IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50169

UNITED STATES OF AMERICA, 

Plaintiff–Appellee

v.

MICHAEL HERBST, 

Defendant–Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:10-CR-2106-1

Before REAVLEY, DAVIS, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:*

This case involves the admissibility of psychological or psychiatric expert

testimony to negate the specific intent element of a charged crime. 

Defendant–Appellant Michael Herbst sought to introduce testimony of his low

borderline intelligence through the expert testimony of a clinical psychologist. 

Because we find that the district court did not, however, abuse its discretion in

excluding such testimony, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

February 13, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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I. BACKGROUND

A. Factual Background

Michael Herbst made a living in Philadelphia, Pennsylvania selling event

tickets. National ticket brokers would give him tickets on consignment when

they could not sell them themselves. In order to conduct his business, Herbst

used computers in hotel lobbies or libraries to access the internet. While using

one such computer, he met a woman in a chatroom who identified herself as

Maria Santiago from Mexico. Santiago called Herbst a couple of times, and

during those conversations, Santiago was flirtatious with him. In January 2010,

Herbst decided to fly from Philadelphia to El Paso, Texas to meet Santiago. 

After arriving in El Paso, he took a taxi to Juarez, Mexico where Herbst met and

stayed with Santiago at her house for about a week. They were sexually

intimate. Following that week, Herbst left Mexico. 

Near the end of February, Santiago contacted Herbst again and, following

their conversation, he hitchhiked to El Paso from Florida, where he was working

at the time selling tickets, walked across the Bridge of the Americas into Mexico,

and met Santiago in Juarez. They went to Santiago’s house where, as Herbst

described it, Santiago was “real friendly with me, I was friendly with her. We

were intimate.” Herbst stayed for a couple of days and then left to go to

California. He walked back across the bridge and hitchhiked west, hoping to be

a contestant on The Price is Right. 

In March, Herbst was in Colorado. He stayed there until June, when, in

response to a request by Santiago, he returned to Juarez. During the visit,

Herbst got a Texas driver’s license, which he claims was Santiago’s idea. When

he applied for the license, he used a Liberty Street address in El Paso because

he believed Santiago had a friend who lived there. Then, on June 20, Santiago

gave Herbst a 1993 Vandura van. Along with the van itself, Santiago gave

Herbst an insurance policy on and a title to the van—both in his name. Herbst

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says he had nothing to do with registering the van, getting it inspected, or

obtaining insurance for it. On occasion, after the van was purchased, Herbst

drove it into the United States to do the grocery shopping for himself and

Santiago at a Wal-Mart. Each time he crossed the bridge, he was referred to

secondary inspection by border patrol. On about July 13, Santiago took the van

to a mechanic’s shop to have the timing belt replaced. Santiago picked the van

up from the shop on July 16 and brought it to Herbst. 

Later that day, Herbst decided to go to El Paso to drink for the night. He

did so because it appeared to Herbst that Santiago did not like it when men

drank around her. He planned to go to a motel and to pay for a room with cash

he received from Santiago. The idea to go to a specific motel came from

Santiago. That night, July 16, 2010, Herbst drove the van alone towards El

Paso. When crossing the bridge, Herbst stopped and presented his United

States passport card to a border patrol officer. Herbst advised the officer that

he was coming from his girlfriend’s house and that he was a ticket agent. 

The border patrol officer observed that Herbst appeared pale and that his

lips were white. As the border patrol officer inspected the van, she observed that

there was nothing in the rear of the vehicle and that it was very clean. The

border patrol officer also observed that Herbst’s physical appearance did not

appear to “fit” that of the van because while the van was clean, Herbst looked

like he was homeless. Herbst never made eye contact with the officer but

instead just looked straight ahead. The officer testified that the computer screen

in her booth reflected a computer-generated alert that required a secondary

inspection of the van based upon its license plate number.

At secondary inspection, Herbst advised an officer that he had owned the

van for approximately one month. During a canine inspection of the vehicle, the

border patrol officer observed that Herbst was fidgeting. In response to an

officer’s question about how long he had been at his girlfriend’s house, Herbst

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stated that he had been there for approximately two hours. When asked how

long he had been in line, Herbst responded that it had been approximately one

and a half hours. In response to questions relating to the van, Herbst stated

that he had bought it in Colorado and that he had registered the van in Texas. 

