U.S. v. Fazzini, s. 87-1712

• Decision Date: 13 June 1989
• Docket Number: 88-1984,Nos. 87-1712,s. 87-1712
• Citation: 871 F.2d 635
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul FAZZINI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 635

871 F.2d 635

UNITED STATES of America, Plaintiff-Appellee, v. Paul FAZZINI, Defendant-Appellant.

Nos. 87-1712, 88-1984.

United States Court of Appeals Seventh Circuit.

Argued Jan. 3, 1989.

Decided March 23, 1989.

Rehearing and Rehearing En Banc Denied June 13, 1989.

Alan M. Freedman, Chicago, Ill., for defendant-appellant.

Kristina M.L. Anderson, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, POSNER, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Defendant Paul Fazzini was indicted by a grand jury on three counts of bank robbery in violation of 18 U.S.C. Secs. 2113(a) and (d), and three counts of carrying a firearm during those robberies in violation of 18 U.S.C. Sec. 924(c)(1). A jury found the defendant guilty on all counts and the district judge sentenced him to 25-year concurrent terms on two of the bank robberies, a suspended sentence and five year term of probation on the third bank robbery, and a total of 25 years on the firearm counts, to run consecutively to the sentence on the robberies. Although he raises a host of issues on appeal, ¹ the defendant's principal claims are that the district judge (1) abused her discretion by refusing to permit the defendant, an indigent, to retain an independent psychiatric expert at government expense and in excluding at trial evidence of the defendant's mental condition, and (2) erred in refusing to appoint counsel to assist the defendant at his sentencing hearing. We cannot find that the district judge abused her discretion in either the decision to deny the defendant the services of an independent psychiatric expert at government expense or in the decision to exclude the evidence of the defendant's mental condition. We also find that the district judge did not err in refusing to appoint counsel to assist the defendant at his sentencing hearing. Thus, we affirm the judgment and sentence of the district court.

I.

The defendant contends that the district judge abused her discretion by refusing to permit him to retain an independent psychiatric expert at government expense. The right to the assistance of an independent psychiatric expert is safeguarded, at least in federal prosecutions, by two separate provisions. First, the due process clause guarantees indigent defendants the aid of government-paid psychiatric assistance. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 1091, 84 L.Ed.2d 53 (1985). Second, 18 U.S.C. Sec. 3006A(e) permits an indigent defendant to request the aid of government-supported independent experts.

The statute, and the Court's decision in Ake, recognize that independent expertise is often necessary in the subtle and complicated area of mental health. The independent psychiatric expert performs three functions which may be crucial in cases where mental health is a substantial issue. First, the expert can aid a defendant in determining whether a defense based on mental condition is warranted by the defendant's particular circumstances. Ake, 105 S.Ct. at 1096. Second, the expert can coherently present to the jury his or her observations of the defendant, as well as his or her understanding of the defendant's mental history, and explain to the jury how those observations and that history are relevant to the defendant's mental condition. Id. at 1095. Finally, the expert can "assist in preparing the cross-examination" of psychiatric experts retained by the government. Id. at 1096.

Of course, the utility of the independent expert to the defense will diminish as the importance of the defendant's mental condition declines in a particular case. Thus, before the due process clause will mandate that a psychiatric expert be retained at government expense, a defendant must make a preliminary showing "that his [or her] sanity is likely to be a significant factor in his [or her] defense." Id. Similarly, 18 U.S.C. Sec. 3006A(e) provides for expert assistance only after a defendant has shown that such services are "necessary." The services are "necessary" when a defendant can show that his mental condition will be a significant factor at trial. See United States v. Sloan, 776 F.2d 926, 929 (10th Cir.1985); see also United States v. Alden, 767 F.2d 314, 318 (7th Cir.1984) (government-paid psychiatric expert not mandated by Sec. 3006A(e) where defendant is engaging in a "fishing expedition").

