United States v. Patricia Campbell Hearst

Appellant was tried under a two-count indictment charging her with armed robbery of a San Francisco bank in violation of 18 U.S.C. §§ 2113(a), (d) and 924(c)(1). The government introduced photographs and testimony descriptive of appellant’s role in the robbery. Appellant raised the defense of duress, contending her co-participants compelled her to engage in the criminal activity. The jury found appellant guilty. The district court sentenced her to seven years in prison on one count and two years on the other, the sentences to be served concurrently.

Appellant argues that the trial judge erred in admitting and excluding evidence and in ruling on appellant’s privilege against self-incrimination. No novel issues are presented. We conclude on the basis of well established principles that no reversible error occurred and that the judgment must be affirmed.

I. Evidence of Subsequent Crimes

During its case-in-chief the government introduced evidence connecting appellant with criminal activity at a sporting goods store and with a kidnapping and theft. These incidents occurred in the Los Angeles area approximately one month after the San Francisco bank robbery. The evidence showed that appellant accompanied William and Emily Harris to Mel’s Sporting Goods Store in Los Angeles, that the Harrises entered the store and left appellant outside in a truck, that a store clerk saw William Harris shoplifting and attempted to arrest him, and that appellant discharged an automatic rifle at the store, enabling Harris to escape. The evidence further showed that on the same day appellant and the Harrises stole a van and kidnapped its owner, Thomas Matthews. Matthews testified that during this incident the Harrises were outside the van and appellant had an opportunity to escape or give Matthews a message but did not do so.

Appellant objects to admission of this evidence on three grounds. She asserts the evidence was irrelevant for any purpose except the improper one of convincing the jury that appellant acted in accordance with a criminal disposition. She argues that even if the evidence were relevant to the issue of intent, as the district court held, the incidents were so dissimilar to the bank robbery that its probative value was minimal and outweighed by its prejudicial effect. Finally, appellant contends the court erred in permitting the introduction of this evidence during the government’s case-in-chief.

Evidence of other criminal acts may be persuasive that the accused is by propensity a probable perpetrator of the crime charged. Nonetheless, it is excluded when offered for this purpose because it may unduly influence the jury and deny the accused a fair opportunity to defend against the particular charge. Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 93 L.Ed. 168 (1948).

Evidence of other criminal acts may be admitted for purposes other than proving criminal predisposition, however. It may be received, for example, to prove knowledge, motive, and intent. Fed.R.Evid. 404(b). Accord, United States v. Rocha, 553 F.2d 615, 616 (9th Cir. 1977); United States v. Bums, 529 F.2d 114, 118 (9th Cir. 1976); United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir. 1975). The government contends that the evidence of appellant’s criminal acts in Los Angeles a month after the bank robbery was relevant to the issue of appellant’s intent when she participated in the San Francisco bank robbery, and to whether appellant was acting under duress. 1

*1336 Appellant raised the defense of duress at trial and offered substantial evidence to support it. To convict appellant, therefore, the government was required to show appellant was not acting under duress when she participated in the San Francisco robbery. 2 The evidence of appellant’s involvement in the Los Angeles activity was relevant to this issue because it tended to show appellant willingly engaged in other criminal activity with persons of the same group at a time not unduly remote.

Appellant correctly points out that though relevant, evidence of other criminal conduct by the accused should be excluded if its probative value is outweighed by its prejudicial impact upon the accused. Fed.R.Evid. 403. Accord, United States v. Satterfield, 548 F.2d 1341, 1346 (9th Cir. 1977); United States v. Grammer, 513 F.2d 673, 677 (9th Cir. 1975); Fernandez v. United States, 329 F.2d 899, 908 (9th Cir. 1964). This determination is largely a matter for the discretion of the district court. United States v. Rocha, supra; United States v. Riggins, 539 F.2d 682, 683 (9th Cir. 1976); United States v. Nichols, 534 F.2d 202, 204 (9th Cir. 1976). Appellant challenges the discretionary determination made by the district court in this instance.

