United States v. Long

REVISED MARCH 20, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 5, 2009

No. 07-31131

Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

STEPHEN MICHAEL LONG

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

Before WIENER, GARZA, and DeMOSS, Circuit Judges.

WIENER, Circuit Judge:

At the heart of this appeal lies the question whether the district court

erred reversibly in denying Defendant-Appellant Stephen Michael Long his

requested insanity instruction to the jury. In our de novo review of this purely

legal question, we must at all times keep as frontlets before our eyes the

overarching core distinction of this appeal: It is not a garden-variety fact issue

of sufficiency of the evidence to support a jury’s finding on insanity; rather, it is

the legal issue whether the district court, as gatekeeper and not as factfinder,

should have granted the defendant’s request to put his affirmative defense of

No. 07-31131

insanity to the jury in the first place. With this distinction ever present in our

minds, we proceed with our non-deferential, de novo review.

Long was charged with thirty-eight counts of threatening to use a weapon

of mass destruction, thirty-seven counts of mailing threatening communications,

and four counts of transmitting threats by wire, in violation of 18 U.S.C. §§

875(c), 876, and 2332a(a)(2). These charges arose from mailings that he made

to approximately 200 persons in Lafayette, Louisiana and elsewhere, which

mailings contained a white powder, bomb threats, and rambling diatribes about

politics, child abuse, and terrorism. Long attempted to mount an affirmative

defense of legal insanity, but, after he presented his evidence at trial, the district

court refused to give an insanity instruction to the jury. In the absence of that

instruction, the jury convicted Long on all counts. He timely appealed, claiming

that the district court’s refusal to give the insanity instruction was reversible

error. We address today only Long’s entitlement to a jury determination on

insanity, not whether a jury would have or should have found him insane.

Satisfied that, as a matter of law, Long presented sufficient evidence to entitle

him to have the trial court instruct the jury to determine whether Long was

legally insane, we reverse his convictions and remand for further consistent

proceedings.

I. FACTS AND PROCEEDINGS

Together, Long and the government adduced the following facts. In April

2002, threatening letters containing a white powder — later identified as

harmless baby powder — were received by residents in the Lafayette, Louisiana

area and elsewhere. The letters spoke of al Qaeda and bombs planted

throughout Lafayette (no bombs were ever found), and also made reference to

2

No. 07-31131

Cipro (a drug used to treat anthrax infections) and to The Anarchist Cookbook.

Because the attacks of September 11, 2001 (“9/11”) and the 2001 anthrax

mailings were still fresh in the minds of the public, the letters caused

widespread panic in the region.

A few months after the mailings, in June 2002, a local television station

received e-mails that contained wording and references similar to the

threatening letters. The e-mails were sent from an account linked to Long and

included a number of details (such as information about his wife’s medical

history and his signature using his middle name) that identified Long as the

author. The police tracked down Long and used the June e-mails to connect him

to the letters mailed in April. After his arrest, Long confessed to sending the

letters, expressed surprise that the police had taken so long to find him, and

provided a variety of reasons for having sent the letters. He explained that he

had written the letters after suffering psychological distress following 9/11 and

that he had wanted to, inter alia, test the government’s resources, teach people

to protect and pay attention to their children, show that criminals frequently go

free, and demonstrate that the chaos of 9/11 was easy to create.

Before trial, Long gave notice that he would assert an affirmative defense

of insanity. He attempted to prove insanity at trial by offering evidence of his

history of mental illness. His mother testified that at age thirteen, Long was

institutionalized for six months and diagnosed with a paranoid psychosis. She

also testified that once when she walked in on him, he had a gun in his mouth

and claimed that he needed to stop “them” from tormenting him. She stated that

he claimed that the government communicates through contrails in the sky. She

also established that Long had been sexually abused and suffered various

illnesses as a child.

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No. 07-31131

Long himself testified that he began having visual hallucinations and

hearing voices in October 2001. In December 2001, Long testified that the voices

and hallucinations “really got bad” and began to co-occur. He also testified that

three or four voices told him to mail the letters to test the weaknesses of “the

system” and to “make people aware” of those weaknesses.

Long’s mental health expert was Dr. F.T. Friedberg, a clinical psychologist.

He testified that Long suffers from an Axis II psychiatric illness, schizotypal

personality disorder, under the classification system of the American Psychiatric

Association’s Diagnostic and Statistical Manual of Mental Disorders (Fourth

Edition) (“DSM-IV”).

On appeal, the government makes several representations about what its

expert concluded (including that he also believed that Long suffers from

schizotypal personality disorder), but the district court’s rejection of the insanity

instruction before the government presented its rebuttal prevents our reviewing

any testimony from the government’s expert.1 Dr. Friedberg, whose testimony

1

Over fourteen months after this appeal was docketed, the government moved to

supplement the record on appeal with the report of its expert — not to correct the record

because of an omission, a fact evidenced by the language in the government’s motion and the

case which the government cited as support, see United States v. Long, 996 F.2d 731, 732 n.4

(5th Cir. 1991) (“A question arose as to whether this court could properly consider the

contracts, as they were not formally admitted into evidence. After reviewing the briefs

submitted by both parties subsequent to oral argument, we conclude that we may consider the

contracts.”). (N.B. The government’s motion does not claim — nor could it — that this report

was properly before the district court for sanity purposes, only that adding the report to the

appellate record would allow the “record [to] be complete as to the information available [as

distinguished from “before” or “relevant”] to the district judge’s [sic] when he refused to give

the jury instruction on insanity.” The precise same statement could be made about the color

of the carpet in the district court’s chambers; that does not make it properly part of the record

or relevant).

Under our rules, such motions are a single judge matter, and Judge Wiener, with whom

Judge DeMoss agreed, denied the motion. Quite contrary to the dissent’s protestations, the

district record unambiguously reveals that the government’s report was not identified, offered,

4

No. 07-31131

we do have before us, stated that schizotypal personality disorder is the most

severe Axis II illness and causes bizarre ideation, paranoid mentation, and

psychotic episodes, during which a patient loses contact with reality. The

disease borders on psychosis, but, unlike some Axis I disorders, is not itself a

psychosis. It is unclear whether Long told Dr. Friedberg that he heard voices,

but Long’s uncontradicted testimony is that he did tell the government’s expert

that he had auditory hallucinations.

or received into evidence at trial, the time at which the only issue in this appeal — Long’s

sanity at the time he committed the offenses — was addressed. The failure to introduce this

report in the district court is not surprising, because the only government witness who could

authenticate it and provide an opportunity for cross-examination concerning its contents as

required by Crawford v. Washington, 541 U.S. 36 (2004), did not testify (Dr. Womack).

Further, the government did not provide this court with an original copy of the report, but

offered only a copy that it had annotated and redacted.

This dissent claims that Judge Wiener erred in making “evidentiary” rulings, which it

claims are for the trial court. The dissent ignores the fact that Long, 996 F.2d at 732 n.4, the

case on which the government relied in its motion, would have permitted supplementation of

the appellate record with material outside of the district court record on Long’s sanity. It is

obvious that Crawford overruled sub silentio whatever was left of Long. Further, to the extent

that the government asked this court to add to the district court’s record, the authenticity of

the documents is, of course, relevant. The dissent highlights that Long did not oppose the

motion for supplementation, but the dissent misses the point again. Long need not have

opposed supplementation of the record, only any reliance on the report for purposes of this

court’s assessment of the district court’s insanity determination (the report may properly bear

on Long’s competency, and may have been before the district court for competency purposes,

although the government nowhere cited the place in the record where the report was admitted

for that purpose). Accordingly, Long waived none of the substantive objections to use of the

report on the insanity issue; and Judge Wiener declined, in his discretion, to needlessly enlarge

the record on appeal with unauthenticated and unadmitted material not relevant to the only

issue in this appeal — Long’s sanity.

Finally, whatever else might be said, the copy of the report submitted by the

government was in its possession for well over a year, yet it waited over fourteen months after

this appeal was docketed, over six months after the record on appeal was transmitted to this

court, over four months after its last motion to supplement the record, and almost four months

after oral argument to move for supplementation. We will not brook this type of sloppiness or

gamesmanship, which disrupts the orderly management of our docket. What the government

does not introduce below, it may not attempt to slip in here months late.

