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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 98-10371
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JIMMIE LEE DIXON,
Defendant-Appellant.
_________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________
August 16, 1999
Before KING, Chief Judge, SMITH and
reverse the refusal to instruct the jury on the
BARKSDALE, Circuit Judges.
insanity defense and remand for a new trial, we
do not reach Dixon's challenges to his
JERRY E. SMITH, Circuit Judge:
sentencing enhancements.
Jimmie Dixon appeals his conviction of
I.
robbery, assault, kidnaping, and firearms viola-
A.
tions, asserting that the district court erred by
Dixon entered the emergency room of a VA
(1) allowing expert testimony on the ultimate
hospital, approached hospital employee Jose-
issue of his insanity defense in violation of
phine Adams, and ordered her to come with
FED. R. EVID. 704(b); (2) refusing to give a
him. He then put his hand in his jacket and
jury instruction on the insanity defense; and
told her, "I've got a gun." When Adams be-
(3) enhancing his sentence based on his
gan backing away, Dixon pulled out his gun
causing "serious bodily injury" and his use of
and pointed it at her. He repeatedly threatened
a firearm in a crime of violence. Because we
to shoot her, and she pleaded with him not to

do so. Eventually, Adams managed to escape
When Dixon, Dyer, and Shahan made it
by jumping through an interior window into a
outside the hospital, Dixon ordered Dyer to
small room, in which she locked herself and
get the ambulance. He then put his arm
her husband, John Adams. Before she locked
around Shahan and pointed the shotgun at her
the door, John Adams saw a man fitting Dix-
throat. Dyer walked away, saw a police
on's description holding a pistol-grip shotgun
officer approaching, and heard the shotgun
saying "something to the effect that get down
discharge.
or I'll blow your MF head off."
When Dyer walked away, Dixon kissed
Other witnesses saw Dixon holding a pistol-
Shahan and asked whether she was going to be
grip shotgun and heard him tell everyone in the
"his woman" that night. Seeing a police car
waiting area to lie down. Lonnie Shepard, a
pull up, he pointed his shotgun at the departing
hospital employee, testified that he tried to run
Dyer and fired. Dixon then dragged her to his
when he saw Dixon but that Dixon told him to
car, telling her that they had to hurry to avoid
get on the floor and get out his billfold.
the police and that he had to cover her uniform
with his jacket to make it harder to identify
Two ambulance drivers entered the
her. He forced her into the passenger seat of
emergency room lobby, having just dropped
his car and sat down on the driver's side,
off a patient. Dixon confronted the drivers,
keeping the shotgun on the armrest.
Janet Shahan and David Dyer, with the
shotgun and told them to get on the floor or he
Driving away, Dixon lit up a marihuana
would "blow your heads off." After they
joint, told Shahan to take a drag, and, after she
complied, Dixon demanded Dyer's wallet, but
did so without inhaling, ordered her to inhale.
Dyer had only his checkbook. Dixon threw
He had Shahan put duct tape over her eyes and
down the checkbook but took a diamond en-
drove in circles so she would not know where
gagement ring and five dollars from Shahan.
he lived. He also restrained her with handcuffs
he had purchased two days earlier.
Dixon ordered Dyer and Shahan to get up,
telling them that "we're going for a little
After they arrived at Dixon's house, he ini-
walk." He warned that it would not bother
tially left Shahan blinded and handcuffed on his
him to shoot and kill them, noting that he had
bed, explaining that he did not want her to be
been in Vietnam and had killed people before.
able to identify him by the things in his room.
He said he was angry at the hospital because
When he took the tape and handcuffs off, he
they had given him the run-around.
suggested that they pretend they were married
and that they had just gotten back from work.
On their way down a corridor, Dixon asked
He took off her boots and began rubbing her
another bystander, Charles Redd, whether he
feet, then told her to lie down on the bed,
had any money for a soda. Redd said that he
warning her to be careful because a gun was
had no money; displaying his shotgun, Dixon
under the pillow. He lay down beside her, but
replied, "Don't worry about it, this .410
got up to turn on a tape recorder to record
[shotgun] will take care of it." Redd backed
their having sex. Then, after undressing
away.
himself and Shahan, he raped her. Shahan
testified that "I didn't fight him because I
2

would have ended up dead. That's the way I
a car later drove by, Dixon listened to see
felt."
whether it was his brother. He boasted,
however, that he did not care whether it was
Afterward, Dixon talked with Shahan, tel-
the police, because "as long as I have you as a
ling her that he had been in the military, and he
hostage, I can do anything."
showed her his bullets and grenade. He talked
about how he was angry at the government
Dixon told Shahan that they would have
and that they had not given him his
sex one more time before he would drop her
medication. He told her that he wanted to kill
off, because he had to go to work later. He
a doctor and that he was mad at the police.
raped her again, then returned her original
He also said that he had three missions, one of
clothes but removed her knife, driver's license,
which was to take a hostage. Finally, he told
and a $100 bill. He also kept her underwear as
Shahan that he was "bipolar."
a memento. He said he would keep her license
for three days and that he hoped they would
During the night, Dixon wanted to go out
call each other. Finally, before leaving, he had
for beer. He gave Shahan some of his clothes
her inscribe a Valentine's Day card.
to wear, telling her that it would make it hard-
er to identify her. He also blindfolded and
Driving Shahan back to her workplace,
handcuffed her again and put her in his car. At
Dixon again had her wear the taped sunglasses
the store, he took off the blindfold and
and told her that the "alibi" would be that she
handcuffs but gave her sunglasses to wear and
was his girlfriend. He explained that he would
instructed her to act as though she were his
drop her off at a nearby convenience store, but
girlfriend.
he ended up dropping her off at a pay phone
some distance away, saying that he did not
Dixon bought some beer and cigars.
want to drop her off right in front of the store
Returning to his car, he did not handcuff or
because that would look suspicious.
blindfold Shahan again, but put duct tape over
the sunglass lenses, which allowed her to see
Shahan walked to her workplace and went
some of the landmarks near Dixon's house.
in. Later, she was taken to a hospital and
Police later used this information to apprehend
underwent a pelvic examination, which
Dixon. During their drive, he talked
revealed sexual intercourse within the previous
repeatedly about how he was proud to be
four to six hours.
getting away with it and that he would not be
caught.
The police, acting on information provided
by Shahan, arrested Dixon at his house the
After returning to Dixon's house, Dixon
same morning he had dropped Shahan off.
asked Shahan whether they could have a
They found a number of identifying items,
relationship. Shahan tried to appease him by
including Shahan's underwear, the grenade,
giving him her telephone number. He called
the handcuffs, duct tape, and a cassette
the number and left a voicemail message with
recorder. Dixon's fingerprints were found on
both of their voices on it. He also called his
the sunglasses and on pieces of duct tape.
brother and told him not to come into Dixon's
room because Dixon had a friend over. When
B.
3

