United States v. Ewing, John E. ( 2007 )


Menu:
  •                          In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-3409
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    JOHN E. EWING, JR.,
    Defendant-Appellant.
    ____________
    Appeal from the United States District Court
    for the Central District of Illinois.
    No. 02 CR 20008—Michael P. McCuskey, Chief Judge.
    ____________
    ARGUED SEPTEMBER 15, 2006—DECIDED JULY 17, 2007
    ____________
    Before FLAUM, KANNE, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. John Ewing, Jr., is a paranoid
    schizophrenic plagued by delusions that society is en-
    gaged in a conspiracy to read his thoughts. After becom-
    ing convinced a state court judge was part of that con-
    spiracy, Ewing attacked the judge with a Molotov cocktail.
    For this he was indicted on two federal charges and at trial
    raised a defense under the federal insanity statute, 
    18 U.S.C. § 17
    (a), which provides that a defendant has
    an affirmative defense if “as a result of a severe mental
    disease or defect, [he] was unable to appreciate the nature
    and quality or the wrongfulness of his acts.”
    Ewing asked the district court to instruct the jury that
    “wrongfulness” for purposes of the insanity defense means
    2                                              No. 05-3409
    “moral as well as criminal wrongfulness,” and further
    that “moral wrongfulness” is determined according to the
    defendant’s subjective beliefs about morality or moral
    justification. The district court denied this request and
    instead adopted the government’s alternative instruc-
    tion that defined wrongfulness as “contrary to public
    morality, as well as contrary to law.” The jury rejected
    Ewing’s insanity defense and found him guilty. Ewing now
    appeals, challenging the district court’s refusal to give
    his jury instruction on wrongfulness as well as the
    court’s failure to order sua sponte competency hearings at
    various points during the proceedings.
    We affirm. The district court provided the jury with a
    proper instruction on the meaning of wrongfulness for
    purpose of the insanity defense. A defendant’s ability to
    appreciate the wrongfulness of his acts is a concept
    adopted from the common-law M’Naghten rule for legally
    exculpatory insanity. M’Naghten’s Case and American
    case law applying it establish that a defendant’s ability to
    appreciate right and wrong has consistently been deter-
    mined by reference to societal, not personal, standards of
    morality. Finding no language in the statute to the con-
    trary, we infer that Congress adopted M’Naghten’s concep-
    tion of wrongfulness when it codified the essential ele-
    ments of the M’Naghten insanity test in § 17(a). We
    also conclude the district court did not err in failing to
    order a competency hearing during trial or a retrospec-
    tive competency hearing after trial.
    I. Background
    A. The Attack on Judge Miller
    Ewing has a history of paranoid schizophrenia dating
    back at least twenty years. During that time, he has
    intermittently taken medication and resided at various
    No. 05-3409                                                  3
    mental health facilities. A recurring symptom of his
    mental illness is a delusion that society is engaged in an
    elaborate conspiracy to read his thoughts through the
    aid of supercomputers. Ewing also persists in believing
    he was awarded a $25 million judgment by consent decree
    in a slip-and-fall civil lawsuit he filed in 1988 against a
    grocery store in Champaign, Illinois. In reality, that
    lawsuit was dismissed on summary judgment by Judge
    George Miller of the Champaign County Circuit Court.
    After numerous unsuccessful written attempts to
    convince Judge Miller that he was owed $25 million, Ewing
    decided to attack the judge with a Molotov cocktail. At the
    time Ewing was living in a nonrestrictive mental health
    community in Peoria and was off his medication. On April
    8, 1997, Ewing traveled by bus to Champaign. Once he
    arrived, he purchased and filled a gas can at a gas station
    near the Champaign County courthouse, then purchased
    a 40-ounce bottle of malt liquor from a nearby liquor store
    and a knife from a local pawn shop. He next checked into
    a motel, where he used these materials to prepare a
    Molotov cocktail. From there he walked to the courthouse,
    entered Judge Miller’s courtroom with a hood up around
    his face, threw the device at the judge, and fled. Judge
    Miller ducked to avoid the firebomb, sustaining a head
    laceration. The incendiary device fell at the foot of the
    judge’s bench, the bench caught fire, and the courtroom
    was engulfed in flames. At the time of the attack, Judge
    Miller was presiding over a civil trial. The jurors, litigants,
    and courtroom personnel escaped the burning courtroom in
    a panic; no one was seriously injured. Firefighters re-
    sponded and suppressed the fire, but everything in the
    courtroom was destroyed.
    After the attack Ewing ran out of the courthouse and
    threw his hooded jacket under a van. He stopped at a local
    library for a while and then returned to his motel room.
    Meanwhile, the police found the jacket under the van and
    4                                              No. 05-3409
    the gas can in a dumpster at the motel where Ewing
    was staying. After putting the motel under surveillance,
    the officers confronted Ewing leaving his room and noted
    that he smelled of gasoline. Ewing was arrested, and the
    officers found the knife and a note stating “G.S. Miller”
    and the judge’s office telephone number on Ewing’s per-
    son. A search of Ewing’s motel room turned up further
    evidence of the crime. Ewing was taken to the sheriff ’s
    office, where he refused to admit to the attack.
    B. Pretrial Competency Proceedings
    Two days after his arrest, Ewing was committed to the
    custody of the Attorney General for a competency determi-
    nation in accordance with 
    18 U.S.C. § 4241
    (a). After
    an examination by Dr. David F. Mrad, Ewing was found
    incompetent to stand trial and committed for treat-
    ment, which continued for approximately five years. On
    January 18, 2002, Dr. Mrad reported that Ewing was
    now competent to stand trial. Ewing was then indicted
    on charges of arson in violation of 
    18 U.S.C. § 844
    (i) and
    use of a destructive device during a crime of violence
    in violation of 
    18 U.S.C. § 924
    (c)(1)(A) and (B)(ii). On May
    10, 2002, the district court found that Ewing was compe-
    tent to stand trial. Shortly thereafter, the defense gave
    notice of its intention to proceed with an insanity defense.
