United States v. Lawrence Daniel Caldwell, A/K/A Thomas E. Morgan, (Two Cases). United States of America v. Eros A. Timm, (Two Cases)

of America STATES UNITED CALDWELL, A/K/A Daniel

Lawrence Appellant Morgan, E.

Thomas cases).

(two America STATES

UNITED (two cases). TIMM, Appellant A.

Eros to 72-1516.

Nos. Appeals, Court of

United States of Columbia Circuit.

District

Argued Dec. Dec.

Decided amended Jan.

As Rehearing En Banc

Rehearing and Sept.

Denied

Harry David Rosenbloom and John T. Shinkle, Washington, (both D.C. appointed Court), this appellant for in Nos. 72-1513 and 72-1515. Freeman,

Carol Garfiel Washington, D.C., Fayad, with whom Michael A. Washington, (both appointed D.C. Court), was on appellant the brief for in Nos. 72-1514 and 72-1516. Silbert,

Earl J. Principal Asst. U. S. Atty., Titus, with whom Jr., Harold H. U. S. Atty. at the time filed, the briefs were and A. Terry, John Atty., Asst. U. S. were on brief, for appellee. WRIGHT, Before ROBINSON and MacKINNON, Circuit Judges. ROBINSON, III, ensuing. ments at the trial Cir- Our recitation W. SPOTTSWOOD nearly is not exhaustive of innumerable Judge: cuit details,4 point. Appel- nor need it be at this guilty by a found been have Appellants dispute lants commission or the do emanating from charges on numerous crimes, ingredients of the or their roles as in the District Co- robberies armed two rather, points appeal, their on perpetrators; as police officer slaying of and the lumbia objections procedural aspects of the are verdicts, of one. On aftermath trial, bearing and the facts on each are convicting judgments judge entered trial fully they successively out are staked sentencing long them to subsequent sections opin- treated in of this now Appellants imprisonment.1 terms effort, then, present simply ion. Our a veritable host our consideration tender highlights recount order to frame the contentions,2 we have stud- all of which backdrop against legal which the issues Finding, in the circum- assidiously. ied perceptively analyzed can more posed case, no need for definitive stances and resolved. issues, error war- and no of some decision others, we affirm ranting reversal Offenses A. vacate them in part judgments holdups from which the charges maximum The two unaffected leaving part,3 place May took in suit emanated 24 and imposed. imprisonment term date, 1971. On the first at about 11:00 m., appellants entered a branch office of a. BACKGROUND THE FACTUAL I. Savings the American and Loan Association Avenue, events summary with a 4900 Massachusetts N.W.5 We start appel- short, with which comprising sporting the offenses Dressed in business suits and haircuts, major develop- and the charged were conservative the two men first lants convictions, respec- holdings and the sentences respect pre- 1. The summarizes our tively imposed, as follows: publicity conduct the voir dire. III, analyze concerning for federal bank Part issues On counts robbery, (1970) pretrial competency five to fif- § 18 U.S.C. determination of Cald- (both appellants). years’ imprisonment teen Part IV is an well. extensive discussion of robbery, 8 and for armed affecting presentation On counts issues of the 22-2901, (1973), 22-3202 five to V, §§ D.C.Code problems In Part we address re- defenses. (both appel- years’ imprisonment fifteen lants). lating to severance of the codefendants. En- compassed in Part VI are our views on the 14, for assault with a On counts 10 and prosecutor’s of the conduct summation. Final- weapon, dangerous 22-502 § D.C.Code explore ly, Part VII we the various claims of eight years’ imprisonment (1973), two to jury. as to the final error instructions to appellants). (both capsulize dispositions also we our There carrying for an unli- 5 and On counts convictions. (1973), pistol, 22-3204 D.C.Code § censed Timm). year’s imprisonment (appellant one disposition, precise by 3. The counts of the con- felony-murder, D.C.Code for On count indictment, is set forth in Part VII at solidated (both (1973), imprisonment 22-2401 life § appellants). again pretense used the of inquiring about remains uncertain who fired first. Shoot- opening savings a account. Unbeknown to ing Timm, as he ran ahead of Caldwell Timm, officers, police two Sig- William L. flight headed for a leading stairs to an Schwartz, and William mon the time alley; following progress, Caldwell’s Offi- room, but, in a were stationed back unfor- cover, Sigmon cer took crouching down tunately, they way had no of watching ac- against with his left side a retaining wall. tivity inside the branch. law Other enforcement officers in the vicin- Wells, manager, 6. The branch Jean noticed 7. Timm and Caldwell were first linked to the they police but assumed that them were offi- Savings robbery they American when were rec- She cers. testified that ognized coincidentally day by the next Officer [t]hey very I think were assured. that is the as he Gosnell assisted their arrest for the my they judgment might po- robbery. reason said second they They when walked licemen extremely in. observant, They self-assured. 1, supra. 8. See very deliberate in seemed their actions. time, but held five by days scene presented were on the Government its ity variety of reasons.9 case, a fire for which their involved 52 witnesses and about 120 exhibits. which position was in a Sigmon Officer pace route. At a escape Timm’s blocked proof The Government’s of the events fast,” “walking” to “rather as described comprising the offenses unop- on trial was Sigmon from be- Officer approached Timm and the posed,13 identifications of Caldwell Caldwell, officer, being un- facing hind, the participants Timm as and were solid and then shot the presence. Timm of his aware convincing. respect With May by a distance noted back from officer holdup, singled Caldwell was out both at a four inches to varying as from six witnesses lineup and at trial Ms. DuTeil by Larry and the wound thus inflicted Offi- From feet. Newman, a gunfight. witness to the Timm Sigmon cer died. similarly by identified Ms. DuTeil and opened then fire on Bishop Wade Officer Bishop. May Officer As to robbery, Timm, to retreat and soon was forced but court, Gosnell Officer identified Timm in Timm and Caldwell for assistance. call Younger, tellers Young- did and Vance. Ms. vehicle, getaway a managed reach their previously picked had er him out of a line- by young woman panel truck driven blue up, and Ms. Vance had made an identifica- Fletcher,10 Heidi Ann and identified as later photograph from a lineup. Ms. escaped police before were able trio Younger also identified a gun .45 caliber Shortly the area. a search of complete and a briefcase recovered from getaway however, noon, Officers Marshall after truck as the automatic pistol and briefcase spotted Wince Clifton and Brothers used Timm in the holdup. Photographs Matching physical appearance truck. positioned made cameras inside the Fletcher, driver, with their look- Ms. robbed institutions were introduced to de- pursued the officers description, out pict participation of Timm and Caldwell it. Ms. Fletcher was stopped truck holdups. seat, and Timm from the driver’s removed Although appellants entered the Ameri- from the rear.11 Also found Caldwell Savings can branch disguises, dressed in tying occupants items in the truck were attempt identities, to mask their Savings Permanent rob- as we have the National indicated, prove did not to be a bery.12 problem for Wells, witnesses there. Ms. the branch The Trial B. manager, picked Caldwell as one of the robbers and testified that a wig brown con- pretrial proceedings various After panel found in the truck time, corresponded suming several months’ trial, length and color sequestered trial. The of his reached hair. Ms. During Younger three weeks. the first jury, lasted stated that a wig black found in example, began 12. These included a containing Schwartz also 9. For Officer briefcase $7,958, money; point, some of which was the bait he took aim at Timm fire. At one return pistol a .45 caliber automatic identified hitting walking as the a civilian fire to avoid but held killing one from which been fired the shot Timm. behind Sigmon, cartridge cases and Officer muti- scene; copy bullets found at the lated of a separately indicted as co- Ms. Fletcher bearing magazine, fingerprints, Timm’s which Timm and for the of- defendant desk; had been removed from Ms. DuTeil’s December, May before fenses ammunition, guns among cache trial, she entered a was reached the case unregistered shotgun an sawed-off charges, guilty plea and was sen- to those removed; the serial number had been which provisions of Federal the the tenced under wigs makeup paraphernalia. and other In and Act, et 18 U.S.C. §§ Youth Corrections pocket handgun was a loaded Caldwell’s and seq. projectile expended an .38 caliber identified as having Bishop’s gun. fired been from Officer conscious, Timm, barely and wounded lying back of the truck. in the found infra 13. See text at notes 14-17. color and matched Timm’s hair Such were the trial, offenses truck and the the branch, and appeared when he at the viewed in rather broad length outline. There were, indicated, recognized sunglasses the and we have many Vance other factu- Ms. developments bearing al clip-ons by legal worn Timm and the issues dark Caldwell.14 appeal. posed on this elaborate of other great was also deal There separate these as discussions of the issues men, two implicating the directly evidence successively are reached in opinion. search including by a items uncovered and, well, by as a war- panel the truck15 II. PRETRIAL PUBLICITY AND apartment post-arrest search of an ranted OF THE SELECTION JURY by Timm and The occupied Ms. Fletcher. part weapons offenses16 were established A. and Publicity Prejudice Claims of stipulations as by defense to basic elements Appellants jointly contend that due to non-possession non-registration and such as widespread publicity surrounding the case A variety licenses. of witnesses gun the they “impartial were denied jury” guar- expertise from their in the forensic testified by anteed them the Sixth Amendment.18 provide the technical links the sciences the They attack both court’s refusal or- Sig- and slaying of Officer robberies change der a of venue and its failure mon.17 stringent take more measures to reduce appellants flow of Insanity presented by concerning ongoing defenses information de- only charges, velopments of the trial. responses their were jury were judge here also and and Initially, appellants charge change that a group lay with an extensive presented by of venue was necessitated extensive me- expert witnesses. of Timm’s gist and coverage highlighted, dia among other acute was that he suffered from defense things, Sigmon’s death, appellants’ Officer needs, long-standing dependency and and style life and unorthodox various controver- this, great in- coupled with Caldwell’s punctuating sies certain of pretrial him, brought partici- over about his fluence They hearings. specifically assert contrast, in the Cald- robberies. pation of news articles appearing substance attempted to show time of that at the well effectively prejudged press guilt. their he was afflictеd a “con- offenses Furthermore, add, they the District Court’s hysteria” complex deep-seated version Heidi acceptance plea guilty Fletcher’s —a allegedly progressed child- which since implicate likewise tended to prior to trial19 to seek ultimately and which led him hood reasons, of several them. For each we con- The “con- people. from other punishment no committed clude aspect, interpreted by his ex- finding that there was version” error no such lawbreaking hope appellants took the form against they could perts, prejudice fair being caught. impartial and trial. not obtain a Police officers had articles of located various indentations of the matched the nose clothing during had worn Sigmon’s those of bullet with Officer death buckle; belt gold jacket These worn robberies. included a (c) the and technician who correlated wigs by See note worn each. fibers of Caldwell and Timm hair with those 12, supra. po- Various witnesses described wigs taken found on the from the truck. court, lice, later items of identified in these outerwear. prosecutions, 18. “In all criminal the accused right enjoy speedy public to a shall 10, supra. 15. See trial, impartial of the State and 1, supra. wherein crime shall district mitted, have been com- previous- which district shall have been pertinent Perhaps interesting most ly law . ascertained . .” U.S.Const. (a) examples deputy examin- medical amend. death; (b) verified cause of er who expert bullet as who identified the ballistics coming 10, supra. 19. See note automatic, and who from Timm’s .45 1342 pri cifically denied the request of error stems because there

