United States v. Andrew P. Leazer

express opinion a court I no eluded. as actions violate that attach when permissible extent of cross examination order. Service, of the Director of the Secret whether, presently consider not We do many may required who in instances threatened viola- in case of violation or testify to state refuse as secrets. regula- permit of the tion Government's It has never been doubted that this well longer (whose re- enforcement tion recognized privilege dis- extends may strained), a further issue the court relating public se- closure matters a fur- requiring compliance, so that order curity, Wigmore, see Evidence § punishable a con- as ther violation tempt (McNaughton 1961), and that rev. by subjection the con- aswell precisely objective subject rules. of the violation sanctions for ventional regulation. permit There for trial. The case remanded opportunity for dis-

tois be reasonable

covery trial, oral examination

during appropriate trial of Government injunction preliminary

officials. against rule of the enforcement 100/500 effect, pending remains in determination UNITED STATES of America merits, subject the modifica- of the provided earlier orders of tions today. LEAZER, Appellant. court and our decision this Andrew P. No. 24799.

Remanded.6 Appeals, United States Judge (concur- District of MaeKINNON, Columbia Circuit. Circuit ring specially): Argued Nov. my Subject expressed in to the views Decided Jan. Group Quaker in Action

dissent A Hickel, 429 F.2d 185 (1970), forth I concur in the result set argu- foregoing opinion. At oral

in appeal it was court

ment of this

brought had in- out that the Government Secret

tended to make Director available for cross

Service pro- hearing on the

at the administrative

posed Appellants avail rules. did not opportunity

themselves of say they op-

now did realize that the Regardless

portunity rea- existed. used, why opportunity son early disposi- to an consider conducive tion of in the re- matter concur finally con-

mand so the matter accept suggestion different led into a beforc We do not accompanied by the Government’s course remand be the direc erroneous from our Women Strike tion extractions the case be tried another judge. ojiinion. request good likewise liave Peace was made in judge expedite disposition. consider will doubt faith order light purpose evi- But the matter afresh we have no doubt developed, render parties will dence it is to afford the disposition expeditious so on the record a fair a reasoned trial. The tran script purpose part, made. reflects such on his Abeles, Washington,

Mr. Charles D. C. (appointed by court), with whom Asher, Washington, Mr. Thomas R. D. C., brief, appellant. was Stephen Grafman, Mr. W. Asst. S.U. Atty., with whom Thomas A. Messrs. Flannery, Atty. U. S. time filed, Terry brief was John A. Sharp, Attys., James E. Asst. were U. S. brief, appellee. on the Judge, BAZELON, Before Chief WILKEY, McGOWAN and Circuit Judges. WILKEY, Judge: Circuit charged Appellant arrested was narcotics with a violation of federal patrol police laws, after a officer on foot cream store him in an ice had observed counting capsules a into the hand of out appel- fifteen-year-old. A search carrying that he was lant revealed powder capsules a white additional capsules package; were re- ten juvenile, who also covered from the package capsules The and the arrested. contained heroin. jury appellant his trial

