Unpublished Disposition, 894 F.2d 410 (9th Cir. 1986)

MEMORANDUM^* 

John Francis Butler appeals his conviction after a jury trial for violating 18 U.S.C. § 871, which makes it a crime to make threats against the life of the President. We affirm.

FACTS AND PROCEEDINGS BELOW

Butler made telephone calls to the Secret Service during which he made statements that contained words of threat against the President's life. The fact of the phone calls and the content of the statements is undisputed on appeal.

In pretrial motions, Butler argued that willful intent is an element of 18 U.S.C. § 871. He argued further that the government had to establish his mental capacity to form such an intent beyond a reasonable doubt. The district court rejected this interpretation of Sec. 871.

Butler also gave notice of his intention to raise an insanity defense and argued that the due process clause of the fifth amendment required the government to prove sanity beyond a reasonable doubt. The district court disagreed, and instead placed the burden of proof on Butler, as required by the Insanity Defense Reform Act of 1984, Pub. L. No. 98-473, Title II, October 12, 1984, 98 Stat. 2057 (codified in relevant part as 18 U.S.C. § 20; subsequently renumbered as 18 U.S.C. § 17) (IDRA).

Finally, Butler argued that because IDRA eliminated the volitional prong of the insanity test, IDRA violated the eighth amendment by allowing mentally ill persons to be convicted of crimes despite their inability to control their conduct.

Butler presented testimony from a psychiatrist named Dr. Missett who testified that Butler suffered a manic-depressive or bipolar disorder caused by a chemical imbalance in the brain. Dr. Missett testified that on March 6, 1986, the day Butler made the phone calls, he was experiencing a manic episode. He testified about the typical manifestations of manic episodes, one of which is a compulsion to make telephone calls.

Although the trial court indicated that the eighth amendment argument might have merit, it declined to require the jury to render a special verdict on the uncontrollable impulse issue because there was "no evidence that a reasonable trier of fact could find an uncontrollable impulse to do the act for which he is before the Court ..."

After trial, in aid of a motion for a new trial, the defendant filed an affidavit by Dr. Missett, wherein he asserted that at the time of the offense, Butler "was acting as a result of an 'irresistible impulse' which was caused by his bipolar disorder, as that particular term has been defined." The trial court reaffirmed its earlier ruling that the defendant was not entitled to an instruction on irresistible impulse given the facts of the case.

DISCUSSION

We consider each of Butler's contentions.

Butler first argues that sanity is a component of the willfulness element of 18 U.S.C. § 871 and that the government had to prove his mental capacity to convict him under the statute. Section 871 provides in relevant part:

Whoever knowingly and willfully [mails] any threat to take the life of or to inflict bodily harm on the President of the United States ... or knowingly and willfully otherwise makes any such threat against the President ... shall be fined not more than $1,000 or imprisoned not more than five years, or both.

Butler correctly argues that even after the enactment of the Insanity Defense Reform Act of 1984, the government must prove that a defendant has the mental capacity to form intent in specific intent crimes. This court so held in United States v. Twine, 853 F.2d 676 (9th Cir. 1988), and the government does not dispute that point in this case.

Butler then argues that Sec. 871 is a specific intent crime because it requires the threat to be made "knowingly and willfully." Although crimes of which willfulness is an element often are crimes of specific intent, that is not so of Sec. 871.

In Roy v. United States, 416 F.2d 874, 877 (9th Cir. 1969), this court construed the willfulness requirement of Sec. 871 "to require only that a defendant intentionally make a statement, written or oral, in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious [threat]." In Twine, supra, this court characterized Sec. 871 as a "general intent" crime because the defendant's subjective intent, or state of mind as to whether his words constitute a threat, is not determinative. Butler's contention that under Sec. 871 the government was required to prove his mental capacity to intend to threaten beyond a reasonable doubt in order to establish his guilt thus lacks merit.

2. The Constitutionality of 18 U.S.C. § 17.

Butler next contends that even if Sec. 871 does not require the government to prove his sanity as a prerequisite to convicting him, the fifth amendment does. He argues that 18 U.S.C. § 17, which makes insanity an affirmative defense to prosecutions under federal statutes and requires the defendant to prove insanity by clear and convincing evidence, is unconstitutional even as applied to crimes not requiring specific intent.

In Davis v. United States, 160 U.S. 469 (1895), the Supreme Court held that the federal government must prove a defendant's sanity beyond a reasonable doubt in a criminal case when the defendant properly places his sanity at issue. In Leland v. Oregon, 343 U.S. 790, 797 (1952), the Court held that Davis established "no constitutional doctrine, but only the rule to be followed in federal courts." The Court refused to strike down an Oregon law requiring the defendant to prove insanity beyond a reasonable doubt.

