United States District Court, D. Nevada
MOTION IN LIMINE TO EXCLUDE PSYCHIATRIC TESTIMONY [DOC. 95]
JENNIFER A. DORSEY, District Judge.
This criminal case arises out of Defendant Frank Goldstein's indictment for carjacking, attempted robbery, and firearm brandishings. The Government seeks to prevent Goldstein from offering any evidence of insanity or mental defect. Having considered the record and relevant law, the Court denies the Government's motion and permits Goldstein to offer expert testimony as to the specific-intent crimes charged, subject to the limitations discussed in this order.
Goldstein is charged with carjacking a vehicle from a Bank of America drive-through ATM, followed immediately by an attempted robbery at Victory Pharmacy in Las Vegas, and with using a firearm in committing each of these crimes. During a skirmish with the pharmacist, Goldstein was shot in the buttocks area. He fled and proceeded to lead the Las Vegas Metropolitan Police Department ("LVMPD") on a high-speed chase,  driving erratically, entering and exiting the freeway twice, and hitting a parked car; a second collision finally stopped the vehicle.
Officer Alan Dong removed Goldstein from the vehicle, took him into custody, and called for emergency medical services. Goldstein was screaming and apologetic: he said was sorry for what he did, that it was a stupid thing to do, and that he wanted Officer Dong to call his wife. The officer then noticed an empty gun holster on the ground and asked Goldstein about the whereabouts of the gun. The officer continued to ask Goldstein questions during the approximately five to eight minutes between Goldstein's apprehension and the reading of his Miranda rights by another officer, Officer Balsassare. Goldstein indicated he understood his Miranda rights and, after further questioning, said the gun was at the pharmacy.
Emergency medical responders then arrived, briefly treated Goldstein, and transported him to the hospital in an ambulance. Officer Dong rode in the ambulance with Goldstein and made an audio recording of their conversation during which Goldstein responded to Officer Dong's questions with inculpatory statements about the charged carjacking and robbery attempt until Goldstein eventually said that he did not want to talk anymore. Officer Dong then asked whether Goldstein wanted a lawyer, Goldstein responded that he did, and the interrogation in the ambulance ended.
The Government's Motion in Limine seeks to preclude Goldstein from introducing evidence of insanity or negating specific intent. The Government argues that Goldstein has failed to provide proper notice of either type of evidence under Federal Rule of Criminal Procedure 12.2 and that no expert cannot testify to Goldstein's state of mind under Federal Rule of Evidence 704(b). Further, the Government contends that the Forensic Psychiatric Evaluation ("the Evaluation") that Goldstein attached under seal to an objection to the Magistrate Judge's Report and Recommendation fails to support admission of insanity or specific-intent evidence. The Government requests that, if this Court finds the contested evidence admissible, the Court order a mental examination of Defendant under Rule 12.1(c). Goldstein counters that he has not violated Rule 12.2's notice requirements with respect to either insanity or diminished capacity and that the Ninth Circuit permits diminished-capacity defenses to specific-intent crimes. The Court addresses the Government's and Goldstein's arguments in turn.
A. Defenses Under Rule 12.2 Require Notice to the Government and to this Court.
Federal Rule of Criminal Procedure 12.2 governs a defendant's introduction of expert evidence regarding insanity or mental condition that goes to the issue of guilt. The defendant must notify the government in writing and file a notice with the court clerk either "within the time provided for filing a pretrial motion" or "at any later time the court sets." Local Rule 12-1 requires a defendant to serve pretrial notice regarding insanity or mental condition within thirty days of arraignment. For good cause, the Court may "allow the defendant to file the notice late, grant the parties additional trial-preparation time, or make other appropriate orders." Rule 12.2 preludes a defendant who fails to provide notice of an insanity defense from raising the defense at trial. Expert evidence on defendant's mental disease, defect, or condition bearing on the issue of guilt is barred only if the defendant fails to give notice under Rule 12.2(b) or, alternatively, refuses to submit to a mental examination ordered by the court under Rule 12.2(c)(3). According to the Advisory Notes, failure to provide notice on insanity or mental state "commonly results in the necessity for a continuance in the middle of a trial, " which suggests a preference for admitting both evidence types. The Supreme Court recognized in United States v. Veatch that district courts may grant relief from Rule 12.2(a)'s exclusion provisions at their discretion, as they may with regard to other pretrial motions in criminal cases.
Rule 12.2 is substantive in purpose, not formalistic. Its original purpose was to afford the Government time for preparing its rebuttal. Under previous federal law, when an insanity defense was raised, the burden shifted to the government to prove sanity beyond a reasonable doubt. Justice thus required prior notice to the government "in view of the significance of this burden." The Insanity Defense Reform Act of 1984 ("IDRA") shifted this burden to defendants for proof by clear and convincing evidence. Under IDRA, the government still must prove each essential element of a crime beyond a reasonable doubt. The notice purpose of Rule 12.2 thus remains important, as the government must prepare to meet the defendant's evidence regarding insanity and mental condition. As one court has observed, however, "sanity is not an element of a crime." Rather than require the government to prove criminal defendants' sanity, Congress now requires defendants to disprove their own sanity when they raise such a defense.
By its Motion in Limine, the Government contends that Goldstein has neither notified the Government in writing nor filed notice with the clerk. Further, based on the Evaluation, it argues that Defendant has not shown whether he intends to offer expert testimony as to insanity or specific intent. Goldstein relies on the court's discretionary authority to argue that he still had time to comply with Rule 12.2.
Three important developments have occurred since the Government filed its Motion in Limine. First, Goldstein appeared pro se at that time, but he has since retained counsel. Thus, he implicitly urges the Court to view his initial failure to give notice with leniency. His request is understandable, especially in light of the mandate to liberally construe "[t]he handwritten pro se document." The Court notes that Goldstein had court-appointed counsel when he was arraigned, but his initial submission of the 2012 evaluation was indeed a handwritten pro se document, and his new attorney has since sought to comply with the requirements of Rule 12.2.
Second, the Government filed its Motion in Limine on June 26, 2012, when trial was scheduled for July 10, 2012. At that time, it wrote that "Defendant's lack of notice frustrates the purpose of Rule 12.2, which is to afford the government time to prepare its rebuttal against a claim of insanity or other mental condition and to avoid delay at trial." Notice, if permitted before that trial date, would have been required in short order. Goldstein filed his ...