    Ewing was subsequently reexamined by both Dr. Mrad
    and Dr. Robert Chapman, Ewing’s expert. Dr. Chapman
    questioned Ewing’s competency, and the district court
    granted the defense’s motion for another competency
    hearing. On May 27, 2003, Dr. Mrad issued another report
    concluding that Ewing was competent to stand trial; the
    court accepted this determination and set a trial date of
    April 14, 2004. Following a brief continuance, jury selec-
    tion commenced on May 24, 2004. One day into jury
    selection, the court granted a mistrial based on tainting
    No. 05-3409                                              5
    of the jury pool by pretrial publicity about the incident.
    The trial was moved to Rock Island, Illinois, and resched-
    uled for September 13, 2004.
    On August 30, 2004, the defense filed a motion for
    another competency hearing based on some additional
    delusional behavior Ewing had recently exhibited. Dr.
    Mrad immediately examined Ewing again and on Septem-
    ber 8 informed the court that although Ewing was not
    doing as well as in 2003, he remained minimally competent
    to stand trial. In his report Dr. Mrad stated that although
    some of Ewing’s delusions persisted, they did not render
    Ewing incapable of understanding the proceedings against
    him or participating in his defense. The court accepted Dr.
    Mrad’s opinion and found Ewing competent to stand trial,
    but noted the doctor’s caution that Ewing’s behavior
    should be monitored during trial. Dr. Mrad had also
    reported that a change in Ewing’s medication may have
    contributed to his decline in competency, so Ewing was
    returned to the medication regimen he had been taking in
    2003. The marshals ensured Ewing was taking his medica-
    tion during the trial, and Dr. Mrad and Dr. Chapman were
    available to observe his conduct throughout.
    C. Pretrial and Trial Proceedings
    Ewing asserted a defense based on the federal insanity
    statute, which provides:
    (a) Affirmative defense. It is an affirmative defense
    to a prosecution under any Federal statute that, at the
    time of the commission of the acts constituting the
    offense, the defendant, as a result of a severe mental
    disease or defect, was unable to appreciate the nature
    and quality or the wrongfulness of his acts. Mental
    disease or defect does not otherwise constitute a
    defense.
    6                                              No. 05-3409
    (b) Burden of proof. The defendant has the burden
    of proving the defense of insanity by clear and con-
    vincing evidence.
    
    18 U.S.C. § 17
    . Prior to trial the defense submitted a
    nonpattern jury instruction on the definition of wrongful-
    ness. The instruction stated:
    The term “wrongfulness,” as used in these instructions,
    means moral wrongfulness as well as criminal wrong-
    fulness. In other words, if you find that the defendant
    as a result of a severe mental disease or defect, was
    unable to appreciate the moral wrongfulness of his
    acts, even if he appreciated his acts to be criminal but
    commits them because of a delusion that he was
    morally justified, then your verdict must be not guilty
    only by reason of insanity.
    The government objected on grounds that the distinc-
    tion articulated between moral and criminal wrongfulness
    was an incorrect statement of law, and also argued that
    no instruction on the distinction was necessary based on
    the evidence in the case or Ewing’s theory of defense.
    Alternatively, the government proposed the following
    instruction on wrongfulness, should the court determine
    one necessary:
    When the word “wrongfulness” is used in these in-
    structions, it means contrary to public morality, as
    well as contrary to law. However, evidence that the
    defendant knew his conduct was contrary to law may
    be considered by you in determining whether the
    defendant appreciated that his conduct was contrary
    to public morality.
    Relying on United States v. Reed, 
    997 F.2d 332
     (7th Cir.
    1993), the district court rejected the defense’s proposed
    instruction, concluding that it was an incorrect statement
    of law because it defined wrongfulness according to the
    No. 05-3409                                                7
    defendant’s personal standards of morality. The court
    reserved judgment on whether any wrongfulness instruc-
    tion was necessary.
    Trial commenced on September 14, 2004. The prosecu-
    tion conceded Ewing suffered from paranoid schizophrenia
    but argued he was not legally insane because he was able
    to appreciate the wrongfulness of his actions. The first
    witness to testify was Judge Miller. During the lunch
    break following the judge’s testimony, defense counsel
    informed the court that Ewing had become agitated dur-
    ing cross-examination of Judge Miller and wanted to
    know why his counsel would not produce a copy of the
    nonexistent $25 million judgment. In response to ques-
    tions from the court, Ewing expressed his continuing
    belief that the judgment was in his file and insisted his
    counsel be removed and “adjudged for lying under oath.”
    The court denied his request for new counsel and recessed
    for lunch. Before bringing the jury back into the court-
    room after the lunch break, the judge advised counsel that
    he had been continuously evaluating Ewing’s behavior in
    light of Dr. Mrad’s report. The court concluded that Ewing
    remained competent to stand trial based on his demon-
    strated understanding of the proceedings and ability to
    articulate his opinions regarding defense strategy.
    At the close of the first day of trial, defense counsel
    notified the court that Ewing again had become very
    agitated during cross-examination of another witness
    regarding the $25 million judgment. The judge noted that
    he had been watching Ewing during the same cross-
    examination and observed nothing other than him talking
    with cocounsel. The judge agreed to address the issue
    further the next morning. When he did so, Ewing told the
    court: “I don’t want to disclose [counsel’s] strategy at the
    time, and I think it’s best that I leave that issue alone and
    let the attorneys take care of the matter as they had
    8                                               No. 05-3409
    planned as far as his strategy, and I don’t want to interfere
    with that.” The trial then proceeded.
    Ewing’s insanity defense was premised on the theory
    that Ewing believed his actions were justified based on his
    delusion that Judge Miller was part of a mind-reading
    conspiracy. Dr. Chapman testified that to Ewing, the
    delusions of mind reading were akin to mental slavery
    from which he had to escape by whatever means necessary.
    Dr. Chapman reported that Ewing made the following
    statements during one of his examinations: “I didn’t
    consider what I was going to do as illegal or criminal
    because I was in the right, and what [Judge Miller] was
    doing was illegal, reading my mind and conspiring with
    others to steal my ideas for commercial purposes—com-
    mercial profit. I never considered arrest.” Based on this
    evidence, the district court concluded over the govern-
    ment’s objection that a jury instruction would be necessary
    to distinguish between moral and criminal wrongfulness.
    Over the defense’s objection, however, the court again
    rejected Ewing’s proposed “moral justification” instruction
    as a misstatement of the law and instead used the alterna-
    tive proposed by the government, which defined the term
    wrongfulness as “contrary to public morality, as well as
    contrary to law.” The jury returned verdicts of guilty on
    September 17, 2004.
