1999 WL 33615395 (4th Cir.)

 

For opinion see 213 F.3d 634

 

United States Court of Appeals, Fourth Circuit

 

Ray Wallace METTETAL, Appellant,

v.

UNITED STATES OF AMERICA, Appellee.

 

No. 99-4013.

 

April 26, 1999.

 

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

 

Brief of Appellee

 

Robert P. Crouch, Jr., United States Attorney, Ray B. Fitzgerald Jr., Assistant United States Attorney, 255 West Main Street, Room 104, Charlottesville, Virginia 22902, (804) 293-4283, Counsel for Appellee

 

*ii TABLE OF CONTENTS

 

TABLE OF AUTHORITIES ... iv

 

I STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION ... 1

 

II STATEMENT OF ISSUES PRESENTED ... 1

 

III STATEMENT OF THE CASE, FACTS PRESENTED ... 2

 

IV SUMMARY OF ARGUMENT ... 2

 

V ARGUMENT ... 3

 

A. THE DISTRICT COURT DID NOT CLEARLY ERR IN FINDING THAT THE VANDERBILT POLICE HAD SUFFICIENT JUSTIFICATION TO ARREST METTETAL ... 3

 

B. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT THE AFFIDAVIT SUPPORTING A PARTICULAR SEARCH WARRANT ESTABLISHED PROBABLE CAUSE TO SEARCH THE LOCATION SPECIFIED THEREIN. ... 9

 

C. THE DISTRICT COURT DID NOT CLEARLY ABUSE ITS DISCRETION BY EXCLUDING EXPERT TESTIMONY ABOUT THE DEFENDANT'S MENTAL STATE OR CONDITION CONSTITUTING AN ELEMENT OF THE CRIME CHARGED. ... 12

 

D. THE EVIDENCE WAS SUFFICIENT TO CONVICT METTETAL OF POSSESSION OF FALSE IDENTIFICATION DOCUMENTS. ... 17

 

E. THE DISTRICT COURT DID NOT ERR IN SELECTING AN ANALOGOUS SENTENCING GUIDELINE SECTION TO FASHION A SENTENCE FOR A VIOLATION HAVING NO SPECIFIED GUIDELINE. ... 21

 

F. THE DISTRICT COURT DID NOT CLEARLY ERR IN FINDING THAT METTETAL WAS NOT ENTITLED TO A GUIDELINE REDUCTION FOR "ACCEPTANCE OF RESPONSIBILITY" ... 22

 

*iii G. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DEPARTING UPWARD FROM THE ANALOGOUS SENTENCING GUIDELINE RANGE IN RECOGNITION OF THE UNUSUAL ASPECTS OF METTETAL'S VIOLATIONS. ... 24

 

VI STATEMENT CONCERNING ORAL ARGUMENT ... 31

 

VII CERTIFICATE OF COMPLIANCE ... 32

 

VIII CERTIFICATE OF SERVICE ... 33

 

*iv TABLE OF AUTHORITIES

 

Supreme Court Cases:

 

Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ... 13-16

 

Draper v. United States, 358 U.S. 307 (1959) ... 9

 

Illinois v. Gates, 462 U.S. 213 (1983) ... 3, 9

 

Massachusetts v. Upton, 466 U.S. 727 (1984) ... 9, 12

 

United States v. Koon, 518 U.S. 81 (1996) ... 24, 25, 27-29

 

Courts of Appeals Cases:

 

United States v. Barsanti, 943 F.2d 428 (4th Cir. 1991) ... 12

 

United States v. Blackwood, 913 F.2d 139 (4th Cir. 1990) ... 9, 11

 

United States v. Brewer, 1 F.3d 1430 (4th Cir. 1993) ... 17

 

United States v. Davis, 129 F.3d 117 (4th Cir.1997) ... 17

 

United States v. Gary, 18 F.3d 1123 (4th Cir. 1994) ... 27

 

United States v. Gray, 137 F.3d 765 (4th Cir. 1998) ... 3

 

United States v. Hairston, 96 F.3d 102 (4th Cir. 1996), cert. denied, 117 S.Ct. 956 (1997) ... 24-26

 

United States v. Harris, 882 F.2d 902 (4th Cir. 1989) ... 23

 

United States v. Hummer, 916 F.2d 186 (4th Cir. 1990) ... 8

 

United States v. Manbeck, 744 F.2d 360 (4th Cir. 1984) ... 4, 8

 

United States v. Merino, 44 F.3d 749 (9th Cir. 1994) ... 21

 

*v United States v. Ouinteros, 769 F. 2d 968 (4th Cir. 1985) ... 18

 

United States v. Rohn, 964 F. 2d 310 (4th Cir. 1992) ... 18

 

United States v. Seidman, 156 F.3d 542 (4th Cir. 1998) ... 12

 

United States v. Strandquist, 993 F.2d 395 (4th Cir. 1993) ë993 F.2d 395 ... 23

 

United States v. Underwood, 970 F.2d 1336 (4th Cir. 1992) ... 23

 

United States v. Wells, 163 F.3d 889 (4th Cir. 1998) ... 24

 

Statutes:

 

Title 18, United States Code, Section 175 ... 15, 21

 

Title 18, United States Code, Section 1028(a)(3) ... 17

 

Title 18, United States Code, Section 1028(d)(1) ... 17

 

Title 18, United States Code, Section 1291 ... 1

 

