United States v. Robert Lyons

Osborne, O’Tuel

1983). reasons, respectfully dissent.

For these America,

UNITED STATES of

Plaintiff-Appellee, LYONS, Defendant-Appellant.

Robert

No. 82-3429. Appeals,

United States Court of

Fifth Circuit.

April

244 Ill.,

cago, Ass’n, for American Bar amicus curiae. Austin, Maloney, Tex., Frank for Nat.

Assoc, of Lawyers, Crim. Defense amicus curiae. CLARK,

Before Judge, BROWN, Chief GEE, RUBIN, GARZA, REAVLEY, POL- ITZ, TATE, JOHNSON, WILLIAMS, GAR- WOOD, HIGGINBOTHAM, JOLLY and Judges Circuit *.

GEE, Judge: Lyons Defendant Robert was indicted on twelve counts of knowingly and intentional- ly securing controlled misrep- narcotics resentation, fraud, deception and subter- § fuge in 843(a)(3) violation of 21 U.S.C. § (1976) and 18 2 U.S.C. Before trial informed the Assistant United Attorney States that he rely intended to a defense of insanity: that he had lacked capacity substantial to conform his conduct requirements to the of the law because of drug addiction. See Fed.R.Crim.P. 12.2(a). Lyons proffered evidence1 1978 he began to suffer painful from several ail- ments, pre- various narcotics were scribed to be taken pain, as needed for his and that he became addicted to these drugs. present He also expert offered to witnesses testify who would that his Jr., Murray, Orleans, La., Julian R. New addiction affected physiologi- his brain both defendant-appellant. cally psychologically and that as a re- Volz, Atty., John P. Patrick J. Fan- sult he lacked substantial to con- ning, Harry McSherry, W. Asst. U.S. At- form his conduct requirements to the tys., Orleans, La., Sidney Glazer, New law. Atty., Dept, Justice, D.C., Washington, response government’s motion plaintiff-appellee. limine, the district any court excluded Bersoff, D.C., Donald N. Washington, Lyon’s evidence of drug addiction, appar- Psychological Assoc., for American amicus ently ground that such an addiction curiae. could not constitute a mental disease or Director, Lynch, Richard P. American defect support sufficient to de- Ass’n, Washington, D.C., Bar panel Wallace D. fense. A reversed, of this Court Riley, President, Ass’n, American Bar holding Chi- jury’s that it was the responsibility * Judges participate Lyons’ Randall and Davis did reproduced of evidence is in its entirety panel opinion. consideration decision of this case. 704 F.2d at 744- merely 47. We summarize it here. Freeman, (2d Cir.1966); involuntary drug addic- decide whether or Berry United F.Supp. mental disease constitute a tion could (E.D.Pa.1968), ca- grounds, rev’d on other Lyons of substantial depriving defect the re- (3d Cir.1969). his conduct pacity to conform Cf. States Romano, the law. quirements (5th States v. 1983). We Lyons, F.2d 743 Cir.1973), denied sub nom. Yassen Id. the case en banc. agreed to rehear States, 1129, 866, United 414 U.S. 94 S.Ct. 748.2 (1974) (being involuntarily 38 L.Ed.2d 753 drugs under the influence of at the time of I. legal equivalent not a of the crime is insani greater part of two decades our For the also Addiction and Fingarette, See ty). that a defend- followed the rule has 413, Responsibility, Criminal 84 Yale L.J. criminally responsible held ant is not to be (1975) (“there is no 424-25 consensus if, at the time of conduct for conduct profession medical that addiction is a men defect, of mental disease or and as a result disease”).3 tal ap- either he lacked substantial conduct or wrongfulness of preciate the why. of There are a number reasons require- his conduct place, In the first there is an element of conform States, law. Blake v. United ments knowingly reasoned choice when an addict of (5th Cir.1969) (en banc). 908, 916 407 F.2d drugs; acquires and uses he could instead participated in have an addiction treatment legal great weight of au Today the Moore, (opinion program. 486 F.2d at 1183 clearly supports the view evi thority Leventhal, J.). person A is not to be of addiction, standing narcotics dence of mere offending “simply excused for because physiological or other alone and without Bailey, very badly.” 386 very, wanted involvement, raises no issue psychological Second, since the defense of F.2d at can defect or disease as of such a mental acknowledge “essentially an insanity is for the defense. serve as a basis society that of part because ment States, 1, 3-4 Bailey v. United 386 F.2d classes of or defect certain mental disease denied, 946, (5th Cir.1967), cert. 392 U.S. subjects properly the wrongdoers are not Ac (1968). 2300, 20 L.Ed.2d 1408 88 S.Ct. Freeman, 357 punishment,” of criminal cord, Coffman, 567 F.2d United States v. 625, to immun it seems anomalous F.2d at v. 960, (10th Cir.1977); United States 963 other criminal from ize narcotics addicts (en Moore, 486 F.2d 1139, (D.C.Cir.) 1181 Congress has decreed se when sanctions denied, 980, cert. banc), 414 U.S. 94 S.Ct. sale possession for mere penalties vere States 298, (1973); United 38 L.Ed.2d 224 addition, Congress Id. narcotics. Stevens, 461 F.2d 317, (7th Cir.1972); v. 321 responsibility problem with the States, has dealt 987, v. Gaskins United 410 F.2d for their crimes narcotics addicts (D.C.Cir.1967); Green 989 and treat for civil commitment States, (D.C.Cir.1967), providing 199, 383 F.2d 201 prosecution or denied, of addicts lieu 961, 1061,19 ment cert. 390 U.S. 88 S.Ct. See, sentencing. Bailey, 386 F.2d at 4. (1968); United States 1158 L.Ed.2d 819, Williams, (1976); 468 F.2d hearing United States v. we 2. For the banc invited interested en (5th Cir.1972); groups Grennett v. United to submit amicus briefs. Several were 820 received, 928, including (D.C.Cir.1968), briefs from American and that mere 931 Association, Psychological Bar ation, American Associ- does not constitute a mental alcoholism instruction, and the National Association of Criminal warranting an defect Lawyers, for all of which we are ob- 2145, Defense liged. 