                                                                   [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                              ________________________             FILED
                                                          U.S. COURT OF APPEALS
                                       No. 07-14097         ELEVENTH CIRCUIT
                                                                OCT 13, 2010
                                 ________________________
                                                                 JOHN LEY
                                                                   CLERK
                             D. C. Docket No. 03-20951-CR-AJ

UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellee,

                                           versus

ARIADNA PUERTO,
EDUARDO ORLANSKY,
HECTOR ORLANSKY,

                                                                  Defendants-Appellants.

                                 ________________________

                       Appeals from the United States District Court
                           for the Southern District of Florida
                             _________________________
                                    (October 13, 2010)
                          ON PETITION FOR REHEARING
                            AND REHEARING EN BANC

Before O’CONNOR,*Associate Justice Retired, CARNES and ANDERSON,
Circuit Judges.

__________________
*Honorable Sandra Day O’Connor, Associate Justice (Retired) of the United States Supreme
Court, sitting by designation.
PER CURIAM:

      No Judge in regular active service on the Court having requested that the

Court be polled on rehearing en banc (Rule 35, Fed.R.App.P.), the Petition for

Rehearing En Banc is DENIED. Turning to Eduardo’s subsidiary petition for

panel rehearing, we deny panel rehearing, but acknowledge the need to modify Part

II.F.1. of the panel opinion, issued on August 12, 2010. In his petition for

rehearing, Eduardo argues for the first time that the district court and the panel

opinion inappropriately relied upon the testimony of Dr. Gelblum and Dr. Crown

that, because neither they nor others examined or tested Eduardo earlier, they could

not opine with any degree of medical certainty that at the relevant times Eduardo

lacked the requisite mens rea or lacked the ability to appreciate the nature and

quality or wrongfulness of his acts. Eduardo’s new argument is that Fed.R.Evid.

704(b) precludes any expert opinion on such ultimate issues, and that the district

court and the panel opinion erred in requiring same. Eduardo now argues also that

the district court and the panel opinion erred in requiring that there should have

been contemporary mental health examinations or tests. We reject Eduardo’s new

argument. Neither the district court nor the panel opinion imposed a requirement

that, to be admissible, a mental health expert must testify as to the ultimate issue, or

a requirement that there be mental health examinations or tests during the relevant

                                           2
time period. Obviously, there is no requirement that there shall have been mental

health examinations or tests during the relevant time period. We are in full

agreement with the Fifth Circuit in United States v. Long, 562 F.3d 325 (5th Cir.

2009), when that court said:

      Obviously, neither Dr. Friedberg nor any other expert examined Long
      during the commission of the crimes, and in any event, would have
      been prevented under Federal Rule of Evidence 704(b) from offering a
      direct assessment of Long’s ability to appreciate the nature, quality,
      and wrongfulness of his acts at the times he committed them. This
      necessitates some degree of inference based on the characteristics of
      Long’s illness at the time that he was examined and Long’s own report
      of his mental state and motivation at the time that he acted.

Id. at 342 (Italics in original; footnote omitted).

      Rather than imposing a requirement that a mental health expert testify as to

the ultimate issue, the district court construed the doctors’ candid admissions as

indicating that there was simply a paucity of evidence to conclude that Eduardo’s

mental deficiencies existed at the times of the crimes. In other words, there was a

paucity of evidence for the doctors to opine with any degree of medical certainty

about the level or degree of Eduardo’s mental deficiencies at the relevant times.

Thus, the district court found that “neither Dr. Gelblum nor Dr. Crown are able,

with any degree of medical or scientific certainty, to opine that Mr. Orlansky

suffered from dementia with significant cognitive loss during the time period.”



                                            3
District Court Order, Doc. 625, at 1. We cannot conclude that the district court

abused its discretion in this regard. Indeed, although the doctors did at some points

testify (without objection) that they were unable to opine with the requisite medical

certainty about the ultimate issues, they also repeatedly disavowed any ability to

opine generally as to Eduardo’s state of mind or the degree of Eduardo’s mental

deficiencies at the relevant times or the date of onset of any significant cognitive

loss.*

             The district court’s interpretation of the doctors’ admissions and its

conclusion that there was a paucity of evidence with respect to Eduardo’s mental

deficiencies at the relevant times are amply supported in the record. There was no

history of mental deficiencies. No such complaint had ever been communicated to

any doctor, or to anyone else, prior to Eduardo’s indictment. In light of the

admissions of the doctors that their examinations and tests were insufficient, the

only evidence in any way suggesting mental deficiencies at the relevant times was


