U.S. v. Mostella

• Decision Date: 15 October 1986
• Docket Number: No. 85-1120,85-1120
• Citation: 802 F.2d 358
• Parties: 21 Fed. R. Evid. Serv. 1334 UNITED STATES of America, Plaintiff-Appellee, v. George MOSTELLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 358

802 F.2d 358

21 Fed. R. Evid. Serv. 1334

UNITED STATES of America, Plaintiff-Appellee, v. George MOSTELLA, Defendant-Appellant.

No. 85-1120.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 1985.

Decided Oct. 15, 1986.

Rudy Orjales, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

A.J. Kramer, Asst. Federal Public Defender, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before WRIGHT, KENNEDY, and BEEZER, Circuit Judges.

KENNEDY, Circuit Judge:

Appellant George Mostella was convicted of unarmed bank robbery in violation of 18 U.S.C. Sec. 2113(a). He argues that there was insufficient evidence of his sanity to convict him, and that he was denied a fair trial because of prosecutorial and judicial misconduct. We affirm his conviction.

Mostella's sole defense was insanity. His insanity defense rested on evidence that at the time of the robbery he was suffering from schizophrenia, and as a consequence could not conform his conduct to the law. Testimony focusing solely on whether Mostella could appreciate the wrongfulness of his conduct was not received; apparently, the district court made it clear to Mostella's counsel that if he attempted to argue that Mostella could not appreciate the wrongfulness of his conduct, the court would admit evidence of a prior bank robbery and the psychiatric reports prepared in connection with it.

Mostella now argues that the record was completely barren of evidence showing that he could appreciate the wrongfulness of his conduct, as required under the insanity test applicable at the time of the offense. Under that test, a person is insane if "as a result of a mental disease or defect, [he] lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law." United States v. Smeaton, 762 F.2d 796, 799 (9th Cir.1985) (quoting United States v. Henderson, 680 F.2d 659, 661 (9th Cir.1982)).

The government contends that there was sufficient evidence of sanity to support Mostella's conviction. Specifically, it argues that the jury could have found that Mostella did not suffer from a mental disease at all, or, that even if he did, the disease did not prevent him from appreciating the wrongfulness of his actions. We must accept the government's position if, after evaluating the evidence in the light most favorable to the prosecution, we determine that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Lane, 765 F.2d 1376, 1381 (9th Cir.1985) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).

In this case Dr. Kessler testified that Mostella did not suffer from paranoid schizophrenia, expressly disagreeing with the conclusions of Dr. Rosenthal, the defense psychiatrist, and a 1971 Army psychiatric report. In particular Dr. Kessler found the Army report too general to support a diagnosis of schizophrenia, noting that the specific behavioral symptoms described in the report, such as ambivalence, inability to concentrate, and difficulty with interpersonal relationships did not necessarily suggest paranoid schizophrenia. Moreover, on the basis of his own investigations, Dr. Kessler concluded that Mostella did not exhibit the classic symptoms of the disorder, such as persecutorial or grandiose delusions. Given that the resolution of conflicting expert testimony is generally for the jury, Smeaton, 762 F.2d at 798; United States v. Schmidt, 572 F.2d 206, 208 (9th Cir.1977), a reasonable jury could have accepted Dr. Kessler's testimony and found Mostella sane beyond a reasonable doubt. In accepting Dr. Kessler's testimony regarding Mostella's sanity, the jury would necessarily have found that paranoid schizophrenia did not prevent Mostella from appreciating the wrongfulness of his conduct.

Even if a jury, on the basis of Dr. Kessler's testimony, could not find beyond a reasonable doubt that Mostella understood the wrongfulness of his conduct, there is other evidence in the record from which a jury could reach the same conclusion. See United States v. Fortune, 513 F.2d 883, 890 (5th Cir.) (expert testimony not necessary to discharge government's burden of proof on sanity issue), cert. denied, 423 U.S. 1020, 96 S.Ct. 459, 46 L.Ed.2d 393 (1975). In particular, Mostella's attempts to divert the police through the false robbery report, his modest efforts to conceal himself during the robbery, and even his claim not to remember the robbery and his suggestion that he may have been in Oakland at the time, all could be taken by the jury to evidence consciousness of the wrongfulness of his act. Cf. United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1014 (7th Cir.1984) (evidence of sanity in form of attempts at concealment sufficient to show defendant was aware of the wrongfulness of his conduct), cert. denied, 469 U.S. 1193, 105 S.Ct. 972, 83 L.Ed.2d 975 (1985); United States v. Ming Sen Shiue, 650 F.2d 919, 923 (8th Cir.1981) (evidence of concealment relevant to prove sanity); J. Wigmore, Evidence in Trials at Common Law Sec. 276 (Chadbourn rev. ed. 1979) (evidence of hiding or attempted escape sufficient to show consciousness of guilt). While such circumstantial evidence of sanity may not have been sufficient to discharge the government's burden of proof had the defendant introduced expert testimony regarding knowledge of wrongfulness, see United States v. Cooper, 465 F.2d 451, 453 (9th Cir.1973), in the absence of any such testimony the circumstances of the offense are such that a rational jury could find Mostella understood his conduct to be wrongful. Cf. United States v. Ingman, 426 F.2d 973, 976 (9th Cir.1970) (quantity of evidence needed to prove sanity varies in each case).

Mostella next complains of numerous incidents of prosecutorial misconduct which he claims necessitate a new trial. These incidents include misstating the law, referring to the difficult responsibility of prosecuting, speculating that appellant was a "bad apple" not wanted by the Army, and denying that heroin use was a defense to crime, all in closing argument, and implying, based on facts outside the record, that Drs. Kessler and Rosenthal listened to the 911 tape at the same time. While the district court found the prosecutor's conduct had "come close" to warranting a new trial, he declined to declare a mistrial.

We will reverse a district court's refusal to grant a mistrial only if we find that it is "more probable than not that the misconduct in question materially affected the jury's verdict." United States v. Nadler, 698 F.2d 995, 1001 (9th Cir.1983). In other words, the defendant must be "actually prejudiced" by the misconduct. United States v. Spawr Optical Research, Inc., 685 F.2d 1076, 1082 (9th Cir.1982), cert. denied, 461 U.S. 905, 103 S.Ct. 1875, 76 L.Ed.2d 807 (1983). In determining whether the alleged incidents of misconduct had the requisite impact on the trial to justify reversal, we defer to the assessment of the district court since trial judges are generally better situated to evaluate the effect of any misconduct. United States v. Flake, 746 F.2d 535, 541 (9th Cir.1984), cert. denied, 469 U.S. 1225, 105 S.Ct. 1220, 84 L.Ed.2d 360 (1985); see Nadler, 698 F.2d at 1001 (appellate court gives "great deference" to trial court's handling of alleged misconduct at trial).

Here the district...