Petition — Patricia Campbell Hearst v. United States
Supreme Court brief1978
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In the
Supreme Court of the United States
Octoser Term, 1977
No. ?7-1089
PATRICIA CAMPBELL HEARST,
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
F. Lez Barey
J. ALBERT JOHNSON
Tuomas J. May
Attorneys for the Petitioner
1 Center Plaza
Boston, Massachusetts
Of Counsel:
Awan M. DersHow1rTz
Cambridge, Massachusetts
On the Petition:
Kenneta J. FishMan
Antuony M. CarpINALE
Boston, Massachusetts
— — —
—
Blanchard Press, Inc., Boston, Mass. — Law Printers
TABLE OF CONTENTS
Pege
Opinion Below 1
Jurisdiction 2
Questions Presented for Review 2
Statement of the Case 4
Reasons for Granting the Writ 10
A. The Opinion of the Court of Appeals for the
C.
EK.
_ Ninth Cireuit Is Contrary to the Intent of Uon-
gress in Passing Rules 402, 403 and 404(b) of
the Federal Rules of Evidence
A Wide Divergence of Opinion’ Exists Among
the Several Circuits Concerning the Extent to
Which Evidence of Other Crimes Must Be Simi-
lar to the Crime Charged To Be Admissible
The Court of Appeals Decision That the Peti-
tioner Voluntarily Waived Her Fifth Amend-
ment Privilege and Did Not Rely on Two Prior
Trial Court Rulings in Testifying in Her Own
Behalf Is in Conflict With Decisions of This
Court and Other Circuits
The Court of Appeals Opinion That the Govern-
ment’s Cross-Examination of Petitioner Was
Permissible as Reasonably Related to Her Di-
rect Testimony Misconstrues Petitioner’s Right
To Assert Her Fifth Amendment Privilege
The Court of Appeals Decision That the Elicita-
tion of Forty-two Assertions of the Fifth
Amendment Privilege From Petitioner Was Per-
10
13
14
17
et Table of Contents
Page
missible Prosecutorial Comment Raises a Novel
and Important Question of Constitutional Law 19
F. The Opinion of the Court of Appeals Is Contrary
to the Provisions of the Fourth Amendment’s
Guarantee Against Unreasonable Searches and
Is in Conflict With the Decisions of This Court
and Other Cireuit Courts 21
G. The Opinion of the Ninth Cireuit Court of Ap-
peals in Affirming the Exclusion of Relevant
Evidence Is Contrary to the Intent of Congress
in Passing Rule 403 of the Federal Rules of
Evidence 24
H. The Opinion of the Court of Appeals for the od
Ninth Cireuit Is Contrary to the Intent of Con-
gress in Passing Rule 901 of the Federal Rules
of Evidence 26
Conclusion 28
Appendix A: Opinion of the Court of Appeals for the
Ninth Cireuit A-1
Order of the Court of Appeals for the
Ninth Cireuit on Petition For Rehear-
ing En Bane A-39
Appendix B: Statutory Provisions B-1
TABLE OF AUTHORITIES
Cases
Bowles v. United States, 439 F.2d 536 (D.C. Cir. 1970) 20
Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Cal.
1974) 22
Table of Contents ili
Page
Brown v. United States, 356 U.S. 148 (1958) _. 19
Bubis v. United States, 384 F.2d 643 (9th Cir. 1967) 23
Calloway v. Wainwright, 409 F.2d 59 (Sth Cir. 1969) 15
Coil v. United States, 343 F.2d 573 (8th Cir. 1965) . 19
Dillard vy. Pitchess, 399 F. Supp. 1225 (D.C. Cir. 1975) 22
Enriquez v. United States, 314 F.2d 703, 717 (9th Cir.
1963) ; , ar 13
Fernandez v. United States, 329 F.2d 899 (9th Cir. 1964) 12
Hamling v. United States, 418 U.S. 87 (1974) . 25
Harrison v. United States, 392 U.S. 219 (1968) 15
Inmates at Suffolk County Jail v. Eisenstadt, 360 F.
Supp. 676 (D. Mass. 1973) .. 22
Johnson v. United States, 318 U.S. 189 (1943) .. 16, 18
Jones v. Wittenburg, 323 F. Supp. 93 (N.D. Ohio 1971) 22
Katz v. United States, 389 U.S. 347 (1967) 21
Lanza v. New York, 370 U.S. 139 (1962) 21
Masstah v. United States, 377 U.S. 201 (1964) 23
McCarthy v. Arndstein, 262 U.S. 355 (1923) 19
Michelson v. United States, 335 U.S. 469 (1948) 1]
Milier v. Carson, 401 F. Supp. 835 (M.D. Fla. 1975) 22
Namet v. United States, 373 U.S. 179 (1963) . 21
Palmigiano v. Travisono, 317 F. Supp. 776 (D.R.1. 1970). 22
Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974) | 22
Sanders v. United States, 373 F.2d 735 (9th Cir. 1967) 20
United States v. Beechum, 555 F.2d 487 (5th Cir. 1977)
14, 18
United States v. Beye, 445 F.2d 1037\(9th Cir. 1971) 20
United States v. Birrell, 470 F.2d 113 (8d Cir. 1972) 23
United States v. Chadwick, 97 S.Ct. 2476 24
United States v. Cook, 538 F.2d 1000 (3d Cir. 1976) 25
United States v. DeLucia, 256 F.2d 487 (7th Cir. 1958) 26
United States v. Dwyer, 539 F.2d 924 (2d Cir. 1976). 25, 26
United States v. Fierson, 419 F.2d 1020 (7th Cir. 1969) 12
Table of Content v
iV Table of Contents able 0 ntents
Page Page
United States v. Grammer, 513 F.2d 673 (9th Cir. 1975) 12
United States v. Hartfield, 513 F.2d 254 (9th Cir. 1975) 12
United States v. Hearst, 412 F. Supp. 888 (N.D. Cal.
Miscellaneous
10 Moore’s Federal Practice Miscellaneous 79 (1976) 19
1976) | 21 Weinstein, Evidence 11
United States v. James, 555 F.2d 992 (D.C. Cir. 1977) 14 aa tates ¢. te “ yen ™ A
United States v. Jones, 425 F.2d 1048 (9th Cir. 1970) 138 ‘“ et :
United States v. Keller, 523 F.2d 1009 (9th Cir. 1975) 25
United States vy. Modern Reed & Rattan Co., 159 F.2d
656 (2d Cir. 1974) 12
United States v. Porter, 431 F.2d 7 (9th Cir. 1970) 12
United States v. Riggins, 539 F.2d 682 (9th Cir. 1976) 13
United States v. Ring, 513 F.2d 1001 (6th Cir. 1975) 12
United States v. Roberts, 503 F.2d 598 (9th Cir. 1974) 20
United States v. Satterficid, 548 F.2d 1341 (9th Cir.
1977). .
United States v. Savage, 482 F.2d 1371 (9th Cir. 1973) 23
White v. United States, 294 F.2d 952, 953 (9th Cir. 1961) 13
Williams v. Florida, 399 U.S. 78 (1970) 15
Wolcher v. United States, 200 F.2d 493 (9th Cir. 1952) 13
Statutory Provisions
U.S. Const. amend. IV 21
U.S. Const. amend. V 14
U.S. Const. amend, VI 23 ?
Fed. R. Evid. 402 10, 11, 13 .
Fed, R. Evid. 403 12
Fed. R. Evid. 404 10, 14
Fed. R. Evid. 611 18
Fed. R. Evid. 901 27
In the
Supreme Court of the United States
Ocroser Term, 1977
No.
PATRICIA CAMPBELL HEARST, ~
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioner, Patricia Campbell Hearst, respectfully prays
that a writ of certiorari issue to review the judgment and
opinions of the United States Court of Appeals for the
Ninth Cireuit entered on November 2, 1977 and January
4, 1977.
Opinions Below
The opinion of the Court of Appeals for the Ninth Cir-
cuit is published in United States v. Patricia Campbell
Hearst, 563 F.2d 1331 (1977), and is attached hereto as
2
Appendix A (A-1). The Order of the Court on the Petition
for Rehearing in Banc has not yet been published in official
reports. A copy of the “rder is attached hereto as Appen-
dix A (A-39).
Jurisdiction
Jurisdiction is conferred upon this Court by 28 U.S.C.
§ 1254.1) to review the judgment of a Court of Appeals
by writ of certiorari.
Questions Presented for Review
I. Whether the Court of Appéals erred in ruling that
evidence of Petitioner’s alleged criminal conduct occurring
subsequent to the act charged was admissible to establish
her intent for the crime charged where the subsequent acts
and charged offenses are dissimilar.
II. Whether the Court of Appeals erred in ruling that
probative value of the evidence of the subsequent criminal
conduct outweighed its prejudicial effect.
III. Whether the Court of Appeals erred in ruling that
introduction of evidence of the subsequent criminal conduct
during the government’s case-in-chief, if error, was none-
theless harmless.
IV. Whether the Court of Appeals erred in ruling that
the Petitioner voluntarily waived her privilege against
self-incrimination, and in ruling that Petitioner, in deciding
to testify in her own behalf, did not rely on two prior
rulings by the triai court that by doing so she did not waive
her Fifth Amendment privilege.
V. Whether the Court of Appeals erred in ruling that
government’s cross-examination of Petitioner was reason-
ably related to her direct testimony.
RO Le am
3
VI. Whether the Court of Appeals erred in ruling that
it was permissible for the government to ask the Petitioner
forty-two questions, the answers to which the government
knew in advance would be her assertion of her Fifth Amend-
ment privilege.
VII. Whether the Court of Appeals erred when it ruled
that county prison officials did not violate Petitioner’s
Fourth Amendment protections when they tape recorded
conversation between Petitioner and her visitor.
Vill. Whether the Court of Appeals erred when it
ruled that Petitioner’s Fourth Amendment rights were not
violated when county prison officials delivered her tape
recorded conversations to the United States Government.
IX. Whether the Court of Appeals erred when it ruled
that the trial court’s exclusion of a tape recorded conver-
sation between Petitioner and court appointed psychiatrist
was not an abuse of trial court’s discretion.
X. Whether the Court of Appeals erred when it ruled
that the trial court’s exclusion of expert psycholinguistic
testimony was not an abuse of trial court’s discretion.
Statutes Involved
The following statutes are involved: U.S. Const. amend.
IV, V and VI; Fed. R. Evid. 402, 403, 404, 611, 901.
The text of those sections is attached hereto as Appendix
B. (B-1).
Proceedings Below
Petitioner was tried under a two-count indictment charg-
ing her with armed robbery of a San Francisco bank in
violation of 18 U.S.C., §2113(a), (d) and §924(c)(1). The
go.ernment introduced photographs and testimony descrip-
tive of Petitioner’s role in the robbery. Petitioner raised
4
the defense of duress, asserting her co-participants would
have killed her if she did not engage in their activities.
The jury found Petitioner guilty. The District Court
sentenced her to seven years in »vrison on one count and
two years on the other, the sentences to be served con-
eurrently.
Petitioner filed an appeal from her conviction with the
United States Court of Appeals for the Ninth Circuit, and
later filed a separate appeal from the district court’s denial
of her Motion to Reconsider her Motion for a New Trial.
On November 2, 1977, the United States Court of Appeals
for the Ninth Circuit affirmed both Petitioner’s conviction
and the denial of her motion for reconsideration. A Peti-
tion for Rehearing In Bane was filed and in an Order filed
January 4, 1978, the Court of Appeals denied said Petition.
On January 5, 1978, the Petitioner filed a Motion to Stay
Mandate, and by Order dated January 9, 1978, the Motion
was allowed.
Pursuant to an Order of the Honorable William H.
Orrick, United States Disirict Judge, dated November 19,
1976, the Petitioner was released from the custody of the
Attorney General of the United States pending appeal,
upon posting a bail bond in the sum of One Million
($1,000,000.00) Dollars and depositing cash in the sum of
One Hundred Thousand ($100,000.00) Dollars.
Statement of the Case
The facts elicited during this eight week trial were
extensive and no detailed summary is possible. Accord-
ingly, only the facts relevant to the issues raised in this
petition will be presented for consideration.
During hearings on pretrial matters, it was defense
counsel’s contention that if the government was properly
limited to presenting evidence of the bank robbery only,
pore
5)
then it was extremely unlikely that the Petitioner would
take the stand as a witness in her own behalf.
In its opening statement, the government made refer-
ences to a tape recorded conversation made by the Peti-
tioner three days after the bank robbery; a conversation
she had with Thomas Matthews in the Los Angeles area
on May 16, 1974; and a document containing interlineations .
in Petitioner’s handwriting. The statements and writings
were in the nature of admissions. Also in its opening
statement, the government referred to certain criminal
activity which occurred in the Los Angeles area one month
after the San Francisco bank robbery. At the conclusion
of the government’s opening remarks, the Petitioner moved
for a mistrial and the motion was denied.
During the government’s case-in-chief the Petitioner
moved to exclude the above-described evidence on the
grounds that the statements were involuntarily made and
the criminal activity was not relevant to the crime charged.
After a hearing outside the presence of the jury, the trial
court ruled the evidence admissible.
The government then introduced evidence connecting
Petitioner with criminal activity at a sporting goods store
and with a kidnapping and a theft in as detailed a manner
as it would have been able to had the various offenses been
a part of Petitioner’s federal indictment. The evidence
showed that Petitioner accompanied William and Emily
Harris to Mel’s Sporting Good’s Store in Los Angeles,
that the Harrises entered the store and left Petitioner
outside in a truck, that a store clerk, Anthony Shepard,
saw William Harris shoplifting and attempted to arrest
him, and that Petitioner discharged an automatic rifle at
the store, enabling Harris to escape.
The government was allowed to introduce further evi-
dence that later on that same day, Petitioner and the
Harrises stole a van and kidnapped its owner, Thomas
6
Matthews. Matthews testified that during this incident the
Harrises were outside the van and Petitioner had an
opportunity to escape or give Matthews a message, but did
not do so. Matthews further testified that Petitioner made
certain statements which could be considered as admissions
of her voluntary participation in the bank robbery.
At the conclusion of the government’s case, the defendant
was faced not only by evidence of the bank robbery, but
also the additional evidence of the subsequent criminal
eonduct and statements made by her in the nature of
admission. Being the only person alive who could explain
the government’s evidence, and relying on two prior rulings
by the trial court that ‘‘a defendant never waives the
privilege against self-incrimination by taking the witness
stand,’’ Petitioner testified. She carefully limited her testi-
mony to a description of those periods of time and events.
exposed by prosecution evidence and intentionally avoided
any mention of a period from September of 1974 to the
time of her arrest on September 18, 1975, a year not
exposed by the government’s case-in-chief.
The evidence presented by the Petitioner commenced with
a description of her violent and forcible kidnapping on
February 4, 1974, when she was eighteen (18) years old.
She then described in detail how she was blindfolded, placed
in the trunk of a car, switched to another automobile and
transported to some unknown residence were she was
thrown into a small closet.
