U.S. v. Fisher

• Decision Date: 10 November 1993
• Docket Number: No. 93-7002,93-7002
• Citation: 10 F.3d 115
• Parties: UNITED STATES of America v. James A. FISHER, III, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 115

10 F.3d 115

UNITED STATES of America v. James A. FISHER, III, Appellant.

No. 93-7002.

United States Court of Appeals Third Circuit.

Argued Oct. 25, 1993.

Decided Nov. 10, 1993.

James A. Zurick (argued), Shamokin, PA, for appellant.

James J. West, U.S. Atty., Frederick E. Martin (argued), Asst. U.S. Atty., Lewisburg, PA, for appellee.

Before: BECKER, ALITO, and ROTH, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge:

Following a jury trial, James A. Fisher, III was convicted on three counts of transmitting threatening communications in interstate commerce, in violation of 18 U.S.C. Sec. 875(c). On appeal, Fisher contends that the trial court erred (1) in denying his request shortly before the commencement of trial for a further continuance to obtain additional testing relating to his insanity defense, (2) in refusing to grant a mistrial when the prosecutor asked a particular question and the witness made an unsolicited reference to a prior prosecution of Fisher, and (3) in refusing to instruct the jury regarding the consequences of a verdict of not guilty by reason of insanity. We hold that the trial court did not err in its disposition of these matters, and we therefore affirm Fisher's conviction.

I.

In January 1989, a judge of the United States District Court for the Western District of Wisconsin received a letter threatening the sexual assault and murder of that judge and another district court judge in the same district. Although the letter itself was unsigned, the upper left corner of the envelope bore Fisher's name and his mailing address at the United States Penitentiary at Lewisburg, Pennsylvania. In late May and early June 1989, similar threatening letters were received by a judge of the United States District Court for the Southern District of California and the Clerk of the United States District Court for the Eastern District of Virginia.

As a result of these letters, Fisher was indicted in May 1991 on three counts of sending threatening communications in interstate commerce. In July of that year, he entered a plea of not guilty, and his trial was initially scheduled for September. In August, Fisher filed notice of his intent to raise an insanity defense. At the same time, he also submitted requests for the appointment of an expert to provide psychiatric assistance to the defense and for a trial continuance until after October 17. The court granted these requests and continued the trial until November 12. On November 1, Fisher moved for a trial continuance until February 1992 so that his psychiatrist could secure background information about him. The judge once again granted the request and continued the trial until February 12. On January 29, 1992, Fisher filed his expert psychiatric report as required by 18 U.S.C. Sec. 4246(b). The report, authored by Dr. Abrahm Hostetter, a psychiatrist, diagnosed Fisher as suffering from "organic personality syndrome."

After receiving this report, the prosecution filed motions for psychiatric evaluations of Fisher pursuant to 18 U.S.C. Sec. 4241(a) (competency) and 18 U.S.C. Sec. 4242(a) (sanity). The court granted these motions and postponed the trial until April 6. On March 30, the prosecution sought an additional postponement because the court-ordered evaluations had not been completed, and the district court granted a trial continuance until May 4. After Fisher filed an additional motion for a continuance, the court scheduled a competency hearing for May 22 and scheduled jury selection for June 1.

Following the presentation of evidence at the competency hearing on May 22, Fisher's counsel sought an additional continuance so that tests such as an electroencephalogram (EEG), computerized axial tomography (CAT), and magnetic resonance imaging (MRI) could be performed to determine whether Fisher had any organic brain damage. The judge stated that he was reluctant to grant the request because of the delay that had already occurred. Instead, it was agreed that the prosecution would ascertain whether the Bureau of Prisons could arrange for the tests to be performed prior to trial.

Jury selection began on June 1, and the trial commenced on June 8. At that time, the prosecution informed Fisher's counsel that the Bureau of Prisons had been unable to arrange for the requested tests within the time provided. Fisher's attorney again requested a continuance, but the district court denied the request.

At trial, the defense did not dispute the fact that Fisher had sent the threatening letters but instead maintained that Fisher was insane. The defense expert, Dr. Hostetter, testified that Fisher suffered from organic personality syndrome. Acknowledging that this diagnosis required evidence of organic brain damage, Dr. Hostetter concluded that Fisher had suffered such damage at some point in his life. Although Dr. Hostetter stated that he could not be certain what had caused the damage, he noted that Fisher had reported being hospitalized for pneumonia as a child, and Dr. Hostetter stated that a high fever resulting from that illness could have caused the damage.

