United States v. Diekhoff, Michael J. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1432
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL J. DIEKHOFF,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 05-CR-10003—Michael M. Mihm, Judge.
____________
ARGUED FEBRUARY 28, 2008—DECIDED JULY 24, 2008
____________
Before FLAUM, MANION, and EVANS, Circuit Judges.
FLAUM, Circuit Judge. Defendant-appellant Michael
Diekhoff appeals his convictions below for kidnapping
in violation of 18 U.S.C. § 1201(a), using a firearm during
a crime of violence in violation of 18 U.S.C. § 924(c), and
being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g). Following his convictions, the judge
sentenced him to life imprisonment as to the first count
with concurrent sentences for the remaining two. The
only real issue below was Diekhoff’s sanity, and, here
on appeal, Diekhoff appeals the district court’s handling
of this defense on a number of grounds. Finding no error,
we affirm.
2 No. 07-1432
I. Background
In 2004, Diekhoff lived in Westmont, Indiana but
worked for a Bloomington, Illinois trucking company as
an over-the-road trucker. There, he met and befriended
one of the company’s dispatchers, Lori Wagner. Although
Wagner and Diekhoff were never romantic, the two
were friendly—meeting for dinner every month and,
after Diekhoff left the company, visiting each other periodi-
cally. In August 2004, Wagner began dating the man
who would become her future husband. Wagner and
Diekhoff still spoke on the phone, but their monthly
visits became a thing of the past. In mid-October 2004,
Diekhoff called Wagner to tell her that, in light of her
emerging romance, he would not be calling her any more.
Then strange things began happening to Wagner. On
October 28, 2004, someone set her house on fire, causing
a good deal of property damage and killing two of her
cats. In early November, someone dumped yellow paint
on her car, and a woman—whom Diekhoff had paid—
called that night asking if she had seen the damage to her
car. This anonymous woman would call again a few
weeks later, reading a script that Diekhoff had given her.
She told Wagner to “leave the country” and said that the
property damage to her car and home would pale in
comparison to what would happen to her children. Police
tracked the phone calls to Indiana. And when Wagner
told the police that Diekhoff lived there, the police paid
him a visit. Following his interview, Diekhoff called
Wagner to tell her that two “FBI agents” had visited him
to investigate her case. Then the phone calls stopped; three
weeks of police surveillance of Wagner’s work place did
not reveal any suspicious activity.
Wagner would not hear from Diekhoff again until the
morning of January 6, 2005, when he approached her in
No. 07-1432 3
her work parking lot wearing a mask and sporting a
shotgun. Diekhoff pointed the gun at her and hustled her
into a minivan he had rented. When Wagner fought back,
Diekhoff threatened to shoot her and dragged her into the
minivan by her hair. There, the struggle continued until
Diekhoff pointed the gun to Wagner’s head and told her
he “had no problem blowing her brains out right here
and now.” Subdued, Wagner was handcuffed to a chain
around the driver’s seat, and the two drove west.
Diekhoff was clearly agitated. His mother, with whom
Diekhoff lived, would testify at trial that prior to the
kidnapping he had stopped working and stayed by him-
self in his bedroom for hours on end. She described him
as nervous and paranoid; he lost a good deal of weight
and had taken to talking to himself. Driving west in the
minivan, Wagner got a sense of Diekhoff’s problems and
learned the story behind her two months of harassment.
He said that he had started the fire at her house because
he wanted to hurt her, and he had paid a woman $100
to make the harassing phone calls. Diekhoff had also
spied on her and her boyfriend on one occasion, watching
them in her home. He told Wagner that he would have
killed them both if he had a gun at the time.
