United States v. Thomas Burgess
691 F.2d 1146
4th Cir.
1982
Check Treatment

*1 misconduct, if any, what future could detail anticipated. the essential analysis

This recital second in our decision in N. L. R.

amplified Chevrolet, Inc., Appletree 671 F.2d 838

B. v. 1982). There we reiterated

(4th Cir. “make findings

the Board should sufficient continuing . ..

to establish effects of misconduct and the employer’s ineffec- ” the usual remedies .... tiveness of Id. at

841. in N. L. R. B. v. recently, Maidsville

Even Inc., Cir.,

Coal Company,

1982), this Court bore down on the principle issue, bargaining

that “before a order demonstrate, particular- Board must

ity, why traditional remedies will not protect

employees’ rights under 7 of the Act.” Id. §

at 1123. accurately notes, petitioner nei-

As the nor Board

ther the ALJ endeavored to why bargaining order

explain would be remedy. The appropriate Board fails to neglects remedies and say other

discuss a fair election. prevents Clearly,

what now not borne has its burden

the Board under Appletree Chevrolet. According-

Gissel order bargaining should be

ly, refused

enforcement. America, Appellee,

UNITED STATES BURGESS, Appellant.

Thomas

No. 81-5314. Court of Appeals, States

Fourth Circuit.

Argued Sept.

Decided Oct.

Rehearing Rehearing En Banc 13, 1982.

Denied Dec. *2 Lieberman, Alexandria, Va.

Michael S. Zwerling, Kenneth John (John Kenneth Associates, P.C., Alexandria, & Zwerling Va., brief), appellant. on Otis, Sp. Asst. U. Atty., G. William S. Alexandria, (Elsie Munsell, L. Va. U. S. Jr., H. Albright, Atty., Clarence Asst. U. S. Alexandria, Va., brief), Atty., on for appel- lee. BUTZNER, Judge, Circuit

Before FIELD, Judge, Circuit and Senior MURNA- GHAN, Judge. Circuit MURNAGHAN, Judge: Circuit Burgess a Vietnam war veteran who experiences during stressful suffered country, among them direct stay in that in the battle of the Plain of participation Following his return to the Reeds. United discharge the Army, and States May engaged, activities prosecution led to a which District Court for the Eastern Dis- States (a) on charges of Virginia conspir- trict cocaine,1(b) distribution of acy to distribute cocaine,2 using (c) telephone facili- and of cocaine.3 the distribution tate evolved, performance Bur- the case As disput- acts was not proscribed gess appeal candidly His brief concedes ed.4 establishing the offenses the facts defense, uncontested that a showing made by facie prima that: Government, “The entire defense opening 21 U.S.C. 846. § 1. Defendant’s 4. really began: no contest here as to “There is Burgess 841(a)(1) Tom on the dates as set or not whether U.S.C. § 2. 21 U.S.C. § committed the offense as in the indictment out charged in the indictment.” 843(b). 21 U.S.C. § whether or ess upon rested especially to a fair trial were scru- at the time legally insane of the offense.” protected.5 pulously We address that issue here. asserted a Post Traumatic The defense (PTSD) allegedly Disorder activated Stress claim of centers on a collo- experiences. Vietnam by Burgess’ Medical quy Judge between Williams *3 parties. both experts appeared There occurred immediately prior which which, believed, testimony was estab- of the presentation defense’s case in chief. a reasonable beyond doubt Bur- lished colloquy with The commenced a statement insane. The

gess jury returned a by prosecutors one of the questioning the counts, as to all guilty of three verdict which, of certain evidence to relevance in should normally have concluded the statement, defense opening counsel had al- matter. luded, specifically the experiencing by Bur- breaking the of gess up of his home. The contends, however, that, as by taken the position Government was that presented jury, to the case was the was evidence, manifestly while designed the to by the mouse-trapped Government the sympathy, simply was not probative evoke consequence testimony that valuable which the existence vel non of as to mental dis- materially strengthened would have , defect. ease or introduced. case was not As courts have occasion frequent observe, had to the ques then evolved a brief exchange There con- appeal frequently tion before us boils cerning proper point in the trial at whether sufficient down not to evidence of other defense which evidence should be of- of the charged the commission crime Defense fered.6 counsel indicated that alleged proven, but rather whether expected in Government its rebuttal rights proc- accused’s constitutional to due to adduce evidence that case the insanity Vida, 759, E.g., by Later, prosecution. examined denied, 1966), cert. 387 U.S. Feinerman, Cir. presented by the Government on (1967): L.Ed.2d 630 rebuttal, mentioned, during cross-examina- increasing emphasis, defense, we by genetics With are cautioned impor- tion guilt wholly patent of an accused is that the schizophrenia. sought in Defense tant then appellate an immaterial to court’s considera- Estopinal’s to Mrs. testi- adequacy protec- of a trial court’s tion of the (cid:127) mony. Assuming, arguendo, pro- rights. tion constitutional of his testimony posed would be otherwise admissi- nevertheless, was, ble, it offered too late. approach in 6. The normal a case where a de- reply evidence meet Surrebuttal must to insanity contemplates: fense is raised of by plaintiff presented evidence rebut- 1) establishment of the The Government’s McCormick, (2d 1972). 4§ tal. Evidence ed. by performance the defendant of the criminal testimony Estopinal’s could not Mrs. have acts. Dr. Feinerman’s since he did rebutted defense-in-chief, 2) The which evidence of family history claim defendant’s no insanity is introduced. merely mental illness. Dr. Feinerman stat- of 3) Government, Rebuttal in which an history. he himself knew of no sanity beyond ed that such attempt prove to reasonable Estopinal’s properly Mrs. should doubt is made. presented Surrebuttal, part 4) been of the as in which the defense’s defendant seeks produce in chief. case contradict the Govern rebuttal, during point completion introduced When the of of a trial ment’s evidence has reached, here, the ready that such should not al which was the situation extent been during judge introduced have been the defense- trial should be vested with substan- Greene, discretionary powers bring United States v. in-chief. See tial tiary phase the eviden- close, put to a or it another (1975): U.S. L.Ed.2d 839 tendency 95 S.Ct. way, vigorous to curb the natural of Fourth, alleges error defendant trial get in the final word.... If counsel it had Estopinal, to allow Mrs. court’s refusal moth- significant substantial or it was been some- defendant, testify er on surrebuttal thing readily which could have been known history of mental illness in about family. the defendant and should have been to brought possibility genetic of a base to part as a before schizophrenia first mentioned de- principal defense evidence. Holzman, psychiatrist, while cross- fense