At presented which uncontradicted evidence capsules were tended show juvenile his fa- be delivered grounded on ther. The defense case defense, appellant at- an tempted by presenting three establish expert occasions several On witnesses. on the were witnesses while these three question- stand, over trial court took Upon comple- ing from defense counsel. appellant’s case, tion of ba- a mistrial counsel moved for par- alleged excessive sis the court’s these ticipation denied. motion was witnesses. guilty on all jury found charging indictment counts of four judgment drugs defendant’s to his about the (1) narcotic him with sale of drugs,2 responsibility. . This criminal . (2) . juvenile,1 of narcotic sale give drugs (3) possession kind jury does of narcotic satisfactory for determin- original stamped package, basis the receipt proper responsibility. A criminal narcotic and concealment adjudication requires that the drugs.4 Title under He was sentenced fully defendant’s informed about the Rehabilitation II Narcotic Addict 5 and, processes mental and emotional 1966, subsequently found Act of was processes, affects these insofar as it eligible offender, record and the be an undergoing the . . his social situation. presently .With he is indicates that defendant, relevant information about Correctional in the Federal treatment principles guided legal and Danbury, in Connecticut. Institution court, jury must enunciated appeal three raises On this effect, decide, or not in whether (1) below the court contentions: that blameworthy. . . . defendant right prejudiced appellant’s psy- judge limit the The trial should by jury by the court’s substantial trial participation labels— use of medical chiatrists’ the examination in neurosis, schizophrenia, etc. It would witnesses; (2) lower fense that difficult, undesirable, as well permit appellant to be court’s refusal to completely all medical to eliminate under Title I the Narcotic committed labels, they provide since sometimes was a Addict Rehabilitation Act of 1966 meaningful method and a convenient law; protection equal denial of judge the trial of communication. But in- and the first count of that meaning is their should that ensure charging dictment, sale heroin explained to and as much as minor, be- should have been dismissed they explained possible, ain that indicating mi- cause of evidence way meaning to which relates drug did himself. nor not receive the defendant.7 appellant’s contentions to be We find the guide These standards the trial which judg- merit, affirm without we require and often do court court. ment and sentence of the trial participation court’s active in the exami- witnesses, nation fact which we Participation the Trial Court I. recognized for some time.8 Questioning Wit- Defense nesses case, Reviewing in the record this we United States6 v. being mindful of our recent obser placed where a burden on trial courts ap merely quantitative vation that defense is raised ensure proach whether cannot determine bases its determination judge’s participation questioning in on relevant behavioral blameworthiness Wyatt,9 improper, we States v. United data: find that the defense [Testimony in “mental dis- unclear, terms of woe case was often fully sometimes psy- say ease defect” seems to leave the muddled, cannot according testify clarify attempts chiatrist free too court its F.2d, U.S.App.D.C. 1. 21 § U.S.C. 176b. 7. 390 129 453, 454. 4705(a). 2. 26 § U.S.C. Burgman 88 8. United U.S. See v. 641, 637, 188, 184, App.D.C. F.2d 4704(a). 188 3. 26 § U.S.C. 64, 838, denied, S.Ct. 342 U.S. 72 cert. (1951), § 21 U.S.C. L.Ed. 634 96 116, U.S.App.D.C. Barbour, F.2d seq. 4251 et §§ 18 U.S.C. (1969), cited. and cases there U.S.App.D.C. 9. 143 6. 129 (1971). express policy, stepped Given bounds. deterrent out of We find accept- participation and the need accommo- recorded for an