Diekhoff also said that he still wanted to hurt Wagner a
few times during the drive. At one point, Diekhoff gave
Wagner forty-five minutes “to convince him that [she]
was human, that [she] deserved to live.” And at another,
he told her that he was going to kill her and “put [her] in
the tall weeds” for apparently lying to him. After passing
from Illinois to Iowa, Diekhoff stopped the minivan and
told Wagner to call someone to say that she was fine and
was on her way to Colorado. After Wagner fed this story
to her boss at the trucking company, Diekhoff called his
4 No. 07-1432
mother in Indiana. At this point, the police were aware
of the kidnapping, and they had found Diekhoff’s suicide
note after searching his room. Diekhoff told his mother
that he was going to Colorado with Wagner; in light of
the note, his mother told him he should just let Wagner
go and come home.
But Diekhoff kept driving—from Iowa through to
South Dakota. Over the next two days, Wagner attempted
to placate Diekhoff by agreeing with everything he said.
The tactic eventually worked. Diekhoff let Wagner call
her daughter at one point. And eventually he grew to trust
her, so much so that when the two stopped at a gas sta-
tion in South Dakota Diekhoff left Wagner alone in the
car. Seizing the opportunity, she drove away and called
the police, who soon captured Diekhoff. A search of the
minivan revealed water, boots, binoculars, camouflage
pants, and a clutch of incriminating equipment: the
loaded shotgun, shotgun shells, duct tape, and packaging
for the face mask.
A three-count indictment and Diekhoff’s arraignment
followed. At his arraignment, the district court ordered a
psychological exam to determine whether Diekhoff was
competent to stand trial. Following the examination, the
district court found Diekhoff to be incompetent and
ordered him confined in a treatment facility until his
competency was restored. Following his treatment, the
district court eventually concluded that Diekhoff was
competent and, when Diekhoff pled not guilty by reason of
insanity, set the case for trial.
Prior to trial, the government informed Diekhoff that
it would seek to admit evidence related to two prior
felony convictions for attempted manslaughter and
confinement. Both stemmed from incidents in 1987 involv-
No. 07-1432 5
ing Diekhoff’s girlfriend at the time, Tina Hoeing. Hoeing
and Diekhoff had dated briefly from late 1986 until the
spring of 1987, when Hoeing broke things off. Soon after-
wards, the police arrested Diekhoff when he fired a gun
at Hoeing’s head. Then, when he was out on bond, he
broke into Hoeing’s home. He forced Hoeing and her
fifteen-year-old brother out at gunpoint, making the
latter drive them away in Hoeing’s car. After a brief stop
at his own car—where he grabbed a duffel bag filled
with chains, duct tape, cash, and a handgun—he left
Hoeing’s brother behind and took Hoeing to an Indianapo-
lis hotel, handcuffed and covered in a tarp. Diekhoff
held her captive until the next night when the police
found and freed her. The government soon charged him
with attempted murder—for firing the gun at Hoeing’s
head—and confinement—for kidnapping Hoeing and her
brother. A jury would find him guilty but mentally insane
as to the attempted murder charge, and a separate jury
would find him guilty of the confinement charge. For all
this, Diekhoff served time in prison, eventually earning
his release in 2001. After the parties briefed the issue, the
district court allowed the government to present evidence
related to the confinement offense, but not the attempted
murder offense. The court said that it was a “close call,”
but added that the evidence was “relevant and probative
on the matter of the defendant’s state of mind, his intent.”
The court went on to reason that “under these circum-
stances which involve a claim of insanity at the time of
the conduct,” it did not consider the prejudice to be
“unfair” and held that the evidence would be admissible.
At trial, the only issue was Diekhoff’s sanity. The gov-
ernment put on twelve witnesses in its case-in-chief, in-
cluding Wagner, the police officers involved in the
6 No. 07-1432
offense, as well as Hoeing and two officers involved in
her case. In his defense, Diekhoff presented the testimony
of his mother and that of Dr. Robert Chapman. The latter
would testify that Diekhoff suffered from “major depres-
sion, recurrent type,” which causes “hopelessness, help-
lessness, and despair.” In his opinion, this defect would
cause “impaired judgment,” though he conceded on cross-
examination that this did not necessarily mean Diekhoff
could not understand the wrongfulness of his actions.
