------------------------------------------------------------------- F.A.C.T.Net, Inc. (Fight Against Coercive Tactics Network, Incorporated) a non-profit computer bulletin board and electronic library 601 16th St. #C-217 Golden, Colorado 80401 USA BBS 303 530-1942 FAX 303 530-2950 Office 303 473-0111 This document is part of an electronic lending library and preservational electronic archive. F.A.C.T.Net does not sell documents, it only lends them according to the terms of your library cardholder agreement with F.A.C.T.Net, Inc. ===================================================================== NURIK & KYLE, P.A. 2937 S.W. 27th Avenue 2 Suite 203 Miami, Florida 33133 ~ (305) 441-2400 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 8 1O UNITED STATES OF AMERICA CASE NO: CR-88-0616-DLJ 11 Plaintiff, 12 v. 13 STEVEN FISHMAN, 14 Defendant. 17 19 DEFENDANT'S SUPPI.RMENTAL MEMORANDUM AND EXHIBITS IN RESPONSE TO GOVERNMENT'S 20 MOTION TO EXCLUDE EXPERT WITNESS TESTIMONY 21 22 23 24 251 2? TABLE OF AUTHORITIES Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ........................ 1, 2 United States v. Amaral, 488 F.2d 1148, (9th Cir. 1973) ...................... 1, 2, 3 United States v. Barnard, 490 F.2d 907 (9th Cir. 1973) ........................ 14 United States v. Buchbinder, 796 F.2d 910 (7th Cir. 1986) ........................ 18 United States v. Demma, 523 F.2d 981 (9th Cir. 1975) ........................ 14 United States v. Erskine, 588 F.2d 721, (9th Cir. 1978) ....................... 14 13 United States v. Fazzini, 14 871 F.2d 635 (7th Cir. 1989) ........................ 18 United States v. Frisbee, 623 F.Supp. 1217 (N.D. Cal. 1985) ................... 14, 15 17 United States v. Gillespie, 18 852 F.2d 475 (9th Cir. 1988) ........................ 2 ! United States v. Gold, 20~ 661 F.Supp. 127 (D.D.C. 1987) ...................... 15 21~1 United States v. Pohlot, 8'~ ~.2~ 8'~ (~ Cir 1987) cert. denied 22 ' ' 108 S.Ct. 710 (1988) ............................... 15 23 United States v. Twine, 24 853 F.2d 676 (9th Cir. 1988) ....................... 15 25~ United States v. Veatch, 26 674 F.2d 1217 (9th Cir. 1981) ...................... 19 27 United States v. Winn, 577 F.2d 86 (9th Cir. 1978) ........................ 14 28 2 OTHER PUBLICATIONS ~ 2 A.B.A. Standards for Criminal Justice 11-55 (2d 1980) .................................... 17 5 Conference Committee Notes, House Report Number 94-414 ...................................... 17 7 Lifton, Thought Reform and the Psychology of Totalism (1989) .................................... 5 8 Merck Manual ....................................... 4 10 OTHER AUTHORITIES 11 12 Federal Rules of Criminal Procedure 12.2 ........................ 2, 14, 16, 17, 18, 19 13 14 Federal Rules of Evidence 702 ...................... 1 15 18 U.S.C.  17 (Insanity Defense Reform 16 Act of 1984) ................................... 2, 14, 15, 16 17 18 U.S.C.  1341 .................................. 16 18 19 2O 21 23 28 ~ , ii I NURIK & KYLE, P.A. 2'2937 S.W. 27th Avenue Suite 203 3' Miami, Florida 33133 (305) 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ~ UNITED STATES OF AMERICA CASE NO: CR-88-0616-DLJ Plaintiff, v. STEVEN FISHMAN, 10 Defendant. 11 / DEFENDANT'S SUPPLEMENTAL MEMORANDUM 13 AND EXHIBITS IN RESPONSE TO GOVERNMENT'S MOTION TO EXCLUDE EXPERT WITNESS TESTIMONY At the initial hearing on this matter held on 15 Wednesday, October 11, 1989, this Court noted the following three issues as being ripe for further discussion and ]7 determination by the Court: 19 t Whether the proffered theories of Doctors Singer 21 and Of she on thought reform meet general acceptance in the relevant scientific community to 22 satisfy the Defendant ' s burden pursuant to Rule 702 of the Federal Rules of Evidence and the tests 23 of admissibility set forth in Frye v. United States, and United States v. Amaral. 25 27 1 28 . II. Whether Dr. Richard Ofshe is sufficiently qualified to testify as to matters concerning the Defendant as proffered. III. Whether the Defendant may additionally offer defense of diminished capacity in light of the Insanity Defense Reform Act of 1984 and if so, whether the Defendant is precluded from offering testimony in support of that defense under the notice provisions of Rule 12.2 of the Federal Rules of Criminal Procedure. 9 I. 10 The theories of Drs. Sinqer and Ofshe are qenerally accepted within the 1] scientific community. 