text:
    UNITED STATES of America v. Leonard T. ROBINSON, Appellant. UNITED STATES of America v. James E. McCAFFITY, Appellant. UNITED STATES of America v. Louis JOHNSON, Appellant.
    Nos. 24809-24811.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 22, 1971.
    Decided March 7, 1973.

      Louis P. Robbins, Washington, D. C., with whom Nathan H. Wasser, Washington, D. C. (both appointed by this Court) was on the brief, for appellant.
    Julius A. Johnson, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.
    Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.
   LEVENTHAL, Circuit Judge:

Appellants were found guilty of second-degree murder, submitted under a revised indictment as a lesser included offense to a felony-murder charge, and of armed robbery. This appeal, from judgments sentencing each appellant to concurrent terms of six to twenty years' imprisonment, raises questions as to (1) the trial judge’s refusal to permit the veniremen’s attitudes toward self-defense to be explored on voir dire; (2) the court’s instructions as to (a) aiding and abetting, (b) lesser included homicide offenses, and (c) evidence of flight; and (3) the court’s refusal to require amendment of the robbery count to set forth the requisite intent. Finding no prejudicial error, we affirm.

I. BACKGROUND

This case arose from the shooting of, and taking money from, one Alvin Robinson (hereinafter the deceased). The highlights of the prosecution and defense cases will suffice.

1. The Government’s case.

Appellants, all residents of Baltimore, came to Washington on Sunday afternoon, February 8, 1970. They had previously been unacquainted with the decedent and met him under entirely innocent circumstances in the company of mutual friends, seven women from New York. An impromptu party developed at a house on Blaine Street. The appellants, the deceased, his girl friend Catherine Gross, and others spent a convivial evening together in casual conversation, drinking and dancing.

In jovial spirits, deceased boastfully flashed a large roll of money (“teasing the girls”), with at least a couple of hundred dollar bills. The roll bulged noticeably in his trousers pocket. Mc-Caffity may have had an opportunity to see the money at close range when he and the deceased left to buy something to drink.

Appellant Johnson remarked to Rhetta Wright, “You see this fellow over there? .... He has a roll and I’m going to get it.” But he pointed to a group of men and she could not swear the statement referred to the decedent. McCaffity asked for and received the decedent’s home address and telephone number.

Toward midnight, Miss Gross felt decedent was “kind of high” and they should leave. William T. McDowell, Jr., an off-duty D.C. policeman and friend of the decedent, offered to drive them home. McCaffity asked for directions to the Baltimore-Washington Parkway, and McDowell said that he would show him the way.

Three cars left the Blaine Street house. Deceased and Miss Gross were in the first car, driven by McDowell. In the second auto were appellant McCaffity and Miss Wright. In the third were appellants Robinson and Johnson. After McDowell led the appellants to the entrance ramp and waved them on to the Parkway, he drove to the deceased’s home on Jay Street, and escorted deceased and Miss Gross inside. Leaving the house, he was surprised to see appellants’ cars parked outside. McCaffity told McDowell that they had decided to take Miss Wright to her sister’s home on Spring Place and got lost. McDowell gave appellants directions to that address and returned to Blaine Street.

Appellants then drove Miss Wright to the Spring Place home; on letting her off, they announced they were returning to Baltimore; instead they drove back to decedent’s home on Jay Street.

Miss Gross testified that after Officer McDowell dropped them off, she helped the deceased remove his trousers (containing the money), placed them on the living room sofa and took deceased to an upstairs bedroom where deceased went to bed. Soon after, she heard a persistent knock at the front door. She opened it, and the three appellants “pushed their way in.” At this point deceased, in his underwear, came downstairs, asked Miss Gross where his trousers were, and told her to go back upstairs. A few moments later, she heard him cry out for her to “Get the police!” She ran down the stairs toward the front door. In the vestibule, she was shoved to the floor by appellant Johnson, who ran out the door with deceased’s trousers. She looked up and saw appellants McCaffity and Robinson confronting the deceased. McCaffity was pointing a revolver at the decedent, unarmed, about six feet away. “[I]f you are not going to use the gun, I will.” Saying that, Robinson “took the pistol out of [McCaffity’s] hand” and shot deceased. Miss Gross ran across the street to the home of a neighbor and telephoned the police.

During their investigation, the police obtained a .32 calibre pistol from Mc-Caffity’s wife. Miss Gross testified it resembled the gun from which the fatal shot had been fired. McCaffity later admitted the weapon belonged to him.

Three days later, all three appellants were arrested at a motel in New York City. Robinson was carrying about $200 in cash, including a $100 bill.

2. The defense.

Each of the appellants took the stand. According to their version, which contradicted the account of the prosecution’s witnesses, deceased had boasted at the Blaine Street party of his abilities as a dice shooter and suggested they come to his home for a crap game after the party. When they arrived, he invited them in and, after sending Miss Gross upstairs picked up his trousers from the sofa. He said the other players would arrive shortly. Appellant Robinson began to “warm up” by rolling a pair of dice. Deceased accused him of using loaded dice. McCaffity stated that he observed deceased take a gun from-a desk in the next room, and put it in the pants pocket. The deceased then confronted McCaffity, reiterated his accusation, and, without provocation, struck him in the face. A struggle ensued. Fearing that deceased would use the pistol, and remembering having heard deceased say that he had once shot a woman, McCaffity grabbed the pants and ran for the door. He heard deceased shouting for Miss Gross to “Get the .45 [and] shoot the s. o. b.” He collided with Miss Gross on his way to the door, knocking her down, ran outside, and threw the trousers into his car. The fight between - Robinson and deceased continued, and Robinson fell against some furniture and was knocked unconscious.

Appellants testified that, prior to the Blaine Street party, McCaffity had removed the .32 calibre revolver from the glove compartment of his ear to avoid exciting the apprehensions of his lady passengers and had given it to Johnson, who carried it all day in the pocket of his trench coat. Johnson asserts that as the fight went on he ran outside, saw that McCaffity had already left the house, reasoned that Robinson must still be inside, and turned back toward the house. He saw the deceased by the front door, holding what he believed to be a gun in his hand, drew MeCaffity’s pistol from his pocket, fired a blind shot at the deceased, and ran to his car.

Robinson stated that, when he regained consciousness, he left the house. On his way out, he saw deceased lying face down, and six inches away a .38 calibre revolver, which he picked up as he ran to the car. He reassured Johnson that deceased was still moving, and was probably only shot in the leg.

Appellants drove back to Baltimore. McCaffity, who was alone in one car, testified he had no idea deceased had been shot until the next morning when Robinson and Johnson met him, returned his own pistol, and gave him the gun Robinson purportedly took from the deceased’s porch. He admitted discovering on his way home that the trousers he took from the deceased did not contain a pistol, but instead about a thousand dollars. He never told the others of this, and gave the money to his wife. Appellants were afraid to check out in Washington what happened to deceased and went to New York, where Miss Wright lived, to find out. Their testimony tended to account for the money in their possession at arrest.

II. ISSUES RAISED ON THIS APPEAL

A. Conduct of voir dire.

Appellants’ counsel submitted to the court a list of proposed questions to be put to veniremen during voir dire examination. The the trial court refused to include two questions, proposed by Mc-Caffity’s counsel, relating to self-defense.

Pursuant to Rule 24(a), Fed.R. Crim.P., the trial judge is vested with “broad discretion” in the conduct of voir dire — both as to the mode and manner of proceeding, United States v. Bryant, 153 U.S.App.D.C. 72, 471 F.2d 1040 (1972), cert. denied, 409 U.S. 1112, 93 S.Ct. 923, 34 L.Ed.2d 693 (1973), and as to the range of questions put to the prospective jurors, Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46,(1973); Grogan v. United States, 394 F.2d 287 (5th Cir., 1967), cert. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 100 (1968). The exercise of this discretion is “subject to the essential demands of fairness.” Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931); Brown v. United States, 119 U.S.App.D.C. 203, 338 F.2d 543 (1964); Sellers v. United States, 106 U.S.App.D.C. 209, 271 F.2d 475 (1959). But absent abuse of his broad discretion, and a showing that the rights of the accused have been substantially prejudiced thereby, the trial judge’s rulings as to the scope and content of voir dire will not be disturbed on appeal. Yarborough v. United States, 230 F.2d 56, 63 (4th Cir.), cert. denied, 351 U.S. 969, 76 S.Ct. 1034, 100 L.Ed. 1487 (1956); Haslam v. United States, 431 F.2d 362 (9th Cir., 1970), aff’d on rhg., 437 F.2d 955, cert. denied, 402 U.S. 976, 91 S.Ct. 1860, 29 L.Ed.2d 142 (1971).

In refusing to question jurors regarding self-defense, the District Judge stated, “I don’t want to inject any legal defenses into a case before the jury has heard any evidence.” The Government argues, in support of this ruling, that at this point of the case appellants’ defense was no more than a theory, and conceivably the evidence actually offered might not have sufficed to justify an instruction on self-defense. And, it might be argued, the suggestion of the issue on voir dire might lead the jury to speculate along impermissible lines during their deliberations and influence their perception of the evidence as it unfolds at trial.

