*1 54 ' Association, way question was International 203 F. Clerks to raise But (9th 1953), affd. on rehear 2d 165 ing, Cir. apply courts to have to the Alabama 759, injunction 211 F.2d 763 Cir. modified dissolved.” 47, denied, 839, Birmingham, City 348 U.S. 75 S.Ct. 388 v. cert. Walker (1954); 1830, Ameri 307, 1824, L.Ed. NLRB v. 317, 18 99 662 U.S. 87 S.Ct. 740, Co., Manufacturing (1967). can 132 F.2d 1210 L.Ed.2d 1943); M. NLRB v. cf. 742 Cir. concluding course the better In Sons, 673, & 121 F.2d 674 Lowenstein dis to remand case would be curiam); (2d 1941) (per Evans hearing in as to the for a trict court Union, Typographical F. International 81 Order, al I am scope tended of the June 675, (S.D.Ind.1948). Supp. 678 long by a line of cases persuaded so foregoing line adherence to the Strict holding are to be orders that consent compel us to affirm the cases would even interpreted and enforced written district court’s decision. they & Co. are overbroad. Swift Judge argument persuasive Lumbard’s 311, States, 48 S.Ct. 276 U.S.
V. United effect that the June Order 311, (1928), the com L.Ed. when apply not intended to written con- sought pany invalidate a consent there worthy of a me that an issue vinces hearing agreed years on the earlier decree presented. grounds, alia, it should be inter commerce, in interstate limited acts Supreme Court refused because the company being ap to its had consented plied intrastate acts interstate 330-331, 311. 48 S.Ct. commerce. Id. Co.,& also United v. Swift See States 116-117, 460, 106, S.Ct. U.S. (1932); v. Jackson L.Ed. 999 McComb America, UNITED STATES 187, 192, Paper Co., 69 S. 336 U.S. ville Plaintiff-Appellee, (“Re (1949) 497, 500, Ct. 93 L.Ed. petitioned spondents could the Dis BOHLE, Defendant- Thomas Ronald modification, clarifica trict for a Court Appellant. * * * tion or construction of the order. No. 18604. respondents did not take that course But Appeals, Court United States They their either. undertook to make Circuit. Seventh the decree own determination of what 2, June They they their acted at
meant. knew * * * peril. in their It does not lie say they im mouths to have an
munity contempt from civil because they adopted
plan
or scheme which
enjoined.”);
specifically
NLRB v.
Corp.,
Fertilizer
368 U.S.
Ochoa
(1961);
(1971); NLRB Hod Car v. International
riers, (2d 592 n. 3 J.) (“Since
1955) (Frank, decree
was entered with the of judged consent
parties, respondents [who contempt] not, can
in civil do object scope [cita to its broad omitted].”);
tions NLRB v. Retail *2 Judge,
Cummings, concurred Circuit opinion.
with Judge,
Enoch, dis- Senior Circuit opinion.
sented *4 Pankow, Joseph Helling, H.
James T. Ind., Philip Potts, Bend, C. South defendant-appellant. Lee, Atty., Fort
William C. U. S. Ind., Kieser, Wayne, L. Asst. Richard Atty., Bend, Ind., plain- U. South S. tiff-appellee. ENOCH, Judge, Before Senior Circuit PELL, Judges. CUMMINGS Circuit Judge. PELL, Circuit January 9, 1969, destined On Flight No. of Eastern Airlines course Miami, originating was Florida diverted from the Bahamas Cuba procedure hijacking variously known as skyjacking more sometimes grandiloquently piracy. referred to as air Ronald Thomas Bohle was indicted for pursuant the act to 49 U.S.C. §§ (i) 1473(a) in the Northern District Indiana where he stood before trial jury, resulting in his conviction and sentencing twenty-five years confine- ment. any We fail find in the record
serious, token, disputation or even plane Bohle did not board the Miami in plane and after the was aloft and over Indiana, in returned indictment was an not with open that he did water 15, 1969. on December that district knife and a switchblade use of actual nitroglycerin lacking of concealed threatened use was that venue Bohle asserts take gun persuade a stewardess and a Indiana be- in Northern District of appropriate steps divert the course he was arrested Northern cause plane to Cuba. the indict- York before District of New insanity in Indiana. ment was returned possibility an While argues part hearing in a Government to at a alluded was defense provision purpose satis- of the venue in December reduction motion for bond filing complaint day of the fied not until the second it was was “arrested Indiana before Bohle April after trial on ” * * * By brought into district. its ease-in- had concluded contended, step filing, the first it is this ehief, to the court indicated that counsel leading return of taken insanity case. an issue prosecution thus indictment and the raised on Most the contentions begun in the Northern District occurring alleged appeal errors concern return Indiana before day during trial the seven the course of country. thereto, pertinent evi- and insofar of this not reach the We need merits dentiary aspects set of this case will be phase position since Government’s specific con- forth connection with asserting even if defendant is correct *5 There for reversal. tentions of Bohle improper, that he venue was otherwise are, however, two threshold contentions any might objection has waived of error. challenged had. for the first Venue was acquittal time in filed at a motion for VENUE CONTENTION close of case. Government’s proper venue is that While such a vehicle first contention motion is Bohle’s asserting objections for improper for venue in some in the district court cases, Indiana, Jones, under United District of the Northern States 1473(a). 1949); Wright, provisions Federal of 49 U.S.C. § relevant, section, Practice and insofar as here Procedure: Criminal That § p. 600, here, where, this is provides the offense not one of those cases. any district, place “the takes outside challenge in motion to venue A in the district where trial shall be only there timely where acquittal is * * * arrested or is first offender allegation venue which proper of is a * * * brought. If such offender [is] Wright, by evidence. not sustained brought any into not so arrested or dis- Crimi Procedure: Practice and Federal trict, may information an indictment or at n. 9 cited p. cases 600 and nal § of the last known be filed in the district defendant case the In such a therein. * * residence of the offender until venue a defect of has no notice of charging complaint Bohle with air- A proving rests without the Government piracy the United craft filed with alleged. such he has Until it has what in the Commissioner Northern States notice, no waiver. there can be District of Indiana on June 1969. (2d Gross, States transported to the United Bohle was 831, 80 den. 363 U.S. cert. by on border Canadian officials States 4 L.Ed.2d S.Ct. 2, 1969, entering the United