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United States v. Austin


March 31, 1976



Van Dusen, Adams and Rosenn, Circuit Judges. Adams, Circuit Judge, dissenting.

Author: Van Dusen


VAN DUSEN, Circuit Judge.

Defendant-appellant appeals from a ten-year imprisonment sentence of May 7, 1975, based on a jury verdict finding him guilty of attempting to take money of the National Newark and Essex Bank in violation of 18 U.S.C. § 2113(a) on December 18, 1972.*fn1 Defendant complains of inadequate jury instructions bearing on his insanity defense. Having carefully considered defendant's contentions, we affirm the district court judgment and commitment order of May 7, 1975.

Although defendant does not challenge either that the attempt to rob the bank in question was made by defendant or the sufficiency of the evidence to support the verdict, a statement of the historical facts is helpful to an understanding of defendant's contentions and the trial court's rulings.

Defendant was a paranoid schizophrenic. He had stabbed a female (Doris Anthony) in October 1972, stabbed a male (Hooker) in December 1972, at times acted abnormally, and sometimes complained of headaches. Austin was overheard mumbling and talking to himself on various occasions. Lorraine Baskerville testified that during the winter of 1972 Austin was acting in an extremely bizarre fashion.*fn2 In March of 1973, approximately the same time as his arrest for the attempted bank robbery, Austin once again attempted to injure Hooker with a pipe.*fn3

Several times in 1972 defendant said he needed money and "I have got to get some money."*fn4 During the period of late 1972 defendant said to a friend, "I don't have any money, I am going to rob a bank" (N.T. 2.149 ff.). He planned ways of getting money and anticipated using a machine he had in his possession to print numbers on checks which he subsequently intended to cash and then leave the area quickly.

Prior to entering the bank, Austin put a bandage "on his face to hide the moles" (N.T. 2.66) so that he would not be recognized. A wool cap pulled down over his forehead covered another prominent mole. He directed the driver of a cab to take him to the National Newark and Essex Bank and to wait for him while he went in to cash a check.

Defendant walked into the bank carrying a bag. He presented a check to a teller at the money order window but, as she was not authorized to cash checks, she did not read it and told him to take the check to another teller. Austin walked to the window of Paul Pfeiffer and handed him the check. Pfeiffer read what was handprinted on the check ("I want $5000. I have a pistol, am desperate. Give me hundred, fifty, twenty dollar bills. Hurry"), looked at defendant and "figured he meant business" (G-1, 1.11). The handwritten portion of the check had been overwritten several times, making subsequent comparison of handwriting difficult, if not impossible. Surveillance photographs taken by a camera triggered by Pfeiffer indicated that defendant had likewise been careful to wear gloves, with the result that no latent fingerprints of value were later found on the check. Calmly, and acting like a regular customer cashing a check, Austin told Pfeiffer to hurry. Although defendant was not carrying a gun, he had his hand in his pocket to make the teller believe otherwise. Pfeiffer dropped to the floor and pushed a second button to set off the general alarm for the police. Austin turned around, walked unnoticed out of the bank, got into the waiting cab, and drove off. Later, when he saw his picture in the newspaper, he laughed and said, "They didn't catch me" (3.85-3.86).

On March 13, 1973, agents of the Federal Bureau of Investigation went to 206 Howard Street, Newark, with a warrant for defendant's arrest. A woman let them into the apartment and the agents recognized Austin. He said his name was Nathaniel Harris and showed the agents identification in that name (2.43). He was transported to the FBI office after being informed that he was being charged with attempted bank robbery and signed an Advice of Rights form, which he acknowledged he understood. Initially Austin denied any knowledge of the attempted robbery, but when told that he had been identified by two bank employees and when confronted with the surveillance photograph taken at the bank during the attempt, he admitted the crime. He told the agents the details of the crime in question and the substance of his statement was reduced to writing. Defendant made and initialed a correction, wrote the last paragraph in his own handwriting and signed the statement. He appeared alert and perfectly normal, there being no indication that he was suffering from any mental disorder.

On May 22, 1973, defendant entered a not guilty plea and, by district court order of April 4, 1974, the court found that Austin "is presently so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense" and committed him "to the custody of the Attorney General . . . pursuant to 18 U.S.C. § 4246 until said defendant is mentally competent to stand trial . . . ."

After a hearing on January 21, 1975,*fn5 the district court found on February 4, 1975, that "Austin is presently competent so as to be able to understand the proceedings against him and to assist properly in his defense" and the trial commenced on April 4, 1975.

