UNITED STATES of America v. Wilfredo ALVAREZ et al. Appeal of John a/k/a Jorge MARTINEZ.
No. 74-1933.
United States Court of Appeals, Third Circuit.
June 11, 1975.
As Amended July 16, 1975.
519 F.2d 1036
I am of the firm, unequivocal view that Floyd‘s resentencing is affirmatively shown to have been utterly bereft of any “realistic likelihood of vindictiveness“, hence I would affirm the judgment of the District Court, except, of course, for giving credit for the time served.
In fact, at sentencing Judge Allgood expressed his concern for this appellant when he made the following remarks:
“I‘m going to recommend an institution for you to serve this sentence where you can, if you wish, complete your education and where if you need any assistance physically, medical assistance, you can get it. I don‘t know. I make no decision about that. I recommend that this sentence be served in Texarkana.”
I am unwilling to accept as a matter of law the idea expressed in the majority opinion that there can be “a reasonable apprehension that judges who work together daily and must preside at other‘s retrials will have a stake in discouraging such reviews“.
Moreover, it stands wholly unsupported by the facts in this case. Judge Allgood‘s solemn statements totally refute any such notion. If Floyd, for his own advantage, wishes to interpret those statements in some other manner, I would remain wholly unperturbed. The facts surrounding Floyd‘s guilt were not developed in the guilty plea proceedings; they were fully developed in the trial which Judge Allgood heard. I think the trial judge is as entitled to consider these facts as he is to consider post conviction conduct as per Pearce.
Except for credit for time served, I would let this sentence stand unaltered.
Jonathan L. Goldstein, U. S. Atty., John J. Barry, Asst. U. S. Atty., Newark, N. J., for appellee.
Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
John Martinez appeals from a judgment of sentence of 25 years imprisonment entered upon his conviction for kidnapping and conspiracy to kidnap. He is one of seven defendants named in an indictment returned on March 19, 1974 for kidnapping for ransom of John Calzadilla. Two of the seven were adjudged juvenile offenders before trial. At trial one defendant, Alvarez, was acquitted. The remaining four were convicted. The convictions of two, Fernandez (No. 74-1931) and Roberto E. Martinez (No. 74-1934) have been affirmed in separate judgment orders of this court filed simultaneously with this opinion. Also, a separate opinion in the case of Hernandez (No. 74-1932) is being filed on this date. Prior to the trial John Martinez raised the question of his competency to stand trial. In a preliminary hearing the district court found him to be competent, and he concedes that there were no errors affecting that finding. At the trial John Martinez relied upon the defense of insanity as defined for this circuit in United States v. Currens, 290 F.2d 751 (3d Cir. 1961). On appeal he urges, among other things, that the court erred in admitting the testimony of two psychiatrists. We agree, and thus we reverse his conviction and remand for a new trial.
The district court, with the consent of all the defendants except Hernandez, ruled that the issue of participation in the kidnapping would be tried separately. If the jury found that John Martinez had participated, then evidence would be received on the insanity issue. The jury did find that he participated. The trial then proceeded before the same jury for a determination of his sanity at the time of the kidnapping. By agreement of the parties John Martinez presented his case first. This consisted of live testimony by his sister, and by Dr. Chester L. Trent, a psychiatrist. There was also a stipulation as to what Margarete Jurick, Senior Psychologist at Kings County Hospital, Brooklyn, New York, would testify to concerning her examination of John Martinez reported on April 14, 1974. Dr. Trent‘s testimony established, prima facie, that John Martinez lacked substantial capacity at the time of the kidnapping, as a result of a disease or defect, to conform his conduct to the requirements of the law. The government called three psychiatrists. As to two of these, John Martinez contends that admission of their testimony over strenuous objection was error.
DR. FLICKER‘S TESTIMONY
Thomas F. Campion, Esq. was appointed counsel for John Martinez pursuant to the Criminal Justice Act,
“Upon the motion of the Court and with the consent of the United States Attorney ... and the consent of counsel for the defendant Martinez ...
It is this 11th day of April, 1974 ORDERED that Dr. David J. Flicker be and hereby is appointed pursuant to
Title 18 U.S.C., Section 4244 , to conduct a psychiatric examination of defendant John Martinez on April 13, 1974, ...ORDERED that all reports regarding John Martinez by the psychiatric experts employed by the United States and by counsel for the defendant John Martinez be submitted to the Court with copies to opposing counsel on or before April 19, 1974 ... ..” (App. for John Martinez at 37a).
The order is unequivocally clear. The sole purpose of Dr. Flicker‘s appointment was to conduct the examination authorized by
“No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.”
