United States v. Raymond Charles Shapiro

fаlsely did occur but was recorded would challenged entry.” por-

be a tion, In false informing simply was

jury converse, verity if recorded, accurately loan was made and entry.

there was no false was genuine

told reflected a that if the books

event, they acquit. should was no There duly intimation that the loans had

authorized as well as real.

IV

Finally, the defendant main light Garrity

tains that in State Jersey, New U.S. S.Ct.

17 L.Ed.2d 562 his statement to officials, motel,

bank made at the distinguishable. Garrity

inadmissible. question framed the Court was Government, contrary

“whether the requirement the Fourteenth

Amendment, can use the threat of dis

charge incriminatory to secure evidence against employee.” 385 U.S. ‍‌​‌​​​​​​​​‌​​‌‌​‌‌​‌‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌‌‌‌‌‌​‌‌‌​‍at Biggerstaff contrast, 620. In S.Ct. at asserted, reasonably

has not assert, nor could he bank of

that the conduct government

ficers constituted action or

government coercion. judgment of the District Court

Affirmed. America, UNITED STATES of Plaintiff-Appellee

,

Raymond SHAPIRO, Charles Defendant- Appellant.

No. 15677. Appeals

United States Court of

Seventh Circuit.

Aug. Horan, Chicago, 111.,

Dennis J. appellant. Atty., Moellering, Fort

Alfred W. U. S. Wayne, Feit, Dept, Ind., M. Jerome Justice, Wáshington, C., M. Vin- Fred D. Gen., son, Jr., Atty. Beatrice Ros- Asst. Division, Dept, enberg, Atty., Criminal Washington, C., Justice, D. Kenneth Bend, Atty., Fedder, P. Asst. U. South S. Ind., plaintiff-appellee. Judge, HASTINGS,

