449 F.3d 1121 (10th Cir. 2006), 05-7000, United States v. Allen

Docket Nº:05-7000.
Citation:449 F.3d 1121
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bobby Scott ALLEN, Defendant-Appellant.
Case Date:June 05, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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449 F.3d 1121 (10th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,


Bobby Scott ALLEN, Defendant-Appellant.

No. 05-7000.

United States Court of Appeals, Tenth Circuit.

June 5, 2006

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Jeffrey A. Gallant, Assistant United States Attorney, (Sheldon J. Sperling, United States Attorney with him on the brief) Muskogee, OK, for Plaintiff-Appellee.

J. Lance Hopkins, Tahlequah, OK, for Defendant-Appellant.

Before TACHA, Chief Judge, HOLLOWAY and HARTZ, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellant Bobby Scott Allen was indicted on a single count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Defendant and the prosecution reached an agreement and drafted a stipulation consistent with that agreement calling for defendant to be found not guilty by reason of insanity and committed for psychiatric treatment. The court refused to accept the stipulation, as we discuss in more detail infra, and later ruled that defendant would not be permitted to introduce evidence of insanity at trial. The parties then entered into a conditional plea agreement, under the terms of which Mr. Allen pleaded guilty to the single count against him while reserving the right to bring this appeal from the district court's rulings on the insanity defense. We reverse and remand.


Mr. Allen had a fairly lengthy history of mental illness which need not be described in detail here. Some five months after his indictment, his attorney filed on his behalf a Motion for Competency and Sanity Evaluation, which the district court granted. Mr. Allen was then evaluated at the Federal Medical Center in Ft. Worth, Texas by Dr. Randall Rattan, a forensic psychologist and an employee of the United States Bureau of Prisons. Dr. Rattan produced a report finding that defendant was mentally ill but not insane and was competent to stand trial. A competency hearing was scheduled before a magistrate judge.

At the time scheduled for the hearing, the parties and the magistrate judge all seemed to agree that the report was not clear. Consequently, the parties jointly asked the magistrate judge to re-set the hearing for a later date to permit Dr. Rattan to prepare a supplemental or amended report to address both the issue of competency and the issue of sanity. Mr. Allen was not sent back to Ft. Worth, but Dr. Rattan made the journey from Ft. Worth to Muskogee to interview Mr. Allen again.

After conducting additional interviews with Mr. Allen and his family, Dr. Rattan submitted a revised report on February 9, 2004. In the revised report Dr. Rattan concluded that defendant was competent to stand trial. On the separate issue of defendant's sanity at the time of the offense, Dr. Rattan concluded that Mr. Allen was "unable to appreciate the wrongfulness of his alleged offense behavior." Under the Insanity Defense Reform Act of 1984 (IDRA):

It is an affirmative defense to a prosecution under any Federal statute that, at

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the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

18 U.S.C. § 17(a).

In view of Dr. Rattan's opinion, the parties entered into a stipulation and "Recommendation for Disposition," asking the court to find Mr. Allen not guilty by reason of insanity and to commit him for treatment in a confined facility. The court held a hearing on the stipulation and recommendation, at which time the judge expressed doubt about whether he should follow the recommendation. The judge stated that "at least from a layman's point of view, it appears that the psychiatrist [sic] is influenced at least by the conclusion that the defendant purchased the weapon with the intention of committing suicide." II R. 7. The judge then said that he was not sure that the intent to commit suicide was relevant and asked the parties: "Are you saying because he had the intent to shoot himself ... therefore, he is insane?" At the conclusion of that session, the judge said that he wanted to think the matter over more and would schedule another meeting.

Two days later, the judge issued a "minute order" requesting briefs on one question:

Does the crime of felon-in-possession require the fact-finder to decide whether the Defendant understood the wrongfulness of using the weapon to commit suicide or only whether the Defendant understood the wrongfulness of possessing the weapon? In particular, the parties are directed to the following cases: United States v. Garcia, 94 F.3d 57, 62 (2d Cir.1996); United States v. Meader, 914 F.Supp. 656, 660 (D.Maine 1996); and United States v. Cooper, 149 F.3d 1191 [table] [1998 WL 317581] (10th Cir.1998).

I R. Doc. 32.

After receiving the parties' submissions, the court held another hearing, at which time the judge announced that he would not accept the proposed stipulation and recommendation and that the case would have to be set for trial. In the course of this hearing, the judge expressed doubt about whether insanity can be a defense to a general intent crime, and indicated that he understood United States v. Brown, 326 F.3d 1143 (10th Cir.2003), which the government had cited, to hold that "psychological evidence is limited to specific intent crimes." III R. 2.

The parties then began trial preparations. The defense provided notice of intent to present the insanity defense. The government responded with a motion in limine to exclude the expert's evidence. Again citing Brown, the government stated that, because the charged crime of felon in possession of a firearm after conviction of a felony "is a general intent crime, any testimony regarding a defendant's state of mind in order to negate a specific mens rea would be irrelevant." I R. Doc. 40. The court granted the motion the next day without permitting the defendant to respond.

The defendant filed a motion to reconsider, pointing out that the reliance by the prosecution and the court on Brown was misplaced as Brown did not address the insanity defense but a separate issue involving proffered evidence of mental illness. The court granted the motion to reconsider in part, indicating that a final decision on admission of Dr. Rattan's testimony would come at trial. In that order, the judge also ruled that the doctor would not be permitted to testify that defendant had told him that he had acquired the gun

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with the intention of committing suicide. Thus, the government's motion in limine was still granted in part. I R. Doc. 45.

A final hearing of the issue occurred on the day scheduled for trial, at which Dr. Rattan testified (before a jury would have been impaneled) and was cross-examined by the prosecutor, with additional questions from the court. The doctor consistently stated his opinion that defendant was incapable of understanding the wrongfulness of his actions due to a severe mental disease. (Under Fed.R.Evid. 704(b), an expert may not state such an opinion on the ultimate issue, this being the single exception to the general rule, applicable since 1972, that such opinions are admissible.)

Following Dr. Rattan's testimony, the court heard arguments of counsel one last time on the issue. Defendant's attorney contended that Brown was irrelevant to the issue because the defendant in that case had not attempted to raise an insanity defense. Counsel also pointed out that our opinion in that case cited the statutory principle that insanity is an affirmative defense to prosecution under any federal statute, and so that the debate about specific intent crimes versus general intent crimes was likewise without relevance to the issue before the district court.

The government's argument to the district court was basically the same argument made to this court on appeal. Conceding that insanity may be a defense to a general intent crime in some circumstances, the prosecutor suggested...

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