U.S. v. Gillis, 84-5190

• Decision Date: 18 September 1985
• Docket Number: No. 84-5190,84-5190
• Citation: 773 F.2d 549
• Parties: UNITED STATES of America, Appellee, v. Arthur Louis GILLIS, a/k/a Louis Gillis, a/k/a Louis Arthur, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 549

773 F.2d 549

UNITED STATES of America, Appellee, v. Arthur Louis GILLIS, a/k/a Louis Gillis, a/k/a Louis Arthur Appellant.

No. 84-5190.

United States Court of Appeals Fourth Circuit.

Argued June 7, 1985.

Decided Sept. 18, 1985.

Paul W. Spence, Deputy Federal Public Defender, Baltimore, Md., (Fred Warren Bennett, Federal Public Defender, Baltimore, Md., on brief), for appellant.

Robert J. Mathias, Asst. U.S. Atty., Baltimore, Md., (J. Frederick Motz, U.S. Atty., Baltimore, Md., on brief), for appellee.

Before HALL and PHILLIPS, Circuit Judges, and GORDON, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.

GORDON, Senior District Judge:

Appellant Arthur Louis Gillis appeals his conviction on all counts of a five-count indictment. Count one charged the defendant with the interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. Sec. 2312. Count two charged him with selling or disposing of a stolen motor vehicle which had been transported in interstate commerce in violation of 18 U.S.C. Sec. 2312. Counts three, four, and five charged appellant with interstate transportation of stolen and forged securities in violation of 18 U.S.C. Sec. 2314. We have carefully considered appellant's claims of error and, finding them to be without merit, affirm the result below.

Defendant's conviction arose from events occurring during the period from January through March 1983. Appellant, using aliases, represented himself to be a used car wholesaler to private citizens who were selling their cars through the newspapers. Appellant purchased the cars using checks drawn on accounts with insufficient funds and usually on out-of-state banks, and also used various artifices to create the appearance that the checks were certified. After obtaining good titles to the cars, and before the checks were returned for insufficient funds, the appellant sold the cars to legitimate used car dealers.

Counts one and two of the indictment involved the purchase in Maryland and subsequent sale in Pennsylvania of a 1978 Corvette. The defendant purchased the car on January 4, 1983, with a $9,000.00 check that was ultimately returned for insufficient funds. Within a few days after the purchase, the defendant resold the car to an automobile dealer in Pennsylvania for $4,500.00.

Following the transaction in Maryland, the defendant traveled to South Carolina where he obtained a motor vehicle dealer's license in the name of Dealers Exchange, rented a building to be used as an office front, purchased an insurance binder as required under state law, and opened bank accounts in the name of Dealers Exchange.

In March 1983 the defendant returned to Maryland and engaged in two additional transactions. He purchased a 1978 Datsun 280Z and a Lincoln Continental with checks drawn on the account of Dealers Exchange at the South Carolina National Bank. Both checks, in the total amount of $14,700.00, were returned for insufficient funds. The transportation of these checks in interstate commerce formed the basis for counts three and four of the indictment. After obtaining good title to both of these cars, the defendant resold them immediately to an auto dealer in Bel Air, Maryland for a total price of $12,500.00. The initial payment check from the dealer of $8,300.00 was deposited in an account of the defendant at the Central Bank of the South in Birmingham, Alabama, which formed the basis for count five of the indictment. ¹

Following his arraignment, the defendant informed the district court of his intention to represent himself and requested a hearing under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 49 L.Ed.2d 562 (1975). After an examination of the defendant and a hearing, the Court determined that the defendant was competent to represent himself at trial and the Office of the Federal Public Defender was appointed as standby counsel.

Prior to trial, Gillis filed a notice of intent to rely upon a defense of insanity. When the government learned that Gillis's insanity defense would be based upon a theory of pathological gambling, the government filed a Motion in Limine seeking to exclude all such testimony on the ground that, as a matter of law, pathological gambling does not fall within the ambit of the American Law Institute (ALI) test for legal responsibility and does not provide a sufficient basis for a defense of insanity. After a pretrial hearing, the trial court issued a Memorandum and Order dated May 4, 1984, in which it expressed its tentative decision to allow evidence of pathological gambling to be heard by the jury and to address the government's contentions within the context of jury instructions.