Before Chief DUFFY, Judge, Circuit Senior SCHNACKENBERG, KNOCH, CAS- SWYGERT, FAIRCHILD, TLE, KILEY, Judges.1 CUMMINGS, Circuit Judge. FAIRCHILD, Circuit inmate, Shapiro, prison a Defendant violation convicted was “Mailing 876, entitled of 18 U.S.C.A. § threatening He was communications.” five-year to run term sentenced to a consecutively he was sentence serving. already appeal originally adoption of a defense of This heard before adopted panel consisting Pur the circuit. of Senior Circuit heretofore sponte, entered, Judges Duffy Kiley sua Fair- order and Circuit suant by to an reargued court, panel suggested cause was full the full child. The banc. en that decision raised before the сourt court of one issue appellant involves serious consideration suggests peniten- appeal, evidence at least defendant claims On contents, employees tiary remove take a fatal variance between there is room, proof, (2) penitentiary them to mail and the indictment admitting ultimately post his con- them over to the trial court erred in turn being evidence, (3) department. into his office fession by disciplined prison vir- authorities vari the claim of We conclude tually he was the same for which act Although statute ance has no merit. the and unusual convicted constituted cruel alternative, grammatically in the it punishment, (4) and court that the trial apparent almost all conceivable in giving erred in not a Durham instruction expressions are instances the alternative requested, on least an as at describing just ways of the different the instruction on American based Furthermore, if the same act. even Institute Model Penal Code. prisoners’ depository mail not a was box charged (1) Variance. The indictment by department post authorized the office “wilfully Shapiro and that defendant system (and part postal thus a knowingly deposit did in an authorized handling of and transmission the depository matter, for mail to sent be regulated by mail, protected various and by Department” Post a the Office regulations), postal the cir laws and threatening letter, quoted full, in in by cumstances of its were such that use violation 18 U.S.C.A. § it, depositing defendant the letter in agents employees District to prison letter addressed to the was his made Judge (who deposit post Grant had sentenced Sha- the letter in office the judge piro) injury depository. and threatened con other authorized In the family. proved problem, his text of a different it was has letter, question Shapiro legal wrote the said that difference there is “no placed causing receptacle mailing peniten- it in a between the letter and the tiary box, prisoners’ appellant known as the mail it mailed. mailed it to be If through himself, thereby and that received it he caused it to mailed. Grant it, the mail. he If he caused someone else mail mailing principal became a in the act of provides a U.S.C.A. § and, it, legally speaking, it mailed him penalty “knowingly deposits for one who self.” any post deposi- office or authorized indictment to inform de- This sufficed tory matter, for mail to be sent or de- fendant of- accused was by Department livered the Post Office proved, fense so which was as enable by knowingly causes to be delivered prepare plead him to defense and to his according Department Post Office judgment any further bar thereon, any the direction communication ” * * * prosecutions for the same offense.3 etc. If the indictment had been causing (2) drafted in deliver- terms of to be A writ- statement confession. office, signed post ed Shapiro could there ten out re- at the question charge agent quest special but had been ad- of an FBI was proved. however, out, points Defendant mitted in evidence. The court found charge voluntarily given was stated in terms after statement was depositing rights. Shapiro letter an authorized was advised of his Vir- depository tually argument appeal only for mail matter and that made on equivocal record is as to the character there in that was unfairness prisoners’ agent, placed mail box. It is not at who the letter knew was prisoners’ box, all prisoners’ Shapiro clear that the mail box is mail induced receptacle employ- post “deposited from which office the same write that he had duty up mail, agent ees pick special have the and the in the U. mails.” The S. 2. Sutton v. United 1935), (7th See Strauss v. Cir. United States 691, 863, 865; 2(b). F.2d 18 U.S.C.A. allowing that, him, putting upon the letter a record con- 4161] it testified depositing showing faithfully duct mail ‘that he has prisoners’ box in the thing. same observed has mails were the all rules and not been in the S. U. * * * subjected punishment.’ the first on conclusion of our In view significance in good point has no existence or forfeiture point, upon dependent time is any in no sense event. may whether the be a misconduct also punish- unusual Cruel strange criminal act. It would be mailed Shortly defendant after ment. anomaly prison if a mere infraction of dis- punished letter, rules would be a basis for forfeiture sending let- ciplinary board because while commission of crime serious institution. the rules violated ter custody while such days time deprived earned of 30 He was custody lead could not would be. This points out parole. Defendant toward (Citations to an absurd result.” omit- five-year max- he since received i ted) delay in days sentence, the 30 imum in- liberty Definition defense of of parole in a loss of result will sanity. The district defined the court longer authorized a time than for of defense as follows: not does Defendant statute violated. “ prosecution argue ‘Insane,’ criminal as used here means such jeopardy, perverted deranged but placed in second a of him and condition liberty for person’s of the loss a claim faculties does mental and moral un- years plus days cruel and is as five to render him either punishment. usual distinguishing “(1) incapable of be- why could right wrong, it incapable tell He does not of tween and or only argues Presumably he knowing called cruel. is nature of act Congress unusuаl, has committing; it because is appropriate years is the five decided that “(2) where he is conscious of the offense. maximum committing and nature of the act he is claim, as as well distinguish right The to this answer and able to wrong between jeopardy wrong, claim sometimes to the double act is knows that the disciplinary made, yet will, is that administrative I mean the his which first sen- governing mind, action under and within power his of has making tence, more simply of it destroyed service completely his ac- so pun- imposition burdensome, of subject it, are are but tions not upon offense conviction of ishment his control.” though one separate even distinct and sub- This definition is same both the act constituted and the same stance the Su- as the definition which prison of infraction rules preme prejudicial approved as not Court criminal offense. the defendant in Davis United by the principle stated well It traditional States.4 differs from the M’Naghten pure circuit in 1944: 8th it definition in that includes, element, a as an alternative punishment. “There is double power, by defendant’s reason lack entirely distinct two matters were defect, his mental control illness good separate. The allowance and time,.until conduct, e., capacity. i. lack of volitional for the entire term earned ** * privilege con- say is which' is Supreme a Court did not expressly definition, M’Naghten U.S.C.A. pure [18 ditioned Davis Pagliaro proof v. Cox 143 F. dealt on the is with the burden of insanity. sue of Davis v. 2d (1895), L. 160 U.S. 16 S.Ct. 373, 378, 165 U.S. 17 S.Ct. Ed. 499. 360, 41 L.Ed. 750. This is the second Davis case. The first Davis decision cognitive only capacity, concerned some other definition which not con- is capacity particular capacity i. e. whether defendant had cerned with the quality impaired know the nature and acts his defendant which has been destroyed distinguish right preferrеd type between is to be over wrong, prejudicial. cognitive would have been of definition which embodies usually however, assumed, is volitional formula. hold, court would so and that federal (ALI) American Law Institute defini- type courts are committed to some tion definition in lack of which volitional “(1) person responsible A not ‍‌​‌​​​​​​​​‌​​‌‌​‌‌​‌‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌‌‌‌‌‌​‌‌‌​‍capacity (like is an alternative element criminal conduct the time of if at such Davis and the American Institute conduct as a result of disease mental definition) one, Durham, or to such as capacity or defect he lacks substantial partic- nоt concerned with the criminality appreciate either to way by ular which mental illness or de- [wrongfulness] of his conduct or operates fect to cause the defendant require- conform his conduct to the engage in offensive conduct.6 ments of law. specifically This court has not “(2) article, As used in this approved particular definition, but terms ‘mental disease or defect’ do clearly type committed to some only abnormality include an manifested involving definition consideration of voli by repeated anti- criminal or otherwise capacity cog tional even where is there social conduct.” capacity.7 Hence, nitive need not we Comparing (ALI) with definition pure concerned with M’Naghten traditional or definition, perceives Davis one only definition, which deals following points of difference: cognitive capacity.8 pre The issues (1) given sented here Davis are the American as in this refers whether case “perverted deranged prefer to Law Institute definition of is to be and condition person’s definition, faculties,” red over the Davis in the mental moral used and trial, where instant and ALI or whether Durham or refers tо “mental disease types competing leaving 6. “There are three definition of comes to ulti- def- close question right-wrong, jury and, sense, (1) M’Naghten, mate of the initions: or in a capacity stated in of is not terms loss of to know standard.” State v. Esser quality (1962), 567, 586-587, the nature and of one’s acts or to 16 Wis.2d N.W. right wrong, distinguish 505, (Footnotes omitted.) know from 2d be- 515-516. tween them. immaterial is whether (7th 7. Williams Cir. power also there has been loss of to 1967), 76, petition for certiorari control one’s It is conduct. assumed that pending; (7th United States