In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1432

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL J. DIEKHOFF,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 05-CR-10003—Michael M. Mihm, Judge.

____________

ARGUED FEBRUARY 28, 2008—DECIDED JULY 24, 2008

____________

Before FLAUM, MANION, and EVANS, Circuit Judges.

FLAUM, Circuit Judge. Defendant-appellant Michael

Diekhoff appeals his convictions below for kidnapping

in violation of 18 U.S.C. § 1201(a), using a firearm during

a crime of violence in violation of 18 U.S.C. § 924(c), and

being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g). Following his convictions, the judge

sentenced him to life imprisonment as to the first count

with concurrent sentences for the remaining two. The

only real issue below was Diekhoff’s sanity, and, here

on appeal, Diekhoff appeals the district court’s handling

of this defense on a number of grounds. Finding no error,

we affirm.
2 No. 07-1432

I. Background

In 2004, Diekhoff lived in Westmont, Indiana but

worked for a Bloomington, Illinois trucking company as

an over-the-road trucker. There, he met and befriended

one of the company’s dispatchers, Lori Wagner. Although

Wagner and Diekhoff were never romantic, the two

were friendly—meeting for dinner every month and,

after Diekhoff left the company, visiting each other periodically. In August 2004, Wagner began dating the man

who would become her future husband. Wagner and

Diekhoff still spoke on the phone, but their monthly

visits became a thing of the past. In mid-October 2004,

Diekhoff called Wagner to tell her that, in light of her

emerging romance, he would not be calling her any more.

Then strange things began happening to Wagner. On

October 28, 2004, someone set her house on fire, causing

a good deal of property damage and killing two of her

cats. In early November, someone dumped yellow paint

on her car, and a woman—whom Diekhoff had paid—

called that night asking if she had seen the damage to her

car. This anonymous woman would call again a few

weeks later, reading a script that Diekhoff had given her.

She told Wagner to “leave the country” and said that the

property damage to her car and home would pale in

comparison to what would happen to her children. Police

tracked the phone calls to Indiana. And when Wagner

told the police that Diekhoff lived there, the police paid

him a visit. Following his interview, Diekhoff called

Wagner to tell her that two “FBI agents” had visited him

to investigate her case. Then the phone calls stopped; three

weeks of police surveillance of Wagner’s work place did

not reveal any suspicious activity.

Wagner would not hear from Diekhoff again until the

morning of January 6, 2005, when he approached her in
No. 07-1432 3

her work parking lot wearing a mask and sporting a

shotgun. Diekhoff pointed the gun at her and hustled her

into a minivan he had rented. When Wagner fought back,

Diekhoff threatened to shoot her and dragged her into the

minivan by her hair. There, the struggle continued until

Diekhoff pointed the gun to Wagner’s head and told her

he “had no problem blowing her brains out right here

and now.” Subdued, Wagner was handcuffed to a chain

around the driver’s seat, and the two drove west.

Diekhoff was clearly agitated. His mother, with whom

Diekhoff lived, would testify at trial that prior to the

kidnapping he had stopped working and stayed by himself in his bedroom for hours on end. She described him

as nervous and paranoid; he lost a good deal of weight

and had taken to talking to himself. Driving west in the

minivan, Wagner got a sense of Diekhoff’s problems and

learned the story behind her two months of harassment.

He said that he had started the fire at her house because

he wanted to hurt her, and he had paid a woman $100

to make the harassing phone calls. Diekhoff had also

spied on her and her boyfriend on one occasion, watching

them in her home. He told Wagner that he would have

killed them both if he had a gun at the time.

Diekhoff also said that he still wanted to hurt Wagner a

few times during the drive. At one point, Diekhoff gave

Wagner forty-five minutes “to convince him that [she]

was human, that [she] deserved to live.” And at another,

he told her that he was going to kill her and “put [her] in

the tall weeds” for apparently lying to him. After passing

from Illinois to Iowa, Diekhoff stopped the minivan and

told Wagner to call someone to say that she was fine and

was on her way to Colorado. After Wagner fed this story

to her boss at the trucking company, Diekhoff called his
4 No. 07-1432

mother in Indiana. At this point, the police were aware

of the kidnapping, and they had found Diekhoff’s suicide

note after searching his room. Diekhoff told his mother

that he was going to Colorado with Wagner; in light of

the note, his mother told him he should just let Wagner

go and come home.

But Diekhoff kept driving—from Iowa through to

South Dakota. Over the next two days, Wagner attempted

to placate Diekhoff by agreeing with everything he said.

