United States v. Carlson

• Decision Date: 27 April 1970
• Docket Number: No. 23337-23341.,23337-23341.
• Parties: UNITED STATES of America, Appellee, v. Duane Ivan CARLSON; Jerome Nicholas Diemert; Mervyn Edward Henderson; Ervin John White and Milton James Dix, Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

423 F.2d 431 (1970)

UNITED STATES of America, Appellee, v. Duane Ivan CARLSON; Jerome Nicholas Diemert; Mervyn Edward Henderson; Ervin John White and Milton James Dix, Appellants.

Nos. 23337-23341.

United States Court of Appeals, Ninth Circuit.

February 2, 1970.

Rehearing Denied April 27, 1970.

Curtis L. Shoemaker, Spokane, Wash. (argued) (in 23337); D. Gerald Brown, Joseph W. Cotchett, San Mateo, Cal. (in 23338); William F. Nielsen, Spokane, Wash. (argued), of Hamblen, Gilbert & Brooke, Spokane, Wash. (in 23339); Ronald G. Neubauer, Seattle, Wash. (argued) (in 23340); James S. Munn, Seattle, Wash. (argued) (in 23341).

Smithmoore P. Myers (argued), Asst. U. S. Atty., John M. Darrah, Asst. U. S. Atty., Dean C. Smith, U. S. Atty., Spokane, Wash., for appellee.

Before HAMLEY, DUNIWAY and CARTER, Circuit Judges.

HAMLEY, Circuit Judge:

Duane Ivan Carlson, Jerome Nicholas Diemert, Mervyn Edward Henderson, Ervin John White and Milton James Dix were convicted of conspiring to rob banks in a Seattle, Washington suburb in violation of 18 U.S.C. §§ 371 and 2113(a) and (d). Each has appealed, and the appeals were argued together in this court. All the appeals are disposed of in this opinion.

According to the indictment, these five defendants and four others engaged in an alleged conspiracy between August 20, 1967, and January 26, 1968. As part of the conspiracy, the indictment alleges, defendants agreed to rob by force, violence, and intimidation three banks located at Redmond, Washington, and one bank located at Des Moines, Washington.

According to the Government's evidence, the defendants carried on most of their conspiratorial activity as members or associates of an organization known as the "Minutemen."¹ The Government's principal witness, Henry Edward Warren, became associated with that organization in about June, 1965, although he apparently did not become a full member until November, 1966. In about February, 1966, the activities of the Minutemen in the Seattle area began to trouble him, and he wrote to the Federal Bureau of Investigation (FBI). The FBI contacted Warren and asked him to report to it on the activities of the Minutemen unit with which he was associated. He did so, and this led to surveillance of defendants by the FBI and to defendants' ultimate arrest and prosecution.

Warren's testimony for the Government was corroborated to a considerable extent by the testimony of FBI agents and other witnesses. It was also corroborated by various exhibits consisting of ropes, stocking masks, firearms, incendiary devices and a tape recording surreptitiously obtained by Warren.

According to Warren, the conspiracy contemplated that on January 26, 1968, two teams of Minutemen, including all of the defendants, would simultaneously rob two banks in Redmond, Washington. The first team to complete its assigned robbery would then rob a third Redmond bank. The defendants planned to use stolen cars, which they termed "hot cars." As a diversionary tactic, they planned to set fire to two barns on the outskirts of Redmond. In addition, to assist in the robbery, a "blackout" was to be accomplished by blowing up a main power line leading into Redmond. Warren also testified that, in pursuance of the conspiracy, defendants attended various meetings and employed code names and numbers. Robbery paraphernalia was gathered, emergency patrol operations were planned, and get-away routes were laid out.

Only two of the defendants, White and Dix, produced testimony in their own behalf. However, by means of their opening statements, cross examination of Government witnesses, colloquy out of the presence of the jury, and arguments to the jury, all defendants made it clear that their principal defense was that all of their seemingly conspiratorial activity was only intended as a realistic training exercise. According to defendants, the activities in question were designed to train them, as Minutement, to carry on "resistance warfare" after the "communists" take over the country. They contended that there was no actual intent to rob banks or to commit other criminal offenses.

Appellants do not challenge the sufficiency of the evidence to support the jury verdicts finding them all guilty. All of their grounds for reversal relate to the conduct of the trial or to pretrial activities by members of the United States Attorney's office. We will first take up questions presented by the efforts of Dix to interject an insanity defense during the Government's case-in-chief and by the district court's subsequent removal of that issue from the jury's consideration.

