*2 DUSEN, Before VAN ADAMS and RO- SENN, Judges. Circuit ' OPINION OF THE COURT DUSEN, Judge. Circuit VA^í Defendant-appellant appeals from a ten- year imprisonment of May 7, 1975, based on a finding verdict him guilty of attempting to take money the Nation- al Newark and Essex Bank in violation of 2113(a) U.S.C. on December 1972.1 Defendant complains inadequate jury in- bearing structions his defense. Having carefully considered defendant’s contentions, we affirm the district court judgment and commitment order of May 7, Although defendant does challenge either that attempt to rob the bank in question was made by defendant or the sufficiency of the to support evidence verdict, a statement of the historical facts is helpful to an understanding of defendant’s contentions rulings. court’s Defendant was a schizophrenic. He (Doris had stabbed a female Anthony) in October (Hooker) stabbed a male December at times acted abnormally, complained sometimes of headaches. mumbling Austin was overheard and talk- ing to himself on various occasions. Lor- raine Baskerville during testified that acting winter of 1972 Austin was in an extremely bizarre fashion.2 In March of 1973, approximately time as his the.same arrest the attempted bank robbery, April charged claiming ripped, 1. The plotting indictment get that men were “knowingly wilfully took such action escape plotters him and he had to from the climbing force and violence and ripped clothing. intimidation.” over fences which his On another occasion he Ms. told Baskerville just 2. On one occasion he that 12 came door of her men had run into her bedroom. apartment pants covered with mud Also she testified that Austin claimed to have injure gerprints of value again were Austin once later found on the pipe.3 with a Calmly, Hooker check. and acting like a regular check, cashing customer Austin told Pfeif- said he times in 1972 defendant Several to hurry. Although fer defendant was not got get some money and “I needed carrying gun, he had his hand in his During period'of laté money.”4 pocket to make the teller believe otherwise. friend, “I don’t have said to a *3 dropped Pfeiffer to the pushed floor and a (N.T. going to rob a bank” any money, I am second button to set off general alarm getting ff.). planned ways He 2.149 police. Austin around, turned using a machine he anticipated and money bank, walked unnoticed out of the got into to numbers on possession print in his cab, waiting and drove Later, off. subsequently intended to cheeks which he picture when he saw his in the newspaper, quickly. area cash and then leave the said, laughed “They he didn’t catch me” bank, put Austin entering Prior (8.85-3.86). his face to hide the moles” bandage “on 13,1973, recog- agents not On March (N.T. 2.66) so that he would be the Federal cap pulled Investigation down over his Bureau of went A wool to 206 nized. How- Street, Newark, mole. prominent another ard with a forehead covered warrant a cab to take him the driver of defendant’s arrest. A woman He directed let them into and Essex Bank apartment agents Newark and the recognized to the National went in to for him while he and to wait Austin. He said his name was Nathaniel agents a check. and showed the cash Harris identification (2.43). in that name He was transported to carrying the bank walked into Defendant FBI being office after informed that he a check to a teller at presented bag. He being charged with attempted bank but, window as she money order robbery signed an Advice of Rights checks, cash she did not not authorized form, which he acknowledged he under- told him to take the check it and read stood. Initially Austin denied any knowl- Austin walked to the win- teller. another edge of the attempted robbery, but when Pfeiffer and handed him the of Paul dow told that he had been identified what was handprinted Pfeiffer read check. employees bank and when confronted with (“I want I have a $5000. on the check the surveillance photograph taken at the hundred, desperate. am Give me pistol, bank during attempt, he admitted the twenty Hurry”), dollar bills. looked fifty, crime. He told agents the details of the “figured he meant busi- at defendant crime question and the substance of his 1.11). (G-l, portion The handwritten ness” statement was writing. reduced to Defend- of the check had been overwritten several correction, ant made and initialed a wrote times, making subsequent comparison of paragraph the last difficult, handwriting his own handwriting if impossible. signed appeared the statement. He photographs taken a cam- Surveillance perfectly normal, alert and triggered by being era Pfeiffer there no indicated that de- had likewise suffering fendant been careful to wear indication that he was from any gloves, with the result that no latent fin- mental disorder. moving apartment. seen the candles at the (the Ms. 3. Another defense witness mother of Ms. persons Baskerville was with Austin and other Baskerville) testified Austin told her about at the Eureka Restaurant in Newark when Aus- 1972 that someone was after him and she rec- complained
