U.S. v. Darby, 87-5150

• Decision Date: 15 September 1988
• Docket Number: No. 87-5150,87-5150
• Citation: 857 F.2d 623
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel DARBY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 623

857 F.2d 623

UNITED STATES of America, Plaintiff-Appellee, v. Daniel DARBY, Defendant-Appellant.

No. 87-5150.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 1, 1988.

Decided Sept. 15, 1988.

Jay L. Lichtman, Los Angeles, Cal., for defendant-appellant.

Leslie A. Swain, Asst. U.S. Atty., Criminal Div., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUG, TANG and NELSON, Circuit Judges.

NELSON, Circuit Judge:

Daniel Darby appeals from his conviction for attempted bank robbery under the first paragraph of 18 U.S.C. Sec. 2113(a) (1982). The district court had jurisdiction based on 18 U.S.C. Sec. 3231. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. The issues before us on appeal are (1) whether the court properly instructed the jury on the intent required to support a conviction under Sec. 2113(a), and (2) whether expert psychiatric testimony corroborating Darby's testimony should have been admitted. For the reasons set forth below, we reverse Darby's conviction and remand to the district court.

FACTS

On September 12, 1986, Daniel Darby took a bus from his low-income hotel on skid row to Hollywood. Darby exited the bus, took a piece of paper and a crumpled McDonald's bag out of a trash can, and wrote on the paper: "This is a stick up, put your money in this bag." He then entered Security Pacific Bank and stood in line, where he attracted the attention of customers and the security guard.

The security guard alerted the operations officer that there might be an attempted robbery and then stood behind Darby as he approached the teller's window. Darby placed the note on the counter. The security guard, thinking that Darby had a gun, grabbed his hand and asked what Darby was doing. Darby replied, "I'm not doing anything," and let himself be escorted to a corner of the bank where he said nothing further.

The defense theory at trial was that Darby did not actually intend to rob the bank, but instead intended to get arrested so that he might obtain the psychiatric care that he had been repeatedly denied in the previous months. Darby testified that he did not intend to take the bank's money and would have refused it if the teller had given the money. Darby voluntarily sought medical assistance and hospitalization for mental and emotional problems at the University of Southern California ("U.S.C.") Medical Center and three other hospitals or clinics in February and March of 1986. He attended four sessions with Dr. Foerster at the U.S.C. Psychiatric Clinic and requested hospitalization three of those times, but was refused because he was not suicidal. He returned to U.S.C. in May but was again refused hospitalization. That summer Darby was mugged and beaten, and suffered a fractured leg. Four days before the alleged robbery attempt, his leg cast was removed. Darby testified that at the time of the offense he was on pain medication, walked with difficulty, and was unable to run.

STANDARD OF REVIEW

Jury instructions are reviewed for abuse of discretion and the adequacy of the entire charge must be evaluated in the context of the trial. United States v. Frazin, 780 F.2d 1461, 1468 (9th Cir.), cert. denied, 479 U.S. 844, 107 S.Ct. 158, 93 L.Ed.2d 98 (1986). We consider whether as a whole the instructions were misleading or inadequate to guide the jury's determination. United States v. Washington, 819 F.2d 221, 226 (9th Cir.1981).

The trial court has broad discretion to admit expert testimony, and we will sustain the court's action unless it is manifestly erroneous. Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962); Bergen v. F/V St. Patrick, 816 F.2d 1345, 1352 (9th Cir.1987).

ANALYSIS

1. Jury Instructions

A conviction for attempted bank robbery under 18 U.S.C. Sec. 2113(a) ¹ requires the government to prove both " 'culpable intent' and 'conduct constituting a substantial step toward commission of the crime that is in pursuit of that intent.' " United States v. Still, 837 F.2d 871, 873 (9th Cir.1988) (quoting United States v. Buffington, 815 F.2d 1292, 1301 (9th Cir.1987)); see United States v. Snell, 627 F.2d 186, 187 (9th Cir.1980), cert. denied, 450 U.S. 957, 101 S.Ct. 1416, 67 L.Ed.2d 382 (1981). "Culpable intent can be inferred from a particular defendant's conduct and from the surrounding circumstances." Still, 837 F.2d at 873; Buffington, 815 F.2d at 1302. A substantial step is "conduct that is strongly corroborative of the firmness of a defendant's criminal intent." Buffington, 815 F.2d at 1301; see United States v. Mandujano, 499 F.2d 370, 376 (5th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975).