The absence point was at that no indication that an appellants’ properly failure from marily obtained, impartial jury could change seek not be and a opportunities their exploit we that say judge’s ruling cannot was in event inability and their venue20 in sum, wrong.23 In error in find no dis- a from trial actual harm show posing appellants’ of several efforts record of discloses Columbia. District change trial, place of and as when those arrest, June, 1971, long after his in not that made. magis States efforts before a United moved Timm venue because of change of for a trate appellant us Neither has convinced alter- that motion publicity, post-arrest the trial erred in natively failing to renewal before prejudice without denied sponte a severance of to order sua defend- 24 and, appear, Court, as will District aby change followed ants venue. As ever effort renew the motion no suitable opinion Gasch,25 in our Jones v. we stated in later, forth. Six months came question on pretrial critical a motion for change for a ground on another moved “is change possible of venue whether it is very venue, in view the court our impartial jury, a fair and select additionally denied.21 We properly occasion for such a proper determination is mornings selec on each of two while upon voir dire examination.”26 way, appel of a was under both case, Throughout pretrial in this period judge’s attention to directed the lants no appellants asserted more than the exist- appearing broadcasts news articles widespread, uncomplimentary pub- ence of change Where, here, again moved for overnight licity. our examination of occasions, judge spe- not publicity say both does enable us to On venue.22 States, change (8th 1960); granting a F.2d 359 The standard for of venue ed 279 Cir. Daven States, (9th port derives from Fed.R. F.2d 591 the federal courts 260 Cir. denied, 909, 21(a), 1958), 585, cert. 359 which reads: U.S. 79 S.Ct. 3 Crim.P. (1959); States, 573 Richards v. United L.Ed.2d upon defendant The court motion denied, (10th 1951), Cir. 554 cert. 193 F.2d 343 proceeding as him to transfer shall 930, 764, (1952). 1340 U.S. 96 L.Ed. not such district another district whether specified in if the the defendant’s motion is Const, 6, quoted See U.S. amend. dis- relevant satisfied that there exists in the is court supra Wright, part note 18. See 1 C. prosecution pending so is also where the trict great 341, prejudice Federal Practice (1969). Procedure against § 619 the defendant that impartial trial at obtain a fair and he cannot any place holding fixed law for court that district. infra notes 25-26. “The See text burden showing denying abuse of discretion in December, 1972, days within after the 21(a) virtually is a motion under Fed.R.Crim.P. impossible guilty, entry plea of Heidi see note Fletcher’s indeed, one; there does not seem to 10, supra, change moved Caldwell alone the burden has be a federal case where been venue, claiming prejudice publicity Moore, 21.03[3], met.” 8 J. Federal Practice f plea. supporting No documentation over the (2d 1974). 11 ed. at 21-10 to Ms. filed to media accounts of describe status, judge right new Fletcher’s and the trial V, See also Part 24. See Fed.R.Crim.P. 14. change ly can denied motion. A venue infra. grounded merely upon a codefendant’s not entry plea guilty prior to of a trial. The 254, (1967), F.2d 1231 underlying 131 404 is much as that rationale the same denied, U.S. 390 20 cert. occurrence decisions such an does (1968). 286 L.Ed.2d ground adequate if for a mistrial constitute cautionary given. See United instruction Dardi, Gasch, Cir.), (2d U.S.App. 330 F.2d 332-333 26. Jones v. 131 denied, 1238, citing S.Ct. Blumen cert. D.C. at (8th (1964); Crosby, United States field v. United Cir. L.Ed.2d denied, denied, (2d 1961), 1960), Cir. cert. сert. U.S. S.Ct. S.Ct. See also United States v. U.S. L.Ed.2d Daddano, 1970), also Schliefer v. United denied, Cir.), (3d cert. S.Ct. F. 368 Wood v. Unit- L.Ed. 1218 L.Ed.2d 645 impartial jury completely was moved the judge and hold fair in a camera the unobtainable, assertion, more, without hearing at which Heidi Fletcher was to in itself a sufficient “not constitute plea guilty. Quite does a of enter properly, the showing As prejudice.”27 of we later con- of this was motion upon denial bottomed clude, jury ultimately ap- selected for atmosphere need for an openness of by was the publici- untainted pellants’ an accused when waives or her constitu- appellants complain.28 of which now ty right to a trial. The rejection tional second request on Timm’s occurred made orally by Additionally, reject appellants’ we claim appointed counsel for similar treatment for erroneously the trial judge omitted to hearing on suppress a motion to identifi- steps spread to restrict the of informa- take judge evidence. opted cation for a They argue about the case. light in proceeding opposition non-secret of judge should have more of the plead- sealed Timm’s retained counsel from as well as the ings, held in proceedings more camera and lawyers of Caldwell’s adopt refusal any prosecution’s press restricted state- at all. In position spite the disunity under in vogue ments rules in the District among attorneys, defense never- contend, Court.29 precautions, they Such representatives admonished media theless have mitigated negative would effects publish or photographs not to sketches attendant publicity, many because news appellants just prior selection of the jury. were from accounts constructed what re- glean records, could porters open from We by discern no error the trial courtroom observation and the questioning instituting judge in not further restriction anyone who would consent to be inter- press by government disclosures to the viewed. Appellants complain do personnel. of news points On none of these do we find containing accounts remarks attributed to Again, appellants error. reversible did However, governmental sources.32 right avail themselves of their might point move30 categorically out that whatever the kinds for of orders which they now publicity may adverse have arisen from essential; were contend and in the only two strategy opinion known Government or requests instances which for in camera materially have could been lessened denied,31 proceedings were the judge’s ac timely requests sealing of pleadings for the were a tions reasonable exercise of discre scheduling non-public argum occasion, On the tion. first Timm point alone might ents.33 We also to the record Estes v. 27. proceedings Several were held in 31. camera. 1964), cite, example, Fletcher’s motion Heidi (1965), citing Beck v. status, concerning August her bail held Washington, 1971, and Timm’s to have Ms. motion Fletcher L.Ed.2d trial, testify February return to heard on 11(B), See Part infra. Local Free 29. Dist.Ct.D.C. Rule Press— Typical complaint of the remarks under referring role of the trial Fair Trial— description by a District Columbia De- pertinent part provides: court—in partment spokesman of Corrections of a sui- widely publicized sensational civil attempt by custody. cide while in case, court, on or criminal motion of motion, party may or on its issue either special prime prosecution example position A governing order such matters as ex- appearing press pros- in the accounts of are parties trajudicial statements witness- faking ecution’s belief that in- likely rights es to interfere with the sanity. extrapolated viewpoint was This impartial jury, accused to a fair trial arguments presented open plead- court matter which the other ings filed with the court normal course of may appropriate for inclusion in Court deem litigation. (emphasis original) It will be that the an order recalled such sequestered, throughout former rule is identical Rule This then as it was the tri- time of trial. was in effect at the which al. 3, supra. See note which counsel does more than reflect physi on their one of Caldwell’s disclosure participation statements cal in the crimes on extrajudicial trial.37 a series made publicity critical ad- The which we are drew a kind asked to one of press, court; easily distinguished in the surely, prejudicial hold from the from monition prosecutor when a actively in view of that created and facts of these context preview press have of the judge should seeks contest the trial that urging by insanity.38 Not even inadvertently information over release of the “restricted complain done here. One who seeks to position to was that have counsel,”34 is in no he responsi- court set aside a criminal part he is in a federal convic which publicity of showing “the burden of tion has essential ble.35 . . not as a matter unfairness of there is a crucial importantly, More but as demonstrable speculation claims plagues appellants’ weakness reality.”39 pub handling pretrial of to the as error of was insani only defense Appellants’ licity. Dire Examination B. The Voir Thus the re innocence. factual not ty, appellants place issues which the before showing prejudice from of quirement concerning the selection of the trial jury of became in turn us complained publicity necessarily flow into their basic contention demonstrating impairment of requirement prejudiced by were they publici- undue willingness potential of that ability of the principle are advertent insanity ty. the We that impartial on to remain jurors must procedures provide to dire “a full entirely failed voir issue, appellants this and expose descriptions opportunity prej- and fair to bias or of their Throughout all do. part veniremen,”40 of pretrial press udice on the the and of protestations nothing “[preservation of speak opportunity of the coverage,36 appellants Attorney Appellant sanity at 57. Brief of District the lack of 34. of the defendant, upon possi- with editorial attack the Reynolds v. United 35. See bility legal loophole of a the defense of denied, Cir.), (5th 350 U.S. cert. insanity would free killer the mad to strike 100 L.Ed. 801 again.” Id. Fouquette, Judge Similarly, in the Chief of repeat sequestered for that the was stay ordered a of execution Ninth Circuit the duration of the trial. the conviction, finding probable following a murder precluded prejudice had that local a fair cause perpetrators That were the of the instance, pretrial publicity the In this trial. being disputed tried never at crimes point press improper interviews both the included Moreover, they in the case. admitted Attorney judge the who was later District reported “most of details were [the] brief prosecutor try described the case. The accuracy. . of reasonable . Brief length he framed a second confession he “how position Appellant Caldwell 53. This Fouquette to rebut his defense pursuant obtained insanity.” adopted reference in Timm’s brief part, 99. For his 28(i). 198 F.2d at Fed.R.App.P. expounded judge county in the same trial See, g., upon States ex rel. Bloeth v. newspaper e. “how under the Nevada law Denno, (2d banc), en ‘citizenry’ exposed F.2d 364 Cir. well could be 83 S.Ct. danger Fouquette acquitted 372 U.S. if were to future Bernard, Fouquette v. 198 F.2d 96 insanity.” ground say Id. We hasten to Bloeth, 1952). accused was was no such behavior in that there the case at suspected of an alarm commission for his tried ing bar. York in a suburban New series of murders McCann, ex See Adams United States rel. Appeals county. The Second Circuit Court 236, 242, 317 U.S. L.Ed. upon trial based case for a new remanded Washington, (1942). See also Beck su- denigrаting prosecution “from the conduct pra predisposing defense and so 98; Darcy ex rel. United States L.Ed.2d reject jurors F.2d at it.” 313 prospective Handy, court, Further, opinions “[t]he said moreover, case, based not formed Robinson, issue, 40. United but on solely of the crime at on accounts expressions of the disbelief . appellate' guarantee de- review of bias is a voir dire actual issues. prove “Pur- jury.”41 24(a), impartial Fed.R.Crim.P., to Rule right suant fendant’s judge is vested with ‘broad discretion’ the trial argue first Appellants conduct of voir dire —both as to the vigorously probing more erred in judge mode and manner of proceeding,”44 and we their jurors potential responses so too said that does this discretion extend coverage of the robberies press exposure range questions put to “the to prospec- Furthermore, they offenses. related jurors.”45 Appellants tive have not demon- upon erroneously relied say, the trial judge strated that abused her dis- cer impartiality assurances personal a showing that, Absent cretion. only cursory after veniremen tain of rights were their substantially preju- questioning. diced, we leave undisturbed the conduct of voir dire examination.46 record, the the we are satisfied Scrutinizing complain- basis for have no Caldwell and Timm also challenge inadequate dire examination. voir ing of an judge’s trial reliance on the the personal attorneys appel- for either no time At did potential jurors claims of two they procedure, objection an lant tender impartial could render fair and verdict on briefly to discuss their conten- pause we but to the evidence be adduced. Both of these plain Their find error. tions and decline to individuals, they argue, should have been opportunity full to granted counsel were for cause.47 Undoubtedly stricken there are po- questions for each their own propound upon which further occasions questioning is ques- the juror, and substance of tential permit needed to the trial court to make its put by defense counsel were suggested tions juror’s judgment own impartiality judge.42 to objective facts, based rather than rely Moreover, exclusively jurors’ v. ing States Robinson43 on the subjective in United de scope position on the terminations whether they made clear our were preju- States, 162, (1931); 171— 339 U.S. 75 L.Ed. 1054 41. Dennis United States v. Peter 519, 523, (1950). 172, 219, son, U.S.App.D.C. 224, 734 94 L.Ed. 70 157 1222, 483 F.2d denied, 1227, 1007, cert. 414 367, U.S. 94 S.Ct. individually by juror questioned Each (1973); 244 Brown v. States, United presence judge, of the other out of 203, U.S.App.D.C. 204, 205, 119 543, 338 F.2d jurors, was an af prospective whenever there 544, (1964); States, 545 Frasier v. United 267 question he or whether answer to the firmative she, 62, (1st 1959); 66 Cir. Yarborough F.2d v. Unit heard, anything about the seen or read States, 56, (4th 230 Cir.), ed F.2d 63 cert. de procedure specifically approved this case. 969, nied, 1034, 351 U.S. 76 S.Ct. 100 L.Ed. Bryant, U.S.App.D.C. States v. 153 in United (1956); States, Stone v. United 324 F.2d denied, 77, 1040, 1045, 72, cert. 471 F.2d 804, (5th 1963), denied, Cir. cert. 376 U.S. 1112, 923, (1973). 34 L.Ed.2d 693 U.S. 93 S.Ct. 938, 793, 11 84 S.Ct. (1964); L.Ed.2d 659 Alver Project on American Bar Association See also States, 435, ez v. United (9th Justice, Stan for Criminal Standards Minimum 1960). Cir. Press, Relating Trial and Free to Fair dards 1968). 3.4(a) (Approved Draft § Robinson, 46. See United States v. supra note 40, Supra U.S.App.D.C. 269, note 380; 475 F.2d at Yarborough States, supra v. United note Robinson, supra note v. 44. United States 63; States, 230 F.2d at Haslam v. United U.S.App.D.C. at 475 F.2d at 380. See 1970), F.2d 362 rehearing, aff’d on supra Bryant, also denied, cert. 402 U.S. 91 S.Ct. U.S.App.D.C. Unit 471 F.2d at 1044. Cf. 29 L.Ed.2d 142 Anderson, U.S.App.D.C. ed 400, (1974), jurisdiction 47. The law in this jurors is that 95 S.Ct. L.Ed.2d be must excused cause if experience their Robinson, or their close relatives is such as United States v. probability indicate the U.S.App.D.C. partiality. 475 F.2d at 380. See States, Carolina, 524, 528, Simms United South Ham v. also (1968); Aldridge Jackson v. United 395 F.2d 615 reveals us other cases in similar before claims are the record But diced.48 beyond made, well bare prescribed proceeded Supreme Court has judge no in fail- error and committed applicable test: formalities persons the two either of to eliminate ing . . required is not It complaint.49 subject appellants’ now ignorant totally of the facts and jurors be swift, days determination involved. these perfunctory issues of a Instead serve, asked and diverse methods com- widespread eligibility their of the on the basis munication, important case can ex- followup questions50 expo- their evaluated further given public pected answers to arouse interest their as well as publicity pretrial scarcely any sure of those vicinity, ap- each insanity defense attitudes jurors will not qualified best to serve as Appellants did contemplated. pellant opinion or impression have formed some challenged of the first seating object to the as the merits of the case. This is successfully prevented venireman, they particularly true criminal To cases. by use of serving second the mere any pre- hold that existence of challenge. preemptory guilt conceived notion innocence accused, more, without citi- of an sufficient competence of a forget, Lest we presumption a prospective measured rebut juries is to be to sit on zen juror’s impartiality this and would be to For establish standard. by a common-sense any impression anything you from rather than v. United See Silverthorne seen, 1968), read, or heard? have Yes, JUROR: Your I POTENTIAL Honor. obtaining through “[M]erely going the of form I would. think impartiality you defendant, is insuffi jurors’ оf a assurances If were THE COURT: States, supra, you you juror? Silverthorne cient.” want as a would 638; ex rel. see also United States why JUROR: I see no I POTENTIAL reason Denno, Bloethe v. wouldn’t. colloquy following The ensued between the second and the individual: court complaint prospective a involves first 49. The you you Would tell us THE how COURT: response juror came to the bench who that, your you is that it what reason feel mean any question them judge’s how much of as to proper a is not defense? offending re- the about robberies. knew Well, they I JUROR: don’t feel POTENTIAL mark, “they according appellants, to was that insanity, plea behind a of Your should hide brought Fletcher in.” Honor. juror Later, approached potential a second Suppose they proven are THE COURT: fully judge’s the to answer more the bench query competent testimony psychiatrists and wit- of anyone in- to believed that as whether they suffering are were from or nesses sanity a to be defense to should be held a suffering a or defect which from mental disease Appellants charac- and violent crime. serious thing— do caused them to the statement, juror’s prejudicial terize Then I JUROR: would have to POTENTIAL they “[wjell, feel should hide behind I don’t insanity, findings. those abide plea Honor.” Your you you Do feel THE would COURT: way? in that to find jurors, hesitant potential first of the two With the they JUROR: if POTENTIAL Not were questions following evolved: proved be insane. to Well, any opin- you did form COURT: THE you I tell would like to that the THE COURT: reading as a defendants result to these ion as establish, by upon the a is defense to burden Fletcher? Heidi about evidence, preponderance defend- No, I didn’t—I because POTENTIAL JUROR: suffering a mental disease or are from ants paid her I to reason more attention think defect. being in the here of her father was because you Would be able to follow instructions District, defendants I didn’t the other two regard you you that or any to would feel that paid anything I about it and never know basically prejudiced plea? on that would be to case. attention I JUROR: I feel would be able you POTENTIAL on the were selected If THE COURT: case, through with the instructions. you to follow jury to determine the be able would well, Very you defendants, may resume based THE guilt COURT: or innocence of your produced solely case seat. evidence is if impossible standard. It sufficient facts, an On its own we are in lay impression aside or juror can distinguish clined to this case from claims a based on the and render verdict opinion prejudice arising jurors who are presented in court.51 evidence type former victims the same of crime objections being juror a apрellants’ who study careful himself was Our tried,55 persuades us light closely person of the record associated with a who has the test was here satisfacto- conclusion harmed under been the same circumstances rily met. as the victim involved in the case on trial.56 questioned As veniremen in the also have us find re-

