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Filed: Patrick Fisher
Filed: Patrick Fisher
APR 28 2004
PATRICK FISHER
Clerk
No. 03-4282
(D. Utah)
(D.Ct. No. 03-CR-701-DAK)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
OBRIEN, Circuit Judge.
Cruz Joaquin Visinaiz was indicted on one count of second degree murder.
This appeal stems from a district court order granting the governments motion
for a psychiatric evaluation of the defendant in response to Mr. Visinaizs notice
of his intent to introduce expert witness testimony as to his mental condition at
the time of the offense. Mr. Visinaiz contends the district court erred when it
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*
The government charged Mr. Visinaiz with second degree murder within
Indian Country in violation of 18 U.S.C. 1111(a) and 1153(a). The district
court then detained Mr. Visinaiz pending trial, finding him a serious flight risk
and a serious danger to the community. Subsequently, Mr. Visinaiz filed a Notice
and an Amended Notice of Expert Witness Testimony of Mental Condition
pursuant to Federal Rule of Criminal Procedure 12.2(b), stating he may introduce
evidence through an expert witness at trial as to his mental condition at the time
of the alleged murder. Specifically, the Amended Notice states the expert may
testify about Mr. Visinaizs state of mind at the time of the decedents death,
given his medical diagnoses for agoraphobia, panic disorder and alcohol abuse.
Mr. Visinaiz explained this testimony would support his theory of self-defense by
establishing the reasonableness of his subjective beliefs at the time of the alleged
murder. In conjunction, Mr. Visinaiz also provided the government the report of
an expert witness intended for use at trial.
4242(a), and 4247(b). In the alternative, the government moved to exclude the
expert witness report and testimony, asserting they were irrelevant and
immaterial to Mr. Visinaizs self-defense theory.
Mr. Visinaiz filed a motion to vacate this commitment order and attached a
letter written by his expert witness psychologist indicating his competency to
stand trial. During the hearing on his motion to vacate, Mr. Visinaizs attorney
argued commitment was unnecessary and clarified Mr. Visinaizs intent to rely
only on a self-defense theory and not raise an insanity or diminished capacity
defense at trial. Although the district court heard oral argument, it took no
evidence and made no findings of fact regarding Mr. Visinaizs past or present
The order and amended order were filed pursuant to 18 U.S.C. 4241(a)
allowing examination to determine competency to stand trial, 4242(a) allowing
examination to determine sanity at the time of the offense, and 4247(b) explaining the
procedures to be used in conducting these examinations.
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mental state. After the hearing, the district court reaffirmed its decision, but
amended the order to limit the time of evaluation to seventy-five days. This
appeal followed and the district court stayed its order for in-custody psychiatric
evaluation pending resolution of this interlocutory appeal.
Mr. Visinaiz raises one issue on appeal: whether the district court erred
when it committed him for psychiatric evaluation based on his Rule 12.2(b) notice
to present evidence regarding his mental state at the time of the offense,
especially in light of its failure to take evidence or make findings of fact for the
basis of its decision.
JURISDICTION
Before reaching the merits of this case, we must first determine whether we
have jurisdiction to hear this appeal. Specifically, we must determine whether the
district courts commitment order is immediately appealable. Generally, under
the final judgment rule, this court only exercises jurisdiction over appeals from
final decisions from the district courts. 28 U.S.C. 1291. In the criminal
context, this means a defendant is required to await conviction and sentencing
before bringing an appeal. Flanagan v. United States, 465 U.S. 259, 263 (1984).
However, the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp.,
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337 U.S. 541, 545-47 (1949), provides limited exceptions to the final judgment
rule for interlocutory appeals. Under the collateral order doctrine, a litigant may
seek immediate review of an order if it (1) conclusively determine[s] the
disputed question, (2) resolve[s] an important issue completely separate from the
merits of the action, and (3) [is] effectively unreviewable on appeal from a final
judgment. Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989)
(quotation marks and citation omitted).
It is clear the first factor of the collateral order doctrine is present in this
case because the district courts order conclusively determined Mr. Visinaiz
should be committed for psychiatric examination. See United States v. Deters,
143 F.3d 577, 581 (10th Cir. 1998) (concluding a district courts order confining
a defendant for a competency evaluation satisfied the first factor of the collateral
order doctrine.)
Next, the order also resolved an important issue completely separate from
the merits of the action. Specifically, Mr. Visinaiz will suffer a loss of liberty by
his involuntary commitment, and, this issue is completely independent of Mr.
Visinaizs guilt or innocence of his second degree murder charge. Although the
government argues Mr. Visinaiz suffers no loss of liberty by being committed to
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Finally, we conclude the last factor is also satisfied because the order
would be unreviewable on appeal. Specifically, post-confinement review could
not provide adequate relief for Mr. Visinaizs immediate loss of liberty during his
commitment. Deters, 143 F.3d at 581 (citing United States v. Weissberger, 951
F.2d 392, 396-97 (D.C. Cir. 1991). We determine we have jurisdiction over this
interlocutory appeal and now address the merits of Mr. Visinaizs claims.