Title 18, United States Code, Section 3553(a)(2) ... 29

 

Title 18, United States Code, Section 3742 ... 1

 

Miscellaneous Authorities:

 

Federal Rules of Evidence, Rule 704(b) ... 15, 16

 

United States Sentencing Commission, Guidelines Manual, Section 2F1.1(b)(2) ... 27

 

United States Sentencing Commission, Guidelines Manual, Section 2Q1.1 ... 21, 22, 29

 

United States Sentencing Commission, Guidelines Manual, Section 2X5.1 ... 21

 

*vi United States Sentencing Commission, Guidelines Manual, Section 5K2.0 ... 25, 28

 

United States Sentencing Commission, Guidelines Manual, Section 5K2.3 ... 29

 

United States Sentencing Commission, Guidelines Manual, Section 5K2.6 ... 28

 

United States Sentencing Commission, Guidelines Manual, Chapter 5, Part H ... 25

 

*1 I STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

 

This appeal seeks review of seven rulings made by the district court in the pretrial, mid-trial, and post trial phases of this case, including evidentiary, sufficiency, and sentencing issues.

 

This Court has jurisdiction to consider this appeal pursuant to Title 18, United States Code, Sections 1291 and 3742. This appeal was timely filed. References in this brief to the Joint Appendix are denominated "J.A. __".

 

II STATEMENT OF ISSUES PRESENTED

 

A. Whether the district court clearly erred in finding that Vanderbilt University Police officers had probable cause to arrest Mettetal.

 

B. Whether the district court abused its discretion in finding that the affidavit supporting a particular search warrant established probable cause to search the location specified therein.

 

C. Whether the district court clearly abused its discretion by excluding expert testimony about the defendant's mental state or condition constituting an element of the crime charged.

 

D. Whether the evidence was sufficient to convict Mettetal of possession of false identification documents. E. Whether the district court abused its discretion in selecting an analogous Sentencing Guideline section as guidance in fashioning a sentence for a violation having no specified Guideline.

 

F. Whether the district court clearly erred in finding that Mettetal was not entitled to a Guideline reduction for "acceptance or responsibility".

 

*2 G. Whether the district court abused its discretion in departing upward from the analogous Sentencing Guideline range in recognition of the unusual aspects of Mettetal's violations.

 

III STATEMENT OF THE CASE. FACTS PRESENTED

 

The United States adopts the Appellant's exposition of the procedural progress of this case in district court and the references to the Joint Appendix in his statement of facts, as supplemented hereinafter by detailed discussions of specific facts in the record as necessary to address specific issues raised. The United States does not, of course, endorse any editorial comments and arguments embedded in the Facts section.

 

IV SUMMARY OF ARGUMENT

 

In the pretrial phase of this case, the district court did not err or abuse its discretion in finding that the officers were justified in arresting Mettetal in Tennessee, or in finding that the search warrant executed in Harrisonburg was appropriately supported by probable cause.

 

During trial, the trial court appropriately prevented an expert witness from testifying about the defendant's capacity for, or intentions concerning, this violation. The jury heard sufficient evidence from which it could rationally have concluded *3 that Mettetal was guilty as charged in Count Two.

 

At sentencing, the district court was called upon to draw an analogy to other violations to begin the sentencing process, and did so appropriately. The court's decisions not to adjust Mettetal's sentence downward for acceptance of responsibility, but rather to depart upward, do not constitute abuses of the court's sentencing discretion.

 

V ARGUMENT

 

A. THE DISTRICT COURT DID NOT CLEARLY ERR IN FINDING THAT THE VANDERBILT POLICE HAD SUFFICIENT JUSTIFICATION TO ARREST METTETAL.

 

1. Standard of Review

 

Appellate review of a district court's findings of fact in connection with a contested arrest are reviewed only for clear error, but the district court's conclusion that the facts found establish probable cause is reviewed de novo. United States v. Gray, 137 F.3d 765, 770 (4th Cir. 1998).

 

2. Discussion of the Issue

 

Warrantless arrests - and searches incident to those arrests - are permitted when there is probable cause to believe that a felony has been committed, or any crime is being committed, by the person arrested, based upon the totality of the circumstances. *4Illinois v. Gates, 462 U.S. 213, 230 (1983). Probable cause to arrest exists when facts and circumstances within the arresting officers' knowledge would warrant a prudent person's belief that the person arrested had committed or was in the midst of committing an offense. United States v. Manbeck, 744 F.2d 360, 376 (4th Cir. 1984).

 

In support of Mettetal's initial arrest in Nashville, Tennessee, on August 22, 1995, the evidence adduced at the suppression hearing included:

 

- Vanderbilt University is a private educational institution located in Nashville, Tennessee. J.A. 21.

 

- Vanderbilt University has a police force and, security department separate from the Nashville municipal police authorities. J.A. 21. Most, if not all, Vanderbilt officers are commissioned Tennessee police officers cross-designated as Nashville Metro Police officers. J.A. 36.

 

- At approximately 10:00 AM on August 22, 1995, Vanderbilt Police received a report that an individual, acting "suspicious" had been seen in a parking garage of the Vanderbilt Medical School. J.A. 22, 69. This parking garage level was reserved for faculty at the medical school, and was posted and otherwise mechanically restricted. J.A. 87.

