*1 orderly discerning competency an medical evidence on the is- manner clearly psychiat- with each issue identified Here there substantial and de- sue. is Judge appellant’s compe- Yet, points out, cided. ric evidence tency as Gibbons relatively contemporane- the record that defense which is shows counsel unsuccessfully, period attempt, did ous to the here deemed crucial. to have Phe- (6th competency participate Wingo, lan’s hearing investigated Conner v. 429 F.2d in that 1970). Presumably psychia- these determined. testify trists are available based on long Now, event, only after the extremely relevant examinations and re- practical remedy for the sum- above ports. reports that some of the fact inadequacy procedure marized in trial McNaughten focused on issue does requirement a the state convene a possible relevancy not alter their on the hearing degree guilt, new on the competency issue 1965. opportunity defense an then accorded preliminary In Pate the court to raise v. Robinson conclud- and contest as a compe- ed that under facts it there the issue of before Phelan’s “meaningful” hearing tency to defend could be a himself at that new hear- ing. solely competency on the issue of to stand Here, contrast, requisites trial. meaningful hearing present.
for a are present
I on the therefore conclude constitutionally permissi-
facts that it is appellant’s
ble for the of the com- issue
petency at date to be resolved crucial retrospective determination. Of
course,
always
present competency
his
possible
threshold issue.
383 U.S.
See
UNITED
America,
STATES of
at
HASTIE,
Judge
Circuit
Raymond
Liley,
BROWN and Steven
join
Judge
dissenting
Appellants.
I
Gibbons’
opinion
only
and add
statement
brief
No. 71-1105.
summarizing the decisive considerations
Appeals,
States Court of
they appear
to me.
Eighth Circuit.
record makes it at
least
state
Nov.
1971.
mentally
doubtful
Phelan
whether
Certiorari Denied March
competent
time
to defend himself at the
See
court seem state permit inquiry
court did into that questionable
critical and matter at the
hearing. Probably this is attributable to
the rather confused course the hear- ing. occasion, On that defense counsel advancing various contentions sanity
about at the time the crime competency
and stages to defend at various proceeding. of the criminal At time, frequent
the same Phelan’s wild interruptions
outbursts and his and con- lawyers
tradictions of his own made it impossible hearing
all but conduct *2 Judge,
Bright, concurred and Circuit opinion.
filed an
Douglas (Court appoint- W. Thomson ed), Thomson, Wylde Nordby, & Jack S. Paul, Minn., appellants. Nordby, St. Atty., Shapiro, Rob- Asst. U. Neal S. Minn., Atty. Renner, D. ert U. G. S. Minn., appellee. Minneapolis, Judge, MATTHES, Chief Before STEPHENSON, Circuit BRIGHT and Judges. Judge.
STEPHENSON, Circuit defendants, Raymond Appellant Brown Liley, bring appeal from Steven guilty upon verdicts of their conviction by jury of sell- after trial of the offenses drugs ing depressant in and stimulant (2), 331(q) violation of 21 U.S.C. § selling drugs being pursu- in narcotic purchaser order of the ance a written by purpose on a form issued for the Treasury, of 26 in violation U.S.C. § 4705(a). Brown was sen- Defendant years imprisonment for twelve tenced to years charge and five on the narcotic depressant and stimulant of three each drug charges, run con- the sentences Liley impris- currently. Defendant years of two nar- oned for twelve on each years charges de- on one and five cotic charge, drug pressant stimulant concurrently.1 Appel- sentences to run charged drugs (21 (2)) 331(q) Brown was Counts § Defendant stimulant U.S.C. capsules; depressant 17, 1969, I, II, III with sales of on December Dangerous Drugs, posed join in turn claims of error lants in all with a member of Mafia under the name error claimed defendant additional (a