United States v. Allan Blume, Toby Pett, Roger Ward, David Bianchini

Felix, above, however, specifically says 112 to that drug transactions. Oklahoma 404(b) rule does admission of evidence specifically n. 3. The Court at 1383 S.Ct. prosecution mean constitute a within the the admission adopt rule that to “a declined at 1383 n. 3. Rule of the cases. S.Ct. crime under concerning a of evidence that, Grady Felix nor Beyond neither for that 404(b) prosecution constitutes proposition acquit support rule would that such crime,” that under pointing out con have tal of the Pelham Manor/Brookhaven Jeopardy Clause the Double spiracy necessarily acquit an amounted to admission subsequent barred thus, overturning Dowl- County consрiracy. tal as to the Suffolk evidence, Henry Citron, also v. Felix, See States n. 3. United at 1383 ing. S.Ct. (2d 1988) (government collat Cir. to depth Second, referred the Court relitigating issues erally estopped from case, out that the pointing our Calderone of the defen necessarily decided favor the conduct that court decided Calderone previous may final It judgment). dant prosecution is not conspiracy issue in a at conspiracy bid-rigging that the Suffolk the conduct from but agreement itself the Pelham grew out of Manor/Brookha- asks the to government which by giving conspiracy that ven sense —in agreement, an and there was infer for Manor it was Lansdell bid Pelhаm New- specific mention making hoped by keep others to Lansdell out of Grady bars a subse- conclusion man’s this would not necessar Long Island —but previously when prosecution quent ily involve agreement rig to the bids used to estab- will be prosecuted conduct paving County involving the other Suffolk of the sec- entirety of an element lish contractors, and And it is Ascon Bimasco. Felix, at 1385. The 112 S.Ct. ond crime. relating Suffolk Coun the conversations recounting say, after went on Court place the Ascon and ty, which took between views, appears that while these “[i]t Hendricks, Streuli and principals, Bimasco and Grady eschewed a ‘same evidence’ test quеstions was as to which Gannon asked States, 471 U.S. United Garrett [v. is al grand jury and to he by the which 85 L.Ed.2d 105 S.Ct. given false no leged to answers. have test, ‘single (1985) transaction’ rejected ] explicated in Felix Grady, sense would tests and the ‘same line those between Calderone, prosecution. bar this Grady is not easy to language of conduct’ Felix, at 1385. The Affirmed. S.Ct. discern.” however, en- Court, to become declined subtleties,” staying with “in such meshed conspiracy to commit that a

the rule from the crime separate offense

crime is a Id.

itself. this teachings of line Applying the America, STATES UNITED situation, Gannon’s present to our cases Plaintiff-Appellee, pre charges not barred are perjury perjury acquittal. None vious BLUME, Pett, Roger Toby Allan he for which offense charges relate Defendants, Ward, namely, a conspiracy prosecuted, first was Pelham Manor rig bidding Bianchini, Defendant-Appellant. David Rather, charges perjury Brookhaven. 955, Docket 91-1570. No. County for the Suffolk rigging relate to bid Appeals, States Court certain possibly as to highway districts Circuit. Second True, ev municipalities. Long Island other County conspiracy the Suffolk as to idence Argued Feb. 404(b) in Pel rule under admitted was 10, 1992. Decided June case; Government Manor/Brookhaven ham above, in specifically 58, recounted exhibit dis County highway that Suffolk volved bidding. The Felix footnote referred

trict Anderson, Atty.

