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UNITED STATES v. FISHER

December 4, 1992

UNITED STATES OF AMERICA, Plaintiff
v.
JAMES A. FISHER, III, Defendant



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

MEMORANDUM

 December 4, 1992

 BACKGROUND

 Defendant James A. Fisher, III was convicted on three counts of violating 18 U.S.C. § 875(c), *fn1" which makes it unlawful to threaten to kidnap or injure any person by a communication transmitted in interstate commerce. Fisher was found guilty of mailing threatening letters to the Honorable John C. Shabazz and the Honorable Barbara Crabb, both of the United States District Court for the Western District of Wisconsin, and the Honorable William Enright, of the United States District Court for the Southern District of California.

 Following a competency hearing conducted May 22, 1992, *fn2" defendant was found competent to stand trial. 18 U.S.C. § 4241. At trial, Fisher defended the charges against him by contending that he should be found not guilty by reason of insanity. It was his contention that he suffers from a mental disorder known as organic personality syndrome. Dr. Abram Hostetter testified on defendant's behalf at trial and stated that in his opinion, defendant suffers from that disorder.

 The jury rejected the defense of not guilty by reason of insanity and returned a guilty verdict on all three counts of the indictment on June 10, 1992. Before the court is defendant's motion (Record Document No. 52) for a new trial filed June 16, 1992. Fed. R. Crim. P. 33. Defendant argues that a new trial is warranted on the basis of the following: (1) a reference by Dr. Backer during direct examination to defendant's prior prosecutions under 18 U.S.C. § 875(c); (2) the court's refusal to grant a continuance so that medical tests could be conducted to buttress Dr. Hostetter's diagnosis and to rebut the government's contention that Fisher suffers from borderline personality disorder; (3) the court's denial of defendant's motion in limine seeking to preclude the government from referring to the absence of physical evidence supporting Dr. Hostetter's diagnosis; and (4) the court's refusal to instruct the jury that a hearing would be held to determine the defendant's fate if it returned a verdict of not guilty by reason of insanity. For the reasons discussed below, we find that none of the grounds raised constitutes reversible, prejudicial error, and will, therefore, deny defendant's motion for a new trial and schedule defendant for sentencing.

 DISCUSSION

 Standard for grant of new trial

 "The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." Fed. R. Crim. P. 33. The decision to grant a new trial is within the sound discretion of the trial judge. Although it is a remedy sparingly granted and should be used only if its denial would result in a "miscarriage of justice", United States v. Leach, 427 F.2d 1107, 1111 (1st Cir.), cert. denied sub nom., Tremont v. United States, 400 U.S. 829, 27 L. Ed. 2d 59, 91 S. Ct. 57 (1970), a new trial is mandated if there is a reasonable probability that error in the proceedings had a substantial impact on the outcome of the trial. "'[A] defendant is entitled to a fair trial but not a perfect one,' for there are no perfect trials." Government of Virgin Islands v. Bedford, 671 F.2d 758, 762 (3d Cir. 1982), quoting Brown v. United States, 411 U.S. 223, 231-32, 36 L. Ed. 2d 208, 93 S. Ct. 1565 (1973) and Lutwak v. United States, 344 U.S. 604, 619, 97 L. Ed. 593, 73 S. Ct. 481 (1953). The question which the court must determine is "'whether the error itself had substantial influence [on the minds of the jury.]'" Id., quoting Government of the Virgin Islands v. Toto, 529 F.2d 278, 283 (3d Cir. 1976) and Kotteakos v. United States, 328 U.S. 750, 765, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946). "Unless 'there is a reasonable possibility that [the error] contributed to the conviction, reversal is not required.'" Id., quoting Schneble v. Florida, 405 U.S. 427, 432, 31 L. Ed. 2d 340, 92 S. Ct. 1056 (1972).