To rebut Dr. Chapman’s testimony, the government
presented the testimony of two doctors who had exam-
ined Diekhoff after he was declared competent but prior
to trial. The first, Dr. Ralph Newman, was a psychiatrist
who agreed that Diekhoff suffered from a “major depres-
sive disorder.” But, in his opinion, this disorder would
have “no correlation [with] unlawful behavior.” The
second, Dr. Adeirdre Stribling, was a staff psychologist
at the Bureau of Prisons who had interviewed Diekhoff
prior to trial. Dr. Stribling also agreed that Diekhoff
suffered from a “major depressive disorder” and a “per-
sonality disorder.” In her opinion, Diekhoff suffered from
the latter but not the former during the kidnapping:
Someone with a “major depressive disorder” would have
an impaired “ability to function on a day-to-day basis” and
could not “plan or execute higher level tasks.” The gov-
ernment then asked Dr. Stribling about the specifics of
her conversations with Diekhoff concerning the kidnap-
ping. She recalled his statement from her notes, over
Diekhoff’s objection, “When I kidnapped the girl, I
needed help. I knew it was wrong. It was also wrong for
me to want to kill myself and I’m sorry.”
On cross-examination, Diekhoff’s counsel asked Dr.
Stribling to read the notes from her interview with
No. 07-1432 7
Diekhoff in their entirety. In response, she read a state-
ment Diekhoff had given her:
When they say I kidnapped the girl, I actually didn’t
know if I could make it another day. I just felt like
I didn’t want to go on. I just wanted to visit three
states before I killed myself. I just brought her along
for the ride. I wanted to make the whole trip, drive to
the end, drop her off at home, then shoot myself.
I knew it was wrong to take her with me like that, so
I tried to let her use the phone along the way during
the trip. It was more problems than that because by
then it was a kidnapping. That was wrong. But it
was also wrong for me to want to kill myself. Now
I’m on the medication and it is important that I live.
I don’t know how long I will be in prison. They could
just give me time served. I was wrong and I’m sorry.
The parties would come to dispute the third- and second-
to-last sentences of this statement. When the time came to
tender jury instructions, Diekhoff offered one that read:
If the Defendant is found Not Guilty By Reason of
Insanity, The Court will commit the Defendant to a
suitable facility until he is eligible for release under the
law.
He claimed that this instruction was necessary to counter-
act Dr. Stribling’s testimony recounting his statement—
specifically the statements that he “didn’t know how
long [he] will be in prison” and that “They could just
give [him] time served.” Diekhoff’s counsel thought this
was misleading; the jury could convict despite a belief
that he was insane simply because it did not want to see
Diekhoff walking the streets. But the judge disagreed,
stating first that the statement was of the defendant’s own
8 No. 07-1432
doing and, more importantly, that there was no “inaccurate
or misleading information of the type that the instruc-
tion contemplates.” The jury convicted Diekhoff on all
three counts, and the judge sentenced him to life for the
kidnapping, a ten-year concurrent sentence for the use of
a firearm, and a seven-year concurrent term for the
felon-in-possession charge. This appeal followed.
II. Discussion
Diekhoff raises three evidentiary issues on appeal related
to the admission of testimony regarding his prior of-
fenses, the content of Dr. Stribling’s testimony, and the
district court’s denial of a requested jury instruction. The
following sections discuss each in turn.
A. Admission of Rule 404(b) Evidence
Diekhoff first challenges the district court’s decision
allowing the government to present evidence of his previ-
ous kidnapping conviction, arguing that it was imper-
missible propensity evidence. Rule 404(b) provides that
“[e]vidence of other crimes, wrongs, or acts is not ad-
missible to prove the character of a person in order to
show action in conformity therewith.” FED. R. EVID. 404(b).
