Ramer v. United States

• Decision Date: 25 March 1968
• Docket Number: No. 20887,21352.,20887
• Citation: 390 F.2d 564
• Parties: Lanier Allison RAMER, Appellant, v. UNITED STATES of America, Appellee. Eugene Richard CHURCH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

390 F.2d 564 (1968)

Lanier Allison RAMER, Appellant, v. UNITED STATES of America, Appellee.

Eugene Richard CHURCH, Appellant, v. UNITED STATES of America, Appellee.

Nos. 20887, 21352.

United States Court of Appeals Ninth Circuit.

February 6, 1968.

Rehearing Denied March 25, 1968.

No. 20887:

Murray B. Peterson (argued), Oakland, Cal., for appellant.

Anthony Michael Glassman, Dennis Kinnarid, Asst. U. S. Attys., William Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Criminal Division, Los Angeles, Cal., for appellee.

No. 21352:

Wied & Wied, Colin Wied (argued), San Diego, Cal., for appellant.

Edwin L. Miller, Jr., U. S. Atty., Phillip W. Johnson (argued), Asst. U. S. Atty., San Diego, Cal., for appellee.

Before CHAMBERS, BARNES, HAMLEY, HAMLIN^*, JERTBERG, MERRILL, KOELSCH, BROWNING, DUNIWAY and ELY, Circuit Judges.

Rehearing Denied in No. 21352 March 25, 1968.

DUNIWAY, Circuit Judge.

In these two cases we ordered hearings en banc to consider whether we should continue to follow our decision in Sauer v. United States, 1957, 9 Cir., 241 F.2d 640, cert. denied, 354 U.S. 940, 77 S.Ct. 1405, 1 L.Ed.2d 1539. There, we adhered to the so-called M'Naghten rule, as extended by the so-called irresistible impulse theory, as the test of determining whether a defendant in a criminal case can be found to have been insane when he committed the criminal act, and therefore not guilty. We adhered to Sauer in Smith v. United States, 1965, 9 Cir., 342 F.2d 725 and in Kilpatrick v. United States, 1967, 9 Cir., 372 F.2d 93, cert. denied, 387 U.S. 922, 87 S.Ct. 2040, 18 L.Ed.2d 979. See also Maxwell v. United States, 9 Cir., 1966, 368 F.2d 735, 740-742.

For reasons that will appear, we have concluded that these are not appropriate cases in which to reconsider the views that we expressed in Sauer, just as the panel that decided Maxwell felt that it was not an appropriate vehicle for such reconsideration.

1. The facts in Ramer's appeal.

Ramer was convicted on two counts charging bank robbery in violation of 18 U.S.C. § 2113(a). He was tried by the court, sitting without a jury. He entered the Sunset-Echo Park Branch of the Bank of America, in Los Angeles, on November 11, 1964, approached a teller, and said "Give me all the money you have got from hundred dollar bills down." The teller said "Pardon me," and Ramer replied "You heard me. Give me all the money you have got." When the teller started to get down from the stool where she sat, he said "Don't step on it," meaning the alarm. Next, he put his hand in his pocket and raised it over the counter, saying "I am not kidding." The teller gave him some dollar bills and he said "No, not that, the 20's." The teller gave him a batch of 20 dollar bills, including decoy money. He appeared to have been drinking, and seemed quite nervous. He walked out of the bank, got into a car, and drove off. A bank official got the license number and gave it and a description of Ramer to the police.

Ramer drove a few blocks to the 7th and Alvarado Branch of the Crocker-Citizens Bank, parked, and went in. He waited behind a customer at a teller's window and when the customer left he laid a ten dollar bill on the counter. The teller asked "Can I help you," and he replied "Give me all the tens and twenties you have." She handed him some bills, including bait money, and he walked out of the bank, got into his car, and drove away. He was nervous, but did not appear drunk.

He drove to a nearby bar, parked, and went in. Within a short time, two Los Angeles policemen, who had been given the license number of Ramer's car and his description, spotted the car. One of them entered the bar and saw Ramer, who ran to the rest room and locked it and did not respond or come out when ordered by the police, who identified themselves, to do so. Finally, a detective fired a shotgun through the door and Ramer came out with his hands up. Some of the stolen money was found in his pocket and more was found in the rest room trash can.

A policeman took Ramer to the police car, handcuffed him, "advised him of his rights to an attorney, of his right to remain silent, and also that anything he said may be used against him in further criminal proceedings," and asked where the rest of the money was. Ramer replied "I have done this before and I am not saying nothing." The officers testified that Ramer had been drinking but was coherent and not drunk.