In view of this explicit language, the recital in the April 11, 1974 order that it was consented to by Mr. Campion adds nothing. Defense counsel are encouraged to consent to an examination which otherwise may be compelled on the assurance that nothing their client says to the psychiatrist may be used against him on the issue of guilt. The examination by Dr. Flicker was solely for a
inquiry into present competency and was consented to solely for that purpose.
The court‘s psychiatrist, Dr. Flicker, found John Martinez to be competent and so reported. A psychiatrist selected by the government, Dr. Schwartz,2 reported that as a result of mental disease Martinez lacked capacity to assist in his own defense. Shortly thereafter, and on the government‘s motion, an order was entered sending John Martinez to the Medical Facility for Federal Prisoners at Springfield, Missouri for a determination of his competency to stand trial. The psychiatric staff at Springfield reported that he was competent. A
At the trial on the issue of John Martinez‘s sanity at the time of the kidnapping, and over objection, the court permitted Dr. Flicker to testify that the Currens test was met. He was quite clearly the most effective government witness on that issue, and he recounted statements made by John Martinez that, while he denied involvement in the crime, “he knows that it was wrong.” (Tr. at 3400).
The government defends the use of Dr. Flicker‘s testimony on three grounds: (1) that the April 11, 1974 order should be deemed to have been made pursuant to the court‘s “inherent power” to order a psychiatric examination on the Currens issue as well as on the issue of present competence; (2) that the prohibition in
Whatever “inherent power” courts may possess to order a defendant to submit to a psychiatric examination for the purpose of assisting the government in meeting its burden of proof under United States v. Currens, supra, the short answer to the government‘s first contention is that in this case the district court did not make any such order. The defendant was ordered to submit to a
But we need not decide in this case whether the fifth amendment would prohibit the use, solely on the Currens issue, of statements elicited under the compulsion of a court order. No order was entered except the one authorized by
That brings us to the government‘s second contention, that the prohibition on use of statements by the ac-
cused in the course of a
Section 4244 was enacted in 1949, Act of Sept. 7, 1949, ch. 535, 63 Stat. 686. That law, comprised of five sections, dealt comprehensively for the first time with the care and custody of insane persons charged with or convicted of offenses against the United States. It did not deal with the trial of offenders. Prior to 1949 few federal statutes dealt with the problems presented when insane persons were charged with crime. Chief among these (and perhaps the only enactments) were the Act of Feb. 7, 1857, ch. 36, § 5, 11 Stat. 158, as amended, 24 U.S.C. § 211 and the Act of June 23, 1874, ch. 465, § 1, 18 Stat. 251, as amended, 24 U.S.C. § 212. Because of rulings by the United States Attorney General7 and of federal practice no adequate means was provided for dealing with the confinement of insane persons accused of crime outside the Armed
In 1942 the Judicial Conference of the United States authorized the Chief Justice to appoint a committee which would, in cooperation with the Attorney General, study the treatment accorded by the federal courts to insane persons charged with crime. This committee submitted a report to the September 1945 session of the Judicial Conference. Included in the report was a draft bill incorporating most of the provisions now found in
Cong., 2d Sess. 7, 8 (1948). The bill passed in the Senate but not in the House. It was reintroduced in the 81st Congress as S. 936, and adopted in form virtually identical with that approved by the Judicial Conference. Act of September 7, 1949, ch. 535, 63 Stat. 686, codified in
The next to last sentence of
It it quite clear that the object of the bill was not to provide to the government a new means for obtaining evidence for use at the trial. Structurally,
We are advised that United States attorneys have frequently sought
Since the only examination made by Dr. Flicker was made pursuant to a
The government‘s final contention is that the admission of Flicker‘s testimony was harmless error. Our examination of the record convinces us otherwise. Flicker was the only doctor who examined John Martinez who did not find some evidence of mental illness, and he was the only witness who challenged the genuineness of the defendant‘s claimed amnesia.
The admission of Dr. Flicker‘s testimony was error and requires a new trial.
DR. SADOFF‘S TESTIMONY
After the
“AND IT IS FURTHER ORDERED that the Government and this defendant exchange copies of results or reports of physical or mental examinations of the defendant, and of scientific tests or experiments made in connection therewith.” (App. for John Martinez at 55a).
The May 6, 1974 order was made upon a motion by John Martinez‘s attorney for discovery and inspection pursuant to Rule 16, Fed.R.Crim.P. and for a bill of particulars. It granted mutual discovery in several respects and it was consented to by the United States Attorney.
