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Title United States v. Fisher

Date 1993

By Alito

Subject Misc

Contents

Page 1

LEXSEE 10 F3D 115

UNITED STATES OF AMERICA v. JAMES A. FISHER, III, Appellant

No. 93-7002

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

10 F.3d 115; 1993 U.S. App. LEXIS 29048

October 25, 1993, Argued

November 10, 1993, Filed

SUBSEQUENT HISTORY: Certiorari Denied June 27,

1994, Reported at: 1994 U.S. LEXIS 4951.

PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (D.C. Criminal No. 91-00095).

CASE SUMMARY:

PROCEDURAL POSTURE: The United States District Court for the Middle District of Pennsylvania convicted defendant of three counts of transmitting threatening com- munications in interstate commerce, in violation of 18

U.S.C.S. § 875(c). Defendant appealed.

OVERVIEW: Defendant sent letters that threatened sex- ual assault and murder to several district court judges. He was convicted of transmitting threatening communi- cations in interstate commerce. On appeal, the court held that defendant's motion shortly before the commencement of trial for a further continuance to obtain additional test- ing relating to his insanity defense was properly denied. By the time that the request was made, numerous continu- ances had already been granted. Defendant had the benefit of expert psychiatric testimony, which provided that his organic brain damage was detectable without additional testing. The refusal to grant a mistrial after a witness re- ferred to defendant's prior prosecution was proper because the reference was unsolicited, and an immediate curative instruction was given. The refusal to give requested jury instructions regarding the consequences of a verdict of not guilty by reason of insanity was proper because the Insanity Defense Reform Act of 1984, 18 U.S.C.S. §§

4241-4247 did not require that such an instruction be given. The court held that the decision of whether to give the instruction was left to the sound discretion of the trial judge.

OUTCOME: The court affirmed defendant's conviction.

The court held that the Insanity Defense Reform Act of

1984 did not mandate a jury instruction regarding the consequences of a not guilty by reason of insanity ver- dict. Thus, the trial judge retained the discretion to grant requests for such an instruction where a particularized reason for believing that the instruction could prevent the jury from being influenced by improper considerations existed.

LexisNexis(R) Headnotes

Criminal Law & Procedure > Appeals > Standards of

Review > Abuse of Discretion

Civil Procedure > Trials > Continuances

HN1 In determining if a continuance should be granted, a court should consider: the efficient administration of criminal justice; the accused's rights, including an ade- quate opportunity to prepare a defense; and the rights of other defendants awaiting trial who may be prejudiced by a continuance. In addition, the diligence of counsel in requesting the continuance is a relevant factor. On appeal, a trial court's decision to deny a continuance will only be reversed if an abuse of discretion is shown.

Criminal Law & Procedure > Jury Instructions

HN2 A court will presume that a jury will follow an in- struction to disregard inadmissible evidence inadvertently presented to it, unless there is an "overwhelming possi- bility" that the jury will be unable to follow the court's instructions and a strong likelihood that the effect of the evidence would be "devastating" to the defendant . Criminal Law & Procedure > Defenses > Insanity > Insanity Defense

Criminal Law & Procedure > Sentencing > Mental

Incapacity

HN3 Under the Insanity Defense Reform Act of 1984,

18 U.S.C.S. §§ 4241-4247, certain defendants found not guilty by reason of insanity must face a civil commitment hearing in federal court within 40 days of the verdict. 18

U.S.C.S. § 4243(c). At the hearing, the acquittee must

10 F.3d 115, *; 1993 U.S. App. LEXIS 29048, **1

Page 2

prove by clear and convincing evidence that his release would not create a substantial risk of bodily injury to an- other person or serious damage to the property of another due to a present mental disease or defect. 18 U.S.C.S. §

4243(d). If the acquittee fails to make that showing, he must be committed to the custody of the Attorney General so that appropriate arrangements for custody, care, and treatment can be made. 18 U.S.C.S. § 4243(e).

