's attorneys in a motion for a continuance which alleged that defendant was in a Minnesota clinic and unable physically or emotionally to attend a hearing. Counsel was requested to submit a report on defendant's condition and was asked if he wanted to arrange for a psychiatric evaluation of Allen. Counsel responded by filing a copy of a letter from Dr. Martin, dated September 6, 1974, stating that he had been treating Allen since April of 1970 and explaining his mental and physical condition. 8 The court concluded that "(e)ven assuming it is in the nature of Allen's illness to conceal its nature and severity, there is no contention that his attorneys or Dr. Martin labored under the same handicap." (R. I, 166-67). The court did not make an express finding or ruling on the alternative ground of ineffective counsel as alleged in defendant's motion.

The general requirements for a new trial in a criminal case are familiar. The newly discovered evidence must be more than impeaching or cumulative; it must be material to the issues involved; it must be such as would probably produce an acquittal; and a new trial is not warranted by evidence which, with reasonable diligence, could have been discovered and produced at trial. United States v. Leyba, 504 F.2d 441, 442-43 (10th Cir.), cert. denied, 420 U.S. 934, 95 S.Ct. 1139, 43 L.Ed.2d 408. The motion is not regarded with favor and is granted only with great caution, being addressed to the sound discretion of the trial court. United States v. Perea,458 F.2d 535, 536 (10th Cir.). The trial court held here that even assuming the first three grounds were satisfied, a new trial should not be granted " because the evidence should have been discovered prior to trial through the exercise of due diligence by Mr. Allen or his attorneys." (R. I, 165). We find no abuse of discretion in the trial court's ruling. Any claim of lack of knowledge of the basic facts about the evidence by trial counsel is untenable and the attempt to transform the argument into one of ineffective counsel must be rejected.

It is true that a factual basis for a substantial insanity defense was developed in the post-trial affidavits of Dr. Martin and the psychologist. See notes 6-7, supra. However, as the court noted, several months before trial the issue of Allen's mental condition had been raised by a motion for a continuance supported by an earlier letter of Dr. Martin and a statement from a psychiatrist at the Minnesota clinic where defendant was being treated. While the diagnosis then was not nearly as serious as stated by the doctor's affidavit after

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trial, Dr. Martin's letter put before counsel the basic facts of Allen's hospitalization and that, when depressed, Allen "is essentially not able to function in any meaningful capacity." (R. I, 181). Furthermore, Dr. Martin's post-trial affidavit stated that Mrs. Allen related efforts she made with counsel during the trial to have Allen's...

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