trial court’s the Wash- dation between the of those able effort conform with views any Congress obviously ington standards, that all addicts should who felt civilly, be treated and those who felt such affirmative action punished problems that all traffickers should be part some creates criminally,15 recognize its Of these the own. sought “equal protection require that keenly overcome does aware persons identically,” jury, all dealt them an instruction here were and that we have a distinction with admonished which them purpose “some relevance any “not to draw inference whatsoever Bax- asks, or is made.” questions classification from the Court says anything strom Herold.16 does or the Court case should how Court feels the Dismiss III. the Count to find that We are unable decided.” Refusal Charging Minor Heroin to a Sale participation deprived of the court’s trial right a trial the of his to Appellant position takes the on any prejudiced manner him in or appeal, court, did in the calling for a new trial. ap should not be U.S.C. 176b § plied juve to transfers narcotics of to Appel- to Commit the II. The Refusal not for the niles when the narcotics are 1 NARA lant under Title of juvenile’s juvenile use, own and the acts agent.” helpful “mere would as a It deny argues Appellant guide us if there were some case law to ing addicts, himself, sell narcot like who apparently here, In there is none. habits, pre-conviction ics feed their to paucity, plain words of view of the Congress I,11 has under treatment Title juve statute, possibility of the the plainly arrived at a classification “which nile even when are use of narcotics guarantee of the violates Constitution’s him, appellant’s think not sold for protection equal view of the laws.” In contention fail. post-trial availability of the of Title II13 however, addicts, penalty provisions commitment for of the statute accept “whoever, the question apply inclined the view of hav- to here in represent ing age years, Government two titles know- the attained the of 18 “balancing” policies ingly gives away, sells, the of or dis- between furnishes discouraging unlawfully penses of narcotics the sale . heroin . . facilitating brought imported of addicts.14 treatment into the the or otherwise Congress any person decided allow the less who has has non-trafficking blameworthy age years. an addict not ...” attained the opportunity exception additional for stat- treatment There in the is no trafficking addict; available to the it mi- ute for heroin to those who transfer judgment policy not for Appellant us make the nors for use of the adults. legitimate goal Congress the of deterrence observes, rightly we think that properly being not thus served. youths intro- was concerned about Transcript, 10. at 273-274. the cedures of Senate Committee (1966) ; Judiciary, Cong., 89th 2d Sess. 2901(a). 11. 28 U.S.C. § Hearings Subcom- H.B.. Appellant, 12. Brief for at 23. mittee of the House Committee on Judiciary, Cong., the 1st and 2d 89th 4251(f). 13. 18 U.S.C. § (1965-1966). Sess. Government, 14. Brief for the at 17. 16. 383 86 S.Ct. U.S. 15 L.Ed.2d 620 Hearings on S. 2191 before See Appellant, Brief for Law Pro- Subcommittee on Criminal Judge BAZELON, (concur- drugs Chief or otherwise use duced to the ring) drug : pulled distribu- the stream into however, plain, think tion. it We also great I am a more troubled than deal given youth drugs do my colleagues ques by the trial court’s for for him order intended have to be tioning witnesses who testified or their use introduced him to be may well what defense. drug-dealing. fore- canWe drawn into good have been a faith effort to elicit tempted themselves use juveniles see underpinning of witness factual drug another, or intended repeatedly conclusions, the trial court es’ adult, drug, for an meant transfer interrupted question defense counsel’s least, very juvenile. another At the witnesses, a con and assumed ju- excite the fail transaction cannot responsibility measure siderable cap- curiosity venile’s about In the course of their examination. them; why people buy contain and sules questioning, made his might tempt very worst, him pointed number comments obser try profits from or to realize them have been taken vations which could sale, plunge him into and thus skepticism of some to reflect agree- drug stream distribution. and the manner Govern- the District presented. representa A it was ju- is that safe rule ment that sampling is set out tive of these remarks agent venile not be made margin.1 Rejecting appellant’s heroin, be intended whether transfer error, claim Court characterizes running not, without for his own use acceptable as “an action afoul 21of 176b. U.S.C. § effort to our decision conform with” judgment is of District Washington United 129 U.S. (1967).2 App.D.C. 29, F.2d 444 Affirmed. 