Johnson v. United States, 21653.

Decision Date19 April 1965
Docket NumberNo. 21653.,21653.
PartiesBobby Gene JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

COPYRIGHT MATERIAL OMITTED

Leslie Harold Levinson, Melvin L. Wulf, New York City, for appellant.

H. M. Ray, U. S. Atty., Oxford, Miss., for appellee.

Before BROWN and BELL, Circuit Judges, and HUNTER, District Judge.

JOHN R. BROWN, Circuit Judge.

This appeal from the denial of Appellant's consolidated § 2255 motions seeking to have his 1961 sentences for larceny and contempt of court vacated because of lack of mental capacity to commit the offenses, waive counsel, plead guilty or stand trial presents primarily the question whether the § 2255 hearing was inadequate, not for courtroom deficiencies, but because of the restrictions imposed by the Court's earlier order calling for the pretrial psychiatric examination. Another important, but distinctive, problem is the propriety of the summary imposition of a three-year sentence for contempt, without benefit of counsel, for refusal to answer questions while testifying as a witness in another trial being held subsequent to his own conviction. We have concluded that there is merit in both of these complaints.

I. Mental Competency

Johnson and others were charged with robbing two banks containing federally insured funds.1 On August 4, 1961, he was arraigned, waived appointment of counsel, pleaded guilty and after a recess was sentenced to an aggregate time of 15 years.2 Prior to his arraignment and while being interviewed by the Probation Officer in connection with the pre-sentence report, Johnson made a request for a mental examination. The basis expressed by Johnson was that he was always getting into trouble with the law, so there must be something wrong with him. There was no indication that this request was passed along to the United States Attorney or made known to the Judge. Also prior to arraignment, the Defendant's father wrote Judge Clayton asking simply "would it be possible to get a sanity hearing for him?" This letter was referred to the United States Attorney, but it apparently precipitated no action. Although 18 U.S.C.A. § 4244 requires the United States Attorney upon having "reasonable cause to believe * * the defendant insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense, * * *" to move for a mental examination of the accused, no motion was filed in this case, nor did the Judge enter an order on his own.3

Before discussing this further, it retains sequence to comment briefly on a matter distinct from mental capacity as such. This concerns the sufficiency of the waiver of counsel on arraignment. Johnson contends that, apart from the question of mental competency, the record fails to demonstrate a knowing, intelligent waiver. In the final analysis this comes down to the proposition that the words concerning the right to have counsel appointed and the inquiry whether counsel was desired were spoken, not by the Judge, but by the District Attorney in open court. Of course the better practice is that these things should be done by the Judge himself. But it makes the assurance of this precious right a superficial, mechanical thing, not the one of basic substance which it really is, if the question of compliance is tested solely by who speaks.

Approaching it in the light of the fundamental nature of the guaranty, a reading of this record is convincing that through the solemn words spoken in the Judge's presence and to which he took no exception, these three defendants, separately addressed, were being informed by the very Court itself that they had the right to counsel if they were financially unable to obtain counsel, and that the Court would appoint counsel if desired. Equally plain is that with this explanation Johnson expressly waived appointment of counsel, and not a single piece of evidence from him or any other source on the § 2255 hearing indicates a lack of clear understanding of his rights and his knowing decision to proceed without a lawyer. Once it is judged on substance, not punctilious compliance with some stylized ritual, the District Court was justified in holding, as do we, that the demands of the law were satisfied. Von Moltke v. Gillies, 1948, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

And as to the related matter of the actual plea of guilty which followed waiver of counsel, there can be no doubt. The Judge himself carefully, thoroughly, and separately interrogated each of the defendants to ascertain whether the plea as to each separate indictment was freely, voluntarily, and understandably made. In accepting each plea, he found separately that it was, and there is no suggestion, either in the records and papers or in the evidence on the § 2255 proceeding, which even raises any question about this conclusion, either then or now.4

