United States v. Cooper

• Decision Date: 12 January 1973
• Docket Number: No. 71-1687.,71-1687.
• Citation: 465 F.2d 451
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Andrew COOPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

465 F.2d 451 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. James Andrew COOPER, Defendant-Appellant.

No. 71-1687.

United States Court of Appeals, Ninth Circuit.

Rehearing and Rehearing Denied January 12, 1973.

Alvin S. Michaelson (argued), Los Angeles, Cal., for defendant-appellant.

David P. Curnow, Asst. U. S. Atty. (argued), Eric A. Nobles, Asst. U. S. Atty., Rober L. Meyer, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before ELY, HUFSTEDLER, and WRIGHT, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 12, 1973.

HUFSTEDLER, Circuit Judge:

Cooper appeals from his conviction for robbery (18 U.S.C. §§ 2113(a), 2113(d)). We reverse because the Government failed to carry its burden of proving beyond a reasonable doubt that Cooper was sane when he robbed the bank.

The Court appointed a psychiatrist, Dr. Polos, to examine Cooper to determine his mental competence to stand trial and his sanity when the offense was committed. In his initial report to the court, Dr. Polos concluded that Cooper was competent to stand trial. He further reported that it was difficult to decide whether Cooper was sane at the time of the offense without more testing and indepth psychiatric evaluation.¹ At Dr. Polos' request, the United States Attorney's office gave him statements from Cooper's coworkers and from persons who observed him before and after commission of the crime, FBI reports and interviews, and medical reports. Cooper was referred to Dr. Paulson of the UCLA Neuropsychiatric Institute for testing to ascertain the degree of Cooper's mental illness and his intellectual level and to determine whether Cooper was lying or malingering. Dr. Polos reexamined Cooper after he had studied the reports of Dr. Paulson and the materials he had received from the United States Attorney. He made a second report in which he stated:

"In my report of June 18, 1970, I indicated that the only question I found impossible to answer at that time was his capacity to appreciate the nature of his conduct at the time of the crime. There is no doubt that he had been taking excessive amounts of Valium as well as suffering from an acute onset of Bell\'s palsy. The consumption of the tranquilizer Valium was primarily to control emotional symptoms that he was experiencing at that time and created drowsiness and confusion in him.

"Diagnostically Mr. Cooper has a chronic anxiety reaction with a moderately severe depression, as well as a schizoid personality.

"It is my psychiatric opinion that at the time of the crime he was under severe emotional stress as well as the effect of Valium, consequently his capacity function was impaired. His behavior was the result of an anxiety state rather than of a psychotic state. However, I do not believe that he was fully capable of controlling his impulses. I realize that this opinion is not exact or clearcut, but I do believe that Mr. Cooper definitely has a mental illness, and along with the excessive use of Valium caused him to act out in a manner that he ordinarily would not. Furthermore, I believe that he is treatable and should be placed in a psychiatric facility for complete rehabilitation. If this is possible, I believe he will be fully capable of eventually returning to society as a useful member rather than a severely and chronically mentally ill individual, or someone with bitterness and criminal tendencies."

Dr. Polos testified at the trial. In the course of his testimony, he said that Cooper had told him that he had been taking Valium which had been prescribed for him. The existence of the prescription "wasn't established as a fact until Dr. Polos got the reports from . . . the FBI concerning the two doctors that had given Cooper prescriptions for Valium." He stressed that his opinion about Cooper's mental condition at the time of the crime was not solely based on Cooper's ingesting Valium. "It's the pain and disturbance from the paralysis of one half of the face as well as his mental illness." He also testified that on the basis of his examination of Cooper and his evaluation of the psychological tests, he had "no doubt in his mind that Cooper was being honest and was not attempting to lie or distort any of the material that was asked of him."

Evidence in addition to Cooper's statements tended to substantiate Dr. Polos' view that Cooper had been taking large amounts of Valium. Cooper had access to Valium from two prescriptions, and he also had access to a friend's Valium. He was in pain from the palsy, and he had reason to seek relief using Valium. His employer saw Cooper taking pills the week before the robbery, and at that time Cooper did not appear to be wide awake. There was testimony that one of the effects of Valium was drowsiness. His employer, coworkers, and social friends testified to Cooper's abrupt personality change shortly before the robbery and to his peculiar behavior then.