Appellant points out that the Los Angeles offenses were not similar to the San Francisco robbery with which she was charged. Because the events were so dissimilar, she contends, they offer little insight into her state of mind during the robbery. But to justify admission of evidence of other crimes, the crimes must be “similar” to the offense charged only if it is the similarity of the crimes that underlies the relevance of the evidence. United States v. Riggins, supra, 539 F.2d at 683. 3 Here the relevance of the evidence did not depend on the similarity of the Los Angeles crimes to the bank robbery but on the circumstances surrounding the occurrence of the Los Angeles crimes, which indicated appellant had not acted under duress when she participated in the bank robbery. The tendency of the evidence regarding the Los Angeles crimes to prove appellant was not *1337 coerced when she participated in the San Francisco robbery is not diminished by the lack of similarity between the Los Angeles and San Francisco offenses.

Appellant also argues that the sequence of the San Francisco and Los Angeles events undermines the relevance of the latter to her state of mind during the San Francisco robbery. Absence of duress in the later Los Angeles incidents would not be probative of her state of mind during the San Francisco robbery, she contends, because the robbery itself made her an outlaw and a fugitive. This fact may have caused her to participate willingly in the Los Ange-les events, she asserts, even if she were under duress during the earlier robbery.

Appellant’s hypothesis does bear upon the probative value of the evidence, and it is an appropriate consideration in determining whether on balance the evidence should have been admitted. It is, however, only a hypothesis, and a highly speculative one. The mere assertion of this hypothesis does not so undermine the probative worth of the evidence of the Los Angeles incidents in establishing appellant’s state of mind during the San Francisco robbery as to render admission of the evidence an abuse of discretion. The jury could well reject appellant’s theory and conclude that if appellant had been forced to participate in the bank robbery against her will she would have refrained from criminal activity in Los An-geles or seized the opportunity to escape.

The trial judge was called upon to balance the need for the evidence in the search for the truth against the possibility that the jury would be prejudiced against appellant because the evidence revealed she had participated in other conduct that was criminal. The district court acted well within its discretion in admitting the evidence. Appellant’s state of mind during the San Francisco robbery was the central issue in the case. State of mind is usually difficult to prove, and the evidence on the issue was sharply divided. The timing and other circumstances of the Los Angeles incidents made evidence of them highly probative on this critical issue. Though criminal, the incidents were not of a kind likely to inflame the jury. The prejudice to appellant arose primarily from the light the evidence cast on appellant’s state of mind during the San Francisco robbery and not from the incidental circumstance that it revealed appellant’s involvement in other criminal acts.

Appellant contends that even if evidence of the Los Angeles incidents were admissible, the district court erred in admitting it in the government’s case-in-chief. The argument runs as follows. Bank robbery is a crime requiring a general rather than specific intent, United States v. Hartfield, 513 F.2d 254, 259 (9th Cir. 1975), and the jury could infer the requisite intent from the commission of the act. United States v. Porter, 431 F.2d 7, 10 (9th Cir. 1970). Since evidence of other criminal acts was not required to enable the government to carry its burden of proving intent, it should not have been admitted as part of the government’s case-in-chief. United States v. Adderly, 529 F.2d 1178, 1181 n. 1 (5th Cir. 1976), quoting Fallen v. United States, 220 F.2d 946, 948 (5th Cir. 1955); United States v. Ring, 513 F.2d 1001, 1007-09 (6th Cir. 1975). It was reversible error, appellant concludes, to admit to such prejudicial evidence when its only relevance was to rebut a defense of duress not yet raised. See United States v. Ring, supra; United States v. Fierson, 419 F.2d 1020, 1023 (7th Cir. 1969).

The government concedes it cannot present evidence that the accused committed other crimes to prove a point not in issue. The government argues, however, it was clear that appellant would raise the defense of duress, and whether the government was to be allowed to introduce the evidence in its opening presentation or only in rebuttal was merely a question of the order in which the parties should adduce their proof at trial, a matter within the trial court’s discretion. See Geders v. United States, 425 U.S. 80, 86, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); Fed.R.Evid. 611(a); 2 J. Wigmore, Evidence § 307 at 207 (3d ed. 1940).

*1338 We are satisfied that admission of the evidence in the government’s case-in-chief does not dictate reversal in this case. It is unnecessary to decide whether the trial court’s ruling was within its discretion. The ruling, if error, was nonetheless harmless.