Appellants would case, present we observe judge’s that none was error in the trial failure to versible police to a strike, sponte, for cause an entire related officer who sua class had been murdered, prospective jurors policemen’s juror relatives. and no who served is — urge judge They duty that the was under a shown have been a victim of or a witness potential jurors two who at to eliminate offense for which were closely time related District that, indicted. We hold specific absent a police Alternatively, Columbia bias, showing of a defendant accused of officers.52 should have allot- they insist murdering police officer not entitled to challenges preemptory ted them additional policemen’s jury free of relatives.57 used replace three which were to strike per- law enforcement others known have III. PRETRIAL COMPETENCY DE- within sonnel their families. TERMINATION OF CALDWELL jurisdictions, the law is In several estab- urges reversal his conviction membership lished that mere fact of “[t]he ground of on the inquiry insufficient into police is not presumptively on a force competence his mental to continue to disqualification service in a stand apparent after premise attempt Logically, criminal to commit trial.”53 Coupled extends more so to service in a therewith is his claim suicide.58 significant criminal trial by persons merely who are such a development ren- of law findings relatives enforcement officers.54 competence dered invalid of made 717, Dowd, 722-723, 51. Irwin v. 366 81 g., States, U.S. supra 56. See e. Jackson v. United 1639, 1642-1643, (1961). S.Ct. 6 L.Ed.2d 751 47. note 52. These individuals included one whose father may demand, 57. A defendant not as a matter of officer, police had a District of been Columbia peremptory challenges right, additional once whose son-in-law at that a another was time original expended. allotment has his been This addition, policeman. of District Columbia certainly within is most the discretion of the of the alternates had in both one sons the Los States, judge. supra See Dennis v. United trial police Angeles depart- and District of Columbia 41, 168, 171-172, 519, at note 339 U.S. 70 S.Ct. ments. appeal We will 94 L.Ed. 734. not disturb on grant judge’s decision not to States, 719, additional 53. v. 724 Mikus United 433 F.2d where, here, challenges LePera, (2d 1970); showing there is no v. United States 810, denied, of actual bias. Cf. United States (9th Cir.), LePera, F.2d 958, cert. U.S. v. 326, 53, supra 92 S.Ct. 30 L.Ed.2d 275 Cav note 443 F.2d at States, ness v. United denied, Cir.), ‍​​​​‌​‌​​‌​‌‌​​​​​​‌‌‌​‌​​​‌‌​​‌‌​​‌‌‌‌‌‌‌‌​​‌‌‌‍341 U.S. cert. S.Ct. 58. On March while trial was in (1951). 95 L.Ed. 1374 See also United States v. progress, jail Caldwell was discovered Wood, 140 n. 57 S.Ct. nonresponsive guard in a state with cuts on L.Ed. 78 arms. was both He examined and treated at a hospital a doctor and a nurse. At the re- 53; States, supra 54. See Mikus v. United note counsel, quest of Caldwell’s the court held a LePera, supra States United v. note 53. competency hearing following day. on the See, g., rel. v. e. United States ex DeVita McCorkle, (3d Cir.), 248 F.2d 1 cert. U.S. challenges harm attempt also to himself hearing.59 seriously He rendered earlier

at an testimony upon lay incompetent63 him reliance to further judge’s participate the trial the conclusion support trial, to hearings ongoing not whether he was in- at competent. was in the mental- competent that Caldwell sense he was ly incapable committing crime at issue every case wherein the As in time the offense on trial The occurred.64 arises, principle fast hold course, latter, of is the to be insanity issue person while of an accused conviction “the at might determined trial. While one ar- proc incompetent violates due legally ishe does, gue, that attempting as Caldwell competency hear purpose ess.” destroy signifies oneself deterioration “whether the accused ing is to determine health, mental one’s alone does na to understand the mentally competent necessarily mean accused is no him charges against ture of the longer sufficiently cognizant his role Competence to in his defense.”61 assist the trial able to satisfactorily perform present “sufficient abil requires stand competency hearings, it.65 In the limitation with a reason lawyer with his to consult ity expansion scope of testimony understanding degree rational able —and qualifications participating witnesses as well as factual rational squarely judge’s lie within the trial discre- against understanding proceedings While proceeding tion.66 need not be contention suffers be Caldwell’s him.”62 involved, lengthy or “as a minimum we misinterprets precisely he what cause inquiry think the must be of record and hearings. his competency at issue both parties given both must be opportunity testify,”67 all Retracing arguments, examine witnesses who explored competence the second decision on must have to be only matter hearing apparent support whether Caldwell’s rational evidence.68 States, proceeding supra De- That been conducted on United note 2, 1971, prior of tri- commencement cember 254 F.2d at 729-730. See also Hans- States, al. supra (memory ford abilities must not be substan- and intellectual Robinson, Pate v. Womack, impaired); tially United citing (1966), Bishop v. (D.D.C.1962) (competence F.Supp. 578 indi- States, ability give instructions business cated L.Ed. plans). or to make associates Lyles United 1957), (en banc Lyles 64. See denied, 961, 997, 2 L.Ed.2d 78 S.Ct. 26-27, U.S.App.D.C. F.2d at 729- at 254 103 (1958). This is codified D.C. standard 1067 730. 24-301(a) (1973). If circumstances § Code generating as to ac a substantial doubt the States, supra Compare 65. Hansford v. United competence the of come to attention cused’s States, 61; 61; Lyles supra note note v. United court, hearing must held. a suitable the Womack, supra v. States note 63. Robinson, 60, supra 383 at v. note U.S. Pate 385-386, 836; v. United Grennett 86 S.Ct. Pickett, U.S.App.D.C. v. 152 United States 206, 202, States, U.S.App.D.C. F.2d 403 131 349, 1255, 346, (1972); 470 1258 Wash- F.2d States, 928, (1968); v. United 124 932 Hansford States, 54, U.S.App.D.C. ington United 136 v. 387, 391-392, 920, U.S.App.D.C. 365 F.2d 924- 636, (1969). 56, 638 419 F.2d (1966). 925 402, Dusky States, U.S. v. United 80 States, supra 67. Hansford v. United note (1960). Pouncey S.Ct. U.S.App.D.C. 390 n. 365 F.2d at 923 n. States, v. United F.2d Robinson, supra v. 68. Pate note 383 U.S. at defense,” phrase in his we The “to assist 836; Kent United legal questions “does not refer to said have 378, 388-389, phases 343 F.2d as a to such of a defense but involved (1964), grounds, usually rev’d on other assists such as accounts of defendant facts, witnesses, etc.,” Lyles of names the untary resolving issue of

In Cald behavior which would indicate competence hearing, the second whether Caldwell’s well’s condition met the crite- judge fully complied trial these ria for a finding competence. with ex- Upon judge testimony, record, The heard requirements. plain amination of the is it cross-examination, subjected to lay testimony substance of was supportive attempt, who and guard discovered awareness jail things of Caldwell’s around and, well, who doctor nurse treated his ability from the him to communicate al judge’s sum, decision not to with others. In Caldwell.69 the evidence was original finding only proce merely contradicted, was not ter and the judge found correct,70 amply also based on durally but persuasive. the Government’s evidence more an A decision as to whether the evidence.71 is competent accused stand trial IV. ON RESTRICTIONS PRESENTA-

finding may of fact not be set aside OF TION EVIDENCE appellate clearly unless it is arbit on review appellants Since only offered the defense erroneous,73 certainly we rary72 insanity, complaints their concerning the it say cannot was either.74 conduct of the trial focus upon importantly reasoning us to con- Much same leads judge’s regulation the trial of the content judge’s handling of the clude that the trial expert testimony subject. Both was original competency hearing without contend that their efforts both taking lay error. course prove lack of criminal responsibility testimony, judge sought to fer- expert their acts were frustrated certain of the rudimentary patterns those of vol- judge’s ret out evidentiary rulings. Although 58, supra. jail. 69. See government well The final witness Strawinsky, Dr. Elizabeth was who concluded hearing inadequate deems be- Caldwell basis of on the Caldwell’s medical records and cause, alia, inter the trial failed to order capable him he conversations with was examinations, sponte, mental sua further communicating with if others he chose do ignored allegedly defense counsel’s statement so. appel- that he unable communicate with reject arguments. We these lant. Gray, 72. See United States v. urge basis has no reasonable plaints such com- (5th 1970); Feguer Cir. appeal because all witnesses who (8th Cir.), specifically requested by testified were Cald- L.Ed.2d indeed, they only persons well’s counsel — appearances whose were demanded —and the Stone, explicit 73. See United States v. judge’s offer to call others de- (5th 1973). Moreover, Cir. uncooperativeness See also United States v. clined. Schaffer, prove inability 1970). one’s counsel does alone to communicate. discern no error judge’s expand inquiry any failure to fur- mainly propri 74. What Caldwell contests is the motion; ther on her own neither do see acceptance ety lay court’s testimo specific given error absence reasons ny long offered Government. It has for her decision. layman may the law in this circuit that been See, testify “insanity.” g., as to e. represented counsel 71. Caldwell’s that Cald- Pickett, U.S.App. and, well was since arrest had been a trance- at F.2d at D.C. 470 1257 Tatum v. state, eat, perform unable like to talk or basic 386, 390, U.S.App.D.C. 88 for himself. The tasks competency hearing facts adduced at the Wigmore, F.2d See also J. quite oppo- indicated 1940) (3d 1938 at 36 — 46 § Evidence ed. and witnesses, Government site. The called three “They may testify cited cases therein. as to inmate, whom was an Prince A. one of Sham may express own their observations and then non, helped had who care for Caldwell in the opinion upon an based those observations.” infirmary. jail’s during Shannon stated U.S.App.D.C. v. Carter United food, alleged trance Caldwell ate solid stole perceive others, himself, F.2d We helped no from bathed fel- food a excluding lay read, testimony reason for sound from low inmate to learn and wrote a letter hearings inquiring competence pass into which he asked Shannon on to to stand and note Pickett, testimony jail. supra See outside the Similar was trial. 66, United States v. friends given note by registered U.S.App.D.C. nurse who observed Cald- 470 F.2d at 1258. argument is erroneous Caldwell’s error, prejudicial no we discuss thé we find only than one reason. The matter for more arguments seriatum. request the court at time of his before competent to stand he was whether is satisfied the trial court When trial. Insanity Defense: Caldwell A. The with competence can resolve the issue it cannot con appointments, additional out alleged prejudice The first instance of as a denial to do so the failure strue insanity de- presentation Caldwell’s defense a substantive assistance expert began prior to commencement of the fense distinction emphasize the insanity.79 We during and culminated trial cross-examina- to aid psychiatrists appointment between tion of his witnesses. The court enlisted insanity defense and anof presentation experts pre- the aid of various to make a court in to assist the appointment such an determination of compe- trial Caldwell’s to stand trial. competence determining tence to stand trial. gist prob- The prior in a case: distinction stressed is that the pre- lem denied Caldwell’s for an motion additional examination ap and nature of purpose The [an] particular psychiatrist,75 Dr. Leonardo the Criminal Justice pointment [under Maguigad, pos- C. whom Caldwell believed entirely different from an ex is Act80] “unique” knowledge76 sessed of his condi- by an order of conducted amination Maguigad tion. Dr. admitting psy- was the is conducted to serve The latter court. when, arrest, following chiatrist Caldwell completely nonpartisan court Hospital,77 was taken to Saint Elizabeths an opinions While the such manner. points anomaly Caldwell to the created one side or the other in may assist expert when the Government sought impeach case, primary purpose for this is not the psychiatrist another who at trial took the expert appointment. The expert’s behalf,78 witness stand on his by highlight- Act], however, is under appointed [the ing the fact that he had not examined Cald- primarily an aid to originally well until months after commission of the court, rather is intended serve but argues damage offenses. Caldwell of the defendant.81 interest credibility of his witness and his de- as a fense whole would not have material- requested dispute

ized appointment pertinent Equally been made. never informed the the fact that Caldwell indigent See Unit- provide also defendants in criminal cases § 18 U.S.C. 75. See Chavis, U.S.App.D.C. expert representation ed States service. It is with rehearing after rev’d on comprehends within its defi the Act clear that remand, U.S.App.D.C. F.2d 1290 ‘expert the assistance of a services’ nition of preparing presenting expert psychiatric Chavis, insanity defense.” United States Appellant at 89. Brief of supra Taylor, shortly See also United States v. hospitalized there after F.2d at 77. Caldwell 1971); arrest, May (4th to June Cir. United States Theriault, (5th 715-716 Cir. Whyte. expert Dr. Alec referred to is 1971), at notes 85-98. text infra (1973); United States v. Schultz, 1970). generous appointment in its 79. The court prepara- experts to aid Caldwell several Chavis, defense. 81. United of his 1Mi- 476 F.2d at 1964, Pub.L. No. Justice Act of Criminal (footnote omitted). ll 42 amended, (1964), as 78 Stat. “designed (1970), legislation to 3006A § U.S.C. judge precisely what constituted the because Caldwell did not seek to have him “unique” in knowledge which he was so there.84

interested. judge While a would normally

choose to appoint impartial conten- psychiatrists foregoing to Quite from the apart itself, render service to the court the the additional judge tion, sets forth Caldwell be one expected appoint cannot to is of a who in violation prosecution, the claim that defendant, after sought by particularly order,85 statements withheld discovery specific cross- showing why without no used them to subsequently other made and perform expert, can adequately. only the Whyte, Dr. Alec examine appointed the court

among several whom Timm, for who support testified at trial in considerations, Beyond these there is an- major his More specifically, other flaw in current ar- defense. Caldwell’s gument. that, complaint The is because Dr. the Government confronted Dr. Whyte Maguigad appointed additionally was not as by a letter a note written Caldwell examining an psychiatrist purposes for in allegedly unresponsive while he was an determination, competency the Caldwell jail. state in The uncommunicative Maguigad’s suffered from lack of Dr. object of the cross-examination was to con- testimony reasoning at the trial. This sim- Whyte’s tradict Dr. opinion by showing scrutiny. ply does not withstand On the correspondence plea by that the was a Cald- hand, one psychiatrist’s service at the well for drugs, to friends to be in consumed stage pretrial was no assurance further attempt feign mental illness.86 The at the other stage. service trial On given letter and were prosecu- hand, earlier, despite nonappointment inmate, Shannon, another and were psychiatrist appointable and callable at eventually through introduced into evidence words, availability trial.82 In other as a testimony during Shannon’s rebuttal.87 defense witness in no way task if we simpler Our would dependent upon in prior participation had us a complaint involving before materi aught appears,83 case. From Dr. Ma-' ordinarily al under the Federal discoverable guigad was simply absent the trial Chavis, all or recorded written statements [including] . . made defendants at 1292. po- made to than statements witnesses other any lice officers time defendants trial, during custody ; The record at a reveals . all . . . . docu- hearing presence jury, during investigation outside the Dr. obtained ments may admitted, questioning by as herein Maguigad this case be used evidence under Cald- ; papers . . counsel, . doc- [or] . . he had seen Caldwell for well’s prosecuting . . at- uments torney which during only process ten minutes of admit- hearing intends to in a or trial or use Hospital. ting Elizabeths This him Saint belong from or were obtained during attempt occurred revelation Caldwell’s accused. Maguigad, to Timm, Dr. then a witness for show testify knowledge to lacked sufficient alleged letter, Timm. influence on This Caldwell’s group In the written ato of his friends curious Virginia, evidence leaves Caldwell’s contentions Caldwell stated: indeed. spite appearances I am well of outward ‘Lysergics’ I . need about I ten so can pass my flying head test with colors. A might Maguigad 84. We add that even if Dr. you per- will woman call and ask for ‘Vic’s testified, unquestionably you’ll scription’ Government re- know her [sic] use right tained to cross-examine all other wit- . Ask that name .. let Charlie to me going nesses know when the Caldwell. test to occur. note, passed sixteen-year old inmate in infirmary jail relayed the mate, to be in- another November, 1971, asking get showed In ordered “them to the trial trips to 10 LSD pretrial discovery speci- me.” in accordance with per- fications of Caldwell’s written motion. part, 86, supra. tinent the order covered 87. See note 1352 persons investiga- third which a thorough Rules,88 confession,89 a such as Criminal Furthermore, happens tion to uncover. the testimony,90 grand jury or a

