Eugene C. Campbell v. United States

BURGER, Circuit Judge

(dissenting).

Two very important and fundamental points are at issue in this case. The first is that the majority, while purporting to follow our prior holdings is in fact departing from them by refusing to allow the product test to be explained to the jury in the very terms we explained it in Durham v. United States, 94 U.S.App.D.C. 228 , 214 F.2d 862 , 45 A.L.R.2d 1430 (1954), and later cases. The second point is that the majority is again giving judicial approval to the extraordinary process by which a small segment of the medical profession alters the scope of the law of criminal responsibility by the simple device of “administratively” expanding the definition of mental disease from time to time. This was done once before by changing the definition of mental disease to include psychopathic or sociopathic personality 1 v/hich like “emotionally unstable personality” was not classified as a mental disease when we adopted the “disease-product” test.

(D

Majority Holding of Error in Jury Charge

Finally we have a case which presents the issue, sharply drawn, whether we are to abandon even the form of the “legal and moral traditions” which this court said “require that those who, of their own free will and with evil intent * * commit acts which violate the law shall be criminally responsible * * 2 This opinion gains added significance in that Judges Bazelon and Washington were members of the division which decided Durham v. United States.

In the case now before us the District Judge was confronted with what is the typical “insanity” situation in this jurisdiction, i. e., a case in which at least one witness expressed a conclusion that the accused acted abnormally or strongly or had a “mental disease.” Aceording *604 ly the court instructed the jury fully and precisely as provided by the Durham opinion. He then went on to explain the law, expressly referring to our urgent admonition in Carter v. United States, 102 U.S.App.D.C. 227 , 252 F.2d 608 (1957), that the trial judges “ought to explain — not just state by rote” the meaning of our Durham standard. 3 The majority opinion now holds that giving such an explanation as was given here is reversible error. One need only read the entire charge, particularly the portion quoted hereafter, in order to see that the majority relies on hyperbole rather than on reasoned analysis.

The majority opinion does not state with any precision what parts of the trial court’s charge constituted reversible error except as in a footnote we are told that it was “patently erroneous” to charge the jury

“in substance * * * that the defendant should be held criminally responsible if he could have controlled an impulse to rob. * * * ” (Emphasis added.)

This holding, I suggest, seeks to cut the very thin thread by which we appeared to follow to the “basic postulate” that wilful acts in violation of law are punishable.

Up to 1954 we followed what was loosely described as the McNaghten Rule although the substance of that doctrine had been almost entirely altered by this court’s 1929 opinion in Smith v. United States, 59 App.D.C. 144 , 36 F.2d 548 , 70 A.L.R. 654 . When we adopted the “product test” which was pioneered in New Hampshire nearly a century ago, 4 this court’s opinion undertook to explain, even if very briefly, the basis for adopting the New Hampshire doctrine. The summary paragraph of the Durham opinion is of critical importance for it purports to tell us what underlies the holding:

“the legal and moral traditions of the western world require that those who, of their oum free will and with evil intent * * * commit acts which violate the law, shall be criminally responsible for those acts. Our traditions also require that where such acts stem from and are the product of a mental disease or defect as those terms are used herein, moral blame shall not attach, and hence there will not be criminal responsibility. The rule we state in this opinion is designed to meet these requirements.” (Emphasis added.) (Footnote omitted.)

The product test thus, by its terms at least, was “designed to meet” two requirements, first that an accused is to be held criminally responsible if of his “own free will” and with evil intent he “commits acts in violation of law,” and second, and conversely, that if his act was the product of mental disease he is not responsible. Each of these propositions is obviously a different side of the same coin. The first tells who is held, the second tells who is excused. To me the clear and inescapable meaning of these two requirements, when considered together, is that punishment is imposed only for a wilful and knowing act which must mean it is one intentionally done and which could have been restrained by the accused. Punishment is not imposed for a disease-produced act because if it is a “product” of disease then the disease has eliminated the faculties which enable him to know what he is doing and which enable him to regulate his behavior. A mental disease can be thought to “produce” a criminal act only if it affects the defendant’s understanding or his power to control his acts. If disease does not prevent him from exercising these faculties, it cannot reasonably be said to “produce” the act. See Carter v. United States, 102 U.S.App.D.C. at 235, 252 F.2d at 616 . Until now I had understood that all members of this court agreed that mental disease alone does not excuse one for his *605 acts in violation of law. “The law has no separate concept of a legally acceptable ailment which per se excuses the sufferer from criminal liability.” Carter v. United States, 102 U.S.App.D.C. at 236, 252 F.2d at 617 . 5

