HOLLOWAY, Circuit Judge.
Defendant-appellant Odell Bennett seeks reversal of his conviction on count three of a five count indictment for forcibly resisting, opposing, impeding, intimidating and interfering with a hospital administrator, Reeves, at the dress-out room used at Leavenworth Penitentiary in August, 1973, and on a like charge in count four for forcibly resisting a deputy marshal, Lopez, while Reeves and Lopez were engaged in performance of official duties, in violation of 18 U.S.C.A. § 111.
The events premising the charges occurred at the time of and shortly following a rectal examination of defendant, a part of the security procedures used before Leavenworth inmates appear in court or are transferred. See Daugherty v. Harris, 476 F.2d 292 (10th Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91. Defendant had been ordered produced in federal court on a writ for appearance in connection with civil actions brought by defendant.
At a first trial in May, 1974, the jury acquitted defendant on count one of the same indictment which had charged a similar offense against other prison employees. Count two, charging instigation of a mutiny on the same day, was dismissed by the Government. As stated, a conviction occurred on count three. The jury was then unable to agree on counts four and five and they were retried in January, 1975, and the convictions on these counts resulted. The combined appeal on the record on both trials thus challenges three convictions on similar charges under 18 U.S.C.A. § 111.
Defendant argues nine main propositions, claiming that the trial court erred: (1) in denying defendant's constitutional right to defend himself with the assistance of counsel, which he voluntarily and intelligently elected to do; (2) in the trial judge's refusing to disqualify for personal bias and prejudice; (3) in his denying use of the defense of lack of the requisite mental capacity necessary to form the specific intent required and in excluding testimony thereon;
We will detail the facts as we treat the appellate contentions.
I
The defendant's claim of error in denial of self-representation
The defendant strenuously argues that the trial court erred (1) in denying him the right to represent himself, with assistance of counsel, defendant wishing to conduct portions of the trial; and (2) in denying outright his request to represent himself without assistance of counsel. He relies on the statutory provisions in 28 U.S.C.A. § 1654 allowing parties to plead and conduct their own cases in the federal courts personally or by counsel, and on the Sixth Amendment guarantee, construed in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, to include a constitutional right of self-representation.
The factual background is critical and we must analyze it in some detail. It is important to remember that two trials are involved, the first occurring in May, 1974, and the second in January, 1975.
In a pre-trial motion on April 2, 1974, defendant requested the right to assist in his own defense (R. I-A, 196-98).
From our examination of the written and oral motions of defendant we are satisfied that up through the first trial the defendant was asserting only the right to represent himself in conjunction with the assistance of counsel. Defendant argues that the right to self-representation under 28 U.S.C.A. § 1654 and Faretta, in combination with his right to the assistance of counsel guaranteed by the Sixth Amendment, sustain his right to such hybrid representation. This court, however, has considered and rejected this claim subsequent to Faretta. See United States v. Hill, 526 F.2d 1019, 1024-25 (10th Cir.). We there held that Faretta does not alter the established rules concerning hybrid representation, permission for which was recognized as being discretionary with the trial court. As in the Hill case, we feel that there was no abuse of discretion here in denying hybrid representation to the defendant and in limiting his participation to the cross-examination of several witnesses.
As noted, the first trial resulted in a conviction on count three, but a mistrial was declared as to counts four and five. They were retried in January, 1975, and convictions resulted.
Prior to the second trial there were several hearings involving the self-representation issue. On October 29, 1974, defendant orally moved for permission to assist in his own defense by making opening and closing statements and by conducting cross-examination
The second trial was set for December 10. At a further pre-trial hearing on December 4 defendant again renewed his request to assist counsel by making opening and closing statements and conducting cross-examination. In connection with this request defendant said:
Defendant then said his motion to thus proceed had been denied by the court; that he had been given an "either or" alternative; that he had been placed in the difficult position of conducting his complete trial, which he would still do if the court denied him limited assistance of counsel (Id.).
Upon this further statement by the defendant, the trial court reinstated appointed counsel and informed defendant that he could cross-examine witnesses but could not make opening or closing statements. Defendant then renewed his motion to conduct his own defense. The court denied the motion, stating "we have fenced around long enough." (R. II-B, 47).
During the same lengthy hearing on December 4 the trial court reaffirmed his ruling several times, rejecting renewed motions by defendant to represent himself. The court, however, continued the case for two weeks to permit defendant to retain counsel. On December 12 defendant advised the court he had been in contact with Mr. Waxse. The court contacted this attorney and discussed with him the time needed for trial preparation, and again discussed this with the defendant in court. Defendant advised that he was unable to pay Mr. Waxse and the court appointed him.
