United States v. Lawrence Daniel Caldwell, A/K/A Thomas E. Morgan, (Two Cases). United States of America v. Eros A. Timm, (Two Cases)

MacKINNON, Circuit Judge

(concurring in part and dissenting in part):

I concur in the foregoing opinion and the judgment but disagree with the majority’s assertion that the letter and note were discoverable under Rule 16(a), Fed.R.Crim.P. See Majority Op. at 1351. Such evidence, admitted and used solely in rebuttal for the purpose of impeachment, forming no part of the Government’s case-in-ehief, not material to the preparation of the defense and not material to the substantive crimes charged, is not a “relevant . . . statement” within the meaning of Rule 16. 1 United States v. Hodges, 480 F.2d 229 (10th Cir. 1973); United States v. Skillman, 442 F.2d 542, 550 (8th Cir.), cert. denied, 404 U.S. 833 , 92 S.Ct. 82 , 30 L.Ed.2d 63 (1971). See Notes of Advisory Committee on Rule 16(a)(1). The word “relevant” in the Rule is not an idle word. It means something. Relevant to what? The obvious intent is to refer to statements that were “relevant” to the offenses charged. To assert, as the majority opinion does, that the statements are “relevant” completely begs the question.

As the court in Hodges quoted from Skill-man, upholding the admissibility of previously undisclosed recorded conversations of the defendant with a third person:

“[t]he recorded conversation was not a ‘relevant statement’ under the meaning of Rule 16. It was introduced not as a part of the government’s case-in-chief, but on rebuttal. ... It was not admitted for its truth, but was admitted solely for the purpose of [impeachment]. . There was nothing in the statement which had any bearing on the substantive crimes charged.”

480 F.2d at 232-233 .

The same interpretation of Rule 16 was applied in United States v. Garrett, 305 F.Supp. 267 (S.D.N.Y.1969):

We have long construed Rule 16(a)(1), F.R.Crim.P., “as giving defendant almost automatic right to his written or recorded statements or confessions.” United States v. Federman, 41 F.R.D. 339, 341 (S.D.N.Y.1967). We adhere to the limitation expressed in Federman that defendant is not entitled to any tangential or “beside the point” matter he may have stated. Such irrelevant material, having no bearing at all on the crime charged, “may be put to good use in the pursuit of truth, including a test of defendant’s veracity.” Id. Cf. Advisory Committee’s Note, Rule 16(a)(1).

305 F.Supp. at 268 .

The majority opinion plays on words when it states that the letter was “tantamount to a confession of mental soundness.” 2 The letter is no more a “confession” within the meaning of that term in Rule 16(a) than any other note sent to a friend.

Supplemental Opinion on Appellants’ Petitions for Rehearing (D.C.Criminal Nos. 1420-71 & 1421-71).

Before WRIGHT, ROBINSON and MacKINNON, Circuit Judges.

Opinion for the Court filed by Circuit Judge, SPOTTSWOOD W. ROBINSON, III.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Pending the Supreme Court’s decision in Mullaney v. Wilbur, 1 we deferred action on appellants’ petitions urging rehearing 2 and reversal of our holding that the District Court was constitutionally authorized to instruct the jury, in full conformity with statute, 3 that appellants bore *1369 the burden of proving by a preponderance of the evidence their insanity defenses to the nonfederal charges on trial. 4 In so concluding, we relied upon this court’s decision in United States v. Greene 5 sustaining the operation of the statute in trials of District of Columbia Code offenses against claims of due process and equal protection violations. 6 Mullaney holds that Maine’s requirement that one accused of murder demonstrate provocation reducing the offense to manslaughter disobeys the Fourteenth Amendment’s due process command, delineated in the Court’s earlier Winship decision, 7 that the state prove beyond a reasonable doubt every factual element of a crime underlying conviction. 8 Largely on that ground, appellants now renew their due process attack.

Mullaney’s significance to the instant case can be appraised only in the context of our application of Greene as the controlling precedent. Greene rested on Leland v. Ore gon, 9 wherein the Supreme Court upheld the state’s allocation to the accused of the burden of proving insanity as an imposition not treading upon “generally accepted concepts of basic standards of justice.” 10 That conclusion was reached long after formulation of the Davis rule 11 — an exercise of the Court’s supervisory authority 12 — that the Government has that burden in federal prosecutions. 13 And despite the Court’s broader constitutional rulings in Winship five years ago 14 and in Mullaney within recent months 15 Leland has not been expressly overruled.