This Court has set up a four-part test for examining
potential propensity evidence, which combines the pro-
scription laid out in Rule 404(b) with the more general
foundation, relevancy, and prejudice requirements
defined elsewhere. See FED. R. EVID. 402, 403; see also United
States v. Shackleford, 738 F.2d 776, 779 (7th Cir. 1984),
overruled in part on other grounds by Huddleston v. United
States, 485 U.S. 681 (1988). Thus, courts are to examine
whether
No. 07-1432 9
(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propensity
to commit the crime charged; (2) the evidence shows
that the other act is similar enough and close enough
in time to be relevant to the matter in issue; (3) the
evidence is sufficient to support a jury finding that
the defendant committed the similar act; and (4) the
evidence has probative value that is not substan-
tially outweighed by the danger of unfair prejudice.
United States v. Simpson, 479 F.3d 492, 498 (7th Cir. 2007).
Diekhoff challenges the district court’s decision to admit
the evidence on the basis of the first and fourth prong,
a decision we review for an abuse of discretion. United
States v. Thomas, 321 F.3d 627, 630-31 (7th Cir. 2003).
Diekhoff’s first claim is that the admission of the testi-
mony regarding his previous kidnapping and burglary
convictions did not “establish[ ] a matter in issue other
than [his] propensity to commit the crime charged.” Be-
low, the district court admitted the evidence under the
theory that it was relevant to Diekhoff’s “state of mind, his
intent,” not his propensity to have committed the crime.
Diekhoff raises two broad challenges to these theories of
admissibility. First, Diekhoff claims that the government
never really pinpointed a theory of relevancy below and,
in his estimation, it was reversible error for the district
court not to require that it do so. This argument has little
support in the record. In September 2006, the parties
discussed the admissibility of Diekhoff’s prior crimes.
During that hearing, the government pressed for the
admission of both the prior attempted manslaughter and
kidnapping charges under the theory that it proved “intent,
knowledge, plan.” The court then denied the request as
to the admission of the attempted manslaughter offense
10 No. 07-1432
and ordered supplemental briefing as to the kidnapping
charge. In its brief, the government argued that the evi-
dence was still relevant despite Diekhoff’s insanity plea
to show that he appreciated the wrongfulness of his
actions, the central issue at trial. And the court then
admitted the evidence to bear on Diekhoff’s “state of
mind [and] his intent.” In sum, there is no basis for con-
cluding, as Diekhoff urges us to do, that the government
was reciting by rote the admissible purposes listed in
Rule 404(b) without tying that theory to the case. On the
contrary, both the district court and the government
were careful to examine the admissibility of this evidence
in light of Diekhoff’s insanity defense.
Diekhoff’s principal argument, however, is that the
evidence showed nothing but his propensity for crim-
inal behavior. He submits that his intent and state of mind
were not at issue because he stipulated to having kid-
napped Wagner. And, he claims, his intent had little
relevance in establishing whether he could tell the differ-
ence between right and wrong. We disagree.
The only issue in this case was Diekhoff’s state of mind:
whether he appreciated the wrongfulness of kidnapping
Wagner. And the evidence presented by the govern-
ment bore directly on this issue. Specifically, it tended to
show that Diekhoff was aware of the wrongfulness of his
behavior. See United States v. Ewing, 494 F.3d 607, 616 (7th
Cir. 2007) (“[A] defendant’s knowledge that his conduct
was illegal may be taken into account when determining
his ability to appreciate its wrongfulness.”); see also United
States v. Ruster, 712 F.2d 409, 412 (9th Cir. 1983). The fact
that Diekhoff had committed a similar kidnapping
offense in the past made it more likely that he understood
that the activity underlying the charged offense was
No. 07-1432 11
wrong as well. See United States v. Bradshaw, 935 F.2d 295,
301 (D.C. Cir. 1991); FED. R. EVID. 401 (defining relevance).
In addition, the prior conviction showed that he was
mentally capable of planning a complicated criminal act.
United States v. Brown, 785 F.2d 587, 591 (7th Cir. 1986).
