United States v. Waagner, Clayton L.

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-1257 & 02-1258
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLAYTON L. WAAGNER,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Central District of Illinois.
Nos. 01-CR-20023 & 99-CR-20042—Harold A. Baker, Judge.
____________
ARGUED SEPTEMBER 17, 2002—DECIDED FEBRUARY 19, 2003
____________
Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.
EVANS, Circuit Judge. Clayton L. Waagner says that
after his daughter suffered a miscarriage, he heard a voice
ask “how could [he] grieve so hard over this one when
millions are killed, or murdered, every year.” Waagner
said the voice, which only he could hear, belonged to God
and that it went on to say “I have called you to be my
warrior and I want you to go to war against the abortion
industry.” Describing himself as a “warrior for pre-born
children,” Waagner embarked on what ultimately became
a 2-year, cross-country crime spree. The spree included
staking out abortion clinics, stealing a 4-wheel drive Yukon
on which he logged 30,000 miles, stealing a Winnebago
motor home, robbing gas stations, burglarizing residences,
2 Nos. 02-1257 & 02-1258
and even evading Pennsylvania state troopers after a high-
speed chase. Waagner, a convicted felon, stole firearms
during his burglaries, and he went to great lengths to
avoid apprehension, going so far as downloading police
frequencies from the Internet and storing them on a CD-
ROM so he could monitor police movements on a scanner.
Waagner was eventually apprehended by an Illinois state
trooper in September of 1999 and subsequently charged
with a couple of federal offenses—possession of a firearm
by a felon and possession of a stolen motor vehicle which
crossed state lines. See 18 U.S.C. § 922(g)(1) and 18 U.S.C.
§ 2313(a).
It is, of course, certainly not surprising that someone
who claims to hear bizarre commands from God and
then embarks on a massive crime spree has more than a
few mental problems. And Waagner did. This became
clear when he filed a notice of intent to raise an insanity
defense to the charges against him. After filing his no-
tice, the government requested a psychiatric examination,
and Waagner was evaluated by Dr. Daniel S. Greenstein, a
clinical psychologist whose diagnosis was adjustment dis-
order, delusional disorder grandiose type, and antisocial
personality disorder. Dr. Greenstein testified at Waagner’s
trial that the diagnoses of adjustment disorder and anti-
social personality disorder were not severe mental diseases
or defects. However, he testified that Waagner’s “delusional
disorder grandiose type” is a severe mental disease and
that he would not necessarily be able to appreciate the
wrongfulness of his actions. The insanity defense prima-
rily rested on this opinion, but the jury didn’t buy it, as
Waagner was convicted on both counts.
Despite his loss at the trial, Waagner proved to be a
tough nut to crack: he escaped from the DeWitt County jail
in Clinton, Illinois, where he was in custody awaiting
sentencing. The escape led to 9 more months of freedom
before he was arrested again in December of 2001.
Nos. 02-1257 & 02-1258 3
Back in court, Waagner pled guilty to a charge of escape
under 18 U.S.C. § 751(a). Later, he was sentenced on all
three counts of conviction. The district judge found that
Waagner was an armed career criminal who possessed
firearms in connection with crimes of violence, that he
obstructed justice by escaping and, finally, that he had
not shown acceptance of responsibility for either the
original charges or the escape. Based on these findings,
Waagner was sentenced to 327 months imprisonment on
the gun charge, 120 months on the stolen vehicle charge,
and 37 months on the escape charge. The gun and stolen
vehicle sentences were ordered to run concurrent, but
the escape sentence was consecutive—resulting in a to-
tal sentence of 364 months.
On this appeal, Waagner seeks a new trial on the orig-
inal charges. His argument rests on a claim that the jury
clearly erred in concluding that he failed to meet his bur-
den of proof on the insanity defense and that the court
erred in failing to give the jury a requested instruction on
the consequences that would flow from a finding of not
guilty by reason of mental defect. Failing that, Waagner
tacks on a trio of challenges to the sentence imposed by
the district judge.
Waagner’s first claim, that the jury clearly erred in fail-
ing to find him not guilty by reason of insanity, is an
offshoot of a routine challenge to the sufficiency of the
evidence argument. As we have noted, a defendant mak-
ing an ordinary sufficiency challenge “faces a nearly
insurmountable hurdle [in that we will] consider the
evidence in the light most favorable to the Government,
defer to the credibility determination of the jury, and
overturn a verdict only when the record contains no evi-
dence, regardless of how it is weighed, from which the jury
could find guilt beyond a reasonable doubt.” United States
v. Szarwark, 168 F.3d 993, 995 (7th Cir. 1999) (quoting
4 Nos. 02-1257 & 02-1258
United States v. Moore, 115 F.3d 1348, 1363 (7th Cir.