Appellants assert, however, that Winship and Mullaney have sub silentio set Leland for naught, and that in the case at bar we should so hold. In our view, we lack that prerogative. In Greene, the panel rejected a similar invitation, 16 this court denied rehearing en banc, 17 and the Supreme Court declined further review. 18 As but another panel of the court, we are not at liberty to disregard these events. 19 Moreover, while appellants’ argument would have merit if its premise were acceptable, any undertaking to predict Leland’s fate at the Supreme Court’s hand would likely *1370 amount to no more than a bold but unfruitful venture in speculation. Only two weeks after granting a writ of certiorari to review Mullaney, the Court denied a writ in Greene, 20 and later refused to rehear the denial. 21 In both Winship 22 and Mullaney 23 a majority of the Court made only passing reference to Leland. The only positive indication emerging is the position of the two members concurring in Mullaney that Leland retains its vitality. 24

In this milieu, it is not for us to declare the challenged statute unconstitutional on the theory that Leland is dead. Our duty is to abide Leland as long as the Supreme Court has not made its demise plain, 25 and that, to say the least, has not been done. Appellants, of course, are free to ask the Court for a reexamination of Leland and a determination as to its viability. 26

Petitions denied.

ORDER

Appellants’ suggestions for rehearing en banc and supplemental memorandum in support thereof having been transmitted to the full Court and there not being a majority of the Judges in regular active service in favor of having this case reheard en banc, it is

Ordered by the Court en banc that the aforesaid suggestions for rehearing en banc are hereby denied.

Statement of Chief Judge BAZELON in support of his vote to grant rehearing en banc.

The question presented by this petition for rehearing en banc is the extent to which recent Supreme Court decisions in Mullaney v. Wilbur 1 and In re Winship 2 undermine the considerably earlier desicion in Leland *1371 v. Oregon. 3 In United States v. Greene 4 a division of this Court offered two reasons for continuing to view Leland as authoritative after Winship. Neither reason can survive Mullaney.

First, the Greene division interpreted Winship to require the prosecution to bear the burden of persuasion only with respect to “proof of facts — ‘the occurrence of an event’ ” and not with respect to “mental condition.” 5 But in Mullaney the “occurrence of an event” was not in dispute; what was at issue was the defendant’s mental state at the time of the event. Moreover, the defendant’s state of mind was relevant in Mullaney — as it is in the insanity context — because it determined the extent of defendant’s blameworthiness. 6 Hence, Greene’s dichotomy between “proof of facts” and “mental condition” falls. Similarly, Greene’s contention that sanity cannot be an “essential element” of a crime unless the prosecution is required to produce evidence as to sanity in its case-in-chief 7 also falls. Mullaney expressly permits States to place the burden of going forward in producing evidence with respect to malice on defendants even though it prohibits the States from placing the burden of persuasion on the defense. 8 Mullaney reaffirms the Supreme Court’s conclusion in Davis v. United States 9 that sanity is a “fact essential to constitute the crime” even though the burden of going forward with evidence is placed on the defense.

Mullaney is also significant for its strikingly narrow description of the current status of Leland: “In Leland the Court declined to apply the specific holding of Davis —that the prosecution must prove sanity beyond a reasonable doubt — to the States.” 10 This is the only time Leland is cited. Nowhere does the Court reaffirm Leland or suggest that it is something other than an anachronism. In contrast Davis is relied on substantially in Mullaney, 11 just as it was in Winship. 12

Most importantly, all of the considerations that underlie Mullaney — and Winship —compel the conclusion that the prosecution must bear the burden of persuasion with respect to insanity. Plainly stated the basic thrust of the two cases is simply that erroneous determinations of guilt or of the degree of culpability are intolerable. 13 If due process requires proof beyond a reasonable doubt of elements relating to the degree of culpability, a fortiori due process must require proof beyond a reasonable doubt of sanity, which determines culpability vel non. 14