Although the defense's experts*fn6 testified that on December 18, 1972, Austin did not have substantial capacity to conform his conduct to the requirement of the law proscribing attempted bank robbery due to mental defect or disease, the prosecution's experts testified, to the contrary, that he had such capacity to conform his conduct to the requirement of such law on that date.*fn7

Since the defendant bases this appeal on alleged inadequacies of the jury charge (page 32 of appellant's brief), we turn to the alleged errors in the charge.


Defendant first objects to a portion of the charge which was included at the request of the prosecution and concerned the relationship between the defendant's motive and intent in committing the crime. This portion of the charge is set out in the margin.*fn8 Prior to giving this part of the charge, the trial judge had made clear that in order to establish that defendant had committed the offense charged in the indictment, the prosecution was "required" to prove four essential elements of the crime, two of which were:

" Third : That the defendant acted wilfully.

" Fourth : Defendant was sane at the time of the offense."

The court pointed out that evidence of his mental state, both before and after December 18, 1972, was relevant and that "a criminal defendant who is insane at the time of the commission of the criminal offense lacks the requisite criminal intent to commit the crime." Concerning the issue of sanity*fn9 and intent, the court used this wording in the charge:

"There are two questions to be presented by [sic] you after hearing the testimony of the psychologists and psychiatrists, and other witnesses.

"First. Did the defendant suffer from a mental defect or disease on December 18, 1972. In deciding this question you may consider evidence of his mental state both before and after that time. If he did, then the next question is did that mental defect or disease so incapacitate him that he lacked substantial capacity to conform his conduct to the requirements of the law against attempted bank robbery.

"Intent ordinarily may not be proved directly, because there is no way of fathoming or scrutinizing the operations of the human mind. But you may infer the defendant's intent from the surrounding circumstances. You may consider any statement made and done or omitted by the defendant, and all other facts and circumstances in evidence which indicate his state of mind. It is ordinarily reasonable to infer that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted.

"I have said that a criminal defendant who is insane at the time of the commission of the criminal offense lacks the requisite criminal intent to commit the crime. You have also heard testimony concerning the defendant's motive in committing the crime.

It was at this place in the charge that the court explained the difference between intent and motive, using the language in note 8.

We note that the last underlined sentence of this portion of the charge objected to by defendants (see note 8) is modified by the final sentence quoted in the note 8 above, which makes clear that motive (delusional or otherwise) may be considered in determining "state of mind or intent."

We have concluded that there are several reasons why the giving of this instruction was not reversible error:

A. The district court made clear that defendant's alleged, delusional motives were relevant in determining whether the defendant acted with the necessary wilfullness and intent. The trial judge directed the jury to consider all the evidence of defendant's mental state at several places in the charge.*fn10

B. The trial judge was entitled to make clear to the jury that the motives with which a defendant acts, even though of idealistic or compulsive*fn11 origin, do not constitute a defense to conduct determined by Congress to be criminal. See Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 49, 57 L. Ed. 107, 33 S. Ct. 9 (1912); United States v. Cullen, 454 F.2d 386, 390-92 (7th Cir. 1971), opinion by Mr. Justice Stevens, then a Circuit Judge; United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969). In the Standard Sanitary Mfg. case, the Court said at page 49:

"Nor can [laws] be evaded by good motives. The law is its own measure of right and wrong, of what it permits, or forbids, and the judgment of the courts cannot be set up against it in a supposed accommodation of its policy with the good intention of parties, and it may be, of some good results."

C. Defendant's contention that this language of the charge violated "the spirit and intent" of United States v. Currens, 290 F.2d 751 (3d Cir. 1961), is rejected. The defendant was not restricted in offering evidence of background facts and many such facts were presented to the jury. The wording of the charge concerning the sanity issue suggested by defendant was included in the charge of the court, is set forth in the margin,*fn12 and is fully consistent with Currens, where Senior Judge Biggs (then Chief Judge) said at page 774:

". . . The jury must be satisfied that at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated."

D. The objection made by defense counsel to two sentences of the entire ten-sentence charge on motive was not sufficiently specific. See United States v. Butler, 446 F.2d 975, 977 (10th Cir. 1971). Defense counsel objected to the sentence reading "Delusional motive is never a defense where the act done or omitted is a crime" (N.T. 6.3). The court responded at N.T. 6.4:

"You're arguing as to that one particular sentence.

"To repeat, I said you just can't take that one particular sentence out of the request itself.

"You have got to read the request in its entirety."

