United States v. Angelina Didomenico

985 F.2d 1159, 1993 U.S. App. LEXIS 1127, 1993 WL 12899

• Court: Court of Appeals for the Second Circuit
• Decided: January 25, 1993
• Docket: 152, Docket 92-1206
• Status: Published

Opinions

McLAUGHLIN, Circuit Judge:

Defendant Angelina DiDomenico appeals from a judgment of the United States District Court for the District of Connecticut (José A. Cabranes, Chief Judge), convicting her, after a jury trial, of one count of wire fraud, in violation of 18 U.S.C. § 1343 (Supp.1992), and one count of interstate transportation of stolen property, in violation of 18 U.S.C. § 2314 (Supp.1992). On appeal, DiDomenico contends that the district court erred when it refused to admit expert psychiatric testimony relating to her knowledge of whether certain property was stolen. We disagree and affirm the judgment.

BACKGROUND

More than $5,000 worth of computer equipment was stolen from a professor’s office at Yale University. Thomas Parsons, DiDomenico’s live-in boyfriend, acquired this equipment shortly after the theft, and he told DiDomenico that he had some computer equipment he wanted to sell. DiDomenico, at Parsons’ suggestion, then telephoned the Boston Computer Exchange, a computer brokerage firm in Massachusetts, where she listed the stolen equipment for sale. During that phone conversation (and on several subsequent occasions) DiDomenico falsely told the Exchange’s employees that the equipment belonged to her brother, Peter. When she shipped the equipment to the Exchange for sale she continued to use her brother’s name as the sender.

When the Exchange and a prospective buyer received the equipment, they discovered that some of the equipment had no serial numbers. The Exchange’s sales manager then telephoned DiDomenico to confront her with this fact, whereupon she claimed that she had bought the equipment from a Jack Scott who, in turn, had purchased it from Computerland, a computer equipment retailer.

The President of the Exchange informed her that the equipment had come from Yale. DiDomenico replied that she was a graduate student at Yale (untrue) on a scholarship (untrue) and she expressed the fear that this incident might affect her status. Throughout these phone conversations, DiDomenico never mentioned her boyfriend’s name, and he never spoke to anyone at the Exchange. After these conversations, the Exchange referred the matter to the F.B.I.

DiDomenico was indicted on one count of wire fraud and one count of interstate transportation of stolen property. Before trial, DiDomenico indicated that she would call a psychiatrist, C. Scott Grove, M.D., as an expert witness to testify that she had a “dependent personality disorder with narcissistic features;” and that a dependent personality is a “mental disease, defect, or condition” which appears as a designation in the Diagnostic and Statistical Manual of Mental Disorders, Vol. Ill, Revised (“DSM-III”). The government responded by filing a motion in limine to exclude the testimony.

At a hearing on the motion, DiDomeni-co’s counsel explicitly acknowledged that Dr. Grove would not testify concerning an insanity or lack of capacity defense. Nor would he testify that DiDomenico had an objective, identifiable organic brain injury. Rather, Dr. Grove’s testimony would address the psychological implications of DiDomenico’s childhood, her relationship with her parents, her idealization of her boyfriend, Parsons, and her sister’s attempted suicide. All this was said to be relevant because it would assist the jury to determine DiDomenico’s state of mind during the relevant time period. Counsel denied that Dr. Grove would testify on the ultimate issue of whether DiDomenico knew that the computer equipment was stolen.

Judge Cabranes granted the government’s motion,- ruling in pertinent part:

The fact that certain personality traits or conduct may be identified, categorized or characterized by the psychiatric profession by, for example, inclusion in the Diagnostic and Statistical Manual of Mental Disorders (3rd Edition 1980) (“DSM-III”) promulgated by the American Psychiatric Association, does not necessarily make the traits or conduct a “mental disease” or “mental disorder” that can be the basis of the defense of insanity, [see, e.g., United States v. Torniero, 570 F.Supp. 721 (D.Conn.1983), aff'd on other grounds, 735 F.2d 725 (2d Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 788, 83 L.Ed.2d 782 (1985)], much less .to be used in the way defendant suggests here.

The circumstances presented here suggest that this testimony would be even more problematical than that offered by the defendant in Torniero. We do not have here an objectively ascertainable organic brain injury, as in [United States v. McBride, 786 F.2d 45, 50 (2d Cir.1986) ], the principal case on which defendant relies.