Even before trial commenced it was appellant’s announced intention to defend on the ground of duress. 4 No other defense was available to her. If appellant defended at all, the evidence of the Los Angeles events would have been placed before the jury in the government’s rebuttal. There is no basis for assuming appellant was prejudiced because the evidence was admitted in the government’s case-in-chief rather than in rebuttal. The prejudice arose from the substance of the evidence, not from the timing of its introduction.

II. Privilege against Self-Incrimination

During the trial appellant elected to testify in her own behalf. She described in exhaustive detail the events immediately following her kidnapping of February 4, 1974. These included physical and sexual abuses by members of the Symbionese Liberation Army (SLA), extensive interrogations, forced tape recordings and written communications designed to convince her family that she had become a revolutionary, and training in guerrilla welfare. She next described how the SLA compelled her under threat of death to participate in the robbery of the Hibernia Bank on April 15,1974, and to identify herself by reading a revolutionary speech. She explained that by the time the group moved to Los Angeles, the SLA had convinced her that they would kill her if she tried to escape and that the Federal Bureau of Investigation also desired to murder her. Appellant added that the SLA required her to make various post-robbery admissions about her voluntary role in the crime.

Appellant’s story continued by describing her participation one month after the robbery in the disturbance at Mel’s Sporting Goods Store. She claimed that her reaction in firing at the store resulted from fear of the SLA, as did her admission to Thomas Matthews of complicity in the bank robbery. She then told how she, the Harrises, and Jack Scott traveled from Los Angeles to Berkeley, then to New York, to Pennsylvania, and finally to Las Vegas in September of 1974. Again, she emphasized that she was an unwilling companion of the group. After mentioning her arrival in Las Vegas, her testimony jumped a year to the time of her arrest in San Francisco on September 18, 1975.

On cross-examination, appellant refused to answer most questions concerning the period between her arrival in Las Vegas and her arrest in San Francisco. 5 In response to questions about her activities, residences, and association with other suspected members of the SLA during this year, she invoked the Fifth Amendment privilege against self-incrimination 42 times.

Prior to government questioning, appellant had moved for an order limiting the scope of the cross-examination so as to avoid the necessity of invoking the Fifth Amendment in response to questions implicating her in other crimes for which she

*1339 was not on trial. Finding that appellant had waived her privilege against self-incrimination as to all relevant matters by testifying in her own behalf, the court denied this motion and allowed the government to ask her questions which resulted in her assertion of the Fifth Amendment. United States v. Hearst, 412 F.Supp. 885 (N.D.Cal.1976). Appellant now offers five separate grounds for finding that the court committed reversible error in making this ruling.

1. The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” But it is also true, as the trial court stressed, that a defendant who testifies in his own behalf waives his privilege against self-incrimination with respect to the relevant matters covered by his direct testimony and subjects himself to cross-examination by the government. Brown v. United States, 356 U.S. 148, 154-55, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). Appellant contends that she “did not voluntarily waive her Fifth Amendment privilege by testifying because her testimony was compelled by the introduction of certain evidence, i. e., post-crime conduct, which was challenged as inadmissible and highly prejudicial.” Reply Brief for Appellant at 7. She pleads that she was caught between the “rock and the whirlpool” when forced to decide whether to testify or allow the evidence to stand unrebutted.

The validity of this argument depends largely on appellant’s assumption that evidence of her post-robbery behavior was admitted erroneously, and that she had no choice but to respond to this inadmissible evidence. We have concluded previously, however, that the trial court determined correctly that this evidence was relevant and admissible. Thus, appellant’s attempt to compare her situation to that involved in Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), where the defendant had to testify in order to overcome the impact of prior confessions which had been illegally obtained and introduced, is unconvincing. In the present case, neither the trial court nor we found that any illegal, inadmissible evidence forced appellant to testify.

Appellant also suggests it is sufficient that she thought she was being compelled to testify in response to the admission of evidence which she perceived as prejudicial, inadmissible, and damaging to her defense. We refuse to hold that a defendant’s subjective impressions of what he is “forced” to do during his trial are enough to render his testimony involuntary. A defendant often will view evidence as incriminating and inadmissible, and feel that he must take the witness stand in order to save his case. This is an inherent feature of our criminal justice system, however:

The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination.

Williams v. Florida, 399 U.S. 78, 83-84, 90 S.Ct. 1893, 1897, 26 L.Ed.2d 446 (1970). In Williams, the Supreme Court found that the defendant had a free choice between giving notice of his alibi defense, as required by a Florida statute, and refraining from presenting this defense. Similarly, in our case, we find that appellant freely elected to testify in her own behalf.