November im the fact of Northern District of New States proper apparent on the face pursuant venue is York. He was there arrested uniformly indictment, it has been to a warrant issued the United if objection not Following is waived held that his Commissioner in Indiana. presented the close of Govern- before District removal to the Northern pertaining to have been thereto had presented perhaps if ment’s case 12(b) (2) of at that Rule 1 known time. trial. commencement before Rules Procedure the Federal of Criminal Wright, and Procedure: Practice Federal any requires motion “shall 306, pp. cases 305-06 Criminal § objections all such include defenses therein. cited at nn. 7 8& Failure then to the defendant. available out of attempts case to take this present any objection such defense or arguing in- this latter rule provided herein constitutes waiver alleged place of last dictment that his * * However, the court thereof Indiana, Michigan City, residence was in grant relief cause shown from main- He within the Northern District. the waiver. charged tains that proper the indictment thus No effort to show cause was made appeared the defect venue and appears indeed interest only proof failed when the Government’s by a trial was best served sustain in the Northern District venue Northern District of Indiana. of Indiana. point doubt if had No been raised argument the idea This distorts motion to dismiss there had allegation proper An in venue. ruling Bohle, been a his favorable alleges proper it al dictment venue when might very counsel well on the facts of leges which, proven, sus if would facts particular urgent case had reasons alleged tain venue. indictment Here the waiving. for then Neither Bohle nor the which, proven, if facts even alleged offense had connection with sustain venue. The defendant was the Northern District New York. notice that even merely place That was the fortuitous proved alleged, proper all it venue would country. return Bohle had not be shown. lived in Indiana all his life. He left Indiana alleged hours the commis- before Here the indictment alleged sion All place offense. of his Bohle’s last of residence with *6 lay witnesses and two of his medical wit- in the Northern District of Indiana and proximity in nesses lived in close allegation Indiana proved the Government to court allegation the where he was tried. trial. far such and So determine, proof we can none of his wit- insufficient to establish nesses resided closer to the court in venue in the Northern New District York than to the in Indiana alleged court Indiana. unless the Government further proved and the indictment ap- We further note that Bohle first prior was returned to Bohle’s return to peared the commissioner in before New allega the United That States. crucial morning York on the state November tion was absent from the and indictment 2, 1969, at which time he was advised of allegation thus the improper. patently of venue was charges against right the him of his chargeable Bohle was with including appointment to counsel knowledge possible of this defect in request thereof. Pursuant to his apparent venue which was face of counsel, attorney appointed an was who the jection prior Any indictment to trial. ob represented preliminary him at this might which he raised to stage. 1969, On November after con- was by waived his failure to assert ferring attorney, ap- with until the close of the Government’s case. peared before the commissioner Specifically, hearing a waiver Bohle filed a motion to executed of removal Inadvertently, apparently dismiss prior form. December arraignment error, through two a months scrivener’s later. commis- this papers motion sioner indictment were made out for removal was chal- lenged grounds on a number of District of Florida where Southern nothing charge pending complaint no was even intimated about question although against complaint venue only all Bohle. The of the facts robbery statutes, required wheth- often him were from
warrant
issued for
specifically
er or not
set forth.
Indiana. That
District of
Northern
from
error
evident
scrivener’s
by
persuaded
de
are not
We
subsequently
Novem-
issued on
order
reasoning
pedantic
that Con
fendant’s
by
Dis-
ber
the United States
hijacking
gress
intended to make the
trict
Northern District
for the
Court
hijacker
if the
an aircraft a crime
commanding the marshal of
New York
permanently
deprive
the own
intended to
to remove Bohle to
district
agree
it.
er of
with
We
Indiana, “upon the
Northern District of
wrongful
that the
and the district court
hearing
re-
waiver of a
and consent to
in the statute is
intent referred to
moval to
Ronald
said District
said
general
intent
than the
criminal
more
present
”
* * *
Thomas Bohle.
or exercises con
when one seizes
States,
having any
As
stated Chandler v. United
aircraft without
trol
(1st
right
cert.
legal
do so.
640, L.Ed.
den. 336 U.S.
69 S.Ct.
remaining
concern
contentions
Bohle’s
(1949),
“It
un
would indeed be
during
occurring
alleged
trial.
errors
these,
hold,
compelled
fortunate
on
we were
being
claimed error
ofOne
highly
ground,
technical
give
giving
in-
certain
and refusal
gone
naught.”
this elaborate trial has
dealing
re-
the intent
with
structions
possible
We
included
quired
find
venue
lesser
contention
and with
Bohle,
specific
asserting
in-
improper
requiring some
venue rather
offenses
tent,
rejection
venue,
necessarily
than
lack of
to be
falls
without merit.
theory
under
the statute
of Bohle’s
requires more
indicted
CONSTITUTIONALITY OF STATUTE
general
intent.
than a
criminal
A
pursuant
section of
statute
remaining
conten-
rulings
The thrust
which Bohle
was indicted
defines
allegedly erroneous
is that
tions
“any
offense involved as
exer-
seizure or
severely prejudiced
court
the district
control, by
cise of
force or
violence
insanity defense.
threat of force or violence and with
wrongful intent,
flight
of an aircraft
ADMISSION
ON
LIMITATION
1472(i)
in air commerce.” 49 U.S.C. §
EVIDENCE
OF
(2). Bohle’s second threshold contention
ruling
Ex-
challenge
defendant’s
constitutionality
related to
is a
One
consisting
records
medical
A
hibit
section.
covering
hospitalization
Essentially
argument
*7
is that Con-
Navy.
dis-
The
in the
treatment while
gress
something
must have intended
records but
these
admitted
trict court
general
more than
criminal intent when
they
not ad-
were
jury that
advised
required
the seizure of an aircraft
the matters
of
prove
the truth
mitted
wrongful
“with
intent” to constitute
they
merely
formed
because
but
stated
general
required
crime since
intent
is
opinion
expert
part of the basis
Therefore,
even if not
Con-
mentioned.
