John J. Jurcyk, Jr., Kansas City, Kan., for appellant.

Milton P. Beach, Asst. U.S. Atty., for the District of Kansas, Kansas City, Kan., (Wilbur G. Leonard, U.S. Atty., for the District of Kansas, Topeka, Kan., was with him on the brief), for appellee.

Before MURRAH, Chief Judge, BREITENSTEIN, Circuit Judge, and CHRISTENSON, District Judge.

CHRISTENSON, District Judge.

Questions involving the construction of the Act of September 7, 1949, 63 Stat. 686, codified at 18 U.S.C. 4244-4248 (Chapter 313) are raised by the appellant, who after arrest but prior to sentence on a charge of murder on lands under the exclusive jurisdiction of the United States1 was found by the trial court to be so mentally incompetent that he could not stand trial and that if released he probably would endanger the safety of officers, property, or the other interests of the United States. Accordingly, he was committed to the custody of the Attorney General '* * * until his sanity or mental competency shall be restored or until the mental condition which the psychiatrists now find him to be suffering from is so improved that if released he will not endanger the safety of the officers, the property, or of other interests of the United States or until suitable arrangements can be made for his custody and care by the State of his residence. * * *'2

It is asserted by appellant that the trial court erred in its determinations that commitment is proper in the case of one 'permanently' insane, or whose mental condition does not make him specifically dangerous to persons, property or interests of the United States as distinguished from the public in general, and in failing to designate among the examining psychiatrists one of appellant's own choice.

The murder indictment against Royal in the District of Kansas was returned in 1955. At that time he was already an inmate of the United States Penitentiary at Leavenworth, Kansas, where the alleged homicide occurred, but this circumstance is deemed to have no significance in the present inquiry. Royal filed a motion for the determination of his mental competency to stand trial on the murder charge in November, 1955. The district court ordered that he be examined mentally at the United States Medical Center at Springfield, Missouri, and returned to the District of Kansas on or before February 6, 1956. Obviously, this was a temporary commitment only for the purpose of obtaining a report of a qualified psychiatrist as a basis for a further hearing before the court to determine the competency of the accused to stand trial.3 Such a hearing was held upon Royal's return to the District of Kansas on March 15, 1956. Whereupon, the court found that he was presently insane and otherwise so mentally incompetent as to be unable to understand the proceedings against him, that he would be unable properly to assist in his own defense and that his release would endanger the safety of the officers, the property and other interests of the United States. It should be noted that the latter finding is in line with certain wording concerning the non-endangering of officers, property or other interests of the United States found in sections 4247⁴ and 42485 of Title 18, United States Code, but that the actual commitment, following the language of section 4246,6 was 'To the custody of the Attorney General or his authorized representative until the said Darrell Eugene Royal shall be mentally competent to stand trial or until the pending charges against him are disposed of according to law.'

In November, 1958, almost three years later, Royal filed a motion to dismiss the murder indictment in reliance upon rule 48 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.7 The district court, reciting the prior commitment 'under Section 4246, U.S.C.A., Title 18,' summarily denied the motion to dismiss the indictment and, for lack of merit, a subsequent motion for leave to appeal in forma pauperis. No complaint is made of these rulings, which are relevant here only for what light, if any, they may throw upon subsequent proceedings.

Royal was being detained at the United States Medical Center located within the Western District of Missouri, Western Division. On June 8, 1959, the United States District Court for that district, in habeas corpus proceedings, No. 12068, Darrell E. Royal v. Dr. R. O. Settle, held that the commitment of the petitioner by the district court of Kansas until he was mentally competent to stand trial or until the pending charges against him were disposed of according to law, while made 'pursuant to section 4246 * * * was one of a temporary character.'8 It therefore ordered the return of the petitioner to the committing court for such further proceedings as it might deem proper.

A further hearing in the District of Kansas is the proceeding in question here. A psychiatrist from the United States Medical Center, Springfield, Missouri, testified but the court declined to appoint a psychiatrist of Royal's selection.9 The evidence before the court clearly indicated that Royal was suffering from mental illness, that by reason thereof he did not have the ability to understand the charges pending against him or properly to assist in his defense, and that it was reasonably necessary to maintain him in maximum custody because of the difficulty he had with other persons, or danger to himself.

The expert explained that if Royal's illness developed a delusion and fixated on a particular individual, then he became dangerous to that individual; that this might be a citizen in a community, a next door neighbor, an F.B.I. man or anybody, and that the dangerousness would not be with reference to any particular person, interest or property of the United States but would relate generally to members of the community and to society.

On the question of whether the mental illness was temporary or permanent in nature, the psychiatrist said that it was characterized by periods of improvement or partial remission, and periods of exacerbation when symptoms became more severe; that as a physician he would not say that a mental illness (pressumably this one) was permanent, but that because of the absence of criteria which would permit him to give a prognosis that Royal would recover in the foreseeable future, he would say, 'if he had to fit his professional judgment into the law,' that in legal terminology he was 'permanently insane.' There was also proof that Royal was unacceptable for confinement in a state mental institution because of uncertainty concerning his residence.

Upon the basis of such evidence the trial court made and entered the findings referred to, and the commitment quoted, in the opening paragraph of this opinion. Right to proceed in forma pauperis was granted, and a timely appeal has been taken to this court from the last mentioned commitment.

