United States v. EFF

        IN THE UNITED STATES COURT OF APPEALS of Appeals
                                        United States Court
                                                 Fifth Circuit
                 FOR THE FIFTH CIRCUIT        FILED
                                                                  April 14, 2008

                                                              Charles R. Fulbruge III
                                  No. 07-40338                        Clerk


UNITED STATES OF AMERICA

                                             Plaintiff–Appellee
v.

RYAN JAMES EFF

                                             Defendant–Appellant



                 Appeal from the United States District Court
                       for the Eastern District of Texas


Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
BENAVIDES, Circuit Judge:
      Appellant Ryan James Eff (“Eff”) appeals his conviction on three counts
of arson in violation of 18 U.S.C. § 844(f)(1) and (2), asserting that the district
court erred by excluding the testimony of his two expert witnesses supporting
his insanity defense. We affirm the conviction because when considering the
appropriate reach of the expert testimony and other evidence in the light most
favorable to Eff, the evidence was insufficient to warrant a jury instruction on
insanity.




                                        I.
                                        No. 07-40338

      Eff worked as a firefighter for the United States Forest Service (“USFS”).
Beginning in May 2005, twenty-three different fires were intentionally set in the
Davy Crockett National Forest, where Eff was principally assigned to fight fires.
USFS Special Agent Gary McLaughlin was investigating these fires and received
information making Eff a suspect in the case. Agent McLaughlin, therefore,
secretly installed a Global Positioning System (“GPS”) data logger on Eff’s USFS
vehicle. Based on the data from the GPS, Agent McLaughlin placed Eff’s vehicle
at the point of origin in three subsequent forest fires.
      Considering Eff their prime suspect, Agent McLaughlin and Captain
David Norsworthy interviewed Eff about the fires. Although Eff initially denied
setting the fires, he eventually confessed to starting fifteen to twenty of the
forest fires. Eff set the fires because he was angry that he was not being given
an opportunity to advance in his job, he received increased experience in fighting
the fires he had started, and he hoped this experience would qualify him for a
promotion. Moreover, Eff received extra compensation when fighting fires.
      Eff was charged with three counts of arson in violation of 18 U.S.C. §
844(f)(1) and (2).1 Eff gave timely notice of his intent to present an insanity
defense. He identified two expert witnesses to testify about a neurogenetic



      1
          These provisions provide as follows:

      (f)(1) Whoever maliciously damages or destroys, or attempts to damage or
      destroy, by means of fire or an explosive, any building, vehicle, or other personal
      or real property in whole or in part owned or possessed by, or leased to, the
      United States, or any department or agency thereof, or any institution or
      organization receiving Federal financial assistance, shall be imprisoned for not
      less than 5 years and not more than 20 years, fined under this title, or both.

      (2) Whoever engages in conduct prohibited by this subsection, and as a result of
      such conduct, directly or proximately causes personal injury or creates a
      substantial risk of injury to any person, including any public safety officer
      performing duties, shall be imprisoned for not less than 7 years and not more
      than 40 years, fined under this title, or both.


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                                  No. 07-40338

defect he has–Klinefelter’s Syndrome–and its effect on his ability to appreciate
the nature and quality or wrongfulness of his acts. On October 11, 2006, the
district court held a Daubert hearing to consider the admissibility of the expert
evidence regarding Eff’s condition. After hearing the proffered expert testimony,
the district court concluded that the experts’ testimony should be excluded and,
accordingly, refused to give a jury instruction on the insanity defense.
      Eff thereafter waived his right to a jury trial and proceeded to try the case
pursuant to stipulated facts, disputing only that his acts of arson created a
substantial risk of injury to the responding firemen. The district court found Eff
guilty on all three counts of arson and sentenced him to the statutory minimum
of seven years in prison. Eff now appeals the district court’s exclusion of his
expert testimony.
                                       II.
      The federal statute governing the insanity defense provides as follows:
      (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.
18 U.S.C. § 17(a), (b). The burden thus rests on the defendant asserting an
insanity defense “to show by ‘clear and convincing evidence’ that he is not guilty
by reason of insanity.” United States v. Dixon, 185 F.3d 393, 403 (5th Cir. 1999).
                                       III.
      The government does not dispute that Eff has been diagnosed with
Klinefelter’s Syndrome, a disorder resulting from an additional X chromosome
in a male’s DNA. Eff proffered two expert witnesses, Dr. Carole Samango-
Sprouse, Ph.D, and Dr. Kyle Boone, Ph.D, both experts in the field of