Thomas D. Asst. U.S. (Charles Caruso, Vt., Atty., A. U.S. D. Chief, Kirby, Div., David V. Crim. of сoun- sel), Vt., Burlington, plaintiff-appellee. for Kimberly (Zalkind, Sheketoff, Homan Wilson, Homan, Lunt, Rodriguez & Nor- Zalkind, Duncan, counsel), man S. David Boston, Mass., defendant-appellant. for LUMBARD, NEWMAN, Before: WINTER, Judges. Circuit LUMBARD, Judge: appeals David Bianehini from his convic- tion after a trial in the District Court Vermont, for the District of Franklin S. Billings, the result- Judge, and from Chief imprisonment sentence of 250 months weekend, Tenner received a note marijuana, Over to manufacture conspiracy for threatening following his life. On the intent to Mon- marijuana with possession of reported Judge Billings distribute, day, in fur- Tenner interstate travel and for impartial, F.Supp. he could remain and the activity. 759 illegal therancе judge jury. him from the At (D.Vt.1991). contends that the dismissed He time, judge informed trial regarding third-par- that the counsel rulings district court’s involving right him the the events Tenner and indi- juror denied about ty contact with a to he conduct a impartial jury, that failure cated that voir dire of by an to trial a jury panel. party objected. the of Neither jury on the instruct the guilty verdict of not remaining questioned, jurors the When error, the district and that constituted they ap- indicated had been that weight of incorrectly the calculated court by any party, jurors third but two proached apply- purposes for of marijuana involved they spoken to Tenner the said had about guidelines. We affirm sentencing ing the Judge Billings these case. When examined resentenc- and remand for the conviction chambers, they in told him that Ten- jurors ing. disparaging ner had made some remarks Bianchini that David It is uncontested insanity defense. Nei- about Bianchini’s operated highly co-conspirators two however, and his any- juror, appeared to know ther Vermont, in marijuana farms sophisticated bribe, attempted and thing about the both Glover, in West Charles- the other one judge they the could assured remain uncovered searches elaborate ton. Police impartial. voir dire was conducted This tailored climate specially with indoor farms counsel, party and.nеither presence of approx- lighting equipment and control for a mistrial. objected or asked plants. marijuana imately 3700 mature jury returned a verdict After arrest followed. Bianchini’s counts, Bianchini filed a mo- guilty on all 1990, 30, grand jury re- August a On ground for a trial on the tion new against indictment five-count turned a him involving Tenner denied events co-conspirators,1charging his Bianchini and impartial jury. an right trial an In to manufacturing, possessing and them with dated March opinion and order to conspiracy ‍​‌‌‌​‌‌​‌‌​​​‌‌‌‌​​​​​​​​​‌‌‌​‌‌​​​‌​​​‌‌​‌‌‌‌​‌‍distributing marijuana, with Sep- Billings denied the motion. On manufacture, mari- possess and distribute Bianchini was sentenced tember travel in further- interstate juana, and with imprisonment on 250 months a tеrm of trial, activity. At Bianchini illegal ance of a term of 60 charges and to drug instead charges, but contest the did not running Act count Travel months on the his based on insanity defense offered an years by five concurrently, to be followed War. in the Vietnam experiences addition, he was release. supervised $25,0.00and was assessed fined a total Ar- trial, jurors, one of the During the appeal This of the five counts. on each $50 Tenner, Judge Billings that informed thur followed. telephone call from he had received $5,000 man, offering him unidentified deci maintains Bianchini Ten- judge The a mistrial. allowed secure on to sit to continue allow Tenner sion to F.B.I. while the to remain on ner in days the F.B.I. while jury for two He instructed the matter.2 investigated deprived attempt bribery vestigated the other the call with to discuss Tenner not trial, that the failure him of a fair anyone else outside or members jury returned after the new trial grant a investigation. reversible constituted guilty verdicts disagree. “The Constitution error. We testimony, the trial days two After every time trial a new require ‘does not recess. Thanksgiving adjourned stood identity Blume, did not uncover investigation pled co-conspirator, Allan 1. One to link evidence There no caller. is government. Another cooperated with the attempt. bribery fugitive. Bianchini Brophil, is a co-conspirator, Brian juror placed has been in a potentially prime suspect com government’s ” promising situation.’ United States v. tampering investigation, the trial judge Aiello, (2d Cir.1985) must have the necessary discretion to bal (quoting Spain, Rushen v. 464 U.S. ance the interest in discovering the truth (1983) S.Ct. (per 78 L.Ed.2d 267 against the interest of a fair trial. Cf. curiam)). Supreme As the Court has stat Moten, United States v. 660- ed: (2d Cir.1978). impossible is virtually to shield [I]t When first alerted to the bribery at- from every contact or influence that tempt, Judge Billings questioned Tenner in theoretically affect their vote. chambers, outside the presence of counsel. process Due jury means a capable We have repeatedly sanctioned this ap- willing to solely decide case on the proach. Bufalino, See 451; 576 F.2d at it, evidence before and a judge trial ever Miller, 529, United States v. 381 