JOSEPH THOMAS MANLEY, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-5162

   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 Eleventh Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. I) is reported at
893 F.2d 1221.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 6,
1990.  A petition for rehearing was denied on April 9, 1990.  The
petition for a writ of certiorari was filed on June 5, 1990.  The
jurisdiction of the Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether Fed. R. Evid. 704(b) barred petitioner, who had asserted an
insanity defense to an indictment charging him with bank robbery, from
asking expert witnesses a hypothetical question that called for an
opinion or inference regarding his ability, as a result of mental
disease or defect, to appreciate the nature and quality or the
wrongfulness of his acts.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Southern District of Florida, petitioner was convicted on one count of
bank robbery in violation of 18 U.S.C. 2113(a), and three counts of
bank robbery with a firearm, in violation of 18 U.S.C. 2113(d).  He
was sentenced to 18-year, concurrent terms of imprisonment on each
count.  He was also ordered to make full restitution.

   1. The evidence showed that petitioner robbed four banks between
October 30 and November 25, 1987.  He committed the robberies in
essentially the same fashion:  he would enter a bank near closing
time, approach a teller (sometimes after waiting in a line of
customers), and instruct her to give him all her large bills.  He
would warn her not to give him bait money or set off any alarms.
While taking money from her, petitioner would demand money from other
tellers as well.  If they did not comply quickly enough for him, he
would snatch the money from their hands or jump the counter and grab
it from their money drawers.  He would then run out of the bank.
During three of the robberies, he threatened the tellers with a gun.
At no time during any of the robberies did he display any difficulty
in communicating with bank employees.  Gov't C.A. Br. 2-7.

   Petitioner was arrested in a motel room from which police retrieved
bait money from the fourth robbery and $18,400 in cash.  Gov't C.A.
Br. 7.  Petitioner had about a pound of cocaine with him, for which he
admitted having paid $12,000 in cash.  Gov't C.A. Br. 11.

   2. a. Petitioner testified at trial.  He conceded that he had
robbed the banks, that he had changed get-away cars and hotels for
each of the robberies, and that he had shaved his moustache after the
first two robberies.  Gov't C.A. Br. 11-12.  His defense was that he
had been insane when he committed these crimes.  He said that he
suffered from a mental illness known as bipolar disorder (manic
depression) for which he required lithium to remain rational.  He
claimed that he had not taken lithium for two years before the first
robbery, and that he committed the robberies out of an uncontrollable
desire to put himself in a position where someone would kill him.
Ibid.

   b. Petitioner called several witnesses, including family members
and social workers, who testified about his experience with bipolar
disorder.  Gov't C.A. Br. 8-11, 16-17, 24-25.  In addition, he called
Dr. Mary Frenzel, a clinical psychologist who had been his therapist
at a correctional facility since 1988.  Gov't C.A. Br. 8.  Qualified
as an expert, Dr. Frenzel explained that bipolar disorder is
characterized by mood swings between manic and depressed phases, and
that it can be controlled with medication.  Gov't C.A. Br. 8, 16.
During her testimony, the following colloquy took place:

         Q:  Let me ask you a hypothetical question:  An individual
      who is diagnosed as having a bipolar disorder which is
      manifested by someone who has the suicidal ideations that you
      referred to, who has used controlled substances, has
      demonstrated mood swings, there is a family history of
      depression, manic/depressive or bipolar, would that person --
      well is the bipolar disorder, would that be considered a severe
      mental disorder or defect?

         A:  It is a major mental illness, yes, serious.

         Q:  And would that person as described be able to appreciate
      the nature and quality or the wrongfulness of their actions?

         The prosecutor:  Objection:  704(b), Your Honor.

         Defense counsel:  Hypothetically.

         The court:  Sustained.

893 F.2d at 1222.  Dr. Frenzel next testified that although she had
determined that petitioner experiences depression, she was unclear
about whether he actually had bipolar disorder because, on the 26
occasions they had met, she had never seen him have the mood swings
characteristic of that disorder.  3 R. 132, 133.