2. Appellant also argues that she did not waive her privilege against self-incrimination because her testimony was limited to the collateral issue of the voluntariness of certain statements (i. e., the admissions of willing participation in the bank robbery) made by her and introduced into evidence over her objection. She contends that since her testimony did not address the merits of the case, the government should *1340 not have been allowed to ask questions which attempted to prove her guilt. She refers us to Calloway v. Wainwright, 409 F.2d 59, 66 (5th Cir.), cert. denied, 395 U.S. 909, 89 S.Ct. 1752, 23 L.Ed.2d 222 (1969), which stated: “[t]hat appellant took the stand for the sole purpose of testifying upon the credibility of the voluntariness of his [earlier] confession should not be taken as a complete waiver of his constitutional privilege against self-incrimination.”

Appellant’s assumption about the nature of her testimony is completely erroneous. The central theme of her lengthy testimony was that from the moment of her kidnapping to the time of her arrest she was an unwilling victim of the SLA who acted under continual threats of death. She tried to show, not merely that she made her admissions involuntarily, but that she acted under duress in robbing the Hibernia Bank, firing at the sporting goods store, and traveling with the Harrises for over one year. She disputed the main element of the government’s case: that she had the necessary criminal intent when she participated in the bank robbery. Thus, her reliance on Callo-way is misplaced, for that case dealt with the much narrower situation in which a defendant takes the witness stand solely to deny the voluntariness of his confession. Calloway v. Wainwright, supra, 409 F.2d at 66.

3. Appellant next claims that even if she did waive her privilege against self-incrimination by testifying in her own behalf, the waiver did not extend to the period between her arrival in Las Vegas and her arrest in San Francisco. She argues that since she did not testify concerning her activities during this “lost year,” the government had no right or reason to ask any questions about it. She would confine the proper scope of cross-examination to the events which she specifically discussed during her direct testimony.

We find that appellant misinterprets the controlling case law on waiver and the permissible limits of the cross-examination of a testifying defendant. The Supreme Court has stated that when a defendant takes the witness stand, “his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination.” Brown v. United States, supra, 356 U.S. at 154- 55, 78 S.Ct. at 626. “[A] defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination.” McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711 (1971). This rule is premised on basic goals of fairness and ascertainment of the truth:

The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry. Such witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all. He cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute.

Brown v. United States, supra, 356 U.S. at 155- 56, 78 S.Ct. at 627. Nowhere in this rule is there even a suggestion that the waiver and the permissible cross-examination are to be determined by what the defendant actually discussed during his direct testimony. Rather, the focus is on whether the government’s questions are “reasonably related” to the subjects covered by the defendant’s testimony.

Applying this principle to the present case, we conclude that the trial court did not abuse its broad discretion, United States v. Higginbotham, 539 F.2d 17, 24 (9th Cir. 1976), in allowing the government to ask questions about the year which appellant failed to cover in her direct testimony. As we have already concluded, appellant’s testimony was not limited to disputing the voluntariness of her post-robbery ' admissions. Instead, she attempted to show that from her kidnapping until her arrest *1341 she acted exactly as her captors directed. 6 She tried to persuade the jury that her post-robbery conduct and feelings of fear, dependence, and obedience proved that she had also acted involuntarily and without criminal intent in robbing the Hibernia Bank.

We agree with the trial court’s conclusion that appellant’s testimony placed in issue her behavior during the entire period from abduction to arrest, and gave the government a right to question her about the “lost year.” See United States v. Hearst, supra, 412 F.Supp. at 887. Although appellant did not discuss this year, the natural inference from her other testimony, if believed, was that she had acted involuntarily during this period. Having offered selective evidence of the nature of her behavior for the whole period, appellant had no valid objection to the government’s attempt to show that her conduct during the omitted year belied her story and proved that she was a willing member of the SLA. Since appellant’s direct testimony raised an issue about the nature of her conduct during the entire one and one-half years prior to her .arrest, the government’s questions about her activities, associations, and residences during the interim year were more than “reasonably related” to the subject matter of her prior testimony. That answers to these questions might have implicated appellant in crimes for which she was not on trial had no bearing on the questions’ relevancy or relationship to her direct testimony.