J449 contrived, i.e., ed to put faked. Defense evidence after the in general terms pressed, and neces- its rebuttal case properly rested met basis, anticipatory rulings sarily on an for surrebuttal. criteria Evidence which defense-in-chief, part as permitting, put in part have been should the case going to show the which, described chief, being evidence merely repetitive insanity PTSD defense. genuineness already evidence before the jury, of other (also speaking, of necessi- The Government not be testimony, would colloquy preced- since the the abstract ty, in its status changed not have merely by could submission of item the actual ed the label “Surrebuttal.” De- application insanity issue) objected on the counsel, argues, the Government fense such evidence as introduction basis for relying reasonable on the no ab- chief, case in contending that prosecutor the defense’s of a during stract proper development orderly court colloquy between and counsel which of such testimony the deferral dictate *4 simply down indeed boils truism: surrebuttal. is surrebuttal.” The state- “Surrebuttal authorize the holding did not back of ment Following resumed. com- The trial then went to the testimony which issue of insani- case, the Government’s rebuttal pletion than to the itself rather issue of ty whether by the proffered defense as sur- testimony been an effort to insanity.7 there had fake objected was Government rebuttal large measure, though in not com- and was discussion at the colloquy be- Since excluded. pletely, counsel tween court and was couched in nature, in general specifical- without terms Obviously, if defense counsel was indeed identifying testimony which the ly reasonably rely on the led Government’s should contended not be of- Government testimony that should be re- contention surrebuttal, until by the defense fered it and surrebuttal was then fore- served for responsibility to becomes our look to the introducing the evidence on closed proffered testimony items to de- several it properly part that was grounds each, category fact, which in into termine defense-in-chief, injustice has occurred that To the extent an item was fell. not reversal would mandate and remand which but belonged, indeed proper However, the for a new trial. Government all, defense-in-chief, in the at admissible at its remarks the time replies that would be position well taken. Government’s only intended colloquy properly and go be read to to evidence only could which between colloquy court and coun- In was proper long Williams, surrebuttal. indeed So properly cautious, Judge stat- sel purely in generalities, the discussion it respect to the Government’s prema- ed for defense counsel correctly remained irrelevancy: “I can’t claim of rule on it ture each item the whether defense want- assess advisory way.” He went on to ob- in Indeed, difficulty overhanging McCoy, produced a the entire if a witness were not refute precision using apprecia- that, time, in or point case is a lack of testify at a different and It, interpreting term “surrebuttal.” person persons McCoy, tion in than to a different properly, to refutation is limited of the testimo- Burgess conduct indicative had evidenced witness, ny opposing spill disease, hence, does not of an defect or inferential- mental something directed at over to include ly, faking. was not disproving, casting or at least doubt other than concept slightly differently, Stating the surre- McCoy on that witness said. was a what specific refutation evi- buttal concerns witness who testified It is not a a witness. basis for a dence of Burgess rebuttal case that ad- Government’s general conclusory on the overall attack infer- insanity feigned. mitted that McCoy’s from his evidence. ence to be drawn McCoy misunderstood what Bur- Evidence that Burgess feigning admitted in- gess said would testi- proof sanity other is not rebutted that Bur- participant mony. example, For another fact, was, gess Such insane. evidence would produced to state could be conversation n.6, belong defense case-in-chief. See something quite Burgess had said different. supra. surrebuttal, However, it would not be it would testimony about the defendant in Sonnenberg serve testified to a range wide could be situations counter- stress normal matters leading him to the circumstantial the establishment of the productive to Burgess conclusion suffered from The court concluded: “I defense.8 PTSD that, opined result, as a Burgess PTSD the matter after is looked at sure that am insane. Dr. Levin legally testified as it maturely ... will be tempered in more objective psychological given tests to four that.nothing objectionable way will such Burgess expressed by him to his conclu- out.” come results that the confirmed Dr. sion Sonnen- In diagnosis. the course of his berg’s testi- colloquy then moved obser- Sonnenberg explained that mony, the infor- from the defense Govern- vation which relied came mation on not from its intention in rebuttal ment had stated Burgess alone but addition was con- the whole PTSD de- sources, “independent” from other firmed Defense fense was contrived. i.e., not faked. whether question it could in- raised the its case-in-chief troduce in corroborative ev- case-in-chief, rested the defense After faking idence that Government, rebuttal, of its specifying Without what the tes- defense. McCoy, personal acquaintance called be, timony defense counsel would stated a McCoy Burgess. testified that testimony in the case in wish to have expressed disbelief in his own himself know so that “this is chief syndrome” defense and had stat- “Vietnam being game played on them.”9 feign insanity that he would at the trial. ed *5 noted that The Government to Commarato, agent, a DEA was called and of fakery refute a claim would be more Burgess’ observation that stated his behav- to restricted surrebuttal.10 properly of the offense “very at the time ior judge sensibly responded by stating: district cautious, cool, calm, very typical dope of a those things they “I will rule on when come Also, Government, the part as of dealer.” up.” rebuttal, submitted of a medi- case-in-chief The defense’s consisted of Pepper, expressed Dr. who expert, cal of two medical experts. gener- that PTSD defense in conclusion case, The court observed: 8. If that’s then MR. SCHOTT: appropriately more those witnesses are re- anybody I believe that who is de- ... can’t And, in surrebuttal. sister has called ground they fending a case on the that are we in the courtroom when made a mo- been syndrome post-Vietnam going is victims of on witnesses. tion for a rule by just running by defense all to dilute that people cope situations that the normal stress therefore, respect, important In an the case the time. with all Portis, from United differs by Burgess, relied on language colloquy pertinent of the 9. The read: sought in his the defendant case in where Your counsel]: MR. ZWERLING [defense bring psychiatrist out from his com- chief to Honor, I the Court is unaware of one think report and criticisms of the ments on particular problem which the Government However, psychologist. the trial Government’s they going put me to has indicated to rebuttal, Government, ruled, urging of the at the court they going and that is are to recall impeach improper to would be or con- that “it say McCoy, going to that Tom Mr. who is testimony of a witness who had not tradict going Burgess him that he was to fake told yet the evidence Nor was allowed testified.” thing going and that he was to this whole sought to introduce it on the defendant when think, important, everybody. It’s I for fool surrebuttal. support know that there is for our judice no such of in, sub exclusion bring In the case didn’t want this evidence. We points in at both the trial where it evidence can but have a sister who confirm a lot of we occurred; was, might every- come in much in- things. put We didn’t want these case-in-chief; deed, in, them, in the defense’s body just they introduced some so that but game not to seek its introduction being the decision isn’t a this is know prior was made defense played to surrebuttal coun- on them. any compulsion sel, through of Govern- Attorney United States The assistant stated: trial court. or the ment counsel contrived, further concluding that fute al was the charge contrivance, which de- suffering was not from PTSD. expected fendant would at a future time be case, injected into he did get want to Then the commenced. What testimony before the jury and intended one of reveals happened difficulties try to do so in the defense-in-chief. The flowing imprecise from the use of lan- judge very properly trial indicated that he earlier In the guage.12 colloquy, counsel for would not rule in advance and left to coun- may have sincerely the defense believed sel what was indeed counsel’s responsibility, they now sought that the evidence to intro- namely, the decision as to when was an duce on