(dissenting).
Defendant requested the district court to instruct the jury that if they should return a not guilty verdict, he would be confined in St. Elizabeth’s Hospital until it was safe to release him. If 24 U.S.C. § 211 means what it says, that request was proper. However, as Judge Pell has demonstrated, it is unlikely that a literal reading of § 211 reflects the actual intent of the Congress which enacted it in 1857. Somewhat reluctantly I have therefore concluded that the reading of § 211 which is consistent with the policy judgments of 49 state legislatures, as well as the plain meaning of its text, is one which we may not in good conscience adopt.1 Nevertheless, I am persuaded that the defendant’s request was sufficient to require the district court to give an instruction that would minimize or avoid the manifest prejudice inherent in the jury’s probable assumption that a not guilty verdict would endanger society by setting free a violence prone, mentally disturbed person.
The likelihood of prejudice in this case is great because the guilty verdict was returned in the face of an especially strong insanity defense.2 The defendant presented five witnesses, who testified, in effect, that on the day in question the appellant was unable to conform his conduct to the dictates of the law. Four of his witnesses were members of the faculties of the distinguished medical schools at Northwestern University and the University of Chicago; the experts’ conclusions were arrived at independently at the two universities. Since this testimony need only have cast a reasonable doubt upon defendant’s sanity for the jury to have been required to find in *1088his favor,3 I have little doubt that the supposed consequences of acqu’-ttal may-have substantially affected their deliberations.4
The Government seems to assume that the absence of a federal statute providing for mandatory institutionalization of a defendant found not guilty by reason of insanity leads inexorably to the conclusion that such a defendant must be discharged immediately upon acquittal. Although it would certainly be desirable to have federal legislation dealing explicitly with the problem, I do not believe our district judges are as impotent as that assumption implies.
If the evidence overwhelmingly establishes that a skyjacker, for example, was insane at the time of his act, and that he is virtually certain to resume his violent behavior as soon as he is set free, must we then conclude that the only way to protect society from such predictable harm is to find an innocent man guilty of a crime he did not have the capacity to commit? I am unwilling to accept that conclusion and I do not believe juries should be permitted to determine the guilt or innocence of an accused citizen on the assumption that our federal judicial system is so hypocritical.5
The court’s power over a person charged with a federal offense is not limited narrowly to the imposition of the sentence authorized by statute. If the individual is incompetent, he is subject to federal detention for a period that may exceed the maximum statutory sentence. This result may follow either from the determination of incompetence in advance of trial,6 or after conviction and immediately prior to the termination of his sentence.7 Moreover, the statutory language authorizing federal institutionalization pursuant to a petition filed “after arrest and prior to the imposition of sentence” has been construed by the Supreme Court to encompass a period of time which survives the return of a not guilty verdict.8 Finally, *1089there is an inherent power in federal judges, as in common law judges, to take some action to protect society from the manifest danger that might follow premature release of an obviously deranged person in federal custody. As Mr. Justice Clark reminded us in Lynch v. Overholser, 369 U.S. 705, 724, 82 S.Ct. 1063, 1074, 8 L.Ed.2d 211 (dissenting opinion), “At common law, before 1800, the trial judge had power to order detention in prison of an acquitted defendant he considered dangerous because of insanity.” 9 Both English and American judges used this power to direct confinement of the dangerous defendant acquitted by reason of insanity. See Had-field’s Case, 27 How.St.Tr. 1281, 1354 (1800); United States v. Lawrence, 26 Fed.Cas. pp. 887, 891 (No. 15,557) (C.C.D.C.1835).10 At the very least, in a case in which the defendant has successfully maintained an insanity defense, the federal court could withhold the entry of judgment on a not guilty verdict until appropriate state officials were given an opportunity to take essential protective action.11
There is no question in my mind about a federal court’s power to retain temporary custody of a defendant who has taken the position at trial that he was insane at the time of the alleged offense.12 A presumption that his mental illness has continued to exist is accepted as adequate to support a mandatory commitment statute. There is no reason why a trial judge may not accept the same presumption; indeed, the defendant’s request for an instruction that acquittal will be followed by commitment should imply consent to such action. Nor, notwithstanding the doubts that once were expressed, is there any valid reason to conclude that federal power over such a person is lacking. Normally it is the effect of his conduct on some aspect of interstate commerce that justifies the exercise of federal judicial power; that effect — and' therefore the basis for federal jurisdiction — is identical whether the defendant be moti*1090vated by a criminal intent or by a deranged mind.13
If I am correct in my belief that a not guilty verdict entered in this case would not have been followed by the defendant’s immediate release, quite clearly his defense was irretrievably prejudiced if the jury made such an assumption. On the other hand, even if I am incorrect in my assumption that there is power in the district court to avoid the immediate release of a violent, insane defendant following his acquittal, it is nevertheless equally true that the jury should not determine the issue of guilt or innocence on the basis of its fear of how an insane man may behave if acquitted.-14 Regardless of how the sovereign handles the problem of dealing with persons who are found not guilty by reason of insanity, the shortcomings, if any, in the discharge of the sovereign’s responsibility clearly should not be permitted to distort the deliberations of a jury.
