In mid-1974, after his trial on federal and local firearms charges ended in a verdict of not guilty by reason of insanity, Eddie Henry was committed to St. Elizabeths Hospital. The present appeal is from the District Court's denial of his most recent motion for unconditional release.

Before this court Henry advances two grounds in support of his motion.1 First, he asserts that his original commitment pursuant to the rather summary procedures specified in 24 D.C.Code § 301(d) (1973) for persons who successfully rely upon an insanity defense in criminal proceedings was unlawful because he never in the course of his trial "raise(d) the defense of insanity" within the meaning of the statute. Second, he asserts that in any event he may not lawfully remain incarcerated any longer pursuant to his original Section 301(d) commitment because he has already been at St. Elizabeths for a period greater than the maximum to which he would have been sentenced had he been convicted of the charges against him rather than acquitted by reason of insanity.

The District Court rejected both arguments, apparently finding as to the first that Henry did indeed raise the defense of insanity within the meaning of the statute.2 Since we conclude that that finding is clearly erroneous on the facts of this case, we reverse and order that Henry be released unless the Government commences ordinary civil commitment proceedings under 21 D.C.Code § 541 Et seq. (1973) within 30 days or within such longer period as the District Court in its discretion may deem necessary.3 In light of our disposition we need not reach the other issues raised on this appeal. Accordingly, we intimate no view whatever as to those issues.

* On January 30, 1974 two FBI agents armed with a tip that Henry had travelled to Washington with a firearm and intended to use it on anyone who interfered with his plans to see the President of the United States sought Henry out at a local hotel.4 After finding a loaded handgun in his jacket, they took him to St. Elizabeths pursuant to District of Columbia emergency commitment procedures. On February 5 an arrest warrant was issued charging Henry with interstate transportation of a firearm after having been committed to a mental institution.5 See 18 U.S.C. § 922(g) (1976). A one-count grand jury indictment on this charge was filed on May 9. In addition, immediately before Henry's trial the Government added by information a charge of unlawful possession of a dangerous weapon a D.C. Code violation. See 22 D.C.Code § 3214(b) (1973).6

Meanwhile, mental evaluations of Henry were under way at St. Elizabeths. On June 4, at the close of a competency hearing, he was found competent to stand trial. Thirteen days later he did so, after waiving his right to a jury. The trial judge concluded that at the time of the violation Henry "was suffering from a mental illness diagnosed as schizophrenia, paranoid type(,) and although he did know the wrongfulness of his conduct, he lacked the substantial capacity to conform his conduct to the requirements of the law." Tr. 61. He found Henry not guilty by reason of insanity and then committed him to St. Elizabeths pursuant to 24 D.C.Code § 301(d)(1) (1973). The hearing required by 24 D.C.Code § 301(d)(2) (1973)7 was held on September 25, 1974, and at its conclusion the court found that Henry was still suffering from mental illness and was likely to injure himself or others if granted liberty. Accordingly, the District Judge ordered him returned to St. Elizabeths.

Henry sought unconditional release pursuant to 24 D.C.Code § 301(k) (1973)8 in early 1977 and was denied such release after his treating psychiatrist testified that he continued to suffer from mental illness and could still be dangerous if permitted to go free. Subsequent efforts to arrange a conditional release ended in failure when a scheme to place him with family fell through. In March of 1978 he again filed a motion for unconditional release pursuant to Section 301(k). The present appeal is from the District Court's denial of that motion.

24 D.C.Code § 301(d) authorizes prompt commitment of persons who have successfully relied upon an insanity defense in criminal proceedings. More specifically, Section 301(d)(1) provides:

If any person tried upon an indictment or information for an offense Raises the defense of insanity and is acquitted solely on the ground that he was insane at the time of its commission, he shall be committed to a hospital for the mentally ill until such time as he is eligible for release pursuant to this subsection or subsection (e).

(Emphasis added.) Section 301(d)(2) requires that persons confined pursuant to the preceding paragraph be given a hearing within 50 days to determine whether they are entitled to release.9 And Section 301(k) permits those in custody pursuant to Section 301 to seek a judicial determination that they should be released.

This procedural package differs in two key respects from the civil commitment procedures applicable to persons other than insanity acquittees.10 First, under 21 D.C.Code § 545 (1973) a prospective civil committee has the right to have a jury decide whether his condition meets the requirements for civil commitment. An insanity acquittee has no such right under Section 301. Second, the Government is required to prove beyond a reasonable doubt that the target of normal civil commitment proceedings is mentally ill and likely to be dangerous if left at liberty. In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648 (1973). In the course of a Section 301(d)(2) release hearing, in contrast, the insanity acquittee bears by statute the burden of proving by a preponderance of the evidence that he is entitled to release.

