*2 BARNES, LEMMON, Before FEE and Judges. Circuit Judge. LEMMON, Circuit joke,” “It is an old ex- pert testified, only semi-humorous- ly, you got “that nuts little to be a psychiatrist. to be a got psy- “You be a off a little to be any you living chiatrist or can’t amake you way pretty other are, unless thing psy- near the same follows for a chologist.” appellant himself, however, who psychology, holds a Ph.D. clinical dis- agreed with his witness. good psychologist “It isn’t too for a crazy,” he said. might easily remark That be classified year. as the understatement of the ap- occasion, movie, On one “began going pellant to feel like I was crying”. hurried start back to put pillow office, where to his head building people in the so couldn’t hear sobs. “Big boys cry,” appellant don’t explained. Statement Case September 29, 1955, On there was filed
against
an indictment
charging
counts,
him
two
with violations
474, infra, on
of 18 U.S.C.A.
or about
August
Vegas,
at Las
Nevada.
alleged
Count One
print
“photograph, and
did
likeness
* * *
genuine Fifty
of,
Dollar
Uni-
”
* *
Federal Reserve
Note
ted
charged
photo-
Two
that he
Count
graphed
printed
the likeness of genuine
Federal Reserve Note.
$20
provides
474, supra,
Section
any
pho-
“prints,
punishment of
one who
any
tographs,
other manner
makes
engraving,
photograph,
or executes
*3
n
priíit,
likeness
When he
impression in the
was shown
warrants
the two
ór.
other, security
and
obligation
arrest,
any
[of
was told
or
that he was under
***
except
Dr.
States],
Andersen
the United
“said it was fantastic”.
the He
proper
suddenly
officer of
“ap-
“became
ill”,
direction
some
and was
parently very
United States”.
nervous”.
guilty,
a verdict
The
returned
“His face
flushed,”
became
the officer
appellant was
and the
counts,
on both
continued.
shaking outwardly
“He was
* *
years’ imprisonment on
*
to two
—trembling
sentenced
fact,
In
he said he
concur-
run
count,
sentences to
each
felt sick.
that,
present
judgment
rently.
From
requested
“He
tome
allow him to lie
appeal has
taken.
down until he felt better and I told him
a motion
made
certainly
could and so
me
he took
suppress
evidence
court below
around in
got
this east room and
into this
mentioned
Notes
Reserve
Federal
two
* *
chair,
began
I
talking
and
to him
grounds
(1) said
above,
“on the
I asked him if he had stolen that camera
unlawfully
and taken
seized
items
* *
charged
that he was
stealing
with
(2) the
premises;
ánd
Defendant’s
I
burglaries.”
asked him about
described
is not that
property seized
Sergeant
In
meantime,
Ruggles told
warrant”.
Barrett
search
prem-
the entire office
Motion
Facts on-
Statement
for
ises
the articles listed in the search
Suppress
Shortly
afterward,
warrant.
Barrett
Ruggles
asked
to come into
other
Suppress,
follow-
the Motion
On
room,
“pointed
and
plastic bag
out a
full
ing
was
salient
a.dduced:
of these
printed
went
cret Service
Ruggles
of them how
Vegas.
office
there
go,
ered
FBI and “asked
I
to
When
jection.”
bag
yes, it was.
admit, but
these
like
bag.
container
mean
Some
Those
better
asked
sides
negatives
This
eral
ber, a small
fice.
case
these
found in the
the
darkroom.
room.
didn’t
“He didn’t
and
up
making
was no Secret
#
room
darkroom
* * *
the
were
thought
different
and
overnight
negatives and the
and
compartments we
that
the two
him
He therefore
So we
had
it had
than
in
It was
real
ask
on the west
and
had
the
[*]
evidence
said
those
if
the
the
agent.”
they
appellant’s office
to contact the
they
ofMost
the ones
a leather
took
him for
overnight
darkroom,
occurred
it was
thing, to
That is
gathered up
them to
object to
colors
bills
did
police
compartments
and he
on a table
bill
search at
those
folder
bag
began
had no
[*]
he
Service
it out
initials
that
and were
printed
wanted
telephoned
the
officers had
had
side
make
in the
where
case
permission, I
step over
to
didn’t
were better.
