USA v. Brian Graco, No. 16-31166 (5th Cir. 2017)

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Case: 16-31166 Document: 00514211850 Page: 1 Date Filed: 10/26/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-31166 Summary Calendar United States Court of Appeals Fifth Circuit FILED October 26, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. BRIAN GRACO, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:14-CR-150-1 Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Defendant-Appellant Brian Graco was indicted for receiving child pornography. Graco filed a notice of an insanity defense to be supported by testimony from Dr. Frederic J. Sautter. The Government filed a motion in limine seeking to prevent Graco from raising an insanity defense or introducing any evidence of his alleged post-traumatic stress disorder. Relying on United States v. Eff, 524 F.3d 712, 717-19 (5th Cir. 2008), the district court 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 16-31166 Document: 00514211850 Page: 2 Date Filed: 10/26/2017 No. 16-31166 found that Dr. Sautter’s report did not show that Graco satisfied the elements required for an insanity defense under 18 U.S.C. § 17. The district court granted the Government’s motion. Graco pleaded guilty and specifically reserved the right to appeal the granting of the Government’s motion. We review a district court’s exclusion of expert testimony for abuse of discretion. United States v. Ogle, 328 F.3d 182, 188 (5th Cir. 2003). In Eff,we held that an insanity defense under § 17 requires that the defendant be completely unable to appreciate the quality of his actions and that having only a diminished capacity to do so was insufficient for the defense. Eff, 524 F.3d at 718-720. Graco concedes that the district court was bound by the existing definition of insanity in § 17 and that Eff governs our review. Graco raises a challenge to § 17 to preserve it for further direct review. The judgment of the district court is AFFIRMED. 2

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