U.S. v. Garcia

• Decision Date: 26 August 1996
• Docket Number: D,No. 1729,1729
• Citation: 94 F.3d 57
• Parties: UNITED STATES of America, Appellee, v. Felix GARCIA, Defendant-Appellant. ocket 95-1587.
• Court: U.S. Court of Appeals — Second Circuit

Page 57

94 F.3d 57

UNITED STATES of America, Appellee, v. Felix GARCIA, Defendant-Appellant.

No. 1729, Docket 95-1587.

United States Court of Appeals,

Second Circuit.

Argued June 12, 1996.

Decided Aug. 26, 1996.

Richard A. Reeve, Assistant Federal Public Defender, New Haven, CT (Thomas G. Dennis, Federal Public Defender, New Haven, CT, of counsel) for Defendant-Appellant.

Barbara Bailey Jongbloed, Assistant United States Attorney, District of Connecticut, New Haven, CT (Christopher F. Droney, United States Attorney, District of Connecticut, New Haven, CT; John W. McReynolds, Trial Attorney, United States Department of Justice, New York City, of counsel) for Appellee.

Before: LUMBARD, ALTIMARI, and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Defendant Felix Garcia appeals from his conviction before the United States District Court for the District of Connecticut (T.F. Gilroy Daly, District Judge ). On appeal, Garcia claims that: (1) the district court erred in instructing the jury that in order to find that Garcia satisfied his burden of proving insanity, his severe mental disease, rather than his alcohol and drug use at the time of the commission of the crime, must have been the cause of his inability to appreciate the wrongfulness of his actions; (2) he was deprived of his Sixth Amendment right to a fair trial because the district court refused to allow his attorney to deliver a rebuttal closing argument; (3) the government impermissibly amended the indictment charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) by relying at trial on proof of the firearm's connection The judgment of the district court is affirmed.

to foreign commerce when the indictment referred only to interstate commerce; and (4) the Supreme Court's recent decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), renders 18 U.S.C. § 922(g) unconstitutional on its face or as applied to Garcia.

BACKGROUND

During mid-afternoon on March 28, 1994, in response to a radio report that a man was threatening others with a gun, Bridgeport, Connecticut Police Officer James Kirkland was dispatched to 1111 Barnum Avenue in Bridgeport. On arrival, he saw a group of people on the sidewalk and, upon inquiring, was advised that the man with the gun was going up the street. Officer Kirkland saw the man, later identified as Defendant Felix Garcia, about forty yards away walking with a bicycle. Officer Kirkland then drove alongside Garcia in a marked police car, rolled down the driver's window, and asked Garcia: "What's up?" Garcia dropped the bicycle and responded: "Nothing's up." Garcia then reached for his waist and pulled out a gun. Officer Kirkland drew his weapon and fired a shot out of the driver's window into Garcia's stomach. Garcia thereafter was arrested.

On October 20, 1994, a grand jury indicted Garcia for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). After entering a plea of not guilty, Garcia moved for a competency evaluation. Judge Daly granted the motion on December 8, 1994 and, following the evaluation, Garcia was found competent to stand trial. On January 13, 1995, Garcia filed a notice of intent to rely on an insanity defense, pursuant to Rule 12.2 of the Federal Rules of Criminal Procedure. Trial commenced on May 3, 1995. Garcia presented his insanity defense, but on May 4, 1995, the jury rejected it and rendered a guilty verdict. On September 29, 1995, the district court sentenced Garcia under the armed career criminal provision of 18 U.S.C. § 924(e)(1) to a term of imprisonment of 192 months, to run concurrently with any sentence to be imposed by the State of Connecticut, to be followed by a five year term of supervised release. Judgment was entered on October 2, 1995. Garcia subsequently pled guilty in state court to attempted assault on a police officer and was sentenced to a term of imprisonment of ten years, to run concurrently with his federal sentence. On appeal, Garcia raises no objection to his sentence; his challenge is solely to his district court conviction.

DISCUSSION

I. The Insanity Defense Issue

Garcia argues that the district court erred in its insanity defense instruction to the jury to the effect that a finding of mental disease or defect could not be based upon Garcia's alcohol or drug consumption. Before we turn to the instruction at issue, we recount the evidence relating to the insanity defense raised at trial.

