Filed: Apr. 11, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 4-11-2007 USA v. Askari Precedential or Non-Precedential: Non-Precedential Docket No. 04-3051 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Askari" (2007). 2007 Decisions. Paper 1329. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1329 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 4-11-2007 USA v. Askari Precedential or Non-Precedential: Non-Precedential Docket No. 04-3051 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Askari" (2007). 2007 Decisions. Paper 1329. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1329 This decision is brought to you for free and open access by the Opinions of the United State..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-11-2007
USA v. Askari
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3051
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Askari" (2007). 2007 Decisions. Paper 1329.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1329
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3051
UNITED STATES OF AMERICA
v.
MUHAMMAD ASKARI,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 92-cr-00288
District Judge: The Honorable Ronald L. Buckwalter
Submitted Under Third Circuit LAR 34.1(a)
March 27, 2007
Before: RENDELL, BARRY, and CHAGARES, Circuit Judges
(Opinion Filed: April 11, 2007)
OPINION
BARRY, Circuit Judge
This is an appeal from the District Court’s order denying Appellant Muhammad
Askari’s motion for relief, pursuant to 28 U.S.C. § 2255, on the ground of ineffective
assistance of counsel. Because we find that Askari has not demonstrated that his trial
counsel rendered ineffective assistance by failing to pursue an insanity defense, we will
affirm.
I.
On April 23, 1992, Askari entered the First National Bank of Philadelphia at 1424
Walnut Street, approached a teller, and demanded money. The teller complied by giving
Askari bills that included $50 in “bait money,” and Askari fled on foot. Bank employees
pursued and apprehended him a short distance away, finding the “bait money” in his
trousers.
On May 1, 1992, a federal grand jury sitting in the Eastern District of Pennsylvania
returned an indictment, charging Askari with one count of bank robbery, in violation of
18 U.S.C. § 2113(a). The following week, Dr. Edward Guy evaluated Askari, pursuant to
18 U.S.C. § 4241, to determine whether he was competent to stand trial. In a report dated
May 11, 1992, Dr. Guy noted that Askari, a Vietnam veteran, had a history of
psychological problems and treatment, but concluded that he was competent to stand trial
subject to periodic reevaluation. The District Court accepted the report’s conclusion and,
on June 4, 1992, accepted Askari’s plea of not guilty. A trial date was set for July 8,
1992.
On June 30, 1992, Askari, through his counsel, moved for a second psychiatric
evaluation. The government consented, and Dr. Timothy J. Michals examined him on
July 2, 1992. Based on Dr. Michals’s observations and his review of Askari’s medical
2
records, Dr. Michals concluded that Askari was competent to stand trial, and so stated at a
July 8, 1992 competency hearing. He testified that Askari’s complaint of memory loss
was “selective,” inconsistent with known characteristics of mental disorders, and
inconsistent with the results of past evaluations. (Appellant’s App. vol. II at A-179, A-
181.) He also testified that Askari’s past psychological problems were attributable
primarily to drug abuse, but noted that he had been diagnosed with post traumatic stress
disorder and personality disorder. In response to questioning by the Court, Dr. Michals
opined that Askari’s complaint of hearing voices was inconsistent with other aspects of
his mental condition, and, therefore, “self serving and not based on a mental disease or
defect.” (Id. at A-190.)
Askari testified. On direct examination, he recalled certain information, such as
the names of the medications he was taking and how long he had been in custody, but did
not know what crime he was charged with committing and could not recall being arrested.
On cross-examination, he testified that he occasionally heard voices.
Q What do they tell you?
A They tell me Uncle Sam wants me to go back in the service. I don’t
want to go. They try to draft me, the Government is trying to draft
me back in the Army. I’m too old to go to the service, I’m too old to
go to the Gulf War. I want the VA out of my life.
Q Have they told you anything about a bank robbery?
A No.
(Id. at A-198.) In response to the Court’s questioning, Askari testified that he did not
know the purpose of the proceeding and asserted, “I need treatment though, Judge.” (Id.
at A-200.) After he left the stand, his counsel conceded that his testimony certainly . . .
3
does not negate Dr. Michals’ opinion.” (Id. at A-201.) She noted, however, that Askari
had provided her with no information about the case and had consistently denied any
recollection of robbing a bank.
The District Court found Askari competent to stand trial. Jury selection began
later that day. On July 10, 1992, after a two-day trial, the jury returned a guilty verdict.