The report revealed Dr. Sadoff‘s opinion:
“With respect to his state of mind at the time of the alleged offense, it is my opinion that he was disturbed, was depressed, but did know the nature and quality of his act, did know that he was doing what was wrong and did not lack substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated.” (App. for John Martinez at 72a).
The government subpoenaed Dr. Sadoff. Defense counsel moved to quash the subpoena. The court denied this motion and permitted Dr. Sadoff to testify over objection. That objection was based on the fifth amendment privilege against self-incrimination, the sixth amendment right to effective assistance of counsel, and the attorney-client privilege. The government contends that there is no fifth amendment issue and that any sixth amendment or attorney-client privilege was waived. We agree that because the disclosures made to Dr. Sadoff were entirely voluntary the privilege against self-incrimination is not relevant. The sixth amendment attorney-client issue is more difficult.
United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) holds that communications to an accountant, in confidence, for the purpose of obtaining legal advice from a lawyer are protected by the attorney-client privilege. No federal case has been called to our attention applying the same rule to a medical expert retained to assist an attorney in preparation for trial. Some state courts have considered the question. See, e. g., State v. Kociolek, 23 N.J. 400, 129 A.2d 417 (1957);
The first waiver contention is based upon the provision of the May 6, 1974 discovery order quoted above. The theory is that because prior to the retention of Dr. Sadoff it was clear that his report would be disclosed, there never was any expectation of privacy. Entirely apart from the question whether or not a waiver constructed on this chronology would suffice to meet federal waiver standards,14 we do not think the order can be so construed. The government first opposed the defendant‘s discovery motion. This led to negotiations which produced a form of order to which the government was agreeable. The government was entitled to medical reports which the defendant intended to produce at the trial. Rule 16(c), Fed.R.Crim.P. The language of the order goes beyond this, requiring the production of all reports without reference to whether the defendant intended to produce them at the trial. But we do not construe it as a waiver of the attorney-client privilege. Rather we view it as a matter of convenience in trial preparation which enabled the government to prepare for cross-examination if the defendant decided to call any particular psychiatrist as a witness. Mr. Campion could, we think, properly assume that expert testimony could not be compelled. See Rule 28(a), Fed.R.Crim.P. We find no waiver of the attorney-client privilege.
But the government also contends for a much broader waiver rule. It urges that the assertion of an insanity defense results in the waiver of any claim of privilege with respect to any psychiatric examination of the defendant. The issue of a physician-patient privilege in this context of the trial of an insanity defense is not before us.15 Such a privilege would arise only in the context of a consultation for diagnosis or treatment. We are dealing with consultation for trial preparation, and possibly for testimony. We must also distinguish the issue of waiver if either a treating physician or a trial consultant is called to the stand and testifies. See 8 J. Wigmore, Evidence § 2390, at 861-65 (McNaughton ed. 1961). The issue here is whether a defense counsel in a case involving a potential defense of insanity must run the risk that a psychiatric expert whom he hires to advise him with respect to the defendant‘s mental condition may be forced to be an involuntary government witness. The effect of such a rule would, we think, have the inevitable effect of depriving defendants of the effective assistance of counsel in such cases. A psychiatrist will of necessity
The government contends that in this case no harm resulted from Dr. Sadoff‘s testimony about damaging factual statements made to him by John Martinez, because the trial was bifurcated. But the broad waiver rule which it urges would be equally applicable to cases in which there was no bifurcation. Moreover, the inhibiting effect of a rule waiving the attorney-client privilege with respect to psychiatric consultations in all cases of an insanity defense operates not only with respect to the facts of the crime but also with respect to the defendant‘s mental state. The attorney should not be inhibited from consulting one or more experts, with possibly conflicting views, by the fear that in doing so he may be assisting the government in meeting its burden of proof on the Currens issue. Thus we reject the contention that the assertion of insanity at the time of the offense waives the attorney-client privilege with respect to psychiatric consultations made in preparation for trial.
Finally, as with Dr. Flicker‘s testimony, the government urges that if it was error to admit Dr. Sadoff‘s testimony the error was harmless. Dr. Trent, for the defense, testified to a number of damaging admissions by John Martinez with respect to the offense so that the jury could understand the basis for his opinion that Martinez was insane at the time of its commission. Dr. Sadoff repeated many of the same admissions. Were the issue solely whether John Martinez was a participant we could say admission of Dr. Sadoff‘s testimony was harmless. But the issue was his sanity, and Dr. Sadoff formed from much the same data a conclusion opposed to that of Dr. Trent. The error was not harmless.
The admission of Dr. Sadoff‘s testimony was error and requires a new trial. If the government at a new trial can produce evidence, other than the May 6, 1974 discovery order and his assertion of the insanity defense, that Martinez made disclosures to Sadoff with no expectation of confidentiality our present ruling does not preclude use of his testimony. There is no such evidence in this record.
