U.S. v. Mota, 78-5421

• Decision Date: 16 July 1979
• Docket Number: No. 78-5421,78-5421
• Parties: 4 Fed. R. Evid. Serv. 861 UNITED STATES of America, Plaintiff-Appellee, v. Evelio MOTA and Juan Flores, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 995

598 F.2d 995

4 Fed. R. Evid. Serv. 861

UNITED STATES of America, Plaintiff-Appellee, v. Evelio MOTA and Juan Flores, Defendants-Appellants.

No. 78-5421.

United States Court of Appeals Fifth Circuit.

July 16, 1979.

Steven Kreisberg, Asst. Federal Public Defender, Miami, Fla., for mota.

S. David Jaffe, Miami, Fla., for Flores.

Joel C. Fanning, Linda C. Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before TUTTLE, TJOFLAT and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

Juan Flores and Evelio Mota, following a joint jury trial, were convicted of conspiracy to distribute cocaine and possession of cocaine with intent to distribute in violation of 18 U.S.C. § 2 (1976) and 21 U.S.C. §§ 841(a)(1), 846 (1976). In addition, Flores was convicted of unlawfully carrying a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c)(2) (1976).

Flores's defense to the charges was that he was insane when the offenses were committed; on appeal, he contends that his defense was established as a matter of law, thus entitling him to a judgment of acquittal. Alternatively, Flores asks us to grant him a new trial; he claims that the district court denied him due process by forcing him to go to trial while suffering from amnesia. Mota seeks a new trial, contending that the district court abused its discretion in refusing his repeated request for a separate trial. ¹ For the reasons set forth below, we reject the contentions of both defendants and affirm.

I. FACTS

On November 29, 1977, Jerry Castillo, a special agent of the Drug Enforcement Administration (DEA), and an anonymous confidential informant met with Mota in Miami, Florida, pursuant to a telephone conversation the previous day, to arrange the purchase of five kilograms of cocaine. After some discussion, Castillo, Mota, and the informant proceeded to Flores's house, where Flores showed Castillo cocaine and a price, $36,000, for one kilogram of the drug was negotiated. Later that evening, Mota, Castillo, and DEA agent James Harris drove to Flores's house to complete the transaction. Castillo weighed and tested the cocaine and told Flores he would like to buy more from him in the future. Flores responded that any future sales must be arranged by Mota. Castillo, accompanied by Mota, returned to his vehicle, ostensively to obtain the $36,000 purchase price. Once outside, Mota was arrested; several agents then entered the house and arrested Flores, who was carrying a fully loaded and functioning 9-millimeter semiautomatic Baretta pistol in a special holster about his waistband.

On December 7, 1977, the indictment in this case was returned against Flores and Mota; not guilty pleas were subsequently entered. On February 1, 1978, Flores notified the prosecution that he intended to rely upon the defense of insanity. Following a hearing on February 17, 1978, Flores was adjudged mentally incompetent for trial and ordered to undergo psychiatric treatment. Another competency hearing was held on March 3, 1978; by written order dated March 21, 1978, the district court found Flores competent to stand trial. In its order the court noted medical testimony indicating that Flores had suffered a complete loss of memory concerning the events upon which the charges against him were based but was capable of understanding the charges and of consulting with his attorney. On this testimony, the court concluded that amnesia alone was insufficient to render this defendant incompetent; the loss of memory could be established by Flores at trial, however, to buttress his insanity defense. Record, vol. 1, at 44-45. Flores does not challenge the propriety of this pretrial ruling. His argument is that by the conclusion of his trial it became apparent that the loss of memory had precluded him from mounting any defense to the charges; thus, he was denied a fair trial.

The defendants proceeded to trial together on May 15, 1978. Because of comments made during the opening statements of counsel, Mota promptly moved for a severance from Flores. In the prosecutor's statement, the jury had been advised of the nature of the charges contained in the indictment and the Government's proof had been previewed. The statement of Flores's attorney that followed had acknowledged "that the evidence probably will show As to the defendant Flores, basically what (the prosecutor) has said." Id. at 29 (emphasis added). The attorney went on to say, however, that Flores would be shown blameless by reason of insanity. Mota's counsel reserved his opening statement and, after the district judge gave the jury a brief preliminary instruction on conspiracy, moved for a severance. Counsel argued that Flores's opening statement amounted to an admission that Mota, as well as Flores, had committed the offenses charged and therefore foreclosed any possibility that Mota could receive a fair trial. A severance was also required because, counsel contended, the defendants would present inconsistent defenses: Mota denying that the alleged criminal conduct ever occurred while Flores was confessing but seeking to avoid responsibility for want of mental capacity. The motion for severance was denied.