Criminal Law & Procedure > Defenses > Insanity > Insanity Defense

Criminal Law & Procedure > Sentencing > Mental

Incapacity

HN4 Under the Insanity Defense Reform Act of 1984,

18 U.S.C.S. §§ 4241-4247, if the director of the facility in which an acquittee is hospitalized finds that the acquittee has recovered to such an extent that his release, with or without conditions, would no longer create a substantial risk of bodily injury to another person or serious damage to the property of another, the director must file a certifi- cate to that effect with the court. 18 U.S.C.S. § 4243(f). The court must then order the person discharged or, on motion of the government, hold a hearing and determine whether the standard for release can be met. Governments > Legislation > Interpretation

HN5 If the language of a statute is unambiguous, a ap- pellate court's inquiry must stop except in those rare cases in which the literal application of the statute will produce a result demonstrably at odds with the intention of its drafters.

Governments > Legislation > Interpretation

HN6 A committee report cannot serve as an indepen- dent statutory source having the force of law. A cardinal principle of the judicial function is that courts have no authority to enforce principles gleaned solely from leg- islative history that has no statutory reference point. Criminal Law & Procedure > Jury Instructions Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury

HN7 In the federal courts, the role of the jury in a non- capital case is to determine whether the defendant is guilty or not guilty based on the evidence and the applicable rules of law. The jury is supposed to perform this role without being influenced in any way by what the consequences of its verdict might be. Thus, federal criminal juries are almost never instructed concerning the consequences of verdicts. On the contrary, they are often specifically in- structed not to consider those consequences. Indeed, they are often sternly warned that they would violate their oaths if they did so.

Criminal Law & Procedure > Sentencing > Mental

Incapacity

HN8 A defendant found not guilty by reason of insan- ity is entitled to a release hearing within 40 days after the verdict and may be released as soon as the hearing is com- pleted. 18 U.S.C.S. § 4243(a)-(e). The only mandatory period of confinement, therefore, is the period between the verdict and the hearing, which may be held at any time within 40 days.

COUNSEL: JAMES A. ZURICK, ESQ. (argued), 26

South Market Street, Shamokin, Pennsylvania 17872, Attorney for Appellant.

JAMES J. WEST, United States Attorney, FREDERICK E. MARTIN (argued), Assistant U.S. Attorney, Third

& Market Streets, Post Office Building, Lewisburg, PA

17837, Attorneys for Appellee.

JUDGES: Before: BECKER, ALITO, and ROTH, Circuit Judges.

OPINIONBY: ALITO

OPINION: *116 OPINION OF THE COURT

ALITO, Circuit Judge:

Following a jury trial, James A. Fisher, III was con- victed on three counts of transmitting threatening com- munications in interstate commerce, in violation of 18

U.S.C. § 875(c). On appeal, Fisher contends that the trial court erred (1) in denying his request shortly before the commencement of trial for a further continuance to obtain additional testing relating to his insanity defense, (2) in refusing to grant a mistrial when the prosecutor asked a particular question and the witness made an unsolicited reference to a prior prosecution of Fisher, and (3) in re- fusing to instruct the jury regarding the consequences of a verdict of not **2 guilty by reason of insanity. We hold that the trial court did not err in its disposition of these matters, and we therefore affirm Fisher's conviction.

In January 1989, a judge of the United States District Court for the Western District of Wisconsin received a letter threatening the sexual assault and murder of that judge and another district court judge in the same district. Although the letter itself was unsigned, the upper left cor- ner of the envelope bore Fisher's name and his mailing address at the United States Penitentiary at Lewisburg, Pennsylvania. In late May and early June 1989, simi- lar threatening letters were received by a judge of the United States District Court for the Southern District of California and the Clerk of the United States District Court for the Eastern District of Virginia.

10 F.3d 115, *116; 1993 U.S. App. LEXIS 29048, **2

Page 3

As a result of these letters, Fisher was indicted in May 1991 on three counts of sending threatening com- munications in interstate commerce. In July of that year, he entered a plea of not guilty, and his trial was initially scheduled for September. In August, Fisher filed notice of his intent to raise an insanity defense. At the same time, he also submitted requests for the appointment **3 of an expert to provide psychiatric assistance to the defense and for a trial continuance until after October 17. The court granted these requests and continued the trial un- til November 12. On November 1, Fisher moved for a trial continuance until February 1992 so that his psychia- trist could secure background information about him. The judge once again granted the request and continued the trial until February 12. On January 29, 1992, Fisher filed his expert *117 psychiatric report as required by 18

U.S.C. § 4246(b). The report, authored by Dr. Abrahm Hostetter, a psychiatrist, diagnosed Fisher as suffering from "organic personality syndrome."

