U.S. v. Lewellyn, 82-2416

• Decision Date: 21 December 1983
• Docket Number: No. 82-2416,82-2416
• Citation: 723 F.2d 615
• Parties: UNITED STATES of America, Appellee, v. Gary Vance LEWELLYN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 615

723 F.2d 615

76 A.L.R.Fed. 739

UNITED STATES of America, Appellee, v. Gary Vance LEWELLYN, Appellant.

No. 82-2416.

United States Court of Appeals Eighth Circuit.

Submitted May 19, 1983.

Decided Dec. 21, 1983.

Richard C. Turner, U.S. Atty., S.D. Iowa, Des Moines, Iowa, for appellee.

David M. Barrett, Joseph E. Schuler, Barrett, Hanna, Daly & Gaspar, Washington, D.C., Robert J. Baudino, Jr., Neiman, Neiman, Stone & Spellman, P.C., Des Moines, Iowa, for appellant.

Before LAY, Chief Judge, and HEANEY and FAGG, Circuit Judges.

FAGG, Circuit Judge.

Gary Lewellyn, a Des Moines stockbroker, was indicted on nine counts of embezzlement, 18 U.S.C. Sec. 656, three counts of making a false statement, 18 U.S.C. Sec. 1014, and three counts of mail fraud, 18 U.S.C. Sec. 1341, for converting over $17 million in money and securities from two Iowa banks. In response to the government's pretrial motion the district court ruled that Lewellyn could not rely on a defense of insanity by reason of pathological gambling and excluded evidence related to that defense. Lewellyn then waived a jury trial and was convicted on all counts following a trial to the court based primarily on stipulated evidence. On appeal Lewellyn contends that the district court committed error in precluding his insanity defense. We affirm.

As a preliminary matter, we decline the government's invitation to modify or abandon the American Law Institute (ALI) insanity test as adopted by this court in United States v. Frazier, 458 F.2d 911 (8th Cir.1972):

(1) A defendant is insane * * * if, at the time of the alleged criminal conduct, as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

(2) As used in this Article, the terms "mental disease or defect" do not include any abnormality manifested only by repeated criminal or otherwise anti-social conduct. Model Penal Code Sec. 4.01 (Final Draft 1962).

Id. at 918 (footnote omitted). As a panel we are without authority to modify the insanity standard established in this circuit. Only the court en banc is empowered to change an existing rule of law. See United States v. Howard, 706 F.2d 267, 269 (8th Cir.1983). Consequently, the Frazier test provides the framework for our decision in the present case.

Lewellyn does not contend that he suffered a mental condition which entailed a lack of substantial capacity to appreciate the wrongfulness of his conduct. Rather, he claims that he should have been allowed to present evidence that as a pathological, or compulsive, gambler he lacked substantial capacity to conform his conduct to the requirements of law. Of necessity, his position is that not only did his mental condition render him unable to abstain from gambling, but that he also lacked substantial capacity to avoid breaking the law to obtain the funds required for gambling.

The district court held a pretrial hearing that emphasized three questions: (1) whether pathological gambling is a mental disease or defect within the meaning of the ALI rule, (2) whether a pathological gambler is unable to resist impulses to gamble, and (3) whether a pathological gambler lacks substantial capacity to refrain from engaging in criminal activity such as embezzlement and similar offenses. At the hearing Lewellyn introduced as an exhibit the Diagnostic and Statistical Manual of Mental Disorders (3d ed. 1980) (DSM-III) published by the American Psychiatric Association, in which pathological gambling is classified and described as a disorder of impulse control. In addition Lewellyn adduced expert testimony which indicated that pathological gambling, although classified as a mental disorder, is the equivalent of a mental disease within the meaning of the ALI insanity rule. Lewellyn's expert witnesses further testified that some pathological gamblers are unable to refrain from gambling and that some pathological gamblers are unable to resist engaging in criminal activities to support their gambling compulsion. Lewellyn does not argue on appeal that the pretrial hearing was an improper method for determining whether he should have been allowed to rely on a defense of insanity at trial.

The district court observed that factual issues had been raised on the three questions that had been the subjects of the pretrial hearing and noted that perhaps these factual issues should be presented to a jury by allowing Lewellyn to rely on an insanity defense at trial. The district court was concerned, however, with the relationship between the mental condition asserted, pathological gambling, and the crimes charged. Accordingly, the district court noted that to allow the insanity defense in this case would amount to "a revolutionary expansion of the defense of insanity * * * " and held "that a defense of insanity, based upon a disorder of impulse control in the form of pathological gambling, is not available to a Defendant charged with embezzlement even if there is evidence which would support a finding that he lacked substantial capacity to conform his conduct to the requirement[s] of the law." The district court then granted the government's motion to exclude evidence pertaining to a defense of insanity by reason of pathological gambling.

As the district court recognized, the central question in this case is the link between pathological gambling and criminal activity such as embezzlement. We will therefore make some assumptions for the sake of discussion and put aside some issues that need not be addressed in this case. We will assume that Lewellyn is himself a pathological gambler. We will also assume for purposes of this case that some pathological gamblers are unable to resist impulses to gamble. We are able to glean from the record that the largest share of the embezzled funds was used to finance stock and commodities speculation through various brokerage house accounts under Lewellyn's control, and we will assume that his speculative endeavors constituted gambling behavior.

The district court held as a matter of law that in a prosecution for embezzlement a defendant may not rely on a theory of insanity by reason of pathological gambling, and accordingly precluded evidence to support this theory, even after the court concluded that Lewellyn had made a sufficient showing that a pathological gambler charged with embezzlement fits within the language of the ALI rule. In our view, however, this case may be resolved without reaching the question whether as a matter of law such a limitation should be placed on the availability of the insanity defense. Hence, while we agree with the result reached by the district court, we note the well-established rule that we may affirm on any ground supported by the record, even though that ground was not relied on by the district court. See Blum v. Bacon, 457 U.S. 132, 137 n. 5, 102 S.Ct. 2355, 2359 n. 5, 72 L.Ed.2d 728 (1982); Brown v. St. Louis Police Department, 691 F.2d 393, 396 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1882, 76 L.Ed.2d 812 (1983).

We have recognized that in order to raise the issue of insanity a defendant must make a minimum showing. A defendant is presumed sane, but the introduction of evidence of insanity dispels the presumption and subjects the prosecution to the burden of proving sanity beyond a reasonable doubt. United States v. Dresser, 542 F.2d 737, 742 (8th Cir.1976), citing Davis v. United States, 160 U.S. 469, 486-88, 16 S.Ct. 353, 357-58, 40 L.Ed. 499 (1895). In Dresser we referred to this threshold showing as a "prima facie case of insanity." 542 F.2d at 742 n. 7.

We have not decided whether evidence of pathological gambling is evidence of insanity which will permit a defendant to rely on an insanity defense at trial. In United States v. Gilliss, 645 F.2d 1269 (8th Cir.1981), the defendant was convicted on charges of kidnapping and interstate transportation of a stolen vehicle in a jury trial at which he presented a defense of insanity by reason of pathological gambling. On appeal Gilliss contended that the trial court committed error in denying his motion for judgment of acquittal, arguing that the government had failed to sustain its burden of proving sanity beyond a reasonable doubt. We assumed that the evidence of insanity offered by Gilliss was sufficient to shift the burden of proving his sanity to the...