                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-7-2003

USA v. Mintz
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3920




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 02-3920


                            UNITED STATES OF AMERICA

                                            v.

                                WALTER S. MINTZ, III,
                                                  Appellant
                                   ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           (D.C. Crim No. 01-cr-00492 )
                   District Judge: Honorable Petrese B. Tucker
                                  ____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                  October 3, 2003
                Before: RENDELL, WEIS, and GARTH Circuit Judges.
                         Filed October 7, 2003
                                  ____________


                                        OPINION


WEIS, Circuit Judge.

              Defendant was convicted by a jury of threatening to assault and murder

United States District Judge James McGirr Kelly with intent to retaliate against him on

account of performance of his official duties in violation of 18 U.S.C. § 115(a)(1)(B).

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Defendant was sentenced to five-years probation.

              Because this is a Not Precedential Opinion, we will review only the relevant

facts pertinent to this appeal.

              Defendant had filed a civil suit in the United States District Court for the

Eastern District of Pennsylvania, which Judge Kelly dismissed. Defendant then filed a

pleading captioned “Plaintiff’s Opposition to Judge James McGirr Kelly, U.S.D.C. E.D.

PA. et al. Order to Dismiss.” The pleading was a rambling, incoherent and bizarre

writing phrased in coarse and vulgar language. Defendant stated, inter alia, “He James

McGuirr (sic) Kelly signed the death warrant of every Irish piece of s___ in the four

corners of the universe known as the Kingdom of God . . . anything you say or do will be

used against you in a court of law on grounds of justifiable f___ homicide . . ..”

              On being arrested by FBI agents, defendant admitted to being the author of

the pleading. At trial, the defense called Doctor Allan M. Tepper, an expert in

psychology who diagnosed the defendant’s condition as paranoid-type schizophrenia. As

a consequence of this disorder, the defendant’s thinking was, at times, unreasonable or

not based on reality, and often characterized by a belief that he was God. This disorder

had existed since 1975 and defendant had received extensive treatment. On cross-

examination, however, Dr. Tepper admitted that defendant was not legally insane and that

he did possess the ability to form the intent to retaliate against someone.




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              In rebuttal, the government offered the testimony of Dr. John O’Brien. He

similarly opined that, notwithstanding his mental illness, defendant had the capacity to

form the intent to retaliate and do harm to others.

              On appeal, the defense contends that the expert evidence should have been

excluded under Federal Rule of Evidence 704(b). That Rule prohibits an expert from

testifying that “the defendant did or did not have the mental state or condition constituting

an element of the crime charged . . ..” As we explained in United States v. Bennett, 161

F.3d 171 (3d Cir. 1998), expert testimony is admissible if it is “limited to a factual

description of the defendant’s mental capacity, without any opinion or inference as to

whether the defendant had the mental state required for commission of the offense.” Id.

at 183.

              In United States v. Pohlot, 827 F.2d 889 (3d Cir. 1987), we concluded that

evidence of mental abnormality to support a diminished capacity defense was barred.

However, such evidence to negate an element of mens res was admissible. Pohlot’s

conviction was affirmed because, even if the psychiatric testimony were credited, it did

not negate a finding of specific intent.

              In the appeal before us, the expert testimony was that defendant had the

ability to form the intent to retaliate. In context, that was an explanation of a certain

aspect of the defendant’s mental condition, rather than an opinion that he had the requisite

mens res. The description of the defendant’s mental disability was somewhat



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complicated and the comments on the ability to form an intent was a reasonable effort to

assist the jury in understanding the extent of the impairment. We do not find this

evidence to contravene the prohibition of Rule 704(b).

              Defendant also contends that the evidence was insufficient to prove beyond

a reasonable doubt that his words constituted a knowing threat. We must reject this

argument. Our review of the record on a challenge to the sufficiency of the evidence is a

narrow one. See Jackson v. Virginia, 443 U.S. 307 (1979). It was for the jury to consider

whether a reasonable recipient would interpret the writing as a threat. As we stated in

United States v. Kosma, 951 F.2d 549, 555 (3d Cir. 1991), “whether a speaker’s language

constitutes a threat is a matter to be decided by the trier of fact.”

              Accordingly, the judgment of the District Court will be affirmed.




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