Appeal from the United States District Court for the Eastern District of Illinois. No. CR 72-149 JAMES L. FOREMAN, Judge.
Cummings, Pell and Sprecher, Circuit Judges. Pell, Circuit Judge, dissenting.
This appeal concerns the effect of a defendant's intoxication on a prosecution for escape or attempted escape.
Defendant Nix was confined in the United States Penitentiary at Marion, Illinois. On May 9, 1972, Nix was excused from working because of illness and was "deadlocked" in his cell during the day. On the following day, he again asked to be locked in his cell so other inmates would not disturb him. The guard conducting the count of prisoners in their cells noticed Nix' bunk was occupied at the 4 p.m., 7 p.m. and 10 p.m. counts. When a new guard began his shift at the midnight count, however, he discovered the occupant of Nix' bunk was a dummy.
After a 45-minute search, officers found Nix locked in the rear of a trailer truck parked on a lot outside the prison walls. The trailer had been loaded with desks during the day and was moved outside to the parking lot shortly after 10 p.m.
Nix was indicted under 18 U.S.C. § 751(a)*fn1 for "unlawfully and wilfully attempt[ing] to escape."
At the trial several inmates testified they had seen Nix either before his disappearance or after his capture. They described him as "roaring drunk," "drunk as hell" or noted particular behavior that led them to believe Nix was intoxicated.
The following instructions were given:
Three essential elements are required to be proved in order to establish the offense charged in the indictment:
First, the defendant had been in custody of any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge or magistrate.
Second, the defendant escaped or attempted to escape.
Third, the escape is from a confinement based upon the conviction.
Defendant has offered evidence that he was intoxicated at the time of the commission of the crime charged in the indictment. The crime does not involve specific intent. Therefore, the evidence that defendant acted or failed to act because of intoxication does not constitute a defense.
Nix' attorney objected to the first instruction because it did not include "some standard of mental state" in the definition of escape. He objected to the second instruction on the ground that every "attempt" crime requires specific intent which may be negated by intoxication. The court overruled the objections without explanation. Nix was convicted and sentenced to five years' imprisonment, to run consecutive to his present sentence.
On the day after Nix' appeal was argued, a different panel of this court heard the appeal of Samuel Peterson, No. 74-1074. Peterson had been drinking heavily throughout the day of May 27, 1973, at the honor camp at Marion. So intoxicated that he vomited, Peterson then took a towel and some toiletries to clean up. On his way to the lavatory, he again felt ill and wandered outside to rest against a tree. Peterson testified that the next thing he remembered was walking along some railroad tracks the next morning, trying to get back to the camp. He was apprehended about eight miles from Marion, the towel and toiletries still in his possession.
Peterson was also indicted under § 751, but charged with escape rather than attempted escape. He was tried before the same district judge, who gave virtually the same instructions as in the Nix trial. Peterson's lawyer objected on the theory that escape is a specific-intent crime to which intoxication is a defense. Peterson was convicted and sentenced to only one year, consecutive to his present sentence.
Both defendants urge this court to employ the traditional analysis of specific intent versus general intent.*fn2 Nix argues, with substantial support,*fn3 that all crimes of attempt are classified as specific-intent crimes. Peterson claims, with somewhat less authority,*fn4 that the specific-intent label should be applied to escape as well as to attempted escape. If either crime requires specific intent, defendants argue, then the jury should have been allowed to consider whether the prisoner was so intoxicated he could not form the requisite intent.
Under the traditional analysis, specific intent is indeed required for attempted escape. We could end the inquiry here and remand this case because the instruction given erroneously states the law. Simplistic as the traditional analysis is, however, it does not further a ...