469 F.

2d 371

UNITED STATES of America, Plaintiff-Appellee,

v.
James Kenneth JULIAN, Defendant-Appellant.
No. 72-1379.

United States Court of Appeals,

Tenth Circuit.
Nov. 17, 1972.

Edward H. Funston, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., Bruce

E. Miller, and Glen S. Kelly, Asst. U. S. Attys., on the brief), for plaintiffappellee.
Colin M. Clark, Denver, Colo., for defendant-appellant.
Before PHILLIPS, BARRETT and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.

Following a jury trial, defendant-appellant was convicted of unlawfully

escaping from the United States Penitentiary Honor Farm at Leavenworth,
Kansas, where he had been serving sentences for violations of the Dyer Act in
the Southern District of Texas and the District of Nevada.

The first Dyer Act conviction, the Texas one, was on November 1, 1963. He
served the maximum time on this and received a mandatory release. While in
this status he was convicted of another Dyer Act violation in the United States
District Court for the District of Nevada, February 8, 1967, and was confined to
the Federal Penitentiary at Leavenworth. Following the completion of his term
on that conviction, he became eligible for mandatory release on June 5, 1970.
However, before he could be released a warrant for his arrest for violation of
his mandatory release on his Texas sentence was executed and he was retained
in custody at the Honor Farm facility at Leavenworth.

Soon after that, on June 11, 1970, he escaped from the Honor Farm, and on

July 1, 1970, he was arrested by New Mexico authorities and charged with the
state crime of concealing stolen property. Following this, he was identified and
taken into custody by federal authorities on the District of Kansas escape
indictment. However, the federal government authorities proceeded with a Dyer
Act prosecution in New Mexico which postdated his escape troubles.
4

Following his arraignment in New Mexico, defendant, through his attorney,

raised the question as to his mental competency to stand trial, and as a result a
hearing was held, following which the United States District Court in New
Mexico concluded that he was unable to understand the charges against him
and to cooperate with counsel. Thereupon, he was committed to the United
States Medical Center for Federal Prisoners at Springfield pursuant to 18
U.S.C. Sec. 4246. Upon the defendant's being returned from Springfield, the
district court, based upon the information obtained from the Springfield
information, found that he was competent to stand trial.

The next step taken by the defendant through his lawyer was to move for
dismissal grounded on his allegation that he was incompetent or insane as a
matter of law at the time of the alleged offense. In the alternative, he requested
the appointment of a qualified psychiatrist for the purpose of conducting a
mental evaluation as of the time of the offense. This latter motion was granted,
whereas the motion to dismiss was denied. The court commissioned Doctors
John McCarthy and Henry W. Blake, psychiatrists from Albuquerque, New
Mexico, to examine him and to report to the court.

Dr. McCarthy concluded and later testified that the defendant was not legally
responsible for the offense with which he was charged and presumably Dr.
Blake testified that he was. In any event, he was convicted, and this conviction
was affirmed on appeal. United States v. Julian, 450 F.2d 575 (10th Cir. 1971).
Thereupon, he was committed to the United States Penitentiary at Leavenworth.

This was not the end of the defendant's legal problems, for on April 22, 1971,
soon after his arrival at Leavenworth, a superseding indictment was returned
describing the escape charge referred to above. The United States District
Court in Kansas appointed a psychiatrist to examine the defendant prior to trial.
It appeared at the omnibus hearing that an insanity question was present, and so
on March 22, 1971, the court appointed Dr. William V. McKnelly, a physician
connected with the University of Kansas Medical Center. He reported to the
court on May 17, 1971, as to the defendant's competency to stand trial and as to
his capacity to commit the offense.

Prior to his trial on this present case, which occurred on January 18, 1972,

Prior to his trial on this present case, which occurred on January 18, 1972,
defendant sought to take the deposition of Doctors McCarthy and Blake in
Albuquerque or, in the alternative, to have them present at the trial. These
motions were denied.1

At trial the court allowed the testimony of Dr. McCarthy to be read to the jury.
After that, the government was allowed to call Dr. McKnelly, who had been
commissioned to examine the defendant. He testified at the trial on rebuttal that
the defendant had the capacity to commit the offense.

10

The defendant through his present counsel seeks reversal on several grounds,
including denial of prompt arraignment and speedy trial; denial of his Rule 17
motion seeking the presence of the New Mexico psychiatrist; the alleged error
of the trial court in allowing Dr. McKnelly to testify concerning his
examination; and alleged error in receiving the statements of defendant which
were related to this examination.

11

We conclude that under the circumstances of this case it was error to deny the
defendant's Rule 17 request to subpoena Dr. McCarthy to testify in person,
while at the same time allowing Dr. McKnelly to testify on behalf of the
government. It is unnecessary to consider at length the other issues that are
raised.

12

The defendant insisted on representing himself at the trial. His assigned

attorney remained to advise him.

