*1 here, complainant where, legal ceeding pro untutored se and is

niceties.3 reasons, foregoing the order

For be vacated will District Court for remanded cause opinion. inconsistent with this America, STATES

UNITED Appellee, DRISCOLL, Defendant-

Daniel J. Appellant. 31946.

No. Docket Appeals

United States Court

Second Circuit. Argued April 1968. City Nessen, N. York Maurice New July Decided 1968. (Kramer, Hochman, E. Nessen & Robert Kushner, brief), City, Rehearing Denied York Banc Nov. New En defendant-appellant. for 15, 1968. Atty. III, Doyle, John H. Asst. U. S. (Robert Morgenthau, Atty. for M. U. S. Douglas York,

Southern of New Liebhafsky, Atty., S. Asst. U. S. brief), appellee. HAYS, Before ANDERSON FEINBERG, Judges. Circuit FEINBERG, Judge: Circuit appeals, Defendant Daniel J. Driscoll judgment from a of conviction entered six-day after a in the United States District Court the Southern York, District of New Edward C. Mc- Lean, J., presiding. Appellant was found guilty willfully on three counts knowingly failing to file tax income years 1960, turns for 1962. 1961 and F.Supp. D.C., 333. U.S.C. 7203. The sen- district court repre- therein, distinguishes contained fact plus by counsel, the fact stant case from sented complaint our recent decision Negrich alleges Hohn, (3rd facts sufficient allegations conclusory 1967). support of the *2 on each fenced Driscoll count, six The months actions ? introduced Government concurrently, ability ad- to be served to show Driscoll’s evidence pending appeal. For mitted him to bail handle affairs —e. his his successful below, practice major responsibilities, stated reverse. the reasons law profitable his active investments his argued appeal This well-briefed and presented psychiatric social life—but trial; from Driscoll’s first second For the evidence in its case-in-chief. hung jury ended in a in December 1966. defendant, Kaplan, a Dr. Lawrence I. principal The issues a involve before us psychiatrist, that at testified psychiatric examination of the tax returns Driscoll suffer- were due 1966, prior made in November to the ed from neurosis with [a] a “character start the first trial before Inzer difficulty complying his marked responsibilities with Wyatt. time, B. At that the court treated fail- because of fear of suggestion a a defense counsel as ure.” doctor from his ex- concluded motion under 18 deter- U.S.C. 4244 to amination that: ability mine defendant’s trial.1 to stand judge my opinion type To appoint- examine In did Abrahamsen, psychiatrist, ed Dr. David him to disorder which would cause reported who capacity that Driscoll lack to con- able to substantial proceedings against requirements understand the firm his behavior to the and to ingly, appreciate assist in his own Accord- and to nature [of defense. law] trial, doing. ending case went to when what he was was unable to reach a verdict. proof offered other The defense show trial, At that Dr. Abrahamsen testified appellant’s mental deterioration: He concerning defend- procrastinated endlessly when faced with 1960, 1961, ant's mental condition in personal a decision in either affairs; business and 1963. Before the second pend- desk his a clutter alia, moved, suppress inter ing problems mail; unopened others grounds. on various often had to take over work to avoid Judge McLean denied the motion all firm; embarrassment respects, prejudice objec- to an separate dispossess served with seventeen grounds tion at on the trial of relevance. pay notices for two- failure to rent on the During apartment alone; the second trial room two issues in which he lived car, were accumulating monthly charges contested: Did the defendant act his “willfully” returns, failing $50, garage file sat unused in a from mentally responsible hewas for his to 1967. pertinent part, provides: qualified psychiatrist, that section one who re- shall * * * port prior Whenever after arrest to the court. If * * * imposition port of sentence indicates Attorney insanity has reasonable state of or such mental person charged incompetency accused, cause to believe that a the court notice, against upon hearing, with an offense the United shall hold due presently insane or other- which evidence as to the mental condi- mentally incompetent submitted, wise so as to be tion of the accused proceedings including reporting psychia- unable understand that of the against properly trist, finding respect him or assist and make a with defense, he shall a motion file No thereto. statement made the ac- judicial determination of such mental cused in the course examination competency accused, setting sanity forth into his or mental ground provided section, for such with belief the whether the pending. in which shall or without Upon upon accused, such a motion a similar the consent be ad- shall up- motion behalf of the mitted in evidence the accused motion, pro- on its own the court shall cause the issue * * * * * * ceeding. [Emphasis to be examined added.] as to condition least put apparent Dr. rebuttal, It the Government ceedings up renewal to this over on the stand Abrahamsen Rely- objections. file he failed to pre-trial fendant’s of defendant’s had returns. 1961 and tax ing solely two interviews Judge Wyatt’s which constituted section two interviews conducted held order, examination were that while testified the doctor *3 1966, depressed early in November was “somewhat the defendant presence uncommunicative,” counsel. and rather suffering a “situation- no more than from strong These lend circumstances depressions, the depression.” Such al argument support un that was brought by ex- explained, are doctor Dr. Abrahamsen examine fair to allow events, they not mental and- are ternal testify Driscoll’s and on the issue of conclusion, for basis this defects. As a years responsibility before repeated of state- number a the doctor apparently The that doctor trial. fact during the defendant ments appointment as construed the order statements interviews. These authorizing him not resolve so does education, his family, his defendant’s expecta problem reasonable of Driscoll’s sleeping friends, eating, his lack of testi tions. The made of doctor’s habits, smoking prior psychiatric his mony clearly beyond terms went treatment, rising and his income his a appointment, him to his which limited ability work. to concentrate competence Driscoll’s determination of court, appellant that ad- claims true in It late stand trial testimony deprived him mission Wyatt allowed doc later that rights, violated of various constitutional protective on Dris first tor to provisions 4244, of section thereby early 1960’s, sanity in the coll’s perhaps Because we offended notions fairness. pro intending tunc amend a nunc contention, agree our last with this his order. ment of supervisory capacity con- reverse technicality. be doWe transcends viction; first we do not deal with the lieve can be told arguments. two and, purpose he is be examined for one obtained, cooperation has once his been The facts on the manner and appointment Dr. Abrahamsen’s as be advised of another. pre-trial follows: At a conference The Government 31, 1966, pre- October defense counsel been held Driscoll “must sented from letters sec under aware” psychologist suggesting postponement of only to used not tion 4244 psycho- the trial of defendant’s because 1966, competence prove logical problems. When the Government prior years, of various objected, requested defense counsel al of Columbia decisions appoint to ex- court g., lowing E. Ashton v. dual use. such amine defendant to determine com- 367, States, U.S.App.D.C. 324 116

