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May 17, 1994

DAPHNE C. BELL, Defendant.

The opinion of the court was delivered by: PHILIP G. REINHARD


 Defendant, Daphne C. Bell, was indicted under 18 U.S.C. § 2113 A & D and 18 U.S.C. § 924(k) arising out of an armed bank robbery. The government filed before Magistrate Judge P. Michael Mahoney a motion for a court-ordered mental examination of defendant pursuant to Federal Rule of Criminal Procedure 12.2(c) and 18 U.S.C. §§ 4241 and 4242. The magistrate judge issued a memorandum opinion and order denying the government's motion. The government filed with this court an objection to the magistrate judge's order and a motion in limine.


 The primary issue presented to this court is whether there is a proper basis for the government to compel defendant to undergo a mental examination. The government contends there is because defendant intends to offer expert testimony as to her mental state and its relationship to the duress defense.

 The court agrees with the conclusion of the magistrate judge that the government is not entitled to a court-ordered mental examination under Federal Rule of Criminal Procedure 12.2 and 18 U.S.C. §§ 4241 and 4242. Rule 12.2(c) allows the government to have its own expert examine a defendant "in an appropriate case" and "pursuant to 18 U.S.C. 4241 or 4242." Fed.R.Crim.P. 12.2(c); see United States v. Banks, 137 F.R.D. 20, 21 (C.D. Ill. 1991). Sections 4241 and 4242, however, expressly apply only to an insanity defense. Banks, 137 F.R.D. at 21. While two courts have interpreted Rule 12.2(c) to allow for expert examination of a defendant by the government under broader circumstances than an insanity defense, see Banks, 137 F.R.D. at 21-22; United States v. Vega-Penarete, 137 F.R.D. 233, 235 (E.D. N.C. 1991), this court finds neither case persuasive here.

 First, the Banks decision is distinguishable from the present case in that the defense theory in Banks was based on the defendant's inability to formulate the requisite intent for the charged offenses. Thus, his defense was premised on a diminished mental capacity and, according to the court, fell within the plain language of Rule 12.2. Here, defendant's defense theory does not depend upon a diminished mental capacity. Rather, it seeks to excuse defendant from criminal responsibility for conduct she intentionally committed.

 Second, this court finds the Vega-Penarette decision to be an unacceptable extension of Rule 12.2 to a defense that does not focus on the mens rea of a crime. Even were this court to accept the Banks extension of Rule 12.2 to diminished mental capacity defenses other than insanity, an issue this court need not decide, such extension does not support the Vega-Penarette interpretation of Rule 12.2. The defense in Vega-Penarette, the battered wife syndrome (BWS), is in the nature of self-defense. In other words, the BWS does not excuse criminal conduct because a defendant was incapable of formulating a requisite mental state. Rather, it presumes such mental state to exist but offers a legally recognizable justification for the conduct. Because such a defense is unrelated to a defendant's mental capacity, this court cannot agree with the Vega-Penarette court's application of Rule 12.2 in that regard.

 The elements of a duress defense, as recognized in the Seventh Circuit, are: (1) an immediate threat of death or serious bodily harm; (2) a well-grounded fear that the threat will be carried out; and (3) no reasonable opportunity to escape the threatened harm. United States v. Tanner, 941 F.2d 574, 587 (7th Cir. 1991). More succinctly stated, "duress is a defense only if the defendant reasonably feared immediate death or severe bodily injury which could be avoided only by committing the criminal act charged." Id. While there is a dearth of federal cases addressing the issue, two courts support the proposition that the test for duress is objective rather than subjective, see United States v. Henderson-Durand, 985 F.2d 970, 976 (8th Cir. 1993) (duress under sentencing guidelines is broader than defense of duress as it allows court to consider the subjective mental state and personal characteristics of the defendant); United States v. Johnson, 956 F.2d 894, 898 (9th Cir. 1992) (subjective vulnerability of defendant not admissible to established duress). This court agrees that the test for the duress defense is an objective rather than subjective one.

 Nevertheless, as an objective inquiry, it remains proper for the trier of fact to consider the facts and circumstances surrounding a particular defendant's criminal undertaking in order to properly assess whether that defendant harbored a reasonable fear that an immediate threat would be carried out and that there was no reasonable opportunity to escape the threatened harm. A defendant's state of mind as it relates to whether her fear was reasonable is an objective criterion which may be testified to by defendant and considered by the trier of fact in this regard.

 Finally, the court denies the government's motion in limine as based on defendant's assertions in open court she does not intend to offer expert testimony of the nature objected to by the motion. The government may refile a motion in limine based on defendant's further pretrial disclosure of her expert's anticipated testimony.


 For the foregoing reasons, the court adopts with modification the memorandum opinion and order of the magistrate judge and denies ...

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