U.S. v. Emery

• Decision Date: 30 July 1982
• Docket Number: No. 81-1174,81-1174
• Citation: 682 F.2d 493
• Parties: 11 Fed. R. Evid. Serv. 144 UNITED STATES of America, Plaintiff-Appellee, v. Charles EMERY, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 493

682 F.2d 493

11 Fed. R. Evid. Serv. 144

UNITED STATES of America, Plaintiff-Appellee, v. Charles EMERY, Jr., Defendant-Appellant.

No. 81-1174.

United States Court of Appeals, Fifth Circuit.

July 30, 1982.

Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.

LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., Francis J. Martin, Atty., Dept. of Justice, Washington, D. C., for the U. S.

Appeal from the United States District Court for the Western District of Texas.

Before THORNBERRY, REAVLEY and RANDALL, Circuit Judges.

THORNBERRY, Circuit Judge:

Charles Emery appeals from his conviction on one count of armed robbery under 18 U.S.C. § 2113(a). No one disputes proof that Emery entered the South Park National Bank in San Antonio, Texas, on September 25, 1981, with the intent of robbing it, nor do the parties disagree on Emery's ability to conduct himself with the appearance of rationality. The single issue in the court below was whether Emery had the capacity to conform his conduct to the requirements of the law when he robbed South Park National Bank. Emery contends that as a paranoiac operating within an intricate delusional system, he was legally insane at the time of the robbery. The government counters this claim by portraying Emery's conduct as consistently organized, calculated, and rational. To this end, the prosecution offered evidence to prove that appellant had robbed an Atlanta bank one month before the San Antonio robbery in exactly the same manner. The propriety of admitting this evidence of another crime under Fed.R.Evid. 404(b) is the primary issue presented for review in this court. Appellant also alleges error in the prosecutor's comment on the evidence during the cross-examination of an expert, and in the admission of a statement by appellant after the robbery showing that he understood his Miranda rights.

I. FACTS

Appellant has shown an interest in the occult and psychic phenomenon since his sophomore year in high school. Though he has believed for years that he possessed strong psychic powers, his paranoiac delusions did not begin until he received a mediocre performance evaluation from his superior officer in the Navy sometime between 1974 and 1978. Appellant's feeling that his rating was unfair gradually transformed into an obsessive fear that the report would fall into the hands of national intelligence agencies, such as the CIA, who would then try to control his mental processes. Appellant sought help from various psychic consultants in New York and in Atlanta, where he later resided. His sessions with a psychic in Atlanta in 1979 were recorded on tape and admitted into evidence at trial.

The psychic corroborated appellant's belief in his own telepathy powers and his fear that intelligence agencies were trying to control him. She warned him to escape the affections of a co-worker at the hospital where he was employed because the co-worker was a tool of intelligence agencies. Emery, therefore, quit his job to tour psychic research institutes in Europe. He journeyed through London, Finland, and Moscow, spending the last of his inheritance. Upon his return to the United States, Emery's fear of intelligence agencies intensified. A psychic told him that intelligence agencies were using other psychics to read his mind and monitor his thoughts. She advised Emery to escape their pending grip on his mind by remaining mobile. He succumbed to his fears and began a lonely journey through America and Canada staying no longer than four or five hours in any one place. He eventually ran out of money and returned to Atlanta.

On August 25, 1980, he entered the Standard Federal Savings & Loan Association in Atlanta and demanded $10,000. An accounts assistant from Standard Federal described in detail appellant's behavior during the robbery. An FBI agent assigned to investigate the robbery corroborated her testimony. According to the testimony of these lay witnesses, Emery spoke calmly and appeared normal in both gestures and movements. He indicated that he had a weapon, though he never displayed one. He placed the money in an old green army bag and escaped.

