UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-1835
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLON KEITH BARTON,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas
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(May 13, 1993)
( )
Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant, Marlon Keith Barton (Barton), appeals his
conviction for threatening by mail to kill the President of the
United States on the sole ground that the district court erred in
denying his motion for judgment of acquittal based on the assertion
that he was insane when he committed the offense. Because the
evidence was not such as to compel a finding that Barton was insane
at the time of the offense, we affirm.
Facts and Proceedings Below
Barton's story begins on April 10, 1991, approximately three
months before he wrote the threatening letter, at the Dallas
Central Appraisal District where he worked.1 On that morning,
Barton acted strangely at work. Barton arrived at work an hour or
so earlier than he normally did, but refused to speak to any of his
coworkers. One coworker asked him to come to her office, which he
did. She asked him questions, but he remained mute and simply
stared at her. Later he returned to his desk and sat at his
computer, neither working nor speaking to anyone. Soon, the
personnel manager brought Barton to the hospital and attempted to
have him admitted. Initially Barton manifested his consent by
filling out the admitting forms, but he then tore up the forms.
The hospital refused to admit him and Barton went home.
The next day, Barton surrendered to the Dallas County Jail for
a probation violation of failing to regularly contact his probation
officer. Barton remained in jail from April 11, 1991, to August 2,
1991.
About a week following the events of April 10, one of Barton's
coworkers called the jail and spoke to Barton. Barton spoke to the
worker and apologized for his actions and the problems he had
caused.
A few days after his April 10 incarceration, Barton's Aunt
Darleen came to visit him. During the visit Barton was spaced out
and unresponsive. About two weeks later, Barton wrote Darleen
concerning the visit saying that he had erred in violating the
terms of his probation and that he wanted to start life over again
1
Prior to this time, Barton had been a good worker for
fifteen months.
2
when released.
While in jail, Barton wrote the following letter to President
Bush: "Hello, Mr. Bush, I'm angered and filled with hatred that
you sent my brothers over to fight a war we knew nothing about or
had any reason being over there. For that I promise to kill you
when I get out. I hate your ass to death."2 Barton signed the
letter, and his return address appears on the envelope.3
On July 15, 1991, a White House mail analyst received the
letter and turned it over to the Secret Service. Not long after,
Barton was arrested on the instant charge of threatening to kill
the President.
After his arrest, the district court ordered a mental health
evaluation of Barton to determine his competency to stand trial.
Initially, the Metropolitan Correctional Center at Miami found that
Barton was suffering from a severe mental illness, was incompetent
to stand trial, and was in need of psychiatric care. He was then
sent to the Federal Medical Center in Rochester for an evaluation
of his competency and criminal responsibility and treatment.
Barton arrived there on January 7, 1992. Staff psychologist Dr.
Thomas Kucharsky said that Barton arrived at the center mute,
bordering on catatonia, and with a passive bland affect. With the
court's permission, Kucharsky treated and involuntarily medicated
Barton. Although ill, Barton still ate, drank, and took care of
2
Barton has no real brothers, but he may have been using the
word in a more generic sense.
3
There is no doubt that Barton wrote the letter. It was in
his handwriting, contained his fingerprints, and his counsel
basically admitted it during closing arguments at trial.
3
his personal hygiene.
Kucharsky diagnosed Barton as suffering from Brief Reactive
Psychosis, a mental illness with symptoms "essentially the same as
symptoms of schizophrenia. The major distinction being that the
duration of the illness is less than six months."
Kucharsky opined that within a reasonable medical certainty
Barton was suffering from this disease and therefore it was "highly
likely" that he was unable to appreciate the wrongfulness of his
actions when he wrote the letter to the President. Kucharsky then
said, however, that he would "qualify that a bit" and that he had
"submitted a report to the court that stated that a definitive
opinion regarding criminal responsibility or the appreciation of
wrongfulness could not be given." Kucharsky explained this by
stating that he was missing some "very important" information that
Barton had been unwilling or unable to communicateSQBarton's
motivation for sending the letter.
Barton recovered enough to stand trial. He was convicted
under 18 U.S.C. § 871, which makes it a crime to send a letter in
the mail threatening to kill the President. At trial, Barton
raised the defense of insanity. Implicit in the jury's verdict of
guilty was its finding that Barton was not shown to be criminally
insaneSQunable to tell right from wrongSQwhen he wrote the letter.4
Barton moved for a judgment of acquittal on the ground that the
evidence established he was insane at the time the offense was
4
The trial focused on the issue of insanity and the verdict
form contained three options: guilty, not guilty, and not guilty
by reason of insanity.
4
committed. This motion was denied and Barton appeals. His sole
contention on appeal is that the evidence conclusively established
his insanity defense.
Discussion
Normally, "[i]n reviewing a motion for judgment of acquittal,
we `consider the evidence as a whole taken in the light most
favorable to the government, together with all legitimate
inferences to be drawn therefrom to determine whether a rational
trier of fact could have found guilt beyond a reasonable doubt.'"
United States v. Turner, 960 F.2d 461, 465 (5th Cir. 1992)
(citations and footnote omitted); see United States v. Sanchez, 961
F.2d 1169, 1173 (5th Cir.), cert. denied, 113 S. Ct. 330 (1992);
United States v. Newman, 889 F.2d 88, 92 (6th Cir. 1989), cert.
denied, 110 S.Ct. 2566 (1990). Here, our review is different
because insanity is an affirmative defense for which the defendant,
not the government, bears the burden of proof at trial by clear and
convincing evidence. 18 U.S.C. § 17 (1988). Accordingly, we
should reject the jury verdict in this respect 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.5 We still view the
5
The federal insanity statute provides:
"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, was unable to appreciate the nature and quality
or the wrongfulness of his acts. Mental disease or
defect does not otherwise constitute a defense."
