United States v. Bettenhausen, 73-1426

• Decision Date: 01 July 1974
• Docket Number: 73-1427.,No. 73-1426,73-1426
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald F. BETTENHAUSEN and Bernice A. Bettenhausen, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

499 F.2d 1223 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Donald F. BETTENHAUSEN and Bernice A. Bettenhausen, Defendants-Appellants.

Nos. 73-1426, 73-1427.

United States Court of Appeals, Tenth Circuit.

July 1, 1974.

COPYRIGHT MATERIAL OMITTED

Robert J. Roth, U. S. Atty., Wichita, Kan., for plaintiff-appellee.

Charles W. Harris, Wichita, Kan. (Paul M. Buchanan of Weigand, Curfman, Brainerd, Harris & Kaufman, Wichita, Kan., on the brief), for defendants-appellants.

Before CLARK,^* Associate Justice, and HILL and HOLLOWAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Donald F. and Bernice A. Bettenhausen, husband and wife, appeal their convictions under a multiple count indictment of making an income tax return containing written declarations not believed to be true, and making and using false writings, in the form of altered checks and other documents, to substantiate improper deductions to the Internal Revenue Service. Mr. Bettenhausen was convicted of filing such returns containing untrue declarations for 1966, 1967 and 1968, in violation of 26 U.S.C.A. § 7206(1) and 18 U.S.C.A. § 2. Mrs. Bettenhausen was convicted of the same offense by their joint return for 1968 only. Both were convicted on eight counts under 18 U.S.C.A. § 1001 and 18 U.S.C.A. § 2 for making and using of false writings. The defendants were each given three year concurrent sentences on all convictions.

Numerous propositions are seriously pressed as grounds for reversal. It is convenient to discuss the facts separately in treating these arguments.

1. Venue of the offenses under 26 U.S.C.A. § 7206(1)

Defendants object that venue was not properly laid in the District of Kansas for the offense of making the returns in violation of 26 U.S.C.A. § 7206(1). They say that there could be no offense without filing of a return and that since this occurred at the Internal Revenue Service Center at Austin, Texas, venue was improper in the District of Kansas. Reliance is placed on the constitutional guaranty of the Sixth Amendment, and Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L. Ed.2d 340 and United States v. Lombardo, 241 U.S. 73, and similar authorities.

Article 3, Section 2 of the Constitution affords the fundamental guaranty that trial of all crimes ". . . shall be held in the State where the said Crimes shall have been committed . . ." The Sixth Amendment reinforces the guaranty, providing for trial ". . . by an impartial jury of the State and district wherein the crime shall have been committed . . ." Carrying out the constitutional mandate, Rule 18 F.R.Crim.P. provides that prosecution ". . . shall be had in a district in which the offense was committed."

We are persuaded by the reasoning in United States v. Hagan, 306 F.Supp. 620 (D.Md.). The court there said it might be true, as argued, that the offense was not complete and could not have been prosecuted if the return had never been filed. But the court pointed out that the key verbs defining the offense under 26 U.S.C.A. § 7206(1) are "makes" and "subscribes." Id. at 621-622; see also United States v. Slutsky, 487 F.2d 832, 839 (2d Cir.), cert. denied, 416 U.S. 937, 94 S.Ct. 1937, 40 L.Ed.2d 287. Therefore, under Rule 18, it was held that the defendant could be prosecuted in the district where the return was made and subscribed.

We feel that Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340, and United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897, do not support the objection to venue here. They were decided under statutes requiring filing with a particular Government agency, which was stressed. See 364 U.S. at 632, n. 2, 81 S.Ct. 358; 241 U.S. at 76, 78, 36 S.Ct. 508; cf. United States v. Bithoney, 472 F.2d 16 (2d Cir.), cert. denied, 412 U.S. 938, 93 S.Ct. 2771, 37 L.Ed.2d 397.

Here the returns were made and subscribed in the District of Kansas, although mailed to Austin as required. We feel venue in Kansas was proper under Rule 18 and in accord with the constitutional guaranties.

2. Refusal of the trial court to submit the issue of Mr. Bettenhausen's sanity

Mr. Bettenhausen argues that reversible error occurred when the trial court refused to submit the issue of his competence to commit the offenses and charged the jury that the issue was not available and should not be considered by the jury (Tr. 1366-67). The Government says that there was no proof offered during the retrial which raised the sanity issue and that the prosecution was entitled to rely on the presumption of sanity. Thus it contends the trial court's instruction was proper.

