Hays, Anderson and Feinberg, Circuit Judges. Anderson, Circuit Judge (dissenting).
Defendant Daniel J. Driscoll appeals from a judgment of conviction entered after a six-day trial by jury in the United States District Court for the Southern District of New York, Edward C. McLean, J., presiding. Appellant was found guilty on three counts of willfully and knowingly failing to file income tax returns for the years 1960, 1961 and 1962. 26 U.S.C. § 7203. The district court sentenced Driscoll to six months on each count, to be served concurrently, and admitted him to bail pending appeal. For the reasons stated below, we reverse.
This well-briefed and argued appeal is from Driscoll's second trial; the first ended in a hung jury in December 1966. The principal issues before us involve a psychiatric examination of appellant made in November 1966, prior to the start of the first trial before Judge Inzer B. Wyatt. At that time, the court treated a suggestion of defense counsel as a motion under 18 U.S.C. § 4244 to determine defendant's ability to stand trial.*fn1 To examine defendant, the judge appointed Dr. David Abrahamsen, a psychiatrist, who reported that Driscoll was able to understand the proceedings against him and to assist in his own defense. Accordingly, the case went to trial, ending when the jury was unable to reach a verdict. At that trial, Dr. Abrahamsen testified for the Government concerning defendant's mental condition in 1960, 1961, 1962, and 1963. Before the second trial, defendant moved, inter alia, to suppress such testimony on various grounds. Judge McLean denied the motion in all respects, without prejudice to an objection at trial on the grounds of relevance.
During the second trial only two issues were contested: Did the defendant act "willfully" in failing to file his returns, and was he mentally responsible for his actions? The Government introduced evidence to show Driscoll's ability to handle his affairs -- e. g., his successful law practice and major responsibilities, his profitable investments and his active social life -- but presented no psychiatric evidence in its case-in-chief. For the defendant, Dr. Lawrence I. Kaplan, a psychiatrist, testified that at the time the tax returns were due Driscoll suffered from a "character neurosis with [a] marked difficulty in complying with his responsibilities because of fear of failure." The doctor concluded from his examination that:
In my opinion he did have the type of disorder which would cause him to lack the substantial capacity to confirm his behavior to the requirements [of law] and to appreciate the nature of what he was doing.
The defense offered other proof to show appellant's mental deterioration: He procrastinated endlessly when faced with a decision in either business or personal affairs; his desk was a clutter of pending problems and unopened mail; others often had to take over his work to avoid embarrassment to the firm; he was served with seventeen separate dispossess notices for failure to pay rent on the two-room apartment in which he lived alone; his car, accumulating monthly charges of $50, sat unused in a garage from 1963 to 1967.
In rebuttal, the Government put Dr. Abrahamsen on the stand over a renewal of defendant's pre-trial objections. Relying solely on the two interviews he had conducted under Judge Wyatt's section 4244 order, the doctor testified that while the defendant was "somewhat depressed and rather uncommunicative," he was suffering from no more than a "situational depression." Such depressions, the doctor explained, are brought on by external events, and they are not mental defects. As a basis for this conclusion, the doctor repeated a number of statements made by the defendant during the interviews. These statements concerned defendant's family, his education, his lack of friends, his eating, sleeping and smoking habits, his prior psychiatric treatment, his rising income and his inability to concentrate on his work.
In this court, appellant claims that admission of this testimony deprived him of various constitutional rights, violated protective provisions of section 4244, and offended notions of fairness. Because we agree with this last contention, in our supervisory capacity we reverse the conviction; we do not deal with the first two arguments.
The facts on the manner and scope of Dr. Abrahamsen's appointment are as follows: At a pre-trial conference on October 31, 1966, defense counsel presented letters from a psychiatrist and a psychologist suggesting postponement of the trial because of defendant's psychological problems. When the Government objected, defense counsel requested that the court appoint a psychiatrist to examine defendant to determine his competency to stand trial. Judge Wyatt issued an order which was clearly limited in scope; it specified that Dr. Abrahamsen, whose name had been suggested by the Government:
Make such examination and observations of the defendant, Daniel J. Driscoll, as is necessary to determine such defendant's mental competency to understand the proceedings against him and properly to assist in his own defense * * *.
It is apparent that nothing in the proceedings up to this point concerned defendant's sanity when he failed to file in 1960, 1961 and 1962 tax returns. The two interviews which constituted the psychiatric examination were held in early November 1966, without the presence of counsel.
These circumstances lend strong support to the argument that it was unfair to allow Dr. Abrahamsen to examine and to testify on the issue of Driscoll's criminal responsibility years before the trial. The fact that the doctor apparently construed the order of appointment as so authorizing him does not resolve the problem of Driscoll's reasonable expectations. The use made of the doctor's testimony clearly went beyond the terms of his appointment, which limited him to a determination of Driscoll's competence to stand trial in late 1966. It is true that Judge Wyatt later allowed the doctor to testify in the first trial on Driscoll's sanity in the early 1960's, thereby perhaps intending a nunc pro tunc amendment of his order. However, the issue transcends technicality. We do not believe that a defendant can be told that he is to be examined for one purpose and, once his cooperation has been obtained, be advised of another.
The Government argues that Driscoll "must be held to have been aware" that the examination under section 4244 might be used not only to prove competence in 1966, but also sanity in the prior years, because of various decisions in the District of Columbia allowing such dual use. E. g., Ashton v. United States, 116 U.S. App. D.C. 367, 324 F.2d 399, 401 (1963); Edmonds v. United States, 106 U.S. App. D.C. 373, 273 F.2d 108, 114 (1959), cert. denied, 362 U.S. 977, 80 S. Ct. 1062, 4 L. Ed. 2d 1012 (1960); Edmonds v. United States, 104 U.S. App. D.C. 144, 260 F.2d 474, 476-478 (1958) (opinion of Bazelon, J.). The clarity of such presumed "notice" is questionable; the District of Columbia circuit court has itself emphasized that the order appointing the doctor should make clear the proposed dual purpose for the examination, see Winn v. United States, 106 U.S. App. D.C. 133, 270 F.2d 326 (1959), cert. denied, 365 U.S. 848, 81 S. Ct. 810, 5 L. Ed. 2d 812 (1961), although the failure to do so will not necessarily render the ...