514, 535, Texas, U.S. 88 S.Ct. 392 Powell 2155, (1968); United States v. 20 L.Ed.2d 1254 1351, Shuckahosee, 1355 holdings rule is consistent with that use 3. This 1283, 919, denied, 1979), 100 S.Ct. cert. 445 per render a of narcotics does not se defendant (1980); v. Mala United States 63 L.Ed.2d trial, incompetent Lewis v. to stand (2d Cir.1966). fronte, F.2d 632 n. denied, (8th Cir.), 837, 97 S.Ct. 50 L.Ed.2d 103 429 U.S. §§ (1976); e.g., fidelity principle 28 but with U.S.C. 4251-4255 that one §§ panel 2901-2906 U.S.C. of our court does not overrule anoth- Today, sitting bane, er. en we overrule “mental Finally, what definition of Bass insofar as it be read to hold that employed by disease or defect” is to be addiction, mere drug voluntary or involun- is, enforcing criminal law in the courts tary, legal can a mental disease for legal, analysis, moral final Insofar, however, purposes. as it counte- judgment.4 policy medical— —not receipt nanced the of evidence of ad- Among purposes of the most basic genuine diction connection with Bass’s preventing person criminal law is that of anxiety mental disease —chronic —to or, perhaps injuring others to a lesser contributed, we find no fault with the degree, purpose himself. This and others opinion. appropriate to law enforcement are not Although mere narcotics addiction is not necessarily applica served an uncritical acknowledged itself to be as a mental dis developed definitions with tion of medical defect, ease or evidence of narcotics addic diagnosis considerations of and treatment by tion has been received some courts as Texas, Powell v. in mind. foremost Cf. underlying evidence of such an condition. 540-41, (Black, at at 2158-59 S.Ct. 199, Green United 383 F.2d J., Indeed, concurring). it would be coinci denied, (D.C.Cir.1967), 961, 390 U.S. concepts deriving dental indeed should 88 S.Ct. 19 L.Ed.2d 1158 In disparate correspond from such sources addition, if addiction has caused actual is, closely, one to the other. Thus it physical damage to the structures of a example, greatly that the law not has con body, defendant’s evidence of that addic cerned itself with medical about any tion has been admitted to show mental accompany as such states the com resulting. defect damage. from that Cf. passion mission of crimes of or of those Brinkley v. United intoxicated; voluntarily done while whatev (8th Cir.1974) (remanding explore 511-12 to be, opinion may policy er that considera possible physiological psychological and ef thought tions have been to forbid its cut long appellant fects of term LSD use on ting figure much of a in court. might and whether these effects amount to Contravening the broad thrust of the au- insanity). above, panel opinion ap- thorities cited reasoning rulings We view the of such as pears suggest “involuntary” drug that Green profound misgivings. To us it addiction can constitute a “mental disease that, proposition seems to rest on the as- bearing or defect” crimi- defendant’s suming drug addiction itself is neither a responsibility. nal 704 F.2d at 747. The defect, yet mental disease nor a the two are panel believed itself bound that rule Bass, association, often to United States v. holding such a be found so that an (5th Cir.1974). person likely addicted so conclud- is more to suffer ing panel acted with obvious reluctance from some mental than disorder is one who Speaking Psychiatric including sociopathic personality of the recent American those with Defense, disorders, Insanity Association Statement on the should be held accountable for Phillip they They washing Professor E. Johnson notes: what do. are not their legal problems, they hands of the believe adopted The APAhas not the extreme views of them, they that the law still needs but under- Szasz, definitely repudiated Thomas but it has legal stand that and moral decisions are ulti- ideology Menninger. psychia- of Karl citizens, mately experts. to be made longer trists no change want the criminal law to regard newly modesty this found as evidence psychiat- to conform to deterministic profession's increasing maturity, instead, not as concepts; they regard ric it as vital to sign a integrity of its failure. discipline "legal of their own Johnson, Review, Book U.Chi.L.Rev. or moral constructs such as free will" be un- Morris, (1983) (reviewing psychiatry. N. Madness and derstood as outside the domain of (1982)). They emphatically people, affirm that most the Criminal Law reasoning, We do not By parity physical doubt not addicted.5 a of actual is damage to the self- brain itself group as a are falls within the combat veterans since of ambit “mental disease or defect.” To evidently likely to have suffered more recognize congenital refuse to a micro- popu- is the physical of a member than loss suffered, cephalic, say, or has one who party a large, of whether lace at evidence damage gunshot extensive brain from a on received a combat should be is veteran trauma, or physical' wound other be Or, leg. lost whether he has the issue thereby to appreciate rendered unable example, since because a less extreme take wrongful character of his conduct would persons Scan- light pigmentation skin Here, presumptuous. within the limits ancestry subject are more to skin dinavian appropriate legal policy considera- others, family of a than are tree cancer tions, day. must medical model have its when should be received evidence suitor The