
USCA1 Opinion

	




        March 16, 1992           ____________________        No. 90-1295                                    UNITED STATES,                                      Appellee,                                          v.                                  ARTHUR CARY PRYOR,                               a/k/a CAMDEN M. PELLER,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                      [Hon. Conrad K. Cyr, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                      Aldrich and Bownes, Senior Circuit Judges.                                          _____________________                                 ____________________            Scott McLarty for appellant.            _____________            Margaret  D.  McGaughey, Assistant  United  States  Attorney, with            _______________________        whom Richard S. Cohen,  United States Attorney, and Jay  P. McCloskey,             ________________                               _________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                 ____________________                      ALDRICH, Senior Circuit Judge.   As a result  of an                               ____________________            amended  brief,  a supplemental  brief,  and  a reply  brief,            defendant   Arthur   Cary    Pryor,   through   counsel   and            individually, has  presented some  eleven  points on  appeal,            including  the  defense of  insanity.    All can  be  readily            disposed of.                      Defendant was  convicted of robbery of  a federally            insured bank in Blue  Hill, Maine, by force and  violence and            placing a life in jeopardy, 18 U.S.C.    2113(a) and (d), and            possession  of a  sawed-off  unregistered shotgun,  26 U.S.C.               5845(a)(4); 5861(d) and 5871.  When committing the robbery            he was  highly made-up, costumed  and hatted to  emulate "Boy            George," an androgynous pop  star.  Afterwards he distributed            largesse to his landlord and,  ultimately, drove in a stretch            limousine costing $900 to a  Cambridge, Massachusetts, hotel,            where he rented the presidential suite.                      Before  defendant  was  apprehended the  government            obtained warrants to search  his apartment in Castine, Maine,            and  his  Cambridge  hotel  room.   He  moved,  pretrial,  to            suppress the  fruits.   The  court  denied, after  a  lengthy            evidentiary  hearing, with  a fully  persuasive opinion.   We            need  not repeat;  there  was no  error.   United  States  v.                                                       ______________            Rutkowski, 877 F.2d 139 (1st Cir. 1989).            _________                      Before  trial   the  government  had   performed  a            psychiatric examination of  defendant.  18  U.S.C.   4247(b).                                         -2-            Defendant complains that it  was delayed beyond the statutory            schedule.  It does not appear how he was prejudiced.                      Next, defendant  complains that the  court did  not            hold a  hearing on his competency to  stand trial.  18 U.S.C.              4241(a) requires the  court, on defendant's, or  on its own            motion, to hold a hearing . . .                      if there is  reasonable cause to  believe                      that  the  defendant  may   presently  be                      suffering from a mental disease or defect                      rendering him mentally incompetent to the                      extent  that he  is unable  to understand                      the  nature  and   consequences  of   the                      proceedings  against  him  or  to  assist                      properly in his defense.            Defendant did not move for a hearing;  nor did the court hold            one of  its own accord.   We are satisfied that  there was no            sufficient  cause  to  spark   court  action.    It  is   not            determinative  that  defendant  had  had  drug  problems  and            psychiatric treatment  in the  past.  Hernandez-Hernandez  v.                                                  ___________________            United States, 904 F.2d 758, 760-61 (1st Cir. 1990).  More to            _____________            the  point  is the  fact that  the  court had  seen defendant            vigorously, and rationally,  participating in his defense  at            the  pretrial  proceedings,  see Figueroa-Vasquez  v.  United                                         ___ ________________      ______            States, 718 F.2d 511, 512 (1st Cir. 1983), and had determined            ______            that he had the capacity to waive counsel and defend himself.            For that  hearing the court had a psychiatrist's finding that            defendant was "oriented to time, place  and person," and that            his  "judgment  and insight,  as  well  as abstract  thinking            appeared to be  intact."  The court's  finding that defendant                                         -3-            was   competent   to  waive   counsel,  viz.,   "knowing  and            intelligent,"  Faretta  v.  California,  422  U.S.  806,  835                           _______      __________            (1975), more  than covered  ability to understand  and assist            properly  in his defense.   Cf. United States  v. Haffen, 726                                        __  _____________     ______            F.2d  21, 25 (1st Cir.),  cert. denied, 466  U.S. 962 (1984).                                      ____________            There was no cause for the court to hold a further hearing.                      Defendant  complains  that   at  trial  a   witness            referred to his having  stolen a bed.  The  court immediately            struck the testimony and instructed the jury to disregard it.            This was a minor  matter, and fully cured.   United States v.                                                         _____________            Paiva, 892 F.2d 148, 160 (1st Cir. 1989).            _____                      The  same with  respect  to a  witness speaking  of            defendant's being  subjected to  a disciplinary hearing  as a            result of  a fight in jail.   Here the court,  in addition to            instructing the jury to  disregard the testimony, informed it            the  next day that defendant had been cleared as having acted            in self-defense.  (Apparently  it was known that he  had been            in jail.)  There was no prejudice.                      In   respect   to   excluded  evidence,   defendant            complains  because the  court refused  to  admit a  letter he            wrote his counsel at the time of his arrest as indicating his            state  of mind.  As to  his state of mind at  the time of the            offense, it  was hearsay.  As  at the time of  the arrest, it            was irrelevant.   A proffered newspaper  article was properly                                         -4-            excluded within the court's discretion; indeed  we do not see            how it was admissible at all.                      Next, defendant  complains of the  burden put  upon            him to prove insanity "by clear and convincing evidence."  18            U.S.C.   17(b).   The constitutionality  of such a  burden is            settled.     Leland   v.   Oregon,  343   U.S.  790   (1952);                         ______        ______            reconsideration refused  in Rivera v. Delaware,  429 U.S. 877                                        ______    ________            (1976).   Defendant would circumlocute these  cases by saying            his  offenses   require  wilful  knowledge,   which  insanity            negates.   There is, however,  no such identity.   See United                                                               ___ ______            States  v. Cameron,  907 F.2d  1051,  1066 (11th  Cir. 1990);            ______     _______            United States v.  Byrd, 834  F.2d 145, 147  (8th Cir.  1987).            _____________     ____            Hence defendant's contention of  a conflict with the criminal            burden of proof as to knowledge,  In re Winship, 397 U.S. 358                                              _____________            (1970), does not exist.                      Next, defendant would have it that the evidence did            not support the jury's finding that he was not insane.  Quite            apart  from the fact  that he failed  to move for  a directed            verdict at the  close of  the evidence, the  burden being  on            him, this claim is specious.  But even were the burden on the            government, there was ample evidence that defendant knew what            he was  doing, and  "appreciate[d] . . . the  wrongfulness of            his act."  18 U.S.C.   17(a).                      Defendant   complains   that   instead  of   merely            instructing  the jury  that  a verdict  of insanity  requires                                         -5-            confinement in a mental  institution until found to  be sane,            as requested by him,  the court gave the further  detail that            the confinement might be for only 40 days.  This addition was            correct.  18 U.S.C.    4243(c).  If, instead of  requesting a            partial instruction  defendant had asked that  there be none,            we might have  a different  question.  Cf.  United States  v.                                                   __   _____________            Frank, ___ F.2d ___ (9th Cir., February 11, 1992) (1992 U. S.            _____            App. Lexis 1512).                      Defendant  contends the  judge should  have recused            himself and not have presided over  the sentencing because of            bias due to the fact that  defendant had brought a civil suit            against  him.  This question  was purely for  the court's own            decision.   It  cannot be  that an  automatic recusal  can be            obtained by the simple act of suing the judge.  See Ronwin v.                                                            ___ ______            State  Bar of  Arizona, 686  F.2d 692,  701 (9th  Cir. 1982),            ______________________            cert. denied, 461  U.S. 938  (1983); cf. In  re Union  Leader            ____________                         __  ____________________            Corp., 292 F.2d 381,  389 (1st Cir.), cert. denied,  368 U.S.            _____                                 ____________            927 (1961).                      Defendant finally  complains of the sentence.  This            was pre-Guidelines, and  it was within statutory limits.   We            have  no  right  to review  except  if  the  court failed  to            "individualize."  United  States v. Jiminez-Rivera, 842  F.2d                              ______________    ______________            545, 548 (1st Cir.), cert. denied, 487 U.S. 1223  (1988).  It                                 ____________            did not fail.                      Affirmed.                      ________                                         -6-
