United States v. Francisco Luis Arroyave

465 F.2d 962, 1972 U.S. App. LEXIS 7714

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 30, 1972
• Docket: 72-1691
• Status: Published

Opinions

PER CURIAM:

Appellant was convicted in a jury trial of violating 21 U.S.C. § 841(a) (1) [possession of marihuana] and 21 U.S.C. § 846 [conspiracy to distribute marihuana]. His sole defense at the time of the trial was mental incapacity to commit the alleged crimes. His principal contention on this appeal is that the trial court erroneously instructed the jury on the issue of insanity.

In his instruction on the subject, the Judge told the jury, among other,things, that . . until a reasonable doubt as to the sanity of a defendant appears, the law presumes that all defendants are sane. But whenever, from the evidence in the case, you have a reasonable doubt of the sanity of a defendant, that defendant should be found to be insane.” (Emphasis supplied).

This is the type of instruction condemned in Doyle v. United States, 366 F.2d 394, 400 (CA9 1966), where we held, on a record similar to the one before us, that the court should determine, as a matter of law, that the presumption of sanity is not applicable. Although the Doyle precept has been sharply criticized, United States v. Harper, 450 F.2d 1032, 1039 (CA5 1971); Gordon v. United States, 438 F.2d 858 (CA5 1971), there is nothing in our later decisions to indicate a departure from the stated rule. See United States v. Ingman, 426 F.2d 973, 976 (CA 9 1970). Since appellant’s mental competence was his only defense, we cannot treat the error as harmless. For that matter, Doyle prohibits such action.

Appellant’s other criticisms of the instruction are lacking in merit. Conceding, arguendo, that the challenged instruction is somewhat indefinite as to the burden of proof, we suggest that the court is not likely to employ the same language in a new trial. The use of the word “insane” in an instruction is not, in and of itself, improper. However, in defining what is meant by “insane”, the court must, as it did here, employ the test prescribed by Wade v. United States, 426 F.2d 64, 71-72¹ (CA9 1970). The court’s reference to the appellant’s alleged expert as a “layman” was no doubt inadvertent, and, on this record, was not prejudicial.

The judgment of the lower court is set aside and the cause remanded for further proceedings in conformity with the above.

1 . See Devitt and Blackmar, Federal Jury Practice and Instructions, § 13.15, p. 294. Wade indicates a disapproval of that part of the instruction reading: “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.”