United States v. Mettetal

1999 WL 33615394 (4th Cir.)

For opinion see 213 F.3d 634

United States Court of Appeals, Fourth Circuit

UNITED STATES OF AMERICA, Plaintiff/Appellee,

Ray Wallace METTETAL, Defendant/Appellant.

No. 99-4013.

May 6, 1999.

On Appeal from the United States District Court for the Western District of Virginia Charlottesville Division

Reply Brief of Appellant

Frederick T. Heblich, Parker, Mcelwain & Jacobs, P.C., 1425 Seminole Trail, Charlottesville, Virginia 22901, (804) 973-3331, Counsel for Appellant

*i TABLE OF CONTENTS

TABLE OF CONTENTS ... i

TABLE OF CITATIONS ... ii

ARGUMENT

A. THE POLICE DID NOT HAVE PROBABLE CAUSE TO ARREST METTETAL ... 1

B. THE DISTRICT COURT ABUSED ITS DISCRETION BY EXCLUDING MOST OF THE EXPERT TESTIMONY ABOUT METTETAL'S MENTAL STATE ... 5

CONCLUSION ... 8

*ii TABLE OF CITATIONS

Cases

Barma v. City of Perth Amboy, 42 F.3d 809, 813 (3rd Cir. 1994) ... 4

Barry v. Fowler, 902 F.2d 770, 773 n.5 (9th Cir. 1990) ... 4

Gassner v. City of Carland, 864 F.2d 394, 398 (5th Cir. 1989) ... 5

U. S. v. Bizier, 111 F.3d. 214, 218 (1st Cir. 1991) ... 4

United States v. Hummer, 916 F.2d 186 (4th Cir. 1990) ... 4

United States v. Powers, 59 F.3d 1460 (4th Cir. 1995) ... 8

Wong Sun v. United States, 371 U.S. 471, 479 (1963) ... 5

Statutes

None

*1 ARGUMENT

A. THE POLICE DID NOT HAVE PROBABLE CAUSE TO ARREST METTETAL.

Because the findings of fact by the District Court are reviewed for clear error, it is important to distinguish the findings of fact made by the court as opposed to the facts relied upon by the government to support its argument. In summary, these were the court's findings:

• A suspicious character alert was broadcast, describing an oddly dressed person in the parking garage with a wig and mustache

• The Vanderbilt police officers found a person matching that description on the sidewalk near the parking garage

• The person first refused to produce any identification, then after he was told he would be arrested he produced an identity card with the name Stephen Maupin

• Office Young believed that the identification card was false

• The explanation the person gave was that he was trying to check on a female friend, but he denied that he was stalking

J.A. 127-128.

*2 The District Court made no findings of fact relating to the "Unabomber," or lost psychiatric patients, or the posting of signs, or the-common practice of the police of arresting people for trespassing for no apparent reason. Appellee's Brief at 5-7. The Appellant does not dispute the finding of facts of the District Court. These facts support the conclusion that the District Court erred as a matter of law.

In response to the facts asserted by the government, it should be pointed out that although the government labored valiantly in the suppression hearing to prove that the place where Mettetal was arrested was posted against trespassers, that was never established:

• Officer West testified that in August 1995 there were "warning signs" on the perimeter of the parking garage and at the entrance to parking garage. She produced a photograph showing two signs: one said, "Caution, Autos Only, No Motorcycles, bicycles, or Pedestrians"; the other said, "This facility only provides parking space," etc. J.A. 75.

• Officer Young testified that there were brown signs "placed along the campus telling people that they're subject to a search." The signs did not prohibit persons from coming onto the campus. Officer Young *3 could not recall the location of the sign nearest the medical center, or whether they were still in place. J.A. 114-115.

• Officer Pulley, who testified, "The whole campus is open to the public," could not identify the presence of any "no trespassing signs." J.A. 81.

On the other hand two defense witnesses, Lisa Roberson, J.A. 110-112, and Penelope Hill, J.A. 124-125, testified that for a number of years, including before and after the time of Mettetal's arrest, they passed by the medical center on hundreds of occasions and never saw any "no trespassing signs." There was never any credible evidence that the area where Mettetal was arrested was posted to warn against trespassing.

The District Court made no findings of fact as to the existence of posting, and essentially conceded, as the government has conceded, that Mettetal was not in fact guilty of trespassing. J.A. 130. Although the District Court neatly avoided identifying for what crime, e.g., trespass or stalking, police had probable cause to arrest Mettetal. J.A. 130, the court implied that if the police did not have probable cause to arrest for trespassing, they had probable cause to arrest for violation of Tennessee's "mask statute" J.A. 128. As discussed in the Brief of Appellant ______, there is no such offense.