    D. Posttrial and Sentencing Proceedings
    On December 23, 2004, Ewing’s counsel filed a motion
    for a new trial based on new evidence. The new evidence
    consisted of statements Ewing made during his pre-
    sentence interview indicating that he lied prior to trial
    regarding the extent of his delusions because he wanted
    the trial to go forward. In a letter to his counsel dated
    September 29, 2004, Ewing wrote in part:
    No. 05-3409                                              9
    I believe that all of the jury in my case have before,
    during and after my trial were reading my mind, by
    wireless control through a supercomputer as well as by
    the prosecution for the United States. . . . During my
    evaluation for competency to stand trial . . . I had to
    tell Doctor Marad [sic] of Springfield MO that I do not
    believe that people can read my mind. I had to do this
    in order for him to find me competent to stand trial. If
    I would have said to Attorney George Taseff that I
    feel that the jury or anyone else was reading my
    mind he would not have let me go to trial and I would
    have never been released back into the community to
    be with my family.
    Defense counsel argued these statements demonstrated
    Ewing had not actually been competent to stand trial, but
    rather had misled the court and Dr. Mrad by withhold-
    ing the truth about his mental state, thus warranting
    a new trial. The district court denied Ewing’s motion,
    holding that the “new evidence” was not new, but instead
    was within the defense’s knowledge at the time of trial
    and that the defendant in any event was not entitled to
    relief for actively concealing the truth.
    Ewing appeared in court for sentencing on January 21,
    2005. At that time he asked that his counsel be removed
    and insisted that the attorneys, the judge, and the jurors
    had all been reading his mind during his trial. Ewing was
    agitated and repeatedly interrupted the judge with
    delusional monologues. Based on this behavior, the court
    ordered him examined for competency to be sentenced.
    By order dated August 16, 2005, Ewing was found in-
    competent and was committed for treatment under 
    18 U.S.C. § 4244
    . In accordance with the procedures of § 4244,
    he was provisionally sentenced to the statutory maxi-
    mum of life plus forty years in prison; that sentence is
    subject to alteration whenever Ewing regains competency
    to stand for sentencing.
    10                                            No. 05-3409
    Ewing now appeals his conviction, challenging the
    district court’s refusal to give his proposed jury instruc-
    tion on wrongfulness. He also maintains the court should
    have ordered another competency hearing, either when
    Ewing’s persisting delusions were brought to its atten-
    tion during trial or retrospectively once the court became
    aware after the trial that Ewing may have lied about the
    extent of his delusions on the eve of trial.
    II. Discussion
    A. Jurisdiction
    Before we reach the merits of Ewing’s appeal, there is
    a threshold question regarding our jurisdiction to review
    his conviction. When a defendant is found incompetent to
    stand for sentencing, he is committed for treatment and
    provisionally sentenced to the maximum term authorized
    by the offense. 
    18 U.S.C. § 4244
    (d). Once the defendant
    has sufficiently recovered to be released from treatment,
    the district court may modify the provisional sentence if
    it has not already expired. 
    Id.
     § 4244(e). Thus, although
    Ewing received a sentence of life imprisonment plus
    forty years when he was committed, that sentence is
    provisional and subject to alteration should Ewing regain
    competency.
    Whether a conviction may be appealed following im-
    position of a provisional sentence under § 4244 is a
    question of first impression in this circuit. Appellate
    jurisdiction is generally limited to review of “final deci-
    sions” by the district courts. See 
    28 U.S.C. § 1291
    . This
    limitation “embodies a strong congressional policy
    against piecemeal reviews, and against obstructing or
    impeding an ongoing judicial proceeding by interlocutory
    appeals.” United States v. Nixon, 
    418 U.S. 683
    , 690 (1974).
    In the criminal context, the general rule is that an appeal
    No. 05-3409                                              11
    may not be taken until a sentence has been imposed. See,
    e.g., Holman v. Gilmore, 
    126 F.3d 876
    , 881 (7th Cir. 1997).
    But that is not always the case. The rule is intended to
    prevent defendants who are not yet subject to judicial
    control from prematurely appealing their convictions. See
    Korematsu v. United States, 
    319 U.S. 432
    , 434 (1943)
    (holding that direct appeal can be taken following im-
    position of probation without a formal sentence because
    probation subjects a defendant to judicial control). It is
    not intended to deny review to defendants who have
    not received a “final” sentence but nonetheless are sub-
    jected to judicial control for a criminal conviction, as when
    imposition of sentence is suspended and the defendant
    is placed on probation. 
    Id.
     (“[C]ertainly when discipline
    has been imposed, the defendant is entitled to review.”).
    The imposition of discipline subjecting the defendant to
    the orders of the court makes a conviction final for pur-
    poses of appeal. 
    Id.
    The Supreme Court has held in a different context that
    a provisional sentence can be considered final for pur-
    poses of appeal. In Corey v. United States, 
    375 U.S. 169
    (1963), the Court considered a now-repealed statute
    similar to § 4244. The statute permitted a district court
    to commit a defendant to the custody of the Attorney
    General for three to six months of observation before
    imposing a sentence. Id. at 172. During that time, the
    defendant was provisionally sentenced to the maximum
    for his offense, and that sentence could be adopted or
    revised at the end of the commitment. The Court concluded
    that the provisional sentence was “clearly not lacking in
    sufficient ‘finality’ to support an immediate appeal”
    because it was imposed after conviction and placed the
    defendant in custody. Id. at 173-74. The Court cautioned
    that a contrary result “might raise constitutional prob-
    lems of significant proportions.” Id.
    12                                                   No. 05-3409
    Relying upon Corey, the only circuit court to address
    the question of jurisdiction over an appeal following a
    § 4244 provisional sentence concluded that jurisdiction
    exists.1 See United States v. Abou-Kassem, 
    78 F.3d 161
    ,
    167 (5th Cir. 1996). In Abou-Kassem, the Fifth Circuit held
    that a defendant provisionally sentenced under the
    procedures established in § 4244 has been convicted of
    the underlying crime and committed to custody, thereby
    making the provisional sentence sufficiently final for
    purposes of appeal. Id. at 167-68. “Were we to accept the
    opposing view,” the court commented, “we would be
    countenancing the totally unacceptable proposition that a
    defendant could be incarcerated for many years . . .
