U.S. v. Birdsell, 85-1133

• Decision Date: 01 November 1985
• Docket Number: No. 85-1133,85-1133
• Citation: 775 F.2d 645
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dale E. BIRDSELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 645

775 F.2d 645

UNITED STATES of America, Plaintiff-Appellee, v. Dale E. BIRDSELL, Defendant-Appellant.

No. 85-1133.

United States Court of Appeals Fifth Circuit.

Nov. 1, 1985.

Rehearing Denied Dec. 9, 1985.

Jody L. McPherson, Dallas, Tex., (Court-Appointed), for defendant-appellant.

James A. Rolfe, U.S. Atty., Jack A. Williamson, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, JOHNSON and JONES, Circuit Judges.

EDITH HOLLAN JONES, Circuit Judge:

The appellant, Dale E. Birdsell, appeals his jury conviction of one county of conspiracy and two substantive counts of transporting in interstate commerce counterfeit securities and the tools and implements used to forge them. See 18 U.S.C. Secs. 2, 371, and 2314. Birdsell raises three principal issues on appeal: (1) that the district court judge erred in finding him competent to stand trial; (2) that his trial was fundamentally unfair; and (3) that the district court's instruction on insanity was incorrect. Finding Birdsell's arguments meritless, we AFFIRM the judgment of the district court.

The conspiracy charged in Count 1 of the indictment began in early 1982 when Birdsell picked up Mark Hosie, an illegal alien who was hitchhiking in Miami, Florida. After learning of Hosie's illegal status, Birdsell provided Hosie with a false birth certificate. Birdsell obtained false birth certificates by researching obituaries in libraries and then applying for duplicate birth certificates with the information obtained from his research. Birdsell explained to Hosie that he made counterfeit cashier's checks and used the birth certificates to obtain false identification with which to cash the checks. Birdsell asked Hosie to help him in his scheme and offered Hosie fifty percent of the profits. Hosie agreed and the two eventually forged and passed counterfeit cashier's checks in Texas, Florida, New Mexico, Oregon, California and Mississippi. At one point, Birdsell told Hosie that the face value of the cashier's checks that they had forged was probably in excess of $1,000,000. In early September 1983, Hosie was arrested. He pleaded guilty to two counts of passing counterfeit cashier's checks and agreed to cooperate with the Secret Service. At the time he testified, Hosie was serving five years in the Fort Worth Correctional Institute as a result of his plea bargain.

After Hosie's arrest, Birdsell continued his fraudulent activities. In December 1983, Birdsell acquired a new accomplice, Clyde W. Cates, Jr., who traveled with him until their arrest in February of 1984. Birdsell was indicted and charged with conspiring with Hosie to transport in interstate commerce counterfeit securities and the tools used to forge them. Birdsell then filed his motion of intent to assert the insanity defense. On the government's motion, Birdsell was ordered transferred to the United States Medical Center for Federal Prisoners at Springfield, Missouri, for psychiatric examination to determine (1) whether he was competent to stand trial and (2) whether he had suffered from a mental disease or defect during the period of the alleged conspiracy. Medical Center personnel concluded that Birdsell was competent to stand trial and a trial date was set. Birdsell then moved for a hearing to determine his competency to stand trial. See 18 U.S.C. Sec. 4241(a) (formerly Sec. 4244).

After hearing expert and lay testimony from government and defense witnesses, the trial judge concluded that Birdsell was competent to stand trial. See 18 U.S.C. Sec. 4241(d). An order memorializing that finding was filed at the completion of the trial. Following trial, the jury found Birdsell guilty on all three counts, and Birdsell was sentenced to consecutive prison terms totaling 25 years. Birdsell filed a timely notice of appeal.

Competency Hearing

The federal standard for determining competency to stand trial prohibits trial if the court finds, by a preponderance of the evidence, that "the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." 18 U.S.C. Sec. 4241(d). In Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), the Supreme Court held that the trial judge must determine whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him." See also United States v. Hayes, 589 F.2d 811, 822 (5th Cir.), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979); United States v. Makris, 535 F.2d 899, 907 (5th Cir.1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 803 (1977). "A district court's determination of competency to stand trial may not be set aside on review unless it is clearly arbitrary or unwarranted." Hayes, 589 F.2d at 822.