Eddy.” charged All IV of “Fast of the sales Brown connection Count count) separately were made will as offenses the indictment cocaine which Informant Muhlhauser.2 discussed. arrangements made the ing for the meet- appellants and Muhlhauser between Entrapment as a matter lawof Appel- culminated in sales. Appellants’ complaint initial they testified lants were re- both as a whole established that the evidence participants drug luctant tions; transac- In this matter of as a law. they induced so to do urge connection Liley’s representa- informant Thomas illegal that all of the sales shows danger tions his life because *4 arranged by Thomas were informant Eddy,” of a owed his “Fast debts boss Liley, appellant Liley, brother of Steven killer, only way Mafia hired and that the allegedly by retained the Gov who was Liley’s informant Thomas life would be basis, contingent and on ernment a fee arrange spared was if he could for the wit was not called as a Government who drugs ultimately place. which sale of took unfairly ness, depriving thus Appellants admitted of all the transac- tney him; right of to cross-examine question they except ap- in tions denied appellants' testi further contend that pellant participation Brown’s in the sale mony induced shows that the informant July (Count IV). 14, of on cocaine 1970 charged under to sales them make entrapment pursued of The defense was pretense that informant would throughout actively began It trial. We, they if of killed failed to do so. vigorous with the cross-examination of light course, in review the evidence witness, Agent the Government’s first in de to the Government most favorable Muhlhauser, and was continued in the termining there is whether awas agents cross-examination of other entrapment. sue on the testified. brief, began early In De- case in There is substantial Liley to cember 1969 Thomas when came supports jury’s finding which appellants that the offices of the Bureau of Narcotics entrapped, were not induced Dangerous Drugs Minneapolis in committing or coerced into the offenses provide offered to At that information. charged. Agent Muhlhauser testified time he showed concern for involve- that it was made to clear informant that ment of several his in the brothers you anyone drugs; don’t induce to sell dangerous drug narcotic and traffic paid day that was informant a for $25 he wondered what he could it. do about days actually worked; he that Muhl Liley The services of informant Thomas appellant hauser had information that by were thereafter utilized the Govern- dealing drugs approxi Brown was agents making ment purchases set mately six months before he was contact posed out the indictment. Informant by Liley Special Agent ed informant as the front man for Muhl- and the first sale hauser of the Bureau of 17, Narcotics and ;3 consummated on December 1969
January 2, 2,405 1970, capsules; and on 2. sale of cocaine V Count July 14, 1970, milligram; (July 16, 1970) actually one delivery and Count was a July 14, IY sale on appellant Liley cocaine Agent 1970 cocaine Muhl 4705(a)). Liley U.S.C. shortage § Defendant was up hauser to make a charged in the same indictment de- July with 14, amount sold and on delivered fendant on (Count Brown Counts III IY IV). 1970 plus V, July 16, Count sale cocaine on testimony 4705(a)). 3. § U.S.C. Defend- This was elicited from Muhl- guilty ants appel- were found on all as on counts hauser cross-examination charged. lants’ counsel.
105
meeting
during
appellant
grounds
judgment
acquittal
with
on the
that
his
for
date,
law.
that
Brown offered
matter of
on
as a
Brown
there
price
per
amphetamines
is-
at a
properly
$25
submitted as
sell
It was
Muhlhauser,
hundred;
protest-
States,
he,
See,
356
Masciale v.
sue.
high;
859
price
that Brown
was too
2 L.Ed.2d
ed the
S.Ct.
U.S.
States,
5,000
quantities
or
(1958);
more
said
Sherman v. United
Cf.