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                                  No. 07-40338

neurogenetic disorders, including Klinefelter’s Syndrome, to testify about Eff’s
Klinefelter’s Syndrome and its effects on his behavior.
A. Dr. Carole Samango-Sprouse
      Dr. Samango-Sprouse is an expert in the neurodevelopmental assessment
of children, specializing in genetic disorders. Her opinion relied heavily on a
battery of tests conducted by Dr. Boone and interviews with Eff and his mother.
      During the Daubert hearing, Dr. Samango-Sprouse first testified about
Klinefelter’s Syndrome and its general effects. Specifically, she testified that:
Klinefelter’s Syndrome is a neurogenetic disorder, which is a genetic condition
that, from birth, causes brain, behavioral, and neurocognitive differences;
untreated Klinefelter’s Syndrome causes deficient levels of testosterone in
adolescent males, affecting brain development; young adolescents with
Klinefelter’s Syndrome have decreased volume in the frontal lobe of their brains,
which controls executive functioning; the primary components of executive
functioning are inhibition, attention, and working memory; executive functioning
controls the ability to identify, plan, and execute a course of action; persons with
Klinefelter’s Syndrome and deficits in executive functioning show deficits in
their ability to plan, their ability to anticipate and appreciate the consequences
of their actions, and their ability to inhibit inappropriate behavior, resulting in
“childlike decisions” or “magical thinking”; and Klinefelter’s Syndrome resulting
in executive dysfunction can constitute a severe mental disease or defect.
      Dr. Samango-Sprouse next testified about the effect of Klinefelter’s
Syndrome on Eff’s behavior, specifically his decision to set the fires in Davy
Crockett National Forest. She stated that: the tests by Dr. Boone reveal that Eff
was deficient in executive functioning and his ability to make judgments and
understand consequences; Eff makes judgments similar to an eight-year-old
child; and when Eff set the fires, he was not thinking about the consequences or
wrongfulness of his actions–he was “busy on the front part of the plan” and “was


                                         4
                                  No. 07-40338

focused on showing that he could put out a fire” so he could impress his
supervisor. Dr. Samango-Sprouse concluded that Eff was unable to appreciate
the nature, quality, and wrongfulness of his acts.
B. Dr. Kyle Boone
      Dr. Boone runs the neuropsychology testing service at Harbor-UCLA
Medical Center. She evaluated Eff with numerous tests designed to measure the
functioning of his frontal lobes. Dr. Boone only briefly reviewed Eff’s case
history, relying on Eff’s test results for her conclusions.
      Dr. Boone testified that: the tests she administered to Eff measured
executive skills; executive skills are higher-level thinking skills, like
organization, planning, thinking through consequences, problem solving, and
picking the best solution to a problem; although Eff’s IQ is within normal limits,
his scores on some of the executive functioning tests were equivalent to those of
a mentally retarded or borderline mentally retarded person; the tests Eff did
poorly on measured the ability to stop a behavior that is not appropriate to the
situation, the ability to generate ideas and solutions to problems, and the ability
to keep track of two different sources of information at once; Eff approaches
problems similar to a ten-year-old or twelve-year-old child; and Eff has deficits
in his ability to think through the consequences of his behavior. Dr. Boone
concluded that Eff was suffering from a severe mental defect and was unable to
appreciate the nature, quality, and wrongfulness of his acts.
                                        IV.
      The district court found Eff’s expert testimony inadmissible under Federal
Rules of Evidence 702 and 403. Neither the government nor the district court
questioned the expertise, qualifications, or methodology of Eff’s expert witnesses.
The underlying basis of the district court’s conclusion was the disconnect
between the experts’ analysis of Eff’s Klinefelter’s Syndrome and their stated
conclusions that Eff–as a result of his condition–was unable to appreciate the


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                                  No. 07-40338