petency Judge Wyatt is- to stand trial. (1963); Edmonds v. Unit 401 sued an order which was limited U.S.App.D.C. 273 ed 108, 106 scope; specified Abraham- that Dr. (1959), denied, U.S. cert. sen, suggested whose name had been 4 L.Ed.2d 1012 the Government: (1960); Edmonds v. United U.S.App.D.C. such examination and observa- [M]ake J.). Bazelon, The (1958) (opinion Dris- tions of the Daniel J. ques clarity presumed coll, “notice” of such as is to determine ; circuit of Columbia un- the District tionable emphasized itself derstand the make appointing the doctor should properly own order assist * purpose proposed clear the fense *. safeguards examination, procedural appropriate Winn see conditions, feasible, having F.2d 326 e. (1959), denied, present at,2 representative requir- U.S. cert. although ing (1961), transcript tape of, S.Ct. 5 L.Ed.2d 812 video necessarily important, the failure so will not examination.3 More defend- to do psychiatrist’s in ant was render entitled notice so at trial. See Jones v. United could consult admissible with counsel beforehand fully intelligently thereafter denied, spond questions. cert. the doctor’s The Government asserts that what defendant given reason Winn seeks is “a constitutional to slant clarity argument order, proves F.2d at his answers.” The too possibility that: much. of a “slanted” *4 answer, silence, exists whenever a de- vast difference between There is a given rights prior is fendant notice of his permits an ac- that mental state which right to a statement. But to notice per- which cused be tried and that See, disappear. does not therefore e. responsible for a him to be held mits Arizona, v. Miranda 384 U.S. 480- * * * “[E]xaminations, crime. 481, 86 S.Ct. 16 L.Ed.2d determining purpose made (1966). Moreover, it while true * * competency to trial stand may give that a defendant different an- require than less examinations potential if he swers is told the use of signed to determine his statement and allowed consult his purpose responsibility.” of criminal lawyer significance about of his [Citations omitted.] words, we will not assume that an- is, course, valid, swers will for that reason dishonest. proper need both for direction of the ease, might they In this have been well thorough examining physician ex- and a fuller, had defendant himself focussed amination, responsibil- when the issue is on years his state of mind five before.4 ity crime, emphasized has been any In event, for all of the reasons set in other contexts. Johnson v. United forth above we hold that un- (5th Cir. F.2d 403-409 1965); fair use Rollerson v. Dr. United Abrahamsen’s testi- mony against 271-276 defendant at his trial with- (1964). any event, not do feel we giving adequate out notice of this fairly have defendant can held to possibility before Ac- the examination. proposed received “notice” cordingly, the conviction must be spe- of his examination face versed. allowing only cific order one. case, disposition On addition, compelling there are other not the other to deal now with favor. Had considerations in defendant’s growing of Dr. Abrahamsen’s issues out Driscoll known that the examination examination. realize some We might might be used have far-reaching implications. them have received, perhaps asked for —and government Thus, relying language in 18 consent —certain Appellant argues (8th 2. under United (in Wade, banc), States v. 388 U.S. 87 S.Ct. on other rev’d grounds, L.Ed.2d constitutionally lawyer Whitlow, (1968); entitled to State v. Dr. N. J. A.2d Abrahamsen examined pass upon him. We do not that conten- Abrahamsen Dr. testified that defendant tion. “reluctant, reluctant, giving infor- * * 3. Cf. United mation about himself (4th 1968) ; Pope 727 n. 11 that, argued argues even still be 4244,5 appellant U.S.C. responsibility, of criminal section issue appointed under that testify amining as could not to examine by any accused.” “statement made concerning statements Otney section limitation in since by Cf. defendant. to him apply, (10th 4244 would terms its regard persuasive an responds not then as would 1965). The Government argument Of against based statute. statutory ad- prohibition course, applicability of defendant’s “in evidence statements mission such against right constitutional self-incrimi- on the against determined. nation would remain proceeding” not bar does just indicate, responsibility. difficult cited As the cases to criminal waiver, problems words, will arise relying In other thereof, any, earlier,6 the and the extent cases noted of Columbia examining of an testimonial nature “the issue testimony, allowable crimi- doctor’s and its guilt” the issue does not include scope But, to ac- and detail. “how best responsibility. nal privilege prob- commodate simple, similar but this and means meaningful out self-incrimination be worked well lems testimony” opinion will be retrial