United States v. Robert L. Prickett, 790 F.2d 35 (6th Cir. 1986). · Go Syfert
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United States v. Robert L. Prickett, 790 F.2d 35 (6th Cir. 1986). Cases Citing This Book View Copy Cite
24 citation events (1 in the last 25 years) across 14 distinct courts.
Strongest positive: United States v. Johnson (iand, 2005-01-03)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Johnson
N.D. Iowa · 2005 · confidence medium
Compare id. (noting that the Texas statute authorized the conviction of the defendant on the testimony of the victim alone, when testimony of the victim plus corroboration was previously required to convict the defendant, so that application of the amended statute violated the ex post facto clause); with Hopt v. Utah, 110 U.S. 574, 589 , 4 S.Ct. 202 , 28 L.Ed. 262 (1884) (explaining that “[statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; …
discussed Cited as authority (rule) United States v. Barry L. Knipp (91-5312), and Vernon L. Hamilton (91-5452)
6th Cir. · 1992 · confidence medium
Although this circuit has not directly decided this issue, it has stated that “a change in the law which is procedural is not ex post facto even though it may work to the disadvantage of the defendant.” United States v. Prickett, 790 F.2d 35, 37 (6th Cir.1986).
discussed Cited as authority (rule) Sexton v. Arkansas Supreme Court Committee on Professional Conduct (2×) also: Cited "see, e.g."
W.D. Ark. · 1990 · confidence medium
The Eighth Circuit, and several other circuits, have held that the statute could be applied retroactively “because it represented a procedural, as opposed to substantive, change in the applicable law.” U.S. v. Bartlett, 856 F.2d 1071 , 1077 n. 7 (8th Cir.1988); see also United States v. Mest, 789 F.2d 1069, 1072-73 (4th Cir.), cert. denied, 479 U.S. 846 , 107 S.Ct. 163 , 93 L.Ed.2d 102 (1986); United States v. Prickett, 790 F.2d 35, 37 (6th Cir.1986); United States v. Alexander, 805 F.2d 1458, 1461-62 (11th Cir.1986).
discussed Cited as authority (rule) John E. Reneer v. Commonwealth of Kentucky
6th Cir. · 1989 · confidence medium
See Weaver v. Graham, 450 U.S. 24, 29, fn. 12 (1981); United States v. Prickett, 790 F.2d 35, 37 (6th Cir.1986). 10 Finally, the statute is not "void for vagueness." A statute which describes conduct to be undertaken by the government, rather than proscribing individual conduct, is not impermissibly vague if it clearly affords notice to a person of ordinary intelligence of the action to take place and the action expected of the individual.
cited Cited as authority (rule) United States v. Charles Stanley Sissom
6th Cir. · 1988 · confidence medium
United States v. Prickett, 790 F.2d 35, 36 (6th Cir.1986); United States v. Mitchell, 514 F.2d 758, 760 (6th Cir.), cert. denied, 423 U.S. 847 (1975).
discussed Cited as authority (rule) United States v. Paul Ray Cox
6th Cir. · 1987 · confidence medium
Thus, the practical effect of the Rule 704(b) amendment was not to change the quantum or quality of expert testimony utilized to convict an offender, United States v. Prickett, 790 F.2d 35, 37 (6th Cir.1986), but to change “the style of question and answer that can be used to establish both the offense and the defense thereto.” United States v. Mest, 789 F.2d 1069, 1071 (4th Cir.), cert. denied, - U.S. -, 107 S.Ct. 163 , 93 L.Ed.2d 102 (1986).
discussed Cited as authority (rule) United States v. Layton
N.D. Cal. · 1987 · confidence medium
See United States v. Alexander, 805 F.2d 1458, 1461-62 (11th Cir.1986) (holding that retroactive application of Rule 704(b) does not violate the constitutional prohibition against ex post facto laws); United States v. Prickett, 790 F.2d 35, 37 (6th Cir.1986) (same); United States v. Mest, 789 F.2d 1069 (4th Cir.) (same), cert. denied, — U.S. -, 107 S.Ct. 163 , 93 L.Ed.2d 102 (1986). 9 .
discussed Cited "see" United States v. John David Bartlett
8th Cir. · 1988 · signal: see · confidence high
See United States v. Prickett, 790 F.2d 35, 37 (6th Cir.1986) (concluding that the change in Rule 704(b) was procedural and its application was not an ex post facto violation); United States v. Mest, 789 F.2d 1069, 1072-73 (4th Cir.), cert. denied, 479 U.S. 846 , 107 S.Ct. 163 , 93 L.Ed.2d 102 (1986) (same).
discussed Cited "see, e.g." United States v. Johnny Ray Graham (2×)
6th Cir. · 1988 · signal: see, e.g. · confidence low
See, e.g., United States v. Prickett, 790 F.2d 35 (6th Cir.1986); United States v. Whitley, 734 F.2d 1129 (6th Cir.1984); United States v. Ranzoni, 732 F.2d 555 (6th Cir.), cert. denied, 469 U.S. 916 , 105 S.Ct. 292 , 83 L.Ed.2d 228 (1984); United States v. Mitchell, 514 F.2d 758 (6th Cir.), cert. denied, 423 U.S. 847 , 96 S.Ct. 86 , 46 L.Ed.2d 68 (1975). 26 Subsequent to the jury rendering its verdict and the district court sentencing Graham, the United States Supreme Court rendered its decision in Mathews v. United States, --- U.S. ----, 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert L. PRICKETT, Defendant-Appellant
85-3359.
Court of Appeals for the Sixth Circuit.
May 7, 1986.
790 F.2d 35
Rebecca J. Wolf, Daniel J. O’Brien, argued, Dayton, Ohio, for defendant-appellant., James A. Wilson, argued, Asst. U.S. Atty., Dayton, Ohio, for plaintiff-appellee.
Martin, Guy, Reed.
Cited by 12 opinions  |  Published
BOYCE F. MARTIN, Jr., Circuit Judge.

