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JON M. SANDS

Federal Public Defender

J. LEONARDO COSTALES

Assistant Federal Public Defender

Louisiana State Bar# 35721

407 W. Congress, Suite 501

Tucson, AZ 85701-1355

Telephone: (520)879-7500

Attorney for Defendant

Leo_Costales@fd.org

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States Of America,

 Plaintiff,

v.

Robert Francis Krebs,

 Defendant.

CR18-0263-TUC-JGZ (JR)

RESPONSE TO GOVERNMENT’S 

MOTION TO PRECLUDE INSANITY 

DEFENSE

Robert Francis Krebs, through undersigned counsel, respectfully responds to the 

government’s motion seeking to preclude him from presenting an insanity defense.

a. Evidence necessary for an instruction

United States v. Keen, 104 F.3d 1111, 1117 (9th Cir. 1996), cited in the 

government’s motion, does correctly lay out the law with respect to the preclusion of an 

insanity defense, but is clearly distinguishable from the instant facts.

Counsel in Keen failed to state that their intent in presenting lay testimony was to 

prove that the defendant “was unable to appreciate the nature and quality or the 

wrongfulness of his acts.” See 18 U.S.C. §17(a). As such, their proposed presentation, a 
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bare restatement of the mental health symptoms without a causal link through evidence or 

argument, fell squarely into the second half of 18 U.S.C. §17(a), which states, “Mental 

disease or defect does not otherwise constitute an offense.” The issue of whether lay 

testimony is categorically insufficient to raise an insanity defense is actually still unsettled, 

as recognized within the Keen case itself. Keen, 104 F.3d at 1117 (“Without reaching the 

question of whether lay opinion alone can ever support a finding of insanity, we can 

safely state that the record ultimately supports the district court’s decision here.”) (emphasis 

added) (Appellate court excerpt from underlying District Court transcript). Unlike what the 

government alleged in its motion, the reasoning for the Keen Court’s affirmation of the 

District Court’s denial of a jury instruction came down to this legal insufficiency of the 

proffer, not the issue of whether lay testimony is per se insufficient.

If allowed, the Defense will present Mr. Krebs’ testimony, which we anticipate will 

support our contention that Mr. Krebs was unable to appreciate the nature and quality and/or 

wrongfulness of his acts. No expert testimony is anticipated. The Ninth Circuit adopted the 

relevant quantum of evidence standard in United States v. Whitehead, 896 F.2d 432, 435 

(9th Cir. 1990), borrowing from the 11th Circuit’s standard interpreting Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 253 (1986): “[W]here the issue of insanity has otherwise been 

properly raised, a federal criminal defendant is due a jury instruction on insanity when the 

evidence would allow a reasonable jury to find that insanity has been shown with 

convincing clarity. Recalling the jury’s right to determine credibility, to weigh the evidence, 

and to draw justifiable inferences of fact, the trial judge must construe the evidence most 
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favorably to the defendant.” Quoting from United States v. Owens, 854 F.2d 432, 435 (11th 

Cir. 1988). 

In short, Mr. Krebs intends to testify as to his mental health issues and Alzheimer’s, 

not excludable as hearsay under F.R.E. 803(3) and 803(4), with sufficient clarity as applied 

to the facts at issue so as to allow a reasonable jury to conclude that he was unable to 

appreciate the nature and quality and/or the wrongfulness of his act. It would be up to the 

jury to decide whether or not his testimony clearly convinced them that he was insane at the 

time of the offense. 

For the Court to deny Mr. Krebs the jury instruction on the basis that he has not 

utilized an expert in presenting the defense would be to create a new rule not previously 

recognized in the Circuit, and a major legal issue on appeal. 

The Court should deny the Government’s motion to preclude, and grant the Defense 

a jury instruction on the issue of insanity. In the alternative, the Court should defer ruling on 

this issue until the close of defense’s case.

RESPECTFULLY SUBMITTED: February 10, 2020.

JON M. SANDS 

Federal Public Defender

/s/ J. Leonardo Costales 

J. LEONARDO COSTALES

Assistant Federal Public Defender