same true of the whether legal issue. The flaw skin cancer is his organic pathology psychosis such brain illustrations seems evident: where in both by drugs. caused can be directly legal ques- bearing evidence available, involving tangential tion asserted his matters, though perhaps logically rel- even that his evidence addiction caused practical theory, is of small value.6 evant physiological damage his brain and that damage this him to caused lack substantial review numerous records over the Our capacity to re conform conduct to the years has revealed no dearth course quirements of law. 704 F.2d at 746. ready willing testify square- experts so, he did our sub Since should —under insanity in trials: ly on the issue of criminal sisting Blake test —have been allowed to the issue all but direct evidence on seems any physical introduce evidence of brain so, readily re- available. Since this is too damage consequent mental disease or ceiving drug addiction in addi- evidence of the offers evi defect. Because likely tion seems to us an exercise seldom tending suggest damage, dence to such prove probative prejudicial than to more that evidence should have been submitted 403, practice. See Rule Federal Rules Blake, jury. 407 F.2d 911. And to at Evidence.7 although today recogni we withdraw our Nor do we see how matters are clarified prong tion of volitional Blake —that by reference the condition of addiction usually has to which such evidence been as damage” to involving “psychological as one should also conclude that advanced —we States, Brinkley v. addict, e.g., wish such in an to offer evidence determine, supra. can nearly As as we cognitive attempt satisfy remaining so is sim- psychological condition described afford prong, fairness demands that we degree or to one so. ply drug opportunity one of addiction him an to do another, already a that we have condition II. disease or as a mental declined view drug- concept A.n criminal legal purposes. for actual defect Because or is a con psychosis, responsibility in the federal courts drug-aggravated induced or decision geries judicially-made nervous rules of damage the brain or physical concepts, usual- would, matter. on common law it is be another based system combat, See, Kornetsky, Opi- evidence he had served in e.g., Adolescent & 5. Gerard Study by lifting Addict Control and than his trouser Addiction: A rather cuff. ate Sutker, (1955); Q. Subjects, Psychiatric Sociopathy Personality in Heroin testimony suggest do not that references in Differences 7. We Prisoners, Abnor- 78 J. and Nonaddict Addicts aggravating or use as the cause of as Psychology, 247 mal particular pathology as should be viewed brain taboo, only attempts to characterize addic- Indeed, counter-productive. One or are not as itself a mental disease defect tion suspicion to have might a claim well view with to be countenanced. only leg supported it who made one lost a ly appropriate pectations. for us to reexamine and Consequently, we now hold reappraise light these rules of new person that a responsible is not for criminal policy considerations. Wion v. United conduct grounds of insanity only if States, 420, (10th Cir.1963). at the conduct, time of that as a result of a last We examined defense in mental defect, disease or he is unable to Blake v. United appreciate wrongfulness of that con- Cir.1969) (en banc), adopted where we duct.9 ALI Model Penal Code definition of insani- We do so for ty: First, several person responsible that a is not reasons. if, mentioned, we have majority criminal conduct at the time of psychia- such conduct and as trists a result of now they believe that possess do not defect, or capacity lacks substantial ei- sufficient accurate scientific bases for mea- appreciate wrongfulness ther to of his suring person’s capacity for self-control conduct or to conform his conduct to the calibrating impairment of that requirements of the law. Id. at 916. Fol- capacity. Bonnie, The Moral Basis lowing circuits, example of sister we Insanity Defense, 69 ABA J. embraced this standard in lieu of our for- (1983).10 “The line between an irresistible one, mer defined Howard v. United impulse and an impulse not resisted is (5th Cir.1956)(en probably no sharper than twilight between banc),8because we concluded that then cur- and dusk.” Psychiatric American Associ- knowledge rent in the field of behavioral ation Statement on the Insanity Defense, supported science such a result. 407 F.2d (1982) Indeed, [APA Pro- Statement]. Unfortunately, 914-15. ap- it now fessor Bonnie states: pears premature our conclusion was —that is, short, There objective no basis for the brave new world we foresaw has distinguishing between offenders who not arrived. were undeterrable and those who were Reexamining today, the Blake standard merely undeterred, impulse between the prong we conclude that the volitional that was irresistible impulse and the defense—a lack of to con- resisted, or between impair- substantial requirements form one’s conduct to the of capacity ment of and some impair- lesser comport the law—does not with current ment. knowledge, medical and scientific which Bonnie, earlier, supra, sanguine ex- retreated from its 196.11 has mentally person totally disordered unable 8. The provided Howard standard to "know” doing what he was or to "know" constituted either “incapacity from some wrong; that it was psychotic person even a distinguish disease or defect to between typically ever, grasp reality. retains some of How- right wrong act, respect or the phrase capacity” "substantial is not inability from such disease or defect to refrain essential to take into account these