U.S. v. Davis, 84-2272

• Citation: 772 F.2d 1339
• Decision Date: 05 September 1985
• Docket Number: No. 84-2272,84-2272
• Parties: 18 Fed. R. Evid. Serv. 905 UNITED STATES of America, Plaintiff-Appellee, v. Gerald DAVIS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1339

772 F.2d 1339

18 Fed. R. Evid. Serv. 905

UNITED STATES of America, Plaintiff-Appellee, v. Gerald DAVIS, Defendant-Appellant.

No. 84-2272.

United States Court of Appeals, Seventh Circuit.

Argued April 23, 1985.

Decided Sept. 5, 1985.

Michele E. Smith, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Daniel G. Martin, Carol A. Brook, Federal Defender Program, Chicago, Ill., for defendant-appellant.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and TIMBERS, Senior Circuit Judge. ^*

CUDAHY, Circuit Judge.

The defendant Gerald Davis was convicted of a seven-year scheme to defraud in which he forged and converted to his own use 227 United States Treasury checks payable to his deceased relatives. Prior to trial the government filed a motion in limine to exclude the defendant's proposed insanity defense based on the claim that he was a compulsive gambler. After conducting an extensive evidentiary hearing, the district court excluded the evidence on two independent grounds. The trial court ruled the evidence irrelevant and inadmissible under Rules 403 and 702 of the Federal Rules of Evidence, and also ruled that compulsive gambling could not, as a matter of law, form the basis of an insanity defense to charges of check forgery and conversion. Davis appeals, raising three issues: whether the district court abused its discretion in excluding the evidence under Rules 403 and 702; whether the district court erred in ruling that insanity by reason of compulsive gambling is not a defense to charges of forgery and conversion; and whether exclusion of the evidence violated the Compulsory Process Clause of the Sixth Amendment. We affirm the district court's evidentiary ruling. ¹

I.

Defendant Davis lived at 1428 North Park Avenue in Chicago with his mother, father and uncle, all of whom were receiving at that address Old-Age and Survivors Insurance Benefits from the Social Security Administration. Davis's mother and father died in November 1975, and his uncle died in February 1976. From December 1975 until at least May 1982 Davis received and used the checks intended for his deceased relatives. Davis accomplished the conversion in part by opening a joint savings account in the names of his mother, his uncle and himself. He forged their signatures on the signature card for the account. Davis then deposited or cashed the checks into his own personal checking account, using the number of the joint savings account as identification. Davis negotiated some of the checks payable to his father at the gas company to pay gas bills, and received any excess in cash. Whenever Davis negotiated a check he forged the endorsement of the relative to whom it was made out. He eventually negotiated 227 checks worth approximately $59,000.

A federal grand jury returned an indictment of Davis in October of 1982; the eleven-count superseding indictment charged Davis with a scheme to defraud and specific counts of forgery, fraudulent conversion of government property and mail fraud in violation of 18 U.S.C. Secs. 495, 641 and 1341. In December 1982 defense counsel received the results of a psychiatric examination of the defendant by Dr. Helen Morrison, and pursuant to Rule 12.2 of the Federal Rules of Criminal Procedure filed a Notice of Defense based upon Mental Condition Inconsistent with the Mental Element of the Crime Charged. The defense was that compulsive gambling prevented Davis from conforming his conduct to the requirements of the law. The government filed a motion in limine seeking to exclude defendant's insanity defense on the ground that Dr. Morrison's report failed to show that defendant's gambling rendered him incapable of appreciating the wrongfulness of his conduct or of conforming his conduct to the requirements of the law when he forged and converted the checks. The government also disputed whether compulsive gambling could support an insanity defense except to a gambling charge.

The district court set the matter for a pre-trial evidentiary hearing, which was held on January 27, February 3 and April 9, 1984. Defendant presented three witnesses at the hearing: Dr. Julian Taber, Dr. Helen Morrison and Dr. Lawrence Freedman. Dr. Taber is the coordinator of the gambling treatment program at the Veterans' Administration hospital in Brecksville, Ohio. Dr. Freedman was one of three psychiatric consultants to the drafters of the American Law Institute's Model Penal Code. Dr. Morrison has testified in over 200 cases, primarily in custody, domestic relations and competence areas. She cannot recall ever having testified in a criminal case that a defendant was sane. She has not written a book or presented a paper or lecture about compulsive gambling, nor has she treated any compulsive gambler other than Davis. She was, however, the only one of the defense witnesses to personally meet or examine the defendant.