OBJECTIONS TO THE CHARGE
Relying principally on a line of cases in the District of Columbia Circuit16 John Martinez requested instructions respecting the disposition in the event he was found not guilty by reason of insanity.17 The thrust of the request-
John Martinez claims that the government attorney went beyond the bounds of proper argument in summation. Where there were improprieties they were promptly and vigorously dealt with by the district court. We find no error in these rulings.
SCOPE OF THE REMAND
We mentioned earlier that the district court bifurcated the trial between issues of the defendants’ participation and the issue of John Martinez‘s sanity.21 There was a determination by the jury that he was a participant. Both of the errors upon which we base reversal occurred in connection with the trial of the sanity issue and could not have affected the jury‘s determination that John Martinez participated in the kidnapping. We must, therefore, determine whether the mandate should provide for a new trial of the entire case or only on the sanity issue.
It is by now a settled proposition that the double jeopardy clause of the fifth amendment does not bar a retrial after a reversal on appeal22 so long as there was sufficient evidence presented in the first trial to establish a prima facie case.23 Moreover we have statutory authority to “require such further proceedings to be had as may be just under the circumstances.”
There is no extensive federal jurisprudence on bifurcating verdicts, although this circuit and others have dealt tangentially with the subject. In United States ex rel. Scoleri v. Banmiller, 310 F.2d 720 (3d Cir. 1962) (en banc), cert. denied, 374 U.S. 828, 83 S.Ct. 1866, 10 L.Ed.2d 1051 (1963), this court considered Pennsylvania‘s former practice of allowing the same jury to decide both guilt and sentence in a capital case. In a sharply divided en banc decision, the court held that due process was violated when prejudicial evidence was admitted bearing on sentence prior to guilt determination. Bifurcation, it was held, was required by due process. See Frady v. United States, 121 U.S.App.D.C. 78, 348 F.2d 84 (1965), cert. denied, 382 U.S. 909, 86 S.Ct. 247, 15 L.Ed.2d 160 (1965). Compare United States v. Curry, 358 F.2d 904 (2d Cir.), cert. denied, 385 U.S. 873, 87 S.Ct. 147, 17 L.Ed.2d 100 (1966). The holding in Banmiller, supra, was overruled by Spencer v. Texas, 385 U.S. 554, 559 n.5, 567-69, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). See McGautha v. California, 402 U.S. 183, 209-10, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971).
Analytically, bifurcation between the verdict on guilt and the imposition of sentence is a quite distinct issue. Sentence is not a matter on which the government has the burden of proof beyond a reasonable doubt. On guilt it has that burden, and in this circuit guilt includes capacity. Government of the
In the state courts, as might be expected, there has been more extensive experience with bifurcated verdicts. In California, for example, a statute first enacted in 1927 requires that the issue of guilt and the defense of insanity be tried separately.26 When a jury finds a defendant guilty but disagrees on insanity California goes so far as to permit the impanelling of a second jury to try or retry the insanity issue alone.27 The effect of the California mandatory bifurcation is to deprive the defendant of the benefit of evidence bearing upon wilfulness or premeditation. In People v. Wells, 33 Cal.2d 330, 202 P.2d 53, cert. denied, 338 U.S. 836, 70 S.Ct. 43, 94 L.Ed. 510 (1949), despite the apparently mandatory language of the California statute, that state‘s Supreme Court held it was error to refuse to admit evidence at the guilt determining stage, that a psychological abnormality could have produced a belief by the defendant that he was acting in self defense when he committed an assault. The difficulties presented by the California procedure are analyzed in Louisell and Hazard, Insanity as a Defense: The Bifurcated Trial, 49 Cal.L.Rev. 805 (1961).28 Both the California cases discussed and the law review article antedated the decision in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) which imposed a federal jury trial requirement
Another state with a statute similar to that of California is Arizona. In State v. Shaw, 106 Ariz. 103, 471 P.2d 715 (1970), cert. denied, 400 U.S. 1009, 91 S.Ct. 569, 27 L.Ed.2d 622 (1971), the Supreme Court of Arizona held that the statute violated due process under the state constitution and under the fourteenth amendment because it excluded from the guilt determining process consideration of evidence bearing upon intent, premeditation, or malice. See Comment, Due Process and Bifurcated Trials: A Double-Edged Sword, 66 Nw.U.L.Rev. 327 (1971), discussing due process problems presented by the several varieties of state bifurcation statutes, and suggesting that there is a legislative movement away from the device.