After receiving this report, the prosecution filed mo- tions for psychiatric evaluations of Fisher pursuant to 18

U.S.C. § 4241(a) (competency) and 18 U.S.C. § 4242(a)

(sanity). The court granted these motions and postponed the trial until April 6. On March 30, the prosecution sought an additional postponement because the court- ordered evaluations had not been completed, and the dis- trict court granted a trial continuance until May 4. After

**4 Fisher filed an additional motion for a continuance, the court scheduled a competency hearing for May 22 and scheduled jury selection for June 1.

Following the presentation of evidence at the com- petency hearing on May 22, Fisher's counsel sought an additional continuance so that tests such as an elec- troencephalogram (EEG), computerized axial tomogra- phy (CAT), and magnetic resonance imaging (MRI) could be performed to determine whether Fisher had any organic brain damage. The judge stated that he was reluctant to grant the request because of the delay that had already oc- curred. Instead, it was agreed that the prosecution would ascertain whether the Bureau of Prisons could arrange for the tests to be performed prior to trial.

Jury selection began on June 1, and the trial com- menced on June 8. At that time, the prosecution informed Fisher's counsel that the Bureau of Prisons had been un- able to arrange for the requested tests within the time pro- vided. Fisher's attorney again requested a continuance, but the district court denied the request.

At trial, the defense did not dispute the fact that Fisher had sent the threatening letters but instead maintained that Fisher was insane. The defense **5 expert, Dr. Hostetter, testified that Fisher suffered from organic per- sonality syndrome. Acknowledging that this diagnosis re-

quired evidence of organic brain damage, Dr. Hostetter concluded that Fisher had suffered such damage at some point in his life. Although Dr. Hostetter stated that he could not be certain what had caused the damage, he noted that Fisher had reported being hospitalized for pneumo- nia as a child, and Dr. Hostetter stated that a high fever resulting from that illness could have caused the damage. The prosecution's expert witnesses, Dr. Thomas Owens, a psychiatrist, and Dr. Rushton Backer, a psy- chologist, reached a different conclusion. They testified that Fisher instead suffered from a "borderline personal- ity disorder," and they found no indication that Fisher had

any organic brain damage.

When the court instructed the jury, it refused Fisher's request for an instruction that stated that "if the defendant is acquitted by reason of insanity, he will be presumed to be insane and may be confined in a hospital for the insane as long as public safety and welfare require." The jury returned a verdict of guilty on all counts, and the dis- trict court denied Fisher's request **6 for a new trial. United States v. Fisher, 808 F. Supp. 390 (M.D. Pa. 1992). The court subsequently sentenced Fisher to 57 months' imprisonment, and Fisher took this appeal.

II.

Fisher first argues that the district court erred in refus- ing his request for a continuance so that tests for organic brain damage could be performed. HN1 "In determin- ing if a continuance should be granted, a court should consider: the efficient administration of criminal justice; the accused's rights, including an adequate opportunity to prepare a defense; and the rights of other defendants awaiting trial who may be prejudiced by a continuance." United States v. Kikumura, 947 F.2d 72, 78 (3d Cir. 1991), quoting United States v. Fischbach and Moore, Inc., 750

F.2d 1183, 1195 (3d Cir. 1984), cert. denied, 470 U.S.

1029, 84 L. Ed. 2d 785, 105 S. Ct. 1397 (1985). In addi- tion, the diligence

of counsel in requesting the continuance is a relevant fac- tor. See, e.g., United States v. Cruz-Jiminez, 977 F.2d 95,

104 n.13 (3d Cir. 1992). On appeal, " a trial court's deci- sion to deny a continuance **7 will only be reversed if an abuse of discretion is shown." Kikumura, 947 F.2d at

78. We find no abuse of discretion in this case.

*118 Most important, we believe that the timing of the continuance request was unjustifiable. By at least January 1992, when the defense psychiatric report was filed, the defense was aware that its expert had diagnosed organic personality syndrome, and once this diagnosis was made the importance of evidence of organic brain damage should have been apparent. At trial, all of the ex-

10 F.3d 115, *118; 1993 U.S. App. LEXIS 29048, **7

Page 4

perts agreed that a diagnosis of organic personality syn- drome requires such evidence. Indeed, the defense moved into evidence an excerpt from the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders 114-15 (3d ed - rev. 1987), which lists the fol- lowing as one of the diagnostic criteria for this disorder:

There is evidence from the history, physical examination or laboratory tests of a specific organic factor (or factors) judged to be etio- logically related to the disturbance.

