WALLACE RUSSELL WHITEHEAD, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7606

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 432-436) is reported
at 896 F.2d 432.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 22,
1990.  The petition for a writ of certiorari was filed on May 21,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the district court properly refused to instruct the jury on
the affirmative defense of insanity where the court determined that no
reasonable juror could conclude that petitioner had carried his burden
of demonstrating insanity by clear and convincing evidence.

                               STATEMENT

   After a jury trial in the United States District Court for the
District of Arizona, petitioner was convicted of bank robbery, in
violation of 18 U.S.C. 2113(a).  He was sentenced to a twelve-year
term of imprisonment, to be followed by three years' supervised
release conditioned upon his participation in drug counseling and
treatment and upon his paying restitution to Citibank of the stolen
funds.  The court of appeals affirmed.  Pet. App. 432-436.

   1. The evidence at trial, the sufficiency of which is not
challenged, showed that petitioner entered a Citibank branch bank in
Tempe, Arizona, on April 12, 1988, demanded that a bank teller hand
over money, and fled with $604.  Pet. App. 433.  The robbery was
recorded on bank surveillance photographs and petitioner was
identified as the robber by his brother and sister.  Ibid.

   The sole defense offered by petitioner was that he was legally
insane at the time of the robbery.  His key witness, Dr. Brian Yee, an
Arizona psychologist experienced in treating patients with
PostTraumatic Stress Disorder (PTSD), diagnosed petitioner as
suffering from PTSD as a result of a traumatic Vietnam War experience
involving the death of innocent children.  Pet. App. 433 & n.2.  Dr.
Yee testified, however, that the PTSD symptoms were "not necessarily"
manifesting themselves on the date of the robbery (Gov't C.A. Br. 7
(quoting RT 84)) and went on to state twice that it would be "totally
speculation" to opine how PTSD had manifested itself that day.  Pet.
App. 434.  Dr. Yee further acknowledged that even a person suffering
from PTSD would be aware of his actions in entering a bank and
demanding and receiving money from the teller.  Gov't C.A. Br. 9-10.

   The district court decided there was insufficient evidence to
instruct the jury on the insanity defense, and therefore told the jury
to disregard the evidence of petitioner's "mental disorders and drug
usage." Pet. App. 434.  The jury subsequently returned a guilty
verdict.  Ibid.

   2. The court of appeals affirmed.  Pet. App. 432-436.  In
accordance with the Eleventh Circuit's opinion in United States v.
Owens, 854 F.2d 432 (1988), the court held that since petitioner had
the burden under 18 U.S.C. 17 of proving his insanity by "clear and
convincing" evidence, the issue should be submitted to the jury only
if the district court determined that a reasonable juror could find
that petitioner had carried this burden.  Pet. App. 434-435.
Reviewing the record de novo, the court concluded that "(a)lthough Dr.
Yee found it possible that some of (petitioner's) symptoms were
present that day, no reasonable fact finder could view his testimony
as establishing with convincing clarity that (petitioner) could not
appreciate the nature or wrongfulness of the robbery." Pet. App. 435.

                               ARGUMENT

   Petitioner does not contest the determinations of the district
court and the court of appeals that he failed to introduce clear and
convincing evidence of insanity.  He contends (Pet. 6-8) only that he
was entitled to a jury instruction on any defense having "some
foundation in the evidence, even though the evidence may be weak."
Pet. 7.  This claim does not merit further review.

   The court of appeals properly rejected petitioner's argument as
inconsistent with the Insanity Defense Reform Act of 1984, Pub. L. No.
98-473, Section 402, 98 Stat. 2057 (currently codified at 18 U.S.C.
17).  That Act restricts the availability of the insanity defense to
federal crimes in several significant ways.  First, a defendant can
successfully assert an insanity defense only by showing that "as a
result of a severe mental disease or defect, (he) was unable to
appreciate the nature and quality or the wrongfulness of his acts." 18
U.S.C. 17(a);  see United States v. Freeman, 804 F.2d 1574, 1575 (11th
Cir. 1986).  Second, unlike prior decisional law -- which required the
government to prove sanity beyond a reasonable doubt once a federal
defendant properly raised the issue (see Davis v. United States, 160
U.S. 469 (1895)) -- the Act now places the burden of "clear and
convincing" proof upon the defendant to show insanity.  18 U.S.C.
17(b);  see Freeman, 804 F.2d at 1575.

   This Court has recognized that "a higher burden of proof should
have a corresponding effect on the judge when deciding whether to send
the case to the jury." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
253 (1986);  see also id. at 252 ("the inquiry involved in a ruling on
a motion for summary judgment or for a directed verdict necessarily
implicates the substantive evidentiary standard of proof that would
apply at the trial on the merits").  As the Court noted there, the
inquiry "is no different from the consideration of a motion for
acquittal in a criminal case, where the beyond-a-reasonable-doubt
standard applies and where the trial judge asks whether a reasonable
jury could find guilt beyond a reasonable doubt." Ibid.

   Thus, the district court in this case properly considered that a
defendant's sanity is no longer an element of a crime that the
government must prove, but is instead an affirmative defense that the
defendant must demonstrate by "clear and convincing evidence." 18
U.S.C. 17(b).  Allowing a defendant who admittedly has not introduced
this requisite quantum of evidence nevertheless to submit the issue to
the jury, in the apparent hope that the jury will act irrationally and
acquit him even though he is guilty beyond a reasonable doubt of all
elements of the offense, would upset the limited role Congress
provided for the insanity defense.  Accord United States v. Owens, 854
F.2d 432, 434-436 (11th Cir. 1988).

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Acting Assistant Attorney General

   SEAN CONNELLY

      Attorney

   OCTOBER 1990