I.
13
DENIAL
OF DEFENDANT'S REQUEST TO SUBPOENA DOCTORS
McCARTHY AND BLAKE
14

The court denied the defendant's motion to take the depositions or to secure the
presence of Doctors McCarthy and Blake on the ground that these two doctors
had testified at the New Mexico trial at which time defendant had been found
guilty, and on the further basis that their respective examinations had been
brief.2 The court said:

*15* * The opinion of each necessarily was qualified because of the lapse of time
between the date of the alleged crime and the date of examination. Under the
circumstances, I cannot find that the taking of the depositions of Drs. McCarthy and
Blake is necessary in order to prevent a failure of justice.
16

Rule 17(b) provides that defendant, in order to secure witnesses at government

16

Rule 17(b) provides that defendant, in order to secure witnesses at government

expense, must show, first, that he is financially unable to pay the fees of the
witness and, secondly, that the presence of the witnesses is necessary to an
adequate defense. If he satisfies the court as to these two factors, the rule
provides that the court shall order that a subpoena be issued for service on the
named witness.3 Thus, the rule does not create an absolute right of the
defendant to have a witness produced at government expense; it is left to the
court to determine in the exercise of discretion whether the requested witness or
witnesses are necessary to an adequate defense. See Findley v. United States,
380 F.2d 752, 754 (10th Cir. 1967); Murdock v. United States, 283 F.2d 585,
587 (10th Cir. 1960), cert. denied, 366 U.S. 953, 81 S.Ct. 1910, 6 L.Ed.2d 1246
(1961). See also Welsh v. United States, 404 F.2d 414, 417 (5th Cir. 1968);
Greenwell v. United States, 115 U.S.App.D.C. 44, 317 F.2d 108, 113 (D.
C.Cir.1963).

17

It is necessary for the trial court in exercising its discretion to take into account
the constitutional rights of the defendant that are guaranteed by the Sixth
Amendment to have compulsory process for obtaining witnesses in his favor
and his Fifth Amendment right which prohibits unlawful discrimination
growing out of his financial disability.4

18

On November 4, 1971, when the court denied the Rule 17(b) motion, the one
witness in Kansas capable of testifying was Dr. McKnelly, who had on May 17,
1971, committed himself to the proposition that the defendant was sane at the
time of the commission of the escape offense in June 1970. Thus, the effect of
this denial was that the defendant, who had a considerable history of insanity,
having been adjudged at one stage by the United States District Court in New
Mexico to have been incompetent to stand trial, having had a psychiatrist testify
at his New Mexico trial that he lacked capacity to commit the offense there in
question, was left without live testimony as to the only issue in the case. There
existed no real question as to his guilt of the crime of escape and so due to these
peculiar considerations we are constrained to hold that the denial of the
requested process constituted an abuse of discretion.

II.
ADMISSION OF DOCTOR McKNELLY'S TESTIMONY
19

Inasmuch as the case is to be retried, we deem it necessary to comment on the

defendant's contention that the trial court erred in receiving the testimony of Dr.
McKnelly. Defendant argues that Sec. 4244 provides for examination in
connection with the defendant's competency to stand trial and that since the
statute does not make any provision for examination as to the capacity of the

defendant to have committed the crime, and since it provides that statements of
the accused on the issue of guilt are not to be received, it follows that
psychiatrists ought not to be allowed to testify.
20

As we have noted above, the issue of insanity is a sensitive one; once it is

raised by the defendant the government has the burden of proving the guilt of
the defendant. The government must establish beyond a reasonable doubt the
mental competency of the accused. See Wion v. United States, 325 F.2d 420
(10th Cir. 1963), cert. denied, 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309
(1964). See also Fitts v. United States, 284 F.2d 108 (10th Cir. 1960).5

21

Contrary to the defendant's contention, Sec. 4244 does not create an exclusive
provision on the subject of criminal insanity. It undertakes to deal only with
incompetency to stand trial. By treating this subject it does not thereby repeal
the federal common law procedure applicable to insanity at the time of the
commission of the offense. This is clear from our decisions in Wion v. United
States, supra, and Fitts v. United States, supra, which define the procedural
principles as well as the principles of substance applicable to mental capacity to
commit the offense. When, as here, an issue of insanity is raised, district courts
customarily commission a psychiatrist to examine the defendant, not only as to
his competency to stand trial, but also as to whether he is to be held responsible
for the acts charged.

22

There is not the slightest suggestion in the legislative history of Sec. 4244 that
Congress intended in enacting this to abolish the long-standing practice of
having one examination cover both competency to stand trial and capacity to
commit the crime.6

23

Numerous cases recognize that examinations pursuant to Sec. 4244 embrace

also the question of capacity to commit the offense.7 So, therefore, both reason
and authority dictate that the dual examination is valid.

