U.S. v. Brown

• Decision Date: 27 March 1990
• Docket Number: D,No. 563,563
• Citation: 899 F.2d 189
• Parties: UNITED STATES of America, Appellee, v. Theodore Lawrence BROWN, Defendant-Appellant. ocket 89-1377.
• Court: U.S. Court of Appeals — Second Circuit

Page 189

899 F.2d 189

UNITED STATES of America, Appellee, v. Theodore Lawrence BROWN, Defendant-Appellant.

No. 563, Docket 89-1377.

United States Court of Appeals Second Circuit.

Argued Dec. 4, 1989.

Decided March 27, 1990.

Geoffrey W. Crawford (O'Neill and Crawford, Burlington, Vt., on the brief), for defendant-appellant.

Charles A. Caruso, Asst. U.S. Atty., Rutland, Vt. (George J. Terwilliger, III, U.S. Atty., John-Claude Charbonneau, Asst. U.S. Atty., on the brief), for appellee.

Before NEWMAN and WINTER, Circuit Judges, and TENNEY, District Judge. ^*

JON O. NEWMAN, Circuit Judge:

The issue on this appeal is whether insanity is a defense to a violation of probation. Theodore Lawrence Brown, a federal prisoner, appeals from a July 25, 1989, order of the District Court for the District of Vermont (Albert W. Coffrin, Judge) revoking his probation after Brown admitted to violating two of its conditions. At the revocation hearing, the District Court prohibited Brown from raising the defense of insanity, though the Court allowed him to present expert psychiatric testimony on the issue of sentencing. After reviewing this evidence, the Court revoked probation and sentenced Brown to the custody of the Attorney General of the United States for a period of five years.

Brown challenges the revocation on several grounds. First, he argues that the District Court violated his right to the insanity defense established by 18 U.S.C. Sec. 17 (1988), which he contends applies to revocation proceedings. Second, he asserts that even if the federal insanity defense statute does not apply by its own terms to revocation proceedings, the defense recognized by the statute should nevertheless be applied to these proceedings. Third, Brown extracts from Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), a constitutional limitation on the power of courts to revoke probation where its conditions are violated by an individual who lacks the capacity to appreciate the wrongfulness of his conduct. We disagree with each of Brown's contentions and affirm the order of the District Court.

Background

In 1983, Brown was indicted on charges of cultivating marijuana, in violation of 21 U.S.C. Secs. 812, 841, and 846 (1988). On March 18, 1985, as a result of Brown's guilty plea to one count of that indictment, the District Court imposed a term of imprisonment of five years, suspended execution of the sentence, and placed Brown on probation for five years. On September 15, 1986, the Government filed the first of three petitions for revocation. This petition charged Brown with possession of marijuana and firearms in violation of the terms of his probation. At a revocation hearing on October 8, 1986, the District Court found that Brown had violated his probation but nevertheless ordered probation continued under the original conditions. The Court warned Brown that "this may well be his last chan[c]e to make appropriate adjustments to the conditions of his probation and should he be in further violation of said conditions there is a good likelihood a substantial period of incarceration may ensue." On July 23, 1987, the Government filed a second petition for revocation after Brown was convicted in state court for obstruction of justice. Slightly more than a year later, for reasons that are unclear from the record, the Probation Office withdrew this petition. The Government filed a third petition for revocation on August 25, 1988. This petition initially stated three grounds for revocation: unlawful possession of firearms, possession of cocaine in the District of New Jersey, and absence from the District of Vermont without permission. Later, this petition was amended to include an additional charge: possession of cocaine in the District of Vermont. At a preliminary hearing the District Court found probable cause that Brown had violated the terms of his probation and ordered him detained pending a final hearing.

Brown then gave notice of his intent to rely on the defense of insanity at the time of the acts alleged to have violated the conditions of probation. Cf. Fed.R.Crim.P. 12.2 (notice of insanity defense prior to trial of criminal charges). The Government moved to strike this notice, and, upon the recommendation of a magistrate, the District Court granted the Government's motion in an order dated July 13, 1989. Observing that revocation was not part of a criminal prosecution, the District Court ruled that the pertinent inquiry in a revocation proceeding was only whether the probationer had breached the conditions as a matter of fact.

