United States v. Phillip E. Gutman

725 F.2d 417

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 10, 1984
• Docket: 82-1844
• Status: Published

Opinions

POSNER, Circuit Judge.

This appeal by Phillip Gutman, the former president pro tern of the Indiana Senate, from his conviction for using his official position to extort money in violation of the Hobbs Act, 18 U.S.C. § 1951, requires us to consider several of the district court’s procedural rulings.

The case grows out of the efforts of the Indiana Railroad Association, an association of railroads operating in Indiana, to get Indiana’s “full crew” law repealed. In 1972 the Indiana Senate passed a bill to this effect which became law. According to Howard Odom, the Association’s executive director and a key government witness at Gutman’s trial, in 1973 Senator Gutman had told him that the Association had not treated Senator Edwards, the sponsor of the bill, right, and that Odom should see another influential senator, Gardner, about making amends. Odom went to see Gardner, who told him that all three senators — Gutman, Edwards, and Gardner — had worked hard for the passage of the bill and expected something in return — to wit $1,000 a month for five years, to be split among the three senators. The implication was that the payments were a precondition to the senators’ assisting the railroads to get favorable legislation in the future. The payments were made from 1973 to 1976 and formed the basis of the indictments of the three senators. (Gardner died before trial; Edwards pleaded guilty shortly after the beginning of the trial, in which he was a codefendant with Gutman.) Each $1,000 check was sent to Edwards, who then sent checks for $333 to Gutman and Gardner. Gutman deposited his checks in a personal account rather than in the account of his law partnership, although his defense at trial was that the money had been payment for legal services for the Association.

Odom had first manifested mental illness in 1944 while in the armed services. In January 1981, thirteen months before the start of the trial, and apparently as a result of the investigation which led to the indictments, he had been hospitalized for depression. One doctor reported at that time that “it was obvious [that Odom] is highly depressed and has some psychotic thought disorder, in addition to the difficulty he has in organizing and being relevant,” another that Odom “displayed very definite paranoid ideas. ... ” One of the reports also states, however, “His thinking is clear in terms of historical events, but in regards to events in the past year he does not choose to speak openly about them. He does admit that he is in some type of difficulty.” Odom was discharged in February 1981 but told to continue taking antipsychotic and antidepressant drugs. “The progress is guardedly favorable.” But he was rehospi-talized a month later after attempting to strangle his wife, and discharged a month after that with instructions to keep taking the medicine. During this hospitalization, a doctor reported that Odom “was able to give me a relatively complete and sensible history, although his manner appeared quite sour, mildly irritable and depressed throughout.... No significant evidence is seen of a major breakdown in reality testing, judgment of [or?] progress of thought, and his capacity for ordinary conventional thinking is unimpaired.” But a doctor told Odom’s lawyer: “it is my opinion you will have considerable difficulty in getting him to relate openly and satisfactorily in order to assist you in his own defense.”

In December, two months before the trial was to begin, Gutman’s counsel moved for an order that Odom be given a psychiatric examination before being permitted to testify. The district judge denied the motion, along with Gutman’s motion for a pretrial hearing on Odom’s competence to testify. Gutman’s appeal challenges both of these denials.

Although insanity as such is no longer a ground for disqualifying a witness, see Fed.R.Evid. 601, a district judge has the power, and in an appropriate case the duty, to hold a hearing to determine whether a witness should not be allowed to testify because insanity has made him incapable of testifying in a competent fashion. But as with most issues of trial procedure we shall not reverse the judge’s determination unless we have a clear conviction that he erred. We do not have that conviction here. Even if we assume (a matter on which the record is unclear) that Gutman in moving for a competency hearing for Odom put before the judge all the psychiatric reports from which we have quoted, we do not think those reports created such serious doubt as to Odom’s competency as to compel the judge to grant a hearing on the question. That Odom had had bouts of serious mental illness in the year before the trial was beyond question, but the judge was entitled to conclude that the reports taken as a whole did not suggest that Odom was incapable of telling the truth or of appreciating the significance of his oath as a witness. We are reluctant to open the doors to sanity hearings for witnesses.

