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March 8, 1974

Michael Stanley GREEN

Ditter, District Judge.

The opinion of the court was delivered by: DITTER

This case comes before the court on the post trial motions of a defendant convicted of air piracy despite his insanity plea.

 Through testimony and exhibits, the following uncontroverted facts were established. The defendant, Michael Stanley Green, and another man, who was referred to during the trial as Lulseged Tesfa, boarded National Airlines Flight 496 on July 12, 1972, in Philadelphia, Pennsylvania. The plane, which had come from Jacksonville, Florida, and was scheduled to land in New York, left Philadelphia at 6:40 P.M. with a crew of seven and 113 passengers. As the aircraft approached New York's Kennedy airport, the defendant and Tesfa drew weapons, putting a shotgun against the head of one stewardess and a pistol against the head of another. Sitting with their fingers on the triggers, the skyjackers sent previously-prepared typewritten notes to the pilot. They demanded $600,000, and three parachutes, warning that they had a bomb which would explode in 90 minutes. The hijackers wanted their ultimatum met in Philadelphia. The plane therefore headed back to Philadelphia and circled the airport waiting until the money and parachutes could be obtained. Since the aircraft was running low on fuel, the pilot landed just after 9 P.M. contrary to the skyjackers' orders. At 9:30 P.M. the skyjackers ordered the crew to take off. Instead the pilot taxied the aircraft a short distance and then jumped from a cockpit window as the plane ran out of fuel. He was badly hurt by his fall to the ground, but escaped.

 The rest of the crew and the passengers were held captive by the defendant and his companion while prolonged negotiations took place with the FBI. Because the aircraft had no gas, there was no power to operate the air-conditioning. Inasmuch as the skyjackers refused to allow a door or window to be opened the temperature inside the plane rose to well above 100 degrees causing great discomfort to the crew and illness to several passengers. Various members of the crew had cocked guns held at their heads throughout the night. Early on the morning of July 13, the skyjackers tied the crew members' hands behind their backs and left the airplane. Surrounding themselves with the crew as a protective shield, the skyjackers transferred to another National Airlines aircraft, Plane No. 42, on which $500,000 and three parachutes had been placed. The passengers were permitted to remain on the first aircraft. While Mr. Green was searching the new plane for hidden weapons and FBI agents, his pistol accidentally went off, wounding the flight engineer in the leg. At 5 A.M. the second aircraft took off and headed south in accordance with Tesfa's orders. Later that morning as they approached the Gulf of Mexico, the skyjackers ordered the plane to fly to Jamaica. The copilot, realizing he did not have enough fuel, slammed shut the cockpit door and initiated a series of maneuvers which alternately threw the skyjackers against the cabin ceiling and floor. Finally, he landed on a small field in Texas and together with the flight engineer, escaped through a cockpit window. The four stewardesses remained in the plane with the skyjackers, who surrendered to the FBI late on the afternoon of July 13 after extended negotiations.


 The main issue raised at the trial was the criminal responsibility of the defendant. He contended that he had total amnesia as to the skyjacking, the events that immediately preceded it, or anything that happened for some days thereafter. His experts testified this amnesia was a symptom of brain damage and a psychoneurotic condition which would have warranted a not guilty verdict had it been accepted by the jury. Mr. Green initially asserts that the evidence against him was insufficient to show he was sane and therefore to support the verdict.

 It is well established that once the defendant raises the issue of mental capacity, the Government has the burden of proving sanity beyond a reasonable doubt. United States v. Currens, 290 F.2d 751, 761 (3rd Cir. 1961); Berry v. United States, 286 F. Supp. 816, 818 (E.D. Pa. 1968), rev'd on other grounds, 412 F.2d 189 (3rd Cir. 1969). The defendant contends the verdict was against the weight of the evidence. He had one neurologist, a clinical psychologist, and three psychiatrists as his expert witnesses. The Government, in rebuttal, called one neurologist, one psychologist and one psychiatrist as its expert witnesses. This was a classic battle of experts.

 The law is clear that the issue of sanity is one for the jury or trier of fact to decide. United States v. Currens, 290 F.2d 751, 762-763 (3d Cir. 1961). See United States v. Green, 150 U.S. App. D.C. 222, 463 F.2d 1313, 1316 (D.C. Cir. 1972); United States v. Handy, 454 F.2d 885, 888 (9th Cir.), cert. denied, 409 U.S. 846, 93 S. Ct. 49, 34 L. Ed. 2d 86 (1972); United States v. Archer, 450 F.2d 1106, 1108 (8th Cir. 1971), cert. denied, 405 U.S. 1044, 92 S. Ct. 1329, 31 L. Ed. 2d 586 (1972); Apgar v. United States, 440 F.2d 733, 737 (8th Cir. 1971); United States v. Hernandez, 438 F.2d 676, 678 (5th Cir.), cert. denied, 402 U.S. 976, 91 S. Ct. 1679, 29 L. Ed. 2d 141 (1971). See also Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292, 296 (3d Cir. 1961). The number or expertise of the witnesses is not determinative per se; rather it is the quality and credibility of their testimony which must be weighed. No one, in our system of justice, is in a better position to do this than the jury.

 The Ninth Circuit has held:

The fact that the defense had more experts to testify than the plaintiff had, is not of controlling importance. The weight of the evidence is not determined by the number of witnesses who testify for either side, but by the quality of their testimony. The credibility of experts is to be determined by the jury, not by the court.

 United States v. Handy, supra at 888. It has even been held that the Government could meet its burden of proving sanity without expert medical testimony. See United States v. Pitts, 428 F.2d 534, 536 (5th Cir.), cert. denied, 400 U.S. 910, 91 S. Ct. 154, 27 L. Ed. 2d 149 (1970). In this case we do not need to reach that question.

 Viewing the evidence in a light most favorable to the Government, it is clear there was substantial evidence by which the jury could find the defendant sane beyond a reasonable doubt.


 1. Motion to transfer the trial. Defendant contends that the court erred in denying his pre-trial motion, under F.R. Cr. P. 21, to transfer the case to Washington, D.C. He based his motion on two grounds. First, the defendant asserted he could not get a fair trial in Philadelphia because of local prejudicial pre-trial publicity concerning the skyjacking. Second, the defendant claimed the motion should have been granted for the convenience of his witnesses.

 Considering pre-trial publicity in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966), the Supreme Court held that a defendant must be protected from massive, pervasive and prejudicial news coverage which prevents a fair trial. A trial court can continue the case until a later date or transfer it to prevent prejudice to the defendant. Id. at 363, 86 S. Ct. at 1522.

 During and shortly after the skyjacking the press, radio and television gave it considerable publicity. There is no reason, however, to suspect that these stories had any effect on the jurors. The trial started more than ten months after the skyjacking and in the meantime, the media reported additional skyjackings that took place in other parts of the country and around the world. Nevertheless, the voir dire showed there was no prejudice to Green by reason of the coverage relating to the incident in which he was involved or that which attended any other.

 When Green's motion to transfer was denied, the court stated that after the voir dire had started it would reconsider the motion if the questioning of veniremen indicated they remembered the pretrial ...

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