United States v. Long, 030509 FED5, 07-31131

Docket Nº:07-31131
Party Name:UNITED STATES OF AMERICA Plaintiff-Appellee v. STEPHEN MICHAEL LONG Defendant-Appellant
Case Date:March 05, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit



STEPHEN MICHAEL LONG Defendant-Appellant

No. 07-31131

United States Court of Appeals, Fifth Circuit

March 5, 2009


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 front lets 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 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.


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 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.

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 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.

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.


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:

(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 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...

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