   Petitioner also called Dr. Adolfo Vilasuso, a psychiatrist at the
correctional facility who had first begun treating him about ten years
earlier when he was imprisoned for bank robbery.  4 R. 207;  Gov't
C.A. Br. 10, 17-19.  Defense counsel asked the court if he could begin
Dr. Vilasuso's testimony "with a hypothetical and ask him a
hypothetical opinion on the ultimate issue." 4 R. 178.  Specifically,
counsel wanted to pose to Dr. Vilasuso the same hypothetical that he
had posed to Dr. Frenzel, which he admitted tracked the language of
the insanity defense set forth in 18 U.S.C. 17(a).  4 R. 178-180.  /1/
The court denied the request, explaining that, if the hypothetical
"isn't based on your client, it is irrelevant;  and if it is based on
your client, 704(b) simply bars it." 4 R. 179.  /2/

   Dr. Vilasuso testified that petitioner had bipolar disorder, a
severe mental disease or defect that can impair thinking, behavior,
and the ability to plan, but that can be controlled with lithium.
Gov't C.A. Br. 10-11, 25.  Dr. Vilasuso admitted that he did not know
what petitioner had said or done during the robberies, or whether
petitioner had tried to change his appearance thereafter.  4 R.
201-203.

   c. On rebuttal, the government introduced evidence of an escape
attempt by petitioner en route to his arraignment.  Petitioner told
the agents who had foiled the attempt that it was his job to get away
and their job to stop him.  Gov't C.A. Br. 12.

   The government also called Dr. Albert C. Jaslow, a psychiatrist
whom the court appointed to examine petitioner after he indicated his
intention to raise the insanity defense.  Dr. Jaslow explained that
people with bipolar disorder may have periods of remission during
which there are no active symptoms of either the depressed or manic
phases, and that even when a person is in one or the other phase, the
level of disturbance can range from extreme to mild.  Dr. Jaslow
accepted the diagnosis of bipolar disorder in petitioner's case, but
-- based upon his review of the bank surveillance films, the tellers'
statements, and petitioner's efforts to avoid detection -- he
concluded that petitioner had demonstrated control and judgment in
carrying out the robberies as he did, and that his behavior was
inconsistent with active symptoms of either phase.  4 R. 310-314;
Gov't C.A. Br. 12-13.

   4. The court of appeals affirmed.  893 F.2d 1221-1225.  The court
rejected petitioner's argument that the hypothetical nature of the
question that he had been precluded from asking his expert witnesses,
coupled with its assumption of facts not yet in evidence, exempted it
from Fed. R. Evid. 704(b).  Id. at 1223.  Characterizing this argument
as "formalistic" (ibid.) the court found that the question "was
specifically structured to elicit the expert's opinion on the ultimate
legal issue in the case, the legal accountability of (petitioner)."
Id. at 1225.  Thus, the fact that it had been framed as a hypothetical
was "immaterial." Ibid.  The question "functioned almost as an outline
for petitioner's entire case," inasmuch as he subsequently elicited
testimony from Dr. Frenzel and others tending to prove each of its
underlying assumptions, and effectively identifying himself as the
person described in it.  Id. at 1224.  Moreover, it "directly tracked
the language of the insanity statute." Id. at 1225.  Accordingly, the
court ruled that petitioner had been properly barred from using "his
thinly veiled hypothetical" (id. at 1224) as "a vehicle to circumvent
the clear mandate of Rule 704(b)." Id. at 1223.

                               ARGUMENT

   Petitioner's sole contention (Pet. 13-25) is that the district
court erred when it barred his hypothetical question on insanity under
Fed. R. Evid. 704(b).

