The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court on the Motion in Limine of the United States to exclude proffered expert testimony about Defendant's mental condition on the basis that it runs afoul of the Insanity Defense Reform Act, 18 U.S.C. § 17(a), by providing excuses for the charged conduct that do not negate mens rea. For the reasons explained below, the Court shall grant the motion in limine in part and deny it in part. Testimony about Defendant's low intellectual functioning and intelligence are not barred under Insanity Defense Reform Act, as such evidence, under the circumstances of this case, is relevant to whether Defendant knew the money he accepted was a bribe or corrupt payment, an element of each of the charges in Counts One, Two and Three of the Superseding Indictment. However, evidence of Defendant's "suggestibility" is barred because that is a personality trait not relevant to whether Defendant had the requisite knowledge of the nature of the payments he allegedly facilitated.
Defendant Louis Mister is charged in a four-count superseding indictment with (1) conspiracy in violation of 18 U.S.C. § 1951(a) (the Hobbs Act), for agreeing to accept money on behalf of Maurice Callaway in exchange for Callaway's official action in obtaining Pleasantville Board of Education ("PBOE") contracts*fn1 ; (2) extortion in violation of 18 U.S.C. § 1951(a) and Section 2, by obtaining money for Callaway in exchange for Callaway's official action*fn2 ; (3) acceptance of corrupt payments with intent to influence and reward a PBOE official, in violation of 18 U.S.C. § 666(a)(1)(B)*fn3 and Section 2, by aiding and abetting and accepting cash payments for Callaway with the intent for Callaway to be influenced and rewarded on transactions with a value in excess of $5,000; and (4) attempted interference with commerce by extortion under color of official right in violation of 18 U.S.C. § 1951(a) and Section 2, by working to appoint James McCormick to the Pleasantville Board Of Education (PBOE) and obtaining money for McCormick in exchange for McCormick's official action on the PBOE. For Counts One, Two, and Three, the Government has the burden at trial of proving beyond a reasonable doubt that Defendant knew the payments he was accepting for Callaway were corrupt payments or bribes.
On September 6, 2007, following a widespread political corruption investigation, the Government arrested twelve individuals, including Defendant. The Government accused Mr. Mister of, among other things, accepting a corrupt payment on behalf of his friend Maurice Callaway, a member of the PBOE.*fn4 On June 5, 2006, Defendant accompanied Callaway to two meetings with cooperating witness Bruce Begg. Defendant accepted $3,000 from Begg and then gave the money to Callaway, who in turn used the money to pay campaign workers. Mr. Callaway was running for a council seat in Pleasantville, and the meetings with Begg occurred the day before the primary election. The theory of the defense at trial will be that Defendant believed the payments he accepted were legitimate campaign contributions, not given in exchange for official action. It appears that there will be no evidence Callaway or Begg ever explicitly told him otherwise. The Government alleges that the money was actually a bribe, paid to Mr. Callaway in exchange for his official action and influence in awarding PBOE contracts. Thus, Mr. Mister denies knowledge of the corrupt character of the payments, which knowledge is an essential element of Counts 1, 2, and 3.
On or about February 6, 2008, Defendant filed notice, pursuant to Federal Rule of Criminal Procedure 12.2(b), of his intention to introduce expert testimony [Docket Item 22]. Defendant served the report of its proposed expert, Dr. Bruce Frumkin, on the Government. The United States seeks a pretrial order precluding Dr. Frumkin's proposed testimony on the grounds that such opinion testimony about the defendant's mental condition is not permitted by the Insanity Defense Reform Act.
The Frumkin Report ("Frumkin Rep.") was composed on March 24, 2008*fn5 and was the result of a January 27, 2008 evaluation of Defendant (for more than seven hours), as well as the review of additional information.*fn6 In an attempt to assess Defendant's psychological functioning at the time of the alleged offenses, Dr. Frumkin reviewed the results of several psychological and psycho-educational assessments:*fn7
C Wechsler Adult Intelligence Scale-III (WAIS III) C Word Reading subtest of the Wide Range Achievement
C MiniMental Status Examination (MMSE) C Rey 15 Item Test (Rey)
C Word Recognition Test (WRT)
C Minnesota Multiphasic Personality Inventory-2
C 16 Personality Factor (16PF) C Validity Indicator Profile-Nonverbal (VIP) C Gudjonsson Suggestibility Scales 1 (GSS 1)
On the WAIS-III, Defendant obtained an IQ score that put him in the "Borderline to Low Average range of intelligence for his age group." (Frumkin Rep. at 4.) Dr. Frumkin noted that Defendant missed easy questions but was able to answer more difficult ones and had a difficult time sustaining his attention. Dr. Frumkin also reported that there was a 22-point difference between Defendant's Verbal Comprehension Index of 91 (lower 27%) and his Perceptual Organization Index (lower 2%), a rare discrepancy. (Id. at 5.) According to Dr. Frumkin, Defendant's processing speed was average and the size of the discrepancy between processing speed and perceptual organization occurs in less than 1% of the population. (Id.)
Dr. Frumkin concluded that Defendant's MMSE results indicate "some impairment in short-term memory." (Id.) Defendant's word reading level as measured by the WRAT-4 was at the 9th grade level. The REY, WRT, and VIP were administered to detect feigning and Frumkin reported that the results indicate Defendant was not feigning. (Id.)
Mr. Mister is a relatively humble, unassertive, yet impulsive individual who does not take charge of situations. Rather, he lets things happen to him. Others are likely to see him as a friendly but submissive individual. He is not comfortable in situations which require a lot of drive. (Id.)
Dr. Frumkin also discussed clinical results of the GSS1, "a test designed to help assess interrogative suggestibility . . . ." (Id. at 6.) Dr. Frumkin found that Defendant "yielded to leading or misleading questions much more than the average person . . . and shifted from one response, right or wrong[,] to a different response, to an extreme degree." (Id.) Dr. Frumkin noted that Defendant's total suggestibility was "at approximately the 98% range" and that Defendant was "much more likely, under pressure, to be misled and to give a different response, when pressured, compared to the average person." (Id.)
Under the Insanity Defense Reform Act, 18 U.S.C. § 7, expert psychological testimony is not admissible to assert a diminished capacity defense, but only to show insanity as defined by the Act or to negate an element of the crime charged, United States v. Pohlot, 827 F.2d 889 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988). Here, Defendant attempts to provide evidence of his mental condition, impaired intellectual functioning and suggestibility, to negate an element of the crimes charged by showing that he did not know the money he received was a bribe. Defendant claims such evidence is especially relevant in a case, such as this one, where the Government has requested a willful blindness jury instruction, and the anticipated Government evidence will attempt to show circumstantially that Defendant knew, even though he wasn't told, that the payments he received were corrupt payments.*fn8
In Pohlot, the Third Circuit explained that 18 U.S.C. § 17 does not bar defendants from presenting psychiatric evidence that disproves any element of the charged crime, including mens rea.
We first consider the government's claim that evidence of mental abnormality is never admissible to negate mens rea. We disagree. Both the wording of the statute and the legislative history leave no doubt that Congress intended, as the Senate Report stated, to bar only alternative "affirmative defenses" that "excuse" misconduct not evidence that disproves an element of the crime itself.
Pohlot, 827 F.2d at 897. The Court held that
[b]ecause admitting psychiatric evidence to negate mens does not constitute a defense but only negates an element of the offense, § 17(a) by its terms does not bar it. Section 17(a) states only that "mental disease . . . does not otherwise ...