What, then, should the trial judge have done in this case? The probability of prejudice resulting from uncertainty concerning the disposition of the defendant in the event of an acquittal was raised and, I believe, should have been covered in the instructions. Although I have concluded that the trial judge correctly refused the specific instructions tendered by defense counsel, in order to avoid manifest prejudice I believe he should at least have instructed the jury that if defendant were acquitted, it would be presumed that his insanity continued; that it would be the responsibility of the government to determine the disposition to be made of him; and that questions concerning such disposition, like questions relating to punishment in the event of conviction, are mat*1091ters that should not be given any consideration by the jury.
The trial judge did give the following standard instruction:
“Now, in determining the guilt or the innocence of this defendant, you should not give any consideration to the matter of punishment, for this question is exclusively the responsibility of the court.” Tr. 1689.
By negative implication, the failure to make any reference to the consequences of an acquittal may well have given the jury the impression that it would be appropriate for them to be concerned about the risk that the defendant would be set free in the event they determined that he was insane.
The instructions in this case were, therefore, significantly different from those approved by the Eighth Circuit in Pope v. United States, 372 F.2d 710, 732 (1967); Mr. Justice (then Circuit Judge) Blackmun’s summary of the relevant portion of the instructions and closing argument will highlight the difference between that case and this:
“We should note that in its closing argument to the jury the defense made what appears to be at least a collateral reference to Pope’s possible custody in the event of acquittal:
“ T wonder if you might in your deliberations feel or think about some concern about his custody if you find him not guilty. * * * I think you can assume that if you do your duty as jurors * * * others will do their duty in connection with Duane.’
Although permission for further comment about disposition had been denied by the court before final argument, the defense itself thus effected an implication. The court did the same in its instructions when it said, ‘Just as you will discharge your duty under the law and the evidence you can assume that others will do the same as to any matters for their consideration’. We may not assume that all this was not apparent to the jury.”
Admittedly, instructing the jury not to consider the consequences of an acquittal involves a significant risk to society. As the opinion of Chief Justice (then Circuit Judge) Burger in Lyles v. United States, supra n. 4, plainly indicates, the jury’s assumptions with regard to the consequences of finding a defendant not guilty by reasons of insanity may have a significant influence on their deliberations. Therefore, if the jury should be given a persuasive instruction to disregard such consequences, and faithfully discharges its duty to do so, a certain number of defendants who are in fact insane and violent may be acquitted; since my optimism about the power of the federal court to protect the public from such dangerously ill persons may be unwarranted, they may then be set free and prey upon society. But to the extent that risk does exist, it may not legitimately be remedied by encouraging juries to return false verdicts out of fear of the consequences of a true finding of insanity; the only permissible way to avoid the risk is by the enactment of appropriate legislation.
In the past a somewhat chimerical fear of the possible release of defendants found not guilty by reason of insanity in the District of Columbia was adequate to persuade Congress to act swiftly.15 Perhaps the realistic prospect *1092of the release of such persons by other federal courts is necessary to motivate Congress to close the so-called “gap” in the federal statutory scheme.16 To say the least, it is unacceptable to deny an individual citizen his right to a fair and dispassionate consideration of the issue of his guilt or innocence because Congress has been derelict in the discharge of its responsibilities to the public at large.
In my opinion, this case presents one of the rare situations in which the failure of the trial judge to give any advice at all to the jury on a matter that must have loomed large in their deliberations constituted plain error. It is almost inconceivable to me that if the jury had put to one side any concern about the consequences of a not guilty verdict, they would not have entertained a reasonable doubt as to the defendant’s sanity.17 Since there is a substantial likelihood that the outcome of the jury’s deliberations was affected by this omission, I would reverse and remand for a new trial with directions to give an instruction incorporating the substance of the charge, and the argument of counsel, described in Pope v. United States, supra.
