United States v. Poolaw

¶5TJOFLAT, Circuit Judge:

¶6Kent Fielden Poolaw was convicted on three counts of armed bank robbery in violation of 18 U.S.C. § 2113 (1976).1 The sole question presented in this appeal is whether the district court erred in refusing to incorporate in its instruction to the jury on the defense of insanity the following language:

Chronic alcoholism is considered to be such a [mental] disease. In other words, if you should find that the accused was suffering from chronic alcoholism at the time of the alleged offense and that his actions at the time of the alleged offense were a product of that disease you should find the accused not guilty.

¶7Record, vol. 1, at 20-21. We are convinced that the refusal was proper and therefore affirm Poolaw’s convictions.

¶8This case is before us on a stipulated record. See Fed.R.App.P. 10(d). The evidence presented to the jury indicated that Poolaw is a chronic alcoholic. His history of intoxication included sixty arrests for public drunkenness within the five year period immediately prior to trial. On March 16, 1977, Poolaw walked into the Sun Bank of South Orlando in Orlando, Florida, handed a teller a demand note, and walked out with $9,500.00 of the bank’s Federal Deposit Insurance Corporation insured funds. He was apprehended a few moments later with the money in his possession. From the evi*105dence presented at trial the jury could have found that Poolaw was intoxicated at the time of the robbery and that he was unable to form the specific intent required to commit the charged offenses. The jury was instructed that it could consider Poolaw’s intoxication in resolving the issue of specific intent, and this instruction is not questioned here. It is the trial court’s refusal to counsel the jury that chronic alcoholism is a mental disease sufficient to render one legally insane that is in issue before us.

¶9It is settled in this circuit that,

[t]he sanity of the accused is always an element of the offense charged. When no question of insanity is raised, the Government’s burden of proving defendant’s sanity is satisfied by the presumption of sanity, which stands in the place of evidence. When, however, “some” evidence, which need only be “slight,” of a defendant’s lack of capacity is introduced at trial, the presumption is insufficient to carry the issue and the Government must prove defendant’s sanity beyond a reasonable doubt.

¶10United States v. Hall, 583 F.2d 1288, 1293 (5th Cir. 1978). We have held that a defendant is insane, and therefore unable to form the intent requisite for criminal liability, if

at the time of such [criminal] conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. [As used herein] the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

¶11Blake v. United States, 407 F.2d 908, 916 (5th Cir. 1969) (en banc).

¶12Poolaw concedes that the district court’s insanity instruction properly followed the Blake test. Had the court included the language Poolaw requested, the jury would have been required to treat chronic alcoholism as a mental disease or defect2 and to acquit the defendant if it found that his actions at the time of the robbery were the product of the disease or defect.

¶13This panel is, of course, bound by the test established by the en banc court in Blake. The record before this court contains no evidence, either in the form of expert or lay opinion or medical publication, that would have authorized the jury to find, under the Blake test, that alcoholism is a mental disease or defect. We are not prepared, solely on the basis of the arguments advanced in Poolaw’s brief, to say that it is such and that a jury finding to the contrary is foreclosed.3

¶14*106The judgment of the district court is AFFIRMED.