U.S. v. Costello, 83-3691

• Decision Date: 20 May 1985
• Docket Number: No. 83-3691,83-3691
• Citation: 760 F.2d 1123
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael V. COSTELLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1123

760 F.2d 1123

UNITED STATES of America, Plaintiff-Appellee, v. Michael V. COSTELLO, Defendant-Appellant.

No. 83-3691.

United States Court of Appeals Eleventh Circuit.

May 20, 1985.

William J. Sheppard, Jacksonville, Fla., for defendant-appellant.

John E. Steele, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY and CLARK, Circuit Judges, and SIMPSON, Senior Circuit Judge.

CLARK, Circuit Judge:

I. FACTS

Michael V. Costello was convicted on three counts of mailing threatening communications to a federal judge in violation of 18 U.S.C. Sec. 876 ¹ and was sentenced to five years imprisonment on each count with the sentences to run consecutively. In this appeal he raises four issues: (1) whether the district court abused its discretion in denying defendant's motion for a continuance of the trial; (2) whether the district court erred in refusing to instruct the jury on insanity and involuntary intoxication; (3) whether the district court abused its discretion in denying defendant's motion for a continuance of the sentencing; and (4) whether the defendant was improperly denied effective assistance of counsel at sentencing. We affirm.

On February 9, 1983, Mr. Costello, an inmate at the Florida State Prison in Starke, Florida received an opinion and order from the Honorable Susan H. Black dismissing a lawsuit he had filed regarding prison conditions. In response he wrote the following letter to Judge Black:

Dear Judge Black:

I have received this date your Opinion and Order entered in the above cause on 7 February 1983. Said Opinion, particularly section 3, is replete with inapplicable law and ignores substantial constitutional issues.

For seventeen months, this case remained dormant, only for you to strike a death blow with your insipid and absurd rendition of the facts and law.

Your opinion will most surely be reversed by the Eleventh Circuit. Your opinion only sanctions the oppression and victimization of prisoners by corrupt and unconcerned prison officials.

You merely assist in the oppression of prisoners and reduce to a farce the concept of prisoners' rights. You are an oppressive fascist and a disgrace to the Judicial Branch.

Your deeds and duplicity regarding the oppression of prisoners is deserving of nothing less than death. You should be subjected to revolutionary justice. I hereby sentence you to death.

When the time is right, I shall kill you and your family. You deserve nothing less. You are a cancer on the System of Justice and which is reduced to a farce by you and your kind.

Death shall overtake you. I shall kill you. If history cannot be written with the pen, then it shall be written with the gun.

The Glorious Revolution, Michael V. Costello

On February 10, 1983 he wrote a second letter:

Dear Fascist Black:

The oppressors are gloating over their ill-deserved victory as represented by your order in the above cause on 7 February 1983.

Did you think my letter of 9 February 1983 would be the last? But this one shall. Your death is now but a mere formality. It has been arranged, and the judiciary shall be the better without you, you who disregards applicable law and denies meritorious litigation on the basis of frivolous decisional law and dubious rhetoric.

For this you shall die, and I shall be your executioner. The revolution will not be aborted. I shall be victorious, and the taste of your death shall sweeten the victory.

You are doomed. Revolution forever. Michael V. Costello.

Then on February 13, 1983, Mr. Costello mailed this third and final letter to Judge Black:

Fascist Black:

The color of this ink is not near the color of red that will flow before your totalitarian eyes, for revolutionary justice shall be sole vengence, first upon your dear ones, and once you have tasted the agony of victimization, your worthless existence will cease.

You feel secure in your citadel of power, knowing that I am incarcerated. But you shall learn that the walls of my prison cannot contain my contacts with those who shall be your executioners; for, contact them, I already have, and the death of you and yours is but a matter of time.

But do not think that you will be the first to experience my justice. Only last year, an inmate who betrayed me to the scum prison authorities suffered an early demise through my justice.

What appeared to be a mere heart attack was in fact a drug-induced death. Patrick Connelly lives no more because of his perfidious ways.

So, too, shall your demise arise, but the method shall be known not to you, only to me and mine. Your time grows short.

Revolution forever, Michael V. Costello.

