United States v. Shackelford, 73-1053.

• Decision Date: 03 June 1974
• Docket Number: No. 73-1053.,73-1053.
• Citation: 494 F.2d 67
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wallace A. SHACKELFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

494 F.2d 67 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Wallace A. SHACKELFORD, Defendant-Appellant.

No. 73-1053.

United States Court of Appeals, Ninth Circuit.

February 20, 1974.

Certiorari Denied June 3, 1974.

Fredric F. Kay (argued), Asst. Federal Public Defender, Tucson, Ariz., for defendant-appellant.

William C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

Before MERRILL and ELY, Circuit Judges, and MURPHY,^* District Judge.

Certiorari Denied June 3, 1974. See 94 S.Ct. 2647.

OPINION

MURPHY, District Judge.

Defendant appeals his conviction after a jury trial in the District of Arizona for a violation of the Hobbs Act, 18 U. S.C. § 1951, in that he attempted to obstruct and delay Trans World Airlines' flights in interstate commerce by an attempted $270,000 extortion.

The principal issue on appeal raises the recurring question of the quantum of proof the prosecution must offer to overcome an insanity defense. At trial the defense of insanity was grounded on the testimony of a psychiatrist. Defendant did not testify. The Government relied on its extensive cross-examination of defendant's psychiatric expert and offered no expert testimony in rebuttal but only that of lay witnesses.

It is appellant's submission that the law in this Circuit is "that when a defendant introduces psychiatric testimony sufficient to support a finding of insanity and where the Government relies entirely on lay witnesses to prove sanity, the Government has failed to carry its burden of proof as a matter of law." (Appellant's Opening Brief, pp. 30, 31). He relies on United States v. Cooper, 465 F.2d 451 (9th Cir. 1973), and Buatte v. United States, 330 F.2d 342 (9th Cir.) (Buatte I), rehearing denied, 331 F.2d 848 (9th Cir. 1964) (per curiam).

We reject this argument and affirm.

Neither Buatte I nor Cooper supports such a contention. It is true that in Cooper Judge Hufstedler, writing for the majority, did state:

"We held in Buatte v. United States * * * that when the defendant introduces expert psychiatric testimony that is sufficient to support a finding of insanity and when the Government relies entirely on lay witnesses to prove sanity, the Government has failed to carry its burden of proof as a matter of law." United States v. Cooper, supra, 465 F.2d at 453. (Emphasis supplied.)

This sentence was immediately qualified and explained by the Judge as follows:

"To sustain Cooper\'s conviction, the Government must accomplish two feats: (1) it must find a way to destroy Dr. Polos\' testimony to eliminate Buatte I, and (2) after razing Dr. Polos\' testimony, it must find enough affirmative evidence of Cooper\'s sanity to prove that he was sane beyond a reasonable doubt. The Government did not succeed on either count." Id. at 453.

A fair reading of these consecutive statements makes it clear that the Judge purposely inserted the adverb "entirely" in the first sentence to emphasize that if the psychiatric testimony was not destroyed or razed by cross-examination, rebuttal lay witnesses could not sustain the burden then cast on the Government to prove that defendant was sane beyond a reasonable doubt.

If further evidence is needed, we are confirmed in our analysis by the reaffirmation in Judge Hufstedler's opinion of "the principal stated in Ingman: `a jury may, of course, reject expert opinion if it finds that the opinion was based on an incorrect view of the facts.'" Cooper, supra, at 454.

In Buatte I, Judge Pope scrupulously reviewed the psychiatric evidence of the defense and added: "What confirms the strength of this testimony is the fact that the defendant had a record of service, both in the Navy and in the Army, showing severe mental impairment." Buatte I, supra, 330 F.2d at 344. He then reviewed these independent records, and observed:

"This account of the testimony relating to defendant\'s insanity is sufficient to disclose that the evidence on that point was substantial and reasonably impressive. When that evidence was received, there was presented to the Government an obligation to meet the requirement stated in Davis v. United States, 165 U.S. 373, 378, 17 S.Ct. 360, 41 L.Ed. 750, as follows: `While it was true that every man is presumed to be sane, yet whenever by the testimony the question of insanity is raised then the fact of sanity, as any other essential fact in the case, must be established to the satisfaction of the jury beyond a reasonable doubt\'." Id. at 344-345 (fn. omitted).