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No. 07-31131

The government highlights several circumstances surrounding Long’s

crimes that it claims demonstrate that he was “able to appreciate the nature and

quality [and] the wrongfulness of his acts.”2 Long used self-adhesive stamps on

his mailings so as not to leave saliva for DNA detection, and he purchased the

stamps during busy times at the post office to make it unlikely that he would be

remembered. He copied the letters at Kinko’s, threw away the top and bottom

copies so as not to leave fingerprints, and stuffed the envelopes using gloves. He

mailed the letters from various post offices to cover his tracks further. And he

burned down his own house to destroy evidence of his crimes. The government

contends that, in combination, these actions and explanations, many of which

are known only because Long revealed them, indicate that he knew what he was

doing and knew that it was wrong.

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s refusal to provide a jury instruction

on insanity.3 “The application of the less deferential standard of review . . .

makes sense in light of reduced deference afforded to rulings that take decisions

from the jury.”4

B. Merits

Congress has provided for an affirmative defense of insanity to criminal

prosecutions, codified in 18 U.S.C. § 17, which reads:

2

18 U.S.C. § 17(a) (2006).

3

United States v. Dixon, 185 F.3d 393, 403 (5th Cir. 1999).

4

Id.

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No. 07-31131

(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.

(b) Burden of proof.–The defendant has the burden of proving the

defense of insanity by clear and convincing evidence.

“A jury instruction on the insanity defense is required ‘when the evidence

would allow a reasonable jury to find that insanity has been shown with

convincing clarity.’”5 The defendant need not “eliminate ambiguity from his

proof or . . . instill certainty in the minds of the jurors but rather [is] only

require[d]” to produce evidence that “would permit the jury to find a high

probability that . . . [he] was insane.”6 In United States v. Dixon, our most

complete treatment of these issues to date, we said that a court may “withhold

the insanity instruction if it concludes that the relationship between a

defendant’s mental illness history and his criminal conduct has not been

explained or examined in any meaningful way,” but that we “must construe the

evidence, and all inferences, . . . most favorabl[y] to the defendant.”7

As a preliminary matter, the government appears to contend that our

previous formulation of the defendant’s burden of proof — “convincing clarity”

— somehow imposes a higher standard than that of the clear-and-convincing-

evidence standard. We are not impressed by this attempt at dictional

5

United States v. Eff, 524 F.3d 712, 717 (5th Cir. 2008) (quoting Dixon, 185 F.3d at

404).

6

Id. (internal quotation marks omitted).

7

185 F.3d at 407 (emphasis added).

7

No. 07-31131

distinctions between Dixon and § 17(b).8 The government does not distinguish

“convincing clarity” from “clear and convincing evidence” other than to intimate

conclusionally that “convincing clarity” is a more difficult burden to satisfy. It

offers no basis for such a distinction between the two standards, undoubtedly

because none exists. Congress in § 17(b) and this court in Dixon require that a

district court instruct the jury on an insanity defense whenever a reasonable

juror could conclude, on the basis of clear and convincing evidence, that the

defendant committed the acts constituting the offense because he was insane at

the time. Put another way, the trial court must determine whether a reasonable

juror could conclude that (1) there is a high probability that the defendant (2)

was unable to appreciate the nature and quality or the wrongfulness of his acts

(3) at the time he committed the acts constituting the offense (4) as a result of

a mental disease or defect which is (5) severe.9 When we administer this test de

novo, we conclude that a jury could so determine in Long’s case.

The government does not assert that Long failed to produce sufficient

evidence of a mental disease or defect. Instead, it bases its position almost

entirely on the second and fifth prongs of our test, insisting that, because Long

was diagnosed with a DSM-IV Axis II disorder, rather than an Axis I disorder,

no reasonable juror could conclude that his mental disease or defect was

“severe”; and that Long’s efforts to evade detection compel the conclusion that

8

Id. 403-04. The government’s confusion appears to arise from Dixon’s repudiation

of the old rule from Blake v. United States, 407 F.2d 908, 911 (5th Cir. 1969) (en banc). Blake

required district courts to give an insanity instruction if there was even “slight evidence” in

support of the defendant’s claimed insanity. 407 F.2d at 911. We recognized in Dixon that

Congress repudiated our Blake approach when it passed the current version of 18 U.S.C. § 17.

185 F.3d at 403-04. But, our opinion in Dixon did no more than that.

9

See 18 U.S.C. § 17 (2006).

8

No. 07-31131

he was able to appreciate the wrongfulness and the nature and quality of his

acts. We are satisfied that both of these arguments are without merit.

Regarding the government’s contention that Long’s schizotypal personality

disorder is not severe, we note first that courts have jealously guarded their

prerogative to define the legal meaning of insanity and have protectively

guarded the factual prerogative of the jury to determine whether the evidence

satisfies that legal definition. Within this dichotomy, we have permitted experts

to opine whether a mental disease or defect is or is not severe,10 but the

admissibility of such evidence as an aid to determination should not be confused

with who has the ultimate responsibility for defining a legal concept.11 A

defendant may be severely mentally ill in an expert’s clinical opinion, yet not be

severely mentally ill according to legal understanding. The obverse has also

been recognized.12

A contrary approach — one that treats a particular diagnostic category as

necessary or sufficient for a “severity” finding — would improperly surrender to

mental health experts the ultimate responsibility of adjudicating criminal

culpability and just as improperly would take that decision away from the court

and jury, causing the insanity defense to again rise or fall solely on the basis of

a clinical diagnosis. As support for this approach to severity, the government

cites Dixon, but that case did not state that an expert testified at trial that the

10

Dixon, 185 F.3d at 400.

11

We need not address whether some professional body or some mental health expert

must conclude that a particular set of behaviors or symptoms constitutes a “mental disease or

defect” because the government does not contest that Long suffers from some type of mental

disease or defect.

12

See Dixon, 185 F.3d at 400, 405-07.

9

No. 07-31131

defendant’s behavior at the time he committed the crimes could be called

“psychotic.” In fact, only the government’s expert testified at Dixon’s trial, and,

not surprisingly, he testified that he did not believe that the defendant suffered

from a severe mental illness that prevented him from appreciating the nature,

quality, and wrongfulness of his acts.13 In Dixon, we focused on the presence of

delusions and hallucinations, not on the word “psychotic.”

The testimony that in Dixon we said a defendant should introduce cuts

even harder against such a talismanic approach. The appropriate testimony, we

said, should “describe the characteristics of [the defendant’s] mental illnesses

and the effect of such illnesses on his ability to appreciate wrongdoing.”14 This

instruction focuses on the content of the diagnosis, not its label.

The approach of the government to the severity question leads to the

“confusing spectacle of competing expert witnesses testifying to directly

contradictory conclusions as to the ultimate legal issue to be found by the trier

of fact.”15 Both Congress and the American Psychiatric Association recognized

that this is an intolerable situation:

13

Id. at 402, 406.

14

Id. at 406.

15

S. REP. NO. 98-225, at 230 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3412

(reporting on the proposed law now codified at 18 U.S.C. § 17). As noted above, we have held

that the existence of a severe mental disease or defect is not an ultimate question for purposes

of Federal Rule of Evidence 704(b). See Dixon, 185 F.3d at 400. Whether expert evidence is

admissible on this question does not, however, determine whether a particular diagnosis by

an expert is either necessary or sufficient to satisfy the requirements of § 17. As we

demonstrate, such a conclusion is contrary to the text and purpose of § 17. Requiring experts

to bandy about conclusional descriptions of the severity of a mental illness, rather than simply

permitting such testimony as an aid to the jury, would raise the same issues that led Congress

to bar such testimony on the appreciation element. Whether or not the question of severity is

an ultimate legal conclusion, it is still a necessary element of the defense.

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No. 07-31131

“[I]t is clear that psychiatrists are experts in medicine, not the

law. . . . [T]he psychiatrist’s first obligation and expertise in the

courtroom is to ‘do psychiatry,’ i.e., to present medical information

and opinion about the defendant’s mental state and motivation and

to explain in detail the reason for his medical-psychiatric conclusions.