The appellant forthrightly recognizes that Leland held that imposing the burden of proving insanity on the defendant does not offend due process, but he invites this court to consider whether in the thirty-seven years since Leland was decided, our understanding of insanity has improved and changed so that any practice which requires the defendant to bear the burden of proving his insanity would "offend [ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). However, since Leland was decided, the Supreme Court has dismissed as not presenting a substantial federal question an appeal challenging the continuing validity of Leland. Rivera v. Delaware, 429 U.S. 877 (1976). That decision was on the merits, and it binds lower courts. Hicks v. Miranda, 422 U.S. 322, 344 (1975).

3. The Constitutionality of Eliminating the Volitional Component of the Insanity Defense.

Butler's third and most substantial claim is that the Insanity Defense Reform Act is unconstitutional because the insanity test adopted in the Act lacks a volitional component. Prior to the Act, the test for insanity in this court and in most federal courts was derived from the Model Penal Code. See Wade v. United States, 426 F.2d 64, 71-72 (9th Cir. 1970). In Wade the court adopted the first paragraph of the Model Penal Code test, which provided:

[A] person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirement of law.

Id. at 71 (quoting American Law Institute Model Penal Code Sec. 4.01 (Final Draft, 1962)). The part of this test that excuses a defendant from responsibility when he or she lacks substantial capacity to conform to the requirement of law is known as the "volitional prong."

In enacting IDRA, Congress eliminated the volitional prong and established a federal insanity defense which excuses a defendant who "as a result of severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts." 18 U.S.C. § 17(a).

Under the new law, a person can be convicted of a crime even when he or she is unable to control his or her conduct. Butler argues that to punish someone for conduct that, because of mental illness, cannot be controlled is cruel and unusual and violates the eighth amendment. Butler relies heavily on Robinson v. California, 370 U.S. 660 (1962) and on the opinions of Justice White (concurring) and Justice Fortas (dissenting) in Powell v. Texas, 392 U.S. 514 (1968). In Robinson, the Court held that California could not punish someone solely for being a drug addict. The eighth amendment required at a minimum that a defendant commit an act.

In Powell, the Court split 4-1-4 over the implications of Robinson. The plurality opinion of Justice Marshall, who was joined by three others, held that Robinson only precluded punishment for a person's status or condition and did not preclude punishment for acts of any kind, even involuntary acts caused by uncontrollable compulsions characteristic of that status or condition. The dissenting opinion of Justice Fortas, also joined by three others, interpreted Robinson to preclude punishment for involuntary acts that are caused by a disease or condition. Justice White, as did Justice Fortas, read Robinson to prohibit punishing certain non-volitional acts. But Justice White found that on the facts before the Court, the defendant's act of drinking in public was not the type of involuntary act for which the eighth amendment precluded punishment, since public drinking was not established to be a necessary incident of the condition of chronic alcoholism.

Thus, as Butler argues, there were five justices in Powell who voted for the proposition that in certain circumstances non-volitional acts could not be punished consistently with the eighth amendment. However, we need not decide whether in some cases IDRA may clash with the proposition supported by those five justices, nor need we decide what the ultimate outcome of that clash would be, because in this case, even that proposition would not help Butler.

The evidence at trial did not establish facts that would allow Butler to claim that his act was the product of a compulsion such that punishing him would be unconstitutional, even under Justice White's view of the eighth amendment. For Justice White, the central question is whether the acts for which the defendant is being punished "are sufficiently proximate to the 'condition' [or disease] for it to be permissible to impose penal sanctions." Powell, 392 U.S. at 551 n. 2. Moreover, even Justice Fortas in his dissent in Powell, 392 U.S. at 559 n. 2, suggested that "independent acts or conduct that do not typically flow from and are not a part of the syndrome of the disease" would not be immune from punishment. Butler's psychiatric expert witness testified that Butler suffered from a bipolar or manic-depressive disorder. He testified that a typical aspect of the manic part of the syndrome is the compulsive making of telephone calls. But he did not testify that the syndrome includes making threats, let alone threats against the President. The defendant must establish such a nexus between the proscribed act and the condition giving rise to the involuntary compulsion before he can claim immunity from punishment under either Justice White's concurrence or Justice Fortas' dissent in Powell. Butler established no such nexus here.

The judgment of the district court is AFFIRMED.