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United States v. Shelton

Court: Court of Appeals for the First Circuit
Date filed: 2007-06-15
Citations: 490 F.3d 74
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             United States Court of Appeals
                        For the First Circuit


No. 06-1979

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                            WAYNE SHELTON,

                        Defendant, Appellant.



             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF RHODE ISLAND

            [Hon. Mary M. Lisi, Chief U.S. District Judge]


                                Before

                        Howard, Circuit Judge,

                   Campbell, Senior Circuit Judge,

                     and Saris,* District Judge.


     James M. Fox, for appellant.
     Donald C. Lockhart, Adi Goldstein, Assistant United States
Attorneys, were on brief for appellee.


                            June 15, 2007




     *
         Of the District of Massachusetts, sitting by designation.
       SARIS, District Judge.

                                    I.     INTRODUCTION

             After a bench trial, defendant-appellant Wayne Shelton

was convicted of aggravated bank robbery. On appeal, he challenges

the district court’s rejection of his insanity defense and the

reasonableness of a bottom-of-the-range sentence of 262 months.

After a thorough review of the record, we AFFIRM.

                              II.    FACTUAL BACKGROUND

A.    The Robbery

             Wayne Shelton was indicted by a grand jury for bank

robbery     using     force    and       violence    in    violation    of   18    U.S.C.

§§ 2113(a) and (d).            Shelton waived his right to a jury trial.

During the four-day bench trial, the government presented evidence

of the following facts.

             On August 11, 2004, the day before the robbery, Shelton

“cased” the Bank Rhode Island in East Providence, a federally

insured bank, by observing it from across the street for two hours.

Just before the robbery, he again sat across the street watching

the bank for in excess of two hours.                  Then, at about 3:00 p.m. on

August 12, Shelton burst into the bank brandishing a pellet gun,

which looked like a real handgun, and wearing a pair of sunglasses,

a    hat,   and   a   bandana       over    his    face.     Pointing    the      gun,   he

methodically demanded large bills from each of the four tellers,

who gave him $9,000.          While stuffing the money into a duffle bag,


                                             -2-
Shelton placed his gun down, but before fleeing the bank, he

retrieved it.   He placed the gun and his disguise into the duffle

bag, then hopped onto a mountain bicycle.

           A police officer, who had heard reports describing the

bank robber, spotted Shelton on his bike several blocks from the

bank, and ordered him to stop.         Shelton ignored the command.

Abandoning the mountain bike, Shelton continued to flee on foot.

After chasing Shelton for two blocks, a second officer captured and

arrested Shelton in a backyard, still holding the duffle bag with

the money and the pellet gun.   It was hot, and all were sweating

and winded from the chase.

           During the booking, Shelton initially refused to answer

questions.   Later, he identified himself with a false name and

false date of birth.   After arrival at the cell block, an officer

requested an ambulance for Shelton to check on his well-being.    En

route to the hospital for medical attention in the ambulance,

Shelton told the officer, “I will get away from you.     I have done

this in the past and I got away.”     Later that evening, he admitted

his true name after being confronted by a police officer who

recognized him.

B.   The Insanity Defense

           Shelton presented an insanity defense.      The defendant

testified about his memory of the events on the day of the bank

robbery as follows.    He awoke to find himself sitting behind a


                                -3-
garage and didn’t know why he was there.    Thirsty and confused, he

reached into his duffle bag to get a drink.         Instead, when he

opened his bag, he found money.       At that exact moment, he was

approached by a police officer.     Startled, Shelton began to run,

but he was tackled shortly thereafter by the officer and hit so

hard he passed out, only to regain consciousness at a hospital.   He

has no memory of the robbery or of being at the police station.

          Shelton offered evidence of his difficult life.         His

mother was murdered when he was only fifteen years of age.    He said

that he hears imaginary voices, particularly a female voice who

“likes to start trouble” and chastise him, and that he has blacked

out in the past while committing acts of vandalism and violence.

Prior to his arrest for the bank robbery, he had been arrested and

incarcerated twice for receiving stolen goods, and the police had

wrongfully seized some items of his personal property (including a

PlayStation video game device) during a search and refused to

return them despite a court order to do so.        During this prior

interaction with the police, Shelton also had used an alias.

Shelton admitted disliking the police for refusing to return his

DVDs, PlayStation, and other items.

          Defendant recounted two instances where he did something

violent and then didn’t remember.     When he was thirteen and living

in a group home, he broke a chair; on another occasion, he kicked

his girlfriend’s car door.   Neither time did he remember the event


                                -4-
immediately afterwards.

C.   Expert Testimony

           Each side submitted expert testimony on Shelton’s mental

state. Defense expert Dr. Ronald Stewart, a psychiatrist, reviewed

records from the group homes Shelton had lived in as a child and

reviewed the report of the government’s psychiatric expert, Dr.