tin about the size of the ommended that he see a doctor. given they food to him. After left the restau- rant, Austin to burn the restaurant 2.47, 2.147, 2.90, 4. N.T. 3.89-90. At N.T. 3.89 gasoline pouring in front it. Austin down Mr. Hooker testified that in December 1972 the to Ms. Baskerville that he wanted to kill stated got big said: “I to make me some because she had left him in an his mother money, going get big money.” I am me some orphans’ told home. Defendant Ms. Basker- plotting James was ville that her brother against him. 22,1973, capacity defendant entered substantial May On to conform his and, by requirement district court order of conduct guilty plea pro- the law scribing attempted found that bank robbery the court Austin due April disease, mental defect or prosecution’s mentally incompetent as to presently “is testified, experts to the contrary, proceedings unable to understand capacity had such to conform his conduct to properly to assist in his own against him the requirement of such law on that date.7 him “to the and committed custo- defense” Attorney pur- General . . dy of the Since defendant bases appeal to 18 4246 until said defend- suant U.S.C. alleged inadequacies competent mentally to stand trial ant (page appellant’s brief), 32 of we turn to charge. errors in the hearing 1975,5 on January After a February found on
district court I. *4 presently competent that “Austin so as to objects portion Defendant first to a proceedings be able to understand charge of the which was included at against properly him and to assist in his request prosecution and concerned the trial April defense” and commenced on the relationship between the defendant’s 1975. motive and intent in committing the crime. Although experts6 the defense’s testified portion This of the charge is set out in the Austin margin.8 on December did not giving Prior to part this received, hearing, 5. The court on or before this intent to commit the crime. You have also Snow, Godfroy reports testimony of Doctors and Staff concerning heard the defendant’s Reisenleiter, Psychiatrists, and John Staff committing motive in the crime. Psychologist, Springfield, at the Mo. Medical “Intent and motive should never be confused. Prisoners, Federal as well as testi- Center for prompts person act, Motive is what mony Psychologist Reisenleiter. fail to act. Intent refers to the state of mind with which the act is done or omitted. Psychologist Fink examined Austin in Clinical “Personal gain advancement and financial February Dr. Brancale in December 1973 well-recognized are two motives for much of January January and Dr. Kern in human conduct. These laudable motives may prompt person voluntary one acts of good, voluntary So, another to acts of crime. 4.64-65, 4.74, 4.79, 4.93, 4.96, 5.14, 7. N.T. 5.20 too, may prompt per- delusional motives Campean, acting and 5.24. Dr. medical di- voluntarily son to act in a criminal manner. Diagnostic Park, rector of the Center at Menlo “A delusional motive alone is never N.J., examined defendant in December 1973 where the act done or omitted is a crime. January Psychologist Reisenleiter in So, the motive of the accused is immaterial February November and Dr. Feldman on except may insofar as evidence of motive aid spite 1975. In of extensive cross-examina- determination of state of mind or intent.” tion, Campean repeated opinion his Dr. that a (N.T. 6.81-82) schizophrenic, law-abiding who request This was based on Section activity people, could control his would stab Jury Instructions, 13.05 of Federal Practice and way accomplish law-abiding objectives his (2d ed.). Devitt & Blackmar capacity and that defendant had the to control suggests (page 889) that, dissent but for attempt his conduct so as not to to rob the emphasized quoted second from bank. Dr. Feldman testified that defendant above, jury may well have re- was not insane on December and he turned a verdict of finding based on a illegal having capacity act committed the However, of delusional motivation. if the society’s conform his actions to standards. prosecution’s experts found the more credible Also, this witness stated that Austin’s behavior defense, than finding those of the of delusion- was rational. in the bank necessarily al motivation would not have led to charge, 8. This with defendant’s the conclusion that Austin was therefore un- emphasis, been has set forth as follows in de- able to conform his conduct to the law even pages fendant’s brief at 33-34: without the instruction. The dissent eliminates step logical progression: “I have said that a step criminal defendant who is the second in a motivation; 2, hence, step insane at the time of the commission of inability delusional requisite law; criminal offense lacks criminal step conform one’s conduct to the surrounding defendant’s intent from the clear that had made charge, circumstances. You consider that defendant establish order to and done or omitted statement made in- in the charged the offense committed