UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES EVERETTE WORRELL, Defendant-Appellant.
No. 01-4857
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
December 17, 2002
Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge, and Claude M. HILTON, Chief United States District Judge for the Eastern District of Virginia, sitting by designation.
PUBLISHED. Argued: September 25, 2002. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, Chief District Judge. (CR-00-11-BO)
COUNSEL
ARGUED: George Alan DuBois, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Dennis M. Duffy, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Raleigh,
OPINION
TRAXLER, Circuit Judge:
James Worrell was conviсted by a jury on two counts of mailing threatening communications. See
I.
Worrell was incarcerated for an unrelated crime when he became convinced that Theresa Roberson, his former girlfriend and the mother of two of his children, had become romantically involved with another man. Worrell, who was due to be released from prison in late 2000, admits writing and mailing from prison a series of threatening letters to Theresa. Federal law makes it a crime to “knowingly deposit[ ] in any post office or authorized depository for mail matter, to be sent or delivered by the Postal Service” or to “knowingly cause[ ]” the Postal Service to deliver “any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to . . . injure the person of the addressee or of another.”
In one of the letters, dated February 28, 2000, Worrell wrote to Theresa that he knew she was “seeing some guy that [she] work[ed]
Shortly after sending the February 28 letter, Worrell began threatening Theresa. In a letter dated March 20, 2000, Worrell opened with an obscenity-laced tirade against Theresa and her mother and closed with the following threat: “No matter what the law says I can always get a gun and no one can stop what I plan on doing with it. Can you guess what I plan on doing? Bang-Bаng Bitch. Ha-Ha. How do you like that. . . . [Y]ou have been a very bad girl. So you mu[st] pay with your life.” J.A. 451-52. The threats contained in the March 20 letter served as the basis for count two of the indictment.
Worrell‘s initial strategy was to raise a defense based on his diagnosis of bipolar disorder and intermittent explosive disorder. Prior to trial, Worrell moved for permission to file an untimely notice of an insanity defense under
After interviewing Worrell for approximately an hour and reviewing Worrell‘s mental health records, Dr. Corvin summarized his conclusions in a letter to Worrell‘s attorney which was proffered to the
After receiving Dr. Corvin‘s summary of his evaluation of Worrell, the government moved in limine to exclude any evidence relating to Worrell‘s mental condition.2 The government made a two-fold argument based on the federal insanity defense, see
Given that Dr. Corvin could not say that Worrell was unable to appreciate the nature and quality or wrongfulness of his criminal acts, counsel for Worrell candidly conceded to the district court that Worrell did not qualify for an insanity defense. However, Worrell still sought to introduce Dr. Corvin‘s testimony on the basis that mailing a threatening communication in violation of
The district court granted the government‘s motion to exclude Dr. Corvin‘s testimony. However, the district court did not prohibit Worrell, who testified in his own defense, from telling the jury that he suffered from “bipolar disorder and inter[mittent] explosive disorder,” J.A. 254, that when he does not take his medication, he does not “really think about what [he is] doing before [he does] it,” J.A. 255, and that, prior to writing the first letter to Theresa, he had been taken off of his medication. In fact, Worrell‘s attorney emphasized this point during his closing argument, suggesting to the jury that Worrell‘s “case would not be in front of you if it were not for the fact that, as Mr. Worrell testified, that he was taken off of his medication” and that “there were no letters submitted to you that were threatening while he was on his medication.” J.A. 298.
On cross-examination, Worrеll admitted writing the letters and mailing them to Theresa. He acknowledged that he understood that a letter must have an address and a zip code, that it requires a stamp and
Worrell further conceded that he had been trying to scare Theresa with his letters, and оne of the investigating agents testified that Worrell told him the purpose of the letters was to threaten Theresa in response to her apparent desire to obtain exclusive custody of his children. Given the history of physical abuse and threats of violence inflicted by Worrell, it probably would have been unreasonable for Theresa simply to dismiss these threats as harmless. Theresa testified that throughout her three-year relationship with Worrell, he regularly beat her with his fists if she said or did something that angered him. Theresa further testified that on one occasion, with the children present, Worrell held a gun near her head and threatened to shoot her. Although Worrell denied holding the gun close to her head, he admitted that he pulled a gun on Theresa and pointed it towards her from “about eight paces away.” J.A. 273. He also admitted striking Theresa with his hand during their relationship.
The jury concluded that Worrell violated
Worrell also appeals his sentence. Adopting the recommendation set forth in the presentence report, the district court applied a six-level enhancement based on Worrell‘s past abuse of Theresa, which the court concluded to be conduct evidencing Worrell‘s intent to carry out his threats. The district court also departed upward by one lеvel based on its conclusion that Worrell‘s criminal history score failed to account for his extensive previous criminal activity. Worrell appeals the six-level enhancement, but he does not challenge the upward departure.
