(dissenting):
Recently the Supreme Court in a per curiam opinion chastised another circuit for “having ignored, consciously or unconsciously, the hierarchy of the federal court system created by the Constitution and the Congress,” reminding us that “a precedent of [the Supreme] Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.” Hutto v. Davis, - U.S. -, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982). Today my brethren go even further than Nelson v. Scully, 672 F.2d 266 (2d Cir. 1982), cert. denied, - U.S. -, 102 S.Ct. 2301, 73 L.Ed.2d 1304 (1982), or Mancuso v. Harris, 677 F.2d 206 (2d Cir. 1982), to scuttle the Court’s unanimous decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Because, “consciously or unconsciously,” the majority ignores the “hierarchy of the federal court system,” I dissent.
Judge Lumbard’s opinion says, inter alia, that “no language in the [Sandstrom ] charge indicated that the inference of intent was permissive ... . ” On the contrary, the Supreme Court said in Sandstrom, “We do not reject the possibility that some jurors may have interpreted the challenged instruction as permissive, or, if mandatory, as requiring only that the defendant come forward with ‘some’ evidence in rebuttal.” 442 U.S. at 519, 99 S.Ct. at 2456. As here, there were presumption-of-innocenee and proof-beyond-a-reasonable-doubt instructions in Sandstrom, id. at 518-19 n.7, 99 S.Ct. at 2456-57 n.7, that were arguably permissive and qualifying, but the Court *703held that those instructions were “not rhetorically inconsistent with a conclusive or burden-shifting presumption,” id. What Sandstrom condemned was that “a reasonable juror could have given the presumption conclusive or persuasion-shifting effect . ... ” Id. at 519, 99 S.Ct. at 2456 (emphasis added). The same is true of the instruction here; it must be similarly condemned.
The trial court began its general charge on intent by declaring that “[a] person is presumed to intend the natural and probable consequences of his act.” Reasonable jurors could have interpreted this charge, like the charge in Sandstrom, as either a conclusive presumption or a burden-shifting presumption on the issue of intent. Interpreting the charge as a conclusive presumption, as Judge Ward said, “once the jury found that serious physical injury to Guy Keyes was a natural and probable consequence of an act performed by Rivera, the jury [would have been] required to find that Rivera had the requisite intent to cause Guy Keyes serious physical injury.” Rivera v. Coombe, 534 F.Supp. 980, 990 (S.D.N.Y.1982) (emphasis in original). Interpreting the charge as a rebuttable presumption, the jurors would have believed that petitioner was obligated to persuade them that he lacked intent. Either interpretation would have deprived petitioner of due process by shifting from the State the burden of proving all elements of the crime beyond a reasonable doubt. Sandstrom, 442 U.S. at 519, 524, 99 S.Ct. at 2456, 2459.
Our own circuit has condemned such charges. See Washington v. Harris, 650 F.2d 447, 453 (2d Cir. 1981) (charge that “a person intends ... the necessary and natural consequences of any act he performs” was “constitutionally defective”). So have the First, United States v. Winter, 663 F.2d 1120, 1144 (1st Cir. 1981) (instruction not cured by general instructions putting burden on prosecution to prove each element of the crime), the Fifth, Tyler v. Phelps, 643 F.2d 1095, 1098-99 (5th Cir. 1981), and the Eighth Circuits, Dietz v. Solem, 640 F.2d 126, 131 (8th Cir. 1981), all of whose opinions show more appropriate regard for the Court’s holding and reasoning in Sandstrom than does the majority here.
Sandstrom, in a footnote, leaves the door ajar for instructions that are “rhetorically inconsistent” with the presumption-of-intent instruction, 442 U.S. at 518-19 n.7, 99 S.Ct. at 2456-57. To be sure, in Nelson v. Scully, as persuasively interpreted by Judge Ward, 534 F.Supp. at 993-94 n.5, the panel majority found rhetorical inconsistency in the judge’s “hammering” at the jury with permissive language. But even Nelson’s debatable interpretation of Sandstrom can not readily be applied here. The remainder of the charge here, instead of making it clear that the presumption language merely described an inference that the jury was permitted to draw from the commission of an act,1 contained additional language that reasonable jurors could have interpreted as reinforcing the conclusive or burden-shift*704ing presumption.2 Since the judge did not nail down for the jurors the correct rule of law, but rather hammered in both permissive and mandatory concepts, some jurors could have based their verdicts on the impermissible rule. “[T]he fact that a reasonable juror could have given the presumption conclusive or persuasion-shifting effect means that we cannot discount the possibility that [Rivera’s] jurors actually did proceed upon one or the other of these latter interpretations.” Sandstrom, 442 U.S. at 519, 99 S.Ct. at 2457. It is the possibility, Sandstrom emphasizes, that is of concern; probability that the jury was misled is not required.
Contrary to the point made in Judge Lumbard’s opinion, the jury’s acquittal of Rivera on the murder count in no way shows that the erroneous instruction was harmless. The jury could have found that the natural and probable consequence of Rivera’s act was to cause serious physical injury, but not to kill. Applying the mandatory presumption, the jury therefore could have found that Rivera had the requisite intent for a first-degree manslaughter conviction, even though neither the presumption nor the other evidence convinced the jury that he acted with the intent to kill.
I would in short affirm Judge Ward, whose carefully crafted opinion is a model of proper deference to the “hierarchy of the federal court system.” I regret that the majority opinion here rejects that opinion and goes its own way, upholding an instruction that, as a whole, is more egregious than the one condemned in Sandstrom itself.
. See Mancuso v. Harris, 677 F.2d 206, 211 (2d Cir. 1982); but see United States v. Robinson, 545 F.2d 301 (2d Cir. 1976). The charge upheld in Mancuso reads:
Everyone is presumed to intend the natural consequences of his act and unless the act is done under circumstances or conditions that might preclude the existence of such intent, you, the jury, have to find, have a right to find the requisite intent from the proven actions of an individual.
At 210. But in Robinson, decided before Sandstrom, Judge Meskill said for a unanimous panel:
Thus, the “natural and probable consequences” charge, particularly when, as here, it contains the phrase “unless the contrary appears from the evidence,” is a burden-shifting charge which has the potential for misleading the jury with respect to the requirement that the government must prove every element of an offense beyond a reasonable doubt. United States v. Barash, 365 F.2d 395, 402-03 (2d Cir. 1966) (Friendly, J.); see United States v. Erb, 543 F.2d 438, 447 (2d Cir. 1976).
545 F.2d at 306.
Arguably, Mancuso is in accord with Washington v. Harris, 650 F.2d 447, 453 (2d Cir. 1981) (“you may infer ... unless the act was done under circumstances to preclude the existence of such intent”) on this point. It is, of course, the inconsistency I see in this court’s decisions as well as the failure of some of them to follow Sandstrom that precipitated my dissent from the denial of rehearing en banc in Langone v. Smith, 682 F.2d 287 (2d Cir. 1982).
. The first sentence of the second paragraph of the charge in this case is within Mancuso, see note 1 supra, although, to me, contrary to Robinson. Mancuso is not controlling, however, because there the only challenged language was the phrase quoted in note 1. Here the lead-in sentence to the intent charge contained Sandstrom -condemned mandatory language, and language later in the second paragraph, by stressing the importance of “the act and the physical manifestations of the intent exhibited by the results produced as the safest if not the only proof of the fact to be ascertained,” was consistent with and reinforced the mandatory presumption language.