United States v. James Henry Clark

MOORE, Circuit Judge,

concurring in part and dissenting in part.

CONCURRING IN PART, DISSENTING IN PART

I concur in Part II.A. of the majority opinion, but I write separately to clear up any confusion that may arise from our previous discussions of the insanity defense in federal prosecutions. Because I believe that a defendant must threaten more than harm to warrant the application of a two-level enhancement under amended U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2B3.1(b)(2)(F), I respectfully dissent from Part II.B.

As noted in the majority opinion, we have clearly recognized that 18 U.S.C. § 17 places the burden of proving an insanity defense on the defendant. See United States v. Kimes, 246 F.3d 800 , 806 & n. 2 (6th Cir.2001), cert. denied, — U.S. -, 122 S.Ct. 823 , 151 L.Ed.2d 705 (2002); United States v. Davis, 93 F.3d 1286 , 1295 n. 8 (6th Cir.1996). Defendants have borne this burden since 1984, when Congress enacted the Insanity Defense Reform Act, 18 U.S.C. §§ 17 , 4241-4247, in response to the acquittal on all charges of John Hinckley for his attempted murder of President Ronald Reagan. See Shannon v. United States, 512 U.S. 573, 576-77 , 114 S.Ct. 2419 , 129 L.Ed.2d 459 (1994). In United States v. Searan, 259 F.3d 434 (6th Cir.2001), however, the panel erroneously relied on Davis v. United States, 160 U.S. 469 , 16 S.Ct. 353 , 40 L.Ed. 499 (1895), in holding that “[i]n federal law, the government bears the burden of proving sanity after the defendant affirmatively asserts an insanity defense.” Searan, 259 F.3d at 450 . Searan thus overlooked not only the statute itself but also Shannon and the Sixth Circuit precedents of Davis and Kimes , which, as prior decisions, were con *796 trolling authority. See United States v. Humphrey, 287 F.3d 422, 452 (6th Cir.2002). I therefore concur with the majority about the appropriate application of § 17 and emphasize that Searan has no precedential value on this issue.

As for the application of U.S.S.G. § 2B3.1(b)(2)(F), I believe that the analysis in United States v. Alexander, 88 F.3d 427 (6th Cir.1996), is more compelling than the majority allows, even though the current version of this section does not require an express threat of death. In Alexander , we read the pre-amendment § 2B3.1(b)(2)(F) narrowly, concluding “that to satisfy the qualifier ‘express,’ a defendant’s statement must distinctly and directly indicate that the defendant intends to kill or otherwise cause the death of the victim.” Alexander, 88 F.3d at 431 . I understand this holding to have two parts. First, it defines an “express” threat of death as one that is made “distinctly and directly.” Id. Second, it specifies that an express “threat of death” is one that indicates a defendant’s “inten[t] to kill or otherwise cause the death of the victim.” Id. Therefore, the deletion of the word “express” in amended § 2B3.1(b)(2)(F) is not dispositive. Under my understanding of Alexander , an indistinct or indirect statement that indicates something less deadly than an intent to kill or to cause the victim’s death would not be a “threat of death” for purposes of amended § 2B3.1(b)(2)(F).

This position finds support in the Sentencing Guidelines commentary. Before the amendment to § 2B3.1(b)(2)(F), application note 6 read as follows:

An “express threat of death,” as used in subsection (b)(2)(F), may be in the form of an oral or written statement, act, gesture, or combination thereof. For example, an oral or written demand using words such as “Give me the money or I will kill you”, “Give me the money or I will pull the pin on the grenade I have in my pocket”, “Give me the money or I will shoot you”, “Give me your money or else (where the defendant draws his hand across his throat in a slashing motion)”, or “Give me the money or you are dead” would constitute an express threat of death. The court should consider that the intent of the underlying provision is to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person, who is a victim of the offense, significantly greater fear than that necessary to constitute an element of the offense of robbery.

U.S.S.G. § 2B3.1 commentary, applic. note 6 (amended 1997). This note currently reads:

“A threat of death,” as used in subsection (b)(2)(F), may be in the form of an oral or written statement, act, gesture, or combination thereof. Accordingly, the defendant does not have to state expressly his intent to kill the victim in order for the enhancement to apply. For example, an oral or written demand using words such as “Give me the money or I will kill you”, “Give me the money or I will pull the pin on the grenade I have in my pocket”, “Give me the money or I will shoot you”, “Give me your money or else (where the defendant draws his hand across his throat in a slashing motion)”, or “Give me the money or you are dead” would constitute a threat of death. The court should consider that the intent of this provision is to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person, who is a victim of the offense, a fear of death.

U.S.S.G. § 2B3.1 commentary, applic. note 6. I quote both versions in full to highlight what has changed in application note 6 since we decided Alexander and what has *797 not. The five examples in the note, which the Sentencing Commission retained in exactly the same form, all indicate an intent to kill or to cause the victim’s death. The third example-“Give me the money or I will shoot you” — is a possible exception, but even it suggests the defendant’s willingness to use a gun in such a way as to cause the victim’s death.

While keeping the examples of a “threat of death” the same, the Sentencing Commission effectively heightened what courts should require before increasing offense levels under § 2B3.1(b)(2)(F). Whereas the pre-amendment version of application note 6 stated that sentences should be enhanced when the defendant’s conduct “would instill in a reasonable person, who is a victim of the offense, significantly greater fear than that necessary to constitute an element of the offense of robbery,” the current version calls for “a fear of death.” We should give effect to this change. I submit that a fear of death is qualitatively greater than the fear that application note 6 previously referenced. In short, I believe that district courts should not apply § 2B3.1(b)(2)(F) unless “the offender(s) engaged in conduct that would instill in a reasonable person, who is a victim of the offense, a fear of death.” U.S.S.G. § 2B3.1 commentary, applic. note 6.

In this case, the demand note read as follows: “I have a gun. Do what you are told and you won[’]t get hurt.” This threat may suggest an intent to harm, but it in no way indicates an intent to kill or to cause the victim’s death. I do not see how this note could instill a fear of death in a reasonable person, and therefore respectfully dissent from the majority opinion as to the sentencing issue.