The tactic eventually worked. Diekhoff let Wagner call

her daughter at one point. And eventually he grew to trust

her, so much so that when the two stopped at a gas station in South Dakota Diekhoff left Wagner alone in the

car. Seizing the opportunity, she drove away and called

the police, who soon captured Diekhoff. A search of the

minivan revealed water, boots, binoculars, camouflage

pants, and a clutch of incriminating equipment: the

loaded shotgun, shotgun shells, duct tape, and packaging

for the face mask.

A three-count indictment and Diekhoff’s arraignment

followed. At his arraignment, the district court ordered a

psychological exam to determine whether Diekhoff was

competent to stand trial. Following the examination, the

district court found Diekhoff to be incompetent and

ordered him confined in a treatment facility until his

competency was restored. Following his treatment, the

district court eventually concluded that Diekhoff was

competent and, when Diekhoff pled not guilty by reason of

insanity, set the case for trial.

Prior to trial, the government informed Diekhoff that

it would seek to admit evidence related to two prior

felony convictions for attempted manslaughter and

confinement. Both stemmed from incidents in 1987 involv-
No. 07-1432 5

ing Diekhoff’s girlfriend at the time, Tina Hoeing. Hoeing

and Diekhoff had dated briefly from late 1986 until the

spring of 1987, when Hoeing broke things off. Soon afterwards, the police arrested Diekhoff when he fired a gun

at Hoeing’s head. Then, when he was out on bond, he

broke into Hoeing’s home. He forced Hoeing and her

fifteen-year-old brother out at gunpoint, making the

latter drive them away in Hoeing’s car. After a brief stop

at his own car—where he grabbed a duffel bag filled

with chains, duct tape, cash, and a handgun—he left

Hoeing’s brother behind and took Hoeing to an Indianapolis hotel, handcuffed and covered in a tarp. Diekhoff

held her captive until the next night when the police

found and freed her. The government soon charged him

with attempted murder—for firing the gun at Hoeing’s

head—and confinement—for kidnapping Hoeing and her

brother. A jury would find him guilty but mentally insane

as to the attempted murder charge, and a separate jury

would find him guilty of the confinement charge. For all

this, Diekhoff served time in prison, eventually earning

his release in 2001. After the parties briefed the issue, the

district court allowed the government to present evidence

related to the confinement offense, but not the attempted

murder offense. The court said that it was a “close call,”

but added that the evidence was “relevant and probative

on the matter of the defendant’s state of mind, his intent.”

The court went on to reason that “under these circumstances which involve a claim of insanity at the time of

the conduct,” it did not consider the prejudice to be

“unfair” and held that the evidence would be admissible.

At trial, the only issue was Diekhoff’s sanity. The government put on twelve witnesses in its case-in-chief, including Wagner, the police officers involved in the
6 No. 07-1432

offense, as well as Hoeing and two officers involved in

her case. In his defense, Diekhoff presented the testimony

of his mother and that of Dr. Robert Chapman. The latter

would testify that Diekhoff suffered from “major depression, recurrent type,” which causes “hopelessness, helplessness, and despair.” In his opinion, this defect would

cause “impaired judgment,” though he conceded on crossexamination that this did not necessarily mean Diekhoff

could not understand the wrongfulness of his actions.

To rebut Dr. Chapman’s testimony, the government

presented the testimony of two doctors who had examined Diekhoff after he was declared competent but prior

to trial. The first, Dr. Ralph Newman, was a psychiatrist

who agreed that Diekhoff suffered from a “major depressive disorder.” But, in his opinion, this disorder would

have “no correlation [with] unlawful behavior.” The

second, Dr. Adeirdre Stribling, was a staff psychologist

at the Bureau of Prisons who had interviewed Diekhoff

prior to trial. Dr. Stribling also agreed that Diekhoff

suffered from a “major depressive disorder” and a “personality disorder.” In her opinion, Diekhoff suffered from

the latter but not the former during the kidnapping:

Someone with a “major depressive disorder” would have

an impaired “ability to function on a day-to-day basis” and

could not “plan or execute higher level tasks.” The government then asked Dr. Stribling about the specifics of

her conversations with Diekhoff concerning the kidnapping. She recalled his statement from her notes, over

Diekhoff’s objection, “When I kidnapped the girl, I

needed help. I knew it was wrong. It was also wrong for

me to want to kill myself and I’m sorry.”

On cross-examination, Diekhoff’s counsel asked Dr.