At the final hearing on July 25, 1989, Brown admitted to two of the four grounds in the Government's petition: possession of ten ounces of cocaine, with intent to distribute, in the District of Vermont and absence from the District without permission. Following these admissions, the District Court found that Brown had violated the conditions of his probation and moved to the second phase of the hearing, the determination of whether to continue probation or impose a sentence. At that point, Brown presented evidence in support of the continuation of probation, including evidence that he was mentally incompetent when the violations occurred. An expert psychologist, Dr. Richard Musty, testified that Brown suffered from a cocaine psychosis at the time of his probation violations. This testimony was confirmed to some degree by Dr. Kathleen Stern, a psychiatrist who had examined Brown in an unrelated state court proceeding a year earlier and had diagnosed him as a chronic paranoid schizophrenic. The Government challenged this evidence. In a written report Dr. John Ives, a psychiatrist, testified that, though Brown's behavior resembled a "mixed personality disorder with paranoid and antisocial features," he in fact suffered from neither a cocaine psychosis nor a paranoid schizophrenia. At the conclusion of the hearing, the District Court revoked Brown's probation and sentenced him to the custody of the Attorney General for a period of five years.

Discussion

1. We turn first to Brown's argument that the federal insanity defense statute, codified at 18 U.S.C. Sec. 17, applies in probation revocation proceedings. Section 17(a) of that statute establishes a uniform standard for the insanity defense in all federal prosecutions:

It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

Brown contends that the statutory phrase "prosecution under any Federal statute" encompasses revocation proceedings because he was threatened with a loss of liberty under 18 U.S.C. Sec. 3565(a) (1988), the statutory provision authorizing a court to modify or revoke probation after finding a violation of its conditions. Brown attempts to draw support for his interpretation from the absence of any legislative history indicating an intent to exclude probation revocation hearings from the scope of section 17.

We find Brown's reasoning unpersuasive. Prior to the enactment of the federal insanity defense statute in 1984, the Supreme Court expressly rejected the characterization of a revocation proceeding as a criminal prosecution. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973); see also Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972) (parole revocation proceeding not part of criminal prosecution). In Gagnon v. Scarpelli, the Court distinguished revocation proceedings from criminal prosecutions on the ground that a probationer already stands convicted of a crime, even though both proceedings may result in a loss of liberty. Id. at 782, 93 S.Ct. at 1759. For this reason the Supreme Court has declined to attach to revocation proceedings "the full panoply of procedural safeguards associated with a criminal trial." Black v. Romano, 471 U.S. 606, 613, 105 S.Ct. 2254, 2258, 85 L.Ed.2d 636 (1985). For example, while a criminal conviction requires proof beyond a reasonable doubt, revocation requires only proof to satisfy the court "that the probationer has abused the opportunity granted him not to be incarcerated." Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir.1974); United States v. Nagelberg, 413 F.2d 708, 709 (2d Cir.1969), cert. denied, 396 U.S. 1010, 90 S.Ct. 569, 24 L.Ed.2d 502 (1970); see also Knight v. Estelle, 501 F.2d 963, 964 n. 3 (5th Cir.1974) (adopting preponderance of the evidence standard for revocation proceedings), cert. denied, 421 U.S. 1000, 95 S.Ct. 2399, 44 L.Ed.2d 668 (1975). We believe that Congress did not mean to include revocation proceedings within the phrase "prosecutions under any federal statute."

2. Brown next argues that even if section 17 by its own force does not extend the insanity defense to revocation proceedings, this Court should nevertheless adopt that section's test of criminal responsibility as the standard for the revocation of probation. Though it is unclear by what authority Brown would have this Court establish a threshold level of criminal responsibility in revocation proceedings, he is presumably asking that we read this requirement into the statute governing probation revocation, 18 U.S.C. Sec. 3565 (1988).

This claim raises a novel issue in this Circuit. In United States v. Mercado, 469 F.2d 1148 (2d Cir.1972), we expressly declined to decide whether a lack of criminal responsibility in violating the terms of probation constituted a defense to revocation. Id. at 1152. In that case, we held that because the overwhelming evidence in the record tended to demonstrate that the probationer was mentally incompetent, the District Court could not rest probation revocation on the ground that the probationer was...