When, however, ‘ultimate issue’ questions are formulated by the law

. . . . [the psychiatrist] no longer addresses himself to medical

concepts but instead must infer or intuit what is in fact unspeakable,

namely, the probable relationship between medical concepts and legal

or moral constructs such as free will. . . .” Determining whether a

criminal defendant was legally insane is a matter for legal fact-

finders, not for experts.16

From these principles, it is indisputable that the nomenclature used by,

and the ultimate diagnosis of, a mental health expert is analytically irrelevant

(except as shorthand) to the determination of severity under § 17.17 The content,

symptomatology, and description of the clinical disorder — in short, the “mental

state and motivation” — of the defendant are what we consider when we look to

the legal effect of an expert’s diagnosis. The text and legislative history of § 17

evince no intention to turn a disease’s DSM-IV axial stratification or

classification as a psychosis into a necessary but insufficient condition for a

jury’s determination of severity. This truism accords with our cases as well. For

example (and recognized by the government in its briefing), we have assumed

16

S. REP. NO. 98-225, at 231, 1984 U.S.C.C.A.N. at 3413 (quoting AMERICAN

PSYCHIATRIC ASSOCIATION, STATEMENT ON THE INSANITY DEFENSE 18-19 (1982)).

17

Some diagnoses may not require that a defendant possess the mental state and

motivation that are necessary for a legal finding of insanity; other diagnoses may even exclude

such mental states and motivations. We could then say that those diagnoses do not qualify as

severe. It is important to realize, however, that it is not the fact of the diagnosis itself that is

important; rather, we focus on what such a diagnosis says about the mental state and

motivation of the defendant at the time the acts are committed.

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No. 07-31131

arguendo that Klinefelter’s Syndrome is a severe mental disease or defect, even

though that diagnosis appears nowhere in the DSM-IV and is not a psychosis.18

The foregoing establishes that courts, not mental health experts, define the

meaning of “severe,” and that the jury (ordinarily) decides whether the evidence

adduced to satisfy that legal definition is clear and convincing. And, for the legal

definition of “severe,” we have several sources from which to draw. For example,

we have held that a mental disease or defect is severe when it is characterized

by a mental state that involves hallucinations or delusions.19 We have assumed

arguendo that a mental state characterized by “childlike decisions or magical

thinking” is severe.20

We also have explicit guidance from the legislative history of § 17 about

which mental diseases and defects Congress meant to exclude when it added the

“severe” requirement. Congress intended to exclude non-psychotic behavioral

disorders, such as “inadequate personality, immature personality, or a pattern

of antisocial tendencies,” because it wished to eliminate the cognitive-volitional

test of the Model Penal Code.21

We need not today further explore the limits of “severe,” because the

manifestation of Long’s mental disease — schizotypal personality disorder —

at the times that he acted fits comfortably within Dixon’s interpretation of § 17.

We reach that conclusion on the basis of the diagnostic criteria of schizotypal

18

See United States v. Eff, 524 F.3d 712, 718 (5th Cir. 2008).

19

Dixon, 185 F.3d at 406.

20

Eff, 524 F.3d at 715, 718 (internal quotation marks omitted).

21

S. REP. NO. 98-225, at 225, 229, 1984 U.S.C.C.A.N. at 3407, 3411 (internal quotation

marks omitted).

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No. 07-31131

personality disorder22 and the testimony of Dr. Friedberg, Long’s mother, and

Long himself. To be clear, we do not look to the diagnostic classification or axial

stratification of schizotypal personality disorder standing alone, but view it as

evidence of what a reasonable juror could conclude was Long’s mental state and

motivation at the times he committed the acts constituting the offenses.

According to accepted diagnostic criteria, schizotypal personality disorder

is characterized by

a pervasive pattern of social and interpersonal deficits marked by

acute discomfort with, and reduced capacity for, close relationships

as well as by cognitive or perceptual distortions and eccentricities of

behavior. . . .

Individuals with Schizotypal Personality Disorder often have

ideas of reference (i.e., incorrect interpretations of casual incidents

and external events as having a particular and unusual meaning

specifically for the person) [but not delusions of reference]. . . . They

may feel that they have special powers to sense events before they

happen or to read others’ thoughts. They may believe that they have

22

We take judicial notice of these as the DSM-IV’s authoritative nature makes the

criteria “capable of accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.” FED. R. EVID. 201(b). In any event, Dr. Friedberg testified

at trial to the operative elements of the definition, e.g., the bizarre and irrational thinking and

episodic occurrences of psychosis that characterize the disorder. We have made reference to

the complete diagnostic criteria to illustrate the background of Dr. Friedberg’s testimony and

to show its concordance with an authoritative exposition of the illness. We do not use the

DSM-IV’s acknowledgment of psychotic episodes in persons afflicted with Long’s disorder as

evidence that Long must have been suffering from a psychosis at the times he committed his

crimes. That would be nonsense and is unnecessary anyhow. But, on a hypothetical inquiry

into what a reasonable juror might conclude, the fact that Dr. Friedberg testified that

psychotic episodes (the positive symptoms of which include hallucinations and delusions, see

generally AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF

MENTAL DISORDERS 297-343 (4th ed. text revision, 2000) [hereinafter DSM-IV]) may occur

during the course of Long’s illness lends support for Long’s testimony that he experienced

hallucinations and delusions at the times he acted. That is, Dr. Friedberg’s testimony is expert

evidence that explains Long’s testimony and the link between Long’s illness and his acts in

some (i.e., any) meaningful way. In turn, the DSM-IV is support for Dr. Friedberg’s testimony

and evidence of which we take notice.

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No. 07-31131

magical control over others . . . (e.g., believing that their spouse’s

taking the dog out for a walk is the direct result of thinking an hour

earlier it should be done) or . . . (e.g., walking past a specific object

three times to avoid a certain harmful outcome). Perceptual

alterations may be present (e.g., sensing that another person is

present or heaving a voice murmuring his or her name).

....

. . . Particularly in response to stress, individuals with this

disorder may experience transient psychotic episodes . . . .23

Dr. Friedberg testified that schizotypal personality disorder is “the most severe

type of personality disorder, which is associated with bizarre thinking and

paranoid mentation.”24 He also testified that the disorder borders on psychosis

and involves periods of psychosis, during which a patient loses contact with

reality and exhibits psychotic beliefs. He testified that Long in particular

suffered from “episodic psychosis where he basically lost contact with reality”

and that “delusions or hallucinations [were] kind of primary symptoms in his

case.”

Long’s mother testified that he had been hospitalized at thirteen for

psychotic mentation and that his mental condition deteriorated during the

relevant time period in response to the stress of 9/11. She also testified that his

physical health deteriorated as well. She described Long’s lengthy history of

23

DSM-IV, supra note 22, at 697-98 (emphasis added). A diagnosis requires that five

or more of the following criteria be present: “ideas of reference . . .[,] odd beliefs or magical

thinking that influences behavior and is inconsistent with subcultural norms . . .[,] unusual

perceptual experiences, including bodily illusions[,] odd thinking and speech . . .[,]

suspiciousness or paranoid ideation, inappropriate or constricted affect . . .[,] behavior or

appearance that is odd, eccentric, or peculiar[,] lack of close friends . . .[, and] excessive social

anxiety . . . .” Id. at 701.

24

(emphasis added). As noted above, there appears to be no dispute that Long suffers

from schizotypal personality disorder. We focus here on the severity of that disease.

14

No. 07-31131

mental illness and bizarre thoughts relating to national security. For example,

she testified that he had “predicted” 9/11 and that he thought after 9/11

happened that “it was left up to him to stop the bad people.”

Long himself testified that he heard voices, and, contrary to the

government’s characterization, also testified that he sent the subject letters and

e-mails because “[y]ou know, these are the voices I was hearing. Make people

aware.” At one point, defense counsel asked, “And while you were creating the

E-mail, were there voices?” Long answered: “Yes; oh yes.” At another point,

defense counsel asked Long, “And what would [the voices] tell you? Would they

instruct you, or were they just commenting?” Long replied, “Like commenting,

and then I would make an argument back.” When asked why he felt like he had

to commit the subject offenses, Long testified that it was “[j]ust like hearing a

voice saying that this is what you need to do.” He testified that he heard voices

arguing about his acts during the relevant times and telling him that it was his

“job to test the system to find the weaknesses.” He also testified that he started

to experience visual hallucinations of dark, evil eyes looking at him several

months before he committed the offenses.