Worrell argues that the district court committed reversible error when it barred the introduction of Dr. Corvin‘s testimony about the effect of Worrell‘s unmedicated bipolar and intermittent explosive disorders at the time that Worrell wrote and mailed the letters to Theresa. Worrell contends that he intended to present this expert testimony to show that, “as a result of his impaired mental state, he did not possess the specific intent necessary to commit” the offense of convictiоn. Brief of Appellant at 14. Accordingly, he argues, IDRA did not preclude the introduction of such testimony because he was not pursuing an affirmative insanity defense.
A.
IDRA codified the federal standard for an insanity defense, and provides as follows:
(a) Affirmative defense.—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.
(b) Burden of proof.—The defendant has the burden of proving the defense of insanity by clear and convincing evidence.
Prior to the enactment of IDRA, we followed the test formulated by the American Law Institute (“ALI“) which provided, in part, that “[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 either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” United States v. Chandler, 393 F.2d 920, 926 (4th Cir. 1968) (en banc) (internal quo-
In passing IDRA, Congress rejected the “volitional prong” of the ALI test. See United States v. Cameron, 907 F.2d 1051, 1061 (11th Cir. 1990); United States v. Pohlot, 827 F.2d 889, 896 (3rd Cir. 1987). IDRA expressly prohibits the use of any “[m]ental disease or defect” as a defense unless it demonstrates that the defendant “was unable to appreciate the nature and quality or the wrongfulness of his acts.”
Therefore, the government argued to the district court that IDRA absolutely bars the introduction of evidence regarding mental disease or defect unless the defendant is pursuing a formal affirmative insanity defense. Worrell, however, contended that he was not introducing evidence of his mental disorders to support an affirmative defense or legal excuse, but rather to negate one of the elements of the government‘s case. Specifically, Worrell asserted that as a result of his bipolar disorder and his intermittent explosive disorder, he did not possess the specific intent to mail threatening communications in violation of
The district court did not specifically address the broad issue of whether IDRA permits a defendant who is not pursuing an insanity defense to use evidence of a mental disease or defect to negate specific intent. We note that, on appeal, the government has not vigorously pursued its position on this particular issue. Indeed, the circuits addressing this issue appear to agree that, despite IDRA, psychiatric testimony regarding a defendant‘s mental condition can still be used
This distinction seems clear enough in theory, if not in practice. We confess we have difficulty envisioning many scenarios in which a defendant could introduce psychiatric evidence, short of insanity, that was not simply diminished capacity evidence or some other form of justification in disguise. See Cameron, 907 F.2d at 1066 (“When a defendant claims to havе psychiatric evidence that she ‘lacked the capacity’ or was ‘incapable’ of forming the intent necessary for the crime charged, most often that defendant is speaking of an incapacity to reflect or control the behaviors that produced the criminal conduct.“); Pohlot, 827 F.2d at 900 (“Only in the rare case . . . will even a legally insane defendant actually lack the requisite mens rea purely because of mental defect.“). Both the Eleventh and Third Circuits, which have considered this issue in depth, offer the same example of
United States v. Staggs, 553 F.2d 1073 (7th Cir. 1977), provides an example of the aрpropriate use of “psychiatric evidence to negate specific intent.” Mr. Staggs was charged with threatening to shoot a policeman. He denied making the threat and sought to introduce psychiatric evidence that he suffered from a mental condition that made it highly unlikely that he would make such a threat. The Seventh Circuit reversed the district court‘s exclusion of this evidence since it did not imply a legal excuse for the conduct engaged in by Staggs, nor did it suggest a theory of unconscious motivation or lack of volitional control. The evidence instead shed light on whether Staggs possessed a specific state of mind that would make him guilty of a more serious crime than his conduct alone would support.3
Cameron, 907 F.2d at 1067; see Pohlot, 827 F.2d at 897. In other words, Staggs was offering the psychiatric evidence to show he did not do it, not that he could not help it.
We are inclined to agree with those courts holding that IDRA does not prohibit psychiatric evidence of a mental condition short of insanity when such evidence is offered purely to rebut the government‘s evidence of specific intent, although such cases will be rare. In any event, we need not plumb the depths of this issue to determine that the district court properly excluded the testimony of Dr. Corvin.
B.
Assuming that IDRA permits psychiatric testimony to be presented to negate the specific intent element of a specific intent crime, Dr. Corvin‘s proposed testimony is simply not relevant to the issue of
Worrell is correct that the offense of mailing a threatening communication under
The brief synopsis of Dr. Corvin‘s opinion appearing in the record, which is all we have to go by since Worrell made no proffer, does not address Worrell‘s intent, or lack of intent, to deposit threatening communications in the mails. Thus, Dr. Corvin‘s proposed opinion on its face provides no basis to negate the specific intent element the government must prove to secure a conviction under
Because Dr. Corvin‘s opinion, as summarized in his letter to defense counsel, does not address Worrell‘s intent to mail the letters and therefore fails to negate the specific intent required under
III.
