The opinion of the court was delivered by: NORDBERG
Before the Court is the United States of America's ("Government's") motion for an order barring Defendant Janice Madoch ("Defendant") (1) from introducing at trial the expert testimony of Linda Gruenberg, D.O., and (2) from adducing any evidence at trial concerning the alleged physical or emotional abuse of Defendant.
Defendant was charged in a nine-count superseding indictment with a variety of criminal conduct. On Thursday, December 7, 1995, Counts Six, Seven, and Nine of the superseding indictment were dismissed pursuant to the Government's oral motion. In the remaining counts, Defendant is charged as follows: (1) In Count I, Defendant is charged with violating 18 U.S.C. § 286 for conspiring to defraud the United States by aiding the obtaining of the payment of fraudulent tax refunds; (2) in Count II, Defendant is charged with violating 18 U.S.C. §§ 287, 2, for presenting and causing to be presented a false tax refund claim to the IRS with Lawrence Madoch and Larry Buckingham; (3) in Counts III, IV, and V, Defendant is charged with violating 18 U.S.C. §§ 152, 2, regarding false statements in a bankruptcy proceeding; and (4) in Count VIII, Defendant is charged with violating 18 U.S.C. §§ 152, 2 for fraudulently concealing property from her creditors and the bankruptcy trustee in a personal bankruptcy proceeding.
In May 1995, more than one year after Defendant was indicted, Defendant sought a court-ordered psychiatric evaluation. That evaluation was conducted at the Isaac Ray Center, by psychiatrist Linda Gruenberg, D.O. ("Gruenberg"). Gruenberg tendered a report to the Court dated July 10, 1995, in which she sought "to assess any psychological factors that may impact upon [Defendant's] alleged criminal activity and her state of mind at the time of the offense." On November 22, 1995, the Government filed a motion in limine to bar Defendant from arguing to the jury that Defendant's alleged criminal conduct is excused by virtue of the affirmative defense of coercion. At a pre-trial conference on November 28, 1995, Defense counsel revealed that Defendant did not contemplate using the alleged abuse evidence in connection with a defense of coercion or duress, but, instead, intended to use the evidence in connection with the issue of specific intent. In light of this new information, the Government agreed to file a supplemental brief regarding its motion in limine to bar evidence.
On the morning of December 4, 1985, the parties appeared for trial, but the trial was rescheduled on the motion of Defendant because of the critical medical condition of one of Defendant's family members. Also, on December 4, 1995, a letter was faxed to the Court which revealed that Gruenberg had conducted a second examination of Defendant on November 29 and 30, 1995, without notice to the Court or the Government. The report dated December 4, 1995 stated that a new examination was conducted to adduce Defendant's "mental state around the time of the alleged offenses and whether [Defendant's] mental state around the time of the alleged offenses would have impacted upon her ability to formulate the necessary specific intent for these alleged offenses."
The Court found that the scope of the proposed evidence was not clearly articulated in the reports dated July 10, 1995 and December 4, 1995 from Gruenberg. Accordingly, on January 12, 1996, the Court ordered Defendant to submit a written proffer of the trial testimony of Gruenberg so that the Court could determine what testimony could properly be elicited from Gruenberg at trial. An eight page written proffer, dated February 29, 1996, was submitted by Defendant to the Court on March 1, 1996.
In the proffer, Gruenberg first provides information on her background, including her qualifications to testify as an expert in the case. (Proffer, pp. 1-3). Gruenberg testifies that she examined Defendant on four different dates, and that she took a history on Defendant. Id. at 3. Gruenberg states that the history revealed that Defendant "was raised in an abusive environment, which included sexual and emotional abuse, and continued a pattern of abusive relationships in her marriages." Id. at 4.
Gruenberg next states that she performed a psychiatric evaluation of Defendant, and, in doing so, she used the diagnostic and statistical criteria and guidelines outlined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV"). Id. Gruenberg asserts in a cursory fashion the information upon which her evaluation was based, including the psychological testing conducted by Orest Wasyliw, Ph.D. ("Wasyliw"). Id. at 4-5. Gruenberg lists the five tests conducted by Wasyliw, without articulating Defendant's score on each test or the meaning of that score. Id. at 5. Gruenberg asserts that her diagnosis on July 10, 1995 was "Axis I: Major Depressive Disorder; Dysthymic Disorder, Physical Abuse of Adult" and "Axis II: Personality Disorder, Not Otherwise Specified with Dependent and Avoidant Traits," and that these diagnostic categories are taken from DSM-IV. Id. at 6-7. Gruenberg then defines the characteristics of Major Depressive Disorder, Chronic Dysthymic Disorder, and Physical Abuse of Adult. Id. As to the Dysthymic Disorder, Gruenberg asserts that the disorder manifested itself in Defendant's case as follows:
[Defendant] has been in abusive situations throughout her life. The chronic sexual abuse of her step-father, the emotional abuse of her family of origin, and the physical abuse of her husband caused her to feel despondent, hopeless, and worthless, and left her with generally low capabilities and chronically depressed. Through years of being demoralized and being constantly told she was 'stupid' and incapable of independent thoughts or decisions, her chronic depressive feelings were re-enforced which are characteristics of a Dysthymic Disorder.
Id. at 6. Gruenberg also defines "Personality Disorder, Not Otherwise Specified with Dependent and Avoidant Traits," and then she describes what the symptoms of this disorder were in Defendant's case. Id. at 7.