surrebuttal was the testimony appropriate time the testimony to be which the Government argued should offered. be reserved surrebuttal and not intro- part duced as defense’s case-in-chief. becomes, therefore, It necessary to con- However, belief must have derived sider which Burgess con- simply from counsel’s own estimate wrongly deprived, tends he was to see to as the surrebuttal character of the testi- extent, any, what is on ground. sound nothing mony. suggest There that the There were four witnesses involved in the took a surrebuttal stance with defense effort construct a surrebuttal evidence, respect any specific only to First, produced case. the defense a fellow object turn around successfully later on who had served in the soldier same battle in grounds on the the evidence did not Burgess. Vietnam with His testimony description merit surrebuttal but gone would have establish the existence properly rather material that should Reeds, battle of the Plain of one of introduced part have been of the de- major factors stress which had been We are unwilling fense-in-chief. to say Sonnenberg. However, identified must accept the Government responsi- Government, its efforts to bility misunderstanding for a deriving from fakery, had suggested establish never imprecise legal use terminology. It way battle had not taken the fault of Government counsel place, participant, or that testimony not truly told Burgess had not Dr. Sonnenberg about *6 was character intended to be encompassed Sonnenberg had in it. Dr. his direct testi- that, in defense counsel’s statement to re- to the battle.13 mony referred It was well It mention that the deserves effectiveness of ease the burden on Court and insure the presentation of the Government’s case suffered presentation parties effective on behalf most placed proportion- and strain on the Court generally, present in the context and of the consequence ately increased in of the absence particular, in case of the Government if counsel argument at of Government oral counsel who present argu- the case is who tried for the oral participated in the trial itself. Counsel ment. argument appear appeal at oral who did on was record, rely purely Sonnenberg on the cold forced to with- testified: 13. Dr. participation personal exchanges in out which traumas, major There were two three let’s place in the course of the took trial. He could say major minor one ones. One was the hardly speak with the same confidence as to place took combat that the Plain of Reeds impact record taken of the as a whole on pinned where Mr. down behind principal appeal. issue raised on And even graveyard. a in a tombstone He had no could, irrepressi- if he there is nevertheless an water, ammunition, he had no and he was tendency pay more ble attention to the de- there for about 48 hours. He saw seven of place scription took at the trial of what when his comrades killed thirteen wounded. by person present a who was offered there than And, say, water, as I he had no no ammuni- person given participates who when first tion, anything. and couldn’t do He witnesses appeal. on mutilated, being being bodies dead bodies course, cases can arise where it would continuing enemy Of not gunfire. mutilated possible be for trial counsel for the that, Govern- people He also killed two in that argument appeal. ment at the on engagement, and that as well was stressful to not, however, the Such was case here. him. emphasize, Accordingly, hope we with the major had to The other stressor do with heeded, request will be that our that it both will shooting girl. girl, A little little who he of the A the discretion district judge, personal within close friend of Burgess, Betsy judgment, exclude the testimony in our Hatch, proffered was then to testify that proffered in witness since topic of Vietnam was off limits insofar issue14 and would injected merely no new it Burgess was concerned and that he as never repetitive prior testimony have been it. Her testimony discussed would also Sonnenberg.15 Burgess’ have described May condition in and the dramatic deterioration in his as the case importantly, had devel- Most following his condition mother’s funeral. which the judge trial oped, the did Again, exclusion based on the grounds stage at late surrebuttal admit did merely repetitive.16 material which the not constitute Govern- opposed had succeeded in ment had purport was once excluding defense-in-chief. to establish the again existence of PTSD Nothing which occurred at the colloquy, than to rebut a case of fakery. rather dictated that the consequently, testimony of concepts may the two While occasion soldier should have been the fellow allowed we are merge, satisfied that tend it fell surrebuttal. judge’s the trial within discretion to exclude maybe eight, five away between explain thinks was his admission to the court and walking the road with a hand jury. was grenade. down Now, pin pulled had been Butterworth, 15. See Kines v. 13-14 grenade, but there was a release the hand mechanism, denied, - U.S. -, (1st spring mechanism so that as (1982): 72 L.Ed.2d 856 you grenade your long hand, held the hand explode. This is how it wouldn’t testimony is offered at a late [W]hen me, explained it to but I have never seen surrebuttal, this stage of the trial and it is grenade. hand repetitious presented of evidence earlier to Now, girl walking the little towards jury, judge’s the trial exercise of discre- or and two three of his com- Mr. excluding tion it should not be interfered She was Vietnamese. He saw the ruling prejudicial rades. is so with unless the that it pin grenade, that the hand moved, he saw was re- necessarily prevents a fair trial.... While kept shouting stop, at her to and he judge might permitted the ny testimo- away. course, it he wanted her to throw Of presented we do not find to be that the understand him. We will she didn’t never ruling excluding the was fatal to know, whether defense, he doesn’t know she knew demonstrated lack or of that doing, approached, but she what she was fairness essential to a fair fundamental trial. approached closer and closer Bur- as she Mr. example, Sonnenberg gess 16. For had testified: he had to shoot her felt that because he didn’t— particular post-Vi- event Was there one Q opinion your triggered etnam which in emphasized that It none of the is to be already impact diagnostical on his added con- McCoy’s contradicted so-called quotation syndrome? posttraumatic stress dition Burgess to the effect that he was A At the time of his mother’s death Yes. insanity. going feign None went to cast his father that in fact had not died he learned *7 accuracy of doubt on the Commarato’s assess- old, years three he was two or but that when Burgess of at ment of the behavior drug dealing the time the been alive until he his father had years was sixteen place. took Cf. States v. details of his old. He learned father’s 1297, Durnin, (5th 1980): 1301 n.8 632 F.2d Cir. alcoholic, life, his father had died an testimony marriage raised no new Since this rebuttal had wrecked to his father mother, proffered since the surrebuttal wit- issue and that his father been unable to vocationally, to rebut the essence were not able nesses I maintain himself and think the testimony, Magee’s going the district court’s Mr. factor to what is on most relevant here surrebuttal was not an today disallow decision to was that his that he learned father had stealing amphetamines selling abuse of discretion. and been respect them, case is to be In that vital was arrested that his father and States, distinguished Merrill v. United jail 338 for that. sent to 1964), evidence, submitted, already where Cir. evidence F.2d to There was also rebuttal introduced in the Government’s also the effect that: prove Well, although [Burgess] the defendant had admit- tended did not talk There, insanity. much, feigning very experiences he was how- it was ted that ever, ob- about the me, experi- which should have been the surrebuttal that his Vietnam vious to he said testimony upsetting. own frightening was the defendant’s admitted are ences testimony, especially since it tive was al- of what had already been by stated Dr. jury. Otherwise, ready expan- before Levin in the defense’s case-in-chief.18 Thus, sive contribute asked, surrebuttal Dr. Levin been during the de- case-in-chief, prolongation undue cases and the the very reitera- fense questions he permitted times over of answer surrebuttal, several the same on tion evi- excluding the ruling testimony as repeti- dence.17 have been tious would well within the trial Levin, the experts one of earlier judge’s discretion. Burgess, was also produced for called Repetitiveness is justifiable basis He purposes. put forward excluding evidence offered on surrebut not, testify in his though may it tal even otherwise be relev opinion, fabricated. Assuming that such a ant.19 contradicting expression expert opinion testimony,