F.2d 540 prevent prejudicial watchful to occur- cert, (2d Cir.1967), denied, 929, 392 U.S. 88 rences and to determine the effect of 2273, S.Ct. 20 (1968). L.Ed.2d 1387 When such occurrences when they happen. reported Tenner that he could not remain Phillips, 209, 217, Smith v. 455 U.S. 102 impartial, Judge Billings replaced him with 940, 946, S.Ct. 71 (1982). L.Ed.2d 78 an alternate juror before the began its At trial Bianchini objected never to deliberations. Remmer United Cf. Judge Billings’ handling jury. He States, 227, 450, 347 U.S. 74 S.Ct. 98 L.Ed. cannot now appellate raise issue for (1954) 654 (allowing juror partic- tainted to Although review. judge did not inform ipаte in verdict presumption creates prej- counsel development of every as it unfold udice). Following dismissal, Tenner’s ed, Bianchini was alerted to attempted judge informed about counsel what had bribery well before the close of defendant’s Aiello, occurred. See 771 F.2d at 629-30 case. mistrial, He did not demand a how (advising counsel after voir juror dire of ever, until after the verdicts were returned. held long harmless as prejudice as no re- When faced with similar situations sulted). past, “we have no reject hesitation in [had] presence counsel, Judge Bill- ing, on grounds, waiver tardily [such] ings then conducted voir dire of the other raised United States claim[s].” v. Bufаli jurors to determine cert, any whether of them no, 446, (2d Cir.), 576 F.2d denied, 451 exposed had been to impermissible contact. 928, 314, 439 U.S. 99 S.Ct. 58 L.Ed.2d 321 jurors When reported two that Tenner had (1978). spoken with them about the de- court district has discre wide fense, Judge Billings continued voir dire in tion to address the effects of unauthorized to chambers determine whether they could party third jury. See, contact on a e.g., impartial. remain Chang An-Lo, See 851 States, Marshall v. 310, United 360 U.S. F.2d at 558-59 (recommending this ap- 312, 1171, 1172, 79 S.Ct. 3 L.Ed.2d 1250 proach). (1959); An-Lo, United States v. Chang cert, (2d Cir.), 851 F.2d denied, 558 There is no reason to believe that Ten 966, 109 493,102 488 U.S. S.Ct. ner’s dismissal jury began L.Ed.2d 530 before the (1988); Aiello, 629; 771 F.2d prejudiced at deliberate United verdict or that the Weiss, (2d Cir.), States v. 752 F.2d third-рarty conduct ju affected the other cert, denied, 474 U.S. Judge 106 S.Ct. 88 rors. Billings’ pro conduct of the (1985). L.Ed.2d 285 impact ceedings right ensured “[W]hether Bianchini’s to an of such contact denied an impartial jury. his fun accused States v. Rug Cf. right damental to a fair trial turns on the giero, (2d Cir.) (no ‘special case,” facts’ of each facts best right impartial left violation of when judgment of the district juror’s court. Sher dismissal came jury had al after v. Stoughton, (2d ready begun Cir. deliberations and after he had 1981). Where here the is spoken defendant also with other about third-party — cert, contact), denied, -, Finally, U.S. objects Judge Bianchini (1991). Billings’ calculating 116 L.Ed.2d method ‍​‌‌‌​‌‌​‌‌​​​‌‌‌‌​​​​​​​​​‌‌‌​‌‌​​​‌​​​‌‌​‌‌‌‌​‌‍of S.Ct. the amount marijuana sentencing рur involved for Next, argues Bianchini poses. figure To arrive at a for sentenc Billings refusing jury- erred ing, judge began with the number of of a ver instruction on marijuana plants during police seized insanity. dict of not searches, estimated the plants number of Insanity Reform Bianchini claims that the grown previously, applied the sentenc 4241-4247, Act of re U.S.C. §§ ing guidelines plant to treat each as the quires such an instruction. equivalent, kilogram of one of marijuana. usually juries Federal courts instruct (ratio U.S.S.G. 2D1.1 for offenses involv § consequences. to consider a verdict's See plants). 50 or more Bianchini does not States, 35, 40, Rogers v. United 422 U.S. 95 contest application of the ratio for the 2091, 2095, (1975) (“the S.Ct. 45 L.Ed.2d growing plants search, during seized sentencing no function and [has] but he past contends that the estimates of regard should reach its verdict without to growing activity should been based on evi imposed”). Judge what sentence weight produced, dence of plants Billings gave typical instruction: grown. punishment provided by law for the [T]he interpreting Other courts the ratios have charged offenses in the indictment or concluded that the guidelines intent of the any resulting proceeding [including ... marijuana by was “to measure live plea guilty by result of the of not the] plants number of dry marijuana leaf insanity exclusively reason of is a matter by weight.” DeLeon, United States v. 955 province judge of the [within] (9th Cir.1992); F.2d 1350 see also by should never be considered in Osburn, United States v. 955 F.2d arriving impartial at an verdict as to the (11th Cir.1992) (recognizing 1509 “anoma- guilt or innocence of the accused. ly” applying harvesting in ratio before Insanity The Reform Act on its face does weight harvesting); actual after United more, compel interpreting and courts (9th Corley, v. 909 States F.2d usually adopt the Act have refused to Bian Cir.1990)(live number, plants measured See, position. e.g., chini’s v. United States marijuana by weight). dried We believe Frank, (9th 1991). 