There is also no question that the district judge could have conditioned Odom’s testifying on his agreeing to take a psychiatric examination the results of which would be available to Gutman’s lawyer for use in impeaching Odom on the stand. The rule allowing the insane to testify assumes that jurors are capable of evaluating a witness’s testimony in light of the fact that he is insane, cf. Advisory Committee's Note to Rule 601; and it may seem to follow that the jury, to assist it in evaluating such testimony, should have the results of an up-to-date psychiatric examination of a prospective witness who has given definite indications of serious mental illness, as Odom had. The courts that have addressed the question agree, however, that the power not to allow a witness to testify unless he submits to a psychiatric examination should be exercised sparingly. See, e.g., United States v. Raineri, 670 F.2d 702, 709 (7th Cir.1982); United States v. Roach, 590 F.2d 181, 185-86 and n. 9 (5th Cir.1979); United States v. Heinlein, 490 F.2d 725, 730-31 (D.C.Cir.1973). It is unpleasant enough to have to testify in a public trial subject to cross-examination without also being asked to submit to a psychiatric examination the results of which will be spread on the record in open court to disqualify you, or at least to spice up your cross-examination. And while Howard Odom’s privacy may already have been hopelessly compromised by the government’s having turned over to the defense (pursuant to Odom’s guilty-plea agreement) seven psychiatric reports on him, with no restrictions placed on their use in cross-examination or in arguing to the jury, this also meant that the defense had plenty of psychiatric ammunition to use against Odom, and hence that Odom’s mental condition was not concealed from the jury. As a matter of fact, the reports were read in toto to the jury, which thus knew that Odom had a history of serious mental illness and that his latest hospitalization had occurred under bizarre circumstances nine months before the trial. And that a mentally ill person may give testimony that is false (though he may believe it to be true) is a possibility that a jury should be capable of understanding and making appropriate allowances for. Gutman argues, moreover, that Odom’s testimony was “incoherent.” If so, the jury would have discounted it. If a lunatic takes the stand and babbles gibberish, the jury will ignore it and the defendant will not be harmed. Finally, the parts of Odom’s evidence that Gutman points to as showing his incoherence could not have hurt Gutman, as when Odom said, “I have been lying about this thing and I want to tell the truth,” or when he said, “The first part of the Grand Jury report I lied about,” and then a few questions later said, “I don’t think I lied to the Grand Jury, now that I think about it.”

Gutman also argues that the district judge should have instructed the jury to disregard Odom’s testimony, because the testimony, whether because of Odom’s mental illness or some other cause, was so internally inconsistent — so “incoherent” in a logical sense — that it was entitled to no weight. We have read the transcript of Odom’s testimony and do not find in it any abnormal degree of internal inconsistency, bearing in mind that Odom was in the uncomfortable position of testifying to illegal conduct to which he had been a party. In regard to the initial meeting with the three senators and to the monthly payments on which the charge of extortion was based, Odom’s story was consistent, though he testified that he did not regard the payments as extortion. Odom also testified about a $40,000 payment to Gutman, a payment which was not charged as extortion but about which the government was allowed to present evidence anyway (whether this “other crimes” testimony was proper is considered next). His testimony about this payment contained a significant inconsistency: he repudiated the story he had given the FBI regarding one of the two conversations he had had about Gutman concerning the payment. But of course it is common for witnesses to change their stories on the stand; if that were enough to disqualify a witness there would not be many successful prosecutions. Impeachment of a witness does not compel exclusion of his testimony.