    1
    There is some conflicting authority regarding the finality of a
    provisional sentence under 
    18 U.S.C. § 3552
    (b), which also
    authorizes commitment of a defendant for observation prior to
    final sentencing. In United States v. Muther, the Eleventh Cir-
    cuit concluded that Congress did not intend a provisional
    sentence under § 3552(b) to be final because the statute does
    not provide the district court the option of adopting the provi-
    sional sentence, but rather requires imposition of a new sen-
    tence after the commitment has concluded. 
    912 F.2d 1371
    ,
    1373 (11th Cir. 1990). But see United States v. Donaghe, 
    924 F.2d 940
    , 943 (9th Cir. 1991) (holding that a provisional sentence
    under § 3552(b) is final).
    Regardless of whether the Muther decision was correct as to
    § 3552(b), the distinction the Eleventh Circuit relied on is not
    relevant here because § 4244 explicitly contemplates the pos-
    sibility of adopting the provisional sentence. See § 4244(e)
    (district court “may modify the provisional sentence” once
    defendant is found competent (emphasis added)). Moreover, the
    Eleventh Circuit was particularly concerned with ripeness
    because the defendant’s appeal included claims regarding the
    final sentencing proceeding, which had yet to occur. Ewing’s
    appeal is limited to the underlying trial and posttrial proceedings
    that have already taken place; as such, there is no ripeness
    concern present here.
    No. 05-3409                                               13
    without meaningful opportunity to challenge timely the
    validity of his conviction.” Id. at 168.
    We agree with the Fifth Circuit that a provisional
    sentence imposed pursuant to § 4244 is sufficiently
    final for appeal. Like the defendants in Corey and Abou-
    Kassem, Ewing has been convicted of the underlying
    criminal charge and has been committed to custody and
    is subject to judicial control. Were he denied appeal until
    a final sentence is imposed, he might remain under
    commitment for the entire duration of the provisional
    sentence, with no opportunity to appeal his conviction.
    Nothing in § 4244 indicates that the provisional nature
    of the sentence imposed on a defendant committed for
    treatment deprives the district court’s decision of the
    finality necessary to support an appeal. We are satisfied
    that Ewing’s provisional sentence meets the criteria laid
    out in Corey and Korematsu to supply appellate juris-
    diction over his appeal.
    B. The Insanity Defense Statute, 
    18 U.S.C. § 17
    Ewing’s primary argument on appeal is that the dis-
    trict court improperly rejected his proposed jury instruc-
    tion on the meaning of wrongfulness in the insanity
    defense statute. A defendant is entitled to a jury instruc-
    tion if it represents an accurate statement of the law, if it
    reflects a theory that is supported by the evidence and
    not already part of the charge, and if the failure to in-
    clude the instruction would deny the defendant a fair
    trial. See United States v. Scott, 
    267 F.3d 729
    , 738 (7th Cir.
    2001). A refusal to give an instruction on a theory of
    defense is reviewed de novo, but the district court has
    “substantial discretion regarding the specific wording of
    the instructions, and in rejecting a proposed instruction,
    so long as the essential points are covered by the instruc-
    tions given.” 
    Id.
     (citations omitted).
    14                                              No. 05-3409
    1. Ewing’s proposed subjective “wrongfulness”
    instruction
    Under the Insanity Defense Reform Act of 1984
    (“IDRA”), it is an affirmative defense to a prosecution for
    a federal crime if “at the time of the commission of the
    acts constituting the offense, the defendant, as a result of a
    severe mental disease or defect, was unable to appreciate
    the nature and quality or the wrongfulness of his acts.”
    
    18 U.S.C. § 17
    (a). The defendant has the burden of proving
    insanity by clear and convincing evidence. 
    Id.
     § 17(b).
    The statute does not define “wrongfulness.” In the
    context of the insanity defense, courts and scholars have
    generally proposed three alternative definitions for the
    term: (1) legal wrongfulness, as in “contrary to law”;
    (2) moral wrongfulness, as in “contrary to public morality,”
    determined objectively by reference to society’s condemna-
    tion of the act as morally wrong; or (3) moral wrongfulness,
    as in “contrary to personal morality,” determined subjec-
    tively by reference to the defendant’s belief that his action
    was morally justified (even if he appreciated that it was
    illegal or contrary to public morality). The district court
    concluded that Ewing’s proposed jury instruction, adapted
    from the third of these definitions, was incorrect as a
    matter of law under this court’s decision in United States
    v. Reed, 
    997 F.2d 332
     (7th Cir. 1993).
    Reed involved an appeal of a district court’s determina-
    tion after a bench trial that the defendant had not
    proven he was legally insane when he robbed a bank. In
    affirming the conviction, we noted that certain evidence
    in the record indicating the defendant knew his con-
    duct was illegal was properly considered on the issue of
    whether he was able to appreciate its wrongfulness. 
    Id. at 334
    . The district court cited Reed for the proposition that
    a “jury could [not] make a finding of not guilty [ ] if the
    defendant appreciated his acts to be criminal,” and there-
    No. 05-3409                                                  15
    fore concluded that Ewing’s proposed instruction on moral
    wrongfulness was an inaccurate statement of the law. We
    do not interpret Reed quite so broadly; the case held only
    that a defendant’s knowledge that his conduct was illegal
    may be taken into account when determining his ability to
    appreciate its wrongfulness. While we reaffirm the accu-
    racy of that proposition, it sheds little light on the question
    presented here. Ewing’s proposed instruction defined
    wrongfulness as “moral as well as criminal wrongfulness,”
    and further defined “moral wrongfulness” by reference to
    the defendant’s delusion of moral justification “even if he
    appreciated his acts to be criminal.” Neither Reed nor any
    other circuit precedent addresses the meaning of wrongful-
    ness in the IDRA, or more specifically, the distinction
    between objective and subjective moral wrongfulness.
    Ewing relies primarily on United States v. Segna, 
    555 F.2d 226
     (9th Cir. 1977), a decision by the Ninth Circuit,
    the only court to have adopted a subjective definition of
    wrongfulness like the one in Ewing’s proposed instruction.2
    There are a number of problems with reliance on Segna.