         *
                Such testimony is not prohibited testimony on the ultimate issue. As the Fifth
Circuit in Long said: “Appropriate testimony . . . should ‘describe the characteristics of [the
defendant’s] mental illnesses and the effect of such illnesses on his ability to appreciate
wrongdoing.’” Id. at 333. In short, appropriate testimony includes testimony about “mental state
and motivation.” Id. at 334. See also United States v. Alexander, 805 F.2d 1458, 1463 (11th
Cir. 1986) (in discussing the prohibition on expert testimony on the ultimate issue, Fed.R.Evid.
704(b), we commented: “Psychiatrists, of course, must be permitted to testify fully about the
defendant’s diagnosis, mental state and motivation . . . at the time of the alleged act so as to
permit the jury or judge to reach the ultimate conclusion.”).


                                                4
the testimony of Eduardo’s wife and a couple of employees in the business.

Eduardo’s wife testified vaguely at the Daubert hearing that he had begun to act

strangely, and that she had noted a decline in his intelligence and memory. An

employee, Mendez, testified at trial about some ritualistic behaviors and about

Eduardo’s poor business judgment and trouble understanding financial documents.

However, Eduardo never adduced pertinent expert testimony as to the significance

of such testimony. With respect to the two cursory emails from Dr. Gelblum and

Dr. Crown referring to that testimony, the district court concluded that the emails

were “conclusory and provided little to no basis for the opinions offered.” After

exhaustive exploration of, and hearings on, Eduardo’s medical evidence, the

district court effectively concluded that any opinions of Dr. Gelblum or Dr. Crown

about Eduardo’s mental state during the relevant time period would be mere

speculation. We cannot conclude the district court abused its discretion in this

regard. Accordingly, Eduardo’s petition for panel rehearing is denied. However,

because certain loose language in the panel opinion might contribute to the

misinterpretation adopted by Eduardo in his petition for rehearing, we modify Part

II.F.1. of that opinion (relating to the discussions of the Insanity Defense Reform




                                          5
Act (“IDRA”), and relating to Fed.R.Evid. 702 and Daubert v. Merrell Dow

Pharm., 509 U.S. 579, 113 S. Ct. 2786 (1993)) to read as follows.**

                                    II. DISCUSSION

      F. Eduardo’s Mental State

      1.     Eduardo’s challenge to the district court’s exclusion of his experts’
             mental health testimony

      Eduardo sought to introduce evidence about his diminished mental state

during the relevant time period for three reasons. The first was to support his

insanity defense under the Insanity Defense Reform Act (“IDRA”), 18 U.S.C. § 17

(2000). Second, he sought to introduce the evidence as a means of challenging the

Government’s argument that he had the requisite mens rea to commit the charged

crimes. Third, he sought to introduce evidence of his diminished mental state to

support his claim that he had been kept in the dark about the fraud and it had been

orchestrated by lower level management.

      Eduardo submitted a Notice of Insanity Defense and Expert Evidence of

Mental Condition, which included reports from neuropsychologist Dr. Barry

Crown and neurologist Dr. Jeffrey Gelblum (Eduardo’s treating neurologist). He

also included the report from an MRI, which reportedly showed evidence of an old



      **
             All other parts of our opinion issued on August 12, 2010, remain unchanged.

                                             6
stroke in his left caudate nucleus and a large, “very old” fluid accumulation in his

left temporal and temporal frontal region, which probably resulted from a stroke.

In response, the Government moved to exclude evidence that Eduardo suffered

from a mental defect, for a Daubert8 hearing, and to exclude the testimony of the

two doctors. The district court excluded the testimony of the two doctors both

because it was inadmissible under the IDRA and because it was inadmissible under

Fed. R. Evid. 702 and Daubert. Eduardo challenges both rulings; we address each

in turn.

       a. The legal standard under the IDRA

       Under the IDRA, insanity is an affirmative defense that the defendant must

prove by clear and convincing evidence. 18 U.S.C. § 17; United States v. Westcott,

83 F.3d 1354, 1357 (11th Cir. 1996). The Act restricted the definition of insanity:

       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). Before the Act’s passage, a defendant could also assert a valid

defense if he was unable to conform his conduct to the requirements of the law.

United States v. Freeman, 804 F.2d. 1574, 1576 (11th Cir. 1986). However, as the



       8
              Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).

