*1 against States, supra. deavor to inflame Court in Court Sorrells Perkins, 7 defendant otherwise what differ- v. in We did so make, (1951), Cir., where ence would it and how would 51-53 Judge Your Duffy, review be of in an exhaustive assistance statement, authorities, Honor to the issues be- determine made this fore the Court here now?” 52: with following in accord Therefore, find ourselves “We cross-examination Judge Hand Learned counsel, the wit- Wheeler defense Chiarella, supra, in United States v. on re-direct examination ness testified quotes earlier getting from an where he that he his narcotics him. named, court written in addition different sources Cir., Becker, Ruso, defendant, United States v. Peter men called then, Perry F.2d 1007: ‘We said Paul and Sarton. ac- not a if the that it was defence questions put by already engaged (1) in cused was counsel to on re-direct examina- 'Wheeler existing crim- course similar “an proper. tion were relevant and jection ob- No “already conduct”; (2) had inal beyond' was made that design crime commit the formed scope We of the cross-examination. crimes”; (3) will- or similar respect no thereto. The find testimony error ready ing so “as evinced do elicited was thus ’ ” complaisance.” prejudicial and relevant. It was neither appears clear case at bar it inflammatory. nor record that evidence in the from the us judgment For these reasons the engaged already in an defendant was existing the district is affirmed. criminal con- course of similar Judgment affirmed. design duct, already formed a willing crimes, commit similar “by ready complaisance”. to do so that there was therefore conclude entrapment the district failing to sus- error court was defense. tain that
4. Defendant also contends that impartial a fair and
he was denied by prosecuting at- the conduct of the BELTRAN, Defendant, AMADOR Martin torney who elicited from the Appellant, Wheeler, witness, prejudicial Colie inflammatory testimony to the effect that America, UNITED STATES engaged in the nar- Vvffieeler (three cases). Appellee large cotic traffic number Nos. 5891-5893. people, none whom was connected with Appeals Court of United States any way. First Circuit. stated, ante As we have Wheeler tes- April getting tified that he was narcotics from sources, including different defendant. court had This was after the overruled objection counsel’s defense does that
“What difference make trial of this case where he getting that he narcotics selling only thing to Jackson? The do, possibly Judge,
that can is en- *2 Juan, Rivero, del San
Gerardo Ortiz R., appellant. P. Jr., Atty., Gil, Francisco A. U. S. Ortiz, U. Asst. Gierbolini
whom Gilberto Atty., brief, appellee. S. MAGRUDER,* ALDRICH Before Judges. SMITH,* Circuit ALDRICH, Judge. Circuit appeals involve in these cases judgments defend- of conviction At narcotics offenses. ant for various the factual defendant admitted the trial against him, pleaded not evidence Following insanity. guilty reason defendant of waiver him jury, trial found imposed concur- on all counts and for the offenses. sentences various rent counsel raises a the outset first time with relation for the here competency to stand defendant’s competent, nor then refused to was asked and competency, but that the determine his hearing on have conducted a court should sponte. This sua represented had same counsel who client was court permitting jury, to waive him whose expert, one who same incompetency, previous as to testify ready did at the trial that to and Sitting designation. presently in remis- filed certificate suffering competent. sion “Schizophrenic reaction, paranoid type, disposed to follow areWe chronic, severe; mentally incompetent.” case of Gunther defendant’s *3 ensuing hearing ex- States, 1954, U.S.App.D.C. by plained incompetent he meant there conceded 493. The court “incompetent contemplation in re specifically 18 U.S.C. 4244 does not § is, law. That be- cannot quire hearing, found such a second wrong.” tween and Thereafter obligation duty of the the common law in court made accordance with in always de a to be satisfied that the motion and ordered competent trial. The fendant is to stand committed for further examination and argument proves There can too much. treatment. The first was confinement investigate duty un be no affirmative Hospital at the Public Health Service some less the court is on notice that Lexington, Kentucky, where Dr. Sen- thing most recent is amiss. Where the diagnosis eriz’s Feb- was confirmed. In well-qualified report word medical was a ruary 1960 the trans- defendant was present competency, of trary con an earlier Spring- ferred field, unimproved. Medical Center put report seem us does not April 20 On his con- respect the court on notice diagnosed relatively quies- was dition cent, as though had en even in and it June was concluded formally report by find dorsed an earlier “relatively early