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November 17, 1981


The opinion of the court was delivered by: PARKER


The defendant John W. Hinckley, Jr. is charged in a multi-count indictment with attempted assassination of the President of the United States, 18 U.S.C. § 1751(c); assault on a federal officer-United States Secret Service agent, 18 U.S.C. § 111; use of firearm in commission of a federal offense, 18 U.S.C. § 924(c); and other District of Columbia Code offenses, *fn1" all allegedly committed on March 30, 1981. The indictment was returned on August 24, 1981.

 Counsel for the defendant have filed a number of pretrial motions, four of which are addressed in this Memorandum Opinion. Two motions seek to suppress statements, and any fruits thereof, made by Hinckley during the course of court-ordered examinations dealing with his competency to stand trial and the defendant's mental condition at the time of the alleged offenses and legal responsibility for the acts charged in the indictment. The orders were entered on March 31, and April 2, 1981. The remaining two are (1) a motion to suppress statements made by Hinckley to law enforcement officials on March 30, 1981, the day of his arrest; and (2) a motion to suppress certain documents seized from the defendant's cell in July, 1981 by correctional officers at the Federal Correctional Institution, Butner, North Carolina (Butner) where he was held as a pretrial detainee for mental evaluation.

 Part I of this opinion presents an analysis of the legal issues arising out of the March 31st and April 2nd court-ordered examinations. Part II addresses the factual and legal issues arising from the statements made by Hinckley when he was arrested and the seizure of his documents by the correctional staff at Butner.

 The Court determines that the appellate decisions of this jurisdiction provide solid support for the court-ordered evaluations and examinations. Accordingly, the defendant's challenges should be rejected.

 As to the statements made by Hinckley at the time of his arrest and the seizure of certain personal papers and documents at Butner, the Court determines that the March 30 statements and the documents seized at Butner should be suppressed. The reasons for these conclusions are set out in the discussion which follows.




 On March 31, 1981 Magistrate Arthur Burnett ordered an examination to determine Hinckley's competency to stand trial. The examination was conducted on April 1, 1981, by Dr. James L. Evans, a psychiatrist, who reported that the defendant was competent. On April 2, 1981 Chief Judge William B. Bryant issued an order for an examination to determine Hinckley's: (1) competency to stand trial; and (2) mental condition and legal responsibility for his actions on March 30, 1981. Under Judge Bryant's order the defendant was committed to Butner, where he underwent physical, psychiatric and a battery of psychological examinations. The examination was completed and a report submitted to the Court on July 29, 1981.

 Defendant's counsel contend that the use of the examination by Dr. Evans, ordered pursuant to 18 U.S.C. § 4244, *fn2" is strictly limited by the provisions of the statute to a determination of the defendant's competency to stand trial; and that use of any evidence from this examination on the issue of guilt in any trial on the substantive charges would violate the statutory limitation of section 4244.

 The government in opposition notes that the law in this circuit is well-settled that evidence from a section 4244 examination may be utilized at trial for the limited purpose of opposing an insanity defense. The government also argues that the Butner examination was plainly permissible and consistent with the Court's inherent authority to order an examination to determine competency and responsibility; that, because evidence from the examination would only be used to oppose an insanity defense rather than to establish guilt, it would not be incriminating within the terms of the Fifth Amendment privilege; and finally, that the Sixth Amendment creates no right to the presence of counsel at a defendant's examination by government or court-ordered psychiatrists.

 Because the defendant's argument and rationale for suppressing statements arising from the March 31 competency examination are subsumed in the broader objections to the Butner examination, the latter will be considered and analyzed first, followed by a discussion of the challenge to the March 31 competency examination.


 Chief Judge Bryant's April 2, 1981 order committing Hinckley to Butner provided in part that the examination be conducted and a report made to the Court as to:

Whether the defendant ..., at the time of the alleged criminal offenses, committed on or about March 30, 1981, as a result of mental disease or defect, lacked substantial capacity to appreciate the wrongfulness of his conduct or lacked substantial capacity to conform his conduct to the requirements of law; and
Whether the defendant ..., at the time of the alleged criminal offenses, ... as a result of an abnormal mental condition was incapable of forming the requisite specific intent, if applicable, to commit the alleged criminal offense.