On April 30, 1984, a jury was empanelled and the case proceeded to trial. At trial, appellant did not deny the acts of purchasing and reselling the cars, but argued that he had no intent to defraud the victims. Appellant attempted to rely on a dual defense of lack of specific intent and insanity, both of which were based primarily on his gambling problems. Although appellant did not take the stand himself, he attempted to introduce evidence of his involvement in a legitimate used car business which, because of his numerous personal problems, did not prove successful. Appellant relied principally on his pathological gambling, but also introduced evidence of marital problems, problems with his parole supervision, "post-traumatic shock," and employment problems.

Appellant called two expert psychological witnesses. First he called Dr. Custer, who had examined appellant and testified for him in a 1980 trial. ² In that case, the appellant was charged with kidnapping and interstate transportation of a stolen motor vehicle and Dr. Custer had testified that Gillis suffered from pathological gambling disorder and was not, in his opinion, criminally responsible for his actions. Although Dr. Custer had not examined appellant since the 1980 trial, he testified that Gillis had not been treated for his gambling, and therefore still suffered from the disorder. ³

Appellant next called Dr. Moravec, who had examined him solely in connection with the subject case. Dr. Moravec concluded that appellant suffered from a pathological gambling disorder, and was unable to diagnose any secondary disorders with any degree of medical certainty. On the basis of his pathological gambling, concluded Dr. Moravec, appellant suffered a mental disease or defect and was unable to conform his conduct to the requirements of the law.

Following the testimony of Drs. Custer and Moravec the court determined that pathological gambling, in and of itself, without proof of some other disorder, did not constitute a mental "disease or defect" under the ALI definition of insanity, and instructed the jury accordingly. The government later called its expert, Dr. Michael Spodak, to testify in rebuttal. Dr. Spodak agreed that appellant was a pathological gambler, but concluded that the disorder did not cause appellant to lack the capacity to conform his conduct to the requirements of the law. At the conclusion of the evidence, the court repeated to the jury its instruction that pathological gambling did not satisfy the ALI test.

The jury returned a verdict of guilty on all five counts of the indictment, and appellant was sentenced to serve eight years to run consecutively with any time the appellant was then serving. The court also ordered the appellant to make restitution totaling $23,700.00 pursuant to 18 U.S.C. Sec. 3579.

Appellant noted his appeal, and counsel was appointed from the Office of the Public Defender to represent him. Appellant subsequently filed a motion to proceed pro se. An order was entered at the direction of Judge Wilkinson denying the motion, but allowing the appellant to file a supplemental brief addressing any issue not raised by counsel. During the course of preparation of the trial transcript, it was discovered that a one-hour portion of a non-evidentiary pretrial hearing on April 24, 1984, had been inadvertently erased. Pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure, the parties filed their proffered statements of their recollections of what occurred during the missing portions of the hearing. By Memorandum and Order dated January 23, 1985, the district court certified for inclusion in the record its determination of what took place during the period missing from the tape.

Appellant raises four issues for review on appeal. First, he alleges that the trial court committed error when it permitted the government to elicit from Dr. Custer, on cross-examination, testimony concerning the events surrounding appellant's 1980 conviction for kidnapping and interstate transportation of a stolen motor vehicle. Second, appellant claims that, because a portion of the record was inadvertently erased, effective appellate review is denied and a new trial warranted. Third, appellant claims that the trial court committed reversible error by instructing the jury that pathological gambling, by itself, did not provide a sufficient basis for an insanity defense under the ALI test. Fourth, appellant claims that this court improperly denied his motion to proceed on appeal pro se.

Appellant's first claim of error is the admission, over objections, of testimony by Dr. Custer concerning the facts surrounding the appellant's 1980 conviction for interstate transportation of a stolen motor vehicle and kidnapping. ⁴ The trial court, in preliminary hearings, had determined that the government would not be allowed to introduce in its case-in-chief the circumstances of that conviction. The court warned Gillis, though, that if Dr. Custer testified to an opinion based on his 1980 diagnosis, the government would be allowed on cross-examination to elicit the basis of that opinion, even if that included the facts of the prior trial.

At trial the appellant called Dr. Custer, considered the...