    First, the case predates the codification of the federal
    insanity defense and instead interprets wrongfulness
    as used in the Model Penal Code’s definition of legal
    insanity. That definition states: “A person is not responsi-
    ble 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 criminality (wrongfulness)
    of his conduct or to conform his conduct to the require-
    ments of law.” MODEL PENAL CODE § 4.01. Segna relied
    principally on commentary from the American Legal
    2
    Ewing’s proposed jury instruction is the same instruction that
    the defendant requested and the Segna court ultimately ac-
    cepted as an accurate definition of wrongfulness. See United
    States v. Segna, 
    555 F.2d 226
    , 232 (9th Cir. 1977).
    16                                                   No. 05-3409
    Institute (“ALI”) accompanying the formulation of this
    definition. But Congress did not adopt the Model Penal
    Code’s definition of insanity when it enacted the IDRA.
    Accordingly, neither the ALI commentary nor cases rely-
    ing upon it are appropriate sources for interpretation of
    the statute.3 Moreover, although there is far from a
    robust body of case law on the issue, Segna’s subjective
    definition of wrongfulness—even in the context of § 4.01 of
    the Model Penal Code—has been rejected by those courts
    to consider it since. See, e.g., State v. Wilson, 
    700 A.2d 633
    ,
    640-41 (Conn. 1997); People v. Serravo, 
    823 P.2d 128
    , 138
    (Colo. 1992); State v. Worlock, 
    569 A.2d 1314
    , 1322 (N.J.
    1990).4
    3
    There is some similarity in the wording of 
    18 U.S.C. § 17
     and
    MODEL PENAL CODE § 4.01. However, absent statutory language
    paralleling § 4.01, we decline to treat either § 4.01 or its commen-
    tary as a reliable source of interpretation of the statute. For the
    same reason, the bulk of federal case law on the insanity de-
    fense predating the enactment of § 17 is unhelpful; like the
    Ninth Circuit, most federal courts (ours included) had adopted
    § 4.01 as the standard for legal insanity and therefore relied on
    the ALI commentary for interpretation. See, e.g., Blake v. United
    States, 
    407 F.2d 908
    , 915-16 (5th Cir. 1969) (en banc); United
    States v. Shapiro, 
    383 F.2d 680
    , 686 (7th Cir. 1967) (en banc);
    United States v. Freeman, 
    357 F.2d 606
    , 622 (2d Cir. 1966).
    4
    One of the reasons courts have rejected Segna is that it may
    have mischaracterized the ALI commentary. Segna cited no
    specific statements in the commentary, but rather summarily
    concluded that “the weight of the discussion [in the ALI] debates
    points toward a preference for the [subjective] definition.” 
    555 F.2d at
    533 n.6. The ALI commentary accompanying § 4.01 states
    in part: “Appreciating ‘wrongfulness’ may be taken to mean
    appreciating that the community regards the behavior as
    wrongful. Given the seriousness of most crimes for which the
    defense of insanity is interposed, a defendant who appreciates
    society’s moral disapproval of his conduct will almost always
    (continued...)
    No. 05-3409                                                  17
    Only the Eighth Circuit has given the term wrongfulness
    relevant consideration since the passage of the IDRA. See
    United States v. Dubray, 
    854 F.2d 1099
     (8th Cir. 1988).
    The court in Dubray concluded that the term has the
    broader meaning of moral rather than criminal wrongful-
    ness; that is, the court held that a defendant who because
    of mental disease or defect is unable to appreciate the
    moral wrongfulness of his conduct may establish an
    insanity defense “even where the defendant knows that
    the conduct is illegal.” 
    Id. at 1101
    . But the decision in
    Dubray did not address the distinction between objective
    and subjective morality, which is the crux of this appeal.
    We are aware of only one district court decision that has
    discussed the issue. See United States v. Danser, 
    110 F. Supp. 2d 807
    , 826 (S.D. Ind. 1999). In Danser, Judge
    Tinder suggested it was unlikely that Congress had
    adopted a “purely subjective standard of morality” when it
    enacted § 17, id. at 826 n.13, but the evidence in the case
    before him was insufficient to establish the insanity
    defense under either an objective or subjective definition,
    so he was not required to choose.
    2. The IDRA and M’Naghten
    Although various formulations of the insanity defense
    were proposed throughout the twentieth century, the
    language of the IDRA closely resembles the common-law
    M’Naghten standard. Compare 
    18 U.S.C. § 17
     with MODEL
    PENAL CODE § 4.01 (adopting a combination of the
    4
    (...continued)
    assume that the conduct is criminal, and vice versa.” MODEL
    PENAL CODE § 4.01 cmt. 3 at 169 (1985) (footnote omitted). Based
    on this language, other courts have found the commentary
    ambiguous at best, if not actually in support of an objective
    public standard of morality.
    18                                             No. 05-3409
    M’Naghten test and an “irresistible impulse” test), and
    Durham v. United States, 
    214 F.2d 862
     (D.C. Cir. 1954)
    (establishing the so-called “Durham test” focusing on
    whether defendant’s conduct was “the product of a mental
    disease or defect”), overruled by United States v. Brawner,
    
    471 F.2d 969
     (D.C. Cir. 1972) (adopting MODEL PENAL
    CODE § 4.01). The precise language of the M’Naghten test
    has been altered at common law and by state statute,
    but its essential elements are codified in the IDRA: to
    establish the affirmative defense of insanity, the defendant
    has the burden of proving that at the time of the offense,
    as a result of a severe mental disease or defect, he was
    unable to appreciate the nature and quality or wrongful-
    ness of his acts.
    The IDRA, as we have noted, does not define “wrongful-
    ness”; the term is admittedly susceptible of the multiple
    definitions discussed above. Because the statute adopts
    the elements of the M’Naghten test, however, we may
    infer that wrongfulness carries the same meaning as
    in M’Naghten’s Case and the common law that developed
    around it. See N.L.R.B. v. Amax Coal Co., a Div. of Amax,
    Inc., 
    453 U.S. 322
    , 329 (1981) (“Where Congress uses terms
    that have accumulated settled meaning under either
    equity or the common law, a court must infer, unless
    the statute otherwise dictates, that Congress means to
    incorporate the established meaning of these terms.”);
    accord In re Chambers, 
    348 F.3d 650
    , 655 (7th Cir. 2003).
