Albert LLOYD, Appellant, v. UNITED STATES of America, Appellee.
No. 18049.
United States Court of Appeals District of Columbia Circuit.
Argued May 27, 1964. Decided July 3, 1964.
Rehearing En Banc Denied Nov. 6, 1964.
Certiorari Denied June 7, 1965. See 85 S.Ct. 1809.
Mr. Martin R. Hoffman, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.
Mr. Robert Perry, Asst. U. S. Atty., also entered an appearance for appellee.
Before EDGERTON, Senior Circuit Judge, and WASHINGTON and BURGER, Circuit Judges.
PER CURIAM.
This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel.
Although the delay between the time of some of the offenses and the time of the arrest was substantial, the testimony of the defendant-appellant demonstrated his ability to recall the details of the transactions, and thus tended to negate prejudice from the delay; and moreover, the sentences imposed were concurrent, see Hirabayshi v. United States, 320 U. S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); and the court concludes that no error occurred affecting substantial rights, it is
Ordered and adjudged by this court that the judgment of the District Court on appeal in this cause is hereby affirmed.
BURGER, WRIGHT and MCGOWAN, Circuit Judges, in Chambers.
PER CURIAM.
On consideration of appellant‘s petition for rehearing en banc, it is
Ordered by the Court en banc that appellant‘s petition is denied.
BAZELON, Chief Judge, would grant appellant‘s petition for rehearing en banc. See his dissenting statement in Hardy and Ferguson v. United States, 119 U.S.App.D.C. —, 343 F.2d 233.
WILBUR K. MILLER, Senior Circuit Judge, prior to his retirement on October 15, 1964, voted to deny appellant‘s petition.
FAHY and WRIGHT, Circuit Judges, would grant appellant‘s petition.
ORDER
Before BAZELON, Chief Judge, and FAHY, WASHINGTON, DANAHER, BASTIAN,
Messrs. Morris Kanfer (appointed by this court), Washington, D. C., and Alvin O. West, Washington, D. C., for appellant.
Mr. Alan Kay, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.
Before WILBUR K. MILLER, FAHY and BURGER, Circuit Judges.
Judgment
PER CURIAM.
This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel.
On consideration whereof It is ordered and adjudged by this Court that the judgment .... of the District Court appealed from in this cause be, and it is hereby, affirmed.
FAHY, Circuit Judge (dissenting):
The intervention of the trial judge in the examination of the witnesses was so excessive and indicated so unfavorable an attitude toward the defense of insanity, as to which the evidence was in substantial conflict, that I would reverse and remand for a new trial, as this court did for similar reasons in Jackson v. United States, 117 U.S.App.D.C. 325, 329 F.2d 893 (1964).
Before BAZELON, Chief Judge, and FAHY, WASHINGTON, DANAHER, BASTIAN, BURGER, WRIGHT, and MCGOWAN, Circuit Judges, in Chambers.*
ORDER
PER CURIAM.
On consideration of appellant‘s petition for rehearing en banc, it is
ORDERED by the COURTS, en banc, that appellant‘s petition is denied.
BAZELON, Chief Judge, and FAHY, WASHINGTON and WRIGHT, Circuit Judges, would grant the petition for rehearing en banc.
BAZELON, Chief Judge (dissenting):
Appellant, who has been a narcotic addict for most of his adult life, was arrested after police officers observed him purchase narcotics “on the street” in the vicinity of DuPont Circle. The amount of narcotics he purchased was no more than would be consumed by many addicts in a period of one or two days. He was charged with violation of the Harrison Act. At his trial, the only defense offered was insanity. He was convicted and sentenced to the minimum permissible term for a second offender, ten years. On appeal, this court affirmed by order, Judge Fahy dissenting. Now appellant petitions for rehearing of his appeal en banc.
* Senior Circuit Judge Wilbur K. Miller, prior to his retirement on October 15, 1964, voted to deny the appellant‘s petition for rehearing en banc.
(1) The trial judge interrupted psychiatric testimony 136 times with questions, and 9 times with comments; all but an insignificant number of these interruptions occurred during testimony for the defense. Almost without exception these questions would invoke a response unfavorable to the use of the defense of insanity in narcotics cases, and created the impression that the judge had little use for the defense.2 Thus, he suggested to the jury, through questions, that because St. Elizabeths does not admit addicts, addiction cannot be a mental disease. In a similar manner, he suggested that the only mental diseases which should be considered as excusing responsibility are those which a layman considers mental disease, or those which he would consider “insanity.” The prosecution was encouraged to bring out the qualifications of its expert witnesses in much detail. But the judge would not allow the defense to spell out the qualifications of its star witness, Dr. Overholser, and drew attention to the junior status of other defense witnesses, both through questioning and in his charge. He refused to note in summarizing the evidence that all witnesses had agreed on the question of appellant‘s prolonged addiction and the compulsions to which such addiction gives rise. But he stressed their agreement about the absence of irrationality or bizarre behavior.3 Since the testimony was very much in equipoise, it is impossible to say that this activity did not influence the verdict.