Mr. Waxse represented defendant at the second trial on January 14 and 15, 1975. Prior to trial this counsel filed a written motion on January 10 ". . . to reconsider the defendant's motion to conduct certain portions of the trial pro se." (R. I-B, 64). The court denied the motion that day (Id. at 142).
As the trial court recognized, it is clear that both statutory and constitutional rights to self-representation exist. Faretta, supra, 422 U.S. at 812-13, 832-36, 95 S.Ct. 2525. However, we are persuaded that the right is one which the defendant must clearly and unequivocally assert before trial, as the accused did in Faretta. Faretta, supra, 422 U.S. at 835, 95 S.Ct. 2525. This is necessary because the trial court faces the difficult related problem of ascertaining whether there is an intelligent and voluntary waiver of the right to counsel. See Johnson v. Zerbst, 304 U.S. 458, 463-64, 58 S.Ct. 1019, 82 L.Ed. 1461.
The trial court here based the denial of self-representation on two grounds. He referred to the defendant's statement that he knew he was not qualified to conduct a full trial, and the court also said he was not going to let the defendant "switch back and forth on me." (R. II-B, 66).
In sum, we feel there was no error in the rulings in either trial on the self-representation matter.
II
The trial judge's refusal to disqualify
Defendant claims error occurred when the trial judge refused to disqualify himself. Motions for disqualification made before both trials were overruled.
On May 6, 1974, the first day of the first trial, defendant filed a motion and affidavit for disqualification under 28 U.S.C.A. § 144 (R. I-A, 310 et seq.). They alleged personal bias and prejudice and antagonism towards the defendant; and the motion stated that the defendant offered to prove that the judge had a conscious or unconscious belief that the defense was a sham, and that he believed the defendant was guilty and could never believe the defense.
We have considered the record on the motion and the rulings made and the requirements of 28 U.S.C.A. § 144. The trial judge was not called on or entitled to consider the truth of the facts alleged and could only determine the legal sufficiency of the affidavit; if it was sufficient, the statute required that he proceed no further. Berger v. United States, 255 U.S. 22, 34-36, 41 S.Ct. 230, 65 L.Ed. 481. We must agree with the trial court that the affidavit was insufficient. It lacked facts having the tendency to show personal bias and prejudice and contained only insufficient conclusions. Knoll v. Socony Mobil Oil Co., 369 F.2d 425, 430 (10th Cir.), cert. denied, 386 U.S. 977, 87 S.Ct. 1173, 18 L.Ed.2d 138.
On December 12, 1974, the court announced that the second trial would be held on January 13, 1975, and Mr. Waxse was appointed as defense counsel (R. I-B, 59; II-B, 100-04). On January 10 a second affidavit for disqualification of the trial judge under 28 U.S.C.A. § 144 was filed. The court denied this application as untimely (R. II-B, 111).
Under the statute the affidavit was required to be filed not less than 10 days before the beginning of the term at which the proceeding was to be heard or good cause shown for failure to file it within such time. While court terms are obsolete, a motion filed after the case is set for trial and only three days before the scheduled trial is untimely. Knoll v. Socony Mobil Oil Co., supra, 369 F.2d at 430. The affidavit showed no sufficient reason for its late filing. And, in any event, we again feel that the affidavit was merely conclusory and therefore legally insufficient. Ibid.
The exclusion of testimony on the defendant's capacity to form the requisite intent
Defendant complains of the exclusion at both trials of expert testimony.
There were efforts to offer such proof at both trials. Before the first trial in May, 1974, defendant had requested a psychiatric examination by a Dr. Rosenberg, which the trial court granted. Then, following study of the report of the doctor, defense counsel advised the court they were confident there would be no defense based on mental responsibility (R. V-A, 80-81). Again after the Government announced it was not bringing certain witnesses on the issue, defense counsel said there was no defense of insanity or lack of mental responsibility, or of any diminished capacity (R. V-A, 152).
At trial, however, defendant did seek to offer proof from Dr. Rosenberg, and from a psychologist, Dr. Fox. The offer was to prove that defendant's reaction to the anticipated rectal search was a common one; that it was a reaction described as "homosexual panic"; and that in connection with defendant's reaction, the proof would be relevant as far as intent was concerned (R. VI-A, 16-17). Dr. Rosenberg described the reactions of defendant as a "normal variation to a situation which represented massive psychic and physical trauma and attack." (Supp.Rec. I).
The trial court stated he was not going to permit the witnesses to testify as to what the defendant's state of mind was. He said the defendant could testify to establish the circumstances, but that the psychiatrist could not testify that the defendant did not intend to do what he did because he was in fear, and substitute his judgment as to the defendant's state of mind (R. VI-A, 18).
