U.S. v. Twine

• Citation: 853 F.2d 676
• Decision Date: 01 August 1988
• Docket Number: No. 86-3219,86-3219
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James TWINE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 676

853 F.2d 676

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

No. 86-3219.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1987.

Decided Aug. 1, 1988.

Gilbert H. Levy, Levy & Hamilton, Seattle, Wash., for defendant-appellant.

Sally R. Gustafson, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before HUG, BOOCHEVER and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

This is an appeal from the criminal trial of James Twine (Twine) before a federal district court sitting without a jury. Twine was indicted on seven counts of transmitting, via interstate commerce (telephone), threats to kidnap and injure Marilyn Reed (Reed) and others in violation of 18 U.S.C. Sec. 875(c), and on one count of transmitting the same via the mails in violation of 18 U.S.C. Sec. 876. The district judge found Twine guilty on all eight counts of the indictment. We affirm.

I Background

The charges arose out of a bizarre relationship between Twine and Reed that spanned a period of approximately twenty months.

Reed, a preschool teacher, and her sister lived in a group home in Seattle, Washington. In November 1983, they met and formed a friendship with Twine, an unsuccessful business entrepreneur. Twine soon became more partial to Reed, whereas the sister and others at the home began to find Twine odd and bothersome. The relationship nonetheless continued, although apparently on a non-romantic basis.

Twine's peculiarities grew more acute when Reed's boyfriend visited her in February 1984. Twine ignored Reed's request to break contact during the visit and instead escalated his presence both in person and over the telephone. He became so upset by the boyfriend's visit that he was taken to the hospital for emergency psychiatric care. Annoyed, Reed began to back away from her relationship with Twine which only fueled his jealous behavior. In late spring 1984, the two met with a religious counselor of the Sufi order in an attempt to reconcile their differences. Shortly thereafter Twine left for New York on business.

Twine did not renew contact with Reed until the fall, when he began telephoning her from New York feeling depressed and suicidal. He also began to write letters again as he had done in the past. By January 1985, Twine was making between ten and fifty telephone calls to the group home each day. When Reed finally told Twine that she wanted nothing further to do with him, the telephone calls and letters became vulgar and violent.

The frequency of Twine's contacts did not subside. In February 1985 he threatened Reed's sister, prompting her to flee to Africa. In March, Reed and friends installed a telephone recording system and commenced to document the threatening calls. The threats ranged from general threats of physical harm to specific threats against Reed regarding kidnap and rape. Finally, in June or July 1985, Twine announced that he was returning to Seattle. Frightened, Reed immediately filed a complaint with the police which led to Twine's federal indictment for transmitting threats.

At trial, Twine introduced evidence of mental defect, including the psychiatric testimony of Dr. John Petrich. This evidence seems to have been offered to establish an insanity defense. Regardless, Twine argued a diminished capacity defense--that even if he was not legally insane, he lacked the capacity to form the intent necessary for conviction of the charged offenses.

The testimony of Dr. Petrich and others produced an interesting portrait of Twine. Twine is considered a highly intelligent and well educated man. However, he also is a man with a history of psychiatric episodes that continued during the relationship with Reed. As a preschooler he was referred for psychiatric treatment by school authorities. He underwent six weeks of inpatient psychiatric treatment while in high school. And, in 1971 he spent a year in North Africa to escape what he believed was a subliminal neo-fascist conspiracy (by such organizations as EST-Erhard Seminar Training) to alter his mind. Dr. Petrich concluded that Twine suffered from a schizoaffective disorder that manifested itself in depression, hyperactivity, obsession, and paranoia.

The district judge asked the parties to brief the issue of how this mental defect evidence should be applied. He was particularly concerned with the impact on Twine's defense of the Insanity Defense Reform Act of 1984 (the 1984 Act), Pub.L. No. 98-473, Title II, Oct. 12, 1984, 98 Stat.1976, 2057. After the briefing, the district judge delivered an oral decision. The decision clearly indicates that Twine's evidence did not establish an insanity defense. Twine was later sentenced to five years imprisonment, five years probation, and fined $400.00.

On appeal, Twine argues that his diminished capacity defense was improperly excluded from consideration. He claims that the district judge erroneously construed the 1984 Act to permit only an insanity defense; or in the alternative, erroneously construed Secs. 875(c) and 876 to be general intent crimes to which a diminished capacity defense cannot be applied.