In determining whether the district court's finding is clearly arbitrary or unwarranted, this Court must remember that the question of competency is a mixed question of law and fact which has direct constitutional implications. Makris, 535 F.2d at 907. Thus, while not undertaking a de novo review, this Court must re-analyze the facts and "take a hard look at the trial judge's ultimate conclusion." Id.

Birdsell asserts that he is the reincarnation of Confederate General Nathan Bedford Forrest, who, born in 1821, was the first Imperial Wizard of the Ku Klux Klan. ¹ Birdsell allegedly commits his criminal activity because he is under instruction to forage for "the cause." Birdsell also allegedly believes that, when he dies, his spirit will return to earth as a person named Brandt, who is also a relative of General Forrest.

In challenging the district court's ultimate finding of competency, Birdsell raises four specific issues. First, Birdsell argues that the district court's finding was clearly arbitrary and erroneous because the court appeared to rely solely on the testimony of Dr. Echols, a relatively inexperienced psychologist, while generally disregarding "the highly credible testimony of Dr. Griffith, a forensic [psychiatrist] with 25 years experience in private practice." This assertion is contrary to fact and, accordingly, we reject it.

Dr. Clay Griffith testified on behalf of the defense. Dr. Griffith has a subspecialty in "forensic" or "legal" psychiatry and, in his 25 years of practice, has examined approximately 15,000 people, 6,500 of whom had been charged with felonies. Dr. Griffith examined Birdsell on three occasions for a total of five and one-half hours. As a result of his examinations, Dr. Griffith concluded that Birdsell had a severe mental illness, specifically schizophrenia, paranoid type, very active and grandiose.

In support of his conclusion, Dr. Griffith noted that Birdsell had a "flatness" in emotional reaction. According to Dr. Griffith, this is a sign of mental illness of some type which is not easily mimicked or duplicated by someone who is not mentally ill. Birdsell was very talkative during their meetings, but Dr. Griffith noted that more than fifty percent of the conversation consisted of delusional thinking or "rambling." Dr. Griffith also noted that Birdsell was experiencing auditorial hallucinations and "blocking," a type of impairment of mental or thought processes which hindered Birdsell's ability to aid his attorney. It was his further opinion that Birdsell was psychotic and that he was not lying, faking or distorting the extent of his mental capacity. Dr. Griffith's ultimate conclusion was that Birdsell did not have the sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and that Birdsell did not have a rational as well as factual understanding of the proceedings against him and, thus, was not competent to stand trial. Dr. Griffith's opinion regarding Birdsell's mental state did not change as a result of his later examinations of the defendant.

Dr. Griffith based his initial diagnosis solely upon his first interview with Birdsell. After his initial interview, Dr. Griffith reviewed previous psychiatric reports and discovered diagnoses in 1969, 1974, and 1979 that were consistent with his diagnosis. Thus, Dr. Griffith concluded that Birdsell's mental condition had been consistent for the past 20 years.

Under examination by the court, Dr. Griffith admitted that Birdsell's delusional state was coexistent with Birdsell's record of criminal activity. Dr. Griffith added, however, that the reason Birdsell's delusional state might appear to coincide with his criminal activity was that Birdsell was only diagnosed and treated after he was arrested. Dr. Griffith further admitted that there are many people who suffer delusions but never enter into criminal activity and, further, that Birdsell's criminal activity could be completely independent from his delusional thinking. Dr. Griffith did not think that Birdsell's mental impairment would preclude him from carrying out the rather complicated criminal scheme of counterfeiting and cashing cashier's checks.

The government, in asserting that Birdsell was competent to stand trial, presented the testimony of one lay witness and two experts. One of the government's expert witnesses was Dr. Christina S. Echols, a clinical psychologist at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri. Dr. Echols received her Ph.D. in clinical psychology in February of 1983 and, at the time of trial, had been employed at the Medical Center as a forensic psychologist for approximately eighteen months. Dr. Echols personally interviewed Birdsell on four different occasions and spent a total of four hours with him. She caused Birdsell to take a series of tests,...