This approach does not, on balance, commend itself to the court. If the issue is one on which jury attitudes should be probed on voir dire to assure a fair trial by an impartial jury, this strength of our system should not be scuttled merely because, on relatively infrequent occasions, a planned defense is unexpectedly foreclosed or abandoned. And the problem can be contained by accompanying the voir dire with a cautionary instruction explaining the purpose of the questioning and informing the jurors that the matters discussed are not in evidence and are not to be considered during their deliberations. This approach is fortified by the right of the defense counsel to present his approach to the jury before trial, in the opening statement.

Nevertheless, we do not discern prejudice to substantial rights from the denial of these questions. The defense must be given a full and fair opportunity to expose bias or prejudice on the part of the veniremen. Morford v. United States, 339 U.S. 258, 70 S.Ct. 586, 94 L.Ed. 815 (1950). The possibility of prejudice is real, and there is consequent need for a searching voir dire examination, in situations where, for example, the case carries racial overtones, or involves other matters concerning which either the local community or the population at large is commonly known to harbor strong feelings that may stop short of presumptive bias in law yet significantly skew deliberations in fact. In a case involving such sentiment, the trial court must take it into account and govern the voir dire accordingly. Still other forms of bias and distorting influence have become evident, through experience with juries, and have come to be recognized as a proper subject for the voir dire. An example is the problem that jurors tend to attach disproportionate weight to the testimony of police offieers. See Brown v. United States, supra; Sellers v. United States, supra.

When the matter sought to be explored on voir dire does not relate to one of those recognized classes, it is incumbent upon the proponent to lay a foundation for his question by showing that it is reasonably calculated to discover an actual and likely source of prejudice, rather than pursue a speculative will-o-the-wisp. The appellants made no such effort at the time the question wás submitted to the trial judge; nor did they present before this court any material tending to show that prejudice against a claim of self-defense was likely to be encountered in the community from which the veniremen were drawn. Absent such a showing, we find no prejudice to the rights of the accused.

The court’s instructions as to the law of self-defense were clear and complete. We have no basis for supposing that jurors might in any way be hestiant to abide by their instructions. The trial court’s conduct of voir dire presents no reversible error.

B. The Instruction as to Aiding and Abetting.

The instruction given on aiding and abetting was that generally used in this District and informed the jury that the two non-shooting defendants should not be found guilty unless their individual participation in the offense was found.

Appellants now argue that the charge was inadequate in the setting of this case. They say that the evidence only showed complicity in the robbery, and when the jury acquitted of felony-murder they necessarily found the homicide did not take place during the commission of the robbery. The jury should have been instructed, say appellants, that in making such a determination they should acquit unless the Government proved aiding and abetting in the homicide as a specific crime, separate and apart from the robbery.

The issue cannot be addressed, as appellants’ counsel do, solely in terms of logic. The only evidence linking the non-shooters to the homicide was that which linked them to the robbery. Yet all three defendants requested that the issue of second degree murder be put to the jury as a lesser included offense of felony-murder. Although the rationale of lesser included offenses is a developing one, its application to the homicide offenses was thoroughly explored in Fuller v. United States and requires no further elaboration. Under Fuller, the appellants were entitled to their motion that the jury be instructed to consider second degree murder as a lesser included offense, and the trial court acted properly in acceding to their request.

We need not now concern ourselves with a question of prejudice that might arise in a case where defendant resisted a lesser-included offense instruction as incompatible with the evidence. Certainly the evidence adduced at trial was sufficient to support a second-degree verdict, as appears from the so-called “Sheriff Road Robbery cases.” There five men stole a car and parked it next to a store near closing time. When the owner and his wife left their store, three of the defendants left the car and confronted them, one grabbing the wife’s purse. At this point another defendant, carrying a pistol, became involved in a scuffle with the store owners; the pistol discharged, fatally wounding the store proprietor. The jury acquitted of felony-murder, but convicted of robbery and second degree murder. This court held that the non-shooting accomplices could properly be convicted of second degree murder, observing “The jury could reasonably regard the shooting as incidental to the common design of robbery.”

As to appellants’ contention that the acquittal of felony-murder necessarily and logically establishes that the robbery and the homicide were severable events, so that complicity in the robbery could not support responsibility for the homicide, we must advert not only to the precedent just discussed, but to the rule that requires affirmance of a conviction of a charge supported by the evidence even where that is logically inconsistent with the same jury’s acquittal of another charge. E. g., Dunn v, United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); United States v. Fox, 140 U.S.App.D.C. 129, 433 F.2d 1235 (1970), and cases cited therein at n. 21. The jury may have merely exercised a clemency that is its prerogative without regard to logic. Appeal to such clemency may, indeed, well have accounted for the request by each defendant for an instruction that the jury was entitled to bring in a verdict of second degree murder as a lesser included offense. The trial judge’s instruction on aiding and abetting was in accord with precedent, and stressed the core element of the need to apply the principles of aiding and abetting separately as to each defendant and each offense. We discern no reversible error.

C. The Flight Instruction.

The trial court instructed the jury, in part, “Flight or running away does not prove guilt . . (Tr. VII: 216). Appellants protest the failure to give their requested instruction, which used the phrase, “Flight or concealment by the defendants does not create a presumption that they are guilty of any crime.” The wording used by the trial judge was readily, perhaps more readily, understood by laymen. Even when the court’s statement is considered on its face and wrenched out of context, this semantic distinction produced no practical or discernible difference in impact that could reasonably be expected to affect the minds of the jurors.

Considering the language complained of in the context in which it was used, it is even more apparent that the appellants’ claim of error — let alone prejudice —borders on the frivolous. The lack of prejudice is even more clear when the instruction is taken as a whole. It adequately explains the conflicting motives that may lead an innocent man to flight, and highlights the danger of drawing an adverse inference from such evidence. We find it entirely consonant with the guidelines of Austin v. United States, 134 U.S.App.D.C. 259, 414 F.2d 1155 (1969).

As we have recently noted, evidence of flight tends to be only marginally probative as to the ultimate issue of guilt or innocence. The interest of justice is perhaps best served if this matter is reserved for counsel’s argument, with little if any comment by the bench.

All of this evidence was properly before the jury, and much of it came in the form of testimony by the appellants themselves. Here, the appellants’ testimony explained why they went to New York, pointed out that they not only gave their names and addresses at the hotel, but actively put their identity forward in an effort to obtain compensation for a collision sustained en route. Both counsel in summation explored at length the various inferences that might be drawn from this evidence.

D. The Robbery Indictment.

The robbery counts tracked the statutory language describing the offense but did not expressly allege a specific intent on the part of the appellants to steal the property in question. Specific intent to steal is, of course, a material element necessary to constitute the offense of robbery. See (F. H.) Jackson v. United States, 121 U.S.App.D.C. 160, 348 F.2d 772 (1965).

When trial began, appellants filed a “Motion to Clarify Indictment,” requesting that the trial court amend the robbery count by adding “with specific intent at the time of the taking to wrongfully convert the $1,000.00 of [the decedent] to their own use.” The trial court denied this motion as not timely filed, and the appellants argue that to do so amounted to prejudicial error.

In both (F. H.) Jackson, supra, and Austin v. United States, supra, indictments identical in form to the present one were held legally sufficient, albeit in a form that “leaves much to be desired both in completeness and in clarity.” The wording was held sufficient to charge the offense of robbery and give adequate notice of the charge defendant was held to answer.

Appellants complain that the jury was permitted to take the indictment into the jury room, and rely upon (F. H.) Jackson v. United States, in which we adverted, in reversal, to the possibility of jury reference to an indictment drafted in this manner. But Jackson was based on the failure of the trial court to apprise the jury in any manner of the necessity to find an intent to steal. In Austin, where specific intent had been amply covered in the trial court’s instructions, we distinguished Jackson and affirmed.

Here, as in Austin, clear, detailed and thorough instructions amply impressed upon the jury that, in order properly to convict of robbery, a specific intent to steal the property in question must be found.

This disposition makes it unnecessary to discuss precedents on the issue of whether, and when, courts may permit indictments to be amended.

While we affirm, for the reasons stated, we urge that pertinent indictment forms be promptly updated and refined, and toward that end are directing the Clerk to bring this opinion to the personal attention of the United States Attorney.

The appellants’ convictions are supported by the evidence and not impaired by prejudicial error, and are accordingly

Affirmed.

      . The indictment charged : count 1 — first degree, felony murder (D.C.Code § 22-2401) ; count 2 — second degree murder (D.C.Code § 22-2403) ; count 3 — armed robbery (D.C.Code § 22-3202) ; count 4 — robbery (D.C.Code § 22-2901). Prior to submission to the jury, the indictment was retyped to omit count 2. See note 14, infra, and accompanying text. Count 5, which charged Robinson, individually with carrying a concealed weapon (D.C. Code § 22-3204) was dismissed on the Government’s motion at the close of the prosecution’s case in chief.

