United States v. Tarrago, No. 196

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtLUMBARD, , with whom MOORE, Circuit , concurs (concurring in the result
Citation398 F.2d 621
PartiesUNITED STATES of America, Appellee, v. John D. TARRAGO, Defendant-Appellant.
Docket NumberNo. 196,Docket 30416.
Decision Date03 July 1968

398 F.2d 621 (1968)

UNITED STATES of America, Appellee,
v.
John D. TARRAGO, Defendant-Appellant.

No. 196, Docket 30416.

United States Court of Appeals Second Circuit.

Argued November 21, 1967.

Submitted May 1, 1968.

Decided July 3, 1968.


Joshua N. Koplovitz, New York City, (Anthony M. Marra, The Legal Aid Society, on the brief), for defendant-appellant.

David M. Dorsen, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty for the Southern District of New York, Pierre N. Leval, Michael W. Mitchell, Asst. U. S. Attys., on the brief), for appellee.

Before LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS, ANDERSON and FEINBERG, Circuit Judges.

Submitted to the in banc court May 1, 1968.

FEINBERG, Circuit Judge:

Appellant John D. Tarrago was convicted in the United States District Court for the Southern District of New York before Richard H. Levet, J., and

398 F.2d 622
a jury of filing a false federal income tax return for 1956 and failing to file timely returns for 1957 and 1958. 26 U.S.C. §§ 7206(1), 7203. Appellant was sentenced to a prison term of one year and eight months for the first offense, and one year each on the other two; the three sentences were concurrent.1 The two issues on appeal relate to the test of criminal responsibility used by the jury and the trial judge's refusal to grant appellant a short continuance to obtain other counsel.2 Our disposition of the former makes it unnecessary to rule on the latter. For reasons set forth below, we reverse and remand

The trial was held in October 1965, at a time when the district courts of this circuit "in the absence of appellate guidance on the subject," see United States v. Freeman, 357 F.2d 606, 608 (2d Cir. 1966), were applying the M'Naghten test of criminal responsibility. The evidence on this issue was conflicting, but it should be noted that appellant was twice committed to mental institutions and his expert medical witness offered a diagnosis of "schizophrenic reaction, paranoid type," a psychotic condition "in which a person has lost touch with reality." After having been charged under the M'Naghten rule, the jury returned a verdict of guilty.

A few months later, while Tarrago's conviction was on appeal, the opinion of this court in United States v. Freeman, supra, was announced. In that case, we adopted as the standard of criminal responsibility for the courts of this circuit the criteria provided by 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 anti-social conduct.

The Freeman rule is substantially broader than the M'Naghten test; 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.

Within a short time after the Freeman opinion, the question explicitly arose whether 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 before us in this case. Because two members of the panel that originally heard argument of this appeal3 believed that the decision in Sheller was wrong, we convened the court in banc to consider the question again.

There has been much discussion of late of the broad question of "prospective limitation" of judicial decisions.4 However,

398 F.2d 623
the issue before us is only whether the Sheller court was correct in applying the Freeman rule to a case still on direct appeal when Freeman was decided. The question is a narrow one with slight impact; we have been informed by the Government of only two cases that might be affected, of which this is one.5

The Government argues that "To reverse a conviction because direct appeal was still pending but not on collateral review creates a capricious * * * discrimination."6 This seems to us to misstate and confuse the issue. We are not faced here with an attempt at collateral review; moreover, we have only the question of the retroactivity of a change in a rule of substantive, but not constitutional, law. Cf. Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). In relevant context, the real issue is whether the Freeman rule should be given what Professor Mishkin has called "normal retroactivity" or "normal judicial operation." Mishkin, supra note 4, at 77. Moreover, even if only constitutional law decisions are examined, the Supreme Court has made exactly the distinction the Government labels as "capricious"; i. e., it has denied full retroactivity for new constitutional doctrines, while applying them to cases still on appeal. Thus, in Linkletter v. Walker, 381 U.S. 618, 622 & nn. 4 & 5, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court adopted 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 Linkletter, 381 U.S. at 627, 85 S.Ct. at 1736, the Court also stated that:

Under our cases it appears (1) that a change in law will be given effect while a case is on direct review * *.

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 adverse comment by prosecutors and judges on the failure of a defendant to testify in a state criminal trial. However, relying on the later-decided opinions in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Government counters that the Supreme Court did not realize what it was doing in the earlier decisions discussed above. The Government claims that "if the Court had ever considered the question squarely"7 in those earlier decisions, it would have ruled the other way. However, a careful consideration of even the cases relied on by the Government and of the underlying considerations leads us to reaffirm Sheller.

In Stovall v. Denno, supra, the Supreme Court considered the retroactivity of the rules announced in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), which required "the exclusion of identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of his counsel." 388 U.S. at 294, 87 S.Ct. at 1968. The Court pointed out, id. at 296-297, 87 S.Ct. at 1969-1970, that the Linkletter, Tehan, and Johnson cases

"establish the principle that in criminal litigation concerning constitutional claims, `the Court may in the interest of justice make the rule prospective * * * where the exigencies of the situation require such an application\'
398 F.2d 624
* * *." Citation omitted. The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.