clinical doing wrong in the commission of the flexibility realities. provided Sufficient act.” 232 F.2d at 275. “appreciate." the term (revised November, Commentary 1983) to Stan- employ phrase prefer- "is unable" in 9. We 7-6.1(a) 7-6.9(b), dards Standing ABA Com- earlier formulation "lacks substan- ence to our mittee on Association Standards for Criminal capacity" for reasons well stated tial (to published). Justice be Commentary American Bar Association of the Standing Committee: Fingarette, Meaning 10. See also H. The Insan- of Wootton, Review, (1972); ity 77 Yale Book pointed Finally, that the it should be out (1968); L.J. Robinson, 1026-27 Statement of David employs the term "unable" in lieu of standard Jr., Insanity Defense, Hearings capacity" language of the ALI the "substantial Comm, Judiciary, Before the Senate on the 97th approach been taken both to test. This has (1982); Testimony Cong., 2d Sess. 72-73 of Ste- simplify the formulation and to reduce Morse, Courts, phen Insanity in Federal juries interpret Defense the test too loose- risk that will Hearings Before the Subcomm. on Criminal capacity” ly. By using lan- the "substantial Comm, Judiciary, of the on the Justice House guage, ALI standard were the drafters of the Cong., 2d Sess. 211 97th trying rigidity implicit in the to avoid the M’Naughten correctly They rec- formulation. one has has noted that no One commentator 11. ognize rarely possible say person losing that it is process a that a ever observed addition, In present risks fabrication and knowledge regarding state of our administering “moral mistakes” in the in- support them is not such as to confident sanity greatest defense are “when the ex- many conclusions about how can dance on perts jury speculate and the are asked to vein, pin.14 may head a like capacity whether the defendant had the day that some tools will be discovered with ‘control’ himself or whether he could have which about reliable conclusions human vo- Bonnie, impulse.” ‘resisted’ the criminal appears lition can be fashioned. It to be all supra, Moreover, psychiatric at 196. testi- however, certainty, despite but a earli- mony likely pro- about volition is more hopes they er do not lie in our today. hands jurors duce confusion for psychiat- than is do, they When and if it will be time to testimony concerning ric ap- a defendant’s again degree consider to what the law preciation wrongfulness of his act. adopt should the sort of conclusions that appears, APA at 12. It Statement more- they produce. then, But until we see no over, overlap that there is considerable be- prudent course for the law to follow but to psychotic person’s inability tween a to un- impulses including treat all criminal those — ability derstand to control his be- not resisted —as resistible. To do other- psychotic persons havior. Most who fail a present wise state of medical knowl- cognitive volitional test would also fail a edge would be to cast the defense test, rendering thus the volitional test su- upon adrift a sea of unfounded scientific Id.12 perfluous Finally, them. Su- speculation, palm with the awarded ease preme authority requires Court that such convincing case to the most advocate of proof prosecutor be made federal presently unknown —and doubt, beyond a an all reasonable but so, remain because unknowable. present impossible task view of the III. Davis murky knowledge. state of medical Thus, Lyons’ claim that he lacked v. United 16 S.Ct. capacity to conform his conduct substantial (1895).13 40 L.Ed. 499 the law will not requirements One need not disbelieve the existence insanity defense. It would be raise the Angels retroactively in order to unfair, conclude that him to remit “beyond self-control, they agree rea- guilty unless could can.” and "that no one Hinckley was sane. If Fingarette, supra, sonable doubt” at 160. literally, amounted to the instruction taken guilty, considering the of not verdict directed Morse, Stephen abo See Statement of Insani- difficulty expert and the deadlock Courts, ty Hearings in Federal Before Defense sanity young certifying man who of a the Subcomm. on Criminal Justice of the House Comm, impress a movie star. the President shot Judiciary, Cong., 97th 2d Sess. unpopular legal usually ignore such Juries (1982). 231 standards, jury surprised Hinckley ev- but the seriously by taking and find- erybody the law Hinckley guilty. will now be ing Hinckley young him not John is the man who at- 13. indefinitely hospital be- tempted to a mental Reagan confined to assassinate President in although “dangerous,” there is no order to attract attention impress he is to himself and to cause do if way predict what he would a movie actress whom he to admired reliable subsequent proceedings determine if from distance. The no reliable test to released and only insanity called into not the de- has been "cured.” 1534, rationality Johnson, Review, fense but the of our adversarial U.Chi.L.Rev. Book 50 Morris, system. jury-trial year (1983) After more than a (reviewing Madness and N. 1536 expensive pretrial maneuvering psychiat- (1982)). and Law the Criminal examinations, lawyers jousted eight ric the for trial, Song Syrens sang, name examining or what the weeks of and cross-exam- 14. "What among ining expert hid himself naturally gave when he witnesses who Achilles assumed women, conflicting confusing though puzzling questions, are not be- testimony and Browne, Hinckley's obviously conjecture.” URN warped yond Sir Thomas whether ty mentali- all BURIAL, legal insanity. judge to amounted in- jury return a the to structed verdict of not 250 newly insanity restricted defense defect that compulsion procure

