United States v. Bass, No. 73-1523.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTHORNBERRY, GODBOLD and CLARK, Circuit
Citation490 F.2d 846
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Bruce Lusk BASS, III, Defendant-Appellant.
Docket NumberNo. 73-1523.
Decision Date11 March 1974

490 F.2d 846 (1974)

UNITED STATES of America, Plaintiff-Appellee,
v.
Bruce Lusk BASS, III, Defendant-Appellant.

No. 73-1523.

United States Court of Appeals, Fifth Circuit.

March 11, 1974.


490 F.2d 847
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490 F.2d 848
George W. Shaffer, Kenneth L. Yarbrough, Corpus Christi, Tex., for defendant-appellant

Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Before THORNBERRY, GODBOLD and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

Bruce L. Bass III was convicted on five counts of violating 21 U.S.C. §§ 843

490 F.2d 849
and 846 (1970):1 counts I, III, and IV charged Bass with obtaining a controlled substance, Demerol, by forging or altering a prescription; count II charged Bass with attempting to obtain Demerol upon a forged prescription, and count V charged Bass with obtaining Demerol through prescriptions acquired by misrepresentation, deception, fraud, and subterfuge

These relatively simple charges bore no simple trial, and appellant Bass now presents six grounds for reversal: (1) that the evidence offered by the government on the issue of the defendant's sanity at the time of the offense alleged was insufficient to raise a jury question, (2) that the district court's instructions to the jury on the issue of defendant's sanity were not sufficiently clear as to place the burden of proving the defendant sane beyond a reasonable doubt at the time of the offenses on the government, (3) that a supplemental charge given to the jury by the district court had a coercive effect on their deliberations, (4) that the evidence offered by the government on counts II through V was insufficient to establish guilt beyond a reasonable doubt, (5) that the district court's limiting of the scope of defense counsel's cross-examination of government witnesses violated the defendant's rights to due process and to confrontation of witnesses, and (6) that the counts in the indictment did not state a clear and definite violation of 21 U.S.C. §§ 843 and 846.

Criminal Responsibility

It was proved at the trial that appellant Bass suffers from regional or terminal enteritis, an acutely painful disease of the lower gastro-intestinal tract. In Bass, the disease was so severe that several feet of his small intestine and colon had to be surgically removed. One of his treating doctors testified that several more feet of his small intestine were presently infected with the disease.

Appellant introduced the testimony of two doctors, qualified as experts in psychiatry, that on the dates of the charged offenses, he was by reason of mental disease or defect lacking in substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, thus placing the defendant precisely within the legal definition of insanity which we announced in Blake v. United States, 5th Cir. 1969, 407 F.2d 908.

The doctors, both of whom had treated appellant for several years, testified that on or about the dates charged in the indictment, Bass had been subject to severe attacks, and that during such attacks he suffered extremely high temperatures, lapsed into delirium and unconsciousness, exhibited substantial anxiety, and on one occasion discussed suicide. The doctor who had treated appellant at greatest length, Dr. Charles Bost, testified that he believed that Bass had suffered temporary brain damage from the high temperatures which accompanied

490 F.2d 850
his attacks. Between 1970 and the time of trial, Bass had been hospitalized more than five times. Shortly after the final incident for which he was indicted, Bass was hospitalized for about six weeks, during which time he received steady doses of Demerol, the only drug which had any effect whatsoever on his pain. The result of his genuine need for Demerol was involuntary addiction. Both treating doctors testified that Bass' chronic anxiety, which was caused by an awareness that his disease was incurable and that he would forever be dependent on Demerol for relief from pain, constituted a "mental disease or defect" as required by the Blake test

The sanity of the accused is always an element of the offense charged. But in the legal construction of reality, the defendant is presumed sane, and where no evidence to the contrary is presented, that presumption is wholly sufficient to satisfy the required proof that the defendant is sane, and hence responsible for his actions. Mims v. United States, 5th Cir. 1967, 375 F.2d 135, 140.