he was in remission ing anyone it to has a bas be correct. psychotic decompensa- from severe questioning report is for a current tion.” As a re- result competency, just possible isit as to make Springfield from leased as second motion under section brought and was to trial even if it to make the first. But the court in October. duty could be said that there was a hearing, any August meantime, conduct a second error in In the manifestly unpreju the case bar was defendant been indicted for allegedly dicial in view the facts. conceded See further narcotics offenses com- May supra, August F. Gunther v. mitted in and 2d Our at 497. have 1960, shortly time should not In 1959. October before wholly been wasted frivolous indicted for a further of- complaint. September 11, fense committed on 1959. By stipulation the first two indictments background The of these eases is together, were tried and later the third September follows. In 1958 defendant was added. The trial commenced with alleg- was indicted narcotics offenses stipulation a skeleton of facts. With re- edly March, July April in committed spect stipu- to most of the counts the then He was released bail. merely lation was caught that the defendant was November counsel filed under motion in the act sales of 4244 for U.S.C. § determination of heroin, possession, or with heroin in his competency defendant’s mental to un- govern- without a license. Because the proceedings against derstand the him argument, ment makes much of it properly assist in his own defense. will refer detail to the events of Au- granted The court the motion the fol- gust 3, 1959, date as to which lowing January appointed a Dr. given. full agents, facts were Government qualified psychiatrist fre- warrant, armed with a knocked quently retained the Veterans Admin- home, door on the of defendant’s istration, Commencing to examine him. They were not admitted. broke down the February continuing from time and, flushing through door attracted toilet, ambulatory noted bathroom made oral door examina- seeking tions of defendant On office. at his On was locked. admission ing from the dates informed indictments, occupied.” whether “wife within that his undergoing period of could have been door, too, down. broken This remission’; ‘partial called what he lady forcibly removed been, en- have he could or could not toilet, found which she *** been, partial deavoring heroin. remission. decks to conceal period of He further said Seneriz testified on behalf of dis- remission an individual can men- that on all the dates tinguish wrong, which tioned in the indictments is the de- test under Federal rule to suffering reaction, par- psychotic from a competent to termine whether a man type, “mentally anoic incom- and was *4 commit a crime or not.” Thereafter “Q. contemplation tent in of the law.” the court made a formal of san- doing?” He did not know what he was ity, the full of was as substance which pass judg- “He not would to be able follows. “The fall] defendant [does not doing.” ment about he While what was M’Naghten within the of Rule. None specific phrase the doctor did use the not experts said he be unable that would distinguish right and “unable to between distinguish wrong, right to between wrong,” apparently his recalled * * * which is the Federal test. prior testimony, later because finds court and concludes therefore that occasions, on three the court re- the defendant was not testimony ferred to the as mean- doctor’s right incompetent to between ing precisely On that. cross-examina- wrong and charged.” acts when he committed the not tion the that had doctor stated he (Italics supplied) inquired specific a number of tests government, puzzled about that these admitted statements. We are Only lucid- the defendant was “in a of testified one right agreed by using ity now,” namely, that Dr. Seneriz. “might” referring partial plural remis- have been on to was court government reported dates. sion on some indictment had of the who doctors opin- firm, however, under- progress He remained in his while the defendant’s going ir- treatment, ion been. was that had not such reference is true that none them It relevant. appeared that the defend- It further dis- could not that stated Bellevue, and ant confined wrong. tinguish Hos- at he Matteawan State thereafter only However, opinions to their related to pital, in New York from 1950 examination, not the the dates following Adminis- which the Veterans as offenses. Even dates arranged his to mother tration of examination the dates guardian. mother appointed His his be tell not whether the defendant could was peculiarities. We will testified as ability wrong, but was his say testimony, except pass over trial. Their do assist government. help to the it was of no that any government particular except govern- The then rested. The the defendant’s remission com- no evidence. ment offered mencing of 1960. in