United States v. Alonzo Austin

533 F.2d 879, 1976 U.S. App. LEXIS 12065

• Court: Court of Appeals for the Third Circuit
• Decided: March 31, 1976
• Docket: 75-1523
• Status: Published

Opinions

' OPINION OF THE COURT

VA^í 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, 1972.¹ 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.² 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.³

Several times in 1972 defendant said he needed money and “I have got to get some money.”⁴ During the period'of laté 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 cheeks 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-l, 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” (8.85-3.86).

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, 1975,⁵ 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 experts⁶ 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.⁷

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.

I.

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.⁸ 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 sanity⁹ 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 italicized 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.¹⁰

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 compulsive¹¹ 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, 33 S.Ct. 9, 15, 57 L.Ed. 107, 117 (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, 33 S.Ct. at page 15, 57 L.Ed. at page 117:

“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,¹² 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,¹³ 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.¹³ 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).

II.

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 antisocial 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.

III.

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.” ¹⁴

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 ease 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.

1 . The April 1973 indictment charged that he took such action “knowingly and wilfully and by force and violence and by intimidation.”

2 . On one occasion he came to the door of her apartment covered with mud with his pants ripped, claiming that men were plotting to get him and he had to escape from the plotters by climbing over fences which ripped his clothing. On another occasion he told Ms. Baskerville that 12 men had just run into her bedroom. Also she testified that Austin claimed to have seen the candles moving at the apartment. Ms. Baskerville was with Austin and other persons at the Eureka Restaurant in Newark when Austin complained about the size of the portion of food given to him. After they left the restaurant, Austin attempted to burn the restaurant down by pouring gasoline in front of it. Austin stated to Ms. Baskerville that he wanted to kill his mother because she had left him in an orphans’ home. Defendant told Ms. Baskerville that her brother James was plotting against him.

3 . Another defense witness (the mother of Ms. Baskerville) testified that Austin told her about 1972 that someone was after him and she recommended that he see a doctor.

4 . N.T. 2.47, 2.90, 2.147, 3.89-90. At N.T. 3.89 Mr. Hooker testified that in December 1972 the defendant said: “I got to make me some big money, I am going to get me some big money.”

5 . The court received, on or before this hearing, reports of Doctors Godfroy and Snow, Staff Psychiatrists, and by John Reisenleiter, Staff Psychologist, at the Springfield, Mo. Medical Center for Federal Prisoners, as well as testimony of Psychologist Reisenleiter.

6 . Clinical Psychologist Fink examined Austin in February 1975, Dr. Brancale in December 1973 and January 1974, and Dr. Kern in January 1975.

7 . N.T. 4.64-65, 4.74, 4.79, 4.93, 4.96, 5.14, 5.20 and 5.24. Dr. Campean, acting medical director of the Diagnostic Center at Menlo Park, N.J., examined defendant in December 1973 and January 1974, Psychologist Reisenleiter in November 1974, and Dr. Feldman on February 11, 1975. In spite of extensive cross-examination, Dr. Campean repeated his opinion that a law-abiding paranoid schizophrenic, who would stab people, could control his activity in a law-abiding way to accomplish his objectives and that defendant had the capacity to control his conduct so as not to attempt to rob the bank. Dr. Feldman testified that defendant was not insane on December 18, 1972, and he committed the illegal act having the capacity to conform his actions to society’s standards. Also, this witness stated that Austin’s behavior in the bank was rational.

8 . This portion of the charge, with defendant’s emphasis, has been set forth as follows in defendant’s brief at pages 33-34:

“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.

“Intent and motive should never be confused. Motive is what prompts a person to act, or fail to act. Intent refers only to the state of mind with which the act is done or omitted. “Personal advancement and financial gain are two well-recognized motives for much of human conduct. These laudable motives may prompt one person to voluntary acts of good, another to voluntary acts of crime. So, too, delusional motives may prompt one person to act voluntarily in a criminal manner. “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.” (N.T. 6.81-82)

This request for charge was based on Section 13.05 of Federal Jury Practice and Instructions, by Devitt & Blackmar (2d ed.).