At a minimum, the foregoing confirms that Long produced evidence that

would allow a reasonable juror to conclude that it was clear and convincing and

that, on the strength of such evidence, he suffered from delusions and

hallucinations at the times of his offenses. Such evidence qualifies as sufficient

evidence of severity under Dixon.25

25

We address the timing, causation, and appreciation issues — was there evidence

from which a reasonable juror could conclude that Long’s severe mental illness caused him to

be unable to appreciate the nature, quality, or wrongfulness of his actions at the times that he

acted? — below. On the severity question, any distinction between hallucinatory voices that

instruct and those that simply comment is immaterial. The presence of the hallucinations

15

No. 07-31131

The government also attempts to distinguish Dixon in a number of other

ways, although whether these distinctions address the severity, the timing, the

causation, or the appreciation elements of the insanity test is unclear from its

briefing. It urges that, unlike in Dixon, (1) there is less evidence that Long’s

illness is of longstanding duration, (2) Long was not diagnosed shortly before and

again shortly after he committed the crimes, (3) Long was not medicated for his

illness by the government during his institutionalization after the crimes, (4)

Long was able to hold down a job, (5) Long did not report hearing voices to

anyone, and (6) his illness is not characterized by auditory hallucinations.26 We

dispose of these contentions in turn.27

Long’s institutionalization at age thirteen with a paranoid psychosis

indicates that his mental disease is not of a recent vintage. In any event, there

is no magic amount of time that a defendant must have suffered from a mental

themselves is evidence of severe (and psychotic) mental disease or defect. As confirmed by Dr.

Friedberg, Long also exhibited delusions, believing that he had a special duty and special

ability to keep the nation safe from terrorism and to instruct parents to care for their children.

26

The government also claims that, unlike in Dixon, Long did not exhibit a severe

break with reality. That is inconsistent with the testimony of Dr. Friedberg that Long’s

disease was characterized, at least during its psychotic episodes, by delusions and

hallucinations. We are required to treat that unrebutted testimony as true in the type of

review that we conduct today. See United States v. Dixon, 185 F.3d 393, 404 (5th Cir. 1999).

27

The dissent restates these contentions as support for its conclusion that Long did not

sufficiently demonstrate that he was unable to appreciate the nature and quality or the

wrongfulness of his actions at the time he committed the offenses. As we explain below, to

adopt the government’s arguments would require us to accept evidence that need not be

probative of Long’s sanity as sufficient to conclude that no reasonable juror could clearly and

convincingly believe Long’s affirmative case for insanity. If the evidence the government offers

cuts either way (or no way), the dissent does not explain why or how a mixture of marginally

and non-probative evidence can do what each piece of evidence standing alone clearly cannot

— preclude any reasonable juror from believing Long’s affirmative case for insanity. As we

emphasized at the outside of this opinion, this case does not involve a review of the sufficiency

of a jury finding that Long was not insane, which is an entirely different inquiry.

16

No. 07-31131

disease or defect before a jury may conclude that it is severe. All things have a

beginning, and we will not deprive recently insane defendants of the benefit of

the defense simply because they first became ill relatively recently.

For the same reason, and as further support for this conclusion, an illness

need not be diagnosed shortly before or shortly after the crime for there to be

sufficient evidence of severity. The fortuitousness of a defendant’s access to

mental healthcare professionals — who are, after all, required for a diagnosis —

is irrelevant to the legal question of evidentiary sufficiency. We will not deprive

those insane defendants who had no access to care (either immediately before or

after the crime) of the benefit of the defense. A contrary rule would again allow

the defense to rise or fall based on diagnoses alone. This is not to say that,

although a disease or defect need not be diagnosed at a particular time, it must

not be present at the time the offense was committed.28

The government’s notion that a mental disease or defect must require

medication or prevent a defendant from holding down a job before it can be

considered severe is also baseless. We will not deny the insanity defense based

on the vicissitudes of psychopharmacological research or idiosyncratic hiring

decisions. The government does not contest that Long suffers from a mental

disease or defect, so the decision by the government not to treat Long with

medication during his post-arrest institutionalization cannot be probative. If the

government had contested the existence of a mental disease or defect itself, the

fact that a psychiatrist did not see fit to prescribe Long medication might be

28

See 18 U.S.C. § 17(a) (2006) (“It is an affirmative defense to a prosecution . . . 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.” (emphases added)).

17

No. 07-31131

weakly probative. Inasmuch as Long is unquestionably mentally ill, or, in the

words of the government, “suffers from a mental disease, a serious personality

disorder” and “severe emotional difficulties” that are “associated with bizarre

thinking[,] . . . paranoid mentation . . . [and] a breakdown in normal thinking

processes,” we are left with only two explanations for the failure of the

government to medicate Long during his hospitalization: (1) There is no

effective treatment for Long’s disorder, or (2) there is an effective treatment, but

the government denied it to him. We would never suggest that the government

would knowingly deny a patient an effective treatment; we note only that the

point is irrelevant because neither possible explanation is probative of severity,

given the uncontested evidence that Long has, at the very least, a non-trivial

mental disease.

Long’s intermittent ability to hold down employment for several months at

a time is some evidence of the severity of the course of his illness, but limited

evidence of its severity at the exact times that he committed the acts

constituting the offenses. Given that schizotypal personality disorder is

associated with brief psychotic episodes, and that Long testified that he heard

voices during the commission of the acts that constitute the subject offenses, he

has not failed to present sufficient evidence of a severe mental disease or defect

for this reason either.

The government last claims that Long failed to describe sufficiently to the

mental health experts who examined him the voices that he heard. We decline

to create a rule that, to preserve his right to adduce evidence of his disease or

defect at trial, a defendant must have reported the entirety of his symptoms in

minute detail to a mental health expert before trial. Even were we so inclined,

Dr. Friedberg explained at trial that individuals with a mental illness involving

18

No. 07-31131

paranoia may be unwilling or unable to trust mental health professionals. As

such, he offered evidence why Long — whose disorder includes paranoid features

— would not have reported his most extreme symptoms to a mental health

professional. Dr. Friedberg’s interpretation supports Long’s argument that he

suffers from a severe disorder as much as the government’s interpretation

detracts from it.

In any event, Long testified at trial that he had told the government’s

expert that he heard voices, and the government did not rebut this testimony;

instead, it moved to deny Long the insanity instruction before it presented its

rebuttal. To recap, Dr. Friedberg testified that the psychotic episodes of Long’s

illness are primarily characterized by “delusions and hallucinations,” and Long’s

mother testified that when she found him with a gun in his mouth because he

wanted “them” to stop tormenting him, she assumed that Long was referring to

“the voices.” On this level of review, we “construe the evidence most favorably

to the defendant.”29 Long presented evidence (even though it was not necessary)

that, construed in the light most favorable to him, demonstrates that others

knew of his hallucinations before trial.

The foregoing establishes to our satisfaction that Long was entitled to a

jury determination about the severity of his mental disease or defect. We

concede that, after hearing it all — including the government’s rebuttal should

it decide to present one — a jury very well might conclude that Long has not

proved the requisite severity, by clear and convincing evidence, to be found not

guilty by reason of insanity. At this juncture, however, we cannot say that all

reasonable jurors must so conclude.

29

Dixon, 185 F.3d at 404.

19

No. 07-31131

The putative existence of a severe mental disease or defect does not,

however, end our inquiry. Long must also demonstrate that a reasonable juror

could believe, with a high degree of probability, that, because of Long’s severe

mental disease or defect, he was unable to appreciate the nature and quality or

the wrongfulness (when he acted) of the acts constituting the offenses.30 The

government points to the various steps that Long took to avoid detection as

evidence that Long fails the appreciation element of § 17. It also notes that Long

testified that he sent the letters for the purpose of testing the government and

showing that “people can commit crimes and not get caught.” The government

emphasizes that Long expressed surprise after his arrest that it took the police

as long as it did to catch him.

