Lanier Allison Ramer, Appellant, v. United States of America, Appellee.eugene Richard Church, Appellant, v. United States of America, Appellee, 390 F.2d 564 (9th Cir. 1968)

In these two cases we ordered hearings en banc to consider whether we should continue to follow our decision in Sauer v. United States, 1957, 9 Cir., 241 F.2d 640, cert. denied, 354 U.S. 940, 77 S. Ct. 1405, 1 L. Ed. 2d 1539. There, we adhered to the so-called M'Naghten rule, as extended by the so-called irresistible impulse theory, as the test of determining whether a defendant in a criminal case can be found to have been insane when he committed the criminal act, and therefore not guilty. We adhered to Sauer in Smith v. United States, 1965, 9 Cir., 342 F.2d 725 and in Kilpatrick v. United States, 1967, 9 Cir., 372 F.2d 93, cert. denied, 387 U.S. 922, 87 S. Ct. 2040, 18 L. Ed. 2d 979. See also Maxwell v. United States, 9 Cir., 1966, 368 F.2d 735, 740-742.

For reasons that will appear, we have concluded that these are not appropriate cases in which to reconsider the views that we expressed in Sauer, just as the panel that decided Maxwell felt that it was not an appropriate vehicle for such reconsideration.

1. The facts in Ramer's appeal.

Ramer was convicted on two counts charging bank robbery in violation of 18 U.S.C. § 2113(a). He was tried by the court, sitting without a jury. He entered the Sunset-Echo Park Branch of the Bank of America, in Los Angeles, on November 11, 1964, approached a teller, and said "Give me all the money you have got from hundred dollar bills down." The teller said "Pardon me," and Ramer replied "You heard me. Give me all the money you have got." When the teller started to get down from the stool where she sat, he said "Don't step on it," meaning the alarm. Next, he put his hand in his pocket and raised it over the counter, saying "I am not kidding." The teller gave him some dollar bills and he said "No, not that, the 20's." The teller gave him a batch of 20 dollar bills, including decoy money. He appeared to have been drinking, and seemed quite nervous. He walked out of the bank, got into a car, and drove off. A bank official got the license number and gave it and a description of Ramer to the police.

Ramer drove a few blocks to the 7th and Alvarado Branch of the Crocker-Citizens Bank, parked, and went in. He waited behind a customer at a teller's window and when the customer left he laid a ten dollar bill on the counter. The teller asked "Can I help you," and he replied "Give me all the tens and twenties you have." She handed him some bills, including bait money, and he walked out of the bank, got into his car, and drove away. He was nervous, but did not appear drunk.

He drove to a nearby bar, parked, and went in. Within a short time, two Los Angeles policemen, who had been given the license number of Ramer's car and his description, spotted the car. One of them entered the bar and saw Ramer, who ran to the rest room and locked it and did not respond or come out when ordered by the police, who identified themselves, to do so. Finally, a detective fired a shotgun through the door and Ramer came out with his hands up. Some of the stolen money was found in his pocket and more was found in the rest room trash can.

A policeman took Ramer to the police car, handcuffed him, "advised him of his rights to an attorney, of his right to remain silent, and also that anything he said may be used against him in further criminal proceedings," and asked where the rest of the money was. Ramer replied "I have done this before and I am not saying nothing." The officers testified that Ramer had been drinking but was coherent and not drunk.

About an hour to an hour and a half later, FBI agent Murphy, accompanied by a Los Angeles policeman, interviewed Ramer at the Police Department. Murphy's warning is set out in the margin.¹  They told Ramer that the money had been found on him, and he said he would talk, but first wanted to talk to his wife. He was permitted to make several calls, but did not get her, taking about 35 minutes trying. Then he described the two robberies, much as we have set them out, except that, according to his version, the conversation with the teller at the Bank of America took place at Crocker-Citizens, and vice versa. Ramer said that he had had "a couple of beers" before the robberies and a couple more afterwards. He was asked if he was drunk and replied, "No, but I feel the beer." Ramer also said that when he was in the rest room he did not hear the shot. He refused to answer some questions. Murphy testified that Ramer had been drinking, but was coherent and not drunk.

Ramer's sole defense was insanity. The testimony of Ramer's wife and mother, as well as that of three expert witnesses, clearly shows that Ramer has a history of emotional instability, and the court indicated that it was convinced that Ramer was emotionally disturbed.