24

Defendant points to the provision in Sec. 4244 prohibiting the admission in

evidence of a statement made by the accused to a psychiatrist in a Sec. 4244
examination on the issue of guilt as a reason for excluding the testimony of Dr.
McKnelly. The proviso in Sec. 4244 was designed to prevent the receiving in
evidence of inculpatory admissions and confessions of the accused given to a
psychiatrist in connection with his mental examination. Congress undoubtedly
recognized that these statements enjoyed at least a limited privilege since they
were being given in order to furnish the psychiatrist information as to the
mental condition of the accused. To allow a psychiatrist to testify as to the guilt

or innocence of the defendant, by relating admissions obtained in a psychiatric

study would be a gross subterfuge. However, when the defendant has raised the
issue of insanity and the psychiatrist is called to testify on this question, the
defendant must not be allowed to muzzle him at his option. Apart from the
fairness aspect, the evidence is not being received testimonially to establish the
guilt of the accused. Rather, it is being used circumstantially as it bears on the
defendant's mental state.
25

The foregoing observations are not to be understood as any indication that the
court can proceed to receive these statements without careful consideration, for
if there remains in the trial a question as to the defendant's guilt of the charge
the jury might well find it difficult to distinguish between testimonial
admissions and circumstances showing mental condition. Thus, such statements
could be prejudicial. The district judge must therefore be guarded in his
reception of the defendant's statements and also must be careful in instructing
the jury as to the significance of the testimony.

26

The district court in the instant case continuously cautioned the doctor to
refrain from testifying to statements made by the accused as to his guilt and in
other respects also the court was cautious in receiving the testimony of Dr.
McKnelly. As we view it, the court went further than the law would require,
and hence no error can be predicated upon the rulings having to do with this
testimony. See Hall v. United States, 410 F.2d 653 (4th Cir. 1969), cert. denied,
396 U.S. 970, 90 S.Ct. 455, 24 L.Ed.2d 436 (1969). See also United States v.
Albright, 388 F.2d 719 (4th Cir. 1968); Wallace v. United States, 360 F.2d 939
(5th Cir. 1966), cert. denied, 385 U.S. 977, 87 S.Ct. 518, 17 L. Ed.2d 439
(1966).

27

The judgment is reversed for failure to grant the Rule 17 motion. The cause is
remanded for a new trial consistent with the views expressed herein.

These denials, however, were not by the judge who presided at the trial

Presumably their testimony would not be given weight

The full text of this rule is as follows:

DEFENDANTS UNABLE TO PAY. The court shall order at any time that a
subpoena be issued for service on a named witness upon an ex parte application
of a defendant upon a satisfactory showing that the defendant is financially
unable to pay the fees of the witness and that the presence of the witness is

necessary to an adequate defense. If the court orders the subpoena to be issued

the costs incurred by the process and the fees of the witness so subpoenaed
shall be paid in the same manner in which similar costs and fees are paid in
case of a witness subpoenaed in behalf of the government.
4

This court has recognized that there is a somewhat delicate balance where the
factual issue is the insanity of the defendant. See Wion v. United States, 325
F.2d 420 (10th Cir. 1963), cert. denied, 377 U.S. 946, 84 S.Ct. 1354, 12
L.Ed.2d 309 (1964); Fitts v. United States, 284 F.2d 108 (10th Cir. 1960)

In Fitts this court said:

* * * The presumption of sanity is a rule of law which stands in the place of
evidence, in the absence of evidence to the contrary. When, however, evidence
of insanity is produced, from whatever source, the presumption of sanity
disappears, and the mental capacity of the accused to commit the crime
becomes an essential element to be proven by competent evidence beyond a
reasonable doubt.
284 F.2d at 112 (citations omitted.)

See 1 Weihofen, Mental Disorder as a Criminal Defense 332 (1954) where the
author has stated:
Even without the aid of such a statute, trial courts at common law have the
power to call witnesses, and courts have at times appointed experts to examine
the accused as to his mental condition, and to testify. It is true that this power is
rarely invoked, and judges will undoubtedly be more likely to exercise it where
it is expressly sanctioned by statute. California and Indiana have gone farther
than the Federal rule and have made the appointment of such experts
mandatory when the insanity issue is raised. It is constitutional to require the
defendant to submit to examination by such impartial experts.

Tarvestad v. United States, 418 F.2d 1043 (8th Cir. 1969), cert. denied, 397
U.S. 935, 90 S.Ct. 944, 25 L.Ed.2d 116 (1970); United States v. Driscoll, 399
F.2d 135 (2d Cir. 1968); Ruud v. United States, 347 F.2d 321 (9th Cir. 1965),
cert. denied, 382 U.S. 1014, 86 S.Ct. 624, 15 L.Ed.2d 528 (1966); Birdsell v.
United States, 346 F.2d 775 (5th Cir. 1965), cert. denied, 382 U.S. 963, 86
S.Ct. 449, 15 L.Ed.2d 366 (1965); Otney v. United States, 340 F.2d 696 (10th
Cir. 1965); Ashton v. United States, 116 U.S.App. D.C. 367, 324 F.2d 399
(1963); Coffman v. United States, 290 F.2d 212 (10th Cir. 1961); United States
v. Westerhausen, 283 F.2d 844 (7th Cir. 1960); Edmonds v. United States, 106
U.S.App.D.C. 373, 273 F.2d 108, 114 (1959), cert. denied, 362 U.S. 977, 80
S.Ct. 1062, 4 L.Ed.2d 1012 (1960)