Again, the jury might well conclude in the end that Long knew the nature

and quality and the wrongfulness of his acts, but a reasonable juror could just

30

18 U.S.C. § 17; see Dixon, 185 F.3d at 403-05. Lest there be any doubt instilled by

the dissent’s conclusion that we have “conflated” the severity and the timing, causation, and

appreciation inquiries, let us point out that this section addresses the latter three inquiries,

while we addressed the severity issue above. Of course, we discussed the timing inquiry as

part of our severity analysis because a severe mental illness must be present at the time of the

commission of the offenses (only then can it cause the defendant to be unable to appreciate the

nature, quality, or wrongfulness of his actions). So, we are in full agreement with United

States v. Denny-Shaffer, 2 F.3d 999 (10th Cir. 1993), a case in which the Tenth Circuit required

that the insanity instruction be given and which correctly noted that severity and timing,

causation, and appreciation are separate inquiries, but never disputed that the disease must

be present at the time of the commission of the offenses. We also note, however, that the

analytic distinctiveness of the inquiries does not mean that evidence of a severe disorder of

longstanding duration does not offer something probative on the other questions. It is obvious

that diagnosis with a longstanding, severe disease renders it more likely that the disease was

present at the time of the commission of the offenses than diagnosis with a brief or reactive

disorder, or a disease that does not impair thinking and perception as schizotypal personality

disorder does (such as post-traumatic stress disorder’s continuous features, addressed in United

States v. Whitehead, 896 F.2d 432, 433-36 (9th Cir. 1990). Testimony in Whitehead established

that the symptoms of that disorder, at least as related to wrongfulness, at most affected

volition and mood).

20

No. 07-31131

as well conclude, based on clear and convincing evidence, that Long did not know

that his acts were wrong because of the delusional beliefs and hallucinations

from which he suffered during his psychotic episodes (for example, when he sent

the letters and e-mails). Long testified that he needed to test the government,

to expose its weaknesses, and to demonstrate how easily chaos similar to that

of 9/11 could be wrought because he wanted the government to better guard

against terror. He testified that he wanted to alert parents to take better care

of their children and to teach people the value of standing up and addressing

wrongs.

Even though Long expressed a certainty that he would be persecuted (and

prosecuted) for his acts — which feeling of persecution was of longstanding

duration according to his statement after arrest — the motivations Long gave

for his acts are not criminal or wrongful per se. That Long characterized his

motivations in the above ways, and did so consistent with his mother’s testimony

about the ideational content of his illness over a period of time, would allow a

reasonable juror to conclude, by clear and convincing evidence, that Long was

at least unable to appreciate the wrongfulness of his actions. Long’s effort to

effectuate his psychotic intentions would have been all the more quixotic had he

not taken steps to cover his tracks, or had he not expected that the criminal

justice system would eventually catch him. A test of the government’s

weaknesses or an effort to demonstrate the ease with which the chaos of 9/11

could be reproduced would be useless if the crime were so obviously a hoax, or

the criminal so easily stopped, that no meaningful test or potential for chaos

existed. The insanity defense is not limited to defendants who, because of their

illnesses, are completely ineffectual in pursuing their bizarre intentions.

21

No. 07-31131

Long also linked his delusional belief that his actions were for the

“betterment of mankind or God” to the hallucinations he experienced while

preparing and sending the communications at issue. He testified that he felt he

had to mail the letters because he experienced a sensation “[j]ust like hearing

a voice saying that this is what you need to do.” In any event, whether or not

Long’s hallucinations were linked to his delusional beliefs, the very existence of

the delusional belief that he had to terrorize hundreds or even thousands of

persons for the “betterment of mankind or God” is sufficient to demonstrate that

his inability to appreciate the wrongfulness or the nature and quality of his

actions flowed from his illness.31

Moreover, in Dixon we reversed the district court’s failure to instruct the

jury on insanity despite the fact that Dixon — like Long — took a number of

measures to avoid detection, such as initially hiding his gun, coaching the

kidnapping victim to lie, hurrying to avoid the police, covering the victim’s

uniform with a jacket to make her harder to identify, taping the victim’s eyes

shut with duct tape and driving around in circles so that she would not learn

where he lived, and expressing concern that the victim not be able to identify

him based on the objects in his room.32 Dixon “talked repeatedly about how he

was proud to be getting away with it and that he would not be caught.”33 None

of this deterred us from concluding that, based on expert testimony about

Dixon’s delusions, a reasonable juror could have concluded by clear and

31

Of course, individuals who believe this but do not suffer from a severe mental disease

or defect do not qualify for the defense. Because this delusion (not mere belief) flows from

Long’s illness, it is probative of Long’s appreciation of the wrongfulness of his acts.

32

Dixon, 185 F.3d at 395-96.

33

Id. at 396.

22

No. 07-31131

convincing evidence that Dixon was unable to appreciate the wrongfulness of his

actions. Neither do Long’s efforts to enhance the realism of his faux-terror

attack detract from the sufficiency of the evidence he produced about his mental

state and its relationship to the acts that constitute the offenses with which he

was charged.

Whatever else, even standing alone Dr. Friedberg’s testimony that Long’s

illness was characterized by a loss of contact with reality would have sufficiently

elaborated, i.e., “explained . . . in any meaningful way,”34 a link between that

illness and Long’s ability to appreciate the nature and quality and the

wrongfulness of his actions.35 The fact that Dixon found a hostile witness’s

account of the defendant’s description of his mental state and motivation

sufficient only buttresses this conclusion. Unlike the only expert to testify in

Dixon — the prosecution’s expert — Long’s defense expert, Dr. Friedberg,

apparently did believe Long’s account; and Long himself provided extensive and

detailed information about his delusional beliefs. Dr. Friedberg testified that

Long lost contact with reality and that the primary symptoms of Long’s “case”

were delusions and hallucinations. He also testified that these features of Long’s

illness directly affected Long’s ability to appreciate the effect of his actions on

34

Id. at 407 (emphasis added).

35

See United States v. Owens, 854 F.2d 432, 436 (11th Cir. 1988) (The defendant’s

“expert witness[] testified that she diagnosed [the defendant] as a ‘psychotic’ who would lose

touch with reality. Viewing the evidence in the light most favorable to the defendant, [the

defendant] presented enough evidence to require an instruction pursuant to 18 U.S.C. § 17.”).

In Owens, the defendant “fluctuated in and out of touch with reality” and “at times, would lose

all contact with reality” according to his expert. Id. at 433-34 (emphasis added). The Eleventh

Circuit required no more evidence than that, e.g., specific testimony from an expert or the

defendant himself that he was out of touch with reality at the time he acted, to be satisfied

that there existed a jury question on the defendant’s sanity at the time he committed the

crimes. Whether we would go so far, we need not on the facts before us.

23

No. 07-31131

others. Long and his mother, in addition to Dr. Friedberg, tied the ideational

content of his delusions and hallucinations to his actions. Only if hearsay

testimony by a witness who does not believe it is to be preferred could the

government’s reading of Dixon be correct.

The dissent, if not the government, appears willing to concede that if Long

offered expert evidence that he experienced a psychotic episode during the

commission of the offenses, he qualifies for an insanity instruction, whether he

was diagnosed with an Axis II or with an Axis I disorder. We have explained

that the use of the label “psychotic” by an expert is unnecessary, and we explore

whether even the symptoms of a psychosis are necessary below. Even if we are

wrong on those counts, Dr. Friedberg did provide enough evidence for a

reasonable juror to conclude that Long was clinically psychotic at the times he

acted. Dr. Friedberg testified:

We say that this is the kind of borderline that [Long] can move over

to psychotic kinds of things and psychotic beliefs, irrational bizarre

thinking, and he basically has this general mentation throughout his

life with periods of what is called episodic psychosis where he

basically lost contact with reality.

Counsel for Long then asked: “That’s what we would call a psychotic episode in

your field?” Dr. Friedberg replied: “Yes. We talk about, you know, delusions or

hallucinations as kind of primary symptoms in his case. Delusional thinking

and bizarre thinking is what is generally characterized in psychotic disorders.”

(emphases added). Counsel for Long later asked: “And in your diagnosis, were

you able to confirm or validate that [Long] has breaks from reality?” Dr.

