U.S. v. Sims, 74-2431

• Decision Date: 02 April 1975
• Docket Number: No. 74-2431,74-2431
• Citation: 514 F.2d 147
• Parties: 75-1 USTC P 9473 UNITED STATES of America, Appellee, v. Zack Vance SIMS, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 147

514 F.2d 147

75-1 USTC P 9473

UNITED STATES of America, Appellee, v. Zack Vance SIMS, Appellant.

No. 74-2431.

United States Court of Appeals Ninth Circuit.

April 2, 1975.

David M. Rothman, Beverly Hills, Cal., for appellant.

Chester L. Brown, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

OPINION

Before KOELSCH and KILKENNY, Circuit Judges, and SOLOMON, ^* District Judge.

KILKENNY, Circuit Judge:

This appeal is from appellant's jury conviction on six counts of violating 18 U.S.C. § 495, by uttering forged United States Treasury checks. Appellant makes only one assignment of error. We affirm.

FACTS

At the time of the conduct in question, appellant was self-employed as a tax preparer in Los Angeles. Between November, 1971, and November, 1972, he arranged to have the United States Treasury mail a number of his clients' tax refund checks directly to him. Testimony at trial showed that none of these six named clients ever received their checks, nor did they authorize appellant to negotiate them. Appellant signed the payees' names, added his own secondary endorsement, and negotiated the checks at a Los Angeles liquor store.

In his defense, appellant testified that the payees had each authorized his negotiation of their checks, an assertion which was directly refuted by testimony at trial. Appellant also claimed he had been legally insane at the time of his acts. Specifically, appellant's insanity defense was based on his alleged religious fanaticism. He attempted to prove that his conduct had been governed by a sincere belief that he had divine guidance and that those who crossed him such as Government investigators brought down the wrath of God in the form of California earthquakes. He claimed that his beliefs made him incapable of conforming his conduct to the law's requirements or appreciating the wrongfulness of his acts.

In support of his insanity defense, appellant produced two expert witnesses, a psychologist and a psychiatrist, who had examined appellant. Their testimony was generally favorable to appellant, but inconclusive on the ultimate issue of legal insanity.

The substance of this appeal, however, involves the opinion expressed by a psychiatrist who testified for appellee. His opening testimony revealed that he based his opinion regarding appellant's mental state on his own examination of appellant, other psychiatric reports, and information derived from conversations with Government attorneys and IRS agents. The Government psychiatrist concluded that there was no evidence to support the contention that appellant lacked the capacity to appreciate the wrongfulness of his acts or to conform his conduct to the law. He added that appellant's "excessive amount of religiosity" was not "delusional thinking."

During cross-examination, appellant's counsel questioned the psychiatrist concerning the basis for his opinion, specifically in regard to appellant's pre-1971 conduct, which counsel contended to be free from aberration. "(I)s it a fact . . . that at least from the facts we know, that Mr. Sims had been practicing as a tax preparer, according to information you have, for at least ten years before he had any difficulty with the law (?)" asked appellant's counsel. The psychiatrist then revealed that he had learned from IRS agents that appellant had been investigated for "alleged irregularities" prior to 1971. He added that this information was taken into account in reaching his opinion on appellant's sanity. The information came solely from out-of-court sources. ¹

The court thereupon sua sponte admonished the jury to consider the hearsay evidence only ". . . with reference to the basis for the doctor's opinion . . ." and not ". . . in any way in a determination as to whether the defendant did or did not commit the offenses that are charged. . . ."

Appellant moved that the Government psychiatrist's entire testimony be stricken because it was based on hearsay evidence unavailable to appellant prior to trial. The motion was denied, as was appellant's motion for a mistrial, thus forming the basis of this appeal.

ISSUE

The sole issue on appeal is whether the district court erred in refusing to strike the expert witness' testimony because it was based upon hearsay evidence.

LEGAL BACKGROUND

The traditional rule is that an expert opinion is inadmissible if it is based upon information obtained out of court from third parties. United States v. Bohle, 445 F.2d 54 (CA7 1971); Jones, Evidence § 421; 2 Wharton, Criminal Evidence § 519 (1955). The rationale behind this rule is that the trier of fact should not be presented with evidence grounded on otherwise inadmissible hearsay statements not subject to cross-examination and other forms of verification.

However, recent decisions, especially in the Federal courts, indicate there is a strong emerging trend in favor of admissibility. United States v. Williams, 447 F.2d 1285 (CA5 1971) (in banc), cert. denied 405 U.S. 954, 92 S.Ct. 1168, 31 L.Ed.2d 231 (1972); Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637 (1962) (in banc); State Highway Comm. v. Oswalt, 1 Or.App. 449, 463 P.2d 602 (1970). The new rule has been endorsed as the better reasoned and preferable approach in McCormick, Evidence § 15 (1972). See also 3 Wigmore, Evidence § 688 (1970).

The rationale in favor of the admissibility of expert testimony based on hearsay is that the expert is fully capable of judging for himself what is, or is not, a reliable basis for his opinion. This relates directly to one of the functions of the expert witness, namely to...