defendant, and all other facts and “required” to was dictment, prosecution in evidence which indicate circumstances crime, elements of essential four prove ordinarily state of mind. It is reason- which were: person intends the able to infer that a acted wil- That the defendant “Third: probable consequences of natural and fully. knowingly knowingly done or omit- acts was sane at “Fourth: Defendant ted. the offense." time a criminal “I have said that of his that evidence out pointed court is insane at the time of the commis- after Decem- state, both before criminal offense lacks the sion of the that “a crim- 18,1972, relevant and ber requisite criminal intent to commit the at the time who is insane inal defendant have also testimony crime. You heard offense the criminal commission concerning the defendant’s motive in com- intent to requisite committing the crime.” lacks the Concerning the issue crime.” mit the place It at this that the intent, court used sanity9 the difference between in- explained court charge: wording in the motive, using language tent and in note presented to be questions are two “There testimony hearing the after you by [sic] *5 note that the last italicized sentence We and psychiatrists, psychologists objected charge by this to of witnesses. other (see 8) by note is modified the defendants suffer from Did the defendant “First. above, quoted in the note 8 final on December or disease defect (delusional a mental which makes clear that motive question you deciding this otherwise) may In considered in deter- or be state of his mental mining evidence “state of mind or intent.” consider may If he that time. and after before both concluded that there are several We have did that question is did, the next then why giving the of this instruction reasons incapacitate or disease defect was not reversible error: capacity to he lacked substantial him that The district court made clear that A. requirements his conduct to conform alleged, motives defendant’s delusional rob- attempted bank against the law of determining relevant whether were bery. necessary acted with the may proved not be ordinarily judge “Intent and intent. The trial wilfullness fath- way no of consider the evi- there is all directly, because directed operations of of defendant’s mental state at sev- scrutinizing the dence oming or charge.10 places eral may infer the you But human mind. by hence, reason of his mental state both verdict of not consider evidence of insanity. 6.82] before and after that time.” [N.T. has been ad- the evidence that “[C]onsider amplified at on were instructions to the defendant’s mental condition mitted as N.T. 6.82. charged, the offense the two before and after charge language, 10. The included this as well stabbings, attempted pipe, assault with a page that as referred to above at attempted setting, testimo- fire and other may “. . . intent be inferred from state- ny Decem- his mental condition between of by ments made and acts done or omitted ber 1972 and March by accused and the victim as well and from to the defendant’s mental “The evidence as surrounding by all the circumstances shown before and after the date of condition evidence the case.” [N.T. 6.75] robbery 1972 bank December purpose throwing light upon “For the of purpose solely of assist- admitted for the the mental condition of the accused at the ing you the defendant’s condi- alleged offense, to determine jury may time of the 884 C. entitled Defendant’s contention that trial
B. language the motives violated “the spir- clear make acts, though it and intent” of United States v. Cur- even a defendant which with rens, origin, do 290 1961), F.2d 751 compulsive11 reject- Cir. or idealistic ed. deter- The defendant was not to conduct restricted in constitute offering See evidence of background be criminal. facts Congress mined many such facts Mfg. Co. presented were Sanitary Standard jury. The wording the charge States, concerning the sanity issue suggested by L.Ed. defendant was included in (7th Cullen, F.2d court, Stevens, is set forth in the margin,12 Mr. Justice 1971), opinion is fully consistent with Judge; where then a Circuit Judge Senior Biggs (then (4th Judge) Chief Moylan, page said at 774: Mfg. Sanitary the Standard 49, 33 S.Ct. page at said case, the Court “. . . The jury must be satisfied 117: page at L.Ed. at page time of committing prohibited defendant, act as a re- good evaded can “Nor [laws] sult of defect, mental disease or lacked measure its own law is motives. substantial capacity to conform his con- permits, it wrong, of what right and duct to the requirements of the law forbids, which he is alleged to have violated.” it in up against set cannot be courts policy its objection D. The accommodation made supposed by defense and, parties, counsel good intention sentences of the entire results.” be, good ten-sentence of some motive was not alleged tion on the date of the doubt, offense.” just sonable every as it must establish [N.T. 6.84] other charged. element of the offense testimony should consider the “[Y]ou of each “A defendant is insane meaning within the [expert] witness in connection with the other if, of these instructions at the time of the give evidence in the case and . . conduct, as a result of men- *6 testimony weight you such as believe it is tal disease or defect he lacks substantial ca- fairly entitled to receive.” [N.T. 6.85] pacity to conform require- his conduct to the should, however, together “You consider it ments of law. with all the other evidence in the case in instructions, “As used in these the terms determining defendant’s mental condition at ‘mental disease or defect’ do not include an the time of the commission of the crime abnormality only by repeated manifested charged in the indictment.” [N.T. 6.80] or criminal otherwise antisocial conduct. Cullen, 11. See United States v. 454 F.2d purpose “For the throwing light upon (7th 1971), citing stating 391 note 12 a case the mental condition of the accused at the compulsion present, that “the must be immedi- offense, alleged time of the jury may impending, ate and and of such a nature as to consider evidence of his mental state both before and after that time. The material is- induce a well founded fear of death or at least bodily injury” provide serious in order to sue, however, is whether the defendant was excuse for crime. sane or insane at alleged the time of the criminal conduct. you, 12. “I further instruct under the defend- “If the you evidence in the case leaves (cid:127) ' plea you ant’s of not there is as know a reasonable doubt as to whether the defend- sanity an issue as to his at the time of the ant was sane alleged at the time of alleged of- offense. The law does not hold a fense, you will guilty, find person criminally him not even accountable for his con- though may appear insane, it person duct while that he since an was sane insane is at capable forming earlier and later times. intent essential to considering the commission of a “In crime. the mental state of the ac- cused, jury always will “The bear in the defendant at mind the time of imposes upon the law never commission of the offense is an a defendant in a charged element of the crime duty and must case the calling burden or government beyond established rea- producing any witnesses or evidence.” II. See sufficiently specific. Butler, (10th Cir. objects Next defendant to the inclu objected to the counsel
1971). Defense sion of this sentence in the as “cir reading “Delusional motive cumscribing insanity”: evidence of the act done or where never “As used in these instructions the terms 6.3). (N.T. The court is a crime” ‘mental omitted disease or defect’ do not include an abnormality manifested only by at N.T. 6.4: re- responded peated criminal or otherwise antisocial par- as to that one arguing “You’re (N.T. 6.82) conduct.” ticular sentence. This sentence was included in the instruc- take you just I said can’t repeat, “To specifically requested tions in writing by out of the particular sentence that one defense complete counsel. See last sen- request itself. page tence on 1 of Document 33 in Crim. request in got to read the “You 263-73, Furthermore, No. D.N.J. we agree entirety.” its prosecution with the this language, to another objected then Defense counsel due to use of “only,” the word instructed charge,13 which requested jury
sentence of that such conduct alone does not prosecution’s to cover the constitute mental disease or designed defect. was jury permitted was to consider criminal schizophrenic that a contention anti-social along conduct with other conduct law-abiding might go to the who was indicating mental disease or defect. The needed help and funds get authorities jury court instructed the that evidence as to an area where his delu- escape from alia, included, inter mental condition “the being he was led him to believe sions stabbings, attempted assault with a threatened, whereas such persecuted pipe, fire setting and other voluntarily engaged schizophrenic testimony of his mental condition . .” might turn to crimi- criminal activities Also, this instruction expressly ap- help and funds.13 activities for such nal supra proved note 32. never submitted a revi- Defense counsel foregoing reasons, For the this contention request prosecution’s sion rejected. which it charge on motive and intent Cf. United give. the court suggested III. Butler, supra at 977. Finally, defendant contends that circumstances, we hold that Under plain error under F.R.Crim.P. 52 for charge, when ten sentences of the these court not to on the conse whole, charge as a did considered quences finding by of a of insanity reversible error. See not constitute province “and/or the of the court *7 Heavlow, States determining disposition in the of the de 1972). fendant.” Cir. “Q. way you of the ten-sentence So I take it then that the 13. This second sentence charge objection requested relate the mental disease in this legal to was made case to the which standard, is, “So, too, provided: that the of absence sub- delusional motives capacity conduct, voluntarily