Dixon was indicted on five counts: (1) rob-
Dixon's medical history occurred during the
bing Janet Shahan by force, violence, and
cross-examination of Dr. James Wolfson, the
intimidation in violation of 18 U.S.C. �� 7(3)1
government's expert mental health witness.
and 2111; (2) attempting to rob Dyer in
violation of the same statute; (3) assaulting
Wolfson, a forensic psychiatrist at the U.S.
Dyer with a sawed-off shotgun in violation of
Medical Center for Federal Prisoners, had
18 U.S.C. �� 7(3) and 113(a); (4) using and
originally been appointed by the district court
carrying a gun in relation to a kidnaping in
to examine Dixon's competence and criminal
violation of 18 U.S.C. � 924(c)(1); and
responsibility, to assess his ability to stand
(5) kidnaping Shahan for the purpose of com-
trial. Wolfson concluded, based on personal
mitting aggravated sexual abuse in violation of
examination and a review of Dixon's medical
18 U.S.C. � 1201(2). The defense offered
history, that Dixon was competent to stand
medical records detailing Dixon's history of
trial. Wolfson testified that he did not believe
mental illness and showing that he had been
that Dixon was suffering from a severe mental
diagnosed with acute schizophrenia beginning
disease o n the day of the crimes. He also
in 1976. Later examinations during the 1980's
stated that he believed Dixon was able to ap-
concluded he had "chronic undifferentiated
preciate the nature and quality or the
schizophrenia," "disorganized schizophrenia,"
wrongfulness of his acts. Dixon's counsel
"chronic paranoid schizophrenia," "schizoaf-
objected, claiming that this testimony
fective schizophrenia," "manic bipolar disor-
answered the ultimate issue of Dixon's sanity
der," "bipolar disorder," and "mixed bipolar
at the time of the offense, in violation of FED.
disorder." The diagnosis of "mixed bipolar
R. EVID. 704(b).
disorder" was made by a doctor at the federal
detention center the day after Dixon was
The court overruled the objection but later
arrested.
reversed course and issued a curative
instruction to disregard this part of Wolfson's
Having entered these records into evidence,
testimony. The court also conducted its own
however, Dixon's counsel did not call any ex-
examination of Wolfson and asked whether a
pert witnesses to testify regarding it, but, in-
person suffering from Dixon's mental illnesses
stead, simply argued that "showing the lengthy
can still appreciate the nature and quality or
history and diagnosis of his mental illnesses,
wrongfulness of his acts. Wolfson answered
and the description of those mental illnesses by
that having such mental illnesses does not pre-
the doctor, and the timing of the evaluations
clude someone from appreciating
that I was able to put before the Court" raises
wrongfulness.
the issue of whether Dixon was legally sane
when he committed the acts of which he was
Under further questioning by the court,
charged. Therefore, most of the discussion of
Wolfson also testified that looking at one's ac-
tions is more important than are personal med-
ical records when determining whether he had
1 Because a VA hospital is within the special
the ability to appreciate the wrongfulness of
maritime or territorial jurisdiction of the United
his conduct. Wolfson advised that some of
States, 18 U.S.C. � 7(3) gives the United States
Dixon's actions indicated that he was not suf-
jurisdiction to prosecute Dixon's robbery and as-
fering from any of his illnesses when he
sault crimes.
4

committed the criminal acts. Dixon's counsel
again objected under rule 704(b) but was over-
II.
ruled. The jury found guilt on all counts.
The decisive issue is whether the court
properly refused to allow the jury to consider
Dixon's insanity defense. Dixon argues that
the court erred in allowing Wolfson to testify
regarding the constituent elements of the fed-
eral insanity defense set forth in � 17(a).2 On
the basis of Wolfson's testimony, the court
refused to submit an insanity instruction.
This court has not yet decided what
quantum of evidence is sufficient to constitute
a jury question on insanity under � 17. The
issue is complicated by the fact that the
sufficiency of the evidence for an insanity
defense under � 17 depends largely on the ad-
missibility of expert testimony under
rule 704(b).
A.
We review challenges to evidentiary rulings
for abuse of discretion. United States v.
White, 972 F.2d 590, 598 (5th Cir. 1992). To
qualify for reversal, the abuse of discretion
must create a likelihood of prejudice to the
defendant, and the substantial right at issue
must be made known to the court. United
States v. Tansley, 986 F.2d 880, 886-87 (5th
2 The subsection reads,
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.
18 U.S.C. � 17(a).
5

