Ramer v. United States

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation411 F.2d 30
Docket NumberNo. 21985.,21985.
PartiesLanier Allison RAMER, Appellant, v. UNITED STATES of America, Appellee.
Decision Date05 June 1969

Quimby Bingham (argued), Tacoma, Wash., for appellant.

J. S. Obenour (argued), Asst. U. S. Atty., Eugene G. Cushing, U. S. Atty., Tacoma, Wash., for appellee.

Before BARNES and MERRILL, Circuit Judges, and McNICHOLS, District Judge.

McNICHOLS, District Judge:

Appellant, Lanier Allison Ramer, was convicted, after jury trial, of escape from confinement at the United States Penitentiary at McNeil Island, Washington, in violation of 18 U.S.C. § 751. Jurisdiction in this Court depends on 28 U.S.C. § 1291.

The factual background leading to the conviction and appeal is not in serious dispute. The appellant did not take the stand to testify, except in preliminary matters out of the presence of the jury. Only one witness testified on behalf of the defendant, a psychiatrist, called to support a defense of insanity.

On September 21, 1965, Ramer began serving a sentence for bank robbery at the McNeil Island institution.1 On March 16, 1966, he was reported to be missing from his work detail on a road repair project, on the Island, but outside of the walls of the penitentiary proper.2 A search was immediately instituted and continued until March 21, 1966, at which time the appellant was discovered hiding among some items of machinery covered by a tarpaulin not far from the area where he had been assigned to work.

Appellant was immediately taken to the medical facility of the prison where the chief medical officer conducted a complete physical examination of his person. This was a routine procedure when escaped prisoners were recaptured. Ramer was found to be in generally good condition except for a redness of the feet indicating the effect of cold weather. The doctor noted that he also appeared to be "mentally competent". The patient was hospitalized for three or four days, until March 24, 1966, and medication given as a precaution against any infection of the feet.

On April 6, 1966, Dr. Harold B. Johnston, a qualified physician specializing in psychiatry, made a psychiatric examination of the appellant. Dr. Johnston, in private practice in Tacoma, Washington, had been a consulting psychiatrist to the staff physicians at the McNeil Island Penitentiary since 1956. He made regular monthly visits to the Prison where he conducted psychiatric examinations of such prisoners as the medical staff requested. It was customary to have him so examine inmates following reapprehension after escape. The purpose of the April 6, 1966, examination of Ramer, according to Dr. Johnston, was "to determine his mental competency and whether or not there was any need for treatment."

In the course of the April 6, 1966 psychiatric examination, Dr. Johnston discussed in generalities the details of the escape with Ramer. It is conceded that no "Miranda"3 type warnings were given at the time of this examination.4

A few days after March 21, 1966, one of Ramer's friends procured the services of Thomas H. S. Brucker, an attorney practicing in Seattle, Washington, to act on appellant's behalf. Brucker was a former Assistant United States Attorney in the Seattle area. On March 29, 1966, Brucker represented Ramer before the United States Commissioner at a hearing held at the Penitentiary. At this time appellant and his attorney were given such time as was needed to confer privately; additionally, transportation was furnished to Attorney Brucker so that he could familiarize himself with the physical aspects of the area where the escape was alleged to have occurred, the search conducted and the appellant reapprehended.

Subsequently, on November 15, 1966, the grand jury returned an indictment charging the appellant with escape.5 Brucker continued to represent appellant until late November or early December, 1966. He communicated with his client by letter on a least six occasions and received from his client several letters. It is undisputed that all the correspondence was subject to prison inspection; each letter being opened and examined by prison employees before being forwarded to the addressee. Mr. Brucker having had experience as a United States Attorney anticipated that his letters would be so censored and took care that no material detrimental to the defense was included in the correspondence under surveillance. Brucker found it difficult to travel from his office in Seattle to the Penitentiary. The trip, including the ferry ride, consumed nearly two hours each way. Consequently he actually only conferred personally with his client at the March 29, 1966 Commissioner hearing and on July 29 and August 1, 1966, when Ramer was brought to the Tacoma city jail for possible waiver of indictment. As indicated, Brucker ceased to represent appellant a few days after the grand jury indictment was filed.

Quinby R. Bingham, a Tacoma attorney, was promptly appointed to represent Ramer. Attorney Bingham has continued through the trial and this appeal to so represent the appellant and has done so in the most professional, competent and dedicated manner.6

After consultation with his client at the Tacoma jail, Bingham and appellant appeared in the trial court on December 19, 1966 for arraignment. A motion to dismiss based on the interception of mail between client and attorney was denied; a plea of not guilty entered; and at the request of defense counsel a psychiatric report was ordered. Dr. Donald S. Stubbs, a neuropsychologist on the staff of the Veterans Administration Hospital at American Lake, Washington, was appointed to examine the appellant and report to the Court. Dr. Stubbs reported, after examination, that Ramer was sane and mentally able to participate in his defense at trial and to understand the nature of the charges against him. Defense counsel tacitly agreed with this diagnosis and the Court so found.