So much difficulty was experienced by the District Courts and by us in the application of the product test because of the inherent ambiguity of the word product and the uncertainty of the meaning of the term disease, that in 1957 in the Carter case, supra, we tried to clarify what the product test meant and how it was to be explained to the jury. The language of that case plainly indicates that Judge Prettyman did not regard the product test as altering the basic, underlying concepts of the criminal law:

“the basic postulate of our criminal law * * * [is] ‘a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.’ * * * An insane man is not held responsible, because he has not a criminal mind in respect to the act he committed. That philosophy has never changed, and it is not proposed to change it now.” (Emphasis added.) (Footnotes omitted.) 102 U.S.App.D.C. at 235, 252 F.2d at 616 .

Plainly we were reasserting - that the concept of free will and capacity for choice and control enunciated by Pound, Justice Cardozo and Justice Jackson 6 was the basis of our rule. Later, in Douglas v. United States, 99 U.S.App.D.C. 232 , 239 F.2d 52 (1956), this court said:

“In aid of such a determination [whether the act charged was a product of a mental disease] the court may permit the jury to consider whether the accused understood the nature of what he was doing and whether or nob his actions were due to a failure, because of mental disease or defect, properly to control his conduct.” (Emphasis added.)

This was nothing more or less than saying that only if the mental disease disabled the accused from properly controlling his conduct could the conduct be-regarded as a product of the disease. The inescapable corollary of this is that if he could have controlled his conduct and refrained from doing the act then it was not a product of mental disease. The one proposition, I repeat, is the corollary of the other.

In light of these utterances, approved, by a majority of the entire court over a period of eight years, it is little wonder that the District Judge thought we had authorized him to say to the jury essentially what he did say.

We must look at the portion of the charge described by the majority as “patently erroneous”; the District Judge said:

“In other words, and by way of example: If, because of some abnormal mental condition the defendant had an impulse to rob which he could not control, then it may be said that the mental disease produced the act but if he could have controlled it and refrained from doing the act, then his will must have assented to the act, and it was not caused by the disease, but by the concurrence of his will and he was therefore responsible for his act.” (Footnote omitted.) 7

*606 The majority says this charge is “patently erroneous” because “it may well have led the jury to believe that capacity to refrain from doing the act was the overriding determinant of criminal responsibility.” But we should note first that the District Judge explicitly introduced the capacity for control discussion merely “by way of example,” to illustrate the meaning of the product test as we had urged should be done in the Carter opinion. Secondly the capacity for control comments were but a part of the total charge which mentioned the product of disease standard at least seven times. Most important of all, what can be “patently erroneous” about telling the jury that if the defendant “could have controlled an impulse to rob” he should be held criminally responsible ? The majority view appears to be that an act can be the product of disease even though the defendant could have controlled it by the exercise of will. This simply is not correct.

What the majority seems to overlook is that a disease-produced act and an act of “free will and with evil intent,” (which is simply a way to describe a controllable act) are mutually exclusive by the precise language used in the Durham, Douglas and Carter cases. If the robbery was a product of a disease then it was an “uncontrollable act”; if he could have controlled it then it was not produced by disease. There is no “third category.” 8 I suggest. that what the majority is really driving at is to pre-elude any explanation of the product test in terms of capacity for control of conduct. This, as I pointed out in Blocker v. United States, 110 U.S.App.D.C. 41 , 288 F.2d 853 (1961), is the essence of the problem. The difference between the majority view and mine is more than a matter of semantics; the difference is one as to the fundamentals which guide us in deciding what kinds of unlawful acts ought to be excused.

The precise words to be used by the District Judge are not too important so long as the charge conveys an explanation of the product test in terms that make clear it is directed to exculpating: (a) those who do not understand what they are doing, (b) those who do not understand the unlawfulness of what they are doing, and (c) those who cannot control their conduct even when they know it to be unlawful. Any instruction which embraces these concepts is satisfactory whatever words are used to describe or explain.