Cir. 1993).
Therefore, to analyze whether an expert's
1.
testimony is admissible under rule 704(b), we
We first consider whether the admission of
must decide what are the constituent elements
expert testimony on Dixon's insanity defense
of an insanity defense under � 17, for rule
was harmless. Error is harmless if, in light of
704(b) prohibits an expert from giving an
the whole record, the contested evidence did
opinion or inference on any such element.
not contribute to the verdict. See United
States v. Dickey, 102 F.3d 157, 163 (5th Cir.
Relying on the plain language of the statute,
1996). If we were to uphold the decision to
Dixon asserts that there are two constituent
withhold the insanity defense, see part II.B.,
elements of the insanity defense: (1) that the
infra, then none of the expert testimony
defendant was suffering from a severe mental
challenged in this section could have
illness at the time of his criminal conduct and
contributed to the verdict, because the
(2) that this illness rendered him unable to
question of sanity was not before it. Because,
appreciate his wrongdoing at that time. This
however, the court relied in part on its
reading means there are two "ultimate issues"
assessment of the expert testimony in
for purposes of rule 704(b) that are for the
withholding the insanity instruction, resolving
jury alone to decide.
the issue of the admissibility of the testimony
may decide the propriety of giving the insanity
In United States v. Levine, 80 F.3d 129,
instruction.
134 (5th Cir 1996), this court, in considering
the insanity defense, identified only the second
We conclude that the district court relied
elementSSthe ability to appreciate wrong-
on improperly admitted expert testimony to
doingSSwhen discussing rule 704(b) ultimate
withhold the insanity instruction, so any error
issues. "In the case where the defendant
in admitting the evidence cannot be harmless.
asserts the affirmative defense of insanity, the
Consequently, we consider Dixon's rule
ultimate issue is whether at the time of the
704(b) challenges before addressing the need
crime the defendant 'appreciated the nature
for an insanity instruction.
and quality or the wrongfulness of his acts.'"
Id. at 134 (quoting United States v. Dotson,
2.
817 F.2d 1127 (5th Cir. 1987), opinion on
Rule 704(b) prohibits an expert witness,
rehearing, 821 F.2d 1034 (5th Cir. 1987)).
testifying with respect to mental state or
Though the Levine court did not expressly
condition, from stating "an opinion or
analyze whether the "severe mental illness"
inference as to whether the defendant did or
did not have the mental state or condition
constituting an element of . . . a defense . . . ."3
(...continued)
opinion or inference as to whether the defen-
dant did or did not have the mental state or
3 The rule reads,
condition constituting an element of the
crime charged or of a defense thereto. Such
No expert witness testifying with
ultimate issues are matters for the trier of
respect to the mental state or condition of a
fact alone.
defendant in a criminal case may state an
(continued...)
FED. R. EVID. 704(b).
6

element also constitutes an ultimate issue, it
as an 'inadequate personality,' 'immature
strongly implied that only the "wrongdoing"
personality,' or a patter of 'antisocial
element of the insanity defense is an ultimate
tendencies' do not constitute the defense." S.
issue for purposes of rule 704(b).
Rep. 98-225, reprinted in 1984 U.S.C.C.A.N.
3182, 3411. Congress could not have
For instance, the court noted, without fur-
achieved its goal of limiting the insanity
ther comment, that the defendant had present-
defense to severe mental diseases without
ed expert testimony that he was suffering from
requiring the defendant to show he was
a severe mental illness at the time of his
suffering from such a "severe mental disease."
criminal conduct. The government then put on
its own expert who testified to the contrary
and even stated that someone suffering from
the alleged disorder would not have acted in
the manner of the defendant. The district
court allowed this testimony, and the Levine
court affirmed, stating that this testimony "did
not contain an opinion or an inference as to
whether the defendant did or did not have the
mental state or condition constituting an
element of the . . . defense thereto." Levine,
80 F.3d at 135. The challenged statement,
however, did contain a necessary inference as
to whether the defendant was suffering from a
severe mental illness.
Thus, Levine 's holding makes sense only if
the question whether the defendant was
suffering from a severe mental illness at the
time of the crime is not an ultimate issue
subject to rule 704(b)'s prohibition. Because,
however, Levine did not squarely address the
question, it does not bind us.
The plain language of � 17 instructs that the
defendant must show that (1) "as a result of a
severe mental disease" (2) he "was unable to
appreciate the nature and quality or the
wrongfulness of his acts." This language
supports Dixon's reading and is partially
supported by the legislative history. Congress
appears to have added the "severe mental
disease" requirement "to emphasize that non-
psychotic behavior disorders or neuroses such
7