Richard Frederick.    Dr. Stewart examined Shelton on two occasions.

He concluded that the defendant suffered from a major depressive

disorder    with     psychotic   features      (that   is,   auditory

hallucinations), post-traumatic stress disorder, and dissociative

reaction, all of which rendered him incapable of knowing the

wrongfulness of his behavior on the date of the robbery.          Dr.

Stewart’s opinion was based, in large part, on Shelton’s statements

that he experienced auditory hallucinations, had no memory of the

bank robbery, and had an extreme anger at the police due to the

prior seizure of his “Gameboy” (a portable video game device) which

was the “center of his universe.”      Moreover, Dr. Stewart testified

about Shelton’s prior personal history, including the murder of his

mother (who herself had schizophrenia, as did his two uncles);

sexual abuse; physical beatings about the head by his father

resulting in loss of consciousness; longstanding depression; and

borderline intellectual functioning with an IQ of 86.          In Dr.

Stewart’s opinion, defendant was “not aware of the bank robbery as

it was happening.” He testified that defendant was “so preoccupied


                                 -5-
with   the   elements   of    his     psychosis,    which   include   auditory

hallucinations, that though he may have been doing what appeared to

be purposeful behavior, it is very unlikely that he had any

understanding of the wrongfulness of his behaviors....”

       Countering this testimony, the government introduced testimony

from Dr. Richard Frederick, a clinical psychologist at the Medical

Center for Federal Prisoners in Springfield, Missouri with an

expertise in feigned psychopathology and cognitive impairments.

Shelton arrived at Springfield in November and left in April.               Dr.

Frederick    placed   Shelton    on    medication    designed   to    alleviate

depression and psychotic symptoms.           According to Dr. Frederick,

Shelton’s reaction to the medication was inconsistent with that of

a patient actually suffering from the claimed conditions.                  For

example, Shelton stated that his medication had no effect on his

symptoms of depression and psychosis, though some reaction would

normally be expected.        When Shelton was discovered “cheeking,” or

not swallowing, his medication, treatment was discontinued.                 In

another incident recounted by Dr. Frederick, Shelton exhibited a

marked change in manner when allowed to speak to his sister over

the telephone -- his energy level changed instantly. This observed

ability to “turn it on and turn it off” suggested to Dr. Frederick

that defendant was probably faking his symptoms.

             Dr. Frederick’s observations over those weeks and his

review of other medical reports and witness statements from the


                                       -6-
crime led him to conclude that Shelton suffered from a schizoid

personality disorder, “which is not a major mental illness” and

would not prevent him from appreciating the nature and quality of

his actions.      Dr. Frederick further opined that Dr. Stewart’s

diagnosis of dissociative disorder was unlikely, given that such a

condition is both rare and “obvious to observers.”         For instance,

dissociative disorder is characterized by a “vacant” stare, and

while patients suffering with that condition may be able to engage

in “well-learned repetitive behavior,” they “won’t be able to

respond to a new situation.”        Shelton did not display a “vacant

stare” and was observed engaging in purposeful behavior with a

rational motive over the course of the robbery.            Dr. Frederick

characterized Shelton’s claim that he didn’t remember the robbery

as absurd, pointing out that “the Defendant fails to recall only

those matters that involve criminal behavior.        Everything else he

seems to be okay with.”   Dr. Frederick concluded that Shelton also

did not suffer from post-traumatic stress disorder.

          After    pointing   out   that   Dr.   Stewart   did   not   know

defendant had cased the bank the day before or that he took the

disguise off after the robbery, the district court discredited

defendant’s expert:

          He knew almost no facts about the actual
          robbery. He spent little time discussing it
          with the Defendant and stated that he assumed
          that the Defendant was telling him the truth
          when he claimed to have no memory of the bank
          robbery and of hearing voices.

                                    -7-
           Dr. Stewart did not look at the police
           reports, the video of the robbery or any
           witness statements that would have given him a
           tremendous amount of detail as to the
           Defendant’s actions on that day.

           And so, as I say, I find Dr. Stewart’s opinion
           and diagnosis to be of no or little value in
           this case. It simply is not supported by the
           record facts.


By contrast, the court found Dr. Frederick’s opinion regarding

Shelton’s mental state to be “credible, compelling,” and “well

based on the actual facts of [the] case.”            The court explained:

           The Defendant’s watching the bank, casing the
           bank the day before the robbery, casing the
           bank again the day of the robbery, knowing
           enough to use a very good disguise, his choice
           of a weapon, a BB gun that looked exactly like
           a real semi-automatic, his deliberate and
           purposeful actions while in the bank, that is,
           going from teller to teller, knowing enough to
           go back and retrieve the gun from where he
           left it and then removing his disguise and
           secreting it within the bag when he left the
           bank.