But what has been assumed arguendo in disposing of these two contentions is really the central dispute in the § 2255 motion. The District Court properly regarded the petition as raising a substantial question requiring a hearing as to Johnson's mental competency.5 Here the past indeed proves to be prologue, for at the time of sentencing Johnson brought up the problem of his mental-emotional health. Upon allocution, he made this request of the Court: "I would like if it is in your power to see if I can be treated while I am in prison. I need it, and for the things I have done in my life it has to be something wrong with me." The Court gave assurances that such treatment would be available.6

Four days later he was incarcerated at the penitentiary in Atlanta where, upon entering, he filled out a neuropsychiatric questionnaire in which once again he reiterated his request for psychiatric help. That apparently he did not then receive such treatment is hardly something he can ascribe to the Government. About a month later, presumably in connection with his appearance as a witness and the episode giving rise to the contempt sentence, Johnson escaped from Federal custody in Mississippi for which he was indicted under 18 U.S.C.A. § 751. In May 1963 he was apprehended in Florida where he was again the subject of Federal criminal proceedings not involved here.

Next came the filing of Appellant's § 2255 motions in September 1963. In response the United States Attorney on October 25, 1963, filed a motion for judicial determination of Johnson's mental competency requesting that he be examined by the Board of Examiners at Atlanta established under 18 U.S.C.A. § 4241.7 On the same day the Judge entered the order in the form submitted by Government counsel. It ordered that the Board examine Johnson to determine:

"1 whether * * * petitioner-defendant is mentally incompetent; and 2 if so, then * * * whether or not * * * petitioner was mentally incompetent at the time a of his arrests and b convictions, and c his jail escape * * *."8

Appellant attacks this order and the fruit of the examination because by a succession of conditional inquiries, it effectually restricted examination to Johnson's present condition, that is whether he "1 * * * is mentally defective" and then only "2 if so" was the examination to consider the past. Since the psychiatric examination actually found him to be presently competent, the examiners were not required either to look to the critical time two years previous or to report their findings as to such time.

Appellant's argument, then, goes to the very heart of the kind of § 2255 hearing due him. For that reason and the likelihood of it recurring, this case presents an important problem. Especially is this so where, as here, there is a concerned and conscientious effort by both the United States Attorney and the District Judge to exploit fully governmental machinery through which the Court could be assured of obtaining reliable, scientifically trustworthy evidence upon which to arrive at a sound judicial determination of mental competence.9 To provide illumination for the plenary hearing, outside professional help was needed. The Court with good reason thought governmental resources were the best. But with this conclusion, the problem arose of properly directing the professional inquiry to be made by the consulting psychiatric specialists, so that the results obtained would be responsive to the issues raised in the § 2255 motion.

At this point the distinction must be recognized between permissible use of some of this statutory machinery as an aid, on the one hand, and compliance with the law's requirements on the other. Thus, following Bishop v. United States, 1956, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835, this Circuit makes two things clear. First, mental competency may be raised by a § 2255 proceeding. Second, this right is not conditioned upon, nor satisfied merely by compliance with the procedures outlined in 18 U.S.C.A. §§ 4241,10 4244,11 4245.12 Gregori v. United States, 5 Cir., 1957, 243 F.2d 48; United States v. Cannon, 2 Cir., 1962, 310 F.2d 841; see also Van de Bogart v. United States, 5 Cir., 1962, 305 F.2d 583. But this does not either prohibit or discourage use of this statutory machinery for psychiatric examination. This supplies to the District Judge a valuable tool to use in obtaining the evidential information necessary to rule properly on the issues raised by the § 2255 motion.

But as a tool, it must be properly turned. A literal tracking of the procedure outlined in these sections expressed in terms of or present mental competency would not do the job. Consequently, if this machinery was to be utilized, it was the function of the Judge through his order to focus the attention of the board of examiners on the critical medico-legal questions at issue to assure the gathering of the particular psychiatric data necessary to reach the professional...

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