On the other hand, the plain language of
The matter is complicated, however,
rule 704(b) does not necessarily prohibit tes-
because Congress plainly endorsed having
timony on all elements of a defense, but only
experts testify on whether defendants are
on "whether the defendant did or did not have
suffering from a mental illness at the time of
the mental state or condition constituting the
their criminal acts. Rule 704(b) was enacted
element of the . . . defense . . . ." Because
as part of the same bill that enacted � 17. On
� 17 requires a defendant to show "as a result
the next page of the same Senate report
of a severe mental disease" that he was unable
discussing how "severe mental illnesses" must
to appreciate wrongdoing, the showing of a
be shown for a defendant to use the insanity
severe mental disease is necessary only as part
defense, Congress stated: "Psychiatrists, of
of the larger element of the inability to
course, must be permitted to testify fully about
appreciate wrongdoing.
the defendant's diagnosis, mental state and
motivation (in clinical and common sense
In other words, the "mental state or
terms) at the time of the alleged act . . . ." S.
condition" that constitutes an element of the
Rep. No. 98-225, reprinted in 1984
defense is the inability to appreciate
U.S.C.C.A.N. 3412. Thus, Congress appeared
wrongdoing. The "severe mental disease"
to see no conflict between (1) requiring a
requirement is subordinate to this overall
defendant to show a severe mental illness as a
element and should not be considered a subject
constituent element of his insanity defense, (2)
prohibited by rule 704(b). An expert is
prohibiting experts from testifying to ultimate
therefore free to testify as to whether the
issues of an insanity defense; and (3)
defendant was suffering from a severe mental
encouraging experts to testify about whether a
illness at the time of the criminal conduct; he is
defendant suffered from a mental illness at the
prohibited, however, from testifying that this
time of the criminal conduct.
severe mental illness does or does not prevent
the defendant from appreciating the
It may seem illogical to preclude expert
wrongfulness of his actions.
witnesses from giving a diagnosis of mental
illness. An expert psychiatrist can assist a jury
3.
by giving an opinion in his area of expertise:
Dixon avers that the district court violated
whether a patient is suffering from a particular
rule 704(b) when it allowed Wolfson to testify
mental disease. Congress apparently did not
that (1) Dixon was able to appreciate the
intend to prohibit the expert testimony that
wrongfulness of his conduct; (2) a person
could assist the jury to reach a verdict. We are
suffering from the diseases mentioned in Dix-
reminded, however, that "the meaning of a
on's medical records could appreciate the
statute is not conclusively established by its
wrongfulness of his acts; and (3) Dixon was
legislative history," and "the legislative history
not suffering from a severe mental disease or
of a statute may not compel a meaning at var-
defect at the time of the alleged crimes. He
iance with its plain language." 73 AM. JUR. 2D
argues that all of this testimony impermissibly
Statutes � 151 (1998). We cannot ignore the
resolves the "ultimate issues" that constitute
plain language of � 17 and rule 704(b) in favor
his insanity defense.
of the legislative history.
a.
8

Wolfson testified that he "found nothing in
court conducted its own brief examination:
the records to indicate that Mr. Dixon would
have been unable to appreciate the nature and
THE COURT: Can a person suffering
quality or the wrongfulness of his conduct in
from any or all of those [mental ill-
that or any other time period." Because "the
nesses] still, nevertheless, be able to ap-
ultimate issue is whether at the time of the
preciate the nature and quality or the
crime the defendant 'appreciated the nature
wrongfulness of his acts?
and quality or the wrongfulness of his acts,'"
see Levine, 80 F.3d at 134, Wolfson's tes-
[OBJECTION RAISED AND OVER-
timony violated rule 704(b).
RULED]
The government agrees but maintains that
. . .
the court cured the error by instructing the
jury to disregard the portion of Wolfson's tes-
WOLFSON: The mere presence of one
timony assessing whether Dixon understood
of these illnesses would not auto-
the wrongfulness of his actions.4 Because
matically prevent them from being able
juries are presumed to follow instructions, the
to do that.
instruction sufficiently cured this error. See
Richardson v. Marsh, 481 U.S. 200, 206
Dixon claims that this testimony also imper-
(1987).
missibly encroached on the jury's authority to
decide the ultimate issue under rule 704(b).
b.
The government responds that rule 704(b)
Dixon maintains, however, that this cura-
prohibits only testimony on whether the defen-
tive instruction did not reach the court's own
dant had the requisite mental state and not on
prejudicial questions to Wolfson. As we have
whether a hypothetical person suffering from
stated, after the government's redirect, the
a disease can have the requisite mental state.
The government finds authority in United
States v. Brown, 32 F.3d 236 (7th Cir. 1994),
4 The instruction read as follows:
which permitted an expert to testify that a
hypothetical person suffering from the defen-
There was a specific question asked of
dant's disease could understand the wrong-
the doctor about whether or not he believed
fulness of his acts.
the defendant was unable to appreciate the
nature and quality or the wrongfulness of his
The government also points out that rule
acts, and I allowed him to give his opinion
704(b)'s legislative history expressly anti-
on that.
cipates such "hypothetical" testimony. "Under
And I'm instructing you at this time to
this proposal, expert psychiatric testimony
disregard that opinion for the following rea-
would be limited to presenting and explaining
son: that question is the ultimate question
their diagnoses, such as whether the defendant
for the jury . . . . I'm going to instruct you
had a severe mental disease or defect and what
now to disregard the witness's answer to
the characteristics of such a disease or defect
that question and don't consider it for any
. . . may have been." 1984 U.S.C.C.A.N.
purpose whatsoever.
9