Again in the second trial the defense counsel offered the same type of proof,
While the exclusion of proof which touches on competency causes concern, we feel there was no reversible error. In connection with a competency issue the general
Under such a theory, however, the trial court has the authority to determine whether the proof offered is grounded in sufficient scientific support to warrant use in the courtroom, and whether it would aid the jury in deciding the ultimate issues. See United States v. Brawner, supra, 471 F.2d at 1002; United States v. Demma, 523 F.2d 981, 986 (9th Cir.). The offers of proof here were more in line with an explanation or justification of defendant's conduct, as where Dr. Rosenberg described defendant's reactions as a "normal variation to a situation which represented massive psychic and physical trauma and attack." Thus the testimony was not directed at negating a particular mental capacity so much as it was offered as a justification. In view of the nature of the proof offered and the somewhat vague scientific reasons for the testimony, we are satisfied that there was no error here in the trial court's determination that the proof should be excluded. See United States v. Demma, supra, 523 F.2d at 986-87; Rhodes v. United States, 282 F.2d 59, 62 (4th Cir.), cert. denied, 364 U.S. 912, 81 S.Ct. 275, 5 L.Ed.2d 226.
IV
The claim of error in denial of compulsory process for some witnesses
Defendant argues that the trial court erred in both trials in refusing requests for a number of witnesses, violating his constitutional rights to compulsory process under the Sixth Amendment and under Rule 17(b), F.R.Crim.P., citing United States v. Julian, 469 F.2d 371 (10th Cir.), among other cases.
Constitutional rights are involved and the trial court must take into account the right to compulsory process under the Sixth Amendment, and the Fifth Amendment due process guarantee against discrimination because of indigency, in deciding whether to issue subpoenas sought by an indigent. United States v. Julian, supra, 469 F.2d at 371. If defendant satisfies Rule 17(b) by showing inability to pay fees for witnesses and the necessity for the witnesses at trial, the rule provides that the court shall order that the subpoenas be issued.
We are satisfied, however, that there was no error or abuse of discretion in these proceedings. The complaint concerning the first trial is general, lacking a showing as to harm caused by the rulings (see Appellant's Brief, 27). And we note that several prospective witnesses sought for the first trial would have testified only to events pertaining to count one. Since the defendant was acquitted on that count, that complaint is moot.
As to the second trial, the argument is directed at the refusal to subpoena some five witnesses who would testify concerning circumstances affecting the defendant's state of mind. As explained in Part III, supra, the exclusion of testimony of this quality was not improper. Hence the denial of the subpoena was not error. The remaining witnesses mentioned in the brief
In sum, we conclude there was no abuse of discretion or denial of the defendant's rights in the rulings on production of witnesses.
V
The claim of invidious and discriminatory prosecution
Before both trials defendant filed motions to dismiss the indictment for invidious and discriminatory prosecution and for an evidentiary hearing, with supporting affidavits and motions for discovery (R. I-A, 225; I-B, 8, 65). The motion preceding the first trial was denied as untimely (R. V-A, 133), and those preceding the second trial were denied as having ". . . no basis at all for considering this to be discriminatory prosecution." (R. II-B, 116). Defendant argues there was clear error in the rulings relying on equal protection principles pronounced in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, and on grounds of retaliatory and discriminatory prosecution, citing United States v. Falk, 479 F.2d 616 (7th Cir.), and United States v. Steele, 461 F.2d 1148 (9th Cir.).
Defendant makes the general assertions that hundreds of others have not been prosecuted for similar resistance to the rectal examinations; that he is being prosecuted because of exercise of First Amendment rights and for being an active "jailhouse lawyer" who has aided over 100 prisoners and has filed over 25 civil pleadings himself; and that selection of those to be subjected to such examinations has been arbitrarily made.
We start with the principle that selective enforcement is not in itself a constitutional violation. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446; United States v. Brookshire, 514 F.2d 786, 788-89 (10th Cir.). Moreover, there is a presumption that prosecution for violation of the criminal law is in good faith. United States v. Falk, supra, 479 F.2d at 620. We find no error in the denial of the motions, considering the nature of the showing made in the motions and affidavits and the presumption of good faith in the prosecution. United States v. Radetsky, 535 F.2d 556, 571 (10th Cir.).
VI
The trial court's refusal to admit defendant's testimony in the first trial
Defendant presented a motion in limine to rule out examination of defendant, if he took the stand, concerning any convictions or incidents occurring after the offenses in question, which was denied (see Part VII, infra). As a result of this ruling, defendant elected not to take the stand (Appellant's Brief, 35). He then later requested that the transcript of his testimony at the first trial regarding counts four and five be admitted at the second trial when those counts were retried.
