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United States

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


October 31, 1985

UNITED STATES OF AMERICA VS MCNUTT, MICHAEL T., MICHAEL T. MCNUTT, APPELLANT

On Appeal from the United States District Court for the District of Delaware D.C. Criminal No. 84-00055-01, District Judge: James L. Latchum

Author: Hunter

Before ADAMS, HUNTER, Circuit Judges and FISHER,*fn* District Judge.

HUNTER, Circuit Judge

MEMORANDUM OPINION

1. Michael T. McNutt appeals his conviction by the United States District Court for the District of Delaware for possession with the intent to distribute and the distribution of methamphetamine in violation of 21 U.S.C. § 841 (1982). JUrisdiction below was based on 18 U.S.C. § 3231 (1982); we have jurisdiction over McNutt's appeal from the final judgment of the district court under 28 U.S.C. 1291 (1982). We affirm.

2. David Mitchell, an FBI informant, agreed to attempt to purchase drugs from McNutt in return for immunity from prosecution and payments of over five thousand dollars to enable Mitchell to relocate to another community. On July 17, 1984, Mitchell purchased one ounce of methamphetamine from McNutt while waring a concealed tape recorder. On August 31, 1984, Mitchell again went to McNutt's resident to purchase drugs, and McNutt advanced Mitchell another ounce of methampethamine on credit. On September 11, 1984, Mitchell, this time wearing a listening device, returned to McNutt's residence to make a partial payment of four hundred dollars on the metamphetamine he received on August 31.

3. With this evidence, FBI agents obtained a search warrant for McNutt's residence. Agents executing the warrant on September 13 found two and one-half ounces of metamphetamine, two scales, a ledger book with numerous names listed, and approximately six thousand dollars in cash, of which four hundred were traced to Mitchell's September 11 payment.

4. On September 27, 1984, McNutt gave notice to the district court that he intended to rely upon an insanity defense or a defense related to his mental competence. On October 5, 1984, McNutt moved to exclude evidence of a prior conviction for use of a telephone to distribute lysergic acid diethylamide ("LSD")in violation of U.S.C. § 843 (b)(1982), should he elect to testify on his own behalf. In its ruling denying the motion, the court emphasized that evidence concerning McNutt's prior conviction could only be used to impeach him in accordance with Federal Rule of Evidence 609(a). McNutt ultimately decided not to testify. McNutt also filed two other pre-trial motions, one requesting that the trial be bifurcated into insanity and guilt phases, the other proposing a set of voir dire instructions to the jury concerning their agreement with various propositions of law favorable to appellant's position and their willingness to follow the court's insanity defense instructions. The court denied both motions.

5. At trial, McNutt presented the expert testimony of Dr. Irwin G. Weintraub, a clinical psychologist, to support his insanity defense. Dr. Weintraub testified that McNutt is a multiple drug abuser who lacked the capacity to control his behavior. In rebuttal, the Government presented Dr. Claudia Coleman, also a clinical psychologist, who testified that McNutt was responsible for his behavior. On February 12, 1985, the jury entered a guilty verdict against McNutt on three counts of violating 21 U.S.C. § 841.

6. Appellant first contends that the government failed to prove him sane beyond a reasonable doubt as required by Government of Virgin Islands v. Bellot, 495 F.2d 1393, 1396 (3d Cir. 1974). On appeal, we must affirm the jury's verdict if there is substantial evidence, viewed in the light most favorable to the Government, to support appellant's conviction. See United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1189 (3d Cir. 1984) cert denied, 105 S. Ct. 1397 (1985); United States v. Leon, 739 F.2d 885, 890-91 (3d Cir. 1984); United States v. Provenzano, 620 F.2d 985, 999 (3d Cir.), cert. denied, 449 U.S. 899 (1980). A review of the evidence compels us to hold that the evidence sufficed to prove McNutt sane beyond a reasonable doubt.

7. Dr. Coleman's testimony indicated that although McNutt suffered from substant drug abuse disorder, McNutt did not have any serious mental disorder. Dr. Coleman testified that she found "nothing to indicate that [McNutt] was not responsible for his actions." Both Dr. Coleman and Dr. Weintraub remarked upon the absence of any organic brain damage. Dr. Coleman's testimony is consistent with the evidence introduced from the tape recorded drug transaction, the testimony of Mitchell and the FBI agents, and the evidence seized at McNutt's residence. This evidence supports the Government's portrayal of McNutt as a drug dealer who conducted his business in an orderly manner, scarcely the sort of behavior associated with insanity or impaired mental competence. In sum, we find that the Government presented substantial evidence to prove the defendant sane beyond a reasonable doubt.

8. Appellant next argues that the trial court erred by admitting evidence of McNutt's prior conviction for the distribution of LSD. According to McNutt, the following exchange violates Federal Rule of Evidence 609(a):

The Government: Did your ever see him consume any drugs, sell any drugs to any people that he knew were law enforcement people such as police officers?

The Witness: No.

Even were we to agree that the Government attempted to introduce evidence of McNutt's prior conviction through this exchange, we would affirm the jury's guilt verdict. See United States v. Jannoti, 729 F.2d 213, 220 n.2 (3d Cir.), cert. denied, 105 S. Ct. 243 (1984); Government of the Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)(conviction should be sustained when it is "highly probable" that the evidence of the prior conviction did not contribute to the guilty verdict). However, given that defense counsel portrayed McNutt as a drug abuser so lacking in self control that he would have sold drugs to undercover law enforcement officers even if he had known the officers' true identity, we believe that the challenged exchange simply shows the Government addressing an issue that appellant placed before the court, and was not directed at eliciting McNutt's prior conviction from the witness.

9. Finally, appellant maintains that the trial court abused its discretion in denying his motion for bifurcated trial and in failing to give his proposed supplemental void dire questions. Bifurcation of trial proceedings is a rare event, and wholly within the discretion of the trial judge. See Spencer v. Texas, 385 U.S. 554, 567-68 (1967); United States v. Milne, 498 F.2d 329, 330 (5th Cir. 1974), cert. denied, 419 U.S. 1123 (1975); United States v. Green, 463 F.2d 1313, 1315, (D.C. Cir. 1972); United States v. Huff, 409 F.2d 1225, 1228 (5th Cir.), cert. denied, 396 U.S. 857 (1969). Similarly, refusal to ask voir dire questions concerning a juror's agreement with legal propositions and willingness to follow the court's instructions is within the ambit of the trial judge's broad discretion. Jacobs v. Redman, 616 F.2d 1251, 1256 (3d Cir.), cert. denied, 446 U.S. 944 (1980); United States v. Wooten, 518 F.2d 943, 946 (3d Cir.), cert. denied, 423 U.S. 895 (1975). We find no abuse of discretion on either ground.

10. Accordingly, we will affirm the the district court's judgment.


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