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June 8, 1987

United States of America
Lanre A. Gold, also known as Bode Bobo Adeniyi

Joyce Hens Green, United States District Court.

The opinion of the court was delivered by: GREEN

JOYCE HENS GREEN United States District Court


 This case is set for trial to commence June 10, 1987 at 10:00 a.m. This matter comes before the Court on the government's motion in limine to rule inadmissible any and all evidence of defendant's mental condition and the effect of that mental condition upon the capacity of the defendant to formulate specific intent. For the reasons set forth below, the motion is denied.

 I. Background

 Defendant's counsel has made clear to the government and the Court that defendant intends "to pursue a defense, not of insanity, but that he did not have the mental state required of him to commit the specific intent crimes charged against him, that is, he was incapable of the enhanced intent required by the statute to commit the crime due to his mental state at the time of the crime." Letter to the Court from Defendant's Counsel, Jan. 28, 1987, at 1 (emphasis added).

 The government argues that, by proceeding on such a theory, defendant would be circumventing the provisions of the Insanity Defense Reform Act of 1984, 18 U.S.C. § 17 (1984), *fn1" which narrows the availability of the insanity defense to cases where the defendant "as a result of a severe mental disease or defect, was unable to appreciate the nature and quality of or the wrongfulness of his acts." *fn2" The government also argues that the proposed "incapacity" defense contravenes the limitations imposed by new Federal Rule of Evidence 704, which prohibits expert testimony "as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto." *fn3"

 It is important to note that while defendant's characterization of his proffer has wavered somewhat, he has emphatically and repeatedly stated that he will not be raising the insanity defense. Defendant's counsel proposes to present "expert testimony, a psychiatrist, on the issue of whether Mr. Gold had 'the mental state required for the offense charged,' that is, the effect of his mental condition was to make him incapable of forming the specific intent needed." Defendant's Memorandum at 8 (emphasis added). In his most recent submission to the Court, however, counsel for defendant verges on proposing the insanity defense. For example, he states that defendant "did not know the quality of his acts at the relevant times, (emphasizing the word "quality") due to his laboring under a defect of reason, that is, a mental illness of long duration (McNaghten's case, 10 Clerk & F. 200, 8 Eng. Reprint 719)." Id. at 10. *fn4" This characterization might bring defendant's proffer under 18 U.S.C. § 17, which defines the insanity defense to include the argument that "as a result of a severe mental disease or defect [defendant] was unable to appreciate the nature and quality or the wrongfulness of his acts." Defendant cannot proceed with this recently suggested line of evidence or argumentation without raising the insanity defense, which he represents that he will not do. Thus, despite the confusing language in some of defendant's papers, the Court will continue to rely on defendant's repeated representations that he is raising lack of specific intent and not the defense of insanity.

 II. Analysis

 The government's motion requires an examination of how the new insanity defense provisions of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 402, 98 Stat. 1837, 2057, codified at 18 U.S.C. § 17, impacts on the pre-existing law of this Circuit on the issue of a defendant's right to introduce evidence tending to show he lacked the specific intent necessary to commit a crime.

 In the seminal case for this Circuit, United States v. Brawner, 153 U.S. App. D.C. 1, 471 F.2d 969 (D.C. Cir. 1972) (en banc), the Court of Appeals held that "expert testimony as to a defendant's abnormal mental condition may be received and considered, as tending to show, in a responsible way, that defendant did not have the specific mental state required for a particular crime or degree of crime -- even though he was aware that his act was wrongful and was able to control it, and hence was not entitled to complete exoneration." Id. at 998. As the Court carefully explained, this doctrine is not properly termed "diminished responsibility" but rather involves "whether the defendant has the mental state that must be proved as to all defendants." Id. The expert testimony on abnormal mental condition while " insufficient for complete exoneration " (i.e., while not a defense) may be "relevant to negative, or establish the specific mental condition that is an element of the crime." Id. at 1002 (emphasis added). For example, in a first-degree murder case, the government must prove premeditation. In this case, where defendant is charged with intentional distribution of heroin and cocaine, specific intent to distribute must be proven by the government.

 Finally, as the Brawner court recognized,

The receipt of this expert testimony to negative the mental condition of specific intent requires careful administration by the judge. Where the proof is not offered in the first instance as evidence of exonerating mental disease or defect within the ALI rule the judge may, and ordinarily would, require counsel first to make a proffer of the proof to be adduced outside the presence of the jury. The judge will then determine whether the testimony is grounded in sufficient scientific support to warrant use in the courtroom, and whether it would aid the jury in reaching a decision on the ultimate issues.

 Id. The Court of Appeals also directed that the jury be specifically instructed on this issue to avoid confusion:

Assuming the introduction of evidence showing 'abnormal mental condition,' the judge will consider an appropriate instruction making it clear to the jury that even though defendant did not have an abnormal mental condition that absolves him from responsibility, e.g., if he had substantial capacity to appreciate the wrongfulness of his act or to control his behavior[,] he may have had a condition that negatives the specific mental state required for a higher degree of crime, e.g., if the abnormal mental ...

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