Friedberg replied: “Yes. I think it is characterized a lot by, you can see not only

in his writings [which were part of the mailings] and in conversations in terms

of a breakdown in normal thinking processes.” Tying the testimony that Long’s

24

No. 07-31131

writings evidence a break with reality to a clinical definition of psychosis, Dr.

Friedberg later opined that “[p]sychosis is a kind of loss of contact with reality.”

Even without Long’s own testimony, which is overwhelming evidence of a

psychotic mental state at the times of the offenses when considered in light of

the background offered by Dr. Friedberg, the expert testimony itself is sufficient

evidence for a reasonable juror to conclude that Long was psychotic at the times

he acted. In light of this discussion, it is apparent why the dissent’s assertion

that “Long has not demonstrated with ‘convincing clarity’ that he was

experiencing psychosis that would prevent him from distinguishing right from

wrong at the time he committed the offense” is wrong, even if we were

erroneously to conclude that Dixon permits only expert testimony to be

considered on this question.36 We have demonstrated that the dissent’s

conclusion is both an inaccurate statement of the law (Long need not have

demonstrated this fact; he was only required to provide sufficient evidence to

allow a reasonable juror to infer it) and inaccurate as a factual matter (Dr.

Friedberg did offer testimony about the mental state evidenced by Long’s

writings, which were part of the mailings that constituted the offenses, in

36

Some expert testimony may be required, but Dixon nowhere purported to limit the

evidence a court or jury may consider to only the expert evidence adduced. Further, United

States v. Keen, 96 F.3d 425, 430-31 (9th Cir. 1996), is not to the contrary — no expert testified

at all in that case, but even then the court did not base its opinion on that fact. See id. at 430

(“The district court preempted Keen’s use of the insanity defense because Keen had nothing

more to offer in support of the defense than his own testimony and that of his family. In this

regard, the district court seemingly based its ruling on the ground that lay testimony is

categorically insufficient to demonstrate insanity with convincing clarity. . . . Without reaching

the question of whether lay opinion alone can ever support a finding of insanity, we can safely

state that the record ultimately supports the district court’s decision here. . . . [a]s it appears

that Keen’s counsel sought to do little more than establish that Keen suffered from a mental

disease or defect as opposed to establishing the effect that this condition had upon his ability

to appreciate the nature of his actions . . . .”).

25

No. 07-31131

addition to the primary features — delusions and hallucinations — that

characterized Long’s “case”).

Obviously, neither Dr. Friedberg nor any other expert examined Long

during the commission of the crimes and, in any event, would have been

prevented under Federal Rule of Evidence 704(b) from offering a direct

assessment of Long’s ability to appreciate the nature, quality, and wrongfulness

of his acts at the times he committed them.37 This necessitates some degree of

inference based on the characteristics of Long’s illness at the time that he was

examined and Long’s own report of his mental state and motivation at the times

that he acted. In an effort to avoid such inferences, the dissent equates the

appreciation element of § 17 with an expert’s testimony that the defendant was

psychotic at the time he committed the offense.

When that obfuscated redefinition is exposed, it should be clear how the

dissent’s approach ignores Rule 704(b), which prohibits expert testimony about

an ultimate legal issue with respect to the mental state of a defendant.

Redefining the appreciation element as a psychosis element (even if only for this

case), and then mandating expert testimony about the existence vel non of a

psychosis requires precisely that type of prohibited testimony.

37

The dissent misunderstands our point. Of course Dr. Friedberg could have testified

that Long’s behavior at the time he committed the offenses was consistent with delusions or

hallucinations — in fact, he did just that when he characterized Long’s writings thusly. If,

however, Dr. Friedberg was not present when Long acted and could not testify that Long was

unable to appreciate the nature, quality, or wrongfulness of his acts at the times of the offenses

(and quite obviously Federal Rule of Evidence 704(b) precludes such testimony), then there

must always be an inferential leap made by the jury (or court) about the defendant’s mental

state at the times that he acted — a leap based on descriptions (expert and, if the defendant

offers them as well, lay) and conclusions made after the fact.

26

No. 07-31131

If the dissent’s reasoning were taken to its logical conclusion, we would also

need to require the presence of a defense psychiatrist at the times the offenses

were committed — something Congress surely did not intend to require — to

completely avoid inferences based on a defendant’s self report (either during a

subsequent psychiatric examination or during trial). Yet surely a bank robber

who claims God told him to do it does not need the teller at the next window over

to be trained as a psychiatrist to be entitled to a jury instruction on insanity.

Even were we to assume that no expert offered sufficient evidence that

Long labored under delusions and hallucinations at the times he acted (for Long

himself surely did), and even if we were to conclude that no expert testimony

labeled Long’s delusional and hallucinatory episodes “psychotic” (and that such

testimony is required), we could not simply end our discussion there. The

dissent, however, does precisely that. It simply disagrees with our conclusion

that there is sufficient evidence that Long was experiencing a psychotic episode

at the times of his crimes and then uses that conclusion to state that Long does

not qualify for an insanity instruction. Yet, like the government, the dissent

does not dispute that Long suffered from schizotypal personality disorder at the

relevant times. By ending its inquiry with the no-evidence-of-psychosis

conclusion, the dissent ignores the possibility that the continuous features of

schizotypal personality disorder standing alone, i.e., without transient

exacerbations and psychotic episodes, might satisfy the requirements of § 17(a).

Although the dissent begins by couching its concerns in terms of causation and

timing, the analytically prior conclusion it must reach is that its perceived

absence of evidence of a psychotic episode at the instant of the commission of the

offenses renders Long ineligible for an insanity instruction.

27

No. 07-31131

Resolving the case on that basis without elaboration, the dissent ignores

the fact that there is an abundance of evidence that Long’s actions were at the

least a result of the continuous features of the schizotypal personality disorder

from which he suffered at the time he acted. This obviates any concerns about

timing and causation. The proper analysis would then proceed to address the

next matter: May a mental disease such as schizotypal personality disorder

(during a non-psychotic interval) that is unarguably severe in the colloquial

sense, but is not a psychosis, be classified as legally severe under § 17(a)? That,

at least, is an open and perhaps debatable question in this circuit. In United

States v. Eff we said (but admittedly did not hold) that a mental disease need not

be a psychosis to qualify as severe.38 If Eff is correct — and the dissent offers no

reason why it is not — then the dissent would be forced to address whether,

unlike the defendant in Eff, Long produced sufficient evidence that his disorder

rendered him unable to appreciate the nature and quality or the wrongfulness

of his actions. Even though technically that is an open question in this circuit,

the choice of analogy between Dixon and Eff is not debatable.

First, in Eff the defendant’s disorder “only establishe[d] that [he] had a

diminished capacity to understand and anticipate the consequences of his

actions, that he was not focused on the wrongfulness or the consequences of his

acts of arson, and that [he] makes judgments similar to an eight-year-old

child.”39 Whatever else can be said about eight-year-old children and their

judgments, they are not ordinarily described as suffering from “the most severe

type of personality disorder, which is associated with bizarre thinking and

38

524 F.3d 712, 718 (5th Cir. 2008)

39

Id. (footnote omitted).

28

No. 07-31131

paranoid mentation.” That is how Dr. Friedberg described schizotypal

personality disorder.

Second, the defendant in Eff was employed as a firefighter and was charged

with arson. That, we said, rendered “the assertion that [the defendant’s mental

disease] completely prevented him from knowing that setting fires was wrong

. . . incredible.”40 Whatever the merit of that conclusion, although Long, perhaps

as a feature of his illness, fancied himself something of a roving guardian of

national security, he was in fact a nurse, not a counterterrorism official.

Finally, and most tellingly, according to the unrebutted evidence offered at

trial, Long was not merely unfocused on the wrongfulness or the consequences

of his actions; he believed that he acted in the service of goals such as teaching

parents to protect their children and highlighting vulnerabilities to improve

national security. In contrast, the defendant in Eff said during his confession

that he committed the crime at issue “‘for the extra money. I did it because [my

supervisor] was pissing me off . . . . I thought, “I’ll get you guys . . . for doing this

to me.”’”41

Eff was an unabashed attempt to shoehorn an illness that, at most, vitiates

volition into a formulation of the insanity defense that expressly repudiated the

volitional test of the Model Penal Code.42 In contrast, Dixon was a case — like

this one — in which the defendant’s illness interfered with thought, not volition.

