Friendly, Anderson and Feinberg, Circuit Judges.
On April 27, 1966 the appellant, Larry Knohl, was indicted on a charge that on or about August 25, 1965 he "unlawfully, wilfully, knowingly and corruptly endeavored to influence Kay B. Fuller, a witness under subpoena to appear before a Grand Jury. * * *" in violation of 18 U.S.C. § 1503.*fn1 The trial commenced on July 6, 1966. On July 18, 1966 the jury found him guilty, and on September 14, 1966 the court sentenced him to five years imprisonment.
There was evidence from which the jury could have found the following facts. Appellant and Mrs. Fuller had been business acquaintances for about twenty years. During most of that period she was employed as a confidential secretary by one Josiah Kirby of Cleveland, Ohio, who died in 1959 and who in his lifetime had had some business dealings with the appellant. In early August of 1965, the appellant told Mrs. Fuller that he had some $100,000 United States Treasury six month bearer bills and requested her to borrow some money against them or otherwise convert them to cash for him. He offered her $40,000 for doing so. He explained that, although the bills had been given to him in payment of a loan, he could neither keep them nor cash them himself, because there was a federal tax lien outstanding against him. Mrs. Fuller agreed to accede to his request, and he suggested that she explain her possession of the bills to the bank, through which the transaction would take place, by saying that they had been given to her by Kirby. Mrs. Fuller, however, was not anxious to name Kirby as her benefactor, because Kirby had been dead about two years and only six months bills were involved. Appellant then suggested that Mrs. Fuller use the name of somebody else who had recently died. She suggested one Cyril O'Neil of Cleveland, formerly a client of Kirby's, and it was agreed between them that she would use O'Neil's name.
On August 6th, accompanied by the appellant, Mrs. Fuller went to a branch of the Chemical Bank in New York City, where she succeeded in borrowing $95,000 by putting up one of the bills as security. The Bank credited part of the money to a checking account which Mrs. Fuller maintained there, and paid her the balance with a $25,000 cashier's check and $30,000 in cash. Mrs. Fuller immediately gave both the cashier's check and the cash to the appellant and eventually transferred the remaining $55,000 to him by drawing checks on her account.
On August 9th, the transaction was substantially repeated at the same bank with another $100,000 Treasury bill, and Mrs. Fuller again gradually transferred the proceeds to the appellant.
On August 12 and 13, Mrs. Fuller converted four more $100,000 Treasury bills into cash for the appellant at Barclay's Bank in New York City, which sold the bills and credited the proceeds to an account which she maintained there. She subsequently drew checks on this account, through which she transferred almost all of the amount received to the appellant.
On August 18, when she returned to the Chemical Bank to get a $10,000 cashier's check, payable to Knohl and chargeable to the balance still remaining in her account, Mrs. Fuller was questioned by Secret Service agents about the source of her Treasury bills. When Mrs. Fuller returned to Barclay's Bank on August 24th to draw out another $10,000 for the appellant, she was met by F.B.I. Agent Goss, who told her that the Treasury bills had been stolen from the Bankers Trust Company in New York City, and he questioned her at some length. Later that day she returned to her apartment. Knohl joined her there and she told him what Agent Goss had said about the illicit source of the bills. Knohl denied that they had been stolen and said to Mrs. Fuller, "Stick to your story, the O'Neil story * * *, because a dead man can tell no tales." Both following this instance and the prior occasion when she had been questioned by the Secret Service Agent on August 18th, Mrs. Fuller contacted her attorney, Abraham Brodsky, for advice.
On August 25th, Mrs. Fuller was served with a subpoena to appear before a Grand Jury of the United States District Court for the Southern District of New York on the morning of August 26th. She immediately got word to the appellant, who later came to her apartment. Concerning the subpoena he said, "Don't worry about it. You stick to the O'Neil story and nothing will happen." Mrs. Fuller again telephoned and later visited Attorney Brodsky, who eventually joined her and the appellant at her apartment to discuss the matter of her testifying before the Grand Jury. In the presence of Attorney Brodsky, appellant again urged Mrs. Fuller to stick to the story that she had received the Treasury bills from Cyril O'Neil, but the attorney advised her to "tell the truth."
Mrs. Fuller did not testify before the Grand Jury until August 27, 1965; on August 26 she voluntarily submitted to a full interrogation about the case by an assistant United States attorney. After she returned home on August 26, the appellant again came to her apartment and urged Mrs. Fuller in testifying before the Grand Jury to adhere to the story that O'Neil was the source of the Treasury bills and otherwise to invoke her Fifth Amendment privilege against selfincrimination. Mrs. Fuller, however, answered all questions directed to her before the Grand Jury. The appellant was not indicted by that Grand Jury but by another one on April 27, 1966.