Jose Solano, Garcia's nephew, testified that he saw Garcia at approximately 12:00 p.m. on the day of the shooting when Garcia was working on a bicycle in the rear yard of Solano's apartment at 1111 Barnum Avenue. According to Solano, Garcia was acting "normal," "nice," and "calm" and was "happy" at that time. Solano also testified that Garcia showed Solano a gun, which Garcia claimed a friend had given to him.

According to his testimony, Solano left home for a few hours and returned at approximately 2:30 or 3:00 p.m. with his sister and his friend, Edwin Maldonado. When they arrived, they heard Solano's dogs barking in Solano's third floor apartment. As they approached the apartment, Maldonado, who had been living with Solano for several months, shouted to the dogs to shut up. Garcia, who was in the apartment making a sandwich and heard Maldonado yell at the dogs, came out of the apartment, grabbed Maldonado, threw him against the door, and told him never to tell the dogs to shut up. Shortly after Solano told Garcia to stop fighting with Maldonado, Garcia let go of Maldonado but continued to yell, and threatened Maldonado with the gun he had earlier shown to Solano. At Solano's request, Garcia eventually left the apartment, all the while yelling, swearing, and threatening both When Minerva Solano arrived, Garcia was still in the yard. When his sister asked him to leave, he did so, taking his bicycle with him. As he was leaving, he yelled: "They're going to get you, they're going to get me." He also threatened to blow up the block and said that Hitler was coming, that this was a communist world, and that "demons are going to get you."

Solano and Maldonado. At that point, Solano telephoned his mother, Minerva Solano (Garcia's sister), and also called the police. Solano testified that, at this time, Garcia was acting "angry," "sounded like evil," and "sounded like he ... had a demon or something."

At trial, both sides put on psychiatric testimony. The psychiatrists for both sides testified to Garcia's long history of drug and alcohol use, beginning in his pre-teen years. Dr. Paul T. Amble, the defense psychiatrist, stated that Garcia had reported to him that on the day of the shooting and prior to the incident, he had smoked approximately nine or ten vials of crack cocaine and had drunk half a pint of brandy. Both Dr. Amble and Dr. Jeffrey Gottlieb, the government's psychiatrist, testified as to their awareness that Garcia had undergone numerous psychiatric evaluations in the past and that he had, on previous occasions, been diagnosed with bipolar disorder (also known as manic depression). They were also aware that, in the past, Garcia had received different diagnoses such as organic brain syndrome, secondary substance abuse, anti-social personality disorder, and substance abuse disorder.

Not surprisingly, the views of the psychiatrists differed as to the nature of Garcia's mental state at the time of the incident. Dr. Gottlieb testified for the government that Garcia's primary diagnosis was substance dependence--primarily on cocaine and alcohol--coupled with antisocial personality disorder. Dr. Gottlieb stated that Garcia's "behavior [was] entire[l]y consistent with someone who was, in common parlance, ... really high and probably drunk too." In contrast, Dr. Amble testified for the defense that Garcia suffered, and had long been suffering, from the severe mental disease of bipolar disorder, and that he was in a manic phase and suffered from delusional thinking on March 28, 1994. Dr. Amble also testified, however, that he could not "rule ... out completely" the possibility that Garcia's behavior was "simply the product of substance abuse."

On appeal, Garcia claims that the district court erred when it instructed the jury that to find that Garcia had met his burden of proving insanity, his inability to appreciate the wrongfulness of his actions must have been caused by severe mental disease rather than by alcohol and drug use. This issue is one of first impression in this circuit.

The district court charged the jury as follows:

Now, the effects of the voluntary use of drugs or alcohol do not constitute, nor may they legally give rise to a severe mental disease or defect. The voluntary use, if any you find, of drugs or alcohol also must be disregarded in determining whether the Defendant could appreciate the nature and quality of his acts or the wrongfulness of his acts. However, if you find that at the time in issue the Defendant had a severe mental disease or defect, and that the disease or defect gave rise to an inability to appreciate the nature or quality or wrongfulness of his acts, then the Defendant's consumption of drugs or alcohol, whether voluntary or involuntary, cannot preclude his defense of insanity.

The district court rejected the following instruction offered by Garcia:

There has been evidence at this trial regarding the defendant's substance abuse. Substance abuse, standing alone, does not constitute a severe mental illness. On the other hand, if you find that the substance abuse either caused or was caused by a separate mental illness, then you can consider both the mental illness and the substance abuse in assessing whether or not the defendant was able to know and appreciate the quality or wrongfulness of his actions.

As we previously have stated, "[a]lthough a defendant is entitled to a jury charge reflecting his theory of defense, that theory must...