Stribling to read the notes from her interview with
No. 07-1432 7

Diekhoff in their entirety. In response, she read a statement Diekhoff had given her:

When they say I kidnapped the girl, I actually didn’t

know if I could make it another day. I just felt like

I didn’t want to go on. I just wanted to visit three

states before I killed myself. I just brought her along

for the ride. I wanted to make the whole trip, drive to

the end, drop her off at home, then shoot myself.

I knew it was wrong to take her with me like that, so

I tried to let her use the phone along the way during

the trip. It was more problems than that because by

then it was a kidnapping. That was wrong. But it

was also wrong for me to want to kill myself. Now

I’m on the medication and it is important that I live.

I don’t know how long I will be in prison. They could

just give me time served. I was wrong and I’m sorry.

The parties would come to dispute the third- and secondto-last sentences of this statement. When the time came to

tender jury instructions, Diekhoff offered one that read:

If the Defendant is found Not Guilty By Reason of

Insanity, The Court will commit the Defendant to a

suitable facility until he is eligible for release under the

law.

He claimed that this instruction was necessary to counteract Dr. Stribling’s testimony recounting his statement—

specifically the statements that he “didn’t know how

long [he] will be in prison” and that “They could just

give [him] time served.” Diekhoff’s counsel thought this

was misleading; the jury could convict despite a belief

that he was insane simply because it did not want to see

Diekhoff walking the streets. But the judge disagreed,

stating first that the statement was of the defendant’s own
8 No. 07-1432

doing and, more importantly, that there was no “inaccurate

or misleading information of the type that the instruction contemplates.” The jury convicted Diekhoff on all

three counts, and the judge sentenced him to life for the

kidnapping, a ten-year concurrent sentence for the use of

a firearm, and a seven-year concurrent term for the

felon-in-possession charge. This appeal followed.

II. Discussion

Diekhoff raises three evidentiary issues on appeal related

to the admission of testimony regarding his prior offenses, the content of Dr. Stribling’s testimony, and the

district court’s denial of a requested jury instruction. The

following sections discuss each in turn.

A. Admission of Rule 404(b) Evidence

Diekhoff first challenges the district court’s decision

allowing the government to present evidence of his previous kidnapping conviction, arguing that it was impermissible propensity evidence. Rule 404(b) provides that

“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to

show action in conformity therewith.” FED.R. EVID. 404(b).

This Court has set up a four-part test for examining

potential propensity evidence, which combines the proscription laid out in Rule 404(b) with the more general

foundation, relevancy, and prejudice requirements

defined elsewhere. See FED.R. EVID. 402, 403; see also United

States v. Shackleford, 738 F.2d 776, 779 (7th Cir. 1984),

overruled in part on other grounds by Huddleston v. United

States, 485 U.S. 681 (1988). Thus, courts are to examine

whether
No. 07-1432 9

(1) the evidence is directed toward establishing a

matter in issue other than the defendant’s propensity

to commit the crime charged; (2) the evidence shows

that the other act is similar enough and close enough

in time to be relevant to the matter in issue; (3) the

evidence is sufficient to support a jury finding that

the defendant committed the similar act; and (4) the

evidence has probative value that is not substantially outweighed by the danger of unfair prejudice.

United States v. Simpson, 479 F.3d 492, 498 (7th Cir. 2007).

Diekhoff challenges the district court’s decision to admit

the evidence on the basis of the first and fourth prong,

a decision we review for an abuse of discretion. United

States v. Thomas, 321 F.3d 627, 630-31 (7th Cir. 2003).

Diekhoff’s first claim is that the admission of the testimony regarding his previous kidnapping and burglary

convictions did not “establish[ ] a matter in issue other

than [his] propensity to commit the crime charged.” Below, the district court admitted the evidence under the

theory that it was relevant to Diekhoff’s “state of mind, his

intent,” not his propensity to have committed the crime.

Diekhoff raises two broad challenges to these theories of

admissibility. First, Diekhoff claims that the government

never really pinpointed a theory of relevancy below and,

in his estimation, it was reversible error for the district

court not to require that it do so. This argument has little

support in the record. In September 2006, the parties

discussed the admissibility of Diekhoff’s prior crimes.