      . Oral argument was heard on October 22, 1971. A sua sponte order was issued on November 29, 1971, holding this case in abeyance pending en bamo decisions in United States v. Heinlein, No. 23,226; United States v. Walker, No. 23,227; and United States v. Walker, No. 23,228. Subsequent reflection convinced us that the questions raised in the instructions as to aiding and abetting in the context of a felony-murder conviction present an issue distinct from that raised in HeinleinWallcer. On September 13, 1972, we vacated our order of November 29, 1971.

      . Use of the term “deceased” or “decedent” for Alvin Robinson will avoid confusion with appellant Leonard T. Robinson.

      . McDowell was accompanied by a Miss Kennedo.

      . Mrs. McCaffity also surrendered a .38 calibre pistol. The Government’s evidence did not connect the .38 with the crime. But appellant Robinson testified he had found it lying next to the body of deceased and had given it to McCaffity the morning after the shooting.

      . The slug removed from the body of the decedent was too mutilated to permit positive identification by microscope comparison, but in all gross physical characteristics it was like the five live cartridges found in MeCaffity’s .32 pistol. It could not have been fired from a .38 calibre weapon.

      . The proposed questions were (R. at 16) :
      Do any members of the prospective jury panel feel that self-defense does not justify the wilful taking of a human life? Do any members of the prospective jury panel feel that they would be unable to follow the Court’s instructions on self-defense because of their personal views on the subject?
      Possible objections going to the form of the questions were not the basis of the trial judge’s ruling, nor were they raised on this appeal.

      . Aldridge v. United States, supra; King v. United States, 124 U.S.App.D.C. 138, 362 F.2d 968 (1966).
      In Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46, the Supreme Court recently noted the special constitutional status of voir dire questions designed to ferret out racial bias. Reversing the petitioner’s conviction, the Court held refusal to permit interrogation on the specific issue of racial bias violated the accused’s Fourteenth Amendment rights to due process. It went on to uphold, however, the trial court’s exclusion of questions concerning possible prejudice against persons who wore beards, as did the accused. In explicating this distinction, the Court stated:
      While we cannot say that prejudice against people with beards might not have been harbored by one or more of the potential jurors in this case, this is the beginning and not the end of the inquiry as to whether the Fourteenth Amendment required the trial judge to interrogate the prospective jurors about such possible prejudice. Given the traditionally broad discretion accorded to the trial judge in conducting voir dire and our inability to constitutionally distinguish possible prejudice against beards from a host of other possible similar prejudices, we do not believe the petitioner’s constitutional rights were violated when the trial judge refused to put this question.
      409 U.S. 524, 527, 93 S.Ct. 848, 851, 35 L.Ed.2d 46 (citation omitted, emphasis supplied).

      . These would, for example, include prejudice against: wagering, Lurding v. United States, 179 F.2d 419 (6th Cir., 1950); see United States v. Clancy, 276 F.2d 617, 632 (7th Cir., 1960), rev’d on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961); the use of intoxicants, State v. Miller, 60 Idaho 79, 88 P.2d 526 (1939); see Gonzales v. State, 169 Tex.Cr.R. 49, 331 S.W.2d 748 (1960); one who intends to testify that he had lied to another, United States v. Napoleone, 349 F.2d 350 (3d Cir. 1965); a member of a religious minority, United States v. Daily, 139 F.2d 7 (7th Cir., 1943).

      . Indeed, the pioneering social research into the ethos and behavior of jurors shows that, in many situations, the typical jury take a rather charitable view toward a plea of self-defense, tending to interpret the evidence adduced in a manner distinctly favorable to the accused. H. Kalven & H. Zeisel, The American Jury, 221-241, 407-408 (1966).

      . Although voir dire as to self-defense was referred to as a defense right in Webb v. Commonwealth, 314 S.W.2d 543 (Ky., 1958), the setting was one of patricide, which obviously makes a profound difference in terms of jury sentiment. Also, the court reversed a manslaughter conviction for erroneous admission of evidence, and the opinion identified its statements as to voir dire as dictum.

      . In all other respects, the trial judge’s questions to discover possible prejudice on the part of the veniremen were thorough and searching. Thus, for example, the court inquired whether any of the prospective jurors or any of their close relatives had ever been victims of violent crime, whether any of them worked in an establishment that had been robbed, and whether any of them would be prejudiced against an individual merely because he had been shown to have owned or carried fire arms (Tr. A-1: 20-79).

      . District of Columbia Bar Ass’n, Young Lawyer’s Section, Criminal Jury Instructions for the District of Columbia, Instruction 4.02 at 82 (2d ed., 1972). See id., Instruction 47 at 27 (1st ed., 1966).

      . (Leon) Jackson v. United States, 114 U.S.App.D.C. 181, 313 F.2d 572 (1962); Kitchen v. United States, 95 U.S.App.D.C. 277, 221 F.2d 832 (1955); cert. denied, 357 U.S. 928, 78 S.Ct. 1378, 2 L.Ed.2d 1374 (1958). See Fuller v. United States, 132 U.S.App.D.C. 264, 294, 407 F.2d 1199, 1229 (1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969).

      . Compare (Wm.) Coleman v. United States, 111 U.S.App.D.C. 210, 295 F.2d 555 (1961) (en banc), cert. denied, 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613 (1962), with United States v. Huff, 143 U.S.App.D.C. 163, 442 F.2d 885 (1971) and United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314 (1971).

      . 132 U.S.App.D.C. 264, 407 F.2d 1199 (1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969).

      . Compare Green v. United States, 95 U.S.App.D.C. 45, 218 F.2d 856 (1955); (Wm.) Coleman v. United States, supra. Nor need we concern ourselves at this juncture with the vitality of Coleman in the light of Fuller (en banc) and other-subsequent decisions, see fn. 15, supra.

      . (Leon) Jackson, (Chas.) Coleman, Tatum & Dykes v. United States, reported seriatim, at 114 U.S.App.D.C. 181-189, 313 F.2d 572-580 (1962).

      . (Chas.) Coleman v. United States, id. at 187, 313 F.2d at 578.
      Although the evidence submitted is the gauge against which the propriety of lesser included offense instructions must be measured, United States v. Comer, 137 U.S.App.D.C. 214, 218, 421 F.2d 1149, 1153 (1970), the quantum of proof needed to justify giving the instruction is but slight, Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896); United States v. Huff, 143 U.S.App.D.C. 163, 442 F.2d 885 (1971). In addition,
      [t] he jury is not confined in its findings to matters that are directly set forth in testimony but may base an inference of lesser offense on a “reconstruction that is fairly inferable” from the evidence, gleaned perhaps by putting together some items from one witness, some from another, and some from the jury’s own experience and sense of probabilities. Id. at 168, 442 F.2d at 890,
      quoting Belton v. United States, 127 U.S.App.D.C. 201, 207, 382 F.2d 150, 156 (1967).

      . See United States v. Lumpkin, 145 U.S.App.D.C. 162, 167, 448 F.2d 1085, 1090 (1971) and cases therein cited.

      . When two or more persons are alleged to be involved in the commission of a crime, there are certain principles of law which should apply and which you should keep in mind in determining the guilt in innocence of each of the particular defendants on trial before you. (Tr. VII: 197-98)
      Now, these instructions that I have just given you as to aiding and abetting and acting in concert apply to each and every one of the counts in this indictment which you are going to consider, and you should keep the principles of aiding and abetting in your minds as you consider each individual count. (Tr. VII: 199)
      The impact of these instructions was heightened by the trial court’s charge as to the manner of deliberation:
      You should give separate consideration and render separate verdicts with respect to each defendant as to each count. Each defendant is entitled to have his guilt or innocence as to each of the crimes charged determined from the evidence which applies to him as if he were being tried alone. (Tr. VII: 220-21)

      . See United States v. Honesty, 148 U.S.App.D.C. 255, 459 F.2d 1279 (1971); Miller v. United States, 116 U.S.App.D.C. 45, 51, 320 F.2d 767, 773 (1963) (Bazelon, J., concurring); Criminal Jury Instructions, supra note 13, Instruction 2.44 at 48 (2d ed., 1972).

      . We dismiss out of hand appellants’ suggestion that by instructing the jury that “flight does not prove guilt” the trial court thereby invited them to treat flight as a presumption of guilt (see Br. at 18). Such an argument stands both language and logic on its head and can only be supported by carrying the expressio unius principle to the nth degree.

      . See also Wong Sun v. United States, 371 U.S. 471, 483, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Honesty, supra.

      . United States v. Telfaire, 152 U.S.App.D.C. 146, 151-152, 469 F.2d 552, 557-558 (1972).