The appellant presents several grounds for appeal. He asserts that in violation of his federal constitutional rights he was denied a hearing on his claim that he was physically and mentally incompetent to stand trial, that certain evidence was improperly admitted, that the Government failed to fulfill its duty, in the course of discovery before trial, to disclose and turn over to him certain tape recordings containing statements by him and that the Government failed to offer proof by at least two witnesses that the statement which was the basis of the obstruction of justice charge was false. We hold that these claims are not substantiated and therefore affirm.
About November 15, 1965, the appellant had suffered a cerebral stroke, which partially disabled him, and it is on this circumstance and its consequences that he bases his claim on appeal that he was physically and mentally incapacitated to stand trial on July 6, 1966. The appellant was first examined by a court-appointed physician on March 5, 1966, in connection with the trial of a pending charge, unrelated to the present case, in the United States District Court for the Eastern District of New York. The physician was Dr. Samuel Brock, an internist, who reported to the court on March 15, 1966 that Knohl was unable to withstand the rigors of a trial estimated to last several months which he would be required to attend frequently, but the doctor suggested a re-examination in six months. According to Dr. Brock's report, appellant's primary symptoms were paralysis of the right side of his body, which caused him difficulty in eating and speaking, and emotional excitability. The appellant was able to take a few steps with the aid of a cane but otherwise was confined to the use of a wheelchair. Dr. Brock also reported that the appellant suffered from long standing hypertension and diabetes but that the appellant was "well-oriented, alert and responsive, and his behavior for the most part is normal (except for the occasional over emotional episode)" and "gave no evidence of reduction in his ordinary intellectual capacities."
On May 9, 1966, with consent of appellant's trial counsel and counsel for the Government, appellant was ordered by Judge Frankel of the Southern District of New York to undergo a re-examination by Dr. Brock to determine whether he was able to stand trial under the present indictment. The examination took place the same day. Dr. Brock found no new symptoms present, except that appellant claimed more pain in his right hand and shoulder; his diagnosis remained the same. He concluded, however, that there were signs of exaggeration by the appellant, because the claimed diminution of sensation did not fit the normal pattern of the disease, and that these exaggerations bore on the question of appellant's ability to stand trial. Dr. Brock was of the opinion that the appellant would be able to go through a trial lasting approximately two weeks, but suggested that a nurse or doctor be present.
After this report had been presented to Judge Frankel on May 11, 1966, the Government pressed for assignment of the case for trial in June, claiming that it would take only two weeks to try and that an early assignment was urgent because Knohl was threatening to kill Mrs. Fuller. Counsel for Knohl, however, sought a postponement of the trial until September and made reference to letters from Dr. Dolger, a specialist in diabetes, and Dr. Frieden, a therapist, who said that the trial would be hazardous to the appellant's health. On June 1, 1966 Judge Frankel referred the case to Judge Croake for trial and also left for Judge Croake's determination defense counsel's request for adjournment based upon his claim that he had not finished his preparation for trial and that the defendant Knohl was physically unable to stand trial. On June 13, 1966 at a conference with Judge Croake, counsel for the Government and counsel for the defendant agreed upon a joint examination of Knohl by Drs. Brock, Dolger and Frieden. Drs. Dolger and Frieden were of the opinion that the stress and strain of a trial would be hazardous to the accused;*fn2 Dr. Brock concluded that Knohl was able to testify but thought that the question of Knohl's ability to testify without dangerous consequences should be passed upon by an internist who was an expert in cardio-vascular disease and hypertension. The other two doctors agreed with this suggestion and the three so reported to Judge Croake who appointed Dr. Eugene Clark, a cardiologist. Up to this time none of the medical opinions of appellant's own personal doctors said anything about his mental or physical capacity to assist counsel in his defense but dealt only with the risk of another stroke or other serious consequences to the accused.
On June 29, 1966 Dr. Clark's report was submitted to Judge Herlands, to whom the case had meanwhile been assigned. Dr. Clark concluded that Knohl's state of health did not preclude his standing trial if the proceedings commenced shortly thereafter and lasted no more than a week or two.
"Concerning Mr. Knohl's physical fitness to stand trial in the immediate future, which I understand may require his presence in court for at least a week or two, it is my opinion that his state of health does not preclude this.
I would agree that Mr. Knohl's appearance in court does involve some risks, but I don't believe that the risk is extreme, and I am reasonably certain that the risk will be none the less a few months from now or at any other subsequent time."
Dr. Clark's determination that the risks from the emotional stress of a trial might be greater, rather than less, if there were a delay, was based on the prognosis that appellant's cardiac status was likely to worsen, that his hypertension could not be expected to improve and that no further improvements in the neurologic defects caused by appellant's stroke were to be anticipated.
At about the same time, the appellant formally moved for an adjournment of the trial until September, and argument was had before Judge Herlands on June 30. The application was made on the grounds that counsel for appellant had not had sufficient time to prepare for trial, that appellant's illness was such that a trial might result in his death, and, in addition, his condition made it impossible for him to consult with counsel in preparation of his defense, and that appellant's counsel was himself unable to conduct a trial in the summer for reasons of his own health and would be forced to resign if no adjournment were ...