. The judicial interpretations of § 211 limiting its applicability to the District of Columbia are based upon an 1881 opinion of Attorney General MacVeagh. 17 Op.Att’y Gen. 211. That opinion rests upon an interpretation of the legislative intent of the 1857 Act which became § 211; and that interpretation, in turn, relies, in part, on a doctrine of federalism which is no longer viable. For example, he wrote, “Sufficient reasons will suggest themselves to every mind why Congress should make . . . provision for the insane of the Army and Navy and of this District, as the States are expected to make for insane persons residing within their borders; but no reason can be suggested why an insane resident of Texas should be brought and maintained here.” 17 Op.Att’y Gen. at 212 (emphasis added). This language suggests at least the possibility that the Attorney General’s opinion is predicated upon the assumption that insanity was something remediable under the parens patriae of the states only; that, in other words, the federal government was incompetent to act. After a century, it is difficult to defend such a formalistic premise. Federal police power has grown to such an extent that, in a very real sense, persons are subjects of two sovereigns— federal and state — whose interests overlap. Arguably, the Act of 1857 might be construed as an attempt by Congress to legislate to' the full extent of its power — or possibly to the full extent of the need for federal legislation in this area — and as both the scope of federal power and the coverage of federal criminal legislation have grown, an interpretation of the language of this statute recognizing a comparable growth in its coverage would certainly not have been unreasonable.
Indeed, Congress itself has enlarged the coverage of § 211 to make it possible for “an insane resident of Texas,” for example, to be “brought and maintained here” in the district. See 24 U.S.C. §§ 211a, 212. And, as noted in the text, the number of state legislatures that have made the policy judgment that some type of commitment procedure should be expressly prescribed has grown to at least 49, and the 50th State, Tennessee, appears to be in the process of making the same judgment. See Prop. Tenn.Code of Crim.Pro. § 40-2321 (1973).
. For this reason, I think that the failure to give some instruction amounted to a defect “affecting substantial rights” constituting plain error under Rule 52(b), F.R.Crim.P.
. See Davis v. United Si ates, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499.
. The probability that the jury will make the assumption that a verdict of not guilty will result in an innocent but dangerous man going free must underlie the opinion of Chief Justice (then Circuit Judge) Burger in Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725, 728-729 (1957) (concurring opinion prepared jointly with Pretty-man, J.) That opinion maintains, contrary to general practice, that the jury should be advised about the practical consequences of returning a verdict of not guilty by reason of insanity. See A. Goldstein, The Insanity Defense, 143-44 (1967). In his opinion in Lyles, Judge Burger relied on Taylor v. United States, 95 U.S.App.D.C. 373, 222 F. 2d 398, 404 (1955), where the Court stated:
“The appellant says the judge told the jury, in effect, that if the appellant was acquitted he would go free. We think he did not convey that erroneous idea. But we think that when an accused person has pleaded insanity, counsel may and the judge should inform the jury that if he is acquitted by reason of insanity he will be presumed to be insane and may be confined in a ‘hospital for the insane’ as long as ‘the public safety and * * * [his] welfare’ require. Though thds fact has no theoretical hearing on the fury’s verdict it may have a practical hearing.” (Emphasis added and footnotes omitted.)
. Of course, the apparent hypocrisy could be obviated by rules which eliminate questions of intent or mental competence from the determination of an individual’s responsibility for his anti-social conduct, and postpone such issues to the sentencing or other dispositional process. See Judge Murrah’s thoughtful opinion in Wion v. United States, 325 F.2d 420, 428-430 (10th Cir. en banc 1963).
. A determination of mental incompetency after arrest and before trial in accordance with the provisions of §§ 4244, 4246 and 4248 may result in commitment running “until the sanity or mental competency of the person shall be restored. . . .” See 18 U.S.C. §§ 4247 and 4248.
. See 18 U.S.C. §§ 4245 and 4247.
. Speaking for the Court in Lynch v. Overliolser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211, Mr. Justice Harlan made the following comment on the “prior to the imposition of sentence” language used in the District of Columbia Code: “Since this inquiry may be undertaken at any time ‘prior to the imposition of sentence,’ it appears to be as available after the jury returns a verdict of not guilty by reason of insanity as before trial.” 369 U.S. at 719. The precise language *1089which lie there construed also appears in 18 U.S.C. § 4244. It is true that his reference to § 4244 in footnote 12 of his opinion seems to assume, as indicated by the title of § 4244, that that section relates only to the period after arrest and before trial; nevertheless, the construction of the critical words quoted in the text of his opinion would necessarily be applicable to the identical language used in the text of § 4244 notwithstanding the inference created by the title of that section.