Ramer's first expert, Robert Davenport, a clinical psychologist, administered certain psychological tests to Ramer in January, 1965, about two months after the offenses. These indicated mental illness and probably schizophrenia. Davenport's conclusions are quoted in the margin.² 

Ramer's second expert, Dr. Erric Marcus, a psychiatrist, examined Ramer on January 22, 1965. He also had Davenport's report of the results of his tests. We also quote Dr. Marcus' opinion in the margin.³ 

In rebuttal, the government offered two types of evidence. First, with the support of Ramer's counsel,⁴  it produced three FBI agents. Each had a statement given by Ramer shortly after he had robbed a bank. Two dealt with robbing a bank in Meriden, Connecticut, on December 11, 1956. The first of these was given on that day, and in it Ramer gave a brief history of himself and a circumstantial account of the robbery. The agent said that, when he gave the statement, Ramer was normal, did not appear drunk, but said he had been drinking. The second was given on December 12, 1956. In it, Ramer gives a somewhat detailed history of himself and his prior troubles. He states that he drank a good deal on the morning of December 11, was in a hazy state of mind, and did not recall all of his activities, and particularly, that he did not recall what he did in the bank. He says that he does not know why he robbed the bank, other than that he had been drinking, had no job, and was worried about getting money for medical expenses for his three year old son. His son was with his estranged wife in North Carolina, and she had written a letter saying that money was needed for the son's medical expenses. The third agent had interviewed Ramer twice regarding his robbery of a bank in Riverside, California on June 1, 1960. The first interview was on the day of the robbery, and Ramer said that he had been in a bar drinking and did not know what he was doing in the Police Department. On June 6, 1960, however, he gave the agent a written statement, describing the robbery and his flight in detail. He also said that he had had five glasses of beer, had no job or money, and decided to pull a burglary or robbery to get some.

Second, the government presented the testimony of Dr. Carl Von Hagen, a neurologist and psychiatrist. The doctor stated in detail the information given him by Ramer.⁵  We quote his opinion in the margin.⁶ 

In deciding the case, the court indicated that he felt bound by our ruling in Sauer, supra, and that under the Sauer test, most of the defense evidence had no relevancy. He also said:

"I will take Dr. Von Hagen's testimony and then I would have to find the defendant guilty. * * * Not only alone, but on the testimony of the other witnesses."

And he made it clear that he did not believe Ramer's testimony and statements that he could not remember what he had done.

2. The facts in Church's appeal.

Church was tried and found guilty by a jury on two counts, and, pursuant to a waiver of jury, by the court on a fourth count, of a four-count indictment. The first two counts charged him and two others, his brother Clarence and his brother-in-law Ray, with aiding and abetting (18 U.S.C. § 2) one Louise Horne in violating 21 U.S.C. § 174, in the illegal importation and concealing and facilitating the transportation and concealment of 1½ oz. of heroin. The fourth count charged violation of 18 U.S.C. § 1407, entering the United States without surrendering the certificate described in the section. He was sentenced to five years on counts 1 and 2 and to two years on count 4, all concurrent.

On March 22, 1965, Miss Horne, Church, Clarence and Ray drove from Los Angeles to Tijuana, Mexico. The car belonged to Clarence. She drove to the border, but Church drove across. They went to the Jai Alai courts and parked. Church left, and returned with heroin in two condoms. Church and his brother tried the heroin and were dissatisfied with it. He handed one condom to Miss Horne, and told her where to put it. They went to a motel and Miss Horne, who had been holding the second condom, returned it to Church. Later, Church handed it back to her. They returned to the Jai Alai court and Church took both condoms and left. When he returned, he handed one condom to Miss Horne. She placed it in her vagina. They returned to the border and were stopped. Miss Horne was searched and the condom, containing heroin, was found. The two Churches had discussed the trip with Miss Horne the day before and told her that its purpose was to get heroin. Miss Horne was to be paid for her services. Clarence furnished the money to buy the heroin. When questioned at the border, Church gave a false name. He was lucid and appeared normal in every way. He was not under the influence of narcotics.

Church was first tried along with Clarence and Ray in August, 1965. After the trial, he was interviewed by a probation officer. The officer's notes show:

"From the beginning of the interview, this defendant gave the impression of having a mental disorder, staring into space and refusing to answer any questions except that he was born in St. Louis, Missouri, is twenty-seven years old, and formerly lived with his wife in Los Angeles, California. * * * After repeated effort to secure routine background information, the presentence interview was terminated."

The court ordered Church examined by a psychiatrist, found him then insane, set aside his conviction, and sent him to Springfield for treatment. He was later found sane, and able to assist in his defense. The present appeal is from the judgment of conviction upon his retrial in May, 1966.