in 1969.
condition
Bohle’s mental
gress,
asserted,
it is
must have intended
points out
require
specific
ele-
an
some
intent as
“wrong-
are
among
in Exhibit A
ment
documents
of the crime
the word
but
by
mother
vague
any
specific
ful”
statements
is too
to describe
certain
relating
child-
to Bohle’s
intent and
is uncon-
social worker
therefore the statute
ruling
vague.
of
stitutionally
cited
It defends
From cases
hood.
asserting,
of
sort
by
by
“This
defendant,
he be-
court
trial
would seem
unreliable, dam-
Congress
compounded,
re-
may
lieves
have intended
material is
sort.
per-
hearsay
the most obvious
quire
deprive
aging
of
specific
intent to
permitted
so
hearsay
is
is not
manently
property as
such
the owner of his
That
re-
Thus it
is clear
that at
least some
as to
of evidence
the rules
basic to
prepared
by hospital
authority.”
can- medical
records
We
quire
of
no citation
simple.
staffs
agree
are admissible
criminal cases.
is so
matter
addressing
to the admissi-
ourselves
1732(a),
United
Title
Section
us,
bility
particular
records before
Code, provides:
States
important
Ex-
we deem it
to note that
any
States
of the United
“In
court
general
types
hibit A contains three
of
by Act of
any
and in
court established
It
material.
contains material
record,
writing
Congress,
any
or
consisting large-
history
nature of a case
entry in a
form of
whether
ly
by
of statements
Bohle and third
made
otherwise,
memo-
made as a
book or
mother,
parties, principally his
and re-
act,
transac-
of
or record
randum
hospital
corded
members of
staffs.
event,
occurrence,
ad-
tion,
shall be
or
concerning
It
also contains records
act, trans-
of such
as evidence
missible
concerning
treatment
Bohle and
event,
occurrence,
action,
if made
or
require
him
observations made of
which
any business,
regular
course of
special
there is
skill
as to which
regular
of
course
and if it was the
among
disagreement
little likelihood of
memoran-
to make such
such business
Finally,
A
trained
Exhibit
observors.
act,
such
the time of
dum or record at
diagnoses,
judgment
contains
and similar
occurrence,
or
transaction,
or event
prepared
opinions, of Bohle’s condition
time thereafter.
a reasonable
within
those
attended him while
who
of
“All other
circumstances
hospitalized.
record,
writing
in-
making
of such
lay
rigid
propose
down
doWe
knowledge by
cluding
personal
lack of
concerning any
types of
of these
rules
maker,
be shown
the entrant
material,
every
“the test
for in
case
weight,
circum-
such
affect
its
reliability,” Hickey,
one of
its admissibili-
not affect
stances shall
instance,
trial
at 143.
In each
ty.
judge
discretion to de-
left some
must be
whether,
the Uni-
‘business,’
in this
the words
used
cide
as
“The term
Evidence,
“the sources
section,
business, profession,
form Rules
includes
records
every
calling
[the
kind.”
information
from which
occupation,
method and circum-
and the
made
were]
intended to
This statute was
preparation
their
stances of
permit
records
admission of business
Na-
their
trustworthiness.”
to indicate
guarantee
carry
“a circumstantial
Commissioners
tional Conference
The test
is one
trustworthiness.
Laws,
Rules
Uniform
Uniform State
Hickey,
reliability.”
United States
(13).
Evidence,
See Judicial
Rule 63
cert.
360 F.2d
States, Pro-
Conference
the United
L.Ed.
den.
U.S.
S.Ct.
posed
for the United
Rules of Evidence
clearly applies in criminal as
2d
It
Magistrates, Rule 803
States Courts
Hickey,
proceedings.
well
civil
Note,
(6)
Advisory
Committee’s
supra;
Ware,
United
(1971).
426-429
F.R.D.
420 and
1957);
699-700
(Hereafter
Proposed
Rules for
*8
States,
U.S.App.
United
93
Wheeler v.
gener-
Courts). However, some
159,
19,
(1953), cert.
211 F.2d
23
D.C.
appropriate.
possible and
seem
alizations
1019,
876, 98 L.
den. 347 U.S.
74 S.Ct.
hearsay”
“multiple
history
(1954).
The case
Ed.
also Fed.R.Crim.
See
1140
P.,
26,
type
A consists
Hospitals
in
of material
Exhibit
are
Rule
18 U.S.C.
exclusively
“any
of
statements
statutory phrase
cluded in
busi
almost
concerning
England
events
Wheeler, supra;
v. Bohle and his mother
ness.”
and
being hospitalized.
prior
States,
466,
life
United
F.2d
468-469
174
apparently
admit
1949).
Some courts would
(5th
also Brucker
Cir.
v.
See
patient’s
Travelers,
subjective
of
statements
such
of
Order
United Commercial
requirement
history
any express
876,
(7th
1954).
without
217 F.2d
881
Cir.
62
third
exception
hear-
mere fact
recordation
of
independent
of an
routine,
party
say
record
taken
apart
statements
is
from the business
rule
apart
Rulon,
the informa-
495.
from
source of
v.
284 F.2d
Glawe
statute.
recorded,
imports
guaranty
(8th
1960),
v.
tion
no
and
498
Gaussen
Cir.
72,
(2d
Co.,
the truth
statements
themselves.
F.2d
73-74
United Fruit
412
supposing
1969);
There
reason for
an
Loew's Theatre
is no
Tucker v.
Cir.
(2d
hearsay
677,
Corp.,
to make
Realty
680
intention
admissible
F.2d
&
149
Long
1945);
v.
sort.
So to construe
these
Felice
contra
Cir.
but cf.
192,
Co.,
them
would make of
almost
196-197
statutes
Island
426 F.2d
R.R.
dragnets
Lyles
(2d
1970).
United
limitless
for the introduction
v.
Cir.
See
22,
randon,
irresponsible testimony
States,
F.2d
U.S.App.D.C.