to our creates a to allowing narcotics, him opportunity to and to use that acting without and one bearing compulsion in under such a plan a its contours mind. should not be defense held Id. at 3. criminally responsible. we vacate his conviction and Consequently, Their testimony consisted of new trial in accordance with their remand for a narcotics, they “addicted insanity for were had our standard. As other been new addiction, to cure unable and cases, holding prospec- shall could today’s have [their] daily not resist use of only, commencing application thirty tive [narcotics].” F.2d at At 386 time this publication. Circuit days date of its from the applying insanity rule, still earlier and VACATED REMANDED. by Supreme as articulated in Court States, Davis v. United 373, 378, 165 U.S. RUBIN and JERRE WIL- ALVIN B. S. 360, 362, (1897), 17 S.Ct. 41 L.Ed. 750 de- LIAMS, Judges, with Circuit whom POL- Case, M’Naghten’s from Eng.Rep. rived 8 HIGGINBOTHAM, ITZ, TATE, and test, essence, That in excul- concurring Judges, join, part and dis- pates who, a defendant because mental senting part: disability, incapable distinguishing be- by appellant, raised The sole issue right wrong, tween and or is unable to Lyons, appellee, the United Blake v. See control conduct. States, iatrogenic is whether narcotics ad- States, 908, (5th Cir.1969) (en 407 F.2d diction alone constitute a mental dis- banc). While Bailey urged defendants support ease or defect sufficient adopt us to the American Law Institute’s prosecu- in a defense of criminal standard, Penal Model Code we held that beyond ranges tion. The court far this proper was not “a case vehicle for It uses narrow issue. this case as vehicle appropriate insanity reexamination of [the scope and to reconsider redefine the the reason the issue of standard] defense, the insanity although such a re- responsibility criminal was not raised consideration redefinition was not at 3. the evidence.” 386 F.2d asked in the district or in court this in Bailey opinion recognized that, Our parties. court We are either according weight of authority, “a to dissent constrained this serious addiction, showing mere of narcotics with- judicial process. misadventure more, out does not constitute ‘some evi- agree We with the the court conclusion dence’ of mental so as of its reaches Part responsibili- the issue of criminal raise support addiction alone insufficient to Id. Heard v. United ty.” (quoting at 4 insanity defense. We reach that conclu- (D.C.Cir.1965)). sion, route, through a different Moreover, expressed we doubt that addic- require overruling does deprived actually tion to narcotics the ad- Bass, United States obey ability dict law: “It Cir.1974). appear would that an element reasoned precedents yet A knowingly review of the in this circuit exists addict choice when an concerning in acquiring using narcotics addiction and the violates the law in Bailey sanity begin must drugs. offending defense One is not excused for (5th Cir.1967), simply very, very because he wanted to denied, badly.” Finally, 88 S.Ct. F.2d at 4. we noted Bailey, Bailey Congress passed L.Ed.2d 1408 In de in that had laws charged designed with crimes to assist the criminal fendants were various offender relating purchase possession of to narcotics. The Narcotic to the and addicted Addict 1966,1 Lyons’ case, theory provides in Act narcotics. As their Rehabilitation of was is itself a disease or civil commitments of addicts or for sen- that addiction 2901-2906, 1. 28 §§ U.S.C. 18 U.S.C. 4251- §§ v. Moreover, United States Tsoi in requiring