Diekhoff’s ability to “organize and orchestrate,” id., was
directly relevant to Diekhoff’s alleged “mental disease
or defect.” And the fact that he had executed a com-
plicated kidnapping before made it more probable that
he had an ability to plan—an “awareness of the world
surrounding him,” id.—that belied insanity. He was free
to argue that his mental state had deteriorated from the
date of the last offense. But this counter-argument does
not preclude admissibility.
Lastly, Diekhoff argues that the probative value of
this evidence was “substantially outweighed by the
danger of unfair prejudice.” We review the district court’s
balancing of these factors below deferentially, asking
only whether it abused its discretion. United States v.
Bramlet, 820 F.2d 851, 857 (7th Cir. 1987). And because the
court did not, we agree with its conclusion. The probity
of his previous offense dovetails with the theories of
relevance just discussed; “a prior criminal record for
similar acts is highly relevant to the basis for and the
reliability of witnesses’ testimony about the defendant’s
appreciation of the unacceptability of his conduct.”
Bradshaw, 935 F.2d at 302; Ruster, 712 F.2d at 412. And
although the evidence was certainly prejudicial, it was not
unfairly so. Propensity evidence poses the risk of unfair
prejudice when it will likely “lure the factfinder into
declaring guilt on a ground different from proof specific to
the offense charged.” United States v. Coleman, 179 F.3d
1056, 1062 (7th Cir. 1999). The danger of unfair prejudice
12 No. 07-1432
is lessened somewhat in a case where the only issue is
the defendant’s sanity. The act itself is uncontested. So it
is unlikely that the jury would convict solely based on a
desire to put away a dangerous person regardless of his
actual involvement in the crime charged. More impor-
tantly, however, the prejudice from a showing of prior
criminality would not likely interfere with the jury’s
assessment of the proof in the case before it. The question
is whether the defendant knew right from wrong. And
the evidence of the defendant’s prior criminal acts is not
likely to unfairly tilt the jury towards a conclusion that
he did. The evidence here tended to show that Diekhoff
had the capacity to plan complicated criminal acts and
knew that his actions were wrong. But prior criminal acts
could just as easily show the defendant’s insanity.
Bradshaw, 935 F.2d at 302 (“[T]here is the possibility that
an extensive criminal record will prove prejudicial to the
government by permitting the inference that the defend-
ant is insane either because he cannot appreciate the
nature of his acts or because he continues to commit the
same crime for which he has consistently been punished
in the same easily-detectable way.”). In short, the prej-
udice when only the defendant’s sanity is at issue does
not cut unfairly in the direction of sanity. Thus, given
the high probative value and the low risk of prejudice,
the district court did not abuse its discretion in ad-
mitting the evidence.
B. Dr. Stribling’s Testimony
Diekhoff also argues that the district court erred in
allowing Dr. Stribling to testify as to certain parts of her
conversations with him. In the course of her testimony,
the government asked Dr. Stribling—testifying as an
No. 07-1432 13
expert—to “tell us what [Diekhoff] told you the best that
you can recall.” Dr. Stribling’s response was that
Diekhoff had said “When I kidnapped the girl, I needed
help. I knew it was wrong. It was also wrong for me to
want to kill myself and I’m sorry.” Diekhoff claims that
this testimony violated Federal Rule of Evidence 704(b)
because it constituted expert opinion as to whether he
was sane. That rule states
No expert witness testifying with respect to the mental
state or condition of a defendant in a criminal case
may state an opinion or inference as to whether the
defendant did or did not have the mental state or
condition constituting an element of the crime
charged or of a defense thereto. Such ultimate issues
are matters for the trier of fact alone.
FED. R. EVID. 704(b). The “mental state or condition”
offered as a “defense” to the “crime charged” was
Diekhoff’s sanity. And deciding whether Diekhoff was
sane involved examining whether, “as a result of a
severe mental disease or defect, [he] was unable to ap-
preciate the nature and quality or the wrongfulness of his
acts.” 18 U.S.C. § 17(a). Thus, Diekhoff argues, when Dr.
Stribling passed along his statement that he “knew [the
kidnapping] was wrong,” this constituted an “expert
witness . . . stat[ing] an opinion or inference as to
whether” he was sane at the time, violating Federal Rule
of Evidence 704(b). We do not accept this argument.