254
be-
103
yond
opin-
725,
(1957)
(dissenting
usual
reach
tests
740-741
997,
Note,
accuracy.”
Entry
961,
ion),
Business
Stat-
cert. den. 356
78 S.Ct.
U.S.
(1948).
utes,
920,
(1958);
York
48
927
and New
Col.L.Rev.
2
1067
L.Ed.2d
U.S.App.D.C.
Taylor,
v.
79
Life Ins. Co.
548, p.
on
See also 3 Jones
Evidence §
(1945).
297,
66,
See
147 F.2d
309-310
(5th
1067
Ed.
West-
also
&
Pekelis v. Transcontinental
emphasize that
one of
We
the test
is
122,
(2d
Air, Inc.,
ern
187
131
F.2d
reliability.
recording,
in the
While the
951,
1951),
71 S.Ct.
den. 341 U.S.
cert.
ordinary
business,
hospital’s
of a
course
generally Mc-
1020,
See
ly
fact
under
recorded with
admissible
Section
accuracy
they
scrupulous
See McCor
its conditions.
Pro-
meet
is of
avail.”
Evidence,
290,
611;
Courts,
p.
posed
3
mick
Rules
United States
§
Evidence,
548,
Note,
pp.
Advisory
1066-67
Jones on
Committee’s
§
1958). Thus,
instant
in the
cited
eases
there-
Ed.
F.R.D.
427. See also
case,
correctly
case,
admitted
trial court
in.
In such a
record is not ad-
hearsay
in Ex
multiple
statements
the matters
these
missible for
the truth of
they
part
stated,
hearsay,
formed
hibit A since
“not
it contains
because
concerning
expert opinions
reg-
basis of the
it was not made
because
thus
and were
Bohle's mental condition
ular
Oil
of business.”
Standard
course
188,
Moore,
is un
true.
It
relevant
or not
whether
Co. California
reg
they
disputed
taken in the
were
cert. den. 356
U.S.
hospitals’
1139,
business
ular
course
2 L.Ed.2d
S.Ct.
States,
regularly
hospitals
(1958).
took
See
v. United
Simms
promptly
U.S.App.D.C.
recorded such statements.
(1957),
den.
nom. Duncan
sub
cert.
question remains
States, 355
78 S.Ct.
U.S.
was correct
district court
whether
generally
We
and
disadvantaged
potential
situation in tal in
of
Those
the law evidence.” Id.
being
himself of
un-
courts
which
found
which would admit such records
validity
diagnosis
the
assert the
of
matter
view
as “a
occur-
able to
recorded
judge’s
rence
so recorded. While the
tory
admoni-
made in the course of the
event
* * *
deny
operating
hospital
limitation
the truth-
business of
did
matters,
drawing
nevertheless,
fulness of the
since
see no basis for
dis-
[and] can
diagnoses
expressly
did
the district court
tinction
of mental ill-
state
between
they
diagnoses
physical
or,
their
that
were not admitted for
ness and
of
illness
truth,
matter,
open
possi-
had
‘facts’ and
between
testimony
‘opinion’.”
conclusion
ble
that the doctor’s
Id.
part upon
recorded
based
data was
summary,
To
add
we would
having
suspect an infirm basis and
of
courts
would exclude records
wtiich
opinions
better than the
were no
diagnoses
mental
stress
because
upon
they
which
In
basis
founded.
diagnoses
much on
such
judgment
are
so
based
event,
not,
we
because
find
need
subject
opinion
are so
and
and
finally
prej-
errors,
other
determine
disagreement among
experts,
trained
effect of
udicial
the erroneous exclusions
“subjected
they
to the safe-
must be
standing alone.
guard
physi-
of cross-examination of
Taylor, supra,
cian who makes [them].”
type
The final
material
of
found
F.2d
147
at 304.
diagnoses
A
of
Exhibit
consists of
admit such records
Those who would
mental
of
condition members
guarantee
reply
admissibility
hospital
circumstantial
staffs. The
diagnostic
accuracy
rec-
of
of such
1732(a)
of
has
such statements under §
average
greater
“for
provoked
ords is
than
controversy. The
much
contro-
upon in
made and
af-
versy
diagnostic
records are
relied
extend to
seems
Lyles
fairs
and death.”
v. United
objective
of life
based
and
statements
on
data
(dis-
States, supra,
F.2d
presenting
average
at 738-739
diffi-
more than
Wigmore
citing
senting opinion),
on
culty
interpretation.
of
Even courts
1940);
1707, p.
(3rd Ed.
Evidence
steadfastly oppose the
§
admission
Hogan,
and
diagnoses
complex
Thomas
of more
concede
1962), and
therein.
cited
admissibility
diagnosis
cases
considered
reasoned, compelling
Further,
See,
it is
conjectural.
more routine
less
medical
at
trial of all the
g.,
attendance
Taylor, supra,
at
e.
147 F.2d
303-304.
diagnostic
responsible
personnel
for the
generally
See
on
McCormick
Evidence
pay
price
record
too serious a
“is
p.
n.
authorities cited
§
advantage
of cross-examin-
Brueker,
doubtful
supra,
therein. See also
ing a
doctor who
volume
[due
F.2d at 881.
noor
inde-
such routine
has little
cases]
here, diagnoses
where,
pendent
subject
has
recollection
involved,
mental conditions are
is a
there
writing.”
Lyles,
reduced to
strong split
among
opinion
both
(dissenting opinion).