Defense counsel then objected to another sentence of the requested charge,*fn13 which was designed to cover the prosecution's contention that a paranoid schizophrenic who was law-abiding might go to the authorities to get help and funds needed for escape from an area where his delusions led him to believe he was being persecuted and threatened, whereas such a schizophrenic who voluntarily engaged in criminal activities might turn to criminal activities for such help and funds.*fn13 Defense counsel never submitted a revision of the prosecution's request for charge on motive and intent which it suggested the court give. Cf. United States v. Butler, supra at 977.

Under the circumstances, we hold that these ten sentences of the charge, when considered with the charge as a whole, did not constitute reversible error. See United States v. Heavlow, 468 F.2d 842, 844 (3d Cir. 1972).


Next defendant objects to the inclusion of this sentence in the charge as "circumscribing the evidence of insanity":

"As used in these instructions the terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct." (N.T. 6.82)

This sentence was included in the instructions specifically requested in writing by defense counsel. See last complete sentence on page 1 of Document 33 in Crim. No. 263-73, D. N.J. Furthermore, we agree with the prosecution that this language, due to use of the word "only," instructed the jury that such conduct alone does not constitute mental disease or defect. The jury was permitted to consider criminal or anti-social conduct along with other conduct indicating mental disease or defect. The court instructed the jury that evidence as to mental condition included, inter alia, "the two stabbings, the attempted assault with a pipe, the attempted fire setting and other testimony of his mental condition . . . ." Also, this instruction was expressly approved in Currens, supra at 774, note 32.

For the foregoing reasons, this contention is rejected.


Finally, defendant contends that it was plain error under F. R. Crim. P. 52 for the trial court not to charge on the consequences of a finding by the jury of insanity "and/or the province of the court and jury in determining the disposition of the defendant."*fn14

We have concluded that the failure to give such an instruction, first requested on appeal, is not plain error on this record. Furthermore, this court has recently considered the refusal of a trial judge to give an instruction that it was likely that a civil commitment would result from a verdict of not guilty by reason of insanity in a criminal case where the insanity defense was raised, and adheres to its decision affirming the trial judge in that case for the reasons so well stated by Judge Gibbons in United States v. Alvarez, 519 F.2d 1036, 1047-48 (3d Cir. 1975).

The judgment of the district court will be affirmed.


The judgment of the district court will be affirmed.

ADAMS, Circuit Judge, dissenting.

The major, and indeed the sole issue in this case is whether the government proved that the defendant had the capacity to conform his conduct to the requirements of the law at the time of the alleged crime. My reading of the portion of the charge submitted to the jury by the district court concerning the relationship of the delusional motivation of the defendant to his conduct differs from that of the majority. In my view, the presence of an incorrect statement of law and the confusing nature of the charge tainted it sufficiently to preclude affirmance of the judgment. It is for that reason that I respectfully dissent.


The function and meaning of the insanity defense in the present day are best understood against the backdrop of its historical development. This is particularly so here, where the interpretation of the jury charge is, in my judgment, most appropriately made with reference to the broader societal and criminological aspects of the insanity defense.

Until the thirteenth century, mental disease or lack of mental capacity was not a defense in a criminal case.*fn1 Then, as the law "moved from a concept of strict liability to one based on fault," the notion developed that guilt includes a mental element. This evolution, tied to the influence of canon law in the ecclesiastical courts, led to a new concern with moral guilt, and slowly to the whole concept of mens rea.*fn2 Exculpation on the ground of insanity first appeared in the last thirteenth century, when Henry III began a practice of pardoning those he believed insane. During the succeeding reign of Edward I, the royal pardon became a routine matter in cases involving the conviction of a defendant who was "mad" when he committed the crime.*fn3

The courts ultimately responded to the regular invocation of the royal pardon by adopting insanity as a defense to a criminal charge.*fn4 It was one of a set of defenses based upon the absence of the criminal intent that was by then an established element of certain crimes.*fn5 "And when the law began to take notice of insanity as a legal defense to a criminal charge it was on the theory that one who was insane had no mind and hence could not have mens rea."*fn6 By the sixteenth century, the insanity defense was an accepted part of the criminal law.*fn7

Through the eighteenth century, a defense of insanity would lie only if the defendant was totally deprived of reasoning ability, understanding, or memory, so that there was no possibility that he had mens rea.*fn8 In time, this rigid rule too broke down, its demise most clearly marked by the acceptance in Hadfield's Case*fn9 of insane delusions as a defense to a charge of attempting to assassinate the King.*fn10 The development of the insanity defense in Britain, insofar as it has relevance to the American situation, was capped in M'Naghten's Case. There the House of Lords ruled that the insanity defense applies if the defendant "was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."*fn11