The prosecution's expert witnesses, Dr. Thomas Owens, a psychiatrist, and Dr. Rushton Backer, a psychologist, reached a different conclusion. They testified that Fisher instead suffered from a "borderline personality disorder," and they found no indication that Fisher had any organic brain damage.

When the court instructed the jury, it refused Fisher's request for an instruction that stated that "[i]f the defendant is acquitted by reason of insanity, he will be presumed to be insane and may be confined in a hospital for the insane as long as public safety and welfare require." The jury returned a verdict of guilty on all counts, and the district court denied Fisher's request for a new trial. United States v. Fisher, 808 F.Supp. 390 (M.D.Pa.1992). The court subsequently sentenced Fisher to 57 months' imprisonment, and Fisher took this appeal.

II.

Fisher first argues that the district court erred in refusing his request for a continuance so that tests for organic brain damage could be performed. "In determining if a continuance should be granted, a court should consider: the efficient administration of criminal justice; the accused's rights, including an adequate opportunity to prepare a defense; and the rights of other defendants awaiting trial who may be prejudiced by a continuance." United States v. Kikumura, 947 F.2d 72, 78 (3d Cir.1991), quoting United States v. Fischbach and Moore, Inc., 750 F.2d 1183, 1195 (3d Cir.1984), cert. denied, 470 U.S. 1029, 105 S.Ct. 1397, 84 L.Ed.2d 785 (1985). In addition, the diligence of counsel in requesting the continuance is a relevant factor. See, e.g., United States v. Cruz-Jiminez, 977 F.2d 95, 104 n. 13 (3d Cir.1992). On appeal, "[a] trial court's decision to deny a continuance will only be reversed if an abuse of discretion is shown." Kikumura, 947 F.2d at 78. We find no abuse of discretion in this case.

Most important, we believe that the timing of the continuance request was unjustifiable. By at least January 1992, when the defense psychiatric report was filed, the defense was aware that its expert had diagnosed organic personality syndrome, and once this diagnosis was made the importance of evidence of organic brain damage should have been apparent. At trial, all of the experts agreed that a diagnosis of organic personality syndrome requires such evidence. Indeed, the defense moved into evidence an excerpt from the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders 114-15 (3d ed--rev.1987), which lists the following as one of the diagnostic criteria for this disorder:

There is evidence from the history, physical examination or laboratory tests of a specific organic factor (or factors) judged to be etiologically related to the disturbance.

Thus, as the district court concluded, ¹ if the defense thought that an EEG, a CAT scan or MRI were needed, it should have made its request well before it did.

Turning to the other factors that are relevant in determining whether a continuance should be granted, we think it is apparent that granting the continuance would have impaired the efficient administration of justice. By the time this request was made, the district court had already granted numerous continuances and had put off the scheduled trial date for eight months.

Finally, while we cannot rule out the possibility that Fisher may have suffered some prejudice, any such prejudice was not alone sufficient to justify a reversal. Certainly any such prejudice was substantially less than that present in the case on which Fisher relies, United States v. Pope, 841 F.2d 954 (9th Cir.1988). There, the denial of a continuance deprived the defendant of "the only evidence potentially supportive of his insanity defense." Id. at 957; see also United States v. Flynt, 756 F.2d 1352, 1359-61 (9th Cir.1985). Here, Fisher had the benefit of Dr. Hostetter's expert psychiatric testimony, and Dr. Hostetter testified that he was able to detect organic brain damage without an EEG, a CAT scan, or MRI. ² In light of all these factors, ³ we find no abuse of discretion in the denial of the continuance request.

III.

Fisher next argues that the district court erred in not granting a mistrial based on the following colloquy, which occurred during the redirect examination of Dr. Backer (June 9, 1992 Tr. 101-02 (emphasis added)):

Q. With respect to whether the Government's Exhibit 1.1 [one of Fisher's letters] contained a realistic attempt at extortion, did it achieve insofar as Mr. Fisher's expressed goals in 1980-1990 when you first seen him, did that achieve the goals that he then sought?

A. You mean did the letters achieve the goals? If I understand your question correctly, he--I'm not sure if I'm allowed to go into this part--he wrote letters before, he has been prosecuted for that, he had received--

At this point,...