Birnbaum v. United States

• Decision Date: 16 February 1966
• Docket Number: No. 18035.,18035.
• Citation: 356 F.2d 856
• Parties: William George BIRNBAUM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

356 F.2d 856 (1966)

William George BIRNBAUM, Appellant, v. UNITED STATES of America, Appellee.

No. 18035.

United States Court of Appeals Eighth Circuit.

February 16, 1966.

Horace W. Mohn, St. Paul, Minn., counsel appointed by this Court, made argument and filed brief for appellant.

Miles W. Lord, U. S. Atty., Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., made argument and filed brief for appellee.

Before VOGEL, Chief Judge, and BLACKMUN and GIBSON, Circuit Judges.

VOGEL, Chief Judge.

Defendant-appellant William George Birnbaum was indicted, tried before a jury and convicted of a kidnapping and transporting in interstate commerce in violation of 18 U.S.C.A. § 1201, for which he was sentenced to serve 25 years' imprisonment. This appeal, brought from the judgment of conviction, is based on two grounds: (1) That a written statement, Government's Exhibit 3, signed by appellant following his arrest by local St. Paul, Minnesota, authorities and following interrogation by an FBI Agent, Paul R. Casey, was inadmissible as evidence and should have been excluded by the trial court; and (2) that the final argument of the Assistant United States Attorney was improper.

Appellant was born at Stevens Point, Wisconsin, on October 10, 1934. He lived practically from his birth with adopting parents in LaCrosse, Wisconsin, although the adopting father died shortly after appellant's first birthday. During his early childhood appellant started on what has become a long history of confinement in juvenile and adult penal institutions as well as confinement in a mental hospital. He was incarcerated in past times for various reasons not directly relevant to this case.

Appellant had attended school in LaCrosse for part of his eighth grade year. One of his classmates at that time was Cecilia Ann Weisbecker, who will hereafter be referred to by her married name of Mrs. Paul Scott. Sometime during that eighth grade year appellant "fell in love" with Mrs. Scott. When in prison, as he frequently was, appellant would write her, even though his letters were seldom, if ever, answered. When in LaCrosse he would phone her, although she claimed she never saw him or went on any dates with him. Such correspondence apparently continued even after Mrs. Scott's 1955 marriage, which marriage was known to appellant. Either shortly before or shortly after the marriage (probably in 1956) Paul Scott, Mrs. Scott's husband, called on appellant while he was in jail in LaCrosse to order the appellant to quit writing Mrs. Scott and to leave the Scott family alone. Appellant's testimony indicates that he made the following response:

"* * * I just told him — I says, `I\'ll run my life and you run yours.\' I says, `I knew the girl way before you knew her and if she wants to correspond with me, that\'s my business.\' I says, `You can\'t stop her. You ain\'t married to her.\' Appellant recalls this conversation as taking place before the Scott marriage. So that\'s it."

Appellant was released from the Wisconsin State Prison at Waupun, Wisconsin, on March 17, 1959. Following his release, appellant proceeded to Madison, Wisconsin, where, after reporting to his parole officer, he obtained a room at the local YMCA. On that same day, in violation of his parole, appellant bought a pellet gun and proceeded to LaCrosse by bus. Appellant claims that he had called Mrs. Scott from Madison and that she told him "* * * she wanted to see me, — that she wanted me to come down and see her. * * * She says something about that she was having trouble with her husband, or something — marriage difficulty, or something. It was just — something like that." Mrs. Scott denied receiving any such phone call or making any request to see appellant.

Appellant arrived at the Scott home in LaCrosse at about 10:30 p. m. on March 17, 1959. The testimony of appellant and the Scotts varies as to particulars after this point, but it is clear that appellant gained admittance to the Scott home and held the pellet gun on Scott, who had answered the door. Appellant beat Scott with his fists and ordered Scott to come with him in Scott's car. Scott drove and the appellant gave directions while sitting beside Scott on the front seat with the pellet gun. They stopped in Osseo, Wisconsin, after Scott pretended they were out of gas. Upon appellant's orders, they left Scott's car and stole another car which they drove to St. Paul, Minnesota, arriving there at about two o'clock a. m. on March 18, 1959. Neither Scott nor appellant accepted responsibility for deciding to go from Wisconsin into Minnesota. The pair stopped at a St. Paul filling station, according to Scott, to inquire as to an address of a friend of appellant's. While appellant was in the filling station restroom, Scott obtained possession of the pellet gun from the front seat of the car and handed it to the filling station attendant. When appellant returned from the restroom, the attendant pointed the gun at him, whereupon appellant passed out or pretended to pass out. The St. Paul police were called and shortly thereafter arrived to take both Scott and the appellant to the St. Paul police station. The police were not convinced of Scott's story about being kidnapped at that time. The time of arrest was somewhere between 2:00 a. m. and 2:42 a. m. on March 18th.

