United States v. Dennis T. Butler
481 F.2d 531
D.C. Cir.
1973
Check Treatment

*1 them, young adults, To withhold from meagre hope exposure the last ato

program promises may if it —even not ment, deliver—rehabilitation treat- lifelong pour is to salt ugly

sores. That is the heart of this regret majority case. I that the is un- willing to address it at all.

Fortunately, impute any we need not Congress, evil motive to for in the histo ry patchwork legislation81 of this it

clearly appears that the infirmities of may

section 6 on inadvertence. laid Conceivably, section stood judicial scrutiny when enacted. But Congress extended the Youth offenders,82

Corrections Act to local rendered the distinction local between meaningless. and national offenders Thus, appropriate remedy

case is to strike down section 6 and abol entirely

ish distinction for Youth Corrections Act sentences.

I thus conclude that neither section 6 nor section 7 bars McDonald from con-

sideration for a Youth Corrections Act sentence.

UNITED STATES America BUTLER, Appellant. Dennis T. No. 72-1213. Appeals, States Court District of Columbia Circuit. Argued 26, Feb. 27, Decided June 300, 8, April 1952, produced discrep- No. Pub.L. 82. Act of statutes 45, 163, Act of December ancy 66 Stat. eh. between Act the Youth Corrections VIII, 81 Stat. Young § tit. and the Adult Offender statute abolishing be- (together amendments, the distinction were the Alaska and Hawaii U.S. Code supra, offenders D.O. Code tween see notes 64 and and the purposes Correc- bill, supra. offenders see omnibus crime note 65 sentencing). housekeeping Act tions measures These bills were designed to accommodate concerns other scope than the statutes supra. before us. See note 64 *2 report 5010(e)

tions Act. The resultant sentencing. On the recommended adult addi basis and for stated reasons, tional trial sentenced of 20 as an adult to terms years charges murder years robbery on the count. following questions presented on this appeal: judge erred in whether ordering key prosecution wit two undergo physical psychiat nesses to examinations; the court ric whether admitting testimony of erred those wit officer to whether of nar nesses the influence were under cotics made when statements and, police; whether properly denied Act. Corrections

I 30, 1970, September Hill James On police homi- told the

and Gail Robinson following story. Hill squad the cide previous p.m. the at about 3 said that appellant. Dur- day telephoned he had ing conversation, appellant con- just he killed someone. fessed that Appellant was an old said the victim selling narcotics him man who seen boys, young to some seized Washington, Singman, C. Julian H. D. destroyed Appellant admitted them. Court), appellant. (appointed by this tying up, putting striking man, him Atty., Schaumber, U. Peter C. Asst. S. choking stocking mouth, in his Jr., Titus, U. S. with whom Harold H. then, when the belt a leather belt Terry, Atty., L. and Warren John A. finishing garroting broke, with a Miller, Attys., were on Asst. U. S. telephone To sure the old cord. brief, appellee. poured dead, appellant he said man was Appel- victim’s throat. water down his BAZELON, Judge, Before Chief taken a set to have then lant claimed keys Judge, MacKINNON, and VAN Circuit Later from the deceased. PELT,* District Senior United 29, appellant September re- day, same Judge for the District of Nebraska. peated both Hill this narrative to apartment. Rob- Ms. at Hill’s Robinson Judge: BAZELON, Chief inson, first, police of did not tell de of first was convicted confession, allegedly because gree degree premed felony murder, first him; but, afraid of she was robbery.2 murder,1 He was itated complete that Hill had made formed pursuant committed for observation statement, 5010(e), she did same. the Youth Correc 18 U.S.C. § * Sitting designation pursuant 2401. to 28 D.C.Code 294(d). § U.S.C. D.C.Code