On January 16, 1993, in advance of his sentencing hearing, Askari moved for a
third psychiatric evaluation. The Court held a hearing on the motion on February 12,
1993. At the hearing, defense counsel noted that Askari had refused to take his
medication since January 20 and continued to complain about hearing voices. The Court
then heard conflicting testimony from Dr. Catherine Barber, a forensic psychologist at the
Federal Correctional Institution in Fairton, New Jersey, where Askari was detained, and
Dr. Guy, who interviewed Askari for 20 minutes that day. Dr. Barber testified, in
reference to a report she had prepared on January 29, that Askari “meets even the most
stringent standards to be considered competent to refuse treatment.” (Id. at A-220.)1 Dr.
Guy, on the other hand, believed that Askari was not competent to proceed with
sentencing. The District Court concluded that Askari “just barely” proved by a
1
She also read a portion of a report prepared by one of FCI Fairton’s consulting
psychiatrists, Dr. Goldberg, who evaluated Askari on February 11, 1993 and diagnosed
him as having either chronic undifferentiated schizophrenia or chronic paranoid
schizophrenia. In response to a question from the Court as to whether a person could
have such a diagnosis and still be able to understand the nature and consequences of a
legal proceeding in which he or she is a party and adequately assist his or her lawyer, Dr.
Barber answered, “Yes, unquestionably.” (Appellant’s App. vol. II at A-235.)
4
preponderance of the evidence that he was not competent to be sentenced. (Id. at A-271.)
Accordingly, the Court ordered that he be committed to a federal institution for
psychiatric care and treatment, pursuant to 18 U.S.C. § 4244(d), for a term of 20 years or
until such time as the director of the institution certified, pursuant to 18 U.S.C. § 4244(e),
that he was competent to be sentenced.
Askari was committed to the U.S. Medical Center for Federal Prisoners at
Springfield, Missouri. There, on January 18, 1995, Staff Psychiatrist Shalini Gavankar,
M.D., reported that he was no longer in need of treatment and could be sentenced. The
warden filed a certification to that effect with the District Court, and the Court, on July
27, 1995, sentenced Askari to 210 months’ imprisonment followed by three years of
supervised release, giving credit for the 40 months already served.
Askari timely appealed his sentence, arguing that the District Court had authority
to grant a downward departure for diminished capacity pursuant to U.S.S.G. § 5K2.13.
We affirmed, finding that the diminished capacity departure was unavailable because
bank robbery is a crime of violence. United States v. Askari, No. 95-1662,
1997 WL
92051, at *2 (3d Cir. Mar. 5, 1997). We then granted rehearing en banc, and, on April 8,
1998, affirmed. United States v. Askari,
140 F.3d 536, 550 (3d Cir. 1998) (en banc). In
light of a proposed amendment to § 5K2.13, however, we granted Askari’s petition for
reconsideration. On November 5, 1998, we vacated our April 8, 1998 en banc opinion
and order and remanded to the District Court for factual findings on whether Askari’s
offense involved actual violence or a serious threat of violence, and whether his criminal
5
history indicated a need to incarcerate him or protect the public. United States v. Askari,
159 F.3d 774, 780 (3d Cir. 1998) (en banc).
After several continuances, the District Court resentenced Askari on November 14,
2001. The Court granted his § 5K2.13 motion and reduced his sentence to 140 months’
imprisonment and three years of supervised release. Neither party appealed.
Meanwhile, on May 20, 1997, while his direct appeal was pending, Askari filed a
pro se motion pursuant to 28 U.S.C. § 2255 seeking to overturn a 1975 conviction that
affected his sentence this case. In a memorandum order dated April 22, 1998, the District
Court adopted the report and recommendation of a magistrate judge, denied Askari’s
motion, and denied a certificate of appealability.
On August 15, 2002, Askari filed a second pro se § 2255 motion, this time urging
the District Court to overturn his sentence because his trial counsel had been ineffective
in several respects. At the Court’s direction, he refiled his motion on December 26, 2002,
using the appropriate forms. In both filings, Askari argued that that his trial counsel was
ineffective for failing to pursue an insanity defense. On March 19, 2004, the District
Court dismissed his motion as a second or successive § 2255 habeas corpus motion. In an
order dated July 14, 2004, however, the District Court vacated its March 19, 2004 order
and denied Askari’s motion on the merits.
Askari timely appealed. On October 19, 2005, we granted a certificate of
appealability with regard to his claim that trial counsel was ineffective for failing to
pursue an insanity defense.
6
II.
In January 2003, Askari finished serving his prison term and began his three-year
period of supervised release. On August 26, 2004, the District Court found that he had
violated the conditions of his supervised release. The Court revoked supervised release,
ordered Askari to be imprisoned until September 9, 2004, and ordered that supervision be
terminated upon his release. Thus, he is neither incarcerated nor under supervision at this
time. The Supreme Court has established a presumption that a wrongful criminal
conviction has continuing collateral consequences. See Spencer v. Kemna,
523 U.S. 1, 8
(1998) (citing Sibron v. New York,
392 U.S. 40, 55-56 (1968)). The government does not
attempt to rebut this presumption. We find that Askari’s appeal is not moot.