go
roughly
price
down to
court’s motions law, fact January mere example, appel- the the ness to break For on agents provide Agent what lant Brown told Muhlhauser he that Government opportunity supply 5,000 appears amphetamines per a favorable to be could example, entrapment. price when For at is $20 week a a hundred. On person suspects July 16, 1970, that a appellant the told Government Muhl- narcotics, supply many engaged in the illicit sale of hauser he could him as is entrapment capsules Government for a it is not agent Dexedrine price he wanted as for a pretend else hundred, to someone a be $7.00 to that he through directly offer, City or either knew a chemist in Lake. to Salt purchase decoy, 40,000 dosage make an informer other units of or LSD person. suspected profit. Appellant from such a narcotics for Liley thousand dollars beyond jury then, a April 21, If, find the should told McDowell on 40,000 in dosages from the reasonable doubt of LSD could anything City that, at all before the obtained from Salt Lake case alleged respecting $4,000. offense the occurred case, or the defendant in involved given by entrapment 5. The instruction on ready willing to were and charged defendants trial court the was as follows: the crimes such as commit indictment, they opportunity “The defendants assert whenever entrapment afforded, victims of the officers as to crime that Government agents than offer indictment. did no more or their jury person previous opportunity, Where a then should has no intent the the purpose law, or the defendants violate but the defendant or find persuaded by entrapment. or law induced enforce- are victims of agents hand, ment officers or their if the evidence commit the other On crime, entrapment you a lie a rea- is a victim of leave the ease should policy or and the law as a matter the defendant for- doubt whether sonable previous or bids the intent his conviction such a case. had defendants person any hand, purpose the the other On where a to commit offense only already willing- charged, so has the here and did readiness and character special the entrap- interest in complaint is the have a pellants’ that entirely advise outcome.” “fails ment instruction the to consider misconduct Less then retired to deliberate. * * * agent em- entrapping jury requested later than hours three entirely upon the state of phasis almost indictment, copy a a clarification mind, defend- predisposition of the agency of the issue and clarification a appellants’ re- considered ant.” haveWe entrapment com- issue. The Court instruction, one quested as the well agency plied by re-reading instruc- given by find that the court. We entrapment instruction and tion and the properly follows instruction court’s giving copy a indictment to the entrap- governing issue of standards jury. jury again retired, the After the States, 287 U.S. v. United ment. Sorrells gave parties opportunity to Court (1932); L.Ed. 413 53 S.Ct. exception. Appellants then made take Rog- supra; States, Sherman v. following objection: “ F.2d 1001- ers v. United * * - again object and ex- We 1003 Cir. charge entrapment cept to the given. I believe it is not a correct during trial, Although not stressed law, special ref- statement of and a additionally complain that the example erence that’s used entrapment specifi- instruction fails to excep- the instruction. Rather than an cally state that the Government must entrapment defense, de- tion to the beyond prove reasonable doubt predisposition fendant has a to commit entrapped. defendant was not offense; however, instruction Appellants requested submitted twelve says that when the Government sus- entrap- instructions which included an engaged narcotics, pects that he is spe- ment instruction which contained a then the available, defense is not cific statement the Government except and to that extent we prove beyond must doubt reasonable given.” to the instruction as *6 the defendant was not to induced Initially appel- it should noted be charged. commit conduct unlawful comply part lants did not with that Prior to the final of instruc- submission 30, Rule Federal of Criminal Pro- Rules jury tions to the made cedure, requires objections to general objections as follows: instructions must made “before “* * * Yes, MR. THOMSON: jury verdict, retires to consider its stat- Your Honor. Both defendants would ing distinctly the matter to which ob- he except requested to those instructions jects grounds objection and the of his submitted to the Court and refused. * * purpose The is to reduce specifically except We to the Court’s possibility of error. charge entrapment on the definition of party objecting “A a failure of the to grounds on fairly that it does not give request- trial court to instructions adequately entrap- state the law of specifically ed must he state to what ment. objects why. object The thirdly except Then we will to possibility Rule is to reduce of er- Court’s credibility instruction on the by giving judge ror ade- the trial an witness, defendant quate opportunity any correct mis- to cautionary form of a instruction the charge, takes in his to af- as well as closely should look at the testi- opposing party opportunity ford the an mony grounds of defendants on the keep to error out of the record.” persuaded because he was induced or The above instruction taken from 1 agent some officer or Blackmar, Jury of the Gov- Devitt and Federal Prac- ernment, your duty acquit then it is Instructions, (2d tice and Ed. § 13.13 him.” 1970).