She testified that for the first few days she was exten-
sively interrogated and brutalized by her captors. She came
to realize that she was being held prisoner by a group of
political terrorists who called themselves the Symbionese
Liberation Army (hereafter the ‘‘SLA’’). They boasted
to her of their murder of Mareus Foster, Superintendent
of Oakland Schools, some months earlier by means of a
eyanide-tipped bullet and told her a similar fate awaited
her if she gave them the slightest provocation. She was
given to understand she was just one of several victims
kidnapped by the SLA.
At some later time, she was moved in a garbage can to
a different location and again placed in a closet. Following
the initial shock, the Petitioner’s life in the closets was one
of progressive debilitation and terror. She testified to
instances of rape and painful sexual abuse. The threat of
death was constantly reiterated and she was repeatedly told
her parents had abandoned her.
For approximately eight weeks she was kept blindfolded
in the closets and released only to relieve herself and bathe
once a week. During this period she testified she was forced
to tape record six statements. At the beginning of April
1974, the Petitioner was released from the closet and told
she would participate with her captors in a bank robbery.
She was also told she would be killed if she did not partici-
pate in the robbery or if she ‘‘messed up’’ the robbery.
After the bank robbery testimony, the Petitioner testified
about her participation in the disturbance at Mel’s Sport-
ing Goods Store. She said her reaction in firing at the
store resulted from her fear of the SLA, as did her admis-
sion to Thomas Matthews of complicity in the bank rob-
bery. She then told how she, the Harrises and Jack Scott
traveled from Los Angeles to Berkeley, then to New York,
to Pennsylvania, and finally to Las Vegas in September of
1974. The Petitioner next testified about her arrest in
September of 1975 in her San Francisco apartment.
Prior to government cross-examination, Petitioner moved
for an order limiting the scope of the cross-examination
so as to avoid the necessity of invoking the Fifth Amend-
ment in response to questions implicating her in other
crimes for which she was not on trial, and concerning
which the trial court had twice previously ruled that she
could invoke her Fifth Amendment privilege. The trial
court denied this motion and permitted the government to
question her concerning the period from September of 1974
to 1975. As the trial court and government knew well in
advance, the Petitioner, in response to questions about her
activities, residences and association with other suspected
SLA members during this year, was required to invoke her
Fifth Amendment privilege forty-two times.
Also during cross-examination, the government intro-
duced evidence of a tape recorded conversation in which
Petitioner engaged on September 20, 1975, with her child-
hood friend, Patricia Tobin, while Petitioner was in custody
at the San Mateo County Jail and Tobin was visiting her.
During the visit, which took place in the jail’s visiting
room, Petitioner and Tobin communicated over a telephone
like intereommunication system while looking at each other
through a bullet-proof glass window. Most of the conver-
sation was monitored and recorded by a deputy sheriff,
pursuant to jail procedure for prison security. The jail
supervisor, finding no evidence threatening jail security,
turned all such tape recordings over to the FBI. Petitioner
timely moved to suppress the tapes and the trial court
denied the motion. The government thereupon cross-
examined both Petitioner and Tobin with respect to the
taped conversation.
Shortly after her arrest, the Court appointed Dr. Louis
J. West to examine the Petitioner relative to her compe-
tency to stand trial. Dr. West and Dr. Robert J. Lifton
were called as witnesses during the trial in support of
Petitioner’s defense that at the time of the robbery, she
had acted under duress. During direct examination of
West, Petitioner’s counsel*invited him to describe Peti;
tioner’s behavior on the witness stand approximately four
months later. In an effort not solely to corroborate West’s
description, but also to rebut the evidence of the Tobin-
Hearst tape and certain photographs of the Petitioner taken
at the time of her arrest, Petitioner sought permission to
play a tape recording of a ‘‘representative’’ interview which
occurred on October 2, 1975, twelve days after the Hearst-
Tobin conversation.
The government objected to the introduction of the West
taped interview, characterizing it as ‘‘cumulative and un-
necessary,’’ and charging that it was being offered only for
its emotional effect. The prosecutor stated that the better
course was to allow West to read pertinent passages from
the transcript of the October 2 tape. Petitioner urged that
the tape be admitted both to corroborate West’s testimony
and to reveal the basis for the opinion of Lifton who had
not yet testified and who relied on the tapes of that inter-
view in forming his opinion.
The trial court sustained the government’s objection.
During Lifton’s testimony, Petitioner again requested that
the October 2 tape be admitted as avidence. The govern-
ment objected on the grounds that the tape would be cumu-
lative and that to play the one hour, forty-five minute tape
would take too much time. Without examining the tape
recorded interview in camera, the district court sustained
the government’s objection.
As part of its effort to rebut the Petitioner’s defense
that her captors compelled her to engage in the bank rob-
bery, the government introduced certain pre-arrest tape
recordings carrying Petitioner’s voice and certain pre-
arrest manuscripts bearing her handwriting. The essence
of the messages contained in those communiques was that
she acted voluntarily in robbing the bank. During her trial
testimony, Petitioner asserted that she had not authored
the messages spoken or written by her, that they were
authored by certain of her captors, and that she spoke or
wrote them under coercion and not voluntarily.
Petitioner then attempted to have a psycholinguist, Dr.
Margaret Singer, testify that Petitioner did not author the
10
communiques. The district court, after characterizing
Singer as ‘‘an eminently qualified clinical psych logist’’
and a ‘‘recognized expert in psycholinguisties’’ refused to
permit-her to testify.
Reasons for Granting the Writ
A. Tse Opinion oF THE Court or APPEALS For THE NINTH
Crrcuir Is ConrTrRary TO THE INTENT OF CONGRESS IN
Passinc Ruues 402, 403 anp 404(b) oF THe FEDERAL
Rvuues or Evmence.
Petitioner acknowledges that Rule 404(b) of the Federal
Rules of Evidence provides that evidence of other criminal
acts may be admitted for the purpose of proving knowledge,
motive and intent. However, it is Petitiener’s contention
that the evidence of her criminal conduct at Mel’s Sporting
Goods Store one month later in Los Angeles was not admis-
sible because it was not probative of her intent during the
bank robbery in San Francisco; the evidence failed to meet
the relevancy requirements of Rule 402 Fed. R. Evid.
For the evidence of other criminal conduct to be admissible
it must be similar to the crime charged, and the reason for
the requirement of similarity is to provide a logical nexus
among the events being compared.
The argument here [for admissibility] is purely from
the point of view of the doctrine of chances, the instinc-
tive recognition of that logical process which elimi-
nates the element of innocent intent by multiplying
instances of the same result until it is perceived that
this element cannot explain them all.
In order to satisfy this demand, it is at least necessary
that prior acts should be similar. Since it is the
11
improbability of a like result being repeated by mere
chance that carries probative weight, the essence of
this probative effect is the likeness of the instance...
In short, there must be a similarity in the various
instances in order to give them probative value—as
indeed the general logic canons require.
J. Wigmore, A Treatise on the Anglo-American System
of Evidence, (3d Ed. 1940) §302, at 196-200 (hereinafter
cited as Wigmore). See also 2 Weinstein, Federal Evidence,
Para. 404(09) (1975) (‘‘In order to be probative of intent,
the previous bad act must be similar... .’’).
Plainly stated, as regards the necessity of similarity of
circumstances, it cannot be argued that the crime for which
the defendant was on trial was in any way similar to the
several crimes she allegedly participated in one month later
in Los Angeles. The evidence regarding the unrelated
events occurring in Los Angeles a month after the defend-
ant’s alleged involvement in an armed robbery provided
no logical nexus to the crime for which the defendant was
being tried. These totally dissimilar events did not tend
to prove or disprove the issue of her intent during the
prior bank robbery and therefore, should have been ruled
not admissible under the provisions of Rule 402 of the
Federal Rules of Evidence.
Petitioner further contends that because the evidence was
not admissible under Rule 402, Fed. R. Evid., its only pur-
pose was to show that Petitioner was, by propensity, a crim-
inal and therefore, probably committed the crime charged.
It is clear that evidence offered for this purpose is to
be excluded because it denies the aecused a fair opportunity
to defend against the particular charge. Michelson v. United
States, 335 U.S. 469, 475-476 (1948). Further, even if
relevant, the evidence should have been excluded because
its prejudicial impact clearly outweighed its minimal pro-
12
bative value as to Petitioner’s state of mind during the
San Francisco bank robbery. Fed. R. Evid. 403.
The undeniably prejudicial impact of the oi
subsequent criminal activity was further exacerbated when
the government was allowed to allude to it during its open-
ing and by its presentation, in detail, in the government’s
case-in-chief. Bank robbery is a crime requiring general
intent, United States v. Hartfield, 513 F.2d 254, 259 (9th
Cir. 1975), and the jury could infer the requisite intent
from the commission of the act. United States v. Porter,
431 F.2d 7, 10 (9th Cir. 1970). Petitioner contends that it
was reversible error to admit such prejudicial evidence
when its only relevance was to rebut a defense of duress
not yet raised. United States v. Ring, 513 F.2d 1001, 1007-
09, (6th Cir. 1975); United States vy. Fierson, 419 F.2d
1020, 1023 (7th Cir. 1969).
The Second Circuit, in United States v. Modern Reed &
Rattan Co., 159 F.2d 656 (1974), stated:
Unless a defendant in a criminal ease puts his charac-
ter in issue or testifies himself, neither that nor his
credibility can be attacked by the prosecution . .. His
freedom of choice as to issues may not be taken from
him by error previously committed in the trial.
Id, at 658 (emphasis added) (citations omitted).
Thus, not only was the evidence prejudicial in that it
resulted in a ‘‘bad man’’ conviction, but moreover, it denied
the Petitioner her free choice as to the nature of her defense
by forcing her to take the witness stand in an effort to rebut
this inflammatory evidence.
by Accord, United States v. Satterfield, 548 F.2d 1341, 1346 (9th
Cir, 1977) ; United States v. Grammer, 513 F.2d 673, 677 (9th Cir.
1975) ; Pernandez vy. United States, 329 F.2d 899, 908 (9th Cir.
1964).
13
B. A Whe Drvercence or Opinion Exists AMONG THE
SEVERAL Circuits CONCERNING THE Extent To WuicH
« Evipence or Ornea Crimes Must Be Simian To THe
Crime Cuarcep To Br ApbMISSIBLE.
By its decision to affirm the admission of Petitioner’s
subsequent criminal conduct, the Ninth Cireuit Court of
Appeals not only violated the rules of logic and Rule 402
of the Federal Rules of Evidence vut further it set itself
at odds with the decisions of the other circuits.
To justify admission of the evidence of other crimes,
the Ninth Cireuit Court of Appeals relied on two of its
prior decisions, United States v. Jones, 425 F.2d 1048,
1051-52 (9th Cir. 1970) and United States v. Riggins, 539
F.2d 682 (9th Cir. 1976). The language of Riggins (‘‘[r]Jel-
evant evidence is not to be excluded because it fails to meet
a similarity requirement.’’) and the rationale of Jones
are clearly in direct contradiction to the Ninth Circuit’s
prior rulings;? but even in those two cases, the elements
of other criminal conduct ruled admissible were nearly
identical to the crime charged.
In a very recent decision containing an exhaustive dis-
cussion of the rationale underlying the requirement for
similarity, the Fifth Cireuit Court of Appeals concluded:
The very nature of the inductive leap from past act
to present intent renders critical the degree of simi-
larity between the prior and charged offenses. Con-
2 Prior decisions of the Ninth Circuit correctly stated the rule
of admissibility :
fi]f in order to prove intent, evidence is to be received of
other wrongful acts, the acts thus proven must be of such
character that as a matter of logic they tend to demonstrate
a criminal intent at the time of the act now charged.
Wolcher v. United States, 200 F.2d 493, 497 (9th Cir. 1952) ;
accord, Enriques v. United States, 314 F.2d 703, 717 (9th Cir.
1963); White v. United States, 294 F.2d 952 (9th Cir. 1961).
14
gruence between the essential physical elements of
the prior and charged crimes is essential to the va-
lidity of the logical inference.
United States v. Beechum, 555 F.2d 487, 495 (5th Cir.
1977) ; accord, United States v. James, 555 F.2d 992 (D.C.
cir. 1977).
Petitioner contends that a resolution of this important
issue is required both in order to resolve the obvious con-
flict among the Cireuits and also because it provides an
excellent opportunity for furnishing the lower federal
courts with guidelines for construing the new Federal
Rules of Evidence, especially Rule 404(b).
C. Tre Court or Appeats Decision THAT THE PETITIONER
VoLuNTARILY Waivep Her Firrh AMENDMENT PRIVILEGE
AND Dip Not Rety On Two Prior Triat Court Rutines
In Testiryinc Ixy Her Own Benatr Is In Conriict
Witn Conrrotuinc Case Law or Tuts Court anpD
OTHER CIRCUITS.
The Petitioner’s assertion of her Fifth Amendment priv-
ilege against self-incrimination during , cross-examination
and the trial court’s failure to foreclose government ques-
tioning on areas of inquiry about which it knew the Pe-
titioner would assert that privilege, give rise to several
issues of constitutional diinension which compel review
of the decision of the court below by this Court.
First, the Petitioner contended in the court of appeals
that she did not voluntarily waive her Fifth Amendment
privilege by testifying because her testimony was com-
pelled by the introduction,of certain evidence, 1.e., post-
erime conduct, which was challenged as inadmissible and
highly prejudicial. The court of appeals found that she
‘freely elected to testify in her own behalf’’ (A. 12),
15
reasoning that the trial court’s determination that the
post-crime conduct evidence was admissible and relevant
precluded any viable argument that the Petitioner was
forced to take the witness stand. (A. 10-12).
The position of the court below is in marked contrast to
precedent, as exemplified by Harrison v. United States,
392 U.S. 219 (1968), wherein the defendant was compelled
to testify by the introduction of illegally-obtained confes-
sions and by so doing, did not waive his privilege against
self-incrimination. Further, the decision below, with its
misplaced reliance on Williams v. Florida, 399 U.S. 78
(1970), suggests the untenable position that a defendant
must forfeit the right during trial to counter objectionable
evidence while protected by the Fifth Amendment privilege
because there may exist an opportunity to challenge the
admissibility of evidence on appeal.
In the instafit case, the record itself best dispels any
notion that a voluntary waiver of the privilege against
self-incrimination occurred. In the first instance, the record
discloses that Petitioner’s direct testimony was restricted
to the collateral issue of the voluntariness of certain state-
ments allegedly made by her [to Thomas Matthews] and
admitted into evidence over her objection and after a full
evidentiary hearing. Her testimony before the jury was
substantially the same as that given at the voluntariness
hearing, and in neither instance did it reach the merits of the
ease. In this regard, the instant case is fully analogous
with the circumstances involved in Calloway v. Wainwright,
409 F.2d 59 (5th Cir.), cert. denied, 395 U.S. 909 (1969),
wherein the defendant’s testimony upon tie voluntariness
of his confession (later upheld as voluntary by the court
of appeals, id., at 61) could not be construed as a complete
waiver of his Fifth Amendment privilege.
An even more significant matter rebutting any refer-
ence of waiver in the case at bar is apparent from the
16
record. Despite the Ninth Circuit’s bald assertion that it
did ‘‘not believe’’ that the defendant would have exercised
her right to remain silent even if the trial court had told
her that she would lose her privilege by taking the stand
(A. 19), and that she would have abandoned ‘‘her sole de-
fense’’ by not taking the stand (A. 40), it is clear that the
Petitioner did in fact testify in complete reliance on two un-
equivocal rulings of the trial court prior to her direct testi-
mony that she was entitled to assert the privilege.
