Appellant Merle Lyle Chaussee, hereinafter referred to as the defendant, was convicted of the crime of aggravated battery on a government reservation in violation of 18 U.S.C. Secs. 7 and 13, the Assimilative Crimes Act, and Illinois Revised Statutes, Chapter 38, Sec. 12-4. Defendant asserts on appeal that: 1) a mistrial should have been declared by the trial court; 2) the results of a mental examination conducted pursuant to 18 U.S.C. Sec. 4244, should have been disclosed to him; 3) that he received ineffective assistance of counsel; and 4) the sentence imposed by the trial court was incorrect and excessive.1

The facts are not in dispute. On the morning of the second day of his two day trial, the defendant, just before court opened but in the presence of the jury, attempted to escape from the courtroom. The defendant jumped from his seat at counsel table and bolted through the courtroom door into the hall where he was captured by Marshals and returned. At the time of his attempted escape one of the jurors was heard to utter the word "guilty." The trial judge who had not yet entered the courtroom, upon being advised of this occurrence conducted a hearing outside the presence of the jury to determine what had happened. The defendant moved for a mistrial on the grounds that since the jury had witnessed the event, the defendant could not thereafter receive a fair trial. This motion was denied, the trial judge indicating that he would not allow a defendant by a "bootstrap operation" to bring a halt to his trial by his own misconduct. The jury was then brought back into court and admonished by the trial judge to disregard those actions by the defendant which the jurors had just witnessed:

... Now ladies and gentlemen, I want to admonish you to not take into consideration any actions of this defendant other than of course, what has transpired here on the witness stand, but any actions of this defendant other than on the witness stand should not be taken into consideration by you the jury in determining the guilt or innocence of this defendant on this trial.... (Tr. 110)

Defendant asserts that the denial of his motion for a mistrial deprived him of his right to a fair trial by an impartial jury in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States. Defendant argues that the court's instruction to the jury was not adequate and that in view of one juror's prejudicial utterance the court should have made inquiry to determine the existence of any prejudice among the jurors.

The Government defends the denial of a motion for a mistrial on the policy basis that a defendant by his own intentional misconduct should not be permitted to prevent the completion of his trial. The Government also contends that the one juror's utterance did not necessarily indicate that the juror had thereby reached a verdict without regard to the evidence and in disregard of the court's instructions, given both immediately after the occurrence, as already noted, and at the close of all the evidence.2

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The judge fully informed himself as to what had occurred, assessed its impact on the jury and promptly admonished the jury to disregard the defendant's misconduct. Again at the conclusion of all the evidence the judge fully instructed the jury that it was their sworn obligation not to base a verdict of guilty upon anything other than the evidence. There is no reason to assume or speculate that the court's instructions relating to defendant's trial conduct were not efficacious. United States v. Marshall, 458 F.2d 446 (2d Cir.1972).

The evidence that the defendant had stabbed another inmate of the United States Penitentiary at Marion, Illinois, without provaction was overwhelming, yet the jury deliberated for approximately five hours before returning its verdict of guilty. It cannot be said the jury did not conscientiously consider the evidence in the light of the court's instructions.

The defendant now contends that the judge should have made inquiry of the members of the jury in an effort to determine specifically whether or not any prejudice resulted from the defendant's attempted escape. Under some circumstances such a procedure may be advisable, but defendant made no such request at the time.

Prior to this attempted escape during the course of the trial the defendant interrupted the proceedings by addressing abusive comments at a testifying witness. The court excused the jury and advised the defendant:

Mr. Chaussee, I don't know how to say this to you other than the fact that it's your trial and I want to give you a fair trial, sir. And I hope you will act accordingly. (Tr. 19)

Thus, the defendant was admonished by the court about the possible effects his conduct might have upon his trial. Later he made his effort to escape. The fault lies with the defendant, not with the court or the jury. To allow a defendant by his own misconduct to terminate his trial even temporarily would be to allow him to profit from his own wrong.

