Birdsell v. United States

Decision Date08 July 1965
Docket NumberNo. 21649.,21649.
Citation346 F.2d 775
PartiesDale Estin BIRDSELL, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

O. Don Chapoton, Houston, Tex., for appellant.

Harry Lee Hudspeth, Asst. U. S. Atty., Ernest Morgan, U. S. Atty., San Antonio, Tex., for appellee.

Before TUTTLE, Chief Judge, and BROWN and FRIENDLY,* Circuit Judges.

FRIENDLY, Circuit Judge.

Dale Estin Birdsell appeals, in forma pauperis and with the aid of assigned counsel, from a conviction, after a jury trial in the District Court for the Western District of Texas, for a conspiracy to transport stolen automobiles from the United States to Mexico and for the transportation of a particular stolen vehicle, 18 U.S.C. §§ 371, 2312. There was overwhelming evidence that Birdsell — along with three other men, Dow, who pleaded guilty, Callender, who was convicted and whose appeal has been dismissed at his request, and McDaniel who was charged under the Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5037 — had engaged in an enterprise whereby a number of automobiles stolen in the United States were spirited across the border for sale in Mexico. Birdsell's points on appeal concern only his defense of insanity and the use of evidence obtained in Mexico under circumstances alleged to violate the Fourth Amendment.

After his arrest in Mexico, Birdsell was turned over to the United States authorities early in October, 1963. At the request of the jailer at Del Rio, Texas, Dr. George Herrmann, the jail physician, interviewed Birdsell for a few minutes; he was of the opinion that the prisoner needed psychiatric examination and attention, and so reported to the United States Marshal. On Birdsell's request, presented by court appointed counsel, the district judge, on December 18, 1963, directed that he be examined with respect to his sanity at the time of the offense and at that time by a qualified psychiatrist at the Veterans Administration Hospital at Waco, Texas.

The examination, by Dr. W. W. Good, was performed in two hours.1 Birdsell first told the doctor he had come "on the advice of my commanding general, Nathan Bedford Forrest, Provisional Army Confederate States of America. He commands as Imperial Wizard of the Ku Klux Klan, and I am Imperial Wizard now acting for him." Questioning by the doctor elicited the less colorful explanation that Birdsell had been indicted for conspiring to transport automobiles into Mexico, and had been sent to the hospital by the judge. The examination consisted mainly of a long interview in which Birdsell related a history, including various episodes of emotional instability and demonstrating intense anti-Semitic, anti-Communist, and anti-Negro feelings that had led him into organized activities over a period of years. He said that he did not consider the stealing of cars to be illegal because "we are at war" and he was "simply foraging as is necessary for my Army. The cars were foraged to support the cause, that is, the KKK and the movement against desegregation." Although he knew Nathan Bedford Forrest was long since dead, he claimed to have visualized the General coming to him and giving him orders. On the basis of this interview, the doctor concluded, in a report dated January 10, 1964, that Birdsell "no longer knows right from wrong or the consequence of his acts" and "could not adequately cooperate in his own defense." His medical diagnosis was "schizophrenic reaction, paranoid type, chronic, severe," and he recommended indefinite commitment to a federal mental institution.

On January 23, the district court, acting through a different judge, entered an order in which it took note of Dr. Good's diagnosis, recited that it was "of the opinion that further study of the defendant's mental condition is imperative in order to arrive at a just and conclusive judgment as to defendant's true mental condition" and to decide whether he should be brought to trial or committed to the custody of the Attorney General, and directed that he be committed to the Medical Center for Federal Prisoners at Springfield, Missouri, for not more than 90 days, for examination "by qualified psychiatrists who shall furnish the Court with periodic reports of any and all findings which relate to the defendant's mental competency." This course was urged by the Government, which noted that Birdsell had undergone only a two hour examination, while at his arraignment, before appointment of counsel, he had been sufficiently rational to advise the court that "he was legally insane under the Durham Rule * * *." A motion by the defendant objecting to such further psychiatric examination and requesting an immediate hearing as to competency to stand trial, under 18 U.S. C. § 4244, was denied.2

