United States v. Duhart, 73-2570.

• Decision Date: 27 June 1974
• Docket Number: No. 73-2570.,73-2570.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul DUHART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

496 F.2d 941 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Paul DUHART, Defendant-Appellant.

No. 73-2570.

United States Court of Appeals, Ninth Circuit.

May 8, 1974.

Rehearing Denied June 27, 1974.

COPYRIGHT MATERIAL OMITTED

Richard B. Mazer (argued), San Francisco, Cal., for defendant-appellant.

J. S. Obenour, Asst. U. S. Atty. (argued), Tacoma, Wash., for plaintiff-appellee.

Before MERRILL and KOELSCH, Circuit Judges, and MURRAY,^* District Judge.

MERRILL, Circuit Judge:

On November 30, 1972, appellant Duhart, then an inmate of the United States Penitentiary at McNeil Island, Washington, forcibly seized and occupied the offices of the Classification and Parole Section of the prison administration. He did this by putting a knife to the throat of a woman who worked in the section and ordering all employees to leave, with the exception of his hostage and three other women. Appellant then ordered the four women to undress, striking two of them when they rebelled. He then forcibly had sexual intercourse with one. Seven hours after seizing the section he surrendered himself to prison authorities. In a two-count indictment he was charged with one count of rape and with one count of assault on the four women with intent to commit rape. Following jury trial he was adjudged guilty on both counts. He was sentenced to life imprisonment on the rape count, and to nineteen years, six months imprisonment on the assault count, the sentences to be served consecutively and both consecutive to the twenty-five year sentence for armed robbery he was then serving at McNeil Island. Seldom has a case been presented where the corpus delicti and the identity of the criminal were so indisputably established and where the proper course of justice was so apparent. The case should have presented no problems. Unhappily it presents many.

1. Appellant asserts error in denial by the district court of his motion for change of venue. He singles out one sentence in the district judge's order from the bench as indicating that incorrect standards were applied by the court. In our judgment the order, together with the complete colloquy preceding it, indicates that the court had correct standards in mind. The showing made by appellant in support of his motion was far from compelling and we find no abuse of discretion.

2. In furnishing appellant a pretrial list of witnesses, the Government failed to list one of the doctors it ultimately called. 18 U.S.C. § 3432 requires the furnishing of such a list in "capital" cases. The section under which appellant was convicted of rape, 18 U.S.C. § 2031, provides for the death penalty. It is conceded that as there prescribed the penalty is unconstitutional under Furman v. Georgia, 408 U. S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

When the doctor's testimony was offered appellant objected, and the district court ruled that after Furman rape is no longer a "capital offense" and that the furnishing of a list is therefore no longer required. That ruling is assigned as error.

We need not reach the merits of the question. In this case it is clear (indeed, it was admitted at the time of the objection) that while the name of the witness was absent from the list of witnesses tendered, appellant had knowledge of the Government's intention to call him and of the testimony the Government anticipated receiving from him. Hence no prejudice could possibly have resulted from any failure to comply formally with the statute.

3. When appellant had finally surrendered to prison authorities a prison doctor was summoned, who examined the woman who was raped. He took a vaginal "swab" or "smear." He testified that he placed the specimens in preservative bottles and hand carried them to the laboratory of Tacoma General Hospital. At the hospital tests were performed on the specimens by the hospital pathologist.

Appellant objected to the testimony of the pathologist on the ground that the "chain of custody" of the specimens had not been sufficiently established. No one from the hospital had testified to receiving the specimens from the prison doctor. The prison doctor did not identify the bottles which the pathologist identified as those from which he had taken the samples tested.

Appellant relies on Novak v. District of Columbia, 82 U.S.App.D.C. 95, 160 F. 2d 588 (1947). In that case a sample of urine had been obtained from a drunken driver by a policeman. He had placed it in a bottle marked with his name and delivered it to the health department laboratories for analysis. A chemist from the laboratories testified as to the results of the analysis. The opinion states:

"The police officer who secured the sample was present in court and testified to the manner in which he labeled the flask containing appellant\'s urine and how he placed his initials on the label. The chemist, when he testified, had beside him the bottle of urine on which he had made an analysis. But no effort was made to hand to the police officer, who was present in court, the bottle the chemist had used to see if he could identify it as the bottle he had labeled and initialed. There is missing a necessary link in the chain of identification."

160 F.2d at 589. The court of appeals reversed the conviction on this ground.

Here the missing link is supplied by the specimen bottle itself. Attached to it was a label with the prison doctor's name and the name of the woman examined, and the further information "11/30/72, vaginal smear." The pathologist testified that it was the regular course of business at the laboratory to label all specimens received in this fashion. Under 28 U.S.C. § 1732(a), the Business Records as Evidence Act, this foundation eliminates the need for testimony of the person who received the specimens and made out the label and passed the specimens on for testing — the "missing link" in the chain of custody. Under Gallego v. United States, 276 F.2d 914 (9th Cir. 1960), and Pasadena Research Laboratories, Inc. v. United States, 169 F.2d 375, 380-382 (9th Cir.), cert. denied, 335 U.S. 853, 69 S.Ct. 83, 93 L.Ed. 401 (1948), the chain of custody was, with the aid of § 1732, sufficiently established.¹

4. The court instructed the jury respecting the assault count as follows:

"When an assault is done with the intent to commit rape, it would constitute a violation of the laws here alleged, whether or not the rape may be completed, and whether the assault be upon the person of the female intended to be raped, or upon the person of some other individual."

We agree with appellant that to constitute the offense the assault must be upon the person intended to be raped and that the instruction was erroneous.

The United States contends that in any event the error was harmless. Its theory is that assault was committed by appellant on all four women with the intent from the outset of raping one, and that he did not choose the one to be raped until after the assault had been committed. Thus, it is contended, all four women were, at the time of assault, objects of appellant's rape intent.

The record certainly accommodates such a construction of the events. It does not compel it, however, and appellant tells a different story. According to him, he ordered the four women to disrobe not intending to rape them, but simply to make their escape more difficult. Though he denied any rape at trial, in light of the jury's determination he argues on appeal in this connection that the rape was impulsive. Never, he asserts, did he intend to rape anyone but the one actually raped.

We cannot say that the record disputes this beyond reasonable doubt. Under the erroneous instruction the jury could have found the charged assault to have been committed upon the other women despite a lack of intent to rape them; and as to the woman actully raped, what they could have found may have been a lesser included offense. The instruction, then, constitutes reversible error as to the assault count.

5. Appellant assigns as error in sentencing the district judge's failure to call for and consider a presentence report, pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure. The judge stated that he was relying instead on appellant's prison report, which was made available to counsel.

The ordering of a presentence report is discretionary. Wh...