There is no suggestion that Long has attempted to prove only that he was driven

40

Id.

41

Id. at 718 n.7 (second omission in original).

42

See id. at 718 (examining sources that indicate Congress clearly intended to repudiate

the Model Penal Code’s approach to a lack of volition).

29

No. 07-31131

by something like an irresistible impulse. Instead, the bulk of the relevant

testimony relates to the manner in which Long’s disturbances of thought affected

his ability to appreciate his actions.

The dissent cites Dr. Friedberg’s testimony that an individual with

schizotypal personality disorder is generally able to appreciate the nature and

quality of his actions and that a person who attempts to cover up his crimes is

generally able to appreciate the wrongfulness of his actions as support for

denying Long the insanity instruction.43 But Dr. Friedberg did not testify, and

under Rule 704(b) could not have testified, that Long possessed the requisite

appreciation of his actions. In light of Dixon’s conclusion that even a hostile

witness can provide sufficient evidence to permit a reasonable juror to conclude

clearly and convincingly that a defendant was insane, the dissent must do more

than cite these isolated generalities offered by Dr. Friedberg to support its

conclusion. It must also grapple with the wrongfulness element and overcome

Dixon’s repudiation of its theory that efforts to evade detection prevent any

reasonable juror from concluding that the defendant was insane. The dissent

does neither.

43

The dissent misrepresents Dr. Friedberg’s testimony in an important way. In the

same discussion (during the government’s cross-examination of Dr. Friedberg) about the

probative value of efforts to evade detection that the dissent cites for the proposition that Dr.

Friedberg believed “generally” that such acts indicate an awareness of wrongfulness, Dr.

Friedberg said the following:

In [Long’s] particular case where you have, you know, a severe paranoid

disorder, that’s all part of his guarded nature, and so I don’t know if it’s, you

know, directly, you know, to not get caught or not be involved in, you know, the

great plot that’s out there, but there’s little doubt that that is the general feeling

when those findings [of efforts to evade detection] occur.

Omitting Dr. Friedberg’s qualification of his general testimony in Long’s specific case, and his

tying that qualification to the peculiarities of Long’s disorder in a plausible way, leaves the

reader with a mistaken impression.

30

No. 07-31131

Unlike the dissent, however, we are not required to consider only the

continuous features of Long’s schizotypal personality disorder, because we

conclude that Long did adduce sufficient evidence on the basis of which a

reasonable juror could conclude that his acts clearly and convincingly were the

result of delusions and hallucinations (which constituted a psychotic episode) at

the times that he acted. We therefore see Dixon as the appropriate analogy, and

we afford Long the same remedy that we afforded Dixon. After it hears from

Long and from the government on rebuttal, the jury might well not find that

Long was legally insane at the time of his crimes. But, if the jury should credit

his evidence, it could reasonably conclude the opposite. We are convinced that

Long’s evidence is legally sufficient to entitle him to a jury’s determination on

that issue.

III. CONCLUSION

We end where we began: The issue before us today is not whether Long’s

evidence would compel a jury to find that he was legally insane when he

committed the crimes charged; rather, it is whether his evidence is sufficient to

put the question of this affirmative defense to the factual determination of a jury

of his peers. For the foregoing reasons, we are satisfied that it is, and so

REVERSE Long’s convictions on all counts and REMAND for further

proceedings consistent with this opinion.

31

No. 07-31131

EMILIO M. GARZA, Circuit Judge, dissenting:

Though the majority appears to rely upon our precedent in United States

v. Dixon, 185 F.3d 393 (5th Cir. 1999) to support its holding that a jury

instruction on insanity should have been provided in this case, the standards set

out in Dixon and in 18 U.S.C. §17 require that there be a link between the

defendant’s mental illness and his criminal conduct))a link that is not present

on the record here. Accordingly, I respectfully dissent.

18 U.S.C. §17 is the cornerstone of the analysis of whether a jury

instruction on insanity should issue. It reads:

(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.

(b) Burden of proof.--The defendant has the burden of proving the defense

of insanity by clear and convincing evidence. [Emphasis added]

Under § 17, a defendant must show the following: (1) that he had a severe

mental disease or defect, (2) at the time of the commission of the acts, (3) as a

result of which (4) he was unable to appreciate the nature and quality or the

wrongfulness of those acts. Dixon states that a § 17 jury instruction should be

submitted to the jury “when the evidence would allow a reasonable jury to find

32

No. 07-31131

that insanity has been shown with convincing clarity.”1 Dixon, 185 F.3d at 404.

In other words, a jury instruction on the insanity defense is required if “the

evidence would permit the jury to find to a high probability that defendant was

insane.” Id. Though we construe the evidence in the light most favorable to the

defendant, id., the defendant must still provide the requisite quantum of

evidence in order to merit the insanity instruction.

The majority opinion glosses over elements (2) and (3) in concluding that

there was enough evidence to support a jury instruction on insanity in this case.

The district court “may withhold the insanity instruction if it concludes that the

relationship between a defendant’s mental illness history and his criminal

conduct has not been explained or examined in any meaningful way.” Id. at 407.

Here, because the psychosis that was part of his schizotypal personality disorder

was episodic and intermittent in nature, Long has not demonstrated with

“convincing clarity” that he was experiencing psychosis that would prevent him

from distinguishing right from wrong at the time he committed the offense. The

evidence thus does not establish a high probability of a causal link between his

disease and an inability to appreciate the nature and quality or wrongfulness of

his acts.

Dixon holds that there must be evidence to support the inference that the

defendant was unable to appreciate his wrongdoing at the time he committed the

criminal acts. In Dixon, the court stated that evidence of the defendant’s mental

illness alone was not enough for him to meet the “convincing clarity” burden;

1

As the majority points out, the “convincing clarity” standard is no higher than the

“clear and convincing” standard required for the defendant to prove the affirmative defense of

insanity. See Dixon, 185 F.3d at 404.

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rather, there must be sufficient evidence for a rational jury to make the

connection between the illness and the conduct itself:

Obviously, this means that some kind of expert testimony is needed to

explain the relationship between Dixon's medical history and his criminal

actions. Helpful testimony would describe the characteristics of his mental

illnesses and the effect of such illnesses on his ability to appreciate

wrongdoing. This type of testimony could assist a jury in resolving the

“ultimate issue” in an insanity defense, and it is hard to imagine how the

jury could adequately resolve these issues without such assistance.

[Emphasis added].

Id. at 406. In Dixon, the Court found that the insanity instruction was

warranted where there was testimony explaining how defendant’s mental illness

could have manifested itself at the time he committed the offense, and how his

illness might have acted to prevent him from recognizing the wrongfulness of his

acts.2 Id. at 407.

In the present case, Dr. Friedberg testified at trial that Long had a long-

standing schizotypal type personality disorder characterized by a “general

mentation” of irrational bizarre thinking with periods of episodic psychosis

during which he lost contact with reality. Dr. Friedberg also testified that

someone with schizotypal personality disorder is generally able to appreciate the

2

For example, the evidence showed that Dixon was off his medication for two days

before he committed his criminal acts, and that soon after his detention he appeared “agitated,

delusional, and hostile.” Dixon, 185 F.3d at 407. There was also testimony by the state’s

psychiatric expert from which the jury could infer that Dixon was having delusions about the

victim. Id.

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nature and quality of his acts.3 It is therefore central to our inquiry whether

Long suffered episodes of psychosis at the time of his acts such that he was

unable to appreciate their nature and quality or wrongfulness. Dr. Friedberg did

not provide any evidence that Long suffered from such episodes during the

commission of the offense, and in fact opined that Long’s actions in avoiding

detection were generally indicative of the ability to distinguish right from

wrong.4 Long never described those voices or his hallucinations to Dr. Friedberg

as part of a clinical evaluation, and the first appearance of this evidence is at

trial during Long’s own testimony.5

3

This is not to say that only a diagnosis of psychosis meets the elements of §17(a). In

this case, the defendant’s expert testified that Long’s disease absent the psychotic episodes

would not necessarily prevent Long from appreciating the nature of his crimes. Because the

psychotic episodes described by Dr. Friedman provide the only link between the appreciation

element of §17(a) and Long’s disease, I focus on whether Long suffered from these psychotic

episodes. Thus, I agree with the majority that the “content of the diagnosis,” not merely its

label, is at the heart of the analysis; here, there is little evidence (much less clear and

convincing evidence) that a diagnosis of schizotypal personality disorder without psychotic

episodes would lead to Long’s inability to appreciate the wrongfulness of his acts.

