I concur in Judge Wright’s general approach. I also concur in the result so that an order may issue, although my own view is that the judgment as it stands should be affirmed. We do not have here a record in which we are in doubt whether the District Court gave full consideration to the problem. Judge McGuire’s pre-trial opinion seems to me to state the essence of the sound rule for this difficult kind of ease. Although the trial judge did not make findings in the precise form set forth by Judge Wright, I think his findings reflect clearly enough that in his opinion the appellant was guilty beyond a reasonable doubt and that there was no reasonable basis for any contention that the outcome was significantly affected by appellant’s lack of memory.
The matter must be put in terms of what is reasonable; obviously it is al*465ways possible that the defendant, if not deprived of memory, could have taken the stand and used words which, if believed, would have constituted some sort of defense. For example it is possible that the defendant might have testified that his dead companion had used physical coercion. The findings of the trial judge that he saw no “conceivable defense” is to be taken in its substantial intention— that he saw no reasonable possibility that the appellant could have given testimony that would exculpate him in the eyes of the law.
It is always possible that a defendant could gain an acquittal by perjuring himself, or more conscionably by presenting such a sympathetic figure on the witness stand that the jury would have used the mercy-dispensing power that it has in fact, though not in law. But such possibilities of prejudice, however realistic, do not suffice to prohibit the entry of a judgment on a verdict of guilty.1
I don’t think appellant has shown that his constitutional rights have been vio-, lated. The fact that he has no memory as to the events brought out at the trial does not mean that he lacks present competency. I don’t see that he is significantly different from a defendant who was so intoxicated that he “passed out on his feet” at the crucial time, and does not now have the slightest recollection with which he can give his counsel any help as to what he was doing at that critical time.2 Whether a defendant’s lack of memory of what he did is due to the fact that he was too drunk at the time, or ran into a tree ten minutes later, I think he can rightly be held to account — and be asked to hold himself to account if he is a man of conscience — provided the evidence is clear on what he did. It is probably commonplace for a man to be convicted of negligent homicide although in fact his memory of the event is vitiated by drink, shock, or both, and I see nothing unconscionable in this.
Judge Wright’s opinion says that the inquiry into fairness requires the District Court to consider whether the Government’s case negates all reasonable hypotheses of innocence. That particular terminology was once required by some courts for instructions to the jury where the prosecution was dependent on' circumstantial evidence. It was scrapped on the sensible ground that it means no more than requiring proof beyond a reasonable doubt, yet the ritualization of this additional language might be misunderstood by a jury to require something additional by way of proof.3 This problem would not apply to the situation before us, involving findings by a court.
Hence the nub of Judge Wright’s opinion, if I understand it correctly, is that at least in a ease of admitted amnesia due to brain damage, not subject to abuse as feigned, it is requisite for the court as well as the jury to make a fact finding that there is no reasonable -doubt of guilt. The further court finding, that there is no substantial possibility that a defense was lost because of the amnesia, seems to me only a vigorous reiteration that there is no reasonable doubt of guilt — except that this finding would be applied to facts other than the evidence admissible and introduced before the'jury, and applied after an inquiry into the actual workings of defense counsel, and to some extent the prosecution.
These standards seem sound and workable. I personally think they are rather clearly implied in the findings made by the trial judge. I also think that in view *466of Judge McGuire’s clear opinion at pretrial defense counsel would have brought forward to the trial judge any explanation of innocence that counsel thought sufficiently plausible and probable to be substantial, yet which could not be adduced because of defendant’s amnesia. It is not suggested that the prosecution held back anything revealed by its investigation. Hence I am satisfied there was a fair trial in this case. However, being in accord with Judge Wright’s general approach, and to avoid the impasse of a 3-way split on the order to be entered, I am voting for remand.
. Compare United States v. Austin-Bagley Corp., 31 F.2d 229, 233 (2d Cir.), cert. denied, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002 (1929).
. Whether the defendant’s condition negatives responsibility is of course different from the question whether it negatives competency at trial. Intoxication may negative the specific intent required for robbery, but it does not negative responsibility as to those crimes requiring only a showing of general mens rea. Here of course there is no suggestion negativing appellant’s responsibility at the time he acted.
. Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150 (1954), and cases cited.