On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 85-00354-01.
Before: HIGGINBOTHAM, BECKER, Circuit Judges and DUMBAULD, District Judge*fn*
This bizarre case requires us to determine what, if any, evidence of a criminal defendant's mental abnormality is admissible to prove the defendant's lack of specific intent to commit an offense, following the passage of the Insanity Defense Reform Act of 1984, Pub. L. No. 98-473, Title II, § 402(a), 98 Stat. 2057, § 20, recodified at 18 U.S.C. § 17.
The government contends that such evidence is never admissible to negate specific intent because the Act restricts all such evidence to the jury's consideration of a defendant's legal sanity or insanity. We disagree with this broad contention. We conclude that although Congress intended § 17(a) to prohibit the defenses of diminished responsibility and diminished capacity, Congress distinguished those defenses from the use of evidence of mental abnormality to negate specific intent or any other mens rea, which are elements of the offense. While the contours of the doctrines of diminished responsibility and diminished capacity are unclear, the defenses that Congress intended to preclude usually permit exoneration or mitigation of an offense because of a defendant's supposed psychiatric compulsion or inability or failure to engage in normal reflection; however, these matters do not strictly negate mens rea.
Despite our disagreement with the government's broad contention, we agree that the Congressional prohibition of diminished responsibility defenses requires courts to carefully scrutinize psychiatric defense theories bearing on mens rea. Psychiatrists are capable of supplying elastic descriptions of mental states that appear to but do not truly negate the legal requirements of mens rea. Presenting defense theories or psychiatric testimony to juries that do not truly negate mens rea may cause confusion about what the law requires.
In this case, we believe that the evidence provided by appellant Stephen Pohlot and effectively excluded by the district court from the jury's consideration of mens rea could not, even if believed, demonstrate that Pohlot lacked the specific intent to contract for the killing of his wife. By his own admission, Pohlot engaged in considerable planning and activity, and he finalized an agreement to have his wife murdered. While Pohlot may not psychologically have understood the full consequences of this activity -- and in one sense may not have wanted his wife to die -- the purpose of his activity was the hiring of someone to kill his wife. Pohlot's request for the jury to consider evidence of mental abnormality other than in the context of insanity therefore amounted to a request for a diminished responsibility defense that Congress has abolished.
We therefore affirm the judgment of conviction.
I. Factual and Procedural History
The following evidence was adduced at trial. Until the summer of 1985, Stephen Pohlot was a successful pharmacist and private investor, living with his wife, Elizabeth, and three of their children in Katonah, New York. According to Pohlot, however, beyond this facade lay a strange set of relationships, dominated by his wife's abuse.
Pohlot testified, for example, that his wife had broken his thumb by crashing a coffee pot down on it; deeply gouged his face with her nails; threatened him with a hunting knife; shot him in the stomach; and often locked him out of their house and bedroom. Pohlot also blamed his wife for the psychiatric illnesses of two of his four children, who were seriously anorexic. Illustrating her behavior, Pohlot said that she had insisted on keeping an enormous number of pets in or about the house: sixty rabbits, six goats, tanks full of fish, tanks full of snakes, a pony, six indoor cats and nine outdoor cats, numerous ducks and dogs, and a variety of birds.
In the summer of 1985, Elizabeth obtained a court order removing Pohlot from their home. In July 1985, she filed for divorce, freezing Pohlot's assets. These events, according to the government, triggered the murder plot, which the government presented chiefly through the testimony of George Neustadt, a friend and business associate of Pohlot and Michael Selkow, the man Pohlot contacted to arrange the murder.
Shortly after Elizabeth filed for divorce, Pohlot told Neustadt that he was thinking of killing his wife. Pohlot said that he had hired a contract killer in Atlantic City, but that the killer had committed suicide. Pohlot asked if Neustadt knew of anyone else in Atlantic City who could arrange the murder. Neustadt thought he might and agreed to try to contact him.
Neustadt then called Selkow, whom he had met at a casino and whom he suspected of having connections to organized crime. Unknown to Neustadt, Selkow had become a government informer. Neustadt communicated the general purpose of his call, and they arranged to meet in Atlantic City. In Atlantic City, in a conversation tape-recorded by the F.B.I., Neustadt explained what Pohlot needed, and Selkow told Neustadt that he would bring a killer in from Italy. Neustadt relayed this representation to Pohlot.