13 In evaluating the admissibility of the expert testimony 14'of Drs. Singer and Ofshe on the subject of thought reform 15 this Court seeks to determine whether the theories of Drs. 16 Singer and Of she on the subject are accepted in the 17 scientific community of psychologists generally. See, Frye 18 v. United States, 293 F. 1013 (D.C.Cir. 1923); United 19 States v. Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973); 20 United States v. Gillespie, 852 F.2d 475 (9th Cir. 1988). 21 As the burden of establishing this general acceptance 22 is on the proponent of the evidence, the Defendant submits 23 to the Court that there is ample evidence to support a 24 determination that there is a general acceptance of the 25 theories in question within the scientific community of 20 mental health professionals and that these theories conform 27 2 28 ,~ to a "generally accepted explanatory theory". Amaral, supra ~ at 1153. The theories on thought reform in question have 37 been set out in part in the declarations of Drs. Singer and ~ Ofshe previously filed on this issue with this Court, as 5 well as in the declarations attached to the relevant ~ pleadings that were filed in the Lifespring case. 1 7'~Furthermore, the Defendant relies upon the summary reports '~of Drs. Singer and Ofshe, which were submitted to the 9!iGovernment in April of 1989 and are attached hereto as Defendant's Exhibits "A" and "B" respectively, and upon the 10 11 Ofshe/Singer paper, "Attacks on Peripheral Versus Central Elements of Self and Efficacy of Thought Reforming 13 Techniques," which is attached as an exhibit to the Lifespring declaration. Boiled down to its bare essentials, the bone of 15 ~contention between the parties appears to be the Government's assertion that Drs. Ofshe's and Singer's 17 thought reform theories depart from the scientific community ",in that they do not require physical force or coercion. In establishing the general acceptance of its 20!witnesses 21 ' theories, the defense relies upon certain common- !!sensical indicia of such acceptance, such as the witnesses' ~authorship of recognized treatises espousing the theories in ~que24i stion; the consistency (notwithstanding semantic 1 The declarations were made an exhibit to the 2~!Defendant's Response. 3 differences) between the witnesses' theories and the writings and teachings of the universally-recognized experts in the field; and acceptance of such theories as evidence in other courts of law. Further evidence of Dr. Singer's theories on thought reform being generally accepted throughout the scientific community is her authorship of the entry for the subject of 8!group psychodynamics in the Merck Manual, which is the most respected medical reference work of its kind.2 Dr. Singer was selected to join the illustrious list of contributors to this august medical reference work and has written the entry concerning group psychodynamics in the chapter dealing with psychiatric disorders. She lists six criteria that comprise a thought reform program. These criteria are wholly consonant with the eight criteria specified by Dr. Robert Lifton. However, Dr. Singer focuses more on the mechanics of the process rather than the content of the thought reform programs. These thought reform theories are essentially consistent with the writings of the most respected members in the field. Previously, the defense has submitted the letters of Drs. Robert Lifton and Edgar Schein, who the Government concedes are perhaps the two most widely-accepted and authoritative experts on the subject. As set forth 2 The relevant portions of this entry are attached hereto as Exhibit "C". 4 previously, these letters establish that there is not, as the Government suggests, a requirement that physical coercion or force be present as an element in the thought reform process. In Schein's letter dated July 25, 1989, he explains that "one of the essential points I attempt to make in the book is that the effectiveness of coercive persuasion in changing attitudes and beliefs rests on the fact that the target person is physically, socially or psychologically constrained from leaving the situation in which he or she is actively being persuaded to some new point of view." Lifton also notes on page 66 of his book Thouqht Reform and the Psycholoqy of Totalism: The penetration by the psychological forces of the environment into the inner emotions of the individual person is perhaps the outstanding psychiatric fact of thought reform. Support for the theories of Ofshe and Singer on thought reform comes also from a very distinguished source. Dr. Martin Orne is a professor in the Department of Psychiatry, University of Pennsylvania Medical School, and is the Director of the Unit for Experimental Psychiatry at the Institute of Pennsylvania Hospital. In a letter dated November 13, 1989, which is attached hereto as Exhibit "D", Dr. Orne states that the paper written by Drs. Ofshe and Singer, which deals with thought reform, is directly in the mainstream of scientists' views on thought reform and coercive persuasion in that it recognizes that not only physical abuse 5 I and imprisonment can produce these effects, but also massive social and 2 psychological pressure can result in 'thought reform', especially with 3 vulnerable individuals. 