After hearing closing arguments the district court issued an oral opinion holding the evidence inadmissible on two independent grounds. The court first stated that compulsive gambling could form the basis of an insanity defense and if the charge against the defendant were a gambling charge it "would unhesitatingly hold that the evidence of compulsion would be a matter for the jury." Dist.Ct.Op. at 3. However, the court noted that the question before it was not whether, by reason of a compulsion, the defendant gambled, but rather "whether the defendant Davis lacked substantial capacity to refrain from forging and cashing a series of some 227 government checks over a period of seven years." Dist.Ct.Op. at 3. The district court found that the testimony of Drs. Taber and Freedman was relevant to the general issue whether there is such a thing as compulsive gambling and whether a compulsive gambler is able to control his gambling, but threw "no significant light" on the question before it. Only the testimony of Dr. Morrison purported to show that forging and cashing the checks were something which, because of his compulsive gambling, Davis had no control over such as to qualify legally as insanity. However, the court found "Dr. Morrison's testimony to be utterly lacking in credibility, utterly lacking in any substantial basis in fact, and unworthy of submission to a jury." Dist.Ct.Op. at 4. The court explained its finding as follows:

Dr. Morrison impressed me as capable of testifying to anything, absolutely anything.

I won't attempt an item-by-item analysis of her testimony because to do so would be misleading as far as the actual basis for my decision is concerned.

The basis for my decision is the entirety of the testimony of Dr. Morrison. One simply has to read it in order to know what I'm talking about. Preferably one should have been here in the courtroom to hear it, but lacking that, the next best thing is to read it word for word.

Dist.Ct.Op. at 5.

The court then excluded the evidence under Rules 403 and 702 of the Federal Rules of Evidence. The court held that Dr. Morrison failed to show that she was qualified as an expert to testify on the specific question presented by this particular case, and that her very testimony confirmed this lack of expertness. Therefore her testimony was not admissible under Rule 702. The court also held that Dr. Morrison's testimony would mislead the jury and confuse the issues, while at the same time providing no probative evidence upon which a reasonable jury could act, and excluded the evidence under Rule 403. The court also ruled, as a second and independent ground for excluding the evidence, that the need or desire for money motivated by compulsiveness or addiction or other allegedly uncontrollable behavior does not constitute a defense to a criminal charge of stealing that money. Thus, even if the testimony had tended to establish that a nexus "exist[ed] as a matter of psychiatry" between Davis's compulsive gambling and his failure to refrain from forging and converting the checks, it would be inadmissible. Dist.Ct.Op. at 9-10.

The defendant was subsequently tried in a bench trial on stipulated facts, and convicted on all counts. Davis was then sentenced to two years concurrently on six counts, followed by five years probation on the remaining counts. As a condition of probation he was ordered to use his best efforts to make $60,000 in restitution. He now appeals the district court ruling excluding the evidence for his insanity defense.

II.

This circuit has adopted the American Law Institute's definition of the insanity defense, which, until recently, ² has governed criminal trials in this circuit. United States v. Shapiro, 383 F.2d 680 (7th Cir.1967) (en banc). See AMERICAN LAW INSTITUTE, MODEL PENAL CODE Sec. 4.01 (Proposed Official Draft 1962). This definition contains a "volitional prong," under which a defendant is not responsible for his criminal conduct "if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity ... to conform his conduct to the requirements of law." MODEL PENAL CODE, Sec. 4.01(1); see Shapiro, 383 F.2d at 684. Davis's claim is that because of his compulsive gambling (or the purportedly underlying "obsessive-compulsive personality" he sometimes speaks of) he was unable to refrain from forging and cashing the checks.

A defendant is presumed sane; in order to rebut this presumption and reach the jury on an insanity defense, the defendant must present "some evidence" of insanity. United States v. Sennett, 505 F.2d 774 (7th Cir.1974). Whether the defendant has presented "some evidence" is a matter for the court not the jury. Sennett, 505 F.2d at 778. The government argues that the district court ruled that Davis had not even met this minimal threshold burden, and ruled so properly, and that therefore we need not even reach the other evidentiary issues. However, we do not believe the district court made such a ruling. The government's psychiatric examination report...