In addition to our own recent cases the case of Hotema v. United States, 186 U.S. 413, 416-417 , 22 S.Ct. 895 , 46 L.Ed. 1225 (1902), supports this approach. There the Supreme Court approved as “undoubtedly correct” a charge which told the jury that for a mental disease to excuse the defendant it “must have been sufficiently great to have controlled the will of the accused at the time of the commission of the act.” The approved charge also explained that the homicide was to be regarded as “the product of *607 such disease * * * [if] he [defendant] was incapable of forming a criminal intent, and * * * had no control of his mental faculties and the will power to control his actions.”

If these “basic postulates” are agreed on, as I thought they were in the three principal cases discussed, how can it be said that the jury should not be told that if Campbell could have controlled his urge to rob but failed to do so then the act was not caused by the disease and he was responsible ? In addition to being almost a verbatim reproduction of the charge in State v. Jones, supra note 7, the charge now held to be “patently erroneous” is essentially the same as that appearing in Parsons v. State, 81 Ala. 577 , 2 So. 854 (1887) and in Hotema v. United States, supra.

As a general statement of objective no one can have a serious quarrel with the proposition that if an unlawful act is the product of mental disease punishment should not attach. But to give this combination of labels to a jury of laymen as a standard to measure criminal responsibility with no guiding explanation that they are to decide whether the disease destroyed the defendant’s capacity to understand what he was doing or his capacity to control his conduct, reduces the whole business to verbal formalism.

Judges Bazelon and Washington give us an excellent example of the tyranny of labels from which they would seek to deny any deviation. I submit they are not free to deny explanation in the broad terms laid down in our own cases previously discussed. Those prior opinions of this court fully warrant the District Court to explain the meaning of the product test in the following terms, so long as the product test itself is first given as the basic standard together with explanation of the burden of proof under the Davis and Durham cases:

1. When we say that you are to decide whether the act charged is or is not the product of a mental disease we mean that the question is whether the disease made the effective or decisive difference between doing and not doing the act. The existence of mental disease, standing alone, does not excuse the defendant. There must be a relationship between the disease and the act and that relationship must be critical in its effect in relation to the act. By that we mean the relationship between the disease and the act must be decisive, determinative, and causal in the sense that but for or except for the disease the act would not have been committed.

2. To understand the issue of insanity, or mental disease or defect, in a criminal case the jury must bear in mind that the law punishes only a person who is a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.

3. When we exculpate an “insane” person it is because he does not have a criminal mind or vicious intent in respect to the act he committed. This is-but another way of saying that he lacks the essential mental capacity to form the intent or that he lacks the capacity prop-. erly to control his conduct because of' mental disease or defect. However, it is also a requirement of the law that those who of their own free will and with evil intent commit acts which violate the law shall be criminally responsible for those acts.

4. In deciding whether the act charged in a given case is the product of mental disease or defect, the jury may consider whether the defendant understood the nature of what he was doing and whether or not his actions were due to a failure, because of a mental disease- or defect, properly to control his actions. If mental disease disabled him from controlling his conduct then the act is the product of mental disease and he is not responsible for his act; on the other hand if he could have controlled his acts and refrained from doing the act charged then mental disease did not disable him and he is responsible.

The most cursory examination of these four points will disclose that they are-taken directly or by paraphrase from the Durham, Carter and Douglas opinions- and Hotema v. United States, supra.

*608 (2)

Emotional Unstable Personality Now A Mental Disease

The second phase of this case relates to the expansion of the meaning of mental disease to include yet another concept which was not considered a “mental disease” when the product test was adopted in 1954. As in the prior instance when “psychopathic personality” was added to the list of “insanities,” we are left totally uninformed as to any scientific basis for the change. It is not suggested that any medical discovery or recent scientific revelation accepted generally by psychiatrists warrants this change in the “administrative” policy which has such far reaching impact on the administration of criminal law.

The expert in this case, Dr. Owens, a regular staff member of St. Elizabeths Hospital testified:

“A. In my opinion, he was suffering from what is classed as an emotionally unstable personality, which, in my opinion, is a mental disease.

“ * * * this individual was extremely emotional. He reacted to minor stress and with a major emotional reaction. * * * He was quite tense and anxious, perspiring profusely.”

In answer to a question Dr. Owens stated that it would be correct to say that there are “a lot of emotionally unstable people walking around the street.” Dr. Owens saw this patient only briefly on a few occasions, could not state when his interviews were held or for how long and had no notes of his interviews. There was no evidence of hallucinations, delusions, ideas of persecution nor evidence of psychosis. The majority opinion seems to recognize that this evidence hardly makes out a strong case of serious mental illness.