 The provisions of the order are consistent with the current standard in this circuit applicable to the insanity defense. See United States v. Brawner, 153 U.S. App. D.C. 1, 471 F.2d 969 (D.C.Cir.1972). The dual purpose commitment order was based on three sources of authority: 18 U.S.C. § 4244, D.C. Code § 24-301 *fn3" and the Court's inherent power to order such an examination. Defendant alleges that none of these sources authorized the examination of his sanity at the time of the offense.

 Section 4244 provides, in relevant part:

Whenever after arrest ... the United States Attorney has reasonable cause to believe that a person charged with an offense ... may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense, he shall file a motion for a judicial determination of such mental competency of the accused .... (T) he court shall cause the accused ... to be examined as to his mental condition by at least one qualified psychiatrist, who shall report to the Court .... No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section ... shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding. A finding by the judge that the accused is mentally competent to stand trial shall in no way prejudice the accused in a plea of insanity as a defense to the crime charged; such finding shall not be introduced in evidence on that issue nor otherwise be brought to the notice of the jury. (emphasis added)

 Defendant argues that, since the statute, by its terms, only empowers an examination to determine competency, any evidence generated at Butner is not admissible on the responsibility question. Furthermore, he argues that section 4244's prohibition on the use of any evidence obtained in an examination against a defendant on the issue of guilt prohibits its use at a later trial. In so arguing, defendant contends that his capacity at the time of the offense is a component of guilt within the meaning of the provision.

 Even the defendant acknowledges, *fn4" however, that it has long been the rule in this circuit that section 4244 does not limit the use of evidence obtained in psychiatric examinations to a determination of competency. Section 4244's prohibition on the use of defendant's statements to establish guilt does not prevent their use in opposing a defendant's insanity defense. Only recently, Judge Spottswood Robinson, writing just prior to becoming Chief Judge of the District of Columbia Circuit, held that use of psychiatric testimony from a compelled examination was not inconsistent with section 4244's provision. United States v. Whitlock, 214 U.S. App. D.C. 151, 663 F.2d 1094, at 1106-1107 (D.C.Cir., Dec. 4, 1980). Shortly thereafter, former Chief Judge Bazelon noted in his dissent in United States v. Byers, No. 78-1451, slip op. at 5-6, -- - F. Supp. -- , at -- - -- (D.C.Cir., Dec. 24, 1980), that "this (circuit) court has consistently interpreted § 4244 to permit the admission of defendant's statements to a government psychiatrist where they are relevant only to the issue of sanity." (footnote omitted). Accord, United States v. Bennett, 148 U.S. App. D.C. 364, 460 F.2d 872, 878-79 (D.C.Cir.1972); Edmonds v. United States, 104 U.S. App. D.C. 144, 260 F.2d 474, 476 (D.C.Cir.1958), cert. denied, 362 U.S. 977, 80 S. Ct. 1062, 4 L. Ed. 2d 1012 (1960). And although United States v. Alvarez, 519 F.2d 1036 (3d Cir. 1975) and United States v. Malcolm, 475 F.2d 420 (9th Cir. 1973) suggest that the construction of "issue of guilt" in section 4244's ban on use of psychiatric evidence includes consideration of the insanity question, this is plainly not the rule in our circuit. *fn5"