1. In lowing fense’s made comments which included I which ant’s] your mation should just exactly to Not other nosis based on I Just drugs made his and other matters that state that as an to that conclusion. used to have to parently tent referred to. ^[*] ‡ response have am not give him what he : to which a minute. He is own view of expert information, is you opinion admission. all of gotten has, psychologist mentally ^[*] S|í give diagnosis to the identified. interested drug problem, and the ex- witnesses, (Tr. at what patient. I think all of that told he has used ward five or six rather opinion. ‡ ^[*] facts testimony identified, you, information I ill. He can’t which facts (Tr. at him everyone 138-39). on had am interested lost. in [the (Tr. Now which lead him the trial but going ‡ ^[*] made specific he He 85). has your of I if who uses including lead now basis is to thought patient. 50). already he has defend- he has notes, infor- judge going í|* ^[*] diag- tests view have just him fol ap- de July 19, 1971). States v. judge objection insanity See (D.C.Cir. Dec. In He He performed other matters have Accordingly, but He to the Court. must pects what I That they his you sir. example about. The defendant to (Tr. at # ^[*] United States v. two testimony has must simply the results of those want understand it. testimony I have said to give is a conclusion. defense, appellants thought recent cases to the intervention 140-41). Simpson, my given of what >J: ^[*] give a certain to cannot jury whole there 14, 1971) tests, and I will strike pursue it, Respond grounds his will ink must it ^[*] % is facts. Jackson, interest, the reaction not been very grounds. state his is blots, (Tr. be stricken. number of 24,817 you, give (mem.) ; understand you Don’t foundation clear. tests, involving the of witnesses. Mr. # ^[*] He and to of this trial his No. to be 142-43). presented. say (D.C.Cir. question, it unless Romero. That opinion. opinion. says * * the as- talking 24,421 of the us raised tests, those ‡ ^[*] O.K. this. sure He lie is * judge’s quires jury, ju- can assume trial in this or other risdiction, complex active role was consistent with wrestle with objectives Washington, specialized im- and make dis- portant precisely keep pursuant legal in mind tinctions to a standard urging objectives By which those trial seem were. must at best obtuse and expose logic judges depends “moral, legal, un- the facts and which Washington derlying expert opinions, judgments.”4 at- medical That standard tempted strip away jury of un- cloak mean must evalu- traditionally light reality prevented impairment ate the which had defendant’s “in meaningful analysis community de- of standards of blameworthi- * * * judge apparently ness, Here, fense. determine whether the Washington. impairment unjust attempted comply him makes to hold obligation explore responsible.” Our the issues through action, Washington, his In his to illuminate the factual effort does, brought light. has The Court background, take all course, the trial concede that possible steps danger to minimize the problems “some intervention resulted in unintentionally reveal, by he will that implication these of its own.” am convinced that innuendo, his own hostili- “problems,” does not which the Court ty to the defendant’s claim. In- discuss, disquieting shadow over throw a deed, jury may his examination view assumptions fun- many which are of the of the witnesses as an indication of hos- insanity de- view the damental to our tility even where none exists. In view Ig- proper fense and its administration. difficulty jury’s of the extreme noring festering problems will these resolving responsibility role in fade cause them—like old soldiers—to fense, hardly surprised we can if the away. inquiry abandons the and reaches easy seemingly out for the answer of-