v. Cooks really power one does not lose of self 1966), 772; Cir. 359 F.2d United States power cоntrol unless one has also lost (7th 934; v. Cain Cir. 298 F.2d quality to know the and nature of one’s United States Westerhausen distinguish right acts or to between and 1960), 283 F.2d 844. wrong. (2) under in- Definitions ability quality to know the nature and of jurisdiction against In a different and distinguish right one’s acts or to between background, a different historical wrong defense, constitutes but loss opinion pref- author of this recorded his power control, of of self even if stand- retaining existing erence an tradi- ing alone is also a defense. The so-called M’Naghten tional definition unless impulse irresistible modification of proof burden of on the of issue M’Naghten case, falls in does as also imposed could be on the defendant. See proposed American Law Institute Esser, supra, 6, State v. N. 115 N.W.2d requires definition. im- The latter an p. 521, (1966), and State v. Shoffner pairment capacity other, of one 412, 458, Wis.2d N.W.2d (3) but not total loss of either. Hampshire Durham or New definition. 9. The American Institute Model Penal criminally responsible Code, Proposed Draft, May 14, ‘An accused is not Official product 66, p. if his unlawful act was of 4.01. mental disease or mental defect.’ This subject. important dif- abnormality mony (not including on the “an (cid:127)defect” ference, however, to us to оnly by repeated seems criminal manifested complete requires destruction conduct”). Davis otherwise anti-social requires self-control, power ALI where given refers in this case Davis as only “sub- have than that defendant less distinguish- “incapable to one who is capacity” his conduct. stantial to conform wrong, ing right or inca- between impression difficult It is our knowing pable the nature act realistic, and that field absolutes are not committing” refers one is ALI to where * preferable.10 * * approach the ALI is capacity who “lacks substantial weight ap- note, give [wrongful- аppreciate criminality We parent among toward trend the circuits his conduct.” ness] of adoption ALI definition. given (3) Davis, case, refers as in this substance, circuit, in In the third is conscious of the nature one “who although definition, agreed ALI with the committing act able express it limited its definition distinguish right wrong and between ALI, is, lack volitional element of yet wrong, knows that his will the act * * * capacity con to conform substantial mind, governing power of his requirements In duct to of law.11 destroyed completely has been his so ALI, adopted re circuit but tenth subject it, actions but are be- are quired additiоnal instructions yond control,” his where ALI refers con order to must be convict the capacity one who “lacks substantial * * * mentally ca vinced that defendant was to conform conduct his doing, pable knowing he was what requirements of law.” controlling wrong, cond it his and of point With our adopt uct.12 In circuit second impression prob- the ALI terms substituting definition, ed the ALI ably meaningful jury more to a the “criminality.”13 “wrongfulness” for light expert testimony they have eighth recently repeat- has circuit respect point heard. With there expression instructions ed its earlier preference seems tо be little for reason following be ALI other forms would or expression unless it be ALI is the satisfactory they required positive if require shorter and total does not the findings elements, includ- on the various incapacity cognitive in the area which 1963, ing capacity the In control.14 may implied respect in Davis. In by an circuit, affirmance fifth in an observe, also, prefer we that some will re- court, equally to have divided seems “appreciate” the word “understand” over tained the Davis definition.15 “wrongfulness” “criminality” over gov- argument appeal, expression. the the ALI In of this With point (3) distinguishes cоncept capacity defini- the lack of ernment between (ALI) which conform than destruc- tions of defense of rather the jury, governing seems, again, judgment power tion of the call for a moral “medi- are be more consonant with medical testi- those definitions 1963), Supreme (10th 10. The Massa 12. Judicial Court of Wion v. United States Cir. recently adopted 946, 420, chusetts has the ALI F.2d cert. U.S. 325 denied 377 1354, (1964). definition. The court considered it “a L.Ed.2d 84 S.Ct. 309 restatement terms” of for modern the (2d Cir. 13. v. Freeman United States rule, i.e., M’Naghten mer Massachusetts 606, 1966), F.2d 622-625. impulse modification. an irresistible (Mass.1967), Commonwealth v. McHoul 1967), (8th Pope 14. v. Statеs Cir. United 226 N.E.2d 710, petition 372 F.2d for certiorari pending. (3d Cir. Currens 1961), 290 F.2d 751. Carter United States cert. denied U.S. S.Ct. 12 L.Ed.2d 308. cally, morally, Criminal, prepared rather than oriented.” the Instructions — medically-orient- judicial Durham is considered a ed, conference of this circuit.17 definition, phrased or treatment-oriented and This instruction terms government government prove. the the contends that because the In what must speaks adapt definition, ALI