UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Rehearing En Banc Denied September 26, 1967.
Danaher, Burger and Wright, Circuit Judges. J. Skelly Wright, Circuit Judge (concurring).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BURGER
This is an appeal from a conviction on three counts charging violations of federal narcotics laws. 26 U.S.C. §§ 4704(a), 4705(a) (1964); 21 U.S.C. § 174 (1964). The sentence imposed under § 4704(a) was to run concurrently with sentence on the other counts. *fn1
Appellant urges error (1) in advising the jury that narcotics addiction, standing alone, is not a mental disease or defect; (2) in refusing to give a requested instruction on Appellant's theory of the procuring agent doctrine; (3) in refusing to give a lesser-included offense instruction based on D.C.Code § 33-402 (1961), which prohibits possession of heroin; and (4) in permitting the Government's expert chemist to give certain testimony pertaining to the origin of the narcotics.
(1) The District Court ruled that Appellant had presented sufficient evidence to raise the issue of criminal responsibility under McDonald v. United States. *fn2 At the conclusion of his instruction, however, the District Judge noted that it was conceded that the accused was an addict, and further instructed, in terms substantially as stated by this court in Heard v. United States, 121 U.S.App.D.C. 37, 348 F.2d 43 (1964):
However, narcotic addiction, standing alone, with nothing more, is not a mental disease or defect, and both of the doctors, Dr. Feys for the defendant, and Dr. Hall for the Government, both testified that this was true.
They both testified, also, that narcotic addiction along with other elements which they described, could be a mental disease, or a mental defect, and Dr. Feys said that there were sufficient other elements over and above the narcotic addiction to conclude, medically, that the defendant suffered from a mental defect.
On the other hand, Dr. Hall said that there were not enough, or sufficiently intense additional factors over and above the narcotics addiction, standing alone, to conclude, medically, that the defendant did suffer from a mental disease or defect, but, to the contrary, that he did not. (Emphasis added).
Defense counsel conceded that both doctors testified that narcotic addiction in and of itself was not a mental disease or defect. At the conclusion of the charge, defense counsel expressed some reservations with the portion of the instruction characterizing that testimony, but made no request for a supplemental charge. On appeal, Appellant challenges only the above italicized portion of the instruction. Treating defense counsel's position as preserving the issue for review, Appellant's claim in essence is, that the statement to the effect that narcotic addiction, standing alone, was not a mental disease or defect, as applied to the evidence in this case, improperly removed this issue from the jury and required them to look to something apart from the addiction in order to find a mental disease or defect.
As we noted, the challenged portion of the District Judge's instruction was taken almost verbatim from Heard. There we held "that a mere showing of narcotics addiction, without more, does not constitute 'some evidence' of mental disease or 'insanity' so as to raise the issue of criminal responsibility." Id. at 38, 348 F.2d at 44. See also Castle v. United States, 120 U.S.App.D.C. 398, 401, 347 F.2d 492, 495 (concurring opinion), cert. denied, 381 U.S. 929, 953, 85 S. Ct. 1568, 14 L. Ed. 2d 687 (1965). The issue of criminal responsibility here, of course, had already been raised and the challenged portion did no more than instruct the jury in accordance with Heard ; viewing the instructions on criminal responsibility as a whole, and the expert testimony presented, we find no error.
Appellant's entire defense rested on the testimony of an expert psychiatric witness. He testified that Appellant was a "mental cripple," suffering from a personality disorder. He further testified that Appellant's mental condition compelled him to always feel the need to be in a state of bliss, creating a compulsive need to take narcotics if he were feeling "bad." He described the relationship between the mental illness about which he had already testified and the Appellant's addiction as follows:
When there is this pressing, massive, inner-need to avoid a state of inner-disintegration, inner-disruption, the need for bliss, for a sense of well-being, which in individuals who have too much in them, and in which circumstances have been propitious, may ...