      . In general, the Federal Courts have been extremely reluctant to amend an indictment once it has been endorsed a “true hill” by the grand jury. See Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex parte McBain, 121 U.S. 1 (1887); 1 C. Wright, Federal Practice & Procedure § 127. In other circumstances the fact that the accused may waive indictment altogether and elect to be prosecuted by information would strongly militate toward permitting the indictment to be amended at the request of the defendant or if the defendant consented thereto. And this is especially true when, as here, the indictment as originally drafted is clearly sufficient in law. Different considerations may apply, however, when the specification sought to be amended relates, albeit indirectly, to a charge of felony-murder that is being tried as a capital offense.
      There also may be some question whether all three of the appellants joined in the defense “Motion to Clarify Indictment.” Although it is phrased on behalf of the defendants jointly and carries at its foot the typewritten names of each appellant’s counsel, only the attorney for Robinson signed the document. The signature lines for the other attorneys are blank, and none of the defendants’ signatures appear.
      Although we allude to these matters, we do not purport to decide them. Since we conclude that no prejudice resulted from the trial court’s refusal to amend the indictment, it is unnecessary to determine whether there was nevertheless a technical error.

      . The remaining contentions are without merit.


source: Caselaw Access Project

author: McGOWAN, Circuit Judge:

license: Public Domain

text:
    Ennis L. MAZZA, Executrix of the Estate of Raymond J. Mazza, Deceased, Appellant, v. Olga M. MAZZA.
    No. 72-1279.
    United States Court of Appeals, District of Columbia Circuit.
    March 7, 1973.

      Mattaniah Eytan, Washington, D. C., was on the brief for appellant.
    Leonard C. Collins and Herman Miller, Washington, D. C., were on the brief for appellee.
    Before McGOWAN, TAMM, and WILKEY, Circuit Judges.
   McGOWAN, Circuit Judge:

R. J. Mazza died a resident of Maryland, leaving a will which named appellant — his wife, Ennis Mazza — executrix and sole beneficiary, and which made no provision for the payment of the federal estate tax. The decedent and appellee —his sister, Olga Mazza — held real property in the District of Columbia as joint tenants with rights of survivorship. That property passed to appellee by operation of District of Columbia law, and was included in R. J. Mazza’s taxable estate under § 2040 of the Internal Revenue Code of 1954. Appellant paid the entire federal estate tax, and sought to compel contribution from appellee for that portion of the tax attributable to the real estate in the District of Columbia. The District Court granted appellee’s motion for summary judgment on the grounds that the question of apportionment was governed by the local law of the District of Columbia, and that under that law estate taxes are to be paid out of the residuary estate. Appellant argues that (1) the court should have looked to the law of Maryland for the rule governing apportionment and (2) even if the law of the District of Columbia applies, the court misconstrued that law. We reverse on the basis of the choice of law issue and do not reach the question of interpretation.

Congress expressly provided for apportionment of the federal estate tax in certain situations not relevant to this case. In all other instances the decedent’s personal representative is responsible for actual payment, but state law determines the impact of the tax upon those receiving property includible in the taxable estate. Riggs v. Del Drago, 317 U.S. 95, 63 S.Ct. 109, 87 L.Ed. 106 (1942). Maryland has a statute requiring pro rata apportionment of the tax unless the testator makes specific provision for its payment. The law in the District of Columbia is somewhat less clear, but the District Court concluded that apportionment is not required and that taxes are to be paid from the residuary estate. Inasmuch as it is unnecessary to reach appellant’s challenge to this interpretation, we assume for the purposes of this discussion that the District Court accurately ascertained the local law.

I

The conflict of laws problem arises because both Maryland and the District of Columbia have significant contacts with this controversy and their rules of law differ. The separate interests and policies of the two jurisdictions have been drawn together by the broad cast of the federal estate tax net, which assesses a single lump sum liability for all assets within the taxable estate regardless of location. Our task is to sort out these diverse elements in an attempt to determine the relationship of each jurisdiction to the controversy, and to evaluate the interest of each in the application of its own rule of law.

The foregoing statement of the problem indicates that we adopt in this case the “interest analysis” approach initially employed by this court in the area of tort law in Tramontana v. S. A. Empressa De Viacao Aerea Rio Grandense, 121 U.S.App.D.C. 338, 350 F.2d 468, 471-473 (1965), and extended to the area of contracts by cases such as Fox-Greenwald Sheet Metal Co. v. Markowitz Bros. Inc., 147 U.S.App.D.C. 14, 452 F.2d 1346, 1353-1354 (1971). Although the subject of this controversy is somewhat different, the reasoning of those cases seems equally applicable here.

Although the general approach to be employed is thus established, its application to the issue of whether the situs should adopt the domicile’s apportionment statute is a question of first impression in this jurisdiction. Only a few other courts have considered the problem, and those that have are evenly divided between the law of the situs and that of the domicile. The two cases which best illustrate the opposing views are Isaacson v. Boston Safe Deposit & Trust Co., 325 Mass. 469, 91 N.E.2d 334 (1950), and Doetsch v. Doetsch, 312 F.2d 323 (7th Cir. 1963). For reasons developed hereinafter, we find the reasoning of the Seventh Circuit in Doetsch persuasive in principle, and also consistent with the choice of law principles of this jurisdiction.

II

In Doetsch the decedent died domiciled in Arizona, leaving his widow as income beneficiary of an inter vivos trust of property located in Illinois. The corpus of the trust was included in the taxable estate, and since the will was silent on this point, the tax was paid from the income of the trust; subsequently, the widow sought to charge the remaindermen with a pro rata share of the tax. Neither state had an apportionment statute, and there were no Illinois decisions on the conflicts question. The jurisdiction of the federal courts was based on diversity of citizenship, and Chief Judge Hastings, writing for the court, decided that an Illinois court would apply the local law of Arizona. He then observed that Arizona had not decided the question and concluded that Arizona would adopt apportionment as the better rule of law.

The court made three points in its discussion of the choice of law question. First, reference by all jurisdictions in which the decedent left property to the law of the decedent’s domicile insures uniform treatment of all those receiving property from the decedent’s taxable estate. Second, this question is similar to other problems relating to the administration of estates and to determination of intent which are governed by the law of the domicile. Finally, the decedent’s domicile is usually the jurisdiction concerned with the protection of the decedent’s widow and children, and deference to that state’s policy in such matters is appropriate.

In determining Arizona’s interest in protection of the residuary beneficiaries, the Doetseh court was without the benefit of any pronouncement of Arizona policy. Our case is much easier because enactment of the apportionment statute is a clear expression of Maryland’s approach to the question. Although the statute does not explain its purpose, it seems intended to protect residuary beneficiaries’ from the untoward effects of unforeseen taxes. This decision may well be premised on the conclusion that residuary beneficiaries are likely to be intended principal beneficiaries, and that a failure to provide for payment of taxes will almost certainly be an oversight.

Since the residence of the decedent will commonly be the residence of the spouse and dependent children, and since such family members are usually the principal beneficiaries, Maryland, as the decedent's residence, has a dominant interest in protection of the principal beneficiary. Further, the approach adopted by Maryland seems clearly suited to serve that purpose. As the federal estate tax has become more substantial, methods of disposing of property outside of the testamentary estate have become more sophisticated, and the definition of taxable estate has consequently been expanded to include many types of property not subject to administration by the decedent’s personal representative. These changes increase the probability that property will be included in the taxable estate unexpectedly, and that the testamentary scheme will be thereby distorted. Unlike pro rata apportionment, which can at worst reduce by a percentage some assets which the testator expected would be transferred in their entirety, payment of the taxes from the residuary estate can consume that estate entirely, perhaps leaving an intended principal beneficiary with nothing at all.

In addition to this local concern with the residuary beneficiaries, the Doetseh opinion identified an interest in uniformity of treatment of beneficiaries within a single estate. If a decedent leaves property in several states, and if each situs applies its own law, some of the recipients may be required to contribute to payment of the federal estate taxes while others are not. Different treatment for persons similarly situated with respect to the estate is an anomalous result which can be avoided if all jurisdictions refer to the law of the domicile.

III

Against these interests in the application of Maryland’s apportionment statute, we must balance the interests of the District of Columbia in the application of its own law. The District Court seems to have based its opinion primarily on considerations of extraterritoriality. The court issued no opinion in this case, but its fifth Conclusion of Law reads as follows:

5. Under the District of Columbia law, an apportionment statute in the place of the decedent’s domicile has no extra territorial [sic] effect against the surviving joint tenant of real estate located in the District of Columbia.

In following this approach the District Court seems to adopt the rationale of Isaacson v. Boston Safe Deposit & Trust Co., 325 Mass. 469, 91 N.E.2d 334 (1950), the leading case for application of the law of. the situs in cases of this sort.

Isaacson was a suit by the executor of a will against the trustee of a trust to charge the trustee with a pro rata share of the federal estate tax. The decedent died domiciled in Maine, and the situs of the trust was in Massachusetts. Maine had an apportionment statute, but Massachusetts, the forum, did not. The court noted that the trust was created under Massachusetts law while the decedent was domiciled in Massachusetts, and the trust property was in the state. The trustee was a Massachusetts corporation, and the persons who succeeded to the decedent’s interest in the trust did so by the terms of the trust and not under the will probated in Maine. For these reasons, the court concluded “that to apply the Maine statute in this case would be to give to that statute extraterritorial effect contrary to first principles.” The court then cited without explanation a long series of cases, most of which deal with attempts by forum states to apply the local law of the forum to controversies in which the forum had no interest.

