ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 4, xxxx



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



_________________________________________________________________



NO. xx-3096

_________________________________________________________________







BRIEF OF APPELLANT





_________________________________________________________________







UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxxxxxxx, Defendant-Appellant.





_________________________________________________________________





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



_________________________________________________________________









A.J. KRAMER

FEDERAL PUBLIC DEFENDER



Counsel for Appellant

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500









District Court

Cr. No. xx-447

CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES



Pursuant to D.C. Circuit Rule 28(a)(1), appellant hereby states as follows:

A. Parties and Amici: The parties below and in this court are the defendant-appellant, xxxxxxxxxxxx, and the plaintiff-appellee, the United States of America. There are no intervenors or amici, either in the district court or this court.

B. Rulings Under Review: In this appeal defendant challenges the decisions of the district court, the Honorable Charles R. Richey denying defendant's motion for a bifurcated trial, and denying defendant's motion for judgment of acquittal. The district court's rulings are reported at 884 F. Supp. 529 and 884 F.Supp. 577.

C. Related Cases: This case has not been before this court or any other court previously, and appellant is not aware of any related case.

TABLE OF CONTENTS





TABLE OF AUTHORITIES







ISSUES PRESENTED


I. WHETHER THE DISTRICT COURT ERRED IN DENYING DEFENDANT'S MOTION TO BIFURCATE THE TRIAL INTO GUILT AND SANITY PHASES, WHERE DEFENDANT HAD SUBSTANTIAL DEFENSES TO BOTH ASPECTS OF THE CASE, AND WHERE DEFENDANT WAS UNFAIRLY PREJUDICED BY A UNITARY TRIAL?

 

II. WHETHER THE DEFENDANT'S CONDUCT CAME WITHIN THE REACH OF THE ATTEMPTED ASSASSINATION STATUTE, 18 U.S.C.  1751(c), WHERE THE INDIVIDUAL AT WHOM DEFENDANT SHOT WAS NOT THE PRESIDENT?

III. WHETHER THE DISTRICT COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON THE ASSAULT COUNTS, 18 U.S.C.  111, WHERE THERE WAS NO EVIDENCE THAT DEFENDANT SAW OR KNEW OF THE PRESENCE OF THE OFFICERS HE WAS CHARGED WITH ASSAULTING?

STATUTES AND REGULATIONS



The relevant statutes and regulations are reproduced in the addendum to this brief.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



_________________________________________________________________



NO. xx-3096

_________________________________________________________________





BRIEF OF APPELLANT



_________________________________________________________________





UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxxxxxxx, Defendant-Appellant.



_________________________________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________________________________





JURISDICTION



The district court had jurisdiction over the case pursuant to 18 U.S.C. 3231. The notice of appeal having been filed within the ten-day period of Fed. R. Crim. P. 4(b), this court has jurisdiction pursuant to 28 U.S.C.  1291.



STATEMENT OF THE CASE



A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On November 17, 1994, the defendant-appellant, xxxxxxxx, was charged in an eleven-count indictment (APP A-9). (1) A superseding indictment, containing fifteen counts, was filed on December 8, 1994 (APP   ). Before the trial began, the indictment was amended to contain the ten counts on which defendant stood trial. (2) The counts charged: One - attempted murder of the President of the United States, 18 U.S.C.  1751(c); Two through Five - forcible assault on an officer of the United States, 18 U.S.C.  111(a)(1) and (b); (3) Six and Seven - possession of a firearm by a convicted felon, 18 U.S.C.  922(g); (4) Eight - injury and depredation to property of the United States, 18 U.S.C.  1361; Nine - using and carrying a firearm during a crime of violence, 18 U.S.C.  924(c); and Ten - interstate transportation of a firearm, 18 U.S.C. 924(b). A jury trial commenced on March 16, 1995, and on April 4, 1995, the jury found defendant guilty on all counts.

On June 29, 1995, the district court sentenced defendant to a total of forty years in prison. This was composed of a thirty-year term of imprisonment on Count One and a ten-year consecutive term on Count Nine. On all the remaining counts defendant received ten-year imprisonment terms, to run concurrently with each other and with Counts One and Nine. Defendant was also sentenced to a five-year term of supervised release to follow his imprisonment, and a total special assessment of $50 on each count, for a total of $500. The district court issued an opinion explaining the sentencing which is reported at 891 F.Supp. 629. A timely notice of appeal was filed on July 6, 1995 (APP   ).

B. Statement of Facts

1. Introduction

This case was commonly known as the "White House shooting" case. There was no dispute that defendant fired a thirty-round clip of bullets from the fence in front of the White House on October 29, 1994. He was tackled and arrested immediately after doing so, and much of the incident was captured on videotape by people who happened to be in the area. The dispute at trial centered chiefly on whether defendant intended to assassinate the President and on defendant's sanity at the time of the events.

2. Defendant's Background

At the time of the offenses, defendant was a 26-year old man, living in Widefield, Colorado, outside of Colorado Springs. He was married and had a five-year old son. Defendant had worked as the upholsterer at the Broadmoor Hotel since April, 1994. He left work and home on September 30, 1994, AND did not return; his family and friends learned of his whereabouts on October 29, 1994, the day of the shooting.

Defendant was the youngest of six children. He had a different father than the other children, who defendant never knew or met. Raised in poor conditions, defendant's childhood was generally uneventful, although there were suspicions he may have been sexually abused by his mother.

Defendant went into the Army in 1988, and was stationed at Schofield Barracks in Hawaii, working as a medic and ambulance driver. Defendant and his wife met in Hawaii, getting married in May 1989. Their son was born in October, 1989. Defendant began abusing alcohol and using marijuana while in the military.

In 1990, he and another soldier were drunk one night in a bowling alley and got into a fight with some locals. As defendant drove away, he hit a woman with his car and fractured her skull. Defendant pleaded guilty to various offenses at a court-martial and was sentenced on February 15, 1991, to five years imprisonment, which was later reduced to forty-two months in custody. Defendant served his sentence at Fort Leavenworth, Kansas, and was dishonorably discharged. He was released on September 3, 1993, moved to Colorado with his wife and child, and subsequently obtained the job at the Broadmoor.

3. The Evidence

a. The Government's Evidence

The government recounted defendant's activities in preparing for the trip from Colorado to D.C., and during the trip itself. On September 13, 1994, defendant bought, at High Country Firearms in Colorado Springs, the SKS rifle used in the shooting (3/21: 66). Defendant also bought five or six boxes of ammunition, with twenty rounds in each box (3/21: 69). The gun as sold had a wooden stock (3/21: 74). Two days later defendant bought, at Ace Loans in Colorado Springs, a thirty-round clip for the gun and a folding stock, which was put on the gun in the shop (3/21: 90-92).

On September 28, defendant bought a Mossberg shotgun at Wal-Mart in Colorado Springs (3/21: 97). The next day, defendant bought more ammunition at High Country (3/21: 85). The day after that, September 30, defendant's last day at work, he went to High Country to buy a handgun, but it was not sold to him (3/21: 87).

The government traced defendant's route from Colorado to D.C. fairly easily because defendant used his credit card or wrote checks the entire way. Prior to leaving Colorado, defendant had transferred his credit card balance from one card to another and had also increased his credit line (3/20: 143). Defendant went from Colorado through New Mexico, to Texas, staying two nights in San Antonio (3/20: 154). (5) Defendant stayed a night in Dallas, then went through Arkansas and Tennessee, and into Virginia (3/20: 156, 169-70).

On October 10, he bought another thirty-round clip in Charlottesville (3/22: 59). The next day, he bought some clothes, including an all-weather coat that he wore on the day of the shooting (3/22: 62). Defendant said he wanted a large coat to allow him to wear something underneath it (3/22: 62).

Defendant arrived in Washington on October 10, staying at various hotels in the area. The last hotel in which he stayed was the Embassy Suites in Tysons Corner (3/22: 68). He checked out around 5:30 in the morning on the day of the shooting (3/22: 72).

