U.S. v. Phelps

• Decision Date: 04 February 1992
• Docket Number: No. 89-10580,89-10580
• Citation: 955 F.2d 1258
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Coy Ray PHELPS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1258

955 F.2d 1258

UNITED STATES of America, Plaintiff-Appellee, v. Coy Ray PHELPS, Defendant-Appellant.

No. 89-10580.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 8, 1991.

Decided Feb. 4, 1992.

Janice M. Heid, Oakland, Cal., for defendant-appellant.

Joel R. Levin, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

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

Before PREGERSON, FERGUSON and O'SCANNLAIN, Circuit Judges.

PREGERSON, Circuit Judge:

Coy Ray Phelps, an insanity acquittee, appeals the judgment of the district court denying his release from the U.S. Medical Center for Federal Prisoners at Springfield, Missouri. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

BACKGROUND

On July 31, 1986, Coy Ray Phelps was found not guilty by reason of insanity on charges of possessing, manufacturing, and placing pipe bombs at five San Francisco locations. ¹ Phelps was committed to the U.S. Medical Center for Federal Prisoners at Springfield, Missouri ("Springfield") pursuant to 18 U.S.C. § 4243(e). ²

At his trial, Phelps called Dr. Fred Rosenthal, a psychiatrist, who testified that Phelps was a paranoid schizophrenic with a thirty-year history of mental illness. At the commitment hearing following acquittal, Dr. Rosenthal testified that Phelps was dangerous and should be confined in a treatment facility. Evidence produced at Phelps' commitment hearing included photographs of prominent people labeled with derogatory comments, instructions for building bombs and killing Jews and other minorities, lists of targets such as city hall, and various weapons.

Psychiatric Pre-Release Review Panels assessed Phelps on August 24, 1987 and March 7, 1988. On each occasion, the panel found that Phelps continued to suffer from a significant mental disease or defect and that release would pose a substantial threat of harm to others. Phelps was assessed Before the hearing, the government moved the court for permission to have Phelps examined by its own psychiatrist and to call Phelps to testify at the hearing. Phelps objected to both motions, claiming violations of his privilege against self-incrimination and of section 4243(f). The district court granted both motions. To protect Phelps' privilege against self-incrimination, the court ruled that any statements Phelps would make would be deemed "compelled" and, thus, inadmissible in future criminal prosecutions. The court also ruled that Phelps had the burden of proof under 18 U.S.C. § 4243(f).

                a third time on April 17, 1989.   The report of this panel, prepared by Dr. David Mrad, a psychologist at Springfield, concluded that Phelps' conditional release would no longer pose a threat to the community. 3  The Warden for the Springfield facility notified the court in a June 27, 1989 letter that, in the opinion of his staff, Phelps should be released.   The government opposed Phelps' release and moved the court for a hearing pursuant to 18 U.S.C. § 4243(f). 4
                

Phelps was evaluated by Dr. Park Dietz, a government-retained psychiatric expert on predicting dangerous behavior. Dr. Dietz found that the Springfield staff had not probed Phelps' racist/anti-semitic views which had prompted the bombings or his long-standing history of sexual abuse of children. Dr. Dietz concluded that Phelps continued to suffer from a mental disease or defect and that his release would create a substantial risk of bodily injury to others. His conclusions were based on a six-hour examination of Phelps, telephone interviews with Phelps' relatives, physical evidence, and a review of documents including police investigative reports, hospital records, previous psychiatric evaluations and Phelps' diary entries.

Dr. Dietz' conclusions conflicted with those of Dr. Mrad, who recommended release. Additionally, Dr. Mrad's conclusions about Phelps' behavior on the ward and in therapy sessions diverged dramatically from the progress notes made by other staff members. There were also discrepancies between statements in the Warden's letter recommending Phelps' release and testimony presented at the release hearing. The Warden's letter stated that Phelps could be released in Arizona where he had a daughter and former wife who were friendly and supportive. At the release hearing, however, Phelps' daughter and former wife testified that they had no interest in establishing or maintaining contact with him and that they would prefer that Phelps live elsewhere.

The district court found that Dr. Dietz' assessment of Phelps was "credible and convincing" while that of Dr. Mrad "lacked sufficient credibility." Accordingly, the district court denied Phelps' request for release. Phelps timely filed this appeal.