Several days later, Pohlot phoned Selkow, and the two arranged to meet in Philadelphia. In the course of the meeting, which was also tape-recorded, Selkow asked Pohlot why he wanted to have his wife killed. Of relevance to the government's trial theory of financial motivation, Pohlot referred several times to the fact that Elizabeth was aware of money that he had stashed away (apparently in safe deposit boxes). He stated, for example:
You know there's just, there's just no way . . . you know I uh implore her to, let's, let's talk about this. You know, don't, don't be a pig, don't expose any of them, them papers that are drawn, there's the x number of dollars in this box and x number of dollars in that box. And the day that come, that, that it comes, that they open these . . . boxes and they see this kind of money you know it's uh, [unintelligible] gonna be looking over here and, saying, let me have it.
Pohlot also made references to his wife "cheating," to her fabrication of charges of assault to gain the order barring him from their home, and to the problems of his children. Pohlot related the story of having talked to an earlier close friend about killing his wife before the friend committed suicide.
Pohlot and Selkow agreed that Selkow would arrange the murder of Pohlot's wife for $25,000. Pohlot paid $8,000 immediately and then gave Selkow a description of his wife, her cars, and her routine. Pohlot described particularly his wife's appointments with her psychiatrist and the route she travelled to get there. He stressed that his wife's murder had to "appear to be an accident." Selkow explained the plan:
It'll be an accident, and it'll be en route to the shrink. Now what they're, what he's gonna do, this guy's an expert, comes in from Italy . . . . He will be in after Thursday. (Pause) After that it'll take him about, less than a week.
Pohlot stated that "I would like the least amount of exposure," but stressed that he wanted "this thing" done by September 18, 1985 because that was the scheduled date of a court hearing on his wife's abuse allegations. Selkow briefed Pohlot on how to react to the investigations that would follow the killing. They arranged for Pohlot to pay Selkow after the murder by giving an envelope with cash to one of Neustadt's drivers.
Two weeks later, at the FBI's direction, Selkow notified Pohlot that the hitman had arrived. He told Pohlot to stay away from his wife. FBI agents then informed Selkow that they planned to arrest Pohlot and Neustadt and that they would relocate Selkow for his own protection. Selkow, however, was unwilling to "disappear in the middle of the night" because of unresolved personal matters. In an attempt to "buy time" by slowing down the progress of the Pohlot case, he contacted Neustadt and Pohlot and arranged to meet Pohlot at a rest station on the New Jersey Turnpike.
At the turnpike station, Selkow told Pohlot of doubts about the Italian hitman. He stated that he thought his telephone might be bugged. He instructed Pohlot to telephone him that night to call the murder off and thereby throw the authorities off the track. In response to a question from Pohlot, however, he assured Pohlot that the murder would still occur in a couple of weeks once Selkow was sure that they had "the right people."
That night, Pohlot did call Selkow and express his desire to cancel the murder. Selkow played the tape of this phone call to the FBI agents. But the FBI agents did not believe this call. They suspected that Selkow had planned it. They therefore arrested Pohlot and Neustadt the next day and eventually arrested Selkow on charges of obstruction of justice. Pohlot was indicted on five counts of using interstate commerce facilities, i.e., the telephone, in the commission of murder for hire and one count of conspiring to commit that offense. At trial, the government theorized that Pohlot intended to have his wife murdered because of concern that she knew where he had hidden assets from the IRS.
Pohlot disputed few of the government's factual assertions. He did, however, dispute the following. He disagreed that he had proposed the murder initially to Neustadt, contending instead that the idea had "evolved" out of numerous conversations. He also claimed that his statements about discussing his wife's murder earlier with a potential killer were lies. Most importantly, he claimed that Selkow never told him, in their meeting on the New Jersey Turnpike, to telephone and cancel the murder. Instead, Pohlot claimed that he finally "came to his senses," understood that a crime was going to be committed and decided to take action to prevent it.
