U.S. v. Crews

• Decision Date: 09 January 1986
• Docket Number: No. 84-2211,84-2211
• Citation: 781 F.2d 826
• Parties: 19 Fed. R. Evid. Serv. 1197 UNITED STATES of America, Plaintiff-Appellee, v. Marvin Arnesto CREWS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 826

781 F.2d 826

19 Fed. R. Evid. Serv. 1197

UNITED STATES of America, Plaintiff-Appellee, v. Marvin Arnesto CREWS, Jr., Defendant-Appellant.

No. 84-2211.

United States Court of Appeals, Tenth Circuit.

Jan. 9, 1986.

Leonard D. Munker, Cheyenne, Wyo., for defendant-appellant.

Francis Leland Pico, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., Dist. of Wyoming, with him on the brief), Cheyenne, Wyo., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, LOGAN, Circuit Judge and BROWN ^*, District Judge.

PER CURIAM.

Defendant, Marvin Arnesto Crews, Jr., appeals his conviction by a jury of making a threat to kill President Ronald Reagan, a violation of 18 U.S.C. Sec. 871. He was sentenced to four years in prison.

On appeal defendant claims that: (1) the prosecution failed to satisfy its burden to prove defendant was sane at the time of the alleged threat; (2) defendant's purported threat came within a psychotherapist-patient privilege; (3) the prosecution violated defendant's First Amendment rights; (4) the district court erred in denying defendant a competency hearing and in not making findings required by 18 U.S.C. Sec. 4244 (current version at 18 U.S.C. Sec. 4241); (5) the district court wrongly refused to appoint a psychiatrist to aid defendant's attorney; (6) cross-examination of the psychiatrists who examined defendant to determine competency violated former 18 U.S.C. Sec. 4244 and Fed.R.Crim.P. 12.2(c); and (7) the court erred in not instructing the jury that defendant must intend to carry out his threat. In addition, defendant's attorney contends that the local district court rules establishing compensation for appointed counsel at rates lower than Congress established in the Criminal Justice Act, 18 U.S.C. Sec. 3006A(d)(1), are void.

This case began with the broadcast of "The Day After," a television movie depicting the nuclear annihilation of Lawrence, Kansas. This presentation, which was accompanied by warnings of its disturbing nature, was followed by a televised panel discussing the movie's frightening implications. Defendant, a voluntary patient in the psychiatric ward of the Veteran's Hospital in Sheridan, Wyoming, viewed both programs. The shows upset defendant, and he requested sedatives from a psychiatric nurse at the hospital. After taking a large dose of antidepressant medication, defendant said to the nurse, "If Reagan came to Sheridan, I would shoot him." R. V, 87. The nurse reported this statement to the hospital, which then contacted the Secret Service. Defendant denied to an investigating Secret Service agent making that precise statement, but admitted an extreme dislike for President Reagan, and said he had told the nurse that it "would be in the best interest of this nation if that red-necked, bigoted, war-mongering mother fucker were shot." R. V, 65. Defendant owned several weapons, including a shotgun and a rifle. ¹ Defendant was indicted for violation of 18 U.S.C. Sec. 871 and found guilty by a jury.

I

We first treat those issues raised on appeal that will require a judgment of acquittal if we find defendant's arguments convincing.

A

Defendant claims that the government failed to meet its burden in its case-in-chief of proving that defendant was sane at the time of the threat, and that he therefore was entitled to judgment of acquittal at the close of the government's case.

A criminal defendant initially is presumed sane. United States v. Jacobs, 473 F.2d 461, 464 (10th Cir.), cert. denied, 412 U.S. 920, 93 S.Ct. 2740, 37 L.Ed.2d 147 (1973). ² Under the law in effect at the time of defendant's trial, however, "when some evidence of insanity is introduced from any source, the presumption of sanity disappears, and the burden is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt that the defendant was sane when he committed the offense charged." Id.

Defendant contends that the prosecution's statements and testimony elicited by the prosecution was sufficient to place the burden of proving his sanity on the government. The prosecutor's opening statement did suggest serious questions about defendant's sanity. But opening statements do not constitute evidence; therefore they cannot be used to overcome the presumption that defendant was sane. The only testimony the government introduced in its case-in-chief that even arguably placed defendant's sanity in question was that he was in the psychiatric ward of the Veteran's Hospital and was receiving antidepressant drugs. The government's evidence, viewed as a whole, most strongly indicated that defendant had been hospitalized for alcoholism. The logical inference from the evidence was that defendant had been placed in the psychiatric ward to treat that problem. It would have been unreasonable for the jury to infer that defendant was insane based only on this evidence. Accordingly the district court's denial of Crews' Fed.R.Crim.P. 29(a) motion at the close of the government's case was proper.