Next, Gruenberg proffers that she did a follow-up evaluation of Defendant on November 29 and 30, 1995 to "evaluate [Defendant's] mental state around the time of the offense and whether [her] mental condition around the time of the offense would have affected her ability to formulate the necessary specific intent for the alleged offenses." Id. at 8. Following this assertion, Gruenberg does not proffer any specific information concerning whether Defendant suffered form the previously described mental disorders at the time of the offenses. She only states that at the evaluation, Defendant's husband was incarcerated, and so Defendant talked more freely about their relationship. Gruenberg proffers that "this further information amplified how it would be possible for her to have the lack of knowledge of her husband's purpose for demands upon her behavior which subsequently led to the crimes she is charged with." Id.
On April 9, 1996, the Government responded to the Defendant's proffer with a Motion in Limine and with the proffer of its own expert witness. The Government argues that this Court should preclude Defendant from introducing at trial the testimony of Gruenberg because (1) Gruenberg does not diagnose Defendant as suffering a severe mental disease or defect at the time of the alleged offenses sufficient to diminish her capacity to behave in a knowing and purposeful fashion, (2) her testimony does not offer specialized knowledge about an issue that is outside the ability of the ordinary juror, and (3) the proffer of the Government's expert witness, Daniel A. Martell, Ph.D. ("Martell"), makes manifest that Defendant did not suffer a severe mental disease or defect at the time of the alleged offenses sufficient to diminish her capacity to behave in a knowing and purposeful fashion. On April 26, 1996, Defendant responded to the Government's Motion, and on May 3, 1996, the Government replied.
Because the Government had understood that all of the testimony that Defendant sought to admit at trial from Dr. Gruenberg would be included in the proffer dated March 1, 1996, the Government states that it did not address the reports dated July 10, 1995 and December 4, 1995 in its Motion. In her Memorandum in Response to the Government's Motion, Defendant disregarded the Court's purpose in requiring Gruenberg's proffer by quoting large portions of Gruenberg's earlier reports and stating that the reports were incorporated by reference into the proffer. Defendant quoted the following excerpts from Gruenberg's reports:
(Defendant's Response to the Government's Motion, p. 5).
[Defendant's] life long history of sexual, physical and emotional abuse which began in her early childhood and continued throughout her adult life fostered a severe personality disorder which is characterized by intense dependent traits and avoidant traits. It was due to her personality disorder compounded by her chronic depressive disorder that [Defendant] was unable to form the expected curiosity and questions which one would otherwise expect. given her exorbitant need for affection, her need to please others, her low self esteem, and her desire to placate those who stimulate unbearable feelings, along with her inability to recognize her capabilities or intellect, she is likely to comply with the directions of another and may proceed to do as asked with very little curiosity or questioning unless it is recognizably illegal to her. She is also slow to realize the wrongdoing or motivations of others thereby placing herself in compromising predicaments which are hazardous to her.
The Court disagrees with Defendant's assertions that Gruenberg's reports dated July 10, 1995 and December 4, 1995 are incorporated by reference into the proffer. The July 10, 1995 report is never mentioned in the proffer, and the December 4, 1995 report is only referenced regarding Gruenberg's interview with Defendant on November 29 and 30, 1995. In addition, incorporating the entire reports into the proffer would defeat the purpose of this Court's order requiring Defendant to submit a proffer. The Court, however, will consider Defendant's "proffer" to include the following: (1) The document titled "Dr. Linda Gruenberg's Proffer" filed March 1, 1996; and (2) excerpts from the reports dated July 10, 1995 and December 4, 1995 that appear in the form of exact quotations in Defendant's memorandum titled "Defendant Madoch's Response to the Government's Motion to Preclude the Expert Testimony of Linda Gruenberg and any Evidence Relating to Physical and Emotional Abuse," filed April 26, 1996. This Court holds that Defendant may only offer at trial testimony of Gruenberg that is found in the "proffer," as defined above, and that meets the legal requirements of expert testimony, as discussed below.
The Court finds that the Government is not prejudiced by admitting the additional quotations included in Defendant's Response for two reasons. First, Defendant has stated since December that she sought to offer a theory of defense that her mental condition around the time of the alleged offenses affected her ability to formulate the necessary specific intent for the alleged offenses. Such an intent is reasserted in the March 1, 1996 proffer where Gruenberg explains that she examined Defendant in November 1995 to evaluate Defendant's mental state at the time of the offense. Therefore, the Government can not claim that it is surprised that Defendant seeks to admit the additional quotes in Defendant's Response pertaining to Defendant's mental condition at the time of the offenses. Second, the Government has had an opportunity to prepare rebuttal testimony, and has offered a proffer prepared by its expert which specifically rebuts the testimony articulated in Defendant's Response.
The Seventh Circuit has recognized two types of mental condition defenses. United States v. Fazzini, 871 F.2d 635, 641 (7th Cir. 1989), cert. denied, 493 U.S. 982, 107 L. Ed. 2d 518, 110 S. Ct. 517 (1989); United States v. Rusin, 889 F. Supp. 1036, 1039 (N.D. Ill. 1995).
Fazzini, 871 F.2d at 641 (citations omitted). "Therefore diminished capacity is a viable defense only when specific intent is an element of the charged offense." Rusin, 889 F. Supp. at 1039 (citing United ...