“It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. See State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 [67 S.Ct. 374, 91 L.Ed. 422].
“We cannot but consider the statute before us as of the same category.” [370 U.S. at 666-667, 82 S.Ct. at 1420.]
Whether this holding should be applied to prosecutions of addicts for purchase and possession of narcotics in quantities no greater than may be explained by their personal needs is for me a hard question. On the one hand, the Robinson opinion is replete with dicta affirming the right of the states to punish possession or actual use of narcotic drugs in unauthorized situations. On the other, I am not able to distinguish in any meaningful sense the punishment of an addict for being an addict and the punishment of an addict for buying and possessing the drugs his body compellingly craves. Certainly, Robinson introduced a cautionary note into the handling of “mere addicts” as distinct from traffickers. It may be that the availability of an insanity defense grounded in addiction is sufficient to avert what force the cruel and unusual punishment argument has.4 That is, those persons whom it might be cruel and unusual to punish for their purchase and/or possession of narcotics are just those who are most likely to be successful in presenting the insanity defense. But the trial judge‘s interference with the presentation of that defense in this case then becomes all the more prejudicial. Although matters affecting the conduct of a trial may not ordinarily necessitate en banc consideration, the conduct in issue here is so linked with the constitutional questions raised by Robinson that such consideration is clearly appropriate.
(b) I find the issue of equal protection raised by appellant both difficult and disturbing.
There is a respectable body of precedent which suggests that there are no equal protection problems here—that the crimes charged by the two sets of stat-
It seems imperative to me that these questions be considered in a more extensive fashion than is apparent from the per curiam judgment of affirmance in this case.
FAHY, Circuit Judge: I agree that the questions discussed by Chief Judge Bazelon should have the consideration of the court en banc, and I accordingly would grant the petition which seeks such consideration.
Morris A. KENT, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 17935.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 17, 1963. Decided Oct. 26, 1964. Order Jan. 22, 1965.
Certiorari Granted May 3, 1965. See 85 S.Ct. 1450.
Notes
“A [I]f a normal individual for some reason had to take drugs or in an experimental situation took drugs to the point they became addicted, they would have an irresistible impulse to get more drugs unless they could bring themselves to go into a hospital. I think that they would be suffering from an abnormal mental condition. Their willpower would be shot—
“THE COURT: Is that sufficient to make it a mental disease?
“THE WITNESS: I would think so, Your Honor.
“THE COURT: Isn‘t it a physical craving?
“THE WITNESS: Well, I think it is a mental and physical craving. In other words, a person would show marked symptoms of anxiety as he was going through withdrawal.
“BY MR. COLLINS:
“Q Well, Doctor, now, as His Honor has already indicated, isn‘t drug addiction a physical problem and not a mental problem?
“A No, it is both.” [Emphasis supplied.]
Another colloquy occurred during the cross-examination of Dr. Dobbs, a prosecution witness:“THE COURT: Doctor, don‘t some people become addicted as a result of being invited by a friend who takes the drug and then they do it again and again and finally become addicted? Isn‘t that one of the ways in which people become addicted?
“THE WITNESS: One of the most frequent ways, judging from the histories patients have given me.
“THE COURT: If that is the history of the addiction in a particular person, it is not a symptom of any psychological or mental trouble, is it?
“THE WITNESS: It may initially be no more than a symptom of looking for kicks.
“THE COURT: Yes.”
“Because contact with a drug is the essential prerequisite to addiction, the elimination of this contagious pestilence from our society can be most effectively accomplished by striking at the illicit trafficker. [The narcotic traffickers * * * are in most cases well organized professional racketeers * * *. Id. at 9.]
“It is also important that addicts be deterred and be provided adequate medical and rehabilitative treatment so as to relieve them of their tragic dependency on drugs and to restore them to a constructive status in society.”
See Hawkins v. United States, 109 U.S. App.D.C. 338, 340, 288 F.2d 122, 124 (1960) (Bazelon, J., concurring); Trent v. United States, 109 U.S.App.D.C. 152, 156, 284 F.2d 286, 290 (1960) (Bazelon, J., dissenting), cert. denied, 365 U.S. 889, 81 S.Ct. 1035, 6 L.Ed.2d 199 (1961).