 

- The Vanderbilt Police were particularly alert to suspicious persons and suspicious packages and articles in August, 1995, *5 inasmuch as Vanderbilt had been a target of the so-called "Unibomber", who was, at that time, still at large. J.A. 31, 32. - Partly in response to the Unibomber experience, J.A. 32, the Vanderbilt authorities had posted the most commonly used points of entry onto the campus of the University. J.A. 33, 92. The signs cautioned visitors that they were entering private property [FN1]. J.A. 87, 90, 94. One officer recalled that the signs mentioned that visitors to the campus were subject to search. J.A. 114.

 

    FN1. This evidence was contradicted by Doris Pye, who was presented as a "curious" spectator at the hearing who, coincidentally, had lived in Nashville and went to school at Vanderbilt. J.A. 120. Pye did not recall seeing any signs. J.A. 122. Another Mettetal supporter, Ms. Hill, testified similarly. J.A. 124.

 

- The Vanderbilt Police found the individual nearby walking on a sidewalk belonging to Vanderbilt University adjoining a street that belonged to Vanderbilt University. J.A. 22, 24.

 

- The individual was distinctively and inappropriately dressed for the conditions, including the weather. Despite a temperature "in the general area" of 90 degrees, this individual was dressed in a dark three-piece suit and was wearing a dark Afro wig and a theatrical beard which resembled Abraham Lincoln's. J. A. 22, 23, 73, 108.

 

- He was also carrying a black nylon bag, J.A. 23, 71, about *6 which bag he behaved very protectively. J.A. 30, 31, 75, 107. He declined the officer's request for consent to search the bag. J.A. 61, 62.

 

- This contact occurred next to the building that housed the Vanderbilt psychiatric unit at that time. J.A. 26.

 

- Upon seeing the individual located and appearing as previously described, officers from the Vanderbilt Police approached the individual and asked him "some questions", including a request for identification and a question about his purpose on Vanderbilt property. J.A. 26, 71.

 

- The individual's preliminary responses did nothing to dispel the suspicious nature of his presence on Vanderbilt property; in fact, his initial story, if true, could have been evidence of a violation of Tennessee law as the officers understood it. J.A. 27, 101.

 

- As the initial contact continued, the person's beard began to peel off the side of his face and under his nose from the extreme heat of the day. J.A. 41, 108.

 

- As the conversation continued, the individual first claimed that he had no identification documents, J.A. 27, 57, 100, then presented documents that were obviously false. J.A. 28, 58, 106. The name on this identification document was "Steven Ray Maupin". J.A. 54, 74. The person who gave his identification as Maupin turned out to be the defendant *7 Mettetal. J.A. 65, 66.

 

- Under all the circumstances, the officers were concerned that Mettetal might have been a psychiatric or other patient who was lost or otherwise in need of assistance. J.A. 28.

 

- When other officers arrived to assist the first officer, Mettetal was "patted down for safety"; eventually a wallet was found containing more false identification. J.A. 29, 107.

 

- Throughout this contact, the Vanderbilt police attempted to confirm or refute the information provided to them by Mettetal, including checks with national computer databases and local sources. J.A. 29, 55, 72. Those efforts were fruitless, J.A. 30, but time-consuming. J.A. 36, 102.

 

- Mettetal's appearance and the officer's response to his conduct drew a crowd of spectators. J.A. 35.

 

- After approximately "30 to 40" minutes attempting to verify Mettetal's information, the Vanderbilt police placed him under arrest for criminal trespass. J.A. 36, 37. This charge was commonly placed by these officers for conduct like this; these arrests resulted in convictions under Tennessee law, both before and after the arrest in question. J.A. 37, 38, 41, 103, 117.

 

Following several hours of such testimony, the district court announced detailed findings of fact. J.A. 127 - 131. These facts, as analyzed by the district court In detail, established probable *8 cause for the Vanderbilt officers to have arrested Mettetal. In reaching this concluding, the district court announced and applied exactly the right definition of probable cause to arrest, J.A. 129, when it held that:

 

[The arresting officer] is called on to find [that] an objective police officer confronted with [these] facts would conclude that there was probable cause to believe that a crime had been or was being committed.

 

Although the district court did- not cite its authority for this standard, it was nearly quoting Manbeck, supra. The district court did quote this Court's decision in United States v. Hummer, 916 F.2d 186 (4th Cir. 1990), J.A. 129, as the framework for its analysis.

 

The district court went on to address a claim later made in the Appellant's brief - that Mettetal might not have been guilty of trespassing or other offenses, or that he might have had a defense to these charges. As Judge Michael noted, J.A. 130, that does not matter. The correct analysis is not whether the defendant is unarguably guilty or certainly defenseless, but whether the facts and circumstances known to the arresting officer would warrant a prudent person's belief that the person arrested had committed or was in the midst of committing an offense. Manbeck, supra.

 

Accepting, as this Court must, the district court's findings of fact unless clearly erroneous, and applying the law as announced in Manbeck and Hummer to those facts de novo, Judge Michael's process and outcome are entitled to affirmation.

 

*9 B. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT THE AFFIDAVIT SUPPORTING A PARTICULAR SEARCH WARRANT ESTABLISHED PROBABLE CAUSE TO SEARCH THE LOCATION SPECIFIED THEREIN.