Appellant contends, in reliance upon principles heretofore discussed by this court in Wells, by Gillig v. Attorney General of the United States, 10 Cir., 1953, 201 F.2d 556, that if an accused be permanently insane, and there appears no chance for his recovery, he may not be held in custody by the federal government under chapter 313 of Title 18 because federal prosecution would be irretrievably frustrated. Appellant disaffirms any controlling effect from the later case of Greenwood v. United States, 350 U.S. 366, 76 S. Ct. 410, 100 L. Ed. 412,10 on the ground that Greenwood is limited in application to persons whose insanity is either temporary, or more than temporary, but less than permanent, and that as to those permantently insane the doctrine of Wells, by Gillig v. Attorney General of the United States, supra, remains in full force and effect.11

This argument is more ingenious than plausible, and more plausible than realistically valid as applied to the case before us, when the similarity of proof and findings in the two cases and the essential rationale of the Supreme Court's decision are considered.12 No finding negating the permanency of insanity having been made by the trial court in Greenwood, if any limitation to some twilight zone between permanent and temporary insanity had been intended by the Supreme Court it would be supposed that the case would have been remanded for a determination of this critical question. Such was the very purpose for which we considered it necessary to remand in Wells, by Gillig v. Attorney General of the United States, supra, when prior to Greenwood, we entertained the view that the Act was not intended to cover persons suffering from 'permanent' insanity. And we suspect that the reason Mr. Justice Frankfurter referred to mental incompetence 'more than temporary,' rather than 'permanent' insanity was not because it was intended to draw any consequential distinction between the two. The reasons seem rather a scientific reluctance, expressed in the opinion itself, to characterize any such condition by the latter term, and the legislative history of the Act which, as also recognized in the opinion, made the former rather than the latter characterization relevant.13 Be this as it may, we are content to let stand the misgivings expressed by the majority of this court in Wells, by Gillig v. Attorney General of the United States, supra, concerning the application of the Act to persons clearly suffering from permanent insanity of such a nature that federal authority to prosecute would clearly be frustrated irretrievably; and we must be content, nonetheless, to be governed in our disposition of the present case by the decision in Greenwood which was decided on a situation which in all determinative aspects is substantially that presented here.14 That we limit the effect of our decision here to the situation before us, without implying an opinion on any other situation, does not mean that we accord to the reasoning of Wells, by Gillig v. Attorney General of the United States, supra, any force as against the pronouncement of Greenwood, but only that we recognize the similar reservation expressed by the Supreme Court in the latter case.

It is argued by appellant that the meaning of the phrase to 'the safety of the officers, the property or other interests of the United States,'15 relates to an insane person who is specifically dangerous to the United States and that otherwise all dangerous lunatics are subject to federal custody. At once it may be noted that this is not so, because by the very nature of the proceedings only those charged with federal offenses would fall within the ambit of these provisions. But appellant seeks to invoke the rule of ejusdem generis and argues that 'other interests of the United States' must be narrowly construed to refer to its property or officers, citing in support of the general principle, Goldsmith v. United States, 2 Cir., 1930, 42 F.2d 133, 137. A related contention is that there must be an established predisposition to injure federal property, officers or interests rather than a general inclination to violate such interests in common with others. To bolster these arguments, reference is made to a comment by the circuit court in Greenwood v. United States, supra, that the prisoner 'apparently has a penchant for robbing post offices and otherwise violating the law.'16

We are of the opinion that the application of the statute is not limited necessarily to those who are likely to endanger only federal officers or federal property interests, as such, or to those who have a mania, or penchant for violating federal, as distinguished from state, law. To recognize such restriction would render superfluous the phrase 'other interests of the United States' and would defeat, to a major extent, the expressed and apparent purpose of Congress as recognized in Greenwood. If only persons whose criminal inclinations were focused specifically against the property, officers or interests of the federal government were subject to detention when more than temporarily incompetent to stand trial, only a handful of those involved in the same procedures, and presenting essentially the same problem, would be subject to section 4246 in light of sections 4247 and 4248.17 The expression 'other interests of the United States' can be accorded meaning, and consistent with the doctrine ejusdem generis, by viewing it as relating to such interests as are not merely general and indirect, but are specific and primary. Promotion of the general welfare, protection of the peace and quiet of the community or the observance of local or state laws are of the former class. They comprise interests of the United States but not direct or primary ones. Yet, if interests are referred to other than the safety of federal officers and property as such, we must look for them outside the meaning of these terms, but in their context. There are, indeed, other interests of the federal government of the same direct and primary nature. These involve the enforcement of federal law. We, therefore, think that the probability of danger to the interests of the United States through violation of the laws it has primary responsibility for enforcing and through safeguarding of the rights it has the direct duty to protect also are intended to be covered.18

In this case, Royal already stood charged with the violation of a federal law, and the evidence permitted the inference that such offense as may have been committed by him stemmed from his mental incompetency. There also was evidence that if the defendant were released this mental condition would lead to other offenses which, even though not specially directed against federal officers or property, would constitute a threat to federally protected rights. Hence, it cannot be said that the trial court's finding that, if released, Royal will probably endanger the safety of the officers, the property, or other interests of the United States is not supported by substantial evidence or is clearly erroneous.

The final point sought to be made by the appellant is without merit. Whatever the interplay between the provisions of sections 4244 and 4246, and 4247 may be in other respects, it is clear that the requirement of the latter for appointment of a psychiatrist to be designated by the prisoner is only applicable in favor of one who already has been sentenced and whose sentence is about to expire; and that section 4244, under which Royal's hearing was properly held, contained no such mandatory provision either in terms or by reference. In support of this conclusion we barely resist citing the wag whom Mr. Justice Frankfurter quoted in Greenwood to indicate the desirability of recourse to the terms of the Act itself. The requested appointment was not mandatory. The lower court did not abuse its discretion in declining under the circumstances shown by the record to appoint an additional psychiatrist at the instance of the defendant.

Affirmed.