Hastings, Chief Judge, Duffy, Senior Circuit Judge, Schnackenberg, Knoch, Castle, Kiley, Swygert, Fairchild, and Cummings, Circuit Judges.*fn1 Hastings, Chief Judge (affirming in part and dissenting in part). Knoch, Circuit Judge (dissenting in part).
FAIRCHILD, Circuit Judge.
Defendant Shapiro, a prison inmate, was convicted by a jury of a violation of 18 U.S.C.A. § 876, entitled "Mailing threatening communications." He was sentenced to a five-year term to run consecutively with the sentence he was already serving.
On appeal, defendant claims (1) that there is a fatal variance between the indictment and the proof, (2) that the trial court erred in admitting his confession into evidence, (3) that his being disciplined by prison authorities for virtually the same act for which he was convicted constituted cruel and unusual punishment, and (4) that the trial court erred in not giving a Durham instruction on insanity, as requested, or at least an instruction based on the American Law Institute Model Penal Code.
(1) Variance. The indictment charged that defendant Shapiro "wilfully and knowingly did deposit in an authorized depository for mail matter, to be sent by the Post Office Department" a threatening letter, quoted in full, in violation of 18 U.S.C.A. § 876.
The letter was addressed to District Judge Grant (who had sentenced Shapiro) and threatened injury to the judge and his family. It was proved beyond question that Shapiro wrote the letter, placed it in a receptacle in the penitentiary known as the prisoners' mail box, and that Judge Grant received it through the mail.
18 U.S.C.A. § 876 provides a penalty for one who "knowingly deposits in any post office or authorized depository for mail matter, to be sent or delivered by the Post Office Department or knowingly causes to be delivered by the Post Office Department according to the direction thereon, any communication * * *" etc. If the indictment had been drafted in terms of causing to be delivered by the post office, there could be no question but that the charge had been proved. Defendant points out, however, that the charge was stated in terms of depositing the letter in an authorized depository for mail matter and that the record is equivocal as to the character of the prisoners' mail box. It is not at all clear that the prisoners' mail box is a receptacle from which post office employees have the duty to pick up mail, and the evidence at least suggests that penitentiary employees remove the contents, take them to the penitentiary mail room, and ultimately turn them over to the post office department.
We conclude the claim of variance has no merit. Although the statute is grammatically in the alternative, it is apparent that in almost all conceivable instances the alternative expressions are just different ways of describing the same act. Furthermore, even if the prisoners' mail box was not a depository authorized by the post office department (and thus a part of the postal system for the handling and transmission of mail, regulated and protected by various postal laws and regulations), the circumstances of its use were such that by depositing the letter in it, defendant made the prison employees his agents to deposit the letter in the post office or other authorized depository. In the context of a different problem, it has been said that there is "no legal difference between mailing the letter and causing it to be mailed. If appellant mailed it himself, he thereby caused it to be mailed. If he caused someone else to mail it, he became a principal in the act of mailing it, and, legally speaking, mailed it himself."*fn2
This indictment sufficed to inform defendant that he was accused of the offense which was proved, so as to enable him to prepare his defense and to plead the judgment in bar of any further prosecutions for the same offense.*fn3
(2) The confession. A statement written out and signed by Shapiro at the request of an FBI special agent was admitted in evidence. The court found the statement was voluntarily given after Shapiro was advised of his rights. Virtually the only argument made on appeal is that there was unfairness in that the agent, who knew the letter was placed in the prisoners' mail box, induced Shapiro to write that he had "deposited the same in the U.S. mails." The special agent testified that, to him, putting the letter in the prisoners' mail box and depositing it in the U.S. mails were the same thing. In view of our conclusion on the first point, this point has no significance in any event.
(3) Cruel and unusual punishment. Shortly after defendant mailed the letter, he was punished by the disciplinary board because sending this letter violated the rules of the institution. He was deprived of 30 days earned time toward parole. Defendant points out that since he received the five-year maximum sentence, the 30 days delay in parole will result in a loss of liberty for a longer time than authorized by the statute violated. Defendant does not argue that the criminal prosecution placed him in second jeopardy, but he does claim that the loss of liberty for five years plus 30 days is cruel and unusual punishment.
He does not tell why it could be called cruel. Presumably he argues only that it is unusual, because Congress has decided that five years is the appropriate maximum for the offense.
The answer to this claim, as well as to the double jeopardy claim sometimes made, is that administrative disciplinary action under and within the first sentence, simply making service of it more burdensome, and the imposition of punishment upon conviction of an offense are distinct and separate even though one and the same act constituted both the infraction of the prison rules and the criminal offense.
The principle was well stated by the 8th circuit in 1944:
"There is no double punishment. The two matters were entirely distinct and separate. The allowance of good time, until earned for the entire term * * * is a privilege which is conditioned expressly by [18 U.S.C.A. § 4161] allowing it upon a record of conduct showing 'that he has faithfully observed all the rules and has not been subjected to punishment.' * * * The existence or the forfeiture of good time is in no sense dependent upon whether the misconduct also may be a criminal act. It would be a strange anomaly if a mere infraction of prison rules would be a basis for forfeiture while commission of a serious crime while in custody and in respect to such custody could not be. This would lead to an absurd result." (Citations omitted)*fn4
(4) Definition of the defense of insanity. The district court defined the defense of insanity, as follows:
"'Insane,' as used here means such a perverted and deranged condition of a person's mental and moral faculties as to render him either
"(1) incapable of distinguishing between right and wrong, or incapable of knowing the nature of the act he is committing; or
"(2) where he is conscious of the nature of the act he is committing and able to distinguish between right and wrong and knows that the act is wrong, yet his will, by which I mean the governing power of his mind, has been so completely destroyed that his actions are not subject to it, but are beyond his control."
This definition is the same in substance as the definition which the Supreme Court approved as not prejudicial to the defendant in Davis v. United States.*fn5 It differs from the traditional pure M'Naghten definition in that it includes, as an alternative element, a defendant's lack of power, by reason of mental illness or defect, to control his conduct, i.e., lack of volitional capacity.
The Supreme Court did not say in Davis that a pure M'Naghten definition, concerned only with cognitive capacity, i.e. whether defendant had capacity to know the nature and quality of his acts and distinguish between right and wrong, would have been prejudicial. It is usually assumed, however, that the court would so hold, and that federal courts are committed to some type of definition in which lack of volitional capacity is an alternative element (like Davis and the American Law Institute definition) or to one, such as Durham, which is not concerned with the particular way by which mental illness or defect operates to cause the defendant to engage in offensive conduct.*fn6
This court has not specifically approved a particular definition, but it is clearly committed to some type of definition involving consideration of volitional capacity even where there is cognitive capacity.*fn7 Hence, we need not be concerned with the traditional or pure M'Naghten definition, which deals only with cognitive capacity.*fn8 The issues presented here are whether the American Law Institute definition is to be preferred over the Davis definition, used in the instant trial, and whether Durham or some other definition which is not concerned with the particular capacity ...