Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Alden

decided: March 30, 1973.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CHARLES ALDEN, A/K/A CHARLES ALDEN BOYD, DEFENDANT-APPELLANT



Swygert, Chief Judge, Hastings, Senior Circuit Judge, and Pell, Circuit Judge.

Author: Pell

PELL, Circuit Judge.

Alden appeals from his conviction on all three counts of an indictment founded on 18 U.S.C. ยง 2113(a) and (d). There was no dispute about the factual basis of the indictment. On June 5, 1970, Alden, then in his late sixties, handed a teller in the South Chicago Savings Bank a note demanding money and referring to a back-up man elsewhere in the bank. He departed with $9500.00 in a paper bag. On November 6, 1970, at the same bank, Alden presented a similar note to a different teller located near the scene of the first incident. He departed without any money. On November 12, 1970, he again appeared at the same bank with a similar note which was presented to a third teller also in the same general area of the bank. He departed hastily without his note being honored. He was apprehended outside the bank. During the course thereof, using a toy pistol, Alden squirted a window washing fluid containing ammonia into the face of a bank employee. The only apparent attempt Alden made to disguise his appearance at any time was the wearing of a gauze patch over one lens of his glasses during the third incident.

These basic facts were not controverted by Alden. His attempted defense, which was made clear in both opening statement and closing argument of his counsel, was that he lacked the requisite mental intent. The present appeal relates to the intervening period of time between these two oral articulations of the defense, as to which Alden contends that his continuing efforts to substantiate his defense were thwarted by an unfair trial. We agree and reverse.

By way of general support of a number of the challenged rulings precluding testimony in response to defense questions to witnesses, the Government attaches talismanic significance to the lack of offers to prove: "Failure to make an offer of proof precludes the reviewing court from passing upon the trial court's exclusion of evidence." It is true that reference has been made in the cases to this lack. The emphasis appears to be that the reviewing court without the benefit of the offer was unable to judge whether the exclusion was prejudicially erroneous. See, e.g., Trust Co. of Chicago v. Erie R. Co., 165 F.2d 806, 810 (7th Cir. 1948), cert. denied, 334 U.S. 845, 68 S. Ct. 1513, 92 L. Ed. 1769. The other side of this particular coin, however, is that "a formal offer of proof is not necessary where the record shows, either from the form of the question asked or otherwise, what the substance of the proposed evidence is." Iva Ikuko Toguri D'Aquino v. United States, 192 F.2d 338, 374 (9th Cir. 1951), cert. denied, 343 U.S. 935, 72 S. Ct. 772, 96 L. Ed. 1343 (1952). Trial counsel certainly would be well advised not to take the calculated risk of being rescued by this obviousness standard; however, in the present case we are compelled to the conclusion that in numerous instances there could not have been other than an awareness of that which would have been forthcoming from the witnesses if they had been permitted to answer. So long as substantial rights are affected, Rule 52(a), Fed.R.Crim.P., if "a question is proper on its face and indicates an answer favorable to the appellant, no offer of proof is necessary." Harris v. Smith, 372 F.2d 806, 815 (8th Cir. 1967). Of course, there should be a showing of relevancy and materiality. Here the expected answers clearly could have had an impact on "substantial rights" since they pertained to the essence of what was admittedly Alden's only defense. We also note that frequently the objections to questions were nonexplicit and counsel's attempts to discover the basis of the ruling or to argue law were summarily cut off by the district court.

Turning to the specifics of the defense effort, we first are concerned with the proposed testimony of two psychiatrists brought to the stand by Alden. Dr. David A. Rothstein had examined the defendant on January 11, 1971. Upon learning of this, the Government moved for a psychiatric examination which was ordered and was thereafter conducted by Dr. Richard Marohn on January 18 and 23, 1971. Copies of their respective findings were tendered both to the prosecution and to the defense.

Both psychiatrists were called as witnesses by Alden but for all practical purposes they might as well have stayed at their offices. The opportunity that Alden had of demonstrating whether or not there was verity to his defense of mental incompetency is illustrated more graphically by extracts from the record than it would be by our characterizations thereof.

Thus, the following is set forth from the transcript of Dr. Rothstein's appearance on the witness stand:

BY MR. TOOMIN:

Q Doctor, based on the examination that you made on the date in question, what, if any, diagnosis were you able to make?

A My diagnosis --

MR. WILLIAMS: Objection at this time for the record, your Honor, for failure to see any relevancy to the dates of the offenses.

THE COURT: I sustain the objection.

MR. TOOMIN: Your Honor, do I understand that the objection --

THE COURT: I am not here to answer questions. You asked the question and if the United States Attorney wants to object, he may. It is my responsibility to rule on the objections.

BY MR. TOOMIN:

Q Doctor, based on the examination that you made on January 11, 1971, were you able to arrive at any diagnosis, if any, as to the defendant's condition on June 5, 1970?

MR. WILLIAMS: Objection at this time, your Honor.

THE COURT: I sustain the objection.

BY MR. TOOMIN:

Q Doctor, as a result of your examination of the defendant on January 11, 1971, were you able to reach a diagnosis based on a reasonable degree of medical certainty as to the defendant's mental condition on June 5, 1970, on which date he is accused of robbing the South Chicago Bank?

MR. WILLIAMS: Objection.

THE COURT: I sustain the objection.

BY MR. TOOMIN:

Q Doctor, did you make any clinical observations of the defendant during the course of the examination?

MR. WILLIAMS: Objection, your Honor.

THE COURT: I sustain the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.