Since this is the first time a case has come to us with the claim that a defendant with an “emotionally unstable personality” is legally “insane” and therefore not responsible for his unlawful acts, the process by which the expert witnesses change their opinions on what is or is not a “mental disease” is of importance. A description of the process is reproduced in the margin taken from the testimony of the defense expert in this case. 9 This *609 change of course parallels the “weekend” change which converted psychopaths or sociopaths from a non-mental disease to a mental disease category. 10 As has been suggested, if this “administrative” definition was for purposes of the “hospital for clinical and professional purposes of psychiatrists and their aides” it would be of no concern to the law. But these changes in definition resolve, to a large extent, whether a person guilty of unlawful acts is to be excused. Cf. Blocker v. United States, 110 U.S.App.D.C. at 49 , 288 F.2d at 861 . No one has ever advanced a suggestion that psychiatric treatment of psychopaths was any different after they achieved the new status in 1957 as persons with “mental disease.” The only change we are aware of is that after November, 1957, they became prima facie exculpable for their unlawful acts. This would suggest the possibility that the change in labels had no medical significance but only legal significance.

If we accept the notion, as the majority opinion does, that a person with an “emotionally unstable personality” is “insane” or has a “mental disease,” certain consequences may well follow. Does it mean if a defendant takes the stand and states “I’ve always been emotionally unstable” that the burden of proof requirements of Davis v. United States, 160 U.S. 469 , 16 S.Ct. 353 , 40 L.Ed. 499 (1895), are invoked and that the Durham instruction must be given ? 11 In other words, must the prosecution then prove, beyond a reasonable doubt, either that the defendant was not emotionally unstable, or if he was, that the act charged was not the “product” of his emotionally unstable condition? While I am far from ready to accept the idea that all criminals are “insane,” I can see some validity in the suggestion that a great many crimes are related in some way to an emotional instability of the actor. How would a prosecutor prove beyond a reasonable doubt that a crime of violence, such as a rape, is unrelated to emotional instability? Does the majority seek a standard of criminal responsibility under which the prosecution cannot meet its burden in any case ? Their holding is, I suggest, a long step in the direction of substituting the determinist philosophy for the belief expressed by Justice Cardozo that all law in Western civilization is “guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the *610 solution of [legal] problems. 12 The majority’s uncritical acceptance of whatever definition of mental disease is advanced by an expert is the sort of development Harvard’s Professor Berman was perhaps condemning when he said:

“The lawyers in all countries will answer ‘if there is no reason, no choice, no will, then there can be no law; we will not sacrifice the legal order to the vagaries of your science.’ Berman, Law as an Instrument of Mental Health, 109 U.Pa.L. Rev. 361, 366 (1961).”

If this is a correct analysis as to where this holding could lead us then indeed a defendant may well be able to dispense with the experts and rely on friends, relatives and his own testimony to show that he sometimes exhibited the following symptoms: was “extremely emotional,” “tense and anxious,” “perspired profusely,” reacted “with excitability,” demonstrated “poor judgment,” had “difficulty in his relationships with the people around him.” These symptoms, we must remember, are what the majority opinion accepts from the defense expert (who in turn accepted them from the defendant) as the evidence which shifts to the prosecution the burden of proving that the act was not the product of the sum of these “abnormalities.” These abnormalities are equated to “emotionally unstable personality,” which in turn has now become a “mental disease.” On another occasion I suggested that we had taken the determination of this kind of case away from the jury and given it to the experts. The majority holding here tends to take it away from both jury and experts and put it in the hands of the defendant.

In summary I emphasize again that the three courts other than ours which have employed the “disease-product” test going back nearly 100 years have explained the test in almost exactly the terms used by the District Judge in this case, i. e., whether the defendant was able to control his conduct and refrain from doing the act. 13 Without this kind of explanation the product test well merits the criticism placed on it by eminent scholars and psychiatrists that it is “vague,” “ambiguous,” “beclouded,” “confusing,” “misleading.” 14 It is this want of concrete explanation which led three members of this court to urge such a modification of our rule in separate concurring and dissenting opinions in Blocker v. United States, supra. If our disease-product test means what Judges Bazelon and Washington now say it means, then I suggest they — rather than the critics of that test — have made out the best case for changing it. The change can be accomplished by an explanation such as used by the New Hampshire, Alabama and the United States Supreme Courts in the cases mentioned. 13 Such an explanation will be equivalent to overruling Durham as the majority has construed and applied it. Either step will accomplish the necessary result and either step will permit as wide if indeed *611 not a wider scope for psychiatric testimony than is permitted now.