The court of appeals decision with respect to this issue
of reliance is in complete contravention of this Court’s
opinion in Johnson v. United States, 318 U.S. 189 (1943),
in which the Court emphatically stated that whether or
not the privilege against self-incrimination is mistakenly
granted by the trial court to a defendant, the defendant is
entitled to rely on that grant:
The allowance of the privilege would be a mockery
of justice, if either party is to be affected injuriously
by it... The fact that the privilege is mistakenly
granted is immaterial ... An accused having the as-
surances of the court that his claim of privilege would
be granted might well be entrapped if his assertion
of the privilege could then be used against him...
Elementary fairness requires that an accused should
not be misled on that score ... The responsibility for
misuse of the grant of privilege is the court’s. It is
. the court to whom an accused properly and neces-
sarily looks for protection in such a matter. When
it grants the privilege but allows it to be used against
the accused to his prejudice, we cannot disregard the
matter. That procedure has such potentialities of op-
pressive use that we will not sanction its use...
Id, at 196-199.
17
Assuming arguendo that, as a matter of law, the Peti-
tioner was not entitled to rely on the court’s grants of
privilege, it is clear that the Petitioner reasonably could
and would have presented evidence only of her kidnapping,
psychiatrie evidence and other evidence not requiring her
own testimony. Through numerous representations to this
effect by defense counsel and by application of common
legal sense, the courts below have been aware-of these
options. Indeed, it is inconceivable that experienced
defense counsel would permit his client to testify con-
cerning her involvement in a robbery if he is aware of the
fact that such testimony might give rise to the possibility
of incrimination in a far more serious crime, about which,
as the record discloses, the trial court and the government
were fully aware.
It is respectfully submitted that the court of appeals’
utter disregard for the record in the ins.ant case calls for
an exercise of this Court’s supervisory powers. Further,
the decision below conflicts with decisions of this Court
in Harrison and Johnson, the decision of the Fifth Cir-
cuit in Calloway, and the general weight of authority on
this issue and presents a question of substantial constitu-
tional dimension which dictates the grant of a writ of
certiorari.
D. Tae Court or Appgats’ Oprnton THAat THE GovERN-
MENT’S Cross-EXAMINATION OF PETITIONER Was PER-
MISSIBLE As ReasonaBLy Revatep To Her Direct TEs-
TIMONY MisconstruES PetiTioneR’s Ricut To Assert
Her Firra AMENDMENT PRIVILEGE.
The court of appeals, by finding that ‘‘the trial court
did not abuse its broad discretion ... in allowing the gov-
ernment to ask questions about the year which appellant
failed to cover in her direct testimony,’’ because those
~
18
questions were ‘‘reasonably related’’ to her direct testi-
mony, effectively relegates a serious constitutional issue
to a discretionary evidentiary question. It is submitted
that to equate the scope of permissible cross-examination
with a waiver of the privilege against self-incrimination
exceeds the scope of the Federal Rules of Evidence and
conflicts with decisions of other circuits.
Rule 611(b) simply states:
(b) Seope of cross-examination. — Cross-examina-
tion should be limited to the subject matter of the
direct examination and matters affecting the credi-
bility of the witness. The court may, in the exercise
of discretion, permit inquiry into additional matters
as if on direct examination.
The Advisory Committee, however, was careful to note
that
[t]he rule does not purport to determine the extent
which an accused who elects to testify thereby waive
his privilege against self-incrimination. The question
is a constitutional one, rather than a mere matter of
administering the trial... In all events, the extent
of the waiver of the privilege against self-incrimination
ought not to be determined as a by-product of a rule
on scope of cross-examination.
The Fifth Cireuit in United States v. Beechum, supra
at 491 n.2, recognized the significance of this language of
the Advisory Committee, when it noted that ‘‘[t]he scope
of the defendant’s waiver of his Fifth Amendment priv-
ilege upon taking the stand may not be co-extensive with
the scope of permissible cross-examination itself, notwith-
standing broad language to the contrary in Johnson v.
United States, [supra].”’
19
By permitting an unusually broad application of the
rule of Brown v. Uniled States, 356 U.S. 148 (1958) (which
predates the Federal Rules of Evidence), and allowing
the government to inquire into the events from Petitioner’s
arrival at Las Vegas, Nevada in 1974 to the time of her
arrest in September, 1975, events about which Petitioner
carefully avoided testifying on direct, on a finding of
remote relevancy, the trial court and the court of appeals
effectively ‘‘reduced the privilege [against self-inerim-
ination] to a nullity.’’ Moore’s Federal Practice, 4 608,01,
at 79 (1976).
The Petitioner clearly did not incriminate herself as to
activities which oceurred during the so-called ‘‘lost year’’
on direct examination, and it is elementary that ‘‘so long
as a witness has not incriminated himself by what he has
already answered, he may claim the privilege at any time.”’’
Cou v. United States, 343 F.2d 573, 579 (8th Cir. 1965),
citing McCarthy v. Arndstein, 262 U.S. 355 (1923), aff’d.
on rehearing, 266 U.S. 34 (1924). Thus, the curtailment
of the Petitioner’s constitutional right was as unauthorized
as it was prejudicial.
EK. THe Court or Appears Decision Twat tHe E icrra-
TION OF Forty-Two ASSERTIONS OF THE F'i1rtH AMEND-
MENT PriviLeceE From PeririonerR Was PERMISSIBLE
PRrosecuTORIAL CommMenT Raises A NOVEL AND ImporT-
‘ANT QueEstTION oF ConstITUTIONAL Law.
Fully aware that the Petitioner intended to assert her
Fifth Amendment privilege against self-incrimination in
the presence of the jury during cross-examination if asked
questions concerning events during the ‘‘lost year,’’ the
government nevertheless elicited forty-two assertions of
the privilege from Petitioner. Further, the record dis-
closes that the government, as well as the trial court, was
20
cognizant of the particular and very real danger of in-
crimination had the Petitioner answered these questions
and, indeed, it is clear that the trial court would have ex-
eluded independent evidence of these potentially incrim-
inatory events.
The court of appeals reasoned that since the Petitioner
had voluntarily waived her Fifth Amendment privilege
‘‘the rationale for prohibiting privilege-invoking queries
on cross-examination does not apply.’’ (A. 16). Implicit
in this decision is that if a voluntary waiver did not occur,
as Petitioner continues to contend, the government’s ques-
tions were clearly impermissible.*
Whether or not the Petitioner did waive her privilege,
it is undisputable that the effect of repeated questioning
eliciting the claim of privilege was highly prejudicial.
There being absolutely no probative value to the Petitioner’s
responses, it is submitted that reversible error was com-
mitted even assuming a valid waiver.
The court below failed to find support for the proposi-
tion that s Qefendant is not legally prejudiced by the wide
range of privilege-eliciting questions asked by the prose-
eution in the instant case. It is submitted that this issue,
in the context of the case at bar, raises a constitutional
dilemma heretofore unresolved but of such significance so
as to call for resolution by this Court. It must be specific-
ally noted that the Petitioner was able to test the protec-
tion of the privilege against self-incrimination by testify-
ing during the voluntariness hearing, and the trial court’s
enforcement of that privilege at that time should have
been sufficient to prevent the prejudicial questioning en-
gaged in by the government before the jury. Indeed, the
3 E.g., United States v. Roberts, 503 F.2d 598, 600 (9th Cir.
1974), cert. denied, 95 S.Ct. 791 (1975) ; United States v. Beye, 455
F.2d 1037, 1038 (9th Cir. 1971) ; Bowles v. United States, 439 F.2d
536, 541-542 (D.C. Cir. 1970) ; Sanders v. United States, 373 F.2d
735-736 (9th Cir. 1967).
21
procedure of obtaining the triai ceurt’s ruling on the
validity of the privilege in advance of testifying is recom-
mended by the courts to avoid the severe prejudice that
occurs, and occurred in this case forty-two times, when
an unfair inference is drawn by a jury by the mere asser-
tion of the privilege. See Namet v. United States, 373 U.S.
179 (1963) ; see generally, 33 U. Chicago L. Rev. 151 (1965).
F. ‘YHe Opinion oF THE Court or APPEALS Is ConTRARY
To THE Provisions oF THE FourTH AMENDMENT’S
GUARANTEE AGAINST UNREASONABLE SEARCHES AND Is
Iy Conriicr With THE Decisions or THis Court aND
Oruer Circuit Courts.
It is clear that the trial court in the case at bar upheld
the constitutionality of the warrantless electronic surveil-
lance and recordings of the Petitioner’s conversations on
the basis of a broad conclusion that incarcerated persons
do not have a reasonable expectation of privacy. The court
relied primarily on language from Lanza v. New York,
370 U.S., 139, 143 (1962):
‘‘{T]t is obvious that a jail shares none of the attri-
butes of privacy of a home, an automobile, an office
or a hotel room. In prison, official surveillance had
traditionally been the order of the day.”’
United States v. Hearst, 412 F. Supp. 888, 889 (N.D. Cal.
1976)
The trial court’s reliance on Lanza represents a mode
of Fourth Amendment analysis which focused on the place
of the intrusion, an approach which was subsequently re-
jected in Katz v. United States, 389 U.S. 347 (1967). In
Katz, this Court, rather than responding in terms of
whether a public telephone booth was a ‘‘constitutionally
aa a ee
protected area,’’ 389 U.S. at 349, explained that ‘‘the
Fourth Amendment protects people, not places.’’ Id. at 351.
The assertion that jail sheres none of the attributes of
places long understood to be ‘‘constitutionally protected’’
is therefore no longer dispositive of the Fourth Amend-
ment claims of prisoners.
It is now firmly established that the Constitution ‘‘pro-
hibits depriving pre-trial detainees of the rights of other
citizens to a greater extent than necessary to assure ap-
pearance at trial and security of the jail.’’ Rhem v. Malcolm,
507 F.2d 333, 336 (2d Cir. 1974). Any further restrictions
on the rights of a prespmptively innocent individual con-
stitutes punishment imposed without due process of law.
Rhem, supra at 336; Dillard v. Pitchess, 399 F. Supp. 1225,
1234 (D.C. Cir. 1975). For this reason, the courts have
required expansive visiting privileges for pre-trial, see,
e.g., Rhem, supra; Dillard, supra; and have enjoined pris-
on officials from reading mail or monitoring the telephone
ealls of pre-trial detainees, Jones v. Wittenburg, 323 F.
Supp. 93, 330 F. Supp. 707 (N.D. Ohio 1971), aff’d. sub
nom, Jones v. Metzger, 456 V'.2d 854 (6th Cir. 1972);
Palnigiano v. Travisono, 317 F. Supp. 776 (D.R.I. 1970) ;
Miller vy. Carson, 401 F. Supp. 835 (M.D. Fla. 1975).
Whatever viabilitygremains to the Lanza decision, it is
apparent from the es discussed above that the jail can
no longer be considered a place where expectations of
privacy must be abandoned, and at very least, pretrial
detainees, such as petitioner, are constitutionally entitled
to those expectations. See also, Inmates at Suffolk County
Jail y. Eisenstadt, 360 F. Supp 676, 686 (D. Mass. 1973),
aff’d, 494 F.2d 1196 (1st Cir. 1974) (personal privacy
listed as one of those infringed benefits) ; Jones v. Witten-
burg, 323 F. Supp. at 96 (court finds objectionable that
‘‘there is no semblance of any privacy’’); Brenneman v.
Madigan, 343 F. Supp. 128, 141 (N.D. Cal. 1974) (‘‘Need-
23
less to say, eavesdropping [on pretrial detainees’ tele-
phone calls] accomplished either by means of electronic
equipment or the presence of a custodial officer, would
raise serious constitutional questions.’’)*
The intrusion on Petitioner’s privacy in jail were not
justified by any real or imaginary interest in jail security.
The trial court made no finding with respect to whether
a legitimate security threat was present and the testimony
of the Sheriff indicated he was keeping rather detailed
information concerning Petitioner for ‘‘trial purposes of
anything that comes up in the future. . .’’
The delivery of the tapes to the FBI after a determina-
tion that there was no information vital to jail security,
undermines any contention that the monitoring and record-
ing of conversations with friends and family was ever
motivated by security interests. At the very least, jail
security is not a plausible reason for turning the tapes
over to the prosecution after it was determined that they
contained no information of relevance to jail security.
Even assuming arguendo that a limited intrusion into
the privacy of Petitioner when she was a pretrial detainee
was justified by a threat to jail security, it is nevertheless
submitted that the federal government was barred, absent
a warrant, from procurring the recordings and utilizing
them at trial.5 In United States v. Birrell, 470 F.2d 113 (2d'
Cir. 1972), Judge Friendly came to the identical conclusion,
explaining:
* Petitioner contends from the reasoning of Massiah v. Umited
States, 377 U.S. 201 (1964), and its progeny that the surreptitious
overhearing of her conversation after her formal indictment rép-
resents a denial of her Sixth Amendment right to the effective
assistance of counsel.
5 Evidence obtained from lawful, limited intrusions may be used
only to satisfy the limited objective of the search. Bubis v. United
States, 384 F.2d 643 (9th Cir. 1967) ; United States v. Savage, 482
F.2d 1371 (9th Cir. 1973), cert. denied, 415 U.S. 932.
24
The propriety of the first intrusion into Birrell’s
privacy does not automatically sanction a second.
Even when a ‘major’ intrusion falls within a recog-
nized exception to the Fourth Amendment, the war-
rant requirement as to a further ‘minor’ intrusion
is not abrogated.
Last term in United States v. Chadwick, 97 S.Ct. 2476,
this Court employed the same analysis as in the cases dis-
eussed above in holding that even after significant intru-
sions upon personal privacy not violative of the Fourth
Amendment, further intrusions must nevertheless be jus-
tified by the existence of a warrant. Applying the Chadwick
reasoning to the instant case, since there was no warrant
(and since there was no government claim of exigent
circumstances which might justify the failure to obtain
one), the Fourth Amendment requires that the evidence so
obtained be excluded at trial.
It is thus submitted that the direct conflict that exists
between the Ninth Cireuit Court of Appeals decision in
the instant case and the Supreme Court’s holding in
Chadwick, and the Second Cireuit’s ruliig in Birrell, pre-
sents a compelling public need for resolution of these
conflicts by this Court.
G. THe Oprnion oF THE NintH Circuit Court oF APPEALS
In AFFIRMING THE Exciusion or RELEvANT E\vipENCE
Is Contrary To THE INTENT oF ConcrEss IN Passtne
Rute 403 or THE FeperaL Rvies or Evmence
Without a word of explanation, except to note that he
was ‘‘adopting the more cautions approach,’”’ the trial
court, without ever listening to the evidence, twice denied
Petitioner’s request to play a tape recorded conversation
of one hour and forty-five minutes which took place be-
tween the Petitioner and Dr. West on October 2, 1975.