The evidence in the case posed difficulties for the Government, he said, since the defendant's mental breaks into insanity would occur at irregular intervals, that is, they would be interspersed between more or less lucid intervals. The Government then was confronted with the most difficult task of showing "that at the time of the commission of the crime * * * the defendant was in what might be called by laymen a `lucid interval'. Under these circumstances it would not suffice to produce a witness to testify that a few hours before the commission of the offense the accused was acting in an apparently normal manner. What was required was some evidence that he was legally sane during the short period when the killing occurred." Id., at 345. He then reviewed the testimony of the witnesses which the Government called in rebuttal, including the opinion of a psychiatrist who, unfortunately for the Government, expressed his opinion ambivalently, i. e., that the defendant "`might well have known the difference' between right and wrong on April 7." Id. at 346.

The conclusion of the court, based upon its analysis of the evidence, was that

"on this record we are compelled to hold that the Government failed to produce sufficient evidence to support a finding of sanity by the jury. There is a complete absence of evidence to show defendant was sane at the critical time, namely, the period when defendant was at the tent where the killing occurred." Id. at 347.

The above vividly demonstrates that Buatte is not authority for the proposition proffered by the appellant.

The rationale of Buatte I was further developed when the Government petitioned for rehearing. Buatte v. United States, 331 F.2d 848 (9th Cir. 1964). The Government asked that if the judgment was to be reversed, it be remanded for a new trial rather than with instructions to acquit. "The appellee undertook in its petition to indicate the additional evidence which it might produce upon a new trial and which it asserted would be adequate to support a conviction of the appellant." 331 F.2d at 848. (The opinion does not disclose what this evidence was.) The court denied the petition with this observation: "* * * the court is of the view that a new trial would serve no purpose and that neither the types of evidence listed in the appellee's petition nor any other conceivable evidence would suffice to satisfy the requirement set forth in Davis v. United States, 165 U.S. 373, 17 S.Ct. 360, 41 L.Ed. 750." Id. We get the impression from this that the Buatte I panel felt that the critical time, namely, the period when the defendant was at the tent where the killing occurred, was so short and without witnesses that it would not be possible, medically or otherwise, to prove that it was during a lucid interval.

In any event, the phrase came back to plague a different panel when Buatte appealed another conviction, this time for assault with intent to commit murder on the person of the brother of the young girl killed in Buatte I. In Buatte v. United States, 350 F.2d 389 (9th Cir. 1965), this Court was confronted with the argument that the above quoted statement was binding on the trial court. It held, however, "We do not consider this statement as a decisional ruling that, in another criminal case arising out of the same general incident, but involving another victim, the Government would necessarily be incapable of sustaining its burden of proof on the insanity issue." 350 F.2d at 394 n. 5.

Judge Wright, in his dissent in Cooper, correctly interpreted the law in this and other circuits when he stated, "No rule of law requires the government to offer expert medical testimony in every case in which a defendant has a psychiatrist testify for him. The need for expert testimony depends upon the facts of the case." Cooper, supra, 465 F.2d at 455. This was, in part, a quotation from our opinion in United States v. Ingman, 426 F.2d 973, 976 (9th Cir. 1970). We also said in Ingman: "If a defendant raises the defense of insanity and offers evidence in its support, the presumption that every man is sane disappears. The prosecution then has the burden of proving the fact of sanity beyond a reasonable doubt. * * * But `the nature and quantum of evidence of sanity which the Government must produce to sustain its burden and take the case to the jury will vary in different cases.'" 426 F.2d at 976.

No case that we have been able to find or any that has been called to our attention holds, as a matter of law, that the Government must meet defendant's psychiatric testimony with psychiatric testimony of its own. United States v. Handy, 454 F.2d 885 (9th Cir. 1971), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972), as Judge Wright pointed out in Cooper, does not hold to the contrary, since the Government, in Handy, had presented expert psychiatric evidence. In both McKinney v. United States, 487 F.2d 948 (9th Cir. 1973) and United States v. De Arman, 453 F. 2d 409 (9th Cir. 1971), we specifically rejected this same argument. See, Mims v. United States, 375 F.2d 135, 143-144 (5th Cir. 1957) and its progeny; Blake v. United States, 407 F.2d 908 (5th Cir. 1969); United States v. Pitts, 428 F.2d 534 (5th Cir.), cert. denied, 400 U.S. 910, 91 S.Ct. 154, 27 L.Ed. 2d 149 (1970); United States v. Collier, 453 F.2d 1173 (5th Cir. 1972). See also Dusky v. United States, 295 F.2d 743 (8th Cir. 1961) (Blackmun, J.), cert. denied, 368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536 (1...