EFFECT OF DANIEL YEH’S DIMINISHED CAPACITY

ON FEDERAL PROSECUTION

  I.  Diminished Capacity Defense

In the Insanity Defense Reform Act of 1984, Congress provided a statutory formulation of the insanity defense for the first time:  (a) Affirmative Defense – it is an affirmative defense to a prosecution under any federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.  Mental disease or defect does not otherwise constitute a defense;  (b)  burden of proof – the defendant has the burden of proving the defense of insanity by clear and convincing evidence.  Title 18 U.S.C. §17.

Through this section, Congress deleted the “volitional prong” of the commonly accepted Model Penal Code approach which had permitted acquittal if the defendant “as a result of mental disease or defect… lacks substantial capacity… to conform his conduct to the requirements of law.”  Model Penal Code §4.01 (1962).  Congress also, in the Insanity Defense Reform Act, shifted the burden of proof, requiring a defendant to prove insanity by clear and convincing evidence. 

The government usually takes the position that the Act bars a defendant from using evidence of mental abnormality to negate mens rea, relying on the language from the Act that mental disease or defect does not otherwise constitute a defense.  However, since the enactment in 1984, federal courts have continued to allow a “diminished capacity” defense despite the government’s position to the contrary.  These courts have reasoned that the use of psychiatric evidence to negate mens rea is merely evidence that disproves an element of the crime itself.

In United States v. Pohlot, 827 F.2d 889 (3^rd Cir. 1987), the court undertook a detailed analysis of whether there exists a federal “diminished capacity” defense after the Insanity Defense Reform Act of 1984.  The court concluded that both the wording of the Act and the legislative history leave no doubt that Congress intended to bar only “affirmative defenses” that “excuse” misconduct, not evidence that disproves an element of the crime itself.  Pohlot at 897, citing U.S. v. Gold, 661 F.Supp. 1127 (D.D.C. 1987) and U.S. v. Frisbee, 623 F. Supp. 1217 (N.D.Cal. 1985)(insanity does not bar psychiatric evidence on issue of mens rea).

The Pohlot court reasoned that the defendant was correct in his assertion that mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind that is an element of the offense.  Id. at 897.  Although the principle has sometimes been phrased as a version of the “diminished capacity defense”, it does not provide any grounds for acquittal not provided I the definition of the offense itself.  Id.  Properly understood, it is not a defense at all, but merely a rule of evidence.  The distinction is analogous to the use of evidence of intoxication.  Id. 

Using similar analysis, several other federal cases allow for a diminished capacity defense.  In U.S. v. Gonyea, 140 F.3d 649 (6^th Cir. 1998), the Court held that diminished capacity may be used in federal courts only to negate mens rea of specific intent crimes.  The crime charged was bank robbery, which the court found to be a general intent crime.  Therefore, the court disallowed a diminished capacity defense only because back robbery did not require specific intent.  Gonyea at 653. 

Where intent of the accused is an element of the crime charged, “its existence is a question of fact which must be submitted to the jury.”  Morrissette v. U.S., 342 U.S. 246, 274 (1952).  Specific intent is determined from all the facts and circumstances surrounding the events.  Id. at 276.

In U.S. v. Rusin, 889 F.Supp. 1036 (N.D. Ill. 1995), the court held that diminished capacity is a viable defense only when specific intent is an element of the charged offense.  See also U.S. v. Reed, 991 F.2d 399, 400 (7^th Cir. 1993).

Motion to Suppress Statement

Government agents failed to properly and adequately explain the rights Daniel Yeh had pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).  Miranda warnings must reasonable convey the rights to the suspect.  See California v. Prysock, 453 U.S. 355, 360-61 (1981).  If there is failure to properly convey the substance of the Miranda protection, the adequacy of a warning may be left wanting, resulting in a determination that the advisal was also inadequate.

In addition to this infirmity, a waiver of one’s rights pursuant to Miranda must be shown to be voluntary, knowing and intelligent.  Edwards v. Arizona, 451 U.S. 477, 482 (1981); Johnson v. Zerbst, 304 U.S. 458, 464 (1938).  The government will be ill-equipped to show this waiver in the case of Daniel Yeh.  Daniel Yeh did not knowingly, voluntarily, and intelligently waive his Miranda rights.  Additionally, any statements seized from Daniel Yeh were not voluntary, and were seized in violation of his constitutional rights.

