dissenting.
This dissent is necessitated by the mis-characterization of the panel opinion by both the majority and the dissenting opinion of Judges Rubin and Williams; by the mis characterization of Lyons’ contentions on appeal by both opinions; and because of the sincere belief that the Court is here choosing a particularly inopportune time to delve into the quagmire of the insanity defense.
The issue on appeal in the Lyons case was quite clear; it was not whether Lyons was indeed insane. The issue was simply whether Lyons should have been permitted to submit his insanity argument and defense to the jury. The jury, of course, was fully entitled to reject or accept his contentions. The panel concluded that Lyons should have been permitted to submit his argument and defense to the jury under existing precedent and I continue to believe that the existing precedent of this circuit requires such a result.
It is noted at the outset that Lyons’ proffer goes far beyond a mere allegation of iatrogenic drug addiction. The majority’s and Judge Rubin’s and Judge Williams’ characterization of Lyons’ contentions as alleging mere drug addiction is, in my judgment, inaccurate. An examination of Lyons’ proffer demonstrates that Lyons’ addiction became so extreme that he lost over forty pounds and suffered from drastic malnutrition. The proffer notes that “[h]is decalcified bones had become so brittle that during the course of [a] convulsion, he broke three [3] ribs, three [3] vertebrae, and his left hip was completely torn from the socket.” Moreover, Lyons offered to present two expert witnesses, indeed medical witnesses, that would testify that *254Lyons’ addiction had damaged his brain, both physiologically and psychologically.1
When Lyons’ proffer is viewed in its true form, it becomes clear that he was entitled to submit his insanity defense to the jury under existing precedent.2 The reasons for this conclusion were set forth in the panel opinion:
[Tjhis Court has held that involuntary drug addiction may constitute a “mental disease or defect” bearing on the defendant’s criminal responsibility. United States v. Bass, 490 F.2d 846 (5th Cir. 1974). In Bass, a case strikingly similar to the case at bar, this Court concluded that evidence of involuntary drug addiction could, and did in the particular circumstances of that case, constitute relevant evidence on the issue of the defendant’s sanity. In Bass, as in the instant case, the defendant was charged, inter alia, with obtaining narcotics by misrepresentation, deception, fraud, and subterfuge. More importantly, Bass and the case sub judice both dealt with defendants involuntarily addicted to the narcotics they illegally obtained. In Bass, the defendant had- become involuntarily addicted to Demerol as a result of medical treatment aimed at alleviating the defendant’s regional enteritis, an acutely painful disease of the lower gastrointestinal tract. Bass, 490 F.2d at 849.
In the instant case, the defendant’s proffer indicates that Lyons became involuntarily addicted to pain medication, including Demerol, as a result of medical treatment designed to alleviate the barrage of illnesses suffered by Lyons during the three-year period prior to the commission of the charged offenses. No meaningful distinction between Bass and the case sub judice can be discerned.3 In both cases, the defendant embarked upon a course of narcotics use not by choice, but pursuant to doctor’s orders— orders presumably aimed at treating an admittedly painful physical disorder. Additionally, in both cases, the defendant offered expert testimony, which, if believed by the jury, would establish that the defendant lacked substantial capacity to conform his conduct to the requirements of applicable law due to his involuntary drug addition.
United States v. Lyons, 704 F.2d 743, 747 (5th Cir.1983). For these reasons, the reasons which are more fully explained in the panel opinion, it is my belief that Lyons should be permitted to present his insanity defense to the jury under the law of this Circuit.
Having explained why Lyons should have been permitted to submit his case to the jury under the existing precedent of this Circuit, I pause to note my agreement with many of the concerns stated by Judge *255Gee concerning the existing insanity defense. Even though the present insanity test may be too broad, even though the abolition of the volitional prong might more properly limit the insanity inquiry, and even though this Court’s action might align the insanity defense of this Circuit with the current views of the psychiatric school of thought, the timing of this action seems particularly inappropriate. In light of the very real possibility of congressional action on this issue and in view of the undisputed preference for the will of the public to be expressed by that body, it seems particularly inappropriate for this Court to take this action by en banc intervention at this time.
. Judges Rubin and Williams concede that Lyons’ proffer alleging physiological and psychological brain damage could "conceivably” be read to suggest the existence of a disease or defect. It is submitted that is precisely what the proffer states.
. It should be remembered that the law of this Circuit requires a defendant only to produce slight evidence of insanity to put the defendant's mental condition at issue. See, Blake v. United States, 407 F.2d 908, 911 (5th Cir. 1969) (en banc). The en banc Court stated in Blake: "It follows that if there is some evidence supporting the claim of insanity ... the issue must be submitted to the jury, [citations omitted] This means only slight evidence." Id.
. It is suggested that Judges Rubin’s and Williams' attempt to distinguish Bass from this case is unpersuasive. Attempting to glean distinguishing factors in Bass, Judges Rubin’s and Williams’ dissent states: "The defendant suffered from an acutely painful and incurable disease. Around the time of the indictment, Bass had suffered several fevers that, in the opinion of one doctor, had inflicted temporary brain damage." In the instant case, Lyons’ proffer demonstrates that during the period of his iatrogenic addiction he suffered from and was treated for the following painful disorders: (1) stomach ulcer; (2) internal hemorrhoids; (3) perforated appendix; (4) gunshot wound; and (5) deviated septum. Additionally, Lyons' proffer indicates that he suffered high fevers. Lyons alleged that these facts could be attested to by his wife, employees, his original treating physician, as well as by the hospital and prescription records. Certainly this, in conjunction with the expert testimony indicating brain damage, constitutes slight evidence of a mental disease or defect. Lyons should have been permitted to submit his case to a properly charged jury.