United States District Court, District of Columbia
[Copyrighted Material Omitted]
David B. Kent, Julieanne Himelstein, U.S. Attorney's Office, Darcy Katzin, Department of Justice, Child Exploitation & Obscenity Section, Criminal Division, Washington, DC, for United States of America.
Barry J. Pollack, Miller & Chevalier Chartered, Washington, DC, Claire G. Cardwell, Stone, Cardwell & Dinkin, PLC, James M. Nachman, Law Office of James M. Nachman, Richmond, VA, for Defendant.
COLLEEN KOLLAR-KOTELLY, District Judge.
Defendant Paul David Hite is charged by Superseding Indictment with two counts of attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). Presently before the Court is the Government's  Motion in Limine to Exclude Testimony from Dr. Fred Berlin. The Government argues that the opinions Dr. Berlin intends to offer are irrelevant or otherwise inadmissible under the Federal Rules of Evidence. For the reasons stated below, upon consideration of the pleadings, the Defendant's notice of Dr. Berlin's proposed testimony, the relevant legal authorities, and the record as whole, the Government's motion is GRANTED and Dr. Berlin's testimony is excluded in full.
The facts necessary for the resolution of the Government's motion are undisputed. Over the course of approximately two weeks in February 2012, the Defendant engaged in a number of online chats and telephone calls with an adult male known to the Defendant as " JP." JP was an alias used by an undercover detective with the Metropolitan Police Department. The Government argues that through his conversations with JP, the Defendant attempted
to entice or coerce two minors to engage in illicit sexual activity, namely JP's fictitious three year-old nephew and the twelve year-old daughter of JP's girlfriend. The Defendant's conduct is largely undisputed. The trial will likely turn on the question of intent: did the Defendant intend to entice or coerce the fictitious minors to engage in unlawful sexual activity, or were his conversations with JP merely " fantasies" ?
To assist the jury in answering this question, the Defendant plans to call Dr. Federick S. Berlin. Def.'s Summ. of Anticipated Expert Test. (" Def.'s Notice" ), ECF No. . Dr. Berlin is a board certified psychiatrist and the Director of the Sexual Behaviors Consultation Unit at Johns Hopkins University Hospital. Id. at 1. The Defendant offers Dr. Berlin as an " expert in Psychiatry and Behavioral Sciences, specifically as they relate to sexual behaviors involving a sexual attraction to children." Id. The Defendant proffers that Dr. Berlin would offer expert opinions in two general areas: (1) " psychiatric conditions and patterns of behavior clinically associated with sexual attraction to children" ; and (2) the fact " that Dr. Hite does not have a psychiatric disorder clinically associated with a desire to have sexual contact with children." Id. at 2, 4. The Government does not contest Dr. Berlin's qualifications as an expert in general, although it does challenge his qualification to offer certain discrete opinions. Citing to several Federal Rules of Evidence, the Government argues the proffered testimony is inadmissible.
A. Preliminary Issues
Before addressing the substance of the Government's motion, the Court pauses briefly to address two issues: (1) the scope of the record on which the Court bases its decision to exclude Dr. Berlin's testimony; and (2) the nature of the offense with which the Defendant is charged. Pursuant to the schedule for expert disclosures set by the Court, the Defendant filed a five page " Summary of Anticipated Expert Testimony of Dr. Frederick S. Berlin" as required by Federal Rule of Criminal Procedure 16(b)(2)(C). Def.'s Notice, ECF No. . The Defendant maintains that Dr. Berlin has not written " any narrative or expert report[ ] in this case." Ltr B. Pollack to D. Kent, ECF No. [48-1], at 2. The Defendant further contends that he is not required to produce the results of psychological inventories or evaluations administered to the Defendant, notes taken during the evaluations, or any other documents or materials on which Dr. Berlin intends to rely. Id. at 2-3. The Defendant did not attach any of these materials to his opposition to exclude Dr. Berlin's testimony. Moreover, the Government requested a Daubert hearing, if the Court intended to allow any portion of Dr. Berlin's testimony, but the Defendant asserted that " a Daubert hearing is unnecessary." Def.'s Opp'n at 4. Nor has the Defendant sought to supplement his expert disclosure at any point between filing the disclosure on November 30, the filing of the Government's motion to exclude on December 14, the status hearing held on December 17, or submission of the Defendant's opposition on January 2, 2013. With the trial date of February 4 fast approaching, any attempt to supplement the notice at this point would be unduly prejudicial to the Government. Therefore, in resolving the Government's motion, by the Defendant's
own choice the Court is confined to relying on the sole source of documentation regarding Dr. Berlin's testimony provided to either the Government or to the Court— the Defendant's notice of expert testimony.