stantial to conform his person prompt in a law- one to act because his motivation was delusioned? person nd to act voluntari- ful manner. ly another right, mainly.” “A. That’s example, For Dr. in a criminal manner.” (N.T. 4.37). Kern, expert, on cross- had testified examination, para- concerning hypothetical 14. Defense counsel contends that defendant schizophrenic: noid entitled at the in- was the least to standard go “Q. give any And if he had a mind to out and struction that the should not car, get certainly to that the fact that he steal consideration to the matter of determining cused, schizophrenic guilt would not be an the or innocence of the is a ac- Blackmar, Jury the see Devitt & Federal excuse for theft? (2d ed.) right. and Practice Instructions 10.01 at “A. That’s interpretation where the jury charge of the to that the failure have concluded We is, my judgment, most instruction, appropriately requested first give such an the made reference to broader societal record. error on this plain appeal, is not criminological aspects insanity and of the recently con- Furthermore, court has defense. give judge of a trial to the sidered refusal a civil likely it was
an instruction that century, the Until thirteenth mental dis- verdict of result from a commitment would or lack of capacity ease was not a crimi- insanity of guilty by reason Then, defense in a case.1 as insanity was defense nal ease where concept law “moved from a of strict liabili- raised, affirming its decision adheres to and fault,” ty one to based on the notion devel- reasons that case for the oped guilt a mental includes element. Judge Gibbons in so well stated evolution, This tied the influence can- Alvarez, 519 F.2d courts, on law ecclesiastical to a led guilt, new concern with slowly moral will be concept Exculpa- district court the whole of mens rea.2 ground tion on the insanity affirmed. ap- first peared in the late thirteenth century, when ADAMS, Judge (dissenting). Henry began Circuit III practice pardoning those believed During insane. the suc- sole, major, indeed the issue in I, ceeding reign royal pardon Edward government proved this case is whether became a involving routine matter in cases had the to con- capacity that the defendant the conviction of a defendant requirements of the form his conduct “mad” when he committed crime.3 My law at the time of the crime. reading of the sub- ultimately responded courts jury by the district court mitted to regular royal invocation of the pardon delusion- concerning relationship adopting insanity as a defense to a criminal al his con- motivation of charge.4 It was a set of defenses majority. duct differs from that of the upon based absence the criminal in- view, of an state- my presence incorrect tent ele- then established confusing ment of law and the nature of ment of certain crimes.5 “And when pre- it sufficiently tainted began law to take of insanity notice as a It is judgment. clude affirmance of the legal defense to a criminal onwas I respectfully that reason that dissent. theory that one who was insane no
mind hence not have could mens rea.”6 By century, the sixteenth de- insanity A. fense was an accepted part of the criminal meaning insanity The function and law.7 present day defense in the are best under- Through eighteenth backdrop century, historical a de- against stood of its fense of lie here, would if de- development. particularly This page page Perkins, 738; 17.08 at or this supra Gray, supra 187 and § at R. at Pope given in instruction n.13; Sayre, supra at 1004-05. 1967): (8th “ discharge your duty you under ‘Just as will 562; Gray, supra Sayre, supra at 1005. you assume the law and the evidence can *8 do the mat- that others will same as to Gray, supra Sayre, supra 5. at See at 561. ” ters for consideration.’ their 1004-16. Perkins, (1957); Gray, 1. R. Law Criminal 738 Insanity Development The Historical Defense: Perkins, supra (emphasis origi- 6. R. 739 at Relevance, Contemporary Am.Crim.L. 10 nal). 559, Rea, Sayre, (1972); 45 Rev. 562 Mens 974, (1932). Harv.L.Rev. 1004 Gray, supra 7. at 562. 560; Gray, Sayre, supra supra 2. at 982-83. at
887
reasoning
of
totally deprived
highlights its contemporary
was
function and
fendant
memory,
understanding, or
so
ability,
connected,
It is
usefulness.
still
as it was in
that he had mens
possibility
nowas
there
incipiency,
its
to the absence of mens rea.
time,
began
too
rigid
rule
required
element,
Without the
rea.8
clearly
by
marked
eroding,
demise most
its
normally
law will
recognize
of in-
Hadfield’s Case9
acceptance in
or
punishment.
countenance
criminality16
of
as a defense to a
delusions
sane
insanity
of
the defendant
said to
King.10 attempting to assassinate
demonstrate the absence of the mental ele-
insanity defense in Brit-
development of the
related,
Closely
and also tied to the
ment.17
ain,
it has relevance to the Amer-
insofar as
growth
defense,
law
common
is the
situation,
M’Naghten’s
capped
ican
belief that the criminal sanction should not
There the House of Lords ruled that
Case.