4. Appellant argues that even if she had no right to refuse to answer the government’s questions, the court erred in allowing the prosecution to continue to ask questions which it knew would elicit repeated assertions of the privilege against self-incrimination. We find that appellant’s authorities do not support her proposition. Her cases involve situations in which the government or the defendant questioned a witness or a co-defendant, knowing that a valid, unwaived Fifth Amendment privilege would be asserted. E. g., United States v. Roberts, 503 F.2d 598 (9th Cir. 1974), cert. denied, 419 U.S. 1113, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975); United States v. Beye, 445 F.2d 1037 (9th Cir. 1971); Sanders v. United States, 373 F.2d 735 (9th Cir. 1967). She fails to offer support relating to the very different problem, present in our case, in which the government attempts to cross-examine a witness-defendant who has previously waived his privilege against self-incrimination.

In determining whether it is improper for the government to ask a defendant questions which will result in an assertion of the privilege against self-incrimination, the central consideration is whether the defendant has waived his privilege as to the propounded questions. When a witness or a defendant has a valid Fifth Amendment privilege, government questions designed to elicit this privilege present to the jury information that is misleading, irrelevant to the issue of the witness’s or the defendant’s credibility, and not subject to examination by defense counsel. See Namet v. United States, 373 U.S. 179,186-87, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). Therefore, we do not allow this form of questioning.

But when a defendant has voluntarily waived his Fifth Amendment privilege by testifying in his own behalf, the rationale for prohibiting privilege-invoking queries on cross-examination does not apply. The defendant has chosen to make an issue of his credibility; he has elected to take his case to the jury in the most direct fashion. The government, accordingly, has a right to challenge the defendant’s story on cross-examination. Brown v. United States, supra, 356 U.S. at 154-56, 78 S.Ct. 622. The *1342 government may impeach the defendant by developing inconsistencies in his testimony; the government may also successfully impeach him by asking questions which he refuses to answer. If the refusals could not be put before the jury, the defendant would have the unusual and grossly unfair ability to insulate himself from challenges merely by declining to answer embarrassing questions. He alone could control the presentation of evidence to the jury.

Our view finds support in decisions construing the propriety of judicial and prosecutorial comment upon a defendant’s refusal to testify. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), held that neither the government nor the court may comment on an accused’s exercise of his Fifth Amendment privilege by refusing to testify. But it has long been established that comment is allowed when a defendant fails to explain evidence against him after first waiving his privilege by taking the witness stand. Caminetti v. United States, 242 U.S. 470, 492-95, 37 S.Ct. 192, 61 L.Ed. 442 (1917). 7 Since the offering of questions designed to elicit invocations of the Fifth Amendment is really only a form of comment upon the defendant’s failure to testify, intended to present to the jury the government’s interpretation of his credibility, we believe that the rule of Caminetti should apply to the present case.

We have concluded that appellant waived her privilege against self-incrimination with respect to her activities during the interval between her arrival in Las Vegas and her arrest in San Francisco. Therefore, it was permissible for the government to ask questions about this period, even though they led to 42 assertions of the Fifth Amendment.

5. Finally, appellant contends that the trial court committed reversible error by stating initially that her privilege against self-incrimination continued in full effect even if she testified but then ruling later in the trial that she had waived her privilege by testifying. Appellant asserts that she testified only in reliance upon the first ruling, and that she would never have spoken if she had known or thought that the court would allow the government to ask questions which resulted in her invocation of the Fifth Amendment. She concludes that the prejudicial effect of her repeated use of the privilege was great, and that her conviction must therefore be reversed.

We find two flaws in appellant’s theory. First, the record does not show a firm, unequivocal ruling by the trial court which appellant justifiably could have relied upon in believing that her Fifth Amendment privilege was not subject to waiver. During a special hearing on the voluntariness of certain of appellant’s statements, the trial judge did misrepresent or ignore the controlling case law, see Brown v. United States, supra, by stating his belief that a defendant never waives his privilege against self-incrimination by taking the witness stand. 8 Although the court’s statement was somewhat confusing and misleading, appellant could not reasonably have believed that this pronouncement, given in the very limited context of a voluntariness hearing, was a promise to her that she could testify on the merits during the trial without subjecting herself to cross-examination or comment upon her refusal to answer *1343 government questions. The only proper and truly binding decision on the issue of appellant’s waiver of her Fifth Amendment rights was the formal, specific ruling in which the court held that there had been a waiver. See United States v. Hearst, supra.

