The opinion of the court was delivered by: Sean J. McLAUGHLIN United States District Judge
Pending before me is the Government's Second Motion in Limine to Preclude Testimony of Dr. Robert Sadoff concerning the opinions set forth in Dr. Sadoff's report of October 11, 2010. The Government objects to the report on the grounds that the opinions set forth in it amount to no more than a diminished capacity defense of the sort precluded by the Insanity Defense Reform Act of 1984, 18 U.S.C. § 17(a).
In his most recent report, Dr. Sadoff discusses the Defendant's diagnosis of bipolar disorder and personality disorder, not otherwise specified, with paranoid and borderline features. Dr. Sadoff states that the purpose of his report is "to explain the parameters of these illnesses and how they affect people in general, and Ms. Diehl-Armstrong in particular." (Sadoff Report, Ex. A to Govt.'s Second Mot. in Limine to Preclude Testimony of Dr. Robert Sadoff [216-1], at p. 2.) Dr. Sadoff then goes on to make the following assertions, to which the Government takes exception:
* "[O]n several occasions [the Defendant] has been found incompetent to stand trial because of her psychotic mental illness." (Sadoff Report at p. 1.)
* "[Dr. Sadoff] observed these traits [associated with bipolar disease and personality disorder, not otherwise specified, with paranoid and borderline features] when [the Defendant] was with her prior attorney, Mr. Patton, and could not follow his advice because she could not trust that he was working in her behalf." (Id. at p. 6.)
* "Because she is paranoid, [the Defendant] has great difficulty cooperating with and working with others." (Id.)
* "She also has great difficulty in exercising control of her impulses with respect to her behavior." (Id.)
* "When she is manic, [the Defendant] is likely to act impulsively in order to achieve her personal goals, which may not be shared by others." (Id.)
* "[The Defendant] tends to see things, because of her illnesses and her personality disorders, in her own idiosyncratic way, rather than as others may see the reality of the situation." (Id.)
* "All of [the Defendant's] traits, including her psychotic behavior when she was manic and therefore not in touch with reality, must be considered when assessing her state of mind with respect to the charges against her." (Id.)
* "[The Defendant] is currently on no medication and, therefore, her potential for psychotic thinking and impulsive behavior is present and at risk." (Id.)
* "[A] person with [a bipolar diagnosis] must take medication for an indefinite period of time in order to remain stable." (Id.)
* "[H]aving all three of these conditions is a very serious combination that can lead to impulsive behavior, loss of control and irrational thinking and unpredictable behavior." (Id. at p. 7.)
The Government contends that these opinions amount, covertly, to a variation of the diminished capacity defense precluded by the Insanity Defense Reform Act of 1984, codified at 18 U.S.C. § 17(a). That act states, in relevant part:
(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.
18 U.S.C. § 17(a) (emphasis supplied).
As an initial point, this dispute is effectively mooted by the fact that Dr. Sadoff now appears to be unavailable to testify in this case. According to defense counsel, Dr. Sadoff is scheduled to leave the country early tomorrow morning and is not expected to arrive back in the United States and be available to testify until on or after November 5, 2010. Dr. Sadoff was apparently either unwilling or unable (perhaps due to uncertainties about the anticipated length of the prosecution's case) to make travel plans so as to be present in Erie for this trial at the start of the Defendant's case in chief. Further, despite the Court having advised defense counsel that Dr. Sadoff should be available to testify this afternoon, by video conference if necessary, the Court has learned that Dr. Sadoff has not made such arrangements. In light of this situation, the defense has asked that the Court hold trial in abeyance following Dr. Sadoff's return to the United States.
To the extent the Defendant's oral request constitutes a motion for continuance of trial, it will be denied. The decision to grant or deny a continuance is within the sound discretion of the trial court. In re Leonetti, 28 B.R. 1003, 1008-09 (Bankr. E.D. Pa. (1983) (citing Lamb v. Globe Seaways, Inc., 516 F.2d 1352 (2d Cir.1975); Krodel v. Houghtaling, 468 F.2d 887 (4th Cir.), cert. denied, 414 U.S. 829 (1972); Ruiz v. Hamburg-American Line, 478 F.2d 29, 31 (9th Cir.1973)). See also United States v. Khorozian, 333 F.3d 498, 507 (3d Cir. 2003) (reviewing for abuse of discretion the district court's denial of defense motion for a continuance of trial premised on the unavailability of a witness). "Although a 'myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality,' denying a request for a continuance constitutes an abuse of discretion only when it is 'so arbitrary as to violate due process.'" Khorozian, 333 F.3d at 507 (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). Moreover, it has been said that, "when the request for continuance is made in the midst of trial and the party requesting the continuance knew of the trial date and the problems to be encountered in locating ...