The evidence found at the scene cor- II roborated Hill’s and Robinson’s stories. trial, appellant’s Before attorney The victim was found bound and filed a motion for and mental gagged, with a wet sock stuffed in his examinations of Hill and Robinson. mouth; Pepsi bottle half-full of water That motion appel was denied because lay body. near the The decedent had lant supporting had adduced no evidence *3 strangled telephone with a cord and to indicate that the witnesses were ad nearby. a broken belt found judge did, dicts. however, observe addition, pants by appel- worn that: day lant on the of the crime showed If, trial, appears to the Court paint paint traces of which matched the any may that incompetent, witness be jacket found on the victim’s and on resources are available to the Court to body. bottle found near An FBI ’ determination. United agent matching testified that hair fibers Butler, F.Supp. 325 pants, were found on the coat (D.D.C.1971). and shirt of the deceased. There was when, trial, asserts testimony putting appellant also both it became clear that the witnesses were victim at the scene of the crime addicts, the court should have exercised approximate time of its occur- power examinations, to order sua rence. the deceased was seen sponte determining purposes for the carrying keys day on the of his mur- competency aiding jury or of in der, keys body. no were found on the weighing credibility. decision later, keys About two weeks the victim’s whether to do so involves a difficult bal- rooftop were thrown from the of a house ancing respective' of the needs and dan- appellant on the block where lived. gers presented by case; the individual interjected A new fact was into this judgment hence it is a committed to the story was, at trial. Hill testified that he judge.3 sound discretion of the trial himself, addict; a heroin that he call- Appellant relies on United States v. day ed on crime Crosby, U.S.App.D.C. 306, get narcotics; to that when (1972) and United States v. Kin- apartment arrived at his later in the Payne, U.S.App.D.C. 386, nard & day, injected Hill heroin. Hill testified (1972) to there show that as to the extent of his use and said he Crosby was an abuse of discretion here. previously purchased drugs ap- from merely held court trial pellant. claimed, however, He to have looking key erred in not at a stopped using crime, heroin since the finding hospital records before gone treatment, into methadone competent testify. to The witness gotten then methadone on the street. long-time addict, hospi- awas had been using Ms. Robinson also admitted to reason, talized for and had used (although being narcotics not to addict- day Crosby on the of the trial. ed) and, specifically, “snorting” her- distinguishable but, on its facts more apartment day oin at Hill’s on the importantly, it did not the diffi- crime. cult issue a court ordered medical ex- A officer testified that he was amination of a witness. physical familiar with the manifesta- in court Kinnard was concerned usage; that, tions of narcotics with the uncorroborated his observation of Hill and Robinson paid “narcotics are inform- addicts who day gave po- statements to the ers of the with criminal Government lice, neither was then under the influ- charges pending against them.” 465 F. drugs. ence of 2d Kinnard is at 572. While instructive Hunt, States v. Benn & may regard reliability suspect. of addict-wit- be we said Hans As clearly States, generally, it not control- ford nesses v. United ling (1966): us. Kinnard did case before any must not hold that addict-informer knowledge Current indicates medical physical subjected be a court ordered produces use of often found and mental We er- examination. psychological physiological reac- judge’s permit ror in the refusal syndrome, known as an tion acute brain prove ['the defense to the “fact of which is condition a “basic mental give addiction” informer’s] impairment characteristic of diffuse cautionary instruction. Our reference charac- of brain tissue function.” The only to a came examination syndrome symptoms of the teristic suggestion expert appointing an orientation; impair- impairment of examine informer’s arms needle memory; impairment ment all providing one means of marks *4 including com- intellectual functions evidence of 465 F.2d at 574- addiction. knowledge calculation, prehension, and sought appel- by 575. The examinations learning; impairment judgment; of lant are far more intrusions on drastic liability and and of affect. shallowness privacy the witnesses’ than the caution- * * * * * * ary dis- instruction and “examination” vary of use will effects narcotic in cussed Kinnard. drugs depending of on the amount question of when a trial taken, degree devel- of tolerance psychiatric should order and a by individual, oped the idio- prosecution examination of a witness person syncratic to the reaction of the directly by was court in considered this drugs. only by very reason, For this Hunt, Benn United & U.S. hearing a wheth- can be determined (1972). App.D.C. 180, We any particular er is incom- defendant explained there that such an examina drugs. petent of because of his use “may seriously impinge tion on a wit Fowler, See 151 U.S. United States v. * * * right privacy; ness’ the ex App.D.C. 79, 465 F.2d amination itself could serve as a tool of harassment;” and the likelihood unreliability danger examination could deter witnesses by substantially factor a increased coming Id., at forward. present in but Kinnard case presumption at 1131. The resultant applicable all the witnesses against ordering an examination must particular vulner Godfrey. The addict’s by showing be overcome a of need. prosecution witness ability a when he is Here, Hunt, in Benn as & cautionary require in prompted a tous challenged testimony was cru in Kinnard-. struction government’s Also, cial to the case. as pros- [or addict-turned-informer [T]he challenged Hunt, in Benn & witness special may have a witness] ecution class, es were testimony whose members discrete fabricate very powerful motive to recognized we have own benefit. his case danger unreliability. particular at 574. testimony Benn &.Hunt concerned the all Nonetheless, ted ant, of an instruction aimed at States, young drug heroin users. (1965), simply before us the retarded addicts, because this court testimony rape complainant. including In testimony of their addiction. Godfrey rejected of an addict discrediting of admit v. United the use defend We crease fendant [A] 570; narcotic testimony F.2d at 666 [*] government informer’s see [*] danger violations own benefit. [*] place (cid:127)>:(cid:127) guilt his indictment he will ... [*] addiction Fowler, the de- [*] color there While is no indication supported by this that narrative was over whelming record that Hill or Robinson were under corroboration, giving extrinsic indictment,4 independent admissions narcot- substantial assurance of its drug previous reliability. ics use and addition, transactions the witnesses’ put does them much the same shoes about their narcotics use ob vis-a-vis prove addict viated the need to Hill’s addiction turned informer in Kinnard. or Ms. Robinson’s involvement with her oin. That information alone should perpetual addict lives in [T]he almost put jury have sufficed to on notice