956 F.2d 878-82 Cir. approach comports congres- this best with Neavill, But United States v. passing mandatory in sen- sional intent its cf. 1000, vacated, reh’g granted, en banc provision, tencing U.S.C. banc, appeal F.2d dismissed en 841(b)(l)(B)(vii),and with the rationale § (8th Cir.1989). F.2d 220 corresponding sentencing guideline, for the U.S.S.G. 2D1.1. § support textual Bianchini cites argument for his comes from a Senate indicates Uncontroverted evidence report that reads: Committee produced an amount that Bianchini’s farms jury, in a case in which the [T]he substantially marijuana less than that raised, may in- defense has been be sentencing. Police used for Vermont State the effect of a of not structed on verdict Contois, Jr., Sergeant George Detective guilty by insanity. If a defen- reason of examination at trial and testified on direct requests dant that instruction be evidentiary during an on cross examination given, it is within the discretion produc hearing that each of the two farms court whether to it or not. (3.2 kilograms) of pounds to 4.5 ed 7 to 10 98-225, and that Cong., marijuana per month S.Rep. No. 98th 1st Sess. bud certainly less than amounts harvested were reprinted in 1984 U.S.C.C.A.N. witness and added). kilogram per plant. State (emphasis We read this lan- one that co-conspirator Allan Blume testified decision to guage to leave the instructional (2.7 to pounds to 10 produced one farm of the district court. We the discretion marijuana per month. kilograms) of discretion. 4.5 find no abuse produced duty judges appellate our of an weight marijuana dry The total requires adjust court us to our differences operations, of the when added over the life seized, and formulate a clear rule of law for the 3,700 actually plants courts, guidance 4,000 fairly of trial if that can kilograms. sentence for support a violating be done without our oath or our materially from the differs This amount Court, duty conscience. In this has 11,100 sentencing. Be- kilograms used for recognized been on other occasions. See support the does not cause the evidence O’Grady, States court im- finding upon the district which (2d Cir.1984) (in banc) (Newman, J., sentence, for resentenc- posed we remand Pratt, JJ., with join, whom Winter and con- ing. curring) (altering position “pattern-of- on and case remanded affirmed Conviction receipt” prosecu- in instruction Hobbs Act resentencing. court). tion to avoid even division of banc NEWMAN, Judge, I join Judge ruling O. therefore JON Lumbard’s concurring: giving requested leaves the instruction to the discretion of the trial significant issue raised On the most judge, thereby forming majority position in- appeal this' should be —whether approach. I favor of that Since am of a ver- structed as to agreement disposi- with Lumbard’s insanity— dict of not appeal, tion of the other issues in this I ways. I panel is divided three believe Nevertheless, judgment. concur in I always given should un- the instruction separately write to illuminate the issue for prefers its omission. less the defendant might provide whatever benefit these views Judge Winter believes the instruction judges considering to both to district how Judge normally given. not be Lum- should exercise their discretion on this matter and that the decision whether to bard believes considering to the issue the other courts in give the instruction should be left to the future. judge. in discretion of the trial We are however, might agreement, that the omission of Whatever the law have been in an require day, course the instruction in this case does not earlier it is the sounder jury consequences I inform of the of a reversal of the conviction. share that guilty by insanity, I am satisfied that the verdict of not reason conclusion because Congress provided for manda- requested instruction now that has omission of the was Though panel tory of such defendants. It is error. the is unani- commitment harmless by endorsed the Senate disposition appeal, in its of this its also the course mous Judiciary the giving request- the Committee on the when Com- division on the issue of instruction, unresolved, reported the mittee the bill that established ed if left leaves procedure applicable to such commitment law of this Circuit unclear.1 defendants. paramount obligation to A court has a disposition Normally, a defendant’s after rulings on matters within its make clear weigh jury return of a verdict is not a concern jurisdiction. obligation should That States, Rogers appellate jury, court of the see v. United especially heavily upon an 40, 2091, 2095, 35, 422 95 S.Ct. 45 rulings obliged are U.S. whose trial courts (1975) (sentencing). long It has my L.Ed.2d 1 as I would like view of follow. Much however, usually this recognized, giving requested been the law on the apply salutary principle should not to a strongly prevail, I feel more instruction instruction, requested give could do Leaving three-way not to division unresolved Judge knowing Lumbard believes his not be as intolerable as in circumstances so any proposition majority position for where no course as well and that inсludes that discretion view, were not re- can be solved, If the division my divined. prefers Judge course. Winter judge, request- a trial inclined to jurisprudence,” see In re "nose-count that sort of instruction, knowing that ed could do so 93, 98, Co., (2d F.2d n. 3 Cir. 734 The Herald so and believes he has discretion do Lumbard 1984), avoided. should be so; judge, a trial inclined J believe he should do

