United States v. Miller

• Decision Date: 14 March 1969
• Docket Number: 33068.,Dockets 32585,347,No. 108,108
• Citation: 411 F.2d 825
• Parties: UNITED STATES of America, Appellee, v. James MILLER, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

411 F.2d 825 (1969)

UNITED STATES of America, Appellee, v. James MILLER, Appellant.

Nos. 108, 347, Dockets 32585, 33068.

United States Court of Appeals Second Circuit.

Argued January 21, 1969.

Decided March 14, 1969.

Steven Duke, New Haven, Conn. (W. Paul Flynn, Kopkind & Flynn, New Haven, Conn., Richard H. Simons, Milford, Conn., of counsel), for appellant.

Jon O. Newman, U. S. Atty., Dist. of Connecticut, Hartford, Conn., for appellee.

Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

We have before us appeals from a number of post-trial orders of Judge Blumenfeld in the District Court for Connecticut arising out of the conviction of James Miller for conspiring to import heroin in violation of 21 U.S.C. §§ 173-74. We affirmed the conviction, 2 Cir., 381 F.2d 529 (1967), in an opinion noting that the appeal was "rather unusual these days in that Miller claims he was innocent of the crime charged," 381 F.2d at 531; in the same opinion we affirmed the denial of Miller's first and somewhat pro forma motion for a new trial. After holding a petition for certiorari for many months, the Supreme Court denied this on the last day of its 1967 Term, 392 U.S. 929, 88 S.Ct. 2273, 20 L.Ed.2d 1387 (1968). Meanwhile the district court had entered an order, 277 F.Supp. 200 (1967), denying a second motion for a new trial based on confessions made under highly peculiar circumstances by one Mario Natalizio, who was not brought before the court and had repudiated the confessions. A further order, 296 F.Supp. 422 (1968), denied two other motions, one seeking a new trial on grounds relating to the merits, and another based on a supposed threat to one of the jurors, see 381 F.2d at 538-540; 284 F.Supp. 220, aff'd, 403 F. 2d 77 (2 Cir. 1968).¹ We are constrained to reverse so much of the last order as refused a new trial on the ground of the Government's failure to disclose to the defense the pre-trial hypnosis of its principal witness, in part by the attorney who examined him at trial. This ruling and our concomitant direction of a new trial render the other issues moot.

Our first opinion made plain how heavily the case against Miller rested on the identification of him by Joseph Michel Caron and the latter's wife, Ida, see 381 F.2d at 531-533, 537-538. Apart from these identifications there were five pieces of evidence linking Miller with the crime undoubtedly perpetrated at Bridgeport by someone. These were (1) that Rivard, Caron's boss in Canada, had referred to a Bridgeport contact as "Frank," an alias Miller was shown to have used fifteen years earlier, see 381 F.2d at 536-537; (2) that Rivard had said "Frank" was a hairdresser, which Miller concededly was; (3) that Rivard had also characterized "Frank" as hanging out in New York City between 44th and 48th Streets and Miller was shown to have been a patron of the Luxor Baths on 46th Street; (4) that "Frank" had excused his failure to keep an appointment with Caron on the ground of having been at a party the night before and Miller was proved to have been up late; and (5) that, on the day Caron was arrested while attempting to bring a shipment of heroin across the border into Texas, Miller left his beauty parlor, although solidly booked with appointments, and checked in at the Luxor Baths between 2 A.M. and 6 A.M. the next day. While these afforded impressive substantiation of the identifications, only items (4) and (5) were independent of what Rivard allegedly told Caron and only item (5) had significance completely independent of Caron's testimony. The correctness of the identifications and Caron's veracity were therefore crucial.

In May 1968, at the request of defense counsel, the Government arranged to have Caron attend at the New York City office of Dr. Herbert Walker for a psychiatric interview including hypnosis in the presence of counsel for both sides. Just before being placed under hypnosis, Caron disclosed he had been hypnotized while in custody in Texas. The circumstances are set forth in a contemporaneous memorandum dated February 23, 1966, by William B. Butler, Assistant United States Attorney for the Southern District of Texas, a copy of which had been forwarded along with other papers in the case to the United States Attorney for Connecticut,² and in Butler's testimony at a hearing held before Judge Blumenfeld on the fourth new trial motion. We summarize the facts as developed in these sources:

Caron had been brought to the Southern District of Texas shortly before the trial of Miller's codefendants in September 1965 and had been extensively interviewed by the prosecutors, including Butler. Caron had then gone into some detail about the car used by the recipients of the second Bridgeport delivery that Butler had not previously heard; he identified the car as an old Buick and indicated that he had taken particular note of the license number.³ Since the identity of the recipients at Bridgeport was of no great importance in the Texas trial, the prosecutors had not pressed him on that point.