Worrell next contends that the district court erroneously applied a six-level enhancement to his base offense level under the Sentencing Guidelines. The guideline for Worrell‘s offenses is contained in
The presentence report (“PSR“) submitted to the district court recommended that the court apply this six-level enhancement because of Worrell‘s history of violence in his relationship with Theresa. The PSR referred generally to Worrell‘s violent conduct directed at Theresa and specifically identified two incidents in support of the recommendation that the enhancement be applied. According to the PSR, “[b]oth Ms. Roberson and Worrell have described situations in which the defendant physically and mentally abused Ms. Roberson,” including one incident in which “Ms. Roberson was beaten so badly that her
On appeal, Worrell makes a two-fold argument. First, he argues that the
A.
Worrell first argues that conduct occurring prior to the mailing of a threatening communication which is not part of the offense itself cannot be used to apply the six-level enhancement because, for the enhancement to apply, the guidelines require that “the offense involve[ ] . . . conduct evidencing an intent to carry out such threat.”
Under a previous version of the Sentencing Guidelines, we held that prior conduct could properly be considered when determining whether the defendant engaged in conduct revealing an intent to follow through on the threats, justifying the application of the six-level enhancement. See United States v. Gary, 18 F.3d 1123, 1128 (4th Cir. 1994). Under the 1992 version of the Sentencing Guidelines, which applied in Gary, the six-level enhancement was appropriate “[i]f the defendant engaged in any conduct evidencing an intent to carry out such threat,”
In 1993, the Sentencing Commission amended
We disagree. First, Amendment 480 was intended to broaden the scope of section 2A6.1(b)(1) by “delet[ing] language that could be construed as a limitation on the scope of conduct for which a defendant is accountable under
Second, the Sentencing Commission added commentary in 1997, almost four years before Worrell was sentenced in 2001, clarifying that prior conduct, even if it does not constitute “relevant conduct,” may provide the basis for a six-level enhancement under
In determining whether subsection[ ] (b)(1) . . . appl[ies], the court shall consider both conduct that occurred prior to the offense and conduct that occurred during the offense; however, conduct that occurred prior to the offense must be substantially and directly connected to the offense, under the facts of the case taken as a whole.
The Sentencing Commission explained that the аddition of this commentary was intended to clear up a circuit split over “whether or
“[C]ommentary in the Guidelines Manual that interprets or еxplains a guideline is authoritative unless it . . . is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). Perceiving no such inconsistency here, we conclude that Application Note 2 to
B.
We now consider the remaining issue of whether Worrell‘s past abuse and threаts to Theresa are sufficiently connected with his offense conduct to warrant the six-level enhancement for conduct evidencing the intent to carry out the threats in his letters. We review de novo a district court‘s application of the Sentencing Guidelines to a given factual scenario. See United States v. Franks, 183 F.3d 335, 337 (4th Cir. 1999). We believe that the connection between Worrell‘s prior abusive and threatening conduct towards Theresa and the letters
First, the threats Worrell made in his letters were clearly connected to the specifics of his prior acts of violence involving Theresa and therefore plainly conveyed his intent to carry them out. For example, in his March 20 letter, Wоrrell wrote, “No matter what the law says I can always get a gun and no one can stop what I plan on doing with it. Can you guess what I plan on doing? Bang-Bang Bitch. . . . you mu[st] pay with your life.” J.A. 451-52. Worrell‘s selection of a gun as his weapon of choice was no accident, as his reference to it was obviously designed to remind Theresa of the time he had held a gun to her head and threatened to shoot her. Similarly, in his February 28 letter to Theresa, Worrell stated, “I intend to do some harm . . . and I will be loaded for bear. If you know what I mean.” J.A. 445-46. Again, Worrell harkens Theresa back to the acts of violence she had personally witnessed, as a reminder to her of his ability and intent to inflict the harm he promises.
Significantly, Worrell‘s specific referenсes to prior violent episodes were made against a backdrop of testimony showing that Theresa‘s involvement with Worrell was essentially a three-year continuum of threatened violence and physical abuse that proceeded on a weekly basis until Worrell was sent to prison. Accordingly, it does not take a great leap of logic to conclude that Worrell‘s abuse of Theresa would have continued but for the fact that he was incarcerated. In
Lest there be any doubt about Worrell‘s intent to draw on Theresa‘s past experiences with him to convey that his threats are real, Worrell also referred expressly in his February 28 letter to unfinished business with Theresa‘s stepfather, Mike, warning that “[t]his time, I will get Mike. The first time you stopped me. This time you won‘t.” J.A. 446.
In short, the prior acts, though occurring some period of time before Worrell mailed the letters at issue, provided context for the threats contained in the letters, giving enhanced meaning to the language chosen and validity to the threats in general. By directly and indirectly referencing past episodes, Worrell was reminding Theresa that he had inflicted harm in the past and effectively demonstrating that he would do so again. Consequently, we conclude the prior acts were substantially and directly connected to the threats in the letters to show Worrell‘s intent to carry them out and that the district court was correct to apply the six-level enhancement.
IV.
For the foregoing reasons, we affirm Worrell‘s conviction and sentence.
AFFIRMED