4 The work by Ofshe and Singer represents z~ an extension of the contributions of 5 Robert J. Lifton and Edgar H. Schein, who are regarded as among the major ~ seminal contributors to the special field of thought reform and coercive 7' persuasion. Further, the Ofshe and ! Singer extension of Lifton and Schein's 8., work represents an application of more ! modern examples of thought reform and 9'i does not represent a deviation from the generally accepted ideas about the 102'. thought reform process .... Dr. Singer's insightful work represents a significant II advance in our understanding of the principles of thought reform and 12 influence tactics. ]3 A copy of Dr. Orne's C.V. is attached hereto as an exhibit 14 in order to establish his preeminence in the field. Of 15 particular note, the C.V. refers to the American 16 Psychological Association Distinguished Scientific Award for 17 the Applications of Psychology, which he received in 1986 18 (Exhibit "E"). 19I In support of its assertion that the theory of Dr. 20! Singer and Dr. Ofshe on thought reform and their proffered 21. testimony on the same subject are not accepted within the 22!scientific community, the Government has relied almost 23ii exclusively upon the testimony of Dick Anthony. (See 2~] Declaration of Dick Anthony dated October 10, 1989, as 25 Exhibit to Government's Response to Defendant's Memorandum 26 on Exclusion Motion.) 27 6 In his lengthy declaration, Anthony spends a considerable amount of time setting forth what he believes to be the bias of Drs. Singer and Ofshe against cults and religious organizations, thus evidencing their "nonscientific" approach. What is most curious is Anthony's own admission on page 11, paragraph 34, of his Declaration that he has served as a consultant and witness for the very groups that Drs. Singer and Ofshe have testified against in the actual cases in which Singer and Ofshe have appeared as witnesses for the plaintiff. (Unification Church, Dole, Molko, Leal; Scientology; Wollersheim; Transcendental Meditation; Kropinski; Hare Krishna; George). Indeed, there seems to be a long-standing pattern of professional rivalry as these parties represent antagonists in major lawsuits, obviously offering contrasting and conflicting views on the subject matters involved. Therefore, for the Government to rely upon Anthony as an unbiased evaluator of the scientific acceptability of Singer's and Ofshe's views is simply absurd. Moreover, throughout his Declaration, Ant. hony seeks to draw much support for his contention that Singer and Ofshe are outside of the mainstream from the amicus briefs that have been previously discussed infra and that were withdrawn and discredited. Finally, Anthony suffers from the same failing he accuses Drs. Ofshe and Singer of; i.e., misconstruing and 7 '. misinterpreting the writings of Dr. Edgar Schein and Dr. 2 Robert Lifton. A review of their recent letters, which are ~ appended as Exhibits to Defendant's Response to Government's ~ Motion to Exclude Testimony of Richard Ofshe and Margaret 5 Singer, dated September 13, 1989, points out that Anthony is 0 misquoting, or, at the very least, misinterpreting their 7 works. Numerous letters attached herein as exhibits from 8 respected professionals in the field contradict Anthony's 9 assertions on the subject of thought reform and raise the 10 very specter that Anthony's theories are outside of the 11 mainstream of scientific thought. Nevertheless, recognizing 12 that these are areas where reasonable parties can and do 13 disagree, the defense does not seek to exclude Mr. Anthony's 14 testimony should the Government seek to present it in 15 contradiction to Drs. Singer and Ofshe. In support of its position, the Government has 17 previously made reference to certain amicus curiae briefs 18 filed by the American Psychological Association and the 19 American Sociological Association in the Molko and Leal v. 20 The Unification Church case. However, as undersigned 21 counsel has previously pointed out to this Court at the 23 initial hearing on this matter on October 11, 1989, both the 23 A.P.A. and A.S.A. briefs