United States v. Roe

• Decision Date: 10 January 1963
• Docket Number: No. 21314.,21314.
• Parties: UNITED STATES of America, Plaintiff, v. Harold Pitts ROE, Defendant.
• Court: U.S. District Court — Western District of Missouri

213 F. Supp. 444

UNITED STATES of America, Plaintiff, v. Harold Pitts ROE, Defendant.

No. 21314.

United States District Court W. D. Missouri, W. D.

January 10, 1963.

William A. Kitchen, Asst. U. S. Dist. Atty., Kansas City, Mo., for plaintiff.

Kenneth Simon, Kansas City, Mo., for defendant. (Appointed by the Court)

JOHN W. OLIVER, District Judge.

This case pends on defendant's alternative motion for directed judgment of acquittal or for new trial. Because that motion will be sustained, we believe the Government is entitled to a full statement of the reasons, as we see them, for our action.

Defendant was indicted and found guilty by a jury of a violation of Section 1621 of Title 18, United States Code. His defense was insanity.

The alleged perjury was committed in connection with testimony given by defendant in support of his motion, filed pursuant to Section 2255 of Title 28, United States Code, to vacate an earlier sentence imposed upon his pleas of guilty made April 28, 1961 to violations of Sections 500 and 2312 of Title 18, United States Code.

Defendant's Section 2255 motion, and his testimony in support of that motion, was to the general effect that he entered his plea of guilty only because he had been beaten, threatened and coerced by the jailer of the Jackson County, Missouri, jail, and by an agent of the Federal Bureau of Investigation. Except for the question relating to defendant's mental condition at the time of the offense, there is no doubt but that the Government's evidence was more than sufficient to support the jury's verdict of guilty. Defendant's counsel does not contend otherwise. The question of whether defendant was mentally competent to have committed the crime of perjury has, from the outset, been the only real question in this case.

Defendant was indicted for the present offense on May 4, 1962. Because he had to be returned from Alcatraz, arraignment was set for May 11, 1962. On May 9, 1962, this Court appointed John J. Fallon, Esq. of the Kansas City Bar, as defendant's counsel and ordered that Mr. Fallon be permitted to interview defendant at the United States Penitentiary at Leavenworth prior to arraignment.¹

When defendant was before the Court for arraignment on June 1, 1962 he refused to accept Mr. Fallon as his attorney because, according to defendant, Mr. Fallon's name had been discussed in a conversation between defendant and another inmate at Alcatraz before defendant left there. Mr. Fallon's name was supposedly mentioned as one of the Kansas City attorneys that defendant should avoid. Defendant's friend at Alcatraz was quoted as having told defendant: "Whatever you do, don't let them put that monkey on your back". The Court relieved Mr. Fallon and Mr. Jenkins of further duty and appointed Kenneth Simon, Esq. to represent defendant. Mr. Simon was acceptable to defendant.² The Court handed Mr. Simon two motions that defendant had filed pro se in which defendant alleged he was mentally ill and requested Mr. Simon to explain and consult with defendant as to whether he wanted to file a motion pursuant to Section 4244 of Title 18, United States Code.³

After conference, Mr. Simon advised the Court that defendant decided to waive the reading of the indictment and to enter a plea of not guilty. The Government then made its motion that defendant be examined under Section 4244. Mr. Millin, the United States Attorney for this district, quite correctly pointed out that "all the papers that he (the defendant) has filed so far indicate that there is a great deal of doubt as to his mental competency". The Government's motion was sustained and Springfield Medical Center was designated as the place where the requested psychiatric examination would be conducted.⁴

In due time the report of neuropsychiatric examination made by Charles R. Keith, Assistant Chief of the Psychiatric Service of the Medical Center, was forwarded to the Court. Dr. Keith's report was dated July 31, 1962. Two reports of Neuropsychiatric Staff examinations, the first dated August 2, 1962, and participated in by Drs. Settle, Keith, Siegel and Milofsky, and the second dated August 23, 1962, and participated in by Drs. Settle, Oppegard, Keith and Coons, were also forwarded to the Court.

Because all three of these reports were eventually admitted in evidence at the trial without objection by the Government, and because Dr. Keith testified for the defense, the reports must be carefully considered in regard to the basic question raised by defendant's present motion.

