U.S. v. Stern
| Decision Date | 26 June 1975 |
| Docket Number | No. 74-3176,74-3176 |
| Parties | 75-2 USTC P 9637 UNITED STATES of America, Plaintiff-Appellee, v. Martin STERN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before ELY and WRIGHT, Circuit Judges, and McNICHOLS, District Judge. *
Stern was convicted after a trial to the court of conspiring to obstruct the Internal Revenue Service, attempting to evade personal income tax, and willfully failing to file a return. His motion for new trial was denied. We affirm the judgment and the order denying a new trial.
(1) His trial counsel was ineffective and gave inadequate representation in that he failed to investigate Stern's psychiatric history;
(2) Government counsel was guilty of misconduct in failing to advise the court of Stern's psychological problems and in failing to request the court to order a psychiatric examination to determine appellant's competence to stand trial; and
(3) The court's post trial appointment of a psychiatrist and the doctor's examination of Stern were irrelevant to the claim of incompetent counsel, and the court improperly received in evidence the report of examination.
Stern personally waived his right to a jury trial. The court heard evidence that Stern, a former IRS agent, started a business in 1970 to bootleg tape recordings of musical hits. Orders were solicited by telephone, the business was run on a cash basis and a bank account was kept under a fictitious name. The 20 to 50 employees were paid in cash, did not complete tax withholding forms, were given no year-end statements of taxes withheld and were told that the taxes were "taken care of." A government expert computed Stern's taxable income for 1970 at $381,026.50, on which he owed a tax of $216,190.50. In his own defense, appellant attempted to put the blame on others and denied any intent to conceal matters from the IRS.
He was found guilty on June 27, 1974 and moved for a new trial on July 10, supported by affidavits to show that he was incapable of forming the specific intent to commit the offenses or of adequately cooperating in his own defense. He was then represented by a second retained counsel. Stern's affidavit recited a history of treatment for psychological problems and it was supplemented by reports and letters from medical personnel who had treated him up to the time of trial. He said that his trial attorney, Bruce Hochman, knew that Stern had undergone psychotherapy since 1971 and had lived at Esalen Institute where he had therapy.
The government responded on July 16 with a request for a court-ordered psychiatric examination.
In August 1974, appellant had a third attorney and more affidavits were filed. A psychiatrist who first saw Stern after conviction and before sentencing characterized appellant as a schizophrenic unable to control his thoughts or make appropriate choices, and "lack(ing) substantial capacity to conform his conduct to the requirements of the law at the time of the alleged criminal conduct for which he was convicted."
A psychotherapist who had treated Stern for more than two years agreed with that assessment and concluded that during that time Stern's "mental state was such that his mind was incapable of forming or possessing any specific intent to commit any (of the crimes charged)."
Another affidavit by Stern detailed his medical history and the fact that government counsel and Mr. Hochman were familiar with it. It alleged that Mr. Hochman and his assistants had commented on Stern's "eccentric behavior and lifestyle." 1 There was also reference to a meeting at which Stern's former attorney, Sturman, had told Mr. Hochman and government counsel of his reservations about Stern's mental stability.
Stern's affidavit charges Mr. Hochman with negligence and incompetence in failing to explore or investigate the existence of a potential "psychiatric defense" and points to the actual knowledge of the United States Attorney of the defendant's mental condition, which was not divulged to the trial judge.
When the motion for new trial was first heard, the district judge said of Mr. Hochman that he "is perhaps one of the best tax lawyers handling criminal cases in Los Angeles County," and therefore not likely to have overlooked a meritorious available defense. The court did grant the government's request, naming Dr. Pollack to examine Stern, and postponing a full evidentiary hearing pending receipt of the doctor's report.
At an adjourned hearing in October, the court accepted Stern's affidavits and supporting documents and, over objection, Dr. Pollack's report. The doctor had not appeared in court but the judge had put the hearing over for a week to allow the defense to arrange for Dr. Pollack's appearance. The court declined to order the government to produce him for cross-examination.