F.2d at 738
opposing positions
within courts. The
addition,
concisely
have
Judge
the admission
been
summarized
advocates of
Chief
Otney
suggest
States,
all records
Murrah
records
these
subject
699-700
are
to error which cross-exam-
might expose,
He finds that courts
ination
that Section
which exclude hos-
pital
psychiatrist’s
opinions 1732(a)
them admis-
records
nevertheless makes
upon
“draw a
sible
circumstantial
‘distinction between
reason-
in reliance
reliability
arising
guarantees
able
of recorded facts
trustworthiness
738-739,
origin,
hand, and in
one
from
id.
controversial
technical
their
regard
juries
opinions
they
upon
to al-
ability
other’
reliance
weight
opinion
(such
proper
the ‘difference
a “fact”
between
low the
to medical
act,
Finally,
transaction,
types,
as an
of all
id. at 740.
occurrence or
*11
argued that
may
circumstantial
It
well be that the coexistence of
increasingly
evidence
trustworthiness
complex
shown
an
society and over-
lacking
by
may
be
either
the records them-
burdened courts
in the future ne-
indicating
by
selves
other evidence
cessitate the elimination of some of the
opinion
evidentiary
lacks factual
basis
rules which we have hereto-
expert qualification,
then the
safe-guards
records
fore deemed to
verity.
be
by
be barred
limitations of We do not believe that we have arrived
1732(a)
Section
point,
itself and the doctrine
however,
regard
at that
Hoffman,
109,
of Palmer v.
type
U.S.
the third
of material under consid-
111-115, 63 S.Ct.
was not intended
did
resolve
professional
opinion
of an
with the
question
admissibility
of rec-
rendering
diagnoses.
person
Thus,
qualification of the
ords of mental
approach
appear
must
im-
opinion.
as an issue of first
This often would
pression in this
opinion.
court.
the recorded
prior
begin-
Nearly
For these
we are of the
two months
reasons
ning
opinion
trial,
ruled
had
district court
cor
rectly
type
as to the third
moved to have Bohle examined
eviden
tiary
psychiatrist.
material.
own
Government’s
denied
motion was
court at
Our
far has
discussion thus
assumed
*12
day
the
of
At
close of the second
time.
parts of
rec-
that some
Bohle’s medical
trial, just prior to the
rest-
Government’s
ords
as
could be admitted
evidence of
ing
case, when the defendant
its
indicat-
the
of
truth
the matters stated while oth-
insanity
issue,
ed
an
the
that
was
parts
er
could be
for the
admitted
lesser
granted
district
then
the
court
Govern-
background
purpose
import-
of
without
request
ment’s motion
denied
ing verity.
during
present
that
psychiatric
counsel
appeals
At least one court of
The examina-
examination.
has found it to be
error to admit
clear
tion
the weekend and
conducted over
less than the entire record. Harris v.
thereby.
interrupted
was not
trial
Smith,
F.2d
816-817
apparently not
una-
While there is
entire
1967),
Glawe, supra,,
F.2d
at 498.
involved,
nimity
here
which
on
issue
Where the admission of the entire record
developing
is
con-
to some extent
still a
necessary
background
parts
is
as
for
cept
opinion
law,
in the
in our
better
admissible,
agree
otherwise
we
reasoning and
that which is set
result is
ordinarily
be error
to exclude
Albright, 388
forth in United
parts. However,
some
we can find
approve
F.2d
and we
persuasive reason for
an absolute rule
reasoning and
for
result of that case
subject. Certainly,
only part
where
this circuit.
of the record is admissible for the truth
court adverted
Albright,
In
stated,
of the matters
the court should
applicability
to the
of
U.S.C.
§
so inform the
and instruct
it that
basically
pertains
to mental com
which
parts
other
ground.
are admissible
as back
petence
here
at the time
trial. We are
of
compe
concerned with Bohle’s mental
incident
tence at the time
involved
EXAMINATION BY GOVERNMENT
Albright,
did the court in
PSYCHIATRIST
great
hold that because
we
importance
expert testimony
the is
Bohle further
contends
his Fifth
insanity
mini
sue
because
against
privilege
Amendment
self-in-
privi
mal
Amendment
risk to the Fifth
crimination was violated when the trial
lege,
the inherent
federal courts have
compelled
court
him
to submit
an ex-
power
to submit
order a defendant
psychiatrist
amination
by a
coopérate
examination
having
and so to submit without
his at-
de
psychiatrist
Government'
torney present.
insanity
an is
made
fendant’s
has been
psy-
At
the time
court ordered the
sue in the case.
chiatric examination, Bohle also stated
not
psychiatrist
an
does
pres-
examination
desire for his
to be
Such
privilege,
permitted.
Fifth Amendment
This
not
the violate the
On
ent.
an
trial,
ruling
purpose
sole
enable
motion
because its
expert
new
as to
opinion
defend
psychiatrist
urged
an
as to
to form
addition
capacity
presence
criminal
pertaining
ant’s mental
to form
however,
to aid
appeal,
intent.
It is
intended
counsel. On this
showing
de
psychiatrist
of facts
establishment
exclusion of
defendant’s
urged
acts consti
certain
fendant committed
was not
an error
we
used, urged,
tuting
so
It cannot be
If
a crime.
deem it waived.
it had been
into evi
impermissible
to introduce
we would
treated
in the same
this
guilt any statement
request
dence on the issue
manner as
do
hereinafter
during
course
the defendant
presence
made
for the
of counsel.
psychiatrist
We note that in
examination.
or he was the selection
specifi-
the instant case the trial court
the Government.
in that
cally
granting
ruled in
the examination
case the court relied on
State Whit
“any testimony
low,
predicated upon
this
(1965).
45 N.J.
trist
there is also some lack
unanimity
authorities. Much
psychiatrist
the ex-
who made
developed in this
that has been
law
request
amination at the
of the Govern-
person-
in connection with
area has been
Dr.