107 Levin, (8 Armstrong (Footnote omitted). ed States v. F.2d 1101 Cir. 443 v. (8 States, States, 764, 1971); Lopez F.2d 768 United 373 United 228 v. cf. 1956). 1381, 433-437, L. 83 S.Ct. 10 Cir. U.S. (1963). Ed.2d 462 See, States, Pritchard F. v. United 386 (8 1967); 2d 768 v. Cir. Dranow States, (8 United Special 307 F.2d Cir. 569 Interest Instruction 1962). Appellants charge Court Appellants’ specific objection to referring “spe erred in defendant’s to a entrapment the instruction on made aft cial interest the outcome of the trial.” jury requested er the additional clarifi again preference We assert this Court’s pointed up objection previ cation singled that a “defendant not be out.” ously herein, press discussed but did not Taylor United v. 390 F.2d We,
the matter reasonable doubt. In this case arewe nevertheless, must determine whether prejudice satisfied that has been plain failing spe there was error in shown. cifically entrapment state in the instruc tion the burden on the Government Evidence Similar Acts regard. doing In so we con must sider the instructions a whole. The Government offered evidence of trial court at' outset cautioned single by appellant Liley April sale of heroin on were not to out one 21, Omaha, Special Nebraska to instruction alone but the instructions Agent objected McDowell. Defendant whole; were to be considered there as a and prejudice moved a mistrial because of the followed; regarding instructions in involved. Government dictment, innocence, presumption urged the trial court to receive the evi- prosecution prove the beyond burden being dence as material issue every a reasonable essen doubt entrapment intent, and to the issue charged, tial element of the crime an ad citing Lewis, F.2d States proof ditional burden of instruction 1970). Appellants 457 Cir. contended part: which stated in stage that at that of the trial no evi- any procur- dence had been ing agent
“The offered “of Government in this case has any proof and, defense or de- burden of to sustain burden, prove fense” and this regard further that must intent was not its case pointed issue. The trial court out the various Counts in the *7 beyond that intent Indictment was an in issue the Title reasonable doubt. 4505(a) charges There is no burden contained in Counts § on a defendant to any receiving evidence, or, having introduce IV and and in V the evidence in- evidence, jury you troduced admonished the as follows: to convince thereby any fact which if true case, jury, “In this members of the charge abe defense in the Liley the defendant is not the Indictment.” any having offense to do with We are satisfied that any when instruc transaction or non-transaction on tions they are 21, considered as April 1970, a whole in Omaha. The evi- reasonably make it clear that burden dence as to that conduct or conduct as proof prove was on the Government to to acts have been received and bewill beyond a reasonable doubt that the de received it the intent of bears entrapped. See, fendants were Liley.” Unit the defendant 6. The ing instruction testimony, was as follows : his should con- testify “A defendant who wishes to fact sider that a defendant has a competent testimony special witness and his interest in the outcome of the merely should not be disbelieved because trial.” However, weigh- he is a defendant. in 108 parties appeal
The
positions
trolled
some reasonable manner.”
adopt
States,
U.S.App.
taken
with ad
below
Hansford United
112
v.
argument
(1962);
359,
219,
ditional
of au
citation
F.2d
226
D.C.
303
urge
thority.
particularly
Appellants
Johnston,
United
v.
109
Procuring
alleged
be inferred from the
dis
various
Defense
price
appellants claim
eussions of
Appellants
that
rec
contend
part
placate
were
of their efforts
to
most,
they were, at
that
ord establishes
Eddy”
protection
in-
“Fast
agents
procuring
the Government.
Liley.
They
that
formant Thomas
Much of what
was no evidence
contend there
already
any profit
herein demon-
from
has
been
realized
said
might
except
adequate
to
question,
strates
there was
transactions
complicity
the indict-
459,
a demurrer
in oth-
the Court on
ment.)
the defendant’s
that
may
we do
serve
these circumstances
narcotics transactions
Under
er similar
commit
§§
motive to
that in all cases under
4704
intent or
not believe
to establish
proof
charged,
(a)
4705(a)
addi-
that
believe some
it can be said
the crime
we
and
required.
reference to the
of intent is not
with
tional observations
may
in-
element
be
the trial court
of intent as an
In the instant case
matter
charges
helpful.
the narcotic
structed as to
“doing
elements was
one of
essential
ago
Long
Supreme
Court noted
bartering,
selling,
ex-
or acts of
act
prohibiting
then in existence
statutes
drug
away
changing
giving
a narcotic
or
pursuance to
narcotics not
the sale of
unlawfully.”
knowingly, wilfully,
and
by the
on a form issued
a written order
latter were
as follows:
defined
guilty
make
knowl
did not
Government
edge
“Unlawfully”
contrary
means
to law.
offense.
element of the
essential
unlawfully
do
To do an act
means to
although the
The Court observed
contrary
wilfully something which is
general
at common law was
rule
to law.
necessary
scienter was a
element
“wilfully” if
vol-
An act is done
done
every
proof
crime,
such
indictment and
untarily
intentionally,
with the
and
and
the statute did
essential where
specific
something the law
intent
to do
require
purpose
it
say,
purpose
forbids,
bad
that is to
with
would
such a
statute
be obstructed
disobey the
law.
