While maintaining, at one point, that a pathological gambler lacks the specific intent to commit tax offenses because he is irresistibly compelled to gamble with most of his funds, Dr. Resnik later testified that an individual, such as defendant, who embarks on a gambling spree (1) knows that he has failed to pay his taxes, and (2) makes a volitional choice to gamble rather than pay.
Finally, defendant's experts -- all directly involved with the diagnosis and treatment of pathological gamblers -- did testify that the gambling compulsion undermines the ability to comply with such laws as those relating to the payment of income tax, but they also in the main conceded that they were at the cutting edge of this field, and that the bulk of the community of psychiatrists and psychologists remains to be convinced.
The impression gleaned from the testimony of defendant's experts is that the impact of pathological gambling disorder on the volitional faculties is, at best, unclear even among those mental health professionals specializing in the treatment of the disorder. It is, however, the broader community of psychologists and psychiatrists to which the Court must turn in assessing the reliability of expert testimony under Frye ( United States v. Lewellyn, supra, 723 F.2d at 619), and as to them clarity is not lacking.
Each of the government's witnesses -- three forensic psychiatrists and one forensic psychologist -- categorically rejected the claim that pathological gamblers are unable to choose between gambling and paying taxes. Of greatest significance to the present case is Dr. Abraham L. Halpern's testimony that the "vast majority" of psychiatrists reject the proposition that pathological gamblers are unable to choose between gambling and paying taxes. Dr. Halpern, whom the Court has found to be an exceptionally well-qualified and persuasive witness,
testified that pathological gamblers retain the ability to make conscious decisions about their financial expenditures. The government's other experts, Drs. Neil H. Blumberg, David L. Shapiro and Raymond F. Patterson
each also offered the opinion that there exists no recognized link between pathological gambling and criminal tax offenses.
It should also be noted that it may not even be necessary for the Court definitively to resolve the disagreements between the experts. Under the Frye test, the issue is whether the existence "of a causal link between this disorder and commission of the type of offenses . . . charged" ( United States v. Gould, supra, 741 F.2d at 48, quoting United States v. Torniero, supra, 735 F.2d at 731), commands "general acceptance" ( Frye v. United States, supra, 293 F.2d at 1014), in the mental health community. The Court is firmly convinced, based on the evidence, that such general acceptance is lacking at the present time. While there are, to be sure, "seriously contradicting views" ( United States v. Torniero, supra, 735 F.2d at 731), clear that there is no general acceptance among the experts in the relevant scientific community that there is a link between the pathological gambling and the failure to pay taxes.
Finally, one must not completely disregard the consequences of the theories offered in support of the admission of the expert testimony proffered by defendant. If these experts are correct, it would be difficult, if not impossible, to establish a principled dividing line between a lawyer who evades his income taxes on account of his compulsive gambling, and an individual who craves alcohol or drugs and commits robberies or other, similar offenses to obtain the funds to satisfy his needs. In both types of instances, there could be presumed to be compelling forces which cause the individual to violate the law, and under the theory of defendant here, both must be exonerated. That is not, and cannot be, the law. See United States v. Moore, 158 U.S. App. D.C. 375, 486 F.2d 1139, 1147 (D.C. Cir.), cert. denied, 414 U.S. 980, 94 S. Ct. 298, 38 L. Ed. 2d 224 (1973) (concurring opinion of three judges) (narcotics addiction is not a defense to prosecution for possession of heroin);
United States v. Lyons, 731 F.2d 243, 245 (5th Cir.), cert. denied, 469 U.S. 930, 105 S. Ct. 323, 83 L. Ed. 2d 260 (1984) (narcotics addiction, without more, raises no issue of mental disease that can be used as a defense to prosecution for narcotics offenses). See also, Powell v. Texas, 392 U.S. 514, 535, 20 L. Ed. 2d 1254, 88 S. Ct. 2145 (1968) (defendant's allegedly irresistable urge to drink did not preclude conviction for public intoxication).
It may be that an alcoholic or an addict is entitled to consideration in terms of the availability of a lack of willfulness defense while in a state of intoxication or under the direct influence of the illegal substance. But such substance abusers are not regarded as deprived of free will for offenses committed during "lucid" intervals. The claim made on behalf of this defendant is that never, during a twelve-year period, was he sufficiently free from the pathological gambling disorder to pay his taxes (even though, among other things, he managed during this period to operate a busy and highly-regarded litigation practice).
Third. In light of the Court's conclusion that expert evidence on pathological gambling disorder is not relevant to the offenses charged and will not be admitted, it is unnecessary to decide whether defendant himself meets the profile of a pathological gambler, and the Court renders no decision thereon.
For the reasons stated, it is this 13th day of September, 1985
ORDERED that the expert testimony proferred by the defense will not be admitted at the trial.