In   reaching   this   conclusion,    the    court    emphasized   that   Dr.

Frederick had formed his opinion after four months of observation

of Shelton while incarcerated, whereas Dr. Stewart’s examination

occurred over a short period.         The court concluded that Shelton

failed to meet his burden of proving the defense of insanity by

clear and convincing evidence.             As such, the court found the

defendant guilty of aggravated bank robbery.




                                     -8-
D.   The Sentencing

           After his conviction, Shelton was sentenced to 262 months

of incarceration on June 20, 2006.      Shelton was a Career Offender

with at least two prior convictions, including convictions for

armed robbery using a shotgun, breaking and entering, and assault

with a deadly weapon, which resulted in a calculation of 20

Criminal History Points under the advisory Sentencing Guidelines.

The Presentence Report (“PSR”) calculated his offense level at 34,

which placed him in criminal history category VI.      Based upon this

calculation, which is not contested, Shelton faced an advisory

sentencing range of 262 to 327 months.       Shelton’s counsel argued

for a downward departure or variance from the advisory guideline

range based on certain mitigating factors: Shelton’s claimed mental

illness, his status as a victim of sexual and physical abuse as a

child, and his mother’s murder when Shelton was only fifteen.

           After   discussing   Shelton’s   family   and   psychological

history at sentencing, the trial court remarked:

           In this case, the violence that is perpetrated
           by the Defendant, the decisions he makes to
           take firearms and point them at people, not
           just this one time but the history of him
           doing so, causes me in this case to decide
           that a sentence at the low end of the
           guidelines is what is necessary not only to
           protect the public but also to protect Mr.
           Shelton from himself and to accomplish those
           goals that are set forth in Section 3553.

While the court characterized defense counsel’s argument for a

discretionary downward departure as “eloquent,” it nonetheless

                                  -9-
determined that consistent with the goals of 18 U.S.C. § 3553, a

low-end Guidelines sentence of 262 months was appropriate.

                             III.   DISCUSSION

A.   Insanity Defense

            Shelton argues that the trial court erred by finding he

failed to satisfy his burden of proving by clear and convincing

evidence that he was unable to appreciate the nature and quality or

the wrongfulness of his acts on the day of the robbery due to a

severe mental disease or defect.

            Normally, we review challenges to sufficiency of the

evidence following bench trials “de novo, evaluating whether, after

viewing     the   evidence   in   the   light    most   favorable   to   the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United

States v. Melendez-Torres, 420 F.3d 45, 48-49 (1st Cir. 2005)

(internal quotation omitted and citations deleted).           The standard

of review must be stated differently for the insanity defense

because it is an affirmative defense for which the defendant, not

the government, has the burden of proof by clear and convincing

evidence.    See 18 U.S.C. § 17(a) & (b) (1988).1


     1
            The Federal insanity statute, 18 U.S.C. § 17, provides:

            (a) It is an affirmative defense to a
            prosecution under any Federal statute that, at
            the time of the commission of the acts
            constituting the offense, the defendant, as a
            result of a severe mental disease or defect,

                                    -10-
In the context of the insanity defense, a reviewing court should

reject the verdict “only if no reasonable trier of fact could have

failed to find that the defendant’s criminal insanity at the time

of the offense was established by clear and convincing evidence.”

United States v. Barton, 992 F.2d 66, 68-69 (5th Cir. 1993).        While

a defendant making an ordinary sufficiency challenge faces a

difficult hurdle, in an insanity case, the defendant’s burden is

“even greater” because at trial it is the defendant, not the

government, that must carry the burden of proving insanity by clear

and convincing evidence.    United States v. Waagner, 319 F.3d 962,

964 (7th Cir. 2003).

          As we have repeatedly emphasized, it is for the fact-

finder   to   “decide   among   reasonable   interpretations   of     the

evidence.”    United States v. Batista-Polanco, 927 F.2d 14, 17 (1st

Cir. 1991).   A reviewing court should not re-weigh the credibility

of witnesses.    United States v. Hahn, 17 F.3d 502, 508 (1st Cir.

1994).   It is well within the fact-finder’s province to determine

the weight accorded to expert witnesses.         See Seahorse Marine



          was unable to appreciate the nature and
          quality or the wrongfulness of his acts.
          Mental disease or defect does not otherwise
          constitute a defense.

          (b) The defendant has the burden of
          proving the defense of insanity by clear
          and convincing evidence.



                                 -11-
Supplies, Inc. v. Puerto Rico Sun Oil Co., 295 F.3d 68, 81 (1st

Cir. 2002) (citing Mitchell v. United States, 141 F.3d 8, 16-17

(1st Cir. 1998)).