The district court instructed the jury that the government must prove three elements in order to find the defendant guilty. First, the government must prove the act of attempting to take the bank's money; second, the act of attempt must be with force or violence or intimidation; and third, the act must be done knowingly. The jury was also instructed that, "An act is done knowingly if done voluntarily and intentionally and not because of mistake or accident or other innocent reason." The court refused the defendant's proposed jury instructions, which would have required the jury to find that Darby intended to steal the bank's money.

The district court, relying upon United States v. Hartfield, 513 F.2d 254 (9th Cir.1975), premised its rulings throughout trial on the theory that the government need only prove that the defendant acted knowingly and voluntarily in order to convict under Sec. 2113(a). In Hartfield, an attempted bank robbery case, we stated that Sec. 2113(a) does not require specific intent. We found evidence of voluntary drug intoxication inadmissible to establish Hartfield's lack of capacity to form specific intent, although the evidence was ruled admissible on the issue of Hartfield's sanity at the time of the offense. Id. at 259; see also United States v. Smith, 638 F.2d 131, 132 (9th Cir.1981); United States v. Burnim, 576 F.2d 236, 237 (9th Cir.1978); United States v. Hearst, 563 F.2d 1331, 1337 (9th Cir.1977); United States v. Lemon, 550 F.2d 467, 470 n. 1 (9th Cir.1977); United States v. Klare, 545 F.2d 93, 94 (9th Cir.1976) (all completed bank robbery cases).

However, in Hartfield, we relied upon United States v. Porter, 431 F.2d 7 (9th Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269 (1970), to form our conclusions on the intent element. In Porter, a completed bank robbery case involving an insanity defense, we held that an instruction on diminished capacity was not necessary because the jury had been instructed that a mere finding of sanity was not sufficient to warrant a guilty verdict and had also been instructed that specific intent must be demonstrated. We said that conviction under the first paragraph of Sec. 2113(a) does not require "intent to commit ... any felony." Id. at 10. However, we explained that "[w]here a person has the mental capacity for criminal responsibility, proof that he took property of another by force or violence, or by intimidation, necessarily establishes the required criminal intent, whether or not characterized as 'specific' intent." Id. Thus, in order to convict for bank robbery, the government must prove that the defendant took the property. This act of taking by force, violence, or intimidation is sufficient to constitute the crime of bank robbery. It is not necessary to prove an intent to steal. When the charge is one of attempted bank robbery, however, the transaction in question is at an earlier stage. There has not been a taking of the property. We are thus concerned with whether attempted bank robbery requires an intent to take the property. We agree with the dissent that it is not necessary to prove that the defendant intended to steal, but it is necessary to prove that he intended to take the property. In order to prove an attempt to commit a crime, the government must prove an intent to commit the acts that constitute the crime. Thus, in order to prove attempted bank robbery, it is necessary to prove that the defendant intended to take the property by force, violence or intimidation.

The district court ruled without the benefit of United States v. Still, 837 F.2d 871 (9th Cir.1988) and United States v. Buffington, 815 F.2d 1292 (9th Cir.1987), which clarify that a conviction for attempt requires proof not only that a defendant knowingly and voluntarily acted, but also that the defendant intended to take the money. In Buffington, we found that the evidence presented at trial was insufficient for a jury to find either the intent to rob a federal bank or conduct constituting a substantial step toward the commission of a robbery. Buffington, 815 F.2d at 1302. Although the government provided substantial evidence to establish the defendant's intent to rob, the Buffington court found the evidence insufficient because the defendants were thwarted from entering the federal bank by a power outage, and therefore their intent to rob could have been directed against another nearby store or state bank. Id. In Still, we determined that the evidence was conclusive as to the defendant's intent, but was insufficient to meet the "substantial step" requirement. The defendant in Still admitted to the police that he intended to rob a bank. We found that these statements clearly established his unequivocal intent to rob the bank. "Therefore, the first aspect of an attempt, a culpable intent, was established beyond a reasonable doubt." Still, 837 F.2d at 874.

Thus, it is insufficient that Darby intended to intimidate the teller; to find him guilty he must also have intended to take the money. If Darby intended only to create a stir so that he would be arrested and get psychiatric care, then he did not commit attempted robbery. Darby testified that he did...