Defendant parked his truck on 17th Street, between D and E Streets (3/20: 14). Defendant appeared on the sidewalk out front of the White House, in a videotape taken by a person driving by about 2:00 p.m., wearing the trenchcoat (3/22: 98). Defendant also took pictures of some tourists, using their cameras, in front of the fence (3/22: 104-05; 114).

xxxxxxx and Brent xxxxxxxx were eighth-graders in a group of schoolchildren on tour from Indiana (3/22: 165). The two, who were excited, ran ahead of the group to the White House fence (3/22: 168). Inside the fence, they saw four or five men dressed in black suits who looked like Secret Service officers (3/22: 169, 183). DeCamp pointed and said to Owens that one of the men looked like the President (3/22: 170). The man had the same hair color and cut, and the same build as the President (3/22: 170). Owens said to DeCamp that it did look like the President (3/22: 184). Almost immediately, defendant, who was about thirteen feet away from DeCamp, started firing (3/22: 171-72). Owens thought it looked like defendant was aiming (3/22: 186). After the firing started, the boys ran away (3/22: 175, 185).

Mark Sofia, a man from New Jersey, was also visiting with his girlfriend and her parents (3/22: 189). Before the shooting started, he saw a woman and four men, wearing dark suits, on the lawn (3/22: 191). Sofia heard someone say "that looks like Bill Clinton" before the shooting started (3/22: 192). Sofia was about fifteen feet from defendant when he started firing (3/22: 189). Norma Klein, the mother of Sofia's girlfriend, also saw the group on the lawn, and had just remarked to her daughter that the people inside the fence were lucky, when the shooting began (3/22: 197).

Dennis Basso, along with three male friends, had taken a tour of the White House, and at the end of the tour they were walking on the sidewalk in front of the west wing, towards the north portico (3/23: 43-44). Karen Anderson, a Presidential aide who led their tour had walked up to the main door to ask permission for the group to take a picture in front (3/22: 205). The Basso group, all wearing suits, waited near some steps leading to a lower level (3/22: 202; 3/23: 45). Anderson was inside to ask permission, when the shooting started (3/22: 207). Dirt was shooting up and leaves were falling from the trees around the group (3/23: 69). The group crouched down as told and was taken down the flight of steps (3/23: 49, 69). A number of the bullets were found near and around the area where the Basso group had been standing (3/22: 120-27). (6)

Four officers of the uniform division of the Secret Service were the subject of Counts Two through Five of the indictment. Henry Tejeda (Count Four) was stationed at the north portico (3/23: 75). Karen Anderson and the Basso tour group were walking, and Anderson came up to ask if they could take a picture, while the four men waited near the steps (3/23: 77). A couple of seconds after Anderson went inside, Tejeda heard gunshots (3/23: 80). The officer inside shut the front door, and Tejeda headed toward the fence (3/23: 81). He took cover behind some columns, and when he went down the steps to the bushes, the shooting had stopped (3/23: 83). A bullet hit the north portico area, but Tejeda did not know if he was already off the porch when it hit, because he did not hear it hit (3/23: 100). (7)

Carl Persons (Count Three) was standing in the doorway of the guard booth at the northwest gate when he heard the shooting (3/22: 133-34). He ran out and saw the barrel of the gun through the fence bouncing up and down from being fired and sweeping from left to right (3/22: 136). The barrel of the gun was hopping all over the place (3/22: 152). At one point Persons stopped or he would have run through the line of fire (3/22: 136). Persons never saw defendant look at Persons (3/22: 159).

When the gun barrel was removed from the fence Persons finally had a clear view of defendant and was squeezing the trigger to shoot him when a man jumped on defendant (3/22: 138). Persons then jumped over the fence and helped subdue defendant (3/22: 139). Defendant's gun was on a sling, which was around defendant's shoulder under his coat (3/22: 141). The sling had to be cut (3/22: 141). While defendant was lying on the ground he said to the officers, "I wish you would have shot me" (3/22: 161).

Harry Wilson (Count Two) was at a post on the north grounds between the east wing and the main house (3/23: 134). He jumped up and ran toward the fence (3/23: 134). The shooting lasted a total of ten to fifteen seconds, and by the time Wilson got to a tree, defendant had been tackled (3/23: 135). Wilson also jumped the fence to aid in arresting defendant (3/23: 137). Wilson could not see the barrel of the rifle, and he did not know if any shots came near him or were aimed at him (3/23: 140).

Gary Coffey (Count Five) was inside the northwest gate booth, where Persons was standing in the doorway (3/23: 143). He ran out after Persons, and at one point saw the barrel of the gun aimed in his direction (3/23: 144). He could see the muzzle flashes as the gun fired (3/23: 145). He took cover behind a tree, and when the barrel came out of the fence he continued on, eventually going out the northeast gate, after Persons and Wilson jumped the fence (3/23: 148-50).

Two people who worked at the Broadmoor testified that defendant had expressed a desire to kill the President. David xxxx met defendant on defendant's first day at work and became friendly with him (3/21: 11-12). They smoked marijuana, which xxxxs obtained from a neighbor, at xxx's house two to three times a week, and often discussed politics and government (3/21: 13). Defendant hated taxes and the government and talked about killing the President (3/21: 14). On defendant's last day at work, they went to xxxxx's house at lunch, smoked marijuana and talked about defendant going to "take out" the President (3/21: 17). Defendant stated "it's time" and "it's my duty" (3/21: 17). Defendant said he was going to New York to do it (3/21: 48). Defendant thought he would be killed, but if he got away he would have to go to Mexico (3/21: 17-18). Before leaving, defendant gave his business card to xxxxxxxx, on the back of which the defendant had written, "Time to take our country back" (3/21: 18).

The day after the shooting, Millis went to the police and told them his story (3/21: 19). The day after that, Millis began calling TV stations and shows, solely for the money, to sell his story to the highest bidder (3/21: 29, 31). He signed a contract on November 1, 1994, three days after the shooting, with the show "Current Affair," which, in exchange for $5,000, specifically required Millis to say defendant intended to kill the President (3/27: 93-94).

In addition to getting the marijuana he smoked with defendant, Millis also obtained marijuana for other people who came to his house to smoke marijuana, two to four times a week (3/21: 49). While Millis was willing to testify about his marijuana use during the time he knew defendant, Millis claimed a Fifth Amendment privilege with respect to his use from September 29 to the day of trial (3/20: 100). The district court upheld the privilege and denied defendant's various requests to question Millis about the topic, in an opinion which is reported at 884 F.Supp. 573. Later in his testimony, Millis claimed not to remember a conversation with defense counsel and his investigator, that took place at Millis's house (3/21: 40). Again, defendant requested permission to ask about Millis's marijuana use, arguing that the reason he could not remember the conversation was because he was under the influence of marijuana at the time (3/21: 40-42). Again, the district court denied the request (3/21: 42).

Stacy Stallwood was the other employee who claimed she heard defendant express a desire to kill the President. Stallwood remembered telling defense counsel and his investigator that Millis had a reputation for not telling the truth (3/27: 104).

Stallwood talked politics or sex with the defendant on a number of occasions, either during breaks or at lunch in the "break room" at work (3/20: 192). Defendant would sometimes get loud and angry, and when she told him she voted for Clinton, defendant said he would kill Clinton if he got the chance and Bush, too (3/20: 193). Defendant told her at least a dozen times that, if he got the chance, he would kill Clinton (3/20: 195). Stallwood claimed that Millis had overheard defendant's remarks about Clinton in the break room (3/20: 201-02), but Millis testified he never heard defendant talk about killing the President in the break room (3/21: 43).

Lisa Taylor, a seamstress at the Broadmoor, also testified about some of defendant's statements. He gave her a ride to town in his truck one day. Rush Limbaugh was on the radio talking about guns, and defendant showed her a gun in the back seat of the truck (3/21: 58). Defendant told Taylor that "you guys had your revolution, now it is time that we have ours" (3/21: 58). Defendant was opposed to gun control and the Clinton administration, and said, "I am God. I am my own God" (3/21: 59). Defendant never said anything about killing the President to Taylor (3/21: 63).

After his arrest, defendant's wallet was taken from him. In the wallet was a piece of folded paper with the words, "Hey, Secret Service" written on the outside (3/21: 180). Inside, the paper had on it defendant's name and address, and a request to send defendant's truck to his wife and son (3/21: 180).

The defendant's truck was searched after his arrest. In the truck was the Mossberg rifle, and numerous boxes of ammunition (3/22: 12-15). There were also several items on which defendant had written various things. Included on a list on a piece of paper was the notation, "Camera crew plus agent need to be taken care of" (3/22: 7). In a letter about his religion, defendant wrote, "What other time, besides killing someone, are we at out best?" (3/22: 7-8). A sentence from another letter read, "Can you imagine a higher moral calling than to destroy someone's dreams with one bullet" (3/22: 10). There was a note entitled "Last will and words" (3/22: 8), and an order blank for a book called "Hit Man" (3/22: 10). In a road atlas, on the map of Virginia, defendant had written:

You government agents know what's going on. You too feel you are Gods. So did the Pres HA! HA! How many have you killed?