Metcalfe. Follow-
ment was
Grant
injury
differentia-
al
civil cases. Some
ing testimony
qualifications,
his
he
as to
reached where
tion of result has been
interrogated
of the
as to
nature
was
examining psychiatrist
the court
was
During the
he had made.
examination
opposed
psychiatrist
to one selected
testimony
phase
he
of this
of his
course
party.
petitioning
a Minne-
stated that Bohle had done
differentiating at
the annotations so
See
Inventory
Personality
Multiphasic
sota
(1959) and 7 A.L.R.3d
the doctor’s in defendant’s ords that contained and, with secretary the Institute called overruled. While A and it was Exhibit tape- knowledge party, other of the might first seem blush this contention telephone conversation recorded merit, else- have some as we have gave her all the results.” “wherein opinion, the ba- discussed in report The doctor then stated A, of Exhibit sis for the admission things arriving he used one of the admitted, extent it was U.S.C. opinion. asked what at his When 1732(a) applicability has no § diagnosis was, objected. here. prelim- presented with a are here We objection, re- The court overruled inary question the error as to whether raising ferring timing appeal. preserved on this under which this and the time the issue *14 referring psychiatric (presumably the trial for a new In the motion both examination) taken. appeal, was upon Bohle contends permitting in Dr. error that there was permitted to then tes- The doctor was opinion a the Metcalfe to use as basis for diagnosis being that Bohle tify his as to expressed court, in the information hijacking incident was at the time of the by acquired telephone the conversation.1 sociopathic personality. sociopath element of confusion only objection Again, there is an made to the diag- doctor then in that the testifying in the situation his as to Dr. Metcalfe’s personality not going object that such a testified capable “I’m insofar nosis was right distinguishing from upon partially predicated the as this is qualify wrong. his did then psychiatric report The doctor constitutes which by stating personalities that such place hearsay con- answer as this insofar intellectually might distinction make the (Emphasis supplied.) cerned.” feeling it. they for the did not have but Technically ap it would have testimony bor- seem have This would peared acquired via that the information upon support the defendant’s dered psycho telephone in the nature of a was involving right-wrong clas- position the only logical report the inasmuch as any McNaughten In definition.2 sical event, technically reports re could be which that proceed to state did the doctor psychiatric con which were ferred to as opinion a men- did not have in his Bohle by the ones sidered Dr. Metcalfe were in the it here “as we use tal disease A, included in defendant’s own Exhibit signs in his no he found courtroom” and only can assume that it was the tele we had had ever examination that objection phoned report to which was be a mental disease. ing There is no indication made. might defend- that the seem and in While the court understood otherwise argued persuasive- rather any ant could have ly event the of suf we consider matter testimony not that Dr. Metcalfe’s importance ficient that we eon- would thorough the mat- Although designated 2. discussion in the motion for See capacity in telephone mental ter of definition trial as a conversation with new “somebody insanity obviously regard Philadelphia,” the defense in prevailing adoption Jersey in this rule Newark, reference was New Shapiro, circuit, conversation, being only United States one to which (7th Cir. F.2d 680 Dr. testified. Metcalfe opinions by damaging supported seriously to the defendant un- were Institute, computer proper Rosch instructions on der the court’s programmed many capacity in connec- so that the matter mental cases defense, developed correctly insanity score there would neverthe- tion with sufficiently results, less, accurately there was a definite evaluate the judgment jury there opinion were no real en- for the effect factors tering mentally preclude performed ill into the work in New not Bohle was Jersey testimony opinion saying that the same from us by damaging eyes have been arrived at the doctor of the even fact if this test had not been administered. jury. say presence While we do not considering question now before chang- or all of these factors would have hearsay aspect pass us, double result, developed ed none of them was implicit the doctor’s sec- the fact that by interrogation in this either ease hearsay retary chain but added to the open by dire doctor or in court voir present purposes re- for the assume proceedings. be- matter stood by telephone port as over the fore the that the test on results of a accurately Jersey psychologist was New part which his the doctor had in based relayed to Dr. The crucial Metcalfe. opinion had not been formulated question here is whether doctor doctor but someone else was not who permitted to been base should have anymore in court than the results them- part telephoned opinion upon re- directly selves court. opportu- port to which there was nity preparer cross-examination Upon the of this circumstances thereof. permit record it was error to Dr. Met testify opinion. calfe to his expert that an is the settled rule “[I]t give opinion in evidence gained upon is based information CLOSING ARGUMENT outside the statements of others from *15 urges prejudicing Bohle further error courtroom, in such case the the since insanity arising his of the defense of out upon hearsay.” depend 2 opinions would closing argument of the States United 421, p. 794. See on Evidence Jones § Attorney there- and the court’s comment 15, p. 32. also on Evidence McCormick §' particular ar- on. While this matter of gument opinion expert may retrial, may be “The of an not occur on a we knowledge upon personal or obser- deem it to our atten- based advisable address Generally opinion speaking, the tion to matter since it raised on vation. the expert upon appeal informa- of a medical based this on fairness bears the insanity from third tion obtained out of court Bohle’s trial on the issue. person.s The same rule is inadmissible. challenged portion is as follows: question is san- followed when the the is * * * 2 ity Wharton’s of the defendant.” there is “[PROSECUTOR]: 519, p. (12th 344 Evidence Criminal § sanity. the presumption Unless Ed. Defendant, by it is issue is raised the test tion to have evaluated and had trator of the own Dr. factors, of some It Metcalfe may conclusion, test, of the 500 well be that the MMPI consists independently arrived at his that under questions, had test, have been be the full because too these conclusions that the adminis- significant, file circumstances significance before subjective best posi- him, that presumption, you give sumption proves. not an Defendant would overcome based ity [******] and not Defendant, and upon your own element This is a is not to just any (sic) even overcome. experts, that presumption of san- whatever You evidence the Government observations of may even find credence that that pre- 70 Generally, psychiatrists and the the other I’m COUNSEL]: “[DEFENDANT’S psychologist object testified that sorry, do Honor. Your J schizoid, psychotic enough paranoid, is not the evidence
fact
especially
predisposition to
presumption
to overcome
delusions—
psychiatrists and
All three
proper
under stress.
it is
question.
think
I don’t
agreed
psychologist
time
that at the
argument.
hijacking
detached
of the
Bohle was
they might
I said
“[PROSECUTOR]:
reality
by
and unable
reason
from
might,
they
Your Honor.
it,
find
disease or defect to control
mental
statement
think the
I
“THE COURT:
right
determine
conduct
between
(Em-
proper.
may resume.”
is
phasis supplied.)
You
wrong.
felt he faced
All said Bohle
determined
a life or death choicewhen
hijack Flight No. 831 to Cuba.
opinion that
these
It
our
prosecutor, concurred
statements
in
Once sufficient evidence
jury
by
court,
led the
could have
dis
presumption, it
to rebut the
troduced
appears
notwithstanding
that,
the sub
to believe
longer weighed
no
and should
insanity offered
stantial evidence of
Ingman,
jury.
v.
