Moore, Feinberg and Mansfield, Circuit Judges.
The defendant, William Van Voast Warren, Jr., appeals from a conviction by a jury of the crime of having transported in interstate commerce four paintings and pictures, knowing them to have been stolen. The first four counts related to the separate paintings and pictures, Count 1 (a Renoir), Count 2 (a Gauguin), Count 3 (a Picasso), Count 4 (a Toulouse-Lautrec), Counts 5 and 6 alleging a sale of these items were dismissed by the Court as unsupported by proof.
The facts are not seriously in dispute but must be stated because they supply the background for the defendant's defense of temporary insanity.
The defendant, a graduate of Harvard 1951 (post-graduate courses at M.I.T. and the University of Colorado), married, three children, had been conducting his own business in Denver as a sugar beet by-products broker. He participated actively in civic affairs and was a trustee of the Denver Museum and his own preparatory school in Dublin, New Hampshire.
In 1970 the defendant was interested in promoting a resort venture on a Greek Island. On October 11th he drove to the home of Montgomery H. W. Ritchie to discuss the venture with him. While there he was shown Ritchie's art collection (valued at some $400,000) and learned that Ritchie expected to go to Texas the following day to be absent for a week. On October 13th the defendant went to Chicago for a business appointment, returned to Denver, proceeded to the Ritchie home, wearing gloves broke into the house and stole 16 works of art. Carrying four (the subjects of Counts 1-4) paintings with him, he returned to Chicago and from there went to Boston for a business meeting on October 15th. In Boston the defendant stayed with a friend, Lewis McMillen, who was also interested in the Greek isle project. That day the defendant discussed financial and securities law matters with McMillen and his attorney, Karl Sapers. The next day the defendant went to New York where he registered at the Westbury Hotel under the name of George Parker. He then telephoned the art dealers, Hirschl & Adler, and made an appointment with Mr. Adler for October 17th for the purpose of selling the Renior and the Gauguin. On October 7th, the defendant, disguised in a toupee and a moustache, kept his appointment and asked $15,000 for the pictures worth some $60,000, provided it be paid in cash.
Mr. Adler's suspicions were aroused and he deferred consummation of the sale until the following Monday, October 19th. The defendant then returned to Boston where he attended a social dinner that night, a business luncheon on Monday, and then returned to New York for his appointment with Mr. Adler at a New York bank. Over the weekend Mr. Adler had confirmed his suspicions that the paintings had been stolen. Upon the defendant's appearance at the bank, he was arrested by agents of the F.B.I. He persisted in maintaining the name of George Parker for several hours but finally admitted that he was William Warren and gave to the F.B.I. a detailed account of his conduct from the time of the theft to the time of his arrest. About the same time the defendant placed a telephone call to his wife during which he said that he had done a "terrible thing."
To support the defense of legal insanity at the time he committed the theft, the defendant established that from the age of seventeen he had suffered severely from asthma. In the five years preceding the theft, he had taken on a physician's advice a drug known as prednisone. The defendant stated that he had been taking on the average 10 milligrams a day. For a short period (April-June 1970) he discontinued prednisone but resumed the daily average of 10 milligrams in July.
To show lack of motive to steal, evidence was introduced that the defendant was the potential beneficiary of funds under various trusts and under a will of substantial sums and had executor's commissions of $10,000 currently available.
The effect of the prednisone on the defendant's mental condition plus the lack of motive to steal formed the basic structure of the defendant's defense.
Appellant as his first point of error asserts that "the prosecutor's summation and the failure of the Court to take corrective action deprived the defendant of a fair trial." More specifically, he charges that "In the course of his summation, the prosecutor gave to the jury a version of the evidence which was directly contradicted by the record." Appellant's Br. p. 18. Additionally, he claims "distortion of the record." These are serious charges which require this Court to examine with particular care the summations and the Court's charge. This the Court has done and finds no basis whatsoever for appellant's assertions.
Appellant set the stage as if the players were only the psychiatric experts. He then quite accurately demonstrated that the background, training and experience of his experts were far superior to the qualifications of the Government expert. Were the case to have been decided solely by appellant's experts, the weight of their writings, their number of patients and their conclusions as to appellant's "fugues," "confabulation" and "disassociated state" would have tilted the scales overwhelmingly in appellant's favor. But the decision was for the jury and there were many other witnesses including the defendant himself. Therefore, the primary appellate question is: what testimony was improperly presented to the jury or excluded or what comments were improperly made by the prosecutor which might have so swayed the jury's verdict as to constitute reversible error?
As an additional ground, appellant's counsel complains of the Court's limitation of summation to 45 minutes for each side. His desire to indulge in "a detailed review of the intricacies of the expert testimony on the issue of defendant's insanity" assumes greater importance in counsel's mind on appeal than on the trial, because when upon inquiry the Court advised him that he had 20 minutes left, he said that "by now we have heard enough about this case," and in a two minute (approximately) peroration rested his case on his experts' testimony with the very pertinent question: "Can any of you go to sleep with a clear conscience saying the word of the three men is not even worthy of a reasonable ...