constituted never- Finally, in the case of Dr. Sonnenberg, judge justified the district theless who was last witness offered on surre- permitting testimony for the inde- buttal, questions some were permitted to be reason that it pendent merely repeti- asked and answered.20 However, the court 18. The 17. We have had occasion Levin ran: offered as much of the evidence duce appropriate in the defendant’s inclination have come substantive cerned exclusion light interfere with the defendant’s fully often tenuous circumstances spect those ed ing people responses, pretend schach. There Rorschach up? indications of I protect Burgess? logical battery We do not now disavow or circumscribe that expediting the trial must not gave Mr. A There were two tests Q A Some of them and some of the tests Q Q somebody on that instrument. would have on his to the defense determination, And how did Mr. who have Do Is there a previously Burgess who are do. surrebuttal had been malingering? completely they to exclude plea.” United time, in. grounds, not for and in this where any way. they of the defendant’s case-in-chief. who was malingering making things did not Judge pretending have been of relevant as evidenced specific mental illness. case-in-chief, Cir. admitted people tests that are one of do, Williams 1974). insanity appear way mentally The Smith case con- built-in I value to the pretending have States v. many studies one on the do as which is the Ror- it is known how failure to offer it you gave observe with re- wished to intro- I right admitted when to be when it should to been asked looked at for that “the offered at the safeguards be allowed to evidenced no complex compared do as far as the fact that ill and Smith, purely pretend- to have psycho- expect- develop to Mr. of Dr. give shed goal on 20. reads: See also n.15 try you Burgess specific questions *8 Burgess gard. trict court abused its discretion in this re- cumulative. We can district court at the same time allowed Jo- seph much the same effect that Turzik would have. Further evidence would have been trict zik ... as a Finally, they feel, vated. is one attempting tremely ty Inventory] the MMPI [Minnesota looked at to see if the answering truthfully. These were not ex- appear. seen See United A Q A Q Q (2d A There are to establish that he had concoct this defense in order to there was court erred and this ratio was not Certainly Did Kirkland ... Certainly transcript very shocking things, [*] [*] particular had told Mr. or for elevated Sonnenberg, Sonnenberg, you L.Ed.2d 116 supra. to look worse than [*] [*] [defendants] surrebuttal witness coach test which are any a not. not. of his surrebuttal specific validity connection? in Mr. [*] indicator if the [*] other reason? excluding Mr. McCoy, hardly say testify you. I have Stirling, hypothetically, Multiphasic (1978): Burgess’ [*] [*] Burgess person argue that the Number in surrebuttal to and these didn’t this particularly 439 U.S. just a fellow indict- one Peter Tur- designed [*] [*] indicators on that the dis- case. There is disease, they really . Personali- person .. very help basically one, [*] how to [*] if Mr. [T]he to be few Mr. dis- ele- did or attempted risk, reiteration of the excluded calculated hoping to succeed plau- in a materials than testimony that other what (though ultimately, sible reasons we adduced, unsound) Dr. Sonnenberg signifi- approach. Burgess told have He by him prosecutor’s have viewed the reaching cant and relied his could well during (“If more the colloquy Once the testimony conclusion. was statement that’s case, those The then witnesses repetitive.21 evidence are more simply merely called appropriately surrebuttal.”) reemphasize the defense-in-chief served to or a life line manna from heaven thrown to to contradict the than Government’s rather Boldly drowning seeking man. to expand a case. rebuttal observation meaning of the of oppo- his with respect error Thus limits, beyond reasonable nent defense attempts timing introduce the of counsel, succeeded, had he would have by characterized counsel for Bur effect in achieved the maximum dissipating must gess “surrebuttal” be laid to de obscuring significance of the damag- not to the and court or counsel fense the contrived ing testimony as to nature of However, the prosecution. hand, the other the defense. On were the may have putting counsel erred in been offered to have and admit- the defense’s surrebuttal case evi off until properly belonged, where it ted that is be- properly at dence not admissible that late rebuttal, as part fore Government’s of tightly quite stage circumscribed of case-in-chief, it the defense’s could have not be deemed to should amount to an case have far less expected impact. been The there may expression have been inef piece subject, of evidence on the latest be- representation counsel. In the fective ing quotation a direct himself are, for place, we first sound and obvious faking, apt he was to be the most disinclined reasons, strongly to make such a jury. effective with appeal, direct when judgment on counsel may well have been doing So counsel speak opportunity no to his side has had best client in very making an at- Lurz, United of the matter. See ultimately an tempt unsuccessful —albeit Cir. 1981), cert. 666 F.2d denied attempt change obtain custom- —to S., 1005, 102 Magill v. U. sub nom. U.S. proper for the ary order introduction of 874; 1642, 71 L.Ed.2d nom. sub Steed S.Ct. game evidence.22 The probably well S., -U.S. -, U. man v. candle, especially when it worth is tak- (1982). 73 L.Ed.2d whatever en into account that evidence was place, moreover, as a strate- In the second cumulative of largely lost other testi- matter, gic well have taken a previously mony which had been admitted. Sonnenberg had testified: wife, friends, because have done jail. rely solely McCoy I think is ee As whole THE A InQ A Because Mr. A No. Q garbage, eventually, men who any effect on No. As And [*] COURT: old host of coming to that conclusion did why on the information he family this [*] the defense case in nature of clean a matter of not? letters in a normal worked for friends, sisters, [*] your diagnosis? this it part up defense was a bunch surrebuttal. [*] that related proceeding little, fact, different wants as a situation, sf. would that I wouldn’t his former gave you? child, chief, [*] people, to Mr. go I saw you but U.S. word.” tendency of confirmation for what there were no didn’t wasn’t material along tary test military records. nosis. before he was arrested. friends If So, so, memorize reports, records. there get one I have he was but 95 S.Ct. that have confirmation. vigorous his from where he was has been an enormous thing my diagnostic impression, that was after I made I also it, I have also large States but I can tell that I found seen, counsel to seen, areas exhibiting 42 L.Ed.2d 839 as I So, I and I didn’t I also saw Greene, seen believed. it say, history get in you psychological “the some of his quite volume of living just that there didn’t the final his mili- where I index it natural (1975). diag- a bit go *9 borne in mind prospects be language It should to flesh out the discussed instruc- successful achieving a defense were ex- for informing Without prior tions. Commission ceedingly remote. of the acts closing arguments, he inserted the follow- constituting offenses, the substantive in ing: judgment, could not be refuted. counsel’s also, Bear in mind ladies gentle- avoidance provided Yet confession little men, experts, and particularly medi- for hope escape an dependent are experts, upon cal informa- Alignment rigors of the law. of the insani- they tion receive in taking a history with statements ty defense made Bur- patient. If the patient from the gives crimes gess while still in their in them false information that history, evolutionary stage expressing comfort that experts’ opinions and conclusions can if prepared, caught, he would be well because the be flawed material he had to criminal against charges,23 defend would with was unreliable. work easy. be The apparently antithetical proposition for the The case positions, nature of innate improba- charge substantively in error is unper- coalescing a bility of calculating cocaine in, “Garbage garbage suasive. out” is a someone who

