U.S. v. Winn

Decision Date19 June 1978
Docket NumberNo. 77-1934,77-1934
Citation577 F.2d 86
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Burdette George WINN, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

M. J. Collins (argued), Newport Beach, Cal., for defendant-appellant.

John P. Newman, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

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

Before CHOY and WALLACE, Circuit Judges, and TURRENTINE, * District Judge.

CHOY, Circuit Judge.

Winn appeals his conviction for making a false statement in his application for a passport in violation of 18 U.S.C. § 1542. We affirm.

I. Facts and Proceedings Below

Appellant applied for a passport at a post office branch in the name of Floyd Porter Bailey. The postal clerk observed that he left twice in order to secure the required photographs and fee, and that he crossed out the social security number he had entered on the application when he discovered it was not required. After the clerk administered the oath of truthfulness, she attached a note to the application describing appellant's suspicious behavior. Appellant's fingerprint on the application matched the fingerprint on a California driver's license issued to Floyd Porter Bailey, and Floyd Porter Bailey was in fact the name of a deceased person. The signatures on the driver's license, the passport application, and the photographs attached to the application were all written by appellant.

After his indictment, the court appointed counsel for appellant and a psychiatrist to examine him. He was found competent at a later hearing, and substitution of counsel was approved. The jury found appellant guilty as charged. He was given a suspended sentence and placed on probation for five years. As conditions of probation, appellant was not to drink any alcoholic beverages and was to continue with psychiatric treatment for his drinking problem.

II. Insanity Instruction

Appellant contends that the trial court erred in refusing to instruct the jury on insanity. One basis for the court's decision was that the insanity issue had not been appropriately raised. Fed.R.Crim.P. 12.2(a) provides as follows:

Defense of Insanity. If a defendant intends to rely upon the defense of insanity at the time of the alleged crime, he shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the attorney for the government in writing of such intention and file a copy of such notice with the clerk. If there is a failure to comply with the requirements of this subdivision, insanity may not be raised as a defense. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

It is not disputed that appellant did not comply with rule 12.2 and that he offered no explanation of cause for failure to do so. Nor did appellant request a continuance or permission to file a late notice, although the matter was brought to his attention by the court and the Government, and he had almost four months in which to do so. Accordingly, we conclude that the trial court properly refused to instruct the jury on the defense of insanity.

Moreover, where a Federal Rule of Criminal Procedure indicates that noncompliance with its provisions will constitute a waiver of future objections based on the subject matter of the rule, no relief from waiver is available on review absent a showing of cause and prejudice. See Davis v. United States, 411 U.S. 233, 242-45, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). Rule 12.2 clearly implies that a defendant who fails to comply with its provisions waives his right to raise an insanity defense. In this case, no showing of cause for noncompliance was even attempted.

Appellant argues that his procedural noncompliance should not waive his substantive right to insanity instructions at trial. The Advisory Committee notes to rule 12.2 make it clear, however, that the purpose of the rule is substantive, not formalistic. It is to give the Government time to prepare to meet a defendant's insanity defense. Once insanity is raised as a defense, the Government must bear the burden of proving sanity beyond a reasonable doubt. Hartford v. United States, 362 F.2d 63, 64 (9th Cir.), cert. denied, 385 U.S. 883, 87 S.Ct. 174, 17 L.Ed.2d 110 (1966); see United States v. Hearst, 563 F.2d 1331, 1336 & n. 2 (9th Cir. 1977). In view of the significance of this burden, justice requires prior notice to the Government of an insanity defense. Rule 12.2 is designed to insure that both the defendant and the Government have ample opportunity to investigate the facts of an issue critical to the determination of guilt or innocence. Cf. Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1969).

III. Mental Defect Instruction

Appellant argues that he was entitled to an instruction that evidence of a defendant's mental state, even if insufficient to establish insanity, should be considered in determining whether there was the requisite specific intent to commit the crime charged. His first proffered instruction, the usual insanity instruction, was inappropriate for this purpose; but the second proposed instruction, while inartfully drawn, in substance stated this proposition. 1 A defendant is entitled to an instruction concerning his theory of the case if it is supported by law and has some foundation in the evidence. United States v. Hall, 552 F.2d 273, 275 (9th Cir. 1977); United States v. Noah, 475 F.2d 688, 697 (9th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 119, 38 L.Ed.2d 54 (1973); Perkins v. United States, 315 F.2d 120, 124 (9th Cir.), cert. denied, 375 U.S. 916, 84 S.Ct. 201, 11 L.Ed.2d 155 (1963); Baker v. United States, 310 F.2d 924, 930 (9th Cir. 1962), cert. denied, 372 U.S. 954, 83 S.Ct. 952, 9 L.Ed.2d 978 (1963). If appellant presented sufficient evidence to go to the jury on this point, he was entitled to an instruction relating to this defense, which was not technically a "defense of insanity" and hence fell outside the scope of rule 12.2(a).