at 3412. The government argues that by testi-
defendant could not appreciate the nature and
fying that a defendant suffering from Dixon's
quality or the wrongfulness of his actions. The
diseases could distinguish between right and
district court excluded this testimony, and the
wrong, Wolfson was properly describing "the
court of appeals affirmed. "Defense counsel's
characteristics of" Dixon's mental illnesses, as
hypothetical not only assumed facts which
Congress intended.
identified the defendant, but directly tracked
the language of the insanity statute . . . .
This court, following the majority of cir-
Whether such question was posed in the form
cuits, has held that "under Rule 704(b) hypo-
of a hypothetical is immaterial." Manley,
thetical questions mirroring the fact patterns of
893 F.2d at 1225.5
the evidence in the trial case are violative of
the rule when the answering testimony con-
tains a necessary 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." Le-
vine, 80 F.3d at 134. The Levine court re-
viewed the admission of expert testimony of
whether the "facts similar to those in evidence
were consistent with the conduct of a hypo-
thetical person suffering a severe manic epi-
sode." Id. at 135.
Because the testimony did not discuss or
raise inferences about the defendant's ability to
recognize wrongdoing at the time of the act,
the Levine court affirmed admission of the
testimony. In other words, the expert could
testify about whether the defendant exhibited
characteristics of a person suffering from a
mental illness but could not testify that a hypo-
thetical person suffering from the same mental
condition and committing the same acts as the
defendant would or would not be able to
5 See also United States v. Boyd, 55 F.3d 667,
recognize wrongdoing, because this is an ele-
669 (D.C. Cir. 1995) (reversing admission of ex-
ment of the insanity defense.
pert testimony because "the expert was allowed to
address a hypothetical that was a carbon copy of
The cases relied on in Levine expressly
the matter before the jury, thus effectively giving a
prohibit an expert from using "hypothetical"
forbidden opinion on the case at hand"); United
testimony to assess the defendant's mental
States v. Dennison, 937 F.2d 559, 565 (10th Cir.
state or condition. In Manley, the defendant's
1991) (affirming exclusion of expert testimony that
expert testified that a hypothetical person suf-
alcohol and drug consumption by a person
fering from the same mental illness as the
suffering from a borderline personality disorder
renders him incapable of forming specific intent).
10

The disapproval of hypothetical expert tes-
its discretion by eliciting Wolfson's testimony
timony in these cases, however, does not nec-
on how Dixon's claimed illnesses could affect
essarily require us to reverse here, for the
one's ability to appreciate wrongdoing. As
instant district court asked a slightly different
long as the expert leaves the ultimate issue
kind of hypothetical: whether a person suf-
unresolved, his testimony is admissible.
fering from Dixon's disease could still "be able
to appreciate the nature and quality or the
c.
wrongfulness of his acts." Wolfson answered
The government also asked Wolfson whe-
that the illness alone does not prevent a defen-
ther Dixon was suffering from a "severe men-
dant from understanding his wrongdoing. This
tal disease or defect" on the dates of the crim-
answer allowed the jury both to accept the
inal conduct. Wolfson responded, "My opin-
expert's opinion and to find that in this par-
ion is that he was not suffering from a severe
ticular case, Dixon did not understand his
mental disease or defect on those days." Dix-
wrongdoing. Instead of testifying that the
on's counsel objected but did not receive a cu-
defendant did or did not appreciate wrong-
rative instruction. Relatedly, the court asked
doing, Wolfson merely stated that the presence
Wolfson about what aspects of Dixon's ac-
of a mental illness does not answer, or contain
tions should be analyzed in answering the ulti-
a necessary inference that would answer, the
mate issue of his ability to appreciate his
ultimate issue. Therefore, the court's question
wrongdoing. In response, Wolfson pointed to
was permissible under rule 704(b).
various statements made by Dixon that, in his
opinion, showed he was not suffering from a
This reasoning is supported by United
mental illness at the time of the acts.
States v. Davis, 835 F.2d 274, 276 (11th Cir.
1988), which has facts similar to the instant
Dixon argues that this testimony imper-
case. In Davis, the district court asked the
missibly states an opinion on an element of his
testifying expert "whether a finding that a
insanity defense: whether "at the time of the
person suffers from multiple personalities, in
commission of the acts constituting the of-
and of itself, indicates that a person is unable
fense, the defendant, as a result of a severe
to understand what he was doing." As here,
mental disease or defect, was unable to appre-
the expert responded in the negative. See id.
ciate the nature and quality or the wrongful-
at 276. The court held that the "testimony did
ness of his acts." � 17(a) (emphasis added).
not include an opinion as to Davis' capacity to
Because, however, as we have concluded, tes-
conform his conduct to the law at the time of
timony as to whether a defendant was suf-
the robbery, and thus was not inadmissible."
fering from a mental illness at the time of the
Id.6
criminal conduct is not testimony on an "ulti-
mate issue," there is no error in the admission
Therefore, the district court did not abuse
of Wolfson's testimony that Dixon was not
suffering from a mental disease or illness at the
time of Dixon's criminal conduct.
6 Manley expressly distinguished its holding
from that in Davis, explaining that the question in
B.
Davis "was permissible because it sought an ex-
Dixon requested an instruction that would
planation of the disease and its typical effect on a
have permitted the jury to find him not guilty
person's mental state." Manley, 893 F.2d at 1224.
11

by reason of insanity. He claims the court
The application of the less deferential stan-
erred by refusing to give the instruction, there-
dard of review t o a decision that there is in-
by improperly depriving him of his ability to
sufficient evidence to support a jury instruction
assert an insanity defense.
makes sense in light of reduced deference af-
forded to rulings that take decisions from the
1.
jury. In the case of a motion for judgment of
We usually review jury instructions for
acquittal, for instance, we apply the same stan-
abuse of discretion. See United States v. Da-
dard as did district court in reviewing the suf-
vis, 132 F.3d 1092, 1094 (5th Cir. 1998).
ficiency of evidence. See United States v.
Furthermore, "[t]his court must view the ev-
Baytank (Houston), Inc., 934 F.2d 599, 616
idence in the light most favorable to [the de-
(5th Cir. 1991). Because "sufficiency of the
fendant] in determining if there is sufficient
evidence" is generally considered a legal issue,
evidentiary foundation for a requested instruc-
we review Dixon's request for an insanity in-
tion." United States v. Giraldi, 86 F.3d 1368,
struction, as a question of law, de novo. Ac-
1376 (5th Cir. 1996) (citing United States v.
cord 2 STEVEN CHILDRESS & MARTHA DAVIS,
Lewis, 592 F.2d 1282, 1286 (5th Cir. 1979)).
FEDERAL STANDARDS OF REVIEW � 11.29,
A court abuses its discretion in denying a re-
at 11-120 & n.11(1997).
quested instruction if (1) the requested instruc-
tion is a substantively correct statement of the
2.
law; (2) the requested instruction is not sub-
Before the passage of � 17, a defendant re-
stantially covered in the charge given to the
ceived a jury instruction on insanity "if there
jury; and (3) the omission of the instruction
[was] some evidence supporting the claim of
would seriously impair the defendant's ability
insanity . . . . This means only slight evi-
to present his defense. See United States v.
dence." Blake v. United States, 407 F.2d 908,
Storm, 36 F.3d 1289, 1294 (5th Cir.1994). In
911 (5th Cir. 1969) (en banc). The Blake
the context of reviewing a denial of a proposed
"slight evidence" rule was adopted, however,
jury instruction on mental condition, however,
when a defendant could win an acquittal by
some courts have applied the de novo standard
reason of insanity if the government failed to
of review, reasoning that such a determination
show proof of sanity beyond a reasonable
resolves a question of law.7
doubt. See Blake, 407 F.2d at 910-11 (quot-
ing Davis v. United States, 160 U.S. 469, 487-
88 (1895)). Section 17 explicitly shifted the
burden of proof by requiring a defendant to
7 See United States v. Denny-Shaffer, 2 F.3d
show by "clear and convincing evidence" that
999, 1016 (10th Cir. 1993) ("In determining
he is not guilty by reason of insanity.8 This
whether error was committed in rejecting the de-
fense and refusing to instruct on it under 18 U.S.C.
� 17, our review is de novo."); United States v.
Long Crow, 37 F.3d 1319, 1323 (8th Cir. 1994)
(...continued)
("[W]e conclude that whether there is sufficient
Circuit has not resolved intra-circuit conflict over
evidence to submit an affirmative defense of
whether appellate review is for abuse of discretion
insanity to the jury is a question of law for the
or de novo).
court."). But see United States v. Whitehead, 896
F.2d 432, 434 (9th Cir. 1994) (noting that Ninth
8 "The defendant has the burden of proving the
(continued...)
(continued...)
12

circuit has not yet considered the question of
in Arizona under a state law similar to � 17,
how � 17 has changed the quantum of evi-
the court explained that the defendant assert-
dence necessary for a defendant to receive a
ing an insanity defense is "not required to eli-
jury instruction on insanity.9
minate ambiguity from his proof or to instill
certainty in the minds of the jurors." Rather,
In United States v. Owens, 854 F.2d 432
"his lesser burden [is] to persuade the jury that
(11th Cir. 1988), the court held that � 17's
his position on the psychiatric issue is highly
new burden of proof ended the applicability of
probable." Id. at 436 n.8 (quoting State v.
the Blake rule. Because the Supreme Court
Renforth, 746 P.2d 1315 (Ariz. Ct. App.
has instructed that "a higher burden of proof
1987)). Therefore, a court must give an in-
should have a corresponding effect on the
sanity instruction "[i]f the evidence would per-
judge when deciding to send the case to the
mit the jury to find to a high probability that
jury . . .,"10 the Owens court held that "a
defendant was insane." Id. at 436.11
federal criminal defendant is due a jury in-
struction on insanity when the evidence would
allow a reasonable jury to find that insanity has
been shown with convincing clarity."
In adopting this higher standard, the Owens
court emphasized that a district court must
11 This articulation of the "clear and
construe the evidence most favorably to the
convincing" standard does not differ from this
defendant and that the "clear and convincing"
court's definition of that phrase in Barton, in
standard does not call for the highest levels of
which we emphasized that a fact-finder operating
proof. Following the formulation established
under this standard must "come to a clear
conviction, without hesitancy, of the truth of the
precise facts." Barton, 992 F.2d at 69 n.6
(...continued)
(emphasis added). Such a conviction, however
defense of insanity by clear and convincing
clear, may still fall short of the certainty that the
evidence." 18 U.S.C. � 17(b).
Owens court said a defendant is not required to
establish. In this way, Barton's "clear conviction"
9 This court has applied the "clear and convinc-
language can be seen as another version of
ing" standard when reviewing challenges to the suf-
Owens's "highly probable" articulation of the
ficiency of the evidence supporting a jury
clear and convincing standard.
conviction. See, e.g., United States v. Barton,
992 F.2d 66 (5th Cir. 1993). The posture of Bar-
The real difference between Barton and the
ton, however, required that the evidence be
instant case lies in the manner in which we must
constr ued in the light most favorable to the
construe the inferences from the evidence. In Bar-
government and does not bear on what quantum of
ton, the court, in reviewing the sufficiency of the
evidence is needed to create a jury question.
evidence, construed the evidence in the light most
favorable to the government. Because we have a
10 Anderson v. Liberty Lobby, Inc., 477 U.S.
duty to respect the jury's credibility judgments and
242, 247-52 (1986) (discussing relationship
inferences, we must construe the evidence in the
between burden of proof and jury consideration in
light most favorable to Dixon, because the district
context of summary judgment, directed verdicts,
court did not allow the jury to consider the insanity
and judgments of acquittal).
question.
13