 

1. Standard of Review

 

Appellate review of a judicial finding of probable cause to search, which finding resulted in the issuance of a search warrant, should accord "great deference" to that judicial officer's finding. United States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990). This review is not conducted de novo, but is limited to determining whether there was "substantial evidence" supporting the decision to issue the search warrant. Massachusetts v. Upton, 466 U.S. 727, 728 (1984).

 

2. Discussion of the Issue

 

Probable cause to search is "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). Probable cause may be established with information from sources, of known reliability, Draper v. United States, 358 U.S. 307, 313 (1959), or information of unknown origin if sufficiently corroborated. Gates, at 241. Corroboration of "innocent facts" may be sufficient. Id., at 243.

 

In support of the affidavit for a search warrant for unit 6 at *10 the Acorn Mini Storage, J.A. 138, Harrisonburg, Virginia, police investigator T. D. Hoover filed the form affidavit prescribed in the Virginia court system, accompanied by a further four single-spaced typed pages of information in support of the warrant [FN2]. J.A. 140 - 143. This submission, taken as a whole, summarized the facts of Mettetal's arrest in Tennessee, J.A. 140, together with information supporting earlier searches [FN3] of Mettetal's residence, J.A. 141, from which some evidence was seized. J.A. 135, 143.

 

    FN2. This entire addendum is captioned "PARAGRAPH 4" in reference to the paragraph number for the Virginia form Affidavit for Search Warrant.

 

    FN3. Mettetal's residence was searched by authority of a warrant on August 25, 1995, J.A. 135, and his office was searched by authority of another warrant later that same day, J.A. 137.

 

The new information in the affidavit for the warrant to search Acorn 6 was the last full paragraph. J.A. 143. In that paragraph, Hoover avowed that a private citizen, identified as Brent Yoder, had stepped forward several days after the. other searches, and after reading newspaper accounts of Mettetal's arrest, and reported that a person using the exact alias name under which Mettetal was arrested in Tennessee had rented a storage locker some nine months before, and that "Maupin" had provided Yoder with detailed information about himself [FN4], including an address and social *11 security account number. The name, social security account number, and address "Maupin" provided Yoder was the same as that appearing on false identification documents seized from Mettetal's house, some of which was accompanied by "known photograph[s] of Dr. Ray Mettetal, Jr." J.A. 143.

 

    FN4. The Appellant argues, at page 14 of his Brief, that "we are told nothing in the affidavit as to how Yoder came upon the information he gave" Hoover. This is not so. The affidavit recites that Yoder said Maupin "supplied the following information to Yoder when he rented the unit." J.A. 143.

 

From all of these facts and circumstances, Investigator Hoover reasoned that there was a fair probability that additional contraband or evidence of a crime would be found in Acorn 6, in the same way that evidence was actually found at Mettetal's residence [FN5]. It was reasonable to conclude that, if Mettetal was content to leave evidence at his house of the kind found there, while keeping his office completely clear of evidence of this conduct, it is even more likely that he would use an anonymous off-site storage locker to conceal the evidence sought.

 

    FN5. The Appellant argues, at page 16 of his Brief, that the items for

 

    which Hoover sought search authority in Acorn 6 had already been found. This, too, is false. For example, Hoover had not found the "items to produce false documents' in the residence, although Hoover did find numerous false identification documents there. Rather than lessening the likelihood that evidence would be found in Acorn 6, the search of the residence made the existence of these items even more probable.

 

When Judge Michael was called upon to review the magistrate's finding of probable cause, and when according that finding the "great deference" to which it was due, Blackwood, at 142, there was "substantial evidence" supporting the decision to issue the *12 search warrant [FN6]. Massachusetts v. Upton, at 728. This Court's review of the district court's review of the magistrate's findings should lead to the same result, especially since this Court should construe the evidence in the light most favorable to the United States. United States v. Seidman, 156 F.3d 542 (4th Cir. 1998).

 

    FN6. For reasons not known to your Appellee, the Appellant did not include Judge Michael's ruling on the motion to suppress the items found in Acorn 6 in the Joint Appendix, but it is not disputed that much tangible evidence was admitted at trial from, that search.

 

C. THE DISTRICT COURT DID NOT CLEARLY ABUSE ITS DISCRETION BY EXCLUDING EXPERT TESTIMONY ABOUT THE DEFENDANT'S MENTAL STATE OR CONDITION CONSTITUTING AN ELEMENT OF THE CRIME CHARGED.

 

1. Standard of Review

 

Appellate review of the district court's decision to admit or exclude expert testimony proceeds according to an "abuse of discretion" standard. United States v. Barsanti, 943 F.2d 428, 432 (4th Cir. 1991).

 

2. Discussion of the Issue

 

The disputed expert testimony in this trial consisted of a portion of the proposed testimony of a Dr. Kenner, whom the district court recognized as an expert in the field of psychiatry. J.A. 307, 324. The district court held a hearing in compliance *13 with Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). J.A. 307 to 326.

 

Kenner had examined Mettetal for a total of 5 hours over the year after his arrest in Tennessee and some two years before the trial. J.A. 307. Kenner also made use of psychological tests and opinions from a Dr. Auble. J.A. 308, 311.