25
The basis of the district court’s ruling was Rule 403 of
the Federal Rules of Evidence, which provides that rele-
vant evidence may be excluded if its probative value was
substantially outweighed by considerations of undue de-
lay, waste of time or needless presentation of cumulative
evidence. In the instant case, the record is totally devoid
of any evidence of the balancing test envisioned by Rule
403. While a trial judge has wide discretion in weighing
evidence, Hamling v. United States, 418 U.S. 87, 127 (1974),
Congress has explicitly placed its finger on the ‘‘admis-
sion’’ side of the scale by permitting exclusion only where
considerations of time substantially outweigh the proba-
tive value of the evidence.
The probative value of this tape recording, constituting
as it did the best evidence of Pefitioner’s post-arrest state
of mind, corroborating the accounts of Dr. West and ser-
ving as an illustration of and the basis for Dr. Lifton’s
conclusion, far outweighed the 105 minute delay which
playing it to a jury woul. have engendered. In a trial
lasting eight weeks the delay would have been minimal and
the Petitioner would not have been denied the opportunity
to adduce relevant, competent evidence in direct rebuttal
of the tape recording between Petitioner and Tobin which
was introduced by the government. The tape served a crit-
ical, corroborative purpose and its exclusion was ‘‘unduly
restrictive’’ of Petitioner’s proof of an essential part of
her defense. United States v. Keller, 523 F.2d 1009, 1011-
1012 (9th Cir. 1975). See also, United States v. Cook,
538 F.2d 1000 (3rd Cir. 1976). ‘‘Since the probative value
of the evidence proferred was so great, it should not have
been excluded in the absence of a significant showing of
unfair prejudice.’’ United States v. Dwyer, 539 F.2d 924,
928 (2d Cir. 1976).
26
Il. Tue Opinion or tHe Court or APPEALS FOR THE NINTH
Circuit Is Conrrary To THE InTENT oF ConcrEss In
Passinc Rue 901 or tHe Feperat Ruues or Evivence,
During the trial, Petitioner offered into evidence the
expert testimony of Dr. Margaret Singer to establish that
certain writings and tape recordings of the Petitioner
could not have been authorized by her. Dr. Singer is a
clinical psychologist and expert in psycholinguisties. Dr.
Singer’s proferred evidence was highly material to the
two main issues at trial: the voluntariness of Petitioner’s
participation in the bank robbery and the credibility of
Petitioner’s testimony at trial. The g-vernment argued vig-
orously throughout the trial that Petitioner’s authorship
of the tapes and writings aided in proving her voluntary
participation in the crime charged. Petitioner, during
direct and cross-examination, repeatedly testified that
she had not authored the tapes or writings and Dr. Singer’s
testimony would have corroborated her ¢ sertions. Clear-
ly, this evidence was material, relevant, had substantial
bearing on a highly disputed matter, and should have been
admitted. United States v. DeLucia, 256 F.2d 487, 491 (7th
Cir.), cert. denied, 358 U.S. 836 (1958).
Because Dr. Singer’s testimony was critical to the Pe-
titioner’s case, it was an abuse of discretion for the trial
court to suppress it on the ground that it would consume
too much time. United States v. Dwyer, 539 F.2d 924, 928
(2d Cir. 1976).
The science of psycholinguistics is neither ‘‘infant’’ nor
unreliable; in view ofits rigor and aceuracy and its wide-
spread use in government, medical and scientifie work,
it meets the long established test for admissibility of ex-
pert evidence. Dean Wigmore succinctly states the ap-
plicable test for determining the admissibility of expert
27
testimony: ‘On this subject can a jury from this person
receive appreciable help?’’ Wigmore, Evidence, (1923 at 21
(3d ed. 1940) (emphasis in original). It is submitted that
in the instant case the jury would have been substantially
aided in its deliberations.
Rule 901 of the Federal Rules of Evidence explicitly
approves of the admission of this type of evidence. Rule
901(b)(4) relates to the authentication of documentary
evidence and enumerates approved methods. The Advisory
Committee noted that ‘‘[l)anguage patterns may indicate
authenticity 6r its opposite.’ Moreover, Rule 901(b) (4)
itself is a straightforward approval of psycholinguistic
analysis as a legitimate evidentiary tool. Judge Weinstein
comments specifically on psycholinguisties:
Writings can be authenticated by evidence that the
internal word or thought patterns are particularly
characteristic of the purported writer ... In fact, the
technique [of psycholinguistics] — without the aid of
experts or computers — is one long used in the courts.
One of the standard arguments of attorneys is that
this witness, whom the jury observed speaking on
the witness stand, could ne’ possibly have used the
language and style attributed to him in writing. E2z-
perts in linguistics can add to the force of such argu-
ments by demonstrating consistency or inconsistency
in language and grammar.
5 Weinstein, Evidence %901(b)(4), at 54-55 (1975)
(emphasis added).
It is thus clear that the Court of Appeals decision in
the instant case is against the weight of legislative auth-
ority and contrary to the provisions of Rule 901 of the
Federal Rules of Evidence.
OR
Conclusion
Based upon the facts of ‘‘uis case and)\the foregoing argu-
ments and authorities, it is respectfully submitted that the
petition for writ of certiorari should be granted.
Respectfully submitted,
F. Lee Battey
J. ALBERT JOHNSON
Tuomas J. May
Attorneys for the Appellant
1 Center Plaza
Boston, Massachusetts
Of Counsel:
Aan M. DersHow1tz
Cambridge, Massachusetts
A-1
United States Court of Appeals
For the Ninth Circuit
Nos. 76-3162, 77-1759.
UNITED STATES of America,
PLAINTIFF-APPELLEE,
v.
Patricia Campbell HEARST,
DEFENDANT-APPELLANT.
F. Lee Bailey and J. Albert Johnson, Boston, Mass., argued for
defendant-appellant.
James L. Browning, Jr., U.S. Atty., San Francisco, Calif., argued
for plaintiff-appellee.
Appeal from the United States District Court for the
Northern District of California.
. Before Brownine, Trask anp Watiace, Circuit Judges.
Nov. 2, 1977
Per CurRIAM:
Appellant was tried under a two-count indictment charg-
ing her with armed robbery of a San Francisco bank in
violation of 18 U.S.C. §¢ 2113(a),(d) and 924(c)(1). The
government introduced photographs and testimony 4e-
scriptive of appellant’s role in the robbery. Appellant
raised the defense of duress, contending her co-participants
compelled her to engage in the criminal activity. The jury
found appellant guilty. The di: -.rict court sentenced her
to seven years in prison on one count and two years on
the other, the sentences to be served concurrently.
Appellant argues that the trial judge erred in admitting
and excluding evidence and in ruling on appellant’s priv-
ilege against self-incrimination. No novel issues are pre-
A-2
sented. We conclude on the basis of well established
principles that no reversible error occurred and that the
@ judgment must be affirmed.
I. Evidence of Subsequent Crimes
During its case-in-chief the government introduced evi-
dence connecting appellant with criminal activity at a sport-
ing goods re and with a kidnapping and theft. These
incidents vccurred in the Los Angeles area approximately
one month after the San Francisco bank robbery. The evi-
dence showed that appellant accompanied William and
Emily Harris to Mel’s Sporting Goods Store in Los Angeles,
that the Harrises emtered the storagand left appellant
outside in a truck, that a store clerk’saw William Harris
shoplifting and attempted to arrest him, and that appel-
lant discharged an automatic rifle at the store, enabling
Harris to eseape. The Evidence further showed that on
the same day appellant and the Harrises stole a van and
kidnapped its owner, Thomas Matthews. Matthews testi-
fied that during this incident the Harrises were outside
the van and appellant had an opportunity to escape or give
Matthews a message but did not do so.
Appellant objects to admission of this evidence on three
grounds. She asserts the evidence was irrelevant for any
purpose except the improper one of convincing the jury
that appellant acted in accordance with a criminal dispo-
sition. She argues that even if the evidence were relevant
to the issue of intent, as the district court held, the inci-
dents were so dissimilar to the bank robbery that its
probative value was minimal and outweighed by its prej-
udicial effect. Finally, appellant contends the court erred
in permitting the introduction of this evidence during the
government’s ease-in-chief.
Evidence of other criminal acts may be persuasive that
the accused is by propensity a probable perpetrator of the
A-3
crime charged. Nonetheless, it is excluded when offered
for this purpose because it may unduly influence the jury
and deny the aceused a fair opportunity to defend against
the particular charge. Michelson v. United States, 335 U.S.
469, 475-76, 69 S.Ct. 213, 93 L.Ed. 168 (1948).
Evidence of other criminal acts. may be admitted for
purposes other than proving criminal predisposition, how-
ever. It may be received, for example, to prove knowledge,
motive, and intent. ed.R.Evid. 404(b). Accord, United
States v. Rocha, 553 F.2d 615, 616 (9th Cir. 1977); United
States v. Burns, 529 F.2d 114, 118 (9th Cir. 1976); United
States v. Marshall, 526 F.2d 1349, 1360 (9th Cir. 1975).
The government contends that the evidence of appellant’s
criminal acts in Los Angeles a month after the bank rob-
bery was relevant to the issue of appellant’s intent when
she participated in the San Francisco bank robbery, and
to whether appellant was acting under duress.’
Appellant raised the defense of duress at trial and of-
fered substantial evidence to support it. To convict appel-
lant, therefore, the government was required to show ap-
pellant was not acting under duress when she participated
in the San Francisco robbery.? The evidence of appellant’s
1A defendant who, without opportunity to escape, has a well
grounded fear of imminent death or serious injury unless he com-
plies with his ecaptor’s wrongful commands entertains a mental
state recognized as exculpatory with respect to most crimes. Com-
pulsion or duress producing this state of mind is a defense to most
criminal accusations. See United States v. McClain, 531 F.2d 431,
438 (9th Cir. 1976); United States v. Gordon, 526 F.2d 406, 407
(9th Cir. 1975); United States vy. Palmer, 458 F.2d 663, 665 (9th
Cir. 1972) ; D’Aquino v. United States, 192 F.2d 338, 357-59 (9th
Cir. 1951).
2 We induige in the assumption that every defendant is sane, and
it is not incumbent upon the prosecution to prove sanity until the
defense presents evidence to the contrary. ‘‘But once substantial
evidence of insanity is received in evidence, the presumption of
sanity disappears. The burden is then placed upon the prosecution
to prove legal sanity beyond a reasonable doubt, as in the case of
any essential element of the crime charged.’’ Hartford v. United
A-4
involvement in the Los Angeles activity was relevant to
this issue because it tended to show appellant willingly
engaged in other criminal activity with persons of the
same group at a time not unduly remote.
Appellant correctly points out that though relevant,
evidence of other criminal conduct by the accused should
be excluded if its probative value is outweighed by its
prejudicial impact upon the accused. Fed.R.Evid. 403.
Accord, United States v. Satterfield, 548 F.2d 1341, 1346
(9th Cir. 1977); United States v. Grammer, 513 F.2d 673,
677 (9th Cir. 1975); Fernandez v. United States, 329 F.2d
899, 908 (9th Cir. 1964). This determination is largely a
matter for the discretion of the district court. United States
v. Rocha, supra; United States v. Riggins, 539 F.2d 682,
683 (9th Cir. 1976); United States v. Nichols, 534 F.2d
202, 204 (9th Cir. 1976). Appellant challenges the discre-
tionary determination made by the district court in this
instance.
Appellant points out that the Los Angeles offenses were
not similar to the San Francisco robbery with which she
was charged. Because the events were so dissimilar, she
States, 362 F.2d 63, 64 (9th Cir. 1966). See also United States v.
Segna, 555 F.2d 226, 229 (9th Cir. 1977) ; United States v. Hart-
field, 513 F.2d 254, 259 (9th Cir. 1975).
The same considerations apply to the even rarer defense of
duress. It is assumed that every defendant’s actions were free from
duress, absent evidence to the contrary. As was said in the English
ease of Regina v. Gill, [1963] 1 W.L.R. 841, 846 (Crim.App.) :
The accused, either by the cross-examination of the prosecu-
tion witnesses or by evidence called on his behalf, or by a
combination of the two, must place before the court such
material as makes duress a live issue fit and proper to be left
to the jury. But, once he has succeeded in doing this, it is
then for the Crown to destroy that defence in such a manner
as to leave in the jury’s minds no reasonable doubt that the
accused cannot be absolved on the grounds of the alleged
compulsion.
See United States v. Johnson, 516 F.2d 209, 212-13 (8th Cir. 1975).
See also Model Penal Code § 2.09, Comment at 8-9 (Tent. Draft
No. 10, 1960); id. § 1.13(2), Comment at 110-12 (Tent. Draft
No. 4, 1955).
A+
contends, they offer little insight into her state of mind
during the robbery. But to justify admission of evidence
of other crimes, the crimes must be ‘‘similar’’ to the of-
fense charged only if it is the similarity of the crimes that
underlies the relevance of the evidence. United States v.
Riggms, supra, 539 F.2d at 683.5 Here the relevance of
the evidence did not depend on the similarity of the Los
Angeles crimes to the bank robbery but on the circum-
stances surrounding the occurrence of the Los Angeles
crimes, which indicated appellant had not acted under
duress when she participated in the bank robbery. The
tendency of the evidence regarding the Los Angeles crimes
to prove appellant was not coerced when she participated
in the San Francisco robbery is not diminished by the lack
of similarity between the Los Angeles and San Francisco
offenses.
Appellant also argues that the sequence of the San
Francisco and Los Angeles events undermines the rele-
vance of the latter to her state of mind during the San
Franesico robbery. Absence of duress in the later Los
Angeles incidents would not be probative of her state of
mind during the San Francisco robbery, she contends, be-
cause the robbery itself made her an outlaw and a fugi-
3 United States v. Riggins, 539 F.2d 682, 683 (1976) :
A trial court is called upon to exercise its discretion in
determining whether proffered evidence of other crimes or mis-
conduct has probative value sufficient to outweigh its potential for
prejudice to the defendant. Federal Rule of Evidence 404(b),
Advisory Committee Note; see Federal Rule of Evidence 403. The
Rule embodies an ‘‘ ‘inclusionary’ rule which admits all evidence of
other crimes relevant to an issue in a trial, except that which tends
to prove only criminal disposition.’’ 2 Weinstein’s Federal Evi-
dence { 404[08] (1975) (emphasis added). The other crimes dis-
closed by the proffered evidence must be ‘‘similar,’’ to the offense
charged if similarity of the crimes is the basis for the relevance of
the evidence. But relevance is the essential criterion. Relevant evi-
dence is not to be excluded because it fails to meet a similarity
requirement. Cf. United States v. Jones, 425 F.2d 1048, 1051-52
(9th Cir. 1970).
A-6
tive. This fact may have cavsed her to participate willingly
in the Los Angeles events, she asserts, even if she were
under duress during the earlier robbery.
Appellant’s hypothesis does bear upon the probative
value of the evidence, and it is an appropriate considera-
tion in determining whether on balance the evidence should
have been admitted. It is, however, only a hypothesis, and
a highly speculative one. The mere assertion of this hypo-
thesis does not so undermine the probative worth of the
evidence of the Los Angeles incidents in establishing ap-
pellant’s state of mind during the San Francisco robbery
as to render admission of the evidence an abuse of dis-
cretion. The jury could well reject appellant’s theory and
conclude that if appellant had been foreed to participate
in the bank robbery against her will she would have re-
frained from criminal activity in Los Angeles or seized
the opportunity to escape.