imposed
on one
morally
who is not
applies if the defend-
insanity
defense
blameworthy;
person,
an insane
acting
labouring under such defect
ant “was
volition,
criminal intent or
without
is not
mind,
reason,
as not to
from a disease
culpable
Finally,
in that sense.18
the insani-
of the act he
quality
nature and
know the
recognizes
theory
defense
a deterrent
ty
it,
or,
know that he did
doing;
if he did
the criminal law. A defendant
is in-
doing
what was
know he was
wrong.”11
sane,
to control his
and therefore is unable
M’Naghten
re-
set out
The standard
behavior,
cannot be
goes
argument,
Ameri-
British and
rule of
the basic
mained
punishment. Since
deterred
de-
Subsequent
courts for
can
century.12
ought not
purpose,
no deterrent
will serve
through the
country,
in this
velopments
Durham be meted
controversial
adoption
out.19
in the District of Co-
formulation
“product”
course,
acquittal by reason of in-
Of
Currens rule
and of the
lumbia
Circuit13
known to
does not mean
require
well
are too
this Court,14
A defendant who
necessarily go free.
will
repetition.15
reason of
is found not
unfolding
narrative
The historical
released,
a criminal
federal case is
but
insanity as a defense
740;
Perkins,
Gray, supra
supra
134, 136,
48,
(1943);
at 562-
S.ct.
R.
at
8.
88 L.Ed.
51
63; Sayre, supra
Balint,
250, 251-52,
at 1005.
258 U.S.
42 S.Ct.
States v.
301, 302,
604,
(1972).
66 L.Ed.
605
See the
(K.B. 1800).
27 How.St.Tr. 1281
9.
lengthy
problem
discussion of the
in Morisette
States,
246, 250-63,
342 U.S.
72 S.Ct.
v. United
Gray, supra at 564.
10.
240, 243-49,
288,
(1952).
96 L.Ed.
293-300
718,
Eng.Rep.
8
722
11. 10 Cl. & F.
California,
909, 912-13,
17. Budd v.
87
1843).
(H.L.
138,
(1966) (For-
S.Ct.
17 L.Ed.2d
139
tas, J., dissenting
cert.);
from denial of
R. Per-
Gray, supra at 567.
739;
kins, supra
Keedy, Insanity
and Crimi-
States,
U.S.App.D.C.
Responsibility,
535, 538-39,
Durham v. United
94
nal
30 Harv.L.Rev.
228,
(1954).
(1917).
B.
summation in the trial court that delusional
motivation is not a
test
defense to a
The formulation of the
for the insan-
act, and
in
ity
in this
was set out in
continues
this
defense
Court
Court to contend
ago.
that
years
by
As
Currens fifteen
stated
instruction was not erroneous.
Judge Biggs,
prohibits
then-Chief
Currens
Resolution
the disagreement
is of the
finding
guilty
since,
from
importance,
utmost
although other
the time
if it is “satisfied that at
of commit-
arguments
presented by Austin,
are
these
defendant,
ting
prohibited
act
as a
sentences from the
are
defect,
or
lacked
result of
disease
appeal.
the heart of the
capacity to conform his conduct
substantial
On the basis of its
review the whole
to the
law which he is
requirements
charge and
comparison
its
have violated.”21 Put another
the majority holds that the
that
way,
requires
Currens
the defendant
questioned
sentences
do not
re-
constitute
if,
guilty
insanity
reason of
by
found not
versible
I
agree.
error.
cannot
raised,
once the issue of
is
Three lay
expert
witnesses and five
wit-
government
that
prove
fails to
when
nesses testified that
Austin had a
act,
prohibited
committed
people
belief
certain
were
plotting
capacity
had substantial
to conform his con-
“get” him
were coming
after him.
requirements
duct to the
of the law. The
being
Austin’s fear of
chased and caught
undeviatingly
Currens
been
standard has
by
was described
several
the expert
wit-
adhered to
Court
this
since its
nesses as a delusional motivation that led
adoption,22
continuing viability
and its
is
him to conclude that he needed
money
questioned
not
today. Consequently, the
to escape
pursuers,
order
his
and further to
given
issue
us
the charge
before
is whether
believe that it was
necessary
him to rob
to the
jury complied with
strictures of
a bank in
order
secure the money.
Currens.
While it would thus appear that Austin
The two critical
in the ten-sen-
sentences
intended to
money
bank,
take
from the
portion
tence
jury charge challenged
jury could have concluded—with reference
by Austin are as follows: “A delusional
government
Currens test—that the
motive
alone
never
defense where the
still
not
So,
proven that Austin
act done or
a crime.
had sub-
omitted is
capacity
stantial
conform his
except
motive of
accused is immaterial
behavior to
requirements
fact,
of the law.