The reasoning of Isaacson and the District Court is correct when applied to the question of whether an apportionment statute in the domiciliary state must be applied by a forum which has jurisdiction as the situs of real property. The Maryland statute does not, however, apply to this controversy by force of Maryland law. As situs of the property, the District of Columbia could apply its local law without running afoul of the constitutional strictures of Due Process or Full Faith and Credit.

This conclusion is, however, only the first step and does not reach the choice of law question at all. To the extent that the District Court felt compelled by territorial considerations to .apply the law of the District of Columbia, the court failed to distinguish between an attempt by a domiciliary state to apply its local law regarding tax apportionment to land located in another jurisdiction, on the one hand, and the decision of a situs forum to defer to the local law of the domicile, on the other. The former would be an attempt to extend the effect of the forum’s own local law to property not present in the jurisdiction and would arguably give unjustifiable extraterritorial effect to the law of the forum.

The decision of a situs to apply the law of the domicile is, however, simply a determination that the forum’s own choice of law policies are best served by reference to foreign law. Whenever a forum under no compulsion to do so elects as a matter of conflicts policy to apply the law of another jurisdiction, that law is given “extraterritorial effect” in the sense that such effect is present here. But since there are no incursions upon sovereignty in the application of foreign law, this “effect” is in no sense a barrier to such deference. The relevant inquiry focuses on the relationships of the two jurisdictions to the controversy, the interests involved, and whether application of foreign law would offend a strong and clearly defined local policy. Objections to application of foreign law would be justified if this analysis were to disclose that important interests of the forum would be sacrificed to advance equal or lesser interests of another jurisdiction, but resolution of that question is not advanced by reference to extraterritoriality.

IV

Although we do not attempt to resolve our choice of law problem simply by casting it within the mold of one or another of the traditional conflicts categories, it is still appropriate to determine whether the principles and policies which forged those rules are applicable to our situation. Concerns with the stability of use of, and marketability of title to, land were bases of the traditional conflicts rule that the law of the situs governs questions of succession to land, and allocation of the federal estate taxes is at least a related issue.

In respect of such considerations, however, it is possible to distinguish between questions of succession to land and those concerning apportionment of estate taxes against the land. The question of apportionment could affect title to the land only indirectly at best, and would in any event affect only a portion of the value. Unlike questions relating to the validity of title, the issue of tax liability is one of short duration. The attenuation of this relationship suggests that a principal reason for the concern with stability of title — the danger of third-party reliance on the law of the situs — is insubstantial with regard to the responsibility for estate taxes. Since it seems that the interests underlying the traditional rule are not involved in this case, that rule casts no weight into the balance.

We must further determine whether the assumed District of Columbia rule of nonapportionment reflects some strong policy or protects a significant interest. Initially it should be noted that there has been no clear explication of the law of the District of Columbia on this point. If the law is nonapportionment, it is by virtue of the common law rule that taxes are expenses to be paid out of the residuary estate. That rule developed on the basis of the presumed intent of the testator. However, as noted previously, the entire area of estate planning and estate taxation has undergone substantial change in recent years, in the midst of that change the District of Columbia has at most retained the old rule with no apparent reexamination of the rule’s relationship to the policies which originally justified its adoption. Nor has any new justification for the rule been suggested in other cases or by the parties in this proceeding. Although we do not decide that there is no longer any basis for the rule of nonapportionment in the District of Columbia,. neither do we discern a strong local poli- ,. ,. . ,, cy requiring application of the rule to the facts before us.

V

On balance we conclude that Maryland is the jurisdiction with the most significant interest in this controversy, and that application of the Maryland statute would best serve the various policies to be considered. The statute is a clear expression of a state policy to protect persons such as appellant. The law, and consequently its basis, are much less clear in the District of Columbia. Further, reference to the law of the domicile will result in uniform treatment of all beneficiaries of an estate. Absent an identifiable interest in the application of the substantive law of the District of Columbia, it is unimportant that this decision gives the Maryland statute effect where not constitutionally compelled. Within our federal system deference to the law of the jurisdiction of dominant interest should not be viewed as a threat to the sovereignty of the forum. Such action should promote a spirit of cooperation and should help insure that other jurisdictions will be sensitive to the forum’s policies,

Accordingly, we reverse and remand f0r further proceedings consistent with this opinion.

. It is so ordered,

      . R. J. Mazza owned two properties in the District of Columbia as joint tenant with Olga Mazza, and was joint tenant of a third property in the District with both Olga and a second sister, Dorothy Ridenour. Both sisters survived R. J. Mazza, but Dorothy Ridenour is since deceased ; and Olga Mazza is the sole survivor of the joint tenants. This opinion draws no distinction between the three properties, and, for convenience, the discussion treats Olga and R. J. Mazza as the only joint tenants.

      . The estate prior to inclusion of the D. C. property was $110,196.62, while the value of that property was $81,250.00. Appellant demanded that appellee pay $17,987.07 as her share of the estate tax apportioned on a pro rata basis.

      . Int.Rev.Code of 1954 §§ 2206, 2207. These sections deal -with insurance includible in the gross estate and with property subject to a power of appointment within § 2041.

      . Under 93 Md.Code § 11-109 (b) (1970), the federal estate tax is to be
      apportioned among all persons interested in the estate. The apportionment shall be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate.
      The definition of “persons interested in the estate” is
      any person, including a personal representative, guardian, or trustee, entitled to receive, or who has received, from a decedent while alive or by reason of the death of a decedent, any property or interest therein included in the decedent’s taxable estate.
      93 Md.Code § 11-109 (a) (4).

      . The cases cited by the District Court support its conclusion, but they are not directly controlling. Hepburn v. Winthrop, 65 App.D.C. 309, 83 F.2d 566 (1936), concerned only apportionment among probate assets, and the question is somewhat different where nonprobate assets are involved. See Ritchie, Alford and Effland, Decedents’ Estate and Trusts 818 (3d Ed. 1967). Further, the Hepburn court felt compelled to reject apportionment on the basis of its interpretation of the Internal Revenue Code, a ground now foreclosed by Riggs v. Del Drago, 317 U.S. 95, 63 S.Ct. 109, 87 L.Ed. 106 (1942). The issue in Del Mar v. United States, 129 U.S.App.D.C. 51, 390 F.2d 466 (1968), was whether the statutory share of one third of the estate available to the widow under 18 D.C.Code § 211 (1961) was to be computed before or after payment of the federal estate tax. In the course of its treatment of that question, the court stated the rule to be nonapportionment, but again apparently only probate assets were involved. In District of Columbia v. Payne, 126 U.S.App.D.C. 47, 374 F.2d 261 (1966), the question of apportionment was again tangential to the principal issue and again only probate assets were involved, but the opinion contains a flat statement that nonapportionment is the law of this jurisdiction on the basis of Hepburn.

      . This conclusion is supported by the difficulty of categorizing this issue in traditional conflicts terms. Questions of succession to land have traditionally been referred to the law of the situs. Restatement (Second), Conflict of Laws §§ 236-239 (1971); Ehrenzweig, Conflict of Laws § 247 (1962). Some problems concerning administration of the estate and determination of the testator’s intent are commonly governed by the law of the decedent’s domicile. See Doetsch v. Doetsch, 312 F.2d 323, 328 (7th Cir. 1963), and the authority cited therein. Proper allocation of the federal estate tax does not seem to fit neatly within either category and I lie policies behind belli rules may arguably have some application here. In (his situation a solution purport in/; to rest simply on classification /night well /// fact bo an interest analysis approach. See Hancock, Conceptual Devices for Avoiding the Land Taboo in Conflict of Laws: The Disadvantages of Disingenuousness, 20 Stan.L.Rev. 1 (1967). Resort to such an artificial device would only cloud the issue and increase the clanger that “situs” or “domicile” would be accorded deference in a situation where the original policy basis for .such treatment is inoperative.

      . Massachusetts, Minnesota and Michigan apply the law of the situs of the land. Isaacson v. Boston Safe Deposit & Trust Co., 325 Mass. 469, 91 N.E.2d 334 (1950); First National Bank of Miami v. First Trust Co. of St. Paul, 242 Minn. 226, 64 N.W.2d 524 (1954); Knowles v. National Bank of Detroit, 345 Mich. 671, 76 N.W.2d 813 (1956). Michigan’s position is not entirely clear because the court in Knowles relied partially on interpretation of the testator’s intent. New York, New Jersey, and Illinois (as interpreted by the Seventh Circuit) all apply the law of the decedent’s domicile. In re Gato’s Estate, 276 App.Div. 651, 97 N.Y.S.2d 171 (1950), aff’d 301 N.Y. 653, 93 N.E.2d 924; Trust Co. of Morris County v. Nichols, 62 N.J.Super. 495, 163 A.2d 205 (1960); Doetsch v. Doetsch, 312 F.2d 323 (7th Cir. 1963).