I. judge. fered While the ideally qualified not be to decide deplored the tend- whether a defendant’s behavior controls ency psychiatrists testify in con- substantially impaired were so that urged terms, di- clusory them to and responsible, should held not be no alter- testimony away from labels their rect jury yet native to the is available. Un- psychiatric the and into and code-words knowledge point til our increases to a reasoning support their and facts emerge sharp where distinctions and an- opinions. shift that assumed easily, question swers more come the jury’s ability make would enhance to the jury be will entrusted a have “intertwining moral, legal, medi- the and community resolution with reference to 3 judgments” cal resolution on which the concepts of blameworthiness. depends. insanity defense have of an I Washington pursued a doubt problem mitigated, per- can be designed objective, worthy for it was special haps, a instruction such as the resolution facilitate inform warning the trial court’s here that the ques- perhaps what is the most difficult jury any should not “draw inference jury question put a tion ever before any questions whatsoever from the —the responsibility asks, anything of a defendant’s for crimi- or the Court does says nal re- or determination as to behavior. how the Court feels the U.S.App. King States, (Bazelon, J., concurring). v. United 125 See United 318, 383, (1967). 324, Bennett, U.S.App.D.C. D.C. F.2d 389 372 148 -, at - - -, at 876-878 (1972); King States, Id. 125 cf. 388; 372 F.2d at Eichberg, U.S.App. Holloway U.S.App. United States v. v. United 3, 4, D.C. D.C. F.2d my mind more (Tr. and to a second 273- with case should be decided.” problem which 74.) highly doubtful troublesome brings it me But seems to light. exploring By basis always, or that such an instruction can questions (with expert testimony discourage jury from of often, even penetrating and skillful more apparently be adopting favored the result government have counsel could jurors a than mustered), were offered If the Court. may expose meaningful trial role their instruction inadequate presentation defense, of the in- resolving the sanity an virtually assure obeying thus might difficulty an have less surely de- is from conviction. Yet inference draw no admonition to poorly in- his counsel is participation. But fendant’s fault that inexperienced prepared diffi- explicitly candidly instruct- stead of requires de- And an extraordi- area. cult nary leap consider whether responsible, to conclude that the defendant justly held fendant can prejudiced by inadequate fact6 should be testimony issue we describe the one government experts recognize rely who government complex. really examined the defendant at question is much more pursuant hospital a court order and our pointed “if out have testify on are called his behalf. who approach judicial review whole That, however, precisely leap the- jury’s depends on determination routinely every almost case make in measuring ory jurors mental are indigent an de- where raises community disability con- in terms of indigent fense. It no answer that an blameworthiness, cepts of then we private psy- obtain the services of obligation tell them that is an they government expense. A chiatrist at expected Wash- to do.” But are rely govern- fendant is entitled to ington addition- forces us confront an provide legally adequate exam- ment to jury’s abili- al reason for candor. The hospital he is ination at the to which ty to look behind the instruction proper committed for observation.8 And surely discern its function will inadequate clearly if con- impaired judge has where experts incapable ducted who are signalled a favored result. An admoni- findings adequately presenting ignore judge’s signal tion to Moreover, if defend- courtroom. jurors cannot be explicitly if effective private psychia- ant does make use of a appropriate made aware of the disagrees hospital’s who with the trist inquiry,'and why thus are to see unable diagnosis, he is sure to find that almost inquiry has been entrusted to them psychiatrist’s private will judge. and not the trial government disparaged by grounded period of on an insufficient II. observation.9 fully Even if we could resolve cases—and this well be some problem, we would still to contend have one—the trial silence would present Eichberg, U.S.App. 6. Our instruction tells tlie 142 7. United States v. guilty by 116, (Bazelon, that a defendant is not reason at 439 F.2d at 626 D.C. insanity suffering J., concurring). if he was from an C. abnormal condition of the mind which States, Henderson v. United 123 Cf. substantially impaired his mental or emo U.S.App.D.C. 380, 385, 514, processes tional and behavior controls. (Bazelon, X, concurring). 