Kill the Pres! We are all "Man!" Both God and Devil, 666. Man's number. Man is all he creates. Man's planet, man is all.

(3/22: 11). There was also the cover of a Spanish phone book, that had a picture of the President, surrounded by dignitaries, signing the NAFTA treaty (3/23: 73). A circle had been drawn around the President's head, with an "X" through it (3/23: 74). This phone book was the same as the ones in every room at the hotel where defendant stayed in San Antonio (3/21: 52-53).

Also in the truck were books about astral projection and astral travel, dealing with leaving one's body and out-of-body experiences (3/22: 22-23). There was a box containing twenty-two atropine injectors and two prazidoxime chloride injectors, which are used as antidotes to nerve gas (3/22: 25-26).

Defendant's house and office at the Broadmoor were also searched. Defendant had left a note in his office saying "See ya. Wouldn't want to be ya" (3/21: 115). There was a Sears business card, on the back of which defendant had written "Kill all government offices and department heads" (3/21: 122). Various other pieces of anti-government literature were found in the office, including a newspaper with a picture of an upside-down flag, and a slip of paper with a notation that Senator Dennis DeConcini was an "Arizona Democrat who sits on a subcommittee that oversees the Secret Service" (3/21: 121; 105).

Among the papers found at defendant's house were some letters about anarchy, and a piece of paper with phone numbers for the White House on it, as well as a notation, "Vince Foster investigation" (3/21: 137). There was a flag hanging upside-down in defendant's garage (3/21: 127). An upside-down flag is a sign of distress (3/21: 124).

Defendant had also given a Broadmoor employee who had asked about some upholstery work, a business card on the back of which defendant had written, "Death to all government officials" (3/21: 115); 139-40). When the person asked about the writing, defendant said to pay no attention to it (3/21: 140).

Defendant had written and mailed letters to his wife and son in the days before the shooting. They were turned over to the FBI by defendant's brother-in-law (3/23: 115). In one letter titled "To Whom It May Concern" defendant wrote:

I also take full responsibility for all my actions and abuse of my credit cards and checks. ... The revolution starts today. Because of the fucking government....

(3/23: 117). In his letter to his son, defendant wrote:

Alex F. xxxxxxxx.

I love you! Please understand that I have always loved you and always will. You are a super special little man. You will be one of the greatest men on this world. Your mother is strong and will give you the greatest gift any one can give you, her undying love, Forever. Take care of your mother, and love her forever.

Son, my actions that lead to my death (my release) is for my Country and for you and the rest of the children of our great country in this U.S. of A. Be proud of who you are and you will go far. I love you son and will always. Please remember that.

Two tourists had taken videotapes of the shooting, which were played for the jury. Jerome Agan was sitting on the concrete ledge in front of the fence (3/20: 112). When the shooting started, he jumped up and began filming when he realized defendant was not shooting at the crowd on the sidewalk (3/20: 112-13). Agan did not see the President or anyone who looked like him on the lawn, nor did Agan hear anyone say anything about seeing the President or anyone who looked like him (3/20: 121).

Kris Vonkaler was driving a car slowly by with the windows down, while his uncle filmed from the passenger seat (3/20: 123). He saw defendant fumble with something, and then the shooting started (3/20: 124). He did not see anyone or anything on the lawn (3/20: 131-32).

b. Defendant's Case

Defendant called as witnesses several other tourists who were there at the time of the shooting. Jonathan Bloom was there with his wife, sister-in-law, and two young boys (3/24: 47). Bloom was pushing one of his sons in a stroller toward defendant at the time the shooting started (3/24: 51). Bloom was specifically looking all around the White House grounds to see if anyone was out there, and he saw no one before the shooting started (3/24: 57-58). Bloom saw defendant bring the gun up from under his trenchcoat (3/24: 53). Defendant was not aiming the gun, and was firing it haphazardly, not deliberately pointing it (3/24: 53, 99). Bloom, who was pretty close to defendant, froze when the shooting started, then started running, pushing the stroller (3/24: 55, 61).

Mary Bomber, Bloom's sister-in-law, was sitting on the ledge in front of the fence (3/24: 106). She was between Robert DeCamp and the defendant, and heard no reference to the President (3/24: 107). She also testified that no one was on the lawn or the grounds (3/24: 106-07).

Shirley Agan, the wife of Jerome Agan, who took one of the videotapes, also did not hear any conversation about the President (3/24: 113). Charles Goodwin and his daughter Robin were farther away from the area, but they saw the shooting as they walked up the sidewalk (3/24: 119, 126). They were looking at the north portico and neither one of them saw anyone there before the shooting started (3/24: 120, 126).

Defendant also called as witnesses several people with whom defendant was in the Army in Hawaii and with whom he worked at the Broadmoor. Ronald Beatty was defendant's first platoon sergeant in 1988 (3/27: 12). He described defendant as a very dedicated soldier who took pride in what he did, and who never said anything negative about the government (3/27: 14). Manuel Flores was the platoon sergeant from March 1989 to 1991, after Beatty (3/27: 36). He described defendant as a very good man, who never said anything about hurting the President or the government (3/27: 38). Pete Martinez was also in the unit, and again never heard defendant talk of revolution or killing the President (3/27: 71). Defendant baby-sat for Martinez's children (3/27: 73). All these witnesses knew of defendant's dishonorable discharge.

Christine Hemming and Denise Phillips worked in the same building with defendant at the Broadmoor. Both of them saw defendant every day and talked with him frequently, both in the office and the break room (3/27: 84, 87). Defendant never said anything about revolution or anarchy or killing the President (3/27: 83, 88). Defendant did talk about his family, and Hemming and Phillips had met defendant's wife, Ingrid, and son, Alex, at an office picnic (3/27: 82-83, 88).

Perry Reeves was a furniture refinisher at the Broadmoor, and a friend of defendant (3/24: 130). They met every morning in the break room before work, and at the break, and three or more times a week for lunch (3/24: 131-32). They drove away together at the end of the day in their cars (3/24: 133). Reeves never saw defendant leave with Millis (3/24: 133). Although Stallwood had testified that defendant had only been to her house once, and that she had never told anyone anything different (3/20: 205), Reeves testified that Stallwood told him defendant had been to her house several times (3/24: 141). Defendant had brought up wife-swapping once with Reeves (3/24: 144). "See ya, wouldn't want to be ya," was something defendant said all the time, whenever he left somewhere (3/24: 137).

Wayne Warner, defendant's father-in-law from Hawaii, also testified. Warner had served for twenty years in the Navy and then become a civilian employee of the Navy (3/27: 50). Warner met defendant in 1988 when he was dating Ingrid (3/27: 52). At that time, defendant never said anything unusual about the government (3/27: 54).

Warner testified about defendant's conviction for drunken driving and assault by hitting the woman with the car (3/27: 57-58). Warner saw defendant at his home in April 1994, and defendant was upset about the court-martial and discharge (3/27: 61). Defendant said the government was messed up and needed to be fixed (3/27: 60). Warner saw the upside-down flag, which he felt was a cry for help (3/27: 55).

Defendant recalled Stacy Stallwood to impeach David Millis by asking her about Millis's reputation for truthfulness (3/27: 104). Despite the very limited questioning on direct, the district court, over defendant's objection, allowed the government to elicit from Stallwood that she learned from the address in a magazine defendant had given her that he had been in prison in Ft. Leavenworth (3/27: 106, 107).

During the government's case, defendant had established on cross-examination of Stephen Schenck, the Secret Service supervisory agent for protective intelligence investigations, that the President was in D.C. for all or part of each day from October 10 to October 22 (3/22: 221-30). When the President left town on parts of some of those days, it was always by helicopter from the south lawn or the reflecting pool (3/22: 231). The President also jogged several times a week (3/22: 232).

Robert Taubert, an expert in the operation, accuracy, and use of weapons, also testified for the defense (3/27: 114). He had been a supervisory FBI agent and a program manager for firearms for a field SWAT team (3/27: 113). He testified that the SKS is not very accurate, that moving the weapon back and forth results in minimal accuracy, and that firing shots rapidly also reduces accuracy because the gun jerks and does not return from the recoil (3/27: 117, 120-21). If the stock had been folded when defendant shot, the gun would have been even less accurate (3/27: 129). On the video tape, as defendant moved laterally, it appeared he was retreating, trying to break contact from something (3/27: 130).

c. The Psychiatric Testimony

Defendant then put on two psychiatrists and one psychologist as part of an insanity defense. The government presented the same number of experts to rebut the defense.

