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UNITED STATES v. RUSIN

June 14, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES RUSIN, Defendant.



The opinion of the court was delivered by: ELAINE E. BUCKLO

 Before the Court is the government's motion in limine to prohibit the defendant from presenting a defense of diminished capacity at trial. For the reasons stated herein, this motion is denied.

 Background

 Defendant, James Rusin ("Mr. Rusin"), is a real estate broker. Mr. Rusin is charged with two counts of knowingly converting approximately $ 75,000.00 in property sales proceeds belonging to the U.S. Department of Veterans Affairs in violation of 18 U.S.C. § 641. The transactions which form the basis of the charges took place between April and September, 1990. In the spring of 1995, Dr. James Mazepa ("Dr. Mazepa") conducted a psychological evaluation of Mr. Rusin and concluded that he suffered from Alcohol Withdrawal Induced Mood Disorder with Mixed Features at the time he allegedly committed these crimes. *fn1" Subsequently, Mr. Rusin gave notice to the government of his intention to introduce expert testimony relating to his mental state at the time of the offense, as required by FED. R. CRIM. P. 12.2(b). The government now moves to preclude Mr. Rusin from presenting a defense of diminished capacity at his trial.

 Discussion

 A motion in limine to exclude evidence should be granted only if the evidence sought to be excluded is clearly inadmissible for any purpose. Plair v. E.J. Brach & Sons, Inc., 864 F. Supp. 67, 69 (N.D. Ill. 1994) (citation omitted). If the proffered evidence is not clearly inadmissible, the motion should be denied, or the ruling deferred until trial, "so that questions of foundation, relevancy and potential prejudice may be resolved in the proper context." Hawthorne Partners v. AT & T Technologies, Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) (citations omitted). A denial of a motion in limine is a preliminary decision "subject to change based upon the court's exposure to the evidence at trial." United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).

 Mr. Rusin states that his defense will focus on the inability of the prosecution to prove beyond a reasonable doubt that he possessed the requisite intent to commit the charged offenses. The Seventh Circuit has recognized two types of mental condition defenses:

 
The first, sometimes called diminished responsibility, involves cases where the defendant's mental condition completely absolves him or her of criminal responsibility regardless of whether or not [his or her] guilt can be proven. The second, sometimes referred to as diminished capacity, involves cases where the defendant claims only that his [or her] mental condition is such that he or she cannot attain the culpable state of mind required by the definition of the crime. Unlike diminished responsibility, where the mental condition absolves the defendant of guilt, a successful diminished capacity defense means that the prosecution has not proven the defendant's guilt.

 United States v. Fazzini, 871 F.2d 635, 641 (7th Cir.) (citations omitted), cert. denied, 493 U.S. 982, 107 L. Ed. 2d 518, 110 S. Ct. 517 (1989). Therefore, diminished capacity is a viable defense only when specific intent is an element of the charged offense. Id.; United States v. Reed, 991 F.2d 399, 400 (7th Cir. 1993); United States v. Twine, 853 F.2d 676, 679, 681 (9th Cir. 1988). *fn2"

 The indictment in this case charges Mr. Rusin with two counts of violating 18 U.S.C. § 641. *fn3" It is well settled that a conviction under this statute requires proof of specific intent. See Morissette v. United States, 342 U.S. 246, 96 L. Ed. 288, 72 S. Ct. 240 (1952); United States v. Harbour, 809 F.2d 384, 387 (7th Cir. 1987); United States v. Croft, 750 F.2d 1354, 1362-63 (7th Cir. 1984). To establish a violation of 18 U.S.C. § 641, the government must demonstrate that Mr. Rusin had a "criminal intent to steal or knowingly convert, that is, wrongfully to deprive another of possession of property." Morissette v. United States, supra, 342 U.S. at 276 (emphasis in original); see also United States v. Ribas-Dominicci, 50 F.3d 76, 80 (1st Cir. 1995) (Section 641 does not cover "unwitting, inadvertent, and unintended conversions") (citation omitted); United States v. Scott, 789 F.2d 795, 797 (9th Cir. 1986) ("inadvertent, negligent or reckless action 'would fail to trigger the criminal prohibitions' of" Section 641) (quotation omitted). Accordingly, diminished capacity is a viable defense in this case.

 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 ...


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