ANALYSIS
Mr. Visinaiz argues the district court erred when it ordered him committed
for a competency examination in response to his notice of intent to present expert
witness testimony of his mental state at the time of the offense, pursuant to Rule
12.2(b). Specifically, Mr. Visinaiz asserts the ordered involuntary commitment
for up to seventy-five days without reasonable cause violates his rights to
substantive and procedural due process. While we agree with Mr. Visinaizs
general argument and conclude the district court erred in committing him for
psychiatric evaluation, we avoid deciding the constitutional issues raised in this
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appeal because the merits of this case can be resolved on narrower grounds. See
ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1186 n.8 (10th Cir. 1998) (holding
federal courts should avoid reaching the merits of a constitutional issue when the
case may be decided on [other] grounds), cert. denied, 525 U.S. 1122 (1999). In
reviewing the appropriateness of a Rule 12.2 order for psychiatric confinement,
we accept the district courts findings of fact unless they are clearly erroneous,
and give appropriate deference to the district courts conclusions. See Deters,
143 F.3d at 584; In re Newchurch, 807 F.2d 404, 412 (5th Cir. 1986).
Under Rule 12.2, a defendant must provide the government with notice of
intent before trial to (a) assert a defense of insanity at the time of the offense, or
(b) introduce expert evidence relating to a mental disease, defect or condition
bearing on the issue of guilt. Fed. R. Crim. Proc. 12.2(a) and (b). According to
the Advisory Committee Notes, the purpose of this rule is to provide the
government with adequate time to prepare to meet the issue with expert
testimony. See Committee Notes, 1983 Amendments, West Federal Criminal
Code and Rules (2004 ed.) at 86. After notice under Rule 12.2(a), the district
court must, on the governments motion, order the defendant examined under 18
U.S.C. 4242. Fed. R. Crim. Proc. 12.2(c)(1)(B). Alternatively, after notice
under Rule 12.2(b), the district court may, on the governments motion, order
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At the hearing, the district court expressly acknowledged Mr. Visinaiz did not
raise the issue of his competency to stand trial, and it did not suspect Mr. Visinaiz was
incompetent. Nevertheless, the district court issued the commitment orders, in part,
pursuant to 18 U.S.C. 4241(a), regarding competency examinations, and noted at the
hearing it was unsure of Mr. Visinaizs competency. In the event the district court
issued the commitment order based, in part, on a question of competency, our holding is
the same as that provided with respect to its decision for an insanity commitment and
examination.
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Moreover, while Mr. Visinaizs counsel indicated at the hearing that the court
could interview his client and the two investigators, also attending the hearing and
available to testify, to make an initial determination on his sanity for the purpose of
deciding the commitment issue, the district court took no evidence.
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itself, and despite recent amendments, does not authorize commitment or incustody examinations. See United States v. Rinaldi, 351 F.3d 285, 289 (7th Cir.
2003); Davis, 93 F.3d at 1295 (6th Cir.). We also recognize the statutory scheme
allowing courts to temporarily confine defendants during psychiatric evaluations
under 18 U.S.C. 4241 and 4242 are expressly limited to competency and
insanity determinations, see Deters, 143 F.3d at 578 (relying on 18 U.S.C.
4247(b)). Similarly, the 2002 amendments to Rule 12.2 indicate no statutory
counterpart exists for Rule 12.2(b) examinations, but that, in exercising its
discretion, the court may be informed by other provisions that address hearings,
including for example, 18 U.S.C. 4241, et seq. Committee Notes, 2002
Amendments at 88. We also recognize the courts inherent authority to order
mental examinations, see United States v. McSherry, 226 F.3d 153, 156-57 (2d
Cir. 2000), but also recognize some courts have held such authority only applies
to noncustodial examinations. See Rinaldi 351 F.3d at 289 (holding made after
2002 amendments); Davis, 93 F.3d at 1295-96 (holding made prior to 2002
amendments). Consequently, while it is clear the district court has authority to
order a noncustodial examination under Rule 12.2(c) for mental conditions raised
under Rule 12.2(b), it is not as clear with regard to custodial examinations.
We need not decide the issue of whether the district court has authority to
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order custodial examination under Rule 12.2(b) because nothing in the record here
supports the district courts order for commitment for the purposes of a mental
examination. Therefore, the district court, under the circumstances presented,
erred in ordering commitment of Mr. Visinaiz for a mental examination.
CONCLUSION
For the foregoing reasons, we conclude the district court erred in ordering
Mr. Visinaiz committed for psychiatric evaluation pursuant to either Rule 12.2(a)
or Rule 12.2(b). We leave to the district courts discretion the procedures applied
for any noncustodial mental examination of Mr. Visinaiz under Rule 12.2(b).
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