   1. Petitioner concedes (Pet. 15) that his hypothetical called for
an opinion on the ultimate issue in the case, i.e., an opinion as to
whether or not he had "the mental state or condition constituting an
element" of his defense to the crimes charged (Fed. R. Evid. 704(b)).
Expert testimony that states an opinion or inference on such ultimate
issues is barred by Rule 704(b), which in terms reserves those issues
"for the trier of fact alone." Petitioner also concedes (Pet. 18) that
one of Congress' purposes in enacting Rule 704(b) was to avoid
usurpation of the jury's "function of determining whether the
defendant was legally responsible for his acts" by "psychiatric
experts," who would confuse the jury by "drawing different legal
conclusions from the same set of facts." See S. Rep. No. 225, 98th
Cong., 2d Sess. 230 (1984) (Rule 704(b) is intended to limit
psychiatric experts "to presenting and explaining their diagnoses,
such as whether the defendant had a severe mental disease or defect
and what the characteristics of such a disease or defect, if any, may
have been").

   Nevertheless, petitioner claims (Pet. 18-19, 24) that his
hypothetical question was proper because it "avoided the pitfalls"
that prompted Congress to enact Rule 704(b).  In his view, the
hypothetical was "non-specific" (Pet. 24) to him, and did not offend
the Rule because the jury was still permitted to decide whether the
underlying assumptions of the hypothetical had been proven, and
whether to accept or reject the conclusion drawn by the psychiatrist.
As the court of appeals correctly observed, however, petitioner's
"reliance on the form of his question is misplaced.  The crux of this
issue is not (his) use of a thinly veiled hypothetical but rather
(his) attempt to elicit the expert's opinion on the ultimate issue in
the case." 893 F.2d at 1224.  Contrary to petitioner's suggestion
(Pet. 18-19), the fact that a court might permit hypothetical
questions when they will assist the trier of fact in resolving
subsidiary issues is no justification for ignoring Congress' decision
to bar categorically those questions -- hypothetical or otherwise --
that call for an expert opinion on an accused's sanity when sanity is
an ultimate issue in the case.

   2. a. Petitioner's attempt to find support for his position in
United States v. Davis, 835 F.2d 274 (11th Cir.), cert. denied, 487
U.S. 1219 (1988), and United States v. Edwards, 819 F.2d 262 (11th
Cir. 1987), is unavailing.  /3/

   In Davis, the district court asked a psychologist whether a person
diagnosed with multiple personalities would be able to understand what
he was doing.  835 F.2d at 276.  The court of appeals ruled the
question permissible, since it merely sought an explanation of the
disease and its typical effect on a person's mental state;  it did not
call for an opinion on the defendant's ability to conform his conduct
to the law at the time he committed the crime.  Ibid.  Davis also
involved a hypothetical question by the prosecutor, which tracked the
facts of the robbery and sought an opinion as to whether such behavior
was indicative of an anti-social personality.  Ibid.  That question
was also ruled proper on appeal, because it simply called for an
opinion as to whether the defendant's behavior was consistent with a
particular condition, while allowing the jury to decide whether that
condition rendered the defendant insane at the time of the crime.  Id.
at 276-277.

   In Edwards, the ultimate legal issue was whether the defendant
"lacked substantial capacity either to appreciate the wrongfulness of
his conduct or to conform his conduct to the requirements of law." 819
F.2d at 265.  The court of appeals ruled proper a question that the
prosecutor had asked of a psychiatrist on rebuttal.  The question
concerned aspects of the defendant's life that might have led to
depression.  The court noted that the doctor's responses "offer no
conclusions at all" about the defendant, but merely explained why his
behavior did not necessarily indicate an active manic state.  Ibid.