The Government's proof made out an overwhelming case against both Flores and Mota. In defense, only Flores chose to present any evidence; neither defendant took the stand. Flores's evidence came from two medical witnesses, Dr. Benjamin Coleman, a psychiatrist, and Dr. Jules Trop, a general practitioner. Neither physician mentioned Flores's alleged amnesia (a matter never brought before the jury); both testified that Flores was insane at the time of the offenses. Dr. Coleman concluded that Flores was a paranoid schizophrenic who, on November 29, 1977, suffered from a disease or defect of the mind which rendered him substantially incapable of appreciating the wrongfulness of his conduct and unable to control his acts to conform to the requirements of the law. Record, vol. 2, at 108, 113. In short, in the doctor's opinion Flores was not malingering or otherwise feigning mental illness, Id. at 114, and was legally insane. Id. at 113. Dr. Trop reached the same conclusion as Dr. Coleman. In rebuttal, the Government produced no expert witnesses to challenge the opinions of these physicians, relying instead on the lay testimony of those who had observed Flores before and during his involvement in the conduct set out in the indictment. Several DEA agents (Castillo, Harris and others who dealt with Flores earlier) testified that, to them, Flores had appeared normal and exhibited no bizarre behavior.

At the close of all the evidence, Flores moved for a directed verdict of acquittal on the ground that the Government had failed to prove his sanity at the time of the charged offenses; the motion was denied. Mota also moved for an acquittal, contending that the Government's case was insufficient; the court never ruled on the motion, thereby denying it.

II. FLORES'S CASE

A. Amnesia and Due Process :

In this circuit amnesia does not constitute incompetency per se to stand trial. United States v. Swanson, 572 F.2d 523, 526 (5th Cir.), cert. denied, 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978). The propriety of trying an amnesia defendant must be determined according to the circumstances of each individual case. Id. We have carefully examined the record in this case and conclude that Flores's trial was not rendered constitutionally infirm because of his amnesia.

It is evident from the record that throughout the trial Flores was able "to consult with his (attorney) with a reasonable degree of rational understanding . . . and (had) a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960). Although Flores steadfastly protested his innocence, he apparently conceded that he was present when the drug deal with the undercover DEA agents took place. In fact, neither defendant seriously questioned the Government's portrayal of the transaction. We are convinced that Flores's testimony, were he to have regained his memory of the critical events, would not have contradicted the Government's depiction of them. Consequently, we fail to see how Flores's amnesia worked a material prejudice upon him at any time as the trial progressed. See United States v. Swanson, 572 F.2d at 527.

In hindsight, Flores contends that his amnesia precluded the establishment of his insanity defense to the satisfaction of the jury. Flores has now concluded that the jury chose to believe the Government's lay testimony concerning his demeanor and mental state rather than that of his two physicians because the lay testimony went to the jury unimpeached. Had he been able to recollect the time surrounding his arrest, including his prior encounters with undercover DEA agents, he may have been able to testify, Flores speculates, that his behavior was not normal, as the agents described, but was instead that of one in the throes of an exacerbated state of paranoid schizophrenia. Flores has yet to demonstrate, however, through a proffer of evidence or otherwise, that a paranoid schizophrenic is capable of recalling how he acted and manifested his illness at an earlier time when experiencing an acute episode of his disease. We are not persuaded by Flores's hindsight argument.

We especially note that, following Flores's presentation of his insanity defense and the Government's rebuttal, Flores made no effort to bring the dilemma he now describes to the trial judge's attention. No request was made for a continuance, so that defense witnesses could be marshalled to contradict the Government's evidence; nor was a mistrial demanded on the ground that Flores's amnesia had become such a hindrance as to deny him a fair trial. It is clear to us that Flores's trial strategy was to...