In his concurring opinion in Illinois v. Allen, 397 U.S. 337, 349, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1969), Mr. Justice Brennan quotes with approval Falk v. United States, 15 App.D.C. 446 (1899), a case in which the defendant was more successful in fleeing than Mr. Chaussee:

"It does not seem to us to be consonant with the dictates of common sense that an accused person ... should be at liberty, whenever he pleased, ... to break up a trial already commenced. The practical result of such a proposition, if allowed to be law, would be to prevent any trial whatever until the accused person himself should be pleased to permit it.... This would be a travesty of justice which could not be tolerated.... [W]e do not think that any rule of law or constitutional principle leads us to any conclusion that would be so disastrous as well to the administration of justice as to the true interests of civil liberty."

Even though it may be a defendant's own misconduct which jeopardizes the fairness of his trial, the trial court, however, remains under a burden to use all reasonable means under the circumstances to insure a fair trial. That responsibility will require responses from the court tailored to the peculiar circumstances.

Under the circumstances of this case the judge's precautions were adequate. A motion for a mistrial is addressed to the sound and broad discretion of the trial judge. Illinois v. Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1972). There was no abuse of the court's discretion in denying the motion for mistrial.

On written request by the United States Attorney the trial judge, prior to trial, ordered a mental examination of the defendant pursuant to 18 U.S.C. Sec. 4244.3 The results of this examination were not made available to the defendant, and the case proceeded to trial. In a post-trial motion the defendant sought a copy of the results of the examination, and the motion was denied.

The purpose of a psychiatric examination under 18 U.S.C. Sec. 4244 is to determine whether a defendant is competent to stand trial. United States v. Maret, 433 F.2d 1064 (8th Cir.1970), cert. denied, 402 U.S. 989, 91 S. Ct. 1678, 29 L. Ed. 2d 155. There is no provision in Sec. 4244 requiring the court to make the examination results available to the defendant unless the report indicates a present state of insanity or mental incompetency. In such event a hearing is held on the issue at which evidence may be submitted including that of the reporting psychiatrist. Other courts have declined to make the reports available. United States v. Everett, 146 F. Supp. 54 (D.Kan.1956); United States v. Bell, 57 F.R.D. 31 (E.D.Tenn.1972).

Similarly, Fed.R.Crim.P. 16(a)(1)(D), does not provide a basis for disclosing the results of a Sec. 4244 examination of an accused. Rule 16(a)(1)(D) provides for the discovery of the results or reports of physical and mental examinations "within the possession, custody or control of the government."4 The report from a Sec. 4244 examination is within the control of the court, not the government.

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No abuse in discretion can be found in the trial court's ruling.

3. Alleged Ineffective Assistance of Counsel

The defendant filed a pro se Motion for a New Trial alleging ineffective assistance of counsel both before and during trial. This motion was denied by the trial court, and this court subsequently granted appellant's pro se Motion to File a Brief Instanter on that issue. Thereafter appellant's attorney filed a motion to withdraw as counsel upon the grounds that he could not effectively present that issue on appeal since he was the attorney who was subject to the defendant's complaint. This court denied counsel's motion and provided that the incompetency issue would be considered on the briefs without oral argument.

Appellant specifically alleges that counsel failed to request discovery of the Sec. 4244 mental examination results; failed to assert an insanity defense; and failed to move for an adequate continuance to allow for the preparation of the insanity defense.

Nothing in this record suggests any lack of experience or ability of trial counsel to adequately represent this defendant. Nothing in this record indicates that counsel failed to meet "a minimum standard of professional representation." United States ex rel. Williams v. Twomey, 510 F.2d 634, 641 (7th Cir.1975), cert. denied sub nom. Sielaff v. Williams, 423 U.S. 876, 96 S. Ct. 148, 46 L. Ed. 2d 109. The trial court was in a first-hand position to judge the competence of counsel and found no merit to defendant's allegation. In defense counsel's appearance before this court on this appeal there was no incompetency apparent.

Defense counsel's failure to secure the results of the Sec. 4244 mental report is no basis for complaint as defendant was not entitled to the report. No reason has been suggested why this court should attempt to pass upon the trial judgment or tactics of counsel. A losing defendant is often prone to unjustifiably blame his counsel. There is no merit in the allegation.

The defendant was charged with intentionally using a deadly weapon, a knife, in committing a battery upon another, causing him bodily harm, upon premises in the exclusive jurisdiction of the United States in violation of Illinois Revised Statutes, Ch. 38, Sec. 12-4,5 and 18 U.S.C. Secs. 7 and 13. This charge makes use of the Assimilated Crimes Act6 whereby a state criminal statute may be enforced by the United States in areas where it has exclusive jurisdiction provided the crime charged is not also punishable by any enactment of Congress.