were withdrawn after much public 24 clamor by the membership of both organizations, who asserted 25 that these briefs were not authorized by the membership and 27 8 not in accord with the membership's views.3 As stated before, the reasons for the filing of the brief and its eventual withdrawal were essentially political disputes within the organizations. Nevertheless, there is substantial support for the views of Singer and Ofshe on thought reform, as demonstrated by letters submitted by distinguished members of the organization to Dr. Joan Huber, President of the American Sociological Association, in connection with the controversy over the brief. These letters, which are attached hereto as exhibits, are as follows: 1. Letter to Dr. Joan Huber, president of the American Sociological Association, from Norman Goodman, Department of Sociology, State University of New York at Stony Brook, requesting that the A.S.A. withdraw from the amicus curiae brief immediately. Goodman states that "I believe that ... a consensus exists on the issue of coercive persuasion .... " (Exhibit "G"). 2o Letter to Dr. Huber from Philip Zimbardo, Psychology Department, Stanford University; in regards to the amicus brief, he states "... [T]he theor. y of coercive persuasion is not limited only to situations where the target person is physically confined and where physical abuse is an element of the process What is critical is creating a state of social and psychological isolation where 3 Letters confirming withdrawal of the A S.A. brief are attached hereto as Exhibit "F" 9 the person feels distant and alienated from his/her usual reference groups, sources of social support and reality 2!testing.'' (Exhibit "H"). 3. Letter to Dr. Huber from Martin SanchezJankowski, Department of Sociology, University of California at Berkeley; he states that the literature does not support the position taken in the A.S.A.'s amicus curiae brief in Molko. He states that "my own work on these cults have 9i(sic) found that thought reform does occur in environments that do not have physical coercion .... social influence is the principal mechanism of thought reform." (Exhibit "I"). 4. Letter to Dr. Huber from Victor Gecas, Washington State University; in opposition to the amicus curiae brief, he states that "I have argued that the processes of coercive persuasion described by Lifton and Schein are applicable to the socialization context of religious cults .... " (Exhibit "J")- 5. Letter to Dr. Huber from Jack Citrin, University of California at Berkeley, who states, "[T]o state that the coercive persuasion model is inapplicable to situations in which physical confinement or abuse are (sic) absent is 22'misleading and incorrect. On the contrary, the literature on the subject clearly implies the appropriateness of applying these ideas to these sorts of situations." (Exhibit "K"). 6. Letter to Dr. Huber from Thomas Gold, Department 27 10 =- of Sociology, University of California at Berkeley, who 2 states, "Lifton does not argue that thought reform ... must 2 occur [in a coercive setting]." (Exhibit "L"). ~ 7. Letter to Dr. Huber from Marybeth Ayella, St. 5 Joseph University, who states, "[I]n neither book do (sic) ~ Lifton or Schein claim that 'thought reform' or 'coercive 7 persuasion' can only occur in prison or using physical 8 abuse." (Exhibit "M"). 9 8. Letter to Dr. Huber from Carl Raschke, Department 10 of Religious Study, University of Denver, who states, "I am 11 writing to state flatly, categorically, and without 12 qualification or mincing words that the statement a 'strong 13 consensus of relevant professional opinion decisively 14 rejects the validity of coercive persuasion' is false. The 15 notion that the works of Schein and Lifton do not support 16 the validity of the use of coercive persuasion outside 17 prison camps is false as well." (Exhibit "N"). 18 9. Letter to Richard Ofshe from Dr. Joan Huber; she 19 states "I acknowledge that the A.S.A. did not authorize that 20 its name be placed on the amicus brief." She goes on to say 21 that if she is directed to do so by a majority of the 52 A.S.A.'s counsel members, she would request that the name be 23 removed from the brief. (Exhibit "O"). 24 10. Letter to Richard Ofshe from Lewis West, 25 Department of Psychiatry, U.C.L.A. School of Medicine; Dr. 20 West sent Dr. Ofshe a copy of a paper that he presented to 27 11 i~ the ABA "making clear my view that physical captivity or ~ abuse are by no means required to induce this type of 3 psychosocial control." (Exhibit "P"). 