Leach v. United States, 17549.

• Decision Date: 25 April 1963
• Docket Number: No. 17549.,17549.
• Citation: 320 F.2d 670,115 US App. DC 351
• Parties: William H. LEACH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

115 US App. DC 351, 320 F.2d 670 (1963)

William H. LEACH, Appellant, v. UNITED STATES of America, Appellee.

No. 17549.

United States Court of Appeals District of Columbia Circuit.

Argued March 28, 1963.

Decided April 25, 1963.

Mr. Arnold H. Leibowitz, Washington, D. C., with whom Mr. Max M. Kampelman, Washington, D. C. (both appointed by this court), was on the brief, for appellant.

Mr. Robert D. Devlin, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Alexander L. Stevas, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and BASTIAN and WRIGHT, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge.

Appellant was convicted of robbery.¹ On appeal he alleges that the trial court committed reversible error in (1) failing to order, pursuant to 18 U.S.C. § 3500(b), the production of a statement taken from a witness by the police, and (2) failing to stay the imposition of sentence pending a psychiatric examination.

18 U.S.C. § 3500(b) provides that: "After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified." After the direct examination of the witness Emge was concluded, appellant moved for the production of his statement made to the police. When the prosecutor indicated he did not have the statement,² the court told counsel to ask the policeman for the statement when he "takes the stand."

This was error. 18 U.S.C. § 3500(b) requires the production of the witness' statement for use in his cross-examination. Here the court required appellant's counsel to proceed with cross-examination of the witness without it. The fact that the prosecutor does not admit the existence of a statement does not relieve the court of the "affirmative duty to determine whether any such statement exists." Saunders v. United States, 114 U.S.App.D.C. 345, 348, 316 F.2d 346, 349 (1963). The court must "conduct any inquiry which is `necessary to aid the judge to discharge the responsibility laid upon him to enforce the statute.'" Ibid. And pending this inquiry, cross-examination may not proceed without the expressed acquiescence of the defendant.

We find the error here, however, to be harmless. When the policeman took the stand, the entire police file was produced and made available to defense counsel. After counsel read the file, the matter of the statement was not pursued.

Appellant's second point may not be so easily disposed of. Appellant argues that prior to sentence, in order to assist the court in determining an appropriate disposition of his case, he asked that he be afforded a mental examination. At the time of sentence appellant stated to the court that he was "under a psychiatrist for one year" in 1935, that he "had a mental disorder from 1952," that he "was under a doctor in the state prison at Trenton" in 1952, and that all but 63 days of the past 31 years, since he was 19 years old, he has spent in various prisons, serving sentences for a variety of crimes. The court imposed the maximum penalty provided by law without responding to appellant's request for an examination prior to sentence.³

In the act of sentencing, the judge approaches the attribute of the Almighty — he sits in judgment of his fellow man. At that moment he must determine the penalty which society will impose on the offender for his crime. But more importantly, for the offender and for society, in sentencing, the judge must consider a program of rehabilitation designed to preclude, so far as current learning can furnish a guide, a repetition of the crime. To this end the Congress has placed several aids at the disposal of the sentencing judge to assist him in making his awful decision. 24 D.C.Code § 101 provides for the appointment by the District Court of probation officers, persons trained in social justice. Rule 32(c) of the Federal Rules of Criminal Procedure provides that a probation officer "shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs." 24 D.C.Code § 301 provides for commitment prior to sentence to a hospital for examination to determine the mental competence of the offender. 24 D.C.Code § 106 provides for the appointment of a qualified psychiatrist and a qualified psychologist to assist judges of the District Court in criminal cases in carrying out their duties.⁴ Unfortunately, a chart furnished the District Court by its legal Psychiatric Services, created pursuant to this statute, indicates that in the year 1962, during which the District Court imposed 1041 sentences, the Legal Psychiatric Services was called upon to make only three pre-sentence examinations.⁵

There is no indication here that the court, in imposing as it did the maximum penalty provided by the statute, made use of any of the aids to sentencing placed at its disposal by the Congress of the United States. Under the circumstances, we think the case should be remanded to the District Court for reconsideration of the sentence. It may be that on reconsideration the sentence previously imposed will be undisturbed. In view of the fact, however, that the record reflects no response on the part of the court to appellant's request for examination prior to sentence, that request may not have been considered. It may be also that further consideration generally may provide a more appropriate means for protecting the interests of society and the appellant.

So ordered.

BASTIAN, Circuit Judge (dissenting).

We are all agreed there was no reversible error which affects the verdict.

The only purpose of the remand is to command the District Court to exercise its discretion in a particular manner, i.e., to consult the Legal Psychiatric Services before sentencing. This is done in the face of the presumption of regularity and in face of the long time lapse between verdict and sentence, which plainly indicates that the District Judge received the usual pre-sentence report. I think we have no power to tell the District Court that, before sentencing a convicted person, a psychiatrist must be consulted, especially in a case where no issue of competence was raised before or during trial.

I am familiar with the sections of the D.C.Code and with Rule 32(c) of the Federal Rules of Criminal Procedure cited by the majority. I am also familiar, both from my experience as a District Judge and from observation since becoming a member of this court, with the practice in the trial court, with very, very few exceptions, of referring to the Probation Officer for pre-sentence report all cases in which a plea of guilty is taken or a conviction by a jury had and motion for a new trial denied. No claim is made that this was not done in the present case; and the...