The standard set out in M'Naghten remained the basic rule of British and American courts for a century.*fn12 Subsequent developments in this country, through the adoption of the controversial Durham "product" formulation in the District of Columbia Circuit*fn13 and of the Currens rule by this Court,*fn14 are too well known to require repetition.*fn15

The historical narrative of the unfolding of insanity as a defense to a criminal charge highlights its contemporary function and usefulness. It is still connected, as it was in its incipiency, to the absence of mens rea. Without the required mental element, the law will not normally recognize criminality*fn16 or countenance punishment. The insanity of the defendant is said to demonstrate the absence of the mental element.*fn17 Closely related, and also tied to the common law growth of the defense, is the belief that the criminal sanction should not be imposed on one who is not morally blameworthy; an insane person, acting without criminal intent or volition, is not culpable in that sense.*fn18 Finally, the insanity defense recognizes a deterrent theory of the criminal law. A defendant who is insane, and therefore is unable to control his behavior, so goes the argument, cannot be deterred by punishment. Since punishment will serve no deterrent purpose, it ought not be meted out.*fn19

Of course, an acquittal by reason of insanity does not mean that the defendant will necessarily go free. A defendant who is found not guilty by reason of insanity in a federal case is released, but with the expectation that State authorities will commence civil commitment proceedings.*fn20


The formulation of the test for the insanity defense in this court was set out in Currens fifteen years ago. As stated by then-Chief Judge Biggs, Currens prohibits the jury from finding the defendant guilty if it is "satisfied that at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated."*fn21 Put another way, Currens requires that the defendant be found not guilty by reason of insanity if, once the issue of sanity is raised, the government fails to prove that when he committed the prohibited act, the defendant had substantial capacity to conform his conduct to the requirements of the law. The Currens standard has been undeviatingly adhered to by this Court since its adoption,*fn22 and its continuing viability is not questioned today. Consequently, the issue before us is whether the charge given to the jury complied with the strictures of Currens.

The two critical sentences in the ten-sentence portion of the jury charge challenged by Austin are as follows: "A delusional motive alone is never a defense where the act done or omitted is a crime. So, the motive of the accused is immaterial except insofar as evidence of motive may aid determination of state of mind or intent." Through his counsel, Austin objected strongly to that portion of the charge. The basis of the objection, which is pursued vigorously in this Court, is that the presence of these two sentences transgressed the standards established in Currens, and that the conviction therefore must be reversed. The government emphasized in its summation in the trial court that delusional motivation is not a defense to a criminal act, and continues in this Court to contend that the instruction was not erroneous. Resolution of the disagreement is of the utmost importance, since, although other arguments are presented by Austin, these two sentences from the jury charge lie at the heart of the appeal.

On the basis of its review of the whole charge and its comparison of the charge with Currens, the majority holds that the sentences questioned do not constitute reversible error. I cannot agree.

Three lay witnesses and five expert witnesses testified that Austin had a paranoid belief that certain people were plotting to "get" him and were coming after him. Austin's fear of being chased and caught was described by several of the expert witnesses as a delusional motivation that led him to conclude that he needed money in order to escape his pursuers, and further to believe that it was necessary for him to rob a bank in order to secure the money.

While it would thus appear that Austin intended to take money from the bank, the jury could have concluded with reference to the Currens test that the government still had not proven that Austin had substantial capacity to conform his behavior to the requirements of the law. In fact, one expert witness described Austin's behavior at the time of the attempted bank robbery in exactly those terms. The jury could have reached this result if it believed that Austin's delusions were so strong that they overcame his ability to control his behavior, and that he could not conform his conduct of the law. Had the jury chosen to take this route, acquittal would have followed.

Acquittal may not have served the first rationale of the insanity defense -- punishing only those who act with criminal intent -- since Austin did intend to rob the bank. But it would have been consistent with the remaining rationales -- avoiding punishing either those who are not morally blameworthy for their acts or those who are not deterrable. In any event, an acquittal would have been consistent with the rule laid down in Currens.

In the first sentence of the two that are quoted from the charge -- "A delusional motive alone is never a defense where the act done or omitted is a crime." The jurors were in essence advised not to consider Austin's motivation if they believed such motivation was delusional in nature. Yet, as just shown, a finding of motivation of that kind may well have led to a verdict of not guilty. Accordingly, that sentence of the charge would seem to be incorrect as a matter of law. The district court should not have taken from the jury the right to connect Austin's delusional motivation with his ability or inability to conform his behavior to the law, and to find lack of criminal culpability under Currens if it chose.

