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UNITED STATES v. SHORTER

September 13, 1985

UNITED STATES OF AMERICA
v.
JOHN A. SHORTER, JR.



The opinion of the court was delivered by: GREENE

 Presently pending before the Court is the government's motion to preclude the defendant from introducing expert testimony on defendant's alleged compulsive gambling disorder. The issue has arisen in the following manner.

 Defendant stands indicted for one count of tax evasion (26 U.S.C. § 7201) and six counts of willful failure to pay federal income taxes (26 U.S.C. § 7203). Pursuant to Fed. R. Crim. P. 12.2(b), he has filed a notice of his intention to place in issue his mental condition by presenting expert evidence that he suffers from a pathological gambling disorder. This expert testimony, it is claimed, will tend to negate willfulness -- an essential element of both the tax evasion and failure to pay counts. United States v. Bishop, 412 U.S. 346, 361, 36 L. Ed. 2d 941, 93 S. Ct. 2008 (1973). *fn1" Defendant contends that expert testimony will show that he suffers from a disorder that compels him to expend nearly all of his available financial resources on gambling, leaving him no funds with which to meet his tax obligations. He further argues that it is this compulsion, rather than any intent to evade or fail to pay income taxes, which explains the conduct forming the basis of the indictment. *fn2" It is defendant's notice and the supporting arguments that prompted the government motion.

  I

 Expert testimony is admissible in a proper case under Fed. R. Evid. 702. However, to be admissible, such evidence must be relevant (Fed. R. Evid. 402), and the issue of relevance is a preliminary question of law to be decided by the court ( United States v. Torniero, 735 F.2d 725, 730 (2d Cir. 1984), cert. denied, 469 U.S. 1110, 105 S. Ct. 788, 83 L. Ed. 2d 782 (1985); Fed. R. Evid. 104), which possesses broad discretion when ruling on that question. Salem v. United States Lines, 370 U.S. 31, 35, 8 L. Ed. 2d 313, 82 S. Ct. 1119 (1962); United States v. Torniero, supra, at 730; 3 Weinstein's Evidence para. 702[02] at 702-12 (1982).

 Because juries sometimes grant special deference to the testimony of an expert, courts seek to ensure that the subject matter of the expert testimony is reliable. United States v. Addison, 162 U.S. App. D.C. 199, 498 F.2d 741, 744 (D.C. Cir. 1974). On this basis, most courts hold that expert testimony may not relate to a scientific theory that is speculative or accepted by only a few members of the particular learned profession. Hence, this and other Circuits, as well as many States, follow the decision in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923), which prohibits the admission of expert testimony unless the scientific subject matter of the testimony is generally accepted by the relevant community of experts. United States v. McDaniel, 176 U.S. App. D.C. 60, 538 F.2d 408, 412-13 (D.C. Cir. 1976) (voice print spectrography); Frye v. United States, supra (polygraph); United States v. Lewellyn, 723 F.2d 615, 619 (8th Cir. 1983) (compulsive gambling); United States v. Stifel, 433 F.2d 431, 438 (6th Cir. 1970) (neutron activation analysis). See also, 3 Weinstein's Evidence para. 702[03] at 702-15 (1982). *fn3"

 Frye mandates a three-part inquiry into the relevancy of expert testimony, in this case expert testimony of pathological gambling. Such testimony will be admitted if the defendant is able to establish (1) that a disorder known as "pathological gambling" is recognized by the relevant community of experts; (2) that experts generally accept a causal link between pathological gambling and the failure to pay taxes; and (3) that the facts are sufficient to create a jury question as to whether the particular defendant suffers from a pathological gambling disorder.

 II

 After considering the evidence, the Court has concluded that, insofar as the pathological gambling disorder is concerned, the relevant scientific community is the mental health community, that is psychiatrists and psychologists generally. United States v. Lewellyn, supra, at 619. *fn4" With this predicate in mind, it is appropriate now to consider the three parts of the Frye test.

 First. The experts presented by both the government and the defense appear to agree, with varying degrees of certainty, that pathological gambling is a recognized disorder. In this regard, the Court finds persuasive the inclusion of pathological gambling in the 1980 edition of the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM-III). *fn5" The fact that pathological gambling was not included in the Manual prior to 1980 indicates that the disorder has only recently been recognized by the mental health community. United States v. Torniero, supra, 735 F.2d at 731. Nevertheless, despite its relatively recent appearance in DSM-III, the Court concludes that the disorder has achieved general acceptance by mental health professionals, and that accordingly it may be "recognized" as a disorder by the courts.

 Second. To be relevant in a prosecution charging tax evasion and willful failure to pay taxes, the pathological gambling disorder must be relevant to one or more elements of the charged offenses ( United States v. Peterson, 166 U.S. App. D.C. 75, 509 F.2d 408, 414 (D.C. Cir. 1974)), that is, the proferred testimony must "tend[] to prove or disprove a matter 'properly provable in the case. '" United States v. Torniero, supra, 735 F.2d at 730 (quoting Fed. R. Evid. 401 advisory committee note). The defense contends that testimony concerning a pathological gambling disorder is relevant *fn6" in that a pathological gambler is compelled by the internal mental pressures inherent in his disease to expend substantially all of his available funds for gambling, rather than for paying tax liabilities, and that this compulsion negates the element of willfulness required to convict for tax evasion or willful failure to pay. *fn7"

 In deciding the relevance of pathological gambling to criminal intent, the Court does not write on a clean slate. Three Circuits have concluded that a link between pathological gambling and criminal intent is not sufficiently accepted by mental health professionals to sustain the relevance of the disorder with respect to an insanity defense. United States v. Gould, supra, at 52 (robbery); United States v. Torniero, supra, at 734 (interstate transportation of stolen goods); United States v. Lewellyn, supra, at 619 (embezzlement). *fn8" To be sure, the issue in an insanity case -- whether "as a result of mental disease or defect [a defendant] lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law" -- differs to some extent in theory from the issue of willfulness. Nevertheless, as Brawner v. United States, supra, and other decisions make clear, it is somewhat of a misnomer to consider the defense under the rubric of diminished responsibility (much less sanity), and the real issue is one of willfulness and specific intent. *fn9"

 Rather than to rely solely on these appellate precedents, this Court has heard substantial testimony on whether experts generally accept a hypothesis about compulsive gambling that would tend to prove or disprove willfulness.

 The defense presented three experts. *fn10" The testimony of these defense experts was essentially similar. Each testified that pathological gamblers often fail to pay their taxes. Their testimony was less certain as to the existence of a causal link between the disorder and the absence of a willful intent to commit tax offenses. Dr. Moravec, who appears to have had the greatest experience treating pathological gamblers, opined that the pathological gambler "chooses not to" pay taxes in the belief that his funds, if devoted to gambling, will generate a "big win" that allows him to meet all outstanding obligations. Dr. Moravec's view of the disorder, even if accepted by the mental health community, would not tend to establish that compulsive gamblers are deprived of an ability to consciously choose between gambling and paying taxes. Furthermore, Dr. Moravec came even to this limited conclusion with respect to defendant notwithstanding the fact that defendant, according to the government, was able to make the choice of spending substantial amounts on an expensive automobile and on gifts to a girlfriend, and to make other significant non-gambling expenditures. Dr. Moravec was also unable adequately to explain why defendant, a prominent and successful attorney during these same years, was able to organize and manage his law practice but unable to engage in financial planning to meet his tax liabilities. ...


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