308 F2d 332 Durham v. United States

308 F.2d 332

Monte W. DURHAM, Appellant,
UNITED STATES of America, Appellee.

No. 16837.

United States Court of Appeals District of Columbia Circuit.

Argued April 30, 1962.

Decided July 5, 1962.

Mrs. Jean F. Dwyer, Washington, D. C., for appellant.

Mr. Harold H. Titus, Jr., Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Nathan J. Paulson, Asst. U. S. Atty., were on the brief, for appellee. Mr. Anthony L. Amsterdam, Asst. U. S. Atty., also entered an appearance for appellee.

Before DANAHER, BASTIAN and BURGER, Circuit Judges.


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This matter came on for hearing before the District Court upon the certificate of the Superintendent of St. Elizabeths Hospital dated November 15, 1961, and testimony of medical witnesses that the appellant was an appropriate subject for a conditional release under D.C.Code Ann. § 24-301(e) (1961). The District Court having heard the testimony and considered the certificate denied conditional release. Our review of the record fails to disclose that the District Court abused its discretion in denying release on the evidence presented. Overholser v. Leach, 103 U.S.App.D.C. 289, 257 F.2d 667 (1958), cert. denied, 359 U.S. 1013, 79 S.Ct. 1152, 3 L.Ed.2d 1038 (1959).


However, in view of the lapse of time since the certificate of the Superintendent of St. Elizabeths Hospital our determination is without prejudice to the filing of a contemporaneous certificate if the Superintendent of St. Elizabeths Hospital presently considers that appellant's condition warrants a conditional release at this time. By the time of any subsequent hearing,1 should one be held, St. Elizabeths Hospital will have had an additional six months or more to observe appellant and evaluate his eligibility for release.





In the event of such hearing the District Court should make findings. See Rule 52(a), Fed.R.Crim.P., 18 U.S.C.A.; Whittaker v. Overholser, 112 U.S.App. D.C. 66, 299 F.2d 447 (1962); Tatem v. United States, 107 U.S.App.D.C. 230, 275 F.2d 894 (1960)