The dog then alerted on the van. A search of the van revealed 163 bundles of

marijuana, weighing approximately 175.38 kilograms, concealed in the ceiling

of the vehicle. The marijuana had a street value of between $35,000 and

$43,000. 

From there, Special Agent Isidro Nunez took over the investigation of

Herbst. Upon inspection of the vehicle, Nunez observed no clothing, personal

effects, or toiletries, and there were no signs to indicate that someone was living

in the vehicle. Inside the vehicle, Nunez located a Texas registration for the

vehicle, an insurance ID card, and a piece of paper. The registration receipt

reflected the date of June 23, 2010, and the information on the receipt reflected

the name and address as “Michael Herbst, 262 Liberty Street, El Paso, Texas.” 

The insurance policy was also in Herbst’s name with an effective date of June

23 through July 24, 2010. A Texas vehicle inspection report for a 1993 GMC

Vandura was also found in the vehicle with the other documents. Nunez found 

a piece of cardboard on which was written a telephone number, a name, and

what appeared to be a city in Colorado. Inside Herbst’s wallet, Nunez found a

Texas Department of Public Safety temporary driver’s permit, listing the 262

Liberty Street address as Herbst’s.

Next, Nunez interviewed Herbst. Herbst stated that he owned the van,

that he had purchased the vehicle off of Craigslist, that he had paid $1,700 for

the vehicle, that it had approximately 90,000 miles on it, and that he had

purchased it on June 20, 2010, in Lakewood, Colorado, from an individual

named “Fred.” He said he had met Fred at a McDonald’s or a Burger King. He

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said that, after he had bought the van, he drove it back to El Paso, had the

vehicle inspected, purchased insurance for the vehicle, and registered the van. 

When Nunez asked Herbst during the interview if he knew why he was

being detained, Herbst responded that it was because of contraband. When

asked to explain his response, Herbst said that he smelled marijuana. Nunez

asked Herbst if he knew the weight of the contraband found in the vehicle, and

Herbst replied that he did not. At that point, Herbst claimed that he was

“framed.” When Herbst was asked for details on Santiago or Fred, he would not

respond to questions and put his head down. He said he did not know how to

reach Fred and he did not have a phone number, address, or location for

Santiago. When Agent Nunez advised Herbst that he was going to interview

persons at the 262 Liberty address, Herbst then stated that he did not live there

and that he found the address on the internet by searching Google. At that

point, Herbst told the officer that he lived in the van in various parts of El Paso. 

Herbst told the officer that he kept personal items with his girlfriend, Santiago,

and that the night before, he had stayed in the van in a Wal-Mart parking lot. 

Nunez continued his investigation by visiting the 262 Liberty address. 

Nunez found no evidence that Herbst had ever lived there. Nunez also obtained

records relating to Herbst’s passport, and the records reflected that the

application was made by Michael Herbst, with an address of 1500 Rowena,

Thornton, Colorado. Nunez subpoenaed Craigslist records. The records

indicated that an ad for the sale of a 1993 GMC Vandura in the Denver area was

posted on March 8, 2010, and any questions were directed to “Fred” at a Denver

phone number. The cell phone records for Herbst’s cell phone showed no record

of any call from his phone number to the phone number on the Craigslist ad. 

The records did show numerous calls in June and July of 2010 involving a phone

number with a prefix from Juarez, Mexico.

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From the Craigslist information, Nunez tracked down Freddy Boston, of

Denver, Colorado, who said that he previously owned a 1993 GMC Vandura van

which he sold in March of 2010. In response to his ad, Boston received

numerous phone calls from a man who spoke very little English and who was

interested in purchasing the van. Two different men met with Boston and

agreed on a price of $3,900.00. They also agreed that another person would

travel by bus to meet Boston to pick up the vehicle and consummate the sale. On

March 28, 2010, Boston met with two Hispanic men, who were different from the

two men he had met with previously, and sold them the van. 