The essence of the Miranda rule is that the prosecution may not use statements obtained from custodial interrogation of a defendant unless procedural safeguards are used to secure the privilege against self-incrimination.  The rule is generally complied with if the agent reads the defendant his “Miranda rights” prior to the interrogation and the defendant then agrees to answer questions.  Miranda at 443.

 The Supreme Court has determined that the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination requires that custodial interrogation be preceded by advice to the defendant that he has the right to remain silent and the right to the presence of an attorney.  Miranda at 439.  Miranda warnings are required before custodial interrogation begins, and custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody otherwise deprived of his freedom of action in any significant way.”  Illinois v. Perkins, 496 U.S. 292, 296 (1990).

Miranda warnings must reasonably convey the rights to the suspect.  California v. Prysock, 453 U.S. 355, 361 (1981).  Because of the diminished capacity of Daniel Yeh from his frontal lobe damage by a brain tumor, it appears evident that any warnings of rights allegedly given by government agents failed to reasonably convey his rights pursuant to Miranda, or that Daniel Yeh understood them.  Daniel Yeh was subjected to custodial interrogation in his own home, for what is believed to be three to four hours.  As a result of this interrogation, the government seized a statement from Daniel Yeh in violation of his constitutional rights.

Daniel Yeh did not make a voluntary, knowing, and intelligent waiver of his Miranda rights.  A defendant may waive his Miranda rights provided that the waiver is made voluntarily, knowingly, and intelligently.  Miranda at 475; Moran v. Burbine, 475 U.S. 412, 421 (1986).  If an interrogation of a defendant continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.  Miranda at 475.

In Moran v. Burbine, the court discussed two distinct dimensions for determining whether a waiver of rights was voluntary, knowingly, and intelligently entered.  Moran at 421.  First, the waiver of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.  Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.  Moran at 421.

 In assessing the validity of a waiver of Miranda warnings, the Supreme Court applies a “totality of the circumstances” test.  Id.  See also Edwards v. Arizona, supra.  Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.  Fare v. Michael C., 442 U.S. 707, 725 (1979).  It is Daniel Yeh’s position that due to his diminished capacity, he did not possess the requisite level of comprehension the day the government agents seized a statement from him. 

In applying these two dimensions to the facts of Daniel Yeh’s case, it is apparent that the government will be ill-equipped to show a knowing and voluntary waiver of rights by Daniel Yeh.  Even if the government produces a written waiver signed by Daniel Yeh, the government will be unable to show that Daniel Yeh ever relinquished his rights as a free and deliberate choice when he made his statements.  Therefore, because of the diminished capacity of Daniel Yeh, he did not make any waiver with a full awareness both of the nature of the right being abandoned and the consequences of any alleged decision to abandon it. 

It is further Daniel Yeh’s contention that any exchange between himself and the government agents regarding his rights was confusing and misleading.  The agents presented those rights to Daniel Yeh in a manner without concern for whether he had any understanding of those rights, especially due to the obvious language barrier between government agents and Daniel Yeh.  Upon information and belief, it appears that the agents did nothing to determine whether Daniel Yeh understood anything that he signed or was told.  Under these circumstances, Daniel Yeh could not have knowingly and intelligently waived his rights, and the government will not be able to meet its burden of proving otherwise.

Daniel Yeh’s alleged waiver of his Miranda rights was done involuntarily, as a product of intimidation and coercion.  Additionally, a confession given where government agents made use of the defendant’s mental state constitutes undue psychological persuasion which is unconstitutionally prohibited under the Due Process Clause.  Colorado v. Connelly, 479 U.S. 157, 164 (1986). 

Admission of an involuntary statement as evidence against a person accused of a criminal offense violates the rights of that person to be free from self-incrimination and to due process of law as guaranteed by the Fifth Amendment.  Oregon v. Elstad, 470 U.S. 298, 304 (1985).  The government has the burden of proving voluntariness of the statement that it seeks to admit.  Colorado v. Connelly at 168-169.  The critical element in determining whether a confession was involuntarily given is the element of police overreaching.  Id. at 163-164.

Additionally, any statement seized from Daniel Yeh was obtained by unconstitutional promises of leniency.  The government must prove, in addition to formal compliance with Miranda, that any incriminating statement obtained from a defendant was given voluntarily.  Lego v. Twomey, 404 U.S. 477, 484 (1972).  A defendant may be properly warned and freely waive as required under Miranda, yet ultimately be coerced into making a confession.  U.S. v. Fouche, 776 F.2d 138 (9^th Cir. 1985); Oregon v. Elstad at 1298 (ultimate test of admissibility is always the entire course of police conduct leading to the statement).