to
me,
good bills.
bag
looked
[*]
found
stuff was
opening
and
the
Ruggles
outside
authority
agent
—-we
FBI
look more
discarded.
better.
nearest Se-
of
with sev-
I remem-
on it.
anyway.
on
any ob-
or suit-
he said
leather
and told
he
opened
the of-
and
ready
plastic
plastic
object
much
inquire
time.
these
[*]
agents
both
to the
also
put
gath-
*4
the
up
that
in
in
Las
I
I
the Fourth Amendment of the ly” in Unit-
to
“The
motion
3. The
jail.
at
whose
Agent Wheeler,
agent
Ruggles
sentment
got
September
scribed
mitted
tion,
Howard
tification, and
tives,
Sweeney
than five minutes”.
very
were
man,
minute”,
of
four or five
that
in Los
telephone number of the
tective
Ruggles
the
Agent Sweeney
After
W.
about
the
Admission
hibits Were
tion
appellant’s office,
into
few minutes”.
Ruggles
telephone number,
Court erred
in
said their visit lasted “Not
Albert
stationed
took the
duration was
name
The first
in Counts One and Two
Angeles.
Ruggles
“got
Denial
that he would
the
the
M.
evidence,
6:30
suppress
while
selected
to
23,1955,
Suppress
minutes,
Sweeney, a
a hold
Stewart, Jr.,
second
case
later
p.
had been transferred and
that
Proper.
concedes that “ordinari-
at Los
appellee’s
back”. The
grand jury. Sweeney
specified
m.,
Barrett,
first saw the
After
marked them iden-
given
because Frank
in the Las
of”
turned them over to
telephone
“not
denying appellant’s
Wheeler testified.
Wheeler
Barrett’s
evidence”.
Photographic
attempt
photographs
Sweeney
Angeles.
Ruggles
Appellant’s
“and called De-
office
departing
to
Secret Service
more than one
Secret
the
the
error is that
exhibits,
Ruggles by
Subsequent
evening
Vegas
city
other FBI
did obtain
for about
FBI
conversa-
to
for
estimate
instead.
was “A
Service
get
Agent
detec-
Lava,
more
pre-
Mo-
men
city
Ex-
ad-
de-
the
They
Agent
referred him to
the case.
“prevent
ed
Constitution
does not
Angeles. Ruggles
Spaman, in Los
fur-
the introduction
Federal Courts of evi-
testified:
ther
dence obtained
unreasonable searches
gave
“The FBI
me no
instructions
alone,
state
and seizures
officers
which
they
subsequently
told me
had no
over
handed
plat-
participation on the
silver
there is
federal authorities on a
Where
part
nec-
is not
ter”.
federal officers it
essary
to consider what would be
“However,”
appellant,
insists
if
had
conduct-
result
search
agents
any part
“where federal
entirely by
Evi-
ed
State officers.
acquisition
the unlawful
the evidence
through
dence
federal
secured
state
excluded
officers it must be
participation
accused”,
is inadmissible for
against
Federal Courts as
an
same considerations as those
(a) The
“The
Doctrine
Silver
States, 232
made Weeks
Platter”
383, 34
58 L.Ed.
U.S.
inquire, therefore, what, un-
We must
*5
governing principle
federal
the-
in
vitiating
decisions,
the
der
amounts to a
[Emphasis
sup-
prosecutions.”
agents,
“part’’,
by
contributed
Federal
plied.]
acquisition
“in the
of
evi-
unlawful
the
Again,
States,
words,
by
in Feldman v. United
In other
dence
state officers”.
1944,
487, 492,
1082,
thing, “participation”
322 U.S.
64 S.Ct.
is
what
?
