U.S. v. Welch

• Decision Date: 12 October 1984
• Docket Number: No. 82-1923,82-1923
• Citation: 745 F.2d 614
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Michael WELCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 614

745 F.2d 614

UNITED STATES of America, Plaintiff-Appellee, v. James Michael WELCH, Defendant-Appellant.

No. 82-1923.

United States Court of Appeals Tenth Circuit.

Oct. 12, 1984.

Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, Denver, Colo., was also on brief), for defendant-appellant.

Bruce F. Black, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., and C. Phillip Miller, Asst. U.S. Atty., Denver, Colo., were also on brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, BREITENSTEIN and SEYMOUR, Circuit Judges.

HOLLOWAY, Chief Judge.

Defendant, James Michael Welch, timely appeals his conviction, on a jury verdict, of violation of 18 U.S.C. Sec. 871, ¹ a threat to take the life of or to inflict bodily harm upon the President of the United States. ² Defendant was charged with knowingly and willfully making a threat to take the life of and to inflict bodily harm upon the President of the United States, on or about December 30, 1981, in the State and District of Colorado, in violation of Title 18, United States Code, Section 871. Defendant contends that the evidence was insufficient to support his conviction and that the trial judge's behavior toward defense witnesses and defense counsel deprived him of a fair trial. We disagree and affirm the judgment and sentence.

I

After the verdict of guilty, on appeal we must consider the evidence in the light most favorable to the Government. Considered in that light it tends to show the following:

On December 28, 1981, Welch made an appointment with personnel at the Southwest Denver Mental Health Center in Denver, Colorado, and on December 29 he arrived at the Center for his appointment. II R. 76. Welch had recently lost his job, had been unable to obtain vocational training due to cuts in the programs, had been unable to consult with his private doctors who were out of town, had had his medication discontinued, and had become discouraged about his situation. III R. 248-50. Welch had been diagnosed as having minimal brain dysfunction. III R. 247. During an interview at the Center Welch blamed President Reagan for the unavailability of vocational training and stated that if it were up to him, he would do a better job than Hinckley had done. II R. 78, 127. He also stated that if Reagan were in town he would get a rifle and shoot him. II R. 129, 154. Welch was warned that his threats would be reported to the Secret Service. II R. 88, 131. After the warning Welch reiterated his threats. II R. 132-33. Center personnel contacted the Secret Service. II R. 177-78.

After leaving the Center Welch took a large amount of medication and passed out at his wife's residence. III R. 255. Secret Service Agents Lloyd Bulman and John Bay went to her residence at about 6 p.m. on December 30, after Welch had awakened. II R. 178-79, 190. As they parked in front of the house and got out of their car, they saw Welch come out the front door, walk to a Volkswagen parked in the driveway and get in. II R. 167, 190-91. As they approached the car, he locked the doors. He rolled the window down a few inches and they identified themselves as Special Agents of the Secret Service and asked him to exit the vehicle, go back into the house and talk with them. Id. He refused. II R. 169.

During the conversation with the Agents on December 30 Welch stated, "If Reagan was here, I would shoot him. I wouldn't make the same mistake as Hinckley did. I would kill him. I would shoot him." II R. 170; to similar effect see also II R. 193. Mr. Bulman, Special Agent for the Secret Service, said that Welch "made the threat again, 'I will kill Reagan.' " II R. 170. During the conversation the Secret Service Agents observed Welch eat a handful of pills. Becoming increasingly agitated, Welch started his car, drove across the neighbor's yard and sped away. Welch was arrested at about 7 a.m. the next day at his parents' residence. II R. 182, 196.

The Government's witness, Dr. May, a physician-psychiatrist and then director of the Southwest Denver Mental Health Center, testified concerning Welch's condition at the time he made threatening statements on December 29 at the Center:

Q And with minimal brain dysfunction, doesn't that affect a person's judgment? Doesn't that go hand-in-hand with that impulsivity?

A Yes, they would tend to be more--as children, they tend to be more impulsive, that's true.

Q And being impulsive, that reflects on a person's judgment, does it not?

A It can.

Q Okay, and so that while you have testified Mr. Welch may have known what words he used, he may have not been using judgment in using those words, or he may not have perceived how other people would take them, would that be correct?