pusher with could not appreci- exclusively concept not confined to comput- criminality of his acts ate or conform light of the ers. In testimony, both of Dr. the requirements law,24 conduct to Sonnenberg Levin, and of Dr. they hardly be lost on jury. could Thus an relied on other materials and did not base extraordinary approach, unorthodox solely on opinions their what Burgess had with little chance of even one in success them, told the instruction was apt more trial judge of an astute presence and alert Government, be harmful whose ex- counsel, would have been un- pert independent had not testified Defense counsel may derstandable. on which to verification base his conclu- opening perceived delaying for or re- sions. most peating the defense’s effective testi- only potentially point troublesome prosecutor, mony when the on the basis of a by the raised the contention that arguably might be generality, said to have sponte and the sua uncommunicated charac- of much postponement of defend- called of the instruction ter created error violating phase.25 evidence ant’s rule, 30. The dealing F.R.Crim.P. with jury There are numerous other conten instructions, permits any party to file writ- Burgess. First, raised Judge tions Wil requests as instructions. ten The court is liams, following a discussion with counsel required to inform pro- then counsel of its arguments closing prior jury proposed upon requests action posed prior to clos- instructions, sponte determined sua to add An ing arguments.26 obvious short answer agent, high. yet one world, asked undercover It perfect while is not and the in transaction cocaine was still “in tendency pervasive rules is too bend revealing question: progress” a society American not to take it into account Yes, trying sir. He asked me on one occasion if to surmise what have influenced the deal, wrong anything my peo- with a only went actions of counsel. Consider the common ple legally, me would take care of that his practice patently basketball of American him, but would take care of mine foul, take regain posses- committed to intentional sion, care of me. gain possible may appear when the poor sportsmanship. exceed the loss for See, Smith, e.g., 1974). 711 n.2 pertinent part, provides: 26. F.R.Crim.P. (cid:127) suggest mean to At the evidence or at such 25. We do not counsel are the close of justified disregarding during established earlier time the trial as the court rea- rules of directs, procedure advantage sonably any party may a tactical to obtain or that file written imposed doing requests sanctions will not so. the court instruct Here, however, argument that the requests. the law as set forth At the should be characterized copies requests same time of such shall be entirely frivolous. parties. The stakes were furnished to adverse The court shall

