U.S. v. Burnim

• Decision Date: 05 June 1978
• Docket Number: No. 77-2960,77-2960
• Citation: 576 F.2d 236
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allan Anthony BURNIM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 236

576 F.2d 236

UNITED STATES of America, Plaintiff-Appellee, v. Allan Anthony BURNIM, Defendant-Appellant.

No. 77-2960.

United States Court of Appeals, Ninth Circuit.

June 5, 1978.

William J. Bender, Asst. Federal Public Defender (argued), Seattle, Wash., for defendant-appellant.

David E. Wilson, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

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

Before DUNIWAY, CUMMINGS ^* and SNEED, Circuit Judges.

DUNIWAY, Circuit Judge:

Burnim appeals from his conviction for unarmed bank robbery, a violation of 18 U.S.C. § 2113(a). He was found guilty after a court trial at which the only contested issue was his sanity at the time of the offense. We affirm the conviction.

The question presented is neatly posed by the trial judge's special findings of fact:

1. The Court finds that the defendant is guilty as charged of bank robbery, in violation of Title 18, United States Code, Section 2113(a).

2. The Court finds that at the time of the offense, the defense (sic) suffered from an organic brain defect.

3. The Court finds that at the time the defendant entered the bank, that he lacked substantial capacity to appreciate the moral wrongfulness of his conduct, and that he lacked substantial capacity to conform his conduct to the requirements of the law.

4. The Court finds, however, that the government has proved beyond a reasonable doubt that the absence of capacity did not stem solely from the organic brain defect alone, but that the absence of capacity stemmed from a combination of the brain defect and alcohol which the defendant had voluntarily ingested prior to the robbery.

5. The Court finds that if there had existed at the time of the robbery the brain defect alone, that the defendant would have had the capacity to appreciate the moral wrongfulness of his conduct and to conform his conduct to the requirements of the law.

These findings are fully supported by the evidence. The government presented overwhelming evidence, which the defense did not attempt to rebut, that Burnim committed the robbery with which he was charged. That evidence showed, among other things, that Burnim needed money to go to Alaska for the purpose of getting married, that before the robbery he drank a good deal of liquor to screw up his courage, and that after the robbery he hid in the woods and shaved off his beard and mustache in order to avoid being caught.

Burnim took the stand and admitted all the essential facts alleged in the indictment. His sole defense was insanity. On that issue, the court's findings are supported by the testimony of two psychiatrists, Dr. Harris, called by Burnim, and Dr. Johnson, called by the government. Indeed, the findings track their testimony with precision. Under these findings, no other verdict than guilty was possible.

Unarmed bank robbery, as defined in the first paragraph of 18 U.S.C. § 2113(a), is a general intent crime, not a specific intent crime. United States v. Hartfield, 9 Cir., 1975, 513 F.2d 254, 259; United States v. Porter, 9 Cir., 1970, 431 F.2d 7, 10. Voluntary intoxication is no defense to such a crime. United States v. Meeker, 9 Cir., 1975, 527 F.2d 12, 14.

In evaluating Burnim's mental state, the court was obliged to disregard whatever incapacitating effects were attributable to the voluntary ingestion of alcohol. When these effects were removed from consideration, only Burnim's inherent mental problems remained. These problems, however, did not render Burnim insane within the meaning of Wade v. United States, 9 Cir., 1970, 426 F.2d 64, nor did they render his drinking involuntary. As the district judge correctly stated in explaining his decision,

I have to take the alcohol out of the formula because that was voluntary, and if I take it out . . . it leaves only this organic brain defect, and as I indicated before, I find that the government has proved beyond a reasonable doubt that that organic brain defect alone did not deprive this defendant of substantial capacity to appreciate the moral wrongfulness of his conduct nor . . . of substantial capacity to conform his conduct to the requirements of law.

Kane v. United States, 9 Cir., 1968, 399 F.2d 730, is in point. There, Kane was charged with murder. His defense was insanity. The evidence showed that, like Burnim, he suffered from brain damage. Psychiatrists described him as "sane but vulnerable" (id. at 735), making him subject to "pathological intoxication," which meant that, if he drank, he could become "insane" under the so-called M'Naghten rules then in effect in this Circuit. Kane knew that his drinking could cause...