The trial judge was called upon to balance the need for
the evidence in the search for the truth against the possi-
bility that the jury would be prejudiced against appellant
because the evidence revealed she had participated in
other conduct that was criminal. The district court acted
well within its discretion in admitting the evidence. Ap-
pellant’s state of mind during the San Francisco robbery
was the central issue in the case, State of mind is usually
difficult to prove, and the evidence on the issue was sharply
divided. The timing and other circumstances of the Los
Angeles incidents made evidence of them highly proba-
tive on this critical issue. Though criminal, the incidents
were not of a kind likely to inflame the jury. The prejudice
to appellant arose primarily from the light the evidence
cast on appellant’s state of mind during the San Francisco
‘cbbery and not from the incidental circumstances that
it revealed appellant’s involvement in other criminal acts,
A-7
Appellant contends that even if evidence of the Los
Angeles incidents were admissible, the district court erred
in admitting it in the government’s case-in-chief. The argu-
ment runs as follows. Bank robbery is a crime requiring
a general rather than specific intent, United States v.
Hartfield, 513 F.2d 254, 259 (9th Cir. 1975), and the jury
could infer the requisite intent from the commission of
the act. United States v. Porter, 431 F.2d 7, 10 (9th Cir.
1970). Since evidence of other criminal acts was not re-
quired to enable the government to carry its burden of
proving intent, it should not have been admitted as part
of the government’s case-in-chief. United States v. Adderly,
929 F.2d 1178, 1181 n.1 (Sth Cir. 1976), quoting Fallen v.
United States, 220 F.2d 946, 948 (5th Cir. 1955); United
States v. Ring, 513 F.2d 1001, 1007-09 (6th Cir. 1975). It
was reversible error, appellant concludes, to admit to such
prejudicial evidence when its only relevance was to rebut a
defense of duress not yet raised. See United States v. Ring,
supra; United States v. Fierson, 419 F.2d 1020, 1023 (7th
Cir. 1969).
The government concedes it cannot present evidence that
the accused committed other crimes to prove a point not
in issue. The government argues, however, it was clear
that appellant would raise the defense of duress, and
whether the government was to be allowed to introduce
the evidence in its opening presentation or only in rebut
tal was merely a question of the order in which the parties
should adduce their proof at trial, a matter within the
trial court’s discretion. See Geders v. United States, 425
U.S. 80, 86, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); Fed.R.
Evid. 611(a); 2 J. Wigmore, Evidence § 307 at 207 (3d ed.
1940).
We are satisfied that admission of the evidence in the
government’s case-in-chief does not dictate reversal in
this case, It is unnecessary to decide whether the trial
‘
A-8
eourt’s ruling was within its discretion. The ruling, if er-
ror, was nonetheless ,harmless,
Even before trial commenced i: was appellant’s an-
nounced intention to defend on the ground of duress.* No
other defense was available to her. If appellant defended
at all, the evidence of the Los Angeles events would have
been placed before the jury in the government’s rebuttal.
There is no basis for assuming appellant was prejudiced
because the evidence was admitted in the government’s
case-in-chief rather than in rebuttal. The prejudice arose
from the substance of the evidence, not from the timing
of its introduction.
Il. Privilege against Self-lncrimination
During the trial appellant elected to testify in her own
behalf. She described in exhaustive detail the events im-
mediately following her kidnapping of February 4, 1974.
These included physical and sexual abuses by members
of the Symbionese Liberation Army (SLA), extensive in-
terrogations, foreed tape recordings and written communi-
cations designed to convince her family that she had be-
come a revolutionary, and training in guerrilla warfare.
She next described how the SLA compelled her under threat
of death ty participate in the robbery of the Hibernia
Bank on April 1, 1974, and to identify herself by reading
a revolutionary. speech. She explained that by the time
* Weeks prior to trial the defense responded to a motion of the
government under Fed.R.Crim/P. 12.2 (Notice of Defense Based
upon Mental Condition) with fhis statement:
At the first level of defense, and the only defense to the charge
which is going on-in trial, is physicial coercion and threats of
fear and death’ That would be the defense to the robbery of
the Hibernia bank.
The defense on the merits is the simple defense that ‘‘some-
body put a gun at my head and I did what they told me.’’
That is all.
A-9
the group moved to Los Angeles, the SLA had convinced
her that they would kill her if she tried to escape and
that the Federal Bureau of Investigation also desired to
murder her. Appellant added that the SLA required her
to make various post-robbery admissions about her volun-
tary role in the crime.
Appellant’s story continued by describing her partici-
pation one month after the robbery in the disturbance at
Mel’s Sporting Goods Store. She claimed that her reaction
in firing at the store resulted from fear of the SLA, as
did her admission to Thomas Matthews of complicity in
the bank robbery. She then told how she, the Harrises, and
Jack Seott traveled from Los Angeles to Berkeley, then
to New York, to Pennsylvania, and finally to Las Vegas
in September of 1974. Again, she emphasized iuat she
was an unwilling companion of the group. After mention-
ing her arrival in Las Vegas, her testimony jumped a
year to the time of her arrest in San Francisco on Septem-
ber 18, 1975.
On cross-examination, appellant refused to answer most
questions concerning the period between her arrival in
Las Vegas and her arrest in San Francisco.’ In response
to questions about her activities, residences, and associa-
tions with other suspected members of the SLA during
this year, she invoked the Fifth Amendment privilege
against self-incrimination 42, times.
Prior to government questioning, appellant had moved
for an order limiting the scope of the cross-examination
5 Appellant did answer some of the government’s questions about
her activities during this period, but she refused to answer ques-
tions which she or her counsel perceived as incriminating. Thus,
she answered questions about the membership of James Kilgore,
Stephen Soliah, and Cathleen Soliah in a subversive organization,
the New World Liberation Front. R.T. 1826-27. However, she
refused to discuss her relationship with these individuals. She also
discussed her August 12, 1975 visit to a dermatologist. R.T. 1827-29.
A-10
so as to avoid the necessity of invoking the Fifth Amend-
ment in response to questions implicating her in other
crimes for which she was not on trial. Finding that ap-
pellaat had waived her privilege against self-incrimina-
tion as to all relevant matters by testifying in her own
behalf, the court denied this motion and allowed the gov-
ernment to ask her questions which resulted in her as-
sertion of the Fifth Amendment. United States v. Hearst,
412 F.Supp. 885 (N.D.Cal.1976). Appellant now offers
five separate grounds for finding that the court com-
mitted reversible error in making this ruling.
1. The Fifth Amendment provides that ‘‘[n]o person
. shall be compelled in any criminal case to be a witness
against himself,’’ But it is also true, as the trial court
stressed, that a defendant who testifies in his own behalf
waives his privilege against self-incrimination with re-
spect to the relevant matters covered by his direct testi-
mony and subjects himself to cross-examination by the
government. Brown v. United States, 356 U.S. 148, 154-55,
78 S.Ct. 622, 2 L.Ed.2d 589 (1958). Appellant contends
that she ‘‘did not voluntarily waive her Fifth Amendment
privilege by testifying because her testimony was compelled
by the introduction of certain evidence, i.e., post-crime
conduct, which was challenged as inadmissible and highly
prejudicial.’’ Reply Brief for Appellant at 7. She pleads
that she was caught between the ‘‘rock and the whirlpool’’
when forced to decide whether to testify or allow the eyi-
dence to stand unrebutted.
The validity of this argument depends largely on appel-
lant’s assumption that evidence of her post-robbery be-
havior was admitted erroneously, and that she had no
choice but to respond to this inadmissible evidence. We
have concluded previously however, that the trial court
determined correctly that this evidence was relevant and
admissible. Thus, appellant’s attempt to compare her
A-11
situation to that involved in Harrison v. United States,
392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), where
the defendant had to testify in order to overcome the
impact of prior confessions which had been illegally ob-
tained and introduced, is unconvincifg. In the present case,
neither the trial court nor we found that any illegal, in-
admissible evidence forced appellant to testify.
Appellant also suggests it is sufficient that she thought
she was being compelled to testify in response to the ad-
mission of evidence which she perceived as prejudicial,
inadmissible, and damaging to her defense. We refuse
to hold that a defendant’s subjective impressions of what
he is ‘‘foreed’’ to do during his trial are enough to render
his testimony involuntary. A defendant often will view
evidence as incriminating and inadmissible, and feel that
he must take the witness stand in order to*save his case.
This is an inherent feature of our criminal justice system,
however:
The defendant in a criminal trial is frequently
forced to testify himself and to call other witnesses
in an effort to reduce the risk of conviction. When
he presents his witnesses, he must reveal their ident-
ity and submit them to cross-examination which in
itself may prove incriminating or which may furnish
the State with leads to incriminating rebuttal evi-
dence. That the defendant faces such a dilemma de-
manding a choice between complete si'ence and pre-
senting a defense has never been thought an invasion
of the privilege against compelled self-incrimination.
Williams v. Florida, 399 U.S. 78, 83-84, 90 S.Ct. 1893, 1897,
26 L.Ed.2d 446 (1970). In Williams, the Supreme Court
found that the defendant had a free choice between giving
notice of his alibi defense, as required by a Florida stat-
ute, and refraining from presenting this defense. Sim-
A-12
“
larly, in our case, we find that appellant freely elected
to testify in her own behalf.
2. Appellant also argues that she did not waive her
privilege against self-incrimination because her testimony
was limited to the collateral issue of the voluntariness of
certain statements (i.e., the admissions of willing parti-
cipation in the bank robbery) made by her and introduced
into evidence over her objection. She contends that since
her testimony did not address the merits of the case, the
government should not have been allowed tu ask questions
which attempted to prove her guilt. She refers us to Callo-
way V. Wainwright, 409 F.2d 59, 66 (Sth Cir.), cert. dented,
395 U.S. 909, 89 S.Ct. 1752, 23 L.Ed.2d 222 (1969), which
stated: ‘‘[t]hat appellant took the stand for the sole pur-
pose of testifying upon the credibility of the voluntariness
of his [earlier] confession should not be taken as a com-
plete waiver of his constitutional privilege against self-
incrimination.’’
Appellant’s assumption about the nature of her testi-
mony is completely erroneous. The central theme of her
lengthy testimony was that from the moment of her kid-
napping to the time of her arrest she was an unwilling
victim of the SLA who acted under continual threats of
death. She tried to show, not merely that she made her
admissions involuntarily, but that she acted under duress
in robbing the Hibernia Bank, firing at the sporting goods
store, and traveling with the Harrises for over one year.
She disputed the main element of the government’s case:
that she had the necessary criminal inient when she parti-
cipated in the bank robbery. Thus, her reliance on Callo-
way is misplaced, for that case dealt with the much nar-
rower situation in which a defendant takes the witness
stand solely to deny the voluntariness of his confession.
Calloway v. Wainwright, supra, 409 F.2d at 66.
A-13
3. Appellant next claims that even if she did waive
her privilege against self-incrimination by testifying in
her own behalf, the waiver did not extend to the period
between her arrival in Las Vegas and her arrest in San
Francisco. She argues that since she did not testify con-
cerning her activities during this ‘‘lost year,’’ the govern-
ment had no right or reason to ask any questions about it.
She would confine the proper scope of cross-examination
to the events which she specifically discussed during her
direct testimony.
We find that appellant misinterprets the controlling
case law on waiver and the permissible limits of the cross-
examination of a testifying defendant. The Supreme Court
has stated that when a defendant takes the witness stand,
‘this credibility may be impeached and his testimony as-
sailed like that of any other witness, and the breadth of
his waiver is determined by the scope of relevant cross-
examination.’’ Brown v. United States, supra, 356 U.S. at
154-55, 78 S.Ct. at 626. ‘‘[A] defendant who takes the
stand in his own behalf cannot then claim the privilege
against cross-examination on matters reasonably related
to the subject matter of his direct examination.’’ McGautha
v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28
L.Ed.2d 711 (1971). This rule is premised on basic goals
of fairness and ascertainment of the truth:
The witness himself, certainly if he is a party, de-
termines the area of disclosure and therefore of
inquiry. Such witness has the choice, after weighing
the advantage of the privilege against self-incrimin-
ation against the advantage of putting forward his
version of the facts and his reliability as a witness,
not to testify at all. He cannot reasonably claim that
the Fifth Amendment gives him not only this choice
but, if he elects to testify, an immunity from cross-
examination on the matters he has himself put in
dispute.
A-14
Brown v. United Slates, supra, 356 U.S. at 155-56, 78 S.Ct.
at 627. Nowhere in this rule is there even a suggestion that
the waiver and the permissible cross-examination are to
be determined by what the defendant actually discussed
during his direct testimony. Rather, the focus is on whether
the government’s questions are ‘‘reasonably related’’ to
the subjects covered by the defendant’s testimony.
Applying this principle to the present case, we conclude
that the trial court did not abuse its broad discretion, Uni-
ted States v. Higginbotham, 539 F.2d 17, 24 (9th Cir. 1976),
in allowing the government to ask questions about the
year which appellant failed to cover in her direct testimony.
As we have already concluded, appellant’s testimony was
not limited to disputing the voluntariness of her post-
robbery admissions. Instead, she attempted to show that
from her kidnapping until her arrest she acted exactly as
her captors directed.* She tried to persuade the jury that
her post-robbery conduct and feelings of fear, dependence,
and obedience proved that she had also acted involuntarily
and without criminal intent in robbing the Hibernia Bank.
We agree with the trial court’s conclusion that appel-
lant’s testimony placed in issue her behavior during the
entire period from abduction to arrest, and gave the gov-
ernment a right to question her about the ‘‘lost year.’’ See
United States v. Hearst, supra, 412 F.Supp. at 887. Al-
though appellant did not discuss this year the natural in-
ference from her other testimony, if believed, was that
she had acted involuntarily during this period. Having
6 Appellant’s counsel, Mr. Bailey, indicated very directly his
desire to show that appellant had been threatened, abused and
coerced by the SLA for almost two years. When he sought to gain
admission into evidence of a portion of her testimony, he stated:
‘‘She has been threatened by them [the Harrises] for two years,
Your Honor.’’ R.T. 1416. He termed her testimony ‘‘a rebuttal to
the notion that Mr. Browning [the United States Attorney] wishes
to sell this jury that she had no actual fear of the Harrises.”’
R.T. 1418.
A-15
offered selective evidence of the nature of her behavior
for the whole period, appellant had no valid objection to
the government’s attempt to show that her conduct dur-
ing the omitted year belied her story and proved that
she was a willing member of the SLA. Since appellant’s
direct testimony raised an issue about the nature of her
conduct during one and one-half years prior to her arrest,
the government’s questions about her activities, assecia-
tions, and residences during the interim year were more
than ‘‘reasonably related’’ to the subject matter of her
prior testimony. That answers to these questions might
have implicated appellant in crimes for which she was not on
trial had no bearing on the questions’ relevancy or rela-
tionship to her direct testimony.
4. Appellant argues that even if she had no right to
refuse to answer the government’s questions, the court
erred in allowing the prosecution to continue to ask ques.
tions which it knew would elicit repeated assertions of
the privilege against self-incrimination. We find that ap-
pellant’s authorities do not support her proposition. Her
cases involve situations in which the government or the
defendant questioned a witness or a co-defendant, know-
ing that a valid, unwaived Fifth Amendment privilege
would be asserted. FE.9., United States v. Roberts, 503 F.2d
598 (9th Cir. 1974), cert. denied, 419 U.S. 1113, 95 S.Ct.