Neil Blumberg, the first defense psychiatrist, recounted at length defendant's background. In addition to the family history recounted above, Dr. Blumberg reviewed an incident where, when when under the influence of marijuana, as a juvenile, defendant and a friend stole a Bobcat tractor and drove it around, and another incident where defendant was with a group drinking when a fight took place (3/27: 185). Defendant had also propositioned a policewoman posing as a prostitute (3/27: 185). Defendant also occasionally broke into lockers in school and stole radios out of cars (3/27: 177). Dr. Blumberg also went over defendant's military conviction and sentence (3/27: 180). On the day defendant was released from that sentence, one of his brothers died (3/27: 186).

After starting the job at the Broadmoor, defendant was up in the mountains one day when he had a psychotic vision of seeing a shape like an embryo and hearing a voice communicating with him telepathically (3/27: 188). Defendant in his mind saw a gas or mist controlling people's minds and a picture of the mist over the White House (3/27: 189). Defendant felt special, but did not tell anyone because they would think he was crazy (3/27: 190). Defendant had six such experiences of the vision (3/27: 198).

On September 12, 1994, a plane crashed into the White House, which showed defendant the mist was guarding against attackers (3/27: 199). The next day defendant bought the SKS rifle (3/27: 199). It was not clear to defendant what he would be doing, but then the voice was telling him to go to D.C., where "the host will be destroyed" (3/27: 200). Defendant thought he was the host and would die in the mission (3/27: 201).

After arriving in Washington, defendant went to the White House regularly, looking for the mist (3/27: 204). The night before the shooting, on the bottom of the TV screen in his hotel room, a message came that "tomorrow will be the day, action must be taken" (3/27: 205). Defendant went to the White House early the next day, prepared to kill the mist and knowing he would be killed (3/27: 207). The nerve gas antidotes were for the mist (3/27: 202). When defendant saw the mist above the oval office he began firing; the mist came toward him so he ran, and after he was tackled it was gone (3/27: 210).

Dr. Blumberg believed the letters and writings about killing the President were based on defendant's delusional beliefs (3127: 204). The letter about taking responsibility showed defendant saw it as his duty, and would not have been written by someone trying to fake insanity (3/27: 206).

Dr. Blumberg diagnosed defendant as suffering from paranoid schizophrenia, a severe mental disease, and cannabis abuse and a personality disorder, not otherwise specified (3/27: 163). Dr. Blumberg saw defendant six times for a total of over fifteen hours (3/27: 158-59). Defendant was not faking (3/27: 216). Over the years Dr. Blumberg had developed a list of fifteen factors to determine if someone was faking, and all fifteen showed that defendant was psychotic and not faking (3/27: 216). Dr. Blumberg believed the onset of the disease was in 1992, and the active psychotic symptoms began in April 1994, at the time of the first vision (3/27: 218).

Dr. Jonas Rappeport, who saw defendant twice for a little over eight hours total, was defendant's other psychiatrist (3/29: 16). Dr. Rappeport reached the same diagnosis as Dr. Blumberg, and found no major inconsistencies in defendant's recitations of the events (3/29: 17). Defendant believed he was a sentry who needed to save the world from the mist over the White House which was controlling the President (3/29: 20, 25). Defendant talked about revolution as a cover to hide the hallucinations (3/29: 28).

On cross-examination, Dr. Rappeport discussed what defendant had said in their sessions. Defendant admitted using marijuana with Millis two to three times a week and discussing revolution (3/29: 45-46). Defendant described himself as an anarchist opposed to the government, who felt that the military system had no ethics (3/29: 43). Defendant described himself as perverted and hateful, and he wanted to talk about killing people in a way that might horrify others (3/29: 44). Defendant said that he wanted to experience with his hands privately and intimately killing Clinton, and that it would be personal and joyous (3/29: 45). Dr. Rappeport described this as more fantasy than desire (3/29: 45). Defendant told Dr. Rappeport that defendant was not trying to kill the President, because the point was not the President, but the mist controlling things (3/29: 53).

Dr. David Schretlen, who had written a dozen papers on malingering, or faking, was defendant's psychologist (3/28: 44). He saw defendant three times for a total of fourteen to fifteen hours (3/28: 52). He administered seventeen psychological tests to defendant, all of which agreed with his diagnosis of paranoid schizophrenia (3/28: 56-57). This diagnosis was also consistent with the results of a test defendant had taken in 1991, while imprisoned at Ft. Leavenworth (3/28: 72-73).

Dr. Schretlen sent two of the tests to be scored by the leading experts in the field, without revealing who had taken the tests (3/28: 91, 103). One expert felt that defendant was even sicker than he was diagnosed by Dr. Schretlen, and the other expert agreed with Dr. Schretlen's conclusions (3/28: 93, 103). The tests showed no signs of malingering (3/28: 102-05).

Dr. Raymond Patterson, one of the government's psychiatrists saw defendant twice, for a total of three hours (3/28: 214). He thought that defendant was malingering and had a personality disorder with cannabis and alcohol abuse (3/28: 190). Defendant had no history of psychiatric illness and did not mention the visions to his friends (3/28: 193). Defendant gave inconsistent versions of the visions, told different stories about the voices, and could not identify them as male or female (3/28: 191-92, 200). Dr. Patterson saw no deterioration in defendant's functioning, as he continued to work and started his own business (3/28: 199). In addition, defendant shot when someone who looked like the President was on the grounds (3/28: 200). Dr. Patterson did not believe defendant suffered from hallucinations or delusions (3/28: 198). Dr. Patterson disagreed with defendant's experts, but was not saying they were wrong, as reasonable psychiatrists differ (3/28: 243).

Dr. Robert Phillips, the government's other psychiatrist, also stated that defendant did not suffer from mental illness, although he did have some bizarre and strange ideas (3/29: 131). Dr. Phillips saw defendant twice for a total of eight hours, and felt that his story changed in a number of ways (3/29: 135). Dr. Phillips also diagnosed defendant as having a personality disorder, both antisocial and narcissistic (3/29: 136). The inconsistencies in the story, such as the number of visions, and the message on the TV screen, were more consistent with someone attempting to appear mentally ill (3/29: 145). Dr. Phillips described defendant as a "wannabe," or someone who wants to be famous and remembered (3/29: 151). Dr. Phillips, however, did not question that defendant believed in the visions he had (3/29: 156).

Dr. Phillips described in detail a fantasy defendant related about killing the President (3/29: 149-150). Defendant described the President as strapped to a circular wall spinning around with the First Lady in front of him. Defendant pictured himself cutting her chest open with a knife, separating it with a surgical retractor, pulling her heart out with his hand, then chopping off her head and holding it while eating her heart, in front of the President. Defendant fantasized then doing the same thing to the President and then separating Tipper's (8) body by yanking pieces off with his bare hands.

Dr. Phillips noted that defendant had no treatment before coming to D.C. or while in jail, yet there was no evidence of disturbance of his mood or conduct while in jail (3/29: 146). While defendant's beliefs were eccentric, they were not delusional, and were partly the way he exaggerated things to fit his own purpose (3/29: 143).

The government's psychologist was Dr. Kirk Heilbrun. He interviewed defendant for five hours on one occasion, and administered one test (3/29: 64). Dr. Heilbrun's diagnosis was an anti-social personality disorder and a narcissistic personality disorder (3/29: 65). He described these as being a failure to respect the rights of others and a need for excessive amounts of attention (3/29: 65). Dr. Heilbrun believed one of the tests administered by Dr. Schretlen was not valid, and that defendant's answers on another test were selective in that they reported symptoms of mental illness that would be obvious to someone trying to give the impression they were mentally ill (3/29: 70-71, 74). Dr. Heilbrun felt defendant had given different versions of what flashed across the TV screen the night before the shooting (3/29: 80). If defendant was reliably reporting his delusions and hallucinations, then he was having psychotic symptoms, but Dr. Heilbrun did not think defendant did reliably report the symptoms (3/29: 76-78).

d. Legal Issues

1.) Evidentiary Motions

Among the number of pretrial motions filed in the case, was defendant's motion regarding the felon-in-possession counts, in light of this court's decision in United States v. Dockery, 955 F.2d 50, 55 (D.C. Cir. 1992). Defendant moved for various procedures to avoid having the jury learn of defendant's prior convictions. The district court decided that the felon-in-possession counts would be bifurcated so that the jury would not learn of the prior conviction. The jury would consider the question of possession of a firearm that had travelled in interstate commerce, and if the jury found defendant had possessed the firearms, the court would decide after the verdict the element of the prior conviction.