Defendant here claims no such injury, and does not claim insanity, incompetence or other inability to appreciate the nature- of these proceedings. The proffered testimony would show her asserted vulnerability and susceptibility to being duped by her boyfriend. Expert testimony on this relatively commonplace experience is simply inappropriate. This so-called disorder is surely one of “the host of attitudes and syndromes that are a part of daily living;” “opinion evidence [on such matters] for exculpation or condemnation [goes] beyond the boundaries of current knowledge.” [United States v. Bright, 517 F.2d 584, 586 (2d Cir.1975) ].

The trial then proceeded and shortly before the government rested its case, DiDo-menico moved for reconsideration of the ruling excluding the disputed testimony, this time producing a written report from Dr. Grove. The report responded to Judge Cabranes’s conclusion that the DSM-III’s recognition of the dependent personality disorder was not significant and did not necessarily make it a mental disease or disorder for purposes of criminal law. Dr. Grove stated that DSM-III distinguishes between personality traits, which are universal, and personality disorders, which are not, and that DiDomenico’s condition was a disorder. The report concluded that “her capacity to recognize ... evidence [that the computer equipment had been stolen] would have been seriously impaired as the direct result of the mental disorder described above.” Judge Cabranes remained unpersuaded and excluded Dr. Grove’s testimony.

DiDomenico took the stand. She testified that she did not know the equipment was stolen, either when she called the Exchange to list the equipment, or when she later shipped it there. She went on at some length about her lonely childhood, her painful relationship with her uncaring parents, and her relationship with her boyfriend, Tom Parsons. She testified that, at first:

[Parsons] was perfect. He was considerate, kind, he’d open the door for me, he’d make sure that I was comfortable, if I was cold he’d give me his coat. He just did everything right. And nobody had ever done that for me before. He made me feel special, he made me feel like I mattered.

Even after the relationship soured, and Parsons began to abuse her verbally and physically, DiDomenico could not bring herself to break it off. She testified that:

... I needed him to validate my life. He was, he was the one that was telling me if I was worthy of having, of living, or if I wasn’t. He was the primary source of my life. He was, like, my life.

The jury also heard about the effect that her losing a brother in his infancy had on DiDomenico’s relationship with Parsons, and the enormous guilt DiDomenico felt over her younger sister’s suicide attempt.

Over government objection, Judge Ca-branes allowed DiDomenico to call Lisa Va-lentovish, a Yale University graduate and New Haven alderwoman, who also had a romantic relationship with Parsons. Valen-tovish testified that she met Tom Parsons in June 1989, some six months after the events at issue in this case, and found him to be intelligent, clean-cut, and sensitive. Moreover, she believed Parsons’ stories that he was a U.C.L.A. engineering graduate, and that he owned a Jaguar and some computer equipment. Only after Parsons was arrested for stealing the Jaguar, did Valentovish discover that he had a criminal record, that the computer equipment was probably stolen, and that he had not completed high school but had acquired his knowledge of science from self-study in prison.

After Parsons was released from jail, Valentovish began dating him again. She testified that Parsons preyed upon her sense of guilt and convinced her that the only reason she was reluctant to resume dating was her fear that his criminal record would hurt her political career.

The jury found DiDomenico guilty on both counts of the indictment. Judge Ca-branes departed downwardly from the Sentencing Guidelines and imposed a sentence of five years’ probation, with the condition that DiDomenico obtain mental health counseling as deemed necessary by the United States Probation Office.

DISCUSSION

The only issue on appeal is DiDomenico’s claim that the district court improperly excluded Dr. Grove’s psychiatric testimony relating to her allegedly impaired ability to know that the computer equipment was stolen. She contends that the testimony would have presented an expert basis for her defense that she was manipulated by Parsons and that she lacked knowledge of Parsons’ criminal activity.