1084,
1408,
88 L.Ed.
said:
the Court
participation
The
of
thus
doctrine
is
“And so while evidence secured
Lustig
leading
expounded
of
in
case
through
unreasonable
search
74,
1949,
78-79,
States,
United
338 U.S.
v.
by
inad-
seizure
federal officials is
1819, heavily
1372, 1374, 93
69 S.Ct.
L.Ed.
prosecution,
in
federal
missible
a
upon though
not
we do
under
relied
—
incriminating
cited],
docu-
[Cases
why by
appellant
stand
himself:
—
by
so
ments
secured
state officials-
partici-
“To differentiate between
by
participation
offi-
without
federal
beginning
pation
of an
from the
ille-
but turned over
use-
cials
their
joining
gal
it
it
search
before
prosecu-
in
axe admissible
a federal
course,
be to draw
run its
would
* * * ‘If
[Case cited.]
tion.
application
in
of
too fine a line
knowledge
(the facts)
of them
is
prohibition
of
Fourth
gained
independent
from an
source
Byars
interpreted
as
Amendment
they may
proved
any others,
be
like
States, supra,
28,
273 U.S.
v. United
knowledge gained by
but
248,
9 5 States, Cir., 1953, 314, Cir., 1954, 321, 9 215 207 F.2d v. United certiorari liams denied, 1954, 938, 696; Butler, 695, 632, States v. 347 U.S. 74 United F.2d 1087; 897, 898; Cir., 1946, Hayw F.2d L.Ed. 156 Gilbert 98 ood, United States v. 10 Cir., 1947, Cir., 1953, States, 156, 158; 10 163 F.2d 7 208 F.2d v. United 325, O’Brien, 327; Stirsman, Cir., 1954, v. States v. United States United 7 7 346; Cir., F.2d 903-905. 174 F.2d Braggs, Cir., 189 F. “Recalling Again, fed- states “the to mind what Mr. the brief Dreyer co-operation appel- officers, with counsel for the [of eral stated, expected officers, lant] name of that he to have state called back the [Emphasis supplied appellant] the witness on the [the federal officer”. again throughout.] rank stand for the balance of after- Here noon, editorializing. seems the defendant —and then to- get appear “co-operation” morrow a would doctor hear bound there, that word to expert, qualified hypo- [sic] Here and a out of in season and season. —a agents, question propound- aas thetical be Federal would was a case where courtesy among en- ed to simple law him which would take about matter of city him; officers, propound fifteen telephoned de- minutes forcement well, just offi- Federal think that that is what name of another tectives the happen question probably would city because that detectives could cer. The might longer than that. information How- the same have obtained ever, directory, hypothetical question Angeles city telephone would a Los nothing gotten call to the doctor’s mind into ex- touch or could have cept what was contained Angeles within it Service officeof Secret Los jury “Long in the meantime dialing wait Distance”. and testimony. all listen to of the defendant’s attempts an torture they going Then are courtesy, performed ordinary after act carry it with them into the room up” “gathered all get when and if this case—I detectives, by. city Federal into such *7 don’t know when it will be—when it “co-operation” “participation” as will issue, comes time to consider this illegality in a with the evidence taint going they are in to have mind Federal court. perhaps substantially all of the de- “gather- already had The evidence testimony. They go- fendant’s are city ques- detectives. The sole ed” ing opinion to have in mind the up- deposited it be tion was this: Should expert upon based what is in bearing platter” mono- “silver on a question. may be that an engraved gram upon one “FBI” or opinion expert, of a conscientious the letters “SS”? and I don’t know of doctors who appellant’s motion to denial The conscientious, are upon based subsequent and the suppress evidence question what is in the after that photographic prints and admission man has sat and listened to all of They proper. negatives did not vi- might opinion. this different be a appellant’s Constitutional olate opinion What we is the best want rights. good qualified expert. why That is Judge Properly upon procedure, Exer- District The this decided Ruling expert present Discretion His be cised must and here Expert Upon testify- the Manner Which all the time the ing defendant Relating Testimony Sanity testimony To and hear all the that is [Emphasis Be Presented. sup- on this issue.” Should plied.] specifies appellant as error the The permit refusal ex- “to Court’s District appellant’s quotation from the testify appellant’s as to mental perts to Court statement ends here. Based they heard the evidence unless condition misleading incomplete excerpt this given subject bearing which was on that pronouncement, Court's there open court.” follows, pages several further on in the brief, the criticism that “the appellant brief, quotes Court below at In ruling committed manifest error in only experts length the Court’s statement of its some ruling, part who had heard the as fol- reasons permitted testify be would as lows: sup- Evidence, 549, p. C.J.S., sanity.” [Emphasis In 32 appellant’s 343, the rule is