The Pollack report concluded that, although Stern had been suffering from schizophrenia and psychotic lapses for some years, he did not lack mental capacity at the time of the offense and was able to consult and cooperate with defense counsel before and during trial. Mr. Hochman also testified as a government witness. 2
He confirmed that he had received information on Stern's psychiatric background from the defendant and Mr. Sturman. He testified that he had discussed the possibility of a "diminished capacity" defense with Stern. He elected not to utilize such a defense because he "believed it would have been counter-productive." Instead, counsel determined to defend on the basis of Stern's alleged reliance on the professional advice of his former tax lawyer and accountant. That such a defense appeared to have merit, said Mr. Hochman, was demonstrated by the serious consideration given by the prosecutors in the case to recommending a misdemeanor disposition in return for a guilty plea.
A tax division prosecutor testified that he knew of Stern's psychiatric history prior to trial but that virtually all of his information came from defense counsel. When Mr. Hochman did not raise insanity as a defense, the government did not feel it necessary to request an examination of the defendant. Instead the prosecution and defense focused on the defense of reliance on professional advice in pretrial negotiations and considered Stern's mental problems only as a possible basis for mitigation of sentence.
In denying the motion for new trial, the court found there was no evidence that defendant was insane either at the time of the offense or at trial, or that he was unable to cooperate effectively in his own defense. It also found that defense counsel was aware of any mental condition, gave it reasonable consideration and rejected it for tactical reasons. No misconduct by government counsel was found, either. 3
This court will not reverse a judgment of conviction unless a defendant's representation has been so inadequate as to make his trial a farce, sham, or mockery of justice. See, e. g., United States v. Martin, 489 F.2d 674 (9th Cir. 1973); United States v. Ortiz, 488 F.2d 175 (9th Cir. 1973). We have declined to find such a "farce and mockery," where counsel's actions or omissions reflected tactical decisions, even if better tactics appear in retrospect to have been available. United States v. Ortiz, supra, at 177; Mengarelli v. United States Marshal, 476 F.2d 617, 619 (9th Cir. 1973); Johnson v. Carven, 432 F.2d 418, 419 (9th Cir. 1970).
Mr. Hochman had not raised an insanity defense because it "would have been counter-productive." The court agreed, noting that failure to pursue this issue "could indeed be said to be a matter of tactics on the part of skilled counsel."
This conclusion is supported by the record. Appellant's primary defense was his alleged good faith reliance on the advice of his tax attorney and accountant before engaging in the activity forming the basis for his subsequent indictment. Compare Williamson v. United States, 207 U.S. 425, 453, 28 S.Ct. 163, 52 L.Ed. 278 (1908).
While a defendant may plead inconsistent defenses, here it appears that competent counsel might well have concluded that it would not have been in Stern's best interest to do so. Reliance on the professional advice defense, which counsel had reasonable grounds to believe might prevail, would have lost much of its force if combined with an insanity defense. Even those courts which have held counsel to a stricter standard than that provided by the "farce and mockery" test have generally refused to fault retrospectively such tactical decisions and give a convicted defendant a second bite at the apple. See, e. g., United States v. Edwards, 488 F.2d 1154, 1164-65 (5th Cir. 1974).
Appellant cites In re Saunders, 2 Cal.3d 1033, 88 Cal.Rptr. 633, 472 P.2d 921 (1970), for the proposition that a conviction may be reversed despite compelling tactical reasons, where counsel has not made adequate inquiries into his client's prior mental condition. Saunders was apparently premised on the theory that no intelligent tactical decision can be made as to which defense should be raised until the strength of the insanity defense has been adequately investigated. Saunders is inapposite here. The district court here concluded that Mr. Hochman gave the substantiality of an insanity defense adequate "consideration in his overall plans for arranging the defense of this defendant."
We cannot say this finding was in error. There was substantial evidence from which the court could find that counsel reasonably concluded that further inquiry into a possible psychiatric defense would have been wasteful of his and the court's time and his client's money. 4 Appellant and his cou...
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