United States v. Malcolm

Decision Date08 March 1973
Docket NumberNo. 72-2183.,72-2183.
Citation475 F.2d 420
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jerry Mack MALCOLM, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

John K. Van de Kamp, Federal Public Defender, Alan L. Issacman, Deputy Federal Public Defender, San Diego, Cal., for defendant-appellant.

William D. Keller, U.S. Atty., Stanley I. Greenberg, Earl E. Boyd, Eric A. Nobles, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee.

Before HUFSTEDLER and GOODWIN, Circuit Judges, and SKOPIL,* District Judge.

OPINION

HUFSTEDLER, Circuit Judge:

Malcolm appeals from his conviction for armed bank robbery. (18 U.S.C. § 2113(a)(d).)

The only contested factual issue at trial was his sanity at the time of the offense. Over his objection, the district court admitted the testimony of a psychiatrist who had examined him pursuant to a pretrial order compelling him to submit to an examination to ascertain his sanity at the time of the offense. Malcolm contends that the court erred in admitting the testimony because the pretrial order was invalid on statutory and constitutional grounds and that, even if the order were authorized by 18 U.S.C. § 4244, the testimony exceeded the statutory restrictions imposed by the section upon the use of such testimony. He further argues that the court erred in repeatedly interrupting defense counsel's examination of witnesses and his closing argument and in instructing the jury, on intent and motive.

When Malcolm first appeared in court, the judge observed that something was seriously wrong with him. Malcolm was dazed and almost stuporous. He could not stand up without support. The public defender told the court that he had been unable to communicate with his client. The marshal reported that Malcolm did not seem to know what was going on around him. The district court tried to address Malcolm personally and was unable to elicit any response. Defense counsel asked the court to appoint a psychiatrist under section 4244 to examine his client and to give his opinion on his competence to stand trial. The district court agreed and promptly signed a form order appointing Dr. Abe. Unknown to defense counsel, the form required Malcolm to submit to a dual purpose psychiatric examination to ascertain not only his competence to stand trial but also his sanity at the time of the offense. The district court did not attempt to inform Malcolm of the contents of the order, and, under the circumstances, any effort to have done so would then have been futile.

Dr. Abe examined Malcolm nine days later. From the face of Dr. Abe's report, dated September 30, 1971, the examination consisted primarily of a personal interview with Malcolm. Almost all of the report, which is slightly longer than two letter-sized pages, is a recitation of Malcolm's life history. It narrates his chaotic youth, his mother's murder of his stepfather, his education, his medical discharge from the Marine Corps for mental disability, his grand mal epileptic seizures, and his brief arrest record. The remainder of the report follows:

"PRESENT ARREST: Defendant states he was arrested for `bank robbery.\' He admits holding up with a gun the United California Bank in Pomona. He states further `it was an emotional thing.\' By this he means he robbed the bank to get back at a girl friend who works in the bank. `Also to go to jail because no where to go.\' Initially, defendant thought he would be shot and killed while robbing the bank. He then found himself walking toward the police station. Someone yelled at him, so he shot at him. He kept walking and also ran at times. Defendant states he will repeat the offense, which he knows is wrong, if placed on the street because `I have no place to go.\' He apparently doesn\'t mind being in jail.
"MENTAL STATUS EVALUATION: Defendant was a cooperative individual, who manifested no odd or bizarre mannerisms. His speech was relevant and coherent. His affect varied appropriately. No delusions, hallucinations or disordered thinking was apparent. Defendant believes he will be going to prison because of the offense which he has committed. Defendant\'s mental grasp and capacity indicate about average intelligence.
"OPINION: Defendant is presently sane. Defendant is presently able to understand the proceedings against him, is able to assist in his own defense and does not present mental incompetency.
"Defendant does not have a mental disease or defect causing him to lack substantial capacity either to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law."