definition in terms of “sub- order to it to ALI capacity, government stantial” danger “it creates real and to indicate might those, jury acquit prove that a must both lack of substantial morally responsible capaсity appreciate who while for their the lack conduct, capacity conform, are nonetheless need substantial in- psychiatric requires struction treatment.” follows: revision as interposed “The in- defendant has government recognizes “that sanity presumes as a defense. The law Davis formulation some without pre- that a defendant is sane. This may fairly replaced clumsiness and sumption is rebuttable. a de- Where language.” up more to date It concurs fendant introduces some evidence “in the ‘the view that in most instances at had mental disease or defeсt charge wording exact and the the time of the commission of the comparatively actual name test are charged, prosecution crime must unimportant may more well be little ” establish a reasonable doubt indulgence than an in semantics.’ Cit- that defendant did not have mental ing Pope States, supra, v. United n. 14. disease, defect, despite government’s suggested resolution mental disease or had defect problem the volving in- is “that future cases appreciate capacity substantial both judges the issue of trial wrongfulness either to fesew conduct, day be advisеd to instruct in modern esimiaahty of his and ee to language emphasizing jury must require- conform his conduct knowledge, consider a defendant’s will ments of the law.” are [Additions capacity choice, with the ad- italicized; out.] deletions struck ditional admonition that de- cision must translate fac- those medical argu- haveWe an additional considered judgment.” tors into a moral government against ment raised any liberalization of the definition of the concern, We do not ex share the insanity. that, except defense of This pressed by government, use Columbia, the District of there is of the word “substantial” renders providing federal statute for automatic ALI definition over liberal. we And ac- commitment of defendant a who is pref conclude that the ALI definition is quitted jury in- because found him the erable, light present experience, in the of sane at the time the com- offense was to the definition on the used trial of mitted. Indeed the of criminal rules case, approved and in second Davis. In procedure express provision for make of structions with to defense the special plea special “Not or verdict of insanity in cases tried in this circuit guilty by insanity.” of reаson Deter- decision, after the date of as well as mination of whether such defendant’s case, in Shapiro’s the of retrial should safety public requires own or of the definition, using reflect the ALI the hospital that he committed to a is left “wrongfulness” place word in the of courts, the state officers “criminality.”16 pro- responsibility initiating for a state Insanity any ceeding imposed expressly We ‍‌​‌​​​​​​​​‌​​‌‌​‌‌​‌‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌‌‌‌‌‌​‌‌‌​‍note the instruction on on is not Jury agree found in 5.03 of Manual on the federal officer. We there 16. This the choice of word made F.R.D. These are often called same by Freeman, supra, LаBuy the circuit in in honor of the second the instructions LaBuy, p. Dis- Senior N. 357 F.2d at Honorable Walter J. Judge, and chairman of the commit- trict prepared them. tee which procedure e., gap solv- after the date of in trials commenced an undesirable arises, ing problem this decision. it when the any of de- it definition the must under singling Shapiro of as the out not deem fense of but we do ap- any retrospective beneficiary sole of gap existence a sufficient the of the justifi- plication the of new rule finds rejecting ALI definition.18 reason for the opinion cation in the written reсent Application by in A this case. Mr. Brennan court Justice facts of defendant, Denno, psychologist, 87 S.Ct. clinical called Stovall v. 388 U.S. 12, 1967]: she had administered 18 L.Ed.2d 1199 [June described tests opinion Shapiro stated that her recognize that Wade Gil- “We sociopathic personality; he was a only are, therefore, of victims bert doing it was he was and that knew what pretrial in the absence confrontations wrong, “very impulsive per- is a but his of of the benefit their counsel have sonality very with control.” weak cases. the rules established their psychiatrist testi- called defense they given that benefit That must be very fied that defendant suffers from is, however, conse- unavoidable an personality severe defect which consists necessity quence that constitu- of the being performance of unable to avoid the adjudications mere tional stand as not acts; limit- of in a various knew policies of decision- dictum. Sound way wrong act. ed that was do the making, of Ar- in the command rooted penitentiary psychiatrist, call- staff ticle that we III of the Constitution agreed government, ed solely in concrete cases resolve issues sig- diagnosis, Shapiro “a and that had controversies, possible in the impairment ability to control nificant upon counsel to effect the incentive actions,” although said, his “I feel requiring contentions advance degree of that he retains a