Nunez tracked the registration on the van to Alma Romero, who owned a

vehicle-titling business in El Paso. According to Romero, two Hispanic men

came to Romero’s office on June 22 inquiring about an estimate to register a

1993 GMC van. At that time, she advised them that they could not register the

vehicle because the person in whose name the title was being placed was

required to be present and that person needed to provide his signature and valid

identification. The next day, both men returned to Romero’s office with a man

who looked like Herbst. Romero testified that she made a copy of the Colorado

title for the 1993 GMC van. That Colorado title listed the previous owners as

Fred and Sabrina Boston, and the back of the title reflected the signature of

Michael Herbst. The application for registration of the vehicle was signed in

Romero’s presence by “Michael Herbst.” Romero told Nunez that the man who

signed the application presented her with a temporary driver’s license for

“Michael Herbst,” a copy of which she placed in her file. The title application

reflected the address for Michael Herbst as 262 Liberty Street, El Paso. Romero

stated that she went with the two other men to have the vehicle inspected and

assisted in obtaining insurance for the vehicle. Herbst did not go with them to

have the vehicle inspected. The two Hispanic men later returned to Romero’s

office to get the license plates for the vehicle.

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Lastly, Nunez obtained the crossing history of the van, which showed that

Herbst had crossed the border in that vehicle several times. Prior to July 16,

2010, the vehicle was referred for secondary inspection on June 27, June 30, July

4, July 8, and July 12. Nunez thought that this was an example of “burning

plates,” a tactic used by drug trafficking organizations to run a license plate

across the border several times so that it was not new in the system for the

purpose of decreasing the likelihood of a detailed inspection. 

Herbst was charged in a two count indictment with importation of a

controlled substance in violation of 21 U.S.C. §§ 952 and 960 and possession of

a controlled substance with intent to distribute in violation of 21 U.S.C. § 841. 

B. Procedural Background

Herbst sought to offer the testimony of clinical psychologist James

Schutte, Ph.D., as an expert to establish that Herbst had borderline intelligence

and was therefore more prone to manipulation by others than the average

individual. Herbst advised the district court that Schutte’s testimony would

assist the trier of fact because his testimony was relevant to the issue of whether

or not Herbst had knowledge that drugs were secreted in the van. Herbst did

not purport to raise an insanity defense.

The district court held a pretrial hearing to consider the Government’s

motion to exclude Schutte’s testimony. During the hearing Schutte testified

that, pursuant to his administration of commonly used psychological tests, he

was of the opinion that Herbst had “borderline intelligence” and was “more

prone to manipulation than the average individual.” According to Schutte,

“borderline intelligence” meant “on the border between mental retardation and

normal function.” Schutte stated that the key indication of Herbst’s borderline

intelligence was the determination that Herbst has an intelligence quotient (IQ)

of 72, two points above the cutoff for mental retardation. When asked if Herbst’s

low IQ would be apparent to a layperson, Schutte stated that it was his opinion

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that it would not be. Regarding his opinion that Herbst was more prone to

manipulation, Schutte testified that Herbst “ha[d] more difficulty than the

average person [did] in reasoning; long-term planning; appreciation of a

situation and all of [its] nuances; [and] the ability to detect when he [was] being

manipulated or coerced.” He further testified that, “because of that limited

reasoning capacity, [Herbst] ha[d] more difficulty in judging a situation than the

average person [did]” and that it was easier to take advantage of a person with

Herbst’s low IQ. 

The district court asked Schutte if “one [could] be manipulated because

one is more gullible and still form whatever mental impression is necessary to

accomplish a task.” Schutte answered, “Yes. A person can accomplish a task

without being aware of the reason for performing it.” When asked whether

Herbst could appreciate right from wrong, Schutte stated, “I think [Herbst]

understands right from wrong.” With regard to whether Herbst was able to take

direction, Schutte responded, “I think he can take very simple direction. But

. . . , since he’s so easily distracted, he requires a great deal of supervision in

order to carry out a task without getting off on a tangent.” Schutte was

specifically asked whether he was able to formulate an opinion as to whether or

not Herbst knew there were narcotics in the van. Schutte responded that,

beyond Herbst’s statement that he had no knowledge, he could not render an

opinion on that. Likewise, when asked if he could state an opinion on whether

or not Herbst was manipulated, Schutte stated that he could not.

