rule. Therefore, United States v. Staggs is not controlling." Id.
Implicit in the holding in West is the need to scrutinize
proffered psychiatric testimony in order to determine what it is
offered to prove. This scrutiny takes place during the
defendant's offer of proof.
The Court finds the reasoning and result in West to be
persuasive. In this case, Dr. Littner's testimony does not refer
to the character trait of depression or some other disposition of
the defendant. As the Court noted above, Dr. Littner explained
that the defendant exercised judgment in his commodity trading
but did so in a purposefully poor manner due to his depression.
In addition, Dr. Littner testified that the defendant was quite
capable of appreciating the criminal nature of a particular type
of conduct and of acting in a law-abiding manner. Finally, Dr.
Littner attributed the defendant's decision not to pay back Paine
Webber to his "poor judgment."
Having scrutinized the expert testimony in the defendant's
offer of proof, the Court finds that the defendant has failed to
show the relevance of testimony of his "depression" in his theory
of lack of specific intent. Instead, the psychiatric testimony
amounts to no more than experts' explanations for his poor
judgment in handling his trading and the debts arising therefrom.
Therefore, the proferred psychiatric testimony falls far short of
linking the defendant's alleged depression to his poor judgment
in trading. Following West, this Court concludes that evidence of
poor judgment in commodity trading and handling debts does not
constitute a character trait within the meaning of Rule
As in West, the Court's analysis continues to a determination
of whether expert testimony is admissible in this case to show
either depression or poor judgment. Expert testimony is
admissible only when the specialized knowledge of an expert will
assist the trier of fact in understanding the evidence or in
determining a fact in issue. Fed.R.Evid. 702. The theory upon
which expert testimony is excepted from the opinion evidence rule
is that such testimony serves to inform the court about affairs
not within the full understanding of the average man. West,
supra, 670 F.2d at 682. The review of a district court's
admissibility ruling is limited to determining whether the court
abused its wide discretion concerning admissibility of expert
testimony. United States v. Watson, 587 F.2d 365, 369 (7th Cir.
1978), cert. denied sub nom. Davis v. United States,
439 U.S. 1132, 99 S.Ct. 1055, 59 L.Ed.2d 95 (1979).
In this case, Dr. Littner testified that the defendant was
depressed and that his depression led him to purposefully
exercise poor judgment in his commodity trading and his handling
of debts. While this testimony was offered to negate the specific
intent necessary to defraud, nowhere in Dr. Littner's testimony
is there evidence that the defendant lacked knowledge of his
actions in writing bad bank drafts to Paine Webber. Therefore,
Dr. Littner's testimony would not assist the jurors in
determining the defendant's intent to defraud in writing bad bank
drafts and would tend to confuse the jurors regarding the
defendant's poor judgment in his trading. United States v.
Benveniste, 564 F.2d 335, 339 (9th Cir. 1977).
In addition, the defendant's son testified at trial that his
father was depressed and seemed more distant from him. The jury
was able to determine from the testimony of the defendant's wife
and son that he was depressed and that the depression may have
affected his business judgment without the assistance of expert
testimony. West, supra, 670 F.2d at 682; United States v. Webb,
625 F.2d 709, 711 (5th Cir. 1980). Furthermore, the defendant's
poor judgment and the underlying explanations were plainly within
"the ken of lay jurors," United States v. Fosher, 590 F.2d 381,
383 (1st Cir. 1979), and therefore it was a proper subject for
lay testimony. Webb, supra, 625 F.2d at 711. In light of the
above findings, the Court concludes that the defendant's experts
were properly excluded because their proffered testimony was
outside the scope of Fed.R.Evid. 702.
B. Ineffective Assistance of Counsel
The defendant argues that his counsel's failure to give timely
notice pursuant to Fed.R.Crim.P. 12.2(b) of the intent to
introduce the excluded expert testimony constitutes ineffective
assistance of counsel in violation of the Sixth Amendment to the
United States Constitution. In order to establish ineffective
assistance of counsel, the defendant must show that (1) his
counsel's performance fell below that of a reasonably competent
attorney and (2) the counsel's error prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064-69,
80 L.Ed.2d 674 (1984). In this case, careful examination of the
record reveals that at least part of the delay in giving notice
under Rule 12.2(b) was due to the defendant missing his
appointments with Dr. Littner. In light of the entire record, the
Court finds that the representation provided by counsel for the
defendant met the standard of a reasonably competent attorney.
Moreover, the Court's discussion of the admissibility of Dr.
Littner's testimony clearly shows that the defendant was not
prejudiced by the alleged error of failing to give notice. United
States v. Ellsworth, 738 F.2d 333, 336 n. 5 (8th Cir. 1984).
Defendant's motion for bond pending appeal under 18 U.S.C. § 3143
is denied because he has failed to show that there is a
substantial question which, if decided in defendant's favor,
would likely result in reversal or an order for a new trial on
all counts for which imprisonment has been imposed. He has failed
to show such a substantial question in:
(1) the exclusion of psychiatric testimony on the grounds of
untimely notice under Fed.R.Crim.P. 12.2(b) and of
inadmissibility under Federal Rules of Evidence 404(a)(1) and
(2) the alleged ineffective assistance of counsel.
For the above reasons, defendant has failed to meet his burden
under § 3143(b) and therefore his motion for bail pending appeal
is denied. Defendant is ordered to surrender to the United States
Marshal in Chicago before 12:00 p.m. (noon) on September 3, 1985.
IT IS SO ORDERED.
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