Before trial, the government filed a motion to admit several items of evidence under Fed.R.Evid. 404(b). The government wanted to bring out defendant's prior military convictions, the resulting incarceration, denials of parole issued to defendant, and his failure to obtain an upgrade of his dishonorable discharge. The government also wished to introduce evidence of defendant's efforts to obtain authorization from the State of New Mexico to possess a firearm. In addition, the government desired to put in evidence defendant's purchases and attempts to purchase various guns, and false statements defendant made on forms in connection with those purchases, in which he indicated he did not have a prior conviction. The government's theory essentially was that defendant was angry with the way he had been treated, which was a large part of his motive for wanting to kill the President. The false statements on the firearms forms were alleged to somehow show his intent to commit the charged offenses.

The district court, in an opinion reported at 884 F.Supp. 558, found that while these pieces of evidence had some probative value, Fed.R.Evid. 403 precluded their admission. The district court stated:

In any event, the Court cannot find that such evidence is highly probative of the issues of intent or motive. Rather, the jury could easily infer from such evidence that the Defendant is a bad person with criminal propensities, and improperly convict on that basis.

Id. at 562. The district court also found that admitting evidence relating to the prior conviction would nullify its ruling under Dockery on the felon-in-possession counts. Id. at 561.

2.) The Bifurcation Motion

Before trial, defendant also asked the district court to bifurcate the trial -- to hold a guilt phase, to be followed immediately by the sanity phase, depending upon the jury's verdict in the guilt phase. (9) Defendant's primary concern was the problem with introducing evidence in support of the insanity defense that would prejudice defendant in the merits phase (2/27: 3). Many of the materials the doctors would review to reach their opinions would be inadmissible at the guilt phase (2/27: 8). Defendant also noted that under the insanity statute, defendant had the burden of proof on the issue of sanity by clear and convincing evidence, and that the differing burdens of proof would be confusing in a unitary proceeding (2/27: 10).

Defendant argued that he had substantial defenses to the attempted assassination counts and the assault counts (2/27: 18). A bifurcated trial might in fact have even saved time depending on the verdict in the guilt phase (2/27: 13).

The district court denied the bifurcated trial motion on March 10, 1994, issuing an opinion reported at 884 F.Supp. 529. The district court found that defendant had neither a substantial defense on the merits nor a substantial insanity defense, and that defendant would not be prejudiced by a unitary trial.

After denying the motion, the district court wanted to know what to say in its preliminary remarks to the jury about what defense would be asserted (3/10: 23-24). Defendant explained that a decision would not be made until later, thus demonstrating another problem caused by the failure to bifurcate (3/10: 24). Several days later, the district court again pressured defendant to reveal his defense for purposes of preliminary jury instructions (3/15: 42). Defendant again noted the problems in that regard caused by the unitary trial (3/15: 43).

During the trial, problems related to the failure to bifurcate arose -- particularly problems concerning the prior conviction and whether there could be reference to it if the doctors testified (3/24: 30, 36-37). The district court had, of course, previously ruled the prior conviction, and other evidence associated with it, inadmissible because of the substantial prejudice defendant would suffer from it. At a special hearing with Dr. Phillips before the psychiatric testimony, the district court explored whether the doctors could testify without referring to the prior conviction. While Dr. Phillips indicated he could not do so, the district curt indicated it would still exclude mention of the prior conviction, unless defendant opened the door (3/24: 11-13, 16-17, 20). (10)

The defendant and the government subsequently reached an agreement that testimony about defendant's military service could come in and that evidence of the dishonorable discharge could be admitted without reference to the reasons for it (3/27: 4). While the district court thought reference to the military service would open the door to the prior conviction, the government agreed it would not (3/27: 6). After the direct testimony of Sergeant Beatty, the first witness with whom the defendant had been in the military, the government tried to violate this agreement by seeking to inquire about the prior conviction on cross-examination, but the district court wold not allow it, again ruling that the prior conviction was too prejudicial (3/27: 22). During its cross-examination of Sergeant Beatty, the government again tried to violate the agreement and elicit the conviction, but again the district court would not allow it (3/27: 24-32).

The prior conviction did come out during the testimony of Wayne Warner, after he referred to it during his direct testimony (3/27: 57-58). The district court then allowed Stacy Stallwood to refer to it, as discussed above. The doctors also referred to it, as well as a number of other acts of defendant that would have been inadmissible at the guilt phase.

3.) Judgment of Acquittal Motions

The district court denied defendant's motion for judgment of acquittal at the close of the government's case (3/24: 28). While the motion was made with respect to all the counts, the argument centered on the attempted assassination count. Defendant contended that, assuming Dennis Basso was the person at whom defendant shot, defendant could not be guilty of attempted assassination of the President because Dennis Basso was not the President. In addition, defendant argued he could not be guilty of the assault counts because there was no evidence he saw or even knew that any of the four Secret Service officers were there.

At the conclusion of the defense case, defendant renewed his motion for judgment of acquittal, upon which the district court reserved ruling (3/29: 59). Subsequently, the district court issued an opinion denying the judgment of acquittal motion, which is reported at 884 F.Supp. 577. The district court characterized defendant's argument as being one of impossibility, and rejected such a claim as a defense to an attempt charge. Id. at 582. The district court also found that, because assault was a general intent crime, the government did not have to prove defendant saw the officers. Id. at 583-84.

At the conference to settle the jury instructions, defendant objected to assault being defined as a general intent crime. In addition, defendant contended that the other methods of violating  111, such as by resisting, opposing, impeding, intimidating, or interfering, required a specific intent (4/2: 28-29). Defendant objected to the instructions not covering the situation in which if defendant did not know the officers were on the lawn, and that not allowing for this would turn assault on a federal officer into a strict liability offense (3/29: 34, 39).



SUMMARY OF ARGUMENT

The district court should have bifurcated the trial into separate guilt and sanity phases. Defendant presented a substantial defense on the merits and a substantial defense on the insanity issue. Defendant was unfairly prejudiced as a result of the refusal to bifurcate, because extremely prejudicial evidence that would have been inadmissible at the guilt phase of a bifurcated trial was presented to the jury. This included particularly evidence about defendant's prior convictions and statements defendant made to the psychiatrists and psychologists, as well as other evidence. The district court's behavior during the testimony of the expert witnesses made the situation worse. Because defendant did not receive a fair trial due to the failure to bifurcate, a new trial should be granted.

In addition, defendant's conduct did not fall within the jurisdiction of 18 U.S.C.  1751(c), the attempted assassination statute. Assuming that defendant shot at Dennis Basso attempting to kill him, he is not one of the individuals listed in  1751(c), which is necessary for the invocation of federal jurisdiction.

Furthermore, the assault counts, 18 U.S.C. 111 should be reversed because there was no evidence presented that defendant saw or knew the Secret Service officers were on the grounds.

I. THE DISTRICT COURT ERRED BY FAILING TO BIFURCATE THE TRIAL, WHICH RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT

A. Standard of Review

The decision whether to bifurcate a trial where an insanity defense is raised is reviewed for abuse of discretion. United States v. Greene, 489 F.2d 1145, 1157 (D.C. Cir. 1973), cert. denied, 419 U.S. 977 (1974).

B. The Merits

This court has repeatedly has recognized the desirability of bifurcating criminal trials into separate hearings on the issues of guilt and insanity. See, e.g., United States v. Taylor, 510 F.2d 1283, 1289 (D.C. Cir. 1975); United States v. Greene, 489 F.2d 1145, 1157 (D.C. Cir. 1973); United States v. Green, 463 F.2d at 1314-15; Holmes v. United States, 363 F.2d 281, 283 (D.C. Cir. 1966).

Bifurcation is the sounder, preferable approach for at least four reasons. First, and perhaps most important in the present case, bifurcation diminishes prejudice to the defendant from attempting to intermingle an insanity defense with a defense on the merits. In Holmes v. United States, then-Chief Judge Bazelon declared:

[t]his Court has recognized that substantial prejudice may result from the simultaneous trial on the pleas of insanity and "not guilty." The former requires testimony that the crime charged was the product of the accused's mental illness. Ordinarily, this testimony will tend to make the jury believe that he did the act. Also, evidence of past anti-social behavior and present anti-social propensities, which tend to support a defense of insanity, is highly prejudicial with respect to other defenses. Moreover, evidence that the defendant has a dangerous mental illness invites the jury to resolve doubts concerning the commission of the act by finding him not guilty by reason of insanity, instead of acquitting him, so as to assure his confinement in a mental hospital.

