Appeal from the United States District Court for the Southern District of Indiana, Evansville Division.
No. 93 CR 30--Gene E. Brooks, Chief Judge.
Before POSNER, Chief Judge, and CUDAHY and COFFEY, Circuit Judges.
Defendant Sullivan appeals the sentence imposed upon him for violating 18 U.S.C. sec. 876, which prohibits the mailing of threatening communications. He contends that the district court erred both in refusing a downward departure on grounds of diminished mental capacity and in imposing a six-level increase in base offense level for "conduct evidencing an intent to carry out [his] threat[s]." USSG sec. 2A6.1(b)(1).
Prior to 1990, Sullivan was married and the father (or so he believed) of three children. He was employed as a truck driver for Hillcrest Trucking. In 1990 he learned that he was not, in fact, the father of the third child his wife had borne and that his wife, Lydia, intended to divorce him. In December of 1990 his divorce became final and Lydia was granted custody of the children. Judge Judith Dwyer presided over the divorce proceedings. Lydia later married Robert Perdue, the father of her third child.
After his marriage fell apart, Sullivan's mental health deteriorated. According to the psychologist engaged by the government, Sullivan began to experience paranoid delusions; he believed that he was being persecuted. Forensic Rep., Def. App. at 41-46. He became convinced that Robert Perdue was abusing his children. He also believed that a man named Ernie Hudson had been murdered and that the authorities were not properly investigating the murder. Sullivan reported these beliefs to the police and Officer Michael Healy was one of those who investigated the allegations.
Sullivan's belief that he was being harassed led to several incidents in early 1992. On January 8, Sullivan shot out the windows of Robert Perdue's car and truck. One of the deer slugs fired at the truck entered Perdue's house, narrowly missing his sleeping son. Following this incident, Judge Dwyer granted a petition to terminate Sullivan's child visitation rights. He was also convicted of criminal recklessness in a proceeding over which Judge Dwyer presided and sentenced to a term of probation. Two of Sullivan's co-workers also obtained orders of protection against Sullivan at this time on grounds that he had threatened them. These threats were also apparently related to Sullivan's belief that he was being persecuted. (He alleged that the wife of one of these co-workers was passing out flyers at his children's school warning against him.) Judge Robert Arthur presided over these orders of protection proceedings.
In May 1992, after these events, Sullivan left Indiana to stay with a relative in Mesa, Arizona. In February and early March of 1993, Judges Arthur and Dwyer, Robert Perdue, Officer Healy and Sue Hedrick, a secretary at Hillcrest Trucking, all received letters later determined to be in Sullivan's handwriting. These letters, which contained various accusations and threatening comments, formed the basis for Sullivan's conviction in the case at hand.
Sullivan was arrested in Arizona on March 26, 1993 and returned to Indiana. On April 14, 1993 he was transported from a jail in Indianapolis to another in Daviess County by Sheriff Allen Evans.
Sheriff Evans later testified that during the ride Sullivan "blurted out that he had wrote [sic] the letters and that if they gave him any more time, he would carry out the threats." Sentencing Tr., Def. App. at 33.
Sullivan was tried on September 6, 1994 and convicted by a jury of five counts of violating the federal statute banning threatening communications. 18 U.S.C. sec. 876. Prior to the trial, Sullivan was examined by a forensic psychologist who found him competent to stand trial but opined that "at the time of the alleged offenses, Mr. Darrell Sullivan was suffering from a mental disease which would have prevented him from being aware of the nature, quality, or wrongfulness of his actions. It is the opinion of this evaluator that he was not responsible for his actions at the time of the alleged offenses." Forensic Rep., Def. App. at 46. In spite of this evaluation, Sullivan withdrew a previously filed Notice of Intent to Rely upon the Defense of Insanity and proceeded to trial without relying on that defense. Sullivan was sentenced on January 20, 1994 pursuant to USSG sec. 2A6.1, Threatening Communications. That guideline provides a base offense level of 12. Part (b) of the guideline states: "If the offense involved any conduct evidencing an intent to ...