           As a preliminary matter, on appeal defendant has not

challenged the sufficiency of the evidence to support the elements

of the bank robbery charge against him.        Thus the only question to

be resolved on appeal is whether the trial court’s decision that

the defendant had not satisfied his burden proving his insanity

under 18 U.S.C. § 17 by clear and convincing evidence was based on

sufficient evidence.     The district court gave less weight to the

testimony of Dr. Stewart because, among other things, he conducted

only two interviews of the defendant; assumed that Shelton was

being truthful when he described his memory of events on the day of

the robbery; admitted that he knew little about the facts of the

robbery; and failed to evaluate his medical diagnosis in light of

the facts surrounding the bank robbery, including Shelton’s use of

a disguise, his surveillance of the bank, and the defendant’s

decision to carry a gun.

           Defendant argued that the court failed to apply the same

level of scrutiny to each party’s expert.        He emphasizes that the

government’s expert did not conduct an exhaustive investigation to

learn about the robbery. However, while the government expert made

efforts   to   review   the   bank   robbery   witness   statements,   the

defendant’s expert did not even look at defendant’s rap sheet,


                                     -12-
recall reading any police reports or witness statements, interview

any witnesses, review the medical records from the day of the

robbery, or interview anyone who had a first-hand impression of

what the defendant was like on the day of the offense.     Instead,

his primary source of information about defendant’s state of mind

on the day of the robbery was the defendant, who Dr. Stewart

assumed was telling the truth.        The court fairly weighed Dr.

Stewart’s limited knowledge of the facts of the case in assessing

the credibility of the defense expert.    Batista-Polanco, 927 F.2d

at 22.

          In contrast, the court determined that Dr. Frederick’s

diagnosis and opinion were credible.    The court believed that the

expert witness’s opinion was strengthened because he had observed

the defendant over the course of several months, conducted a

battery of tests on the defendant, and thoroughly observed his

interactions with others in the prison.    In the court’s view, Dr.

Frederick’s opinion that Shelton was feigning his dissociative

disorder was rooted to the facts of the instant case, because

Shelton’s decision to case the bank, wear a disguise, plan an

escape route on a bicycle, and carry a weapon indicated that “he

knew exactly what he was doing when he robbed Bank RI on August 12,

2004.”

          Shelton has fallen short of his burden of proving that no

reasonable trier of fact could have failed to find that the


                               -13-
defendant’s insanity at the time of the offense was established by

clear and convincing evidence.                  We therefore affirm Shelton’s

conviction.

B.   The Sentence

              Shelton    also        challenges     the     court’s       sentence    as

unreasonable.        Importantly, Shelton does not assert that the

district court erred in calculating the advisory range, nor does he

argue that the court’s refusal to depart or vary was based on a

misunderstanding or misapplication of the law.                     Rather, he argues,

“when the nature of the offense is balanced against his diminished

mental capacity and tragic personal history, the factors outlined

in § 3553(a) warrant a lesser sentence.”                   Essentially, defendant

complains that the district court did not reasonably weigh the

factors made relevant by 18 U.S.C. § 3553(a).

              In the aftermath of United States v. Booker, 543 U.S. 220

(2005), which deemed the Sentencing Guidelines advisory, this court

will review a trial court’s sentence for reasonableness, regardless

of   “whether    the    actual       sentence    falls     inside    or   outside    the

sentencing guideline range.”             United States v. Pelletier, 469 F.3d

194,    203      (1st        Cir.     2006)      (citing      United        States    v.

Turbides-Leonardo, 468 F.3d 34, 40-41); see also United States v.

Jiménez-Beltre,        440    F.3d    514,    517   (1st    Cir.    2006)    (en   banc)

(holding      that   Booker         establishes     that    “sentences       would    be

reviewable for reasonableness whether they fell within or without


                                          -14-
the   guidelines.”).         In   this     review       for   reasonableness,    “the

sentencing guidelines, though advisory, remain an important datum

in constructing a reasonable sentence.                  Consequently, a defendant

who attempts to brand a within-the-range sentence as unreasonable

must carry a heavy burden.”             Pelletier, 469 F.3d at 204 (citations

omitted).

             Here, defendant argues that the court undervalued the

weight that should have been accorded his diminished capacity and

tragic personal history.           The record demonstrates the court took

into account these mitigating factors of his “disturbing” family

and psychological history, but found that his history of violence

outweighed them.       While the sentence is high, it is at the bottom

of    the   range,    and   the   court     gave    a    reasonable       explanation,

including the point that the sentence was needed to protect the

public.       Given    defendant’s        history       of    extremely    “dangerous

behavior” and the court’s finding that defendant knew full well

what he did, the overall sentence is defensible.                      See Jiménez-

Beltre, 440 F.3d at 518-19.             The sentence is affirmed.

                                  IV.    CONCLUSION

             The judgment of the United States District Court for the

District of Rhode Island is AFFIRMED.




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