United
open
defendant,
it was still
(9th
1970);
973,
F.2d
Cir.
426
976
sanity
weigh
presumption
254,
States,
F.2d
Brock
387
United
v.
reaching
against
its verdict.
him in
1967);
v.
(5th
United
257
Davis
Cir.
stated,
find this
we
reasons to be
For
572,
(10th Cir.
States, 364 F.2d
574
law.
statement of the
an erroneous
to be
supra,
States,
1966); Otney United
v.
Keys
698-699;
question here of
v.
contra
There is
Notwithstanding, positive testi- mony Jernigan forget as the initial witness “I think his don’t I’ll ever concerning eyes. de- peculiar the calm collected He had the most look Bohle, eyes. watery. meanor of chose the Government Sad. Kind of witness, right looking to call her as a rebuttal Glazed. Like he was through seeing you. essentially you time the same she testified to even without only difference, drugs. set of facts. The I I had a think he was on good course, directly, was that this offered York took friend New who insanity. How- time rebuttal to the claim of LSD and set himself on fire one ever, *18 people to see at him he was as far as we are able when convinced shaky excited, jumpy 3. We note also that the other two stew- nervous and hijacking. been ardesses testified that Bohle had the time of the
73 Christ; eyes time, place to Jesus and his used with and circumstances just making, creepy.” of its look like It was to the attention of wit that. may admit, explain ness so that he During Jernigan dire, the voir denied deny Hayutin, States it. United v. 398 making eyes the remarks about Bohle’s 944, 1968), (2d F.2d 952-953 cert. Cir. drugs being and on but admitted 400, 961, den. L.Ed. 393 89 S.Ct. 21 U.S. a statement about friend York. New 374; States, and 2d Burton United 175 v. Thereupon, the court ruled that unless 960, (5th 1949), F.2d den. Cir. cert. 965 to defense counsel had in court someone 909, 347, 560 338 U.S. 70 94 L.Ed. S.Ct. say Jernigan that did make state- (1950), and cited therein. This cases ment, questioned she could not on be recently implicit quite court has gave matter. The court reasons as its recognition requirement. John to this that: County, Illinois, 418 F.2d son v. Gallatin ago “This witness testified a week 96, 1969). (7th 99-100 Cir. today, though testimony and even held that it has also been primarily went to what was said and attorney lays a foundation when time, done at that there was no reason by confronting an al- with witness why witness, to-wit, there is a —if leged prior is inconsist- which statement author of this tes- article —who would testimony and ent with the of the witness tify under oath that these actual words statement, making witness denies spoken, why there was no reason produce to error fail to is reversible foundation could have been person to whom the statement brought laid and this witness here. purportedly the wit- made to contradict day “We are here re- the last Reading Ry. v. Philadelphia Co. & ness. buttal, stand- the witness 1925); (3d Bartsch, 858, 861 Cir. 9 F.2d ing by that— the absence of —and Witkowski, Ill.App. 54 and Schoolfield v. prejudicial question will not be 460, 111, 125-126, 203 N.E.2d 2d put jury.” also See cited therein. cases 396, response Goff, record 398-399 no of de- F.2d shows v. 430 availability 1970); fense v. Ama- (7th counsel as to the of an Cir. United States impeaching (7th bile, witness other than his as- Cir. F.2d lay necessary grounds sertion that it was U.S. first to on other vacated (1969); putting foundation im- before on an 22 L.Ed.2d 89 S.Ct. peaching Maru, Sanyou witness. Robertson v. M/S 1967); St. Clair Cir. objects, Bohle here he did in the Lines, Inc., 279 F.2d Eastern Air court, procedure trial to dire the voir (2d 121-122 precedent claimed to be without prejudicial to defendant’s had we conclude Thus rights process. of confrontation and due permitted to attorney con been by compelling the Defendant asserts Jernigan the statement with front Jernigan con- cross-examination denied jury she presence and had jury, tinue in the absence of the the wit- duty to it, under have been he would permitted re- ness to acclimate with up impeaching foundation follow sight herself habilitate out of would, of impeaching “It evidence. * * * jury. objects Defendant further improper course, have been right ultimate denial examine questions read the counsel Jernigan concerning jury before the prejudicial putting their purpose of alleged statement. intent before content laid thus sought foundation use of the im make Where a witness is St. impeaching witness].” calling peached prior [the of his incon basis But at 122. recog F.2d cf. statements, generally Clair, sistent it is Baking Co., v. Ward nized must laid foundation Wilson Ross, Taylor Ohio 1963); together calling alleged statement, *19 74 395,
App.,
(1948),
that
in
78 N.E.2d
400
rev’d is the “well established [rule]
generally
grounds
448,
great
on other
83
is
150 Ohio
criminal cases
latitude
St.
(1948);
permitted
222
Hen-
of a
N.E.2d
Miller v.
in the cross-examination
derson,
15,
23,
N.J.Super.
prosecution
A.2d
in order to test
41
124
witness
(1956).
credibility,
any prior in-
especially
27-28
as to
used
be
consistent statement which could
Bearing
attorneys
in mind that
are of-
impeach
in an effort to
him.” McConnell
court,
be,
ficers of the
would
404,
States,
F.2d
406
393
v.
hope,
opinion,
of the
but of the
prejudicial
putting
of
occasion
con-
jury
tent before
make
with no intent to
Balancing
this interest of
use of the
thus laid would be
foundation
in
defense
cross-examination
an effective
Nevertheless,
indeed minimal.
the diffi-
avoiding
against
of
in
abuse
the interest
duty
question
cult
remains as to
how
right,
recognizing the tradition
that
ally
is to be enforced in the
contrary.
case to the
rare
of
trial court
broad discretion
litigation
In
and in
civil
regulation
cross-examination, we
of
prosecution
case,
in a
case of
criminal
no error
have concluded that there was
duty
up
to
evi-
follow foundation with
demanding
of defense
assurance
some
dence is
at the
of reversal
breached
risk
any
up
im
that he would follow
counsel
victory.