Believing that it was possible a federal charge was involved, the police called the FBI office. Between 5:30 and 6:00 o'clock a. m. appellant was interviewed at the police station by Paul R. Casey, the FBI Agent referred to. Appellant had not at that time been charged with the commission of any crime. Agent Casey testified that he identified himself and showed the appellant his credentials. Casey further testified that he told appellant of his right to an attorney, of his right to refuse to make a statement, and of the fact that any statement he made could be used against him. Appellant advised Casey that he did not wish for counsel. Thereupon, Agent Casey took from appellant a statement,¹ Government's Exhibit 3, which was received into evidence at the instant trial. The use of this statement is the basis for appellant's first claim of error.

The long delay in having appellant actually tried and sentenced is best explained by presenting a chronological procedural history of the case beginning with appellant's arrest on March 18, 1959, and ending with this appeal.

1. March 18, 1959. Appellant was brought before William H. Eckley, United States Commissioner, and upon Agent Casey's complaint was ordered arrested for kidnapping Scott. Appellant duly waived preliminary examination.

2. March 23, 1959. Appellant appeared in United States District Court before Judge Dennis F. Donovan at St. Paul, Minnesota. Upon the recommendation of the United States Attorney that counsel be appointed for the appellant in spite of his expressed wish to the contrary, the court appointed Harrison P. Dilworth, III, of St. Paul, to represent appellant. The court further directed, also on the recommendation of the United States Attorney, that a psychiatric examination be made of appellant. Arraignment was continued until March 30, 1959.

3. March 24, 1959. Judge Donovan ordered that appellant be examined as to his mental competency by Dr. Ernest M. Hammes, Sr., of St. Paul. Dr. Hammes was directed to report in writing as to the mental condition of the appellant.

4. March 30, 1959. Appellant appeared in District Court before Judge Donovan with his appointed counsel, Mr. Dilworth. A copy of Dr. Hammes' report of his examination of appellant had been made available to appellant. Dr. Hammes' conclusion was:

"The mental examination showed the following: He was well oriented as to time and place, and person. He gave a well connected history. There were no delusions or hallucinations. He knows the difference between right and wrong and the justice in punishment.

"It is my opinion that he is not suffering from a mental illness or neurosis, but that he is a psychopathic personality type. He gives a rather vague history of his blackout spells; however, they do not suggest typical epileptic seizures and bear no relation to his various illegal acts. He is mentally competent to stand a trial and to defend himself in Court.

"I do not think it is necessary to make an electroencephalogram."

Appellant waived indictment by a grand jury. An information was filed, to which appellant entered a plea of not guilty.

5. April 1, 1959. Appellant appeared in District Court before Judge Donovan with his counsel. Consent was granted to appellant's request to withdraw his not guilty plea and to enter a plea of guilty. Appellant was sentenced to 25 years' imprisonment, with a recommendation that he be confined at the United States Medical Center for Federal Prisoners at Springfield, Missouri.

6. January 20, 1960. A grand jury indictment was returned charging the appellant with a violation of the kidnapping law, 18 U.S.C.A. § 1201. The necessity for such an indictment issued after appellant's April 1, 1959, conviction will be shown by the events of May 24, 1960, set out at No. 9, infra.

7. May 23, 1960. Upon motion by the Assistant United States Attorney, Judge Donovan ordered a mental examination of the appellant to be made by Dr. John Dickinson, M.D., the staff psychiatrist at the Springfield Medical Center. Mr. Dilworth was relieved as appellant's counsel and Robert W. Patterson, of St. Paul, was appointed in his place.

8. May 23, 1960. A United States Commissioner for the Southern Division of the Western District of Missouri, Axie Powell, ordered appellant temporarily committed to the Springfield Medical Center for purposes of examining as to appellant's mental competence.

9. May 24, 1960. Upon motion of the United States Attorney, Judge Donovan issued an order declaring appellant's judgment and conviction void and setting the same aside. He reasoned, on the authority of Smith v. United States, 1959, 360 U.S. 1, ...