The majority holding, construing the product test as it does, makes it quite plain to me that we have laid aside what Judge Thurman Arnold called “the age old conceptions of individual moral responsibility,” 15 although since 1954 we have solemnly held out the facade of adherence to those principles. Perhaps we have paved our route with the best of intentions, but in the actual application of our standard we have departed from the basic postulate that in a criminal case the inquiry into mental capacity is only to determine whether the defendant possessed the capacity, power, ability— whatever we call it — to form the indispensable criminal or “evil intent.” This cerebral, mental, or intellectual element is the critical factor without which the overt physical act, even though unlawful, is not a crime. I would affirm.

Addendum to dissenting opinion of Circuit Judge BURGER filed March 29, 1962 *

. See In re Rosenfield, D.C., 157 F.Supp. 18 (1957). See also discussion in Blocker v. United States, 110 U.S.App.D.C. 41 at 47-50 , 288 F.2d 853 at 859-862 .

. Durham v. United States, 94 U.S.App.D.C. 228 , 214 F.2d 862 (1954).

. Carter v. United States, 102 U.S.App.D.C. 227 , 237, 252 F.2d 608, 618 (1957).

. State v. Pike, 49 N.H. 399, 402 (1869-70).

. The Durham opinion states: “Thus your task would not be completed upon finding, if you did find, that the accused suffered from a mental disease or defect. He would still be responsible for his unlawful act if there was no causal connection between such mental abnormality and the act.” 94 U.S.App.D.C. 241 , 214 F.2d at 875 . (Emphasis added.)

. Charles C. Steward Machine Co. v. Davis, 301 U.S. 548, 590 , 57 S.Ct. 883 , 81 L.Ed. 1279 (1937) ; Gregg Cartage & Storage Co. v. United States, 316 U.S. 74, 79-80 , 62 S.Ct. 932 , 86 L.Ed. 1283 (1942) ; Morissette v. United States, 342 U.S. 246 , 72 S.Ct. 240 , 96 L.Ed. 288 (1952).

. This charge is taken almost verbatim from State v. Jones, 50 N.H. 369, 399 *606 (1871), in which the authors of the original disease-product test approved a charge which explained the test in terms of capacity for control:

“If he could have controlled [the act charged], then his will must have assented to the act, and it was not caused by the disease, but by the concurrence of his will, and was therefore crime.”

. Judges Bazelon and Washington state at page 602 that “Durham encompasses consideration” of “whether * * * the accused had the ‘capacity’ to refrain from the act” in determining (1) the existence of mental disease and (2) a causal connection between the disease and the act, but “it [Durham] ends the inquiry once (1) and (2) [disease and causality] are established.” (Emphasis added.) This clearly implies that from their point of view mental disease and causality may be found to exist despite concurrent proof that the defendant had capacity to refrain from doing the act. In their view the jury may find an act is the product of disease even though the defendant had capacity to control his act! This would be a clear repudiation of everything this court has uttered on the subject of free will and criminal responsibility. They do not want the “product” concept to be tested by an explanation that if the act could have been controlled it could not be the product of mental disease.

. “Q. Now, how long has this diagnosis of emotionally unstable personality been considered a mental disease at St. Eliza-beths Hospital?

“A. Administratively the hospital has considered this a mental disease since November, 1957.

“Q. Well, in other words as far as St. Elizabeths was concerned, before November 1957, administratively an emotionally unstable personality diagnosis wasn’t a mental disease; is that right? A. That’s correct.

“Q. And the same may be said of this line of questions that Mr. Mathews was asking you about these soeiopathie personalities. They weren’t always considered as having a mental disease by St. Elizabeths, were they, Doctor? A. That’s correct.

“Q. When did St. Elizabeths decide that soeiopathie personalities had a mental disease? A. Well, administratively they began to be recorded as suffering from a mental disease in November, 1957.