 Even without regard to the court's specific statutory authority, for more than twenty years it has been the rule in this circuit that the "federal courts have inherent power-indeed, a solemn obligation-to call for a psychiatric evaluation of criminal responsibility in a case where it is obvious that the trial will revolve around the issue of the accused's mental state at the time of the crime." Whitlock, at 1106, citing Winn v. United States, 106 U.S. App. D.C. 133, 270 F.2d 326, 328 (D.C.Cir.1959), cert. denied, 365 U.S. 848, 81 S. Ct. 810, 5 L. Ed. 2d 812 (1961). This inherent authority is well-recognized throughout the federal courts. See e.g., United States v. Reifsteck, 535 F.2d 1030, 1033 (8th Cir. 1976); United States v. Cohen, 530 F.2d 43, 47 (5th Cir.), cert. denied, 429 U.S. 855, 97 S. Ct. 149, 50 L. Ed. 2d 130 (1976); United States v. Julian, 469 F.2d 371, 375-76 n.7 (10th Cir. 1972); United States v. Mattson, 469 F.2d 1234, 1236 (9th Cir. 1972), cert. denied, 410 U.S. 986, 93 S. Ct. 1513, 36 L. Ed. 2d 183 (1973). Defendant's argument that this widely accepted rule is inapplicable in this case because defense counsel immediately sought a complete examination on its own is unavailing. Although some of these decisions note defendant's inability to afford psychiatric counsel, the basis for the court's power in this regard is "not only to protect the rights of the accused, but also to protect "society's great interest in hospitalizing the accused if his violent act sprang from mental disorder." Winn, 270 F.2d at 327. The court's inherent authority to inquire into defendant's mental capacity is not limited by the defendant's inability to foot the bill. Cf. Whitlock, at 1097, 1106-1107 (court-ordered examination upheld even though defendant's mental capacity was evaluated by her own treating psychiatrist).

 Here, the circumstances suggesting that defendant's mental state would be an issue at trial were more than sufficient to invoke the Court's responsibility to examine his mental capacity. Beyond the circumstances of the alleged incident itself, the Court was made aware that the defendant had been under psychiatric care immediately prior to March 30, 1981. *fn6" Furthermore, at the same time that Hinckley's counsel argued against committing him to Butner for examination, they too sought immediate access to raise the insanity defense. *fn7" These substantial indications that defendant's mental state would be an issue at trial led the court, in a sound exercise of discretion, to invoke its inherent authority to have Hinckley undergo a mental evaluation.


 Relying on the recent Supreme Court decision, Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981), defendant argues that his Fifth Amendment privilege against self-incrimination and Sixth Amendment right to counsel were violated by the April 2nd commitment order to Butner. In Estelle the Supreme Court concluded that psychiatric testimony at the death penalty phase of a Texas murder trial, based upon a court-ordered psychiatric examination to determine competency to stand trial without warning the defendant that the evidence would be used affirmatively to persuade the jury to return the death sentence and without opportunity to refuse to submit to an examination for that purpose, violated the defendant's privilege against self-incrimination. Because his counsel was never notified of the examination or that evidence from the undisclosed examination would be used in the penalty phase of the proceeding, the Court also concluded that the defendant was denied the right to counsel in determining whether or not to submit to the examination.

 Defendant finds support in Estelle for the proposition that use of statements obtained from him and conclusions reached by the Butner psychiatrists, based on those statements would be incriminatory within the meaning of the Fifth Amendment if used by the government to oppose his insanity defense. Such evidence, he argues is testimonial within the terms of the privilege.

 The verbal content of any communication between the defendant and mental health experts may well be an essential basis for a meaningful psychiatric examination, see id. at 1873 n.8; Battie v. Estelle, 655 F.2d 692, at 699-700 (5th Cir. 1981). While this suggests that the psychiatric conclusions-in addition to defendant's own statements obtained at Butner-are composed largely of testimonial evidence, the Court cannot agree that use of this evidence to controvert defendant's insanity defense would be incriminating within the terms of the privilege. Less than a year ago in Whitlock, this Circuit rejected a contention that the government's use of the defendant's testimony obtained in a court-ordered psychiatric examination was incriminating within the meaning of the Fifth Amendment.

 Id. at -- (footnotes omitted). Other circuits have also held that, at a minimum, where none of the statements made by defendant to the psychiatrists which implicate his commission of the offense are introduced as evidence, psychiatric testimony from a compelled examination is not incriminating. See United States v. Leonard, 609 F.2d 1163, 1165-66 (5th Cir. 1980); Gibson v. Zahradnick, 581 F.2d 75, 78 (4th Cir.), cert. denied, 439 U.S. 996, 99 S. Ct. 597, 58 L. Ed. 2d 669 (1978); United States v. Reifsteck, 535 F.2d 1030, 1033-34 at n.1 (8th Cir. 1976).