    M’Naghten’s Case, 8 Eng. Rep. 718 (1843), concerned
    a British common-law trial with facts not unlike those at
    issue in this appeal. In 1843, acting under a delusion that
    the Tory political party was persecuting him, Daniel
    M’Naghten shot and killed Edward Drummond, private
    secretary to Prime Minister Sir Robert Peel. See generally
    No. 05-3409                                                  19
    RICHARD MORAN, KNOWING RIGHT FROM WRONG (1981).5
    M’Naghten presented an insanity defense based on the
    theory that a defendant could not be found guilty of any
    act committed while he was laboring under a delusion,
    regardless of whether the act was a direct product of that
    delusion. Id. at 93-94. The jury found M’Naghten not guilty
    by reason of insanity. In response to public and royal
    outrage following the verdict, the House of Lords asked
    the judges of the Queen’s Bench to answer five ques-
    tions regarding the proper formulation of the insanity
    defense. Id. at 21-22. Their responses served as the basis
    for the development of American law on the insanity
    defense over the next 150 years.
    Although the language of the M’Naghten insanity test
    comes from a particular passage of the case, it is helpful to
    review each of the judges’ relevant responses to under-
    stand the meaning of that language. The first question
    from the House of Lords posited circumstances quite
    similar to Ewing’s defense here, in which “the accused
    knew he was acting contrary to law, but did the act
    complained of with a view, under the influence of insane
    5
    M’Naghten apparently shot Drummond under the mistaken
    belief that he was Prime Minister Peel. RICHARD MORAN,
    KNOWING RIGHT FROM WRONG 7 (1981). Moran’s detailed account
    of the facts surrounding M’Naghten’s actions and trial presents
    a convincing argument that M’Naghten may not have been
    insane, but instead crafted the defense after being paid to
    assassinate Peel. Whether M’Naghten really was delusional is
    irrelevant to understanding the legal proceedings that ensued;
    nonetheless, Moran provides a fascinating study of the facts
    behind the famous case.
    Moran also analyzes the accuracy of various possible spellings
    of the defendant’s name. Id. at xi-xiii. Although he ultimately
    deems “McNaughtan” the most likely spelling, we will use
    “M’Naghten,” the spelling used in the original opinion.
    20                                               No. 05-3409
    delusion, of redressing or revenging some supposed
    grievance or injury, or of producing some supposed public
    benefit.” 8 Eng. Rep. at 720. The judges responded that
    such a defendant “is nevertheless punishable according
    to the nature of the crime committed, if he knew at the
    time of committing such crime that he was acting con-
    trary to law; by which expression we understand your
    Lordships to mean the law of the land.” Id. at 722.
    In response to the next two questions regarding the
    proper inquiry to be submitted to a jury in an insanity
    defense case, the judges provided the test used in most
    American courts over the next century:
    [T]o establish a defense on the ground of insanity, it
    must be clearly proved that, at the time of committing
    the act, the party accused was labouring under such a
    defect of reason, from disease of the mind, as not to
    know the nature and quality of the act he was doing,
    or, if he did know it, that he did not know he was
    doing what was wrong.
    Id. The judges explained that they used the term “wrong”
    instead of “illegal” to prevent “confound[ing] the jury, by
    inducing them to believe that an actual knowledge of the
    law of the land was essential in order to lead to a convic-
    tion.” Id. at 723. Rather, the proper inquiry was “[i]f the
    accused was conscious that the act was one that he ought
    not to do, and if that act was at the same time contrary to,
    the law of the land.” Id.
    The final response bearing on wrongfulness came from
    the fourth question posed, which is again of particular
    relevance to Ewing’s defense: “If a person under an insane
    delusion as to existing facts, commits an offence in conse-
    quence thereof, is he thereby excused?” Id. at 720. The
    judges answered:
    [W]e think he must be considered in the same situa-
    tion as to responsibility as if the facts with respect to
    No. 05-3409                                                    21
    which the delusion exists were real. For example, if
    under the influence of his delusion he supposes an-
    other man to be in the act of attempting to take
    away his life, and he kills that man, as he supposes, in
    self-defence, he would be exempt from punishment. If
    his delusion was that the deceased had inflicted a
    serious injury to his character and fortune, and he
    killed him in revenge for such supposed injury, he
    would be liable to punishment.
    Id. at 723.
    These responses shed light on two aspects of the original
    M’Naghten test critical to the meaning of wrongfulness.
    First, they demonstrate that the relevant inquiry, accord-
    ing to the Queen’s Bench, was not a defendant’s actual
    knowledge of the criminal law under which he was ac-
    cused, but rather whether the defendant understood the
    difference between right and wrong.6 The second point,
    6
    M’Naghten’s Case thus refutes Ewing’s contention that the
    second of the possible definitions of wrongfulness (societal or
    public morality) is not meaningfully distinct from the first
    (criminality). See Brief of Defendant-Appellant at 34 (“[A]lmost
    all cases giving rise to an insanity plea involve serious crimes
    where there is likely to be no difference between publicly
    accepted moral standards and the law. A public morality
    standard frustrates legislative intent by rendering Congress’s
    choice of the word ‘wrongfulness’ in lieu of criminality meaning-
    less.” (citation omitted)). M’Naghten’s Case demonstrates that
    “wrongfulness” is substituted for “criminality” not to create two
    (or more) distinct moral codes by which a defendant’s conduct
    could be judged, but rather to ensure that the inquiry remains
    focused on a defendant’s ability to understand wrongfulness,
    rather than his actual knowledge of the law. Cf. State v.
    Harmann, 
    285 N.W.2d 180
    , 183 (Iowa 1979) (“[Rejecting the
    subjective definition] is not to say, as has sometimes been
    suggested, that sanity would thereby be measured by legal
    (continued...)
    22                                                No. 05-3409
    illustrated by the judges’ fourth response, is that the right-
    versus-wrong test asked not whether the defendant
    believed he was justified based on his delusional view of
    reality, but whether society would judge his actions an
    appropriate response to his delusions. Thus, as applied
    to M’Naghten, the judges’ responses illustrate that his
    conduct was not properly excused because his deluded
    belief in a governmental conspiracy against him—even if
    true—did not justify his knowingly wrongful act of
    murder.7
    Accordingly, “criminality” or “contrary to law” is too
    narrow a definition of wrongfulness, and “subjective
    personal morality” is too broad. The second of the alterna-
    tive definitions of wrongfulness—contrary to objective
    societal or public morality—best comports with the
    rules established in M’Naghten’s Case. This conclusion is
    consistent with the holdings of American courts that
    analyzed the issue prior to 1984, when Congress adopted
    the IDRA.8 Although case law relevant to our specific
    inquiry is sparse, a brief canvas of those cases that are
    on point supports our conclusion that the M’Naghten
    6
    (...continued)
    knowledge. . . . The determination is to be made on the basis
    of a person’s ability to understand it when something is prohib-
    ited by law.”).