These limited disagreements with the government alone do not negate the thrust of the government's allegations. The district court instructed the jury, and Pohlot did not object, that even if Pohlot had truly decided on his own to abandon the murder after the New Jersey meeting, he would still be guilty if he had conspired and made telephone calls for the purpose of committing murder for hire. Instead, Pohlot's defense, based primarily on the affirmative defense of insanity, concentrated on claims that his entire experience had been a fantasy, representing an unrealistic attempt to overcome an inability to deal with his wife's abuse.
In the pursuit of this defense, Pohlot brought forth the many examples of abuse by his wife mentioned above. In the face of this abuse, Pohlot testified that he had shown a psychological inability to respond. For example, after his wife shot him, and after his resulting operation, Pohlot stated that he had spoken to his attorney in the hospital as follows:
I said, 'What are my options?' He said, 'You can prosecute or you can waive prosecution.' I said, 'I have to waive prosecution. I am sure that was an aberration. That was an inadvertent incident and I am very much in love with my wife and I want to waive prosecution and I want her to stay home'"
As a result, Pohlot claimed:
This psychological inability to respond. Pohlot claimed, led to the murder plot as "a weak attempt to fight back." But Pohlot hatched the plot to fulfill psychological motivations, not truly to kill his wife. "It was a fantasy," he said.
Buttressing Pohlot's own statements, the defense presented the testimony of a psychiatrist, Dr. Gary Glass. On the basis of a series of meetings with Pohlot, but relying only on Pohlot's version of events, Dr. Glass diagnosed Pohlot as a "compulsive personality, passive dependent personality and passive aggressive personality." Pointing to various events in Pohlot's life history, Glass explained that Pohlot had characteristically shown an inability to assert himself and to gain control of his life. Unable to take decisive action or even to acknowledge problems to himself, "his only way of development so as to have control over his life . . . was to hurt himself." For example, to protest being sent to a different high school, "What he did was essentially to hand in blank papers in his third year until the school was forced into the position of calling his mother and throwing Stephen out of school . . . ."
According to Dr. Glass, this pattern of behavior continued into Pohlot's married life and explained Pohlot's inability to respond to his wife's abusive behavior. As his relationship with his wife became increasingly one of verbal and physical struggles, and as his children became sick, Pohlot became more and more disturbed. Then, the same year as the murder plot, the death of Pohlot's father inflicted an enormous shock. Finally, when his wife served him with divorce papers, Pohlot felt it "was the end of my life." Citing these facts, Dr. Glass presented the following understanding of Pohlot's mental state:
He becomes depressed. He takes to drinking quite heavily. He is unable to sleep . . . . And things go on from there in which he meets with a friend, a business associate and the idea of, "Helping you with your dilemma" begins to surface.
Originally, there was some confusion as to whether or not Stephen really knew what that meant, at first, and then, I suspect there is knowing and there is knowing much like he did not know his wife was having sexual affairs. He did not really know until it was discussed in the context of psychiatric treatment. Here again he knew it, but he didn't know. Things progressed until the behaviors I am sure you heard of where he did meet a gentleman at a motel in Pennsylvania and transact[ed] a cash transaction for the purpose of, 'killing his wife.'
Now, I say, 'killing his wife' -- I will come back to that in a moment. Following that cash transaction, he feels a great relief, much as he did when he left school as a teenager and finally, took control, albeit in a somewhat pathological way of his life . . . .
He also felt uncomfortable and the exhilaration was very short lived, but that was the event. I don't believe that there was anything -- the issue there was taking control . . . .All of these terrible feelings had been building up for years and years . . . .
Finally, he takes a step to do something about it and it's like the sky opens up and the sun shines until he realized, of course, that this is a problem and he tries his best and is fortunate to be able to undo it, but that is the climactic event for him, the transaction, not a murder. He felt in many ways -- this may sound a little unusual, but I believe there is truth in it. He felt as if he would hire somebody to kill Betsy and after that happened, they would go home and live together and be happier . . . . He thinks when all of this nonsense is over, they're going to get back together and be happy . . . .
Another analogy I might use to this cash transaction, is similar to an adolescent who is jilted by their boy friend or girl friend and trying all sorts of behaviors to make it right and unable to do so and finally resorts to a carefully orchestrated suicide attempt where they perhaps take a dull ...