The Government cross-examined Schutte regarding his conclusions. 

Schutte acknowledged that Herbst’s statements to him about how he had

obtained the van were different from the statements he had made to border

patrol officers after his arrest. Specifically, Schutte testified that Herbst had

told him the vehicle was given to him by a woman in Mexico, whereas the report

of investigation indicated that Herbst said he had owned the vehicle since June

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and that he had learned of the vehicle through Craigslist. When asked if coming

up with a new alibi for a criminal charge was demonstrative of Herbst’s ability

to plan and reason, Schutte stated that, since even children were able to lie, it

did not require a high degree of intellect to say something that was not true. 

The prosecution also cross-examined Schutte regarding the relationship

between Herbst’s alleged level of intellectual functioning and the knowledge

element of the charged offense. In response to the question as to whether Herbst

was capable of knowing whether or not he had something in the vehicle that he

was driving from point A to point B, Schutte stated, “Again, all I can testify to

is that he told me he was not aware that there was marijuana in the vehicle.”

When asked whether being more prone to manipulation prevented Herbst from

forming the knowledge and the intent necessary to commit a crime, Schutte

stated “I think that would depend on the crime . . . depending on what

knowledge is necessary to execute that crime.” In response to follow-up

questions from the district court, Schutte clarified that Herbst was capable of

driving a vehicle, that Herbst was capable of lying, and that he could not tell the

jury whether or not Herbst was capable of having had the knowledge on this

occasion or not. 

The district court granted the Government’s motion to exclude Schutte’s

testimony. In doing so, the district court stated that it failed “to understand how

the testimony with respect to the Defendant’s mental state ha[d] a bearing upon

whether or not the Defendant formed the opinion to knowingly or intentionally

participate.” The court further stated that, if Herbst were to testify at trial, the

jury had the ability to listen to and appreciate “the quality of the testimony and

the demeanor,” and could “form the impressions about whether or not [Herbst

wa]s responding directly to questions, whether one [wa]s distracted, whether

[Herbst wa]s capable of telling the truth or telling a lie.” It also concluded that

Schutte’s proposed testimony “does not assist the jury in making the

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determinations it’s called to make,” and that “it confuses the jury and distracts

the jury, to provide information that is not relevant to the elements that have

to be weighed and considered by the jury.” In its written order, the district court

stated that Herbst had “failed to provide any connection between Schutte’s

opinion regarding manipulation and how it would affect the determination of

whether” it affected his “knowledge.” Herbst filed a motion for reconsideration,

which the district court denied for the same reasons it had originally granted the

Government’s motion to exclude.

At trial, the district court sustained the Government’s hearsay objections

each time Herbst attempted to tell the jury what Santiago had said to him in the

months leading up to his arrest, such as direct quotes related to:

1) that, when they first met in the internet chatroom, Santiago had

told Herbst that she was seeking an Anglo man and wanted to meet

him;

2) that Santiago had asked Herbst to travel to Juarez to meet her;

3) that Santiago had told Herbst she wanted him to return to Juarez;

4) that Santiago had said she loved Herbst;

5) that Santiago had asked Herbst to return to Juarez in June 2010,

because she missed him;

6) that Santiago had suggested that Herbst get a Texas driver’s

license;

7) that Santiago had suggested that Herbst use the 262 Liberty

address;

8) that Santiago had told Herbst that all the paperwork for the van

had been taken care of for him;

9) that Santiago had asked Herbst to go into El Paso to do the grocery

shopping in the United States;

10) that Santiago had offered to send a mechanic into El Paso when the

van broke down;

11) that Santiago offered to take the van in to have its timing belt

replaced

12) that the idea that Herbst should go to El Paso to drink and spend

the night on July 16 was Santiago’s and that she had suggested the

motel he should stay at; and

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13) that Santiago had told Herbst that she did not like men to drink

around her.