defendant’s reminds, the papers question in Government incriminating summary of his conversation part prove as of effort were not used its agent91 But what we governmental with a culpability, criminal but were Caldwell’s upon are called to decide whether Cald-. impeachment defense potential held for production personal entitled well was insanity on the witnesses issue.93 the correspondence not addressed We the posi find Government’s or its intended for view. Government reject unacceptable. The courts have question must turn The decision on this arguments “statements” dis ed whether letter and note upon Caldwell’s 16(a) only under Rule are those coverablе type contemplat were “statements” of the that, governmental agents,94 made to and by 16(a),92 ed Criminal Rule and as such think, is as it should be. The rule provi the terms of that discoverable under unqualifiedly requires production The contends that sion. Government recorded or confes “written or statements 16(a) of Rule language evinces focus on defendant, by copies or sions made direct communications between accused possession, custody thereof within or Government, upon government ,”95 not and the those of the . . control entirety, 16(a) F.Supp. (S.D.N.Y.1967) (defendant’s In its Rule reads: 834 state- may postal inspectors). Upon ment to motion of a defendant court government attorney for the order copy inspect permit or 88, defendant supra. 92. See note any (1) photograph or re- relevant written by or confessions made statements corded agree dissenting cannot col our thereof, defendant, copies within the the possession, or league that Caldwell’s letter and note were not custody govern- or control meaning 16(a). within the “relevant” of Rule known, ment, of which is or the existence applied damaging As to the accused’s own may diligence become of due the exercise known, statements, requirement relevance obviously attorney government, for the to the superfluous “seems view of the physical (2) examinations, reports or or mental results importance sought.” vital of the material 8 J. exper- tests and of scientific or Moore, (2d Practice Federal at 16-32 16.05 [1] fl particu- made in with the iments connection 1965). Xydas ed. See also 144 case, thereof, copies posses- or within the lar sion, custody 9, 660, 188-189 n. government, or control denied, cert. 664-665 n. 404 U.S. known, which is or the existence of (1971); Wright, S.Ct. 30 L.Ed.2d 1 C. known, may diligence of due become exercise (1969). Federal Practice fact §§ 251-53 attorney (3) government, for the impeachment that the materials were used testimony of the defendant before recorded not rebuttal does make them the less jury. grand statements, relevant. Caldwell’s context Addonizio, generally States v. See United defense, of his were no means “tan denied, (3d 1971), Cir. cert. F.2d 49 “ matters,” gential” point’ but (1972). ‘beside L.Ed.2d 812 to a confession of mental tantamount also, g., supra. e. See note See United soundness. Aadal, (2d Cir.), v. 407 F.2d 381 cert. States denied, 395 U.S. 16(a) encompasses 94. Rule “re the accused’s well as corded” as “written” statements Note, supra. generally, See 90. See possession, supra, see note Government’s Discovery by a Grand-Jury Testimony, 68 Colum.L.Rev. 311 Criminal Defendant His Own the ac and recordеd conversations between persons governmental other cused and than agents are within the United States v. rule. Crisona, 1969), (2d 114-115 Cir. only duty affects 91. “The disclosure 991, 25 whole, prosecutor, but the Government Davis v. United L.Ed.2d agencies.” including investigative United its (5th 1969); F.2d Cir. Bryant, States 1969); Isa, also, g., e. Unit Black, (D.D. F.Supp. United States v. F.Supp. (S.D. Rosenberg, ed States C.1968). N.Y.1969) (transcripts of conversations with official on occasions Revenue Service Internal bribes); supra. Mosely, alleged 95. See note nonproduction response to in this lan- in we are unable detect to and the court’s sug- the order. the limitation Government guage believe, too, acceptance that

gests. Insanity B. The Defense: Timm it just says what is dictat- language for the ed the by the fundamental accused equal access to fairness of his own granting words, turn, ^[25] Timm utilized testimony by a clinical Presenting his defense in the by how Government came no matter psychologist, Dr. Carl Bauer.99 the wit- On is well illustrated the point by them.96 ness stand Dr. Bauer set forth his observa- case, writing by a instant wherein coherent tions of Timm’s mental condition de- as the the from upon battery could have had duced a of psychological Caldwell tests by effect of a written confession of mental administered him. net an effort to fore- objection stall to a part This case also crucial soundness. demonstrates the testi- mony, Timm’s counsel proffered the attempted Government’s distinc- at the bench that if asked whether Timm impeachment between and could substantive his behavior control on the dates of the two is of discoverable material untenable. uses robberies, Dr. Bauer would answer in the production order the court’s referred Since negative. According to witness, the clearly . specifically “all written partly due extreme dependency defendants,”97 made the statements needs which rendered Timm easily suscepti- and note violat- letter nonproduction ble the influence and leadership oth- terms. ed its thereupon Counsel ers. sought ruling a as to whether Dr. Bauer Still, would be permitted we must determine whether express opinion of the corre Caldwell’s influ- use Government made Timm, ence over in the context of the lat- prejudicial, for if not spondence illness, mental ter’s led to his participation Caldwell’s nonproduction cannot affect in on the offenses trial.100 The issue as pictures himself conviction.98 Caldwell is hand whether trial judge, light alleged by the of a mid-trial ambush victim objections from counsel both for Caldwell abrupt to the letter note ly reference Government committed reversible cross-examination, during Dr. but Whyte’s in sustаining error objection to that surprise negated claim testimony. Caldwell’s counsel was on already record. of the existence of these notice communica starting point Our is our decision in Jen- tions much-earlier reference to them States,101 kins United held we pretrial competency hearing. at the Nei then nor later did request

ther determination of psychologist’s [t]he materials, inspect copy leave to or de competence to render expert opinion potential their spite for further use findings his presence based as circumstances, In these Government. or absence of mental disease or defect prejudice see no to Caldwell from their depend upon must the nature and extent 99. Dr. See Loux v. Bauer, United F.2d time, at the awas member of the denied, Cir.), cert. 393 U.S. Hospital. of Saint staff Elizabeths He saw See also United eight Timm to twelve times administered Bryant, supra U.S.App. commonly-known Rorschach, such tests as the D.C. at 649. handwriting graphology addition test. expert qualifications psycholo- His clinical 85, supra. See note gist challenged by were not the Government. Crisona, Compare States v. 100. This effort is related also another issue 115; 416 F.2d at appeal. V, Part infra. Hauff, (7th Cir.), cert. denied, 101. (en Hansen United 307 F.2d 637 (8th Cir.), 1962). banc L.Ed.2d depend support testimony for the in question.105 It does knowledge. his “psychologist.” title Without some basis exclud upon claim other sound determination, hearing, after ing testimony, And it would have been error to the tradition- in each case Jenkins “disregarded must left for the to have subject to the trial court al discretion hearing into an into inquiry and turned . . When com- appellate review. any psychologist’s competence to in make training is followed [graduate] pletion formed observations about without [Timm] treatment and experience by actual training.”106 medical in association diagnosis disease neurologists, opinion the an record, or From psychiatrists examination of the re- may properly be psychologist however, the adequate we discern support for in evidence.102 judge’s ruling. ceived Phrased simply, most already had Dr. Bauer testified to the outer argues that Basically, Timm judge’s factual for any limit of the basis he opinion testi- sought-after prohibit decision might express. He could not analysis properly have an upon based not mony “was beyond by permitted proceed pa been as directed qualifications,” particular his Jenkins, ques- actually such of what a belief that rameters he knew about “but and thus questions’ Nowhere in the ‘psychiatric were Timm.107 record is there to tions by answered suggestion not be any could found that Dr. Bauer had be psychologist.”103 Timm regard examined in his relation ship any with Caldwell. Never was there ruling “arbitrary and erro- Terming the Dr. claim that Bauer had been informed he neous,” prej- contends that was Timm that, fact, point of Timm influenced heart of his defense was because the udiced by jury. rightly by participate Timm someone else to in the crimes heard never nárrowing proffer of the judge’s testi- The at the far charged. criticizes the bench was of a mistaken belief that mony because too to allow the generalized judge to draw expressed only by opinion an could be possessed such the conclusion that the witness only justifica- Were this psychiatrist. such information.108 ap- ruling, such an for offered test admitting expert opin The for been vulnerable have proach would ion whether it will psychologist’s appreciably is aid the finding that of a absence determining fact in inadequate trier of is- factual particular qualifications States, supra United note Jenkins v. vinced that witness taken informa- 102. his (foot- U.S.App.D.C. F.2d at 645 generally, at far as he could. See tion as Jenkins effect, See, omitted). United States, 101; to the same to testify crimination when called That, indeed, 24 crimes. was openly ac- Having behalf. been sentenced on Timm’s knowledged by who represented counsel her plea counts guilty to all of an indict purposes for appearance of her at the trial. robbery,112 May ap the 25 she ment We think that to invoke the privilege it response at the peared subpoe trial in to a not necessary precondition aas to as- Timm, issued who wished to na solicit privilege, sertion of the for Ms. Fletcher to personal observations of his habits and her demonstrate that she would have been during surrounding period the behavior guilt, forced to admit or that incidental When direct examination com offenses. parts her testimony would have sealed a menced, however, she refused to answer Supreme future conviction. As the Court questions Defense whatsoever. counsel has stressed: urged judge the trial to disallow the claim privilege, arguing longer she was no privilege that afforded not only extends any danger of self-incrimination in because to answers would in that sup- themselves plea The Government port sentence. ‍​​​​‌​‌​​‌​‌‌​​​​​​‌‌‌​‌​​​‌‌​​‌‌​​‌‌‌‌‌‌‌‌​​‌‌‌‍a conviction . but likewise explanation countered with the reason embraces those which would furnish a would necessarily able cross-examination link in the chain evidence needed to her pertinently prоbe prosecute whereabouts as claimant .... To days as her on the imme sustain privilege, well observations it need only be evi- diately May preceding holdup 25 of the dent from implication question, Savings Permanent Federal setting asked, National which it is that a branch, surely encompass May responsive would question answer or an 24, the date of the American Savings explanation of itwhy cannot be answered Jackson, United States v. 138 presen- 111. Timm raises other issues related to 143, 145, 574, (1970); Jenkins v. psychiatric testimony tation of in his behalf. States, U.S.App. conveniently are These more discussed in con- 644; D.C. at F.2d at United States v. with the of both nection claim Amaral, 1973). they separate became entitled to trials. See Wigmore, (3d also 7 J. § Evidence ed. V, Part infra. 1940). 10, supra. 112. See note Co., Turner v. American Sec. & Trust 257, 261-262, 53 L.Ed. 788 S.Ct. States, Mason United 244 U.S. 365- Hawfield, (1909); Pollard v. (1917); 37 S.Ct. 61 L.Ed. 1198 374, 376, (1948), accord, Marchetti v. United 390 U.S. 93 L.Ed. 336 U.S. 69 S.Ct. Chessin, (1968); (1949); Rogers District of Columbia 260, 262, App.D.C. 505, 514, aff’d, Carpenter, App.D.C. Raub v. L.Ed. 344 47 L.Ed. 119 unjustifiably will infer that this injurious dis- dangerous because

might be conflict alone demonstrates that both are result.114 could closure guilty.’118 here, say “we cannot circumstances In the incrimination further possibility point regard raised in this con- The first appellant of deprive as to so remote presentation cerns the of Timm’s rights.”115 fifth amendment [her] Timm called as witnesses Dr. Jo- defense. Magui- Rappeport nas and Dr. Leonardo C. OP V. SEVERANCE testify whom gad, expected both of were CO-DEFENDANTS part that Timm’s criminal acts resulted in issue of sever surprisingly, from Caldwell’s influence. The trial Not of both arguments emerges expert specifical- refused to let either refer ance principal three appellants. They outline person responsible to Caldwell as the ly In none do urging reversal. reasons participation for Timm’s supposedly con us to disturb their requiring find error Just as he robberies. characterized not meet simply do Appellants victions. Bauer,119 judge’s ruling respect to Dr. we enunciated standards Timm claim he here too does was de- Robinson,117 movant or testimony. of vital prived appellant analyze steps: the issue in two the fact that co-de- more than must show first, judge improperly whether the trial generally strategies whose

fendants second, testimony,120 restricted antagonistic together. were tried least, judge thereupon must be demonstrat- committed re very it whether At the deciding prejudicial is so versible error to continue the that a conflict ed severing ‘that are irreconcilable and trial without two differences States, provide 341 U.S. United defendants or whatever other relief Hoffman v. 814, 818, ruling by justice requires. 95 L.Ed. 1118 In a 71 S.Ct. on motion Director, accord, may Patuxent McNeil v. for severance the court order defendant 245, 257, Institution, attorney government 92 32 407 U.S. S.Ct. for the to deliver to J.); Kastigar (1972) (Douglas, inspection any L.Ed.2d in camera state- the court 441, 445, States, 92 S.Ct. 406 U.S. or confessions made ments defendants (1972). government 32 L.Ed.2d intends to introduce in which at the trial. evidence States, 468 F.2d 115. Ottomano U.S.App.D.C. 117. 139 432 F.2d 1348 denied, (1st 1972), cert. Cir. (1970). light 35 L.Ed.2d disposition, hold that we cannot this grant Robinson, Ms. Fletcher im failure to 118. United Government’s munity May prosecution for the 21 and from 432 F.2d at withholding exculpatory U.S.App. quoting robberies was Rhone v. United Brady requirements (1966) (other within the material D.C. Maryland, omitted). citation note, vein, in the same We L.Ed.2d right grant general to a no that there was governmental 1V(B), supra. Part 119. See immunity Fletcher to se to Ms. testimony behalf. Earl v. in Timm’s her cure use the word “restricted” because the 120. We literally judge stop did not the effort to (1966), cert. per- influence over Timm to another attribute Rather, judge Rappe- Dr. cautioned son. port to prejudicial joinder sever- Relief impressionable, may indicate that is or [Timm] under measures be obtained or other ance it, subject you put would and however reads: Fed.R.Crim.P. vague of others it that influences and leave appears a defendant or If it they assume that it was the other joinder even if defendant, co-defendant, prejudiced by of of- government is is, that Heidi Fletch- in an indictment or or of defendants fenses thought immaterial but it cannot be joinder er. It’s for trial to- or such information Caldwell, may Mr. least it can’t be gether, order election to be the court counts, grant brought separate out in fashion. a severance trials of influenced unfavorably by questions answer both someone else defendants.121 and have been negative. may influenced to do this on the have, basis one letter that I attempt see an again we Once seems to be there some indication that testimony that has conclusory expert offer type Mr. Caldwell is the person who is court basis.122 This has apparent factual no quite capable of influencing (em- him. psychiatric opinion that a held previously added). phasis must have a factual in evidence offered We are convinced that as a matter of law ques the fundamental Thus predicate.123 there was an insufficient factual basis for expert either actual how much here is tion potential witness’ testimony.125 Of relationship between knew about ly particular importance is the fact that Dr. Rappeport, Timm. As to Dr. Caldwell Rappeport Caldwell, had ever examined upon information which he drew only fact the further that he had personal- never appellants’ relation conclusion about ly Cooper. interviewed experiences Clinical letter, prosecutor written was a ship might of that sort have bolstered measur- Cooper, purporting de Monroe by one ably any conclusions about Caldwell’s effect Cooper had not seen scribe Caldwell.124 significance, on Timm. Of like as the trial many prior months at all for reasoned, is the consideration that robberies, only slight contact the introduction of the letter into evidence encoun year before their last with him for the truth of descriptions contained Timm’s conten Equally damaging to ter. in it —as a foundation for the opin- witness’ words, own at the Rappeport’s are Dr. ion —was forbidden as an admission of hear- bench: say.126 my final conclusions [S]ome my feeling witness, that Mr. Cald- are based on Timm’s second Where Dr. Ma- from the little I capability concerned, guigad, well had deficiency similar know or that have may been Mr. Timm unfolded at trial. He admitted in testimo- upon moving background, The burden rests defend Timm’s social home life and the prejudice demonstrate from the denial of ant to like, ample support professional for his to sever. See United States v. DeSa a motion pio, views. (2d 1970), 999, 2170, denied, 402 U.S. 91 S.Ct. 29 L.Ed.2d psychiatric experts have allowed to 126. We Larosa, (1971); United States v. De 166 450 405 opinions upon reports of others cus- base their tomarily 1057, denied, (3d 1971), 1063 cert. F.2d Cir. on, reports psycholo- such as relied 927, 978, (1972); 30 U.S. L.Ed.2d 800 See, States, gists. g., v. United e. Jenkins su- 930, States, (5th v. United 406 F.2d Tillman pra psychiatric opinion may note 101. But a denied, 830, 2143, Cir.), cert. 89 S.Ct. hearsay predicated on of the kind of- not be Tanner, (1969); United States v. “ ‘Generally speaking, opinion fered here. (7th Cir.), 471 F.2d expert upon based of a medical information (1972); U.S. persons obtained out of court from third is States, v. United 416 F.2d Williams The same rule is followed inadmissible. when Harris, 1969); (8th v. United States Cir. ” sanity question 1971). is the (10th defendant.’ Cir. Bohle, (7th v. United States 445 F.2d Cir. IV(B), supra. Part 122. See 1971), quoting 2 Wharton’s Criminal Evidence 1955). People 519 at 344 ed. See also § v. Brawner, supra See United States Keough, 276 N.Y. 11 N.E.2d 994; U.S.App.D.C. at 471 F.2d at Brame, (1937); Seawell 258 N.C. States, Washington v. United (1963); Wigmore S.E.2d 3 J. Evi- also Part dence, (Chadbourne 1970). supra. rev. IV(B), § “[T]he opinion party to be confronted such an any Apparently one made effort to se- no opportunity should have the full of cross-exam- appearance Cooper personal at tri- cure the ination,” Bohle, supra, United States v. al. impossibility an obvious where the supplied person who the information is not presence Rappeport’s in court was not Dr. present in the courtroom. any a total loss. He did come forth means testimony specific extensive and rather with able total with Caldwell was ny that his contact court to deal effectively with prob- minutes; in his only approximately arising defenses, ten lems from conflicting for mo- Timm, was virtually there interview tions for severance should be tendered at a just For reasons time sufficiently early discussion Caldwell. no allow reasonable articulated, uphold we the exclusion of his opportunity therefor. sway to Caldwell’s over Timm. opinion as equivocation, Without we have respect Rappeport,127 Dr. But with held that impression with the Timm did are left grant decision to a severance of benefit from the re- appreciable [t]he