June On other the conclusion the trial the court express Dr. who did hand as judgment, it would reserve stated the dates the indict- an meantime would make few clearly ments, error for the court was “not at stated comments. already we have set forth. reasons Dr. all convinced The court’s remarks end did not because it believe Seneriz” hearing equally erroneous. had been sufficient to of the diagnosis. “Moreover, spoke Dr. Seneriz’s examination of about Whether * adequate partial remissions. inade these lay says say quate he can not dur- not for determination in 52 testimony. cert. den. 366 medical U.S. 81 S.Ct. absence pro- independent possessed However, L.Ed.2d if the mo even obliged ficiency Moreover, tion had been made we matters. are not in such noting acquittal help order 'if Seneriz’s an there was insuffi
cannot government’s cient condition evidence meet evaluation of the defendant’s Bryan precisely burden. condi- tion found to exist hospitals two L.Ed. 335. ensuing eight disposition months. think such should be reasonably Nor his made us it accurate if to characterize it seems apparent testimony as no more than that the de- could not g., been, See, better itself on a new e. fendant “could have or could trial. been, States, Cir., 1960, Carr v. United remission.” stronger might however, substantially remark, His 702. We that we find al than fact record thin that. The that he conceded beyond.1 possibility vanishing point, most to of error more than was no might expected any expert. spite government’s n ar Wheth- I *5 gument disagree lays particular er the on free with which it regard stress, question, the is another bathroom incident suggest an that his effect as insubstantial indication that equivocal appreciated was unwarranted. defendant be the difference right wrong except, perhaps, tween and The introduction of evidence good pres in the field of manners. For insanity gov places on burden purposes, however, ent it is sufficient proving beyond sanity ernment of rea say findings particular that the court’s States, sonable doubt. Davis v. United unsupportable. Although may are it 1895, 469, 353, 160 U.S. 16 L. appropriate sometimes be to affirm the Ed. 499. spirited This burden cannot be question district court aon law away by simple proposed method reaching right although for a result government saying court’s wrong reason, is when not to done evidence, does not believe the therefore the issue is factual. In such case that evidence, there is no therefore is there obligation primary court’s find make apparent no ings burden. It should be accomplished.2 not has been There thinking such would render must the whole be a new trial. meaningless. principle Rather, contends, anticipa the rec The defendant M’Naghten whole, ord be looked must at as tion of new that the with longer proper test of crim Rule is no burden to over responsibility. We do inal not care to any come reasonable doubt. pass on a on this broad issue bare rec did not move However, dis we commend to the ord. acquittal 29, for an under Rule Fed.Rules trict court’s attention cases such as U.S.C. Crim.Proc. Cir., Currens, 3 v. United States “plea guilty,” whether of not unnecessary request renders 290 F.2d motion an such a ity technical trial, if it new determines jury-waived in a case. Hall properly could Cir., States, 5 676, 677, wrong, it nevertheless further make See, g., United 1. e. v. distinguished finding prelim- Wester- from a hausen, Cir., 844; 283 F.2d inary observation); Fitts (b) no Cir., 1960, v. United said the defendant could not tell not, citation 108. Our of these cases does wrong; (c) “therefore circumstances, mean that Court finds concludes that the defend- present approval. have our mentally incompetent.” ant was not Striking (a), do, (b), down as we findings were, the case at bar the total (a) must, inadequate as in event we that Dr. Seneriz made an there is (if support (c). this could be termed left for give be, may, sion criminal acts. Wheth- findings if need that we so er or not the defendant in- is so matter. consideration legally irresponsible as to be vacating the Judgment entered will be so far as the substantive offenses are District judgments of the concerned, he is remanding fur- cases Court and judge hearing, determines, after a here- proceedings not inconsistent ther mentally incompetent that he is “so toas with. proceedings be unable to understand the against properly him or assist in Judge (dissent- MAGRUDER, Circuit finding by course, own defense.” Of ing). judge “mentally that the accused is disagree my to the brethren competent to stand trial” does not neces- cases, our disposition proper of these sarily guilt indicate his innocence disagreement one. is a narrow immunity to convic- agreement as I understand we are tion for the substantive offenses because sanity. presumption of so-called incompetency. may of his mental This does that the It is clear why Congress provid- be the reason beyond proof the initial burden of ed in the last sentence of the section: establish that reasonable doubt to finding by “A that the accused the time was sane at mentally competent to stand trial shall acts. See Davis commission way prejudice in no plea the accused in a States, 160 16 S.Ct. insanity of charged; as a defense to the crime (1895). 