Thus, as the district court concluded, n1 if the defense thought that an EEG, a CAT scan or MRI were needed, it should have made its **8 request well before it did.

speech patterns, conversation, etc.

n3 The remaining factor enumerated in Kikumura, 947 F.2d at 78 -- "the rights of other defendants awaiting trial who may be prejudiced by a continuance" -- was not addressed by the dis- trict court, and therefore we do not rely on this factor in our decision.

III.

Fisher next argues that the **10 district court erred in not granting a mistrial based on the following collo- quy, which occurred during the redirect examination of Dr. Backer (June 9, 1992 Tr. 101-02 (emphasis added):

30.

n1 See 808 F. Supp. at 394; June 9, 1992 Tr. at

With respect to whether the Government's Exhibit 1.1 one of Fisher's letters contained a realistic attempt at extortion, did it achieve

Turning to the other factors that are relevant in de- termining whether a continuance should be granted, we think it is apparent that granting the continuance would have impaired the efficient administration of justice. By the time this request was made, the district court had al- ready granted numerous continuances and had put off the scheduled trial date for eight months.

Finally, while we cannot rule out the possibility that Fisher may have suffered some prejudice, any such preju- dice was not alone sufficient to justify a reversal. Certainly any such prejudice was substantially less than that present in the case on which Fisher relies, United States v. Pope,

841 F.2d 954 (9th Cir. 1988). There, the denial of a con- tinuance deprived the defendant of "the only evidence potentially supportive of his insanity defense." Id. at 957; see also United States v. Flynt, 756 F.2d 1352, 1359-61

(9th Cir. 1985). **9 Here, Fisher had the benefit of Dr. Hostetter's expert psychiatric testimony, and Dr. Hostetter testified that he was able to detect organic brain damage without an EEG, a CAT scan, or MRI. n2 In light of all these factors, n3 we find no abuse of discretion in the denial of the continuance request.

n2 As the district court observed in denying Fisher's new trial motion (808 F. Supp. at 394 (foot- note omitted)):

Defendant's expert, Dr. Hostetter, tes- tified that such tests were not neces- sary to his diagnosis, stating that his diagnosis was based on psychologi- cal tests performed on the defendant and on his observation of his behavior,

insofar as Mr. Fisher's expressed goals in

1980 -- 1990 when you first seen him, did that achieve the goals that he then sought?

You mean did the letters achieve the goals? If I understand your question correctly, he -- I'm not sure if I'm allowed to go into this part -- he wrote letters before, he has been prosecuted for that, he had received --

At this point, Fisher's counsel moved for a mistrial based on the solicitation of "prejudicial evidence concerning past prosecutions." The prosecutor responded that he had not sought "to get into past prosecutions" and that his question was "rather inartful." The court then instructed the jury that it should "completely disregard the last an- swer of the witness," but the court denied the motion for a mistrial, stating that the testimony was not sufficiently prejudicial to warrant that relief. **11

*119 On appeal, Fisher contends that a mistrial was required for two reasons. First, he maintains that Dr. Backer's answer severely prejudiced him by informing the jury that he had been previously prosecuted for sim- ilar crimes. Second, Fisher argues that the prosecutor's reference to "1980 -- 1990 when you first seen him" sug- gested that Dr. Backer had been treating him since 1980, that the treatment had been unsuccessful, and that he was therefore "an incorrigible and a lost cause." Appellant's Brief at 11.

We cannot accept Fisher's argument that Dr. Backer's reference to past prosecutions necessitated a mistrial.