*1372 It would appear that the court has denied rehearing in this case because the Supreme Court has not yet expressly stated that Leland v. Oregon is overruled. Of course we must proceed with extreme caution in deciding whether the Supreme Court has fatally undermined one of its own precedents. But we could hardly say that Plessy v. Ferguson 15 is, or an economic due process decision of the Loehner v. New York 16 era would be, binding because not expressly overruled. 17 Judge Learned Hand, in discussing an appeals court’s role when confronted with a Supreme Court precedent not yet overruled, said: “the measure of [the court’s] duty is to divine, as best it can, what would be the event of an appeal in the case before it.” 18 In the same case Judge Clark wrote: “We must determine with the best exercise of our mental powers . that law which in all probability will be applied to these litigants or others similarly situated.” 19 In this sense any decision in this case — or any other case — involves a “venture in speculation.” The real question is whether we should make our prediction solely dependent on the Supreme Court’s failure to expressly overrule Leland. To do so would “stultify ourselves and unnecessarily burden the Supreme Court.” 20 Especially with the liberty of individuals at stake 21 :

We would be recreant to our duty as judges, if through a blind following of a decision which the Supreme Court itself has . impaired as an authority, we should deny protection to rights which we regard as among the most sacred of those protected by constitutional guaranties.

The court today concedes — and the case it cites admit — that Leland need not be followed if its demise is plain. 22 The court makes no effort to explain, however, what force Leland retains. Nor can clues be derived from the denial of certiorari in Greene, 23 the citation of Leland once in both *1373 Mullaney and Winship 24 or the view of two concurring Justices in Mullaney that Leland is still authoritative. 25 The question presented is of the greatest general importance. For the sake of these appellants and the many others who will languish in jail awaiting a Supreme Court determination one or two years hence, we have a clear duty to grant the hearing requested and to explain specifically the extent, if any, of Leland’s vitality.

. See note 88, supra.

. See note 93 supra.

. 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975).

. See note 26, infra.

. District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358, 84 Stat. 473 (1970), § 207(6), D.C.Code § 24 301(j) (1973), which in relevant part provides:

No person accused of an offense shall be acquitted on the ground that he was insane at the time of its commission unless his in *1369 sanity, regardless of who raises the issue, is affirmatively established by a preponderance of the evidence.

. United States v. Caldwell, 178 U.S.App.D.C. -, 543 F.2d 1333 (1974), text at notes 165-172.

. 160 U.S.App.D.C. 21 , 489 F.2d 1145 (1973), cert. denied, 419 U.S. 977 , 95 S.Ct. 239 , 42 L.Ed.2d 190 (1974).

. Id. at 29-32, 489 F.2d at 1153-1156 .

. “[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068, 1073 , 25 L.Ed.2d 368, 375 (1970).

. Mullaney v. Wilbur, supra note 1, 421 U.S. at 685-688 , 95 S.Ct. at 1883-1884 , 44 L.Ed.2d at 512-513 .

. 343 U.S. 790 , 72 S.Ct. 1002 , 96 L.Ed. 1302 (1952).

. Id. at 799 , 72 S.Ct. at 1008 , 96 L.Ed. at 1309.

. Davis v. United States, 160 U.S. 469 , 16 S.Ct. 353 , 40 L.Ed. 499 (1895).

. See id. at 488 , 16 S.Ct. at 358 , 40 L.Ed. at 506 ; Leland v. Oregon, supra note 9 , 343 U.S. at 797 , 72 S.Ct. at 1007 , 96 L.Ed. at 1308.

. Davis v. United States, supra note 11, 160 U.S. at 485 , 16 S.Ct. at 362 , 40 L.Ed. at 505 .

. See note 7, supra.

. See text supra at notes 7-8.

. United States v. Greene, supra note 5, 160 U.S.App.D.C. at 32 , 489 F.2d at 1155 .

. Id. at 35 , 489 F.2d at 1159 .

. See note 5, supra.

. This court has long adhered to the rule that a recent decision of one panel may not be overruled by another panel, but only by the court en banc. E. g., United States v. Bryant, 153 U.S.App.D.C. 72 , 78, 471 F.2d 1040, 1046 (1972), cert. denied, 409 U.S. 1112 , 93 S.Ct. 923 , 34 L.Ed.2d 693 (1973); Insurance Agents’ Int’l Union v. NLRB, 104 U.S.App.D.C. 218 , 260 F.2d 736 (1959), aff'd, 361 U.S. 477 , 80 S.Ct. 419 , 4 L.Ed.2d 454 (1960); Mallory v. United States, 104 U.S.App.D.C. 71, 72 , 259 F.2d 801, 802 (1958); Thompson v. Thompson, 100 U.S. App.D.C. 285, 286, 244 F.2d 374, 375 (1957).

. Certiorari was granted in Mullaney on October 15, 1974. 414 U.S. 1139 , 94 S.Ct. 889 , 39 L.Ed.2d 96 . Certiorari was denied in Greene on October 29, 1974. 419 U.S. 977 , 95 S.Ct. 239 , 42 L.Ed.2d 190 .

