U.S. v. Hoog, 74-1259

• Decision Date: 03 March 1975
• Docket Number: No. 74-1259,74-1259
• Citation: 504 F.2d 45
• Parties: UNITED STATES of America, Appellee, v. Louis R. HOOG, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 45

504 F.2d 45

UNITED STATES of America, Appellee, v. Louis R. HOOG, Appellant.

No. 74-1259.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 11, 1974.

Decided Oct. 15, 1974, Rehearing Denied Nov. 8, 1974,

Certiorari Denied March3, 1975, See 95 S.Ct. 1349.

George D. Blackwood, Jr., Kansas City, Mo., for appellant.

J. Whitfield Moody, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before MATTHES, Senior Circuit Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, ^* Senior District Judge.

BRIGHT, Circuit Judge.

The defendant-appellant, Louis R. H00g, after trial before a jury, stands convicted on three counts of violating 18 U.S.C. 2 and 1201(a). ¹ The trial court sentenced him to life imprisonment on each count subject to the provisions of 18 U.S.C. 4208(a)(2), with the sentences to be served concurrently. He appeals from the judgment, claiming several errors in the conduct of the trial.

A review of the facts upon which Hoog's conviction is based will aid in evaluating the merit, if any, of his appeal. At the time of the occurrence of the alleged offenses Hoog was self-employed as an electrician. He had been so employed since 1968. He had earlier been hospitalized for a form of schizophrenia. Hospitalization took place between 1954 and 1962, at irregular intervals, during his release on parole following a term of federal imprisonment and during a subsequent term of imprisonment for a state conviction of statutory rape. There is no evidence that Hoog was at any time hospitalized or treated for any mental condition between 1962 and the commission of the offenses with which he was charged, in May and August of 1973. We briefly recount the details concerning each charge.

Count I: On May 9, 1973, Hoog's son by a common law marriage, Jerry Mills' ² induced one Tracy Eybel, age 16, to accept a ride in his pickup truck. She accepted his offer of a ride with the understanding that Mills would drive her to her home. She entered the truck shortly after midnight at her place of employment in Kansas City, Missouri. Shortly after Mills had begun to drive in the direction of Ms. Eybel's home, he received a message over a radio receiver located in the cab of the truck. Explaining to Ms. Eybel that an emergency had arisen, he thereupon turned the truck about and began driving in the opposite direction. He soon met the defendant, who joined him and Ms. Eybel in the truck. Whether the truck was in Missouri or Kansas at the time that Hoog entered it was not established by the evidence. Hoog rode with Mills and Ms. Eybel to within two or three blocks of Mills' destination in an industrial area of Kansas City, Kansas. Hoog then departed the couple on the pretext of obtaining parts for some repair job. Mills then took Ms. Eybel to a deserted building and raped her. Hoog appeared on the scene soon thereafter and also raped her. Hoog and Mills then drove her home, at the same time offering their apologies for the assaults.

Count II: On August 1, 1973, Hoog induced one Patricia Justice, age 17, to accept a ride in his camper truck. She accepted his offer in the belief that he would drive her to his office for a job interview as a receptionist. She entered the truck in Kansas City, Missouri. Hoog then drove her to the same building in Kansas City, Kansas, where he and Mills had previously raped Ms. Eybel. He informed Ms. Justice that this would be her place of employment. He then briefly entered the building for the purpose of placing a telephone call. Upon returning to the truck, he drove her to a bar, where he placed another telephone call. He then drove her to an apartment complex in Lenexa, Kansas, where he met with Mills and introduced Mills to Ms. Justice as the person who would interview her for the position as a receptionist. Mills arranged to meet with Ms. Justice later in the afternoon to discuss the job. Hoog then drove her back to the bar; Mills soon joined them there. After Mills had arrived, Hoog excused himself, saying that he had to return home to his wife. Mills then proceeded with Ms. Justice to a motel in Missouri. Once at the motel, Mills led her into one of its units and physically assaulted her. In the course of the beating, Hoog appeared and offered to take her home. Hoog then drove Ms. Justice into Kansas and stopped his automobile in open country. Mills pulled up behind him, left his vehicle, and forcibly removed Ms. Justice from Hoog's car. As Mills was removing her, Hoog explained to Ms. Justice that he (Hoog) was 'sorry' but that he had to 'go home to my wife.' Hoog departed and Mills then drove Ms. Justice to a remote area where he beat and raped her. After this assault, Mills returned to the notel with Ms. Justice. The following morning Hoog appeared at the motel and spoke briefly with Ms. Justice, offering her the services of his family physician. Mills then drove her home.