The Government offered no expert testimony directed to the sanity issue. The prosecutor called two doctors, neither of whom was qualified to make a psychiatric diagnosis and neither of whom was asked to do so. Dr. Toomajian, a jail physician, saw Cooper for five minutes the day after the robbery. He diagnosed Cooper's facial paralysis as Bell's palsy and gave him some vitamins. Dr. Bruce, a general practitioner, had treated Cooper two years earlier for a cervical spine injury and had not thereafter examined him. He gave some opinions about the effects of excessive dosages of Valium. There was no substantial conflict between Dr. Polos' and Dr. Bruce's opinions about the effects of Valium.

The Government presented five lay witnesses who had seen Cooper the day of the robbery. The bank teller saw Cooper somewhere between three and five minutes. She testified that when he demanded the cash, he spoke "very slowly" and a "little mumbly." He appeared "overly calm." She did not notice any facial paralysis. Mrs. Alexson saw the robbery as she was waiting at the drivein window of the bank. She said he walked away from the teller's window after he received the money. As she drove out of the lot, she saw Cooper taking "real large steps, and running." Deputy Sheriff Leake stopped Cooper's car a few minutes after the robbery and arrested him. When Cooper got out of his car, Leake noticed that Cooper "appeared to be bent over to the right slightly and a slight shuffle or dragging of one leg." "His eyes were not coordinated." Leake made no close observation of Cooper, but, he said, Cooper did not appear to him to be under the influence of drugs. Mr. Chance, who booked Cooper, did not notice anything unusual about him, except that there was something wrong with half of his face, "like maybe he had had a shot of Novocain or something that would have impaired" his face and "his right eye had difficulty closing." Cooper complained of pain, and Officer Chance gave him two aspirin tablets. He appeared alert to Officer Chance and Officer Chance made no effort to examine him for signs of drugs. Officer Chance had heard that Valium was a muscle relaxant; he otherwise knew nothing about the drug. Finally, the Government called the FBI agent who had interrogated Cooper about four hours after the robbery. He observed that Cooper "had difficulty in his speech," but "his speech was intelligible." He saw the paralysis of the right side of Cooper's face. Cooper was relaxed and friendly and did not appear to be drowsy.

We held in Buatte v. United States (9th Cir. 1964), 330 F.2d 342 (Buatte I) that when the defendant introduces expert psychiatric testimony that is sufficient to support a finding of insanity and when the Government relies entirely on lay witnesses to prove sanity, the Government has failed to carry its burden of proof as a matter of law.

To sustain Cooper's conviction, the Government must accomplish two feats: (1) It must find a way to destroy Dr. Polos' testimony to eliminate Buatte I, and (2) after razing Dr. Polos' testimony, it must find enough affirmative evidence of Cooper's sanity to prove that he was sane beyond a reasonable doubt. The Government did not succeed on either count.

The Government's arguments are directed to the first point. The Government contends that Dr. Polos' testimony can be disregarded because he relied, in part, on Cooper's taking large amounts of Valium. There was evidence, it says, from which the jury could have decided that Cooper did not take large amounts of Valium. Therefore, the jury could reject Dr. Polos' opinion, citing United States v. Ingman (9th Cir. 1970), 426 F.2d 973.²

The evidence that Cooper was taking excessive quantities of Valium came from several sources: Cooper's statement to Dr. Polos that he had done so; reports from the FBI stating the prescriptions (with prescription numbers) for Valium given to Cooper by two doctors, which reports were given to Dr. Polos by the FBI. There also was evidence that Cooper had access to a friend's supply of Valium. Independent tests of Cooper were made at Dr. Polos' request by Dr. Paulson, chief of the psychological outpatient department at U.C.L.A. and the Neuropsychiatric Institute, to determine whether Cooper had told Dr. Polos the truth. Dr. Paulson reported to Dr. Polos that there was "no doubt that the defendant was being honest and was not attempting to lie or distort any of the material that was asked of him."

The Government's argument that Cooper was not taking large amounts of Valium rests on inferences that the Government draws from testimony by Dr. Bruce that one who took excessive amounts of Valium would be drowsy and would go to sleep and the testimony of lay witnesses who saw Cooper on the day of the robbery and who said that Cooper appeared alert, and not drowsy, when he robbed the bank. The Government argues that because Cooper was neither asleep nor drowsy, he could not have been taking large amounts of Valium as Dr. Polos believed.

To illustrate the problem and not to imply that...