                                              7
second sentence of the Act recites, Congress prohibited the use of “‘non-insanity’

psychiatric evidence that points toward ‘exoneration or mitigation of an offense

because of a defendant’s supposed psychiatric compulsion or inability or failure to

engage in normal reflection.’” United States v. Cameron, 907 F.2d 1051, 1066

(11th Cir. 1990). “Congress intended to prohibit the presentation of evidence of

mental disease or defect, short of insanity, to excuse conduct.” Westcott, 83 F.3d

at 1357-58. In passing the IDRA, Congress considered that such prohibited

evidence would, if allowed to go to the jury, resurrect the former, broader version

of the insanity defense “in the guise of showing some other affirmative defense,

such as . . . diminished responsibility . . . and open the door, once again, to

needlessly confusing psychiatric testimony.” Cameron, 907 F.2d at 1066 (quoting

S. Rep. No. 98-225, 98th Cong., 2d Sess. 229 (1984), reprinted in 1984

U.S.C.C.A.N. 3182, 3411) (internal punctuation omitted). However, we have held

that Congress did not intend to exclude the use of psychiatric evidence that negated

specific intent. Westcott, 83 F.3d at 1358; Cameron, 907 F.2d at 1066-67.9 We

examine the testimony of each of the proffered experts in turn.


       9
                The distinction mentioned in the case law between psychiatric evidence that
negates specific intent, on the one hand, and psychiatric evidence that a defendant does not have
the capacity to form specific intent, on the other hand, is not relevant in this case. See Westcott,
83 F.3d at 1358; Cameron, 907 F.2d at 1066-67; see also United States v. Pohlot, 827 F.2d 889,
903-05 (3d Cir. 1987).

                                                  8
      i. Dr. Jeffrey Gelblum

      Eduardo’s treating neurologist testified at the four-day hearing in November

2005 about his diagnosis of Eduardo, the etiology of Eduardo’s illness, and his

opinion about Eduardo’s mental state. He testified that he had diagnosed Eduardo

in 2004 with progressive vascular dementia based on reports by his family of

deficits in activities of daily living and an MRI and an electroencephalogram

(“EEG”), neurological tests that pinpoint the dementia’s causes. The MRI showed

that a region in Eduardo’s brain’s left hemisphere was cavitated out, meaning that

the brain tissue had been replaced with fluid. Dr. Gelblum testified that Eduardo

had significant damage to the left temporal lobe, the left frontal lobe, and the left

parietal lobe, which suggests interference of brain functioning in a critical part of

the brain. He explained that the left side of the brain primarily controls right-sided

body function, as well as comprehension, arithmetic, executive planning, and

fluency. Memory is also impaired with this type of injury, with short-term memory

being most prominently affected because it is relegated to the left temporal lobe.

      Dr. Gelblum opined that the damage to Eduardo’s brain was caused by an

arachnoid cyst and superimposed stroke syndrome. Arachnoid cysts are congenital,

meaning that the patient was born with the cyst, and Dr. Gelblum explained that

superimposed stroke syndrome refers to small, “silent” strokes. While the MRI

                                           9
could not give an exact date of onset, Dr. Gelblum speculated that the degree of

whiteout in the brain suggested that the damaged area had been fluid-filled for “six,

seven, [or] eight years.” But he conceded that because he did not have access to

previous MRIs, he could not determine if the cyst had been growing or if it had

been that size since birth; the MRI and the EEG could only provide a snapshot of

the patient’s current condition.

      At the time that Dr. Gelblum began to treat Eduardo, in May 2004, Dr.

Gelblum thought that Eduardo was legally insane. However, he testified that there

is no scientifically valid way for him to ascertain Eduardo’s mental state before that

time. Additionally, he agreed that talking to family about the patient’s past

behaviors could not scientifically determine the patient’s mental state in years past.

When asked if there was any scientifically reliable way of determining if Eduardo

had the capacity to deceive during the period from 1994 to 2003, Dr. Gelblum

answered “we don’t have those scans or studies, no.”