The second of the quoted sentences -- "So, the motive of the accused is immaterial insofar as evidence of motive may aid determination of state of mind or intent." -- appears to contradict the first. It is not an incorrect statement, but its conjunction with the preceding sentence, at the very least, may have confused the jury.

In addition to the incorrect and confusing portion of the charge, the district court gave the jury a correct charge, tracking the language of Currens*fn23 and providing the jury with other correct statements of applicable legal principles. I recognize that the propriety of a jury instruction is generally to be assessed by viewing the charge as a whole.*fn24 But I must conclude that, in the circumstances of this case, the charge was nonetheless so sullied by the two sentences just described that reversal of the judgment ought to ensue.

Decisions of both the Supreme Court and this Court establish that a conviction in a criminal case cannot stand if the charge to the jury was misleading. The major Supreme Court opinion setting out the rule is that of Justice Frankfurter, writing for the Court in Bollenbach v. United States.*fn25 That case involved a supplementary instruction given to the jury in a prosecution for conspiracy and for transportation of securities in interstate commerce, knowing them to have been stolen. After the jury had been out for seven hours, and found itself totally deadlocked, it asked the trial court for further instructions. In response, the court ultimately stated that if the defendant possessed the bonds in one state shortly after they were stolen in another, the jury could presume that he had stolen them and had transported them across state lines. The jury retired, and returned in five minutes with a verdict of guilty. The Supreme Court held that the instruction had been "simply wrong," stating flatly that "[a] conviction ought not to rest on an equivocal direction to the jury on a basic issue. . . . A charge should not be misleading."*fn26

In reversing a conviction later in the same term, in M. Kraus & Bros., Inc. v. United States,*fn27 a plurality of the Court grounded its opinion in the Bollenbach rule. The Justices reasoned that although the charge contained correct portions as well as incorrect ones, the former "were so intertwined with the incorrect charge as to negative their effect."*fn28

These Supreme Court precedents have been followed by this Court in a number of cases. In Government of the Virgin Islands v. Carmona,*fn29 the trial judge refused to instruct the jury that it could not convict the defendant unless it found that he had specific intent to commit the crime. Emphasizing that specific intent was an element of the crime, the court reversed, since "an instruction must fairly set forth all of the essential elements of the crime charged." Further reliance was placed upon the Supreme Court's decision in Bollenbach for the broad proposition that "a misleading instruction is reversible error."*fn30 The same result, in the context of an erroneous instruction concerning entrapment, the primary defense used at the trial, was reached in United States v. Meade.*fn31 In United States v. Silver,*fn32 the intermixture of correct instructions with the incorrect, where they described the defendant's sole defense, was held sufficient error to require reversal.

The doctrine established in these cases should govern the disposition of the matter now before us. The sanity of the defendant in a criminal case is an element of the crime, and, once put in issue by the defendant, must, at least in a federal prosecution, be proven beyond a reasonable doubt by the government.*fn33 Thus, in this case, sanity was an issue "basic" to the prosecution, in the sense contemplated in Bollenbach.*fn34 Heed should also be paid to the principle articulated by this Court in Carmona -- that the jury instructions concerning the elements of the offense must be given with particular care. Further, it should be borne in mind, as set forth in Meade, that error in that portion of the charge describing the one offense relied upon at trial may lead to reversal. The reasons expressed by this Court for its decisions in those two cases are squarely applicable to Austin's appeal. In addition, the incorrect and confusing portion of the jury charge appears to have been closely associated with the correct segment, a situation that led to reversals in both Kraus and Silver.

Application of the Bollenbach doctrine is particularly compelling when the misleading instruction involves insanity, since it is only upon proof of the sanity of the defendant that the right of the government to invoke the criminal sanction rests. The scope of the criminal law is circumscribed by its intersection with the insanity defense and the rationales that historically and contemporaneously undergird the defense. Where a jury cannot say that the defendant was capable of forming the intent to commit the alleged crime or that he was morally blameworthy for his conduct, or where imposition of a penalty would not have any deterrent effect, punishment is not appropriate. In my view, the jury in this case was not given an unfettered opportunity to make that determination.*fn35

Accordingly, I would reverse the judgment of the district court and remand the matter so that a jury might determine, pursuant to a charge that is free from both doubt and error, whether the government has proven beyond a reasonable doubt that the defendant had substantial capacity to conform his conduct to law at the time of the alleged crime.

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