During that hearing, the government pressed for the

admission of both the prior attempted manslaughter and

kidnapping charges under the theory that it proved “intent,

knowledge, plan.” The court then denied the request as

to the admission of the attempted manslaughter offense
10 No. 07-1432

and ordered supplemental briefing as to the kidnapping

charge. In its brief, the government argued that the evidence was still relevant despite Diekhoff’s insanity plea

to show that he appreciated the wrongfulness of his

actions, the central issue at trial. And the court then

admitted the evidence to bear on Diekhoff’s “state of

mind [and] his intent.” In sum, there is no basis for concluding, as Diekhoff urges us to do, that the government

was reciting by rote the admissible purposes listed in

Rule 404(b) without tying that theory to the case. On the

contrary, both the district court and the government

were careful to examine the admissibility of this evidence

in light of Diekhoff’s insanity defense.

Diekhoff’s principal argument, however, is that the

evidence showed nothing but his propensity for criminal behavior. He submits that his intent and state of mind

were not at issue because he stipulated to having kidnapped Wagner. And, he claims, his intent had little

relevance in establishing whether he could tell the difference between right and wrong. We disagree.

The only issue in this case was Diekhoff’s state of mind:

whether he appreciated the wrongfulness of kidnapping

Wagner. And the evidence presented by the government bore directly on this issue. Specifically, it tended to

show that Diekhoff was aware of the wrongfulness of his

behavior. See United States v. Ewing, 494 F.3d 607, 616 (7th

Cir. 2007) (“[A] defendant’s knowledge that his conduct

was illegal may be taken into account when determining

his ability to appreciate its wrongfulness.”); see also United

States v. Ruster, 712 F.2d 409, 412 (9th Cir. 1983). The fact

that Diekhoff had committed a similar kidnapping

offense in the past made it more likely that he understood

that the activity underlying the charged offense was
No. 07-1432 11

wrong as well. See United States v. Bradshaw, 935 F.2d 295,

301 (D.C. Cir. 1991); FED. R. EVID. 401 (defining relevance).

In addition, the prior conviction showed that he was

mentally capable of planning a complicated criminal act.

United States v. Brown, 785 F.2d 587, 591 (7th Cir. 1986).

Diekhoff’s ability to “organize and orchestrate,” id., was

directly relevant to Diekhoff’s alleged “mental disease

or defect.” And the fact that he had executed a complicated kidnapping before made it more probable that

he had an ability to plan—an “awareness of the world

surrounding him,” id.—that belied insanity. He was free

to argue that his mental state had deteriorated from the

date of the last offense. But this counter-argument does

not preclude admissibility.

Lastly, Diekhoff argues that the probative value of

this evidence was “substantially outweighed by the

danger of unfair prejudice.” We review the district court’s

balancing of these factors below deferentially, asking

only whether it abused its discretion. United States v.

Bramlet, 820 F.2d 851, 857 (7th Cir. 1987). And because the

court did not, we agree with its conclusion. The probity

of his previous offense dovetails with the theories of

relevance just discussed; “a prior criminal record for

similar acts is highly relevant to the basis for and the

reliability of witnesses’ testimony about the defendant’s

appreciation of the unacceptability of his conduct.”

Bradshaw, 935 F.2d at 302; Ruster, 712 F.2d at 412. And

although the evidence was certainly prejudicial, it was not

unfairly so. Propensity evidence poses the risk of unfair

prejudice when it will likely “lure the factfinder into

declaring guilt on a ground different from proof specific to

the offense charged.” United States v. Coleman, 179 F.3d

1056, 1062 (7th Cir. 1999). The danger of unfair prejudice
12 No. 07-1432

is lessened somewhat in a case where the only issue is

the defendant’s sanity. The act itself is uncontested. So it

is unlikely that the jury would convict solely based on a

desire to put away a dangerous person regardless of his

actual involvement in the crime charged. More importantly, however, the prejudice from a showing of prior

criminality would not likely interfere with the jury’s

assessment of the proof in the case before it. The question

is whether the defendant knew right from wrong. And

the evidence of the defendant’s prior criminal acts is not

likely to unfairly tilt the jury towards a conclusion that

he did. The evidence here tended to show that Diekhoff

had the capacity to plan complicated criminal acts and

knew that his actions were wrong. But prior criminal acts

could just as easily show the defendant’s insanity.

Bradshaw, 935 F.2d at 302 (“[T]here is the possibility that

an extensive criminal record will prove prejudicial to the

government by permitting the inference that the defendant is insane either because he cannot appreciate the

nature of his acts or because he continues to commit the

same crime for which he has consistently been punished

in the same easily-detectable way.”). In short, the prejudice when only the defendant’s sanity is at issue does

not cut unfairly in the direction of sanity. Thus, given

the high probative value and the low risk of prejudice,

the district court did not abuse its discretion in admitting the evidence.

