Zovluck v. United States, 982

• Decision Date: 25 August 1971
• Docket Number: Docket 34304.,No. 982,982
• Citation: 448 F.2d 339
• Parties: Bernarr ZOVLUCK, Petitioner-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

448 F.2d 339 (1971)

Bernarr ZOVLUCK, Petitioner-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 982, Docket 34304.

United States Court of Appeals, Second Circuit.

Argued June 10, 1971.

Decided August 25, 1971.

Irving L. Weinberger, New York City, for petitioner-appellant.

Richard A. Givens, Sp. Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. of Southern District of New York, David V. Keegan, Asst. U. S. Atty., of counsel), for defendant-appellee.

Before FRIENDLY, Chief Judge, and HAYS and OAKES, Circuit Judges.

OAKES, Circuit Judge:

Appellant seeks by a motion under 28 U.S.C. § 2255 to set aside an April 22, 1968, conviction. The conviction was for mail fraud and fraudulent use of the initials "U.S." in violation of 18 U.S.C. §§ 1341 and 712 in connection with a clever chiropractic solicitation and collection scheme in 1966 and 1967, that bilked thousands of patients per year. The § 2255 motion is based on a claim, made first on May 23, 1969, of mental incompetence to stand trial. The motion was denied without prejudice, later renewed and, after an evidentiary hearing held on September 18, 1969, was denied by the court below.

Appellant's proof in support of his motion consisted principally of the testimony of three witnesses: a psychiatrist, Dr. Mertz; appellant's attorney at his fraud trial, Anthony Atlas, Esq.; and one Lewis Capp, who testified as a defense witness at the fraud trial. Appellant also submitted a Veterans Administration report dated May 23, 1969, but referring to a 1950-51 King's Park hospitalization, where appellant was diagnosed as having dementia praecox. In addition, appellant sought production of records from the federal medical facility at Springfield, Missouri, where he has been detained following his conviction. At the evidentiary hearing the Government produced three witnesses: a quackery investigator for the Arthritis Foundation; a television news reporter who had accompanied the investigator to interview appellant; and a postal inspector who had witnessed appellant's behavior at his fraud trial.

The court below found that (1) certain 1950-55 medical records of the VA were remote and medically unrelated to the issue here; (2) appellant had feigned his appearance at a 1968 VA neuropsychiatric examination; (3) appellant's psychiatrist's testimony was "confused, conflicting and vague," and basically not credible; (4) appellant's trial attorney's testimony was based on hearsay attributable to appellant, his sister or others; (5) the testimony of appellant's witness, Capp, was "not credible"; and (6) no useful purpose would be served by subpoenaing the Springfield facility's records which postdate the trial and conviction.

Appellant makes the following claims on appeal:

1. The district court should have required production of the records of the Springfield facility;

2. The district court should have required the presence of appellant at the evidentiary hearing;

3. The district court should have appointed a psychiatrist to determine competence (a) prior to sentencing and (b) in the course of the § 2255 proceeding;

4. The denial of the motion was not based on any medical evidence 5. The trial judge should have disqualified himself.

Appellant then asks this court to set aside the conviction and order a new trial, on the strength of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed. 2d 815 (1966) and Rhay v. White, 385 F.2d 883 (9th Cir. 1967). Appellant does this, despite the fact that the psychiatrist who testified below saw him first in May 1968, shortly after his conviction, and continued to see him while he was appealing that conviction, unsuccessfully, to this court.¹ Why, after receiving the psychiatrist's report, he did not move us for a remand so that he could present his psychiatric case to the district court, with subsequent review here, is hard to fathom. Had he done so, he could have avoided the inference that this is a case where a direct appeal has been "deliberately by-passed" within Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); such a circumventing of orderly procedure — despite the holding of Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) — would justify our refusal to exercise our power to adjudicate the merits of appellant's claims as much in this, a federal § 2255 proceeding, as in state habeas cases. See 394 U.S. at 220 n.3, 89 S.Ct. 1068. But we will consider the merits here in any event, giving the appellant a second bite at the cherry, so to speak, despite the lapse of time since his conviction which — ironically enough — he now seeks to use to his own benefit, by claiming it as a ground for our granting a new trial, as opposed to a mere remand on the § 2255 hearing.

Even on the merits, however, appellant's claim must fall.

We, of course, must accept the trial court's findings on this habeas corpus petition unless they are clearly erroneous. Rule 52(a), Fed.R.Civ.P.; United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 713 (2d Cir. 1960). There is no doubt but that appellant had the burden of proof. Johnson v. Zerbst, 304 U.S. 458, 468-469, 58 S.Ct. 1019, 82 L. Ed. 1461 (1938); Papalia v. United States, 333 F.2d 620, 621 (2d Cir.), cert. denied, 379 U.S. 838, 85 S.Ct. 74, 13 L. Ed.2d 45 (1964). See also Mirra v. United States, 379 F.2d 782, 787 (2d Cir. 1967).

Our review of the record satisfies us that the district court was not clearly in error in denying the petition. The trial court very wisely held an evidentiary hearing. See United States v. Miranda, 437 F.2d 1255, 1258 (2d Cir. 1971). See Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); and Nelms v. United States, 318 F.2d 150, 154 (4th Cir. 1963).

On this hearing the appellant's psychiatrist, who did not start treating him until after he was convicted, in May 1968, testified on direct that the appellant was suffering from a "markedly regressed type of catatonic schizophrenia with depressive psychoses," one symptom of which was his slumped-over "embryonic" posture. The doctor went on to say that in his opinion appellant did not "have the emotional or mental capacity to conceive any type of plan," and that this was "a long-existing condition." On cross, Dr. Mertz elaborated, testifying in substance that appellant was mentally incapable of doing the very things he had done — for example, advertising his services, telling patients how he could cure arthritis. The court below recalled that at the time of the fraud trial appellant was in anything but the "embryonic," slumped-over, down-cast position he was in when examined by Dr. Mertz.

The appellant's attorney who had represented him at the fraud trial testified at the evidentiary hearing also, to the effect that he had been "at the very least eccentric" and "offbeat," ate six or seven grapefruit for lunch, greeted even total strangers effusively, and had placed an unusual ad in an East Village newspaper advertising himself as a sexual partner for women. The attorney testified that while appellant "was able to assist" in the preparation for his trial and the trial itself, he was unable to understand why he was prosecuted. However, the attorney said it had not occurred to him that appellant was insane or otherwise mentally incompetent, and he had never suggested to the court that any investigation of appellant's competence should be made.

Appellant's third witness at the evidentiary hearing below was an employee of the chiropractic clinic who had also testified for the appellant at the latter's fraud trial. He testified that appellant would listen to the Bible with a stethoscope, saying that he heard the words coming from God and that God told him to treat people if they would pray with him.² Appellant, according to this witness, ate grass, wouldn't talk, and didn't testify at his trial because the prosecutor went to the men's room and came back without washing his hands. The witness recollected his own testimony at the fraud trial, however, that when appellant lectured or went on television (e. g., the Johnny Carson Show), the clinic switchboard would "light up like a Christmas tree"; that appellant gave instructions not to embarrass people on welfare; and that he had utilized thirty-odd spots a day on the radio.

The court below was of the view that the appellant was a confidence man and a "consummate actor," and that his...