The defendant has the burden of proving the insanity
5
evidence in the light most favorable to the government since the
government prevailed below.
Although there is substantial evidence that he was insane
beginning in April of 1991, we think a reasonable fact finder could
have concluded that Barton failed to prove by clear and convincing
evidence that at the time of the offense in July 1991 he was by
reason of his mental illness unable to appreciate the nature and
quality or the wrongfulness of his acts.6
There is no definitive proof that Barton was unable to tell
right from wrong at the time he wrote the letter. Although
considerable evidence showed that he was mentally ill before and
during his first month of incarceration in the Dallas jail, some of
the evidence about Barton's illness from this period suggests that
he may have been able to determine right from wrong. A week after
Barton went to jail, around April 18, one of Barton's coworkers
called the jail and spoke to Barton. Barton spoke to the worker
and apologized for his actions and the problems he had caused.
This suggests that Barton could appreciate the nature and quality
and the wrongfulness of his conduct. Similarly, after his Aunt
Darleen's visit, Barton wrote her a letter in which he indicated
defense by clear and convincing evidence." 18 U.S.C. §
17(a) & (b) (1988).
6
Clear and convincing evidence is "that weight of proof which
`produces in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be
established, evidence so clear, direct and weighty and convincing
as to enable the fact finder to come to a clear conviction,
without hesitancy, of the truth of the precise facts' of the
case." In Re Medrano, 956 F.2d 101, 102 (5th Cir. 1992) (quoting
Cruzan v. Director, Missouri Dept. of Health, 110 S.Ct. 2841,
2855 (1990).
6
that he was sorry and wanted to change his life.
The only evidence showing that Barton was so ill that he was
unable to determine right from wrong, during the period when he
wrote the letter in July, was the expert opinion of Dr. Kucharsky
based on his examination of Barton about six months later.
However, Kucharsky qualified his opinion saying that he lacked some
important information from Barton. From Kucharsky's testimony it
is clear that Barton was suffering the effects of a mental illness
when Kucharsky examined him. It is less clear from Kucharsky that
when the crime occurred six months previously, Barton was so ill
that he could not determine right from wrong. Kucharsky noted that
the effects of this disease normally last less than six months.
And, the fact that he was able to write the letter to the
President and the letter to his aunt are suggestive that Barton may
have appreciated the nature of his conduct.
Fact finders are entitled to make credibility determinations
about witnesses, even expert witnesses. "[T]he questions of the
credibility and weight of expert opinion testimony are for the
trier of facts, . . . such testimony is ordinarily not conclusive
even where it is uncontradicted." Mims v. United States, 375 F.2d
135, 140 (5th Cir. 1967). In light of the facts that Kucharsky's
opinion was qualified and that no other testimony established
Barton's mental condition in July 1991, when he wrote the letter,
a reasonable fact finder could have concluded that Barton failed to
prove, by clear and convincing evidence, that he was insane within
the meaning of section 17(a) when he wrote the letter.
Barton argues that the fact that he signed his real name to
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the letter and gave his return address proved that he was unable to
tell right from wrong because sane people who commit illegal acts
would not leave such obvious evidence of their conduct. While it
is true that a person's attempt to hide his commission of a crime
suggests that the person knows the action is wrongful or illegal,
see United States v. Freeman, 804 F.2d 1574, 1577 (11th Cir. 1986),
we cannot say that disclosure of one's participation in an illegal
act necessarily demonstrates an inability to appreciate the nature
and quality or the wrongfulness of the conduct. Sane people openly
commit offenses and confess to crimes they could not otherwise be
convicted of. Barton's placing his name on the letter does not
conclusively establish that he was then unable to determine right
from wrong.
Barton notes that the government did not offer any rebuttal
evidence or contrary expert opinions. Because Barton, and not the
government, had the burden of proof, there was no inflexible
requirement for the United States to offer rebuttal evidence in the
form of its own expert witnesses or otherwise. See, e.g. Mims v.
United States, 375 F.2d 135, 140-41 (5th Cir. 1967); United States
v. Bennett, 908 F.2d 189, 195 (7th Cir.), cert. denied, 111 S.Ct.
534 (1990) ("The government is not required to rebut expert
testimony with its own expert as it may accomplish the same result
by presenting lay witnesses and other evidence and by undermining
the defense expert's credibility through cross examination").
It is not sufficient here that Barton's evidence might appear
to us, were we the finder of fact, to be clear and convincing. We
are not fact finders and do not assess the credibility of the
8
testimony or the weight of the evidence. These are the jury's
responsibilities. Sanchez, 961 F.2d at 1173. This deference is
particularly appropriate where the jury has found against a party
having the burden of proof by clear and convincing evidence. As
the D.C. Circuit said,
"when insanity is raised as a defense to crime, a
judgment of acquittal by reason thereof, we have
emphasized, should be granted only in exceptional cases.
And `in view of the complicated nature of the decision to
be made SQintertwining moral, legal, and medical
judgmentsSQit will require an unusually strong showing to
induce us to reverse a conviction because the judge left
the critical issue of criminal responsibility with the
jury.' We think it clear in this case that the trial
judge left it where it belonged." Gaskins v. United
States, 410 F.2d 987, 990-91 (D.C. Cir. 1967) (citations
and footnotes omitted).
Conclusion
Because a reasonable jury could have found that Barton failed
to prove by clear and convincing evidence that when he threatened
to kill the President he was so mentally ill that he was unable to
appreciate the nature and quality or the wrongfulness of his
conduct, the district court did not err in denying Barton's motion
for judgment of acquittal. Accordingly, Barton's conviction is
AFFIRMED.
9