Nagell v. United States, 21620.

• Decision Date: 04 January 1966
• Docket Number: No. 21620.,21620.
• Citation: 354 F.2d 441
• Parties: Richard Case NAGELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

354 F.2d 441 (1966)

Richard Case NAGELL, Appellant, v. UNITED STATES of America, Appellee.

No. 21620.

United States Court of Appeals Fifth Circuit.

January 4, 1966.

Gus Rallis, Joseph A. Calamia, E. F. Sherman, El Paso, Tex., for appellant.

M. H. Raney, Asst. U. S. Atty., El Paso, Tex., Ernest Morgan, U. S. Atty., San Antonio, Tex., Fred J. Morton, Harry Lee Hudspeth, Asst. U. S. Attys., El Paso, Tex., for appellee.

Before TUTTLE, Chief Judge, COLEMAN, Circuit Judge, and HUNTER, District Judge.

COLEMAN, Circuit Judge:

This appellant was convicted by a jury of having entered a federally insured bank with intent to rob and of attempting to commit robbery in violation of 18 U.S.C.A. § 2113(a). He was sentenced to the maximum penalty of ten years in the custody of the Attorney General. He elected to begin serving the sentence pending appeal.

The record shows that late in the afternoon of September 20, 1963, appellant went into the State National Bank of El Paso, Texas. He asked where travelers' checks could be obtained, and upon reaching the proper cage asked the lady teller for one hundred dollars worth of checks in ten dollar denominations. The teller moved to get them, whereupon Nagell said, "Lady, this is a real gun". She immediately ran, and appellant took several steps away from the cage, fired two shots into the wall at a height of about seven feet, not aiming at the teller, and ran out of the bank. He was followed by a police officer who happened to be in the bank at the time. He was, without difficulty, arrested at a time when he was about to leave in an automobile which he had left parked near the bank.

The appellate record consists of some eight hundred typewritten pages, and it has been carefully read in its entirety.

On this appeal, seven grounds are raised in support of reversal. We are ready to say, without extended discussion, that six of these may confidently be rejected; that (1) the evidence failed to show the requisite intent; (2) sanity was not shown beyond a reasonable doubt; (3) a continuance was erroneously denied; (4) reversible error was committed in the examination of witnesses and in argument to the jury; (5) court appointed attorneys were lulled by erroneous representations by the government that all available evidence bearing on defendant's mental condition would be made available to them; and (6) the court erred in its charge on the defense of insanity.

The seventh ground, contending that a new trial should have been granted on account of crucial evidence newly discovered, must be sustained.

I

At the time of the trial, Nagell was thirty-three years old. He was born in Greenwich, New York. His father died when he was two years old. Under circumstances not explained in the record, he was separated from his mother when he was four. He lived in various foster homes until he was eleven, and in an orphanage until he was eighteen. He then enlisted in the Army, 1948. He became a paratrooper, but in 1951 went to Korea with the 24th Infantry as a second lieutenant. He served a year in Korea, was rotated home, but immediately went back at his own request. On three separate occasions he was wounded in action. In 1954, he was a passenger in a military airplane enroute from Los Angeles to Washington. The plane crashed while attempting a landing at Friendship Airport, killing all occupants except Nagell. He sustained severe head injuries, including organic brain damage, although this damage, as will be seen, was unknown to the trial judge or defense attorneys until after the trial now under review. He was hospitalized in Walter Reed Hospital, was later returned to duty through some machinations of his own, and resigned from the service under honorable conditions. He drew 64% service connected disability compensation, but not for a mental condition. In 1958, at the American Embassy in Tokyo, he was married to a Japanese subject. They had two children, but the marriage had gone on the rocks before September, 1963. He later worked for the State of California, but lost that job. In August, 1962, he shot himself through the left chest. He originally claimed this was done by an assailant whom he refused to name; it later came out that the shot was self-inflicted. He testified in his own behalf. He was asked by his own counsel if he adhered to the communist philosophy, to communist teachings, but he declined to answer on the ground that it might incriminate him, although he had told the court in an earlier hearing that he was a communist. He contended that he did what he did at the bank not for robbery but in order that he might be arrested by federal authorities. He refused to elaborate on why he wanted to be arrested other than to say he "thought it would provide a solution, however temporary or immediate, to a problem, that I considered at the time to be an unbearable problem with which I was confronted". He said that before he went to the bank he was in the process of leaving the United States permanently. He said, "I was planning on going to Mexico City, where I would have left Mexico for another destination and I would have gone permanently from this country". He insisted that if acquitted he planned to leave, because he had "had every basic Constitutional right violated". He made this latter charge in face of the fact that this record reveals a most meticulous effort and an almost superhuman patience on the part of two district judges to preserve his rights.