 

Based on his five hours with Mettetal, J.A. 321, and based upon the work of Dr. Auble, Kenner concluded that Mettetal "suffered from an adjustment disorder with depressed mood." J.A. 311, 318. In layman's terms, according to Kenner, Mettetal was depressed. J.A. 318. Kenner testified, not in the presence of the jury, that Mettetal had significant difficulty coping with his anger with Dr. Allen, a former professor of Mettetal's at Vanderbilt, and that this difficulty resulted in an "elaborate scheme of enactments that allowed him to feel better about himself". J.A. 312. When permitted to ramble, Kenner did so with abandon. Before being stopped by the district court, Kenner observed that Mettetal's father was a physician, who was mean to Mettetal, and that the senior Mettetal used to box with the defendant, and that he hurt him. J.A. 313, 319. All of this information, save perhaps Mettetal's father's profession, simply had to come from the defendant's own purposeful statements during Kenner's brief visits with him or through the reports of the psychologist, who was also relying upon Mettetal's version of *14 events.

 

Kenner's advocacy for Mettetal's position, as evidenced by this testimony and as distinguished from Kenner's role as an impartial expert, led the district court to sustain numerous objections to Kenner's proposed testimony. J.A. 314, 316, 317.

 

Kenner's opinion was based, almost entirely, on what Mettetal, himself a medical doctor, told Kenner and told Auble, plus what Kenner saw on television. J.A. 314, 316, 320. Based on these questionable sources, Kenner proposed to testify that, in his expert opinion, Mettetal's behavior in question "was a pitiful ineffective way of trying to cope with his struggles to become a neurosurgeon and his frustration that he felt that he thought Dr. Allen was responsible for his being unable to do that. J.A. 316.

 

As the district court observed when trying to apply the Daubert principles to this proposed testimony, J.A. 322, much of this proffered information fell far short of the standard for the admission of expert opinion testimony. There was no evidence before the court that Kenner's data were reliable, in the sense that they had not been falsified by Mettetal, J.A. 323. There was no meaningful opportunity for peer review. J.A. 323. That the diagnosis of "affective disorder with depressed mood" is a recognized diagnosis within the psychiatric community, as evidenced by its inclusion in the Diagnostic and Statistical Manual, was undisputed. J.A. 323. What was not demonstrated that there was *15 "general acceptance" for Kenner's proposed opinion that Mettetal was a, harmless, ineffective individual, acting out but not intending this threatening behavior. J.A. 326.

 

But the district court went further in its analysis. It held that, even if Kenner's opinion about what Mettetal's intentions were would otherwise meet the Daubert tests, it would still be inadmissible under these circumstances because of Rule 704(b) of the Federal Rules of Evidence.

 

Rule 704(b) provides:

 

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of an offense thereto. Such ultimate issues are matters for the trier of fact alone.

 

Mettetal was standing trial for a violation of Title 18, United States Code, Section 175, which provides, in pertinent part, that it is unlawful for any person to possess any biological agent or toxin for use as a weapon. J.A. 19. This "for use as a weapon" phrase certainly identifies an element of the offense. J.A. 325. As the district court concluded, Kenner's proposed testimony that "Mettetal never was and never will be able or willing to harm someone" was pure conjecture, but more to the point was certainly the class of expert opinion expressly prohibited by Rule 704(b). J.A. 325.

 

As the trial resumed in the presence of the jury, Kenner was *16 permitted to offer his opinion on all appropriate issues, including his diagnosis of "adjustment disorder with depressed mood." J.A. 329. Kenner was permitted to read the list of symptoms or behaviors which lead to that diagnosis from the Diagnostic and Statistical Manual, J.A. 329 - 330. Rather tellingly, at the end of Kenner's testimony, and in a confused flurry of questions, objections, rulings and answers, Kenner tried to testify that Mettetal's trial testimony was consistent with or supported Kenner's findings which supported his opinion - an exercise in mutual vouching. J.A. 331, 332.

 

When Mettetal elected to testify, he essentially admitted all the facts proven by the government evidence but denied the element of "for use as a weapon". J.A. 343, 344, 356, 368, 370, 372, 373. One of his many summaries of his mental state, according to his trial testimony; was that "it was just a little crazy. I can't justify. . . a reasonable purpose for what I was doing.". J.A. 358.

 

Given Kenner's proposed testimony about Mettetal's intentions, and given the centrality of that element of the offense in Mettetal's theory of defense, it was entirely appropriate for the district court to limit Kenner's testimony to those aspects which passed the Daubert tests but which did not impermissibly invade the province of the jury in violation of Rule 704(b). This result, after such careful fact finding and analysis, does not represent an abuse of the district court's very broad discretion in this area.

 

*17 D. THE EVIDENCE WAS SUFFICIENT TO CONVICT METTETAL OF POSSESSION OF FALSE IDENTIFICATION DOCUMENTS.

 

1. Standard of Review

 

The test for reviewing the sufficiency of the evidence is whether a rational trier of fact could fairly find the defendant guilty beyond a reasonable doubt, viewing the evidence in the light most favorable to the government. United States v. Davis, 129 F.3d 117 (4th Cir.1997) (citing United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993). In assessing the evidence, the Court considers both circumstantial and direct evidence, giving the United States the benefit of all reasonable inferences from the facts proven to those sought to be established. Id.

 

2. Discussion of the Issue

 

Count Two of the Indictment alleged that Mettetal violated Section 1028(a)(3) of Title 18 in that he possessed five or more identification documents or false identification documents with intent to use them unlawfully, in or affecting interstate or foreign commerce. J.A. 20.

 

Section 1028(d)(1) of that same Title defines "identification document" as:

 

a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a foreign government, political subdivision of a foreign government, an international *18 governmental or an international quasi-governmental organization which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals; ...