Appellant left Atlanta after the bank robbery and headed for the Baja peninsula where the psychic had predicted he would join Jacques Cousteau in creating an undersea farming community. He decided to pass through San Antonio on his way. When he arrived in this river city, he had only five or ten dollars in his pockets. Reflecting on his predicament in the parking lot of a local shopping center on the morning of September 25, 1980, appellant's thoughts turned to a solution that had proven successful one month earlier: bank robbery. He claimed at trial that his fear of intelligence agencies prevented any consideration of alternative means of obtaining money.

Appellant checked out at least one other bank before arriving at his target, South Park National Bank. Wearing a cap and sunglasses, appellant again approached a teller with his hand inside the green army bag to give the appearance of a handgun, and again, he stated, "this is a stick-up." After hitting the alarm near her desk, the teller gave appellant over $8,000. Pursued by two male bank employees, appellant ran out the door. The employees caught appellant as he was trying to back his 1978 Mazda out of its parking place. The car's repeated stalling prevented a fast getaway. One of the employees opened the door on appellant's side of the car, pressed his foot on the brake, and turned the key off in the ignition. He found the green bag filled with the stolen money on the passenger's side of the front seat. The police arrived shortly thereafter and arrested appellant. Appellant's response to police officers suggested that he was sufficiently coherent to understand his Miranda rights. Appellant subsequently was indicted first for the San Antonio robbery and then for the Atlanta robbery. Nothing in appellant's conduct during the commission of these crimes suggested any form of mental illness to eyewitness observers.

II. ADMISSIBILITY OF THE ATLANTA ROBBERY

Rule 404(b) provides that "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc), this court construed the rule in light of the other rules of evidence and held that Rule 404(b) calls for a two-step test: "First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403." ¹ The resolution of these questions lies within the sound discretion of the trial judge, and the decision to admit extrinsic evidence will not be disturbed absent a clear showing of an abuse of discretion. United States v. Vincent, 648 F.2d 1046, 1051 (5th Cir. 1981); United States v. De La Torre, 639 F.2d 245, 250 (5th Cir. 1981); United States v. Benton, 637 F.2d 1052, 1056 (5th Cir. 1981). This Court is unusually mindful of this standard of review in a case like the instant one where the question of admissibility is difficult and where the trial judge carefully weighed the appropriate criterion in light of the proof presented.

Before we discuss the probative value of the extrinsic offense, we discuss briefly what the government must prove to obtain a conviction. A person violates 18 U.S.C. § 2113(a) when he takes money from a bank through force or intimidation. Bank robbery under this section is a general intent and not a specific intent crime. United States v. Smith, 638 F.2d 131, 132 (9th Cir. 1981). Appellant has never urged that he lacked the capacity to distinguish right from wrong for purposes of criminal liability. Rather, he insists that he lacked the requisite intent because his paranoiac delusions rendered him unable to conform his conduct to the law. His capacity to conform his conduct to law thus constituted the focal point of dispute at trial. Now this Court must consider whether evidence of appellant's conduct during the Atlanta robbery is relevant to that issue.

An offer of proof is relevant when it has any tendency "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. The District Judge concluded that the extrinsic offense was relevant after listening to the testimony of a psychiatrist who stated that evidence of the Atlanta robbery was a significant factor in his analysis of whether appellant was legally insane. The judge's finding of relevancy is consistent with one of the few decisions in this circuit which address the relevancy of an extrinsic offense to an insanity defense. In United States v. Davis, 513 F.2d 319, 321 (5th Cir. 1975), cert. denied, 424 U.S. 921, 96 S.Ct. 1129, 47 L.Ed.2d 329 (1976), the appellant raised an insanity defense to a charge of kidnapping. The government presented evidence of (1) another crime in which the appellant used the same alias; (2) a car theft occurring the same day of the kidnapping; and (3) the rape of the kidnapped victim. Finding that the evidence was properly submitted to the jury, this Court accepted the government's contention that:

(A)ppellant's conduct on all these occasions evidenced a well organized goal directed individual; that his acts, including his attempt to conceal his identity, to cover the course of his conduct, and to facilitate his escape, indicated no lack of coordination or reasoning, nor acts of a person acting out of impulse, but clearly indicated that he...