    7
    Like Ewing, M’Naghten argued not that he thought Drummond
    was directly attacking him, but rather that he believed his act
    an appropriate response to the looming conspiracy against him.
    MORAN at 98. Presumably, the bench’s answers would lead to a
    different result had M’Naghten argued that he believed his life
    to be in imminent danger from Drummond at the moment he
    committed the murder.
    8
    We limit our review to those cases on the books prior to the
    codification of the federal insanity defense because those cases
    form the basis for the common-law test Congress was adopting.
    No. 05-3409                                              23
    wrongfulness inquiry is to be judged according to objec-
    tive societal standards of morality.
    We begin with People v. Schmidt, 
    110 N.E. 945
     (N.Y.
    1915), which Ewing cites to support his assertion that
    American courts have traditionally read M’Naghten to
    espouse the subjective definition of wrongfulness. In
    particular, Ewing relies on language from Schmidt in
    which then-Judge Cardozo explained how a New York
    statute adopting the M’Naghten test might provide a
    defense for someone who because of mental illness be-
    lieved himself directed by God to commit a crime—the so-
    called “deific decree” defense. See 
    id. at 949
     (“If, however,
    there is an insane delusion that God has appeared to the
    defendant and ordained the commission of a crime, we
    think it cannot be said of the offender that he knows the
    act to be wrong.”). Ewing argues that Cardozo’s approving
    reference to the deific decree defense demonstrates that
    the M’Naghten wrongfulness inquiry focuses on the defen-
    dant’s personal beliefs about morality or moral justifica-
    tion.
    Ewing’s reliance on this aspect of Schmidt is misplaced.
    Cardozo’s opinion for the Court of Appeals of New York
    carefully distinguished between the deific decree defense
    and the sort of insanity defense brought in M’Naghten’s
    Case and asserted by Ewing here. Relying on the re-
    sponse provided to the first M’Naghten inquiry, Cardozo
    concluded that a defense based on a defendant’s personal
    definition of wrongfulness would not suffice to prove
    insanity under M’Naghten. 
    Id. at 948
    . Cardozo explained
    the difference between the two defenses:
    A delusion that some supposed grievance or injury
    will be redressed, or some public benefit attained, has
    no such effect in obscuring moral distinctions as a
    delusion that God himself has issued a command. The
    one delusion is consistent with knowledge that the
    act is a moral wrong, the other is not.
    24                                               No. 05-3409
    
    Id.
     Schmidt does not support Ewing’s proposed subjec-
    tive definition of wrongfulness. To the contrary, the case
    supports our conclusion that moral wrongfulness is
    determined by reference to societal or public standards
    of morality. Accord People v. Wood, 
    187 N.E.2d 116
    , 121
    (N.Y. 1962) (relying on Schmidt in approving a jury
    instruction that “[w]hen it speaks of the defendant’s
    ignorance of his act as wrong, the law does not mean to
    permit the individual to be his own judge of what is right
    or wrong”).
    People v. Rittger, 
    355 P.2d 645
     (Cal. 1960), also sup-
    ports an objective rather than subjective definition of
    wrongfulness. California had judicially adopted the
    M’Naghten rule in the absence of a state statute on the
    insanity defense. In Rittger, a jury had rejected an insanity
    defense premised on the defendant’s disturbed belief
    that he had to murder his victim for his own future
    protection. In affirming the conviction, the California
    Supreme Court held:
    The fact that a defendant claims and believes that his
    acts are justifiable according to his own distorted
    standards does not compel a finding of legal insan-
    ity. . . . This is necessarily so if organized society is
    to formulate standards of conduct and responsibility
    deemed essential to its preservation or welfare, and to
    require compliance, within tolerances, with those
    standards.
    355 P.2d at 653 (citation omitted). The court in Rittger
    plainly rejected the notion that a defendant’s subjective
    beliefs about moral justification satisfy the M’Naghten
    test in the face of evidence that the defendant under-
    stood his conduct to be contrary to societal standards of
    morality.
    Other state court authority supports the conclusion that
    M’Naghten’s wrongfulness inquiry focuses on the defen-
    No. 05-3409                                               25
    dant’s ability to appreciate that his conduct was con-
    trary to public or societal standards of morality. See, e.g.,
    State v. Crenshaw, 
    659 P.2d 488
    , 493 (Wash. 1983) (“[I]n
    discussing the term ‘moral’ wrong, it is important to
    note that it is society’s morals, and not the individual’s
    morals, that are the standard for judging moral wrong
    under M’Naghten.”); State v. Hamann, 
    285 N.W.2d 180
    ,
    183 (Iowa 1979) (“Those states which believe the right or
    wrong test should be conducted with a view to moral right
    or wrong are quite uniform in rejecting a subjective test.”);
    State v. Corley, 
    495 P.2d 470
    , 473 (Ariz. 1972) (“We find no
    authority upholding the defendant’s position that one
    suffering from a mental disease could be declared legally
    insane if he knew that the act was morally and legally
    wrong but he personally believed that act right.”). We have
    found no pre-1984 cases supporting Ewing’s interpreta-
    tion of M’Naghten.
    There is nothing in the IDRA to suggest that wrongful-
    ness should be interpreted more broadly than or contrary
    to the traditional understanding of the M’Naghten test. We
    conclude that wrongfulness for purposes of the federal
    insanity defense statute is defined by reference to objec-
    tive societal or public standards of moral wrongfulness,
    not the defendant’s subjective personal standards of
    moral wrongfulness. As such, the district court correctly
    rejected Ewing’s proposed jury instruction as an inac-
    curate statement of law. That instruction would have
    impermissibly allowed a finding of legal insanity based
    on Ewing’s subjective belief that his conduct was morally
    justified, despite an appreciation that his conduct was
    illegal or contrary to public morality. By contrast, the
    government’s instruction appropriately focused the
    insanity inquiry on Ewing’s ability to appreciate moral
    wrongfulness, without making knowledge of the law
    conclusive as to his understanding of wrongfulness.
