U.S. v. Cartagena-Carrasquillo, CARTAGENA-CARRASQUILL

• Decision Date: 06 November 1995
• Docket Number: FIGUEROA-GARCI,D,94-1236 and 94-2127,Nos. 94-1235,LUGO-LOPE,CARTAGENA-CARRASQUILL,s. 94-1235
• Citation: 70 F.3d 706
• Parties: UNITED STATES of America, Appellee, v. Luisefendant, Appellant. UNITED STATES of America, Appellee, v. Carlosefendant, Appellant. UNITED STATES of America, Appellee, v. Jose L.efendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 706

70 F.3d 706

UNITED STATES of America, Appellee, v. Luis CARTAGENA-CARRASQUILLO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Carlos LUGO-LOPEZ, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Jose L. FIGUEROA-GARCIA, Defendant, Appellant.

Nos. 94-1235, 94-1236 and 94-2127.

United States Court of Appeals, First Circuit.

Heard Nov. 6, 1995.

Decided Dec. 1, 1995.

Roberto Roldan Burgos, Rio Piedras, PR, by appointment of the court, for appellant Cartagena-Carrasquillo.

Miriam Ramos Grateroles, Bayamon, PR, by appointment of the court, for appellant Lugo-Lopez.

Theodore L. Craft, Melrose, MA, by appointment of the court, for appellant Figueroa-Garcia.

Nelson Perez-Sosa, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Washington, DC, was on brief, for appellee.

Before TORRUELLA, Chief Judge, LYNCH, Circuit Judge, and WATSON, ^* Senior Judge.

LYNCH, Circuit Judge.

Cocaine trafficking in Puerto Rico resulted in the criminal convictions of the three appellants, who raise issues primarily as to the conduct of their trials. Two issues--the exclusion of expert evidence attempting to establish an insanity defense based on Posttraumatic Stress Disorder claimed to have resulted from military service in Vietnam and the prosecutor's ill-considered reference to religion in his closing argument--merit close discussion. We affirm, rejecting the defendants' challenges on these and other grounds.

Facts and Trial Proceedings

In the summer of 1992, Jefferson Moran, a special agent with the Drug Enforcement Administration ("DEA"), learned from a confidential informant, Ramon Malave, that defendant Carlos Lugo-Lopez was interested in selling kilogram quantities of cocaine. On instruction from Moran, Malave confirmed Lugo-Lopez' interest in a phone conversation and later called to negotiate the purchase of two kilograms of cocaine. Malave told Lugo-Lopez that he could page Moran (whom Malave said would handle the money) when he was ready to make the transactions. Lugo-Lopez had Moran paged. Lugo-Lopez left a message for Moran that the "contracts" were ready and that he should drop by Lugo-Lopez' house to pick them up.

Malave went to the Lugo-Lopez residence, where he met the supplier, defendant Luis Cartagena-Carrasquillo. Cartagena-Carrasquillo left, saying that he would return right away with the drugs. Cartagena-Carrasquillo later returned with defendant Jose L. Figueroa-Garcia and a bag. They went to a room at the rear of the carport where Cartagena-Carrasquillo opened the bag and took out a kilo of cocaine.

During phone conversations between Moran and Malave while Malave was at Lugo- Lopez' house, Malave said two men had arrived to sell two of the four kilograms of cocaine in the bag. Lugo-Lopez asked Malave to call his partner, Moran, to come and put up the money. In a round robin, Lugo-Lopez kept insisting that the money be brought to his house while Malave, on instructions from Moran, tried to lure Lugo-Lopez to San Juan (where an arrest would be easier) with promises he would be paid there. At some point during the series of pages and telephone calls, Cartagena-Carrasquillo and Figueroa-Garcia left to sell one of the kilos to another. When the two returned, Lugo-Lopez and Malave were still sallying about where the sale would take place. Cartagena-Carrasquillo got upset with the delay and left in a car with Figueroa-Garcia.

Law enforcement agents shadowed the car, driven by Figueroa-Garcia, and saw Cartagena-Carrasquillo get out of the car carrying a tan bag. When agents approached him, he got back into the car and fled with Figueroa-Garcia. A car chase resulted, ending in a public housing project. The two men fled by foot and were ultimately arrested. Cartagena-Carrasquillo, who had the tan bag in his hands when he abandoned the car, did not have it when he was arrested. Agents later found it in a trash can in the area where he first fled on foot. It contained three kilograms of cocaine and $12,900 in cash.

On June 17, 1992, a grand jury returned a four-count indictment charging that Lugo-Lopez, Cartagena-Carrasquillo, Figueroa-Garcia, and another, aiding and abetting each other, possessed with intent to distribute some 3303.96 grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Lugo-Lopez was also charged in two counts with using a telephone in furtherance of drug distribution in violation of 21 U.S.C. Sec. 843(b).