During the course of the trial, counsel for Dix requested leave to interrupt the Government's case to have a psychiatrist, Dr. William Albert Ogle, testify as to whether, at the time of the conspiracy, Dix lacked the mental capacity necessary to charge him with criminal responsibility. Counsel for Dix proposed this as an alternative defense, without abandoning his defense that Dix did not do anything wrong. Counsel in fact represented that Dr. Ogle's testimony would be relevant to both defenses, since it would also bear on the issue of specific intent.

The Government immediately suggested that the trial be bifurcated, so that the issue of Dix's sanity at the time of the crime could be dealt with following disposition of the cases involving the other defendants. Counsel for Dix objected to this proposal. Counsel for the other four defendants, Carlson, Diemert, Henderson and White (referred to herein as the four defendants) then joined in a motion to bifurcate the trial. They expressed concern that the hypothetical question which Dix's counsel intended to ask Dr. Ogle would in all probability implicate them in the alleged illegal conspiracy.

The trial court denied the motion to bifurcate the trial and allowed Dix's counsel to proceed with Dr. Ogle. However, the court cautioned counsel for Dix that any question involving any other defendant would be objectionable.² In addition, the court told the jury that Dr. Ogle was being called out of order and not as a part of the Government's case.

At the end of the hypothetical question and before Dr. Ogle gave his answer, the four defendants moved to strike the question, and moved for a mistrial on the ground that the propounding of the question prejudiced them. Dix and the Government opposed the motion. The motions were denied.

Dr. Ogle then expressed the opinion that, due to mental illness, Dix did not have the mental capacity to differentiate between right and wrong with reference to the charged conspiracy. Dr. Ogle also expressed the view that Dix's mental illness deprived him of the "psychological" capacity necessary to form an intent to be involved in a conspiracy at the time in question. Dr. Ogle was cross-examined by the Government but by none of the other defendants.

When counsel for Dix first began to propound the hypothetical question to Dr. Ogle, the Government objected that many of the assumed facts were not in evidence at that time. Counsel for Dix then assured the court that every fact assumed in the hypothetical question up to that time "will be in evidence, I will put it in evidence." He added: "I will attempt to put it in evidence through my client, if he takes the stand, and if not it may be disregarded." However, when it came time for Dix's defense, Dix, contrary to the advice of his attorney, refused to take the witness stand.

After all of the defendants had rested, counsel for the four defendants moved to strike the testimony of Dr. Ogle in its entirety on the ground that the facts assumed in the hypothetical question were not established by evidence. The Government did not join in this motion, and counsel for Dix resisted it. The court granted the motion and, in its instructions at the close of the case, advised the jury that the testimony of Dr. Ogle and the defense of mental incompetency introduced by Dix had been withdrawn from their consideration. This occurred three days after Dr. Ogle had given his testimony.

Refusal to Bifurcate Dix's Insanity Defense

The four defendants urge that where several defendants are being tried together before a jury on a conspiracy charge and all are relying on a general defense of "not guilty," it is error not to bifurcate an insanity defense presented by any one of defendants. Their claim is that the presentation of the insanity defense will prejudice all the other defendants, since that defense assumes commission of the acts charged, although denying mental responsibility.

The trial court undoubtedly had authority to bifurcate the trial if it had wished to do so. See Rules 14 and 57(b), Federal Rules of Criminal Procedure. However, analogous cases involving asserted prejudicial misjoinder indicate that the court erred in failing to bifurcate the insanity defense only if, under the circumstances, the refusal to do so constituted an abuse of discretion.³

Depending upon the circumstances of a case, it is entirely possible that evidence submitted before a jury with reference to an insanity defense may prejudice an alternative general defense of not guilty. As the District of Columbia Circuit said in Holmes v. United States, 124 U.S.App.D.C. 152, 363 F.2d 281, 282 (1966):

"This court has recognized that substantial prejudice may result from the simultaneous trial on sic the pleas of insanity and `not guilty.\' The former requires testimony that the crime charged was the product of the accused\'s mental illness. Ordinarily, this testimony will tend to make the jury believe that he did the act. Also, evidence of past anti-social behavior and present anti-social propensities, which tend to support a defense of insanity, is highly prejudicial with respect to other defenses. Moreover, evidence that the defendant has a dangerous mental illness invites the jury to resolve doubts concerning commission of the act by finding him not guilty by reason of insanity, instead of

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