of
after-the-
tainted
This
peaching
How
with
foundation
evidence.
not,
course, available
fact sanction
is
ever,
it
we further conclude
to
such an abuse has
contributed
go
require de
error to
further
to
a successful
Thus it
criminal defense.
to continue his cross-exam
fense counsel
appear
would
that some before-the-fact
Jernigan
out
ination
witness
regulation may
particularly appro-
jury.
presence of the
is,
priate in
This
such a situation.
course,
say
may not be
not to
it
indi
has
The Second Circuit
appropriate in
found
other situations
proper to ask
it
cated
before
now
us.
up an
to follow
counsel
he intends
hearing
employed
The voir dire
nega
impeaching
“upon
question and
trial court here was such a before-the-
inquiry, it would
tive answer to such an
pos-
proceeding
avoid
fact
intended to
clearly
permit
erroneous
[be]
[asking
assessing
propriety,
sible
its
abuse.
Clair,
question].”
St.
we must be
of certain fundamen-
aware
supra,, 279
at 122.
also Illinois
F.2d
See
right
concerning
principles
tal
74-75,
Irish,
Ill.App.2d 67,
222 N.E.
v.
77
cross-examination.
judge
(1966).
2d 114
a trial
is
Where
possibility that counsel
right,
aware of the
embraced in
Sixth
impeaching question
guarantee,
is
intends
ask an
Amendment’s confrontation
having prejudicial
implications,
is
importance in
defense
of critical
advisable,
proper
v.
interests of
prosecution,
a criminal
Texas,
Pointer
see
avoiding
insuring
400, 403-406,
a fair
S.Ct.
and of
abuse
U.S.
prosecution
(1965),
rea-
and the de
and a
to both the
trial
fendant,
75 any necessary impeach- presence However, interest the of to see what fail we ing may making have im- by opposing not been coun- witness who is to be served mediately privy specific available. to the and the witness sel are impeaching information. There Jernigan important in was an witness by protected certainly an interests to be the case. She was the Government’s case, for opposite the instant In rule. only in called both witness permitted time example, witness was the rebuttal.. Her and in the case-in-chief by procedure consider the voir dire significant credibility on the was any reaction answer to eliminate her in mental issue the case —Bohle’s real alleged surprise impeaching the of the offense. at time of condition the jury. presence of the material out of the reliability to demeanor a witness Her practice appear to have would Such already apprecia- subjected to had been strong tendency func- to undermine the say now question. cannot ble We confronting the the tion of witness preventing prejudice in there was no place. question the first The loss credibility her attack the of further jury im- initial and the of the witness’s testimony concerning critical fact of the by response accompanied mediate is appearance at actions significant aspect potentially loss of one time of offense. credibility of the determination. case, point in thus usual can see no we opinion We reached weakening right an effective cross- necessary trial here with extreme new by examination use of the voir dire arguable really It not reluctance. procedure.5 finding justified jury amply was charged guilty crime of made no The district court here against responsi- him not concerning unless he was inquiry of defense counsel his conduct as a result ble for criminal impeaching availability evidence him to of disease or defect which caused requiring before the voir dire. Once appre- capacity substantial either to held, lack voir dire much was wrongfulness his ciate the conduct attempted advantage impeach- require- to the to conform his conduct irretrievably ment think lost. We Shapiro, ments of law. United States right counsel then had a stand 1967). F.2d Our objection procedure the voir dire with- the fact that an reluctance stems from indicating im- out whether he had jurist fairly experienced able peaching immediately witness available. consuming days. conducted a trial seven Because we find error in the use lightly set would not aside We case, procedure voir dire result, yet unmindful of we cannot be problem not whether need address indignation public considerable court, Jernigan’s light both of particular the crime in- time toward previous allegedly appearance and of its accompanied public volved, by some lack scope, limited should have defense understanding, counsel some additional time to secure not indifference would sistent statement. There then be foundation would followed evi- independent problem impeaching dence. seems the no need of evi- presented dence, questioning before court. appropriate. approved note, however, procedure exceptional dire We A voir cases type impeachment example, are For another situation conceivable. Miles, applicable counsel here in States v. informs the court that he has no impeaching (3d introduce, See also F.2d evidence U.S.App. question may appropriately States, 125 foundation v. United Coleman (1966), Nothing n. 2 excluded. then is to be lost D.C. the voir den. 386 87 S.Ct. dire and reveal cert. U.S. (1967). prior witness himself will admit the incon- L.Ed.2d 875 repugnance, the defense even toward incapacity. mental al., Plaintiffs- Harold KEMMERER et Appellees, deciding Therefore, whether without would, herein recited errors al., et Defendants- Mark L. WEAVER magni- *21 standing alone, sufficient be of Appellants. reversal, we require case to in this tude No. 18640. together, that, taken when are convinced impact was sufficient prejudicial their Appeals, United States Court the issue deny trial on a fair Circuit. Seventh will Accordingly, new trial insanity. June necessary. herein, reasons stated
For and sentence
judgment conviction cause remanded reversed
must be proceedings inconsistent further
herewith. and Remanded.
Reversed Judge
CUMMINGS, (concur- Circuit
ring). expressed ably the reasons For Judge in Thomas Sobeloff
Chief Hogan, 355, 358, (4th Cir. my judgment A
diagnostic in Exhibit materials found truth for the admitted
should have been This is
of the matters asserted. Supreme
position Court’s taken
Advisory Rules Committee on Uniform 803(6) Proposed Rule
of Evidence. See 51 F.R.D. and the note thereon.
420, 426-429. Judge (dis-
ENOCH, Circuit Senior
senting) . agree procedures dictated
I majority opinion would constitute agree Judge practice. I the better diagnostic Pell on the issue of opinions in the medical
contained
records.
Nevertheless, in the context of the Judge trial, noted in
entire the errors scholarly opinion to me not
Pell’s seem gravity
to attain to the reversible my Regretfully from
error. colleagues’ I dissent affirm the
view. I would
judgment of the District Court.