Id. at 282; see also United States v. Green, 463 F.2d at 1315 (trial judge properly bifurcated trial when substantial prejudice would have resulted from presentation of evidence on defendant's mental illness during simultaneous trial on guilt and insanity).

Second, bifurcation avoids the juror confusion inherent when a defendant combines an insanity defense and a plea of not guilty. See Holmes v. United States, 363 F.2d at 282. Absent bifurcation, jurors must struggle in a unitary proceeding to determine whether the prosecution has proved beyond a reasonable doubt that the accused committed any of the charged offenses, while in the same proceeding trying to determine whether the accused has proved by clear and convincing evidence that he was insane at the time he committed any of the offenses for which the prosecution has proved guilt beyond a reasonable doubt. The tension between what the prosecution must prove and what the defense must prove, what burden of proof each side bears, and the order of proof for each issue is confusing. See United States v. Greene, 489 F.2d at 1157 ("obvious way to avoid confusion in instructing a jury on the standard of proof required of one interposing insanity as a defense . . . is to bifurcate the insanity defense").

These issues are especially problematic after passage of the Insanity Defense Reform Act, Pub. L. 98-473, Title II, 402(a), October 12, 1984, which requires the defense to prove insanity by clear and convincing evidence. See 18 U.S.C. 17(b). By contrast, the jury in a bifurcated trial first decides whether or not the prosecution has proved beyond a reasonable doubt that the defendant committed the charged offenses. If the jury finds the defendant guilty of any charged offense, the jury in the mental responsibility phase then decides whether the defendant has proved insanity by clear and convincing evidence. Separate phases of the trial assist the jury in distinguishing between the factual elements of the case and the insanity defense. See United States v. Taylor, 510 F.2d at 1289.

Third, bifurcation avoids issues that otherwise are present if, during the course of a psychiatric evaluation, the accused made statements to an examining psychiatrist suggesting that he committed the charged offenses. Grave issues are implicated if such statements are admitted during a unitary proceeding. See United States v. Bennett, 460 F.2d 872, 878-81 (D.C. Cir. 1972). A bifurcated trial protects defendants asserting an insanity defense from such disclosures during the guilt phase. Id. at 880-81.

Fourth, a bifurcated trial avoids "impediments to full disclosure and presentation." See Holmes v. United States, 363 F.2d at 283 n.7. Absent bifurcation, "defense counsel may be deterred by the threat of prejudice from eliciting at trial information relevant to sanity from psychiatric witnesses or from the accused." Id. Further, the defendant may fear giving examining psychiatrists "information relevant to his mental condition but which supports [a] belief that he committed the offense." Id. In a bifurcated trial, neither the prosecution nor the defense is hindered during the second, mental responsibility phase of a bifurcated trial in presenting a full and accurate picture of the accused's mental condition at the time of the offense.

In deciding whether to bifurcate, a sound exercise of the trial court's discretion should result in bifurcation whenever "a defendant shows that he has a substantial insanity defense and a substantial defense on the merits to any element of the charge, either of which would be prejudiced by simultaneous presentation with the other." Contee v. United States, 410 F.2d 249, 250 (D.C. Cir. 1969); see also Holmes v. United States, 363 F.2d at 283. Whenever there is any doubt, the trial court should resolve it in favor of bifurcation. Id. Once a trial court decides to bifurcate, the presiding judge has discretion

in prescribing its procedure, the form of the charge and submission of the questions to the jury, the admissibility of evidence in each stage, and even the impaneling of a second jury to hear the second stage if this appears necessary to eliminate prejudice.

Holmes v. United States, 363 F.2d at 283.

While this Court apparently has not been called upon to address the question of bifurcation since Congress passed the Insanity Defense Reform Act, courts have continued to bifurcate trials when there is a possibility that a unitary proceeding will prejudice the defendant. See, e.g., United States v. Marble, 940 F.2d 1543, 1544 (D.C. Cir. 1991) (because defendant had not decided whether or not to plead insanity, court bifurcated the trial); DeVine v. Solem, 815 F.2d 1205, 1207 (8th Cir. 1987) (bifurcated proceeding to determine sanity and guilt is preferable to unitary proceeding); Lucas v. United States, 497 A.2d 1070, 1072-75 (D.C. 1985) (impeachment of government witness can constitute a substantial defense on merits requiring bifurcation), cert. denied, 475 U.S. 1111 (1986). (11)

The problems with a unitary trial proved all too real in the present case. (12) Defendant was compelled to present witnesses and evidence in support of the insanity defense that never would have been presented or admissible at the guilt phase. The doctors referred repeatedly to the prior conviction, which the district court had ruled inadmissible as too prejudicial and to defendant's statements, which would have been inadmissible at a separate guilt phase under Fed.R.Crim. P.12.2(c). The district court had recognized the extreme unfair prejudice caused by the jury hearing about the prior conviction in severing the felon-in-possession counts and in denying the government's Rule 404(b) motion, yet the failure to grant the bifurcation motion ensured the jury would hear the evidence.

The government cross-examined Dr. Rappeport in great detail about defendant's statements about wanting to kill the President, about defendant's description of himself, and about defendant's relationship with Stallwood and Millis. That was not to establish defendant's sanity, but to bolster the government's evidence of guilt.

The government also elicited from Dr. Phillips a gruesome and graphic description of defendant's fantasy about killing the President and the First Lady. This testimony made "the jury believe he did the act," and the testimony about defendant's anti-social characteristics was "highly prejudicial" to his defense on the merits. Holmes v. United States, 363 F.2d at 282; see also United States v. Green, 463 F.2d at 1315. The government, in the rebuttal portion of its closing argument, emphasized the testimony about the prior conviction and defendant's statements (4/3: 116-17; 126-27; 140-43).

The prejudice from the denial of lack of a bifurcated trial was further exacerbated by the district court's conduct toward the doctors. The district court displayed favoritism toward the government doctors, while displaying a negative attitude toward the defense doctors in front of the jury. Dr. Blumberg was the first doctor to testify, and he therefore needed to explain the facts in detail. Yet the district court interrupted the direct examination saying, "Let's try to speed this up, so that we get all the information we need" (3/27: 198). Later in Dr. Blumberg's testimony, the district court stated:

The diagnosis of schizophrenia, the paranoid type, as I take it from Mr. Kramer's answers and your questions are basically subjective then?

(3/27: 219). When the doctor answered no, the district court persisted in trying to cast doubt upon the reliability of the diagnosis (3/27: 219). The district court also asked him whether psychiatry was an inexact science (3/27: 262). Finally, near the end of Dr. Blumberg's testimony, the district court asked him whether he was testifying as a psychiatrist or a medical doctor (3/28: 19). Dr. Blumberg tried to point out that the two cannot be separated, but the district court continued to try to do so, and again wrongly attempted to call the doctor's diagnosis purely subjective (3/28: 20-21).

During Dr. Schretlen's testimony, the district court emphasized that hallucinations had to be "inferred," because the doctor could not "learn [it] objectively or see it with your eyes or hear it with your ears as a doctor" (3/28: 58). The district court pointed out to Dr. Schretlen that "there is nothing shown to indicate [the defendant's] lack of capacity with respect to the MRI alone" (3/28: 55). The district court also asked Dr. Schretlen:

In other words, somebody can go to the National Library of Medicine in Bethesda and pull down all the literature on schizophrenia and do a pretty good job of faking those tests. Is that right?

(3/28: 96). There was also an exchange as to whether Dr. Schretlen had reviewed any schizophrenia studies from the Menninger Clinic in Kansas (3/28: 79-80). The district court expressed disbelief at Dr. Schretlen's interpretation of one of the tests (3/28: 162). After Dr. Schretlen had testified about defendant's use of the terms "sputing" and "spluting," which Dr. Schretlen believed were not words, there was a bizarre exchange with the district court during which it tried to get Dr. Schretlen to admit that they were words (3/28: 108-110). The district court even produced a dictionary, in which in fact neither word appeared (3/28: 108-09).

At the beginning of Dr. Rappeport's testimony, the district court again asked whether psychiatry was an "inexact science" (3/29: 20).