About an hour to an hour and a half later, FBI agent Murphy, accompanied by a Los Angeles policeman, interviewed Ramer at the Police Department. Murphy's warning is set out in the margin.¹ They told Ramer that the money had been found on him, and he said he would talk, but first wanted to talk to his wife. He was permitted to make several calls, but did not get her, taking about 35 minutes trying. Then he described the two robberies, much as we have set them out, except that, according to his version, the conversation with the teller at the Bank of America took place at Crocker-Citizens, and vice versa. Ramer said that he had had "a couple of beers" before the robberies and a couple more afterwards. He was asked if he was drunk and replied, "No, but I feel the beer." Ramer also said that when he was in the rest room he did not hear the shot. He refused to answer some questions. Murphy testified that Ramer had been drinking, but was coherent and not drunk.

Ramer's sole defense was insanity. The testimony of Ramer's wife and mother, as well as that of three expert witnesses, clearly shows that Ramer has a history of emotional instability, and the court indicated that it was convinced that Ramer was emotionally disturbed.

Ramer's first expert, Robert Davenport, a clinical psychologist, administered certain psychological tests to Ramer in January, 1965, about two months after the offenses. These indicated mental illness and probably schizophrenia. Davenport's conclusions are quoted in the margin.²

Ramer's second expert, Dr. Erric Marcus, a psychiatrist, examined Ramer on January 22, 1965. He also had Davenport's report of the results of his tests. We also quote Dr. Marcus' opinion in the margin.³

In rebuttal, the government offered two types of evidence. First, with the support of Ramer's counsel,⁴ it produced three FBI agents. Each had a statement given by Ramer shortly after he had robbed a bank. Two dealt with robbing a bank in Meriden, Connecticut, on December 11, 1956. The first of these was given on that day, and in it Ramer gave a brief history of himself and a circumstantial account of the robbery. The agent said that, when he gave the statement, Ramer was normal, did not appear drunk, but said he had been drinking. The second was given on December 12, 1956. In it, Ramer gives a somewhat detailed history of himself and his prior troubles. He states that he drank a good deal on the morning of December 11, was in a hazy state of mind, and did not recall all of his activities, and particularly, that he did not recall what he did in the bank. He says that he does not know why he robbed the bank, other than that he had been drinking, had no job, and was worried about getting money for medical expenses for his three year old son. His son was with his estranged wife in North Carolina, and she had written a letter saying that money was needed for the son's medical expenses. The third agent had interviewed Ramer twice regarding his robbery of a bank in Riverside, California on June 1, 1960. The first interview was on the day of the robbery, and Ramer said that he had been in a bar drinking and did not know what he was doing in the Police Department. On June 6, 1960, however, he gave the agent a written statement, describing the robbery and his flight in detail. He also said that he had had five glasses of beer, had no job or money, and decided to pull a burglary or robbery to get some.

Second, the government presented the testimony of Dr. Carl Von Hagen, a neurologist and psychiatrist. The doctor stated in detail the information given him by Ramer.⁵ We quote his opinion in the margin.⁶

In deciding the case, the court indicated that he felt bound by our ruling in Sauer, supra, and that under the Sauer test, most of the defense evidence had no relevancy. He also said:

"I will take Dr. Von Hagen\'s testimony and then I would have to find the defendant guilty. * * * Not only alone, but on the testimony of the other witnesses."

And he made it clear that he did not believe Ramer's testimony and statements that he could not remember what he had done.

2. The facts in Church's appeal.

Church was tried and found guilty by a jury on two counts, and, pursuant to a waiver of jury, by the court on a fourth count, of a four-count indictment. The first two counts charged him and two others, his brother Clarence and his brother-in-law Ray, with aiding and abetting (18 U.S.C. § 2) one Louise Horne in violating 21 U.S.C. § 174, in the illegal importation and concealing and facilitating the transportation and concealment of 1½ oz. of heroin. The fourth count charged violation of 18 U.S.C. § 1407, entering the United States without surrendering the certificate described in the section. He was sentenced to five years on counts 1 and 2 and to two years on count 4, all concurrent.

On March 22, 1965, Miss Horne, Church, Clarence and Ray drove from Los Angeles to Tijuana, Mexico. The car belonged to Clarence. She drove to the border, but Church drove across. They went to the Jai Alai courts and parked. Church left, and returned with heroin in two condoms. Church and his brother tried the heroin and were dissatisfied with it. He handed one condom to Miss Horne, and told her where to put it. They went to a motel and Miss Horne, who had been holding the second condom, returned it to Church. Later, Church handed it back to her. They returned to the Jai Alai court and Church took both condoms and left. When he returned, he handed one condom to Miss Horne. She placed...