      . See Combined Reports of the Decedents Estate Commission Doc.No.69 at 197 (1930); Fleming, Apportionment of Federal Estate Taxes, 43 Ill.L.Rev. 153, 159 (1948); Gump, Apportionment of the Federal Estate Tax, 6 Ma.L.Rev. 195 (1942); Mitnick, State Legislative Apportionment of the Federal Estate Tax, 10 Ma.L.Rev. 289, 290 (1949); Note, Statutory Apportionment of Federal Estate Taxes, 61 Harv.L.Rev. 850, 852 (1948).

      . Scoles, Apportionment of Federal Estate Taxes and Conflict of Laws, 55 Colum.L.Rev. 261, 262 (1955).

      . E. g., In re Gato’s Estate, 276 App.Div. 651, 97 N.Y.S.2d 171, aff’d, 301 N.Y. 653, 93 N.E.2d 924 (1950).

      . For a discussion of uniformity as a conflict of laws policy, see Scoles, supra note 9, at 266-267. In addition to that generalized interest, uniformity of treatment seems best calculated to effectuate the testator’s intent. A testator might have desired either pro rata apportionment or payment from the residuary estate, but only the most whimsical testator would have elected different treatments dependent upon differing and changeable state laws.

      . 91 N.E.2d at 336.

      . Restatement (Second), Conflict of Laws § 59 (1971) ; Ehrenzweig, Conflict of Laws § 40 (1962).

      . The court in Isaacson appears to have failed to take into account this distinction, since it cited these two different types of cases as opposing treatments of the same question. 91 N.E.2d at 336-337. Similarly, none of the other cases applying the law of the situs (see note 7 supra) discuss these questions. All seem to rest solely on extraterritoriality.

      . See Scoles, supra note 9, at 283. But some New York cases assert the power of the forum to apply its own law in this situation. Cronise’s Estate, 167 Misc. 310, 6 N.Y.S.2d 392 (Sur.Ct.1937); Matter of Adams, 37 N.Y.S.2d 587 (Sur.Ct.1940).

      . Ehrenzweig, Conflicts of Laws § 247 (1962).

      . Cf. Cronise’s Estate, 167 Misc. 310, 6 N.Y.S.2d 392 (Sur.Ct.1937); Matter of Adams, 37 N.Y.S.2d 587 (Sur.Ct.1940).

      . Cf. Hancock, supra note 6, at 19.

      . See note 5 supra.

      . Hepburn v. Winthrop, 65 App.D.C. 309, 83 F.2d 566 (1936); see Note, supra note 8, at 852; see also Scoles, supra note 9 at 262.

      . Appellee also contends on the basis of general equitable principles that she should not now be charged with a pro rata share of the estate tax because she did not have the benefit of a deduction for such tax in computing her District of Columbia inheritance tax. The District Court’s findings disclose the following sequence of events. On February 27,-1967, appellee filed a District of Columbia inheritance tax return and paid the tax. Appellant filed the federal estate tax return on July 15, 1967, reporting an estate of $110,196.62 without including the D.C. properties, and paid a tax of $23,035.84. An audit and subsequent proceedings resulted in inclusion of those properties in the taxable estate and, consequently, payment of an additional federal estate tax of $23,647.44 on November 29, 1969. Shortly after the additional tax was finally assessed, the three year period within which appellee could have filed for a refund on her District of Columbia inheritance taxes had expired. 47 D.C. Code § 2413 (1967). It is unclear, however, at what point appellant first requested contribution. If that was within the three year period, appellee could have preserved her claim to a refund by filing a claim at that time even though the final liability was not yet determined. Neither the failure so to file nor an incorrect guess about the ultimate allocation of the estate tax burden would automatically entitle appellee to relief from what is otherwise determined to be her pro rata share. We do not foreclose the possibility that further development of the facts will indicate that some adjustment to reflect these events may be appropriate, but we do not conclude that general equitable principles justify a general refusal to apportion.


text:
    Gilbert C. WAITE, Appellant, v. Louis JACOBS.
    No. 24183.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 1, 1971.
    Decided March 8, 1973.

      Milton A. Kallis, Washington, D. C., for appellant.
    Charles H. Roistacher, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and John T. Kotelly, Asst. U. S. Attys., were on the brief, for appellee.
    Before BAZELON, Chief Judge, and McGOWAN and WILKEY, Circuit Judges.
   McGOWAN, Circuit Judge:

Appellant was civilly committed to Saint Elizabeths Hospital, an institution for the mentally ill, in 1952. He eloped in 1953, and, according to the Government’s brief, was thereafter “discharged from the rolls” of the hospital. In September, 1958, however, appellant was again committed to Saint Elizabeths, having been found incompetent to stand trial on a charge of assault with a dangerous weapon. He was subsequently certified to be competent and, in February of 1961, was tried by the court without a jury and found not guilty by reason of insanity. Under the procedures in force at that time, his insanity acquittal resulted in automatic commitment to Saint Elizabeths; and he has been confined there ever since. This appeal concerns his petition for habeas corpus, which was instituted in October, 1969, and denied in March, 1970, by the District Court, which found that “petitioner has not carried his burden of proof and that he continues to have a mental illness and that if released he would be a danger to himself and others.” (Emphasis added.)

Appellant advances numerous arguments on this appeal, some of which have become moot, and others with which we do not agree. He does, however, raise the question of which side should bear the burden of proof in cases of this nature, contending that the Government should be made to justify his continued confinement, rather than his being made to prove eligibility for release. Although we find no occasion to question the long-standing rule that the burden of proof is on the petitioner in habeas corpus proceedings, see Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642, 653 (1968), we conclude that, in the special circumstances of this case, appellant’s claim may have merit; and we remand so that the District Court may consider the problem.

Two facts are central to this result. First, appellant’s 1961 trial occurred prior to our decision in Bolton v. Harris, which held that persons acquitted by reason of insanity (hereinafter “acquitees”) must, prior to indeterminate commitment, be given a judicial hearing “substantially similar” to the one afforded persons who are civilly committed (hereinafter “commitees”). Since Bolton was applied only prospectively, we must assume that appellant was subject to pre-Bolton procedures, whereby acquitees were automatically confined for an indefinite term, i. e., until they could obtain a court order for their release, based on either the certification of the hospital superintendent that they no longer required treatment or on a successful habeas petition. Second, the maximum sentence which might have been imposed had appellant been convicted was ten years. 22 D.C.Code § 502. Thus, as of the date of the hearing on his habeas petition, appellant had been confined for over nine of the ten years for which he might have been sentenced criminally, and his maximum sentence period had ended long before this appeal was taken under submission.

In addition to these two facts, our view that the Government may perhaps be required to bear the burden of justifying appellant’s continued commitment rests on the assumption that the sole legal basis for his confinement over the past twelve years has been his 1961 insanity acquittal. It is possible, however, that the 1952 civil commitment order retains vitality, and could support appellant’s confinement even in the absence of the insanity acquittal. Given the statement in the Government’s brief that appellant was “discharged from the rolls” of Saint Elizabeths after his 1953 escape, that possibility seems remote in the light of Gillis v. Cameron, 116 U.S.App.D.C. 387, 324 F.2d 419 (1963); and the discussion below therefore assumes that the 1952 order has no present effect, that is to say, appellant is no different from other pre-Boíícm acquitees. We do not, however, preclude the possibility that there are facts which would render Gillis distinguishable; and upon remand the Government is free to develop them, or to otherwise argue that appellant’s 1952 civil commitment removes his case from the scope of the rule of law which may be found to be operative.

I

On these facts and assumptions, we are faced with a man who has been deprived of his liberty for well over a decade by virtue of the fact that a court, sitting without a jury in 1961, had a reasonable doubt about his sanity at the time in 1958 when he committed an act prohibited by the criminal law. At no time since has the Government had to bear the burden of proving, even by a preponderance of the evidence, that he is mentally ill and dangerous. It is true that appellant has had the opportunity, in hearings on habeas petitions, to affirmatively prove that he is neither. But, especially in cases concerning psychiatric testimony, which is “often unclear, sometimes woefully muddled,” United States v. Leazer, 148 U.S.App.D.C. 356, 460 F.2d 864, 866 (1972), the allocation of the burden of proof can be outcome determinative.

Our concern, however, is not with any procedural defect which might be found when a pre-Bolton acquitee’s commitment is viewed in isolation. The crucial fact is that other persons confined in mental hospitals — namely, commitees — have been given the benefit of more stringent procedural safeguards. This difference in the treatment of two classes of mental patients has led us to scrutinize appellant's claim under the Equal Protection Clause, as interpreted in several recent Supreme Court decisions. It seems to us that, after the expiration of the period for which an acquitee might have been incarcerated had he been convicted, it may be irrational, within the meaning of equal protection doctrine, to distinguish between an acquitee and a commitee. Acquitees who have been confined for that period, therefore, may be entitled to treatment no different from that afforded commitees. Such a constitutional entitlement would necessitate that appellant be given a hearing at which the Government, in order to justify his continued confinement, would have to bear the burden of proof on the issues of mental illness and dangerousness.

II

There are two differences between acquitees and commitees, both relating to the fact that the former have committed the physical elements of a crime, which might be thought to justify treating them differently for purposes of initial commitment. Neither distinction, however, would seem to have force after the expiration of the maximum sentence period.