The competency issue was submitted to the court solely on Dr. Abe's report. The court found him competent and arraigned him. Malcolm pleaded not guilty. Defense counsel told the court that the defense would be insanity, and he moved for the appointment of an independent psychiatrist to examine Malcolm, pursuant to section 3006A(e)(1) of the Criminal Justice Act (18 U.S.C. § 3006A(e)(1)). The district court denied the motion. The motion was renewed before trial, and the court granted it.1

The government relied exclusively on lay testimony in presenting its case in chief. Malcolm took the stand and admitted the bank robbery. He described his despondency over a broken love affair and said that his motive in robbing the bank was to get himself killed. The defense psychiatrist gave his opinion which, if credited, would have supported a finding of insanity. On rebuttal, the Government called Dr. Abe. Defense counsel objected to the admission of any testimony by Dr. Abe based on or related to statements Malcolm had made to Dr. Abe during his September 29 examination on the ground that section 4244 forbade its use. The court gave two reasons for overruling the objection: (1) The restrictions in section 4244 do not apply when the only question before the court is sanity of the defendant at the time of the offense, and (2) a waiver of the section 4244 restrictions results when defense counsel has obtained a psychiatric examination of a defendant to ascertain sanity.

Dr. Abe testified, in substance, that in his opinion Malcolm was sane when he robbed the bank. He did not quote to the jury any statements that Malcolm made to him, but, as we earlier observed, the foundation for his opinion was Malcolm's recitation of his whole history, including the bank robbery episode.

I.

Malcolm argues that the order initially appointing Dr. Abe was invalid to the extent that it compelled Malcolm to submit to an examination to ascertain his sanity at the time of the offense because there is no statutory authorization for the order.

The statute upon which the court relied in issuing the order is 18 U.S.C. § 4244 which, in pertinent part, provides:

"Whenever after arrest and prior to the imposition of sentence . . . the United States Attorney has reasonable cause to believe that a person charged with an offense against the United States may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense, he shall file a motion for a judicial determination of such mental competency of the accused, setting forth the ground for such belief with the trial court in which proceedings are pending. Upon such a motion or upon a similar motion in behalf of the accused, or upon its own motion, the court shall cause the accused, whether or not previously admitted to bail, to be examined as to his mental condition by at least one qualified psychiatrist, who shall report to the court. . . . 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. A finding by the judge that the accused is mentally competent to stand trial shall in no way prejudice the accused in a plea of insanity as a defense to the crime charged; such finding shall not be introduced in evidence on that issue nor otherwise be brought to the notice of the jury."

Because nothing on the face of section 4244 or in its legislative history2 purports to authorize an order to appoint a psychiatrist to examine a defendant to ascertain his sanity at the time of an offense, the great weight of circuit opinion is that section 4244 cannot be expanded to encompass such an examination and that the source of authority to issue an order of that type is the inherent power of the court. (E.g., United States v. Driscoll (2d Cir. 1968), 399 F.2d 135, 137-138, 139; United States v. Albright (4th Cir. 1968), 388 F.2d 719, 722; Featherstone v. Mitchell (5th Cir. 1969), 418 F.2d 582, 584; United States v. Bohle (7th Cir. 1971), 445 F.2d 54; United States v. Maret (8th Cir. 1970), 433 F.2d 1064, 1067.)3

The Ninth Circuit's views are not crystalline. In Wade v. United States (9th Cir. 1970), 426 F.2d 64, 74, our court, sitting en banc, recognized that both the source of power to compel a defendant to submit to a psychiatric examination and the mode of its exercise raised serious statutory and constitutional questions. We expressly refused to decide the questions because it was not strictly necessary to reach them in disposing of the case. A panel in United States v. Handy (9th Cir. 1971), 454 F.2d 885, 889, briefly discussed these issues and inconclusively observed that the foundation for the questioned order could be section 4244 or inherent power of the court. A different panel writing United States v. Mattson (9th Cir. 1972) 469 F.2d 1234 assumed, without analysis, that section 4244 authorizes a dual purpose examination.

The questions are squarely presented in Malcolm's case, and we think they should be squarely answered. Accordingly, we bring the Ninth Circuit into line with the Second, Fourth, Fifth, Seventh, and Eighth...

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