Balint,
requirement.
258
United States v.
“knowingly” if
An act
is done
done
250,
301,
Judge by Appellant Count IV Sale Brown agree I I concur in result. with Judge Stephenson’s conclusion appellants Both Brown and properly trial court in this case admitted Liley appellant testified Brown had of other evidence crimes show knowledge no of the cocaine transaction entrapment. Nevertheless, of I absence gist in Count IV. of their feel ing relat- constrained to add a comment testimony although appellant was that admissibility to the evidence. of such appellant Brown inwas the car with Liley when transaction was cocaine admissibility question completed Agent Muhlhauser he relating evidence to other crimes must Agent not handed aware case-by- judges be resolved trial on a Muhlhauser the re approach cocaine and turn weighing case after need against contrary possible ceived cash from him. To evidence prejudice flowing Muhlhauser testified that while from introduction. its applied both were in car No he had a mechanical can in de- rule appellant termining admissibility.1 conversation with Brown its Judge following 9. Larson’s instruction was as fol- makes the McCormick comment subject: lows : on this you Special Agent important “If believe There is consideration Edgar (Special practice J. Muhlhauser or the as to the admission of Employee) Liley, informer evidence other Thomas crimes is little authority opinions. acted under instructions and discussed in the This is the Danger- of the Bureau of and rule Narcotics versus discretion. Most Drugs, opinions ignore problem ous asked either defendant get drugs proceed assumption some narcotics or for him the de- thereupon solely upon either defendant undertook cision turns the ascertain- application prospective purchaser’s to act on the ment and rule. If the own, behalf rather than his so situation fits one of the classes wherein doing purchased drug recognized from a has third evidence been person having independent relevancy, , with whom he associated then the selling received, thereafter delivered it otherwise not. Agent Muhlhauser, way handling the defendant This mechanical such seller, you questions advantage calling not be a has must him find guilty particular judge personal on a on the for a count or minimum counts, judgment. problems lessening or of But them.”
Ill making appropriate de- er factors for the Proposed of Evidence Rules Rule 4-03 Mag- under of this kind cisions District Courts United States Knightly, Slough (a). Other guide- appropriate contain istrates Vices, Crimes, L.Rev. 41 Iowa Other line: (1956). WRONGS, CRIMES, prop- OR and the comment thereto This rule OTHER crimes, erly emphasize judge’s of of other role trial Evidence the ACTS. balancing wrongs, probative not admissible of such the value evi- acts is person against prejudicial in or- in de- prove of a nature character dence its the admissibility. termining in conformi- acted its to show that he der however, may, ty be ad- It therewith. purposes, such other missible for intent, motive, proof opportunity, of identity, knowledge, preparation, plan, or accident.
or absence of mistake 4.04(b).]
[Rule reads:
The comment to this subsection special- (b) deals with
Subdivision application important ized but America, of STATES UNITED excluding general circumstantial rule Appellee, of use character evidence. Consistent- ly rule, that evidence other SIMON, Appellant. Wilson crimes, wrongs, not admissi- or acts is No. 71-1226. prove ble character as basis suggesting the inference conduct Appeals, States Court particular on a occasion in con- Eighth Circuit. formity However, with it. the evidence Nov. may purpose, offered for be another proof opportunity, motive, such as on, so does fall within prohibition.
the In this the situation provides may
rule
admissible. No mechanical is solution
offered. The determination must be danger
made whether of undue
prejudice outweighs probative value evidence, view of the availa-
bility proof of other and oth- means dangers prejudice ly pigeon-holing, too without one but one side,
much balancing, sacrifice of relevant evidence can the actual on the one satisfactorily seldom if ever be solved the other crimes-evidence need for light mechanical rules. And so here there the other of the issues and danger judges, prosecution, if the trial and evidence available appellate, convincingness content themselves with of the evidence merely determining particu- committed, whether crimes were the other actor, lar evidence of other crimes does or the accused approved strength does not fit one of the other or weakness of the classes, they may sight issue, supporting lose of the un- crimes-evidence derlying policy degree protecting other, the accused to which and on the against prejudice. policy probably unfair be roused will may evaporate hostility. through over-mastering the interstices C. evidence to (1954). McCormick, of the classification. Evidence Accordingly, opinions some of recognize problem mere-