The court rejected Dixon's request for an
The approach of the Owens court has been
insanity instruction, explaining that "merely
adopted by every circuit that has considered
putting these [medical] records in, coupled
this issue.12 Following the other circuits, we
with an expert witness who takes a contrary
do not see any basis for disagreeing with the
view of them, doesn't present sufficient evi-
approach outlined in Owens, so we adopt the
dence for the burden that's placed upon the
Owens "convincing clarity" standard for the
defendant asserting the defense under the stan-
submission of instructions on the insanity
dard of proof the law provides." The court
defense.
reasoned that (1) the only expert testimony at
trial did not support Dixon's insanity theory,
3.
and (2) medical records cannot provide suf-
Deciding on the quantum of evidence need-
ficient evidence without expert testimony to
ed to support an insanity instruction, however,
explain them.
is easier than applying that standard to the case
at hand. Dixon submitted detailed evidence
The government adds that there is little evi-
showing that he had a long history of mental
dence that Dixon did not understand what he
illness. Specifically, two weeks before the
was doing or that what he was doing was
crime, he was diagnosed as having suffering
wrong. For instance, he threatened to shoot
from a "bipolar disorder," and a government
several people at the hospital to gain their
doctor made the same diagnosis the day after
compliance. Additionally, he blindfolded Sha-
Dixon was apprehended. Dixon reasons that
han, drove her around in circles, and made her
the combination of his history of mental illness
change clothes to avoid detection.
leading up to the event and a diagnosis that he
was suffering from a mental illness imme-
According to the government, these ac-
diately after the event provides sufficient evi-
tions indicate that Dixon understood what he
dence for a jury to infer his insanity during the
was doing was wrong and that he needed to
commission of the crimes.13
threaten people to get cooperation. Therefore,
the government asserts that no rational jury
could have concluded, by clear and convincing
12 E.g., Long-Crow, 37 F.3d at 1323-25 (8th
evidence, that he was unable to appreciate the
Cir. 1994) (adopting Owens standard); Denny-
wrongfulness of what he was doing.
Shaffer, 2 F.3d at 1015-16 (same); Whitehead,
896 F.2d at 435 (same); see also 26 JAMES W.
a.
MOORE ET AL., MOORE'S FEDERAL PRACTICE
Dixon is correct that the court erred to the
� 630.32[2][b], at 630-59 n.16 (3d ed. 1998);
extent it relied on the testimony of an expert
118 A.L.R. FED. 265 � 10 (1994).
witness on the "ultimate issue" to withhold a
13 The government rightly points out, however,
question from a jury. The court explained that
that Dixon incorrectly relies on Volanty v. Ly-
naugh, 874 F.2d 243 (5th Cir. 1989), which ad-
the only expert testimony is the govern-
dressed the question whether a defendant has made
a sufficient showing to entitle him to expert
psychological assistance and examination at trial.
(...continued)
This "threshold" standard is less demanding than is
the "convincing clarity" burden needed to justify a
(continued...)
jury instruction.
14

ment's witness who unequivocally stated
that the records do not indicate any evi-
b.
dence whatsoever that the defendant on
Still, the court provided another reason for
or about February 9, 1997, suffered
finding the evidence insufficient for a jury in-
from a severe mental disease or defect,
struction on insanity, specifically stating that
much less was in a state of mind that he
the "medical records in and of themselves
could not understand or was unable to
would need expert testimony to explain." In
appreciate the nature and quality or the
other words, the court ruled that medical
wrongfulness of his acts . . . . [Emphasis
records alone, without supportive admissible
added.]
expert testimony explaining what they mean,
cannot meet the "convincing clarity" standard
As we have discussed, rule 704(b) does not
articulated in Owens.
permit an expert to testify to the "ultimate is-
sue" in an insanity defense. In Dixon's case,
We are not aware of any other case in
the ultimate issue is whether he was unable to
which a court has refused to give an instruc-
appreciate the nature and quality or the wrong-
tion on insanity because of the lack of expert
fulness of his acts. See 17(a). The court erred
testimony explaining medical records on men-
in admitting this testimony (though it later cor-
tal illness. Courts have emphasized, however,
rected for it), and it erred again by relying on
that merely identifying the existence of a men-
this testimony to determine whether Dixon
tal illness does not necessarily create a jury
should receive an insanity instruction. Be-
question on the insanity defense.
cause the "at least theoretical effect of Rule
704(b) is to make it possible for juries to find
In Denny-Shaffer, the court refused to give
a defendant not guilty by reason of insanity
an insanity instruction despite expert testimony
even if no expert would draw that same
that the defendant was suffering from multiple
conclusion," United States v. West, 962 F.2d
personality disorder ("MPD") at the time of
1243, 1247 (7th Cir. 1992), the court could
the crime. The district court held that even
not rely on Wolfson's opinion that Dixon could
though an alter ego personality was in control
appreciate the nature of his wrongdoing to
during the commission of the crime, because
withhold the insanity instruction from the
the alter ego personality knew that it was act-
jury.14
ing wrongfully, no insanity instruction was re-
quired. In reversing, the court of appeals was
careful to note that "a factual showing or jury
finding that a defendant suffers from MPD,
without more, [does not] automatically sat-
isf[y] [� 17's] requirements." Denny-Shaffer,
2 F.3d at 1017 n.18. Instead, in finding an
insanity instruction appropriate, the court of
14 Accord West, 962 F.2d at 1247 ("A judge
appeals explicitly relied on expert testimony
may take [an insanity determination] away from the
establishing that (1) the defendant was suf-
jury . . . if the admissible evidence, not including
fering from MPD at the time of the crime and
psychiatrists' opinions, would not permit a
(2) the host personality was unaware of the
reasonable jury to return a verdict of insanity.")
(emphasis added).
15