10 F.3d 115, *119; 1993 U.S. App. LEXIS 29048, **11

Page 5

The prosecutor did not solicit this remark. Rather, it seems clear that Dr. Backer offered it only because he had difficulty understanding the prosecutor's question. Furthermore, the district court provided an immediate curative instruction, and as the Supreme Court has stated:

We normally HN2 presume that a jury will follow an instruction to disregard inadmis- sible evidence inadvertently presented to it, unless there is an 'overwhelming possibil- ity' that the jury will be unable to follow the court's instructions . . . and a strong likeli- hood that the effect of the evidence would

**12 be 'devastating' to the defendant . . . .

Greer v. Miller, 483 U.S. 756, 766, 97 L. Ed. 2d 618,

107 S. Ct. 3102 n.8 (1987) (citations omitted). This de- manding test for granting a mistrial cannot be met here, especially since the defendant did not contest the fact that he sent the letters in question.

We also reject Fisher's argument that the prosecutor's reference to 1980 required a mistrial. In the first place, this argument was not properly preserved in the district court. When defense counsel moved for a mistrial, he referred only to "prejudicial evidence concerning past prosecu- tions." He said nothing about the reference to 1980. See Fed. R. Evid. 103(a)(1); Fed. R. Cr. P. 52(b).

In any event, even if the argument relating to the ref- erence to 1980 had been preserved, we would not find it meritorious. The record does not support Fisher's con- tention that the jury was left with the impression that he had been under Dr. Backer's care since 1980. On the con- trary, just a short time before the colloquy at issue, Dr. Backer testified that he had first met Fisher in November

1990. June 9, 1992 Tr. at 86. Accordingly, we hold that the district court did not err in failing to grant a **13 mistrial based on the challenged question and answer.

IV.

Fisher's final and most significant argument is that the district court erred in refusing to instruct the jury re- garding the consequences of a verdict of not guilty by reason of insanity ("NGI"). Fisher contends that such an instruction should be required as a result of the passage of the Insanity Defense Reform Act of 1984, 18 U.S.C.

§ 4241-4247. HN3 Under this Act, certain defendants found NGI must face a civil commitment hearing in fed- eral court within 40 days of the verdict. 18 U.S.C. §

4243(c). At the hearing, the acquittee must prove by clear and convincing evidence that his release would not cre- ate a substantial risk of bodily injury to another person or serious damage to the property of another due to a

present mental disease or defect. 18 U.S.C. § 4243(d). If the acquittee fails to make that showing, he must be committed to the custody of the Attorney General so that appropriate arrangements for custody, care, and treatment can be made. 18 U.S.C. § 4243(e). Thereafter, HN4 if the **14 director of the facility in which the acquittee is hospitalized finds that the acquittee has recovered to such an extent that his release, with or without condi- tions, would no longer create a substantial risk of bodily injury to another person or serious damage to the property of another, the director must file a certificate to that effect with the court. 18 U.S.C. § 4243(f). The court must then order the person discharged or, on motion of the govern- ment, hold a hearing and determine whether the standard for release can be met. Id.

Before the Insanity Defense Reform Act was enacted in 1984, federal law provided no mechanism for securing the civil commitment of a federal defendant found NGI. Instead, such a defendant could be civilly committed only pursuant to state procedures. See *120 United States v. McCracken, 488 F.2d 406, 416-17 (5th Cir. 1974). By contrast, the District of Columbia did have a commit- ment procedure for NGI defendants, and the District of Columbia Circuit required a trial judge, upon a defen- dant's request, to instruct the jury about the consequences of an NGI verdict. See, e.g., Lyles v. United States, 103

U.S. App. D.C. 22, 254 F.2d 725 (D.C. Cir. 1957), **15

cert. denied, 356 U.S. 961, 2 L. Ed. 2d 1067, 78 S. Ct. 997

(1958).