The primary defense was insanity. Dr. William D. Kinnan, a clinical psychologist, had two interviews with Church in May, 1966, and gave him two standard tests. His opinion was that Church was a schizophrenic type, then in a state of remission. However, he could become psychotic under stress difficulties in the family situation — especially where religion is concerned. In that event, he would be out of touch with reality. He did not express an opinion as to Church's sanity at the time of the offense.⁷ 

Dr. George Hollinger, a psychiatrist, examined Church on April 26, 1966 and May 10, 1966. He also interviewed Church's wife and examined the records from the Springfield hospital, the record of Church's previous psychiatric examinations and Dr. Kinnan's report of his tests, which were done at Dr. Hollinger's request. Some of Dr. Hollinger's findings are set out in the margin.⁸  Immediately after the doctor stated his opinion, the court read to the jury the legal definition of insanity substantially as approved in Sauer, supra, and told the jury that it was different from the medical definition. There was no objection. The doctor was then asked whether Church was legally sane or insane on March 22, 1965. He stated that in his opinion Church was legally insane on that day. There was then the usual cross-examination, in the course of which he stated that schizophrenics have periods of remission, so that he could not know whether Church was insane on March 22, 1965. But the doctor remained persuasively positive as to his opinion and the reasons for it.

In rebuttal, the government called Dr. Allan Schrift, a psychiatrist. He examined Church on August 24, 1965. His opinion was that on August 24, 1965, Church was "legally insane" but that on March 22, 1965 Church did not have the same mental illness, and was probably "legally sane." He also diagnosed Church as schizophrenic, undifferentiated type, but not one who appeared manic or depressed.

At the conclusion of the government's case, defense counsel reminded the court that it had appointed a Dr. Robuck to examine Church in August, 1965, offered to stipulate that the report of the doctor go in evidence, and asked the court to call the doctor as the court's witness. The prosecutor insisted that he be called as a defense witness. The court pointed out that, if the defense called the doctor, he could be compensated under the Criminal Justice Act. The upshot of the colloquy between court and counsel is as follows:

"MR. WIED: I would be happy to examine him as long as it were made clear to the jury that this is the Court's impartial witness appointed by the Court, and that he is not being called as a pro-defense witness.

THE COURT: Yes, but you are mixing up two things. I appointed him to make a report. He made the report to me and I acted on that report. Now, if you want him as a witness, then, of course, you can have him as a witness and the jury can be told how he happened to make the examination that you are going to question him on, but it puts you in the position of calling him as a witness.

I still will state to the jury how he happened to be appointed, that he made a report and I acted on the report. If you want him, we'll have to get a CJ 8 out so he can get compensated.

MR. WIED: I will have to fill that out this afternoon, in addition to calling Los Angeles.

THE COURT: All right."

The doctor was not mentioned again.

As in Ramer's case, there was considerable evidence of mental instability on Church's part. He was the second son in the large family of a very rigid pentecostal minister. He was some years younger than Clarence, toward whom he felt some "hero worship." He also felt, however, that Clarence was his father's favorite. He admired his father, wanted to be loved by him, but felt rejected. He broke away from the family pattern and became a successful "rock and roll" singer. In 1962, while on tour, he had a "religious experience," became very active in his father's church, and behaved most peculiarly — going into long periods of apparently complete abstraction and religious fervor. His brother was a heroin addict and was undergoing withdrawal symptoms (which he vividly described on the witness stand⁹ ) on March 22, 1965. The defense theory was that Church acted under compulsion in the belief that he was somehow helping Clarence.

In instructing the jury, the court gave, substantially, the Sauer instruction. There were no defense objections; no other definition of insanity was suggested by defense counsel.

3. Neither case is an appropriate one in which to reconsider our holding in Sauer.

Various possible definitions of "legal insanity" have been suggested. In Ramer's case, counsel urges the definition adopted by the Third Circuit in United States v. Currens, 1961, 290 F.2d 751, 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."

He suggests as an alternative the definition proposed by the American Law Institute in its Model Penal Code, § 4.01:

"Mental Disease or Defect Excluding Responsibility.

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.

(2) The terms `mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct."

This is the rule adopted by the Second Circuit in United States v. Freeman, 1966, 357 F.2d 606, 622-623 and by the Seventh Circuit in United States v. Shapiro, 1967, 383 F.2d 680, both courts adopting the Model Penal Code alternative word "wrongfulness" instead of "criminality."

Ramer's counsel also calls attention to, but does not urge that we adopt, several possible variations of these tests. One is the New Hampshire rule, stated in State v. Jones, 1871, 50 N.H. 369, 398:

"If the defendant killed his wife in a manner that would be criminal and unlawful if the defendant were sane, the verdict should be `not guilty by reason of insanity,' if the killing was the off-spring or product of mental disease in the defendant."

Another is that adopted by the District of Columbia Circuit in Durham v. United States, 1954, 94 U.S.App.D.C. 228, 214 F.2d 862, 874, 45 A.L.R.2d 1430:

"It is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.