    26                                             No. 05-3409
    Although we agree with the district court that Ewing’s
    proposed instruction was legally inaccurate and find no
    error in the court’s use of the government’s “public moral-
    ity” instruction, we caution that not every insanity defense
    case calls for an instruction on the distinction between
    moral and legal wrongfulness like the one used here.
    See Dubray, 
    854 F.2d at 1101
     (“The jury should be
    instructed on the distinction between moral and legal
    wrongfulness . . . only where the evidence at trial sug-
    gests that this is a meaningful distinction in the circum-
    stances of the case.”); Segna, 
    555 F.2d at 233
    . Whether the
    evidence here warranted a specific definition of wrongful-
    ness was a close call. Ewing’s theory of defense was that
    his conduct was based on his conspiracy delusions and his
    belief in the moral justification of attacking Judge Miller.
    Dr. Chapman testified that Ewing told him he “didn’t
    consider what [he] was going to do as illegal or criminal
    because [he] was in the right.” The district court inter-
    preted this statement as evidence that Ewing knew his
    conduct was illegal but nevertheless considered his
    actions morally justified, and therefore an instruction on
    moral wrongfulness (as distinct from illegality or criminal
    wrongfulness) was necessary. This was a permissible
    interpretation of the evidence, and because Ewing specifi-
    cally requested an instruction on moral wrongfulness and
    the instruction given was accurate, his challenge to the
    court’s use of the government’s alternative instruction
    fails. Nonetheless, we take this opportunity to clarify that
    an instruction on the meaning of wrongfulness should be
    given only when there is evidence that warrants it.
    C. Competency Determinations
    To be competent to stand trial, a defendant must have
    “sufficient present ability to consult with his lawyer with
    a reasonable degree of rational understanding [and] a
    No. 05-3409                                             27
    rational as well as factual understanding of the proceed-
    ings against him.” Dusky v. United States, 
    362 U.S. 402
    ,
    402 (1960). A court must hold a competency hearing
    if there is reasonable cause to believe the defendant may
    presently be incompetent. 
    18 U.S.C. § 4241
    ; see also
    Timberlake v. Davis, 
    409 F.3d 819
    , 822 (7th Cir. 2005)
    (“the due process clause requires the trial judge to in-
    quire sua sponte into a defendant’s mental state, if events
    in court imply that the accused may be unable to appreci-
    ate the nature of the charges or assist his counsel in
    presenting a defense”).
    A district court’s decision whether to hold a competency
    hearing is discretionary and reviewed deferentially;
    its findings regarding competency are reviewed for clear
    error. United States v. Downs, 
    123 F.3d 637
    , 641 (7th Cir.
    1997). In Downs, we upheld the district court’s decision
    not to hold a full competency hearing prior to accepting
    a guilty plea despite a psychiatrist’s opinion that the
    defendant’s “judgement is impaired and that this should
    be taken into consideration when making decisions about
    the disposition of his case.” 
    Id. at 640
    . In doing so, we
    affirmed that “[a] trial court is always in the best posi-
    tion to determine the need for a competency hearing.” 
    Id. at 641
     (quotation and citation omitted). We also noted in
    Downs that defense counsel never sought a full competency
    hearing during the proceedings and indicated the defen-
    dant was appropriately assisting in his defense. 
    Id.
    The district court did not abuse its discretion by not
    holding a competency hearing during Ewing’s trial. The
    court found Ewing competent on September 8—less
    than one week before trial began—based on an evaluation
    by his long-time psychiatrist, Dr. Mrad. Although Dr.
    Mrad described Ewing as only “minimally competent” at
    that proceeding, he made it clear that Ewing’s ongoing
    conspiracy delusions did not render him incapable of
    28                                                No. 05-3409
    understanding the proceedings or assisting in his defense.
    Ewing’s delusions persisted during trial, but the court
    made certain to question him directly whenever he dis-
    played any signs of potential mental deterioration. The
    record supports the court’s findings in each of those
    instances that Ewing was oriented to and participating
    appropriately in the proceedings. Dr. Chapman, Ewing’s
    expert, was present to observe Ewing throughout the
    trial, yet at no time did he or defense counsel seek an
    additional competency evaluation once the trial was
    underway.
    We also reject Ewing’s contention that the court should
    have ordered a retrospective competency hearing—a
    proceeding the defense never requested—once it became
    aware Ewing may have lied during his pretrial examina-
    tion.9 Retrospective competency hearings are generally
    disfavored, see, e.g., Galowski v. Berge, 
    78 F.3d 1176
    , 1180-
    81 (7th Cir. 1996), and Ewing points to no case requir-
    ing such a proceeding based on a defendant’s assertion
    that he actively concealed his mental state. Ewing’s
    posttrial claim that he minimized the severity of his
    delusions does not call into question the court’s earlier
    9
    We say “may have” because it is unclear whether Ewing’s
    posttrial statements were a rational explanation of his frame
    of mind prior to trial, or rather a symptom of his resurfacing
    paranoia in the months that followed. At trial, although Ewing
    clearly suffered from some delusions relating to his ongoing
    mental illness, he was able to converse with the court and
    generally responded on point to the questions he was asked. By
    contrast, at his first sentencing—which the court adjourned
    for purposes of another competency hearing—Ewing responded
    to questions with long rants about the conspiracies against him
    and repeatedly talked over the judge without internalizing any
    of the judge’s responses. Ewing did not exhibit anything close
    to this behavior, for example, when he asked to have his counsel
    removed mid-trial.
    No. 05-3409                                             29
    competency determination. Dr. Mrad was fully aware of
    Ewing’s conspiracy delusions; indeed, the doctor’s
    report took into account the continuation of those delu-
    sions. His opinion that Ewing was competent was based
    on the fact that Ewing was oriented and capable of partici-
    pating in his defense despite the persistent conspiracy
    delusions.
    The district court’s determination that Ewing was
    competent to stand trial and remained competent during
    trial is adequately supported by Dr. Mrad’s opinion and
    the court’s own contemporaneous personal observations.
    The court carefully monitored Ewing’s competency
    throughout the entirety of these proceedings. Ewing’s
    posttrial statements about concealing the true extent of
    his delusions from Dr. Mrad did not require the court to
    order, sua sponte, a retrospective competency hearing.
    AFFIRMED.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—7-17-07