On January 30, 1967, appellant again moved for (1) an order dismissing the indictment because of the interference with the mail communication between counsel and the prisoner-defendant, (2) an order to direct that such surveillance be discontinued and (3) for a continuance to appeal adverse rulings on these motions. The trial court heard full arguments on the motions, accepted certain affidavits and made rulings. He found that the custodial examination of prisoner correspondence was proper and necessary to the security of the institution. He found that no information obtained from the correspondence had been made available to the grand jury which returned the indictment. He found further that appellant had been afforded adequate opportunities to confer privately with his counsel. On this basis all motions were denied, with a caveat to the United States Attorney and the prison officials that the appellant and his counsel were to be given all reasonable opportunities to confer privately so as to prepare the defense.

Appellant was permitted to renew these motions on March 27, 1967, the day before the scheduled trial. Evidence of Attorney Brucker and that of the appellant was heard by the Court. It was shown that Brucker had personally interviewed his client on two occasions in private to the extent he required. No confidential information was contained in the inspected correspondence. Attorney Bingham and Ramer were afforded numerous opportunities to confer privately at the Tacoma jail. Neither attorney was ever barred or discouraged from going to see appellant at the prison where private conferences would have been readily available. On this basis the very experienced trial judge held that no prejudice to the appellant had been shown and again rejected the motion to dismiss the indictment on the ground that inspection of mail had denied the appellant full representation by counsel.

The cause went to trial and the evidence of guilt was overwhelming. Since Ramer had indicated his intention to depend on insanity as a defense, the government called Dr. Harold B. Johnston to testify as to his opinion of the sanity of the accused at the time of the escape. It was proposed that such opinion would be based on the psychiatric examination conducted by the witness on April 6, 1966, heretofore described. At this point the defense objected on the grounds that (1) the defendant had not been advised of his constitutional right to remain silent, and to have the services of an attorney as required by the "Miranda" rule; and (2) that any communications to the Doctor were privileged by the physician-patient privilege rule.

The Court interrupted the trial and heard evidence outside the presence of the jury. Both Dr. Johnston and Ramer testified. The Doctor stated that he had gone to the prison on April 6, 1966, that Dr. Kyle, the Chief Medical Officer, indicated that a psychiatric evaluation of Ramer was desired and that Dr. Kyle introduced him to Ramer as the "Consulting Psychiatrist". He proceeded with the examination which lasted approximately forty-five minutes. The details of the escape were gone into in "moderate detail".

Ramer testified in this same voir dire hearing. He said that he was taken from his cell on April 6, 1966, conducted to the hospital area and told to wait for the consulting psychiatrist to call him. He stated that, when so summoned, and after some hesitation, he answered Dr. Johnston's questions on the details of his escape, assuming that ethically the Doctor would not use the information against him. On cross-examination he further testified that he considered himself the patient of Dr. Johnston at the time of the interview.

During argument on defendant's objection, the United States Attorney conceded that the practice of having psychiatric examinations of returned escapees had been suggested to the prison authorities by his office. He stated that in the past a defense of insanity had occasionally been raised in escape trials and that the...

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  • Presnell v. State, 32995
    • United States
    • Supreme Court of Georgia
    • 7 d2 Março d2 1978
    ...... of the defendant which violated his privilege against self-incrimination under the United States and the Georgia Constitutions. He argues that he was compelled to be a witness against ...Weiser, 428 F.2d 932 (2d Cir. 1969), cert. den. 402 U.S. 949, 91 S.Ct. 1606, 29 L.Ed.2d 119; Ramer v. United States, 411 F.2d 30 (9th Cir. 1969); see State v. Evans, 104 Ariz. 434, 454 P.2d 976 ......
  • United States v. Harper, 30324.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 25 d1 Outubro d1 1971
    ...therefore, the testimony of the two doctors was admissible. See United States v. Mancuso, 5 Cir. 1971, 444 F.2d 691; Ramer v. United States, 9 Cir. 1969, 411 F.2d 30, 39-40; United States v. Mullings, 2 Cir. 1966, 364 F.2d 173, 176 n. Moreover, in the circumstances of this case the Mississi......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 21 d5 Maio d5 1971
    ...when he authorized its disclosure to the court. See Taylor v. United States, 95 U.S.App.D.C. 373, 222 F.2d 398 (1955); Ramer v. United States, 411 F.2d 30 (9th Cir.), cert. denied, 396 U.S. 965, 90 S.Ct. 445, 24 L.Ed.2d 431 (1969). He argues further that he was entitled to production of Dr.......
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    • 7 d2 Junho d2 1977
    ...and treatment but rather for examination to pass on the mental and physical condition of one charged with a crime. Ramer v. United States, 411 F.2d 30, 39-40 (9th Cir.), cert. denied, 396 U.S. 965, 90 S.Ct. 445, 24 L.Ed.2d 431 The statutory prohibition reads: No statement made in the course......
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