      Because Dr. Gelblum testified that he relied upon the reports of family and

friends to make diagnoses, Eduardo introduced evidence from Eduardo’s wife,

Jane, and later trial testimony from his former employee, Mendez. Jane Orlansky

testified that Eduardo had begun to act strangely beginning in 1992 or 1993,

engaging in what she termed ritualistic behavior. She also noted a decline in his

                                          10
intelligence and short term memory. However, she testified that she did not

recommend to him that he seek any professional or medical help for the strange

behavior that he began to exhibit. Similarly, Mendez testified to Eduardo’s

ritualistic behavior. Although Jane Orlansky’s and Mendez’s testimony may have

suggested that Eduardo was beginning to develop dementia during the time period

at issue, Dr. Gelblum did not testify that, on the basis of the testimony of Jane and

Mendez, he could opine with any degree of medical certainty about Eduardo’s state

of mind at the relevant time period such that a fact-finder could infer that Eduardo

was unable to appreciate the nature and quality or wrongfulness of his actions

during the relevant time period.10

       While Dr. Gelblum testified that accounts from family of behavior and

patient history comprise ninety-five percent of the information required for

diagnosis, as the district court noted, Dr. Gelblum did not state that he relied on

those accounts in his letters or reports when he wrote that, at the time of the crimes,

Eduardo suffered from severe mental defect such that he could not appreciate the

wrongfulness of his actions. And he affirmatively testified that he could not render


       10
               Furthermore, one of the Government’s experts, Dr. David Fishbain, reviewed
Eduardo’s business writing, correspondence and notes made from 1996 to 2003 and discerned no
signs of mental or cognitive deterioration. Additionally, Dr. Fishbain noted that Eduardo made
no complaints about forgetfulness, anxiety or being upset to his primary care physician until late
2004, after he was being treated by Dr. Gelblum and after he had been indicted.

                                                11
an opinion about Eduardo’s ability or capacity to lie during that period. Although

he did try to rectify his opinion by testifying that he could rely on family reports to

make a retroactive diagnosis, he did not testify that he could opine with any degree

of medical certainty that Eduardo was unable to lie or deceive at the time of the

crimes.

      ii. Dr. Barry Crown

      Dr. Crown is a neuropsychologist who administered a series of psychological

tests to Eduardo in order to ascertain the severity of the damage caused by the

arachnoid cyst and the stroke syndrome identified by the neurologists. His report

stated that he would testify that at the time of Eduardo’s involvement in the

criminal acts, Eduardo was suffering from vascular dementia with significant

cognitive loss. Further, he wrote, Eduardo, “at best, would have been performing

at a twelve year old level” on his language-based critical thinking and abstract

problem-solving ability.

      During the hearing, Dr. Crown testified that all of the tests he administered

to Eduardo only showed Eduardo’s capabilities at the time of the tests’

administration. When asked specifically if he could testify as to Eduardo’s mental

condition during the relevant period of the case, he stated that could not provide an

opinion. He testified that his statement in the report was based on his

                                           12
understanding that Eduardo was not in the acute stage of the illness and that his

illness had been progressing for some time. However, he admitted that he had no

way to “date stamp it,” and that the rate of decline varies by individual. The

district court then asked Dr. Crown if he could say “to any degree of medical

certainty when that significant cognitive loss occurred?” Dr. Crown replied: “No,

other than Mrs. Orlansky relating to me that she felt that he deteriorated, and that

there were problems at or about the time of a civil lawsuit that took place well over

ten to 12, 14 years ago. But that’s the only historical bit of information that I have

that suggests a point of noticeability.” Finally, when asked if he could state with

any degree of scientific certainty that Eduardo was insane at any point during the

ten-year period that the charge embraced, Dr. Crown answered no.

      iii. Analysis

      The district court properly noted that the IDRA allows a defendant to put on

an affirmative defense that, as a result of a severe mental disease or defect, he was

unable, at the time of the commission of the acts constituting the offense, to

appreciate the nature and quality or the wrongfulness of his acts. 18 U.S.C. §17(a).

We also noted above that in the IDRA, Congress intended to prohibit the use of

non-insanity psychiatric evidence that points to exoneration or mitigation of an

offense, but that Congress did not intend to exclude the use of psychiatric evidence

                                          13
that negated specific intent. Westcott, 83 F.3d at 1358; Cameron, 907 F.2d at

1067. However, the IDRA specifically requires that such evidence focus on the

defendant’s state of mind at the time of the charged offense. See Cameron, 907

F.2d at 1067 (“Evidence offered as psychiatric evidence to negate specific intent is

admissible, however, when such evidence focuses on the defendant’s specific state

of mind at the time of the charged offense.”) (internal quotations omitted).

        Eduardo’s problem is that neither Dr. Gelblum nor Dr. Crown could provide

testimony about what Eduardo’s state of mind was at the time of the charged acts.