Herbst claimed that the statements were offered not for their truth, but to show

why he would have placed extraordinary trust in Santiago and to explain

conduct that the Government alleged was suspicious. During closing argument,

defense counsel stated that Herbst’s defense was the following: “I had a

girlfriend. I trusted her. She used me, and I didn’t know.” Herbst’s counsel also

argued that Santiago “lur[ed] unknowing, poor-hearted, lonely, slow men to be

used.” 

Herbst was convicted on both counts and was sentenced to concurrent

terms of five years in prison and to concurrent four-year terms of supervised

release. Herbst timely appealed, challenging both the exclusion of Schutte’s

testimony and of the statements Santiago made to Herbst.

II. STANDARD OF REVIEW

We review evidentiary rulings for abuse of discretion, subject to harmless

error review. United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011); see 1

also United States v. Seale, 600 F.3d 473, 490 (5th Cir. 2010) (exclusion of expert

testimony reviewed for abuse of discretion); United States v. Valencia, 600 F.3d

389, 417–18 (5th Cir. 2010) (exclusion of evidence as hearsay reviewed for abuse

of discretion). “A trial court abuses its discretion when its ruling is based on an

erroneous view of the law or a clearly erroneous assessment of the evidence.” 

Jackson, 636 F.3d at 692 (internal quotation marks omitted). 

Herbst argues thatthe exclusion of Schutte’s testimony violated his Sixth Amendment 1

right to a fair trial and therefore should be reviewed de novo by this court. This is incorrect. 

See United States v. Scheffer, 523 U.S. 303, 308 (1998) (“[R]ules excluding evidence from

criminal trials . . . do not abridge an accused’s right to present a defense so long as they are

not arbitrary or disproportionate to the purposes they are designed to serve.” (internal

quotation marks omitted)); United States v. Najera-Jimenez, 593 F.3d 391, 402 (5th Cir. 2010)

(“The accused does not have an unfettered right to offer testimony that is incompetent,

privileged, or otherwise inadmissible under standard rules of evidence.” (internal quotation

marks omitted)).

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III. DISCUSSION

A. Schutte’s Testimony

In 1984, Congress enacted the Insanity Defense Reform Act (IDRA),

redefining insanity and making it an affirmative defense to be proved by clear

and convincing evidence. See 18 U.S.C. § 17. The IDRA also provided that:

“Mental disease or defect does not otherwise constitute a defense.” The IDRA

does not, however, address, whether it precludes the admission of psychological

or psychiatric expert testimony to negate the specific intent element of a charged

crime. We have previously recognized that “numerous other circuits” have 2

found that so-called “diminished capacity evidence is admissible to defeat the

mental state requirement of a specific intent crime.” United States v. Eff, 524

F.3d 712, 720 n.11 (5th Cir. 2008) (internal quotation marks omitted). This case

does not, however, require us to weigh in on that question because even

assuming that diminished-capacity evidence is admissible, Herbst cannot show

that the district court abused its discretion in excluding Schutte’s testimony.

To be sure, Schutte’s testimony cannot be said to be irrelevant to Herbst’s

claim that he lacked knowledge of the drugs in the van. Certainly, Schutte’s

testimony concerning Herbst’s low intelligence and ability to be manipulated

lends credibility to his assertion that he was duped into driving drugs across the

border. Yet, given the fact that Schutte testified that Herbst could nevertheless

form the requisite intent to transport something from point A to point B and that

he did not testify regarding the effect, if any, of the relationship between Herbst

and Santiago on Herbst’s ability to evaluate the circumstances relevant to this

See, e.g., United States v. Dupre, 462 F.3d 131, 137 n.8 (2d Cir. 2006); United States 2

v. Brown, 326 F.3d 1143, 1147 (10th Cir. 2003); United States v. Worrell, 313 F.3d 867, 874

(4th Cir. 2002); United States v. Schneider, 111 F.3d 197, 201 (1st Cir. 1997); United States v.

Childress, 58 F.3d 693, 728 (D.C. Cir. 1995); United States v. Cameron, 907 F.2d 1051, 1060

(11th Cir. 1990); United States v. Twine, 853 F.2d 676, 678–79 (9th Cir. 1988); United States

v. Pohlot, 827 F.2d 889, 897 (3d Cir.1987).

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case, Schutte’s testimony’s relevance to the knowledge element of the charged

offenses is not strong.