sufficient change against law, militate say control I have to that would denying and Gilbert benefit Wade my knowledge that he was best argu- today’s Inequity decisions. ** * capable controlling im- those ably according the benefit results from pulses.” parties of a new rule announced but case in which it is experts is not clear that litigants similarly to other situated agreed difficulty Shapiro’s is а men process appellate have the trial who defect, may tal disease and it regard we raised the issue. But same Shapiro would have considered parties involved fact that responsible even if instructed in terms insignifi- chance beneficiaries as however, Because, the ALI definition. prin- sound adherence to cant cost for requirement of the of the Davis defini decision-making.” ciples of pow complete tion destruction acts, appar- of that Why er control one’s the use not Durham? Defendant may prejudicial ently definition have been well court to instruct asked district testimony, light Shapiro As Rule. on Durham the basis trial. and we therefore reverse for new in stated Durham:19 must be “The rule we now hold emphasize that as to all cases We applied on retrial of this ease the rule, Shapiro’s, other the new re than unlike fol- in future is not cases quiring ALI the instructions to reflect by Hampshire court only, lowed the New definition, applies prospectively, i. 651-652; 1957), 640, F.2d Pow Freeman, supra, 241 18. States v. See United (10th Cir. 13, 625-626; ers v. United States Unit- footnote 357 F.2d at 157, F.2d 305 11, Currens, supra, ed v. footnote States 775-776; Pope F.2d at v. United (1954), 290 19. Durham v. States 94 United States, 862, supra, 14, 874-875, 228, U.S.App.D.C. at footnоte 372 F.2d 214 731-732; Sauer v. States A.L.R.2d United simply judgment, ac- since 1870. It is that an therefore We reverse the criminally responsible trial, if cused is not remand a new with instruc- reflecting product of act the tions his unlawful the ALI definition of the insanity. mental disease or mental defect.” defense of later As added: HASTINGS, Judge (affirming Chief “Consequently, purpose for that the dissenting part in part). in jury dis- should a mental told that be majority opinion, I concur in the ex- any ease defect includes abnormal cept part reversing judg- as to that the condition the mind which substan- remanding ment of conviction and the tially proc- affeсts emotional mental case for a trial. new substantially impairs be- esses and agree I * * * we should take new look ”20 havior controls. insanity applicable at the rule to be The function of a definition of Seventh the Circuit and henceforth defense of as reflected all district courts Circuit Seventh jury instructions, the deciding is aid the should follow the American Insti- men an accused whether who majority tute definition as set out tally engaging was, ill at the time of opinion. Such a course of action is in conduct, af offensive dominated or keeping judi- with the times and modern fected illness tо his degree so sub mental cial trends. society stantial a cannot agree However, I do not use good conscience, responsible for hold him insanity given instruction the conduct as a crime.21 district court in the trial of case Although prejudicial appeal requiring amounted to Durham has an error concept a reversal and reason of its that if offen- a new trial. one’s symp- sive conduct is a manifestation or I judgment would affirm the con- defect, tom of a mental illness or application viction and make of this hospital should rather be cared in a prоspective case hereafter. being yet subjected punishment, than we are not serves the convinced that it SCHNACKENBERG, Judge. Circuit function of a better definition I judgment would affirm the of convic- than or as well as more conventional Shapiro. respect tion of defendant With ones, particularly the instruction when Fairchild’s exhaustive consider- proposition must include the Davis, M’Naghten ation of the and Dur- government prove burden is on ALI, definition, ham rules de- a reasonable doubt that the must remembered de- crucial fense has not established.22 cision with to the mental state Certainty scаrcely possible in this on defendant trial rests with judg- jury, our troublesome area. best after it has evidence and heard the instructions, is to be ment that the ALI definition court’s had an the opportunity and has preferred personally over Durham. the de- observe issue, (1962), proof 20. McDonald v. States once United the burden on tending U.S.App.D.C. proof 312 F.2d has introduced the defense insanity. Davis establish opinion 21. The of this record- author has (the decision) (1895), first Davis would ed his view that the best course 499; 353, 40 L.Ed. 160 U.S. 16 S.Ct. instruct answer Lynch Overholser U.S. just question stated, provided ultimate 705, 713, L.Ed.2d 211. S.Ct. proof im- on issue were the burden of has, howevеr, been held that state Shoffner, posed on defendant. State v. impose may constitutionally burden supra, 8, p. n. 143 N.W.2d 401. Oregon Leland v. on the defendant. concerned, 1002, (1952), 790, 96 far as federal courts are S.Ct. As 343 U.S. 72 government has the rule is clear that L.Ed. 1302.