tences treatment. Because Con- (5th Cir.1969), Sang, Kwan F.2d thus gress specifically had acted define Blake, after we reaffirmed our decided proper of addicts treatment narcotics Bailey. holding in held We that de- crime, of convicted we were reluctant produced fendant had evidence sufficient to remedy Bailey a different fashion submitting insanity warrant the issue of Bailey, insanity through the defense. jury. specifically We stated that “the therefore, that proposition stands for the of did opinion the court ... not conflict evi- addiction alone is insufficient narcotics [.Bailey ... evidence of because] defect to raise dence of a mental disease or insanity beyond well mere addic- [went] responsibility. of criminal issue Cf (on petition tion.” Id. at 310 rehearing Beto, Doughty v. ISO banc). rehearing and en alcoholism, (evidence Cir.1968) without of Bass, supra, United States overruled more, de- does not create constitutional part by majority opinion, at least did theft). of fense for one convicted insanity involve a claim an not of defense that Bail- suggests majority opinion based\upon narcotics addiction alone. The ey may have been limited or overruled acutely painful an defendant suffered from Blake decisions our later disease. Around the time and incurable of (5th Cir.1969) (en States, indictment, Bass had suffered several Bass, banc), and United States that, doctor, fevers of one (5th Cir.1974). The members of the damage. temporary had inflicted brain initially heard this case shared panel that anxiety,” Bass suffered “chronic view, thought interpretation unde- that had discussed suicide. We held that he had sirable, review to suggested en banc insanity showing made an initial suffi- Blake holdings of clarify or to modify proof cient to shift the burden of and Bass. We need not here discuss the government. But we did not rest our hold- because, of those two decisions exact reach Indeed, ing on narcotics addiction alone. banc, sitting are not them. en we bound rely primarily did not narcotics we even might scope applied their as Whatever addiction: contentions, to other neither treating Both that Bass’ doctors testified Blake Bass nor is inconsistent with anxiety, chronic caused Bailey court’s conclusion addiction that his incurable awareness disease was insanity alone is enough not to raise the dependent and that he would forever be pressed And is the sole issue defense. from pain, on Demerol for relief consti- iatrogenic ad- before us: evidence of as re- tuted ‘mental disease defect’ require presentation of diction suffices to quired by the Blake test. responsibility issue criminal added). at 850 holding Id. (emphasis Our jury. Bass, therefore, not inconsistent with Sang, in Tsoi Bailey. As Kwan the evi- Blake adopted In we the Model Penal beyond went “well mere dence defense. Code definition of addiction.” course, not, discuss whether We did relatively These cases establish a clear of itself would proof narcotics addiction Bailey addic- holds narcotic standard. newly adopted test. But under our suffice alone insufficient tmxaise the insani- tion Bailey qualify Bailey. Blake did not Sang defense. Tsoi Kwan Bass ty expressly refused consider we had addiction, accompa- it clear that when make standard, adopting the Model Penal Code or de- by evidence mental disease nied any it in disapproved of we because fect, may showing initial suffice for an concluded that under way, because we but insanity. in- alone was any narcotics addiction test Circuit, in this insanity and to ne- It thus is to constitute well-established sufficient elsewhere, addic- well as that narcotics 386 F.2d at 3. gate responsibility. criminal not constitute a reply Lyons’ appeal tion alone does focus its on the purposes or defect for of the insani- standard; impropriety existing of the it ty already If this were not clear- defense. argue chose instead he had failed to circuit, ly join of the we would law evidence offer sufficient to meet that stan- unequivocal an clarification en banc. But government’s position dard.2 The was Lyons. not alter the result as to that would surely Lyons’ proffer correct. no did more presents iatrogen- is that The contention undisputed than state the conclusion that footing on a different ic addiction stands drug consumption impact has an voluntary opinion addiction. Our physiology. brain’s presence Were the rely on the Bass did not involuntariness of system some effects on the central nervous the defendant’s addiction. Because the ex- dispositive, every then addict would be able incapacity represented tent of the mental insanity to establish an defense. Amer- Cf. exactly is narcotics addiction same Psychiatric Association, ican Diagnostic voluntarily involuntarily in- whether and Statistical Manual Mental Disor- duced, we see no reason to create a distinc- ders, (DSM III) (3d 1980)(individu- ed. Bailey, tion on that As we said in basis.' will, als who have substance use disorder appear that an element of would rea- “[i]t times, manifest direct acute or chronic yet exists when an addict soned choice effects of substances on the central nerv- knowingly acquiring violates the law in system). majority’s ous The affirmation of using drugs.” 386 F.2d at 4. the rule that addiction alone does in- not, therefore, We do dissent from the insanity dispos- voke the defense therefore by majority basic conclusion reached Lyons’ appeal. es of Part of its that evidence of nar- majority’s reading The strained standing cotics addiction alone is not suffi- hardly justifies record and caselaw its self- submitting cient to warrant a trial court’s appointed redefining mission of the insani- Nor, jury. insanity defense to the had ty defense. That mission is as unwise as it argument appeal been made on that the unnecessary. government’s As the law- proffer’s purpose was to show the exist- yer during argument observed oral defect, ence of a mental disease or to be court, inappropriate en banc this is an case standard, under the evaluated Bass would inopportune and an time for such an exer- purpose we dissent from a reversal for the cise. receiving that evidence. But these grounds statements establish the for our There is now substantial ferment con- Having dissent: decided cerning insanity defense. See the sum- case, disposes majority of this under- mary Singer, in Dutile & What Now for takes to examine an issue neither raised Defense?, Insanity Dame Notre L.Rev. court, parties the trial tendered (1983). Congress evaluating pro- appeal, panel. suggested nor posals change compre- as it considers legislation hensive to revise the United simply require This case does not redefi- See, e.g., Cong. States Criminal Code. nition of the defense. The (1983) (administration Quarterly pro- Lyons’ drug usage might did submit posals). The American Bar Association physiological- have affected his brain “both Delegates, meeting in this, House of at its Feb- ly psychologically,” as well ruary established an official Ameri- conceivably, might suggest be read to recommending policy Bar But can Association existence of a disease or defect. change and burden of ap- did not make this contention on standards peal, respect defense. government proof and the did not choose to supplemen- government initially argu- accordingly its and filed a second confined sails advocating of the volitional those above. Once the tal brief abolition ments to described legislation suggesting ac- questions prong. court’s and solicitation of briefs It is also amici text, way blowing, post. way complish end. See Given a indicated wind path. objective, government will tread either of course reset its to achieve its