These letters were turned over to the FBI by court personnel. Fingerprints found on one of the envelopes matched the appellant's prints. An agent took copies of the letters and went to interview Mr. Costello. After being advised of his Miranda rights, appellant identified the copies as the letters he had written to Judge Black. Additionally, Mr. Costello signed a statement admitting that he wrote and mailed the letters and further that he had taken steps to have Judge Black killed.

After several continuances, ² trial was set for September 7, 1983. On August 30, 1983, defendant filed a motion to proceed pro se and for a hearing on the motion the morning of trial.

On September 7, 1983 defense counsel's motion to withdraw and appellant's motion to proceed pro se was granted. However, counsel was appointed as standby counsel and thus ordered to observe the trial and assist appellant. Immediately before trial, the court denied another request for a continuance. The basis of this motion was that a continuance was needed to secure the presence of Dr. Van Fleet, a psychologist who had seen Mr. Costello on several occasions. Appellant maintained that Van Fleet was critical to his defense, which was essentially an insanity defense based upon diminished capacity due to drug use.

During trial, appellant renewed his request for a continuance in order to secure the appearance of Dr. Van Fleet. However, Van Fleet's current address could not be verified. ³ The trial court examined a proffer of two medical reports prepared by Van Fleet. Based upon this proffer, the trial court concluded there was no indication that Dr. Van Fleet would be of the opinion or testify that Costello was insane when he wrote the letters.

Appellant testified on his own behalf. Essentially his testimony focused upon the fact that he had been in solitary confinement for two years prior to writing the letters to Judge Black. He described the conditions which existed at the prison and the effects these conditions had upon him. Appellant further testified that, due to the mental and psychological stress of incarceration, he began to use drugs heavily. It was while he was in a drug induced state, he maintained, that he wrote the letters to Judge Black.

At the conclusion of trial, Costello moved for a jury instruction on involuntary intoxication, temporary insanity and insanity. The trial court denied these requests on the basis that appellant had not produced sufficient evidence to warrant the instructions. Costello was subsequently found guilty on all three counts.

On the morning of the sentencing hearing, November 23, 1983, Costello swallowed the top of a disposable razor blade in an apparent suicide attempt. He received medical treatment and was given medication, i.e. valium. The treating physician in a letter to the court indicated that the effects of the valium would be dissipated by that afternoon. When the appellant appeared for sentencing he moved for a continuance of the sentencing hearing. Costello indicated to the court that he had not examined the presentence report which was given to him several days earlier and thus was not prepared to go forward. He also indicated the medication and trauma of the suicide attempt were grounds for continuing the sentencing hearing.

The court recessed the sentencing for approximately one hour to allow the appellant time to collect himself. During the recess and at appellant's request, standby counsel resumed representation. ⁴ Standby counsel made another request for a continuance in order to prepare for the hearing which was denied. When the sentencing hearing resumed, the court highlighted the portions of the PSI which it deemed to be most relevant. Neither the appellant nor counsel contested the accuracy of this information. The court then gave the appellant an opportunity to speak to the court regarding sentencing and he declined. The court then sentenced Costello to five years on each count with the sentences to run consecutively to one another as well as to the state sentence he was then serving. This was the maximum sentence Costello could have received.

II. THE LEGAL ISSUES IN CONTEXT

A. Failure to Grant the Trial Continuance

Both parties generally ⁵ agree that the correct standard for evaluating the district court's denial of appellant's motion for a continuance is to be found in Dickerson v. State of Alabama, 667 F.2d 1364 (11th Cir.1982). In Dickerson the court delineated several factors to be considered in evaluating such a claim. Those factors were: (1) the diligence of the defense in interviewing the witness(es) and procuring his presence; (2) the probability of procuring his testimony within a reasonable time; (3) the specificity with which the defense is able to describe the witness' expected knowledge or testimony; and (4) the degree to which such testimony is expected to be favorable to the accused and the unique or cumulative nature of the testimony. 667 F.2d at 1390, see also Hicks v. Wainwright, 633 F.2d 1146, 1149 (5th Cir. Unit B 1981).

Applying the above factors to the facts of this case we find that the district court did not abuse its discretion in failing to grant the continuance. Leaving aside the question of diligence, ⁶ the...