We use `disease' in the sense of a condition which is considered capable of either improving or deteriorating. We use `defect' in the sense of a condition which is not considered capable of either improving or deteriorating and which may be either congenital, or the result of injury, or the residual effect of a physical or mental disease."

We note, however, that that court has since modified the Durham rule in McDonald v. United States, 1962, 114 U.S. App.D.C. 120, 312 F.2d 847, 851. See also Washington v. United States, D.C. Cir., 1967, 390 F.2d 444, decided December 13, 1967.

A third is that recommended by the Special Commission on Insanity and Criminal Offenders, State of California, 1962:

"A person is not criminally responsible for an act if at the time of the commission of such act, as a substantial consequence of mental disorder, he did not have adequate capacity to conform his conduct to the requirements of the law which he is alleged to have violated."

A fourth is the rule in Wion v. United States, 10 Cir., 1963, 325 F.2d 420, 430:

"* * * that a person is not criminally responsible for his conduct if, at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. The jury is then to be told that, as applied to their case, the test for criminal responsibility means that before they may return a verdict of guilty, they must be convinced beyond a reasonable doubt that at the time the accused committed the unlawful act, he was mentally capable of knowing what he was doing, was mentally capable of knowing that it was wrong, and was mentally capable of controlling his conduct."

In Ramer's case, the government commends the definition appearing in the Manual of Uniform Jury Instructions in Federal Criminal Cases for the United States District Court for the Northern District of Illinois, 33 F.R.D. 529, with some modifications:

"Section 5.03 (33 F.R.D. at 560) provides in pertinent part: `Where a defendant introduces some evidence that he had a mental disease or defect at the time of the commission of the crime charged, the prosecution must establish beyond a reasonable doubt that defendant did not have a mental disease, or that despite the mental disease he had the capacity either to know the criminality of his conduct, or to conform to the requirements of the law.'

We think this would be better phrased by dropping `either-or' so that the concluding portion of the instruction would read: `the prosecution must establish beyond a reasonable doubt that the defendant did not have a mental disease, or that despite the mental disease he had the capacity to know the criminality of his conduct and conform to the requirements of the law.'"

It also commends the test approved by the British Royal Commission on Capital Punishment (1953) as quoted in Currens, supra, 290 F.2d at 774, n. 32:

"The jury must be satisfied that, at the time of committing the act, the accused, as a result of disease of the mind (or mental deficiency) (a) did not know the nature and quality of the act or (b) did not know that it was wrong or (c) was incapable of preventing himself from committing it."

However, the government would add to either test "* * * a sentence to advise the jury that its function in evaluating an accused's total mental condition is not to determine simply whether he was mentally ill at the time of the crime, but more basically whether, because of his mental illness, he cannot justifiably be held morally responsible for his conduct."¹⁰ 

Church's counsel urges adoption of the American Law Institute Test.

In deciding Ramer's case, the trial judge made two things clear — one that he accepted the testimony of Dr. Von Hagen, and two, that he was convinced that Ramer did, in the case of each robbery, remember what happened. This means, according to Dr. Von Hagen, that Ramer was not in a fugue state when he did the prohibited acts. Since no other basis for finding Ramer insane at the time of the robberies was advanced by Dr. Von Hagen, it follows that, under any of the tests suggested, Ramer would still have been convicted. As to him, the test applied, when compared to the tests suggested, did him no harm. That is why Ramer's case is not an appropriate case for reconsideration of Sauer. See Maxwell v. United States, supra, 368 F.2d at 743.

In Church's case, no evidence relating to his sanity was excluded by reason of the Sauer formulation. The court was not asked by Church's very competent counsel to give any instruction based upon any formulation other than that in Sauer. On the contrary, when the court finished its instructions, counsel expressly stated that he had no objections. No attempt was made to offer medical testimony based upon one of the tests now suggested to us. Such testimony could be quite helpful in deciding whether to adopt one of those tests. One of the important factors to be considered in weighing any test is, what is its effect likely to be? What sorts of people, under what circumstances, are likely to be acquitted under the new test proposed? The importance of this question is well illustrated by the experience of the District of Columbia Circuit under Durham. For all of these reasons, we do not think that Church's case is a suitable one for reconsideration of Sauer. Rule 30, F.R.Crim. Proc. bars the right of Church to claim error based on the court's instructions. We decline to use the plain error safety valve of Rule 52(b) in this case. Cf. Herzog v. United States, 9 Cir., 1956, 235 F.2d 664, 666.

4. Other errors claimed in Ramer's appeal.

Ramer contends that the prosecution failed to sustain its burden of proving his sanity at the time of the commission of the offenses. While no motion for acquittal was made, we have given consideration to the point urged and reject it. We recognize that whenever, by testimony, the question of insanity is raised, then the fact of sanity must be established by the prosecution to the satisfaction of the trier of fact, beyond a reasonable doubt. This obligation on the part of the prosecution is set forth in Davis v. United States, 1897, 165 U.S. 373, 17 S. Ct. 360, 41 L. Ed. 750, and is followed in this Circuit. See Buatte v. United States, 9 Cir., 1964, 330 F.2d 342. The record reveals that the trial judge was fully aware that this burden was upon the prosecution. His finding that the appellant was guilty necessarily implies that the prosecution had established beyond a reasonable doubt each and every essential element of those offenses, including the sanity of Ramer. We have carefully examined the record and have no difficulty in stating that the implied findings are abundantly supported by the evidence.

Ramer urges that his conviction must be reversed because of the admission into evidence of statements made by him to F.B.I. agent Murphy. No objection was made, but Ramer contends that the district court committed "plain error" in receiving the evidence. We do not agree.

Ramer relies upon Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. His trial was concluded on March 12, 1965. Miranda was decided June 13, 1966; it does not apply here. Johnson v. State of New Jersey, 1966, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882. The warning given by the agent is set out in note 1, supra. Murphy's testimony shows that Ramer was normal, was aware of his rights, and freely and voluntarily answered the agent's questions. There was no coercion of any kind, physical or psychological. The rule announced in Escobedo v. State of Illinois, 1964, 379 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, is inapplicable to Ramer's case. See Payne v. United States, 9 Cir., 1965, 340 F.2d 748.

Ramer argues that the use of the definition approved by us in Sauer denied him due process. He says that if he had been tried in the Second or Third or Seventh or District of Columbia Circuit, a more liberal definition would have been used. Ergo, trial in a circuit such as the Ninth, which adheres to Sauer, deprives him of due process. We find it difficult to say that the use of a definition expressly approved by the Supreme Court of the United States (Davis v. United States, 1897, 165 U.S. 373, 17 S. Ct. 360) deprived Ramer of due process. Moreover, we note that the point was not raised in the trial court. Grant v. United States, 9 Cir., 1961, 291 F.2d 746, 748, cert. denied, 1962, 368 U.S. 999, 82 S. Ct. 627, 7 L. Ed. 2d 537; Gajewski v. United States, 8 Cir., 1963, 321 F.2d 261, cert. denied, 1964, 375 U.S. 968, 84 S. Ct. 486, 11 L. Ed. 2d 416.

5. Other errors claimed in Church's appeal.

Like Ramer, Church claims that the government failed to sustain its burden of proving his sanity. Our examination of the evidence leads us to a contrary result.

The court did not tell the jury that if Church were acquitted he would be set free. Cf. Evalt v. United States, 9 Cir., 1964, 359 F.2d 534. Counsel speculates that the jury must have thought that he would be because the court did tell the jury that, if they had a reasonable doubt as to Church's sanity at the time of the offense, they should find him not guilty. What else could the court have said? We decline to speculate with counsel as to what the jury might have thought.

Counsel urges that the court's question, the objection to which the court sustained (see n. 8, supra) was unduly prejudicial. We do not find it so.

An additional claim of error is stated by counsel as follows:

"During direct examination of Dr. Hollinger, counsel for the Government made objection to the introduction in evidence of statements made by Appellant to the doctor. The Court overruled the objection and stated, `They will be offered for the limited purpose of showing what information the doctor, the witness received from the defendant. They will not be considered as evidence as to what happened on March 22d. If that evidence is to be produced, the defendant may testify, but the defendant cannot testify through a third person as to what happened on March 22d. * * *' Rptr.Tr. p. 353 (Emphasis supplied.) Objection to the statement by the court was made later in the proceedings (see Rptr.Tr. p. 390), and an offer by the court to explain the right of a defendant not to testify was declined by counsel for the defense that such instruction would only serve to emphasize the failure of Appellant to testify. Id., at 390-392."

Counsel argues that this was an improper comment on the failure of Church to testify. We think not; it was but a shorthand way of defining hearsay. And the court gave the following instruction:

"The law does not compel a defendant to take the witness stand and testify, and no presumption of guilt may be raised and no inferences of any kind may be drawn from the failure of a defendant to testify."

The facts as to this matter are set out above. The court offered to Church's counsel the full benefit that he would have received if the court had called the doctor; it merely wanted to establish a method of compensating him. Counsel did not take advantage of the court's offer. His reasons do not appear. We find no reversible error.

The judgments are affirmed.

Ramer's application, received by the Clerk on May 3, 1967, for an Order granting permission to supplement the record on appeal in his case by including therein a written declaration made by Ramer dated April 26, 1967, is denied. The declaration was not a part of the record before the district court.

HAMLEY, Circuit Judge, with whom MERRILL and BROWNING, Circuit Judges, concur, dissenting:

My only concern in writing this dissenting opinion is with regard to the insanity defense issue.

The majority states that it is inappropriate to consider that issue in the Ramer case because: (1) that case was tried to the court, (2) the court stated that it accepted the testimony of Dr. Von Hagen, (3) Dr. Von Hagen expressed the opinion, in effect, that the only possible indication of lack of criminal responsibility on the part of Ramer when the act was committed was that he was in a fugue state and thus was unable to control his activities; but that, under the established circumstances, Ramer was not in a fugue state, and (4) it follows that Ramer would have been convicted under any of the suggested tests of criminal responsibility.

There are two reasons why, in my view, this rationale does not warrant refusal to deal, on the merits, with the insanity test issue in Ramer's appeal. One is that it is not clear from the record that the trial court would have accepted Dr. Von Hagen's testimony to the exclusion of that of the other medical witnesses had the court not felt bound by our ruling in Sauer v. United States, 9 Cir., 241 F.2d 640. As the majority opinion reports, the trial court stated that he felt bound by our ruling in Sauer, and that, under the Sauer test, most of the defense evidence had no relevance.

If the trial court's adherence to the Sauer test was the reason it disregarded the other medical evidence as irrelevant, then the correctness of the Sauer test is directly in issue in the Ramer appeal. This is true because one of the defense experts, Dr. Erric Marcus, expressed the opinion that Ramer committed the act "under a compulsion, a medical concept," which the doctor differentiated from an irresistible impulse. See note 3 of majority opinion. Had it not been for its adherence to the Sauer test, with its reference to the "irresistible impulse" factor (which I will discuss below), the trial court might have accepted this testimony by Dr. Marcus. Had his testimony been accepted, the court could have found a lack of criminal responsibility under one or another of the several tests listed in the majority opinion.

The second reason why, in my view, the majority's rationale in avoiding the criminal responsibility issue in Ramer is inadequate, pertains to the so-called "right and wrong" element of the Sauer test. The trial court accepted only the medical testimony of Dr. Von Hagen, and the latter expressed the opinion that Ramer knew the difference between right and wrong. This was the formulation of the right and wrong factor approved in Sauer v. United States, 9 Cir., 241 F.2d 640, 642, following Andersen v. United States, 9 Cir., 237 F.2d 118, 127. This formulation of the "right and wrong" factor was also held, in Davis v. United States, 165 U.S. 373, 378, 17 S. Ct. 360, 41 L. Ed. 750, not to be prejudicial under the facts of that case.

However, in Hotema v. United States, 186 U.S. 413, 420, 22 S. Ct. 895, 46 L. Ed. 1225, the "right and wrong" factor which was approved was not that the defendant knew the difference between right and wrong, in general or in the abstract, but that he knew that the act he was charged with committing was wrong. But, in Matheson v. United States, 227 U.S. 540, 543, 33 S. Ct. 355, 57 L. Ed. 631, the Supreme Court approved the same formulation of the "right and wrong" factor which had been upheld in Davis.

It will be noted that in several of the tests of criminal responsibility listed in the majority opinion, the "right and wrong" element is formulated in terms similar to those approved in Hotema. Thus, in section 4.01 of the A.L.I. Model Penal Code, the words used are "* * * to appreciate the criminality [wrongfulness] of his conduct * * *." If the latter formulation of the "right and wrong" factor is the one that ought to prevail, then Dr. Von Hagen's testimony, being limited to the general and abstract treatment of that element, did not supply the trial court with an evidentiary basis for finding that the Government had upheld its burden of proving that Ramer was criminally responsible.

Incidentally, to equate the general and abstract version of the "right and wrong" element with M'Naghten's Rule, 10 Cl. and F. 200, 210, is to perpetuate a myth which many courts, including ours, have accepted through the years. As Circuit Judge Warren E. Burger has pointed out, history shows that the M'Naghten test in 1843 replaced and supplanted the ancient "right and wrong" test. Writes Judge Burger in "Psychiatrists, Lawyers, and the Courts," 28 Federal Probation (June, 1964) 3, at 4:

"Prior to 1843 in England, a man was held responsible if at the time of his criminal acts he was able to distinguish the difference between right and wrong. This was a test which grew from the ancient ecclesiastical courts, but the M'Naghten test did away with this abstract approach and substituted a new and concrete standard largely influenced by the writings of Dr. Isaac Ray. This test was whether the defendant knew that the particular act he was committing was wrong." (Emphasis in original.)¹ 

The majority states that it is inappropriate to consider the insanity defense issue in the Church case because: (1) no evidence relating to Church's sanity was excluded by reason of the Sauer formulation, (2) no attempt was made to offer medical testimony based upon one of the other tests, which testimony could be quite helpful in deciding whether to adopt one of the other tests, (3) since Church's counsel did not ask the court to give any instruction based on any other formulation but, on the contrary, expressly told the court he had no objection to the instruction given, Rule 30, F.R.Crim.Proc. bars the right of Church to claim error based on the court's instructions, and the court declines to use, in this case, the plain error safety valve of Rule 52(b), F.R.Crim.Proc.

In my view, acquiescence in the Sauer instruction, and failure to offer evidence which would be admissible under some other test, but not Sauer, ought not to preclude this court, under the circumstances, from reaching the merits of the insanity defense issue in Church. Counsel for defendant, as well as the trial court, knew that the trial court was bound by the Sauer formulation, and that a request for a different instruction or the offer of evidence not admissible under Sauer would be an exercise in futility.

Even if defense counsel had, with possibly some risk to his client's interest, desired to lay ground work in the trial court for reconsideration of the Sauer test, he was confronted with the Sauer ruling, 241 F.2d, at 644, 652, that only the United States Supreme Court, or Congress, could change the rule in Davis v. United States, 165 U.S. 373, 17 S. Ct. 360, followed in Sauer.² 

Under these circumstances, defense counsel ought not to be foreclosed here because he did not offer evidence which would have been inadmissible under Sauer and because he did not request an instruction which, under Sauer, the trial court was dutybound to reject. With respect to the failure to request an instruction differing from Sauer, it should also be added that one of the counts on which Church was convicted, was tried to the court without a jury, as to which count no jury instructions were appropriate.

It is quite true, as the majority states, that Rule 30, F.R.Crim.Proc., bars the right of Church to claim error based on the court's instructions. However, I believe that, under the circumstances of this case, and in the exercise of our discretion, we should exercise our undoubted authority to use the plain error safety valve of Rule 52(b), F.R.Crim.Proc. to reach the question on the merits.

In United Brotherhood of Carpenters, etc. v. United States, 330 U.S. 395, 411-412, 67 S. Ct. 775, 784, 91 L. Ed. 973 (1946), the Supreme Court reversed for error in the charge which had not been excepted to where "the erroneous charge was on a vital phase of the case and affected the substantial rights of the defendants," although when the defendants were being tried in the district court the legal principle rendering the charge erroneous was subject to "existing uncertainty" which was settled for the first time by the Supreme Court on review of the convictions. The same situation was presented in Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); see 8 Moore's Federal Practice § 30.04, pp. 30-38.

As this court said in Herzog v. United States, 235 F.2d 664, 666 (9th Cir. 1956), Rule 30 and Rule 52(b) are complementary rather than conflicting. The former applies to a party and denies him a right to reversal for unassigned error in instructions. Rule 52(b), on the other hand, is a broad grant of power to the court to prevent a miscarriage of justice by protecting the substantial rights of the defendant despite failure of his counsel to object. "The Rule is in the nature of an anchor to the windward. It is a species of safety provision the precise scope of which was left undefined."

So, in our case, the charge in question was on a vital phase of the case and affected the substantial rights of Church. Moreover, paralleling the situation in Brotherhood of Carpenters, the legal principle dealt with in the instruction — the insanity test — was subject to "existing uncertainty," inasmuch as one circuit after another has been abandoning the M'Naghten irresistible impulse test, and yet the Ninth Circuit has held that it was without power to do so. I would say that we have here almost a classic example of the kind of circumstances in which, in the exercise of its discretion, the court ought to utilize the plain error rule.

Two medical experts testified in the Church case. One of these was Dr. William D. Kinnan. The majority states that Dr. Kinnan did not express an opinion as to Church's sanity at the time of the offense. The majority, and with good reason, does not make a similar statement concerning the testimony of the other medical expert, Dr. George Hollinger. Some of Dr. Hollinger's testimony is set out in footnote 8 of the majority opinion. In my view, his expressed opinion, if accepted by a jury, would have permitted a jury, applying the A.L.I. test and some other tests listed in the majority opinion, to find that Church, with his established insanity, should not be held criminally responsible. Such a jury finding would hardly be warranted under the Sauer test.

The majority cites Maxwell v. United States, 9 Cir., 368 F.2d 735, as a precedent for not reaching the merits of the insanity defense question on the appeals now before us.

In Maxwell, a panel of this court declined to ask for an in banc hearing to reconsider the Sauer test because the evidence as to insanity was extremely meager, and there was no perceivable prejudice from failure to give an instruction more in keeping with the A.L.I. formulation.³  On the other hand, in both the Ramer and Church appeals, there was extensive medical opinion testimony, the highlights of which are set out in several footnotes in the majority opinion. I have stated above why I believe there is, in both of these appeals, a good reason to believe failure to apply the A.L.I. formulation or one of the other newly-developed tests, prejudiced these appellants.