 

A social security card is an identification document, at least for the purpose of the adjacent subsection of the same statute that prohibits trafficking in identification documents. United States v. Quinteros, 769 F. 2d 968, 970 (4th Cir. 1985). Accord, United States v. Rohn, 964 F. 2d 310 (4th Cir. 1992) (Reversed on other grounds).

 

The issues disputed before the jury were the same as Mettetal presents in this Court - whether the social security cards are "identification documents" within the meaning of the statute, whether the evidence established that Mettetal intended to use them. As to the driving licenses, there was the issue of whether Mettetal's possession of these documents was in or affected interstate commerce. These arguments miss a fundamental point - this Court is not convened to try this allegation de novo. So long as any reasonable trier of fact could have found that the evidence established the elements of this charge beyond a reasonable doubt, this Court must affirm the jury's verdict.

 

By the time the jury retired to deliberate on Count Two of the indictment, the jurors had heard that:

 

- In a search of Mettetal's residence in Harrisonburg, Investigator Hoover seized a number of identification *19 documents. J.A. 223. This group was admitted into evidence as Exhibit 16, and included a passport, some purported driving licenses, social security cards, and business cards all bearing Mettetal's alias "Maupin". These were found under a flight of stairs in the residence. Some of these documents bore Mettetal's photograph. J.A. 224.

 

- Lieutenant Hoover had also executed a search warrant at the Acorn 6 storage locker, J.A. 227, from which search Hoover seized further documents, including a detailed "to-do" list that speaks thrice of the need to acquire additional "ID blanks", "more Maupin ID", and "additional Maupin birth certificates". J.A. 232.

 

- An expert document examiner, Ms. Wooten, J.A. 272, examined these documents and concluded that they included three counterfeit Maryland driving licenses, one counterfeit Virginia driving license, three counterfeit social security cards, and counterfeit travel cachets in a "passport" [FN7]. J.A. 274. Some of these documents bore the name "Steven Ray Maupin", other bore the name "Charles Thacker". J.A. 272.

 

    FN7. Curiously, the passport was not counterfeit because it purports to have been issued by the "British West Indies", a nonexistent nation. It contained marks, however, some of which purport to be from real countries. J.A. 274, 284.

 

- The purported "British West Indies" passport contained counterfeit Hong Kong entry and departure stamps, J.A. 284, 286.

 

*20 - Three of the purported social security cards bore a close resemblance to genuine social security cards, J.A. 279 - 281, but some documents submitted were so obviously different from the genuine documents that Ms. Wooten did not consider them counterfeit. J.A. 282, 283.

 

- Some of these documents are commonly used as identification documents, when presented by themselves. J.A. 278, 291. Others, including the social security cards, were described as "supplemental identification" when presented with a photographic identification. J.A. 292, 295, 296, 298. Social security cards were described as an "identity document [required] for working". J.A. 296.

 

- All of this evidence, of course, could have appropriately been considered in the context of Mettetal's actions in Nashville, when he presented false identification in the same alias name - "Steven Ray Maupin" - even through the point of being arrested.

 

Considering all of this evidence,, and considering the evidence and fair inferences in the light most favorable to the verdict, it is clear that a reasonable jury could find that Mettetal possessed five or more false identification documents as alleged in the indictment and under the circumstances making that possession unlawful. This verdict is entitled to affirmation.

 

*21 E. THE DISTRICT COURT DID NOT ERR IN SELECTING AN ANALOGOUS SENTENCING GUIDELINE SECTION TO FASHION A SENTENCE FOR A VIOLATION HAVING NO SPECIFIED GUIDELINE.

 

1. Standard of Review

 

The selection of an analogous Guideline where no specific Guideline exists is reviewed de novo. United States v. Merino, 44 F.3d 749, 754 (9th Cir. 1994).

 

2. Discussion of the Issue

 

This case represents a case of first impression in this Circuit, and is nearly unprecedented throughout the federal system. The United States Sentencing Commission has not promulgated any specific Sentencing Guideline for violations of Section 175, J.A. 466, so the district court was required to consider other kinds of violations with a view to drawing out an analogy. J.A. 466. This process is dictated by Section 2X5.1 of the Sentencing Guidelines.

 

In the Presentence report, the probation officer, in consultation with the Sentencing Commission, J.A. 474, suggested that the Guideline most nearly analogous to the facts of Mettetal's case was Section 2Q1.1, the section associated with serious environmental crimes. J.A. 466. In commentary, the Sentencing Commission noted that this section was intended to apply to offenses committed with knowledge that the violation placed another person in imminent danger of death or serious bodily injury.

 

*22 In his objections to the presentence report, Mettetal presented essentially the same argument presented to this Court - that there are alternative Guidelines sections which result in shorter periods of incarceration and which, Mettetal believes, would be more nearly analogous. J.A. 480.

 

At Mettetal's sentencing hearing, these same arguments were presented at length by counsel, J.A. 382, 391, and were responded to by the United States, J.A. 386. The district court took up and considered every alternative analogy suggested, with particular reference to the evidence in this case, before discarding each as defective in some important particular. J.A. 394. After that exercise, Judge Michael found that Section 2Q1.1 was the closest analogy.

 

Since the selection of 2Q1.1 was appropriate, and was found to be more appropriate that any competing section, the district court did not err in selecting that section as its starting point for analysis of the Sentencing Guidelines implications of Mettetal's conduct.

