opinion explaining the rationale for denying certiorari is not a ruling on the merits. Justice Stevens' statement is, therefore, not an indication as to how the Supreme Court would rule on this issue. Moreover, the denial of certiorari had the effect of allowing to stand the Ninth Circuit's rejection of the proposition that the 1984 Reform Act requires that a commitment instruction be given.
Although the Third Circuit Court of Appeals has not addressed what the 1984 Reform Act requires, it commented on the issue in two pre-1984 Reform Act cases. In Government of Virgin Islands v. Fredericks, 578 F.2d 927, 935 (3d Cir. 1978), the court declined to decide whether Virgin Islands law required that a commitment instruction be given when requested by the defendant, stating that since the judge had conveyed to the jurors the information requested during voir dire, there was no need to consider whether the court was required to repeat that information in the charge. Id. at 936. The court's comments on the issue, however, are instructive. The court noted, as did the courts in Taylor, supra and Lyles, supra, that there is some merit to the argument that such a commitment instruction may be appropriate because of the issues an NGI option may raise in the minds of the jurors:
It is clear that the consequences following any verdict are solely a matter for the judge and for the legislature. What is done with defendant after any verdict should not in the slightest affect the decision of the jury on whether that defendant is guilty or innocent. . . .
Nonetheless, the requested instruction on the consequences of the insanity verdict presents a unique situation where there may be a common misunderstanding, not of the particulars of the result of a verdict, but of the nature of the verdict itself. The words 'not guilty' contained in the insanity verdict invoke the idea that a potentially dangerous defendant will be unconditionally released after trial, while in fact he faces mandatory corrective proceedings. A juror who feels that a verdict importing freedom for defendant will endanger the community might, out of his sense of social responsibility, be swayed from rational deliberation and be unwilling to weigh properly the evidence of defendant's mental condition. . . . This type of problem arises solely with respect to the insanity verdict.
Id. at 935-36 (emphasis in original).
The court went on, however, to express its reluctance to have such an instruction given, stating:
To accept defendant's reasoning, however, would be a substantial departure from the usual rules for allocating responsibility between the judge and jury. . . .He asks, in effect, that we assume that the jury will disregard its instructions to ignore the consequences of its verdict and then allow erroneous extraneous information to affect its judgment. The cure proposed is to give the jury the correct information, which it should then be instructed to ignore.
Further, we note that accepting this reasoning could be prejudicial to a criminal defendant. A juror who is convinced that a defendant is dangerous, but who believes that he did not in fact commit the acts charged, might be willing to compromise on a verdict of not guilty by reason of insanity rather than insist on an acquittal. . . .
Id. at 936 (Citations omitted.). See also: United States v. Alvarez, 519 F.2d 1036, 1048 (3d Cir. 1975) (Court refused to reverse as error district court's refusal to give a commitment instruction, distinguishing cases decided in the District of Columbia courts on the basis of the existence of defined commitment procedures in the district which do not exist elsewhere under federal law).
Fredericks, supra suggests that the Third Circuit would follow the lead of every other circuit which has considered this issue since passage of the 1984 Reform Act and would rule that the Act permits, but does not require, that a commitment instruction he given and leaves the decision to grant or deny such a request to the discretion of the district court.
We note, finally, that Lyles, supra, and Taylor, supra, are also distinguishable on their facts. In both, the reason given for requiring the instruction as to defendant's fate was possible confusion or uncertainty on the part of the Jury on that point. In Lyles, supra, 254 F.2d at 728, in particular, the District of Columbia Court of Appeals noted that jurors are clear on what will become of the defendant should they find him either guilty or not guilty, but have no such knowledge of the effect of their returning a not guilty by reason of insanity verdict.
That rationale does not apply to the facts of this case. Here, the jury necessarily knew that defendant was incarcerated at the time that the letters were written and at the time of trial. Thus they knew that he was currently serving a sentence for other federal crimes. It would be illogical to assume that they would conclude that he would be released into society should they return a verdict of not guilty by reason of insanity. To the contrary, they would logically assume that defendant would continue serving his federal sentence. See: Portis, supra, 542 F.2d at 421 ("The record discloses that in the course of the trial . . . [defendant's] involuntary commitment to Manteno State Hospital in 1968 was amply discussed; it would seem unlikely that a jury hearing such evidence would necessarily assume that a perhaps dangerous and mentally ill person would automatically be left free to inflict harm on the community.") Cf. Frank, supra, 113 S. Ct. at 363 (Refusal to give the commitment instruction creates "a strong possibility that the jury will be reluctant to accept a meritorious defense because of fear that a dangerous, mentally-ill person will go free.") and Taylor, supra (District court's failure to give a commitment charge did not constitute reversible error, noting that the court had not conveyed to the jury the erroneous impression that, if acquitted, the defendant would go free.).
While we recognize that the propriety of giving or declining to give a commitment instruction is a much debated issue,
we are convinced that the 1984 Reform Act does not mandate that the requested instruction be given, but leaves that decision to the discretion of the district court. In light of the considerations discussed above, we find that the refusal to give that instruction in this case was not an abuse of discretion and does not constitute prejudicial or reversible error. See generally: Blume, supra, 967 F.2d at 53 (Newman, concurring) (District court's refusal to give the commitment instruction was harmless error based on factors indicating "that there was no substantial risk that . . . [the] jury withheld an NGI verdict they might otherwise have rendered for lack of information as to the mandatory commitment that would have followed such a verdict.")
* * *
An order will be entered consistent with this memorandum.
James F. McClure, Jr.
United States District Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 808 F. Supp. 390.
ORDER - December 4, 1992, Filed
December 4, 1992
For the reasons stated in the accompanying memorandum, IT IS ORDERED THAT:
1. Defendant's motion for a new trial (record document 52, filed June 16, 1992) is denied.
2. Sentencing is scheduled for Tuesday, December 29, 1992, at 9:00 a.m., in Courtroom No. 1, if available, otherwise in Courtroom No. 2, Federal Building, 240 West Third Street, Williamsport, Pennsylvania.
James F. McClure, Jr.
United States District Judge