 Defendant argues that Estelle's conclusion that evidence offered at the penalty phase of a trial is incriminating within the terms of the privilege suggests that this circuit's earlier decisions presenting a dichotomy between the issues of guilt and insanity should be reevaluated. In support, he relies on a footnote in Chief Justice Burger's majority opinion in Estelle which discusses the Texas law prohibition on the use of statements made to psychiatrists on the issue of guilt. 101 S. Ct. at 1873 n.6. Because the footnote also cites the Third Circuit's conclusion in United States v. Alvarez, 519 F.2d 1036 (5th Cir. 1975), that section 4244's definition of guilt includes the insanity issue, defendant contends that the Supreme Court intended by that reference to adopt the Alvarez position in defining self-incrimination under the Fifth Amendment.

 The defendant asks too much. Well-settled law in our circuit may not be rejected on a footnote reference. It should be recognized that Estelle was narrowly focused on the incriminating nature of the penalty phase of a trial involving capital punishment. Equally important, however is that, cited along with Alvarez was Rule 12.2(c), F.R.Crim.P., which empowers the court to compel a defendant to submit to a psychiatric examination for use at trial on the sanity question, while expressly prohibiting use of his statements on the issue of guilt. As the government noted at the oral argument of October 27th: *fn8"

If that footnote was designed to bar the issue of any court-ordered psychiatric examination on the issue of sanity, for somehow sanity and guilt are intermingled and covered by the Fifth Amendment, it seems odd ... that Chief Justice Burger would have included in his various string citations in that magical footnote, a reference to the very statute which authorizes the court to conduct that examination and to have its product used to educate the jury on the issue of sanity.

 Nor can it be overlooked that Chief Justice Burger, the majority opinion author in Estelle, was a member of our D.C. circuit court during much of its twenty year development of defendant's rights and court's responsibilities in connection with the insanity defense. Yet he never wrote or joined in a decision adopting the position advanced by Hinckley's counsel.

 Even if the evidence obtained during the Butner examination were incriminating as well as testimonial in character, the privilege would not require suppression of the evidence in this instance. It is settled that in a case where a defendant puts his sanity in issue, he has waived his privilege with respect to the insanity question in the same manner as if he elected to testify at trial. Estelle, 101 S. Ct. at 1874; United States v. Cohen, 530 F.2d 43, 47-48 (5th Cir.), cert. denied, 429 U.S. 855, 97 S. Ct. 149, 50 L. Ed. 2d 130 (1976); United States v. Albright, 388 F.2d 719, 724-25 (4th Cir. 1968). Here defendant argues that there was no waiver with respect to the Butner examination because he did not formally put his mental state in issue until September 28, 1981 when he filed notice of intention to raise the insanity defense. Although this was more than six months after the court-ordered Butner examination, it was obvious immediately after defendant's arrest that his mental state would be an issue at trial. And a team of mental health experts retained directly by the prosecution was granted access to the defendant by defense counsel well before the Rule 12.2 notice. Defendant's attempt to separate these consented-to tests from those objected to at Butner seeks a distinction without a difference. His agreement to be examined by the prosecution and immediately embarking on his own examinations waived any self-incrimination privilege that may have ordinarily existed.

 Contrary to defendant's contention that the waiver arising from his Rule 12.2 notice was only prospective, it should be pointed out that decisions relying on the waiver theory focus not on what stage in the pretrial proceedings the insanity defense was noted, but simply on whether he introduced evidence on that question at trial. See Estelle, 101 S. Ct. at 1874; Reifsteck, 535 F.2d at 1033. As long as Hinckley's counsel intends to offer evidence of insanity at trial, suppression of evidence obtained from the compelled examination at Butner is not required to protect defendant's privilege against self-incrimination.

 Defendant also argues that the Butner examination was conducted in violation of his right to the effective assistance of counsel under the Sixth Amendment. In Estelle the Supreme Court concluded that such a violation was present because the defendant's counsel was not notified in advance that the psychiatric examination would be used in the death penalty stage of trial. Finding that this examination "proved to be a "critical stage' of the aggregate proceedings" against the defendant, the court ...

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