In the "Background" section of Dr. Keith's report of July 31, 1962, it is stated:

"The patient, the third of five children, was born on 7-2-30 in Hendersonville, Tennessee. Data concerning the patient's childhood years is not inadequate. When the patient was ten years old his mother died and he was subsequently reared by a grandmother. His father remarried and saw very little of the patient after the death of the patient's mother. * * * The patient completed a grade-school education and then worked on his grandmother's farm and factories in the nearby community. The records indicate only one arrest as a teenager, for which the patient spent a few days in jail.

"At the age of eighteen the patient entered the U.S. Army and within six months had become charged with AWOL and stealing a revolver for which he was given a military sentence and a bad conduct discharge. Psychiatric and psychological examinations at that time revealed that the patient was a `pleasant, agreeable and friendly' man who showed no evidence of a severe mental illness. Testing indicated that the patient was quite immature and could only adjust to reality on a simple, concrete level. An IQ of 72 was found at that time indicating probably a lack of proper environmental stimulation. The patient served a brief sentence in the Army and then received a bad conduct discharge. The patient returned to civilian life and then entered a brief marriage. * * * Concurrently with the dissolvement of his former marriage, the patient immediately began to get into trouble with state and Federal authorities. He stole cars, cashed bad checks, took part in robberies, all of which kept the patient in state and Federal penitentiaries almost continually since 1949."

In the "Present Difficulties" section of Dr. Keith's report of July 31, 1962, it is stated:

"The patient was released from the Tennessee State Prison in July 1960. At this point the patient's current version of his life during this period and the official records begin to diverge. According to the patient's earlier statements and the official records, he apparently began to roam across the Midwest and Eastern United States, burglarizing stores and cashing checks and stealing cars. The patient now states that he was roaming over the country trying to find work, drinking, and all of the charges that he robbed and stole are `trumped up'."

After reciting the facts concerning defendant's two five year consecutive sentences in April of 1961 for violations of the Dyer Act and forgery, (which were the subject of defendant's Section 2255 motion), Dr. Keith's report continues as follows:

"The patient was initially sent to Leavenworth because of his escape record and there he became implicated in an escape plot through the sewers. The patient now says that he was `ratted off' by another inmate there who carried a grudge against Roe for several years, whereas in actuality Roe claims he had nothing to do with the attempted escape. According to the Leavenworth records, the patient was making plans to capture a hostage for the escape attempt, a fact which Roe now vigorously denies. Nevertheless, the patient was transferred to Alcatraz and shortly after his arrival there he began to write numerous legal petitions to his committing court in the Western District of Missouri charging that he had been mistreated during and after his arrest and forced to plead guilty, and had been denied several legal rights."

Dr. Keith's report shows that defendant at first refused to cooperate in regard to any neurological examination and that the psychological examination was conducted under difficult conditions. In the section of that report dealing with those two subjects, it was stated:

"Upon the patient's admission a physical examination was entirely within normal limits. * * * Later during the patient's hospital course a neurological examination was attempted, but the patient refused in spite of careful attempts to explain the nature of the examination * * The patient is a short, well-built, neat appearing man who appears his stated age of thirty-one. He greets the examiner with a superficially warm smile and initially was able to talk about himself fairly openly. However, as the interview progressed the patient became increasingly suspicious and became fearful that we would `find him crazy'. The patient appears to be well oriented as to time, place and person and the patient perceives the world about him suspiciously and wonders who he can trust. This suspiciousness is conveyed both in the patient's thought processes and emotions. Presently the patient's suspiciousness amounts at times to clear-cut paranoid thinking in which there is rather poor reality testing, whereas in other areas the suspiciousness is minimal and the patient is able to check himself."

The following portion of the same section of Dr. Keith's report gets closer to defendant's mental processes concerning the subject matter of his Section 2255 motion, his transfer to Alcatraz, and his motivation for litigation. It is there stated:

"This suspiciousness affects much of the patient's thinking. He believes that because of the maltreatment he received at the hands of the law enforcement officials during his arrest that now the court and the officers are trying hard to have him `locked up and out of sight' so he will not bring these facts to light. The patient explains his transfer to Alcatraz on the

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