1156 Cir. the instruction here dealt with 972, that could be 440 U.S. 99 consequence request by 1537, (1979), and sub the 59 L.Ed.2d 789 was not States, rendering 30 alto- Johnson v. United F.R.Crim.P. nom. party, either 440 U.S. However, 1545, 975, (1979), the 59 L.Ed.2d 794 gether inapplicable. Seventh 99 S.Ct. States, v. United nom. Holder itself otherwise and sub expressed 444 Circuit has Bass, 94, v. 161, 847, 61 (1979); 425 F.2d 100 S.Ct. L.Ed.2d United States 162-63 U.S. Newson, supra, v. States 1970): (cit at (7th Cir. 52(a)). ing F.R.Crim.P. Rule ... we think coun- .. . [U]nder be informed of all should instructions sel that, even if satisfied Rule 30 We are to the to given jury and read will be the inform court counsel of its requires being applicable only to in- 30 as Rule sponte modification of the instructions sua proposed by counsel structions closing there argument, was no prior to purpose its which is in to emasculate Defense counsel careful prejudice. counsel, knowing the instructions to allow refer argument to to the closing fact effectively argue his case to given, to independent be confirmation there jury. the were relied ex- which defense facts to conclude suffered perts necessity resolving poten for no We see PTSD.28 extremely reaching serious and far tially the interpretation as to question we to the Next turn defense’s con 30, since, even accepting the F.R.Crim.P. it should have been to allowed tention good law,27 in Bass remand purposes demonstrative charts for employ in the called for be circumstances would not diagnostic criteria for the listing PTSD. case. For all the circuits judge was well within scope The district problem, with the includ dealt have ruling which discretion visual aids of his Bass, Circuit ing which decided the Seventh to conduct not to be used exami See, e.g., showing of prejudice. require a nation, points could adequately since be Lyles, v. 182, 186 (2d 593 F.2d United States testimony.29 simply by verbal made upon proposed absolutely impeachment action There has been inform counsel no arguments prior Levin, requests to to respect their that.” to about With jury, jury: court instruct but shall told the completed. arguments are after the ran, again MMP1 that he this also The test people safeguards so that who built-in necessary in Bass was not to 27. The statement try go to fool to in and the test are trained that, decision, the Court determined as a get caught, they worked on have that. Tom matter, sponte the sua instruction substantive test, fooling he took that not when ac- was in error. cording Dr. Levin. authority reading weight as to the contrary. given 30 is See United Rule be States, Hamling See v. United U.S. Newson, (10th 531 F.2d 982-83 v. States 2887, 2912, (1974): 41 L.Ed.2d 590 94 S.Ct. although 1976) (“It also clear Cir. by petitioners offered Much material inform counsel as to their re- must trial court quests relevance to was not of demonstrated instructions, requests, absent such of it Such in this case. issues not inform counsel of the in- the court need subject clearly the Dis- been relevant given.”); United States to be structions that it would trict observation tend to Court’s 1972). Clarke, 891-92 Cir. enlightenment than more confusion create has watered down Circuit Even the Seventh jury, and to the court’s the minds judge, following permit the trial Bass rule closing prevent permit willingness expressed ma- same modify arguments, to an instruction “to expert to be treated terial becoming jury from confused and Court retains con- witnesses. The District deciding on a false basis.” See United case admittedly rele- latitude even siderable Shirley, States v. 1970). rejecting that which is vant evidence in cumulative, requiring that which is to Sonnenberg’s testimony, respect brought jury’s With attention be done likely “He also testified noted: under the defense manner confuse that so in a least simply body. agree Appeals he had relied on Tom oath that Burgess’ with the Court of We testimony, but had outside confirma- discretion District that the Court’s every things. one each and of those tion for abused. on the basis that Again verbalization was Government’s expert, to remain in the *11 means adequate presenting propo- a an throughout courtroom was not an abuse of sition, judge, the exercise of reports discretion. Written from the medi- discretion, refused to permit his Dr. Son- experts delayed cal point to the that nenberg to use a blackboard “to draw a forthcoming they were from defendant only will describe in diagram metaphorical days prior two to commencement of the experience [Burgess’] his of guilt. terms I trial, and, Government, from the on the the put diagram want blackboard a day of second and last trial. It was reason- life history that concerns and the stages place experts able not to under such experiencing.”30 he was guilt time constraints short familiarizing with each themselves other’s findings by The defense further contends that reading reports, and, through therefore, was error sufficient to require there rever permit all of reasonable them to appear court’s ruling sal in the district in court. for both parties psychiatrists might remain unnecessary to It is decide whether the despite provisions in court F.R.Evid. 615 any demonstrable prejudice absence calling for exclusion of witnesses. Rule 615 flowing from the failure to exclude the exception an in permits the case of “a per medical expert would, Government’s in all is presence son whose shown by party a events, eliminate force of the conten presentation to the essential be case.” in We have so ruled a case tion. where the was the contention It Government’s that its prejudice no disclosed record the defend expert, Pepper, medical needed to be on trial. Harris, ants United States v. 409 The court did not abuse present. its discre 77, (4th 1969), Cir. denied, F.2d 81 cert. 396 tion, since it particularly af evenhandedly 965, 443, 24 90 S.Ct. (1970). U.S. L.Ed.2d 430 defense., opportunity the same forded However the case antedated the effective Morvant Construction Aggregates See date of the Federal Rules of Evidence. It is 626, F.2d Corp., (6th 570 629-30 1978), Cir. specific arguable language of F.R. dismissed, 801, 439 44, U.S. cert. 99 S.Ct. 58 automatically 615 Evid. mandates reversal (1978). 94 There it L.Ed.2d was held that: noncompliance whenever with the rule is party except a seeks to expert [W]here Warren, United States v. shown. See 550 from exclusion under witness Rule 615 on 219, (5th 1977), Cir. 227 F.2d modified en that he needs the basis to hear firsthand 1058, banc, (5th 578 F.2d 1076 1978), Cir. witnesses, the deci denied, 1016, 735, 434 U.S. 98 cert. S.Ct. 54 permit him to sion whether remain is (1978). not, 762 We L.Ed.2d need and do the discretion the trial judge within not, that question.31 address normally not and should disturbed on appeal. The defense further contended that circumstances in the instant case were participant government the trial who ruling permitting such the two courtroom32 prejudiced remained defense, for the experts medical and the case defense’s statement pres- [Emphasis 957, 2188, 441 added.] U.S. 99 S.Ct. 60 L.Ed.2d 1062 (1979); Telephone Bell Wood v. Southwestern n.29, supra. 30. See United States Cf. v. Brick Co., 1188, (8th 1981); 637 F.2d 1194 Cir. 680, (8th ey, 1970), 426 F.2d 686-87 Cir. cert. Virgin Islands v. Edinbor 828, denied, 55, 400 U.S. 91 S.Ct. 27 L.Ed.2d 57 472, ough, (3d 1980); 625 F.2d 474 Cir. United (1970) (“Furthermore, usage and admission 316, Oropeza, States v. 326 Cir. largely is within the charts discretion of the denied, 1977), U.S. cert. 98 S.Ct. permitting its action trial court and the us (1978). 55 L.Ed.2d 788 age charges not will be reversed unless this abused.”). has been discretion 615(2) exempting 32. See F.R.Evid. from the ex- Cf., however, Bobo, clusionary employee rule “an officer or of a person denied sub party designated which is not a natural States, 440 U.S. nom. Rowan v. United representative by attorney.” as its (1979), L.Ed.2d reh. who had “was about to responsibility to weigh ence of the coun- In place, act.” the first crying on his course of turn sels’ comments its delibera- evidence that there no sufficient tions. juror. overheard In error, no reversible we affirm Finding the remark place, is no more the second judgment below. of the Government’s claim repetition than AFFIRMED. defense was contrived. The