689 unusual Judge, and cruel a confession Igoe, v. fendant. United States punishment. (1964). 766, Cir., F.2d 7 331 767-768 Fortunately, society our can trust major presented issue fourth making jurors this in consensus this case concerns the instruction regardless determination, dif- given the trial court on the defense fieulty lawyers may experi- judges insanity. adopts today This Court agreeing upon de- in a statement ence the American Institute definition fining insanity in a crimi- as a defense this conviction reverses nal trial. for a new trial. I think in reversal case KNOCH, Judge (dissenting Circuit in entirely unwarranted. What did part). judge proclaimed trial do now join Duffy’s Judge opinion I in with be reversible error? The answer is following proviso. If we are to judge gave an instruction that was recommend an instruction for the future upon approved based the instruction prefer LaBuy I would to use the instruc- Supreme the United States Court Jury tion from 5.03 the Manual on 379, States, 373, Davis v. United 165 U.S. with two small Instructions —Criminal 360, 17 41 S.Ct. L.Ed. 750. The trial changes as shown below. added judge gave rеcog- instruction was word is in brackets. The omitted words proper nized as in this Circuit. are lined out. majority recognizes req interposed The defendant has insan- cognition uisite elements and volition ity presumes as a defense. The law present the Davis instruction as pre- that a defendant sane. This well as in the A.L.I. definition. All rele sumption is de- rebuttable. Where a expert testimony vant on the defendant’s fendant introduces some evidence mental condition received evi he had a mental disease or at defect ‍‌​‌​​​​​​​​‌​​‌‌​‌‌​‌‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌‌‌‌‌‌​‌‌‌​‍given dence. The instruction which was the time of the commission оf entirety should be read in its rather than charged, crime prosecution must with upon attention focused individual establish a reasonable doubt whole, words. When considered as a did defendant not have mental is clear that the instruction contained disease, despite or that dis- the mental all required jury’s elements capacity ease he had the either to know consideration, and was in accordance criminality conduct, of his er [and] prior both with the decisions of this require- to conform his conduct to the Supreme Court1 and with Court’s ments of the law. decision in Davis. In these сircum stances, I would make this a recommendation the failure to use the A.L.I. def only. inition, I any prior would not like see iron- which has time not to this imposed Judges adopted by clad Circuit, cannot, rule on District my opinion, the disastrous result that minor error. semantic constitute reversible Pope (1967), change States, variations which See do v. the basic United 8 Cir. meaning 710, 735-736; 372 would result in reversals. F.2d United Wion v. States, 420, (1963), 10 F.2d Cir. 325 DUFFY, Judge, Senior Circuit affirm- cert. S.Ct. den. 377 U.S. 84 ing part dissenting part. 309; 1354, 12 L.Ed.2d v. United States Currens, (1961), 3 Cir. 290 F.2d parts (3) I concur in (Judge dissenting Hastie rejecting appellant’s 776-777 opinion Fairchild’s part). arguments variance, on based admission 772; (1966), v. (1962), F.2d Cain, 359 Cir. United States Williams, (1967), 934; Cir. 372 F.2d v. Westerhau F.2d United States subsequent be sen, the trial both decided See Cir. Cooks, low. also United States objection I to the use of an have such forth in

instruction as set opinion in Fairchild’s future cases recognize,

in this Circuit. should We

however, difference be- that much have

tween various definitions language proposed one of rather legal As than of substantive standards. recently

has been stated: suspicion deep still entertain a “We legal,

that, psy despite the welter of

chiatric, theory philosophic legal

verbiage, problem much engulfed basically semantic and

words, practical American pos any given (except, case ap

sibly, upon the McDonald-Durham proach), conclu will reach ‍‌​‌​​​​​​​​‌​​‌‌​‌‌​‌‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌‌‌‌‌‌​‌‌‌​‍same along sion, instructed whether M’Naghten irresistible

traditional

impulse lines, upon any ap

proaches or Freeman Currens Pope

variations thereof.” States, supra, page 372 F.2d at given

Since the instruction legal appropriate

accordance with ards, stand- judgment.

I would affirm the CONTRACTORS, INC.,

BALTIMORE Petitioner, BOARD,

The RENEGOTIATION Respondent.

No. 10090. Appeals

United States Court of

Fourth Circuit.

Sept.

Case Details

Case Name: United States v. Raymond Charles Shapiro

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 24, 1967

Citation: 383 F.2d 680

Docket Number: 15677

Court Abbreviation: 7th Cir.