1997)).
In an insanity case, unlike a typical challenge to the
sufficiency of the evidence, the defendant’s burden is even
greater. At trial, it is the defendant, not the government,
that must carry the burden of proving insanity (which is
an affirmative defense) by clear and convincing evidence.
18 U.S.C. § 17(b). Because, under 704(b) of the Federal
Rules of Evidence, legal insanity is a question to be de-
cided by the trier of fact, the finding here by the jury may
not be disturbed unless it is clearly erroneous. United
States v. Reed, 997 F.2d 332, 334 (7th Cir. 1993).
To succeed on an insanity defense, a defendant must
prove that as the result of a severe mental disease or de-
fect he was unable to appreciate the nature and quality
or wrongfulness of his acts. 18 U.S.C. § 17(a). So the
question becomes, what was the evidence the jury consid-
ered, and was it so one-sided that any decision except
a finding of not guilty by reason of mental defect must
be cast aside? We think not.
Dr. Greenstein offered the only expert opinion evidence
in this case. But on cross-examination, the doctor testified
that whether Waagner even had a delusional disorder
was a very close call, made more difficult because it in-
volved religious beliefs. He noted that a person would not
necessarily be delusional simply because the person be-
lieved, based on strongly held religious beliefs, that killing
abortion doctors was morally justified. Because it was a
close call, Dr. Greenstein testified that he felt ethically
obliged to err in favor of diagnosing Waagner with a
delusional disorder. Plus, the doctor candidly acknowl-
edged that on the same facts a different psychologist
might come to a different conclusion.
Dr. Greenstein’s equivocal testimony is not surprising
given that none of the objective evidence pointed very
Nos. 02-1257 & 02-1258 5
strongly toward a finding that Waagner had a severe
mental disorder. Likewise, the diagnosis was further
drawn into question because Waagner, despite an exten-
sive criminal record, had no recorded history of psychi-
atric illness.
Dr. Greenstein’s diagnosis of delusional disorder is even
more dubious given that his evaluation was based mainly
on Waagner’s own self-reported, and we think self-serving,
statements. Dr. Greenstein did not interview any other
persons regarding Waagner’s mental condition. Indeed, the
evidence showed that Waagner failed to mention the
“voices” he heard to others, particularly his wife, son, and
a partner in crime who testified for the government and
said he never observed Waagner acting irrationally.
Likewise, various officers testified that they had no dif-
ficulty communicating with Waagner, that he acted ra-
tionally, responded to their questions, never appeared
distracted, and never mentioned abortion or abortion
clinics to them. And so, the evidence that Waagner suf-
fered from a severe mental disease or defect when he
committed his crimes was far from clear and convincing.
In fact, it seems to us that the jury reached the correct
result, not only one that was not clearly erroneous.
But even if the evidence of a disqualifying mental disor-
der was stronger, Waagner would still be a long way
away from steering his boat into the acquittal harbor.
That’s because the mental disorder question is the lesser
of two things to be proved to carry the affirmative defense
of insanity. He had to prove that his criminal conduct was
the result of his mental disorder, not the result of some-
thing which seems more likely in this case, an antisocial
personality disorder. Even if he truly believed that he
was “God’s warrior” against the abortion industry, that
does not mean that his criminal conduct was a result of
his delusions. Regarding his possession of the stolen motor
vehicle, Waagner admitted that God never told him to
6 Nos. 02-1257 & 02-1258
steal a vehicle, let alone a Winnebago motor home. He
further admitted that he needed a big vehicle because of
his large family, that the Winnebago fulfilled that pur-
pose, and that he was not going to drive to an abortion
clinic with his wife in the Winnebago. Regarding his pos-
session of the firearms, he also admitted that God did
not specifically tell him that he needed to steal a Beretta
.22 caliber pistol during a burglary.
Waagner also admitted that he had committed the crimes
of unlawful possession of a firearm by a felon and posses-
sion of stolen goods in 1993, at least a half dozen years
before his alleged delusions struck home. Therefore, a jury
could reasonably conclude that Waagner, who admitted
committing these very crimes without God’s urging, pos-
sessed the firearms and the stolen Winnebago as a result
of either a desire to remain a fugitive, or as a result of
his antisocial personality disorder, or both, and not be-
cause he was in the grip of some bizarre delusions.