B. Dr. Stribling’s Testimony

Diekhoff also argues that the district court erred in

allowing Dr. Stribling to testify as to certain parts of her

conversations with him. In the course of her testimony,

the government asked Dr. Stribling—testifying as an
No. 07-1432 13

expert—to “tell us what [Diekhoff] told you the best that

you can recall.” Dr. Stribling’s response was that

Diekhoff had said “When I kidnapped the girl, I needed

help. I knew it was wrong. It was also wrong for me to

want to kill myself and I’m sorry.” Diekhoff claims that

this testimony violated Federal Rule of Evidence 704(b)

because it constituted expert opinion as to whether he

was sane. That rule 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). The “mental state or condition”

offered as a “defense” to the “crime charged” was

Diekhoff’s sanity. And deciding whether Diekhoff was

sane involved examining whether, “as a result of a

severe mental disease or defect, [he] was unable to appreciate the nature and quality or the wrongfulness of his

acts.” 18 U.S.C. § 17(a). Thus, Diekhoff argues, when Dr.

Stribling passed along his statement that he “knew [the

kidnapping] was wrong,” this constituted an “expert

witness . . . stat[ing] an opinion or inference as to

whether” he was sane at the time, violating Federal Rule

of Evidence 704(b). We do not accept this argument.

We are careful not to flyspeck the district court’s exercise of its discretion in admitting evidence and so we

“will only overturn such rulings for a clear abuse of that

discretion.” United States v. Reno, 992 F.2d 739, 742 (7th

Cir. 1993). When a psychiatrist testifies as to her assessment of the defendant’s sanity, she must toe the line
14 No. 07-1432

between providing insight into the defendant’s mental

state and actually indicating whether she thinks the

defendant is insane. This is because “[t]he purpose of

Rule 704(b) is to have jurors decide whether the defendant

was sane or not without being told what conclusion an

expert might draw.” United States v. West, 962 F.3d 1243,

1247 (7th Cir. 1992). So the expert can set out her “[m]edical

and psychological knowledge” regarding the “mental

disease or defect” that may affect the defendant because

this information “help[s] the jury understand mental

illness and its symptoms and effects.” Reno, 992 F.2d at

742; United States v. Brown, 32 F.3d 236, 239 (7th Cir. 1994);

see also FED. R. EVID. 702. But she cannot say or give an

obvious inference that she thinks that the mental illness

clouded the defendant’s ability to distinguish right from

wrong. West, 962 F.2d at 1246. This kind of testimony

would involve a legal conclusion (or more accurately a factlaw conclusion), and experts cannot make those.

The issue here is whether Dr. Stribling “state[d] an

opinion or inference” about Diekhoff’s mental state at the

time of the kidnapping. At the outset, it is clear that

Dr. Stribling was not “stat[ing] an opinion” during the

disputed portions of her testimony. Instead, she was

relaying Diekhoff’s statement to her about the crime. And

these facts included an admission that he knew what he

was doing was wrong. Although this observation was

probative of the ultimate issue, it did not result from

Dr. Stribling’s expertise or the application of her technical

knowledge to the facts of the case. United States v. Romero,

189 F.3d 576, 586 (7th Cir. 1999) (“His testimony did not

amount to a statement of his belief about what

specifically was going through [the defendant’s]

mind . . . .”). It was thus not her “opinion.”
No. 07-1432 15

Diekhoff argues next that Dr. Stribling’s statement was

sufficient to raise an “inference” that he knew right from

wrong. This is certainly the case. A sane person would

say that he knew right from wrong, and Dr. Stribling

testified that Diekhoff had said as much. But this is not

the kind of “inference” that Rule 704(b) prohibits. An

expert’s testimony frequently gives rise to “inferences” that

bear on the ultimate issue. Otherwise, it is doubtful that

the expert’s testimony would be helpful to the jury.

United States v. Foster, 939 F.2d 445, 454 (7th Cir. 1991). And

an expert can even “suggest[ ] . . . inferences that embrace an ultimate issue.” Brown, 7 F.3d at 651. But to fall

within Rule 704(b)’s prohibition, the testimony must give

rise to an obvious “inference” regarding the expert’s

“opinion” as to the ultimate issue, not an “inference” with

respect to the defendant’s “mental state.” That is, it must

be a round-about effort by the expert to impermissibly

express her “opinion.”

