Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84 CR 951 - Nicholas J. Bua, Judge.
CUDAHY and COFFEY, Circuit Judges, and EVANS, District Judge.*fn*
The appellant, Samuel Buchbinder, was charged in a nine-count indictment with wire fraud in violation of 18 U.S.C. § 1343. After a five-day jury trial, the defendant was convicted of all nine counts and was sentenced to a six-month term of work release, placed on probation for five years and ordered to pay restitution in the amount of $148,856. We affirm.
Samuel Buchbinder's indictment resulted from fraudulent trading in his Paine Webber, Inc. commodities trading account. The evidence reveals that on September 2, 1982, Buchbinder opened an account with a branch office of the New York Paine Webber brokerage firm, located in Chicago, Illinois. He represented to Paine Webber that his net worth was approximately $1.2 million, that his annual income was $100,000 and that he had liquid assets totaling $250,000 when in fact he was broke and unemployed at the time he opened his trading account. Buchbinder began trading activities immediately and within two and one-half weeks generated $113,956 in trading losses and commissions in his account. To cover these losses, he deposited a $50,000 bank draft on September 7, 1982 into the Paine Webber trading account drawn from a bank account he maintained at the Canadian Imperial Bank of Commerce in the Bahamas and deposited another $50,000 and $70,000 bank draft on September 10 and 15, 1981, also drawn on this account at the Canadian Imperial Bank. At the time of these three withdrawals, Buchbinder had only $400 inn his Canadian Imperial Bank account.*fn1 Having inflated his Paine Webber account to $170,000 through these worthless checks, Buchbinder also withdrew $22,800 and $16,700 in cash on September 15 and 21, 1982. As a result of his trading activities in his worthless account, Buchbinder owed Paine Webber approximately $256,000. Paine Webber commenced a civil action in federal court in 1983 against Buchbinder to recover the funds lost through his fraudulent activities. Buchbinder subsequently signed a confession of judgment and a note agreeing to repay Paine Webber for the losses, but made only a single $1,000 payment to the brokerage house. In late December, 1984, the government brought this criminal prosecution against Buchbinder for engaging in mail fraud under 18 U.S.C. § 12341.*fn2
At trial, one of Buchbinder's defenses was that he was extremely depressed in September 1982 and could not formulate the specific intent to defraud Paine Webber.*fn3 Specifically, in 1979 his young son was involved in a serious traffic accident that left his son a quadriplegic and as a result of his son's extreme paralysis and the increasing financial pressures caused by his son's mounting medical bills, Buchbinder became severely depressed. His son Steven, who was 15 years old at the time of the trial, testified at trial, with the aid of a respirator, that after the accident his father became extremely depressed and would not play with him anymore. Buchbinder's wife also testified that her husband was emotionally devastated by the accident and the ensuing medical expenses and that in the summer of 1982, just prior to hiss fraudulent trading activity, Buchbinder threatened to commit suicide and periodically went "in a closet sometimes with his gun and played like Russian roulette with it, and just a lot of anger." Tr. at 472. She also testified that her husband was attempting to repay his past debts and that he was not the type of person who would deliberately attempt to defraud another person. Id. at 475.
Buchbinder also attempted to introduce testimony of a psychiatrist, Dr. Littner, and a psychologist, Dr. Arbit, each of whom examined Buchbinder just prior to trial and would have testified, if allowed, as to the affect the defendant's depression had no his state of mind at the time of the alleged crime. This testimony was not allowed as the defendant had failed to give the government timely notice, pursuant to Fed. R. Crim. P. 12.2(b),*fn4 that he intended to present expert testimony concerning his mental condition at the time of the alleged criminal activity. Specifically, the defendant filed a motion with the district court on March 29, 1985, pursuant to Fed. R. Crim. P. 12.2(b), only two and one-half weeks before trial, seeking leave to file a motion of notice of intent to present expert psychiatric testimony concerning the defendant's mental condition at the time of the alleged crime. On April 18, 1985, the district court ruled that since the defendant previously failed to timely file a motion concerning his intent to present expert psychiatric testimony on any of the three earlier dates set for the filing of the defense pre-trial motions, the defendant would be barred from introducing the testimony of the expert witnesses. At trial Dr. Littner testified pursuant to an offer of proof in the absence of the jury that Buchbinder suffered from severe depression resulting from his son's accident that manifested itself in severe chronic depression of a neurotic nature, self-destructive impulses and poor judgment; Dr. Littner also stated that because of Buchbinder's severe depression in his medical opinion Buchbinder was unable to form the requisite specific intent in 1982 to defraud Paine Webber. Dr. Arbit, a psychologist, also testified pursuant to an offer of proof that Buchbinder was a man of superior intellectual ability but was suffering from chronic depression that would have a significant effect upon his judgment. Tr. at 273. Further, Dr. Arbit stated that he could not come to the conclusion that Buchbinder was unable to conform his conduct to "the dictates of the law." Tr. at 274.