Finally, it seems to us that the evidence was overwhelm-
ing that Waagner appreciated the wrongfulness of his
conduct. First, he gave the arresting Illinois state trooper
false identification, and he lied about how he happened
to be driving the Winnebago. Later, after confessing, he
even asked the trooper if he could work out a deal. He
was also selective in what he would discuss, declining
to talk about his involvement in a Kentucky armed rob-
bery. This all points to a man who knew he was in a jam
and wanted to avoid, or minimize if possible, his criminal
liability. This is not the stuff of a man whose actions are
uncontrollable because of a severe delusional disorder.
In the face of all this evidence, and a lot of additional
evidence we have not discussed (for instance, in 1999 he
chose not to try to murder a doctor when a police officer
arrived at an abortion clinic), Waagner’s primary argu-
ment seems to be that he should win on the issue because
Nos. 02-1257 & 02-1258 7
the government “failed to present any expert testimony.”
Given the nature of Dr. Greenstein’s testimony and the
other evidence of Waagner’s sanity at the time of the
offense, the government was not required to present any
expert testimony of its own. United States v. Bennett, 908
F.2d 189, 195 (7th Cir. 1990) (“The government is not
required to rebut expert testimony with its own expert
as it may accomplish the same result by presenting lay
witnesses and other evidence and by undermining the
defense expert’s credibility through cross examination.”).
There was, in other words, no need for the government
to get its own expert and bog the trial down to what
often happens in cases like this—a “battle of experts” be-
fore a jury of lay people. Reviewing the entire record in
this case, we conclude that the jury did not err, let alone
clearly err, in finding that Waagner failed to prove the
affirmative defense of insanity by clear and convincing
evidence.
Waagner next argues that the district court erred in
refusing his proffered insanity instruction which would
have told the jury he would be committed to a “suitable
facility” if he was found not guilty by reason of insanity.
This instruction was necessary, he contends, because
his prior bad acts and mental state would have caused
the jury to believe he might be released and return to his
anti-abortion mission, if his insanity defense was accepted.
We review de novo a district court’s decision to not give
a jury instruction. See United States v. Andreas, 216
F.3d 645, 668-69 (7th Cir. 2000).
The Seventh Circuit pattern jury instructions for fed-
eral criminal trials address this issue. The committee com-
ment to Instruction 6.02 states, “In Shannon v. United
States, 512 U.S. 573 (1994), the Supreme Court held that
a jury may be instructed on [the] automatic commit-
ment requirement of § 4243, but only to counteract inac-
curate or misleading information presented to the jury
8 Nos. 02-1257 & 02-1258
during trial.” Waagner does not argue that the government
presented inaccurate or misleading information to the
jury, so there was no reason for the district judge to give
his proposed instruction. See, e.g., United States v. Fisher,
10 F.3d 115, 122-23 (3d Cir. 1993) (consequences instruc-
tion unnecessary when prosecutor did not suggest that
defendant would be a danger to the community if found
insane); United States v. Thigpen, 4 F.3d 1573, 1578 (11th
Cir. 1993) (consequences instruction appropriate if gov-
ernment presents inadmissible evidence, argument, or
questions implying that defendant will be released back
into society if found insane). And this leads us to the
sentencing issues, which require little comment.
The district judge determined that Waagner was an
armed career criminal under 18 U.S.C. § 924(e), and that
finding is not challenged on appeal. But the further find-
ing that he possessed firearms “in connection with”
crimes of violence is challenged. But the challenge is for
naught. We give the phrase “in connection with” its ordi-
nary meaning, and we view it expansively. See United
States v. Wyatt, 102 F.3d 241, 246-47 (7th Cir. 1996). The
evidence here against Waagner leaves little doubt that
he more than satisfied the “in connection with” language.
His possession of firearms was not coincidental to his
bizarre mission: it was vital. He wasn’t going to try to kill
doctors who performed abortions with kindness—a weap-
on of some sort would be necessary. That his purpose
was clear is also demonstrated by two things: he had a CD-
ROM that contained the names and locations of abor-
tion clinics, and he posted a message (following his escape)
on an anti-abortion website wherein he threatened to kill
any person who worked “for the murderous abortionist.”
The mind-set evidenced by this posting after the escape
was little more than a repeat of the mission he was on
while armed prior to his initial arrest.
Nos. 02-1257 & 02-1258 9
Finally, the obstruction enhancement he received for
the escape, and the acceptance of responsibility adjust-
ment he didn’t get, are adequately supported by the rec-
ord. Waagner’s challenge to the two is meritless. For these
reasons, the judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-19-03