thus stated: plied.] general “Discretion court. quota- pursued Had pertaining rule that matters one sentence from the record tion large- examination of witnesses rest ruling further, the Court’s the fairness ly trial within the discretion of the manifest: would have become court, applies in skilled the case of go will back “And we expert testify as witnesses who repeat- record here was in the what opinion.” to matters of hear it.” ed so the doctor will ease, In the instant before the no- appellee to have does not seem regard- any great testified detail important omission. ticed ing pertinent facts to his mental and emo- plainly Furthermore, shows the record condition, tional life and counsel in- appellant understood that counsel for the they formed the would ex- Court that call experts be limited that he was not to perts ap- who had never interviewed the testimony appellant’s who had heard the pellant, and would asked to ex- lips. said: Counsel from the latter’s own press opinions sanity, as to his re- comply with the “If order is to sponse hypothetical questions embody- attempt ruling Honor I will of Your given the facts in evidence. present experts one or more to have Thereupon gave ruling the Court al- morning. I have in court in the fail- ready quoted and discussed. ed them now.” to reach proposed It will be recalled that Dis- indication that As a further hypothetical question would have taken Judge limit the not mean to se- trict did propound. about fifteen minutes to Re- persons who lection of witnesses garding hypothetical question of that had heard from type, Wigmore Evidence, ed., in 2 3d *8 lips afternoon, own that District 685, page 812, following § we find the Judge added: comment: reason I made that statement “The “Length Hypothetical Question. of good many qualified a is that have principle, questioner On enti- is community.” in this men (as already noted) tled to obtain an opinion upon any combination of again appellant Once counsel facts, however few or however nu- clearly understood the showed that he Hence, length merous. the mere of ruling, replied: for he Court’s question objection. of itself is no agree Morgali: I with Your “Mr. But, policy for the same reasons of bring Honor, and we will several before, may as the Court exclude a of the doctors.” question length its tends to plain counsel Here was a invitation to jury confuse mislead the without appellant invitation that —an being appreciable of service. This bring accepted any quali- counsel —to ought judge of the discretion trial regardless physician Vegas, in Las fied absolute, be and should have been physician happened whether to be frequently exercised much more than in the courtroom that afternoon. No oth- excluding is in it tedious and useless interpretation er rational of the Court’s questions.” language possible. is Evidence, In 3 Jones’ Commentaries any event, In resumed the ed., 3, 1339, pages 2448-2449, 2d volume § following morning, stand on the vir- following pertinent we find the observa- tually repeated testimony pre- of the tion: day. vious “Moreover, sought since the facts presented hypothetical The trial court has considerable lati- be may question very numerous, tude such matters. put objection happens is that was on the stand that sometimes appellant actually latter’s length of the question. heard all of the made to the testimony given day regulated fol- that was on the matter to be But this is a lowing ruling. largely by the Court’s the trial discretion instances, judge. how- are There jury surprised We are that not ever, held error in which it has been apparently impressed was the tes- permit hypothetical questions so timony expert, appellant’s Dr. of the long complicated that Swartzfager. James ing Follow- Harrison likely or to baf- confuse witnesses diagnoses varying are the doctor’s memory.” fle their the August, mental condition work, in which the the month in his monumental Elsewhere crime was op. cit., 1328, page committed: Professor § “generally speaking that Jones observes “Q. upon Based pro- trial court is the arbiter any opinion defendant, you question”. priety of the August 1955, sanity as to his as of sanity insanity? I A. couldn’t desirability general And say insane, the man is but could hypothetical question as a forensic say emotionally he is unstable.” Wigmore, op. cit., tool, Professor right say vitriol, “I would he didn’t know page spews characteristic wrong.” only we need atom- few drams of which ize here: say mentally “I would man sick; mentally Question ill.” as a Re- “Abolition of quirement. fu- is to to What be the “Q. mentally Is ill the same as hypothetical question? ture of the being insane, Doctor? A. Yes.” Hypothetical Question go, Must the generally Since the ac- standard and requirement? a.as cepted legal insanity definition of is the abuses have so ob- “Its become inability distinguish between no reme- structive and nauseous that dy wrong, Swartzfager infra, Dr. in one extirpation short will suffice. telling breath was logical necessity, practi- but a say in- couldn’t incubus; logic cal must here be ap- sane, the next breath and in all, (in sacrificed. After Law Mr. ap- *9 pellant was insane—both because the phrase) is much