that the PTSD it prove admitted could BUTZNER, Judge, Circuit dissenting: and, being case, the dis- prejudice *12 district court impermissi- I dissent. The abuse his not discretion in judge trict did scope Burgess’s the of bly limited surrebut- on those grounds. trial a new denying consequence, Burgess As a did not tal. the defense concedes the Inasmuch as hearing fair a full and on his de- receive offenses, substantive occurrence insanity. of fense “never that was contested Bur indeed statement, opening his counsel In defense long delay a sup need over gess,” we testimony of several witnesses outlined the restriction of impeachment posedly undue to call on he intended the issue of whom the primary of a witness to government The Burgess’s sanity. objected of elements the substantive crime. There some of the relevancy proposed of to the of discretion. no abuse See United testimony. justified Defense the 604 Dominguez, (4th F.2d v. 310 States necessary to meet a testimony charge of 444 Cir. U.S. fakery government the intended to (1980) (“The L.Ed.2d scope prosecutor The rebuttal. re- impeachment of a witness in permissible of witnesses are ap- “those more sponded that generally is committed to a criminal trial recalled surrebuttal.” propriately court.”). of the trial the discretion sound Furthermore, district judge gave the the government’s the Conforming position opportunity to ask the witness the defense proof, presented of on the order question presence outside the the desired of calling without case-in-chief the witness- indicating that he would jury, reconsid government testimony the charac- es whose on depending what ruling his answer the er surrebuttal. terized as That was might give. eminently an .witness government, After rebuttal de Yet, defense counsel procedure. reasonable attempted to introduce evi fense counsel up by requesting that never followed Despite on lack dence surrebuttal. of outside given jury’s pres testimony be refused objection, the court Betsy allow ence. testify. correctly It recognized Hatch

