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June 3, 2002


The opinion of the court was delivered by: Dalzell, Judge


Defendant Edward M. Mezvinsky is charged here with sixty-nine counts of violations of federal law arising from twenty-four allegedly fraudulent schemes, and related financial crimes, committed over a twelve-year period. When Mezvinsky gave notice of a mental health defense pursuant to Fed.R.Crim.P. 12.2, the Government responded with a motion to exclude that defense.

After extensive briefing as well as the conduct of over four days of hearing at which we heard a succession of experts testify as to the mental health issues, we are at last in a position to decide the Government's motion. As this issue is highly consequential for both sides, we consider it at some length.


On March 22, 2001, a Grand Jury returned a sixty-six count Indictment charging Mezvinsky with fraud and related offenses. On February 7, 2002, the Grand Jury returned a Superseding Indictment that added three additional counts regarding an alleged scheme that took place while Mezvinsky was on pretrial release.

The Government claims that Mezvinsky was engaged between 1989 and December of 2001 in twenty-four separate fraudulent schemes in which institutions and people lost over $10.4 million. Specifically, the Superseding Indictment charges Mezvinsky with one count of making a false statement to an agency of the United States in violation of 18 U.S.C. § 1001, as well as two counts of making false statements to financial institutions, in violation of 18 U.S.C. § 1014. The Superseding Indictment also charges fifty-nine counts of fraud, namely, fifteen counts of mail fraud, in violation of 18 U.S.C. § 1341, thirty-nine of wire fraud, in violation of 18 U.S.C. § 1343, and five of bank fraud, in violation of 18 U.S.C. § 1344. It also charges two counts of false statements on tax returns, in violation of 26 U.S.C. § 7206(1), and five counts of structuring currency transactions in violation of 31 U.S.C. § 5324(a)(3).

On July 2, 2001, Mezvinsky filed a notice under Fed.R.Crim.P. 12.2 of an intention to present an insanity defense or other defense based on mental illness. Shortly thereafter, upon learning of defense counsel's possible conflict of interest, we appointed new counsel, Thomas Bergstrom, Esquire, to represent Mezvinsky. On February 25, 2002, pursuant to the leave we granted him, Mr. Bergstrom amended the Rule 12.2 notice to state that Mezvinsky would not present an insanity defense to Rule 12.2(a), but rather a "mental health defense via Rule 12.2(b)."*fn1 This subsection of the Rule refers to a "mental disease or defect or any other mental condition of the defendant bearing upon the issue of guilt", and the Advisory Committee Note thereto explains that this subsection "is intended to deal with the issue of expert testimony bearing upon the issue of whether the defendant had the `mental state required for the offense charged'." Specifically, in his February 25, 2002 submission on Mezvinsky's behalf, Mr. Bergstrom advised that:

The mental health defense will include the following:

(a) defendant has suffered from a Bipolar mental disorder, with an onset likely in his late teens or early twenties, which remained undiagnosed and untreated for several decades;
(b) defendant has frontal lobe organic brain damage which was revealed in a Positron Emission Tomography Scan (PET) conducted on November 9, 2001. A follow-up scan will be done in April, 2002;
(c) defendant has suffered from a Lariam-induced toxic encephalopathy as a result of his ingesting the drug over time during his travels to the African continent.

Shortly after Mezvinsky filed this Rule 12.2(b) notice, the Government filed its motion to exclude those defenses. In essence, the Government contends that Mezvinsky's defenses constitute yet another con. This con, the Government argues, includes Mezvinsky's misleading his own experts, see Gov't's Mot. at 20-22, note 7.

In accordance with United States v. Pohlot, 827 F.2d 889 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988), we commenced a hearing on March 15, 2002, and this hearing continued over the span of two months in what amounted to about four days of hearing time.*fn2 Before canvassing the hearing record, it is important first to describe, exactly, what our enterprise here entails. To do this, we begin with the pertinent statute and the jurisprudence of our Court of Appeals under it.

Insanity Defense Contrasted with Mens Rea Defense

Insanity Defense

(a) Affirmative Defense. — It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

(b) Burden of proof. — The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

After Congress adopted the Insanity Defense Reform Act, the question immediately became whether there was something between the permissible affirmative defense of insanity and the impermissible defense of "[m]ental disease or defect." In this Circuit, the answer is an emphatic "yes".

In Pohlot, our Court of Appeals, in an opinion by Judge Becker, held that although "Congress intended § 17(a) to prohibit the defenses of diminished responsibility and diminished capacity, Congress distinguished those defenses from the use of evidence of mental abnormality to negate specific intent or any other mens rea, which are elements of the offense." Pohlot, 827 F.2d at 890. The Panel went on to write:

While the contours of the doctrines of diminished responsibility and diminished capacity are unclear, the defenses that Congress intended to preclude usually permit exoneration or mitigation of an offense because of a defendant's supposed psychiatric compulsion or inability or failure to engage in normal reflection; however, these matters do not strictly negate mens rea.