Justices Holmes’ distinguish pellant could not between strange Logic. more than It is a right wrong, and because he was hypothetical ques- irony that according “Mentally “mentally ill”, ill”. truly tion, one of the few which is doctor, is the same “insane”. to the rules features of the scientific Evidence, have become that Instruction on should The District Court's disgust Insanity Proper. does most to feature which Was of Evi- with the law men of science appellant’s speci- third and fourth dence. relate to the trial court’s in- fied errors Judge’s question, insanity hypothetical mis- “The re- struction clumsy by by give requested appellant’s and abused in- used clever, fusal to practice led to intoler- has struction. of truth.” able obstruction requested instruction was as fol- lows: may, hold that as it we that Be beyond you “If believe court did instant case below requiring reasonable doubt the accused discretion its not abuse suffering from not a diseased or appellant’s witnesses hear testimony mental condition at defective on the is all committed the criminal sanity, lips act from his own time charged, you either sue may guilty. find him having back to them. The it read
127 suffering you Appeals from Court of If believe he was the District Co- lumbia, States, con- mental Durham a diseased or defective v. United act, U.S.App.D.C. 228, 94 dition when he committed 214 F.2d beyond 869-876, a reasonable 45 but believe A.L.R.2d instead of the prod- generally accepted doubt that act was not formula announced abnormality, you M’Naghten’s Case, uct of such mental celebrated may guilty. Finnelly 200, Clark 210, Eng.Rep. find him & (1843). you beyond “Unless a rea- believe sonable doubt either that he was not admits that “the Durham suffering from or defec- a diseased case departure constitutes a radical condition, tive mental or that the act the rules theretofore adhered to in all product was not the of such abnor- English-speaking jurisdictions with the you mality, must find the accused exception Hampshire”. of New guilty by insanity. reason of Thus This join Court has no desire to your completed task would not be Hampshire courts of New and the Dis- you find, finding, if did that the “magnificent trict of Columbia in their accused suffered from a mental dis- against M’Nagh- isolation” of rebellion ease or defect. would still be re- ten, though even Hampshire New has sponsible for his unlawful act if traveling down that lonesome road there was no causal connection be- Pike, since 1870. See State v. 49 N.H. abnormality tween such mental along 399. Rather than stumble with questions the act. These must de- Pike, prefer trudge along the now by you termined from the facts pike well-traveled blazed more than a you fairly find to be deduci- ago century by M’Naghten. ble from the and the evi- We are fortified in this choice dence this case.” thought Supreme Court also- Instead, gave the Court the fol steadfastly journeyed M’Nagh has lowing instruction, appel to which the leading ten. In the case of Davis v. objects: lant States, 1897, 373, 378, 165 U.S. insanity le- to be a order for “In 360, 362, 41 L.Ed. the Court gal commission of a defense approved following instruction: must be: “ there crime “insanity,” ‘The term as used in perverted “(a) and de- Such defense, pervert- means such a ranged mental and condition deranged ed and condition of the person as to render a faculties moral moral mental and faculties as to ren- distinguishing incapable between person incapable der a of distin- wrong; right guishing wrong, between “(b) unconscious and He must be or unconscious at the time of the na- *10 nature of the act of the at unaware committing, ture of the act he is committing it; though where, he is time it, the conscious of and distinguish right able to between though and Where, “(c) conscious of wrong, and know that distinguish the act is to between and able wrong, yet by his which I wrong mean right and know that the will-— governing power the of gov- his mind—(cid:127) will, wrong, yet or the is act voluntarily has been otherwise than mind, erning power has been of his completely destroyed so that his ac- voluntarily, so com- than otherwise subject it, not tions are to but destroyed are pletely that his actions are ” beyond his control.’ beyond subject it, but are to
not control.” M’Naghten approved case has been Supreme up that the present The instruction re- the Court to the given by day. quested is the one that was the In States, 1946, Fisher v. 128 463, 466, 1318, 1320, presented; 90 328 66 U.S. S.Ct. and that instruc- the Court’s give 1382, insanity, tion on