At most, they could speculate that he had begun to decline during that period, but

they could not opine with any degree of medical certainty about Eduardo’s state of

mind (or the level or degree of his mental deficiencies) during the relevant time

period.*** Moreover, because they did not know what his mental state was during


        ***
                In his petition for rehearing, Eduardo argues for the first time that the district court
erred by insisting that, to be admissible, Dr. Gelblum and Dr. Crown would have to have testified
to the ultimate issue – i.e., that Eduardo lacked the ability at the relevant time to appreciate the
nature and quality or wrongfulness of his acts. Eduardo now argues that the district court erred in
insisting upon testimony on the ultimate issue because such testimony is prohibited by
Fed.R.Evid. 704(b). Although it is true that the doctors did at some point testify without
objection that they were unable to opine with any degree of medical certainty as to that ultimate
issue, they also repeatedly testified to a similar inability to opine generally with respect to
Eduardo’s mental state at the relevant times (including the timing of significant cognitive loss).
The district court construed the doctors’ candid admissions as indicating that there was a paucity
of evidence with respect to Eduardo’s state of mind at the relevant times, such that the two
doctors could not opine with the requisite medical certainty that Eduardo suffered from dementia
with significant cognitive loss during the relevant time period. We cannot conclude that the
district court abused its discretion in this regard.

                                                   14
the relevant time, they also could not opine with any degree of medical certainty

with respect to his mens rea during the relevant time period. For this reason, the

district court held that the IDRA rendered the testimony of the two doctors

inadmissible.

       The district court (Judge Adalberto Jordan) exhaustively explored this

evidence and its admissibility. First it held a four-day hearing in November 2005,

during which it actively questioned the experts and after which it produced two

well-reasoned and comprehensively analyzed orders excluding the evidence.

Additionally, the court undertook reconsideration of the decision mid-trial and

again determined that the evidence could not meet the IDRA’s standards.11 In view

       11
                 Eduardo moved again mid-trial seeking reconsideration of the district court’s
decision to exclude the testimony of the doctors. Eduardo relied on the trial testimony of
employee and co-conspirator Mendez about Eduardo’s behavior during the relevant time, to wit:
that some of Eduardo’s business decisions made no sense; that he had trouble understanding
financial documents; that he had memory problems; and that he engaged in some ritualistic
behaviors. The FBI statement of another employee also reported ritualistic behaviors, like
repeatedly putting out his cigarette by pressing it against the bottom of the ashtray for an
inordinate amount of time. Eduardo did not proffer sworn testimony of either doctor to the effect
that the new evidence would permit them to testify with any degree of medical certainty as to
Eduardo’s state of mind as of the relevant time period. However, Eduardo did proffer brief
emails from the two doctors. The district court concluded that the emails were “conclusory and
provide little to no basis for the opinions offered.” We have considered the testimony of Mendez
and the statement of the other employee as well as the emails. We cannot conclude that the
district court abused its discretion. The emails are conclusory; they fail to explain how the
actions described would indicate either the timing or the degree of any cognitive impairment.
Moreover, especially in the absence of expert testimony, we doubt that the behaviors described
could indicate cognitive impairment to a degree that mens rea would be negated. For example,
the most significant behaviors – poor business judgment and trouble understanding financial
documents – would not seem to indicate cognitive impairment to the extent that a person would
not realize that it is wrong to fabricate accounts receivable in order to mislead one’s lender and

                                                15
of the careful and comprehensive consideration by the district court,12 and because

neither doctor could testify with any degree of medical certainty about Eduardo’s

state of mind at the relevant times we cannot conclude that the district court abused

its discretion in excluding the testimony of Dr. Gelblum or Dr. Crown.13

       b. Rule 702 of the Federal Rules of Evidence

       The district court also denied admission of the testimony based on Rule 702

of the Federal Rules of Evidence, which controls the admission of expert

testimony. It provides:


joint venture partner. In any event, in the absence of expert testimony to that effect, we cannot
conclude that the district court abused its discretion. We also note that after his indictment,
Eduardo’s own doctors initially opined that Eduardo was competent to stand trial.
       12
                 In addition to the hearings the district court held on the evidence of Eduardo’s
mental state, it held a four-day hearing on the related issue of Eduardo’s competency before trial
began and ordered both an in-patient evaluation and an independent expert evaluation of
Eduardo’s competency. Moreover, as discussed below, the court re-examined Eduardo’s
competency both during the trial and after it, producing detailed analyses of the experts’
testimony and demonstrating an extensive understanding of Eduardo’s mental condition.
       13
                 We noted above in Part II.F.1 that Eduardo sought to introduce the testimony of
the two doctors for three purposes: first, to support his insanity defense; second, to negate mens
rea; and third, to support his claim that he had been kept in the dark about the fraud. The district
court’s opinions, and our own opinion in the text above, specifically address the issue only with
respect to its use to support the insanity defense, and to negate mens rea. However, the same
rationale applies with equal force to Eduardo’s attempt to use the evidence to support his claim
that he had been kept in the dark about the fraud. We can assume arguendo, but we expressly do
not decide, that the IDRA would not present an absolute bar to the use of psychiatric evidence for
this third purpose. However, even assuming that, it is clear that the IDRA would require that the
evidence be focused on defendant’s state of mind at the time of the crime. Because the evidence
of the two doctors was not thus focused, the district court did not abuse its discretion in
implicitly holding that the IDRA renders the evidence inadmissible for this third purpose also.


                                                 16
      If scientific, technical, or other specialized knowledge will assist the
      trier of fact to understand the evidence or to determine a fact in issue,
      a witness qualified as an expert by knowledge, skill, experience,
      training, or education, may testify thereto in the form of an opinion or
      otherwise, if (1) the testimony is based upon sufficient facts or data,
      (2) the testimony is the product of reliable principles and methods, and
      (3) the witness has applied the principles and methods reliably to the
      facts of the case.

The Supreme Court has instructed that Rule 702 compels the district courts to

perform a critical “gatekeeping” function concerning the admissibility of expert

scientific evidence. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589 n.7, 597,

113 S. Ct. 2786, 2795 n.7, 2798 (1993). “This function ‘inherently require[s] the

trial court to conduct an exacting analysis’ of the foundations of expert opinions to

ensure they meet the standards for admissibility under Rule 702.” United States v.

Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc) (quoting McCorvey v.

Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002)).

      This court employs a three-part inquiry to determine admissibility under

Rule 702. The trial court must consider whether:

      (1) the expert is qualified to testify competently regarding the matters
      he intends to address; (2) the methodology by which the expert
      reaches his conclusions is sufficiently reliable as determined by the
      sort of inquiry mandated in Daubert; and (3) the testimony assists the
      trier of fact, through the application of scientific, technical, or
      specialized expertise, to understand the evidence or to determine a fact
      in issue.



                                         17
Frazier, 387 F.3d at 1260. Here, the district court denied admissibility of the

testimony of Doctors Gelblum and Crown based on the second and third prongs of

the inquiry, reliability and assistance to the trier of fact. While the Court in

Daubert recognized that “it would be unreasonable to conclude that the subject of

scientific testimony must be ‘known’ to a certainty,” it held that “in order to qualify

as ‘scientific knowledge,’ an inference or assertion must be derived by the

scientific method.” 509 U.S. at 590, 113 S. Ct. at 2795. “Proposed testimony must

be supported by appropriate validation – i.e., ‘good grounds,’ based on what is

known.” Id. Further, assistance to the trier of fact is primarily a question of

relevance. Id. at 591, 113 S. Ct. at 2795. Therefore, the question is whether the

evidence will help the jury decide a factual dispute; “Rule 702’s ‘helpfulness’

standard requires a valid scientific connection to the pertinent inquiry as a

precondition to admissibility.” Id. at 591-92, 113 S. Ct. at 2796.

      As discussed in reference to the IDRA, there did not exist “‘good grounds,’

based on what is known.” Neither of the proposed expert witnesses could testify

with any medical certainty to evidence with respect to Eduardo’s state of mind at

the relevant times that would allow a reasonable fact-finder to conclude that

Eduardo was either insane at the time of the offenses or lacked the requisite mens




                                           18
rea at the time of the offenses.14 Therefore, the district court’s conclusion that the

evidence failed both the reliability and assistance to the trier of fact prongs was not

an abuse of discretion.15

       SO ORDERED.




       14
                The district court also properly rejected, on the basis of Daubert, Eduardo’s third
rationale for admitting the expert witness testimony about his mental state – to show that he was
easily influenced by his employees – because of the experts’ inability to testify with any medical
certainty about his mental state during the relevant time period.
       15
               In light of our decision that the district court did not abuse its discretion in
excluding the testimony of the two doctors on the basis of the IDRA and Rule 702, we need not
address the district court’s alternative ground, Fed. R. Evid. 403.

                                                 19