The $40,000 check that Gutman received from the Association he again deposited in a personal account and did not report as partnership income, and according to a railroad president’s testimony the payment was a bribe or payoff for other assistance rendered by Gutman to the railroads. Gutman points out that the indictment did not charge him with receiving any $40,000 bribe or payoff and argues that the introduction of such evidence of another crime was improper and extremely prejudicial. Prejudicial it was; the amount was greater than Gutman had received from the extortion for which he was tried. But it also was material. Gutman did not deny receiving $333 a month from the Association through Edwards. His explanation was that this was a retainer for representing the Association in various matters. The fact that he received $40,000 from the Association in circumstances powerfully indicating that it was a bribe or payoff (Gutman claimed that the payment was for legal services rendered in connection with a drainage problem, but he had not been retained by any of the parties concerned with the problem) tended to discredit his explanation of the monthly payments that he was charged with having extorted, and was therefore relevant to the specific extortion charge against him. It also connected him to the Association, which was important because he had not received the monthly checks directly from the Association, but through Edwards. Relevant evidence of other crimes is admissible provided that it is clear and convincing (so that the government is not tempted to introduce evidence of crimes of which the defendant may well be innocent) and that its probative value outweighs its prejudicial impact. United States v. Dolliole, 597 F.2d 102, 106-07 (7th Cir.1979). Rule 403 of the Federal Rules of Evidence commits the balancing judgment to the discretion of the district judge, who is in a better position than we appellate judges to assess the impact of testimony on a jury and whose determination can therefore be upset only if he has made a clear error, 597 F.2d at 107, which we do not think the district judge made in this case.

The last issue is whether the district judge should have held a hearing to explore Gutman’s charge that the jury was prejudiced against him. This charge is based on several incidents, none very significant in itself. The first is that Gutman’s codefendant, Edwards, disappeared from the dock shortly after the jury was impaneled, because he had pleaded guilty; and though the jury was not told the reason for his disappearance — was told only that it should not speculate on the reason — several jurors learned from radio or television news reports or newspaper headlines that Edwards had pleaded guilty. The district judge asked the jurors whether they could consider Gutman’s case independently of Edwards’. Two said they could not and were excused. A third later told the judge that he had made up his mind and he was excused too. Alternates replaced the excused jurors. After the trial was over Gutman submitted affidavits of several jurors which indicated—what was anyway clear from the inquiry about Edwards’ plea— that they had heard or read about the trial in the media.

The fact that jurors, several or all, knew that Gutman’s codefendant had pleaded guilty was not a ground for a mistrial, as we have held many times. E.g., United States v. Aldridge, 484 F.2d 655, 659 (7th Cir.1973). When a codefendant drops out in the course of trial, a juror would have to be pretty stupid not to surmise that he had pleaded guilty; and if this knowledge were grounds for mistrial it would be impossible for a defendant in a multiple-defendant case to plead guilty after trial began. The fact that three jurors were excused, two because knowledge of Edwards’ plea had made it impossible for them to judge Gut-man impartially, was no ground for a mistrial either. That several jurors were willing to come forward and state to the judge that they could not decide the case impartially shows only that the judge had succeeded in creating an atmosphere in which jurors were unafraid to voice in open court doubts about their own impartiality.

A typical affidavit was that one juror had heard on the radio “comments in regard to progress of the trial.” Any juror with eyes and ears is likely to hear some media comments on a trial of a prominent person. The best he can do is to tune out as quickly as possible, which so far as appears is what the jurors did. If Gutman was concerned that the jury would be “contaminated,” as his brief puts it, by media reports on the trial, he should have moved to sequester the jury, and he did not.

The practice of getting affidavits from jurors to impeach their verdict, though no longer considered improper when the affidavit is not about the juror’s thinking process in arriving at the verdict but about extraneous factors such as media coverage that may have infected that process, must not be encouraged. The practice is inherently intimidating, cf. Miller v. United States, 403 F.2d 77 (2d Cir.1968) (Friendly, J.), and if it ever becomes widespread will make it even more difficult than it already is to get competent people to serve on juries. No adequate showing of need to engage in such solicitation was made here and the district judge was therefore not required to consider the affidavits, which in any event did not show that the jury was prejudiced.

Finding no reversible error we

Affirm.