nature and quality or wrongfulness of his acts. See United States v. Eff, 461 F.
Supp. 2d 529, 533-37 (E.D. Tex. 2006).
      The district court’s analysis, however, did not take into account Federal
Rule of Evidence 704(b), which states:
      No expert witness testifying with respect to the mental state or
      condition of a defendant in a criminal case may state an opinion or
      inference as to whether the defendant did or did not have the
      mental state or condition constituting an element of the crime
      charged or of a defense thereto. Such ultimate issues are matters
      for the trier of fact alone.
Fed. R. Evid. 704(b). Where a defendant asserts an insanity defense, “the
ultimate issue is whether at the time of the crime the defendant appreciated the
nature and quality or the wrongfulness of his acts.” United States v. Levine, 80
F.3d 129, 134 (5th Cir. 1996) (internal quotation marks and citation omitted).
An expert is thus prohibited from testifying that a severe mental disease or
defect does or does not prevent a defendant from appreciating the nature and
quality or wrongfulness of his acts. Dixon, 185 F.3d at 400. Therefore, Dr.
Boone’s and Dr. Samango-Sprouse’s testimony regarding their conclusions that
Eff–at the time he committed the relevant acts of arson–was unable to
appreciate the nature and quality or wrongfulness of his actions is inadmissible
at trial under Federal Rule of Evidence 704(b).
      Given that this testimony is inadmissible, the question becomes whether
the district court erred in excluding the experts’ “other” testimony–that is,
testimony regarding Klinefelter’s Syndrome and its effect on Eff’s behavior
(other than testimony regarding the ultimate conclusion). Because this “other”
testimony goes to Eff’s mental condition at the time he committed the acts of
arson, it is clearly relevant to Eff’s asserted insanity defense. Furthermore, the
district court properly found no problems with the reliability of this “other”
expert testimony under Rule 702. Thus, this testimony should have gone before



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the jury unless it was insufficient to warrant a jury instruction on insanity.2
Therefore, the decisive issue in this case is whether such testimony was
sufficient to warrant a jury instruction on Eff’s insanity defense.3 Because
“sufficiency of the evidence is generally considered a legal issue,” we review the
district court’s refusal to give a jury instruction on insanity as a question of law
de novo.4 Dixon, 185 F.3d at 403 (internal quotation marks omitted).
       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.”       Id. at 404 (internal quotation marks omitted).                  This
standard does not require a defendant to “eliminate ambiguity from his proof or
to instill certainty in the minds of the jurors” but rather only requires that the
evidence “would permit the jury to find to a high probability that defendant was
insane.” Id. (internal quotation marks and citation omitted) (emphasis added).
Additionally, out of deference to the jury’s role, a court “must construe the
evidence most favorably to the defendant” when deciding whether to submit the


       2
        As explained in Section V infra, Eff’s insanity defense wholly depends on this expert
testimony, and this testimony is only relevant to Eff’s asserted insanity defense. Thus, if this
testimony was insufficient to warrant a jury instruction on insanity, then the testimony was
properly excluded as irrelevant and unhelpful to the trier of fact. If, on the other hand, such
testimony was sufficient to warrant a jury instruction, its exclusion was erroneous.
       3
         Although the district court did not focus on this issue, it did reach it as an alternate
basis for its holding, stating:

       The court finds that even if the experts’ testimony were admitted, it would not
       allow a reasonable jury to conclude that Eff was unable to appreciate the nature
       and quality or wrongfulness of his actions. At best, the jury would only be able
       to determine that Eff had a severe mental defect that reduced his capacity for
       such appreciation.

Eff, 461 F. Supp. 2d at 536-37.
       4
        Although Eff does not appeal the district court’s refusal to provide a jury instruction
on his insanity defense, Eff does appeal the district court’s decision to exclude his expert
testimony. As explained above, the question of whether Eff’s expert testimony is sufficient to
warrant a jury instruction is instrumental in determining its admissibility.

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                                       No. 07-40338

insanity defense to the jury. Id. A court may, however, “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; United States v. West, 962 F.2d 1243, 1247-48
(7th Cir. 1992) (“A judge may take this decision from the jury, like any other, if
the admissible evidence . . . would not permit a reasonable jury to return a
verdict of insanity.”).
                                              V.
       Ignoring the experts’ testimony on the ultimate issue and construing Eff’s
“other” evidence supporting his insanity defense in the light most favorable to
Eff, we conclude that such evidence was insufficient to warrant a jury
instruction on his insanity.         Even assuming that Eff’s experts sufficiently
established that his Klinefelter’s Syndrome constituted a “severe mental disease
or defect,” Eff’s expert testimony was insufficient to permit a rational jury to
conclude, by clear and convincing evidence, that he was unable to appreciate the
nature and quality or wrongfulness of his actions.
       At best, Eff’s expert testimony only establishes that Eff had a diminished
capacity to understand and anticipate the consequences of his actions,5 that he
was not focused on the wrongfulness or the consequences of his acts of arson,
and that Eff makes judgments similar to an eight-year-old child. This evidence
establishes only that Eff may have had a diminished capacity to appreciate the
nature and quality or wrongfulness of his actions, not that he was completely
unable to appreciate such things, as required by 18 U.S.C. § 17.


