                         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