*4 The court's reliance on United States v. Hummer, 916 F.2d 186 (4th Cir. 1990), is misplaced because before Hummer was arrested the police knew that a crime had taken place. Extortion letters had been sent to the Coca-Cola company demanding that $2 million be dropped under a pine tree at a remote place near Dulles International Airport. While the FBI had the drop site under surveillance. Hummer approached--wearing a fake beard. Hummer fled when he saw the agents, but he returned a short time later and was apprehended. A combination of factors supported the finding of probable cause to arrest Hummer in connection with the extortion scheme: flight, proximity to the drop site, suspicious statements, and the disguise. 916 F.2d at 190. To resemble Mettetal's case, one must delete the existence of the extortion scheme--i.e., the crime--and see if probable cause exists.

The law does not require that probable cause for an arrest to support a search incident thereto must exist as to the offense which is ultimately prosecuted. "Probable cause need only exist as to any offense that could be charged under the circumstances." U. S. v. Bizier, 111 F.3d. 214, 218 (1st Cir. 1991) (emphasis not supplied), quoting Barma v. City of Perth Amboy, 42 F.3d 809, 813 (3rd Cir. 1994), citing *5Barry v. Fowler, 902 F.2d 770, 773 n.5 (9th Cir. 1990) and Gassner v. City of Garland, 864 F.2d 394, 398 (5th Cir. 1989).

At the time Mettetal was arrested, the police had no information to conclude that a crime had been committed, or was being committed. Being a "suspicious person" in the parking garage is not a crime. Wearing a wig and a beard is not a crime. Carrying a black nylon bag is not a crime. Spying on a girlfriend is not a crime. Walking down a sidewalk open to the public is not a crime. Refusing to identify yourself to police is not a crime. All of these things taken together do not amount to a crime. Admittedly, they create suspicion, but probable cause requires more than mere suspicion. Wong Sun v. United States, 371 U.S. 471, 479 (1963).

Under all the circumstances leading up to Mettetal's arrest, there was no offense with which Mettetal could have been lawfully charged. He was not trespassing, or stalking, and even though he was wearing a beard and wig, he was not violating any law. He should have been free to go, and his arrest and search were unlawful and in violation of his Fourth Amendment rights.

B. THE DISTRICT COURT ABUSED ITS DISCRETION BY EXCLUDING MOST OF THE EXPERT TESTIMONY ABOUT METTETAL'S MENTAL STATE.

Throughout the Daubert hearing during which Dr. Kenner was *6 examined, the government and the court focused on two areas which proved to be ultimately immaterial. One was the insinuation that the defense was attempting to have Mettetal testify through Dr. Kenner, and the other was that Dr. Kenner was going to invade the province of the jury.

When Dr. Kenner attempted to explain that his opinions were based on the information he obtained directly from Mettetal, and from the psychological tests which had been administered by a colleague, the government complained that he was simply acting as a "surrogate" for Mettetal. J.A. 314. When Dr. Kenner tried to explain how his diagnosis was consistent with Mettetal's bizarre behavior in Nashville, the government complained that Dr. Kenner had no personal knowledge of the events and was simply relying on Mettetal. J.A. 314- 316. By sustaining the government's objections, and by then severely restricting Dr. Kenner's testimony, the court effectively emasculated the testimony.

It is difficult to imagine how a psychiatrist could perform his role without relying on information provided by the patient. Statements made by a patient to a physician are considered so inherently reliable that they are excepted from the hearsay rule. Fed. Rule Evd. 803(4). The statements that Mettetal made to Dr. Kenner were made in early 1996, some two and one-half years before the trial, and were made for purposes of diagnosis. They *7 were the most important basis for Dr. Kenner's opinion, and because he was not permitted either to fully express his opinion, or to explain the bases for his opinion, Mettetal was denied the opportunity to present evidence crucial to his defense. Dr. Kenner was not attempting to testify for Mettetal, or to vouch for the truth of the statements Mettetal made; he was simply trying to explain how he arrived at his diagnosis. The lack of verification of Mettetal's statements, the opportunity for manipulation, any deficiencies in methodology, and so forth, could all have been explored on cross-examination for the jury to weigh in determining how much, if any, of Dr. Kenner's testimony to believe.

The testimony of Dr. Kenner which was excluded would have not violated Rule 704(b) of the Federal Rules of Evidence because his testimony, at least what was proposed by the defense, never touch upon the subject of the Ricin. It was the government's theory of the case that Mettetal was in Nashville on a sort of reconnaissance mission, part of his scheme to kill Dr. Allen. The theory of the defense was that Mettetal was in Nashville--at a time purposely chosen because Dr. Allen was on vacation--in order to act out the role of assassin without acting attempting to harm anyone. Dr. Kenner's opinion, had he been permitted to testify to it, was that acting out elaborate schemes provided *8 psychological release for Mettetal, and that this behavior was consistent with the psychiatric diagnosis chat, he made. In other words, there was a substantial link between the expert testimony and the theory of defense. United States v. Powers, 59 F.3d 1460 (4th Cir. 1995). The expert testimony should have been admitted.

CONCLUSION

Your appellant should be afforded the relief prayed for in his opening brief.