violation of one of several criminal that, the witnesses’ testi extent laws, gives special sta- mony was it should be uncorroborated, tus not shared other of- criminal weighed with caution.6 Together with the fact fenders. he must have continuous contact with Hunt, In Benn & we found that people drugs, other in order to obtain the trial court had not abused discre gives exposure special it also him a by failing, sponte, tion sua to order a police action and arrest. . . . complaining mental examination of the The President’s Commission on En- Law witness. When faced a factual sit forcement and Administration today Jus- uation much like the one us before tice, Report: sought Task Force Narcotics and —where an examination aft Drug Abuse, 10, quoted at 465 F.2d er the fact of the witness’ addiction had at 571 n. 15. jury been revealed to the 5th Cir *5 —the declining cuit found no error in order to sought Finally, the after exami an examination in Gurleski United light nations have well shed some States, (5th 1968). Cir. on a of unresolved material number but Largely in view of the substantial cor questions; whether Hill was still addict by the roborative evidence introduced using ed to heroin the time of the or at government case, say we cannot trial;5 whether Ms. Robinson was ever the ex trial court’s refusal to order addicted; the of what was extent each aminations amounts to an of dis abuse use; and, witness’ use had whether cretion. impaired capacity to either tes tify. Ill hand, challenged On the other the wit ambiguous testimony, at asserts that the court nesses’ while times, allowing police comprehensive did abused its a discretion a importantly, testify officer to that Hill and Robinson believable narrative. More paid 4. Kinnard was concerned with addict- informer would enhance his motivation to Kinnard, lie.” informers who infiltrated the narcotics United police market the under threat of at n. 32. Ms. Robinson also denied using and, prosecution. in- at the time of trial like the Hill and Robinson were not Kinnard, paid, they regular an not informers on a former claimed to be oc- were user, they addicted, basis, casional but not at the time nor were indictment. distinctions, of the crime. while relevant 465 F.2d at 573. These danger unreliability, do not constitute of Godfrey, supra, 6. This case was tried after such material differences as to obviate Kinnard, but before the decision infra. danger. susceptibility, the as ad- Their request Appellant’s trial counsel did not users, and harass- mitted heroin to arrest give in- and the trial court did not the presents clearly ment situation analo- proposed in struction Kinnard. In view paid gous that of the informer in Kin- here, we of substantial corroboration nard. purpose think it would serve no useful upon a embark discussion of whether 5. 1-Iill testified that he was addicted at the using Kinnard should crime was not heroin instruction time but given request by absent a counsel. Com- the trial. His narcotics the time of pare Kinnard, time would relevant use at either be (Leven- credibility. competency with 465 F.2d his “At both thal, J., pressures concurring). on an addict-turned- times did not seem to under the influence contains much evi be gave their state dence that benefit police. Appellant relies ments to the Youth Act treatment. The classification following language appellant’s primarily on “concern wrote that officer States, responsibility family from Hansford v. 124 U. is a and quality his (1966): S.App.D.C. 387, feels is which writer worth psychologist developing.” The clinical lay often will observations [B]ecause reported that: inaccurate, fact that defense psychotherapy did not think defendant counsel intensive [W]ith evidentiary although supervision, possible competent, constant it is dispositive. bring stability value, can never be into [Butler’s] added). (emphasis criminal n. which would further unnecessary him. behavior quoted material warns youth view of his and excellent innate dangers lay testimony as such potential, Butler ca- intellectual Mr. is challenged support here, it does not pable making progress [long- in a such evidence claim program. term rehabilitative] must be excluded. concluded committee classification merely responds this situation that: giving analogous to a officer observation, opinion, personal opinion based on staff’s sub- It diligence family ject’s as a defendant was in- to whether toward motivating We need determine fi- toxicated.7 could be force to his properly whether ne- nal rehabilitation. Because weighed probative subject the offi- cessity psy- value of receive for the against prej- testimony potential chotherapy, cer’s education, and