51 acquittal by Cir.1975); defendant whose Pope States, v. United 372 F.2d insanity will result in his commitment. 710, (8th Cir.1967), vacated on other exception practice That was usual grounds, 651, 2145, U.S. 88 S.Ct. recognized England nearly two hundred (1968); L.Ed.2d 1317 Pope v. United Case, years ago, see How.St. States, (5th Cir.1962). F.2d 508-10 Hadfield’s (1800), adopted by Tr. approach That recognized the diversiоn of District of Columbia when that Cir- jurors’ attention that if occur jurisdiction cuit was the federal they were instructed concerning the com which commitment was an automatic conse- plexities and uncertain consequences of quence of a verdict of reason not state civil commitment law. It also benefit (“NGI verdict”), insanity Lyles see v. ed the defendant insulating States, 728-29 from the knowledge that a guilty ver cert, (D.C.Cir.1957) (in banc), denied, 356 dict after a insanity successful defense 997, 2 U.S. 78 S.Ct. L.Ed.2d 1067 might well result in a being defendant’s (1958). The view that a should be loose, turned see United States consequences informed of the of an NGI McCracken, (5th 421-25 Cir. verdict, at least where commitment of thе 1974), consequence that would risk inclin mandatory, defendant is has been endorsed ing though to convict even enter Circuit, only by the D.C. but also taining a reasonable doubt about the defen panel Circuit,2 Eighth most state sanity. dant’s courts that question,3 have considered the concerning Federal law insanity the Criminal Justice Health de- Mental significantly fense changed Standards of the was American Bar Associa- however, requiring tion.4 fresh consideration of appropriateness informing Prior to recog- federal law did not concerning of a success- verdict, disposition nize an NGI and the insanity ful defense. Insanity Defense those defendants found not after the Reform 98-473, Act of Pub.L.No. tit. presentation successful of an de- II, IV, (1984), ch. Stat. codified at depended vagaries fense on the of state (1988), 18 U.S.C. 4241-4247 made sever- §§ procedures. civil commitment See United changes. al critical In place, the first a Neavill, 1000, (8th States v. 868 F.2d 1002 guilty verdict only by of not reason of Cir.), upon grant vacated rehearing in of insanity was authorized. 18 U.S.C. banc, (8th Cir.), 877 F.2d 1394 appeal dis- 4242(b)(3). Second, insanity the defense § request, missed at 886 F.2d defendant’s scope was narrowed in and established as Cir.1989) (in (8th banc). 220 Upon that an affirmative defense that the defendant law, state of the federal courts the outside convincing must clear establish evi- District of Columbia followеd the tradition- 4243(d). Third, especially dence. Id. practice al of disapproving instructions to § pertinent appeal, jury concerning disposition the to the issue on this of a guilty mandatory procedure defendant ‍​‌‌‌​‌‌​‌‌​​​‌‌‌‌​​​​​​​​​‌‌‌​‌‌​​​‌​​​‌‌​‌‌‌‌​‌‍found not civil commitment after a success- was insanity See, ful e.g., every defense. established for defendant found not United Alvarez, 1036, (3d guilty by insanity. States v. 519 F.2d 1048 reason of Id. § 2. United States v. Neavill, State, 1000, (Fla.1976) (instruc- erts v. 868 F.2d 1002 So.2d 335 285 (8th Cir.), grant upon rehearing vacated given prefers tion must be unless defendant its of banc, (8th Cir.), appeal dismissed 877 F.2d omission). 1394 See Thomas M. Fleming, Annota- request, (8th at tion, 886 F.2d 220 Cir. Instructions in State Criminal Case in defendant’s (in 1989) banc). Insanity Hospital which Pleads as to Dеfendant Acquittal, in Event 81 A.L.R. 4th Confinement of 3. Erdman v. State, 315 Md. 553 A.2d 244 (trend requiring 667 in state courts favors (1989) (instruction given should be whenever authorizing consequences or instruction on of defendant); People Young, requested by v. verdict). NGI (1987) (same); Cal.App.3d Cal.Rptr. Thomson, People v. 197 Colo. 591 P.2d 1031 Mutina, Relating (1979) (same); 4.ABA Standards to Criminal Justice Commonwealth v. (1975) (same); (1984). Rob- Mental Health § Mass. 323 N.E.2d 294 7-6.8 proves he to the court his release changes fundamental these Since inju- of not create a substantial risk defense, circuits have two insanity federal person damage property or ry to another practice concern- pre-1984 reconsidered present to a mental disease or defect. due consequences informing ing 4243. It suffice to 18 U.S.C. See § verdict, they reached have of an NGI committed with say only that he will be In United States opposite conclusions. by the ultimate release to be determined Eighth Cir-