In United States v. Alvarez, 519 F.2d 1036, 1048 (3d Cir. 1975), we were asked to impose a similar require- ment, but we refused, "primarily because the requested instruction would, with respect to a federal defendant outside the District of Columbia, convey to the jury a mis- leading impression." Id.; see also United States v. Austin,

533 F.2d 879, 885-86 (3d Cir. 1976), cert. denied, 429

U.S. 1043, 50 L. Ed. 2d 756, 97 S. Ct. 746 (1977). n4

Now that Congress has provided a federal mechanism for committing such defendants, Fisher urges us to hold -- contrary to recent decisions of the Second, Fifth, Ninth, and Eleventh Circuits n5 -- that a trial judge must instruct the jury concerning the consequences of an NGI verdict when so requested by the defense.

n4 In Government of the Virgin Islands v. Fredericks, 578 F.2d 927, 933-36 (3d Cir. 1978), we confronted an analogous argument in a case in- volving the law of the Virgin Islands, which did have a statutory procedure for committing defen- dants found not guilty by reason of insanity. We did not, however, decide whether the trial judge had erred in refusing to give the requested instruc- tion. Instead, we held that any error was harmless

10 F.3d 115, *120; 1993 U.S. App. LEXIS 29048, **15

Page 6

because the jury had been given the same informa- tion at voir dire.

**16

n5 United States v. Rena, 981 F.2d 765 (5th

Cir. 1993); United States v. Thigpen, 4 F.3d 1573,

1993 U.S. App. LEXIS 27308, Nos. 91-3236, 91-

8082 (11th Cir. Oct. 22, 1993) (in banc); United States v. Blume, 967 F.2d 45 (2d Cir. 1992); United States v. Frank, 956 F.2d 872 (9th Cir. 1991), cert. denied, 121 L. Ed. 2d 276, 113 S. Ct. 363 (1992). Cf. United States v. Neavill, 868 F.2d 1000 (8th Cir.) (holding instruction required), vacated and rehearing in banc granted, 877 F.2d 1394 (8th Cir.), appeal voluntarily dismissed, 886 F.2d 220 (8th Cir.

1989).

In assessing Fisher's argument, we begin by consid- ering whether the Insanity Defense Reform Act requires that such an instruction be given, and we thus turn to the language of that Act. HN5 If the language of a statute is unambiguous, our inquiry must stop except in those rare cases in which "the literal application of the statute will produce a result demonstrably at odds with the intention of **17 its drafters." Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 73 L. Ed. 2d 973, 102 S. Ct. 3245

(1982); see also United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 103 L. Ed. 2d 290, 109 S. Ct.

1026 (1989). The text of the Insanity Defense Reform Act makes no mention whatsoever of jury instructions. Consequently, it seems clear without further inquiry that the Act itself does not require the type of instruction that Fisher sought.

We are aware that a passage in the very lengthy Senate report accompanying the Act endorses Fisher's argument. This passage states:

The Committee endorses the procedure used in the District of Columbia whereby a jury, in a case in which the insanity defense has been raised, may be instructed on the effect of a verdict of not guilty by reason of insanity. If a defendant requests that the instruction not be given, it is within the discretion of the court whether to give it or not.

S. Rep. No. 225, 98th Cong., 2d Sess. 240 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3422. Needless to say, however, this passage does not itself have the force of law; nor does it purport to illuminate any ambigu- ous statutory language. Accordingly, this **18 passage does not require us to adopt the rule embraced by the

District of Columbia Circuit. As that court itself has aptly noted in another context, HN6 "a committee report can- not serve as an independent statutory source having the force of law . . . . A cardinal principle of the judicial function is that courts have no authority to enforce prin- ciples gleaned solely from legislative history that has no statutory reference point." International Brotherhood of Electrical Workers v. NLRB, 259 U.S. App. D.C. 168,

814 F.2d 697, 712 (D.C. Cir. 1987) (emphasis in original omitted). See also United States v. Shannon, 981 F.2d at

763-64; United States v. Barnett, 968 F.2d at 1192 n.3; United States v. Blume, 967 F.2d at 53 *121 (Winter, J., concurring); United States v. Frank, 956 F.2d at 881. As a result, we do not believe that the Insanity Defense Reform Act of 1984 mandates the blanket rule that Fisher urges us to adopt.

Nor do we believe that this blanket rule is required by due process or that it would be appropriate for us to im- pose this rule upon the district courts **19 pursuant to our supervisory power. Instead, we hold that the decision whether to give such an instruction in a particular case should be left to the sound discretion of the trial judge.

