UNITED STATES v. WINN, 577 F.2d 86 (9th Cir. 1978)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. BURDETTE GEORGE WINN,
DEFENDANT-APPELLANT.

No. 77-1934.
United States Court of Appeals, Ninth Circuit.
June 19, 1978.

  M. J. Collins (argued), Newport Beach, Cal., for
defendant-appellant.

  John P. Newman, Asst. U.S. Atty. (argued), Los Angeles, Cal.,
for plaintiff-appellee.

  On Appeal from the United States District Court for the Central
District of California.

  Before CHOY and WALLACE, Circuit Judges, and TURRENTINE,[fn*]
District Judge.

[fn*] The Honorable Howard B. Turrentine, United States District
Judge for the Southern District of California, sitting by
designation.

  CHOY, Circuit Judge.

[1] Winn appeals his conviction for making a false statement in his
application for a passport in violation of 18 U.S.C. § 1542. We
affirm.

[2] I. Facts and Proceedings Below

[3] Appellant applied for a passport at a post office branch in the
name of Floyd Porter Bailey. The postal clerk observed that he
left twice in order to secure the required photographs and fee,
and that he crossed out the social security number he had entered
on the application when he discovered it was not required. After
the clerk administered the oath of truthfulness, she attached a
note to the application describing appellant's suspicious
behavior. Appellant's fingerprint on the application matched the
fingerprint on a California driver's license issued to Floyd
Porter Bailey, and Floyd Porter Bailey was in fact the name of a
deceased person. The signatures on the driver's license, the
passport application, and the photographs attached to the
application were all written by appellant.

[4] After his indictment, the court appointed counsel for appellant
and a psychiatrist to examine him. He was found competent at a
later hearing, and substitution of counsel was approved. The jury
found appellant guilty as charged. He was given a suspended
sentence and placed on probation for five years. As conditions of
probation, appellant was not to drink any alcoholic beverages and
was to continue with psychiatric treatment for his drinking
problem.

[5] II. Insanity Instruction

[6] Appellant contends that the trial court erred in refusing to
instruct the jury on insanity. One basis for the court's decision
was that the insanity issue had not been appropriately raised.
Fed.R.Crim.P. 12.2(a) provides as follows:

    Defense of Insanity. If a defendant intends to
  rely upon the defense of insanity at the time of the
  alleged crime, he shall, within the time provided for
  the filing of pretrial motions or at such later time
  as the court may direct, notify the attorney for the
  government in writing of such intention and file a
  copy of such notice with the clerk. If there is a
  failure to comply with the requirements of this
  subdivision, insanity may not be raised as a defense.
  The court may for cause shown allow late filing of
  the notice or grant additional time to the parties to
  prepare for trial or make such other order as may be
  appropriate.

[7] It is not disputed that appellant did not comply with rule 12.2
and that he offered no explanation of cause for failure to do so.
Nor did appellant request a continuance or permission to file a
late notice, although the matter was brought to his attention by
the court and the Government, and he had almost four months in
which to do so. Accordingly, we conclude that the trial court
properly refused to instruct the jury on the defense of insanity.

[8] Moreover, where a Federal Rule of Criminal Procedure indicates
that noncompliance with its provisions will constitute a waiver
of future objections based on the subject matter of the rule, no
relief from waiver is available on review absent a showing of
cause and prejudice. See Davis v. United States, 411 U.S. 233,
242-45, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). Rule 12.2 clearly
implies that a defendant who fails to comply with its provisions
waives his right to raise an insanity defense. In this case, no
showing of cause for noncompliance was even attempted.

[9] Appellant argues that his procedural noncompliance should not
waive his substantive right to insanity instructions at trial.
The Advisory Committee notes to rule 12.2 make it clear, however,
that the purpose of the rule is substantive, not formalistic. It
is to give the Government time to prepare to meet a defendant's
insanity defense. Once insanity is raised as a defense, the
Government must bear the burden of proving sanity beyond a
reasonable doubt. Hartford v. United States, 362 F.2d 63, 64
(9th Cir.), cert. denied, 385 U.S. 883, 87 S.Ct. 174, 17
L.Ed.2d 110 (1966); see United States v. Hearst, 563 F.2d 1331,
1336 & n. 2 (9th Cir. 1977). In view of the significance of this
burden, justice requires prior notice to the Government of an
insanity defense. Rule 12.2 is designed to insure that both the
defendant and the Government have ample opportunity to
investigate the facts of an issue critical to the determination
of guilt or innocence. Cf. Williams v. Florida, 399 U.S. 78,
82, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1969).

