United States v. Sheller

Decision Date05 December 1966
Docket NumberNo. 156,Docket 30442.,156
PartiesUNITED STATES of America, Appellee, v. Robert G. SHELLER, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Jacob D. Fuchsberg, New York City (Fuchsberg & Fuchsberg, Irving Younger, New York City, on the brief), for defendant-appellant.

Richard A. Givens, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for S. D. New York, David M. Dorsen, Asst. U. S. Atty., on the brief), for appellee.

Before FRIENDLY, SMITH and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

Robert G. Sheller was tried by Judge Edward C. McLean and a jury in the United States District Court for the Southern District of New York for wilfully attempting to evade his income taxes for the years 1958 and 1959 in violation of 26 U.S.C. § 7201. The jury found Sheller not guilty on the 1958 count, but guilty on the 1959 count. Sheller was sentenced to imprisonment for six months and is presently on bail pending appeal. Because of the effect of the decision of this court in United States v. Freeman, 357 F.2d 606 (2d Cir. 1966), which was rendered after Sheller's conviction, we reverse for a new trial.

At the trial, defendant's counsel conceded that Sheller's returns for 1958 and 1959 failed to disclose substantial amounts of income which should have been reported. The defense presented was that Sheller, a prominent attorney with a well-known and heretofore unblemished reputation for integrity, was not legally responsible for his wrongful acts because of his mental state when he committed them. On appeal, defendant claims that the trial court erred in not charging the jury that insanity was a defense, in failing to direct a judgment of acquittal, and in excluding from evidence certain records of a deceased psychiatrist. As to the first two arguments, the Government responds that the defense failed to introduce evidence sufficient to require an instruction on insanity, that Judge McLean presented the issue of insanity adequately in his charge on the element of intent, and that, in any event, the defense failed to raise adequately below its objection to the charge. On the evidentiary point, the Government claims that the trial court's ruling was proper.

The recent decision in United States v. Freeman, supra, is basic to consideration of the insanity defense issues; in that case, this court adopted as the standard of criminal responsibility section 4.01 of the Model Penal Code, drafted by the American Law Institute:

(1) A person is not responsible for criminal conduct if at the time of such 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.
(2) The terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

Prior to Freeman, trial judges in this circuit apparently followed the M'Naghten test.1 The new rule is substantially broader than M'Naghten; it focuses on a defendant's ability not only to appreciate the wrongfulness of his conduct but also to conform it to the requirements of law, and it recognizes that both capacities involve matters of degree. The question immediately arises whether the new test should be applied to this case, which had been on appeal barely a month when Freeman was decided.2

The Government makes a pro forma claim that the expanded standard of Freeman should not apply to Sheller, citing Johnson v. State of New Jersey, 384 U.S. 719, 731-733, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).3 It is true that in that case, the Supreme Court held that the "new standards governing in-custody interrogation" would apply only to trials commenced after the decisions promulgating them. See 384 U.S. at 732-735, 86 S.Ct. 1772. However, the reasons given there are largely inapplicable to the narrow issue before us — whether Freeman should apply to those cases still on direct appeal when it was decided. Most important, we do not believe that limited retroactivity will "seriously disrupt the administration of our criminal laws." See Johnson, supra, 384 U.S. at 731, 86 S.Ct. at 1780. It is worth noting that in two other recent situations in which full retroactivity was denied, the Court nevertheless has applied new criminal law doctrines to cases still on appeal. Thus, in Linkletter v. Walker, 381 U.S. 618, 622 and nn. 4, 5, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court recognized such limited retroactivity for the rule announced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), that evidence obtained through an unreasonable search and seizure was to be excluded from state criminal proceedings. In Tehan v. United States ex rel. Shott, 382 U.S. 406, 409 n. 3, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), the Court similarly treated the rule announced in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which forbade prosecutors and judges to comment adversely on the failure of a defendant to testify in a state criminal trial. Certainly, where the changed rule deals with the substantive question whether "certain classes of wrongdoers are * * * properly the subjects of criminal punishment," see Freeman, supra, 357 F.2d at 625, at least a similar limited retroactivity is called for.

We turn next to the Government's assertion that Sheller's conviction should be affirmed in the face of the later ruling in Freeman. First, it claims that no jury question was raised. However, defendant produced testimony of his personal physician, two psychiatrists and a psychologist, and records of a deceased psychiatrist who had treated Sheller. Dr. O'Connor, one of the psychiatrists, was asked whether in his opinion at the time of filing the returns Sheller "was suffering from such a condition of his mental faculties as to render * * * the governing power of his mind, impaired to such an extent that his actions in filing such returns and the nature of such returns was beyond his control?" He...

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3 cases
  • People v. Mutch
    • United States
    • California Supreme Court
    • 24 Marzo 1971
    ...States v. Tarrago (2d Cir.) 398 F.2d 621, 622 et seq.; Blake v. United States, Supra; United States v. Smith, Supra; United States v. Sheller (2d Cir.) 369 F.2d 293, 295). Other federal courts have held that such a test is prospective only except for the case before the court (United States......
  • United States v. Tarrago, 196
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 3 Julio 1968
    ...the test there adopted should be applied to a case tried before Freeman and on appeal when Freeman was decided. In United States v. Sheller, 369 F.2d 293 (2d Cir. 1966), a panel of this court decided that the Freeman rule should be given that "limited retroactivity." The same issue is again......
  • KRATLIAN v. United States
    • United States
    • U.S. District Court — Eastern District of New York
    • 17 Enero 1968
    ...appeal to United States v. Freeman, supra. The same standards were therein applied as in Freeman. It was held in United States v. Sheller, 2 Cir., 369 F.2d 293, 295 that the Freeman rule is not As hereinabove stated, the petitioner at the time of commission of the offenses knew that his the......

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