. It is well established that, notwithstanding the tautology expressed in the Tenth Amendment, federal judges have the essential powers of common law judges. In Ex Parte Peterson, 253 U.S. 300, 312, 40 S.Ct. 543, 547, 64 L.Ed. 919, for example, Mr. Justice Brandéis observed: “Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties.” (The comment was admittedly made in a different context, but at least one commentator thought it relevant to the problem of mental competency of federal criminal defendants. See Cession, The Mentally 111 Offender in Federal Criminal Law and Administration, 53 Yale L.J. 684, 688 n. 17 (1944).) Consider also the following comment by Chief Justice Hughes: “Under the Federal Constitution the essential prerogatives of the trial judge as they were secured by the rules of the common law are maintained in the federal courts.” Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321.
. Such power appears to have been exercised upon grounds of danger to the community. Mandatory, as opposed to discretionary, commitment for any person acquitted on grounds of insanity apparently did require statutory authority. See 39 & 40 Geo. Ill, c. 94; 24 U.S.C. § 211.
. Instances of informal cooperation between the federal prosecutor and state authorities are reviewed in Senator Tydings’ article, A Federal Verdict of Not Guilty By Reason of Insanity and a Subsequent Commitment Procedure, 27 Md.L.Rev. 131, 133-135 (1967).
. The Second Circuit’s expression of confidence that “the several states will continue to step into the breach” may imply agreement with this premise. See United States v. Freeman, 357 F.2d 606, 625-626 (1966).
. In short, I do not accept the premise on which the analysis of federal authority to commit insane defendants is predicated in the note entitled Federal Commitment of Defendants Found Not Guilty By Reason of Insanity — Proposed Legislation, 52 Iowa L. Rev. 930 (1967). See especially the paragraph at 937-938.
. Consider the language of the first Mr. Justice Harlan in Davis v. United States, supra, n. 3:
“Strictly speaking, the burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence, or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial, and applies to every element necessary to constitute the crime. * * * [A defendant’s] guilt cannot be said to have been proved beyond a reasonable doubt — his will and his acts cannot be held to have joined in perpetrating the murder charged —if the jury, upon all the evidence, have a reasonable doubt whether he was legally capable of committing crime, or (which is the same thing) whether he wilfully, deliberately, unlawfully, and of malice aforethought took the life of the deceased. As the crime of murder involves sufficient capacity to distinguish between right and wrong, the legal interpretation of every verdict of guilty as charged is that the jury believed from all the evidence beyond a reasonable doubt that the accused was guilty, and was therefore responsible, criminally, for his acts. How then upon principle or consistently with humanity can a verdict of guilty be properly returned, if the jury entertain a reasonable doubt as to the existence of a fact which is essential to guilt, namely, the capacity in law of the accused to commit that crime ?
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“Thus, it is said, crimes of the most atrocious character often go unpunished, and the public safety is thereby endangered. But the possibility of such results must always attend any system devised to ascertain and punish crime, and ought not to induce the courts to depart from principles fundamental in criminal law, and the recognition and enforcement of which are demanded by every consideration of humanity and justice. No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them, by whomsoever adduced, is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.” 160 U.S. at 487-488, 493.
. The genesis of the enactment of § 24-301(d) in the District of Columbia in 1955 in response to the decision in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954), is described in Lynch v. Overholser, supra, 369 U.S. at 715-717, and also in Mr. Justice Clark’s dissent at 721-722, 729-730. It is significant that Congress, notwithstanding a consistent exercise of the courts’ preexisting discretionary power to order commitment, felt mandatory commitment was essential to avoid the risk that in a rare case a judge might exercise his discretion by not ordering confinement.
. Note the comment by Mr. Justice (then Circuit Judge) Blackmun in Pope v. United States, supra, 372 F.2d at 732, following his discussion of § 211: “We, too, hope that this gap, if it exists, in the ' federal system may soon be adequately remedied.” (Emphasis added.) This “gap” could be identified either as the absence of statutory authorization for mandatory commitment or the absence of a statute expressly establishing a procedure for discretionary commitment. In either event, since 49 State Legislatures have done so, Congress certainly should address the issue. Each time Congress enlarges the scope of federal criminal jurisdiction, it also enlarges the significance of the “gap” and increases the irony of enacting legislation, such as § 211, which merely protects the legislators’ immediate neighbors within the District of Columbia.
. Even the prosecutor implicitly expressed such doubt when the question of pretrial custody was under consideration. In its opposition to a motion for bail, the Government described the examination by Dr. Rubin, a defense psychiatrist, and quoted the following from Dr. Rubin’s report:
“Mr. Greene suffered from and still, though less so, suffers from a mental disease which substantially interfered with his capacity to conform his conduct to the dictates of the law . . . He had little or no control over his behavior prompted as it was by psychotic paranoid delusions.” R. 56.
The expert’s opinion was sufficiently reliable to serve the Government’s purpose to confine defendant but is, according to the Government, unreliable when determining guilt or innocence.