253 JOHNSON, change Judge, dissenting. (1983). A further 426 69 A.B.A.J. policy is antic- Bar Association American This dissent is necessitated mis- Delegates House of ipated to be panel opinion by characterization of the meeting of Asso- agenda at the annual dissenting both the majority opin- and the proposal This August 1984. ciation in Williams; Judges ion of Rubin and the words “mental or define would revise Lyons’ mis characterization contentions opinion II of the defect”. Part or appeal by opinions; on and both because of ad- demonstrates adequately for the Court the sincere belief that the Court is here possible controversy modifica- ditional choosing particularly inopportune a time to Considering insanity defense. tions of the delve into quagmire circumstances, including the defense. all of these action, Congressional possibility of Lyons The issue appeal case depart from the stan- eagerness court’s clear; quite Lyons was it was not whether adopted in every fed- dards have been that simply was indeed insane. The issue was almost two decades3 is es- eral court over Lyons permitted whether have should been

pecially inappropriate. insanity argument to submit his and de- file a that would used to to conform their conduct responsibility, bodied in the result ate fine the Part sidering demonstrates a ical to raises consider that issue. dissent constitutes the rest of definition defense are too fundamental applicability Because the When the evidence judicial dissent from a reached of the punish persons from all of it sua standards resolved in the abstract. Con- permit insanity, self-restraint. opinion, prerequisites Judge Rubin sponte majority complete the volitional concerning that determine criminal the district court. We the criminal law the obiter dicta that en it will be our But we would affirm the who in a case adoption banc, lack of opinion. lack to the Concurring in will the continued policies test any does rede- hereafter appropri- law, squarely majority too crit- duty to the ability a test to be em- judgment, inaccurate. An examination of ty’s and tic malnutrition. The tle that proffer goes fully entitled fense to tions. and his Lyons’ alleging characterization of that should have requires such a result. argument existing precedent addiction became so extreme over “[h]is It broke three iatrogenic the existing precedent forty pounds is noted decalcified bones during The panel left Judge the jury. mere and defense hip been far drug Rubin’s and the course of [a] ^[3] reject demonstrates beyond ribs, the outset permitted and suffered addiction. The concluded Lyons’ completely addiction I continue to jury, had become so three proffer notes to the accept Judge mere contentions as of this circuit to submit ^[3] that he that course, jury convulsion, his conten- from is, in vertebrae, torn allegation Williams’ majori- believe Lyons’ Lyons’ Lyons under dras- brit- was lost my Moreover, redefinition convert by judicial would thus the socket.” offered to witnesses, pun- into one of indeed system present expert two medi- legal our criminal witnesses, testify cal that would ishment fault. without Frazier, Currens, (3d 1970) (en banc); v. United States 458 290 F.2d 751 3. See v. United States States, (8th 1972); States v. Cir.1961); 420 F.2d Cir. United Brown- F.2d 911 United 325 Wion v. banc); er, (D.C.Cir.1972) (en denied, (10th Cir.1963), Unit- 377 U.S. 84 969 (11th (1964); Figueroa, v. F.2d 1375 Cir. States ed States United S.Ct. 12 L.Ed.2d States). (en 1982) (7th 1967) (following v. United Al- Blake Shapiro, Cir. F.2d 680 Chandler, explicitly though banc); has not taken First Circuit United States Smith, approval suggested position, its (4th Cir.1968) (en banc); that court has States v. United States, Cir.1968); ALI v. United (6th test. See Beltran Blake v. 404 F.2d 720 (1st 1962) 1969) (en banc); (citing (5th Cir. States Cir. 407 F.2d 908 Currens, supra). Wade v. United brain, case, damaged his In the instant Lyons’ addiction had the defendant’s proffer Lyons indicates that psychologically.1 became in- physiologically and both voluntarily medication, pain addicted to in its true Lyons’ is viewed When Demerol, including as a result of medical form, that he was entitled it clear becomes designed treatment to alleviate the bar- insanity jury defense to the his to submit rage of by Lyons illnesses suffered dur- existing precedent.2 The reasons for under ing three-year period the prior to the panel set forth in the conclusion were this charged commission of the offenses. No opinion: meaningful distinction between Bass and [Tjhis involuntary Court has held the case judice sub can be discerned.3 drug addiction constitute a “mental cases, In both the defendant embarked bearing on disease or defect” the defend- upon by course of narcotics use not responsibility. ant’s criminal choice, pursuant but to doctor’s orders— Bass, (5th States v. Cir. presumably treating orders aimed at an 1974). Bass, strikingly In a case similar admittedly painful physical disorder. bar, to the case at this Court concluded cases, Additionally, in the both defendant involuntary drug addic- expert which, evidence testimony, offered if be- could, particular jury, tion and did cir- lieved would establish that case, the defendant cumstances of that constitute lacked substantial rele- to conform require- his conduct to the vant evidence on the issue of the defend- applicable ments of law due to his invol- sanity. Bass, ant’s In the instant untary drug addition. case, charged, defendant was inter alia, obtaining by misrep- with narcotics Lyons, States resentation, fraud, (5th deception, Cir.1983). reasons, and subter- For these the rea- fuge. importantly, fully explained sons which are More Bass and the more panel opinion, my Lyons is belief that judice case sub both dealt with defend- permitted present insanity should be to his involuntarily ants addicted to the nar- jury defense to the under the law of this Bass, they illegally cotics obtained. Circuit. involuntarily the defendant had- become to