4 Further support for the Ofshe/Singer model of thought 5 reform as not requiring physical coercion or force comes ~ from a very curious and surprising source -- the ~ Government's own consulting expert in the case at bar, Dr. 8 Chris Hatcher. In his deposition in a case regarding the 9 Unification Church, Dr. Hatcher gave the following 10',',testimony: 1! A .... the term coercive persuasion is a rather broad one that encompasses 12 physical items of coercion as well as some psychological. 13 Q. Is it necessary to physically 14 employ force on somebody in order to coerce them? 15 A. It is not. Q. And is it -- is one who is using 17 methods of coercion able to gain control over an individual without the use of 18 force? A. It is possible. 20 See Hatcher deposition exhibit page 489, Exhibit "Q" Thus, the Defendant submits that a sufficient consensus 22 exists within the scientific community to permit Drs. Ofshe 23 and Singer to testify on their theories of thought reform. II. 25 Whether Dr. Richard Ofshe is sufficiently qualified to testify as to 20 matters concerninq the Defendant as proffered. 27 12 28 .i Dr. Ofshe is sufficiently qualified to offer testimony on the effects of the thought reform process on the Defendant, Steven Fishman. At the initial hearing on this matter on October 11, 1989, the Court inquired as to the 5 nature of Dr. Ofshe's proposed testimony and expressed reservations about Ofshe's ability to testify on matters affecting Steven Fishman's mind if he is not a mental health professional. Apparently, there is some confusion concerning Dr. Ofshe's qualifications in this regard. As set forth in 10 his declaration attached hereto (Exhibit "R"), Dr. Ofshe is a social psychologist who comes to that discipline from the field of sociology, a traditionally accepted route. Dr. 13 Ofshe teaches, writes, and testifies in his capacity as a social psychologist on the very issues about which is going to testify in the case at bar. Indeed, the particular subject matters to be testified about, i.e., the effect of 17 influence techniques upon the decision-making, judgment, 18 perception, attitudes and biases of a particular individual, are more appropriately subjects for discussion by social 20 psychologists than clinical psychologists. 21 Dr. Ofshe has previously testified on the subject, as set forth in his declaration in this matter dated September 23 12, 1989 and previously filed with this Court as an attachment to the Defendant's Response to the Government's Motion to Exclude Testimony of Richard Ofshe and Margaret Singer, and has most recently offered testimony on the 13 subject in October of this year in the case of People v. Nadine Fuller, case number 11065, Superior Court of 2'California, Marin County. 5 III. 0 Whether the Defendant may additionally offer a defense of diminished capacity 7 in light of the Insanity Defense Reform Act of 1984 and if so, whether the 8 Defendant is precluded from offering testimony in support of that defense 9, under the notice provisions of Rule 12.2 of the Federal Rules of Criminal 10.. Procedure. 11 The defense of "diminished capacity" is simply a label by which the defendant introduces evidence to make the claim 13 that he did not commit the crime charged because he did not 14 possess the requisite mens tea. United States v. Frisbee, 15 623 F.Supp. 1217 (N.D.Cal. 1985). Prior to the enactment of the Insanity Defense Reform Act of 1984, the Ninth Circuit 17 clearly recognized a diminished capacity defense, which was entirely distinct from the insanity defense. See, United ~'States v. Erskine, 588 F.2d 721, 722 (9th Cir. 1978); United 20 States v. Winn, 577 F.2d 86, 90 and n.1 (9~h Cir. 1978); 21 United States v. Demma, 523 F.2d 981, 986 and n.14 (9th Cir. 1975). These cases also clearly recognized that the 23 ~ District Court has wide latitude in admitting or excluding !i psychiatric testimony on the question of a defendant's 25 incapacity to form specific intent. See also, United States v. Barnard, 490 F.2d 907 (9th Cir. 1973). 