Trial started on November 30, 1993. After four days of testimony, defendants requested and were granted a mistrial. Cartagena-Carrasquillo and Lugo-Lopez moved for dismissal on double jeopardy grounds. The district court's denial of the motion was appealed.

While that appeal was pending, this case went to trial for the second time on February 14, 1994. The defendants were found guilty of all counts. The appeals from the conviction were consolidated with the appeals from the denial of the motion to dismiss on grounds of double jeopardy.

Post-Traumatic Stress Disorder

Lugo-Lopez argues there was error in the exclusion of his proffered expert testimony that he suffered from Post-Traumatic Stress Disorder ("PTSD") and his attempts to base an insanity defense on PTSD. ¹

The insanity defense, set forth at 18 U.S.C. Sec. 17, is an affirmative defense. The burden is on the defendant to show by clear and convincing evidence, see 18 U.S.C. Sec. 17(b), 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.

18 U.S.C. Sec. 17(a). There is a procedural component to assertion of the defense as well. Rule 12.2 of the Federal Rules of Criminal Procedure requires that notice of an intention to raise the insanity defense must be given by the defendant to the government "within the time provided for the filing of pretrial motions or at such later time as the court may direct." If such notice is not given, the insanity defense may not be raised.

The trial court excluded the PTSD evidence primarily because it felt inadequate notice had been given and secondarily because it thought the evidence was insufficient in any event. The standard of review for excluding the testimony under Rule 12.2 is abuse of discretion. See United States v. Cameron, 907 F.2d 1051, 1059 (11th Cir.1990); United States v. Weaver, 882 F.2d 1128, 1136 (7th Cir.), cert. denied sub nom. Schmanke v. United States, 493 U.S. 968, 110 S.Ct. 415, 107 L.Ed.2d 380 (1989); United States v. Duggan, 743 F.2d 59, 80 (2d Cir.1984). A district court's decision to admit or exclude expert testimony is entitled to great deference and will be reversed only if: (1) the decision was based on an incorrect legal standard or (2) the reviewing court has a " 'definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.' " United States v. Shay, 57 F.3d 126, 132 (1st Cir.1995) (quoting United States v. Benavente Gomez, 921 F.2d 378, 384 (1st Cir.1990)); see also United States v. Brien, 59 F.3d 274, 277 (1st Cir.1995) ("[T]rial judges have traditionally been afforded wide discretion to admit or exclude expert evidence."), cert. denied, --- U.S. ----, 116 S.Ct. 401, 133 L.Ed.2d 320 (1995).

The insanity defense was not raised in the aborted first trial, nor was it raised when Lugo-Lopez asserted and lost the issue of whether he was competent to stand trial. One month after the mistrial, Lugo-Lopez first filed a written motion on January 11, 1994, giving notice of a PTSD defense. The motion indicated that Lugo-Lopez would present the testimony of both Luis Falcon-Torres, his caseworker at the Puerto Rico Vietnam Veteran's Assistance Program, and an as yet unnamed expert on PTSD. The motion also said that the facts surrounding the commission of the crime showed that defendant was suffering from delusions or a disease or disorder that affected his conduct. The motion was discussed in a February 1, 1994 status conference and the judge hearing that motion "noted" that Lugo-Lopez "shall raise at trial the defense of insanity" and that "[t]he issue whether post traumatic stress disorder is admissible shall be resolved at trial."

The government, aware only of psychiatric evaluations performed by a Dr. Cabrera earlier on defendant's competence to stand trial, on February 4 requested a preliminary hearing on the admissibility of the proposed PTSD testimony. On February 9, Lugo-Lopez responded and filed a motion stating his intent to offer a Dr. Santiago as his expert witness and requesting authorization for this expert's services. The authorization was granted, and counsel was "reminded that the admissibility of Dr. Santiago's testimony [would be] left to the trial judge."

Trial started before a different judge on February 14. At no time did Lugo- Lopez file proposed instructions on an insanity defense, although on the first day of trial he did file a memorandum of law as to whether PTSD could constitute an insanity defense. On the fifth day of the six-day trial, the issue of the PTSD defense came up indirectly, during colloquy concerning an objection to the social worker's testimony as to Lugo-Lopez' war record and medals. The court noted at a sidebar conference that such testimony would be admissible, if at all, ² only if the PTSD defense was admissible and asked to see psychiatric expert's report. Later, after review of the report, the trial court excluded the insanity defense.

The defense was, we think, timely raised in light of the pre-trial rulings of the conference judge noting the raising of the defense and reserving the admissibility issue to trial and the later authorization of the retention of the psychiatric expert. See Cameron, 907 F.2d at 1059. But...