receive properly joined defendants for trial is one Maguigad. He testimony of Dr. stricted over which trial court possesses great was, example, describe Timm’s for able to and discretion exercise of that “depersonaliza- discretion “schizophrenia,” bouts with will be reversed on appeal only “dependence” when it tion” and conclude is shown to been clearly have “it need that led abused. dependency is The general rule charged situation defendants him to be involved in this of rob- with jointly committing a criminal bery.” of- fense are to be jointly tried.129 Timm now contends that the re general This rule justification finds in a testimony, this line of striction on asserted joint number of considerations. The trial necessary ly protect also to Caldwell’s ‘expedites justice, administration of rights,128prevented presenting him from his congestion reduces dockets, Therefore, he argues, full defense. judicial time, conserves lessens the bur- granted should have court motion for upon den who citizens must sacrifice both severance. This motion was tendered to money juries, upon time serve mid-trial, court in during the bench necessity recalling avoids the witnesses Rappeport, the conference Dr. and such otherwise upon who would be called pause. us gives ignore tardiness We cannot once.’130 testify only that, long the fact convening before the trial, counsel both knew judge’s duty essence of the trial on a respective nature of their defenses. To en- motion for severance is to determine wheth- 129. United States v. See note 127. 225, basis for the which reads: 217, 222, S.Ct. D.C. foundations for the event. port them state sustains the necessity. also United States v. United F.2d Two or more acts are or offenses. act or the same indictment or information if charged The trial 226 nor Dr. 310, 315, 72, 83, 2133, alleged or transactions States, Since, hоwever, States, transaction or in the same 476 F.2d (1939). in one Our 18 449 F.2d judge to have ruling, Maguigad 120, supra. 126 L.Ed.2d 1359 cert. 70 holding defendants Such And see Fed.R.Crim.P. or more counts 1164, App.D.C. U.S.App.D.C. felt that we discuss it. denied, participated opinions Gambrill, Hurt, 1148, constituting that neither Dr. there 1169 had sufficient factual defendants judge’s ruling may there 1159 155 388 U.S. 92, 93, (1967); (1973); is an Timm wanted be 146 134, 139, U.S.App.D.C. (1971). in the same was such a together charged an offense alternative Brown v. 104 U.S.App. series of may Lucas v. 915, Rappe- 8(b), they 375 See be 87 in Moore, also ed. quoting be shown in order 249, 266, error. Other courts (1963); United denied, United States U.S. supra severance, D.C. 1196 1004, 121, 121, separately 1968). United States 1964); 406 F.2d 975, 471 F.2d 36, 46, charged in each 89 (9th has wide latitude note States, See, 375 U.S. Federal Practice Parker v. United United 455 F.2d 92 Tillman v. United Cir. 121, e. S.Ct. and all of the defendants need not States v. 494 F.2d at as well 1602, 317 F.2d at g., that an 934; States v. 1968), 838, Brown, 416 F.2d at 137; 2427, Opper 1317, 1334, v. 22 Williams v. United 84 S.Ct. have stated that the trial Hines, count. L.Ed.2d prevail upon 955, abuse of discretion must Leonard, and see 249, cert. 32 L.Ed.2d 675 ¶ States, 14.02 99 L.Ed. 101 Tanner, granting 264 147 denied, 77, 11 cert. 782 1070; ^[1] generally, (8th Cir.), 404 U.S.App.D.C. (1969). at 14-3 denied, supra L.Ed.2d 65 a claim of Butler v. 394 U.S.App. denying (1972), States, 1193, cert. note U.S. 8 J. 406 (2d (2d judicial economy,133 say we cannot code- that the antagonism between alleged er abused judge trial her discretion.134 to the nor- productive is “counter fendants jointly.”131 cases trying the for reasons mal severance, The second reason for urged appellants, both that the case was by too mo of the severance The denial jurors for the to complex understand be- bar was not an abuse of the case at tion insanity of two defenses and varying cause variety of factors had to be A discretion. explanations. Additionally, psychiatric ap- determining whether Timm and weighed in pellants presentation assert that the together single in a remain should Caldwell fragmented, overly evidence was and that very end. The trial until rebuttal the Government’s did not suffi- many after months of hear already begun, distinguish between the ciently appel- two examinations, witness-interviews and ings, lants. by the court as well as preparations This issue only was raised at trial jurors lawyers involved. Potential once, request when the denied a for a exposed had been to whatev retrials future instruction cautionary during the Govern coverage sequestra after ensued er news rebuttal, stating ment’s her intention to so Moreover, original jury. despite close of trial. At that instruct at the time of coordination between the two the lack jurors they were admonished that codefendants, able their witnesses were guilt, innocence, or lack to determine positions jury. clear to the make their basic guilt by reason of as to еach de they contentions that light appellants’ separately, fendant and that evidence ad even pretrial publicity,132an from suffered solely mitted to one defendant could not prejudice might have resulted cry louder against considered other. This in a dramatic turn coverage of such from was one of the given struction last Taking as mid-trial severance. events jurors just prior to the beginning of their the overall considerations of appellant objected account deliberations.135 Neither into Gambrill, 129, supra explains, United States v. note stipulate Government Caldwell did 88, U.S.App.D.C. facts; 449 F.2d at 1163. remaining various other items to willing stipulate, which the Government was 11(A),supra. Part 132. See not, lengthened only but Caldwell the trial minimally; agreed and the Government never public There is a substantial interest stipulate expert testimony, as was its maintaining joint trials of codefendants. See right right. defendant No can demand as of 9, supra, accompanying text. See note codefendant; stipulation “general Lemonakis, U.S.App. also United party required accept is not rule ‘[a] [is] 941, (1973), 485 F.2d cert. D.C. adversary, judicial may admission of his but 989, denied, 1586, 415 U.S. 94 S.Ct. 39 L.Ed.2d ” proving the fact.’ Parr v. United Gambrill, insist supra (1974); United States v. 86, denied, (5th Cir.), 87, cert. 255 F.2d 449 F.2d at Robinson, 1163; supra 3 L.Ed.2d 64 U.S. 79 S.Ct. United States Cockerham, 432 F.2d at 1351. United States 155 U.S. See also (1973); App.D.C. 476 F.2d passing other assertions We note Mishkin, (2d 317 F.2d United States prevented that each was effec- denied, Cir.), cert. 84 S.Ct. tively developing because of trial his defense (1963); Brickey, United States v. L.Ed.2d regard more joinder we as even —assertions (8th denied, Cir.), cert. First, plainly states insubstantial. upon placed him re- chief because Timm Alire crimes, joinder sponsibility for the 1962), text, prejudicial. outlined in But as have damaging objections potentially Caldwell’s testimony largely on that score were success- Brown, States v. note Cf. United 116-122, supra. following ques- to a response letter that he Whyte’s Dr. did not jurors understand that English he still believed language.”145 whether as to Caldwell believes de- hysteria that, conversion in his of the testimony rendered, view as Caldwell behavior at the normal seemingly his the Government had no basis for the spite “ex- answer, he later Whyte’s suggestion jury Dr. treme” to the jail.141 that there his was that flip,” a bit support “was “no evidence to the fact admitted even if remain unaltered would diagnosis conversion hyste- he [was] wrote a novel.” “sat down ria.” Caldwell that isolat- emphasize sought to Whyte Dr. It is clear that prosecution were in voluntary behavior incidents ed hard blows but not foul struck ones.147 Just necessarily in- not opinion, professional his any vigilant as advocate would be expected of conversion diagnosis awith consistent do, government merely counsel capital prosecutor’s decries Caldwell hysteria. on apparent ized weaknesses in the testimo remark, during argu- final on this one focus regard diagnosis to the ny. of conver challenging a basis for jury, as to the ment hysteria, as a prose sion tactical matter the testimony. Whyte’s Dr. whole of upon what arguably might cutor seized not against is leveled criticism Similar lay people.148 make sense to a With the view ex- repetition of Government’s letter, respect prosecutor to the merely significance Whyte as by Dr. pressed position the Government’s expressed by Caldwell in which written the letter interpretation the most reasonable of its drugs.142 for Without his friends he asked contents was that Caldwell was attempting description of the con- earlier repeating our drugs to induce an abnormal to secure men correspondence,143we note Dr. tent of that state, knowing psychiatrist’s diag tal that a it indicated that Whyte’s conclusion would nosis of be most advanta sane. The wanted to be found Caldwell prosecutor in no geous. way The acted opinion, saying attacked this prosecutor espousing unfairly by the more literal of presumably who psychiatrist that “from meanings writing; possible two language” the con- English understands subject argument. was a classic “totally “absurd” drawn was clusion the defense were Government and diametri of his testimo- very basis undermine[s] interpretation as to the cally opposed ny.” ambiguous message,149 Dr. Caldwell’s ap- prosecutorial attacks this Caldwell observed, “the Whyte himself content of very with the con- proach as “inconsistent the psychiatric point letter from of view is to whose function psychiatry, cept like anything has to be evaluated else. It meanings of human be- the hidden explore says what it may may mean mean statements,” says he “The havior.” something quite different.” defense to an attack “amount continues, similarly may dispose He Cald science.” grounded showing contention that there was no by the well’s showing no Government “there was Whyte’s had ‘misconstrued’ that Dr. construction of the letter Whyte Dr. either 70, supra. wrongful produce a See culated conviction as it 141. every legitimate bring means to use about is to supra. IV(A), See Part Berger just one.” 79 L.Ed. 1314 86, supra. See Ash, United States v. also Appellant Unit- at 99. Brief of Phillips, ed States Id. at 100. Id. 148. See note infra. blows, may he is hard he strike 147. “[W]hile liberty It is as much foul ones. supra. to strike 149. See note improper duty cal- methods refrain from argument Whether Here the prosecution’s was erroneous. argument with the is a fully coincides evidence jury did not lack evidentiary support. Cald by jury part as to be decided matter insanity well’s defense of was called into determining or process of innocence question, not for the first time in summa process in turn is factfinding This tion, guilt.150 but much earlier during the trial itself. by jurors’ personal recol- guided to be accomplished That was partly through the Thus, in the instant proof.151 lections testimony of a jail, fellow inmate at case, use in summation of such the mere pictured who Caldwell behaving as normal “absurd,” accompa- without an criticisms ly, by as well as circumstances such as the allegedly supporting nying recitation of letter and the note Caldwell endeavored to evidence, was a characterization that coun- send to his friends.152 Having determined properly urge, sel could and which the argument complained of was not accept disregard or as it saw fit. could adequate without record, basis in the laywe aside Caldwell’s averment that prosecu episode prosecutor in which the impermissibly expressed tor personal views Caldwell’s defense a fraud labeled involved argued on the issue153 and facts not remarks, generally series of that it was “a evidence.154 desperate big person fake of a who has no other conceivable defense.” Caldwell ar Closing Argument Regarding Timm B. that such comments to the gues jury were Timm’s first accusation155 inflammatory prejudicial, is because Cald prosecutor misstated the expert well’s witness conclusions of Dr. testified that he had summarizing Bauer in rejected testimony his possibility during considered and argument. his final The alleged misstate- malingering and that he ultimately conclud ment concerned Dr. Bauer’s ed that Caldwell comments really mentally ill. malingering. Timm’s When say asked whether unhesitatingly prosecutor that a he found evidence precluded faking challenging genu manipu- not ineness of an lation of test results on insanity simply part, claim because Timm’s Dr. rejected a defense witness has Bauer answered in the himself affirmative. He tempered view that then feigned. reply defense is ad his explana- Our with the versary system of conducting malingering criminal tion that trials is seen “in pa- all encompasses no whereby extent,” device the accused tients to some and “stems to a is forever great insulated from attack offering measure from both emotional fear opinion a witness whose undertakes to re and despondency, as well as to confusion as fute facts and circumstances in evidence is actually happening.” what Referring support a contrary theory Timm, of the casе. he described “beautifully it as 150. See note infra. n.1, 403 F.2d 570-571 n.1 States, Cf. Greenberg 280 F.2d 473- See, g., States, e. Cross v. United 122 U.S. 1960). (1st Cir. 283, 285, App.D.C. (1965); 353 F.2d Bros., Corp., Gimbel F.Supp. Inc. v. Markette may arguments not Counsel base their aff’d, (E.D.Pa.1961), 307 F.2d 91 Berger facts not in evidence. See States, (3d 1962). United 295 U.S. at IV(A), supra. 152. See Part Thus Caldwell is 631-633; States, Johnson v. United mistaken when he asserts that there was “no U.S.App.D.C. 347 support in this evidence case to the Govern- Jones, U.S.App. United See also States v. repeated charge ment’s ing’ that Caldwell was ‘fak- (1973); D.C. Appellant defense.” Brief of Hayward, U.S.App.D.C. 300, 304, at 102. may interject personal 153. Counsel their concerning veracity opinions of witnesses. adopts arguments 155. Timm also made Harris v. United reject points Caldwell but we these for the Gibson v. reasons stated above. argument, this, drew a closing figure like mentally Timm is done.” poorly this testi- ill.” urged counsel Government modified, significant was a mony, even as Caldwell now contends that the essence ultimate find- from Dr. Bauer’s