Birdsell was admitted at Springfield on February 1, 1964. A report of his neuropsychiatric examination was made on February 10 by Dr. Glotfelty, Chief of the Psychiatric Service. Eleven single-spaced pages of this are a history written by Birdsell for the examiner. Although this gibed with his recital to Dr. Good concerning his early life and his segregationist activities — indeed, going into much greater detail — it was quite different in many significant respects. He explained his recent automobile activities, not as "foraging" at General Forrest's command but on the ground that he wished "work" that would take him to Mexico City where he could reflect on suggestions that he withdraw from segregationist activity or, alternatively, consider building up his anti-Negro program. Although he "came to realize the Mexico automobile activity was illegal there was nothing I could do to alter my position. On each subject I recognized the right-wrong values but obviously could not adhere to the right." He refused to accept key portions of Dr. Good's report. He denied having visual or auditory hallucinations, and explained his remarks about General Forrest as a recital of some "theatrics" in which he had indulged at a Klan meeting in 1960. And he gave content to the "war" reference by citing a statement of J. Edgar Hoover that "we are at war with the Communists" and by the analogy that the Republican party "fights" the Democratic party. The report recited that Birdsell requested return to the court, where he believed he could cooperate with counsel, understand the charges against him and assist in his defense. The diagnosis was "Emotionally Unstable Personality." The report elaborated on this by saying that Birdsell's "judgment may be undependable under stress and his relationship to other people is continuously fraught with stress and fluctuating emotional attitude because of strong and poorly controlled hostility, guilt and anxiety. Many of these individuals react with exciteability and ineffectiveness when confronted with minor stress. Paranoid thinking is denied. He attempts to conceal it."

The Springfield record also contains an extensive psychological evaluation, reflecting tests on five different days, by Dr. Geil, a clinical psychologist, and a medical examination report. Dr. Geil found Birdsell to be "a person of above average intelligence (IQ 112), whose personality organization reflects the presence of both a sociopathic disorder and a paranoid disorder"; "he appears to be actively striving to deny or keep his paranoid disturbance under a state of concealment."

The Springfield examination culminated, in accordance with regular procedure, in a meeting of four members of the psychiatric staff, including Dr. Glotfelty and Dr. Rothstein, of whom more hereafter. Birdsell appeared briefly before the staff,3 reports were presented and discussed, and the staff joined in a formal diagnosis repeating Dr. Glotfelty's and recommending that Birdsell be returned to court as competent to stand trial. At a hearing on May 20 Dr. Glotfelty testified that Birdsell was competent to be tried and the defense agreed.

At the trial itself defendant's evidence of insanity consisted of testimony by Dr. Good, substantially along the lines of his initial report,4 a stipulation that Dr. Herrmann would testify as above described, and two lay witnesses. Crawford Martin, Secretary of State of Texas, testified as to the impression Birdsell had made upon him during an extradition hearing in the summer of 1963; in the course of what Martin considered an able presentation, Birdsell informed the Secretary that he was Nathan Bedford Forrest. Martin thought either Birdsell was suffering from delusions of persecution "or he was an awful good actor." A Louisiana attorney who had represented Birdsell in a criminal case in 1956 and 1957 gave opinion testimony that Birdsell had a distorted understanding of right and wrong and could not adhere to the right. However, he conceded that he had not entered a plea of insanity on Birdsell's behalf in the two criminal trials in Louisiana, and his diagnosis of Birdsell as having "a paranoiac schizophrenic personality" was based to some extent on Birdsell's having told him that very morning that he had been in touch with General Forrest.

The Government relied, as countering the defense of insanity, upon the evidence, given by several witnesses, of intelligent and purposive behavior of Birdsell during the car theft conspiracy, without display of any of the abnormalities featured by the defense. Of particular importance was testimony by McDaniel, one of the conspirators, that while they were in jail together, Birdsell "said something about if and when he went to Court, if he was found guilty or something like that, he was going to plead anti-social or something * * * and try to convince them that he was insane, not insane, but he didn't like to be around other people, something like that * * * that he thought that he would be tried in Del Rio, and that the businessmen down there, being small town and everything, that they wouldn't understand the way he was pleading, and that they...

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