In
insofar as evidence of motive
aid de-
expert
termination of state of mind
intent.”
witness described Austin’s
behavior
counsel,
at the time
Through
objected
his
Austin
robbery
bank
strongly
exactly
charge.
"jury
those terms. The
could
objection,
pursued
basis of the
which is
have reached this result if it believed that
Court,
vigorously
pres-
in this
is that the
Austin’s
were
strong
they
delusions
transgressed
ence of these two sentences
ability
overcame his
behavior,
to control his
Alvarez,
20. United States
Brawner,
519 F.2d
U.S.App.D.C. 1,
ed States v.
(3d
1975).
Cir.
District of Colum-
F.2d
979-81
bia,
a defendant
is found
insanity
committed,
automatically
reason of
applied
test
been
has
Court
although
granted
hearing
he must be
within
Virgin
Bellott,
Government
Islands v.
days
confinement
for a determination
(3d
1974);
Lutz,
F.2d 1393
Cir.
United States v.
eligibility
of his
for release.
24-
D.C.Code
(3d
1970) (per curiam);
889
gave
conduct
jury
not conform his
the
a correct charge, tracking
could
he
that
to take
jury chosen
language
Had the
of Currens23
providing
the law.
would have followed.
route, acquittal
jury
this
with other correct
appli-
statements of
legal principles.
cable
I recognize that the
the first
not have served
Acquittal may
propriety
jury
of a
generally
instruction is
punish-
rationale of
defense—
by viewing
be assessed
the charge as a
in-
act with criminal
ing
those
But I must
that,
whole.24
conclude
rob the
did intend to
Austin
tent —since
case,
circumstances of this
charge
have
consistent
would
been
bank. But
so sullied by
nonetheless
the two sentences
avoiding
remaining
with the
rationales —
just
that
described
reversal of the
morally
who are not
those
ought
ensue.
those who
their acts or for
blameworthy for
event,
ac-
an
In
are not deferrable.
Decisions of both
Supreme
Court and
with the
consistent
have been
would
quittal
establish
Court
conviction in a
in Currens.
rule laid down
criminal case cannot
if the
stand
that are
jury
misleading.
major
of the two
Su
In the first
preme
mo-
opinion
delusional
Court
setting
out
rule is
quoted from
—“A
act
Frankfurter,
where the
that of Justice
writing
tive
is never
for the
alone
jurors
ais
crime.”—the
Court
in Bollenbach
done or omitted
v. United States.25
Aus-
advised not to consider
were
essence
That
a supplementary
case involved
instruc
moti-
they
if
believed such
given
jury
tin’s motivation
to the
prosecution
tion
in a
Yet, as
delusional
nature.
vation was
conspiracy
transportation
and for
of securi
of that
shown,
finding of motivation
just
commerce, knowing
ties in interstate
them
led to
verdict of not
may
kind
well
to have been stolen.
the jury
After
had
Accordingly, that sentence of
guilty.
hours,
been out for seven
found
itself
as a
to be incorrect
charge would seem
deadlocked, it
totally
asked the trial court
court should
The district
matter of law.
response,
for further
In
instructions.
right to
jury
from the
taken
not have
ultimately
court
stated that if the defend
delusional motivation
connect Austin’s
possessed
shortly
ant
the bonds in
state
behav-
inability to conform his
ability
another,
they were
jury
after
stolen in
law,
and to find lack of
ior to the
presume
could
had stolen them and
Currens if it chose.
culpability under
transported
state
them across
lines.
retired, and
in five min
returned
“So,
quoted
The second of
sentences—
a verdict of guilty.
Supreme
utes with
the accused is immaterial
the motive of
Court held that
the instruction had been
may
motive
except
as evidence of
insofar
wrong,”
“simply
stating flatly that
con
mind or in-
“[a]
of state of
aid determination
ought
viction
not to
equivocal
rest on an
It
to contradict the first.
appears
tent.”—
direction
on a basic issue.
statement,
its con-
but
is not an incorrect
misleading.”26
A
should not
sentence,
at the
junction
preceding
jury.
least,
have confused
very
reversing
a conviction later in the
term,
Bros.,
confusing same
in M.