These convictions occurred on a retrial following an earlier mistrial declared in February, 1972, when the jury was unable to agree. Before the first trial Mr. Bettenhausen's counsel gave notice at two omnibus hearings in 1971 that insanity would be a defense. Medical examinations arranged by the defense followed. In November, 1971, the Government requested an examination to determine Mr. Bettenhausen's competence to stand trial. In November the trial court conducted a hearing at the Government's request and determined that Mr. Bettenhausen was competent to stand trial. The defense did not then, and does not now, assert that Mr. Bettenhausen was not competent to stand trial at either trial.

The first trial followed in February, 1972. At that trial a psychiatrist and a psychologist testified for the defense that Mr. Bettenhausen had not been competent to commit the offenses. Among others the sanity issue was submitted to the jury. They were unable to agree and a mistrial was declared.

In March the Government requested that Mr. Bettenhausen be examined by a psychiatrist. An examination was ordered in November, 1972, and conducted by three physicians, one being a psychiatrist, for the Government. In the Government's opening statement at the second trial in December, 1972, the insanity issue was discussed. And during the presentation of its case the Government developed lay testimony attempting to show that Mr. Bettenhausen was competent.

In cross-examination Mr. Bettenhausen's superior at Boeing, Mr. Robbins, testified that about the middle of 1971 he first learned that Mr. Bettenhausen had come under the care of a psychiatrist, and that he knew he was away from work, hospitalized and under the care of a psychiatrist (Tr. 1129-30). The offenses had allegedly occurred at various dates from April, 1967, into May, 1969. The defense cross-examined repeatedly on the issue to attempt to develop proof of insanity, but no other evidence of substance was obtained by cross-examination.

From these and other circumstances the defense argues that from the outset of the second trial the burden was on the Government to prove Mr. Bettenhausen's sanity. The defense says that the Government has the burden of proving the defendant's sanity when evidence of insanity is produced, from whatever source. And it is argued that once the Government has notice of the mental condition of the accused, it has the burden of proof in the first instance as to the sanity of the accused. Reliance is placed primarily on several Tenth Circuit cases, which we have considered,¹ and a ruling by the trial judge who tried the first case.²

As to mental responsibility to plead or stand trial — which as stated is not at issue here — the trial court's duty flows from constitutional requirements of due process, Pate v. Robinson, 383 U. S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 as well as from 18 U.S.C.A. § 4244. And if any information coming to the attention of the court raises a bona fide doubt of the defendant's competency to waive his constitutional rights or plead or to stand trial, it is the inescapable duty of the court to conduct a due process hearing to determine competency and to make appropriate findings. Wolcott v. United States, 407 F.2d 1149, 1151 (10th Cir.) (en banc), cert. denied, 396 U.S. 879, 90 S.Ct. 156, 24 L.Ed.2d 137.

Our case concerns the competency to commit the offense charged, and specifically when and how it becomes an issue.³ It has long been settled that the law presumes that everyone charged with a crime is sane, and the law thus supplies in the first instance the required proof of capacity to commit crime. Davis v. United States, 160 U.S. 469, 486, 16 S.Ct. 353, 40 L.Ed. 499; United States v. Jacobs, 473 F.2d 461, 464 (10th Cir.), cert. denied, 396 U.S. 879, 90 S.Ct. 156, 24 L.Ed.2d 137. When the presumption of sanity is dissipated, the mental capacity of the accused to commit the crime becomes an essential element of the offense to be proved by the prosecution with competent evidence beyond a reasonable doubt. Fitts v. United States, 284 F.2d 108, 112 (10th Cir.). Our case focuses on when and how this presumption of sanity is dissipated.

In Wolcott v. United States, supra — which dealt with competence to stand trial — the court also referred to competence to commit the offense, saying that "if the defendant's mental responsibility for the offense is in any way put in issue, the judge must determine whether the legal presumption of criminal responsibility has been dissipated." 407 F.2d at 1150. This determination as to whether sufficient evidence of insanity has been introduced to rebut the sanity presumption is to be made by the trial judge, and not by the jury. Davis v. United States, 364 F.2d 572, 574 (10th Cir.); Otney v. United States, 340 F.2d 696 (10th Cir.); Fitts v. United States, 284 F.2d 108 (10th Cir.).

Here the defense argues that the determination at the second trial, as at the first, should have been that the Government had the burden of proving sanity in its case in chief because of facts outlined above and similar circumstances, and notice given about the issue. Reliance is placed on the court's statements in Otney v. United States, supra, 340 F. 2d at 698:

Being thus aware of appellant\'s claim of mental incompetency, the Government initially undertook the burden of proving his

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