In this case, the defendant's counsel, on March 7, 1986, notified the government that the defendant might rely on a mental condition defense at trial. Shortly thereafter, at the request of defense counsel, the district court transferred the defendant to the Federal Medical Center ("FMC") at Rochester, Minnesota, for testing to determine whether the defendant was competent to stand trial and sane at the time of the alleged crimes. Two medical personnel, Dr. Christina Echols, a staff psychologist, and Timothy Ondahl, the Unit Manager of the FMC's chemical dependency program, independently examined the defendant and each found that he was competent to stand trial and sane at the time of the commission of the crimes. Dr. Echols concluded that, while the defendant exhibited a Mixed Personality Disorder Consisting of Anti-Social and Passive-Aggressive Features, he suffered from no major mental illness. Ondahl examined the defendant for signs of alcoholism and determined that "the usual indications or symptoms used to identify chemically [sic] dependency indicate that Mr. Fazzini is not chemically dependent." Thus, the defendant was returned to Chicago to stand trial.

On September 15, 1986, the defendant made his first request for the aid of a government-paid independent psychiatric expert. The district court, citing the results of the tests performed at the FMC, denied that request. The defendant renewed his request on December 10, 1986, but was again unsuccessful. The defendant eventually went to trial without the aid of any independent psychiatric assistance.

The defendant claims that, at the time he made his request for an independent psychiatric expert, three pieces of evidence showed that his mental condition would be a significant factor at trial. First, there was a letter from a Dr. Dach which stated that the defendant, in 1975, was diagnosed as suffering from Acute Schizophrenic Reaction and was hospitalized in connection with that illness. ² Second, the defendant's counsel informed the court that the defendant had a history of alcoholism and had been hospitalized on more than one occasion for treatment of that disease. Finally, the district court experienced the defendant's volatile nature first-hand in his inability to cooperate with appointed counsel, resulting in the withdrawal of four separate attorneys, and in his combativeness in dealing with the court. The district judge found that this evidence was insufficient to show that the defendant's mental condition would be a substantial issue at trial and, although it is a close question, we cannot find that that decision was an abuse of discretion.

The district judge primarily based her decision on the results of the defendant's testing at the FMC. See Alden, 767 F.2d at 319 (district judge can properly consider results of government testing in determining whether a defendant's mental condition will be a significant factor at trial). Those examinations provided no evidence to support the defendant's contention that he was a chronic alcoholic. The examinations at the FMC did reveal that the defendant suffered from a personality disorder that made it difficult for him to interact in a normal fashion with other people. That disorder, which falls short of the sort of mental illness that could provide a viable defense, explained both the difficulty the defendant encountered in retaining appointed counsel and the defendant's contentious attitude toward the proceedings in the district court. See Tucker v. Kemp, 818 F.2d 749, 752 (11th Cir.), cert. denied, 481 U.S. 1063, 107 S.Ct. 2209, 95 L.Ed.2d 863 (1987) (no showing that defendant's mental health would be a significant issue at trial where government examination showed, among other things, that the defendant suffered only from a personality disorder rather than any serious mental illness). Thus, the only evidence that the defendant's mental health might be a substantial issue at trial was the letter from Dr. Dach.

Reactive Schizophrenia, the ailment ascribed to the defendant in the letter, is defined as "those forms of severe schizophrenic disorders which are distinguished from process schizophrenia by their more acute onset, greater relation to environmental stress, and better prognosis." STEDMAN'S MEDICAL DICTIONARY 1261 (5th ed. 1982). Since full remission for those who suffer from schizophrenia is rare, AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (3d ed. rev. 1987), we agree with the defendant that the letter was some evidence that his mental condition could be a substantial issue at trial. Nevertheless, we cannot find that the district judge abused her discretion by finding that the letter standing alone was insufficient to show that the defendant's mental condition would be a substantial issue at trial.

First, the 1975 diagnosis of schizophrenia was at least partially refuted by Dr. Echols' determination that the defendant suffered from no major mental illness. ³ Second, although the defendant was never clear about what mental condition he claimed he suffered from--alternatively calling it "alcoholism," "alcohol-induced unconsciousness," and "insanity"--the defendant focused his mental condition argument on the alcohol-related conditions. The evidence of schizophrenia contained in Dr. Dach's letter, however, was never connected by the defendant to his claims of alcoholism and alcohol-induced unconsciouness. Third, the defendant made no attempt to explain how his schizophrenia, assuming he actually suffered from that disease, would affect the government's ability to...