       5
          Although Dr. Samango-Sprouse testified that Eff was unable to anticipate the
consequences of setting the fires, Eff’s confession establishes that he was concerned about his
fires harming structures or people living in the nearby neighborhood and he took measures
–such as monitoring wind conditions–to ensure that his fires would not spread and threaten
people or structures. Such a statement unequivocally indicates that Eff was able to appreciate
at least some of the consequences of his actions, and Dr. Samango-Sprouse admitted as much
when confronted with this evidence.

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                                        No. 07-40338

       In fact, the undisputed evidence shows that Eff was able to appreciate the
nature, quality, and wrongfulness of his actions. First, with respect to Eff’s
ability to appreciate the nature and quality of his acts, Eff knew what he was
doing–setting fires–and, as a USFS fireman, he knew the damage and harm that
fires could cause.6       Second, with respect to Eff’s ability to appreciate the
wrongfulness of his acts, the evidence shows that Eff had the ability to and did
appreciate that his actions were wrong. Eff set the fires in secret and initially
attempted to cover up his involvement by lying to investigators. See United
States v. Barton, 992 F.2d 66, 69 (5th Cir. 1993) (“[A] person’s attempt to hide
his commission of a crime suggests that the person knows the action is wrongful
or illegal . . . .”). Furthermore, in his confession, Eff indicated that he set the
fires, in part, to retaliate against his superiors for denying him opportunities to
advance at the USFS, and this motivation demonstrates that Eff knew that his
actions were wrong.7 Finally, given that Eff was employed by the USFS to put
out fires and knew firsthand the dangerousness of fires, the assertion that Eff’s
Klinefelter’s Syndrome completely prevented him from knowing that setting
fires was wrong seems incredible. Although Dr. Samango-Sprouse stated that
Eff was unable to appreciate the wrongfulness of his actions, her substantive
testimony further indicates that Eff was in fact able to tell right from wrong. Dr.
Samango-Sprouse testified that Eff appreciates that his conduct was wrong as




       6
         As explained in footnote 5 supra, Eff knew that his fires could cause harm to
surrounding persons and/or structures and took measures to avoid such harm. Simply because
Eff may have been unable to anticipate all of the consequences of his actions and thought that
his supervisor would be impressed with his ability to subsequently put out the fires he secretly
started does not mean that Eff was unable to understand the nature and quality of the actions
he was taking.
       7
         During his confession, Eff stated: “I did it for the extra money. I did it because Bobbie
[Eff’s supervisor] was pissing me off . . . because the ranger was pissing me off. I was being
held back. I thought, ‘I’ll get you guys . . . for doing this to me.’”

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                                       No. 07-40338

an eight-year-old child appreciates that stealing is wrong–they can articulate
that their actions were wrong, but they will complete the act anyway.8
       Moreover, it appears that Eff’s insanity defense is the type of legal excuse
that Congress sought to exclude when it “deleted the ‘volitional prong’ of the
commonly accepted Model Penal Code approach which had permitted acquittal
if the defendant ‘as a result of mental disease or defect . . . lacks substantial
capacity . . . to conform his conduct to the requirements of law.’” United States
v. Pohlot, 827 F.2d 889, 896 (3d. Cir. 1987) (quoting Model Penal Code § 4.01
(1962)). “The language of [18 U.S.C. § 17] leaves no room for a defense that
raises ‘any form of legal excuse based upon one’s lack of volitional control’
including ‘a diminished ability or failure to reflect adequately upon the
consequences or nature of one’s actions.’” United States v. Worrell, 313 F.3d 867,
872 (4th Cir. 2002) (quoting United States v. Cameron, 907 F.2d 1051, 1061 (11th
Cir. 1990)); see also Pohlot, 827 F.2d at 890 (“[T]he defenses that Congress
intended to preclude usually permit exoneration or mitigation of an offense
because of a defendant’s supposed psychiatric compulsion or inability or failure
to engage in normal reflection . . . .”).
       Eff’s expert testimony indicates that the true effect of his disorder was not
that it rendered him incapable of appreciating the nature and quality or
wrongfulness of his actions, but rather that it prevented him from conforming
his conduct to the requirements of the law–that is, it created a diminished
ability or inability to inhibit inappropriate behavior. Dr. Samango-Sprouse
testified that executive functioning affects behavior because it provides impulse




       8
           Dr. Samango-Sprouse also stated that: “At an 8-year-old level what you would expect
is: I will impress my boss because I did something that was wrong–i.e., set a fire–and then put
it out; but because I put it out, that would be perceived as positive.” (emphasis added).