We have jurisdiction pursuant to 28 U.S.C. §§ 2253 and 1291. Under Strickland v.
Washington,
466 U.S. 668, 687 (1984), a prisoner seeking relief for ineffective assistance
of counsel must make two showings: first, that counsel’s assistance fell below an
objective standard of reasonableness for attorneys in criminal cases; and second, that
counsel’s deficient performance prejudiced the defense. Each prong presents a mixed
question of law and fact.
Id. at 698. We exercise plenary review of the District Court’s
adjudication of the performance and prejudice prongs, Duncan v. Morton,
256 F.3d 189,
200 (3d Cir. 2001), and we review the District Court’s underlying factual findings for
clear error, Gov’t of Virgin Islands v. Weatherwax,
77 F.3d 1425, 1430 (3d Cir. 1996).
The Insanity Defense Reform Act of 1984 (“IDRA”), 18 U.S.C. § 17 (2000),
defines the standard that a defendant must prove by clear and convincing evidence to
7
establish insanity as a defense to a federal prosecution.
(a) 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.
(b) Burden of proof.--The defendant has the burden of proving the defense
of insanity by clear and convincing evidence.
Although we have not yet addressed the clear and convincing standard in the context of
the IDRA, there can be no question that proof by clear and convincing evidence is a more
stringent standard than proof by a preponderance of the evidence. See United States v.
Brennan,
326 F.3d 176, 200 n.7 (3d Cir. 2003); see also United States v. Massey,
27 M.J.
371, 372 (1989) (“[A]n accused can prevail only if he convinces the factfinder that he was
not mentally responsible at the time of the crime; and it does not suffice that he merely
creates a reasonable doubt in the mind of the factfinder as to his mental responsibility.”).
In a slightly different context, the Supreme Court of New Jersey has supplied a useful
definition of clear and convincing evidence as that which
produce[s] in the mind of the trier of fact a firm belief or conviction as to
the truth of the allegations sought to be established, evidence so clear, direct
and weighty and convincing as to enable [the factfinder] to come to a clear
conviction, without hesitancy, of the truth of the precise facts in issue.
In re Jobes,
529 A.2d 434, 441 (N.J. 1987) (internal quotation marks omitted). The
Pennsylvania Supreme Court has similarly defined clear and convincing evidence as
evidence sufficient to “enable the [trier of fact] to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue. . . . It is not necessary that the evidence
8
be uncontradicted . . . provided it ‘carries conviction to the mind’ or carries ‘a clear
conviction of its truth’. . . .” In re Adoption of J.J.,
515 A.2d 883, 886 (Pa. 1986)
(citations omitted). We find these definitions appropriate here.
A different, and, in some respects, less stringent standard exists for demonstrating
legal competence. A defendant is not competent to stand trial if he suffers from a mental
disease or defect that renders him “unable to understand the nature and consequences of
the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a).
Under our caselaw, the government bears the burden of proving by a preponderance of
the evidence that a defendant is competent to stand trial. United States v. Valasquez,
885
F.2d 1076, 1089 (3d Cir. 1989); cf. Cooper v. Oklahoma,
517 U.S. 348, 355 (1989)
(noting that a state may presume a defendant’s competence and require him to prove
otherwise by a preponderance of the evidence).
By comparison, a downward departure for diminished capacity under § 5K2.13 of
the United States Sentencing Guidelines, which were mandatory at the time of Askari’s
2001 resentencing, may be appropriate where a court finds that the defendant, at the time
of the offense, suffered from a “significantly reduced mental capacity” that “contributed
substantially to the commission of the offense.” The application note to § 5K2.13 defines
“significantly reduced mental capacity” as “a significantly impaired ability to (A)
understand the wrongfulness of the behavior comprising the offense or to exercise the
power of reason; or (B) control behavior that the defendant knows is wrongful.” U.S.S.G.
§ 5K2.13 cmt. 1.