The Congress which crafted the present statute recognized that Section 301(d) eliminates some of the procedural safeguards that normally accompany civil commitment. That Congress chose not to deprive All persons acquitted by reason of insanity of those safeguards.11 Instead, building on the Supreme Court's decision in Lynch v. Overholser, 369 U.S. 705, 82 S. Ct. 1063, 8 L. Ed. 2d 211 (1962),12 it decided that summary commitment would be appropriate only for persons who "raise(d) the defense of insanity," and not for those upon whom an insanity verdict was in any sense imposed by the court or the prosecution.13 This congressional decision provides the fulcrum for Henry's argument. His claim is simply that he did not raise the defense of insanity within the meaning of Section 301(d) and thus could not lawfully have been committed pursuant to that section.14 We agree.

First, we note that at no time and in no way did Henry or his attorney raise the insanity defense in the manner provided for by Congress in 24 D.C.Code § 301(j) (1973), which requires that written notice of intent to rely upon the defense be lodged with the court and served upon the prosecutor within 15 days of the entry of a plea of not guilty or at such later time as the court may "for good cause" permit.15 Second, the record reveals no statement by Henry himself indicating any intent to raise or rely upon an insanity defense. Indeed, what indications we have suggest that Henry was reluctant to embark upon any course of action likely to lead to his commitment. In a letter written to the court before trial, he complained about his counsel's performance on several counts among them that "he was trying to commit me to the hospital without me knowing * * *."16 Although Henry's complaints were less than fully lucid, they do indicate a negative attitude toward commitment and, by implication, toward the insanity defense.17

Third, defense counsel was not entirely clear about his own intentions with regard to the issue of insanity. While he did question a St. Elizabeths psychiatrist about his client's mental condition at the time of the violations, Tr. 48-49, that psychiatrist was called as a Government witness, Tr. 41, and that line of questioning was initiated by the Government, Tr. 44.18 Counsel's next statements that seem to relate to the issue of insanity occurred at the close of the prosecution case when he moved for "a judgment of acquittal based on the fact that * * * the defendant lacked the capacity to commit this particular crime * * *." Tr. 50-51. This motion was made out of the defendant's hearing, amid indications that counsel and Henry were not entirely at one with regard to the proper defense strategy.19 Further, counsel was not in any event clearly referring to an insanity defense.20 Under the circumstances, we think it clear that this motion did not constitute raising the defense of insanity for purposes of Section 301.

Nor do we think that counsel's remarks at the close of the trial bring the case within Section 301. The remarks which were made immediately after the prosecutor had said in summation that the Government would not contest an acquittal by reason of insanity were as follows:

I also request, Your Honor, that you resolve the issue in favor of Mr. Henry. It think it has been established that there is a mental disease or a defect and that that particular schizophrenia, paranoid type, manifests itself in these delusions which Mr. Henry has and I think it is those delusions that caused him to fail to conform his conduct to the requirements of the law.

He might realize that there is a wrongfulness to his conduct, but because of these delusions he is having, I think it has been submitted, Your Honor, that he cannot control or conform his conduct to the requirements of the law.

He hears these voices and he's deathly afraid of these voices and he feels these voices are out to get him and you have heard his testimony that he carried this gun merely for protection from these voices.

It is on that basis that I would ask Your Honor to find him not guilty.

Tr. 59-60. In the first place, it is not clear whether counsel, at that late stage of the trial, was attempting affirmatively to raise an insanity defense or merely recognizing that Sua sponte imposition of such a defense was inevitable. Further, what is unclear to us was probably even more opaque to Henry himself. Nowhere in these closing remarks the first clearly in this vein made within Henry's hearing did the attorney use the word "insanity" or otherwise give Henry any reason to believe that his not guilty plea might just have been supplemented with an insanity defense which could trigger automatic commitment. Thus the Government's suggestion that Henry's failure to protest is evidence that he raised the defense within the meaning of Section 301(d) is not terribly persuasive.

We do not, of course, dispute that a defendant's silence might suggest conscious acquiescence when the insanity defense is properly and explicitly pleaded, written notice given, evidence introduced, and the issue otherwise clearly joined. But the facts before us are quite different. Not only is there no reason to assume that Henry had any idea of what may have been going on, but there are indications that had he had such an idea he would have objected. Where, as here, there is evidence that the Government's focus was not on convicting a mentally ill defendant, but rather on committing him in the wake of an insanity acquittal, Section 301's summary procedures will not be available unless counsel and the court can meet the heavy burden of ensuring that the defendant personally, as distinguished from his attorney, fully understands the proceedings against him and actually Raises the insanity defense.

Congress chose to withdraw the procedural protections that accompany civil commitment for a particular category of insanity acquittees those who consciously raise the defense of insanity. We do not believe that this court should extend the congressional category to include persons acquitted by reason of insanity where there is neither objective nor subjective evidence that they chose to rely upon an insanity defense or were aware that one had been interposed by counsel.

In sum, we find that in the particular circumstances of this case any finding that Henry raised the insanity defense is clearly erroneous. In consequence, his commitment pursuant to Section 301(d) was improper. It follows that his present incarceration is unauthorized by law; and, unless the Government commences civil commitment procedures within 30 days or such longer period as the District Court in its discretion may deem necessary, he must be released.

So ordered.

I concur in the result.