U.S. v. Pasarell, 83-1410

• Decision Date: 08 February 1984
• Docket Number: No. 83-1410,83-1410
• Citation: U.S. v. Pasarell, 727 F.2d 13 (1st Cir. 1984)
• Parties: UNITED STATES of America, Appellee, v. Manuel Lecaroz PASARELL, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 13

727 F.2d 13

UNITED STATES of America, Appellee, v. Manuel Lecaroz PASARELL, Defendant, Appellant.

No. 83-1410.

United States Court of Appeals First Circuit.

Argued Dec. 8, 1983.

Decided Feb. 8, 1984.

John S. McBride, with whom David Cohen, P.C., Monticello, N.Y., was on brief, for defendant, appellant.

Everett M. de Jesus, Asst. U.S. Atty., with whom Daniel Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before COFFIN and BREYER, Circuit Judges, and MALETZ, ^* Senior judge.

COFFIN, Circuit Judge.

Appellant Manuel Lecaroz Pasarell was tried by a jury in the United States District Court for the District of Puerto Rico on a charge that on December 24, 1981, he had sold approximately fifty grams of cocaine to one Pedro Tirado. Although Tirado was appellant's second cousin, he proved to be, like Hamlet's uncle, "A little more than kin, and less than kind". He was, in fact, a government informer with a tape recorder in his boot. The jury convicted appellant of selling cocaine in violation of 21 U.S.C. Sec. 841(a)(1). The court sentenced him to ten years' imprisonment and a $25,000 fine; it released him on $200,000 bail pending this appeal. Appellant raises a number of issues on appeal, ranging from challenges to trial procedures to objections to his bail conditions and the severity of his sentence. We disagree with his arguments and affirm the judgment of the district court.

We address first appellant's argument that his conviction should be reversed because the prosecution failed to introduce sufficient evidence to justify the jury in concluding that his insanity defense had been rebutted. Appellant produced several lay witnesses who testified to his erratic behavior in the years preceding the cocaine sale. He also produced a psychologist, Dr. Garcia, who testified that he had examined appellant on a number of occasions beginning in July 1982 and who offered the opinion that appellant had suffered from a depressive psychosis since 1968. The prosecution produced a psychiatrist, Dr. deThomas, who had performed a court-ordered competency examination on the appellant in July 1982. When asked his opinion of appellant's mental condition at the time of the crime, Dr. deThomas stated, "I don't have evidence to give an opinion in terms of what mental condition he had at such date but in view of my evaluation and other facts that I have received, I don't have evidence to sustain that he was psychotic at that time".

When a defendant introduces evidence of insanity, the prosecution has the burden of proving him sane. Amador Beltran v. United States, 302 F.2d 48, 52 (1st Cir.1962). In United States v. Dube, 520 F.2d 250 (1st Cir.1975), this court described the prosecution's burden in these terms:

"Insanity is a jury question unless a reasonable man viewing the facts and reasonable inferences therefrom in the light most favorable to the prosecution must necessarily possess a reasonable doubt as to the defendant's sanity. The nature and quantum of rebuttal evidence sufficient to present a jury question is to some extent determined by the strength of the case for insanity. There is no general principle that the prosecution must counter defendant's expert medical evidence with expert testimony of its own. The expert testimony is not conclusive even where uncontradicted; its weight and credibility are for the jury to determine ...." Id. at 251-52 (citations omitted).

The evidence in this case was not convincing enough to compel a reasonable juror to doubt appellant's sanity. Appellant's expert attempted to reconstruct, by means of tests, interviews with appellant, and a behavioral history supplied by appellant's family and acquaintances, appellant's state of mind some seven months earlier. Although he concluded that "when [the appellant] is in the middle of a crisis he shows a very progressive ability to distort his own reality", he also observed that the appellant "can function all right, when he is in the remission of symptoms", and that such a remission could last for months or even years. On cross-examination he admitted that a psychotic person might be able to distinguish right from wrong, "specially when [he is] under remission of symptoms". He offered no testimony on defendant's state of mind or his ability to conform his behavior to the requirements of the law on the day of the crime.