 

F. THE DISTRICT COURT DID NOT CLEARLY ERR IN FINDING THAT METTETAL WAS NOT ENTITLED TO A GUIDELINE REDUCTION FOR "ACCEPTANCE OF RESPONSIBILITY".

 

1. Standard of Review

 

The district court's determination regarding acceptance of *23 responsibility is factual in nature, and must be upheld on appeal unless clearly erroneous. United States v. Strandquist, 993 F.2d 395, 401 (4th Cir. 1993).

 

2. Discussion of Issue

 

The probation service recommended that Mettetal not receive a reduction in his sentence for accepting responsibility. J.A. 466, 467. In his objections, Mettetal asserted that he thought he should receive a reduction for accepting responsibility in accordance with Section 3E1.1 of the Sentencing Guidelines. J.A. 478. At the sentencing hearing, Mettetal presented no evidence on this point. J.A. 377. The district court considered but rejected his objection, finding that Mettetal's refusal to acknowledge that his possession of ricin was for use as a weapon, which denial the court observed was a denial of an essential element of the offense charged, prevented the court from awarding those levels. J.A. 381.

 

Mettetal had the burden to prove, by a preponderance, that he was entitled to any downward adjustment for acceptance of responsibility. United States v. Harris, 882 F.2d 902, 907 (4th Cir. 1989). A defendant must accept responsibility for all of his criminal conduct to earn this reduction. Denial of a significant part of his criminality is disqualifying. United States v. Underwood, 970 F.2d 1336 (4th Cir. 1992).

 

*24 Since Mettetal did not admit that his possession of the toxin was for use as a weapon, the district court did not clearly err in finding that Mettetal had not borne his burden of proving his affirmative recognition of his guilt, and that no downward adjustment was appropriate in his case.

 

G. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DEPARTING UPWARD FROM THE ANALOGOUS SENTENCING GUIDELINE RANGE IN RECOGNITION OF THE UNUSUAL ASPECTS OF METTETAL'S VIOLATIONS.

 

1. Standard of Review

 

Appellate review of a district court's decision to depart upward from the Sentencing Guidelines proceeds on an "abuse of discretion" standard. United States v. Wells, 163 F.3d 889, 899 (4th Cir. 1998); United States v. Hairston, 96 F.3d 102, 106 (4th Cir. 1996), cert. denied, 117 S.Ct. 956 (1997).

 

2. Discussion of Issue: Theory

 

In United States v. Koon, 518 U.S. 81 (1996), the Supreme Court provided a detailed overview of the appropriate process a trial court must follow when considering an upward departure. Three categories of departures were identified in Koon:

 

- Departures based upon an "encouraged" factor,

 

- Departures based upon a "discouraged" factor or an *25 encouraged factor already taken into consideration in the applicable Guideline, and

 

- Departures based on factors not mentioned in the Guidelines.

 

Id. at 95.

 

Encouraged factors are those "the Commission has not been able to take into account fully in formulating the guidelines." Koon, 116 S. Ct. at 2045 (paraphrasing United States Sentencing Commission, Guidelines Manual, Section 5K2.0). Discouraged factors, by contrast, are those "not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range." Id, at 2045. See also, United States Sentencing Commission, Guidelines Manual, Chapter 5, Part H.

 

This Court's review of a departure is influenced by the category or categories of factors the district court identified as its justification for the departure. Hairston, 96 F.3d at 105. As this Court observed in Hairston, Koon permits departures for "encouraged" factors unless the factor is taken into consideration in the applicable guideline.

 

Departures supported by "discouraged" factors, or by "encouraged" factors fully taken into consideration in the computation of the total offense level, are permitted only if the factor is present to an exceptional degree or in some other way which makes the case different from the ordinary case in which the *26 factor is present.

 

In the third instance, in which the factor is not mentioned in the Guidelines at all, the sentencing court should analyze the proposed departure in the context of the structure and theory of the Guidelines as a whole. Hairston, 96 F.3d at 105.

 

3. Discussion of Issue: Application

 

The probation service recommended that the district court consider an upward departure. from the Sentencing Guidelines on three independent bases:

 

- The absence of specific offense characteristics in the Guideline section selected. J.A. 473, paragraph 61.

 

- The characteristics of this toxin as a weapon or dangerous instrumentality. J.A. 473, paragraph 62.

 

- The extremely long duration of Mettetal's violations, the extensive preparation involved, and the extensive "tracking" of Mettetal's quarry. J.A. 473, paragraph 63.

 

Mettetal objected to these paragraphs, J.A. 484, and the district court took up that objection at the sentencing hearing. J.A. 397. After much argument, J.A. 398 - 444, the district court concluded that an upward adjustment was appropriate. J.A. 444. The court expressed recognition of its responsibility to express the extent of upward adjustment in terms consistent with ordinary Guideline application principles. J.A. 445.