Finally, complaint is voiced about proffered testimony her relevant judge the trial leaned back in Burgess’s Indeed, fact that sanity. to the issue argument, closing closing believed, his testimony, course sup her so. The judge he did eyes while observed: of Burgess’s ported opinion psychiatrist faking insanity. Neverthe that I was not question no There is leaned back less, excluded her testimony, say the court my eyes, but I wasn’t nod and I closed this, again, excluding I am ing: “Here this all, totally I alert. ding at Rebuttal is a very narrow isn’t rebuttal. requiring no rule judge We know of * concept.” closing eyes, his especially refrain from dur- argument ing closing argu- counsel. The is not entitled litigant per- While “a ment, all, was trial,” addressed to the after a fair only impor- trial fect but agreed testimony proof, * The of two order of court also excluded do not constitute reversi witnesses, proffered testimony limited the of a other ble error because their third, repetitive their respect the basis on either irrelevant rulings pertaining fakery. 52(a). charge See Fed.R.Crim.P. surrebuttal. witnesses, though contrary these three of fairness is the opportunity element tant Unit- defendant to be heard. a criminal Portis, v.

ed States 1976). the plea is insanity,

Cir. “[WJhere goal expediting the trial must not be interfere with

allowed to the defendant’s

right develop fully and completely and often

many complex tenuous circum- light shed plea.”

stances that Smith,

United States 1974). principle This is peculiarly where, case to this

applicable after counsel proof, to the order the court

agreed relevant because it

excluded sequence inappropriate.

viewed judgment

I would vacate and remand *13 trial at for a which all

the case relevant be

testimony would admitted. Preferably witnesses should

Burgess’s be allowed to during case-in-ehief,

testify as his coun- If the government, proposed.

sel first how-

ever, position maintains acquiesces, testimony should

again during surrebuttal.

admitted America, STATES of

UNITED

Plaintiff-Appellee, Cherry GANT,

Edgar

Defendant-Appellant. 82-2168.

No. Appeals, Court of

United States

Fifth Circuit.

Nov.