The district court's behavior toward the government doctors was in stark contrast to its behavior to the defense doctors. The district court told Dr. Patterson, "I don't know which one of the people in this courtroom I am going to line up to submit themselves first to your care, Doctor" (3/28: 206). After Dr. Patterson replied to a question on cross-examination that he had not had time to write any articles, the district court helpfully asked him how many patients he had when St. Elizabeth's was "full up," and if he was in charge "of the whole operation," to show why he did not have time to write articles (3/28: 244).

When Dr. Phillips was describing paranoid schizophrenia in response to a government question, the district court stated, "Well, the question is we are talking about Mr. xxxxxxxx, not somebody else who has schizophrenia, paranoid type. Is that right?" (3/29: 139). Defense counsel, at the bench, pointed out to the district court that it had just given the jury the impression that it believed defendant did not suffer from paranoid schizophrenia (3/29: 140). The district court refused defendant's request to tell the jury that remarks by the court were not to be interpreted as evidence (3/29: 141-42).

Thus, the district court gave the jury every indication that the defendant's doctors were not credible, while the government ones were. This exacerbated the prejudice from the failure to bifurcate the trial, because the impression the district court gave the jury about the defense had to affect the guilt part of the trial, too.

This court has held bifurcation should be granted whenever "a defendant shows that he has a substantial insanity defense and a substantial defense on the merits to any element of the charge, either of which would be prejudiced by simultaneous presentation with the other." Contee v. United States, 410 F.2d at 250; see also Holmes v. United States, 363 F.2d at 283. The district court's finding to the contrary on both these factors was wrong. Defendant presented several witnesses who saw no one on the grounds of the White House at the time of the shooting, one of whom was specifically looking for people. There was substantial impeachment evidence against the only two government witnesses who claimed defendant said he would kill the President. The district court itself, in its sentencing opinion, found there was no evidence that defendant saw the Secret Service officers or knew they were on the lawn. Thus, defendant had a substantial defense to several of the charges. (13)

Even more erroneous is the district court's finding that there was no substantial insanity defense because the government had experts to rebut the defense. 884 F.Supp. at 532. Under this reasoning, there will never be a substantial insanity defense, as long as the government has its own experts.

Nothing in the Insanity Defense Reform Act affects this analysis. While the statute does not require or mention bifurcated trials, it also does not forbid them or counsel against them. There is also nothing in 18 U.S.C.  4242(b) that requires a unitary trial. The special verdicts and instructions mandated in  4242(b) are just as easily done in a bifurcated trial as in a unitary trial. Allocating the burden of proof to the defendant, as discussed above, is a reason to favor bifurcated trials. Indeed, Congress is presumed to know "of existing law when it passes legislation," Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990), and is presumed to be "knowledgeable about existing law pertinent to the legislation it enacts." Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185 (1988). This court's bifurcation cases were decided long before the Insanity Defense Reform Act was passed. Congress made no attempt to prevent bifurcation, thereby deeming it appropriate depending upon the circumstances.

Under the unique facts and circumstances of this case, the guilt phase of the trial should have been bifurcated from the sanity phase. The failure to do so was unduly prejudicial to defendant.

II. DEFENDANT'S ACTIONS DID NOT COME WITHIN THE STATUTORY PROVISIONS OF THE ATTEMPTED ASSASSINATION STATUTE, 18 U.S.C.  1751(c)

A. Standard of Review

Interpretation of the statute is a legal question, which is reviewed de novo. United States v. Wishnefsky, 7 F.3d 254, 256 (D.C. Cir. 1993).

B. The Merits

The attempted assassination conviction was under 18 U.S.C.  1751 which provides, in pertinent part:

(a) Whoever kills

(1) any individual who is the President of the United States, the President-elect, the Vice President, or, if there is no Vice President, the officer next in the order of succession to the Office of the President of the United States, the Vice President-elect, or any person who is acting as President under the Constitution and laws of the United States . . . shall be punished as provided by sections 1111 and 1112 of this title.

(c) Whoever attempts to kill or kidnap any individual designated in subsection (a) of this section shall be punished by imprisonment for any term of years or for life. .

(j) In a prosecution for an offense under this section the Government need not prove that the defendant knew that the victim of the offense was an official protected by this section.

An essential element of the statute is that the killing, or attempted killing, be of a person holding a certain status -- a person "who is the President of the United States, the President-elect, [or] the Vice President . . . [or one of certain other high-level government officials]."  1751(a). Killing or attempting to kill persons who do not have the status defined in the statute is not prohibited by 18 U.S.C. 1751, though it doubtlessly is prohibited by local statutes. See e.g., D.C. Code 22-2401, 103 (attempted murder in the first degree); D.C. Code 22-2403, 103 (attempted murder in the second degree); D.C. Code 22-501 (assault with intent to kill); D.C. Code 22-502 (assault with a dangerous weapon).

The assassination statute is similar to the statute prohibiting assaults on federal officers, 18 U.S.C. 111. Both statutes require that the victim be a person with a specific status, (14) although neither requires that the defendant "knew that the victim of the offense was an official protected by this section." 18 U.S.C. 1751(j); United States v. Feola, 420 U.S. 671 (1975). The requirement that the victim be a person holding a status designated by the statute is a "jurisdictional" requirement -- it confers federal authority over what would otherwise be prohibited only by state statutes. Id. at 676 n.9.

Thus, the elements of the offense of attempted assassination of the President are as follows:

1) the defendant had the specific intent to kill a person

2) the person who is "the victim of the offense" (15) was the President of the United States

3) the defendant acted after premeditation and deliberation 4) the defendant's actions constituted a substantial step toward killing the President of the United States.

Here, viewing the evidence in the light most favorable to the government, Mr. xxxxxxxx fired the gun at Basso believing him to be the President of the United States. Had Mr. xxxxxxxx succeeded in killing Basso he could not have been prosecuted under 18 U.S.C. 1751, because he would not have killed an "individual who is the President of the United States." It would be incongruous to allow defendant to be prosecuted in federal court for the attempt, whereas if he had succeeded in killing Basso there would not have been federal jurisdiction. The jurisdictional element of Section 1751, requiring that the "victim of the offense" be "an individual who is the President of the United States," cannot be met by proof that Mr. xxxxxxxx desired to kill the President or by proof that he intended to kill Mr. Basso when he fired a gun at him.

The district court decided that defendant was really asserting an impossibility defense, and rejected it 884 F.Supp. at 579-82. The district court went through an analysis of the impossibility doctrine. There is certainly some question about the continued validity of the impossibility doctrine, see United States v. Aguilar, 115 S.Ct. 2357, 2365 (1995), although it is perhaps not so clear as the district court believed. See id. at 2367 n.1 (Scalia, J., concurring in part and dissenting in part). See also United States v. Manarile, 44 F.3d 1407, 1417 & n.15 (9th Cir. 1995) (conviction for dealing in stolen property requires that property in fact be stolen, "because that is the heart of the crime").

The unusual wording of  1751, leads to the conclusion that defendant's actions do not come within the statute.

While 18 U.S.C.  1114, which refers to "any judge . . ." and other officials, all introduced by use of the word "any,"  1751 refers to "an individual who is." The difference is that the person who is actually the object of the attack is the determinative factor in  1751, regardless of whether the person knows it is the President or not.

The statute was enacted after the assassination of President Kennedy, and was to "rectify the omission in Federal law" that there was no Federal criminal jurisdiction with respect to the assassination of the President on November 22, 1963."           Cong. Rec. S18025 daily ed. July 23, 1965) (statement of Sen. Mansfield). The bill was intended to "punish ... the crime of interruption of the Government of the United States and the destruction of its security by striking down the life of the person who is actually in the exercise of the executive power." Id. at 18026.

In hearings on May 26, 1995, before the House of Representatives, Subcommittee No. 4 of the Committee on the Judiciary, a number of questions were raised about the new statute. A question was asked whether the wounding of "Governor Connally could convert the assault on him to a Federal offense?" Congressman Boggs replied, "No, because the people are defined in the legislation. Id. at 27. Then-present federal law was deemed deficient stated Congressman Gerald R. Ford, because "a direct attack upon the President, or even his murder, has never been as such a crime under Federal law." Id. at 29.