After the Texas trial Butler heard that Caron was threatening not to cooperate in the separate Miller trial, the continuance and prospective transfer of which to Connecticut had apparently become known to him. Butler went to see Caron in jail on February 16, 1966, "to assure him I would do the best I could to help him with his problems," and also to revive the question of his memory of the license number of the Buick. The best Caron could do was to recall that the number included 26. Having "a slight knowledge of hypnotism," Butler asked Caron "whether he would be willing to submit to hypnotism to see whether he could recall the license plate." Caron agreed.

Butler was back on February 21 with Edward B. Cushing whom he regarded as an expert in hypnosis. Cushing got the subject into hypnosis quickly. Caron remembered that the car was a green Buick and that the plates were black on yellow, see fn. 3. He muttered the letters AM and then some numbers Butler thought were 526 but Cushing identified as 1826, as Caron confirmed. Since Caron was manifesting some distress, Cushing brought him out of hypnosis. After an interval, a second attempt by Cushing failed to produce hypnosis. Butler decided to take over, thinking that despite his "very limited knowledge of hypnotic techniques," he might have more success because of Caron's confidence in him. He asked Caron to reconstruct the early part of his second trip to Bridgeport in his mind and to tell what he recalled. Caron began this recital substantially as in his interviews with the prosecutors but when he reached the point of being in the restaurant for lunch with his family, 381 F.2d at 532, Butler's questions became more searching and Caron gave details Butler had not heard before. He described that the Buick would not start, that Frankie and the other man had to raise the hood, and that one of them complained over the choice of the car. There were six digits on the license plates but, while Caron put forward a considerable number of letters and numbers, he was uncertain about them. After suggesting that Caron dream about the license plates that night, Butler brought Caron out of hypnosis.

Butler and Cushing did not let go that easily. After lunch, Cushing again put Caron into hypnosis, and Butler took over the interrogation, this time proceeding to the license plates rather swiftly; Caron was now quite sure about "AM 1826." Cushing sought a description of the second man and got one consistent with what Caron had previously given.

Once the initial surprise over use of hypnosis has subsided, the incident seems rather colorless. Butler appears to have acted in entire good faith in subjecting Caron to hypnosis. He was endeavoring to revive Caron's memory about the license number, and a correct recollection of this could have tended to lead away from Miller as much as toward him.⁴ Neither Butler nor Cushing suggested anything to Caron he had not already said.⁵ The Government made no use of Caron's dim recollection of the license number at the trial, and the defense does not assert it would have been assisted by this. To the contrary, the one point on which Caron was clear, namely, the colors of the plates, points away from the defense's current theory, see fn. 4.

Naturally the defense did not leave the matter in this stance. It adduced, through affidavit or testimony, the evidence of three psychiatrists expert in hypnosis.⁶ They claimed in the first instance that repetition under hypnosis of the story Caron had already told tended to imprint this on his mind; in other words, if Caron had once entertained doubts whether Miller was "Frank," these would have been dispelled by "seeing" Miller as Frank in his reconstruction of the episode under hypnosis.⁷ After the hypnosis, they contended, Caron would always behold Miller as Frank and would be immune to defense suggestions that he had picked the wrong man. Still more damage was wrought in their view by Butler's having acted as hypnotist. This, they said, increased the influence Butler already possessed as the man who could help to relieve Caron of the many problems besetting him, and further reduced the reliability of Caron's testimony at the Connecticut trial, where Butler interrogated Caron and acted for the Government during the protracted cross-examination. They asserted there was a real possibility that Caron may have testified under a mild trance unwittingly induced by his previous hypnotist and that, at minimum, the defense should have had an expert on hand to observe. They claimed also that the ease with which Caron was hypnotized showed a high degree of suggestibility, and proceeded from that to the firm conclusion that his previous recollection of Rivard's having characterized Frank as a hairdresser⁸ was false, being a "gift" he knew the interrogators would like.⁹ While the expert called by the Government regarded many of these claims...