However, once a defendant produces even slight evidence tending to prove his insanity at the time of the alleged offense, the presumption of sanity disappears, and the government then has the burden of proving the defendant's sanity beyond a reasonable doubt. Brock v. United States, 5th Cir. 1967, 387 F.2d 254, 257; Blake v. United States, supra, 407 F.2d at 911; United States v. Davila-Nater, 5th Cir. 1973, 474 F.2d 270, 277. The question of sufficiency of the evidence necessary to make an issue for the jury on the defense of insanity as well as whether the evidence establishes as a matter of law a reasonable doubt as to a defendant's sanity is for the court. Nagell v. United States, 5th Cir. 1968, 392 F.2d 934, 937; Blake v. United States, supra, 407 F.2d at 911.

Under Blake, after the defendant had produced the above testimony, the prosecution's burden was to negate beyond a reasonable doubt that at the time Bass ostensibly committed the offenses in question he was (1) by reason of mental disease or defect lacking in substantial capacity either (2) to appreciate the wrongfulness of his conduct or (3) to conform his conduct to the requirements of the law. United States v. Parks, 5th Cir. 1972, 460 F.2d 736, 738.

The only expert testimony offered by the government was that of a Dr. William B. Cline who had seen the defendant for 45 minutes some six months after the last incident. Having discovered that this doctor was unable to render an opinion as to the sanity of the defendant at the times alleged in the indictment, the government resorted to the use of a hypothetical question,2 to which Dr. Cline did respond.

Dr. Cline's answer to the hypothetical question did not negate the hypothesis that Bass might very well have been unable to conform his conduct to the requirements

490 F.2d 851
of the law, but his answer did imply that this inability would not constitute "an existing mental disease or defect in the usual sense." On cross-examination, counsel for the defendant attempted to elicit the meaning of the quoted phrase. Dr. Cline indicated that he intended to rule out the possibility of a permanent mental defect. He did not intend to eliminate the hypothesis of a temporary or momentary mental disease or defect, the only theory relied on by Bass at the trial. He also conceded on cross-examination that Dr. Oliver, a specialist in the problems of drug addiction, who had treated Bass and whom he knew and trusted professionally, was in a much better position to form an opinion concerning Bass' sanity

The test which we announced in Blake does not require that the mental disease or defect be a permanent one. The disease or defect may be permanent or temporary as long as the requirements of the test are otherwise met. When the issue of insanity arises in the trial of a criminal case, the most fundamental fabric of American jurisprudence also goes on trial. For in that case, the basis of criminal responsibility is examined. That examination has always involved a difficult accommodation between legal and moral precepts on one hand and medical theory and fact on the other. Human action rarely admits of simple explanation; where the criminal case presents no issue of insanity, the presumption of sanity and our objective assessment of the facts of the crime "explain" the conduct. But where the defendant's sanity is before the court, we are required to perform a most difficult task. To engage in a debate on the permanency or lack of permanency of the mental disease or defect would plunge this branch of the law into the Serbonian Bog of which Cardozo warned us, if we are not already there.3

We have stated that the nature and quantum of rebuttal evidence sufficient to present a jury question is to some degree determined by the strength of the case for insanity. Brock v. United States, supra, 387 F.2d at 258. The defendant produced not slight evidence, but substantial evidence, of his insanity at the time of and with respect to the offenses charged. In rebuttal, the government presented one expert witness whose testimony did not actually negate any part of the Blake test. As we held in Brock, the government must produce something more in order to pass appellate muster.4

Here the evidence presented would not permit the jury to "go either way;" there were no "material variations between the experts themselves." Mims v. United States, supra, 375 F.2d at 144; United States v. Bleckley, 5th Cir. 1973,