First, as Judge Leventhal noted in his concurrence in Dixon v. Jacobs, 138 U.S.App.D.C. 319, 427 F.2d 589, 603-604 (1970), a person who is acquitted by reason of insanity may “have meaningful elements of responsibility for the offense, even though there is enough doubt to obviate a verdict of guilty.” Such an acquittal means only that there was a reasonable doubt concerning the defendant’s sanity at the time he committed a prohibited act. It is possible that he was sufficiently sane to have criminal responsibility; indeed, under the applicable standard, it may be more likely than not.

Moreover, “meaningful elements of responsibility” may exist even in those cases in which the jury is certain that the defendant was not “sufficiently responsible.” The insanity defense is not a matter of black and white — there is not a precise psychological line separating absolute free will from absolute uncontrollability. Rather, the defense is based on a balance between mental disease and self-control, the law having determined that a person should not be found guilty when the former is such that the latter becomes, not non-existent, but merely “substantially impaired.” McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847, 851 (1962). Even those defendants who are “legally insane” to a “certainty,” in other words, may have some control over their behavior, and therefore may possess some “meaningful elements of responsibility for the offense.”

While that possibility might have relevance for purposes of initial commitment procedures, it would seem to have none after the maximum sentence period. See Dixon, supra, at 604 (Leventhal, J., concurring). After confinement for that term, and in most cases much earlier, even a person who was fully accountable for a crime is free to rejoin the community. It follows, therefore, that the acquitee’s substantially lesser responsibility should have no bearing on his continued confinement after the maximum sentence period. That is not to say that the acquitee must be released even if he is mentally ill and dangerous, but rather that his continued confinement, and the procedures governing it, cannot be justified by reference to his partial responsibility for a prohibited act.

The second difference between acquitees and commitees, which might be thought to justify different treatment of the two classes, is that the former have “already unhappily manifested the reality of anti-social conduct,” Dixon, supra at 604, and might therefore be considered demonstrably more dangerous than the latter. See Overholser v. O’Beirne, 112 U.S.App.D.C. 267, 302 F.2d 852, 859 (1962). An analysis of several recent Supreme Court opinions, however, suggests that that difference may not justify discrimination against an acquitee who has been confined for the maximum sentence period.

The first in this line of cases is Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), which concerned a New York statute providing that a state prisoner could, at the end of his sentence, be civilly committed without the jury trial afforded all other commitees, and could thereafter be sent to a special hospital for the dangerously insane without the hearing normally prerequisite to such confinement. The state argued “that it is reasonable to classify persons in Baxstrom’s class together with those found to be dangerously insane since such persons are not only insane but have proven criminal tendencies as shown by their past criminal records.” Id. at 114, 86 S.Ct. at 764. The Supreme Court found that contention to be “untenable,” id., noting:

Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all. For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.

Id. at 111-112, 86 S.Ct. at 763. (Emphasis in original.)

In light of this language, this court has read Baxstrom as turning, not on the fact that Baxstrom was nearing the end of his sentence, but on the assumption that “dangerousness is not relevant to the procedures for determining whether a ‘person is mentally ill at all.’ Baxstrom thus might be said to require the conclusion that, while prior criminal conduct is relevant to the determination whether a person is mentally ill and dangerous, it cannot justify denial of procedural safeguards for that determination.” Cameron v. Mullen, 128 U.S.App.D.C. 235, 387 F.2d 193, 201 (1967). (Emphasis in original.) Read in this manner, Baxstrom would seem to indicate that no procedural discrimination against acquitees can be justified on the ground that they have “already unhappily manifested the reality of antisocial conduct.”

A second Supreme Court case, decided as recently as the 1972 Term, appears to point in the same direction. Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). Humphrey had been convicted in a Wisconsin state court of contributing to the delinquency of a minor, a misdemeanor entailing a one-year maximum sentence. In lieu of sentence, he was committed to a “sex deviate facility” in the state prison, pursuant to the Wisconsin Sex Crimes Act. Wis.Stat.Ann. § 959.15 (1958), as amended, Wis.Stat.Ann. § 975 (1971). Under that statute, commitment to the sex deviate facility can be authorized for an initial term equal to the maximum sentence which might be imposed for the defendant’s crime. After the maximum sentence period, the state can obtain five-year renewals, on the basis of a showing of dangerousness, made before a judge sitting without a jury. Humphrey challenged such a renewal order, obtained at the expiration of his one-year maximum sentence period.

In remanding the case for the evidentiary hearing which had been denied by the District Court, the Supreme Court noted (at pp. 510-511, 92 S.Ct. at p. 1052, footnotes omitted) that “[c]ommitment for compulsory treatment under the Wisconsin Sex Crimes Act appears to require precisely the same kind of determination” as compulsory civil commitment under the state’s Mental Health Act (which provides for a jury determination of the conditions for commitment), and “inquire[d] what justification exists for depriving persons committed under the Sex Crimes Act of the jury determination afforded to persons committed under the Mental Health Act.” Citing Baxstrom, the Court indicated that Humphrey’s dangerous conduct could not justify such procedural discrimination after the maximum sentence period had expired:

[The State] seeks to justify the discrimination on the ground that commitment under the Sex Crimes Act is triggered by a criminal conviction; that such commitment is merely an alternative to penal sentencing; and consequently that it does not require the same procedural safeguards afforded in a civil commitment proceeding. That argument arguably has force with respect to an initial commitment under the Sex Crimes Act, which is imposed in lieu of sentence, and is limited in duration to the maximum permissible sentence. The argument can carry little weight, however, with respect to the subsequent renewal proceedings, which result in five-year commitment orders based on new findings of fact, and are in no way limited by the nature of the defendant’s crime or the maximum sentence authorized for that crime.

Humphrey clearly indicates that Baxstrom, which concerned a prisoner, applies fully to the situation of an acquitee who has been confined for the maximum sentence period. Insofar as the initial commitment is concerned, we can perceive little difference between Humphrey and an acquitee. Humphrey was found to have performed an anti-social act and was given compulsory treatment in lieu of sentence, after a determination apparently identical in nature with that required under a civil commitment statute. An acquitee, similarly, has been found to have performed an anti-social act and is given compulsory treatment after a proceeding “substantially similar” (Bolton) to the one afforded commitees. The circumstance that Humphrey was committed in lieu of sentence, while an acquitee is committed “in lieu of conviction,” does not detract from the essential similarity of the two commitments. Thus, Humphrey may well be viewed as embracing the proposition that procedural discrimination against acquitees because of their demonstrated dangerous propensities is prohibited in recommitment proceedings. See also Matthews v. Hardy, 137 U.S.App.D.C. 39, 420 F.2d 607 (1969), cert. denied, 397 U.S. 1010, 90 S.Ct. 1231, 25 L.Ed.2d 423 (1970).

Appellant, however, is not the subject of re-commitment proceedings as such. His 1961 commitment, unlike Baxstrom’s and Humphrey’s, was for an indefinite term. A question arises, therefore, as to the reach of Baxstrom and Humphrey to the situation of continued, as opposed to renewed, confinement. It might be argued, initially, that Humphrey is directly applicable to the issue of indefinite commitment itself, and that it requires that the initial confinement be limited to the maximum sentence period. Thus, it might seem that the result in that case would have been no different if the Wisconsin statute, instead of authorizing a fixed initial term with renewals, had provided that the initial commitment be indefinite. Renewal proceedings with inadequate safeguards are surely better than no renewal proceedings at all; and, since the Court found constitutional fault in the former, a similar holding as to the latter may be implicit.

Such a conclusion is not ineluctable, however, as the Court has occasionally invalidated discriminations operative in a procedural context without reaching the question of whether the procedure We itself is constitutionally required. therefore intimate no view on the constitutionality per se of an acquitee’s indeterminate commitment, either under Humphrey or under traditional due process concepts. Whether or not Humphrey is directly applicable to the issue of indefinite commitment of acquitees, however, a subsequent Supreme Court decision, Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), suggests that the Baxstrom rationale applies to appellant, even though his case concerns continued, rather than renewed, commitment.

Jackson, a mentally defective deaf mute, was committed to a mental hospital as incompetent to stand trial on a charge of robbery. Noting that “[t]here is nothing in the record that even points to any possibility that Jackson’s present condition can be remedied at any future time,” the Court concluded that Jackson’s commitment was “permanent in practical effect.” Although the procedural safeguards at Jackson’s commitment hearing were “substantially similar” to those available under state statutes providing for indeterminate civil commitment, the Court found a violation of equal protection in the fact that, under the terms of Jackson’s commitment, he could obtain release only by meeting a standard more stringent than those applicable to persons not charged with criminal offenses:

Baxstrom did not deal with the standard for release, but its rationale is applicable here. The harm to the individual is just as great if the State, without reasonable justification, can apply standards making his commitment a permanent one when standards generally applicable to all others afford him a substantial opportunity for early release.