The Court emphasizes this at the outset because the Defendant's characterization of Dr. Berlin's testimony shifts between the notice of expert testimony and the Defendant's opposition, and often within sections of the brief itself. In its discretion, the Court shall preclude the Defendant from offering any opinions from Dr. Berlin that were not disclosed in the notice of expert testimony. The purpose of a Rule 16(b)(1)(C) notice is to " minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert's testimony through focused cross-examination." United States v. Day, 524 F.3d 1361, 1372 (D.C.Cir.2008) (quoting Fed.R.Crim.P. 16 advisory comm.'s note). The Defendant's opposition brief materially alters his Rule 16 disclosure regarding Dr. Berlin's most significant opinions, often in contradictory ways. These revisions to Dr. Berlin's opinions impede the Government's ability to prepare for trial; having read the parties' submissions, it is still unclear precisely what opinion Dr. Berlin will offer on various issues. To be clear, this is not a case in which the notice of expert testimony simply did not provide adequate detail, or there are minor variations between the expert disclosure and counsel's characterization of that testimony in the pleadings. The Court is only excluding new, material opinions that significantly alter the nature and scope of Dr. Berlin's proposed testimony. The Court further finds each of the newly disclosed opinions are inadmissible under various Federal Rules of Evidence. The portions of Dr. Berlin's testimony properly noticed by the Defendant are likewise excluded pursuant to various Federal Rules of Evidence.
The Court also notes that while the issue of the Defendant's desire to have sexual contact with children as a general concept is relevant to the case, as the Government notes, the Defendant does not have to be sexually attracted to children or possess any intent to have sex with children in order to form the requisite mens rea under the Section 2422(b). In order to return a guilty verdict, the jury must find the Defendant intended to coerce or entice the minors to engage in unlawful sexual activity, specifically, a violation of District of Columbia Code § 22-3008. In his proposed jury instructions, the Defendant explains that " [u]nder Title 22 of District of Columbia Code Section 3008, it is a crime for any person who is at least four years older than a child to engage in a sexual act with that child, or to cause a child to engage in a sexual act with any person who is at least four years older than that child. " Def.'s Proposed Substantive Jury Instruction, ECF No. , at 24 (emphasis added). In other words, even if the Defendant never intended to, and had no desire to, have sexual contact with the minors, he committed the charged offenses if he intended to coerce or entice the minors to have sexual contact with JP. The Court raises this issue simply to provide a more accurate context for questions of whether or not Dr. Berlin's proposed testimony is helpful to the jury and otherwise admissible in this case.
Turning to the merits of the Government's motion, the Court will begin by addressing Dr. Berlin's testimony regarding psychiatric disorders associated with a desire to have sexual contact with children, beginning with his opinion that the Defendant does not meet the diagnostic criteria
for psychiatric disorders associated with a desire to engage in sexual activity with children. Within the context of this broader conclusion, the Court will analyze the Government's objections to Dr. Berlin's interpretation of the Defendant's online chats, Dr. Berlin's opinion that the Defendant has no history of sexual contact with children, and any testimony from Dr. Berlin regarding statements made to Dr. Berlin by the Defendant. The Court will then address the Government's objections to Dr. Berlin's proposed testimony regarding the association between viewing child pornography and actually having sexual contact with a minor. As explained below, none of Dr. Berlin's proposed testimony is admissible.
B. Dr. Berlin's Proposed Testimony that the Defendant Does Not Meet the Diagnostic Criteria for Certain Psychiatric Disorders Is Not Admissible
The major thrust of Dr. Berlin's testimony is his opinion that, " within a reasonable degree of medical certainty, [ ] Dr. Hite does not have a psychiatric disorder clinically associated with a desire to have sexual contact with children." Def.'s Notice at 3-4. In reaching this conclusion, Dr. Berlin opines, in relevant part, that: (1) " the Internet chats identified by the government ... do not reflect efforts by Dr. Hite to engage in sexual contact with an actual child" ; and (2) Dr. Berlin has seen no evidence that Dr. Hite has a " prior history as an adult of pedophilic behaviors with a child." Id. at 4-5. The Government argues this testimony should be precluded pursuant to Federal Rules of Evidence 401, 404(a)(1), 704(b), and 403. Dr. Berlin also relies on statements made by the Defendant to Dr. Berlin in reaching his conclusion, which the Government seeks to preclude Dr. Berlin from discussing as inadmissible hearsay. The Court will address each of the preliminary opinions before considering Dr. Berlin's ultimate conclusion that the Defendant does not have a psychiatric disorder clinically associated with a desire to have sexual contact with children.
1. Dr. Berlin's Proposed Interpretation of the Defendant's Internet Chats Is Inadmissible Pursuant to Federal Rule of Evidence 704(b)
Dr. Berlin intends to offer the opinion that the numerous internet chats between the Defendant and other individuals describing sexual contact with children are " fantasy conversations about ‘ intergenerational sex,’ " that do not " suggest an actual real-life interest in behaving in such a fashion." Def.'s Notice at 5. The Government contends that this testimony is inadmissible for two reasons: (1) Dr. Berlin is not qualified to interpret the chats, in violation of Rule 702; and (2) Dr. Berlin's proposed " interpretations" would usurp the function of the jury to decide the ultimate issue of the Defendant's intent, in violation of Rule 704(b). The Court finds that even assuming Dr. Berlin is qualified to interpret the chats, his proposed testimony encompasses the ultimate issue in the case and thus is inadmissible under Rule 704(b).
The Federal Rules of Evidence provide that an opinion, including one offered by an expert, " is not objectionable just because it embraces an ultimate issue." Fed.R.Evid. 704(a). Rule 704(b) provides an exception to this general principle, applicable only in criminal cases: " an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone." Experts may offer testimony in an attempt to negate a defendant's specific intent, but the expert must limit his testimony to " his diagnoses, the facts upon which those diagnoses are based, and the characteristics of any mental diseases or defects the expert[ ] believe[s] the defendant possessed ...