The prosecution's psychiatrist, who interviewed the appellant and considered his psychiatric history, concluded that this evidence was insufficient to establish that appellant had been psychotic at the time of the crime. In addition to this expert testimony, the jury heard the testimony of Tirado, the government informer, who contradicted the defense's theory that the death of appellant's brother a month before the transaction had triggered a psychotic episode. Tirado stated that the appellant "was sad [owing to his brother's death] but at all times he was conscious of what was being done" and that he was not drinking any more than usual. Finally, the jury heard a tape recording of the appellant's cocaine transaction, in which his tone of voice and the nature of his remarks provided some evidence that he was rational, alert, and aware that he was committing a crime. The prosecution's evidence was sufficient to rebut the defense's relatively weak evidence of insanity and to support the jury's conclusion that appellant was sane on the date of the crime.

Appellant argues that the court erred in allowing the government to reopen its case in chief to present evidence that went beyond its avowed purpose, to rebut the insanity defense. Appellant contends that the testimony of several witnesses called after the government had reopened its case "was merely cumulative and served to bolster previous government testimony as to the actual transaction". If the evidence of the transaction was cumulative, we fail to see how it prejudiced appellant, since it only confirmed what he had already admitted: that he sold cocaine to Tirado. To the extent this additional testimony tended to show that appellant was sane when the transaction occurred, it prejudiced his insanity defense; but this was the purpose for which it was properly admitted. See generally United States v. Manetta, 551 F.2d 1352 (5th Cir.1977) (describing the evidence admissible when the government reopens its case in chief to respond to an insanity defense).

Appellant also argues that the government played the tape recording of the transaction at this point in the trial without first causing it to be admitted into evidence. The record contradicts this assertion. The government asked its expert to identify the tape and then moved to have the tape admitted as Exhibit 4. The court called for voir dire, and appellant's attorney stated that he waived voir dire but that he had earlier raised an objection to the evidence. The court noted that it had already overruled this objection, and asked if counsel had any further objection. Counsel indicated that he did not. A short time later the court gave the government permission to play the tape, cautioning the jury that the transcript of the recorded conversation was not in evidence but affirming that the tape itself was in evidence.

Appellant contends that the court committed reversible error in failing to give a curative instruction to the jury after the prosecutor misstated Dr. deThomas's psychiatric testimony, and that the prosecutorial misstatement was so damaging as to deny appellant his right to a fair trial. Dr. deThomas testified, "I don't have evidence to sustain that [Lecaroz] was not aware between right and wrong at the time of the commission of the offense". In his closing argument, the prosecutor transformed this negative statement into a positive one, stating that Dr. deThomas "was convinced that [Lecaroz] at the time of December 24, 1984 [sic], did have a substantial capacity". Appellant's attorney interrupted him with the observation "That is not correct", and the prosecutor repeated his positive statement of Dr. deThomas's testimony. At the request of appellant's attorney, the court prepared a curative instruction informing the jury that it was their recollection of Dr. deThomas's testimony that controlled "and not what the United States Attorney says". The court decided not to deliver this instruction because it believed that the jury had already been told, both in the court's regular instructions and in the prosecutor's closing argument, that they were not to consider the prosecutor's remarks as evidence.

We disagree with the government's argument that the prosecutor's characterization of Dr. deThomas's testimony fell within the permissible limits of prosecutorial zeal: there is a substantial difference between the statement "I don't know that defendant was not sane" and the statement "I know that defendant was sane". The prosecutor would have better fulfilled his obligations had he admitted his error and done his best to see that it was corrected, rather than stubbornly insisting that his version of the testimony was correct and opposing the defense's motion for a curative instruction. We agree with the trial court, however, that the proposed curative instruction would have added little to the instructions that the jury had already heard. The prosecutor began his summation by informing the jury, ...