791, 42 L.Ed.2d 811 (1975); United States v. Beye, 445
F.2d 1037 (9th Cir. 1971); Sanders v. United States, 373
F.2d 735 (9th Cir. 1967). She fails to offer support relat-
ing to the very different problem, present in our case, in
which the government attempts to cross-examine a witness-
defendant who has previously waived his privilege against
self-incrimination.
In determining whether it is improper for the govern-
ment to ask a defendant questions which will result in an
assertion of privilege against self-incrimination, the cen-
A-16
tral consideration is whether the defendant has waived his
privilege as to the propounded questions. When a witness
or a defendant has a valid Fifth Amendmert privilege,
government questions designed to elicit this privilege
present to the jury information that is misleading, ir-
relevant to the issue of the witness’s or the defendant’s
credibility, and not subject to examination by defense
counsel, See Namet v. United States, 373 U.S. 179, 186-87,
83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). Therefore, we do
not allow this form of questioning.
But when asdefendant has voluntarily waived his Fifth
Amendment privilege by testifying in his own behalf, the
rationale for prohibiting privilege-invoking queries on
cross-examination does not apply. The defendant has chos-
en to make an issue of his credibility; he has elected to
take his case to the jury in the most direct fashion. The
government, accordingly, has a right to challengé the de-
fendant’s story on cross-examination. Brown v. United
States, supra, 356 U.S. at 154-56, 78 S.Ct. 622. The gov-
ernment may impeach the defendant by developing incon-
sistencies in his testimony; the government may also suc-
cessfully impeach him by asking questions which he refuses
to answer. If the refusals could not be put before the jury,
the defendant would have the unusual and grossly unfair
ability to insulate himself from challeneges merely by
declining to answer embarrassing questions. He alone could
control the presentation of evidence to the jury.
Our view finds support in decisions construing the
propriety of judicial and prosecutorial comment upon a
defendant’s refusal to testify. Griffin v. California, 380
U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), held
that neither the government nor the court may comment on
an aceused’s exercise of his Fifth Amendment privilege
by refusing to testify. But it has long been established
that comment is alloweé when a defendant fails to ex-
A-1l7
plain evidence against him after first waiving his privilege
by taking the witness stand. Caminetti v. United States,
242 U.S. 470, 492-95, 37 S.Ct. 192, 61 L.Ed. 442 (1917>.”
Since the offering of questions designed to elicit invoca-
tions of the Fifth Amendment is really only a form of
comment upon the defendant’s failure to testify, intended
to present to the jury the government’s interpretation of
his credibility, we believe that the rule of Caminetti should
apply to the present case.
We have concluded that appellant waived her privilege
against self-incrimination with respect to her activities
during the interval between her arrival in Las Vegas and
her arrest in San Francisco. Therefore, it was permissible
for the government to ask questions aboui this period,
even though they led to 42 assertions of the Fifth Amend-
ment.
5. Finally, appellant contends that the trial court com-
mitted reversible error by stating initially that her priv-
ilege against self-incrimination continued in full effect
even if she testified but then ruling later in the trial that she
had waived her privilege by testifying. Appellant asserts
that she testified only in reliance upon the first ruling, and
that she would never have spoken if she had known or
thought that the court would allow the government to ask
questions which resulted in her invocation of the Fifth
Amendment. She concludes that the prejudicial effect of
her repeated use of the privilege was great, and that her
conviction must therefore be reversed.
We find two flaws in appellant’s theory. First, the
record does not show a firm, unequivocal ruling by the
trial court which appellant justifiably could have relied
7 The indication in Brown v. United States, supra, 356 U.S. at
154-55, 78 S.Ct. 622, that a defendant retains a privilege against
self-incrimination as to subjects not related to his direct testimony
suggests that the prosecution may not comment upon the defend-
ant’s silence on matters beyond the scope of his direct examination.
A-18
upon in believing that her Fifth Amendment privilege was
not subject to waiver. During a special hearing on the
voluntariness of certain of appellant’s statements, the
trial judge did misrepresent or ignore the controlling case
law, see Brown v. United States, supra, by stating his
belief that a defendant never waives his privilege against
self-incrimination by taking the witness stand.® Although
the court’s statement was somewhat confusing and mis-
leading, appellant could not reasonably have believed that
this pronouncement, given in the very limited context of
a voluntariness hearing, was a promise to her that she
could testify on the merits during the trial without sub-
jecting herself to cross-examination or comment upon
her refusal to answer government questions. The only
proper and truly binding decision on the issue of appel-
lant’s waiver of her Fifth Amendment rights was the for-
mal, specific ruling in which the court held that there had
been a waiver. See United States v. Hearst, supra.
Appellant points to another segment of the trial in
which the court appeared to reaffirm its earlier statement.®
8 During this hearing, the court appeared to follow the rule of
Calloway v. Wainwright, supra, 409 F.2d at 66, by holding that
appellant had not waived her privilege against self-incrimination
by testifying on the voluntariness of her statements. This narrow
ruling was preceded by broad language on the possibility of waiver
of Fifth Amendment rights:
‘*T don’t think the defendant ever waives the right of self-
incrimination by taking the witness stand, and she has the
right—or she had the right to assert that privilege in any
proceeding at any time in any place under the Constitution of
the United States. So I will have to rule she has not waived.’’
R.T. 473.
® The trial court sustained some of defense counsel’s initial objec-
tions to the cross-examination of appellant, stating:
‘‘T would agree with you [the United States Attorney]
that the defendant's refusal to answer on the grounds that she
might tend to incriminate herself, cuts off any inquiry into
that area.
‘‘Now, however, that is a constitutional right she has. And,
I intend to see that she has the right to—that is not only set
A-19
However, this second opinion about nonwaiver was made
after appellant had testified on direct examinaticou. Since
she had already testified, this misstatement of the law was
harmless. Appellant cannot claim now that she relied wpon
it.
Second, we do not believe there is sufficient evidence
that appellant relied upon the court’s initial opinion, given
during the voluntariness hearing, in electing to testify.
Before we may conclude that a defendant was prejudiced
by an erroneous or subsequently modified ruling by a trial
court, there must be some showing or reasonable infer-
ence that he did in fact rely upon the decision. See John-
son v. United States, 318 U.S. 189, 197, 63 S.Ct. 549, 87
L.Ed. 704 (1943). If the defendant ignored the ruling or
did not base his actions on it, there is obviously no preju-
dicial error. To vacate a conviction in these cireumstances
would be to accord the defendant a windfall gain unrelated
to any harm he suffered during the trial. It would also
have the effect of locking a court into mistaken rulings
made during the heat of trial and of preventing it from
revising these decisions after considered reflection. As
long as there is no evidence of detrimental reliance by the
defendant, the course of justice is well served when a trial
judge corrects his mistakes and saves an appellate court
from the time-consuming task of remedying easily pre-
ventable errors.
Appellant has produced no proof, other than her bare
assertion, that she would not have testified but for the
‘*promise’’ made by the trial court of continuous protec-
tion under the Fifth Amendment. Recognizing that such
forth in her claims, but to maintain them during the course
of this trial.
‘‘That’s what the constitutional prohibition against self-
incrimination means.
‘*And, it means that in all its significance. And I intend
to earry it out.’’ R.T. 1557.
A-20
direct evidence is difficult to produce, courts do examine
ihe entire trial transeript to determine whether it is prob-
able that the defendant was misled by an erroneous ruling
of the lower court. In Jolnson v. Unite States, supra, for
example, the trial court mistakenly granted the defendant’s
claim of privilege but later permitted the prosecutor to
comment adversely upon the use of privilege. Emphasiz-
ing that the record showed the defendant almost certainly
testified in reliance upon the early ruling, the Supreme
Court found error in the trial court’s change of position.
Id. at 197-98, 63 S.Ct. 549.
In the present case, however, we do not believe the tran-
script shows that appellant testified only as a result of
the trial court’s initial statement. The government pre-
sented a strong case against appellant. It introduced un-
disputed evidence that she had participated in the bank
robbery. Since bank robbery is a crime requiring only a
general intent, the jury could have inferred the requisite
intent from the very commission of the act. United States
v. Hartfield, supra, 513 F.2d at 259; United States v. Porter,
supra, 431 F.2d at 10. Appellant’s only hope was to testi-
fy about her role in the robbery. She could not have relied
solely on the testimony of her expert witnesses, for the
government presented an impressive array of psychiatric
testimony disputing appellant’s claim that she had parti-
cipated involuntarily in the robbery. We believe that ap-
pellant would have testified even if the trial court had
ruled at the beginning of the trial that her privilege
against self-incrimination was subject to waiver.
IIT. Admission of the Tobin Tape
While in custody at the San Mateo County Jail, appel-
lant was allowed to receive and talk with visitors. On Sep-
tember 20, 1975, two days after her arrest, one of her
visitors was her childhood friend, Patricia Tobin. During
the visit with Tobin, which took place in the jail’s visiting
A-21
room, appellant and Tobin communicated over a telephone-
like interecommunication system while looking at each other
through a bullet-proof glass window. Most of the conversa-
tion between the two was monitored and recorded through
a switechboard-type device operated by a deputy sheriff.
The deputy conducted this monitoring and recording pur-
suant to an established jail policy. As the supervisor of
the jail testified:
We monitor selected cases and at random cases also,
and record those plus manual monitoring to watch
for security problems within our facility.
Officials at the jail had previously determined to record
all of appellant’s conversations with her visitors in ac-
cordance with the jail policy for ‘‘very public.zed cases or
high security problems. ”’
The je.! supervisor delivered the recording of the con-
versation with Tobin (the Tobin tape) to the FBI and the
prosecution. Appellant timely moved to suppress the tape,
contending that it was made and delivered to the govern-
ment in violation of the Fourth, Sixth, Ninth and Fourteenth
Amendments. The district court denied the motion, United
Stales v. Hearst, 412 F.Supp. 888 (N.D.Cal. 1976), and
the government thereupon cross-examined both apellant
and Tobin with respect to the taped conversation. In ad-
dition portions of the transcript of the tape were read
to the jury.
Appellant now makes a three-pronged atiack on the
government’s use of the Tobin tape. First, she contends
that the monitoring and recording of her con7ersations
with visitors in the jail violated her Fourth Amendment
rights. Second, she argues that, regardless of the consti-
tutionality of the original monitoring and recording, the
jail supervisor’s delivery of the tape to the government
and its subsequent use of the tape constitutes an indepen-
dent violation of the Fourth Amendment. Fimally, she ar-
A-22
gues that the government violated her Sixth Amendment
right to counsel by ‘‘surreptitiously making itscif a party
to [her] conversations and thereby deliberately eliciting
incriminating statements made in the absence of counsel.’’
A. The Monitoring and Recording
In Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.
2d 384 (1962), the Supreme Court addressed a Fourth
Amendment challenge to the electronic interception of a
conversation between a jail prisoner and a visitor, Lanza.
Unknown to the two, jail officials, by means of an elec-
tronic device installed in the visitors’ room at the jail,
had listened to and transcribed the conversation. The tran-
script was then delivered to a state legislative committee
investigating possible corruption in the state parole sys-
tem. Lanza was called before the committee where, after
receiving immunity, he refused to answer a series of ques-
tions. Because of this refusal, he was convicted of a mis-
demeanor. Lanza attacked the conviction, charging that
the interception of the conversation was violative of Fourth
Amendment principles incorporated in the Due Process
clause of the Fourteenth Amendment and that the com-
mittee interrogation was based on information derived
from the improper interception. Accordingly, he argued,
it was a denial of due process to convict him for failing
to answer the committee’s questions.
Regarding Lanza’s Fourth Amendment claim, the Su-
preme Court observed that
to say that a public jail is the equivalent of a man’s
‘‘house’’ or that it is a place where he can claim con-
stitutional immunity from search or seizure of his
person, his papers, or his effects, is at best a novel
argument. To be sure, the Court has been far from
niggardly in construing the Physical scope of Fourth
Amendment protection. A business office is a protec-
A-23
ted a:ca, and so may be a store. A hotel room, in the
eyes of the Fourth Amendment, may become a person’s
‘‘house,’? and so, of course, may an apartment. An
automobile may not be unreasonably searched. Neither
may an occupied taxicab. -Yet, without attempting
either to define or to predict the ultimate scope of
Fourth Amendment protection, it is obvious that a
jail shares none of the attributes of privacy of a home,
an automobile, an office, or a hotel room. In prison,
official surveillance has traditionally been the order.
of the day. oa
Id. at 143, 82 S.Ct. at 1220-21 (footnotes omitted).”
Because of the obvious similarity between the facts in
Lanza and the facts surrounding the making of the Tobin
tape, and in response to the district court’s reliance on
Lanza, appellant argues that the case no longer has prece-
dential value. In appellant’s view, the Supreme Court’s
decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,
19 L.Ed.2d 576 (1967), effectively overruled Lanza or at
the very least significantly reduced its precedential value.
In Katz, the Court held that the government’s electronic
interception of Katz’s conversation in a phone booth vio-
lated the Fourth Amendment. Rejecting Katz’s formulation
10 In addition to other attacks on Lanza, appellant argues that
the quoted language is merely dictum and, further, that the
Supreme Court, because of the existence in the case of an adequate
and independent state ground for the judgment, lacked jurisdiction
to reach the federal question. See Lanza v. New York, 370 U.S.
139, 147, 82 S.Ct. 1218,.8 L.Ed.2d 384 (Warren, C. J.) ; id. at 150,
82 S.Ct. 1218 (Brennan, J.).
Whether or not the court lacked jurisdiction to reach the fed-
eral issue is irrelevant for our purposes. The fact remains that it
did discuss the issue. Whether that diseussion was merely dictum
or constituted an alternative ground for the affirmance, however,
is clearly relevant and presents a difficult question. In any event,
the fact that the plurality expressed its views on the federal issue
in the face of strong arguments from the minority that it had no
jurisdiction to do so convinees us that, whether dictum or holding,
it has persuasive value.
A-24
of the issue—whether the phone booth was a ‘‘constitution-
ally protected area’’— the Court stated that ‘‘the Fourth
Amendment protects people, not places.’’ Id. at 351, 88
S.Ct. at 511. Appellant contends that it is this language that
undereuts Lanza, with its discussion of private (business
office, store, hotel room, house, car, and taxicab) and non-
private (jail) places. See Lanza v. New York, supra, 370
U.S. at 143, 82 S.Ct. 1218.
Post-Katz decisions of this circuit dealing with jailhouse
searches and seizures, however, have treated Katz and
Lanza as compatible. United States vy. Dawson, 516 F.2d
796, 805 (9th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 104,
46 L.Ed.2d 80 (1975); United States v. Hitchcock, 467 F.2d
1107, 1108 (9th Cir. 1972), cert. denied, 410 U.S. 916, 93
S.Ct. 973, 35 L.Ed.2d 279 (1973). Further, these cases
relied principally on Katz which unquestionably continues
to have precedential value, in developing a rule that defeats
appellant’s Fourth Amendment claim in the present case:
An intrusion by jail officials pursuant to a rule or policy with
a justifiable purpose of imprisonment or prison security is
not violative of the Fourth Amendment. United States v.