Neavill, panel of the supra, a court. in- jury should be that the cuit concluded opinion side, Though Judge Moreover, positive Arnold’s formed. on the communi- law,” cating consequence of an verdict “by operation of NGI vacated was guards jurors, per- Eighth against or- the risk F.2d at when the has established an suaded that a defendant banc, at rehearing in dered a defense, might return insanity nonetheless ultimately dis- appeal was and Neavill’s they do not want guilty verdict because F.2d at request, 886 missed at his large at in the the defendant to remain exposition of persuasive opinion remains a community. may It have made sense well following practice of arguments protect the defendant from before 1984 States v. the D.C. Circuit. United guilty the risk of an undeserved verdict (9th Cir.1991), the Frank, ignorant the fact that keeping jurors of pre- to adhere to the Ninth Circuit chose insanity result a successful defense would practice. release from federal cus- in the defendant’s has mandated civil Congress Now that McCracken, tody, see States v. su- success- for defendants who commitment expose the ‍​‌‌‌​‌‌​‌‌​​​‌‌‌‌​​​​​​​​​‌‌‌​‌‌​​​‌​​​‌‌​‌‌‌‌​‌‍pra. It makes no sense now to defense, insanity fully establish an risk of an undeserved defendant important aware of this should be made jurors igno- guilty by keeping the verdict requirement of federal law. and relevant insanity that a successful rant the fact concerning instructed need not be Jurors result his confinement. defense would guilty or of verdicts Judiciary, on the The Senate Committee they reasonably can guilty not because accompanying Insanity De- report in its general awareness that to have a assumed 1984, explicitly en- fense Reform Act guilty exposes the defendant finding practice of inform- dorsed the D.C. Circuit’s and a find- punishment tо the risk of some ing jury that an NGI verdict would in the defendant’s guilty of not results result in confinement: expected to But cannot be freedom. procedure The Committee endorses provides federal law that since 1984 know whereby used in the District Columbia for those found automatic civil commitment in which the jury, in a case insanity. “[T]he raised, may be instruct- defense has been meaning of right to know the jury has a on the of a verdict of ed effect accurately it knows as NGI [an verdict] insanity. If the defendant by reason of knowledge meaning of the by common giv- not be requests that the instruction Lyles v. possible other two verdicts.” en, of the court it is within the discretion States, 728. F.2d at give it or not. whether to keep this informa- There is no reason to 98-225, Cong., 1st Sess. S.Rep. 98th No. every reason to jurors from the and tion (1983), 1984 U.S.C.C.A.N. reprinted in risk it. There is no of make them aware of omitted). (footnotes Judge they from the issues distracting jurors language this opinion Lumbard’s “read[s] can be com- decide. The information must to the instructional decision to leave the clearly in a quickly and brief municated page district court.” See discretion of the sentence, burdening without report disagree. I The Committee’s proce- the details of the commitment with dis- district court has emphasizes that the simply informed jury can be instruction give dure. cretion whether “[i]f by guilty not that the instruction requests if the defendant is found the defendant “endors[ing]” the But given.” committed to not insanity, he will be be reason of the Com- procedure,” “District of Columbia released unless facility and not a suitable report that, mittee’s makes clear unless the suade me that there was no substantial objects, defendant must be in- risk that this withheld an NGI verdict consequences formed they of an NGI otherwise have rendered for verdict. The proce- District of Columbia lack of information as to the mandatory discretionary: dure is not commitment that would have followed such a verdict. may Sometimes a defendant not want given. such an instruction If ap- Because the omission of the commitment pears affirmatively on the record we instruction error, was harmless and be- regard