27 14 To the extent that, with the passage of the 1984 Act, Congress codified the insanity defense under federal law, for the first time restricting its usage and abolishing the volitional prong of the defense, courts were bound to confront the continued viability of the diminished capacity defense. In United States v. Frisbee, 623 F.Supp. 1217 (N.D.Cal. 1985), the seminal case addressing this issue, the District 9iCourt for the Northern District of California reviewed the legislative history of the new insanity statute and clearly found that 18 U.S.C.  17 permitted mental defect evidence on the issue of whether the defendant had the mental capacity to commit the crime, regardless of whether he was legally sane. See also, United States v. Gold, 661 F.Supp. 1127 (D.D.C. 1987). In a comprehensive opinion setting forth a lengthy analysis of the legislative history of the Insanity Defense Reform Act, the Third Circuit in United States v. Pohlot, 827 F.2d 889 (3rd Cir. 1987), cert. denied, 108 S.Ct. 710 (1988) concluded that Congress was not concerned with the guilt phase of the criminal trial when it enacted section ~2.17, therefore the diminished capacity defense survives the statute. Recently, this Circuit adopted the positions of the Frisbee, Gold and Pohlot courts, holding that the 1984 Act does not abolish the diminished capacity defense. United States v. Twine, 853 F.2d 676 (9th Cir. 1988). 15 Here, as in Twine, Frisbee, Gold and Pohlot, a defendant is charged with violation of a statute that requires specific intent. Specifically, under 18 U.S.C.  1341 the Government must prove that the Defendant knowingly and willfully devised a scheme to defraud, or to obtain money or property by means of false representations or promises. Thus, consistent with the holdings of the Court of this Circuit, the Defendant here is entitled to have his mental defect evidence considered on the issue of whether he possessed the mental capacity to form a specific intent to "deceive someone, ordinarily for the purpose of causing some financial loss to another or to bring about some financial gain to oneself." In that regard, the proffered testimony of l~'Drs. Ofshe and Singer relating to influence techniques brought to bear upon Mr. Fishman that altered his perception, attitude, decision-making processes (cognitive functions) and prevented him from exercising independent judgment (volitional element) is highly relevant to a finding by the jury that he lacked specific intent, regardless of whether or not the Defendant was legally insane pursuant to 18 U.S.C.  17. The Government argues that the Defendant is precluded from offering this diminished capacity or lack of specific intent defense because he failed to give specific notice pursuant to Rule 12.2(b) of the Federal Rules of Criminal Procedure. 16 ~ Rule 12.2(a) states that, in regards to a notice of ~ intent to rely upon the insanity defense, "if there is a 2 failure to comply with the requirements of this subdivision, ~ insanity may not be raised as a defense." Under Rule 5 12.2(b), which deals with notice of intent to use expert c testimony of the defendant's mental condition, this ~ unequivocal language does not appear within the paragraph ~ itself. 9 Subsection (d) of the same rule does state that failure 10 to give notice under paragraph (b) may result in the 11 exclusion of the testimony of the expert witness. This 12 implies that the Court has much more discretion in dealing 13 with failure to give notice under paragraph (b) than it 14 does under paragraph (a). The Conference Committee Notes, 15 House Report number 94-414 to the 1983 amendment to Rule 16 12.2(b) state the reason for requiring notice: "[I]n all 17 circumstances in which the defendant plans to offer expert 18 testimony concerning his mental condition at the time of the 19 crime charged, advance disclosure to the Government will 20 serve 'to permit adequate pre-trial preparation, to prevent 21 surprise at trial, and to avoid the necessity of delays ~2 during trial."' 2 A.B.A. Standards for Criminal Justice 11- 23 55 (2d 1980). In referring to a case in which expert 24 testimony was excluded owing to lack of notice, the report 25 stated "this would have meant that the Government would not 20 have been equipped to cross-examine the expert, that any 17 expert called by the Government would not have had an opportunity to hear the defense expert testify, and that the Government would not have had an opportunity to conduct the kind of investigation needed to acquire rebuttal testimony on defendant's claim that he was especially susceptible to inducement." 7 In the case of United States v. Fazzini, 871 F.2d 635 8 (7th Cir. 1989) the exclusion of expert witness testimony was deemed to be error when, three weeks before trial, the 10 expert witness was revealed as someone who would be called 11~ by the defense and the general nature of his testimony was M provided. The Court held that the exclusion of this witness !on the basis of insufficient notice was error. In the case of United States v. Buchbinder, 796 F.2d 15 !' 910 (7th Cir. 1986) the Court interpreted Rule 12.2(b) as 16 !