 Reference to prior criminal acts

 Defendant argues that Dr. Backer's reference to prior offenses is a violation of Fed.R.Evid. 404(b) *fn3" and requires that he be granted a new trial. In response to a question from the United States Attorney, which asked him to express his opinion as to whether one of the letters written by the defendant "contained a realistic attempt at extortion" and achieved "Mr. Fisher's expressed goals", Dr. Backer responded:

 N.T., June 9, 1992 at p. 103.

 At that point, defendant moved for a mistrial. The court denied the motion, but instructed the jury "to completely disregard the last answer of the witness. It does not bear in this case."

 We find that defendant was not prejudiced by the reference. The reference was non-specific. No details were recounted. The jury heard no information about the nature of the prior letters, to whom they were addressed, what they stated, the nature of the threats they contained, if any, etc. Given the non-specific nature of the reference and the fact that the court immediately instructed the jury to disregard it, it is difficult to see any prejudice flowing from it. See generally: United States v. Tyler, 878 F.2d 753, 761 (3d Cir. 1989), cert. denied, 493 U.S. 899, 107 L. Ed. 2d 203, 110 S. Ct. 254 (1989). Moreover, the jury necessarily learned otherwise that the defendant was incarcerated when the letters were sent.

 The court's curative instruction, given immediately after the remark, conveyed to the jury in no uncertain terms that it was to disregard the information. The United States Supreme Court has consistently held that even in criminal cases, the Court will "normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an 'overwhelming probability' that the jury will be unable to follow the court's instructions . . . and a strong likelihood that the evidence would be devastating to the defendant.'" Greer v. Miller, 483 U.S. 756, 766, 97 L. Ed. 2d 618, 107 S. Ct. 3102 n. 8 (1978) (Citations omitted.). Accord: United States v. Tyler, 878 F.2d 753, 762 (3d Cir. 1988).

 Further, any prejudice flowing from a reference to prior bad acts must be balanced against the evidence of guilt. See United States v. Munford, 431 F.Supp. 278, 290 (E.D.Pa. 1977), citing United States v. Cook, 505 F.2d 659, 664 (5th Cir. 1974), cert. denied, 421 U.S. 1000, 44 L. Ed. 2d 667, 95 S. Ct. 2397 (1975). Here, the evidence of guilt was substantial. The government presented overwhelming evidence that the defendant wrote and sent the threatening letters as charged in the indictment. At trial, defendant did not deny that he wrote the letters. The focus of his defense was his mental state and the reasons that he wrote them.

 Although the defendant argues that his motion should be granted because the reference to prior offenses severely undercut his defense that he suffered from a severe mental defect and should be helped, not penalized for his actions, we do not agree. It is true that defendant's theory of the case was as stated, but we disagree with the contention that Dr. Backer's fleeting reference to other acts severely undercut the defense raised. Defendant makes much more of the comment than it was. Contrary to defendant's argument, Dr. Backer made no reference to the defendant being "under his care as far back as 1980". As noted above all that he said, before an objection was interposed, was that defendant "wrote letters before" and was prosecuted for that act. There was no implication that defendant "was offered help for a number of years but to no avail", nor was the defendant "painted" as "incorrigible and a lost cause", a hopeless recidivist, as defendant argues.

 It also bears noting that the information about prior criminal acts was not solicited intentionally by the government. The question asked was not calculated to elicit such information from the witness. Thus the jury's exposure to the objectionable information was minimal; the jurors heard only a few words about some prior act committed by the defendant before an objection was interposed by counsel.

 Further, the jury had before it considerable evidence rebutting defendant's theory that he suffers from organic personality syndrome and should, therefore, not be held criminally responsible for writing the letters. The government presented extensive expert testimony specifically rebutting Dr. Hostetter's diagnosis and buttressing its theory that defendant suffers from a less severe mental defect than he contends.

 Because Dr. Backer's reference to other acts was not intentionally solicited by the government, because the reference was brief and non-specific, because the court's immediate curative instruction was sufficient to remedy any potential prejudice flowing from the remark, and because the evidence of guilt was substantial, we find that Dr. Backer's remark does not require grant of a new trial. The court did not err in refusing to grant a ...


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