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UNITED STATES v. REZAQ

March 12, 1996

UNITED STATES OF AMERICA,
v.
OMAR MOHAMMED ALI REZAQ, a/k/a OMAR MARZOUKI, Defendant.



The opinion of the court was delivered by: LAMBERTH

 This matter comes before the court on a motion in limine filed by the United States regarding defendant's insanity defense, *fn1" and a motion filed by defendant requesting a stay of the court's discovery Order of December 14, 1995. The government's motion actually consists of three separate requests. The government first seeks to preclude all evidence related to defendant's insanity defense on the ground that defendant's notice of an insanity defense, filed pursuant to Federal Rule of Criminal Procedure 12.2 ("Rule 12.2") was untimely, and that defendant had not shown "cause" sufficient to justify a late filing. See Govt.'s Mot., at 3-6. This first request was denied in open court on February 5, 1996. In the second part of the government's motion, the government moves the court to exclude all of defendant's lay and expert evidence related to his insanity defense on relevancy grounds or, alternatively, on a finding that defendant's evidence is needlessly confusing and will mislead the jury. See Govt.'s Mot., at 6-18. In the last part of the government's motion, the government requests that the court conduct a pretrial hearing to determine the scope of lay and expert evidence that defendant intends to introduce in support of his insanity defense. See Govt.'s Mot., at 18-24. Defendant's motion seeks a stay of the discovery of expert witnesses as outlined in the court's discovery Order of December 14, 1995 in light of the challenge to defendant's insanity defense posed by the government's motion in limine.

 Upon consideration of the filings and arguments of counsel with respect to the two remaining parts of the government's motion, the court shall grant in part and deny in part the government's motion. Furthermore, in light of the court's ruling on the government's motion in limine, the court shall deny defendant's motion to stay the court's discovery Order of December 14, 1995. The court's reasoning is set forth below.

 DISCUSSION

 On November 1, 1995, defendant provided notice to the government, pursuant to Rule 12.2, of his intent to rely on a defense of temporary insanity and to introduce expert testimony to negate the mens rea element of the offense of aircraft piracy. *fn2" On the same day, defense counsel also notified the government that defendant had been evaluated by three expert psychologists -- Drs. Nuha Abudabbeh, John Wilson, and Harvey Dondershine -- as part of the preparation of defendant's insanity defense. All three experts conducted psychological testing on defendant, and diagnosed the defendant as suffering from post traumatic stress disorder ("PTSD"). Defendant provided the reports to the government and, shortly thereafter, the government filed the present motion in limine to preclude defendant from introducing lay and expert evidence related to the insanity defense, and requested a pretrial hearing to determine the admissibility and scope of the evidence that defendant intends to introduce in support of his insanity defense. Defendant responded by filing a motion to stay the court's Discovery Order of December 14, 1995.

 The government's first argument for preclusion -- that defendant's notice was untimely -- has already been rejected by the court. The remaining portions of the government's motion and defendant's motion to stay the court's Discovery Order of December 14, 1995 are addressed seriatim.

 A. Motion In Limine Regarding Defendant's Rule 12.2 Evidence

 1. Preclusion of Evidence Offered by Defendant Pursuant to Rule 12.2(b) to Negate the Mens Rea Element of the Offense

 Defendant disputes the government's characterization of the offense of aircraft piracy as a specific intent crime, *fn3" but claims that the issue whether to preclude the defendant from introducing evidence pursuant to Rule 12.2(b) is mooted by the fact that defendant intends neither to offer expert evidence concerning defendant's mens rea at the time of the offense nor to request a jury instruction that expert evidence may be considered in regard to that issue. See Def.'s Opp., at 10-11.

 The government correctly points out that defendant's present position on Rule 12.2(b) evidence is inconsistent with the Rule 12.2 notice initially filed by defendant. The notice states explicitly that "pursuant to Fed.R.Crim.P. 12.2(b), the [defendant] intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing on the issue of guilt." Def.'s Rule 12.2. Notice, at 1. In any event, defendant does not object to the government's request for an order precluding defendant both from introducing evidence pursuant to 12.2(b) and from making reference to any such evidence in defendant's opening statement. Accordingly, the government motion in limine, with respect to 12.2(b) evidence, shall be granted. *fn4"

 2. Preclusion of Evidence Offered By Defendant Pursuant to Rule 12.2(a) In Support of Defendant's Affirmative Defense of Insanity

 The government also seeks to preclude defendant from introducing lay and expert evidence, pursuant to Rule 12.2(a), in support of his affirmative defense of insanity. Defendant's insanity defense is based on a claim that defendant, at the time of the offense, suffered from PTSD. According to the government, lay and expert evidence of defendant's PTSD diagnosis is irrelevant to an insanity defense because defendant's case of PTSD is not of sufficient severity to constitute an affirmative defense of insanity under 18 U.S.C. § 17(a). The government also contends that, even if defendant's evidence were relevant to a viable insanity defense, such evidence should nevertheless be precluded by the court because it has a strong tendency to either confuse the issues or mislead the jury.

 The affirmative defense of insanity is set forth in 18 U.S.C. § 17(a). *fn5" The requirements of section 17(a) are clear: unless the mental condition claimed by defendant was "severe" and resulted in the inability of defendant to "appreciate the nature and quality or wrongfulness of his acts," the "mental disease or defect does not . . . constitute [an affirmative] defense." 18 U.S.C. § 17(a). Thus, the relevance of the evidence pertaining to defendant's PTSD diagnosis turns on whether defendant's case of ...


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