Subtle psychological coercion, either by promises of leniency or indirect threats, may render a confession involuntary.  U.S. v. Tingle, 658 F.2d 1332 (9^th Cir. 1981).  Additionally, government agents’ promised of benefits or leniency may be impermissibly coercive, even if government officials do not promise benefits of any significant value.  Hutto v. Ross, 429 U.S. 28, 30 (1976).    Daniel Yeh was told by government agents that the United States Attorney wanted him to pay back any money that he incorrectly billed to FEMA.  This appears to be an implicit promise of no further prosecution in exchange for paying back the money Daniel Yeh allegedly owed.

The government bears a continuing burden to demonstrate voluntariness throughout the course of the interrogation leading to the statement, and the inquiry of necessity involves an evidentiary hearing on the issue.  Jackson v. Denno, 378 U.S. 368, 376 (1964).  Before the government can use any of Daniel Yeh’s statements as evidence, it must establish that they were taken in accordance with the established legal principles.

While subjected to police interrogation in his own home, Daniel Yeh made statements to government agents.  From investigation, it is believed that the government will be unable to show that Daniel Yeh voluntarily waived his constitutional rights.  Daniel Yeh suffers from diminished capacity, and yet he allegedly understood his rights as well as the consequences of waiving those rights.   Daniel Yeh did not have an attorney present during his custodial interrogation.  Therefore, the government will be unable to comply with the warning and voluntary waiver requirements of Miranda, as further explained in Edwards v. Arizona, supra and Smith v. Illinois, supra.

In order for Daniel Yeh’s statements to be admissible, the government must prove that they were “the product of a rational intellect and a free will.”  U.S. v. Crespo de Llano, 830 F.2d 1532, 1541-42 (9^th Cir. 1987), and were obtained without coercion or improper inducement.  Colorado v. Connolly, supra.  It could be argued that Daniel Yeh’s will was overborne by the interrogation conducted by the government through the use of improper promises of leniency.  These promises of leniency were specifically designed and intended to elicit incriminating responses from Daniel Yeh and obtain a confession from him in violation of his rights.

II.                Diminished Capacity Motion for Downward Departure

Assuming arguendo that this matter ever proceeds as far as sentencing, Section 5K2.13 of the United States Sentencing Guidelines (U.S.S.G.) provides that a sentencing court may sentence below the advisory guideline range prescribed for a non-violent offense.  Section 5K2.12 provides that a downward departure may be warranted if (1) the defendant committed the offense while suffering from a significantly reduced mental capacity and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense. Similarly, if a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.

However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; (3) the defendant’s criminal history indicates a need to incarcerate the defendant to protect the public; or (4) the defendant has been convicted of an offense under Chapter 71, 109A, 110 or 117 of Title 18, United States Code.

The court in U.S. v. Chambers, 885 F. Supp. 12 (D.D. D.C. 1995) departed downward pursuant to §5K2.13 in sentencing a defendant who pled guilty to maintaining a house for distribution of narcotics and who was diagnosed as functioning at the borderline mental defective level of intelligence and suffering from organic brain damage.  The court noted that a psychiatrist engaged by the f=defense to evaluate the defendant reported that the defendant was significantly impaired in the area of executive functioning and that it was unclear the extent to which the defendant was really capable of exercising sounds judgment.  As an example, the psychiatrist stated that he defendant might know a particular course of action would affect the defendant adversely, and yet not be able to maintain an alternative course of action over an extended period of time without external support. 

In another case, the court in U.S. v. Lewinson, 988 F.2d 1005 (9^th Cir. 1993) departed downward from a range of 18-24 months to a range of 8-14 months in sentencing a defendant convicted of mail fraud after expert witnesses on behalf of the defendant testified that the defendant’s long standing psychological problems resulted in a significant impairment of the defendant’s mental capacity at he time of the offense.

In the Fifth Circuit case of United States v. Keller, 947 F.2d 739 (5^th Cir. 1991), the court affirmed the district court’s refusal to depart downward under §5K2.13 in sentencing a defendant convicted under a federal firearms statute because the psychiatric reports were inconclusive as to the existence of any clinical disorders of the defendant.  This case makes it clear that a downward departure for diminished capacity is allowed by the Fifth Circuit.  In the case of Daniel Yeh, the expert testimony of Dr. Wasseff,  Dr. Grossman and Dr. Mosnik, in addition to the medical journal articles, clearly show Daniel Yeh’s diminished mental capacity due to frontal lobe damage following removal of mengionomas and radiation therapy.