. 419 U.S. 1041 , 95 S.Ct. 530 , 42 L.Ed.2d 318 (1974).

. 397 U.S. at 362 , 90 S.Ct. 1068 .

. 421 U.S. at 1697 , 95 S.Ct. at 1888 n. 21, 44 L.Ed.2d at 518 n. 21.

. The court noted in Leland that the issue of insanity as a defense to a criminal charge was considered by the jury only after it had found that all elements of the offense, including the mens rea if any required by state law, had been proven beyond a reasonable doubt. . . . Although as the state court’s instructions in Leland recognized, evidence relevant to insanity as defined by state law may also be relevant to whether the required mens rea was present, the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime. For this reason, Oregon’s placement of the burden of proof on insanity on Leland, unlike Maine’s redefinition of homicide in the instant case, did not effect an unconstitutional shift in the State’s traditional burden of proof beyond a reasonable doubt of all necessary elements of the offense. Mullaney v. Wilbur, supra note 1, 421 U.S. at 707 , 95 S.Ct. at 1893, 44 L.Ed.2d at 523-524 (concurring opinion) (citations omitted).

. Booster Lodge No. 405 v. NLRB, 148 U.S.App.D.C. 119 , 126 n. 7, 459 F.2d 1143 , 1150 n. 7, aff’d, 412 U.S. 84 , 93 S.Ct. 1961 , 36 L.Ed.2d 764 (1972); Breakfield v. District of Columbia, 143 U.S.App.D.C. 203 , 205-206, 442 F.2d 1227, 1229-1230 (1970), cert. denied, 401 U.S. 909 , 91 S.Ct. 871 , 27 L.Ed.2d 807 (1971); Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir. 1970); Sears v. Hassett, 111 F.2d 961, 964-965 (1st Cir. 1940); Northern Virginia Regional Park Authority v. United States Civil Service Comm’n, 437 F.2d 1346 , 1350-1351 (4th Cir.), cert. denied, 403 U.S. 936 , 91 S.Ct. 2254 , 29 L.Ed.2d 717 (1971); Blalock v. United States, 247 F.2d 615 (4th Cir. 1957); Lichter Foundation, Inc. v. Welch, 269 F.2d 142, 145 (6th Cir. 1959); United States v. Chase, 281 F.2d 225, 230 (7th Cir. 1960).

. Appellants’ petitions urge additional grounds for rehearing. As to them we adhere to our earlier opinion as editorially revised.

. 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975).

. 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970).

. 343 U.S. 790 , 72 S.Ct. 1002 , 96 L.Ed. 1302 (1952).

. 489 F.2d 1145 (1974), cert. denied, 419 U.S. 977 , 95 S.Ct. 239 , 42 L.Ed.2d 190 (1974).

. Id. at 1155, quoting United States v. Brown, 155 U.S.App.D.C. 402 , 478 F.2d 606, 609 (1973). I remain convinced that sanity has always been a “factual question” and that the division misconstrued Brown. See United States v. Greene, supra note 4, at 1175 (Bazelon, C. J.).

. 95 S.Ct. at 1889.

. See 489 F.2d at 1155, 1156 .

. 95 S.Ct. at 1891 n. 28. See also id. at 1888 n. 20, 1891-92 n. 31. The Mullaney Court even indicated that the allocation of the burden of producing evidence can raise a substantial constitutional question. Id. at 1891-92 n. 31.

. 160 U.S. 469, 485-86 , 16 S.Ct. 353, 357 , 40 L.Ed. 499 (1895).

. 95 S.Ct. at 1888 n. 21. The cite to Leland appears in the section of the Court’s opinion placing the issue “in historical context.” Id. at 1886.

. Id. at 1888, 1891-92 n. 31.

. See 397 U.S. at 362-63 , 90 S.Ct. at 1072 , 25 L.Ed.2d at 374 . Leland was cited only once in Winship , and then only to support the proposition that “it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required.” Id. at 362 , 90 S.Ct. at 1071 . See also United States v. Greene, supra note 4, at 1175-76 (Bazelon, C. J.).

. See 95 S.Ct. at 1890, quoting 397 U.S. at 363, 364 , 90 S.Ct. 1068 .