No doctors or experts were called to testify concerning the appellant's possible defective mental state, and the competency report was not introduced. The only possible question of appellant's mental condition arose as a result of the testimony given by Gregory Lorenz and Dennis McDaniels, owners of a nightclub who fired appellant from his position there as a photographer because "he just didn't get the work done." Lorenz stated that Winn "drank constantly," starting at 6 A.M., continuing throughout the day, and at night on the job at the nightclub. Lorenz concluded that "a normal person wouldn't do things he does." McDaniels testified that the "main problem" with Winn was that "he wasn't showing up . . .. He was drinking heavily, and we finally just had to 86 him from the bar." According to McDaniels, Winn's drinking earned him the nickname "Crazy George" at one particular bar. The trial judge ruled, at the same time he denied the requested instruction for failure to comply with Fed.R.Crim.P. 12.2(a), that there was insufficient evidence to give an instruction based on either insanity or lack of specific intent by reason of mental defect.

We agree. The evidence at trial concerned appellant's irresponsibility and drinking not mental disease or defect. The testimony of Lorenz and McDaniels in no way indicated that Winn was mentally incapable of committing the offense charged. Thus, the trial court's refusal to give an instruction relating mental defect short of insanity to specific intent was not error. 2

IV. Sufficiency of Evidence

Appellant contends that the evidence was insufficient to prove specific intent, a necessary element of the crime charged.

It is well established that on appeal, the evidence must be construed in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Ramirez-Rodriquez, 552 F.2d 883, 884 (9th Cir. 1977); United States v. Manuel-Baca, 421 F.2d 781, 782-83 (9th Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2269, 26 L.Ed.2d 804 (1970). All reasonable inferences from the evidence must be drawn favorably to the Government as the prevailing party. Yeargain v. United States, 314 F.2d 881, 882 (9th Cir. 1963). Moreover, as stated in Ramirez-Rodriquez, 552 F.2d at 884:

(I)t is the exclusive function of the jury to weigh the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts. Circumstantial and testimonial evidence are indistinguishable insofar as the jury factfinding function is concerned, and circumstantial evidence can be used to prove any fact.

(Citations omitted.) The proper test is whether the jurors could reasonably arrive at their conclusion. United States v. Prohart, 469 F.2d 1089, 1090 (9th Cir. 1972); United States v. Ordones, 469 F.2d 70, 71 (9th Cir. 1972).

18 U.S.C. § 1542, quoted in pertinent part, applies to whomever

willfully and knowingly makes any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States, either for his own use or the use of another, contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws . . . .

The court correctly instructed the jury that "an act is done willfully if done voluntarily and intentionally and with the specific intent to do something the law forbids; that is to say, with a purpose either to disobey or disregard the law." The jury could have reasonably arrived at the conclusion that it was appellant's purpose to disobey the law by making a false statement in his application for a passport. The clerk read the oath of truthfulness to him, and he swore that all the statements on the application...

To continue reading

Request your trial
50 cases
  • U.S. v. Duggan
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 8, 1984
    ...456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982); United States v. Caplan, 633 F.2d 534, 539 (9th Cir.1980); United States v. Winn, 577 F.2d 86, 89 (9th Cir.1978). A defendant who has allowed his deadline to pass may, in accordance with Rule 12.2(a), move for permission to make a late fi......
  • U.S. v. George
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 8, 2004
    ...if the false statement is contrary to law or regulation." 14. In our original opinion, we referred with approval to United States v. Winn, 577 F.2d 86, 91 (9th Cir.1978) as support for the proposition that § 1542's use of the term "willfully" signals that the requisite specific intent under......
  • Austin v. Davis
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 30, 2017
    ...209 F.3d 1227, 1232 (10th Cir. 2000) (same); Vogt v. United States, 88 F.3d 587, 591 (8th Cir. 1996) (same); United States v. Winn, 577 F.2d 86, 92 (9th Cir. 1978) (same).195 Virgil v. Dretke, 446 F.3d 598, 610 n.52 (5th Cir. 2006) (applying § 2254(e)(1) to a state trial court's implicit fa......
  • People v. Hightower, 5-86-0594
    • United States
    • United States Appellate Court of Illinois
    • July 26, 1988
    ...States v. Jackson (6th Cir.1978), 587 F.2d 852, 854; United States v. Sennett (7th Cir.1974), 505 F.2d 774, 775-776; United States v. Winn (9th Cir.1978), 577 F.2d 86, 89; United States v. Munz (10th Cir.1974), 504 F.2d 1203, 1209.) In Davis v. United States (1895), 160 U.S. 469, 16 S.Ct. 3......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT