Bernard Henry Oliver, Jr. v. United States

The principal issue presented on appeal is whether the district court erred in defining insanity in terms of the M’Naghten rule as extended by the so-called irresistible impulse rule. In so acting the district court was following the holding of this court in Sauer v. United States, 241 F.2d 640 (9th Cir. 1957), cert. denied, 354 U.S. 940 , 77 S.Ct. 1405 , 1 L.Ed.2d 1539 . Cf. Smith v. United States, 342 F.2d 725 (9th Cir. 1965); Kilpatrick v. United States, 372 F.2d 93 (9th Cir. 1967), cert. denied, 387 U.S. 922 , 87 S.Ct. 2040 , 18 L.Ed.2d 979 . We are asked on this appeal to re-examine our holding in Sauer . It is the tradition of this court that such re-examination may be undertaken only by the court en banc.

This case was heard on July 5, 1967. At that time there was pending before the court en banc the case of Church v. United States, involving the issue of the proper definition of insanity. On July 10, 1967, the panel in this case ordered that any decision be deferred until there was a decision of this court en banc in Church. Church, together with Ramer v. United States, involving the same issue, was duly heard and on February 6, 1968, our en banc opinions were filed with…