Of course, significant evidence of defendant's insanity at the time of the alleged offense came in during defendant's presentation. But through cross-examination of those witnesses, most of whom had treated defendant or examined him pursuant to court order, the government met its burden to produce enough evidence of sanity for the jury to find defendant sane.

B

Defendant asserts that his statement to the nurse was a privileged communication. The Federal Rules of Evidence do not recognize a psychotherapist-patient privilege explicitly, see Fed.R.Evid. 501, and this court has not yet determined whether to recognize such a privilege. Other federal courts, however, have adopted it. See, e.g., In re Zuniga, 714 F.2d 632, 638-39 (6th Cir.), cert. denied, 464 U.S. 983, 104 S.Ct. 426, 78 L.Ed.2d 361 (1983). See generally Note, Evidence--The Psychotherapist-Patient Privilege--The Sixth Circuit Does the Decent Thing: In re Zuniga, 33 U.Kan.L.Rev. 385 (1985).

The instant case presents the problem in a most peculiar posture. Making the threatening statement is itself the crime. Thus arguably the situation is analogous to one in which the doctor is criminally assaulted or witnesses a criminal assault. Unlike an assault, however, the patient's criminal act is a verbal communication of the type that may be expected or even encouraged in a psychiatric setting, because the treating physician needs to know what the patient is thinking or feeling.

As interesting as this question is, we believe that we need not, and should not, decide in this case whether to adopt the psychotherapist-patient privilege. Even if we were to recognize it, we would have to hold that defendant waived his right to the privilege. The Secret Service agent interviewing defendant testified as follows:

"I made it a point to tell Mr. Crews that he was not in custody, he was not under arrest; that he could leave that interview room, leave that part of the hospital at anytime and go back to where he was before he came over or to go wherever he chose; that I was not restraining his freedom in any way. And if he would talk to me I would appreciate it, but I could not force him nor did I want to indicate to him that he was being forced to stay there.

He acknowledged that he understood he was not under arrest, that he was not in any type of custody, and he stated that if he decided he would leave, he would go ahead and tell me that he didn't want to answer any more questions and he would leave. After he advised me of that I formally advised him of his Miranda warning or his rights under the Constitution by reading to him from a Miranda card that I carry with me in my credentials.

... I asked Mr. Crews, 'Do you understand each of these rights as I have explained them to you?' And he acknowledged that he understood each of his rights."

R. V, 55-57.

Following this receipt of his Miranda warning, defendant openly discussed with the agent the comment that he made to the nurse. Disclosure of his own version of the conversation in these circumstances is a waiver of privilege. See Central Soya Co. v. Geo. A. Hormel & Co., 581 F.Supp. 51, 52-53 (W.D.Okla.1982); United States v. Mierzwicki, 500 F.Supp. 1331, 1334 (D.Md.1980).

We of course recognize that "[w]aiver is not an apposite concept where we premise a defendant so deranged that he cannot oversee his lawyers." Pate v. Robinson, 383 U.S. 375, 388, 86 S.Ct. 836, 843, 15 L.Ed.2d 815 (1966) (Harlan, J., dissenting). Yet for purposes of admitting evidence during trial we must assume that defendant was competent at the time of his action unless there is evidence to the contrary. The judge had found him competent to stand trial and the jury must determine whether defendant was competent at the time he made the alleged threat.

C

Defendant contends that his statement was protected political speech under the First Amendment. In Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), the Supreme Court held that under Sec. 871 the government must prove that a "true threat" was made; crude "political hyperbole," for example, does not constitute a true threat. Id. at 708, 89 S.Ct. at 1401. The Court in Watts therefore reversed the conviction of an 18-year-old who, while discussing police brutality and the draft immediately after a rally at the Washington Monument, allegedly threatened President Lyndon Johnson. Since Watts, the Second Circuit has stated that, to avoid First Amendment protection, the government must show that a threat "according to [its] language and context conveyed a gravity of purpose and likelihood of execution so as to constitute speech beyond the pale of protected 'vehement, caustic ... unpleasantly sharp attacks on government and public officials.' " United States v. Kelner, 534 F.2d 1020, 1026 (2d Cir.) (quoting New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964) ), cert. denied, 429 U.S. 1022, 97 S.Ct. 639, 50 L.Ed.2d 623 (1976).

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