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,
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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
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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
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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
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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
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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.
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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.
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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
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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,
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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.
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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,
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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
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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
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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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