Under these circumstances I do not believe, as the majority apparently does, that the failure of the three-judge panel in Maxwell to seek in banc reconsideration of the Sauer rule, provides a precedent which should be followed by the ten judges who sat in banc in Ramer and Church. These cases were heard in banc for the express purpose of providing an opportunity to reconsider the Sauer test although, in calling the in banc hearing, the court of course did not bind itself to reach the merits. The parties were advised of the purpose of the in banc hearing and supplemental briefs were invited and filed.

The two cases were well briefed and well argued on records which, in my view, were adequate for consideration of the issue on the merits.⁴  Indeed, it is difficult for me to visualize how a more clear-cut presentation of the issue is to be forthcoming in the future, in view of Sauer's rulings, binding upon trial judges and trial counsel alike, that the evidence must be relevant, and the instructions must be appropriate, under the Sauer test, and that even if the Sauer test should be replaced, this court is incapable of doing so.

But even if the majority is unwilling to consider whether some test, such as the A.L.I. definition, should be adopted, it ought at least to clarify the so-called Sauer test, as applied in this circuit.⁵ 

I now state briefly what I believe the court should have held if the merits had been reached.

First, the Sauer holding (241 F.2d at 644-645, 652), that only the United States Supreme Court or Congress can change the Davis-Sauer formulation, should be abandoned.

One other circuit has adopted the Sauer position. Howard v. United States, 5 Cir., 232 F.2d 274, 275. However, the four circuits which have abandoned the M'Naghten Rule have apparently found no impediment in the Supreme Court pronouncements concerning the insanity defense. See United States v. Shapiro, 7 Cir., 383 F.2d 680; United States v. Freeman, 2 Cir., 357 F.2d 606; Wion v. United States, 10 Cir., 325 F.2d 420; and Currens v. United States, 3 Cir., 290 F.2d 751. I do not include Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430 because, as Sauer properly points out, the District of Columbia circuit has a unique status. See 241 F.2d at 644.

In Freeman, 357 F.2d at 613-615, and Currens, 290 F.2d at 768-770, the Second and Third Circuits have dealt in detail with this issue and explained, to my satisfaction, why the circuits are not precluded by Davis, or any other Supreme Court opinion, from adopting some other test of criminal responsibility, and why the circuits are not required to wait for Congress to act.

Second, the statement of the test of criminal responsibility adhered to in Sauer, should be abandoned in favor of the test set out in the American Law Institute Model Penal Code, section 4.01, using the alternative word "wrongfulness" instead of "criminality." The reasons why we should adopt this course are set out at length by the Second Circuit in Freeman, and by the Seventh Circuit in Shapiro.

The A.L.I. test is the result of years of study and consultations by outstanding authorities in the relevant fields of law and social sciences. While an argument can be made that minor variances in language or emphasis would improve the test, I see nothing important to be gained by starting down a side track of this kind. The trend in both federal and state courts is in the direction of the A.L.I. test, and the advantage of uniformity is a worthy end in itself, where principle need not be surrendered.

There is perhaps a feeling by some that the circuits should do nothing which might result in more acquittals on the ground of insanity until there is a federal statute such as is now in effect for the District of Columbia alone, providing for automatic commitment of a defendant who is acquitted on the ground of insanity. Some indication of this point of view is to be found in Sauer, 241 F.2d at 651-652. However, the irrelevance of this sociological consideration in deciding what is the proper test of criminal responsibility, is shown with clarity in United States v. Shapiro, 7 Cir., 383 F.2d 680, at 686-687.

Third, this court should hold that as to all cases except Ramer's and Church's, the acceptance for the Ninth Circuit of the A.L.I. definition shall apply prospectively only, as to trials commencing after we announce adoption of the A.L.I. test. See Shapiro, at 687.

Fourth, the Ramer and Church judgments should be reversed, and those causes should be remanded for a new trial. It should be abundantly clear from what is said above that the district courts concerned are not chargeable with the errors which should require reversal and remand.

ELY, Circuit Judge (dissenting):

I share the minority view, expressed by Judge HAMLEY, that our court should have here taken the opportunity to abandon the outdated test of Sauer. I keenly regret that we have not done so.

I do not now concur in the whole of my Brother HAMLEY'S dissenting opinion, for the time may come, very soon indeed, when the force of the avalanching medico-legal criticism and repudiation of our existing rule can no longer be resisted. Until that time, it would seem preferable that I express no opinion as to whether the A.L.I. test, excellent as it is, fully comports with the ideal that none should be punished for an act which he has committed solely because of a deranging mental affliction, whether disease or defect, for which he himself is not responsible.