The issues of whether the 1984 Act abolished the diminished capacity defense and if not, whether this defense can apply to the charged offenses present questions of law which we review de novo. See United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

II Diminished Capacity

Evidence of a defendant's mental defect at the time that a particular crime was committed is offered during criminal trials for a variety of purposes. It is most commonly employed to establish the insanity defense. This defense is not concerned with the mens rea element of the crime; rather, it operates to completely excuse the defendant whether or not guilt can be proven.

This case presents us with a second use of mental defect evidence--the diminished capacity defense. Unlike insanity, this defense is not an excuse. Diminished capacity is directly concerned with whether the defendant possessed the ability to attain the culpable state of mind which defines the crime. Successful defendants simply are not guilty of the offense charged, although they are usually guilty of a lesser included offense. See United States v. Frisbee, 623 F.Supp. 1217, 1221 and n. 2 (N.D.Cal.1985).

It is well settled that prior to 1984, this circuit recognized a diminished capacity defense, entirely distinct from the insanity defense. See United States v. Erskine, 588 F.2d 721, 722 (9th Cir.1978); United States v. Winn, 577 F.2d 86, 90 and n. 1 (9th Cir.1978); United States v. Demma, 523 F.2d 981, 986 and n. 14 (9th Cir.1975). However, with passage of the 1984 Act, Congress codified the insanity defense under federal law for the first time and placed significant restrictions on the use of mental defect evidence. Most notably, Section 402(a), 98 Stat. 2057 (codified at 18 U.S.C. Sec. 17, formerly Sec. 20) marked a return to the cognitive M'Naghten test and made insanity an affirmative defense which the defendant must prove by clear and convincing evidence. Further, Sec. 17 provides that beyond insanity, "[m]ental disease or defect does not otherwise constitute a defense." The government contends that the language and history of the 1984 Act cast doubt on the continued viability of the diminished capacity defense.

The seminal case addressing this issue was decided by a district court of this circuit. See Frisbee, 623 F.Supp. 1217. In Frisbee, the court performed a thorough analysis of the statutory scheme of the 1984 Act, its legislative history, and the very nature of the diminished capacity defense. It was persuaded that Sec. 17 permits mental defect evidence on the issue of whether the defendant had the mental capacity to commit the crime. This opinion provided much of the basis for the decision in United States v. Gold, 661 F.Supp. 1127 (D.D.C.1987), which also held that diminished capacity survived the 1984 Act.

Until recently, this issue had not been addressed squarely at the circuit level. Only the First Circuit had expressed a view, and in dicta assumed that the 1984 Act had abolished the diminished capacity defense. See United States v. White, 766 F.2d 22, 24-25 (1st Cir.1985). However, the Third Circuit has now filed a comprehensive opinion that dissects the issue. In United States v. Pohlot, 827 F.2d 889, 897 (3d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988), the court favorably cites Frisbee and Gold, and embarks on an even more lengthy analysis. It ultimately concludes that Congress was not concerned with the guilt phase of the criminal trial when it enacted Sec. 17. Id. at 897, 900.

We agree with the courts in Frisbee, Gold, and Pohlot that the 1984 Act does not abolish the diminished capacity defense. We believe that the rationale set forth in Frisbee reflects a proper reading of the legislative purpose and understanding of the complexities surrounding the use of mental defect evidence.

These complexities are largely semantic, due to the confused use of terms such as diminished capacity and diminished responsibility. See Frisbee, 623 F.Supp. at 1221 and n. 2 (citing Morse, Undiminished Confusion in Diminished Capacity, 75 J.Crim.L. & Crim. 1, 7-9 (1984)); see also W. LaFave & A. Scott, Criminal Law 325 et seq. (1972). Even so, a careful reading of the 1984 Act and its history persuades us that Congress intended to restrict a defendant's ability to excuse guilt with mental defect evidence, curtailing the insanity defense. But Congress did not intend to eliminate a defendant's ability to disprove guilt with mental defect evidence. ¹

III Specific Intent

Twine's defense at trial was that he could not have violated 18 U.S.C. Secs. 875(c) and 876 because he lacked the capacity to...