Having found this daylight in the statute, it is important to stress that the Court in Pohlot was at pains to note how narrow a ray of light this actually was:

Only in the rare case, however, will even a legally insane defendant actually lack the requisite mens rea purely because of mental defect. As the House Report stated: "Mental illness rarely, if ever, renders a person incapable of understanding what he or she is doing. Mental illness does not, for example, alter the perception of shooting a person to that of shooting a tree." House Report at 15 n. 23. Similarly, a man who commits murder because he feels compelled by demons still possesses the mens rea required for murder. The government's burden of proving mens rea is therefore considerably less onerous than its previous burden of proving sanity.

Id. at 900.

Again, in demonstrating how narrow and "rare" this defense will be, the Court of Appeals, after citing a number of distinguished academic commentators, said:

Commentators have agreed, however, that only in the most extraordinary circumstances could a defendant actually lack the capacity to form mens rea as it is normally understood in American law. Even the most psychiatrically ill have the capacity to form intentions, and the existence of intent usually satisfies any mens rea requirement.

Id. at 903 (citation omitted).

Thus, stressing that "Courts should also be careful in deciding whether to issue jury instructions or to permit defense arguments directing the jury to consider whether any evidence of mental abnormality negates mens rea", id. at 905, Pohlot entrusted the resolution of these difficult issues to the trial court:

In light of the strong danger of misuse, we join other circuits that have directed district courts to examine proffered psychiatric testimony carefully "to determine whether the proof offered is grounded in sufficient scientific support to warrant use in the courtroom, and whether it would aid the jury in deciding the ultimate issues."

Id. (quoting United States v. Bennett, 539 F.2d 45, 53 (10th Cir.), cert denied, 429 U.S. 925 (1976)). Pohlot emphasized that, in fulfilling this duty, "Courts should evaluate the testimony outside the presence of the jury." Id. at 906.

In a case with many striking similarities to this one, Judge Ludwig in United States v. Bennett, 29 F. Supp.2d 236 (E.D.Pa. 1997), aff'd 161 F.3d 171, 183 (3d Cir. 1998), cert. denied, 528 U.S. 819 (1999), discussed the mens rea defense at the sentencing of John Bennett, the founder and mastermind of the infamous New Era Ponzi scheme.*fn3 Bennett's fraud spanned several years and was, he contended, the result of his sincere and deeply-held religious conviction that he was doing God's work. In rejecting this defense at the protracted sentencing hearing that followed Bennett's plea of nolo contendere, Judge Ludwig very helpfully explained how Pohlot applies to fraud cases like Bennett's and Mezvinsky's:

As to each of the crimes charged in the present case, while the mens rea requirements vary, all of them involve some type of intentionally false representation. As a matter of law, no amount of honest belief that an enterprise will succeed — or is worthwhile — can justify false, baseless, or reckless assertions or promises. United States v. Boyer, 694 F.2d 58, 59-60 (3d Cir. 1982). See United States v. Hannigan, 27 F.3d 890, 892 n. 1 (3d Cir. 1994); United States v. Cen-Card Agency, 724 F. Supp. 313, 316-17 (D.N.J. 1989). In order to have probative value as to mens rea, defendant's expert testimony must relate to the particular misrepresentations attributed to him in the indictment. If his clinical condition and symptomology can be logically connected to his subjective belief that his assertions were not false, baseless, or reckless vis-a-vis the truth, such evidence is admissible to show lack of mens rea. Otherwise, it is not — despite a strongly held religious conviction, whether or not arising from mental disorder, that his conduct was morally upright and would be societally beneficial.

Bennett, 29 F. Supp.2d at 240 (footnote omitted). Judge Ludwig therefore held that Bennett's motivating religious beliefs, even if in part delusional, could not support a Pohlot-satisfying defense because he did not negate the requisite mens rea of knowingly making false statements to the highly-sophisticated people whom he victimized in his Ponzi scheme.

Our duty here is thus a highly focused one under the regime of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) that makes us the gatekeeper to assure that juries only hear reliable and, most pertinent to this case, relevant expert testimony. In order to determine that "fit" between proffered testimony and what is properly at issue, see, e.g., Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001), our focus must be on whether Mezvinsky's expert testimony fits into the narrow mens rea gap that Congress and Pohlot recognize in the Insanity Defense Reform Act.

Our immersion in the testimony of the many experts we heard also convinces us of the wisdom of Judge Boudin's approach to this problem in United States v. Schneider, 111 F.3d 197 (1st Cir. 1997). Schneider involved a mail and wire fraud prosecution of "a classic `bust-out' scheme"*fn4 that was carried out over the course of four or five months. Id. at 199. The panel in Schneider affirmed the exclusion of proposed expert testimony that the defendant "was depressed, that he had impaired judgment (due to his depressed state and overmedication), and that he was subject to blackouts", as well as testimony that his medication "would impair intellectual function in a variety of ways" and "permit misperception and delusion." Id. at 202.

The First Circuit affirmed the exclusion by taking a different route from Pohlot. Although that Circuit took exception with Pohlot's stress on whether the conduct at issue was "purposeful", id. at 203, Schneider held that the issue should be disposed of by reference to Fed.R.Evid. 403:

The evidence, as we have said, is of limited relevance: showing `impaired' judgment might help piece out a lack of deceit claim but falls well short of sufficient proof. At the same time, the expert testimony offered here could easily mislead the jury into thinking that such a medical ...

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