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United States v. Diekhoff

July 24, 2008


Appeal from the United States District Court for the Central District of Illinois. No. 05-CR-10003-Michael M. Mihm, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge


Before FLAUM, MANION, and EVANS, Circuit Judges.

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.

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 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 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- 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 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," ...

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