“Q. Now, when you say ‘administratively,’ what do you mean by that, Doctor? A. Well, what I mean is that this was not a decision of sudden change in the hospital policy to class people— patients suffering from soeiopathie personality or any type of personality disorder, as being suffering from mental disease in November [1957], that in October they were not suffering from a mental disease.

sh $ $ $ $

“Q. Well now— A. And prior to this time there’d been probably a considerable amount of thinking among the psychiatrists as to whether these conditions wore mentally ill, and finally, in 1957, the point had been reached where the majority of the physicians felt that this was a mental disease and should be so classified. (Emphasis added.)

“Q. Now, who over there had the final determination to say that as of November, whatever it was, 1957, emotionally unstable personality is a mental disease? A. Well, as I said, this was left a mat *609 ter of each individual doctor’s opinion. However, administratively, only the superintendent could change the policy of the Hospital, and it occurred in November 1957.

“Q. Well, in other words, as I understand you then, a determination was made in November of ’57 by the then superintendent of St. Elizabeths Hospital that administratively, for hospital purposes, someone who had an emotionally unstable personality had a mental disease? A. That’s correct, and they would be so recorded as having a mental disease.”

. The background of the “conversion” of the psychopath may well be recalled: See Rosenfield v. Overholser, supra note 1. To the psychiatrist at St. Elizabeths Hospital the term “psychopath” or its newer synonym “sociopath” is a person

“who is ill in the terms of society [because his behavior is] not in keeping with the laws and the rules and regulations of the community or society in wliicb he lives.” Tr. 58.

The sociopath is considered to have a mental disease not by reason of observable or recognized medical symptoms but rather because his actions are anti-social, i. e., he is a law breaker. Normal people, they seem to reason, do not break laws, hence law breakers are not normal. They are “insane” not by medical but by social standards. They are “insane” because they break the law and they break the law because they are “insane” ! This peculiar circular logic, carried full circle, would if accepted by lay jurors require virtually every defendant to be acquitted.

. See Tatum v. United States, 101 U.S.App.D.C. 373 , 249 F.2d 129 (1957); Clark v. United States, 104 U.S.App.D.C. 27 , 259 F.2d 184 (1958). These cases would seem to suggest such “evidence” invokes the Davis burden and the Durham instruction.

. Charles C. Steward Machine Co. v. Davis, 301 U.S. 548, 590 , 57 S.Ct. 883 , 81 L.Ed. 1279 (1937).

. The United States Supreme Court (1902) in Hotema v. United States, supra; New Hampshire (1871) in State v. Jones, supra; Alabama (1887) in Parsons v. State, supra.

. Wechsler, The Criteria of Criminal Responsibility, 22 U.Chi.L.Rev. 367, 373 (1955); deGracia, The Distinction of Being Mad, 22 U.Chi.L.Rev. 339, 342 (1955); Mueller, 1959 Ann.Survey Am.L. 112-114; Judge L. Hand, 22 U.Chi.L.Rev. 319 (1955); Reid, Understanding The New Hampshire Doctrine of Criminal Insanity, 69 Yale L.J. 367 , 371, 389-91 (1960); Dr. T. S. Szasz, Psychiatry, Ethics, and the Criminal Law, 58 Colum.L.Rev. 183, 190 (1958); Dr. C. Savage, Discussion, 116 Am.J. of Psychiatry 295, 296 (1959); Dr. J. R. Cavanagh, A Psychiatrist Looks At The Durham Decision, 5 Catholic U.L.Rev. 25, 28, 30 (1955); Dr. Philip Q. Roche, The Criminal Mind (1958) at 25, 257-58; Dr. Philip Q. Roche, Durham And The Problem of Communication, 29 Temp.L.Q. 264, 269 (1956). See also United States v. Currens, 290 F.2d 751 (3d Cir. 1961).

. Fisher v. United States, 80 U.S.App.D.C. 96, 97 , 149 F.2d 28, 29 (1945). See Dusky v. United States, 295 F.2d 743 (8th Cir. 1961).

[The opinion of a division of the court (Circuit Judges BAZELON, WASHINGTON and BURGER) was announced March 29, 1962. Thereafter the United States moved for rehearing en dañe and the parties filed memoranda in support and in opposition. An order denying rehearing en tanc for want of five affirmative votes was entered June 12,1962. Chief Judge WILBUR K. MILLER and Circuit Judges DANAHER, BASTIAN and BURGER voted for rehearing en 5 awe.]