vocational being school, if sophis- udicial effect. Even its admission too as well as error, institution, were went evidence ticated for this rec- [we] credibility for which there ommend an adult. *6 corroboration, was substantial extrinsic appellant report indicates that The hence error been harm- have would significant rehabilitative would derive less. such as from treatment services benefit programs, train- vocational educational IV And, ing psychotherapy.9 it is like- ly appellant’s minimum adult sen- that age Appellant, 20, was sentenced as an insupera- years prove an 20 will tence of required by adult. court, As decisions this meaningful rehabilita- ble bulwark judge explicit the trial made an tion. finding appellant that would not benefit judge need not decide whether from But we Youth Act treatment.8 The support 5010(e) report recommending alone would 5010(e) relied on a judge sentencing, since the adult adult stated additional solely report. rely He upon on did not that reasons of his own not touched independent for find report. balance, reasons On conclude articulated we ing appellant requisite from would not benefit that those reasons bear judge The ob rationality Youth Act treatment. to Con- and visible gressional objectives. appellant committed that served right Columbia, to treatment It seems v. 62 A.2d clear Woolard District of (he (D.C.Mun.App.1948). includes educational 640 Act training as some form well as vocational See, g., v. & e. Reed United States counseling. psychiatric Hoston, U.S.App.D.C. 198, (D.C.Cir. Tillman, June No. 71-1352 v. (1973) ; Coefield, v. United States slip 1973) op. at 11-14. murder, he brutal and cruel which Tillman, (D.C.Cir. No. 71-1352 June totally remorse. He noted 1973) without slip op. at 19. Those reasons must appellant had admitted involvement litany, amount to more than a mere pattern in a of serious criminal behav conjecture which leaves us to about their appellant had nei ior. He found that meaning. Phillips, any any need ther interest in nor saw change way for a in his He not Rather, life. the statement of reasons must appellant previously ed that sentencing judge demonstrate that youth institution, had committed to a has taken “a hard look at the salient is- of that the services benefit judgments sues and focused on the value facility,10 Appel did not benefit11 inherent his decision.” United States finally escaped the institution Tillman, lant from supra,, slip op. 19-20. assaulting guard underlying premises and went back fully expli- must be ultimately led of crime cated and the relevance of the stated judge con instant murder. required reasons to the no-benefit find- ap ing from cluded these observations “present must be and visible.”13 pellant only rehabili was not without We are satisfied from the record before so ac tative motivation but would be sentencing judge us that took that tively to rehabilitation resistant candidly “hard look” that he stated treatment he could not benefit finding appellant reasons would judge under the Act. The also observed not reasons, benefit. The taken as a pose appellant dan whole, would serious rationality meet the test of in re- ger community despite to the Act Congressional objectives. lation to pose es treatment and a serious Accordingly, conviction cape anything but a maximum threat at and sentence are security thus institution. Affirmed. finding supported no-benefit why explanation reasoned “incorrigible” “exceptional case” MacKINNON, (concur- Judge Circuit off ender.12 ring specially): judges including, some my doubt, court, solely I limit concurrence no this members of given greater weight any result reached. If has to the reha justifiable grounds requesting potential bilitative in the a less- indicated (which apparent er 5010(e) report, scope sentence of our review record), full au- “com trial court has must insure that a limited. We *7 thority plete, candid, to consider the motion and take and clear articulation” appropriate accompanies action under Fed.R.Crim.P. denial of Youth reasons 35. v. Corrections treatment. United States 1204; Coe at The nature and extent of those services U.S.App.D.C. supra, 8, apparent field, note as well as the reasons for their 208, F.2d at 1155. at failure should be articulated. See United Phillips, Phillips, 10, supra, 12. United States v. note 221, 1200, at at 1204 U.S.App.D.C. 219, at 479 F.2d at case, In the of this we do circumstances 1202; Waters, United States U.S. not find the absence of that articulation App.D.C. 289, 722, proceeding. fatal flaw in the Tillman, 9, supra, Hoston, United States v. note v. Reed & note slip op. 16; Phillips, United States v. supra, U.S.App.D.C. 10, supra, note F.2d at 1150.