Applying these criteria in Stovall, the Court held that the new rules were prospective only and refused to distinguish between "convictions now final * * * and convictions at various stages of trial and direct review." It regarded "the factors of reliance and burden on the administration of justice as entitled to such overriding significance as to make that distinction unsupportable." Id. at 300-301, 87 S.Ct. at 1972. The analysis in Johnson v. State of New Jersey, 384 U.S. 719, 726-733, 86 S.Ct. 1772 (1966), also relied on by the Government, was similar.

On the other hand, applying this reasoning to the question in this case leads to a completely opposite result. Extending the Freeman rule to cases still on appeal when it was announced will place no significant "burden on the administration of justice." In Stovall and Johnson, the Court was obviously concerned that great numbers of cases might be reopened even by limited retroactivity.8 In contrast, we know of only one other case that will be affected by our ruling here. Moreover, no hearings will have to be held on "the excludability of evidence long since destroyed, misplaced or deteriorated," compare Linkletter v. Walker, 381 U.S. at 637, 85 S.Ct. 1742, and witnesses available at the trial two and one-half years ago are presumably still available. There is no problem here of "a legalized mass jail break by rapists, murderers, and other felons." See Schwartz, supra note 4, at 745.

Similarly, no overpowering argument of reliance by "law enforcement authorities" can be made. Putting to one side whether the rejection of M'Naghten elsewhere9 precluded a justified "reliance" upon it in the absence of controlling precedent in this court, the rules on criminal responsibility — old...

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15 practice notes
  • U.S. v. Travers, No. 148
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 16, 1974
    ...were obscene under the Miller standard or any other. 498 F.2d at 936. 6 The Government points finally to United States v. Tarrago, 398 F.2d 621 (2 Cir. 1968) (en banc), where we held that our ruling in United States v. Freeman, 357 F.2d 606 (2 Cir. 1966), should be applied to cases still op......
  • United States v. Brawner, No. 22714.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 23, 1972
    ...in adopting the ALI test of criminal responsibility, have made their decisions retrospective, see e. g., United States v. Tarrago, 398 F.2d 621 (2d Cir. en banc, 1968) giving retrospective effect to its decision in Freeman, cited supra. However, we think sound principles — applied in Stoval......
  • Bethea v. United Stated, No. 8460.
    • United States
    • September 27, 1976
    ...supra, 407 F.2d at 916 (5th Cir.); United States v. Smith, supra, 404 F.2d at 727-28 (6th Cir.). See also United States v. Tarrago, 398 F.2d 621 (2d Cir. 1968) (en banc). It should be noted, however, that each of these latter cases involved the considerably more substantial change of substi......
  • State v. Arpin, No. 77-208-C
    • United States
    • United States State Supreme Court of Rhode Island
    • February 7, 1980
    ...process at which Page 1349 a case happens to be at the time of the decision announcing the new rule. 11 United States v. Tarrago, 398 F.2d 621, 627 (2d Cir. 1968) (Lumbard, C. J., In addition to requesting instructions on legal insanity under the ALI Model Penal Code, defendant also request......
  • Request a trial to view additional results
15 cases
  • U.S. v. Travers, No. 148
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 16, 1974
    ...were obscene under the Miller standard or any other. 498 F.2d at 936. 6 The Government points finally to United States v. Tarrago, 398 F.2d 621 (2 Cir. 1968) (en banc), where we held that our ruling in United States v. Freeman, 357 F.2d 606 (2 Cir. 1966), should be applied to cases still op......
  • United States v. Brawner, No. 22714.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 23, 1972
    ...in adopting the ALI test of criminal responsibility, have made their decisions retrospective, see e. g., United States v. Tarrago, 398 F.2d 621 (2d Cir. en banc, 1968) giving retrospective effect to its decision in Freeman, cited supra. However, we think sound principles — applied in Stoval......
  • Bethea v. United Stated, No. 8460.
    • United States
    • September 27, 1976
    ...supra, 407 F.2d at 916 (5th Cir.); United States v. Smith, supra, 404 F.2d at 727-28 (6th Cir.). See also United States v. Tarrago, 398 F.2d 621 (2d Cir. 1968) (en banc). It should be noted, however, that each of these latter cases involved the considerably more substantial change of substi......
  • State v. Arpin, No. 77-208-C
    • United States
    • United States State Supreme Court of Rhode Island
    • February 7, 1980
    ...process at which Page 1349 a case happens to be at the time of the decision announcing the new rule. 11 United States v. Tarrago, 398 F.2d 621, 627 (2d Cir. 1968) (Lumbard, C. J., In addition to requesting instructions on legal insanity under the ALI Model Penal Code, defendant also request......
  • Request a trial to view additional results

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