406 U.S. at 729, 92 S.Ct. at 1853.

Thus, Jackson expressly holds that Baxstrom is applicable to the problem of release from indefinite confinement, even though re-commitment proceedings are not contemplated by statute. Read together, then, Humphrey and Jackson indicate that, once the maximum sentence period has expired, it is unconstitutional to discriminate against an acquitee, as compared with a commitee, for purposes of release from indefinite commitment. From that moment on, acquitees and commitees appear, in the Court’s contemplation, to be on the same footing.

Assuming the correctness of this analysis, the issue is whether appellant, in seeking release from confinement, is on an equal footing with a commitee. It is not dispositive to point to the fact that the relevant statutory provisions, as judicially construed, provide that both acquitees and commitees can obtain release through petitions for habeas corpus, and that the burden of proof on the issues of mental illness and dangerousness is, in either ease, on the petitioner. The reason that equal protection may be violated despite such apparent similarity of treatment is that placement of the burden of proof on the habeas petitioner, while rationally justifiable in the case of a commitee, may be irrational with respect to appellant for the reason that just as it is unconstitutional to place a burden on only one of two similarly situated persons, so also may it be irrational to place similar burdens on persons situated differently.

The rational justification for placing the burden of proof on a commitee is that his mental illness and dangerousness have previously been convincingly established. In light of those established facts, the law gives effect to a presumption of continuity of status. It comports with normal perceptions of reality — and hence is rational — to assume that, once a given status is proven to exist, it continues to do so in the absence of evidence showing the contrary to be more likely than not.

The presumption of continuity of status, however, cannot operate with respect to a pre-Bolton acquitee, because he has not been proven to be mentally ill and dangerous. He and a commitee are, in that respect, differently situated; and it would seem to offend equal protection to place upon him a burden which can justifiably be placed on a commitee only by reference to the differentiating characteristic.

III

If appellant is constitutionally entitled to be put on an equal footing with commitees, as the foregoing considerations suggest, then it would seem that he has a right to a hearing, with all the procedural safeguards available in civil eommitment proceedings, at which the Government must bear the burden of proof on the issues of his mental illness and dangerousness. The fact that appellant committed the physical elements of a crime in 1958 would, of course, be relevant evidence admissible at the hearing. The time seems past, however, when that act can be accorded more than evidentiary significance.

While it appears that strong constitutional arguments can be made in support of the granting of the above-mentioned relief to appellant, we do not now so hold. Since the arguments were not made in appellant’s brief or at oral argument (indeed, both Humphrey and Jackson were decided subsequent to oral argument), the Government has had no opportunity to respond to them. Therefore, we limit ourselves to the suggestion that, for the reasons developed above, appellant may be entitled to have the Government bear the burden of proof on the issues of mental illness and dangerousness; and we remand for a full consideration of the problem, including, if necessary, additional evidentiary inquiries.

The District Court should initially resolve the question of the continued vitality of appellant’s 1952 civil commitment order. If it determines that the answer is as we have assumed it to be, it should then address the constitutional issues posed above, allowing counsel for both parties to address themselves to them.

The case is remanded to the District Court for further proceedings in the light of this opinion.

It is so ordered.

      . Appellant eloped from the hospital and was absent for several days in 1962. At oral argument, counsel informed us that appellant now spends much time away from the hospital grounds under a conditional release. Appellant remains on the rolls of Saint Elizabeths, however, and, according to the Assistant United States Attorney who appeared before us, returns to John Howard Pavilion each night to sleep. The issue of the validity of appellant’s continued confinement, therefore, has not been mooted.

      . Appellant’s conditional release, see note 1, supra, has mooted his claim that he was improperly confined in the hospital’s maximum security facility, as well as his contention that he was receiving inadequate treatment.

      . Appellant attacks the Government’s psychiatric testimony on a variety of grounds. He asserts that much of it was based on unverified reports from nurses and ward attendants, or on hospital records which were unauthenticated, inadmissible, and incomplete. Reliance by a doctor on reports from his staff was, however, approved by this court in Brown v. United States, 126 U.S.App.D.C. 134, 375 F.2d 310, 318 (1967) ; and the admissibility of hospital records is settled in this jurisdiction by Covington v. Harris, 136 U.S.App.D.C. 35, 419 F.2d 617, 626 (1969). As for the alleged incompleteness of those records, that is something which we cannot consider without being able to examine the records themselves. Although he could have done so under Covington v. Harris, supra at 626, appellant’s counsel chose not to introduce those documents into evidence, reasoning, as he explained at oral argument, that the trial court should not be burdened with “a lot of anonymous hearsay.” The hospital documents are therefore not part of the record on appeal; and, while we reiterate the importance of detailed record-keeping, id. at 627, we hold that the issue of tKeir completeness is not properly before us.
      Appellant also urges that the Government’s psychiatric testimony was conclusory, and that it was based on inadequate diagnoses and examinations. We have found nothing in the record, however, which would require reversal on either of those grounds.

      . As noted above, appellant’s arrest in 1958 occurred while he was at large subsequent to his 1953 elopement.

      . The Government does not argue that the 1952 order retains vitality; and the District Court clearly assumed that the insanity acquittal was the basis for appellant’s commitment.

      . The recent amendment to the D.C.Code which purports to require that insanity be established by a preponderance of the evidence, 24 D.C.Code § 301 (j) (1967 ed., Supp. V, 1972), is not applicable to this case; and we express no views with respect to it.

        . Of course, post-Bolton acquitees have also been given the benefit of more stringent procedural safeguards; but the discrimination between pre- and post-Bolton acquitees is sanctioned by the prospectivity holding of Bolton itself.

      . In alluding to these possible distinctions, we are not called upon in this case to express any opinion as to what, if any, discriminations in the initial commitment decision, between commitees and acquitees, are permitted or required by the Constitution. On the record before us we deal only with a pre-Bolton acquitee whose commitment to a mental institution has now lasted longer than the maximum sentence which could have been imposed had he been found guilty. Compare United States v. Brown 155 U.S.App.D.C. -, 478 F.2d 606 (1973).

      . The Second Circuit, quoting from Cameron, rendered a similar interpretation of Baxstrom in United States ex rel. Schuster v. Herold, 410 F.2d 1071 (2d Cir. 1969).

      . It should be noted, moreover, that the Court, in discussing the state’s asserted justification in the passage excerpted above, granted its “arguable force” only “with respect to an initial commitment . . . limited in duration to the maximum permissible sentence.”

      . See, e. g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

      . See Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 281 F.2d 943, 950 (1960) (Fahy, J., concurring). In McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972), the Supreme Court noted that “lesser [procedural] safeguards may be appropriate” when commitment is for “a limited purpose”; but indicated that “by the same token, the duration of the confinement must be strictly limited [by reference to the purpose].” Id. at 249-250, 92 S.Ct. at 2087.

      . 24 D.C.Code § 301, as construed in Bolton v. Harris, supra, at p. 653 of 395 F.2d.

      . The practical importance of this concept can perhaps be illustrated by assuming the cases of two persons about whom the evidence as to mental illness is, always has been, and always will be, inconclusive — it cannot be., said with reasonable certainty that either is, or is not, mentally ill. Person number one is a pre-Bolton acquitee. Because there was reasonable doubt about his sanity, he was acquitted of a criminal charge and automatically committed for an indefinite term. Because he cannot establish his sanity, he will never obtain his release under the present rule. Person number two is walking the streets. The Government once attempted to commit him civilly; because the evidence was inconclusive, however, that attempt failed.
      Clearly, Baxstrom, Humphrey, and Jackson mean that both persons must be treated equally after the expiration of number one’s maximum sentence period. Under present procedures, however, that will not be the case: Number two will never see the inside of a mental hospital, and number one will never see the outside.

      . This would leave undisturbed the traditional rule that the burden of proof is on the petitioner in habeas corpus proceedings, and the application of that rule by Bolton, supra, at 653, to habeas petitions brought by commitees and post-Bolton acquitees. So long as the status of mental illness has previously been proven to exist, the presumption of its continuity can, as noted above, rationally justify the traditional rule. Thus, once an acquitee is proven to possess the prerequisites for commitment, the burden of proof will be on him in any subsequent habeas proceedings.

      . To the extent that statements in Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 281 F.2d 943 (1960), and Overholser v. O’Beirne, 112 U.S.App.D.C. 267, 302 F.2d 852 (1961), are inconsistent with this theory, we must again recognize, as we did in Bolton, supra, at 653 of 395 F.2d, that modification of those decisions may be required by supervening Supreme Court authority.

      . We have couched our discussion largely in terms of the allocation of the burden of proof for the reason that that is the issue raised by appellant on this appeal. On remand it will be open to him to make such contentions as he sees fit with respect to the precise scope of the procedural rights, including the availability of jury trial, which he may believe to be required. If a jury trial is mandated by the Constitution, the habeas procedure should be adaptable enough to be conformed to that need. Our so-called Bolton hearing, for example, fits no exact statutory or common law pattern, and demonstrates that, in this field at any rate, the forms of action are flexible.

      . Since appellant is a pre-Bolton acquitee, the District Court will not be faced with the question of whether the considerations we have adverted to apply to post-Bolton acquitees whose maximum sentence periods have expired.