40 L.Ed. such shall be in- sanity, raise the issue of his wishes to *6 troduced in evidence on that issue nor going burden of forward with has the he brought otherwise be to the notice of the Only if this the evidence. he maintains jury.” going evi- of forward with the burden believed, dence, evidence, only which tends if Our difference is as to the effect “logical rebut core”—the infer- to the of the statements pert, the medical ex- ring sanity—does the accused’s the of Dr. who testified also at hearing preliminary have the ultimate burden conducted the beyond judge, proof reasonable doubt of that the trial whose legally judge’s finding responsible of the basis the trial that criminal then not when the acts committed. the accused to majority suppose opinion IAnd that the trial. stand agree, principle, would at least in that point of the On the defendant’s crimi- go of the defendant for- this burden responsibility for nal the substantive of- ward with the evidence is a burden of fenses, the defense called as an showing mentally irrespon- he that only Apparently Dr. Seneriz. witness sible, life, not at some in his that, believed because Dr. of on the dates of commission the un- hearing Sep- at had said Seneriz acts. lawful 1959, tember that The court also is in accord that there mentally incompetent nothing appellant’s claim he that under 18 trial U.S.C. stand this § brought should not have been to trial certify expert would at the trial that under U.S.C. without a formal § criminally irresponsible accused was hearing by judge sponte the trial sua various dates mentioned in at the the in- competency of his mental Dr. Seneriz testified dictments. he that trial. patient for about an examined hour majority accepts on several also a time occasions at his of- February, August, from obvious contrast in 18 U.S.C. 4244 fice be- § question by competency mental In answer to tween the accused’s lucidity right court, is in of at the time of the trial with his “He mental right?”, competency now, is that time of the doctor an- commis- per month, swered, The doctor two hours correct.” which means “That is perhaps that “partial he saw him 15 spoke remission” of minutes about day, schizophrenia. one and then symptoms he didn’t see him days, in 10 and so I don’t believe that, examina- redirect is true psychiatric defendant, counsel for tion insanity, way determine “feeling,” in his Seneriz stated testified, diag- can symptoms I found on the “based way nosis the he said had arrived him,” he was insane I the time examined diagnosis. Moreover, specific incompetent on the spoke these about remis- How- indictments. listed in the dates sions.” ever, clarified on cross-examination saying sci- remark I do not believe that under cir- way specific deter- entific required cumstances the ac- court was certainty degree mination cept expert. of this am patient a few be to examine
would prepared find, apparently are days days prior after the fact. to or a few my colleagues, finding by Conceivably doctor’s the nearness judge support without patient to the date examination of the given substantial evidence. See United States might be in the third indictment Owen, (C.A.7th, acceptable, was error in the there 1956), denied 352 cert. judge’s that the accused district (1956). L.Ed.2d charged the offenses indictment, it follows that on familiar
principles this error becomes moot that without
view of fact doubt first named in the indictment were dates remote, imposed con-
too and the upon all the counts. current sentences appears statement
As
facts, jury waived in these cases thereby became and the The trier of the of the facts. facts trier Joseph MEISTER, Lewittes, V. David the accused “was not mental-
found that Lewittes, Morris Charlotte Lewittes ly incompetent” Lewittes, at the he commit- Petitioners-Appellants, Fannie recounted indictments ted the acts that he was and therefore of the COMMISSIONER OF INTERNAL REV charges they contained. ENUE, Respondent-Appellee. is clear that the court did not 278-282, Nos. Dockets 26885-26889. testimony accept question the without Appeals Court thought because Dr. Seneriz Second Circuit. superficial ex- patient. Argued April 5, 1962. amination of The trial judge said: April 25, Decided “I am convinced not at all Seneriz. leaves things many doubt. believe the made
examination he of this defend- enough ant was exhaustive diagnosis such as the one only gave made.
he said that he He
from 12 to 15 hours the exam-
ination of this defendant barely months. of six That is