A Yes, that's correct, in the sense that I think he showed poor judgment on that particular day. Whether or not he was fully aware of the implications of that, I felt he was. I think he was very angry and agitated. I would be hard-pressed to think that was an extension of a minimal brain dysfunction.

Q But it could be, could it not?

A It is conceivable, but not likely, in my estimation.

Q Again, at that point, like you said yourself, you didn't have an opportunity to be able to evaluate whether he had?

A That's correct. I thought plenty of the other things that happened in his life that might have set this off, other than just the minimal brain dysfunction.

Q But the other things that happened in his life in part may be attributable to the handicap that he has, is that correct?

A Maybe. I don't feel it is likely to that degree.

Q Again, you were not completely familiar with the background and you yourself said--

A Correct.

Q You yourself said you haven't had time to evaluate him fully?

A That's right, more history certainly would have helped.

II R. 121-23; see also II R. 104, 106. Dr. May also testified that he thought Welch "was in condition to understand what he was saying and the meaning of what he

was saying." II R. 106. Dr. May further testified that the staff of the Health Center did not have enough information to make a diagnosis. II R. 103.

Susan Meikle, a clinical psychologist with a master's degree who worked at the Center, testified that she saw Welch on December 29. Welch made the comment that he would "do a better job than Hinkley did." Meikle felt Welch was aware of what he said. With respect to his mental capacity, she said Welch was "capable and aware." II R. 78, 81.

The Secret Service Agents testified concerning Welch's condition at the time he made statements on December 30, the day after the incident at the Southwest Denver Mental Health Center. Agent Bulman testified that it appeared to him that Mr. Welch was extremely irate at the President and could be capable of carrying out the threats. Bulman also said that as to Welch's mental condition, he felt Welch was lucid and knew what he was saying. Welch was yelling or screaming at several points. Bulman said he believed the threats were made before Welch began eating any of the pills he had in his hand. II R. 176-77. Agent Bay also testified about Welch's mental condition at the time of the conversation with him on December 30. He said Welch did not slur his words and spoke in complete sentences. II R. 197.

The defense was based in part on proof of Welch's attention deficit disorder, which Dr. Roberts, a board certified psychiatrist, described. He said the symptoms of this disorder include lack of impulse control, poor judgment and hyper-activity. Dr. Roberts had two diagnoses of Welch: attention deficit disorder, residual type, and explosive personality disorder. III R. 277. Dr. Roberts said Welch's ability to perceive the impact of his words was diminished by his two disorders, III R. 284, and that his disorders prevented him from refraining from making such damaging statements. III R. 316. Further Dr. Roberts testified that Welch's ingestion of drugs before his talk with the Secret Service Agents "caused his ability to--to be rational and exercise good judgment and considered mental state would be very much adversely affected by those drugs." III R. 288. The doctor's opinion was that the effect of the drugs and Welch's attention deficit disorder was such that he may have known in a grammatical sense the words he was saying, but he didn't know what he was saying from the standpoint of its context, and Welch was not then able to control what he was saying. III R. 290.

Dr. Muller, another psychiatrist, testified about the reports of Welch's condition when he went to the Southwest Denver Mental Health Center on December 29: Welch then was very depressed and suicidal. III R. 322. From his interviews with Welch and the records, Dr. Muller diagnosed Welch as suffering from attention deficit disorder, with hyperactivity, and he has slight brain damage which is an organic problem. Id. at 319, 332. Dr. Muller said that Welch's awareness of the context of his words and his judgment in uttering them were terribly flawed and that Welch's ability to form a specific intent about his statements and conduct was definitely impaired. III R. 325-26. Dr. Muller also said that the quantity of other drugs ingested by Welch, combined with the lack of amphetamine medication needed daily by Welch, further impaired his ability to form a specific intent concerning the threats made during the conversations with the Secret Service Agents. Id. at 326-28.

II

Welch says that the evidence was insufficient to support his conviction because he made the statements in a political context, he stated them in conditional terms, the context in which he uttered his statements indicates the lack of a true threat, and he lacked the ability to form the specific intent that his statements be taken seriously.

On this appeal from a guilty verdict we must view all the evidence, direct and circumstantial, together with all reasonable inferences therefrom, in the light most...