A district court may admit the testimony of a qualified expert if his knowledge “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702 (rev. ed. 1991); see United States v. Ruggiero, 928 F.2d 1289, 1304 (2d Cir.), cert. denied, — U.S. -, 112 S.Ct. 372, 116 L.Ed.2d 324 (1991). There has been a palpable ebb and flow in judicial attitudes toward expert testimony, compare Knight v. Otis Elevator Co., 596 F.2d 84, 87 (3d Cir.1979) (noting “the liberal policy of permitting expert testimony which will ‘probably aid’ ” the jury) with Andrews v. Metro North Commuter R.R., 882 F.2d 705, 708 (2d Cir.1989) (expert should not be permitted to testify “to lay matters which a jury is capable of understanding and deciding without the expert’s help”). Yet, there has been one recurrent tide coursing through the cases: the admissibility of such evidence is generally best left to trial judges.

Particularly in close cases, like this one, the decision should be left to the trial judge who has his finger on the pulse of the trial and has lived with the jury throughout the case. He has a much better vantage point than an appellate court to decide whether expert testimony will assist the jury or, in the parlance of the gridiron, will just be piling on. For this reason, the call is his and he will be reversed, not because we, if we sat as trial judges would have admitted the testimony, but only when we can conclude that the decision to exclude such testimony is “manifestly erroneous.” United States v. Cruz, 797 F.2d 90, 96 (2d Cir.1986); cf. Eymard v. Pan Am. World Airways, 795 F.2d 1230, 1234 (5th Cir.1986) (“[WJhere the record makes it evident that the decision to receive expert testimony was simply tossed off to the jury under a 'let it all in’ philosophy”, “[o]ur message to our able trial colleagues: it is time to take hold of expert testimony in federal trials.”). We conclude that the district court was well within the bounds of discretion in excluding Dr. Grove’s testimony because the testimony did not meet the helpfulness criterion of Rule 702, see United States v. Esch, 832 F.2d 531, 535 (10th Cir.1987) (court refused to allow psychologist to testify that defendant had a “dependent personality”), cert. denied, 485 U.S. 908, 108 S.Ct. 1084, 99 L.Ed.2d 242, and cert. denied, 485 U.S. 991, 108 S.Ct. 1299, 99 L.Ed.2d 509 (1988).

(1) Helpfulness. The testimony consisted of a psychiatric opinion that DiDomenico suffered from a dependent personality disorder. After parsing Dr. Grove’s proffered testimony, we find that Judge Cabranes could prudently conclude that such testimony would only complicate the jury’s task.

It should be remembered that the district court did admit lay testimony (from DiDo-menieo and Valentovish) concerning both DiDomenico’s emotional state at the time of the crime and Parsons’ Svengalian personality. The jury heard testimony that covered virtually the entire ground of Dr. Grove’s expert testimony. This sort of evidence was not hard to assimilate and, as Judge Cabranes observed, it addressed a subject matter within the experience of the jury. See United States v. 31-33 York St., 930 F.2d 139, 141 (2d Cir.1991) (“This was a simple question for which the jury needed no help.”).

DiDomenico argues, however, that Dr. Grove’s testimony would have attached a clinical label of “dependent personality disorder” to her emotional state, and distinguished this from a mere “personality trait.” This testimony concerning the psychological implications of her disorder, DiDomenico contends, would have assisted the jury in understanding the evidence, and in determining whether she had the requisite knowledge. Testimony regarding certain mental diseases and defects has been admitted under Rule 702 in appropriate cases. See United States v. Freeman, 357 F.2d 606, 622 (2d Cir.1966) (insanity); McBride, 786 F.2d at 50 (organic brain injury). We have held, however, that a district court may exclude psychiatric evidence of a “passive-dependent personality disorder” offered to show lack of knowledge that certain property was stolen. United States v. Bright, 517 F.2d 584, 585-86 (2d Cir.1975).

DiDomenico attempts to escape Bright by asserting that there the defendant did not claim to be suffering from a mental disease or defect, whereas here Dr. Grove would have testified that DiDomenico did. The difficulty with this argument is that the mental condition at issue in Bright was the same “dependent personality disorder” that DiDomenico alleges here. DiDomeni-co cannot explain why the disorder in Bright was not a mental disease or defect, but in DiDomenico’s case the identical condition is. Therefore, we find that the imprimatur of a clinical label was neither necessary nor helpful for the jury to make an assessment of DiDomenico’s state of mind. Accordingly, Judge Cabranes appropriately excluded the testimony of Dr. Grove.

