USCA1 Opinion
March 16, 1992 ____________________
No. 90-1295
UNITED STATES,
Appellee,
v.
ARTHUR CARY PRYOR,
a/k/a CAMDEN M. PELLER,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Conrad K. Cyr, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Aldrich and Bownes, Senior Circuit Judges.
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Scott McLarty for appellant.
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Margaret D. McGaughey, Assistant United States Attorney, with
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whom Richard S. Cohen, United States Attorney, and Jay P. McCloskey,
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Assistant United States Attorney, were on brief for appellee.
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ALDRICH, Senior Circuit Judge. As a result of an
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amended brief, a supplemental brief, and a reply brief,
defendant Arthur Cary Pryor, through counsel and
individually, has presented some eleven points on appeal,
including the defense of insanity. All can be readily
disposed of.
Defendant was convicted of robbery of a federally
insured bank in Blue Hill, Maine, by force and violence and
placing a life in jeopardy, 18 U.S.C. 2113(a) and (d), and
possession of a sawed-off unregistered shotgun, 26 U.S.C.
5845(a)(4); 5861(d) and 5871. When committing the robbery
he was highly made-up, costumed and hatted to emulate "Boy
George," an androgynous pop star. Afterwards he distributed
largesse to his landlord and, ultimately, drove in a stretch
limousine costing $900 to a Cambridge, Massachusetts, hotel,
where he rented the presidential suite.
Before defendant was apprehended the government
obtained warrants to search his apartment in Castine, Maine,
and his Cambridge hotel room. He moved, pretrial, to
suppress the fruits. The court denied, after a lengthy
evidentiary hearing, with a fully persuasive opinion. We
need not repeat; there was no error. United States v.
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Rutkowski, 877 F.2d 139 (1st Cir. 1989).
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Before trial the government had performed a
psychiatric examination of defendant. 18 U.S.C. 4247(b).
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Defendant complains that it was delayed beyond the statutory
schedule. It does not appear how he was prejudiced.
Next, defendant complains that the court did not
hold a hearing on his competency to stand trial. 18 U.S.C.
4241(a) requires the court, on defendant's, or on its own
motion, to hold a hearing . . .
if there is reasonable cause to believe
that the defendant may presently be
suffering from a mental disease or defect
rendering him mentally incompetent to the
extent that he is unable to understand
the nature and consequences of the
proceedings against him or to assist
properly in his defense.
Defendant did not move for a hearing; nor did the court hold
one of its own accord. We are satisfied that there was no
sufficient cause to spark court action. It is not
determinative that defendant had had drug problems and
psychiatric treatment in the past. Hernandez-Hernandez v.
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United States, 904 F.2d 758, 760-61 (1st Cir. 1990). More to
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the point is the fact that the court had seen defendant
vigorously, and rationally, participating in his defense at
the pretrial proceedings, see Figueroa-Vasquez v. United
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States, 718 F.2d 511, 512 (1st Cir. 1983), and had determined
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that he had the capacity to waive counsel and defend himself.
For that hearing the court had a psychiatrist's finding that
defendant was "oriented to time, place and person," and that
his "judgment and insight, as well as abstract thinking
appeared to be intact." The court's finding that defendant
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was competent to waive counsel, viz., "knowing and
intelligent," Faretta v. California, 422 U.S. 806, 835
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(1975), more than covered ability to understand and assist
properly in his defense. Cf. United States v. Haffen, 726
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F.2d 21, 25 (1st Cir.), cert. denied, 466 U.S. 962 (1984).
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There was no cause for the court to hold a further hearing.
Defendant complains that at trial a witness
referred to his having stolen a bed. The court immediately
struck the testimony and instructed the jury to disregard it.
This was a minor matter, and fully cured. United States v.
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Paiva, 892 F.2d 148, 160 (1st Cir. 1989).
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The same with respect to a witness speaking of
defendant's being subjected to a disciplinary hearing as a
result of a fight in jail. Here the court, in addition to
instructing the jury to disregard the testimony, informed it
the next day that defendant had been cleared as having acted
in self-defense. (Apparently it was known that he had been
in jail.) There was no prejudice.
In respect to excluded evidence, defendant
complains because the court refused to admit a letter he
wrote his counsel at the time of his arrest as indicating his
state of mind. As to his state of mind at the time of the
offense, it was hearsay. As at the time of the arrest, it
was irrelevant. A proffered newspaper article was properly
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excluded within the court's discretion; indeed we do not see
how it was admissible at all.
Next, defendant complains of the burden put upon
him to prove insanity "by clear and convincing evidence." 18
U.S.C. 17(b). The constitutionality of such a burden is
settled. Leland v. Oregon, 343 U.S. 790 (1952);
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reconsideration refused in Rivera v. Delaware, 429 U.S. 877
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(1976). Defendant would circumlocute these cases by saying
his offenses require wilful knowledge, which insanity
negates. There is, however, no such identity. See United
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States v. Cameron, 907 F.2d 1051, 1066 (11th Cir. 1990);
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United States v. Byrd, 834 F.2d 145, 147 (8th Cir. 1987).
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Hence defendant's contention of a conflict with the criminal
burden of proof as to knowledge, In re Winship, 397 U.S. 358
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(1970), does not exist.
Next, defendant would have it that the evidence did
not support the jury's finding that he was not insane. Quite
apart from the fact that he failed to move for a directed
verdict at the close of the evidence, the burden being on
him, this claim is specious. But even were the burden on the
government, there was ample evidence that defendant knew what
he was doing, and "appreciate[d] . . . the wrongfulness of
his act." 18 U.S.C. 17(a).
Defendant complains that instead of merely
instructing the jury that a verdict of insanity requires
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confinement in a mental institution until found to be sane,
as requested by him, the court gave the further detail that
the confinement might be for only 40 days. This addition was
correct. 18 U.S.C. 4243(c). If, instead of requesting a
partial instruction defendant had asked that there be none,
we might have a different question. Cf. United States v.
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Frank, ___ F.2d ___ (9th Cir., February 11, 1992) (1992 U. S.
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App. Lexis 1512).
Defendant contends the judge should have recused
himself and not have presided over the sentencing because of
bias due to the fact that defendant had brought a civil suit
against him. This question was purely for the court's own
decision. It cannot be that an automatic recusal can be
obtained by the simple act of suing the judge. See Ronwin v.
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State Bar of Arizona, 686 F.2d 692, 701 (9th Cir. 1982),
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cert. denied, 461 U.S. 938 (1983); cf. In re Union Leader
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Corp., 292 F.2d 381, 389 (1st Cir.), cert. denied, 368 U.S.
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927 (1961).
Defendant finally complains of the sentence. This
was pre-Guidelines, and it was within statutory limits. We
have no right to review except if the court failed to
"individualize." United States v. Jiminez-Rivera, 842 F.2d
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545, 548 (1st Cir.), cert. denied, 487 U.S. 1223 (1988). It
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did not fail.
Affirmed.
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