detraction testimony witness’ was distilled mental from illness. Timm suffered that ing prosecutor to a form placed the such that it disproportionate emphasis upon one of the argu- that such persuaded are not We believe, psychological examinations. truth, impermissible. In there was ment however, prosecutor’s argument the malingering, and it some evidence was provide did not that much of a twist. any what if jury the to decide was the prosecutor’s While language was some- to it. The trial would be attached weight and while exaggerated, steps that what several appreciated possibility the fully process of in Dr. Bauer’s testimony might have been referred deduction were some omitted, context; prudently in- nevertheless the by and she statement out government appeared counsel jurors that counsels’ summa- to be little the structed only than expression include what more an of the were intended to net result of tions attention, deserving special Bauer’s examinations. Dr. they deemed jurors’ evi- recollection the that the point There is a third which by dence, controlling. was not counsels’ is no more our assessment substantial in witness-questioning Another line of According prosecutor’s nature. to the sum in prosecutor the also reiterated mation, only the examination from which closing argument. During the course of Bauer Dr. found evidence of Timm’s de psychological administering number pendency handwriting needs was the examinations, employed what is Dr. Bauer graphology accuracy test.156 The of the “house-tree-per the colloquially known as prosecutor’s statement is not perfect, for directing Basically, it consists test. son” testimоny Bauer in depend Dr. noted of those to draw each three patient the ency a “theme” was “consistent ” his inferring feelings therefrom figures throughout the interviews and tests. . Based society. on this himself and about was, however, graphology The test only others, Dr. Bauer conclud examination which he spe- examination from concluded suffering Timm was from mental ed cifically suffered that Timm from “arrested Bauer Quite candidly, Dr. stated: disease. needs”.157 We dependency deem the varia- not to think that tion innocuous. would wish Court I in I drawing itself the basis of that Lastly, urged we are find reversible any conse draw conclusion would in attempt error what is viewed as an quence. only use evidence admitted as to Caldwell one of blocks in informa- It is defense to rebut advanced is gathered. signifi- I It tion which have recapitulate pertinent testi- Timm. To that it with all the does correlate cant mony, Cavanaugh Dr. John R. was called to information. other the witness stand the Government dur- however, ing point one he attempted replied to con- rebuttal. At prosecutor, The testimony, on direct “that the saying prosecutor entire examination Dr. Bauer’s dense him, calm, peaceful indi- according quiet, because Timm attitudes of the yet, “[a]nd prosecutor right See note infra. was well within his attempted impor- when he offset the criticize prosecutor that the by telling also contends it tance the test that was light improperly made of Dr. Bauer’s method of intelligence not a standard test of kind namely, analysis, inclusion of use psychological Timm, previously administered and that it definition, By graphology ex- test. of the personal interest to Dr. Bauer was matter person’s interpretation of a amination subject of his doctoral it was dis- because handwriting makeup character- emotional sertation. istics, writing pressure the like. We think you jurors.160 mon sense of the on the various- occasions viduals Contrastingly, described, with men- incompatible are we have find no they indication that approached judge responded fa- The trial “know-nothing tal illness.” appeal[ ignorance.”161 to] prompt objec- counsel’s vorably perceive to defense them no basis for upsetting Cavanaugh never that Dr. exam- verdicts. Timm, therefore this testimo- ined and that be allowed to refer to

ny him. should VII. INSTRUCTIONS TO THE JURY permitted to have was then Dr. Counsel According to appellants, both the trial Cavanaugh acknowledge that fact before judge erred this, fashioning instructions for Despite judge’s and the rul- jury. jurors each of three objection, prosecutor different areas sustaining ing litigation. first complaints two argument, queried during closing “al- requested involve the denial of instructions though Cavanaugh] only examined the [Dr. case; specific aspects the of the last is testimony and his relat- defendant Caldwell realistically argument more an against what he the directly, ed to him does not said assignment to appellants of the effect, judge both?” burden of apply, to The over- proving the they sought defenses objection an to this reference ruled second to erect. Cavanaugh’s testimony to Dr. because the jury already had been informed that he had to judge Caldwell submitted the a pro- only examined Caldwell. posed instruction on degree second murder that, convicted, which stated if he were the light ruling In the court’s of the punishment “up life, would be to not or less objection, reference permitting initial the twenty years.” than The judge declined to was both individuals error. But we are employ such charge statement in the other any mindful of several items which in jury. the Addressing its more obvious prosecutor’s save the event comments from shortcoming, the Government points out being more than harmless error. Dr. Cava request, phrased, that the as so incorporat- attempting, was the naugh not at time of ed an representation law, inaccurate remark, present psychiatric diagno his proposed for the wording implied that a Timm, merely categorical sis of but obser person guilty found of second degree mur- which might vation well have been rested der would incarcerated for at least twen- upon already evidence adduced. Nothing ty An years. instruction informing the respect the assumed observation jury sentencing possibilities of would have evidence;158 Timm was a fact not in the correctly stated that range the minimum of testimony itself, repeat, already confinement, actual parole in terms eligi- of admitted into the record as to Caldwell. bility, day is from one to one-third of twen- prosecutor’s pure The argu statement was ty years.162 ment, not a factual account the or recita of a phantom opinion.159 medical fact, point of judge In the trial did sum, In of aspects our review these charge the the on the elements of second murder, Government’s summation degree shows that essen- as a lesser included offense they tially appeals were direct degree murder, the corn- of first but the underlying 154, supra. 158. See note group laymen of a Williams v. Florida, 78, 100, characterizing these remarks as harm See also United States error, regard less we do not error to be Brawner, supra enough “prophylactic” to warrant a serious re 471 F.2d at 982. Bell, U.S.App. States versal. D.C. at 226 Brawner, 471 F.2d at 1004. jury obviously “[T]he essential feature of a interposition in the lies between accused 162. See D.C.Code §§ judgment his accuser of commonsense cautionary they immediately is whether instruction by appellants raised follow- issue ing instruction sort of such an improper question. entitled As to that offense. penalty for request just pri- Timm’s the instruction specifying judge were not. The they deliberations, hold that jury’s retirement for We required explanation that such judge impact estimated ruled only charge degree of first by law for the question dissipated by had been lapse murder,163 instance every that in other but time between its asking charging prov- solely the sentencing in this circuit is short, jury; remark was of a court, jury. agree ‍​​​​‌​‌​​‌​‌‌​​​​​​‌‌‌​‌​​​‌‌​​‌‌​​‌‌‌‌‌‌‌‌​​‌‌‌‍ince of minor nature context of three-week is an accurate trial, with the trial perhaps more harm would have view.164 subject by dredging been done once up point again. On this we defer to the trial re instruction requested an Timm evaluation, judge’s as it upon based occurred on lating to an incident which range first-hand observation of entire expert one his wit cross-examination transpired during of events which the trial. prosecu by the During questioning nesses. The goes final contention to the sub- he testified that had tor, Maguigad Dr. proof stance of instruction on burden of father; when by Timm’s retained been question insanity. is whether the prior paid fee had been whether his asked charged properly court court, answered in he appearance their insanity to establish aby defenses Thereupon Timm’s counsel negative. of the evidence for preponderance both the bench, urging that such a at the objected the District of federal and Columbia code The court inquiry was irrelevant. line of trial.165 District offenses on The of Colum- “just it would responded that but agreed, bia Court Reform and Criminal Procedure lie,” and thing whole let of modified the existing prac- Act no further at that time. was pursued matter provision, tice enactment of a new however, case, Timm close of the At the present 301(j)of the District of Section “on be instructed 24— that the asked to impose Columbia Code of burden are entitled to be expert witnesses fact proof insanity upon of the defendant.167 In denying for In their services.” paid appellants argued having their briefs judge concluded that it request, the trial that burden is a maintain denial of due necessary point.” at this “not law; additionally, they process argued, of apprehen- with Timm’s sympathize We erroneously required the instruction thеm that, jurors might have concluded sion prove productivity element of their paid, Maguigad’s Dr. he had not been since insanity defenses.168 depend would on the success compensation in And we think that In this court’s decision United testimony. States of give Greene,169 subsequent have been to announced practice would to the fil- better possible penalties July on for The instruction 166. Act of Pub.L. No. degree required murder is D.C.Code first Stat. 473. 22-2403 § (j) (1973). § D.C.Code States, supra Lyles we v. United presumed laymen not all can be concluded insanity substantive rule in effect impact meaning and of a the true to know formula the time of the trial was the laid down insanity. guilty of not reason verdict Therefore, held, jurors U.S.App.D.C. United be informed of Durham v. we must consequences finding, 1954), (en such a relevant F.2d 862 banc the supplement and Mc- knowledge their common Donald Id., guilty. guilty simpler verdicts (en 1962), which have been banc That, at 728. Brawner, superseded by course, very different from the a situation note 102. presented here. one U.S.App.D.C. 21, 169. 160 489 F.2d 1145 161, supra. 165. See note briefs, argu- these We deem appellants’ however, both of it ing unnecessary, to trials of squarely rejected presented, circumstances resolve ments Court.170 on the merits that offenses in the District issue in the case. instant nonfederal note, hand, on the as to such one opinion holds that serious and The Greene complex question constitutional 207(6) process due with no involves no Section trials precedent controlling permits directly point, violation,171and protection equal the toll decision its will take on the court’s productivity between no distinction hand, at this resources time. On the other of an defense.172 elements other interrelationship note the of numerous however, that urge, continue to Appellants of appellants convictions stemming from in the Dis- requirement that an accused separate facets of two internally but inte insanity as a prove of Columbia de- trict grated episodes,176 criminal and the concur charge to a federal criminal denies fense sentences, rency of the in all save instances equal protection of the laws since in one, which imposed those other district that burden every federal convictions.177 ques- with the Government.173 This rests expressly open left in Greene174 tion was To recapitulate, Timm incurred position on appellants ground their convictions, nine nonfederal and Caldwell Thompson,175 earlier each eight, was sentenced to in Appellants court. read decision for carceration terms extending upwardly adoption as а of a Thompson barrier imprisonment.178 to life Eliminating there proof standard of District of common must, from, as we duplicitous three convic charges and federal if stan- Columbia applicant tions of each for lesser-included adversely vogue differs dard one offenses,179 both appellants are left with for defendants in criminal cases in federal multiple nonfederal convictions and the elsewhere in With jurisdictions the Nation. sentences, range same all of which we vigor, the equal Government defends the prepared is, are to affirm. As it with re 207(6) to trials application Section spect convictions, to the federal one of the as well as federal nonfederal offenses com- three for bank robbery by appel each — in the District of mitted Columbia. be invalid,180 lant —must vacated as and Greene, 169, denied, 894, supra 170. United States v. note 382 28-32, U.S.App.D.C. (1965), legislative at F.2d at 1152- history 489 and the of the congressional not Act does indicate a intent to discretion limit that in this See manner. H.R. at 489 F.2d at 171. Id 1153-1156. Rep.No.1461, Cong.2d (1934). 73rd Sess. 2 Greene, also United States v. note 172. Id. at 489 F.2d at 1152. U.S.App.D.C. 489 F.2d See id. at F.2d at 1153. 1, supra. 177. See note 174. Id. 1, supra. 178. See note 175. 147 452 F.2d cert. L.Ed.2d 4, 10, are the These convictions on counts dangerous weapons for assaults and charged on of the the victims armed robberies 1, supra. Appellants note also contend 176. See 1, supra. in counts 8 and 12. See note Act, Robbery Federal Bank codified in concedes Government these convictions (1970), appel § 2113 under which 18 U.S.C. vacated under must be our convictions, decisions in United jointly incurred three see lants Benn, U.S.App.D.C. 180, States v. supra, supersedes general provi (1972), and United States v. of the District sions of Columbia Code and Johnson, U.S.App.D.C. 28, 29, thus, assert, they prosecution bars under the felony-murder occurring for a in a feder latter reject ally-insured financial We institution. regard passage position. In to to be the effect 180. The count vacated must be of the one Robbery Act, May argument robbery, clearly Bank is con of the two from for it is general principles trary cretion, prosecutorial charge separate improper dis federal counts of robbery Hutcherson v. United 120 U.S. as to bank each in- individual teller 964, 967, App.D.C. Canty, U.S.App. volved. United especially ever-mounting federal in view of the additional two remaining and two than, appellate and shorter docket that besets this and other sentences bear convictions with, Adverting the life terms to our “broad discretion” courts.”185 operation concurrent 6 statutorily “to direct felony-murder conferred187 the nonfederal 18 assеssed of such or order as will entry judgment result is that The net conviction.181 ob justice,”188 con- the interest of and the federal convictions further sentences serving vacation of the federal convic penalties to the nothing whatsoever tribute impair any “does need society in conse- and sentence not owe to possibility avoids government, offenses. the nonfederal of the quence consequences to defend collateral adverse cognate situa- years ago, we faced Pour ant, general of the furthers the interest Hooper,182 and tion in United States justice,”189 “it in administration we felt which has we laid down a doctrine there justice that, without the overall interest and, in the to this court useful service done merits,” we vacate the determination run, community.183 There longer charge.190 on the federal conviction review two convic- brought on for appeal nonfederal, other these considerations chart the tions, federal and the We think one robbery, Accordingly, and ten- we vacate single of a same course here. arising out question convictions the difficult the federal and the sentences for decision dered upon appellants.191 instruct, and the concur- both convictions levied We whether Hooper, develops could stand. Since it later them we did sentences on rent “[i]f warranting justice reversal of the interest of so requires, no error we found conviction, rea- reimposed we saw “no can be on a concur- nonfederal sentence[s] energies basis,”192 time and and that devote our rent son “[t]he conviction[s] subject incident research, appellate could then opinion-writing, of an issue review.”193 We vacate also the nonfederal determination appropriate when no and sentences for convictions lesser of- controlling precedent governed already in other is furthered fenses included convictions or need interest public present reiterate that sentences.194 We none of better declared that thereby.” “[i]t appellants’ will affect actions maxi- of the adminis- these general interest serves imprisonment one whit. limits its terms if the court mum justice tration judgments respects, those other affirm all the determination resources decided, appeals.195 to these subjected that must be cases questions 114, 126-127, Hooper, supra 115-116, 118, United States v. D.C. (foot- F.2d at 604 omitted). note 1, supra. See note 181. omitted). (footnote 189. Id (1970). U.S.App.D.C. 432 F.2d 604 182. 190. Id. see, g., Hooper, applications Unit e. of 183. For Greene, supra convictions аnd sentences on 160 U.S. These are the v. note 191. States ed 1, 7, 11, 1, supra. 1158; 16. See note 15 and App.D.C. United States counts 489 F.2d at Hill, U.S.App.D.C. 470 F.2d v. Harrison, Hooper, supra note United States v. 192. U.S.App.D.C. 432 F.2d at 606 n. at 173 n. 8. Hooper, v. Id. United States 193. at 606. and sentences are the convictions 194. These 1, supra. 14. See note 10 and counts Id af- thus and sentences The convictions Id 2, 5, 6, 17 and on counts are those firmed § 187. 28 U.S.C. interpretation The same of Rule 16 So ordered. in applied Garrett, United States v. MacKINNON, Judge Circuit (concurring F.Supp. (S.D.N.Y.1969): part dissenting in in part): long 16(a)(1), We have construed Rule foregoing opinion and the I concur in the F.R.Crim.P., “as giving defendant almost disagree majority’s judgment but right automatic to his written or recorded dis assertion that letter and or statements confessions.” United 16(a), Rule coverable under Fed.R.Crim.P. Federman, v. F.R.D. evidence, Majority at 1351. Such Op. See (S.D.N.Y.1967). We adhere to the limita- rebuttal solely admitted and used in expressed in Federman that defend- part purpose forming no impeachment, any is not tangential ant entitled to case-in-ehief, not ma of the Government’s point” may “beside the matter he have preparation defense terial stated. material, Such irrelevant having bearing all on the charged, the substantive crimes no crime not material good “may put pursuit use . “relevant . . state charged, is not a truth, including a test defendant’s ve- 16.1 meaning ment” within the Rule racity.” Advisory Cf. Id. Committee’s (10th Hodges, 480 F.2d 229 United States Note, 16(a)(1). Rule Skillman, 1973); United States F.Supp. at 268. Cir.), denied, 404 The majority opinion plays on words Rule Advisory Notes of Committee on it when states that the letter was “tanta- Rule 16(a)(1). The “relevant” in the word mount to a confession of mental sound- something. is not an idle It means word. ness.”2 The letter is no more a “confes- sion” within the meaning intent Relevant what? obvious term in 16(a) Rule than other note sent to a that were “relevant” to refer to statements friend. assert, charged. the offenses To does, majority opinion the statements Supplemental Opinion on Appellants’ Pe- completely begs ques are “relevant” titions for Rehearing (D.C.Criminal Nos. 1421-71). tion. & Hodges court quoted As the from Skill- WRIGHT, Before ROBINSON and man, upholding admissibility previ- MacKINNON, Judges. Circuit ously recorded undisclosed conversations person: the defendant with a third Opinion for the Court filed by Circuit Judge, conversation was not a recorded ROBINSON, SPOTTSWOOD W. “[t]he III. meaning statement’ under the ‘relevant ROBINSON, III, SPOTTSWOOD W. Cir- was introduced not as a of Rule 16. It Judge: cuit case-in-chief, part government’s It but on rebuttal. ... Pending Supreme deci Court’s truth, admitted for its but was admitted Wilbur,1 Mullaney sion we deferred solely purpose [impeachment]. for the appellants’ petitions urging aсtion nothing There was state- rehearing2 holding and reversal of our any bearing ment which had on the sub- the District Court was constitutionally au charged.” crimes stantive thorized to instruct jury, in full con formity statute,3 at 232-233. that 480 F.2d bore 88, supra. 1. See note 3. District of Columbia Court Reform and 1970, Criminal Procedure Act of Pub.L. No. 91- supra. note 2. See 93 358, (1970), 207(6), 84 Stat. 473 § D.C.Code 24§ 301(j) (1973), part provides: which in relevant 1881, 684, 1. 421 U.S. 95 S.Ct. 44 L.Ed.2d 508 person No accused of an offense shall (1975). acquitted ground on the that he was insane 26, at the time of its 2. See note infra. commission unless his in-

