Appeal from judgment of conviction entered in the United States District Court for the Western District of New York, Michael A. Telesca, Judge.
Feinberg, Chief Judge, Winter, Circuit Judge, and Lasker, District Judge.*fn*
Michael Stockwell appeals from his conviction in the Western District of New York (Michael A. Telesca, Judge) on a five-count indictment charging him with bank robbery, bank larceny and armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), (b) and (d) (1982), respectively, possession of a firearm in violation of 26 U.S.C. § 5861(c) (1982), and possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d) (1982).
On October 29, 1982, Stockwell, acting alone, robbed the East Rochester branch of the Marine Midland Bank, armed with a sawed-off shotgun. Stockwell admitted the robbery at trial and disputed only the issue of intent, relying on a defense of insanity. Stockwell called Dr. Christopher Bauer, a licensed clinical psychologist, who testified that as a result of a narcissistic personality disorder with features of an anti-social personality disorder, together with a history of alcohol abuse and alcohol dependence, Stockwell lacked substantial capacity to conform his conduct to the requirements of the law on the day of the bank robbery. Stockwell also testified in his own behalf, recounting a life-long history of alcohol abuse and of problems in his personal relationships and relationships with employers.
Prior to trial, Stockwell was examined for the government by Dr. Richard Ciccone, Associate Professor of Psychiatry at the University of Rochester Medical School. Stockwell's counsel objected to the prosecutor's plans to be present at the interviews, and the prosecutor did not personally attend. Later, however, she listened to a complete tape recording of the interviews. Dr. Ciccone essentially confirmed Dr. Bauer's diagnosis, but testified that Stockwell had no psychotic symptoms whatsoever and that on the day of the robbery Stockwell did have substantial capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law.
The jury returned a verdict of guilty on all five counts of the indictment. The District Court vacated the bank larceny and bank robbery counts*fn1 and sentenced Stockwell to a ten-year term of imprisonment on each count. This appeal followed.
Stockwell argues that the government violated Rule 12.2(c) of the Federal Rules of Criminal Procedure and his Fifth Amendment right against self-incrimination by making impermissible use at trial of his statements to Dr. Ciccone. Rule 12.2(c) authorizes the court to order a defendant who intends to raise an insanity defense to submit to a psychiatric examination at the government's request. The Rule further provides (in the version in effect at the time of the trial) that "no statement made by the accused in the course of any examination provided for by this rule, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding."*fn2
Stockwell contends that the prosecutor's cross-examination violated Rule 12.2(c) by employing information obtained in the psychiatric examination to carry out a general attack on his character and credibility rather than simply to rebut his insanity defense. He points out that, after his first interview with Dr. Ciccone, the government obtained a large number of documents relating to matters discussed at the interview, including Stockwell's school records, social service records, medical records, military service records, and employment records.*fn3 Stockwell argues that the government's use of these records, and other information obtained by Dr. Ciccone from Stockwell, was unrelated to the issue of sanity or insanity, and was directed instead to establishing that he was a life-long liar who was unworthy of belief. The government answers that the cross-examination about which defendant complains dealt only with factual matters which were brought out on direct in support of Stockwell's claim of insanity, and that, accordingly, the government's cross-examination constituted a permissible attempt to meet the defendant's proof on that issue.
Rule 12.2(c) protects the defendant's Fifth Amendment right against self-incrimination to the extent compatible with the government's right to respond to an insanity defense, by limiting the use of statements obtained in the examination solely to the issue of insanity. See United States v. Halbert, 712 F.2d 388, 389-90 (9th Cir. 1983), cert. denied, 465 U.S. 1005, 104 S. Ct. 997, 79 L. Ed. 2d 230 (1984); United States v. Madrid, 673 F.2d 1114, 1119-21 (10th Cir.), cert. denied, 459 U.S. 843, 74 L. Ed. 2d 88, 103 S. Ct. 96 (1982); United States v. Leonard, 609 F.2d 1163, 1165-66 (5th Cir. 1980).*fn4 Although this rule is simply stated, applying it in the circumstances of this case is not an entirely straightforward proposition, because of the difficulty of drawing a bright line between rebuttal of an insanity defense, on the one hand, and a general attack on credibility on the other.
Our view of the cross-examination, however, satisfies us that the prosecutor remained within the bounds of a legitimate attempt to challenge the insanity defense presented by Stockwell and did not misuse the material derived from Dr. Ciccone's interview of Stockwell. The defendant objects, for example, to the prosecutor's cross-examination regarding bad checks he once wrote. On his direct examination, however, Stockwell testified that the bad checks he wrote were related to the drinking problem which constituted an important aspect of his insanity theory: he testified that he had written bad checks because of the large amount of money he was spending on liquor. On cross-examination, the prosecutor attempted to cast doubt upon this contention by bringing out the fact that the checks were written for purchases other than liquor. The fact that the government may have obtained information about the bad check as a result of the defendant's statements during the psychiatric examination has no invidious implications, since the information was employed only to counter matters brought out in support of the insanity defense.
Similarly, the government's cross-examination as to statements Stockwell made to personnel at a VA hospital was permissible to challenge his contention on direct that he had no "dry periods" of any length since 1974 or 1975. In contrast to that testimony, Stockwell had informed the VA personnel that he had been dry for four months in August of 1982. The prosecutor's question regarding "a lot of prefabrication [sic] throughout your life" was a justifiable response to Stockwell's statement that he had lied to the VA personnel. It was not, as Stockwell claims, an example of improper use of collateral material gleaned from the psychiatric examination.
Moreover, the district court sustained objections to the line of questioning which most arguably ventured beyond the proper bounds of the question of Stockwell's sanity, namely, the prosecutor's cross-examination as to incidents in which the defendant purportedly lied to or otherwise mistreated his former wives.*fn5 Obviously, matters as to which ...