*1342 “I don’t think the defendant ever waives the right of self-incrimination by taking the witness stand, and she has the right — or she has the right to assert that privilege in any proceeding at any time in any place under the Constitution of the United States. So I will have to rule she has not waived.” R.T. 473.

*1343 Appellant points to another segment of the trial in which the court appeared to reaffirm its earlier statement. 9 However, this second opinion about nonwaiver was made after appellant had testified on direct examination. Since she had already testified, this misstatement of the law was harmless. Appellant cannot claim now that she relied upon it.

Second, we do not believe there is sufficient evidence that appellant relied upon the court’s initial opinion, given during the voluntariness hearing, in electing to testify. Before we may conclude that a defendant was prejudiced by an erroneous or subsequently modified ruling by a trial court, there must be some showing or reasonable inference that he did in fact rely upon the decision. See Johnson v. United States, 318 U.S. 189, 197, 63 S.Ct. 549, 87 L.Ed. 704 (1943). If the defendant ignored the ruling or did not base his actions on it, there is obviously no prejudicial error. To vacate a conviction in these circumstances would be to accord the defendant a windfall gain unrelated to any harm he suffered during the trial. It would also have the effect of locking a court into mistaken rulings made during the heat of trial and of preventing it from revising these decisions after considered reflection. As long as there is no evidence of detrimental reliance by the defendant, the course of justice is well served when a trial judge corrects his mistakes and saves an appellate court from the time-consuming task of remedying easily preventable errors.

Appellant has produced no proof, other than her bare assertion, that she would not have testified but for the “promise” made by the trial court of continuous protection under the Fifth Amendment. Recognizing that such direct evidence is difficult to produce, courts do examine the entire trial transcript to determine whether it is probable that the defendant was misled by an erroneous ruling of the lower court. In Johnson v. United States, supra, for example, the trial court mistakenly granted the defendant’s claim of privilege but later permitted the prosecutor to comment adversely upon the use of the privilege. Emphasizing that the record showed the defendant almost certainty testified in reliance upon the early ruling, the Supreme Court found error in the trial court’s change of position. Id. at 197-98, 63 S.Ct. 549.

In the present case, however, we do not believe the transcript shows that appellant testified only as a result of the trial court’s initial statement. The government presented a strong case against appellant. It introduced undisputed evidence that she had participated in the bank robbery. Since bank robbery is a crime requiring only a general intent, the jury could have inferred the requisite intent from the very commission of the act. United States v. Hartfield, supra, 513 F.2d at 259; United States v. Porter, supra, 431 F.2d at 10. Appellant’s only hope was to testify about her role in the robbery. She could not have relied solely on the testimony of her expert witnesses, for the government presented an impressive array of psychiatric testimony disputing appellant’s claim that she had participated involuntarily in the robbery. We believe that appellant would have testified even if the trial court had ruled at the *1344 beginning of the trial that her privilege against self-incrimination was subject to waiver.

III. Admission of the Tobin Tape

While in custody at the San Mateo County Jail, appellant was allowed to receive and talk with visitors. On September 20, 1975, two days after her arrest, one of her visitors was her childhood friend, Patricia Tobin. During the visit with Tobin, which took place in the jail’s visiting room, appellant and Tobin communicated over a telephone-like intercommunication system while looking at each other through a bullet-proof glass window. Most of the conversation between the two was monitored and recorded through a switchboard-type device operated by a deputy sheriff. The deputy conducted this monitoring and recording pursuant to an established jail policy. As the supervisor of the jail testified:

We monitor selected cases and at random cases also, and record those plus manual monitoring to watch for security problems within our facility.

Officials at the jail had previously determined to record all of appellant’s conversations with her visitors in accordance with the jail policy for “very publicized cases or high security problems.”

The jail supervisor delivered the recording of the conversation with Tobin (the Tobin tape) to the FBI and the prosecution. Appellant timely moved to suppress the tape, contending that it was made and delivered to the government in violation of the Fourth, Sixth, Ninth and Fourteenth Amendments. The district court denied the motion, United Sta