. We have recently reaffirmed that the insanity defense embodies the “core concept” that criminal responsibility not be assessed when the defendant’s acts were not the result of a free choice to do wrong. United States v. Brawner, 153 U.S.App.D.C. 1 , 471 F.2d 969, 985 (1972).

. 163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 (1896).

. 198 U.S. 45 , 25 S.Ct. 539 , 49 L.Ed. 937 (1905).

. Cf. Fleming v. South Carolina Elec. & Gas Co., 224 F.2d 752 (4th Cir. 1955); Ferguson v. Skrupa, 372 U.S. 726 , 83 S.Ct. 1028 , 10 L.Ed.2d 93 (1963).

. Spector Motor Service Inc. v. Walsh, 139 F.2d 809, 823 (2d Cir.) (dissenting opinion), rev’d, 323 U.S. 101 , 65 S.Ct. 152 , 89 L.Ed. 101 (1944).

. Id. at 814.

. Perkins v. Endicott Johnson Corp., 128 F.2d 208, 217-18 (2d Cir. 1942) (Frank, J.), aff’d, 317 U.S. 501 , 63 S.Ct. 339 , 87 L.Ed. 424 (1943).

. Barnette v. West Va. State Bd. of Educ., 47 F.Supp. 251, 252-53 (S.D.W.Va.1942) (Parker, C. J.), aff'd, 319 U.S. 624 , 63 S.Ct. 1178 , 87 L.Ed. 1628 (1943). See also, e. g., Mason v. United States, 461 F.2d 1364, 1374-75 , 198 Ct.Cl. 599 (1972), rev’d on other grounds, 412 U.S. 391 , 93 S.Ct. 2202 , 37 L.Ed.2d 22 (1973); Martin v. Virginia, 349 F.2d 781 , 783-84 (4th Cir. 1965) (Sobeloff, J.); Smith v. Smith, 391 F.Supp. 443, 446 (W.D.Va.1975); Healy v. Edwards, 363 F.Supp. 1110, 1117 (E.D.La.1973), vacated, 421 U.S. 772 , 95 S.Ct. 2410 , 44 L.Ed.2d 571 (1975); Fishkin v. United States Civil Service Comm’n, 309 F.Supp. 40, 44-45 (N.D.Cal. 1969), appeal dismissed, 396 U.S. 278 , 90 S.Ct. 557 , 24 L.Ed.2d 463 (1970); Gold v. DiCarlo, 235 F.Supp. 817, 819-20 (S.D.N.Y.), aff’d, 380 U.S. 520 , 85 S.Ct. 1332 , 14 L.Ed.2d 266 (1955); Browder v. Gayle, 142 F.Supp. 707, 716-17 (M.D.Ala.1956), aff'd mem. 352 U.S. 903 , 77 S.Ct. 145 , 1 L.Ed.2d 114 (1956). See generally, Kelman, The Force of Precedent in the Lower Courts, 14 Wayne L.Rev. 3 (1967).

In Rowe v. Peyton, 383 F.2d 709, 714 (4th Cir. 1967) (Haynsworth, C. J.), the Fourth Circuit concluded that “the Supreme Court today would not follow” a particular precedent that had adopted a “doctrinaire approach” that had been “thoroughly rejected by the Supreme Court in recent cases.” In affirming the judgment the Supreme Court quoted this language from Chief Judge Haynsworth’s opinion and said: “We are in complete agreement with this conclusion and the considerations underlying it.” Peyton v. Rowe, 391 U.S. 54, 57-58 , 88 S.Ct. 1549, 1551 , 20 L.Ed.2d 420 (1968).

. Especially is this true where the cites to Leland were so reserved. See text at notes 10-12, supra.

. 95 S.Ct. at 1893 (Rehnquist, J., joined by Burger, C. J., concurring). The majority in Mullaney made no reference to the argument of the concurring Justices.

. See 178 U.S.App.D.C. p. - & n. 25, 543 F.2d p. 1370 & n. 25 supra.

. It is well-established that denials of certiorari do not reflect judgments on the merits. See, e. g., Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912 , 70 S.Ct. 252 , 94 L.Ed. 562 (1950) (Frankfurter, J.); House v. Mayo, 324 U.S. 42, 48 , 65 S.Ct. 517 , 89 L.Ed. 739 (1945); United States v. Carver, 260 U.S. 482, 490 , 43 S.Ct. 181 , 67 L.Ed. 361 (1923); Hamilton Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 257-59 , 36 S.Ct. 269 , 60 L.Ed. 629 (1916).