would not failure to it as I agree cause with Judge opin- Lumbard’s grounds Otherwise, for reversal. when- ion concerning the other issues in ap- ever hereafter defense insanity is peal, I concur in judgment to affirm. fairly raised, judge the trial in- shall WINTER, legal struct the meaning Judge, as to the concurring in the result: verdict reason of insan- ity.... I agree my colleagues with that this mat- States, Lyles v. United 254 F.2d at 728-29 ter view, should be my affirmed. In an (emphasis added) (footnote omitted) (opin instruction on the consequences of a ver- Prettyman JJ.); ion of Burger, id. at dict of not insanity (Bazelon, J., Edgerton with whоm should normally given. not be JJ., Washington, join, concurring part in agree I with Newman that dissenting part); in see United States passage quoted from the Senate Judiciary Brawner, (D.C.Cir. 996-98 report Committee’s states that the kind of 1972) (in banc).5 requested instruction by Bianchini should Indeed, it is why difficult to understand given and does not leave the issue to the one would judge’s wish to leave to the trial trial court’s discretion. The Committee discretion the decision whether to instruct giving of such an instruc “endorsed]” verdict, as to the of an NGI suggested tion and a defendant’s much less what judge factors the trial is request “that the given” instruction not be supposed to consider in exercising such dis- (emphasis added) be left tо the discretion of objected cretion. Unless the defendant has S.Rep. 98-225, district court. No. 98th instruction, every there is reason to Cong., (1983), 1st reprinted Sess. in give it and Perhaps none to withhold it. However, 1984 U.S.C.C.A.N.3182 at 3423. Circuit, judges trial in this exercising the in report, statement a Committee how panel majority discretion that the entrusts be, may ever clear it does not have the matter, to them on this will come to realize force of law where the statute itself lacks that a sound use of that discretion will any provision. relevant Knapp v. Cf. normally giving result the instruction. Revenue, Commissioner Internal (2d Cir.1989) (House F.2d Report stat case, affirming I this concur ing intent of committee not authoritative giving conviction because the error language when not consistent with of stat the instruction in this case was harmless. ute). Still, passage legislation pro defense, That is so because viding mandatory period for a commitment on a claim that the defendant suf- based provides appropriate occasion for us to post traumatic stress disorder fered from giving reconsider whether the of the kind resulting experience, was in- from combat requested by of instruction Bianchini is Judge’s in- substantial and the District mandatory. I it believe is not. oblique struction contained an reference to jury what have been understood The that the is principle nоt instruct- proceedings in the event of an NGI ed as to the sentence that will further be meted out combination, per- salutary factors to a defendant is a verdict. these one. The contemplate explicit endorse- stood to only the exercise of discretion 5. Because of the Committee’s mandatory objects when the defendant of the D.C. Circuit’s instruc- an instruc- ment tion, rule, report’s very agree Arnold as the next sentence makes tional I with that Neavill, passage quoted "may" clear. See United States v. 868 F.2d at use of the word in the report be under- 1004 n. 3. the Committee's must from all, After na- jury’s rors hold that notion. is not relevant to likely sentencе insanity acquittee, rendering tion’s most celebrated a ver- finding task of facts fact, giv- Hinckley, has been confined for over liability. In John on criminal dict years. Nor we assume that the juries to should ing instruction invites of such an average jury speculate regarding the their will that are not within ponder matters acquittal and vio- strong possibility of such authority and creates a by acting specula- late their oaths on that confusion. tion. present nicely illustrates the The case Nevertheless, agree my colleagues I with requested by The instruction problem. discretion to fash- that a district court has follows: Bianchini was as such an instruction in some ion only you If find the dеfendant I that this discre- circumstances. believe that, you I insanity, reason of instruct in which trial tion is limited to cases law, him I must commit under federal particu- that a judge has reason to believe hearing a facility, á and hold suitable insanity acquittees jury may lar think that commitment. Un- regarding continued usually go there is some free and can establish at less the defendant acting jury’s of the on that be- possibility release not create hearing that his example, prosecu- if a witness or lief. For bodily injury to an- a risk of substantial implying par- a tor made a statement other, prop- damage to the or of serious go acquitted defendant would free if ticular pеrson present due to a erty of another proper in- insanity, then a defect, he will remain mental disease or subject appropri- on the would be struction facility. a He will committed to suitable example, another if a trial were ate. For upon certification that only be released place in context of a well- to take mental disease he has recovered from his insanity acquittee being freed or publicized his re- defect to such an extent that or committing well-publi- acquittee a freed (which may upon a lease be conditioned crime, cized an instruction would also be prescribed regimen of treatment and/or appropriate. No such circumstances con- medication) longer no creates such a risk. present case. front us may any contest such government The certification, request a further hear- I therefore concur in the result. me. before that, I if a is to be instructed believe all, proposed at instruc-