On appeal, defendant argues (1) that the district court denied him his Sixth Amendment right to present a defense when it excluded the testimony of the expert witnesses for failure to comply with Fed. R. Crim. P. 12.2(b) since the government did in fact have actual notice that he was intending to present psychiatric testimony concerning his mental condition; (2) that the district court erred in excluding testimony as to the defendant's psychiatric condition dealing with his extreme state of depression in 1980 and 1981, the year prior to his fraudulent trading activities, and in excluding testimony that he stopped making the restitutionary payment to Paine Webber on the advice of his counsel; (3) that he was not provided with effective assistance of counsel in violation of the Sixth Amendment as his trial attorney failed to timely file the Rule 12.2(b) motion notifying the government of his intent to present expert witnesses at trial to testify as to his mental condition at the time of the alleged crime; and (4) that the prosecutor's closing argument constitutes reversible error.
Buchbinder contends that even though the notice of intent to present psychiatric expert testimony as to his mental condition was not timely filed, the government did in fact have actual notice that he intended to present such testimony and thus the "mechanistic application" of Rule 12.2(b) and (d) to exclude the psychiatric testimony deprived him of his Sixth Amendment right to present a defense. Cf. Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973). The record reveals that the court held a pre-trial conference on January 2, 1986 to schedule the filing of motions and that defense counsel notified the government prosecutor that he intended to "explore the possibility of a psychiatric evaluation of the defendant toward offering psychiatric testimony of defendant's mental condition." (Defendant's motion in response to Government's motion in limine to exclude expert testimony at page 1 filed April 16, 1985.) In spite of the court's direction that all pre-trial motions be filed by January 23, 1984, the defendant failed to present his motions. The time for filing the pre-trial motions was extended to February 25, 1984, and once again defense counsel failed to file any pre-trial motions. On March 1, 1985, the defendant filed a motion with the court requesting additional time prior to the setting of a trial date in order that he might be allowed to file additional motions and one of the reasons he gave in writing for this requested extension was that "defense counsel has arranged for a psychiatric evaluation and psychological testing of the defendant. . . ." (Defendant's motion for Additional Status Time, March 1, 1985.) At the hearing held on March 5, 1985 concerning these pending defense motions, defense counsel advised the government that he had "arranged some evaluations of my client by professional people." The court set a trial date of April 18, 1985 and granted the defendant additional time until March 12, 1985 to file the remainder of his pre-trial motions. Defense counsel did not inform the court when he intended to have the defendant examined by the defense experts nor did he complain that the final March 12, 1985 filing date for pre-trial motions was unreasonable. On March 29, 1985, the defendant filed his motion notifying the government of his intent to present expert psychiatric and psychological testimony as to his mental condition, only two and one-half weeks before trial, and the reports of the two doctors were not delivered to the court and the government until April 5 and 10, 1985, one week before trial. In light of the defendant's repeated failure to timely file his motion, the court reasoned that if it were to allow the defense to present its expert testimony at that late date e it would cause further delay of the case as the government would then require additional time to procure its own experts to examine and prepare their reports of the defendant's condition; thus, the district court excluded the expert's testimony.*fn5
Federal Rule of Criminal Procedure 12.2(b) requires that if the defendant intends to introduce expert testimony relating to his mental condition at the time of the crime, defense counsel must notify the attorney for the government "in writing" "within the time provided for the filing of pre-trial motions or at such time as the court may direct. . . ." The rule further states that "the court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate." Also, Rule 12.2(d) states that "if there is a failure to give notice when required by subdivision (b) . . . . the court may exclude the testimony of any expert witness offered by the defendant on the issue of his mental condition." These rules state the court "may" take such action as may be appropriate under the circumstances, and courts interpreting Fed. R. Crim. P. 12.2 have held that a district court's decision to exclude psychiatric testimony bearing upon the mental condition of the defendant is reversible only if the court abused its discretion in excluding this evidence. United States v. Veatch, 647 F.2d 995 (9th Cir. 1981); United States v. Edwards, 90 F.R.D. 391 (E.D. Va. 1982). See also United States v. Dill, 693 F.2d 1012, 1015 (10th Cir. 1982) (abuse of discretion standard governs exclusion of evidence under Rule 12.2(a)).*fn6
Buchbinder argues that the district court abused its discretion in excluding the expert witnesses' testimony as the government had actual notice in January of 1985 of his intent to present expert evidence on his mental condition when his trial counsel advised the government at the pre-trial conference that the defendant "intended to explore the possibility of the psychiatric evaluation toward offering psychiatric testimony. . . ." Buchbinder further notes that his trial counsel's mention of the fact on March 5, 1985 that he was to undergo psychiatric examination placed the government on notice that he would present expert testimony concerning his mental condition at trial. Thus, Buchbinder argues that the government was put on notice and that ...