APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Criminal No. 263-73).
Van Dusen, Adams and Rosenn, Circuit Judges. Adams, Circuit Judge, dissenting.
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 ...