United States v. Francisco Luis Arroyave

465 F.2d 962 UNITED STATES of America, Plaintiff-Appellee, v. Francisco Luis ARROYAVE, Defendant-Appellant. No. 72-1691. United States Court of Appeals, Ninth Circuit. Aug. 30, 1972. Stanley Joseph Zaks (argued), San Francisco, Cal., for defendant-appellant. Michael W. Field, Asst. U. S. Atty. (argued), F. Steele Langford, Asst. U. S. Atty., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee. Before LUMBARD, * MERRILL and KILKENNY, Circuit Judges. PER CURIAM: 1 Appellant was convicted in a jury trial of violating 21 U.S.C. Sec. 841 (a) (1) [possession of marihuana] and 21 U.S.C. Sec. 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. 2 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…

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.

*963 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…

(concurring) :

Sitting as a judge of the Ninth Circuit, I am constrained by the precedents of the Ninth Circuit to concur in reversing the convictions.

In Doyle v. United States, 366 F.2d 394 (9th Cir. 1966), it was held that the trial judge should determine, as a matter of law, that the presumption of sanity is not applicable; therefore, it was held that the instruction given in that case was erroneous because it allowed the jury to determine whether the evidence was sufficient to inject the insanity issue into the case. The instruction in that case was phrased in a manner more likely to mislead the jury into thinking that it must find sufficient evidence to dissipate the presumption of sanity than is the instruction in this case. However, in Doyle , the court relied on and cited with approval the case of Otney v. United States, 340 F.2d 696 (10th Cir. 1965). With reference to Ot-ney, the court said that there “the court had before it an instruction substantially the same as that given in the Doyle trial.” (p. 400) Thus, the clear inference from Doyle is that the court should reach the same result in the case of an instruction like that disapproved in Ot-ney, although, of…