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475 F.2d 1225. The government made no attempt to discredit the defendant's expert witnesses; on the contrary, the government's Dr. Cline deferred to the judgment of Dr. Oliver. See United States v. Pitts, 5th Cir. 1970, 428 F.2d 534; United States v. O'Neal, 5th Cir. 1970, 431 F.2d 695. We conclude that the government did not present sufficient rebuttal evidence to present a jury question on the issue of the defendant's sanity. In a criminal case, it is not sufficient for the government to produce evidence from which the jury could conclude that the defendant was sane by a preponderance of the evidence. In order to present a question for the jury, the government must produce evidence sufficient to convince a reasonably minded juror that the defendant was sane beyond a reasonable doubt. The government failed in that attempt, and thus the convictions cannot stand.

Nevertheless our disposition of this issue does not end the matter,...

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73 practice notes
  • U.S. v. Kopituk, No. 80-5025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 4, 1982
    ...comes into play. Greene v. Wainwright, supra, 634 F.2d at 275; United States v. Mayer, supra, 556 F.2d at 250; United States v. Bass, 490 F.2d 846, 858 n.12 (5th Cir. In the case sub judice, the trial court, after allowing appellants to cross-examine Teitlebaum to the full extent necessary ......
  • U.S. v. Wiley, Nos. 74-1471
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 22, 1975
    ...obtaining convictions. Our approach is comparable to that taken in some prior circuit court opinions. See, e. g., United States v. Bass, 490 F.2d 846, 852-53 (5th Cir. 1974) (ruled district judge may refuse to permit a retrial "if he finds from the record that the prosecution had the opport......
  • U.S. v. Elliott, No. 76-3678
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 21, 1978
    ...after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment". United States v. Bass, 490 F.2d 846, 858 n. 12 (5th Cir. 1974). See also United States v. Mayer, 556 F.2d 245, 250 (5th Cir. 1977); Grant v. United States, 368 F.2d 658, 661 (5t......
  • U.S. v. Quinn, No. 74-2309
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 23, 1975
    ...981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974). 23 United States v. Johnson, 5 Cir., 1974, 496 F.2d 1131; United States v. Bass, 5 Cir., 1974, 490 F.2d 846; United States v. Ragano, 5 Cir., 1973, 476 F.2d 410; United States v. Schechter, 5 Cir., 475 F.2d 1099, cert. denied, 414 U.S. 825, 94 S.Ct......
  • Request a trial to view additional results
73 cases
  • U.S. v. Kopituk, No. 80-5025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 4, 1982
    ...comes into play. Greene v. Wainwright, supra, 634 F.2d at 275; United States v. Mayer, supra, 556 F.2d at 250; United States v. Bass, 490 F.2d 846, 858 n.12 (5th Cir. In the case sub judice, the trial court, after allowing appellants to cross-examine Teitlebaum to the full extent necessary ......
  • U.S. v. Wiley, Nos. 74-1471
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 22, 1975
    ...obtaining convictions. Our approach is comparable to that taken in some prior circuit court opinions. See, e. g., United States v. Bass, 490 F.2d 846, 852-53 (5th Cir. 1974) (ruled district judge may refuse to permit a retrial "if he finds from the record that the prosecution had the opport......
  • U.S. v. Elliott, No. 76-3678
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 21, 1978
    ...after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment". United States v. Bass, 490 F.2d 846, 858 n. 12 (5th Cir. 1974). See also United States v. Mayer, 556 F.2d 245, 250 (5th Cir. 1977); Grant v. United States, 368 F.2d 658, 661 (5t......
  • U.S. v. Quinn, No. 74-2309
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 23, 1975
    ...981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974). 23 United States v. Johnson, 5 Cir., 1974, 496 F.2d 1131; United States v. Bass, 5 Cir., 1974, 490 F.2d 846; United States v. Ragano, 5 Cir., 1973, 476 F.2d 410; United States v. Schechter, 5 Cir., 475 F.2d 1099, cert. denied, 414 U.S. 825, 94 S.Ct......
  • Request a trial to view additional results

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