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                                        No. 07-40338

control and determines a person’s ability to inhibit behavior.9 Additionally, in
explaining Eff’s behavior, she stated that children with executive dysfunction
will “repeatedly get into the same problem because they cannot stop the behavior
because they so much want what they are going for.” Dr. Boone also testified
that people with frontal lobe dysfunction “don’t have the same equipment to
control their behavior” as the rest of society and have “no choice” or “less choice”
over their behavior. Furthermore, Dr. Boone stated that the tests that Eff
scored poorly on measured, in part, the ability to stop an inappropriate behavior.
It thus appears that Eff’s insanity defense is really based on his lack of volition,
and Congress specifically precluded this brand of insanity defense.
      This is not to say that Eff’s expert testimony could not have come in to
establish that he suffered from a severe mental disease or defect if Eff had other
evidence that would allow a rational jury to infer that his condition rendered
him unable to appreciate the nature and quality or wrongfulness of his actions.
See Dixon, 185 F.3d at 406; United States v. West, 962 F.2d 1243, 1248, 1250 (7th
Cir. 1992) (concluding that the expert testimony supporting the defendant’s
claim of a severe mental defect was erroneously excluded because other evidence
could establish that the defendant could not understand that his actions were
wrong). As the district court noted: “The testimony about Klinefelter causing a
severe mental defect might be admissible if there was other evidence to tie that
mental defect into an inability (rather than reduced capacity) by Eff to
appreciate the wrongfulness of his acts.” Eff, 461 F. Supp. 2d at 537. The



      9
          Dr. Samango-Sprouse stated:

      Well, it is executive function that determines your ability to inhibit. So, all of
      us may get angry and we may think about punching someone in the nose; but
      it is our frontal lobe that’s sort of, in a Freudian way, like our superego. It gives
      us the ability not to do it. So, it prevents road rage or prevents the employee
      from punching the boss in the nose because the boss has said something they
      don’t like.

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                                       No. 07-40338

district court, however, found that Eff “did not present the testimony of these
two experts as mere ‘building blocks,’ which would be tied in with other evidence
to establish Eff's inability to appreciate the nature and quality or wrongfulness
of his actions,” and, thus, Eff’s case “rest[ed] squarely on the experts’
testimony.”10 Id. On appeal, Eff does not challenge this conclusion nor does Eff
point to any evidence–besides the testimony of his experts–supporting his
insanity defense. Eff’s expert testimony thus forms the basis of his insanity
defense, and, as explained above, such testimony is simply insufficient to
warrant a jury instruction.
       Given that Eff’s expert testimony could not support an insanity defense
and was offered only to support such a defense,11 such testimony became
irrelevant and unhelpful to the trier of fact, and there was no error in its
exclusion. Eff’s claim that the district court’s exclusion of his expert testimony
violated his Sixth Amendment right to present a meaningful defense is,
therefore, meritless. See Holmes v. South Carolina, 547 U.S. 319, 326 (2006)
(“While the Constitution . . . prohibits the exclusion of defense evidence under
rules that serve no legitimate purpose or that are disproportionate to the ends
that they are asserted to promote, well-established rules of evidence permit trial
judges to exclude evidence if its probative value is outweighed by certain other


       10
         The district court did note that Eff also intended to introduce testimony from family
members regarding “Eff’s problems growing up and various learning disabilities.” Eff, 461 F.
Supp. 2d at 537 n.5. The district court determined, however, that this testimony was
summarized in the report of one of his experts and essentially concluded that such testimony
did not provide any additional support for Eff’s insanity defense. See id.
       11
         Eff does argue that “diminished capacity” evidence is admissible to “defeat the mental
state requirement of a specific intent crime.” Even if this legal proposition is correct, as
numerous other circuits have concluded, see, e.g., United States v. Cameron, 907 F.2d 1051,
1062-66 (11th Cir. 1990), Eff wholly failed to explain–on appeal and before the district
court–how his mental condition negated his intent. Furthermore, it is clear that Eff satisfied
the “malicious” intent element of § 844(f)(1), as Eff at the very least acted with willful
disregard of the likelihood that damage would result from his fires. See United States v.
Corona, 108 F.3d 565, 571 (5th Cir. 1997).

                                              12
                                  No. 07-40338

factors such as unfair prejudice, confusion of the issues, or potential to mislead
the jury.”).
                                      VI.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED. Accordingly, Appellant’s Motion for Bond Pending Appeal is
DENIED.




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