The due process defect upon which the Arizona Supreme Court relied is not so acute when the same jury determines both the fact of participation and the mental capacity of the accused, although participation and competency are considered sequentially. But in the remand situation that will not be possible. A remand for the single purpose of determining sanity will present the due process defect in its most acute form. It is a problem which involves not only an interpretation of
The judgment appealed from will be reversed and the case remanded to the district court for a new trial.
JAMES HUNTER, III, Circuit Judge (concurring):
I concur fully in the opinion of the court, but would like to add a few words. With respect to Dr. Flicker‘s testimony, what is determinative in my view is the fact that the order appointing Dr. Flicker was a single purpose order. While
I also agree fully with the court‘s opinion that, with respect to Dr. Sadoff‘s testimony, the May 6 discovery order neither constituted a waiver of the attorney-client privilege nor destroyed the necessary expectation of confidentiality on the part of Martinez. In order for there to be an absence of an expectation of confidentiality which would prevent the attorney-client privilege from coming into being, there must be evidence that the person who made the communication and who is attempting to invoke the privilege was personally aware that his communications would be made known to other parties. There is no evidence that Martinez was personally aware that the Government would be able to learn of his communications to Dr. Sadoff, and a discovery order of which only counsel is aware is insufficient to establish the required personal knowledge on the part of the individual claiming the privilege.4 As the court today holds, the admissibility of Dr. Sadoff‘s testimony at retrial is dependent upon whether the Government can produce some other evidence that Martinez made disclosures to Dr. Sadoff without an expectation of confidentiality.
JAMES HUNTER, III
UNITED STATES CIRCUIT JUDGE
Notes
“A disturbing number of persons are being sentenced for Federal offenses and sent to prison who, because of insanity, should not have been convicted and who, because of their mental incapacity to participate rationally in their defense, should never have been brought to trial.”
“Of course, conviction of an insane person is void and open to attack on habeas corpus. Federal statutes, however, prescribe no procedure for determining the accused‘s mental competence to stand trial.”
Letter from Justice Tom C. Clark to Hon. Alexander Wiley, in S.Rep.No.1511, 80th Cong., 2d Sess. 2 (1948).
“No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused in any criminal proceeding.”
Report of Committee to Study Treatment Accorded by Federal Courts to Insane Persons Charged With Crime § 1, at 22 (1945). The 1946 version is identical to the one in“If you find John Martinez not guilty by reason of insanity, that finding shall be brought to the attention of the appropriate officials of the State of New Jersey to the end that he may not remain in a position in which he may be a danger to himself or to the public.” (App. for John Martinez, at 2a).
Requested charge # 10 read:
“If you find Jorge Martinez not guilty by reason of insanity he will be presumed to be insane and may be confined in a hospital for the insane as long as the public safety and his welfare require.” (App. for John Martinez, at 5a).
Requested charge # 11 read:
“A verdict of not guilty by reason of insanity means that the accused will be confined in a hospital for the mentally ill until the superintendent has certified, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or to others, in which event and at which time the court shall order his release either unconditionally or under such conditions as the court may see fit.” (App. for John Martinez, at 6a).
“[I]t is essential to understand and keep in mind that no agency of the Federal Government has the authority to confine, nor does any Federal court (District of Columbia excepted) have the power to commit mentally ill persons involuntarily for care and treatment. The responsibility for the involuntary detention of the insane for treatment and the protection of society rests solely with the states. ...”
“Courts of appeals have differed in their views as to available procedure in the event that a person is found not guilty of a federal criminal charge by reason of insanity. In any event, should Currens be acquitted at his new trial, the federal authorities should bring him and his condition to the attention of the State authorities to the end that he may not remain in a position in which he may be a danger to himself or to the public.”
Among the many bills dealing with the problem that have been submitted to Congress are the following:
H.R. 3907, 94th Cong., 1st Sess. § 3613 (1975); H.R. 15046, 91st Cong., 1st Sess. §§ 4237-38 (1969); S. 979, 91st Cong., 1st Sess. § 4249 (1969); H.R. 17033, 89th Cong., 2d Sess. § 4249 (1966); S. 3689, 89th Cong., 2d Sess. § 4249 (1966).
“When a defendant pleads not guilty by reason of insanity, and also joins with it another plea or pleas, he shall first be tried as if he had entered such other plea or pleas only, and in such trial he shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed. If the jury shall find the defendant guilty, or if the defendant pleads only not guilty by reason of insanity, then the question whether the defendant was sane or insane at the time the offense was committed shall be promptly tried, either before the same jury or before a new jury in the discretion of the court. ...”