L.Ed. the Court said: and its refusal sought by subject the on instruction that “It is contention the defense the of appellant, proper. were both qual- that the mental and emotional judgment petitioner Accordingly, ities of of such is were that level at time of the crime Affirmed. incapable he was of deliberation although premeditation then he was Judge FEE, JAMES ALGER Circuit legal sane in the usual sense. (concurring). right wrong. knew See from I concur in the result reached this ” * ** M’Naghten’s [Em- Case opinion. phasis supplied.] clearly illegal, The search was not but 1952, Oregon, inAnd of Leland v. State legal. a lawful There was search warrant 800, 801, 343 U.S. official, upon the issued a state based used the L.Ed. Court apparently already of a theft camera following language: possession of the officers. The state wrong right “Knowledge is of of arti- authorization was seizure respon of criminal test exclusive supposed cles have been in bur- stolen majority sibility American glaries. authority photo- But under its psy jurisdictions. The science through graphic possibly prints, made chiatry strides made tremendous has camera, use of have the stolen could down was laid that test since been taken state Addition- officers. Case, progress M’Naghten’s but the illegal ally, money prints were point not reached has of science under law1 and and contraband Nevada learning compel us would where its seized could evidence in require eliminate states to alleged of a connection with theft wrong their test ground A the en- camera. second is that Moreover, choice law. criminal try open of the state an office officers into only sanity legal involves test public in order serve a warrant knowledge questions of but scientific legal. This of ar- of arrest was warrant policy the extent to as to basic thereby independ- rest was served an knowledge determine should that illegal ent, ground valid of seizure of [Emphasis responsibility.” criminal office was No dwel- articles laid. supplied.] ling house is involved. The fact that lawfully the articles seized were turned Accordingly, find error in the no government over to the federal is imma- subject in- Court’s instructions terial. sanity. ground there was no federal 6. Conclusion participation search, as held in judgment of this considered majority opinion, is likewise sound. appellants’ of the denial Court The trial court did not its dis- abuse sub- suppress and the motion regulating cretion photographic sequent admission experts. proper; District exhibits *11 The instructions with re- in rul- Judge sound discretion exercised gard insanity were sufficient. in which manner judgment relating sanity should be should be affirmed. Nev.Comp.Laws States, 1. 10364. Matheson also See 540, 543, L.Ed. 33 S.Ct. U.S. Cir., 631, 1956, States, v. United and Howard 274, 275. 232 F.2d notes up and these bills”. a and search warrant a Armed Sergeant arrest, Detective Sergeant Ruggles warrant ap- confronted the Vegas Ruggles, Police of the Las pellant D. Jack bag with the and asked him where appellant’s of- Department, entered he had obtained it. The detective then m., p.4 after premises time some plunged fice part into the crucial of his nar- accompa- September 22, 1955. He was rative, present so far as the ease is con- Barrett, of L. Herbert Policeman nied cerned : Department. same “He said he photograph- had been of five office consisted money doctor’s transferring and private room, reception a of- photograph rooms —a onto the money, which room, utility room, fice, a a treatment hobby, was his I told him did- This had or last “three legal darkroom. and a n’t think it hobby as a any on it.” different locks respect four other photograph money, so I ordered Bar- Detective private appellant was in his ret premises to further search the entered In a when officers it. office equipment kind of that he in and his visitors he came minutes few might use photo- to make these Sergeant Ruggles themselves. identified graphs with, in addition the warrant of ar- showed things original listed on the war- charging grand larceny, and also ex- rest rant, and Detective Barrett stated for search of the the warrant hibited a there was room back there that had appellant’s premises and the home. office three four different locks on it Ruggles burglar- testified that Detective get and he couldn’t in. been committed across had ies requested “I Dr. office and the Andersen to un- hall from “good keys lock it he took out a had reason to believe that set of witness and started to unlock had committed those bur- Andersen it. He un- Dr. each glaries”. itself, locked of arrest the locks The warrant and when grand larceny however, the locks were off it was a darkroom approximately four feet four camera. feet. gave authority developing tray, whatsoever, phone, a things whatsoever, of chemicals me no sorts all assistance use. photographers would turned around and walked out.” era. “There was That was not large portrait cam- the dark- Wheeler, Special Agent Before leaving, however, Bryan. FBI, told C.