United States v. Aubrey Kenneth Porter

Following a jury trial, Aubrey Kenneth Porter was found guilty of robbing a federally-insured bank in violation of 18 U.S.C. § 2113 (a). On this appeal from the conviction, defendant’s principal argument brings into question the instruction the trial court gave with regard to defendant’s insanity defense.

Defendant’s trial took place prior to our in banc decision in Wade v. United States, 426 F.2d 64 (9th Cir. 1970), where we adopted, in part, the American Law Institute insanity test as set forth in Model Penal Code § 4.01 (Final Draft 1962). Consequently, the trial court instructed the jury in terms generally analogous to the modified M’Naghten standard that controlled in this circuit prior to Wade. See, e. g., Ramer v. United States, 390 F.2d 564 (9th Cir. 1968); Sauer v. United States, 241 F.2d 640 (9th Cir. 1957). Now, since Porter’s appeal falls within the scope of Wade’s limited retroactivity, he asserts that the trial court’s instructions require a reversal.

Our study of the record convinces us that, even under the Wade standard, defendant would not have made out a viable insanity defense. The four Government psychiatrists who testified all expressed the opinion that…