Defendant argues that in these circumstances he was "unavailable" at the second trial and thus his transcribed testimony from the first trial became admissible. The argument is imaginative but unpersuasive. The right not to testify is clearly his, but the defendant may not invoke that right and avoid facing cross-examination while claiming the right to have his testimony put before the jury.
VII
The denial of the motion in limine to exclude evidence of defendant's convictions subsequent to the first trial
Defendant's first trial concluded in May, 1974. During the second trial and before the defendant elected not to testify, the defense made an oral motion in limine that if the defendant took the stand, the Government not be allowed to inquire as to convictions or incidents occurring after the date of the offenses in question, which was denied.
We cannot agree. The intervening conviction was one that occurred in September, 1974, for instigating a riot, we are advised. In any event we can see no error here under the new rule, although it was not then in effect, or under the existing practice that when a defendant takes the stand in a criminal case, his credibility may be impeached and his testimony attacked in the same manner as any other witness, including reference to prior convictions. See United States v. Williams, 445 F.2d 421, 423 (10th Cir.), cert. denied, 404 U.S. 966, 91 S.Ct. 342, 30 L.Ed.2d 286.
VIII
The denial of the motion to strike the petit jury array and stay the proceedings
The defendant claims error in denial of a motion to strike the petit jury array and to stay the proceedings. He says there was a violation of the Jury Service and Selection Act of 1968, 28 U.S.C.A. § 1861, et seq., there being only one Black person on the jury panel. He argued that there was a population of 5% Blacks in the counties in this division of the federal district (R. V-A, 139). He points to proof that lists of actual voters were used for jury selection, instead of voter registration lists, which the statute permits and says this would avoid an improper selection since there was failure of Black persons to actually vote in the same proportion as others.
We cannot agree. The proof offered failed to show that a recognizable, identifiable class of persons otherwise entitled to be jurors "has been purposefully and systematically excluded from jury service." Leggroan v. Smith, 498 F.2d 168, 170 (10th Cir.). There was no showing of Blacks voting in lower proportion to White persons in the pertinent counties from which the array was drawn, the proof made being only on national figures. The supplementation of voter lists is the exception, not the rule, and absent a showing of deficient representation the use of an approved jury selection process is lawful. See United States v. Mitchell, 397 F.Supp. 166, 175 (D.D.C.); see also United States v. King, 492 F.2d 895 (8th Cir.).
IX
The sufficiency of the indictment
Defendant maintains that the indictment was defective for failure to allege that the defendant acted "knowingly" and "wilfully" in commission of the alleged offenses in violation of 18 U.S.C.A. § 111. A similar argument was considered in United States v. Hill, 526 F.2d 1019, 1026-27 (10th Cir.), and rejected. We are satisfied that the indictment was sufficient in light of the Hill opinion and United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541.
Concluding that no reversible error is shown, the judgment is
AFFIRMED.
APPENDIX
A. Portions of the record relevant to the self-representation
At the hearing on December 4, 1974, the following discussion occurred on the question of self-representation (R. II-B, 42-47):
The reasoning of the trial court was further stated on December 4, 1974, following additional self-representation requests (R. II-B, at 66):
Further, in denying the motion for a new trial after the second trial, the trial court stated (R. II-B, 526):
B. Portions of the record relevant to the issue of exclusion of expert testimony
The report of Dr. Stanton L. Rosenberg,
addressed to defendant's counsel at the first trial and dated April 30, 1974, appears in the Supplemental Record and reads as follows:
30 April 74
Mr. Gary Eldredge
I saw Mr. Bennett for evaluation at the Federal Penitentiary, Leavenworth, on 27 April '74. I understand he is being brought to trial on four counts of assaulting a federal officer and one count of mutiny. I understand these alleged offenses to have occurred when Mr. Bennett was being taken from solitary confinement for purposes of a rectal examination prior to a court appearance. I understand the purpose of such an examination was to search for "contraband"; I understand this examination was not conducted by a physician in the privacy of an examining room.
Whatever may be the facts as to Mr. Bennett's reaction to this event, I do not consider him to have been functioning under "diminished capacity" at the time of this examination. Rather, I feel his reactions to have been a normal variation to a situation which represented massive psychic and physical trauma and attack. Rectal examinations are properly carried out only by physicians; in this instance the rectal was equal to rape, homosexual assault, and was a mortifying, degrading assault upon Bennett's remaining vestiges of dignity and masculinity. If contraband were indeed so suspect, fluoroscopy and stool examination would have better been employed. I am certain everyone except Bennett would have been happy had he passively submitted to this examination. I would submit to you that for Bennett himself, the only way to handle what must have been an act of extraordinary provocation, inspiring only terror and defensive rage, was to have fought back.
I hope these opinions will be of assistance to you.
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