9
Against this backdrop, we turn, first, to the prejudice prong of the Strickland
standard. Where the defendant has failed to establish prejudice, we need not reach the
issue of counsel’s performance. See Rolan v. Vaughn,
445 F.3d 671, 678 (3d Cir. 2006);
United States v. Cross,
308 F.3d 308, 315 (3d Cir. 2002). To satisfy the prejudice prong
of the Strickland analysis, Askari must show “‘that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Outten v. Kearney,
464 F.3d 401, 414 (3d Cir. 2006) (quoting
Strickland, 466
U.S. at 694). A reasonable probability in this context is “a probability sufficient to
undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
Askari has failed to demonstrate a reasonable probability that, but for counsel’s
alleged error, he would have shown by clear and convincing evidence that he was unable
to appreciate the nature and quality or the wrongfulness of his acts at the time he
committed the bank robbery. He points to the conclusions of Drs. Goldberg and Guy,
who evaluated him on February 11 and 12, 1993, respectively, after he had been refusing
his medication for several weeks. Dr. Goldberg diagnosed Askari as suffering either from
undifferentiated schizophrenia or chronic paranoid schizophrenia, and Dr. Guy opined
that Askari was not competent to proceed with sentencing. Neither psychiatrist opined as
to Askari’s mental state at the time of the bank robbery, which occurred nearly ten
months earlier. Indeed, as circumstantial evidence of Askari’s mental state at the time of
the crime, Dr. Guy’s February 12, 1993 opinion is further called into question by his
opinion of May 11, 1992, just eighteen days after the robbery, that Askari was “alert and
10
cooperative” and competent to proceed to trial. (Appellant’s App. vol. II at A-143.)
Askari also notes that his counsel reported to the District Court, on July 8, 1992,
that Askari had not provided her with any information about the case since she first met
with him on April 24, 1992. She made this statement, however, in response to the Court’s
suggestion that Askari was feigning some of his symptoms; she declined to express an
opinion as to whether Askari’s reticence was deliberate. By comparison, the District
Court repeatedly suggested, at the July 8, 1992 hearing and again at the February 12,
1993 hearing, that, “based on the Court’s own observations,” it believed that Askari was
“faking and trying to manipulate people.” (Id. at A-210.) Even apart from the other
evidence in the case, given the Court’s observations, trial counsel’s assertion that Askari
had not assisted her surely does not show that he was legally insane when he committed
the crime.
Askari, finally, points to two reports prepared on August 11, 1999 and August 10,
2000 by Dr. Julie B. Kessel, a psychiatrist retained by the defense to render an opinion as
to Askari’s ability to proceed with resentencing. In her August 10, 2000 report, Dr.
Kessel rendered several opinions, including the following:
On the day of the incident for which Mr. Askari was arrested, he was
suffering from a major mental illness with active symptoms of psychosis,
such that his mental capacity was substantially impaired. Further, as a
result of his mental illness, he had a substantially impaired capacity to
appreciate the wrongfulness of his behavior, to exercise the power of
reason, and to conform his conduct to the requirements of the law.
(See Appellant’s Supplemental App. at A-284.) As the government correctly observes,
11
this was the first psychiatric report to address Askari’s state of mind at the time of the
offense. Askari cites Dr. Kessel’s opinion as evidence that on the day of the bank
robbery, he was legally insane.
Dr. Kessel met with Askari once in July 1999 and again in February 2000, and
prepared her August 10, 2000 report more than eight years after the bank robbery. Her
opinions, therefore, do not carry the same weight as would an opinion rendered closer to
the date of the crime. Even if they did, however, they do not establish or even suggest
that Askari was legally insane when he committed the crime. Dr. Kessel’s opinion that
Askari had “substantially impaired capacity to appreciate the wrongfulness of his
behavior” tracks the standard for a downward departure for diminished capacity under the
Sentencing Guidelines. See U.S.S.G. § 5K2.13 & cmt. 1. It does not satisfy the
requirement for legal insanity that the defendant be “unable to appreciate the nature and
quality or the wrongfulness of his acts.” 18 U.S.C. § 17(a) (emphasis added); see United
States v. Pohlot,
827 F.2d 889, 890 (3d Cir. 1987) (noting that defenses such as
diminished responsibility and diminished capacity do not negate mens rea and are
prohibited by the IDRA). Accordingly, there is no evidence that would produce in the
mind of a trier of fact a clear, unhesitating conviction that Askari was legally insane at the
time of the robbery.
Askari no doubt has a long history of psychological illness for which he has, at
various times, been treated clinically. It would require a leap of logic, however, to
conclude from this record that at the time he robbed the First National Bank of
12
Philadelphia, he “was unable to appreciate the nature and quality or the wrongfulness of
his acts.” 18 U.S.C. § 17(a). At no point in these lengthy proceedings has an expert so
opined. It is therefore doubly a stretch to conclude that Askari has demonstrated a
reasonable probability that, but for counsel’s alleged unprofessional errors, the result of
his trial would have been different. Having failed to prove that he has been prejudiced,
Askari’s claim for ineffective assistance of counsel also fails.
III.
For the foregoing reasons, we find that Askari has failed to demonstrate that he is
entitled to relief under 28 U.S.C. § 2255 on the ground of ineffective assistance of
counsel. We will affirm.
13