   In short, the Eleventh Circuit's decisions in Davis and Edwards, in
which the testifying experts were not asked to give their opinions on
the ultimate legal issues in those cases, lend no support to
petitioner's claims.

   b. Petitioner fares no better under the cases he cites from other
circuits.  For example, petitioner relies (Pet. 20) on United States
v. Cox, 826 F.2d 1518, 1524 (6th Cir. 1987), cert. denied, 484 U.S.
1028 (1988), for the proposition that courts have long taken a liberal
approach toward admitting evidence on the issue of insanity.  However,
to the extent that Cox involved a psychiatric opinion on the
defendant's sanity, that opinion was held not barred by Rule 704(b)
precisely because "the ultimate issue of Cox's mental state was not
his sanity or insanity, but his intent" to commit the crime.  Ibid.
The Sixth Circuit expressly acknowledged that expert opinions as to
whether an accused had the mental state or condition constituting an
element of a defense are impermissible under Rule 704(b).  Ibid.

   Petitioner's reliance (Pet. 21-22) upon United States v. Porter,
842 F.2d 1021 (8th Cir. 1988), is equally misplaced.  There, the
Eighth Circuit upheld the prosecutor's questioning of a defense
witness as to the defendant's sanity on the ground that the defense
had opened the door to such testimony.  Id. at 1025.  The 704(b) issue
in the instant case arose in an entirely different procedural context.
 /4/

   3. Even if the district court's barring of petitioner's
hypothetical question were error, that error would have been harmless
because petitioner nevertheless made a thorough presentation of his
insanity defense to the jury.  As defense counsel conceded at trial (4
R. 178-179), Dr. Frenzel had testified "in detail about what a bipolar
disorder was, the effect on the person it has, the genetic component
that runs in the family, (and) the effects that it has on the
cognitive or the thought processes." Dr. Frenzel also testified that
bipolar disorder was a major mental illness, and that petitioner
experienced depression for which had been prescribed medication with
positive results.  3 R. 130-136.  Dr. Vilasuso testified that
petitioner had bipolar disorder, which he described as a severe mental
disease or defect that can impair thinking and judgment due to mood
changes.  He also testified that as long as petitioner takes lithium
he is rational and coherent.  4 R. 184-185, 189-190, 193-194.  In
addition to the doctors' testimony, petitioner himself testified about
his condition and introduced testimony from family members and social
workers about his mood swings.  Gov't C.A. Br. 25-26.

   Clearly, the jury rejected petitioner's insanity defense not
because of the district court's 704(b) ruling, but because of the
strength of the government's case, which was based upon uncontroverted
evidence of the controlled and premeditated manner in which petitioner
carried out the robberies and sought to avoid detection and
prosecution.  Thus, petitioner was not unfairly prejudiced by the
ruling.

                              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

   VICKI S. MARANI

      Attorney

   SEPTEMBER 1990

   /1/ 18 U.S.C. 17(a) provides:

      Affirmative defense.  It is an affirmative defense to a
      prosecution under any Federal statute that, at the time of the
      commission of the acts constituting the offense, the defendant,
      as a result of a severe mental disease or defect, was unable to
      appreciate the nature and quality or the wrongfulness of his
      acts.  Mental disease or defect does not otherwise constitute a
      defense.

   /2/ Fed. R. Evid. 704(b) provides:

      No expert witness testifying with respect to the mental state or
      condition of a defendant in a criminal case may state an opinion
      or inference as to whether the defendant did or did not have the
      mental state or condition constituting an element of the crime
      charged or of a defense thereto.  Such ultimate issues are
      matters for the trier of fact alone.

   /3/ Even if those cases were inconsistent with the instant
decision, they would merely reflect an intra-circuit conflict that
does not warrant review by this Court.  See Wisniewski v. United
States, 353 U.S. 901 (1957).

   /4/ Petitioner also relies on United States v. Gipson, 862 F.2d 714
(8th Cir. 1988).  See Pet. 22-23.  Gipson involved testimony from
competing psychiatrists as to the defendant's mental state when he
committed the crime.  The court rejected a 704(b) challenge to the
testimony of the government's expert because it did not contain "legal
conclusions" as to whether the defendant had a specific intent to
commit the crime.  The court also determined that the testimony was
independently admissible as fair rebuttal to defense testimony on the
point.  Id. at 716-717.