[10] III. Mental Defect Instruction

[11] Appellant argues that he was entitled to an instruction that
evidence of a defendant's mental state, even if insufficient to
establish insanity, should be considered in determining whether
there was the requisite specific intent to commit the crime
charged. His first proffered instruction, the usual insanity
instruction, was inappropriate for this purpose; but the second
proposed instruction, while in artfully drawn, in substance
stated this proposition.[fn1] A defendant is entitled to an
instruction concerning his theory of the case if it is supported
by law and has some foundation in the evidence. United States v.
Hall, 552 F.2d 273, 275 (9th Cir. 1977); United States v.
Noah, 475 F.2d 688, 697 (9th Cir.), cert. denied, 414 U.S. 821,
94 S.Ct. 119, 38 L.Ed.2d 54 (1973); Perkins v. United
States, 315 F.2d 120, 124 (9th Cir.), cert. denied, 375 U.S. 916,
84 S.Ct. 201, 11 L.Ed.2d 155 (1963); Baker v. United
States, 310 F.2d 924, 930 (9th Cir. 1962), cert. denied,
372 U.S. 954, 83 S.Ct. 952, 9 L.Ed.2d 978 (1963). If appellant
presented sufficient evidence to go to the jury on this point, he
was entitled to an instruction relating to this defense, which
was not technically a "defense of insanity" and hence fell
outside the scope of rule 12.2(a).

[12] No doctors or experts were called to testify concerning the
appellant's possible defective mental state, and the competency
report was not introduced. The only possible question of
appellant's mental condition arose as a result of the testimony
given by Gregory Lorenz and Dennis McDaniels, owners of a
nightclub who fired appellant from his position there as a
photographer because "he just didn't get the work done." Lorenz
stated that Winn "drank constantly," starting at 6 A.M.,
continuing throughout the day, and at night on the job at the
nightclub. Lorenz concluded that "a normal person wouldn't do
things he does." McDaniels testified that the "main problem" with
Winn was that "he wasn't showing up . . .. He was drinking
heavily, and we finally just had to 86 him from the bar."
According to McDaniels, Winn's drinking earned him the nickname
"Crazy George" at one particular bar. The trial judge ruled, at
the same time he denied the requested instruction for failure to
comply with Fed.R.Crim.P. 12.2(a), that there was insufficient
evidence to give an instruction based on either insanity or lack
of specific intent by reason of mental defect.

[13] We agree. The evidence at trial concerned appellant's
irresponsibility and drinking - not mental disease or defect. The
testimony of Lorenz and McDaniels in no way indicated that Winn
was mentally incapable of committing the offense charged. Thus,
the trial court's refusal to give an instruction relating mental
defect short of insanity to specific intent was not error.[fn2]

[14] IV. Sufficiency of Evidence

[15] Appellant contends that the evidence was insufficient to prove
specific intent, a necessary element of the crime charged.

[16] It is well established that on appeal, the evidence must be
construed in the light most favorable to the Government Glasser
v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680
(1942); United States v. Ramirez-Rodriquez, 552 F.2d 883, 884
(9th Cir. 1977); United States v. Manuel-Baca, 421 F.2d 781,
782-83 (9th Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2269,
26 L.Ed.2d 804 (1970). All reasonable inferences from the
evidence must be drawn favorably to the Government as the
prevailing party. Yeargain v. United States, 314 F.2d 881, 882
(9th Cir. 1963). Moreover, as stated in Ramirez-Rodriquez, 552
F.2d at 884:

  [I]t is the exclusive function of the jury to weigh
  the credibility of witnesses, resolve evidentiary
  conflicts and draw reasonable inferences from proven
  facts. Circumstantial and testimonial evidence are
  indistinguishable insofar as the jury factfinding
  function is concerned, and circumstantial evidence
  can be used to prove any fact.

[17] (Citations omitted.) The proper test is whether the jurors could
reasonably arrive at their conclusion. United States v.
Prohart, 469 F.2d 1089, 1090 (9th Cir. 1972); United States v.
Ordones, 469 F.2d 70, 71 (9th Cir. 1972).