 

*27 As to the first suggested factor, the "more than minimal planning", the court imposed a two-level increase. J.A. 446. Although the court did not expressly cite a Guideline Section as its basis for selecting two levels for this part of the departure, the record strongly supports the inference that the district court was looking to the "more than minimal planning" two-level adjustment found elsewhere in the Guidelines. J.A. 445, 446 (colloquy with probation officer). See, for example, United States Sentencing Commission, Guidelines Manual Section 2F1.1(b)(2). This factor was not previously taken into consideration in the computation leading to the offense level, and is not a "discouraged" factor in Section H of Chapter 5 of the Guidelines, and is therefore a permissible basis for departure under Koon. The district court's methodology leading to the extent of the departure, being modeled after the adjustment expressly provided elsewhere in the Guidelines, is particularly favored in this Circuit. See, for example, United States v. Gary, 18 F.3d 1123, 1131 (4th Cir 1994) (analogies to similar offenses or aggravating circumstances provide "the best method" for a principled determination of departures).

 

Similarly, the next basis for departure resulted in a further two-level upward adjustment for the dangerousness of the weapon. J.A. 447. This factor had not previously been taken into consideration in the computation leading to the offense level, is *28 not a "discouraged" factor in Section H of Chapter 5 of the Guidelines, but rather is expressly identified as an encouraged factor in Section 5K2.6. The district court found that the ricin present in this case, by its nature alone and without reference to the quantity involved, was "extraordinarily dangerous", J.A. 447. This finding of fact, applied to this encouraged factor, is therefore a permissible basis for departure under Koon.

 

Mettetal's final sentence range was adjusted upward by a third two-level adjustment in recognition of the extremely large amount of the toxin he possessed. J.A. 448. The evidence was that the 43 grams of ricin found in Acorn 6, if delivered "effectively" through inhalation was estimated as sufficient to kill "approximately 3,900" people. J.A. 260. This haunting testimony was recalled by the district court at sentencing, J.A. 448, and led that court to conclude that the extreme quantity of the toxin justified an additional upward adjustment.

 

This factor had not previously been taken into consideration in the computation leading to the offense level, and is neither a "discouraged" factor in Section H of Chapter 5 of the Guidelines nor an "encouraged" factor in Section 2K2.0 et seq. Under the Koon analysis, the better practice would have been for the district court to have analyzed the proposed departure in the context of the Guidelines as a whole, but the court did not expressly do so. J.A. 448. The sentencing court did expressly acknowledge that in *29 fashioning a sentence, it was also guided and restrained by statutory authority, specifically Title 18, United States Code, Section 3553(a)(2). J.A. 429, 450. It also spoke of the lack of guidance the court felt in the context of this peculiar, even unprecedented case. J.A. 386, 393 ("Uncharted waters").

 

On appeal, Mettetal raises only one concern about this process and outcome, and that concern is that the factors upon which the district court relied were already taken into account in the sentencing guideline. Brief of the Appellant, page 28. This concern is misplaced for two reasons. First, as noted above, Section 2Q1.1 of the Sentencing Guidelines makes no mention of "more than minimal planing", or of an adjustment for the dangerousness of the toxin, or of an adjustment for the quantity of the material. Stated differently, 2Q1.1 would have been an appropriate analogous guideline even if Mettetal has possessed far less of a far less dangerous material, and had done so on impulse. An upward adjustment is therefore uniquely appropriate to take into consideration the public safety aspects of Mettetal's violation, and to take into consideration Mettetal's likelihood of recidivism.

 

The second reason this argument fails under Koon is that, even if the factors had been taken into consideration in computing the guideline range, these factors were present to an exceptional degree beyond the "normal" case, as the district court found. J.A. 445, 447, 448.

 

*30 In the context of this entire hearing, and considering the systematic fact finding the district court followed throughout this troubled, lengthy, and difficult sentencing process, the district court's failure to expressly recite its thought processes in detail when announcing this, third adjustment does not rise to the level of abuse of the court's sentencing discretion, especially in the absence of a challenge on this basis. These findings of fact, applied to this factor, are therefore a permissible basis for departure under Koon.

 

Although not expressly discussed as a basis for an additional departure or as additional justification for one of the three departures previously discussed, the district court could have departed based on the psychological injury Mettetal inflicted on Dr. Allen and his family. J.A. 465, 449. This basis for departure would have been an "encouraged" factor in light of Section 5K2.3 of the Guidelines. Even though not earning Mettetal a higher range of sentencing, the district court was clearly concerned about the impact upon the victims, and that this concern was "considered] in fixing a sentence". J.A. 449.

 

In summary, the district court was faced with a truly exceptional case, in which the Sentencing Guidelines were not particularly useful except as a starting point for the discussion leading up to the imposition of sentence. The sentence imposed was selected by the district court in careful deference to the *31 statutory framework and in recognition of the useful aspects of the sentencing Guidelines. The district court conscientiously and thoughtfully exercised its discretion after a full and fair hearing during which the competing points of view were aired. If Mettetal did not receive a perfect sentencing process, he received a process that was as nearly perfect as could be afforded him. This process, and its result, should be affirmed by this Court.

 

VI STATEMENT CONCERNING ORAL ARGUMENT

 

The United States asserts that the issues are sufficiently straightforward, sufficiently well developed in the record, and suitably clear that oral argument will not be necessary for the full exposition of the competing points-of-view. For this reason, the United States asks that this Court resolve the issues on the briefs alone.

 

*32 VII CERTIFICATE OF COMPLIANCE

 

1. This brief was prepared using twelve point Courier New monospaced typeface in WordPerfect Version 8.

 

2. This brief consists of 31 pages containing approximately 6800 words.

 

I understand that a material representation can result in the Court's striking the brief and imposing sanctions. If the Court so directs, I will provide an electronic version of the brief and/or a copy of the word or line print-out.