We are careful not to flyspeck the district court’s exer-
cise of its discretion in admitting evidence and so we
“will only overturn such rulings for a clear abuse of that
discretion.” United States v. Reno, 992 F.2d 739, 742 (7th
Cir. 1993). When a psychiatrist testifies as to her assess-
ment of the defendant’s sanity, she must toe the line
14 No. 07-1432
between providing insight into the defendant’s mental
state and actually indicating whether she thinks the
defendant is insane. This is because “[t]he purpose of
Rule 704(b) is to have jurors decide whether the defendant
was sane or not without being told what conclusion an
expert might draw.” United States v. West, 962 F.3d 1243,
1247 (7th Cir. 1992). So the expert can set out her “[m]edical
and psychological knowledge” regarding the “mental
disease or defect” that may affect the defendant because
this information “help[s] the jury understand mental
illness and its symptoms and effects.” Reno, 992 F.2d at
742; United States v. Brown, 32 F.3d 236, 239 (7th Cir. 1994);
see also FED. R. EVID. 702. But she cannot say or give an
obvious inference that she thinks that the mental illness
clouded the defendant’s ability to distinguish right from
wrong. West, 962 F.2d at 1246. This kind of testimony
would involve a legal conclusion (or more accurately a fact-
law conclusion), and experts cannot make those.
The issue here is whether Dr. Stribling “state[d] an
opinion or inference” about Diekhoff’s mental state at the
time of the kidnapping. At the outset, it is clear that
Dr. Stribling was not “stat[ing] an opinion” during the
disputed portions of her testimony. Instead, she was
relaying Diekhoff’s statement to her about the crime. And
these facts included an admission that he knew what he
was doing was wrong. Although this observation was
probative of the ultimate issue, it did not result from
Dr. Stribling’s expertise or the application of her technical
knowledge to the facts of the case. United States v. Romero,
189 F.3d 576, 586 (7th Cir. 1999) (“His testimony did not
amount to a statement of his belief about what
specifically was going through [the defendant’s]
mind . . . .”). It was thus not her “opinion.”
No. 07-1432 15
Diekhoff argues next that Dr. Stribling’s statement was
sufficient to raise an “inference” that he knew right from
wrong. This is certainly the case. A sane person would
say that he knew right from wrong, and Dr. Stribling
testified that Diekhoff had said as much. But this is not
the kind of “inference” that Rule 704(b) prohibits. An
expert’s testimony frequently gives rise to “inferences” that
bear on the ultimate issue. Otherwise, it is doubtful that
the expert’s testimony would be helpful to the jury.
United States v. Foster, 939 F.2d 445, 454 (7th Cir. 1991). And
an expert can even “suggest[ ] . . . inferences that em-
brace an ultimate issue.” Brown, 7 F.3d at 651. But to fall
within Rule 704(b)’s prohibition, the testimony must give
rise to an obvious “inference” regarding the expert’s
“opinion” as to the ultimate issue, not an “inference” with
respect to the defendant’s “mental state.” That is, it must
be a round-about effort by the expert to impermissibly
express her “opinion.”
Here, Dr. Stribling testified: Diekhoff said “I knew it
was wrong.” There was no embellishment to this state-
ment indicating whether Dr. Stribling thought this
showed sanity or insanity. Although one can infer that
this is the statement of a sane person, such an inference
stems from a general understanding about how the
world works—not Dr. Stribling’s expertise or the fact that
one could clearly infer her opinion as to Diekhoff’s
sanity from this statement. Finally, although Diekhoff’s
statement to Dr. Stribling was certainly prejudicial, it was
not unduly so. FED. R. EVID. 403. It is difficult to imagine
a more probative statement of a defendant’s sanity than
his own admission that he “knew [committing the
crime] was wrong.” See Ewing, 494 F.3d at 616 (“[C]ertain
evidence in the record indicating the defendant knew
16 No. 07-1432
his conduct was illegal was properly considered on the
issue of whether he was able to appreciate its wrong-
fulness.”). And the prejudice from this statement was not
unfair because it would not have led the jury to con-
clude that he was sane for an illegitimate reason. Accord-
ingly, the district court did not abuse its discretion in
allowing the testimony.