[18] 18 U.S.C. § 1542, quoted in pertinent part, applies to whomever

  willfully and knowingly makes any false statement in
  an application for passport with intent to induce or
  secure the issuance of a passport under the authority
  of the United States, either for his own use or the
  use of another, contrary to the laws regulating the
  issuance of passports or the rules prescribed
  pursuant to such laws . . ..

[19] The court correctly instructed the jury that "an act is done
willfully if done voluntarily and intentionally and with the
specific intent to do something the law forbids; that is to say,
with a purpose either to disobey or disregard the law." The jury
could have reasonably arrived at the conclusion that it was
appellant's purpose to disobey the law by making a false
statement in his application for a passport. The clerk read the
oath of truthfulness to him, and he swore that all the statements
on the application were true. Moreover, immediately above his
signature with a false name was a warning that false statements
on the application were violations of law. The evidence was
sufficient.

[20] V. Competency Report

[21] Appellant's remaining contentions concern the pretrial
competency report. He argues that he should have been shown the
report prior to the court's considering it. In the alternative,
he argues that permitting his first attorney to stipulate to the
report after that attorney had asked to be relieved as his
counsel was error, and that the report should first have been
given to his new counsel. Appellant neither cites nor even
suggests any authority for these contentions, and we can find
none.

[22] 18 U.S.C. § 4244 governs the psychiatric examination and
evaluation of federal criminal defendants. That statute provides
that on the motion of the U.S. Attorney, the defendant, or the
court sua sponte, the court "shall cause the accused . . . to
be examined . . . by at least one qualified psychiatrist, who
shall report to the court." (Emphasis added.) The statute
further provides that, if the psychiatrist's report indicates a
state of present insanity or incompetency, the court shall hold a
hearing on the question of the defendant's mental state.

[23] Where the psychiatrist's report does not indicate a present
state of insanity or incompetency and thus no hearing is
required, "`there is no reason to furnish a copy of such report
to anyone. The better practice would seem to be not to do so lest
it might be brought to the notice of the jury in violation of the
statute.'" United States v. Bell, 57 F.R.D. 31, 32
(E.D.Tenn. 1972), quoting United States v. Everett, 146 F.Supp.
54, 56 (D.Kan. 1956). Accord, United States v. Chaussee,
536 F.2d 637, 641-42 (7th Cir. 1976).

[24] Where a hearing is required and the reporting psychiatrist
testifies therein, the First Circuit has suggested that his
report should be available to both the prosecution and the
defense as a basis for their direct and cross examination of him.
In re Harmon, 425 F.2d 916, 918 (1st Cir. 1970). However, §
4244 does not require that the reporting psychiatrist testify at
the hearing. United States v. Shepard, 538 F.2d 107, 109 (6th
Cir. 1976). Thus, disclosure of the report is not necessarily
mandated even where the report indicates insanity or
incompetency.

[25] Certainly, whenever a hearing is held without the testimony of
the reporting psychiatrist, or whenever a competency hearing is
not required, the decision whether to disclose the psychiatrist's
report to the parties rests within the trial court's discretion.
That discretion must be exercised with due consideration of the
fact that disclosure of the report to the defendant himself may
be detrimental to him. In United States v. Moody, 490 F.2d 866,
867 (5th Cir. 1974), the court held that a defendant was properly
refused permission to purchase a copy of a deposition of the
psychiatrist who had treated him because "it will be for [his]
benefit and mental well being . . . in that he might be affected
adversely by having access." For the same reason the Fifth
Circuit has held that a defendant can be excluded from his own
competency hearing. Johnson v. United States, 293 F.2d 100, 102
(5th Cir. 1961).

[26] Similarly, while the Federal Rules of Criminal Procedure do not
expressly regulate the disclosure of competency reports to a
defendant or his counsel, there is a helpful analogy in
Fed.R.Crim.P. 32(c)(3) governing disclosure of presentence
reports. That rule requires disclosure only upon request of the
defendant or his counsel, and recognizes the discretion of the
court to withhold information that might result in harm to the
defendant or other persons.

