U.S. v. Gano
| Decision Date | 11 August 1977 |
| Docket Number | No. 76-1276,76-1276 |
| Citation | 560 F.2d 990 |
| Parties | 2 Fed. R. Evid. Serv. 692 UNITED STATES of America, Plaintiff-Appellee, v. Theodore Jay GANO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Bruce E. Miller, Asst. U. S. Atty., Topeka, Kan. (E. Edward Johnson, U. S. Atty., Topeka, Kan., on the brief), for plaintiff-appellee.
John O. Martin, Asst. Federal Public Defender, Kansas City, Kan. (Leonard D. Munker, Federal Public Defender, Kansas City, Kan., on the brief), for defendant-appellant.
Before McWILLIAMS and DOYLE, Circuit Judges, and MARKEY, * Chief Judge.
This is an appeal from a conviction on three counts of the crime of having carnal knowledge of a female under the age of 16, contrary to 18 U.S.C. § 2032. The questions which are advanced in this effort to obtain a reversal are whether the trial court erred in receiving testimony as to other offenses allegedly committed by the defendant, and whether the government satisfied its burden of proving that the defendant had the necessary mental capacity to commit the offense charged in the indictment.
The defendant was employed as a social worker at the Veterans Administration Hospital in Topeka, Kansas. His assignment was to counsel members of the families of patients. The patient in this instance was a dentist, who was being treated for psychiatric problems. He had three children, the oldest of whom was 15, the youngest four. The 15-year-old, Cynthia, became acquainted with defendant incident to the defendant counselling her mother and other members of the family.
In September 1974, defendant commenced counselling the mother and sex became the main area of discussion. Soon after this, the family moved to Topeka where the hospital was and the mother began to see defendant two to three times a week. At these sessions sex was the main area which was discussed. This ultimately led to intercourse between the mother and the defendant. Prior to this incident, there was an extensive program of establishing trust, engaging in body massage, plus other actions designed to break down barriers and inhibitions by means of psuedo-treatment methods.
During the several month period in which all of the alleged actions occurred, the 15-year-old daughter, who had been attending school in Missouri, moved to Topeka and immediately defendant's focus was shifted to her. About the same program was followed in his dealings with this young girl. Counselling sessions were had with the 15-year-old about three times a week and sexual topics together with massage were the principal activities. As in dealing with the mother, he sought to develop a trusting and uninhibited relationship with her. Finally, on December 17, 1974, he induced her to have sexual relations with him in his Veterans Administration Hospital office. After this he urged her not to tell anyone what had happened because, so he maintained, this would destroy their relationship. However, she refused to return for sessions with him after the December 17 occurrence and eventually did so only as a result of her mother's urging. The mother was also persuaded to surreptitiously give the daughter marijuana in food. This was represented as an attempt to relax the child and to thereby assist the therapy. About this time the child ceased her communication with her mother, and on January 10, 1975, defendant took the girl to a movie after she had had marijuana in her food and then afterwards took her to his office at the Veterans Administration Hospital, where they again had intercourse. Intercourse again occurred at the office on January 15, 1975.
He saw the child frequently thereafter, and in mid-February, there was a weekend trip to Wichita on the pretext that it would be therapeutic. On February 13, 1975, he and the girl traveled to Kansas City, Missouri. There were frequent acts of intercourse during this period of time.
As indicated above, the sole question for our determination is whether it was error to admit testimony pertaining to crimes other than that charged in the indictment. Also received was testimony that defendant had sold marijuana to the mother for her own use and for the purpose of giving it to the child; that this was as a prelude to one of the charged offenses. Further received was evidence that he gave marijuana to the girl. All of this was objected to, and the trial court overruled the objections at the same time cautioning the jury that this evidence was admissible for a limited purpose, that of showing opportunity, preparation, plan, knowledge or absence of mistake or accident in connection with the charged offenses. Following the close of the trial, the judge gave an additional instruction which again limited the evidence received.
The argument of defendant is that the testimony as to other acts, including one act of intercourse with the mother, is not probative and that it does not establish opportunity, preparation, plan, knowledge or absence of mistake or accident. He says also that the error is compounded because of the fact that no issue existed as to the commission of the acts. The government maintains that the evidence was admissible because it was relevant to the defense of insanity and because it concerned matters so closely connected to the charged offenses that it is indivisible from the acts which are set forth in the indictment. An alternative position of the government is that the evidence shows a scheme, plan, knowledge, opportunity, etc.
We are of the opinion that the court did not err in receiving this testimony. The part of the evidence which is at first somewhat questionable is that pertaining to the act of sexual intercourse with the mother. 1 This was separated in time from the acts which were perpetrated against the daughter. Also, where the act is against another victim and is separated in time from that which took place with the person described in the indictment, it is at least suspect. However, in this case we see no basis for distinguishing the one act involving the mother from the subsequent ones involving the daughter. In both instances the method employed by defendant was essentially the same. It was under the guise of therapy or treatment. Defendant manipulated both the mother and the daughter and played them one against the other even using marijuana...
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