&
Inc.
to the incorrect and
Kraus
In addition
States,27 a
charge,
plurality
court United
the district
Court
607,
402,
approach
appear
would
to be man-
66
Such
25. 326 U.S.
90 L.Ed.
S.Ct.
350
(1946).
the decision
Government
dated
Bellott,
1393,
Virgin
1397
Islands
495
n.3
613,
405,
66 S.Ct.
L.Ed. at
Id. at
90
Accord,
States,
Estep
114,
v. United
327 U.S.
141, 146-47,
Naughten,
Cupp
94
423, 424,
567,
115,
(1946)
66 S.Ct.
90 L.Ed.
569
396, 400,
373
38 L.Ed.2d
S.Ct.
J.,
result).
(Frankfurter,
concurring in the
Boyd
v. United
U.S.
(1926); United
70 L.Ed.
S.Ct.
27. 327 U.S.
S.Ct.
twined with the incorrect
The doctrine established in these cases
ative their effect.”28
govern
disposition
should
the
of the matter
precedents
These
Court
have
Supreme
sanity
before us. The
now
of the defendant
been
this Court in a number of
in a
followed
criminal case is an element of the
Virgin
the
crime,
In Government of
Islands
and,
put
cases.
once
in issue by the defend
Carmona,29
ant, must,
v.
refused
at least in a federal prosecution,
it
jury
proven
instruct
the
could not convict
be
beyond a reasonable
doubt
the
government.33 Thus,
the
unless it found that he
case,
had
in this
specific intent
to commit
the crime. Em was an issue “basic” to the prosecution,
phasizing
specific
intent was an ele
the sense contemplated
in Bollenbach.34
crime,
reversed,
ment of the
the Court
since Heed
paid
should also be
to the principle
fairly
“an instruction must
set forth all of
articulated
this Court in Carmona —that
the
jury
essential
elements
crime
instructions
concerning the ele
charged.”
placed
Further
reliance was
ments of the offense must
given
be
with
Court’s decision in Bol
upon
Supreme
particular
Further,
care.
it
be
should
borne
mind,
Meade,
lenbach
proposition
for the broad
that “a
as set forth in
that error in
misleading
instruction
is
portion
reversible
of the
describing the
result,
error.”30 The same
in the context
upon
defense relied
at trial
lead to
concerning
of an erroneous instruction
en
reversal.
expressed
The reasons
by this
primary
trapment,
defense used at the Court for its decisions in those two cases
trial, was
reached in United States v.
squarely
are
applicable to
appeal.
Austin’s
Silver,32
v.
Meade.31 In
addition,
In
the incorrect
and confusing
627,
710,
797,
28.
Id. at
particularly No. 75-1320. insanity, since it is involves ing instruction sanity of the defend- only upon proof United States Court of Appeals, government to right of the ant that Third Circuit. *12 rests. The criminal sanction invoke the Argued Jan. criminal law is circumscribed scope of the April Decided insanity defense by its intersection historically and con- and the rationales undergird the defense.
temporaneously say that the defendant jury a cannot
Where the intent to com- forming capable or that he was moral- alleged crime
mit the conduct, his or where blameworthy for
ly penalty would not have
imposition of effect, appro- is not
deterrent view, my jury in this case
priate. opportunity to given an unfettered
was not that determination.35
make judg- I would reverse the
Accordingly, of the district court and remand
ment determine, might jury so that a
matter that is free from both
pursuant to error, government whether the
doubt a reasonable doubt that proven beyond
has capacity to had substantial to law at the time of
conform his conduct alleged crime. offense, square itself, the result reached which It is difficult is critical but today majority judge, just with this Court’s recent emanated from the trial not from prosecutor, Virgin given shortly Islands v. decision Government of and was after the Toto, government emphasized point Court the same judge’s forget a trial extensive curative its summation. We there held that must that “the improper instruction to the on the intro- influence of the trial on the is neces- sarily properly great impeachment weight, evidence —evidence duction of and that lightest implicating an element of the offense —was word or intimation is received with deference, prejudice controlling,” prove caused insufficient to overcome Starr v. States, 614, 626, erroneously admitted evidence. Based 14 S.Ct. reasoning, (1894), “jurors that line of of con- 38 L.Ed. and that viction was reversed. The error that occurred are ever watchful of the words that fall from pronounced, him.” Bollenbach v. in Austin’s trial seems more stronger case for reversal. 90 L.Ed. thus makes out Not did the error concern an element