[27] In this case, the psychiatrist's report did not indicate a
present state of insanity or incompetency, and thus neither a
hearing nor disclosure of the report to anyone was required. The
court, nonetheless, did disclose the competency report to both
the Government and counsel for appellant, and held a competency
hearing as well. The record clearly shows that appellant's first
lawyer found nothing objectionable in the competency report.
Furthermore, the court personally addressed appellant at his
competency hearing concerning his evaluation of the report, and
he replied only that he had not read it, making no request of the
court or his attorneys to see it. Both his first and second
attorneys were then present, and neither requested that appellant
be shown the report. Appellant's second lawyer did not then
request to see the report himself; nor, having read it after the
competency hearing, did he object to the use of the report to
determine appellant's competency at any later point in the course
of the trial, although the court's duty to evaluate a defendant's
competency continues throughout the proceedings. In light of
these facts and the considerations that must influence a decision
to disclose the competency report, including the likelihood of
injury to the defendant from access to it, we think the court was
well within its discretion in ruling on appellant's competency
without first offering the report to appellant or his second
attorney absent any request to do so.[fn3]

[28] Appellant's claim is thus reduced to a challenge to the trial
court's finding of competency in reliance on the psychiatrist's
report. Such a finding is one of fact which may not be set aside
on review unless it is clearly erroneous. See United States v.
Shepard, 538 F.2d 107, 110 (6th Cir. 1976); United States v.
Fratus, 530 F.2d 644, 647 (5th Cir.), cert. denied, 429 U.S. 846,
97 S.Ct. 130, 50 L.Ed.2d 118 (1976); United States v.
Irvin, 450 F.2d 968, 971 (9th Cir. 1971) (dissenting opinion);
In re Harmon, 425 F.2d 916, 918 (1st Cir. 1970); Hall v.
United States, 410 F.2d 653, 658 (4th Cir.), cert. denied,
396 U.S. 970, 90 S.Ct. 455, 24 L.Ed.2d 436 (1969); Feguer v. United
States, 302 F.2d 214, 236 (8th Cir.), cert. denied, 371 U.S. 872,
83 S.Ct. 123, 9 L.Ed.2d 110 (1962). The testimony of medical
experts on the issue is only one factor. See United States v.
Horowitz, 360 F.Supp. 772, 777 (E.D.Pa. 1973). No objection to
the substance of the report was made at any time below, and there
is no basis whatsoever for a finding on appeal that the trial
court's determination of appellant's competency was clearly
erroneous.

[29] Therefore, we find appellant's objections involving the
competency report to be without merit.

[30] AFFIRMED.

[fn1] "Where a defendant has raised the issue of his insanity,
and the jury finds from the evidence in the case beyond a
reasonable doubt that the accused was not insane at the time of
the alleged offense, it is still the duty of the jury to consider
all the evidence in the case which may aid determination of state
of mind, including all evidence offered on the issue as to
insanity, in order to determine whether the defendant acted or
failed to act with specific intent, as charged.

  "If the evidence in the case leaves the jury with a reasonable
doubt whether the mind of the accused was capable of forming, or
did form, specific intent to commit the crime charged, the jury
should acquit the accused.

  "As stated before, the law never imposes upon a defendant the
burden or duty of calling any witnesses or producing any
evidence."

  The instruction as written was clearly inappropriate since it
is predicated on the defendant's having successfully raised the
issue of insanity.

[fn2] The trial court properly gave the following instruction on
intoxication:

  "Although intoxication or drunkenness alone will never provide
a legal excuse for the commission of a crime, the fact that a
person may have been intoxicated at the time of the commission of
a crime may negate the existence of a specific intent.

  "So, evidence that a defendant acted or failed to act while in
a state of intoxication is to be considered in determining
whether or not the defendant acted or failed to act with specific
intent, as charged.

  "If the evidence leaves the jury with a reasonable doubt
whether, because of the degree of his intoxication, the mind of
the accused was capable of forming or did form specific intent to
commit the crime charged, the jury should acquit the accused.

  "The jury will always bear in mind that the law never imposes
upon a defendant in a criminal case the burden of calling any
witnesses or producing any evidence."

[fn3] Appellant does not claim he was rendered ineffective
assistance of counsel, nor could he solely on the basis of his
attorney's decision not to disclose the contents of the
psychiatrist's report in view of the considerations we have
outlined.