Tenth Circuit Holds Insanity Defense Precludes “Acceptance-ofResponsibility” Downward Adjustment to Sentencing Guidelines

United States v. Herriman, 739 F.3d 1250 (10th Cir. 2014)

The Tenth Circuit Court of Appeals upheld on January 14, 2014, the district court’s refusal to give a defendant a reduction from the sentencing guidelines based on his acceptance of responsibility for his criminal acts because he raised an affirmative insanity defense. In refusing to approve a sentencing reduction, the Court of Appeals distinguished the insanity defense which the defendant must raise and prove by clear and convincing evidence from a mens rea challenge, which is an element of the offense the prosecution must prove beyond a reasonable doubt, and for which a court in its discretion may accord a sentence reduction.

In August 2011, Daniel Herriman planted a bomb near a gas pipeline in Oklahoma. When he saw on the news that police had discovered the bomb, he called the police and told them he was responsible. When the police interviewed him, he provided details relating to the bomb, including what materials he used to make it and where they could be located in his house. After investigation and a search of his house, the government charged Herriman with attempting to destroy or damage property by means of an explosive and with illegally making a destructive device.

During pretrial proceedings, the district court became concerned about Herriman’s competency to stand trial and ordered a mental evaluation. A forensic psychologist with the Bureau of Prisons examined him and found him competent to stand trial, a finding which the court accepted. Herriman then gave notice that he would raise an insanity defense. At trial, he did not challenge the prosecution’s evidence that he had constructed and placed the explosive device. In support of his insanity defense, Herriman presented evidence that he had been diagnosed with manic depression, schizoaffective disorder, and post-traumatic stress disorder caused by sexual abuse he had experienced as a child. He had attempted suicide at age 13 and had been repeatedly hospitalized for psychotic episodes. Herriman had also been upset by the death of his mother by suicide and by the death of his sister, possibly by suicide. He also suffered from command hallucinations and was prescribed antipsychotic medications, which did not always work. At the time of the offenses charged, Herriman was taking antipsychotic medication and seeing a psychiatrist regularly. Herriman argued that his mental condition was aggravated at the time of the offenses due to the anniversary of his mother’s death. Voices identifying themselves as al Qaeda urged him to plant the bomb and told him he would be turned over to the individuals who had sexually abused him if he disobeyed.

The prosecution strongly challenged Herrimans’s evidence eliciting testimony from his psychiatrist that he never mentioned auditory hallucinations to him during the time surrounding the events charged, nor did the psychiatrist notice any behavior indicating he was hearing voices. Testimony from his ex-wife and son indicated that his behavior at the time was cogent and lucid. The government also argued that Herriman clearly had the mental capacity to assemble a bomb. The jury rejected Herriman’s insanity defense and found him guilty of both charges. At sentencing Herriman argued that the court should apply an acceptance-of-responsibility adjustment to the sentencing guidelines. The district court refused to do so and sentenced him to sixty-three months in prison on each count to be served concurrently, followed by three years of supervised release.

Under the sentencing guidelines, district courts are required to decrease the offense level of the crime by two levels if the defendant clearly demonstrates acceptance of responsibility for his offense. The Court of Appeals emphasized that Note 2 to the guidelines clarifies that an adjustment is not intended for a defendant who puts the government to the burden of proof at trial by denying the essential factual elements of guilt, is convicted and then admits guilt and expresses remorse. Such an adjustment to the guidelines is available only in rare circumstances when the defendant insists upon a trial only in order to preserve a legal defense to the charge.

In upholding the district court’s refusal to grant a downward adjustment, the Court of Appeals applied a clearly erroneous standard to the court’s decision. It then distinguished this case from United States v. Gauvin, 173 F.3d 798 (10th Cir. 1999), the only case in which the Court indicated it had ever approved a downward adjustment based upon acceptance of responsibility when the defendant required the prosecution to prove its case at trial. The defendant in Gauvin committed an assault while intoxicated. He acknowledged the conduct with which he was charged, but denied due to his voluntary intoxication that he was guilty of the crime charged. He denied he met the mens rea or the intent to harm or cause apprehension, which was a legal element of the crime. Although Herriman in this case acknowledged he committed the acts charged, he factually challenged whether he was criminally liable due to his insanity at the time of the offense, a fact which the government vigorously challenged.

The Court of Appeals acknowledged that the same evidence would be relevant both to challenge the mens rea element of an offense and to assert an insanity defense. But the Court stated that the process for raising the defenses is completely different. The mens rea is the mental element of the crime charged, which the government must prove beyond a reasonable doubt. By contrast, insanity is an affirmative defense which a defendant must raise and prove by clear and convincing evidence. In Gauvin, the defendant admitted he committed the acts in question, but was legally not guilty of all the elements of the crime charged. Here, Herriman acknowledged he committed the acts, but could not be held criminally liable due to his mental state, a fact the prosecution strongly contested. The Court of Appeals therefore upheld the district court’s refusal to grant a downward adjustment to the sentencing guidelines because, unlike Gauvin who only forced the government to proceed to trial to preserve a legal issue unrelated to his factual guilt, Herriman required the government to rebut the factual evidence of his insanity at trial.

Found in DMHL Volume 33 Issue 1