The government contends that Dr. Mazepa's findings are legally insufficient to support a defense of diminished capacity. Specifically, it argues that Mr. Rusin's alcoholism could not have affected his capacity to understand his behavior because Mr. Rusin admits that he has been sober since March, 1990, and the charged offenses took place in or after April, 1990. Mr. Rusin responds that he is not claiming that he suffered from a diminished capacity directly due to his alcohol abuse. Rather, Dr. Mazepa will testify that, at the time Mr. Rusin allegedly committed the charged offenses, he was suffering from the effects of alcohol withdrawal, including increased anxiety, forgetfulness, low self esteem, and hopelessness. Mr. Rusin claims that this condition adversely affected his attention to his business affairs and contributed to an inadvertent failure to turn over the funds to the government.
Where, as here, intent of the accused is an element of the crime charged, "its existence is a question of fact which must be submitted to the jury." Morissette v. United States, supra, 342 U.S. at 274. Specific intent is determined from all of the facts and circumstances surrounding the events. Id. at 276; United States v. Twine, supra, 853 F.2d at 681. It is well settled that psychological evidence which focuses on an accused's mental state at the time of the commission of the crime is admissible to negate specific intent. United States v. Cameron, 907 F.2d 1051, 1067 (11th Cir. 1990); United States v. Twine, supra, 853 F.2d at 681. At least two Courts of Appeals, including the Seventh Circuit, have held that it is reversible error for a district court to exclude psychological testimony where the evidence is relevant to the defendant's state of mind and the charged offense is a specific intent crime. See United States v. Staggs, 553 F.2d 1073, 1076 (7th Cir. 1977); United States v. McBride, 786 F.2d 45, 49-50 (2d Cir. 1986); United States v. Dwyer, 539 F.2d 924 (2d Cir. 1976).
In the present case, Mr. Rusin seeks to offer Dr. Mazepa's testimony to negate the specific intent necessary to establish a violation of 18 U.S.C. § 641. The government does not argue that Dr. Mazepa is an unreliable or unqualified expert witness, nor does it object to the substance of his findings at this time. Rather, the government's present objection focuses on the relevance of the testimony to Mr. Rusin's state of mind at the time of the charged offenses. I disagree with the government that Dr. Mazepa's testimony is not relevant to the question of whether Mr. Rusin possessed the requisite intent to commit the crimes. It is conceivable that, due to his mental condition at the time of the alleged offenses, Mr. Rusin failed to turn over these funds inadvertently rather than knowingly. Moreover, I do not believe that the prejudicial effect of the testimony substantially outweighs its probative value because the government will have an opportunity to expose any perceived shortcomings in Dr. Mazepa's testimony on cross examination. To exclude this testimony would unfairly deprive Mr. Rusin of an opportunity to present evidence bearing directly on an essential element of the charged offenses. Accordingly, the government's motion in limine to preclude Mr. Rusin from presenting a diminished capacity defense is denied.
ELAINE E. BUCKLO
United States District Judge
Dated: June 14, 1995.