4

For example, Long used self-adhesive envelopes, gloves and threw away the top and

bottom copies of his letters in order to remove detection of fingerprints, purchased stamps at

busy times and mailed the letters at various locations in order not to draw attention to himself.

5

Moreover, this panel has not considered all the evidence that was before the district

court. After oral argument, the Government filed with this Court an unopposed motion to

supplement the record on appeal with a letter from the Warden at the Federal Medical Center

and a mental health evaluation written by Dr. Jim Womack. At the pre-trial stage, the district

judge ordered this evaluation as pertinent to the issues of Long’s competence to stand trial

(which is not on appeal) and Long’s mental state at the time of the commission of the crimes.

ROA 97-98. The motion to supplement was properly referred to Judge Wiener as a single judge

matter. 5TH CIR. R. 27.2.

The standard for granting a motion to supplement the record on appeal is that the

Court “will not enlarge the record on appeal with evidence that was not before the District

Court.” McIntosh v. Partridge, 540 F.3d 315, 327 (5th Cir. 2008)(internal citations omitted).

The Government averred in its motion that the letter and report were available to the district

judge when he refused to give the insanity instruction. Significantly, Long’s counsel did not

object to the supplementation of the record. Judge Wiener, in denying the Government’s

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The majority claims that between the diagnostic criteria of schizotypal

personality disorder, the testimony of Dr. Friedberg, Long’s mother and Long,

there is “sufficiently clear and convincing evidence for a reasonable juror to be

able to conclude that he suffered from a severe mental disease or defect at the

time he committed his crimes.” However, the majority conflates the question of

“severity” with the question of whether there is clear and convincing evidence

that, at the time of the commission of the crimes, Long was experiencing the

condition that prevented him from appreciating the nature and wrongfulness of

his acts. Even assuming arguendo that Long’s disease meets §17(a)’s severity

requirement, a severe disease or defect must still be directly connected to the

defendant’s lack of appreciation of the wrongfulness of his acts. As Long’s own

expert testified, the “general mentation” of schizotypal personality disorder alone

would not prevent Long from appreciating the nature and quality or

wrongfulness of his acts, nor would it necessarily lead to the loss of contact with

reality. Nothing else in the record suggests otherwise.

motion, cited several evidentiary rationales))specifically, that the documents (1) had not been

“identified, offered and received” at trial, (2) had not been authenticated (FED. R. EVID. 901,

902) and (3) purportedly contained testimonial out-of-court statements in violation of Crawford

v. Washington, 541 U.S. 36 (2004). Supplementing the record on appeal does not implicate

evidentiary issues which are properly matters for the district court, and those issues are not

germane to whether an appellate court can properly consider the letter and the report as part

of the record on appeal.

It is clear, however, that this Court would still have to address the implication of these

documents on the district court’s decision not to issue the insanity instruction. The record

clearly reflects that the district court ordered these documents to be prepared for purposes of

considering the issue of competency and sanity, pursuant to FED. R. CRIM. P. 12.2(c). The

record does not, however, indicate, nor have the parties addressed, whether and to what extent

the court used these documents in making the legal decision on whether to submit an issue on

insanity. That issue would require further briefing from the parties. At the very least, the

motion to supplement should have been granted.

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The necessity of this causal link is illustrated by a similar case arising out

of the Tenth Circuit, in which both state and government experts agreed that the

defendant suffered from Multiple Personality Disorder (MPD), and the relevant

question was whether or not the “dominant” or “host” personality was in control

at the time the defendant committed the crime. See United States v. Denny-

Shaffer, 2 F.3d 999 (10th Cir. 1993). The Tenth Circuit concluded that the

evidence was sufficient to support inferences by the fact-finder that the

defendant suffered from a severe mental disease or defect (MPD); that her

dominant or host personality was not in control so as to cause the commission

of the offense and was not aware that an alternate personality was responsible

for the defendant’s actions; and thus, that as a result of the severe mental

disease or defect the host personality was unable to appreciate the nature and

quality or wrongfulness of the conduct controlled by the alternate personality.

Denny-Shaffer, 2 F.3d at 1016. The analogy with the instant case is clear.6 The

existence of the severe mental disease or defect (such as MPD, or schizotypal

personality disorder) alone is not enough for the purposes of §17(a); there must

be sufficient evidence of a temporal and causal nexus between the symptoms of

the disease and the commission of the acts themselves.7 See also United States

6

Significantly, in Dixon, this Court cited to Denny-Shaffer and noted: “In reversing, the

court of appeals [in that case] was careful to note that ‘a factual showing or jury finding that

a defendant suffers from MPD, without more, [does not] automatically satisf[y] [§ 17's]

requirements.’ . . . Instead, in finding an insanity instruction appropriate, the court of appeals

explicitly relied on expert testimony establishing that (1) the defendant was suffering from

MPD at the time of the crime and (2) the host personality was unaware of the criminal

conduct.” Dixon, 185 F.3d at 406 (internal citations omitted).

7

The majority mischaracterizes this position as requiring an expert to have examined

the defendant during the commission of the crimes. Of course, this is an absurd result: what

the “clear and convincing” standard does require, however, is expert testimony to establish

that the symptoms Long described at trial are consistent with a “break from reality” sufficient

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v. Whitehead, 896 F.2d 432, 433-36 (9th Cir. 1990)(affirming district court’s

denial of jury instruction where neither expert nor other witnesses could

establish that defendant’s Post-Traumatic Stress Disorder manifested itself on

day of robbery, such that defendant could not appreciate nature or wrongfulness

of crime).

The majority’s disquisition on the judicial role in determining insanity

misses the point that in this case, the “clear and convincing evidence” required

to prove the elements of §17(a) is simply absent. The only testimony in this case

that tended to show that Long experienced delusions and hallucinations at the

time of the commission of his acts was provided by Long himself. This alone,

without expert testimony to aid the fact-finder in concluding that the symptoms

Long described could have prevented him from appreciating the wrongfulness

of his acts, does not support a finding that §17(a) has been satisfied. See, e.g.,

United States v. Keen, 96 F.3d 425, 430-31 (9th Cir. 1996)(upholding district

court’s decision to strike insanity defense where defendant sought to introduce

only his own testimony and testimony of family members without expert

corroboration).

Finally, and on a closely related point, the majority incorrectly

characterizes the role of the expert witness in clarifying the link between a

defendant’s disease and whether the defendant appreciates the wrongfulness of

his acts. While an expert witness may not offer opinion testimony as to whether

the defendant had the “mental state or condition constituting an element of the

crime charged or of a defense thereto,” FED. R. EVID. 704(b), the rules of evidence

obviously do not prevent experts from providing the evidence necessary for the

to meet the appreciation element of §17(a).

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fact-finder to make the inferential leap between the symptoms experienced by

the defendant at the time of the crime and the defendant’s appreciation of the

wrongfulness of his acts. Such evidence, assisted by expert explication, Dixon,

185 F.3d at 406, is exactly what §17(a) requires.8

I disagree with the majority that Long has met his burden under 18 U.S.C.

§17 of showing that a reasonable jury would believe with a high probability that

he was insane at the time of his crimes. The district court did not err in refusing

to issue the insanity instruction to the jury. Accordingly, I would affirm the

judgment of conviction, and respectfully dissent.

8

In Denny-Shaffer, 2 F.3d at 1007-09, for example, expert testimony that the

defendant’s host personality was not in control at the time of the commission of the crime was

necessary for the court’s legal conclusion that the appreciation element of §17(a) was satisfied.

See also Whitehead, 896 F.2d at 435 ( finding that although expert witness found it “possible”

that some of defendant’s symptoms were present on day of crime, “no reasonable fact finder

could view [expert’s] testimony as establishing with convincing clarity that [defendant] could

not appreciate the nature or wrongfulness of the robbery.”)

39