1369 not treading upon “generally accepted con- proving by preponderance of a the burden justice.”10 cepts of basic defenses to standards That the evidence their long conclusion was reached after formula- In con- charges on trial.4 so the nonfederal rule11—an the Davis exercise of the decision cluding, upon we relied this court’s supervisory authority12 Court’s sustaining the Greene5 in United v. —that has that in federal Government burden in trials District of the statute operation despite prosecutions.13 And the Court’s against Code claims of offenses of Columbia Winship rulings constitutional broader protection violations.6 process equal due years ago14 Mullaney within five requirement holds Maine’s Mullaney that Leland has recent months15 not been ex- one accused of murder demonstrate overruled. pressly offense to man- reducing the provocation disobeys slaughter the Fourteenth Amend- assert, however, Appellants command, process due delineated ment’s have set Winship Mullaney sub silentio decision,7 Winship the Court’s earlier case at naught, and in the Leland for reasonable prove beyond state a doubt view, In we lack so hold. our should bar underlying crime every factual element of a Greene, re panel prerogative. ground, Largely appel- conviction.8 on that invitation,16 de jected similar this court process lants now renew due attack. their banc,17 Supreme rehearing en nied but significance to the further review.18 As Mullaney’s instant declined Court court, at panel we are not appraised only can be context another case disregard these More controlling liberty events.19 application our Greene over, appellants’ Leland while would argument rested on v. Ore- precedent. Greene premise have merit if its gon,9 upheld acceptable, wherein Court Supreme any undertaking predict fate at accused of the Leland’s state’s allocation to the Supreme likely Court’s hand would proving insanity imposition as an burden issue, 488, 358, 12. See at 16 S.Ct. at sаnity, regardless raises the id. 40 L.Ed. at 9, of who 506; Oregon, supra by preponderance affirmatively Leland v. note 343 U.S. established 797, 1007, at at 72 S.Ct. 96 L.Ed. at 1308. evidence. States, 13. 11, supra Davis 160 Caldwell, note U.S.App.D.C. 178 4. United 362, 485, at 16 S.Ct. 40 L.Ed. at 505. U.S. at (1974), -, 165- at notes 1333 text 543 F.2d 172. 14. See note 7, supra. (1973), 21, U.S.App.D.C. F.2d 1145 489 160 239, 977, denied, 42 S.Ct. 419 U.S. 95 cert. supra 15. See text at notes 7-8. (1974). 190 L.Ed.2d 16. United States v. Greene, 5, 29-32, 1153-1156. F.2d at Id. 32, U.S.App.D.C. at 489 F.2d at 1155. explicitly Due Process hold that 7. “[W]e 35, 17. Id. at 489 F.2d at 1159. against protects conviction the accused Clause beyond upon proof reasonable doubt except 18. See note 5, supra. necessary crime every constitute the fact Winship, charged." In re ishe with which 19. This court has 1073, long 1068, 358, 364, adhered to the rule that 90 S.Ct. U.S. panel may (1970). recent decision of one not be panel, only by overruled another but Wilbur, supra Mullaney g., Bryant, court en banc. E. United States v. 1883-1884, L.Ed.2d S.Ct. at 72, 78, U.S.App.D.C. 471 512-513. (1972), 409 U.S. Agents’ 34 L.Ed.2d 693 Insurance Int’l L.Ed. 1302 S.Ct. 343 U.S. NLRB, Union v. aff'd, (1959), F.2d 736 361 U.S. (1960); Mallory 10. Id. at 96 L.Ed. at 1309. S.Ct. at (1958); Thompson Thompson, Davis v. United App.D.C. 40 L.Ed. 1370

amount to no more than a bold but unfruit ORDER speculation. Only ful venture in two weeks granting after a writ of certiorari to review Appellants’ suggestions rehearing for en Mullaney, the Court denied a writ in supplemental banc and memorandum in Greene,20 and later support refused to rehear the thereof having been transmitted to denial.21 In both Winship22 Mull the full Court and there being majori- not aney23 majority ty of the Judges in only regular Court made active service in favor passing having reference to banc, Leland. The this case it only posi reheard en tive emerging position indication is the concurring two members in Mullaney by Ordered the Court en banc that that Leland vitality.24 retains its suggestions aforesaid rehearing for en banc milieu, In this it is not for us to hereby are denied.

declare challenged statute unconstitu tional on theory that Leland is dead. Statement of Judge Chief BAZELON in duty Our is to abide long Leland as as the support of his vote to grant rehearing en Supreme Court has not made its demise banc. that, plain,25 and say least, has not The question presented been done. Appellants, course, petition are free rehearing for en banc ask Court is the for a extent reexamination Supreme recent and a determination as to its viabilit Leland Court decisions in Mullaney v. Wilbur1 and In y.26 re Winship2 undermine Petitions denied. considerably earlier desicion in Leland granted Mullaney Wilbur, Mullaney 1, 20. Certiorari was on Octo- 421 U.S. at 15, 1139, 889, 414 1974. U.S. 94 S.Ct. 39 ber 707, 1893, 95 S.Ct. at 44 L.Ed.2d 523-524 on 96. Certiorari was denied Greene L.Ed.2d (citations (concurring opinion) omitted). 29, 239, 977, 95 1974. 419 U.S. S.Ct. October NLRB, Lodge 25. Booster No. 405 v. 148 U.S. 42 L.Ed.2d 190. 7, 119, 1143, App.D.C. n. 459 F.2d 1150 n. 7, 84, 1041, aff’d, 1961, 412 U.S. 21. 419 U.S. S.Ct. L.Ed.2d S.Ct. 42 L.Ed.2d 318 (1972); Columbia, Breakfield v. District ‍​​​​‌​‌​​‌​‌‌​​​​​​‌‌‌​‌​​​‌‌​​‌‌​​‌‌‌‌‌‌‌‌​​‌‌‌‍of 203, 205-206, 442 F.2d 22. 397 U.S. at 90 S.Ct. 1068. (1970), 1229-1230 401 U.S. (1971); S.Ct. L.Ed.2d 807 Salerno v. 23. U.S. S.Ct. at 1888 n. League of American Professional Baseball n. at 518 L.Ed.2d Clubs, (2d 1970); 429 F.2d Cir. (1st Hassett, Sears v. 111 F.2d 964-965 Cir. The court noted in Leland that the issue 1940); Virginia Regional Northern Park Au insаnity charge as a defense to a criminal Comm’n, thority v. Civil Service jury only was considered after it had (4th Cir.), 437 F.2d nied, offense, cert. de found that all ing elements includ- required by law, rea if mens state proven beyond been reasonable doubt. Blalock United 247 F.2d Although . 1957); Foundation, . as state in- (4th court’s Cir. Lichter Inc. recognized, structions in Leland Welch, 1959); (6th Cir. Unit insanity evidence relevant as defined Chase, ed States v. may law also be relevant to state whether the 1960). present, required rea mens the existence legal insanity nonexistence bears no petitions urge Appellants’ additional necessary relationship to the existence or rehearing. grounds to them we As adhere required of mental nonexistence elements editorially opinion to our earlier revised. reason, Oregon’s of the crime. For this placement proof burden of Leland, unlike Maine’s redefinition case, homicide instant did effect unconstitutional shift in the State’s tradition- proof beyond L.Ed.2d 368 al burden of a reasonable doubt necessary of all elements of offense. Supreme ney reaffirms Court’s conclu- v. Greene4 In United States Oregon.3 in Davis v. sion that sanity States9 two reasons of this Court offered division essential to constitute the crime” is “fact as authorita- continuing to view Leland though going of burden forward even can sur- Winship. Neither reason after tive placed is with evidence on the defense. Mullaney. vive Mullaney significant is also for its strik- interpreted First, division the Greene description narrow ingly of the current sta- to bear prosecution require to Winship Leland: “In of Leland tus respect with persuasion only of the burden apply specific holding declined to Court of an facts—‘the occurrence “proof of prosecution —that the prove Davis must of ” to “mental respect not with event’ sanity beyond reasonable doubt —to the “occur- Mullaney in But condition.”5 is the only This time Leland is States.”10 dispute; in an event” was not rence does Nowhere the Court reaffirm cited. men- was the defendant’s at issue what suggest that something it is other Leland More- the time the event. at tal state anachronism. contrast Davis is than mind was state of over, defendant’s substantially Mullaney,11just relied on in as in the insani- Mullaney it is relevant —as Winship.12 was in it ex- it ty determined context —because importantly, Most all of the considera blameworthiness.6 defendant’s tent underlie Mullaney Winship tions —and “proof Hence, dichotomy between Greene’s —compel the conclusion prosecu falls. condition” and “mental facts” bear the persuasion must burden of sanity Greene’s contention Similarly, resрect insanity. Plainly stated the with crime “essential element” of a be an cannot cases simply thrust two is basic pro- prosecution required is unless guilt erroneous determinations of or of the in its case-in- sanity evidence duce degree culpability If are intolerable.13 per- expressly Mullaney also falls. chief7 requires proof process beyond due a reason going place the burden mits relating doubt of able elements de respect producing evidence forward culpability, a process due gree fortiori though it even on defendants require proof to malice beyond a reasonable must bur- placing sanity, culpabili determines prohibits the States doubt Mulla- ty persuasion the defense.8 vel non.14 den 10. 1888 n. 72 S.Ct. 96 L.Ed. 1302 S.Ct. at 21. The cite to 3. Leland appears opinion (1952). the section of the Court’s placing “in the issue historical at context.” Id. 1886. (1974), 4. 489 F.2d (1974). 95 S.Ct. 11. Id. at 1891-92 n. 31. Brown, 1155, quoting United States 5. Id. at 362-63, 12. at See 397 U.S. S.Ct. at only at 374. Leland was cited L.Ed.2d once in always sanity been has convinced I remain only Winship, support proposi then question” mis division that the “factual long proof “it has tion that been assumed that See United States Brown. construed charge beyond of a criminal a reasonable doubt J.). Greene, (Bazelon, supra C. constitutionally required.” Id. at at 1071. See also United States v. 1889. Greene, (Bazelon, at 1175-76 C. J.). 13. See 95 S.Ct. at 1890, quoting 397 U.S. at at 1888 n. 1891 n. 28. See also id. S.Ct. at 363, 364, 90 S.Ct. 1068. Mullaney even Court n. 31. the burden of that the allocation of indicated producing recently We have that the reaffirmed con- can raise a substantial evidence concept” that crim- defense embodies “core question. Id. n. 31. at 1891-92 stitutional responsibility not be assessed when the inal of a free acts not the result defendant’s Brawner, wrong. 9. 160 U.S. to do choice L.Ed. this case —or any other appear that the court has It would denied case —involves a speculation.” “venture in question The real rehearing Supreme in this case because the is whether we prediction should make our yet expressly has not stated Court solely dependent Supreme on the Court’s Oregon Leland v. is overruled. Of course expressly failure to overrule Leland. To do proceed with we must extreme caution in “stultify so would ourselves and unneces- deciding Supreme whether Court has 20 sarily Supreme burden the Espe- Court.” fatally prece- undermined one of its own cially with the liberty of individuals hardly we say Plessy dents. But could stake21: is, or an process v. economic due Ferguson15 We would be recreant to our duty as of the Loehner v. New decision York16 era judges, if through a blind following of a be, binding because not expressly would which decision the Supreme Court itself Judge Hand, Learned in dis- overruled.17 has . impaired as an authority, cussing appeals court’s role when con- deny protection we should rights Supreme with a precedent fronted Court regard among the most sacred of overruled, yet said: “the measure not protected those guaran- constitutional divine, duty can, is to as best it [the court’s] ties. would be appeal what the event of an The today court concedes —and the case it 18 case before it.” In the same case Judge cites admit —that Leland need not be fol wrote: must determine Clark “We with the lowed if its demise is The court plain.22 powers best exercise of our mental makes no effort to explain, however, what probability law which in all will be force Leland retains. Nor can clues be litigants applied similarly these or others derived from the denial of certiorari in 19 23 situated.” this sense any Greene, In decision in the citation of Leland once in both 537, 1138, 1969), 163 appeal dismissed, U.S. 16 S.Ct. 41 L.Ed. 256 278, 396 U.S. 90 S.Ct. 557, (1896). 24 (1970); L.Ed.2d 463 DiCarlo, Gold v. F.Supp. 817, 235 (S.D.N.Y.), aff’d, 819-20 380 45, 539, 16. 198 U.S. 25 S.Ct. 49 L.Ed. 937 520, 1332, U.S. 85 S.Ct. 14 (1955); L.Ed.2d 266 (1905). Gayle, Browder v. F.Supp. 707, 142 716-17 (M.D.Ala.1956), 903, aff'd mem. 352 U.S. 77 Fleming v. South Cf. Carolina Elec. & Gas 145, S.Ct. (1956). 1 L.Ed.2d 114 generally, See Co., (4th 1955); Ferguson 224 F.2d 752 Cir. Kelman, The Force of Precedent in the Lower 726, Skrupa, 1028, 372 U.S. 83 10 S.Ct. L.Ed.2d Courts, Wayne 14 (1967). L.Rev. 3 (1963). 93 Peyton, 709, In Rowe v. 383 (4th F.2d J.), 714 1967) (Haynsworth, Cir. C. the Fourth Cir- Spector Walsh, Motor Service Inc. v. 139 Supreme cuit concluded that today “the Court 809, (2d Cir.) (dissenting opinion), 823 particular precedent would follow” a rev’d, 101, 152, 65 323 U.S. S.Ct. 89 L.Ed. 101 adopted approach” a “doctrinaire that had (1944). “thoroughly rejected by Supreme been affirming Court recent cases.” judg- Id. at 814. Supreme quoted ment the language Court Judge Haynsworth’s opinion from Chief Corp., 20. Perkins v. Endicott Johnson 128 F.2d complete 208, agreement said: “We are in (2d 1942) aff’d, (Frank, J.), with this 217-18 Cir. 501, 339, conclusion and the underlying considerations (1943). U.S. 63 S.Ct. 87 L.Ed. 424 Rowe, Peyton 54, 57-58, it.” 391 U.S. Educ., 1549, 1551, 21. Barnette v. West Va. State Bd. of S.Ct. 20 L.Ed.2d 420 251, F.Supp. (S.D.W.Va.1942) (Parker, 252-53 - 22. See p. 25, & n. aff'd, J.), C. 319 U.S. 63 S.Ct. p. supra. 1370 & n. 25 also, g., L.Ed. 1628 e. Mason v. 1364, 1374-75, It is well-established that denials of certiora- (1972), grounds, rev’d judgments Ct.Cl. on other See, ri not reflect do on the merits. (1973); g., Maryland 93 S.Ct. Show, Inc., e. v. Baltimore Radio Virginia, Martin v. 783-84 (1950) 338 U.S. 70 S.Ct. 94 L.Ed. 562 1965) Smith, (Sobeloff, J.); (Frankfurter, J.); Smith v. Mayo, House v. 324 U.S. F.Supp. (W.D.Va.1975); Healy v. Ed (1945); S.Ct. L.Ed. 739 wards, F.Supp. (E.D.La.1973), Carver, 260 U.S. vacated, (1923); 95 67 L.Ed. 361 L.Ed.2d Hamilton Brown Co., Fishkin v. United States Civil Serv Shoe Co. Wolf Bros. & Comm’n, F.Supp. (N.D.Cal. ice 60 L.Ed. 629 view of two Winship24 or the Mullaney and Leland Mullaney that