(2) Ultimate issue. There is another evidentiary complication in this case that is not present in most of the other landmark decisions. Although Fed.R.Evid. 704(a) abrogates the common law rule and allows an expert witness to give opinion testimony embracing an ultimate issue in the case, see Ruggiero, 928 F.2d at 1304, there is one salient exception: Rule 704(b) prohibits the expert from expressing “an opinion or inference 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.” Fed.R.Evid. 704(b) (rev. ed. 1991). This disables even an expert from “expressly stating the final conclusion or inference as to a defendant’s actual mental state” at the time of a crime. United States v. Richard, 969 F.2d 849, 854 (10th Cir.), cert. denied, — U.S. -, 113 S.Ct. 248, 121 L.Ed.2d 181 (1992), and petition for cert. filed, No. 92-6588 (Nov. 16, 1992); accord United States v. Schatzle, 901 F.2d 252, 257 (2d Cir.1990) (“Although the Federal Rules of Evidence do not bar all expert testimony concerning an ultimate issue, see Fed.R.Evid. 704, a district court may exclude ultimate issue testimony under Federal Rule of Evidence 702 when it is not helpful to the jury, or under Rule 403 when it may be unduly prejudicial.”); United States v. McBride, 786 F.2d 45, 50 (2d Cir.1986) (“[A] district court may exclude psychiatric testimony which merely offers an opinion about the defendant’s capacity to form the mental state required to commit the offense charged, without suggesting the presence of a mental disease or defect ... ”).

Dr. Grove’s testimony was also properly excluded under Fed.R.Evid. 704(b). The rule recognizes that expert testimony concerning a defendant’s mental state poses a uniquely heightened danger of intruding on the jury’s function. See, e.g., United States v. Blumberg, 961 F.2d 787, 789 (8th Cir.1992) (the rule forbids experts from telling the jury what its finding should be on the ultimate issue in the case); United States v. Foster, 939 F.2d 445, 454 (7th Cir.1991) (testimony “merely assisted the jury in coming to a conclusion as to [defendant’s] mental state; it did not make that conclusion for them”); United States v. Brodie, 858 F.2d 492, 496 (9th Cir.1988) (affirming exclusion of expert testimony which, if admitted, would have impermissi-bly stated an opinion as to defendants’ willfulness, a mental state which is an element of the crime charged); United States v. Newman, 849 F.2d 156, 165 (5th Cir.1988) (“The expert may not offer an opinion on the ultimate issues of whether the defendant was in fact induced to commit the crime or lacked predisposition.”); United States v. Dunn, 846 F.2d 761, 762 (D.C.Cir.1988) (“It is only as to the last step in the inferential process — a conclusion as to the defendant’s actual mental state— that Rule 704(b) commands the expert to be silent.”); United States v. Alvarez, 837 F.2d 1024, 1031 (11th Cir.) (“expert cannot expressly state a conclusion” as to mental state), cert. denied, 486 U.S. 1026, 108 , 100 L.Ed.2d 234 (1988); see also United States v. Dennison, 937 F.2d 559, 564-65 (10th Cir.1991) (applying rule to psychiatric expert testimony), cert. denied, — U.S. -, 112 S.Ct. 886, 116 L.Ed.2d 789 (1992).

Clearly, Rule 704(b) does not prohibit all expert testimony that gives rise to an inference concerning a defendant’s mental state. See Richard, 969 F.2d at 854-55 (“The rule does not prevent the expert from testifying to facts or opinions from which the jury could conclude or infer the defendant had the requisite mental state.”). The plain language of the rule, however, means that the expert cannot expressly ‘state the inference,’ but must leave the inference, however obvious, for the jury to draw. See Alvarez, 837 F.2d at 1031. While DiDomenico proclaims that she did not offer Dr. Grove to testify as to the ultimate issue of whether she knew the computer equipment was stolen, this is semantic camouflage. We read Dr. Grove’s proffered testimony as stating the bottom-line inference, and leaving it to the jury merely to murmur, “Amen.” In any event, it was certainly close enough to a violation of Rule 704(b) that, when combined with the trial judge’s assessment of helpfulness under Rule 702, amply justified his exercise of discretion to exclude it.

CONCLUSION

The district court did not err in excluding DiDomenico’s proffered psychiatric testimony.

Affirmed.