C. Jury Instructions
Finally, Diekhoff challenges the district court’s denial
of his requested jury instruction regarding the conse-
quences should the jury find him guilty but insane. That
instruction would have told the jury that “The Court
will commit the Defendant to a suitable facility until he
is eligible for release under the law.” Here, on appeal,
Diekhoff repeats the claims that he made below and that
the district court rejected. Specifically, he claims that
Dr. Stribling’s testimony as to Diekhoff’s opinion re-
garding the penological consequences of his actions—“I
don’t know how long I will be in prison” and “They
could just give me time served”—prejudiced him. In his
estimation, a jury could have mistakenly inferred from
this statement that he would go free if they found him
insane. Taken to its logical conclusion, this inference
could have shaded the jury’s assessment of his insanity
claim; better to keep an insane person in custody than to
encounter him on the streets if he would be set free after
trial.
We review de novo a district court’s decision to allow
or deny a requested jury instruction. United States v.
Waagner, 319 F.3d 962, 966 (7th Cir. 2003). The requested
jury instruction Diekhoff gave below is a restatement of
No. 07-1432 17
18 U.S.C. § 4243, which provides that those found to be
insane “shall be committed to a suitable facility until such
time as he is eligible for release.” As a general matter,
“juries are not to consider the consequences of their
verdicts,” like the kind of facility that will house the
defendant following trial. Shannon v. United States, 512
U.S. 573, 579 (7th Cir. 1994). The jury’s finding of facts
and application of those facts to the law just do not re-
quire it to ponder what the ultimate sentence will be. Id.But this general rule has an exception where there is a
danger that the jury has been misled regarding the con-
sequences of its verdict. Thus, if “a witness or prosecu-
tor states in the presence of the jury that a particular
defendant would ‘go free’ if found [insane] it may be
necessary for the district court to intervene with an in-
struction to counter such a misstatement.” Id. at 587.
Righting the course for a misled jury is a fact-bound
endeavor, and, accordingly, “[t]he appropriate response . . .
will vary as is necessary to remedy the specific misstate-
ment or error.” Id.Here, the statement read by Dr. Stribling came during
her cross-examination by Diekhoff’s lawyer, nestled in
the middle of a longer statement concerning the crime
itself. The issue is whether this statement was sufficient
to mislead the jury. Three considerations convince us
that it was not. The first is the person making the state-
ment. This was not the case of a prosecutor telling the
jurors that a defendant would “go laughing out that door”
if found insane. Cf. Aliwoli v. Carter, 225 F.3d 826, 830 (7th
Cir. 2000). Nor did the witness herself suggest that, in
her opinion, the defendant would get a windfall from a
finding of insanity. Shannon, 512 U.S. at 587. Instead, the
witness read her notes recounting a statement made by
18 No. 07-1432
the defendant regarding potential punishments, which
included getting “time served.” And she said this only
after the defendant’s attorney asked her to read notes
containing the statement. A jury would not connect the
defendant’s statement to a psychiatrist to its role in the
trial itself. Second, the statement did not say anything
suggesting that a finding of insanity would result in
“time served.” When read in context, Diekhoff was
opining about the possible legal effect of his actions, not
the jury’s decision regarding his sanity. Finally, the state-
ment was simply too indirect to mislead, buried among
the witness’s notes and Diekhoff’s discussion of the
crime. The jury saw the haystack, not the needle Diekhoff
claims was buried in there. For these reasons, the dis-
trict court was right to deny the instruction, and we thus
affirm.
III. Conclusion
For the foregoing reasons, we AFFIRM Diekhoff’s con-
victions and sentence.
USCA-02-C-0072—7-24-08