After the verdict of guilty the defendant was sentenced by the court to the custody of the Attorney General for a term of seven years to run consecutively with a prior sentence of 22 years which the defendant was presented serving for bank robbery. The term provided in the state act under which defendant was sentenced is imprisonment of from one to ten years.

The defendant filed a post-trial motion for correction of excessive sentence on the basis that he should have been sentenced under 18 U.S.C. Sec. 113(c)7 which makes assault with a dangerous weapon with intent to do bodily harm without just cause a federal crime with maximum imprisonment of five years.

The trial court denied defendant's motion on the basis that the federal and state statutes do not prohibit the same conduct, and therefore the defendant was not entitled to be sentenced under the lesser penalty provisions of the federal statute.8 It is clear that "[t]he purpose of the Assimilative Crimes Act, ... is to supplement the Criminal Code of the United States by adopting state criminal statutes relating to acts or omissions committed within areas over which the federal government has exclusive jurisdiction and which are 'not made punishable by any enactment of Congress.' The ACt has no application if such acts or omissions are made penal by federal statutes." United States v. Patmore, 475 F.2d 752, 753 (10th Cir.1973).

It is appellant's position that although the federal and state statutes are worded somewhat differently both statutes cover the same type of crime, and thus only the federal statute with its lower penalty provision is applicable.

Given the classic distinctions between an assault and a battery there is an understandable basis to the trial court's ruling. That view finds support in Fields v. United States, 438 F.2d 205 (2d Cir.1971), but a contrary interpretation of the Assimilative Crimes Act has been expressed by this Circuit in United States v. Anderson, 425 F.2d 330 (7th Cir.1970). In the latter case the defendant was convicted under 18 U.S.C. Sec. 113(c), assault with a dangerous weapon, a car. The defendant, relying on the distinction in Illinois law between an assault and a battery, contended that assault did not include touching and that therefore he should have been tried under Sec. 113(d), since the evidence in his case showed contact.

The court rejected that argument and ruled that an assault as used in the federal statute includes acts which would constitute batteries under state law:

Defendant argues that "assault" does not include any touching, that counsel conducted his defense against a charge of assault and not of battery and that defendant has thus been seriously prejudiced by use of the wrong section of the statute in the charge. Defendant here, of course, is relying on a distinction which is drawn from Illinois law. The wording of Sec. 113 however shows that "assault" in the federal Act is a more inclusive term. The section to which defendant draws out attention, Sec. 113(d), speaks of "assault" by striking or wounding. Thus in Forsberg v. United States, 9 Cir., 1965, 351 F.2d 242, cert. den. 383 U.S. 950, 86 S. Ct. 1209, 16 L. Ed. 2d 212, the defendant was charged and convicted of assault with a dangerous weapon with intent to do bodily harm in violation of Title 18 U.S.C. Sec. 113(c) where the victim had been stabbed.... 425 F.2d 333.

An examination of all the subparagraphs of Sec. 113 reveals that Congress used the term "assault" to include striking, beating and wounding which otherwise would be considered batteries as distinguished from simple "assault" defined in subparagraph (e). See also Williams v. United States, 327 U.S. 711, 66 S. Ct. 778, 90 L. Ed. 962 (1946); United States v. Big Crow, 523 F.2d 955, 958 (8th Cir.1975), cert. denied, 424 U.S. 920, 96 S. Ct. 1126, 47 L. Ed. 2d 327.

Upon reexamination of this issue no reason is seen to change the interpretation of the Assimilative Crimes Act in this circuit.

"Where the government wrongfully secures a conviction under a state statute pursuant to the Assimilative Crimes Act, rather than under the relevant federal statute, the appropriate remedy is not a reversal of the conviction, but rather a vacating of the sentence and a remand to the district court for resentencing." United States v. Word, 519 F.2d 612, 618 (8th Cir.1975).

Accordingly, the conviction is affirmed, the sentence is vacated and the case is remanded to the district court for resentencing under 18 U.S.C. Sec. 113(c).