United States v. Ignacio Hall Valtierra

467 F.2d 125

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 11, 1972
• Docket: 71-2481
• Status: Published

Opinions

JAMES M. CARTER, Circuit Judge.

Appellant was convicted and sentenced on two counts of unarmed bank robbery, 18 U.S.C. § 2113(a). On appeal he contends the trial court abused its discretion by denying a motion to postpone the trial and a motion to appoint a second psychiatrist to examine him. We find the denial of appellant’s motions to be within the discretion of the trial court, and affirm.

On October 29, 1970, appellant robbed a branch of the Wells Fargo Bank, and later that day was arrested shortly after robbing a branch of Western Federal Savings and Loan. Appellant claims he committed the robberies so he could be tried in a federal court. Once in court he intended to tell the world that he had overheard a plot to assassinate President Nixon, thus insuring himself a place in American history.

Counsel for appellant was appointed on November 23, 1970, at which time the court ordered all defense motions be filed by December 7, 1970. Pretrial motions were set to be heard on January 11, 1971. Pursuant to defense counsel’s ex parte application on December 21, 1970, two weeks after the date for filing defense motions, a psychiatrist was appointed to examine appellant. The psychiatrist was to determine whether appellant was presently sane; could understand the proceeding against him and could assist in his own defense; and whether he was legally sane at the time of the commission of the offenses charged against him. The findings of the psychiatrist were reported to the court on January 20, 1971. The psychiatrist concluded the appellant was competent to assist in his own defense and in all other respects was legally sane.

During appellant’s sanity hearing on January 26, 1971, the date set for trial, his attorney moved the court to appoint a second psychiatrist and postpone the trial until a second examination and report were completed. Under 18 U.S.C. § 3006A(e) the court may appoint a psychiatrist as a defense expert when such services are necessary. The burden is on the defendant to show the services are necessary. The fact that the first psychiatrist finds defendant to be legally sane does not create a necessity that a second psychiatrist be appointed. To hold otherwise could result in the defendant undergoing a series of psychiatric examinations until a favorable psychiatric report was filed with the court. See, United States v. Maret (8 Cir. 1970) 433 F.2d 1064, 1068.

The only reason appellant’s attorney gave the court for needing a second psychiatric examination was that the first psychiatrist’s diagnosis was invalid because he did not consider a two-year-old report on appellant’s mental condition while confined in a mental institution in Springfield, Missouri. The appointed psychiatrist testified that the report would have been of no value in making a psychiatric diagnosis. If appellant’s counsel thought the Springfield report should have been considered at the sanity hearing, he had ample time to request and secure a copy for presentation at that hearing. He failed to do so.

The appointment of a psychiatrist is within the discretion of the trial court. Ruud v. United States (9 Cir. 1965) 347 F.2d 321. Likewise, motions for a continuance are also discretionary with the court. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940).

Both of appellant’s motions were untimely and unnecessary. Their denial was a proper exercise of the court’s discretion.

The judgment of conviction is affirmed.