Here, Dr. Stribling testified: Diekhoff said “I knew it

was wrong.” There was no embellishment to this statement indicating whether Dr. Stribling thought this

showed sanity or insanity. Although one can infer that

this is the statement of a sane person, such an inference

stems from a general understanding about how the

world works—not Dr. Stribling’s expertise or the fact that

one could clearly infer her opinion as to Diekhoff’s

sanity from this statement. Finally, although Diekhoff’s

statement to Dr. Stribling was certainly prejudicial, it was

not unduly so. FED. R. EVID. 403. It is difficult to imagine

a more probative statement of a defendant’s sanity than

his own admission that he “knew [committing the

crime] was wrong.” See Ewing, 494 F.3d at 616 (“[C]ertain

evidence in the record indicating the defendant knew
16 No. 07-1432

his conduct was illegal was properly considered on the

issue of whether he was able to appreciate its wrongfulness.”). And the prejudice from this statement was not

unfair because it would not have led the jury to conclude that he was sane for an illegitimate reason. Accordingly, the district court did not abuse its discretion in

allowing the testimony.

C. Jury Instructions

Finally, Diekhoff challenges the district court’s denial

of his requested jury instruction regarding the consequences should the jury find him guilty but insane. That

instruction would have told the jury that “The Court

will commit the Defendant to a suitable facility until he

is eligible for release under the law.” Here, on appeal,

Diekhoff repeats the claims that he made below and that

the district court rejected. Specifically, he claims that

Dr. Stribling’s testimony as to Diekhoff’s opinion regarding the penological consequences of his actions—“I

don’t know how long I will be in prison” and “They

could just give me time served”—prejudiced him. In his

estimation, a jury could have mistakenly inferred from

this statement that he would go free if they found him

insane. Taken to its logical conclusion, this inference

could have shaded the jury’s assessment of his insanity

claim; better to keep an insane person in custody than to

encounter him on the streets if he would be set free after

trial.

We review de novo a district court’s decision to allow

or deny a requested jury instruction. United States v.

Waagner, 319 F.3d 962, 966 (7th Cir. 2003). The requested

jury instruction Diekhoff gave below is a restatement of
No. 07-1432 17

18 U.S.C. § 4243, which provides that those found to be

insane “shall be committed to a suitable facility until such

time as he is eligible for release.” As a general matter,

“juries are not to consider the consequences of their

verdicts,” like the kind of facility that will house the

defendant following trial. Shannon v. United States, 512

U.S. 573, 579 (7th Cir. 1994). The jury’s finding of facts

and application of those facts to the law just do not require it to ponder what the ultimate sentence will be. Id.

But this general rule has an exception where there is a

danger that the jury has been misled regarding the consequences of its verdict. Thus, if “a witness or prosecutor states in the presence of the jury that a particular

defendant would ‘go free’ if found [insane] it may be

necessary for the district court to intervene with an instruction to counter such a misstatement.” Id. at 587.

Righting the course for a misled jury is a fact-bound

endeavor, and, accordingly, “[t]he appropriate response . . .

will vary as is necessary to remedy the specific misstatement or error.” Id.

Here, the statement read by Dr. Stribling came during

her cross-examination by Diekhoff’s lawyer, nestled in

the middle of a longer statement concerning the crime

itself. The issue is whether this statement was sufficient

to mislead the jury. Three considerations convince us

that it was not. The first is the person making the statement. This was not the case of a prosecutor telling the

jurors that a defendant would “go laughing out that door”

if found insane. Cf. Aliwoli v. Carter, 225 F.3d 826, 830 (7th

Cir. 2000). Nor did the witness herself suggest that, in

her opinion, the defendant would get a windfall from a

finding of insanity. Shannon, 512 U.S. at 587. Instead, the

witness read her notes recounting a statement made by
18 No. 07-1432

the defendant regarding potential punishments, which

included getting “time served.” And she said this only

after the defendant’s attorney asked her to read notes

containing the statement. A jury would not connect the

defendant’s statement to a psychiatrist to its role in the

trial itself. Second, the statement did not say anything

suggesting that a finding of insanity would result in

“time served.” When read in context, Diekhoff was

opining about the possible legal effect of his actions, not

the jury’s decision regarding his sanity. Finally, the statement was simply too indirect to mislead, buried among

the witness’s notes and Diekhoff’s discussion of the

crime. The jury saw the haystack, not the needle Diekhoff

claims was buried in there. For these reasons, the district court was right to deny the instruction, and we thus

affirm.

III. Conclusion

For the foregoing reasons, we AFFIRM Diekhoff’s convictions and sentence.

USCA-02-C-0072—7-24-08