HN7 In the federal courts, the role of the jury in a non-capital case is to determine whether the defendant is guilty or not guilty based on the evidence and the ap- plicable rules of law. The jury is supposed to perform this role without being influenced in any way by what the consequences of its verdict might be. See Rogers v. United States, 422 U.S. 35, 40, 45 L. Ed. 2d 1, 95

S. Ct. 2091 (1975); Government of the Virgin Islands v. Fredericks, 578 F.2d 927, 935 (3d Cir. 1978). Thus, federal criminal juries are almost never instructed con- cerning the consequences of verdicts. On the contrary, they are often specifically instructed not to consider those consequences. See, e.g., United States v. Thomas, 895

F.2d 1198, 1200 (8th Cir. 1990); United States v. Smith,

450 F.2d 312 (3d Cir. 1971), cert. denied, 405 U.S. 932,

30 L. Ed. 2d 807, 92 S. Ct. 989 (1972). Indeed, they are often sternly warned that they **20 would violate their oaths if they did so. See, e.g., For example, Sixth Circuit Pattern Jury Instruction No. 8.05; 1 L. Sand, J. Siffert, W. Loughlin, and S. Reiss, Modern Federal Jury Instructions - Criminal P 9.01 (1993). The rule that a jury should not consider the consequences of its verdict is just as applicable in cases involving the insanity defense as it is in any other case. In insanity defense cases, the role of the jury is to determine, based on the evidence and the applicable legal rules, whether the defendant is guilty, not guilty, or NGI. 18 U.S.C. § 4242(b). In making that determination, the jury should not be influenced in any way by the consequences that it believes may result from any of these verdicts.

10 F.3d 115, *121; 1993 U.S. App. LEXIS 29048, **20

Page 7

Those who advocate the type of instruction at issue here do not contend that the jury in an insanity defense case should consider the consequences of its verdict. Rather, their chief argument is that such an instruction is needed as an antidote, i.e., to counteract the false idea that an NGI verdict will necessarily mean that the defendant will be released into the community. n6 Otherwise, they suggest, the jury may **21 convict a defendant whom it believes to be insane but whom it fears would commit additional dangerous crimes if set free as the result of an NGI verdict.

n6 See, e.g., United States v. Blume, 967 F.2d at 52 (Newman, J., concurring).

We agree that this type of instruction may be a useful antidote when the trial judge has some basis for conclud- ing that the jury might otherwise be improperly influenced by a false belief concerning the consequences of an NGI verdict. At the same time, however, we believe that this antidote should be administered with care and on a case- by-case basis.

First and most important, this antidote may itself pro- duce deleterious consequences. After all, it brings to the jury's attention and highlights precisely the sort of infor- mation -- information about the consequences of a ver- dict -- that the jury is not supposed to consider. Therefore, this instruction may cause the jury to focus on and be in- fluenced by the consequences of its verdict, and thus the instruction **22 may paradoxically have the very effect that it is intended to counteract. n7

n7 Suppose, for example, that a jury is split

10-2 in favor of insanity over guilt. As a result of an instruction concerning the consequences of an NGI verdict, the two jurors who believe that the defendant is sane and guilty might be persuaded to accept an NGI verdict, not because they are won over by the other jurors' arguments based on the evidence and the applicable law, but solely because they think that the defendant would be civilly com- mitted for an indefinite time and that this com- mitment would approximate the incarceration that they believe would be imposed if the defendant were convicted. Cf. 18 U.S.C. § 4244(d) (in lieu of punishment, convicted defendant may be com- mitted for care or treatment of mental disease or defect). Or, suppose that the jury is split 10-2 in favor of guilt over insanity. The two jurors who be- lieve that the defendant is insane might accede to a verdict of guilty solely because they, too, believe that the incarceration that would follow a guilty verdict would be similar to the civil commitment

that would result from an NGI verdict. Finally, to take the example we noted in Fredericks, 578 F.2d at 936, " a juror that is convinced that a defendant is dangerous but who believes that he did not, in fact, commit the acts charged, might be willing to compromise on a verdict of not guilty by reason of insanity rather than insist on an acquittal." In these circumstances and perhaps others, the effect of instructing the jury concerning the consequences of an NGI verdict would disserve the interests of justice.