addicted Demerol as a result of medi- Having explained why Lyons should alleviating aimed cal treatment permitted have been to submit his case to enteritis, regional acutely defendant’s jury existing precedent under the painful gastrointes- Circuit, of the pause lower my agreement this to note Bass, many tinal tract. 490 F.2d at by Judge 849. with of the concerns stated Judges 1. Rubin and Williams that Williams’ concede dissent states: "The defendant suf- Lyons’ proffer alleging physiological psy- acutely painful fered from an and incurable chological damage indictment, "conceivably” brain could disease. Around the time of the suggest that, read to the existence of a disease or Bass had suffered several fevers doctor, precisely defect. It is submitted that proffer temporary what the of one had inflicted case, states. damage." Lyons’ prof- brain In the instant during period fer demonstrates that of his iatrogenic It should be remembered that the law of this he suffered from addiction and was requires only produce (1) following painful a defendant treated for the disorders: slight insanity ulcer; hemorrhoids; put (2) (3) evidence of the defendant's stomach perforated internal See, (4) wound; gunshot condition at issue. Blake v. United appendix; 1969) (en (5) septum. Additionally, Lyons' prof- deviated banc). high The en banc Court stated in Blake: "It fer Lyons alleged indicates that he suffered fevers. supporting follows that if there is some evidence that these facts could be attested insanity wife, original treating claim of the issue must be employees, ... his jury, physician, hospital pre- submitted to the This [citations omitted] as well as only slight this, scription Certainly conjunction means evidence." Id. records. expert testimony indicating with age, brain dam- slight suggested Judges 3. It is Rubin’s and Wil- constitutes evidence of a mental dis- distinguish permit- attempt liams' Bass from this case ease or defect. should have been unpersuasive. properly charged Attempting glean distin- ted to submit his case to a Bass, guishing Judges jury. factors in Rubin’s and insanity de- concerning existing Gee though present Even

fense. broad, though the may be too even

test might more prong of the volitional

abolition inquiry, and limit the

properly might align though this Court’s action

even insanity defense of this Circuit school of psychiatric

current views seems timing this action

thought, light of inappropriate.

particularly congressional action possibility of

very real undisputed this issue and view public will to be for the

preference body, particular- by that it seems

expressed to take this for this Court

ly inappropriate at this time. by en banc intervention

action STURGEON, Plaintiff,

Arthur W. Surety Casualty

Aetna Intervenor,

Company, COMPANY,

STRACHAN SHIPPING Party

Defendant-Third

Plaintiff-Appellee, AND

BANKERS SHIPPERS INSUR- YORK,

ANCE COMPANY NEW OF Party Defendant-Appellant.

Third

No. 82-3229

Summary Calendar. Appeals, States Court of

Fifth Circuit.

3,May

Case Details

Case Name: United States v. Robert Lyons

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 16, 1984

Citation: 731 F.2d 243

Docket Number: 82-3429

Court Abbreviation: 5th Cir.