Robert Prickett was found guilty by a jury of knowingly and intentionally distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1), using a telephone to facilitate the manufacture of methamphetamine in violation of 21 U.S.C. § 843(b), knowingly and intentionally manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1), and knowingly and intentionally possessing, with the intent to distribute, a quantity of methamphetamine in violation of 21 U.S.C. § 841(a)(1). His arrest came after several months of undercover investigation by DEA officials and government informers. Here, his most notable assignment of error involves the denial by the trial court of his entrapment defense, and the exclusion of expert witness’ opinion on his mental condition at the time he allegedly committed the offense.

Despite repeated requests by counsel to instruct on entrapment, the trial court refused to do so. In United States v. Mitchell, 514 F.2d 758 (6th Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 86, 46 L.Ed.2d 68 (1975), this Court held that failure to admit all elements of the offense precluded raising the defense of entrapment. Here, Prickett denied knowing that the substance delivered to one of the government agents was methamphetamine. He also denied that methamphetamine was seized from his laboratory at home, that he distributed methamphetamine to a DEA agent, that he ever possessed methamphetamine or that he manufactured methamphetamine. He also denied having any criminal intent by testifying that he produced only ephedrine, the precursor of methamphetamine, in the course of his legitimate chemical research. On three previous occasions, we have expressly held that failure to admit the mens rea element of a crime precludes reliance upon the defense of entrapment. See United States v. Wilcox, slip op. No. 83-3916, 7 (6th Cir. November 12, 1985); United States v. Ranzoni, 732 F.2d 555, 560[*37] (6th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 292, 83 L.Ed.2d 228 (1985); United States v. Bryant, 716 F.2d 1091, 1094 (6th Cir.), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984). Prickett continues to rely, as he did in the court below, upon a mens rea-related defense, the defense of insanity. As we pointed out in Bryant, 716 F.2d at 1094, such a reliance precludes resort to entrapment as a defense.

His argument that the trial court’s failure to give an entrapment instruction deprived him of his constitutional right to remain silent is clearly without merit. He took the stand and volunteered his testimony, making this argument now untenable. See United States v. Henry, 749 F.2d 203, 210-211 (5th Cir.1984); United States v. Annese, 631 F.2d 1041, 1047 (1st Cir.1980).

As to the insanity defense, his witness, Dr. Mahmed Faruki, was not allowed to express an opinion on whether Prickett was able to conform his behavior to the law and whether Prickett was able to appreciate the wrongfulness of his act. Such an opinion, of course, would have embraced an ultimate issue of fact in this case. Following his arrest, but prior to trial, the Senate Judiciary Committee amended Fed.R. of Evid. 704, to take effect on October 12, 1984. The rule, as amended, [1] prohibits expert testimony on an ultimate issue of fact. Under Rule 704, as it was prior to its amendment, the testimony might have been admissible. Prickett contends that former Rule 704 should have been applied because that was the rule in effect at the time the crimes were allegedly committed, and the application of current Rule 704(b) violates the constitutional prohibition against ex post facto laws. We are not persuaded by this argument.

A change in the law which is procedural is not ex post facto, even though it may work to the disadvantage of the defendant. See Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2297, 53 L.Ed.2d 344 (1977); Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925). In Dobbert, 432 U.S. at 294, 97 S.Ct. at 2298, the court found the change in Florida law, procedural and not ex post facto, stating that the crime for which the defendant was indicted, the punishment prescribed, and the quantity or degree of proof necessary to establish guilt, all remained unaffected by the subsequently enacted statute. In Beazell, 269 U.S. at 170-71, 46 S.Ct. at 68-69, the court noted “statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage” are permissible.

Applying Dobbert and Beazell, we can only conclude that the change in Rule 704(b) was procedural and its application here did not amount to an ex post facto violation of Article I of the Constitution. New Rule 704(b) has no impact upon the crimes for which Prickett has been indicted nor on the punishment prescribed by Congress. Nor does Rule 704(b), as amended, change the quantity or degree of proof necessary to establish his guilt. While the new Rule 704(b) may work to disadvantage the introduction of expert testimony as to mental condition at the time of his alleged offenses, it does not deprive him of an insanity defense.

The judgment of the district court, 604 F.Supp. 407, is affirmed.

1

. Rule 704. Opinion on ultímate issue

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) 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 a defense thereto. Such ultimate issues are matters for the trier of fact alone.