criminal conduct. Id.15
testimony could assist a jury in resolving the
"ultimate issue" in an insanity defense, and it is
We find this reasoning persuasive. The
hard to imagine how the jury could adequately
"convincing clarity" burden for a defendant
resolve these issues without such assistance.
seeking a jury question requires more than just
a showing that he has been diagnosed with a
Accepting that the medical records alone
mental illness at some point in his life. Rather,
are insufficient, Dixon maintains that he did
he must provide sufficient evidence so that a
connect his medical history to his actions
rational jury could conclude, by clear and con-
through cross-examination of Wolfson. This
vincing evidence, that he was unable to appre-
raises, however, the question whether Dixon
ciate his wrongdoing as a result of a severe
can create a jury question on his sanity based
mental illness.
solely on medical records explained by a hos-
tile expert witness. Because the thrust of
Simply submitting evidence of Dixon's pre-
rule 704(b) reserves the ultimate issue for the
vious mental illnesses could not meet the "con-
jury, we conclude that the expert witness's
vincing clarity" burden set out in Owens. Even
hostility to the defendant does not preclude a
the fact that he was diagnosed with a mental
jury question.
illness immediately after his criminal conduct
does not, by itself, create a jury question.
During the cross-examination of Wolfson,
Rather, in these circumstances, to support the
Dixon's attorney established that Dixon had
elements of his insanity defense, his history of
been repeatedly diagnosed with severe mental
mental illness must be further developed by
illnessesSSspecifically, schizophrenia and bi-
some testimony.
polar disordersSSover a twenty-year period,
and these illnesses sometimes manifested
For instance, some evidence must be pre-
themselves in hallucinations and delu-
sented that would allow a rational jury to infer
sionsSSfor example, Dixon's reporting that he
that Dixon was unable to appreciate his
heard "voices" that no one else could hear.
wrongdoing at the time of his criminal con-
duct. Obviously, this means that some kind of
Dixon received medication for his mental
expert testimony is needed to explain the rela-
illnesses both before the incident and after he
tionship between Dixon's medical history and
was placed in federal custody. The record also
his criminal actions. Helpful testimony would
showed that Dixon may have been off his med-
describe the characteristics of his mental ill-
ication for two days before his criminal acts.
nesses and the effect of such illnesses on his
Wolfson admitted that bipolar disorder could
ability to appreciate wrongdoing. This type of
go into remission, even without medication,
but that usually medication is needed to stay
healthy. He also explained that Dixon was di-
15 See also United States v. Cameron, 907 F.2d
agnosed with mixed bipolar disorder just ten
1051, 1060 (11th Cir. 1990) ("The evidence that
days before his criminal conduct. This diag-
[defendant] has been diagnosed as suffering from
nosis indicated, according to Wolfson, that
schizophrenia at various times in her life does not
Dixon was going through manic and depres-
necessarily mean that she was legally insane either
sive phases.
at those times or during the time period over which
she allegedly committed the crimes charged.").
16

The doctor who examined Dixon on Jan-
dence would permit the jury to find to a high
uary 27 opined that he was not able to func-
probability that defendant was insane . . . ."
tion in normal employment and even suggested
Id. We observe that the Owens court required
that he consider retirement so as to minimize
a jury instruction based merely on an expert's
social contacts. The doctor who examined
diagnosis of the defendant as "a psychotic who
Dixon the day after his detention also opined
would lose touch with reality." Id. at 436.
that he had a bipolar disorder and appeared
We therefore do not find our application of the
"agitated, delusional, and hostile." Dixon's at-
Owens standard in conflict with the approach
torney had Wolfson describe Dixon's account
used in Owens.
of his encounter with Shahan, from which a
jury could infer that Dixon was having delu-
c.
sions about Shahan's feelings toward him.16
In sum, the district court cannot rely on the
inadmissible expert testimony that Dixon was
Drawing all inferences in the light most fa-
able to appreciate his wrongdoing at the time
vorable to Dixon, the jury rationally could
of the criminal conduct when determining
have concluded that, based on clear and con-
whether an insanity instruction is needed. The
vincing evidence from Wolfson's description
court erred to the extent it relied on Wolfson's
and explication of the medical records, Dixon
testimony on the latter element to withhold the
was suffering from a severe mental illness at
jury instruction.
the time of the crime. This illness, as ex-
plained through cross-examination, could have
We note that a court can still withhold the
prevented him from knowing that his conduct
insanity instruction if it concludes that the rela-
was wrongful if, for instance, he truly believed
tionship between a defendant's mental illness
in his delusional account of his evening with
history and his criminal conduct has not been
Shahan.
explained or examined in any meaningful way.
In this case, however, the cross-examination of
While the "clear and convincing" standard
Wolfson did explain how Dixon's mental ill-
raises the burden on the defendant who seeks
nesses might have manifested itself on the day
a jury instruction on insanity, it does not "call
he committed his criminal acts and how these
for the highest levels of proof." Owens, 854
illnesses might have prevented him from realiz-
F.2d 432. Recalling that the court must con-
ing the wrongfulness of his actions. Wolfson's
strue the evidence, and all inferences, drawn in
explanation of Dixon's medical records, even
the light most favorable to the defendant, we
though ultimately hostile to Dixon's interests,
must require an insanity instruction "[i]f evi-
provided sufficient evidence to create a jury
question on Dixon's sanity.
16 For instance, Dixon later explained to the
Therefore, we REVERSE and REMAND
doctor that he believed Shahan wanted to have a
for the district court to grant Dixon a new trial
romantic encounter with him because of her
and for further proceedings in accordance with
dissatisfaction with her own relationship. He also
this opinion.
claimed that she encouraged his sexual advances
and sought to see him again. He claims that he
kept her underwear as a romantic souvenir and that
he gave her a card for Valentine's Day.
17