~ requiring a defendant who intends to use an expert witness 17 to inform the Government of the name of the witness as well ~as the general substance of the testimony that will be ~offered. Id., at 914. There, the defendant filed his notice 20 .three weeks after the third extension granted for filing pre-trial motions, which was a mere two weeks before trial. The defendant tried to argue that the Government in fact had 23 "actual notice" because references were occasionally made to the intention to "explore the possibility of a psychiatric evaluation of the defendant towards offering psychiatric testimony of the defendant's mental condition." Id. at 913. 27 28 18 ~ The Court held that allowing the presentation of expert 2 testimony would further delay the case, as the Government 2 would need time to prepare its rebuttal. Further, the ~ "actual notice" in fact did not serve to notify the 5 Government that the defense would use expert witnesses, nor ~ did it provide any insight into the nature of their 7 testimony. However, in the case at bar the Government has 8 been on notice of the Defendant's intent to raise a mental 9 condition defense from the very beginning. Moreover, the 10 Government has had the benefit of detailed psychiatric 11 summary reports from the defense witnesses for at least 12 seven months, which clearly put the Government on notice as 13 to the full nature of the expert testimony. 14 Furthermore, any confusion on the Government's part or ]5 lack of actual specific notice concerning the proffered use 16 of this testimony to negate specific intent is not 17 prejudicial to the Government at this stage. At the present 18 time there is no date set for trial, which will be at least 19 several months away. The Government's expert witness who 20 examined the Defendant in July of this year has not yet 2! rendered a report or issued his findings; the Defendant is ~ available for further examination. In sum, even though the 23 notice requirement under Rule 12.2(b) has not been formally 24 complied with, it is clearly curable. Previously, in United ~5 States v. Veatch, 674 F.2d 1217 (9th Cir. 1981) this Circuit 20 addressed the question of the notice requirements under the 19 I old insanity statute. Even there, the Court noted that the 2 purpose of the rule is substantive, not formalistic. 3 WHEREFORE, as the theories of Drs. Ofshe and Singer are ~ generally accepted, as Dr. Ofshe is qualified to testify as 5 to the matters proffered, and as the Government has had ~ adequate notice of the additional defense of diminished 7 capacity, the Defendant respectfully requests that the 8 Government's Motion to Exclude the testimony of Dr. Margaret 9 Singer and Dr. Richard Ofshe be denied. 10 ll Respectfully submitted, ~2 NURIK & KYLE, P.A. Attorneys for Defendant 13 2937 S.W. 27th Avenue Suite 203 Miami, ~1orida 33133 (305) 4~1~2400 (Dade) 15 (30~}-- ~~oward) 16 BY: __ ~rS. NURTI~ESQ. 17 IS CERTIFICATE OF SERVICE 19 I HEREBY CERTIFY that a true and correct copy of the 20~I foregoing was sent via Telefax and Federal Express this 21~ _j ~ day of ~, 1989 to: Robert Dondero, 22 Assistant United States Attorney, 450 Golden Gate Avenue, 23 San Francisco, California 94102. 25 ' BY: ~t N~R IK, ESQ. 27 20 ================================================================= If this is a copyrighted work, you are acknowledging by receipt of this document from FACTNet that on the basis of reasonable investigation, you have not been to obtain a copy elsewhere at a fair price, and that you are and will abide by the following copyright warning. WARNING CONCERNING COPYRIGHT RESTRICTIONS: The copyright law of the United States (Title 17, United States Code) governs the making of photo copies or other reproductions of copyrighted material. Under certain conditions specified by law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be "used for any purpose other than private study, scholarship, or research." If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of "fair use," that user may be liable for copyright infringement. FACTNet reserves the right to refuse to accept an order for copying or other duplication, or delivery of copied or duplicated material if, in its judgment, fulfillment of the order would involve violation of copyright law. ------------------------------------------------------------------- CARD CATALOG ENTRY DOS FILENAME OF TEXT FILE: E:\PCB\SCN\FILES\GEERTZ\FISH7B.TXT DOS FILENAME OF IMAGE FILES: ADMINISTRATIVE CODE: SECURITY CODE: DISTRIBUTION CODE: NAME FOR BBS: SORT TO: CONTRIBUTOR: LOC. OF ORIG: NOTES: For additional verification see image files contained in the file with same name and .ZIP extension. UPDATED ON: UPDATED BY: =================================================================