medical before accommodation sensible particular best decided context new of a as to the *5 occur, testimony at a retrial. See United does not If that use thereof. the Albright, supra, at 388 F.2d States v. wheth- should consider the district court responsibility n. er, 725-726 & 9. of criminal on the issue apart alone, power from 18 the it has remaining Appellant’s points need little separate psy- 4244 to order a U.S.C. § Thus, complains the of discussion. stage of at the this chiatric examination charge willfulness, of but the facts Certainly, strong proceedings. not erroneous. this do find case we it of can the existence explain to it is Whether States, power, Alexander v. United see significance jury of the of lack delusions 1967) (“It 33, (8th 39 Cir. 380 F.2d sound or hallucinations we leave to the judicial to common sense would violate Finally, judge. discretion of the trial permit to the defense a defendant invoke appellant was entitled the contention that insanity Government and foreclose the warnings Miranda-type to when a mental examination from the benefit of questioned in office two his own issue.”). Accord, United to meet this Intelligence agents Division of (4th v. F.2d 719 States 388 reject- must be Internal Revenue Service States, 1968); Pope v. United 372 Cir. ruling in United ed our recent under (in 710, (8th Cir. (2d Mackiewicz, 401 F.2d 219 States v. banc), grounds, 392 U.S. rev’d other 1968). 88 S.Ct. 20 Judgment reversed; of conviction Hughes curiam); (1968) (per cf. for further case is remanded U.S.App.D.C. United 113 opinion. with this consistent (1962). 306 F.2d Judge (dissent- ANDERSON, Circuit obviously adequately has been notified ing) : plead to defense intention agree insanity. I I it dissent. While exami- After Government, it general preferable authority, nation under such (5th Cir.) (by Friend emphasized language note by designation), ly, J., sitting cert. de supra. nied, L. construction Ed.2d 366 6. The Government cites (2d Freeman, is 4244 was not raised as of section an 357 F.2d 1966), in Freeman in Birdsell. sue either Birdsell v. United testimony. seeking appellant points its have pleaded in who examine an accused Doctor’s state- disclosure Driscoll’s defense, sanity regarding family, motion to as make a ments edu- so, cation, eating, friends, sleeping to do court for leave lack of damaging necessarily smoking habits, unfair or etc. These cer- are se, per tainly error questions reversible answers to routine instead, Government, psy calls do with the elements previously charged. chiatrist an who has examined offense He also 4244, provided, accused under Dr. Abrahamsen’s § that at case, can, very this the alienist examination Driscoll “was alert original examination, completeness very question able answer well,” was, qualify give opinion on effect, telling the mental perform at the time accused intended to wilfully. the offense was unlawful committed. Jones v. acts and did so But Psychiatric this is not so. examinations (1960). Actually a thor all concerned with the ough performed of one under whether or not the accused awaiting inevitably charged trial almost includes the criminal act but acts the disclosure of information whether capaci- sufficient he had sufficient ty past responsible and material out of his recent to be held acts expert’s warrant adopted by conclusion the measure accused’s Freeman, offense 357 F.2d 1966). was committed. See Birdsell v. United Of the elements (5 Cir.) (by the offense those intent and wilfulness Friendly, sitting designation), J., relationship cert. have the closest to mental capacity, denied 382 U.S. even there the *6 concerned, L.Ed.2d 366 is not with the factual of whether or not the accused intended limiting pur- special But 4244 to the § perform to the act or wilfully, did it but pose designed for which it was re- whether or not he capaci- had the mental quiring sepa- the to make ty requisite to form the intent. rate motion for an examination as to the majority condition opinion entirely accused’s mental at the is based of orderly procedure the is offense a more by the unfairness use the the Gov- advantage affording has the added thorough ernment of Dr. Abrahamsen’s opportunity the trial court an make examination of Driscoll without notice provisions concerning place the time the defense. It assumes that the defend- of the examination and other attendant disadvantaged by ant was lack the circumstances, particular which in cases suggests might such notice and he that may appear necessary. The should court provided have been in with advance have wide discretion in area and safeguards cedural having protection should fashion such for the representative or at the examination parties varying may as the circumstances assuring an order he that would require. provided be transcript with a of the preliminary by therefore, coaching examination or perhaps,