The dissent suggests (page 889) that, but for the second emphasized sentence quoted from the charge above, the jury may well have returned a verdict of not guilty based on a finding of delusional motivation. However, if the jury found the prosecution’s experts more credible than those of the defense, a finding of delusional motivation would not have necessarily led to the conclusion that Austin was therefore unable to conform his conduct to the law even without the instruction. The dissent eliminates the second step in a logical progression: step 1, delusional motivation; step 2, hence, inability to conform one’s conduct to the law; step 3, hence, a verdict of not guilty by reason of insanity.

9 . The instructions on sanity were amplified at N.T. 6.82.

10 . The charge included this language, as well as that referred to above at page 883.

“. . . intent may be inferred from statements made and acts done or omitted by the accused and by the victim as well and from all the surrounding circumstances shown by the evidence in the case.” [N.T. 6.75]

“For the purpose of throwing light upon the mental condition of the accused at the time of the alleged offense, the jury may consider evidence of his mental state both before and after that time.” [N.T. 6.82] “[C]onsider the evidence that has been admitted as to the defendant’s mental condition before and after the offense charged, the two stabbings, the attempted assault with a pipe, the attempted fire setting, and other testimony of his mental condition between December 1972 and March 1973.

“The evidence as to the defendant’s mental condition before and after the date of the attempted bank robbery December 18, 1972 was admitted solely for the purpose of assisting you to determine the defendant’s condition on the date of the alleged offense.” [N.T. 6.84]

“[Y]ou should consider the testimony of each [expert] witness in connection with the other evidence in the case and . . . give that testimony such weight as you believe it is fairly entitled to receive.” [N.T. 6.85]

“You should, however, consider it together with all the other evidence in the case in determining defendant’s mental condition at the time of the commission of the crime charged in the indictment.” [N.T. 6.80]

11 . See United States v. Cullen, 454 F.2d 386, 391 note 12 (7th Cir. 1971), citing a case stating that “the compulsion must be present, immediate and impending, and of such a nature as to induce a well founded fear of death or at least serious bodily injury” in order to provide an excuse for crime.

12 . “I further instruct you, under the defend- • ' ant’s plea of not guilty there is as you know an issue as to his sanity at the time of the alleged offense. The law does not hold a person criminally accountable for his conduct while insane, since an insane person is not capable of forming the intent essential to the commission of a crime.

“The sanity of the defendant at the time of the commission of the alleged offense is an element of the crime charged and must be established by the government beyond reasonable doubt, just as it must establish every other element of the offense charged.

“A defendant is insane within the meaning of these instructions if, at the time of the alleged criminal conduct, as a result of mental disease or defect he lacks substantial capacity to conform his conduct to the requirements of law.

“As used in these instructions, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

“For the purpose of throwing light upon the mental condition of the accused at the time of the alleged offense, the jury may consider evidence of his mental state both before and after that time. The material issue, however, is whether the defendant was sane or insane at the time of the alleged criminal conduct.

“If the evidence in the case leaves you with a reasonable doubt as to whether the defendant was sane at the time of the alleged offense, you will find him not guilty, even though it may appear that he was sane at earlier and later times.

“In considering the mental state of the accused, the jury will always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.”

13 . This second sentence of the ten-sentence requested charge to which objection was made provided: “So, too, delusional motives may prompt one person to act voluntarily in a lawful manner. nd another person to act voluntarily in a criminal manner.” For example, Dr. Kern, a defense expert, had testified on cross-examination, concerning a hypothetical paranoid schizophrenic:

“Q. And if he had a mind to go out and steal to get that car, certainly the fact that he is a paranoid schizophrenic would not be an excuse for the theft?

“A. That’s right.

“Q. So I take it then that the way you relate the mental disease in this case to the legal standard, that is, the absence of substantial capacity to conform his conduct, is because his motivation was delusioned?

“A. That’s right, mainly.”

(N.T. 4.37).

14 . Defense counsel contends that defendant was entitled at the least to the standard instruction that the jury should not give any consideration to the matter of punishment in determining the guilt or innocence of the accused, see Devitt & Blackmar, Federal Jury Practice and Instructions (2d ed.) § 10.01 at page 187 and § 17.08 at page 321, or this instruction given in Pope v. United States, 372 F.2d 710, 732 (8th Cir. 1967):

“ ‘Just as you will discharge your duty under the law and the evidence you can assume that others will do the same as to any matters for their consideration.’ ”