Count III: On August 3, 1973, the day after Hoog had last spoken with Ms. Justice, Hoog offered a ride to one Karen Hughes, age 18, a hitchhiker. Ms. Hughes was seeking a ride to her home and Hoog agreed to take her there. Hoog then offered her a job at a pay of $125 weekly. Shortly after she had entered his automobile in Kansas City, Missouri, Hoog received a message over a radio receiver located in the front seat of the car. He thereupon explained that he must return to his office and that Ms. Hughes could apply for the job there. Hoog drove to Kansas City, Kansas, and stopped at the same building where he had earlier raped Ms. Eybel. He entered the building and then returned to the automobile. He then departed with Ms. Hughes, representing that he had urgent business to attend to and that he would eventually take her home. After making some additional stops, Hoog drove her to a remote area and raped her. He then drove her home, apologizing for his conduct.

Both Hoog and Mills were indicted on all three counts for

wilfully, knowingly and unlawfully * * * (transporting) in interstate commerce from Kansas City, Missouri, to the State of Kansas (Tracy Eybel, Patricia Justice and Karen Hughes), who had theretofore been unlawfully inveigled, decoyed, and carried away and held * * * for the purpose of rape, in violation of Title 18, United States Code, Section * * * 1201(a) * * *.

Hoog was indicted as an aider and abettor of Mills on counts I and II.

Hoog seeks reversal of his conviction on several grounds. First, he contends that the court's ruling that he was mentally competent to stand trial was clearly erroneous. This contention utterly lacks support. Following commitment to the Medical Center for Federal Prisoners in Springfield, Missouri, where he was diagnosed as competent to stand trial, Hoog was afforded a competency hearing by the court. The record discloses that there was ample evidence by which the court could reasonably have concluded that Hoog was competent to stand trial. Such a determination is for the trial court to make. E.g., United States v. Davis, 365 F.2d 251, 256 (6th Cir. 1966). See United States v. Mercado, 469 F.2d 1148, 1152 (2d Cir. 1972); United States v. Maret, 433 F.2d 1064, 1067 (8th Cir. 1970), cert. denied, 402 U.S. 989, 91 S.Ct. 1678, 29 L.Ed.2d 155 (1971).

Second, Hoog contends that the court erred in denying his request for a severance of the three counts and a separate trial on each. He reasons that the alleged offenses occurred on different dates so as to constitute distinct offenses and that trial of the three counts together might lead the jury to cumulate evidence from one count to the next. On the facts and record of this case, our previous views in Johnson v. United States, 356 F.2d 680 (8th Cir.), cert. denied, 385 U.S. 857, 87 S.Ct. 105, 17 L.Ed.2d 84 (1966), are dispositive:

Under Rule 8(a), Federal Rules of Criminal Procedure, joinder of offenses is ordinarily appropriate where, as here, the specific counts refer to the same type of offenses, occurring over a relatively short period of time, and the evidence as to each count of necessity overlaps. The prime consideration in determining whether or not to grant a severance is the possibility of prejudice to the defendant in conducting his defense. Weighing the danger of confusion and undue cumulative inference is a matter for the trial judge within his sound discretion. His denial of severance is not grounds for reversal unless clear prejudice and abuse of discretion is shown. There has been no such showing here. It is not enough simply to show that such joinder makes it more difficult to defend. (Id. at 682.)

See also United States v. Chrisco, 493 F.2d 232, 239 (8th Cir. 1974); United States v. Skillman, 442 F.2d 542, 554-556 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971). Moreover, we note that Hoog was not tried with Mills, thereby minimizing the possibility that the jury would impute evidence of Mills' criminal conduct, particularly with respect to count II, to Hoog. Cf. United States v. Mankins, 497 F.2d 1265, 1266-1267 (4th Cir. 1974); United States v. Roell, 487 F.2d 395, 402 (8th Cir. 1973).

Third, Hoog asserts that the court erred in denying his motion for a new trial or for judgment of acquittal notwithstanding the verdict on the ground that he was insane as a matter of law at the time of the alleged offenses. Insanity at the time of the offense is a question for the jury. E.g., United States v. Archer, 450 F.2d 1106, 1108 (8th Cir. 1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1329, 31 L.Ed.2d 586 (1972); Beardslee v. United States, 387 F.2d 280, 295 (8th Cir. 1967); Alexander v. United States, 380 F.2d 33, 37-38 (8th Cir. 1967). After considering evidence of Hoog's satisfactory self-employment for five years immediately preceding the offenses, uninterrupted by any hospitalization or treatment for mental illness; testimony by the Government's expert witness (Dr. Taub) to the effect that Hoog's schizophrenia was in a state of remission at the time of the offenses;...