Dawson, supra, 516 F.2d at 805-06; United States v. Savage,
482 F.2d 1371, 1373 (9th Cir.), cert. denied, 415 U.S. 932,
94 S.Ct. 1446, 39 L.Ed.2d 491 (1973). Under this rule, a
prisoner is not deprived of all Fourth Amendment pro-
tections; the rule recognizes, however, the government’s
weighty, countervailing interests in prison security and
order. Cf. Procunier v. Martinez, 416 U.S. 396, 404-14,
94 8.Ct. 1800, 40 L.Ed.2d 224 (1974).™
—_— -—_---—-
1 Appellant distinguishes between pretrial detainees and _ pris-
oners who have been duly convicted, arguing that because the
former must be presumed innocent they should not be subjected
to the same prison surveillance permitted of the latter. This argu-
ment is appealing only when the status of pretrial detainees is
considered in the abstract. When pretrial detainees and their
liberty interests are placed in balance with the countervailing
A-25
Here the government adequately established that its
practice of monitoring and recording prisoner-visitor con-
versations was a reasonable means of maintaining prison
security. Indeed, appellant makes no very serious argu-
ment to the contrary. Rather, she focuses her arguments
almost exclusively on the other end of the balance beam:
the prisoner’s interest in privacy. But once the government
establishes that its intrusion is for ‘‘ ‘[a] justifiable pur-
pose of imprisonment or prison security,’ ’’ United States
v. Dawson, supra, 516 F.2d at 806, citing United States v.
Savage, supra, 482 F.2d at 1373, the Fourth Amendment
question is essentially resolved in its favor. This approach
is reflective of both the federal courts’ ‘‘broad hands-off
attitude toward problems of prison administration,’’ Pro-
cunier v. Martinez, supra, 416 U.S. at 404, 94 S.Ct. at 1807,
and traditional notions regarding official surveillance of
prisoners, Lanza v. New York, supra, 370 U.S. at 148, 82
S.Ct. 1218, with the concomitant reduction in reasonable
prisoner expectations of privacy. United States vy. Hitch-
cock, supra, 467 F.2d at 1108.
One further consideration in the present case reinforces
our conclusion that the monitoring and recording of
prisoner-visitor conversations was reasonable and there-
fore not violative of the Fourth Amendment. In Procunier
governmental interests, appellant’s distinction loses much of its
force. Ail legitimate intrusive prison practices have basically
three purposes: ‘‘the preservation of internal order and discipline,
the maintenance of institutional security against escape or un-
authorized entry, and the rehabilitation of the prisoners.’’ [’ro-
cunier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 1811, 40
L.Ed.2d 224 (1974) (footnote omitted). The first two interests
are implicated regardless of the status of the prisoner. The third,
of course, applies only to prisoners already convicted of crime.
Accordingly, a pretrial detainee may assert his status as a shield
against intrusive practices aimed solely at rehabilitation but not
against practices aimed at security and discipline. Here there is
no argument that the jail practice of monitoring and recording
prisoner-visitor conversations had any purpose other than jail
security and. order.
A-26
v. Martinez, supra, 416 U.S. 396, 94 S.St. 1800, 40 L.Ed.2d
224, the Supreme Court was confronted with a First Amend-
ment challenge to mail censorship brought by California
prisoners. The Court did not prohibit all censorship. Rather,
it recognized the weighty governmental interests in prison
security and order and prisoner rehabilitation and permit-
ted censorship that both furthered one of those interests and
was no broader than necessary to accomplish its purpose.
In reaching its conclusion, the Court observed:
. Perhaps the most obvious example of justifiable censor-
ship of prisoner mail would be refusal to send or
deliver letters concerning escape plans or containing
other information concerning proposed criminal ac-
tivity, whether within or without the prison. Similarly,
prison Officials may properly refuse to transmit en-
coded messages. Other less obvious possibilities come
to mind....
Id. at 413, 94 S.Ct. at 1811. It would be anomalous indeed
to permit prison officials to intercept written correspond-
ence between prisoners and outsiders in an effort to ferret
out escape plans or other criminal activity, while at the
same time prohibiting the interception of oral communica-
tions between prisoners and visitors conducted for essen-
tially the same purposes: prison security and order. Yet
this is practically what appellant urges. We do not believe
that the Bill of Rights and the Fourteenth Amendment
require such an artificial distinction.
B. Intergovernmental Use of the Tobin Tape
In her argument that the Fourth Amendment prohibits
interagency or intergovernmental use of evidence originally
‘‘seized’’ in a constitutionally valid manner, appellant
relies primarily on our decision in Bubis v. United States,
384 F.2d 643 (9th Cir. 1967). That case, however, is poor
authority for her novel argument. There, the telephone
A-27
company suspected that Bubis was using a multi-frequency
signal generator to circumvent the company’s automatic
record-keeping equipment and thereby avoid long-distance
charges. As part of its investigation, the company con-
nected monitoring equipment to his telephone line. During
the first few days of the monitoring, the company learned
that Bubis was indeed using a frequency generator; it aiso
overheard conversations that ‘‘sounded like gambling.”’
The monitoring continued for over three months, after
which time the company reported its suspicions regarding
the gambling operations to the federal government. A grand
jury subpoenaed the tape recordings and indicted. On the
basis of the recordings, Bubis was convicted of federal
gambling offenses. Relying solely on our construction of
the applicable federal statute, we reversed, holding that
the telephone company’s interception was broader than
necessary. Regarding the telephone company’s disclosure
of Bubis’ conversations to the federal government, we
stated in dictum that the statute also prohibited that.
Id. at 648 n.5.
In our view, Bubis has no bearing on our resolution of
appellant’s Fourth Amendment challénge to intergovern-
mental use of the Tobin tape. First, the holding in Bubis
was that the interception was invalid because the telephone
company extended its intrusion too long; any statement
concerning the lawfulness of disclosure following a lawful
interception was gratuitous and unnecessary to the decision.
Second, our decision involved no constitutional analysis;
it simply interpreted and applied a statutory provision
governing the communications industry.
No independent reason appears why the Fourth Amend-
ment should be construed to prohibit the intergovernmental
exchange of the Tobin tape that occurred here. We decline
to mutate the prohibitions of the Fourth Amendment,
which deal with government-instigated searches and seiz-
A-28
ures, into a code of regulations governing interagency
transfer of evidence legitimately in government control.
But cf. United States vy. Birrell, 470 F.2d 113 (2d Cir. 1972).
Here, we have already held that the appellant-Tobin con-
versation was ‘‘seized’’ in a manner not inconsistent with
the Fourth Amendment. Accordingly, we reject appellant’s
argument that the tvansfer of the Tobin tape was constitu-
tionally impermissible.”
C. Right to Counsel
Appellant’s Sixth Amendment right te counsel argument
is based upon Massiah v. United States, 377 U.S. 201, 84
S.Ct. 1199, 12 L.Ed.2d 246 (1964). Massiah and a co-
defendant were indicted on a federal narcoties charge. After
retaining his own lawyer, Massiah pleaded not guilty and
was released on bail. The codefendant was also released
on hail and soon thereafter decided to cooperate with the
government agents who were continuing the investigation
of Massiah’s narecoties activities. A police agent installed
a radio transmitter under the seat of the codefendant’s
ear and then suggested to him that he irduce Massiah to
enter the car and talk about the case. Mas.iah did so and
his monitored and recorded incriminating statements were
used at his trial. The Supreme Court overturned his con-
vietion, holding that Massiah ‘‘was denied the basic pro-
tections of that [Sixth Amendment] guarantee when there
was used against him at his trial evidence of his own
incriminating words, which federal agents had deliber-
12 We emphasize that there is no direct allegation that the jail
authorities monitored and reeorded the Tobin conversation for any
purpose other than prison security. No argument is advanced that
law enforcement agencies used prison security as a guise for what
was essentially an effort to gain incriminating evidence for use
against appellant in her trial.
A-29
ately elicited from him after he had been indicted and in
the absence of his counsel.’’ Jd. at 206, 84 S.Ct. ai 1203.
The obvious problem with applying Massiah to the facts
surrounding the making of the Tobin tape is the absence
of any governmental effort to elicit incriminating state-
ments from appellant. There is no suggestion that Tobin,
at government direction, engaged appellant in the conver-
sation later used against her. Appellant argues, however,
that the Court in Massiah held that deliberate, secret listen-
ing’* sufficed as the prohibited ‘‘deliberate elicitation’’ of
incriminating statemeuts. Interrogation, in appellant’s —
view, is not required by Massiah.
This interpretation of Massiah must fail. The Supreme
Court in Brewer v. Williams, 430 U.S. 387, 97 S.Ct:.1232,
51 L.Ed.2d 424 (1977), recently interpreted Massiah in a
manner directly opposed to appellant’s contention. In
Brewer, the Court stated in unambiguous terms that ‘‘no
such constitutional protection [of the right to assistance of
counsel at the time the defendant made the incriminatory
statements] would have come into play if there had been
no interrogation.’’ Jd. at 400, 97 S.Ct. at 1240. Relevant to
appellant’s argument that by secretly listening to incrimi-
nating statements the government violated the rights de-
fined in Massiah, the Court stated: ‘‘That the incriminating
statements were elicited surreptitiously in the Massiah
case, and otherwise here, is constitutionally irrelevant. . . .
Rather, the clear rule of Massiah is that once adversary
proceedings have commenced against an individual, he has a
right to legal representation when the government interro-
gates him.’’ Id. at 400-01, 97 S.Ct. at 1240 (emphasis added;
citations omitted). Thus, under Massiah, as interpreted by
3 There is some evidence in the record that appellant was aware
that her conversation with Tobin was being monitored. The district
judge made no explicit finding regarding appellant’s actual knowl-
edge. However, because of our disposition of the issues raised in
part ITI, the lack of such a finding is immaterial.
A-30
Brewer, there was no violation of appellant’s Sixth Amend-
ment right to ti.e assistance of counsel because there was
no interrogation of her—either formally or surreptitiously
—by the government.
IV. Exctusion or tHe Octrospek 2 Tape
To support hes duress defense, appellant called two
psychiatrists, Dr. Louis J. West and Dr. Robert J. Lifton.
During direct examination of West, appellant’s counsel
invited him to describe and compare appellant’s behavior
and mental condition shortly after her arrest and her be-
havior on the witness stand approximately four months
later. Apparently in an effort to corroborate West’s de-
scription of her mental condition as revealed in their initial
post-arrest interviews, appellant then sought permission to
play a tape recording of a ‘‘representative’’ interview
which oceurred on October 2, 1975, shortly after her arrest.
The government objected, characterizing the taped inter-
view as ‘‘cumulative and unnecessary’’ and charging that
it was being offered only for its (presumably emotional)
‘‘effect.’’ The prosecutor stated that the better course was
to allow West to read pertinent passages from the tran-
script of the October 2 tape. Appellant retorted that the
tape should be admitted both to corroborate West’s testi-
mony and to reveal the basis for the opinion of Lifton, who
had not yet testified and who had relied on the tapes of
West’s post-arrest interviews with appellant in forming
his opinion.
The district court sustained the government’s objection.
The court concluded that the tape would be ‘‘just very
cumulative,’’ that appellant had already ‘‘taken a consider-
able period of time in direct examination of Dr. West,”’
and that West had been able to ‘‘speak for himself’’ in
describing the post-arrest interviews. West had, in the
court’s view, ‘‘very and completely and fully amplified’’
A-31
his testimony. Appellant then withdrew the request for
admission ‘‘insofar as Dr. West is concerned.”’
During Lifton’s testimony, appellant again requested
that the October 2 tape be admitted as evidence. The gov-
ernment objected on the grounds that the tape would be
cumulative and that to play the tape would take too much
time. The district court sustained the objection.
The basis of the district court’s ruling was Fed.R.Evid.
403, which provides in part:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed . . . by con-
siderations of undue delay, waste of time, or needless
presentation of cumulative evidence.
By the choice of the term ‘‘substantially outweighed,’’ there
was adopted a basic policy favoring admissibility of rele-
vant evidence. The Rules also, however, confer broad dis-
cretion on the trial judge to exclude evidence on any of the
grounds specified in Rule 403, including ‘‘undue delay,
waste of time, or needless presentation of cumulative evi-
dence.’’ United States v. Hendrix, 549 F.2d 1225, 1230 (9th
Cir. 1977); Bunn v. Caterpillar Tractor Co., 415 F. Supp.
286, 291 (W.D.Pa.1976); 2 Fed.R.Evid.News 33 (1977).
Accordingly, we reverse a district court’s ruling on such
matters only if we are convinced that the decision consti-
tutes an abuse of discretion. See Hamling v. United States,
418 U.S. 87, 125, 127, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).
After reviewing the facts surrounding the district court’s
decision to exclude the October 2 tape, we conclude that
that decision did not amount to an abuse of discretion. The
tape was one hour and forty-five minutes long. Appellant
requested that it be played in its entirety. When the court
denied that request, it did not preclude appellant from
reading or playing pertinent portions, and indeed the
government, in stating its objection, invited the witnesses
to read ‘‘particular’’ parts of the transcript of the tape.
A-32
See Bunn y. Caterpillar Tractor Co., supra, 415 F.Supp. at
291. Appellant has made no showing that this more selec-
tive and less time-consuming approach would have been
inadequate for her purposes.
Also, West testified freely and at length about his post-
arrest interviews with appellant. Lifton likewise had full
opportunity to describe what he had learned by listening to
the tapes of those interviews. Further, as the district court
expressly noted, both men were articulate, expressive and
fully capable of commyp,icating to the jury the bases for
their opinions, including the substance of the October 2
interview. In an analogous situation, the Supreme Court
upheld » district court’s decision to exclude certain material
as cumulative when the same material was treated in the
testimony of the defendant’s expert witnesses. Hamling v.
United States, supra, 418 U.S. at 125-27, 94 S.Ct. 2887.
Although reaffirming that a defendant ‘‘is entitled to an
opportunity to adduce relevant, competent evidence bearing
on the issues to be tried,’’ id. at 125, 94 S.Ct. at 2911-12,
the Court found no abuse of discretion in light of the prin-
ciple that the ‘‘ District Court retains considerable latitude
even with admittedly relevant evidence in rejecting that
which is cumulative ....’’ Jd. at 127, 94 S.Ct. at 1912 (em-
phasis added). We likewise conclude that the district court
in this case acted within the bounds of its broad discretion
when it excluded the October 2 tape.™*
14 Appellant also challenges the district court’s decision to ex-
clude the October 2 tape on the ground that the court did not listen
to the tape or read the transcript before ruling. While we believe
that the better practice is for the district court to examine proffered
evidence before ruling on its admissibility, the circumstances in-
volved here render the district court’s approach unobjectionable.