It is inadvisable for protection his counsel for the constitutional Government to take risk the that some purposes rights may or for impaired of the other reasons. But the point prejudice has been out unable he have suffered anything result, present as a about Dr. I Abrahamsen’s damage preju- amination can which violated the see no or likelihood of limitations imposed by actually prejudiced 4244 or dice § Government’s Driscoll from the slightest. any of Driscoll no or from There is Dr. Abrahamsen fully might identi- by should of what he volved statement counsel only examining psychiatrist say fied or do Driscoll instructed adequately perform his changed anything so that which would have job incomplete examina- opinion my and so It is also or done. said right will not the court de- tion inconvenience to have an accused has rights serving by prejudice the accused’s expert or his own fense counsel psychia- as an insubstantial basis psychiatrist is appointed court while the responsibility. trist’s making nor is his examination .the transcript the ex- to a fense entitled I appellant’s see no merit claim though amination, the court by that an examination the Government’s exchange reports of the quire accused’s mental con parties. representing experts of the each dition the time the offense Wade, 388 U.S. charged imperii would his Fifth Amend protection against ment self-incrimina because authority permit tion. The the Gov is not ernment to examine the the accused or not whether insanity defense, raise the will guilty crimi- innocent of certain power stems from the inherent of the activity examination can and the nal courts, Albright, United States v. F. prose- a “critical no sense considered (4 1968); 2d 719 Alexander Unit stage.” cutive (8 1967); ed 380 F.2d 33 Pope majority v. United do not cases cited 1967); support proposition Winn v. the defend- exercising supra, it, pur- and in ant notice of entitled to pose limit should the Government’s v. United examination. Winn by borrowing use of evidence 133, 270 F.2d applying safeguard provided (1959) holds 4244 which is: “No statement incompetence issue of mental stand accused in the course examina trial differs from the issue of criminal tion into his or mental responsibility, show- of a absence * * provided ing [order] sufficiently the examination was shall be admitted evidence thorough opinion to form a basis for an the issue of regarding responsibility, proceeding.” See United States should not on that issue. There supra. opinion, in that or in Johnson *7 v. United 344 F.2d remaining ap- points raised pellant Rollerson v. United no merit and call for no dis- judgment should cussion. The below suggest affirmed. specify reason the order should Rehearing Petition for On scope in order examination is provide defendant with notice. LUMBARD, Judge. Chief although Winn, there was a likelihood containing rehearing petition for A accused’s mental state at suggestion appeal reheard commission of the crime would be a criti- having herein coun- been filed banc cal at the court’s district Ameri- appellee, sel for competency ex- order was restricted to a Judges Judge Lumbard ca, Chief appeal amination. On the court Moore, Friendly, vote to and Anderson pressed disapproval order of the narrow banc, Judges rehearing grant responsi- only the more extensive Feinberg Hays, Smith, Waterman, bility required examination “is partici- deny, Kaufman vote pating. accused, rights protect great ‘society’s protect interest’ also to majority Therefore, than a less hospitalizing violent having voted members active sprang from mental disorder act rehearing banc, grant Roller- at 327. Johnson petition that said son, the indicated courts Ordered hereby denied. and the issues of the examination