As our colleagues on the Eleventh Circuit have noted,

[b]ecause psychiatric evidence (1) will only rarely negate specific

intent, (2) presents an inherent danger that it will distract the jury’s

[sic] from focusing on the actual presence or absence of mens rea,

and (3) “may easily slide into wider usage that opens up the jury to

theories of defense more akin to justification,” Pohlot, 827 F.2d at

904–5, district courts must examine such psychiatric evidence

carefully to ascertain whether it would, if believed, “support a

legally acceptable theory of lack of mens rea.” Id. at 906.

Cameron, 907 F.2d at 1067; see also Schneider, 111 F.3d at 201 (“[S]pecific

medical evidence offered may still be irrelevant to the requisite intent or [the]

probative value [of the evidence] may be substantially outweighed by confusion

or delay.” (citation omitted)). 

In this case, the district court found that Schutte’s testimony did not

connect “how manipulation affected [Herbst’s] ‘knowledge,’” as defined by this

court and “would only serve to confuse the jury.” The concerns voiced by the

district court mirror the cautions of the Eleventh Circuit and other courts about

the difficulty of admitting diminished-capacity evidence. Herbst has made no

showing that the district court’s view of the law or Schutte’s testimony was

erroneous, see Jackson, 636 F.3d at 692; therefore, we find no abuse of discretion

in the district court’s exclusion of Schutte’s testimony.

B. Hearsay

Herbst also argues that the district court abused its discretion in not

allowing Herbstto testify regardingSantiago’s out-of-court statements. Hearsay

is defined as a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter

asserted, see Fed. R. Evid. 801(c), and is generally not admissible as evidence,

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see Fed. R. Evid. 802. Regardless of whether or not the statements constituted

hearsay, their exclusion was harmless because their substance was largely

introduced via the testimony of Herbst. Herbst testified that he met Santiago

in a chatroom on the internet, that she flirted with him, that he stayed at her

house in Juarez for a week and they were intimate, that he would go meet her

in Juarez after she called him, that he cared for her a lot, that he believed she

had the same feelings for him, that it was her idea that he use the Liberty Street

address, that she purchased the van for him, that he was not involved with any

of the paperwork for the van, that he shopped across the border for himself and

Santiago, that Santiago gave him the address of the Wal-Mart to shop at, that

Santiago did not like to be around men when they were drinking, and that, on

the day of his arrest, Santiago gave him cash to use for the motel.

Additionally, there is substantial other evidence of Herbst’s guilt. First,

the 175 kilograms (or approximately 387 pounds) or marijuana secreted in the

van was worth between $35,000 and $43,000. See United States v. GarciaFlores, 246 F.3d 451, 455 (5th Cir. 2001) (finding that the defendant’s control

over a vehicle containing over 300 pounds of marijuana could be used by a jury

to infer his guilty knowledge). Second, this court has held that “[p]erhaps the

strongest evidence of a criminal defendant’s guilty knowledge is inconsistent

statements to federal officials,” because “a factfinder could reasonably conclude

that they mask an underlying consciousness of guilt.” United States v. DiazCarreon, 915 F.2d 951, 954–55 (5th Cir. 1990). When Herbst met the first

border patrol officer, he was pale, his lips were white, and he did not make eye

contact with the officer. During the canine inspection, he fidgeted with his

hands and fingers. Most importantly, however, the jury could have inferred

guilty knowledge from the multitude of inconsistencies between the statements

Herbst made to the border patrol officers, Herbst’s testimony at trial, and the

written and testimonial evidence introduced by the Government regarding

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where Herbst lived, when and how the van was acquired, and how the van was

registered, titled, and insured. 

Given that the substance of Santiago’s statements was offered via Herbst’s

testimony and the other evidence supporting the jury’s finding of guilty

knowledge on the part of Herbst, any error in not allowing Santiago’s alleged

statements into evidence was harmless.

IV. CONCLUSION

For the foregoing reasons, we find no error in the district court’s exclusion

of Schutte’s testimony or of the statements Santiago made to Herbst, and

accordingly, we AFFIRM the judgment of the district court.

AFFIRMED.

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