The court was made aware of the general content of the West-
appellant interviews by West’s testimony regarding them during
the trial. More significantly, prior to making his pretrial ruling
that appelant was competent to stand trial, the district judge read
West’s report, which he characterized as ‘‘voluminous in detail’’
and as repeating ‘‘in lengthy detail the defendant’s account’’ of
- ” ik + tine tt
A-33
V. Exctiusion or Psycuourneuist Testimony
As part of its effort to rebut appellant’s defense that her
co-participants compelled her to engage in the bank rob-
bery, the government introduced certain pre-arrest tape
recordings carrying appellant’s voice and certain pre-arrest
manuscripts which she wrote. The essence of the message
in those communiques was that she acted voluntarily in
robbing the bank. During her trial testimony, appellate
asserted that she had not authored the communiques spoken
or written by her, that they were authorized by certain of
her captors, and that she spoke or wrote them under coer-
cion and not voluntarily.
Appellant then attempted to have a psycholinguist, Dr.
Margaret Singer, testify that appellant did not author the
communiques. The district court, after characterizing
Singer as ‘‘an eminently qualified clinical psychologist’’
and a ‘‘recognized expert’’ in psycholinguistics, United
States v. Hearst, 412 F.Supp. 893, 894 (N.D.Cal.1976),
refused to permit her to testify. The judge articulated
three grounds upon which he exercised his discretion. First,
the court indicated that the use of psycholinguisties for
authorship attribution had not yet ‘‘achieved such general
acceptance among psychological and scientific authorities
as to justify courts of law in admitting expert testimony on
this subject.’’ Jd. at 895. Second, the relevancy of evidence
on the issue of authorship was minimal. In the district
court’s words:
The issue with respect to these writings or tape re-
cordings is the defendant’s state of mind at the time
she wrote or uttered the words used. Whether or not
her experiences. United States v. Hearst, 412 F.Supp. 858, 861,
862 (N.D. Cal. 1975). (West, pursuant to court appointment, con-
ducted the October 2 and other post-arrest interviews to determine
appellant’s competency.) This familiarity with the substance of
pe October 2 interview provided an adequate basis for the court’s
ruling.
A-34
the defendant herself authored or composed the sen-
tences chosen to express the ideas conveyed in the
writings is immaterial to the issue of whether she sub-
scribed to these ideas—that is, whether she meant
what she said.
Id. (emphasis in original). Third, ‘‘the significance of
[Singer’s proposed] testimony did not warrant the inordi-
nate consumption of time that would have been necessi-
tated’’ by that testimony and any rebuttal testimony. /d.
Without passing on the district court’s first ground for
its ruling, and assuming the evidence was relevant, we pass
to the third stated ground for refusing the testimony. As
noted in part IV, supra, the district court has broad disere-
tion to exclude even relevant eivdence if ‘‘its probative
value is substantially outweighed . .. by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.’’ Fed.R.Evid. 403. Here a variety of
considerations support the district court’s ruling. First,
that appellant did not author the communiques was not a
contested fact. Both appellant and Lifton testified that she
was not the author, and the testimony of Dr. Kozol, one of
the government’s expert witnesses, supported rather than
contradicted this contention.** Second, although evidence
of nonauthorship may have been relevant to the ultimate
issue of voluntary endorsement, the probative value of such
evidence was relatively light..6 In the balancing process
15 Appellant argues that both Kozol in his testimony and the
prosecutor in his closing argument attributed authorship of the
communiques to her. This contention is not supported by the
record. Kozol opined and the prosecutor argued that appellant
voluntarily adopted and endorsed the message of the communiques.
Kozol further suggested that appellant supplied some of the in-
formation used in one of the communiques. But neither Kozol nor
the prosecutor ever stated to the jury that appellant was the author.
16 Tn an effort to enhance the probative value of Singer’s pro-
posed testimony, appellant argues to us that Singer’s expertise
would have permitted her to testify regarding not only authorship
but also appellant's intent in voicing or writing the various com-
Mn 6
A-35
required by Rule 403, the considerations of delay and need-
less cumulation appear substantially more weighty than
the probative value of nonauthorship, an undisputed fact.
Third, appellant had no independent right to introduce
Singer’s testimony to corroborate her own story regarding
nonauthorship. As already noted, the government never
contested her asserted nonauthorship. Singer’s corrobora-
tive testimony, therefore, was not allowable as such. We
conclude that the district court did not abuse its discretion
in excluding the testimony of Singer.
VI. Uturimare Issve Testimony
As her final argument, appellant contends that the dis-
trict court erred in permitting the government’s experts to
express their opinions on the ‘‘ultimate issues’’ of duress
and voluntariness. In response to a question from the
prosecutor, one expert, Dr. Fort, gave as his opinion that
appellant ‘‘did not perform the bank robbery because she
was in fear of her life. She did it as a voluntary member
of the SLA.’’ The other expert, Dr. Kozol, stated: ‘‘I think
she entered that bank voluntarily in order to participate in
the robbing of that bank. This was an act of her own free
will.’’
Fed.R.Evid. 704 states the law regarding expert opinion
testimony on ultimate issues. It provides:
Testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier
of fact.
muniques. This aspect of Singer’s testimony, however, was never
presented to the district court for its consideration in the baiancing
process. Indeed, when appellant first attempted to introduce
Singer’s testimony, appellant’s counsel stated, ‘‘We are not going
after intent at all, your authorship.’’ This new ground for admis-
sion, raised by the appellant for the first time on appeal, comes
too late.
A-36
(Emphasis added.) Appellant makes two arguments in an
effort to establish that Rule 704 does not reider Fort’s and
Kozol’s opinions admissible. First, she contends that those
opinions were not ‘‘otherwise admissible’’ within the mean-
ing of Rule 704 because Fort and Kozol were qualified to
testify only within the realm of their expertise, psychology
and psychiatry. She argues that because of the ultimate
issues of duress and voluntariness are ‘‘commonsense”’
concepts that combine ‘‘moral and empirical considerations
with a legal coneclusion,’’ the doctors’ testimony on those
issues went beyond their expertise and became merely state-
ments of ‘‘personal morality.”’
We find this argument without merit. The doctor’s disci-
pline is concerned with both the motives of human conduct
and the variety of behavioral responses to physical, emo-
tional and mental stimuli. Such matters were critical to
the defense raised by appellant. She conceded as much by
calling three expert witnesses and building her defense on
their testimony regarding the effects of the captors’ coer-
cion on her behavior and mental state. Once it is conceded
that experts in psychology and psychiatry can be of help
to a jury faced with a defense such as appellant raised,
we see no basis in this case for limiting their opinions
to subsidiary issues and prohibiting them from opining
whether appellant entered and robbed the bank voluntarily
or under duress.
Appellant constructs her second argument regarding the
applicability of Rule 704 on a portion of the Advisory
Committee’s note on that rule:
The abolition of the ultimate issue rule does not
lower the bars so as to admit all opinions. .. . [Rules
403, 701, and 702] also stand ready to exclude opinions
phrased in terms of inadequately explored legal cri-
teria. Thus the question, ‘‘ Did T have capacity to make
a will?’’ would be excluded, while the question, ‘‘ Did
A-37
T have sufficient mental capacity to know the nature
and extent of his property and the natural objects of
his bounty and to formulate a rational scheme of dis-
tribution?’’ would be allowed.
Appellant contends that the question, ‘‘Did appellant vol-
untarily rob the bank?’’ is legally and conceptually identi-
cal to the question, ‘‘ Did T have capacity to make a will?’’
thus requiring exclusion of the question and the opinion it
elicited.
We disagree. The Advisory Committee’s phrase ‘‘inade-
quately explored legal criteria’’ refers to terminology, the
meaning of which is not reasonably clear to laymen. The
term ‘‘capacity to make a will’’ is an example of that type
of terminology because the average layman would not know
that it encompasses the ability, first, to know the nature and
extent of one’s property, second, to identify the natural
objects of one’s bounty, and third, to formulate a rational
plan of distribution. The terms ‘‘voluntarily rob a bank’’
or ‘‘act under fear of death or grave bodily harm”’ do not
suffer from the same disability. The average layman would
understand those terms and ascribe to them essentially the
same meaning intended by the expert witness. Rejecting
all of appellant’s arguments on this issue, we conclude that
the opinions of Kozol and Fort were properly admitted
under Fed.R.Evid. 704.
We are reinforced in this conclusion by our review of
the testimony of appellant’s expert witnesses. They repeat-
edly made statements on and references to the ‘‘ultimate
issues’’ of coercion, duress and voluntariness. In their
testimony on direct examination, for example, they stated
that she ‘‘was coerced into doing’’ the bank robbery and
that ‘‘she complied with everything they [her captors] told
her to do.’’ Significantly, this testimony came after the
government objected to it on the ground that such opinion
testimony regarding coercion would usurp the jury’s func-
2 ee aoe
A-38
tion. Appellant succeeded in having those objections over-
ruled. The Kozol and Fort opinions elicited by the govern-
ment were no more than responsive to the testimony of
appellant’s experts. Cf. McCormick on Evidence § 97, at
p. 132-33 (2d ed. Cleary 1972); Teague v. United States,
268 F.2d 925, 927 (9th Cir. 1959); Meyers v. United States,
147 F.2d 663, 667 (9th Cir. 1945).”"
Five days after sentencing, appellant filed a motion for
new trial based on newly discovered evidence. The district
court denied the motion. United States v. Hearst, 424 F.
Supp. 307 (N.D.Cal.1976). More than a month later appel-
lant filed a motion to reconsider, calling the court’s atten-
tion to the recent case of United States vy. McCrane, 547
F.2d 204 (3d Cir. 1976). The district court rejected the
motion to reconsider as not timely filed and, in any event,
as without merit. United States v. Hearst, 435 F.Supp. 29
(N.D.Cal.1977). This ruling is the subject of appellant’s
second appeal, No. 77-1759.
We agree with the district court that the motion was both
untimely and without merit for the reasons stated in the
district court’s opinion. On the merits, appellant’s request
for Brady material was clearly a general one, see 435 F.
Supp. at 30-31, and, as the district court held, see 424 F.
Supp. at 312-14, the omitted evidence was not ‘‘obviously
exculpatory,’’ United States v. Agurs, 427 U.S. 97, 107,
96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and did not create a
reasonable doubfpgs to appellayhie guilt. /d. at 112, 96
S.Ct. 2392. »
Affirmed.
17 Appellant argues that the Kozol and Fort opinions are distin-
guishable from the opinions of her experts on the issues of duress
and coercion because the former exceeded the bounds of the wit-
nesses’ expertise while the latter did not. Thus, appellant contends,
the Kozol and Fort opinions were far more than a fair response
to the testimony of appellant’s experts. We have already concluded,
however, that the Kozol and Fort opinions, questions of parity
aside, were properly admitted.
A-39
TO BE PUBLISHED
United States Court of Appeals
For the Ninth Circuit
No. 76-3162
No. 77-1759
UnIrTED STATES OF AMERICA,
Plaintiff-Appellee,
v.
Patricia CAMPBELL Hgarst,
Defendant-Appellant.
ORDER
Before: Brownine, Trask, and Wattace, Circuit Judges
The panel as constituted in the above case has voted to
reject the suggestion for a rehearing in bane with the
following comment. Relying on United States v. Modern
Reed & Rattan Co., 159 F.2d 656, 658 (2d Cir. 1947), appel-
lant argues she was prejudiced by the admission in the
government’s case-in-chief of the evidence of criminal
acts in Los Angeles because the premature introduction
of this evidence forced her to take the stand and thus de-
prived her of freedom of choice in framing her defense.
In Modern Reed & Rattan Co., the government introduced
evidence of prior convictions in its case-in-chief and argued
the error was cured because the defendant later took the
stand and the evidence became relevant for impeachment.
The court rejected the argument, pointing out that but for
the error the defendant might not have taken the stand
and put his character in issue. In the present case, however,
appellant was not prejudiced by the order of proof. The
evidence of the Los Angeles events went not to impeach-
ment but to the issue of duress, a defense appellant had
A-40
announced her intention to offer. She could not have avoided
introduction of the evidence of the Los Angeles events
simply by refraining from testifying, but only by aban-
doning her sole defense. Ske took the stand to support her
defense, not to respond to a premature attack upon her
credibility See United States v. Rosse, 418 F.2d 38, 42
(2d Cir. 1969).
The full court has been advised of the suggestion for
in bane rehearing, and no judge of the court has requested
a vote on the suggestion for rehearing in bane. Fed. R.
App. P. 35(b).
The petition for rehearing in banc is rejected.
=
B-1
ADDENDUM B
STATUTES INVOLVED
Artroie IV
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or af-
firmation, and particularly describing the place to be
searched, and the persons or things to be seized.
ARTICLE V
No person shall be held to answer for a capital, or other-
wise infpmous crime, unless on a presentment or indict-
ment of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in
the time of War or public danger; nor shall any person
he subject for the same offense to be twice put in jeopardy
of life or limb, nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life,
liberty or property, without due process of law; nor shall
private property be taken for public use without just
compensation.
ArTICoLe VI
In all criminal prosecutions, the a®cused shall enjoy the
right to a speedy and public trial, by an impartial jury
of the State and district wherein the crime shal! have been
committed; which district shall have been previously as-
certained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnes-
ses against him; to have compulsory process for obtaining
Witnesses in his favor, and to have the Assistance of
Counsel for his defense.
B-2
RULE 402
RELEVANT Evipexce GENERALLY ADMISSIBLE;
IRRELEVANT EvipENCE INADMISSIBLE
All relevant evidence is admissible, except as otherwise
provided by the “‘onstitution of the United States, by
Act of Congress, by these rules, or by other rules preseribed
by the Supreme Court pursuant to statutory authority.
Evidence which is not relevant is not admissible.
RULE 403
Exciusion oF RELEVANT EvipeNnce On Grounpbs
OF PREJUDICE, ConFUSION, OR Waste oF TIME
Although relevant, evidence may be excluded if its pro-
bative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
RULE 404
CHARACTER Evipence Nor ApMIssIBLE To Prove
Conpuct; Excrprions; OTHER CRIMES
(a) Character evidence generaily. Evidence of a per-
son’s character or a trait of his character is not admissible
for the purpose of proving that he acted in conformity
therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent
trait of his character offered by an accused, or by
the prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent
trait of character of the victim of the crime offered
by an accused, or by the prosecution to rebut the same,
or evidence of a character trait of peacefulness of the
B-3
victim offered by the prosecution in a homicide case
to rebut evidence that the victim was the first ag-
gressor;
(3) Character of witness. Evidence of the character
of a witness, as provided in rules 607, 608, and 609.
(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, in-
tent, preparation, plan, knowledge, identity, or absence
of mistake or accident.
RULE 611
Mop aND OrpeErR oF INTERROGATION AND PRESENTATION
(b) Scope of cross-examination. Cross-examination
should be limited to the subject matter of the direct exam-
ination and matters affecting the credibility of the witness.
The court may, in the exercise of discretion, permit in-
quiry into additional matters as if on direct examination.
RULE 901
REQUIREMENT oF AUTHENTICATION OR IDENTIFICATION
(b) Illustrations. By way of illustration only, and not
by way of limitation, the following are examples of auth-
entication or identification conforming with the requirement
of this rule:
(3) Comparison by trier or expert witness. Com-
parison by the trier of fact or by expert witnesses
with specimens which have been authenticated.
(4) Distinctive characteristics and the like. Ap-
pearance, contents, substance, internal patterns, or
other distinctive characteristics, taken in conjunction
with circumstances.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.