Phelps contends (1) that his Fifth Amendment privilege against self-incrimination was violated when he was ordered to submit to a psychiatric evaluation in anticipation of the release hearing and when he was called as a witness by the government at the hearing; (2) that his compelled submission to an examination by a government-retained psychiatrist violated both 18 U.S.C. § 4243(f) and his due process rights; and (3) that the district court erred by requiring him to prove that he no longer posed a substantial risk of danger to the community.

ANALYSIS

I. Privilege Against Self-Incrimination

Phelps contends that his privilege against self-incrimination ⁵ was violated in two respects. First, Phelps argues that his Fifth Amendment privilege was violated because the release hearing was a "criminal" proceeding. Second, he contends that his privilege was violated because his statements during the psychiatric examination and at the hearing were used to prolong his confinement. Whether a district court can compel an insanity acquittee to submit to a psychiatric evaluation in anticipation of a release hearing or to testify at the hearing are questions of law reviewed de novo. See Givens v. Housewright, 786 F.2d 1378, 1380 (9th Cir.1986).

Phelps' claims fail on several grounds.

A. Compulsory Psychiatric Examination

The United States Supreme Court's decision in Allen v. Illinois, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986), governs this issue. Under Allen, the ability of an insanity acquittee to effectively assert the privilege against self-incrimination to avoid participating in a psychiatric examination depends upon whether the proceeding is criminal or civil in nature. Id.

In Allen, the subject of commitment proceedings under the Illinois Sexually Dangerous Persons Act was ordered to submit to two psychiatric examinations. The trial court ruled that Allen's statements to the psychiatrists were not themselves admissible, but allowed each psychiatrist to render an opinion on Allen's mental condition based upon the interview with Allen. Allen's claim that his privilege against self-incrimination was violated was not based on the ground that his statements could be used against him in future criminal proceedings. ⁶ Rather, he claimed the right to refuse to answer questions because the Sexually Dangerous Person proceeding, itself, was "criminal." Id. at 368, 106 S.Ct. at 2992-93.

The Illinois statute expressly provided that proceedings under the Act were "civil in nature." The Supreme Court did not accept this classification at face value. The Court observed that legislative labels were not dispositive of the issue. Id. at 369, 106 S.Ct. at 2992. Finding that the purpose of the Act was to provide treatment, not punishment, the Court held that the commitment proceedings were not criminal within the meaning of the privilege against self-incrimination. The Court noted that the Act was designed to provide care and treatment to effectuate recovery and that an acquittee could be released upon proof that he or she no longer posed a threat to the community. Id. at 369-70, 106 S.Ct. at 2992. Further, although the Illinois Act provided for criminal proceedings, criminal charges, criminal procedural safeguards, and commitment to maximum security prison, the Court did not find that these factors changed its basic "civil" nature. Id. at 369-72, 106 S.Ct. at 2992-94.

In Phelps' case, the district court followed the approach of the Supreme Court in Allen. It considered whether the release hearing under section 4243(f) more closely resembled a criminal prosecution or a civil commitment proceeding. The district court considered that the statute emphasizes treatment rather than punishment, that the acquittee bears the burden of proof, that the acquittee has no right to a jury determination, and that the acquittee can petition for release every six months. Accordingly, the district court correctly determined that the statute is "civil" in nature. Thus, it did not err in granting the government's motion to order Phelps to submit to a psychiatric examination.

As an additional reason for finding that Phelps' privilege against self-incrimination was not violated, we embrace the reasoning of the D.C. Circuit in United States v. Byers, 740 F.2d 1104 (D.C.Cir.) (en banc), cert. denied, 464 U.S. 1046, 104 S.Ct. 717, 79 L.Ed.2d 179 (1984). In Byers, the court addressed the issue of court-ordered psychiatric examinations in the context of proving insanity at the time of the offense. Byers did not claim that the testimony of the examining psychiatrist tended to incriminate him. Instead, he claimed that the government's evidence to negate his defense of insanity was acquired through compelled examination. In holding that a person who places his or her insanity at issue can be compelled to submit to psychiatric examinations, the court in Byers stated:

When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case. Accordingly, several Courts of Appeals have held that, under such...