on this matter to inform

tion would have to be redrafted insanity acquittee is enti- that an or her mental hearing tled to a on his CORPORATION, The HERTZ days forty of the verdict. 18 illness within Plaintiff-Appellant, 4243(c)(1988). only The mandato- U.S.C. § confinement, therefore, is the ry period of hearing, YORK, period and the between verdict Peter The CITY OF NEW O. forty Sherwood, may any at time within сapacity which be held in his official City would find Corporation days. Whether a defendant of New Counsel York, Green, helpful ‍​‌‌‌​‌‌​‌‌​​​‌‌‌‌​​​​​​​​​‌‌‌​‌‌​​​‌​​​‌‌​‌‌‌‌​‌‍seems doubtful in his official such an instruction and Mark capacity as of Consumer to me. Commissioner York, City Defen- Affairs of the of New I not think that importantly, More do dants-Appellees. jurors in their as- an instruction aids such Docket No. 92-7369. directs them to signed task. It all but date, likelihood of a release consider the Appeals, United States Court reiterate, which, I is none of their matter Second Circuit. role for conceivable business. 10, 1992. June is to an instruction disabuse such acquitted by defendants the notion that incarcerated. are not

reason assume, however, ju-

We should

Case Details

Case Name: United States v. Allan Blume, Toby Pett, Roger Ward, David Bianchini

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 10, 1992

Citation: 967 F.2d 45

Docket Number: 955, Docket 91-1570

Court Abbreviation: 2d Cir.