518-519 C. States, U.S.App. McDonald v. United 114 847, (1962). Bennett, D.C. 9. See United 148 851 States v. U.S. inadequacy present App.D.C. -, theOn of our instruc F.2d 875 tion, generally (1972) Schap ; see United v. Eich and n. 4 States v. United berg, U.S.App.D.C. 110, 115-116, pel, F.2d 716 (Bazelon, J., (1971); F.2d 625-626 Rollerson concurring). U.S.App.D.C. 400, 343 F.2d 269 insanity unimpressive leave the defense nosis rests —the defendant’s answer ato intact, probing questions particular question but while his or his reaction ato quickly particular would reduce it to a shambles. prosecution may ink-blot —the long gain nothing In the run making if symptoms succeed in these seem chooses remain in commonplace. silent process trivial or This damage presen- order fractionating minimize complex diagnosis and prob- deflating tation of the Unless the piece defense. by piece apparent exposed, impossible lem is it is in government take the case before use. The guarantee, psychologist corrective action that would support who in testified first, specially the assistance of counsel testimony the defense offered such as qualified defense, following handle an explanation diag- of his second, testimony psychiatric and nosis : experts competent only * examine * * THE WITNESS: This [re- present defendant but also to ferring to Defendant’s Exhibit No. 3] findings adequately at trial. popular is a kind of card Ror- on the fig- schach, people where see human ures, commonly. time, III. Not all the commonly. anywhere, If see it Washington problem Another they generally would see them here. emptiness forces to our attention is the Mr. Leazer does not see them here. of our time-honored insistence that He sees animals Just an exam- there. proof govern- burden of on the rests ple. practical matter, ment.10 As a even ****** experienced if defense counsel is and now, fully THE prepared COURT: Well let’s take and the defense witness- [referring knowledgeable 3], one lucid, es are to Exhibit say people Doctor. You that most see overcome substan- figures, by human prevail. psy- tial obstacles in which I take A order to people some see animals ? who chiatrist testifies defendant suffers from no condition that could THE WITNESS: is correct. properly be considered a illness mental THE COURT: This defendant likely difficulty comply- little have man who saw kind of animals. What making with im- animals did see? pact jury. He need assert THE WITNESS: Animals —he said any recognized symptoms the absence of dogs eventually. animals, said, He of mental illness. break down that To dogs he said when we him asked testimony, defense counsel must have kind of animals. enough expertise psychiatry pick Very THE COURT: well. did What points oversights out the weak you conclude from that? analysis. very Unfortunately, few Nothing THE attorneys, in isola- any, possess requisite if WITNESS: * * * tion expertise, pro- no automatic (Tr. 146-47.) enabling cedure for to consult them psychiatric experts preparation problem by limited means and conduct of defense. psychologists. cross-examination Defending his conclusion that contrast, By requires it often little or suffering passive-aggressive from expertise to ridicule the personality, psychia- one of psychiatrist psychologist a or who as- trists testified as follows: serts that is in men- defendant fact * * * tally example, requiring by For you ill. think can see on witness interview, to describe in most example, isolation the com- a kind of “symptoms” diag- feeling minute on posure, sparsity which the a tone. Eichberg, (1971) J., 10. (Bazelon, United States v. U.S. 623-624 C. concur Cf. App.D.C. 110, 113-114, ring). talk, they psychiatrists people usually passive-ag- com- from what call a When feeling gressive personality prevail amount can never municate a certain gesturing bodily by movement, defense —not because his be- unimpaired, a kind havior controls are There is also so forth. be- psychiatric testimony presenting in kind of a com- cause the on his himself my invariably pliant, inter- behalf demolished. docile manner. spontane- more lack of ramifications that result are view, there seemed a * * * ity properly people discussed our when in the context of talk. gave responsi- me im- en banc reconsideration It seems —Mr. Leazer bility pression early life a lot of the test.11 in his than —on was on control rather stress IV. structure control and limitation feeling, spontaneity, rather than Washington did not create the diffi- being just people. be with able culties which I have described —it collo- followed That By refusing uncovered them. to see quy and the Court: the witness between emperor has clothes we guarantee nothing will be accom- saying, Doc- THE You COURT: longer plished. making Our difficulties tor, friends. had trouble he swept rug “under of a doctrine saying you are ? Is that what hiding saves our face our saying not I am THE WITNESS: troubles.” having making friends, trouble trouble any friendship. sustaining Having sus- trouble THE COURT: feeling taining friends, has right? attention is that of a need for Attention, interest

THE WITNESS:

from someone. Now, were the

THE COURT: you conclusion? led to that facts that UNITED of America STATES said, a certain As I THE WITNESS: needing get con- history involved BENNETT, Appellant. William types situa- stantly protective No. 24387. tions. Appeals, Court of conclusion. is a THE COURT: District Columbia Circuit. Give us some facts. May 28, Argued 75-76.) (Tr. at Decided Jan. psychiatrist could Perhaps another presenta- provided a more effective itBut defendant’s condition. tion of the plausible conclude me more seems to per- subjected psychiatrist hard would sistent

pressed persuade sub- were controls

fendant’s behavior condi-

stantially impaired a mental practical re- appellant’s. like

tion suffering that a defendant sult rehearing grant why Brawner, 22,714. he would as to Ion United States Carter, ; banc) United States v. en Trantham, 145 U.S. 12. United States v. 46, 57, App.D.C. 448 P.2d concurring). J., (1970) (Bazelon, Judge (statement Baze- of Chief

Case Details

Case Name: United States v. Andrew P. Leazer

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 19, 1972

Citation: 460 F.2d 864

Docket Number: 24799

Court Abbreviation: D.C. Cir.