II

We now advert to certain occurrences which took place before, during, and after the trial.

From the outset, the defendant in many ways manifested the most unusual behavior. The possibility of insanity was quickly recognized. Four days after the arrest the government filed a motion for a judicial determination of the mental competency of the defendant, "there being reasonable cause to believe that said defendant may be presently insane or otherwise so mentally incompetent as to be unable to assist in his own defense". The motion stated that the records of the Veterans Administration Hospital, at Bay Pines, Florida, showed the defendant to have been released from that facility on January 20, 1963, with diagnosis of "chronic brain syndrome associated with brain trauma with behavioral reaction characterized by passive-aggressive and paranoid features". It was further shown that the records of the Veterans Administration Outpatient Clinic at Los Angeles, California, on June 4, 1963, about three months before the alleged crime, had shown a diagnosis of "depressed, tearful, nervous, and rigid". It was further shown that the regular jail physician at the El Paso jail recommended that the defendant should be examined by a psychiatrist "due to unusual behavior on the part of the defendant".

The district judge directed that Nagell be given a mental examination by Dr. R. J. Bennett, a qualified psychiatrist of El Paso, and report his findings. On October 11, 1963, Dr. Bennett reported that on two occasions he had attempted to examine Nagell, without success, because he was unwilling to give any information.

Thereafter, the district court ordered that Nagell be transported to the Medical Center for Federal Prisoners at Springfield, Missouri, to be confined to such institution for a period of thirty days, after which the appropriate officials were to make their report of findings and conclusions as to his mental competency. On March 6, 1964, the chief medical officer at Springfield reported that Nagell was "opposed to psychiatric examination and will not cooperate in this area or any examination that may be performed on him". The diagnosis was that he was competent to stand trial, as he had a rational as well as factual understanding of the proceedings against him and is able to assist rationally in his defense.

The court first appointed Mr. James E. Hammond of the El Paso Bar, to represent Nagell. The hearing on November 4, 1963, held at the instance of the defendant, revealed that Nagell did not desire the services of Mr. Hammond because, as Nagell charged, he had disclosed some confidential information, which Mr. Hammond denied. During the course of this hearing, the defendant stated that he would "cooperate with no psychiatrist whatsoever or whomsoever unless they are Veterans Administration psychiatrists, because if anything is found to be wrong with me then it occurred as result of injuries during the Korean conflict, and they can send me to La Tuna, (a mental institution) but I will not do anything voluntarily and I will not take any examinations nor will I converse with the psychiatrist". When asked by the court if he would answer any questions by the psychiatrist, the defendant stated that he would not, and that he would not take any examinations. It was pointed out to him that he could not be sent to a Veterans Administration hospital because such institutions had no facilities to insure his detention. Upon suggestion of some other hospital the defendant stated, "well, your Honor, I am not a liar so I would not want to say that I will cooperate with him fully. I will not tell him what my motive was for going into the bank".

Thereafter, the court appointed Mr. John Langford, of the El Paso Bar, to represent Nagell, but a hearing held on December 4, 1963, revealed that Nagell was not satisfied with Mr. Langford. So, Mr. Langford was excused as counsel. Defendant launched into a long discourse on contentions that he was being denied a speedy trial, during which he cited the case of Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 in support of his views. The defendant stated that he believed himself to be mentally competent.

At a third hearing, on January 24, 1964, the defendant denied that he had ever been treated by a psychiatrist. He alleged that he had been questioned by the Federal Bureau of Investigation regarding alleged subversive activities and activities of a nature inimical to the best interest of the...