**23

*122 Moreover, as observed in Fredericks, 578

F.2d at 936 n.15, "it is not at all clear" that jurors are generally ignorant of the fact that NGI acquittees may be civilly committed. On the contrary, highly publicized cases, such as that involving John Hinckley, have dra- matized the possibility of civil commitment following an NGI verdict.

Finally, we have some reservations about the effec- tiveness for antidotal purposes of an accurate instruction concerning the consequences of an NGI verdict. As pre- viously noted, the main argument in favor of such an instruction hypothesizes jurors who are willing to convict the defendant, even though they believe him to be NGI, solely to ensure that he is not released. But if the mem- bers of a jury are so fearful of a particular defendant's release that they would violate their oaths by convicting him solely in order to ensure that he is not set free, it is questionable whether they would be reassured by any- thing short of an instruction strongly suggesting that the defendant, if found NGI, would very likely be civilly com- mitted for a lengthy period. An accurate instruction about the consequences of an NGI verdict, however, **24 cannot provide such assurance. HN8 A defendant found NGI is entitled to a release hearing within 40 days after the verdict and may be released as soon as the hearing is completed. 18 U.S.C. § 4243(a)-(e). "The only mandatory period of confinement, therefore, is the period between the verdict and the hearing, which may be held at any time within forty days." United States v. Blume, 967 F.2d at 54 (Winter, J., concurring). While it is true that the de- fendant, in order to be released, must prove by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another person or seri- ous damage to the property of another, a jury in an insanity defense case will often have no way of predicting whether or when the defendant will be able to meet this standard. Although the jury in such a case will presumably hear testimony concerning the defendant's sanity at the time of the offense, it will not necessarily hear any testimony bearing on the separate question whether the defendant

10 F.3d 115, *122; 1993 U.S. App. LEXIS 29048, **24

Page 8

would pose a danger if released after the verdict.

In sum, while we believe that the type of instruction at **25 issue may be helpful in some cases, we are sufficiently apprehensive about its possible side effects and sufficiently uncertain about its usefulness that we are not willing to adopt a blanket rule requiring that such an instruction always be given when the defense so requests. Instead, we think that it is preferable to leave the deci- sion whether to give such an instruction within the sound discretion of the trial judge. The judge should seriously consider an appropriate instruction n8 in those cases in which the judge has a particularized reason for believ- ing that the instruction will prevent the jury from being influenced by improper considerations -- for example, if a witness or attorney intimates during trial that an NGI verdict would endanger the community or if the nature of the evidence suggests to the judge that the jury is likely to entertain that thought on its own. On the other hand, where the judge believes that the instruction is likely on balance to encourage the jury to *123 focus on im- proper considerations, the judge should be wary about giving the instruction.

n8 We have not attempted in this opinion to specify precisely what should be included in such an instruction. We do note, however, that the in- struction requested by Fisher should not be used as a model. By stating that an NGI acquittee is "pre- sumed insane" and "may be confined," this instruc- tion incorrectly suggests that the tests for insan- ity and civil commitment are the same. Compare

19 U.S.C. § 17(a) with 18 U.S.C. § 4243(d).

Furthermore, we do not think that Fisher's instruc- tion adequately paraphrases the standard for com- mitment under 18 U.S.C. § 4243(c). Whereas this provision requires commitment unless the acquittee proves that he "would not create a substantial risk of bodily injury to another person or serious damage of property of another due to a present mental dis- ease or defect," Fisher's instruction broadly states that an NGI acquittee could be confined "as long as public safety and welfare require."

**26

In this case, the district court did not abuse its discre- tion in refusing to give the requested instruction. As the district court noted in denying Fisher's new trial motion, it is unlikely that the jury assumed that Fisher would be immediately released if he was acquitted of the offenses charged. In the district court's words, "the jury necessar- ily knew that the defendant was incarcerated at the time of trial," and it would therefore be "illogical to assume that they would conclude that he would be released into society should they return a verdict of not guilty by rea- son of insanity." Furthermore, it does not appear that any witness or attorney suggested that Fisher would pose a danger to the community if found NGI. Under these cir- cumstances, we hold that the district court did not abuse its discretion in refusing to give the instruction requested by the defense.

For the reasons explained above, we affirm Fisher's conviction.

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