In fact, Congress seemed to focus on the obverse of the present case - eliminating "any requirement that the offender know that his victim is one of the officers with the bill." Id. at 33. Ramsey Clark, the Deputy Attorney General of the United States at the time, testified that the bill's "major purpose to be accomplished is to make it a Federal crime to attack or kill the President of the United States." Id. at 70. The "interest in protecting these specified Federal officials is so strong that the statutes should reach and protect them no matter whether the defendant knew the victim's status or not." H.R. Rep. No. 97-803, 97th Cong., 2d Sess., at 3 (1982). (16)

The bill as originally drafted had the phrase "endeavors or attempts" in section (c). Clark testified that using the word "endeavor" would give "significantly broader coverage" and that "'attempt' involves technicalities that 'endeavor' has been construed not to involve n the Federal law." Id. at 64. Congress, having heard this, left out the word endeavor and only included the word attempt.

Thus, the concern of Congress in asserting federal jurisdiction was in the situation where the actual person assaulted or killed was the President. Because that did not happen in the present case, the  1751 conviction should be reversed. (17) That does not mean defendant would escape criminal liability. There are several local statutes that cover the conduct. It simply means that under the facts of the present case, federal jurisdiction was not appropriate.

III. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE ASSAULT CONVICTIONS


A. Standard of Review

This court reviews claims of insufficiency of the evidence de novo, in light most favorable to the Government, United States v. Fennell, 53 F.3d 1296, 1298 (D.C. Cir. 1995), and we determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).

United States v. Lucas, 67 F.3d 956 (D.C. Cir. 1995).

B. The Merits

This court, in dicta in United States v. Kleinbart, 27 F.3d 586, 592 (D.C. Cir. 1994), cert. denied,       U.S.       (19    ), stated:We agree that Kleinbart cannot collaterally attack the jury instruction. As a preliminary matter, we do not believe the trial judge erred when she instructed the jury that forcible armed assault on a federal officer is a general intent crime. The Supreme Court's decision in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), leads us to conclude that forcible armed assault on a federal officer under 18 U.S.C.  111 is a general intent crime. In Feola, the Court stated: "We hold, therefore, that in order to incur criminal liability under  111 an actor must entertain merely the criminal intent to do the acts therein specified." Id. at 686, 95 S.Ct. at 1264-65 (emphasis added). We find this language conclusive. See United States v. Jim, 865 F.2d 211 (9th Cir.), cert. denied, 493 U.S. 827, 110 S.Ct. 93, 107 L.Ed.2d 58 (1989); United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976).

Moreover, even if forcible armed assault on a federal officer is a specific intent crime, Kleinbart has failed to show actual prejudice resulting from the jury instruction. As the district court explained, even if armed forcible assault on a federal officer is a specific intent crime,

[i]t is highly unlikely that an explicit specific intent instruction would have produced a different result.... Trial evidence showed that Mr. Kleinbart turned abruptly on his victim, Officer Blankenship, and drew a gun. That conduct alone is highly suggestive (to say the least) of bad purpose. Mr. Kleinbart then pointed the gun at the officer's neck. This action, too, would seem to lack benign purpose.... From any of these acts, the jury could construe ample support for the conviction they returned.

There is a split in the circuits as to whether  111 is a specific intent crime. See United States v. Jim, 865 F.2d 211 n.3 (9th Cir. 1989). Even if assault is a general intent crime, it is not at all apparent, however, that the other methods of violating the statute, such as resisting, opposing, impeding, intimidating, or interfering are also general intent crimes. In fact, they would all appear to require specific intent because, unlike assault, they are not all unlawful per se. Even though in Feola the Court referred to the acts specified in  111, the facts in Feola concerned only an assault. The Court gave an example in Feola of a situation where knowledge of the identity of the agent would matter, where resistance is offered to the acts of an officer who fails to identify himself as an officer, who would therefore appear to e using unlawful force. 420 U.S. at 686. In such a situation a person would be justified in resisting. Id.

What underlies Feola, and what the case presupposes, is that the defendant knows there is a victim. There must be "proof that the defendant intended to commit a forcible assault." United States v. Woody, 55 F.3d 1257, 1265-66 (7th Cir. 1995). Where the district court's analysis went wrong is that defendant could not have had even general criminal intent if he did not know the officers were there. There is no question that Wilson, Coffey, and Persons, were not in view when defendant started shooting. Tejeda did not know when the bullet hit the north portico. Without any proof that defendant had any idea the officers were there, the proof was insufficient, even treating  111 as a general intent crime.

CONCLUSION

Respectfully submitted,




A.J. KRAMER

FEDERAL PUBLIC DEFENDER

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant





CERTIFICATE OF LENGTH



I HEREBY CERTIFY that the foregoing brief for appellant does not exceed the number of words permitted by Circuit Rule 28(d).





A. J. Kramer

Federal Public Defender









CERTIFICATE OF SERVICE





I HEREBY CERTIFY that two copies of the foregoing Brief of Appellant and one copy of the Appendix have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Chief, Appellate Division, Room 10-435, 555 Fourth Street, N.W., Washington, D.C. 20001, this 10th day of May, 1996.





A. J. Kramer

Federal Public Defender

1. "APP" refers to the appendix filed in conjunction with this brief. The transcripts of the proceedings are referred to by the date and page number of the transcript. Because all the relevant court proceedings took place in 1995, the year is omitted from all the dates.

2. The elimination of five counts of the indictment was a result of the district court's ruling regarding the propriety of charging multiple counts of violations of 18 U.S.C.  924(c). The government and defendant agreed to combine the multiple  924(c) charges into one count (2/27: 57). There is no issue on this appeal relating to this decision.

3. Each of the four counts involved a different officer of the uniformed division of the Secret Service.

4. Each count charged a different gun.

5. Defendant's credit card was "blocked" while he was in San Antonio, which meant transactions on the card would be declined, because the card was reported stolen (3/22: 55). Defendant called the credit card company and had the hold on the account lifted (3/21: 162-63; 3/22: 57).

6. The President was in the residence section of the White House at the time of the shooting (3/22: 218). He had arrived in a helicopter which landed on the south lawn at 8:07 a.m., after returning from a trip to the Middle East (3/22: 218).

7. Several bullets hit the White House, causing $3,200 in damage.

8. This was presumably a reference to the wife of the Vice-President, andwas the first mention of her in the fantasy.

9. As one alternative, defendant suggested the impanelment of two juries, one for each phase of the trial. Defendant is not pursuing the dual jury arguments on appeal, but only the bifurcation contention.

10. These citations are to a separate 29-page transcript of this special hearing.

11. Many states expressly provide for bifurcation by statute or court rule. See, e.g., CAL. PENAL CODE 1026 (a) (West 1985 & Supp. 1989); COLO. REV. STAT. 16-8-104 (1986); ME. REV. STAT. ANN. tit 17-A, 40 (1983 & Supp. 1988); MINN. R. CRIM. P.  20.02, subd. 6 (West Supp. 1989); PA. STAT. ANN. tit. 50, 7404(c) (Purdon 1969 & Supp 1988); WIS. STAT. ANN. 971.165 (West Supp. 1988).

12. A bifurcated trial may well have saved time, as well as ensuring a fair trial. The district court appeared to be obsessed with the speed of the trial. Indeed, the government complained bitterly the first day of trial about what it perceived as the district court's unfairness in this regard (3/20: 167). The district court on several occasions remarked on how many witnesses had testified and how many exhibits had been admitted in such a short time. Given the district court's overriding preoccupation with the speed of the trial, the failure to grant the bifurcation motion is even more surprising.

13. The district court found that the defense could not be substantial because there were videotapes of the shooting. 884 F.Supp. at 532. The tapes did not show anything about what, if anything, defendant was shooting at, nor could they reveal anything about defendant's alleged intent.

14. Significantly, however, the designation of the persons protected by Section 1751 is even clearer than the designation of the persons protected by Section 111: Section 1751 prohibits the killing of "any individual who is the President of the United States," while Section 111 prohibits assaults against "any person designated in section 1114" of Title 18 which, in turn, describes "any judge, any United States Attorney . . ." etc.

15. 18 U.S.C. 1751(j)

16. In 1981 the Subcommittee on Criminal Law of the Senate Judiciary Committee was considering whether to enact federal statutes dealing with violent crimes against Presidential and Vice-Presidential staff members and members of Congress. In discussing the intent required or the knowledge of the status of the victim, Senator Mathias stated, "if I go back to practicing law some day and should acquire - I would hope not otherwise than by court appointment - a client in this category, it seems to me I would at least want to raise this as a defense." Hearing Before the Subcommittee on Criminal Law of the Committee on the Judiciary, United States Senate, 97th Cong., 1st Sess., at 19 (September 22, 1991).

17. In addition, the conviction under 18 U.S.C.  924(b) would also have to be reversed, as the  1751(c) violation is the predicate for the  1751(c) violation.