concurring Justices question authoritative.25 still impor- general greatest is of the

presented these the sake of For

tance. languish jail who will many others determination Supreme Court

awaiting a hence, we have a clear years two

one hearing requested and to grant

duty to extent, any, if specifically

explain vitality.

Leland’s NO. INTERNATION- UNION

LOCAL TEAMSTERS, OF

AL BROTHERHOOD

etc., Petitioner, LABOR RELATIONS

NATIONAL

BOARD, Respondent, Division,

Chattanooga Vulcan Co., Intervenor. Materials Beins, C., J. Hugh Washington, D. 74-1167. No. petitioner. Appeals, Court United States Bernstein, Atty., M. N. L. R. B. of Peter of Columbia Circuit. District Appeals of New the bar Court C., York, Washington, pro D. hac vice 7, 1975. Argued March court, with whom special leave John S. 23, 1976. Decided June Counsel, Jr., Patrick Irving, Deputy Gen. Sept. Banc Denied Rehearing En Counsel, Hardin, Elliott Associate Gen. Moore, Deputy Associate Gen. Counsel Giannasi, Counsel, Asst. N. A. Gen. Robert C., B., Washington, D. were on L. R. respondent. brief for Jr., Coleman, for intervenor. J. John ROBB, MacKINNON and Circuit Before CHRISTENSEN,* Dis Senior Judges, of Utah. Judge for the District trict argument Mullaney Especially is this true where the cites made no reference notes infra. On counts 15 and for federal firearms parties’ statements 4. The of the facts of the violation, 5861(d), (i), 5871 26 U.S.C. §§ repetition elaboration, without or undue case (1970), eight years’ imprisonment two to pages a total of of their briefs. (both appellants). consume carrying an unlicensed count On (1973), year’s pistol, one prosecution stipulated D.C.Code § 5. The and the defense Caldwell). (appellant imprisonment corporation institution is a and that this that its designated were for concurrent All sentences Savings were insured the Federal accounts except operations those on counts 7 and Corporation. See 18 and Loan Insurance consecutively to the which are to be served 2113(g) (1970). stipulation A similar U.S.C. § imposed on count sentence as to National Permanent Federal was made Association, Savings I, discuss, background and Loan the other insti- the factual Part trial itself. Part II tution robbed. and the of the robberies While ap- then Ms. DuTeil briefly.6 Caldwell was preoccupied conferred Timm, and asked Betty appeared Vance window, teller her proached account; this time simultaneously, wearing a beard and opening collar-length an about hair. As she of another turned to assist proceeded to the window Caldwell at Timm window, produced he gun and teller, Younger. After a customer Gwenda directed put her to money transaction, into a her briefcase. Al- completed of Timm in front though readily she complied, Caldwell de- on the counter with a placed a briefcase he know manded to “where . you money in this saying, “place your keep big money?” When she informed Perceiving a dark automatic briefcase.” only him that the vault contained a larger her, Younger Ms. reached pointed pistol amount, he ordered her open it. was foiled when Timm money, but for bait do recognized what she was about to and Her unsuccessful fumbling in the vault money the bait room was noticed her not to touch the manager, warned William Garnett, and as he money her own came to emptying alarm. After investigate he too was ordered at gunpoint drawer, open obeyed she his order to obtain addi- her last, tellеr’s vault. At he obtained approxi- teller. A total of cash from another tional $5,000 mately in old bills and about $4,305 $175 in was taken. money from bait each of two tellers’ draw- building men Both fled from the on foot. ers. Garnett and Ms. DuTeil were told to Gosnell, already staking Nelson out Officer stay in the vault room for five minutes and bank, observed them nearby they alarm, not to set off the under Timm’s adjacent parking lot to an inter- crossed threat people to shoot on the street if his section, point they separated at which orders followed. casually away walked in different di- As soon as the two premises, left minutes, In a matter of rections. Officer Garnett informed Sigmon Officers responded report of the hold- Gosnell Schwartz, policemen back, that a up Savings, of American but time robbery place. taken had Officer Sigmon escaped and no one was able appellants thereupon left by door, the front the same their movements.7 to track by appellants. exit used The felony-murder morning, May again the next On in this case was soon to follow from the m., holdup a. the second oc- about 11:00 attempted capture and a at a branch of the National Perma- curred which then shootout ensued. Savings nent Federal Loan Appellants through had walked nearby in a small shopping Association8 located lot, but, parking they turned back and be- Timm, center MacArthur Boulevard. gan to run when they Sig- heard Officer enter, proceeded first to directly to the mon’s demand for them to halt. Almost teller, DuTeil, Nancy window of immediately the gunfire began, though it

Notes

notes v. note States United 1, 26, Brawner, U.S.App.D.C. Riggleman, 1972); (en United States v. banc F.2d 1969). adequate We discuss the need for an Schappel, U.S.App.D.C. psychiatric opinion basis more factual Blunt v. United V, fully in Part infra. U.S.App.D.C. Compare 108. Strickland (1963). Reacting 316 F.2d 656 appellant at 102. Brief Timm 103. case, to those of the we similar instant facts psy upheld trial of a court’s disallowance Id. 104. chologist’s testimony because the witness “did supra at See text opinion expressing at some succeed prof length”, because “counsel made no clear States, supra note Blunt objection” defense fer and because other (foot- F.2d at 547 experts had full test results access omitted). psychologist. Id. obtained say psychol do that a not mean Whyte judge that Dr. The observed trial testimony merely ogist’s be can be excluded already expressed great deal of informa- “has are to other his test results available cause proper qualifi- under his tion which I think is, however, many It one of factors witnesses. аnd the results of the tests which he cations prejudice. administering.” going court a determination was con- skilled particu- the test to a branch Application holdup, May 21, sues.109 the date of witness is committed broad dis- another robbery lar Government be- ruling Timm, of the whose will judge, trial lieved cretion Caldwell Ms. Fletcher had appeal clearly unless perpetrated. overturned knowledge somehow Without erroneous.110 successfully To invoke the Fifth Amend- exerted that Caldwell influence derived self-incrimination, ment privilege against commission Timm in relation to over danger of incrimination “must be real charged, Dr. Bauer had no factual crimes appreciable not a danger of opinion sought, for an the kind basis imaginary and unsubstantial character uphold its exclusion. . .”113 We believe that Ms. Fletch- er’s claim met that standard. There was a Another contention Timm in possibility substantial that even her indirect area111 is that the erred in comments could have revealed information Heidi Fletcher’s assertion of her upholding bolstering any effort the Government to against privilege Fifth Amendment self-in against build a case her for the May 21 and

text notes ful. 172; States, Hanger v. United 335 F.2d Second, expresses of his code- Timm criticism 1968), denied, cert. F.2d Cir. stipulate testi- refusal to to “formal” fendant’s (1969) U.S. lengthened parade mony, a move which arising (no prejudice incriminatory from close nature of code relating government witnesses relationship proper with fendants’ instructions Timm’s motion to sever because details. correctly guilt). As denied. on individual refusals such nesses. any amplification again But here requested or Caldwell fails to set forth Consequently, plain affecting anything error to show charge. how these occur- rences, more, without parties being damaged defense, not rights of his substantial and we cannot hold without an point.136 adequate not consider the apparent, we do factual basis that there was a pressed carryover event be hard any We would effect. Timm’s behavior in the courtroom poorly-presented abnormally find beyond was not the bounds of might what case, untriable a District of complicated reasonably expected be at a any trial of jury.137 Columbia seeking persuade defendant jury demanding re arguments their final mentally he is unbalanced. To win sever- insanity-related rul account of versal on ance, a codefendant “must show that sub- appellant claims that the conduct ings, each prejudice stantial derives joint from the upon genuine of the other cast doubts merely trial and not that he would have hаd insanity defense. ness of Caldwell acquittal a better chance were he tried verbal of the points interruptions to Timm’s separately.”139 Timm cites proceedings; Caldwell’s trial, during periods “trance” various THE VI. PROSECUTOR’S during the Government’s rebut particularly SUMMATION as Caldwell’s actions are con tal. So far Appellants have articulated several com- cerned, we specific are cited to no facts prosecutor’s about the plaints closing argu- tending to strange show that his behavior ment, charging “belittling” him with their worked to the detriment of Timm. All we expert improperly witnesses and character- jurors are told counsel is that “[i]f izing scrutiny defenses. Our concluded from their observations of Cald said, actually context, what was in proper during well the remainder of the trial that no as unearths error to verbal remarks or sham[,] [t]hey might his defense was a well prosecutorial behavior. believing have been misled into that Timm’s was insubstantial.”138 We are defense also Argument A. Closing Regarding Caldwell liberty upset otherwise valid ver Under the canopy of “belittling” expert speculation. on bald dicts witnesses, Caldwell describes two instances likewise claims that government in which counsel allegedly ridi- malingerer have viewed him a jury could testimony by Whyte, culed Dr. a witness for yelling of Timm’s and verbal re Caldwell,140 because any without foundation for crit- prosecutor First, at the and at various wit- marks prosecutor icism. recalled for pertinent part: delayed Fed.R.Crim.P. 30 reads in days whom the trial five because of outbursts); severe emotional United States v. party may assign any No as error Stromberg, (2d Cir.), 268 F.2d charge portion of the therefrom or omission denied, cert. objects jury he unless thereto before the (1959) (bribery L.Ed.2d 102 verdict, and narcotics con stating to consider its retires ly distinct- spiracy prosecution defendants); of 19 objects the matter to which and the he Lebron, (2d Cir.), objection. grounds Opportunity of his shall denied, cert. given objection S.Ct. be hearing to make the out of the (1955) (sedition and, conspiracy L.Ed. 774 fendants); request of the of 13 de States, presence supra party, jury. Butler United out of the McClain, (mail U.S.App. prosecution 317 F.2d at 264 See United fraud 213, counts). D.C. Spriggs 77, 30 defendants on 33 Appellant 138. Brief of Timm at 123. appeals courts 137. Federal found have sever Calabro, 139. United States v. involving unwarranted ance in trials 1972), (2d codefendants, greater number of and more (1973) (citation See, L.Ed.2d 587 g., complicated factual issues. e. Brown omitted). U.S.App. (three 375 F.2d at 315-316 D.C. felony-murder, charged IV(A), supra. one of defendants See Part

notes reserved. See text at concurring were so Leland Justices. 10-12, supra. * by designation pursuant Sitting ‍​​​​‌​‌​​‌​‌‌​​​​​​‌‌‌​‌​​​‌‌​​‌‌​​‌‌‌‌‌‌‌‌​​‌‌‌‍to 28 U.S.C. J., (Rehnquist, joined at 1893 25. 95 S.Ct. 294(d). § J., majority concurring). Burger, C.

Case Details

Case Name: United States v. Lawrence Daniel Caldwell, A/K/A Thomas E. Morgan, (Two Cases). United States of America v. Eros A. Timm, (Two Cases)

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

Date Published: Sep 23, 1976

Citation: 543 F.2d 1333

Docket Number: 72-1513 to 72-1516

Court Abbreviation: D.C. Cir.