                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3226
                                   ___________

United States of America,               *
                                        *
      Plaintiff-Appellee                *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri
Robert F. Yockel, Jr.,                  *
                                        *
      Defendant-Appellant               *
                                   ___________

                             Submitted: January 14, 2003
                                 Filed: February 21, 2003
                                  ___________

Before WOLLMAN and MURPHY, Circuit Judges, and GRITZNER,1 District Judge.
                         ___________

GRITZNER, District Judge.

       On this appeal, appellant Yockel asserts the district court2 erred in (1) not
holding intent was a requirement for the intimidation element of bank robbery;
(2) finding the evidence was sufficient to prove the taking of money by intimidation;
(3) precluding defendant from presenting evidence regarding intent and mental


      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
      2
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri, Western Division.
health; and (4) failing to grant a continuance or mistrial, requested after the jury was
impaneled and sworn, when the court reversed its ruling on the government’s motion
in limine regarding the admissibility of defendant’s mental health evidence.
We affirm.

        On March 23, 2001, appellant entered UMB Bank located at 14th and Grand
in Kansas City, Missouri. He appeared a little dirty and scraggly, his hair was
unkempt, and his eyes were black as if he had been beaten. He approached a bank
teller and stated that he wanted to withdraw $5,000 from his account. He could not
provide an account number, so the teller asked him for identification. Yockel
provided his Kansas driver’s license, but the teller could not find an account under
Yockel’s name or social security number.

       When the teller asked if the account could be under another name, Yockel told
her to look under “Bob Yockel”, “Drug Bust”, “Evangelistic Services”, and “Triple
X Deluxe”. The teller was unable to find an account under any of these names, and
she then sought help from her manager. They still could not find an account for
Yockel, and the teller repeatedly told him that she could not find an account for him.

      The teller asked Yockel in which branch of the bank he had opened his
account; Yockel stated he didn’t know. The teller then explained, “I’m sorry, I can’t
help you.” Yockel replied, “Well, I know I have money here.” Searching computer
records once again, the teller turned the computer screen so Yockel could see it,
saying, “There’s nothing here,” then gave Yockel his identification back.

       As Yockel was putting his license away, he asked the teller, “Does it matter to
you if you go to heaven or hell?” The teller responded, “Yeah, I’d kind of like to go
to heaven.” Yockel again asked, “Do you want to go to heaven or hell?” The teller
does not recall what her response was. Yockel then told her, “If you want to go
heaven, you’ll give me the money.”

                                          -2-
                                           2
       Upon hearing Yockel’s statements regarding heaven and hell, the teller became
fearful for her life, pondered whether her son would have a mother, and wondered
where she would go when she died. She became so frightened, she urinated.

       The teller decided to give Yockel some money in the hopes that he would leave
her teller window. She grabbed two bundles of $100 bills and one bundle of $50 bills
and gave Yockel the cash, amounting to $6,000. When the teller asked Yockel,
“How’s that?”, he responded, “That’s great, I’ll take it.”

       During this encounter, Yockel did not, at any time, make any sort of physical
movement toward the teller and never presented her with a note demanding money.
Yockel never displayed a weapon of any sort, never claimed to have a weapon, and
by all accounts, did not appear to possess a weapon.

       Tanya Moore, an unarmed security guard on duty that day, noticed Yockel
leave the teller line and saw the teller crying and pointing to Yockel as he left the
bank. Moore followed Yockel outside, saw Yockel in a car with two other people,
and noticed that Yockel was counting money. As Moore approached the car asking
if everything was alright, the car drove off. Inside the bank, the teller had now pulled
the alarm, but Yockel was not apprehended.

       The following day, Yockel visited a different UMB Bank, this one located at
1810 Grand in Kansas City. Yockel approached a teller window and tried to
withdraw funds, providing his driver’s license to the teller. The teller informed
Yockel that he could not obtain money without his account number, to which Yockel
replied that he had been able to obtain “money down the street yesterday” without an
account number. While this was taking place, another teller recognized Yockel as
possibly having robbed the 14th Street UMB Bank the day before and called the
police. The police arrived and arrested Yockel.



                                          -3-
                                           3
       Yockel was charged in a criminal complaint with bank robbery in violation of
18 U.S.C. § 2113(a). Following a psychological examination, a competency hearing
was held before a magistrate judge. The only evidence to which both parties would
stipulate was the psychological report which concluded that Yockel was competent
to understand the nature and consequences of the proceedings against him and to
assist properly in his defense. The magistrate judge recommended that the district
court find Yockel competent to stand trial. There being no objection by the parties,
the district court found Yockel competent to understand the nature and consequences
of the proceedings against him and to properly assist in his defense.

       On July 24, 2001, Yockel had filed a notice of intent to rely on the defense of
insanity. On November 19, 2001, Yockel withdrew the notice of his intent to rely on
insanity and expert testimony at trial, but maintained his intention to present evidence
of his mental health “through other evidentiary sources.” During the pretrial
conference, Yockel advised the government and the court that he intended to rely on
the defense of general denial and lack of intent.

       The case against Yockel was scheduled for trial on February 4, 2002; however,
on that date, because Yockel had indicated he intended to offer medical records,
personnel records, and lay testimony regarding his history of mental problems and
mental treatment, the government filed a motion in limine seeking to preclude such
evidence since Yockel was not relying on the defense of insanity. The trial was
continued to allow the court time to fully consider the matter. In its motion, the
government contended that whether Yockel intended to intimidate the teller was
irrelevant, and that the essential issue was whether Yockel did something that would
make an ordinary person fear bodily harm.

       Yockel contended that the general intent of bank robbery requires proof that
he possessed knowledge with respect to the actus reus of the crime and that the use
of force or intimidation is part of the actus reus of bank robbery. On February 13,

                                          -4-
                                           4
2002, the district court denied the government’s motion in limine. The court found
that medical evidence was admissible, not on the issue of Yockel’s intent but, rather,
on the issue of Yockel’s knowledge of his actions, i.e., whether he knew he was
physically taking money that did not belong to him. The February 13, 2002, order
made it clear that this evidence was relevant and admissible only with respect to
Yockel’s knowledge of his actions, not his intent.

        On the morning of the first day of trial, counsel for Yockel explained to the
court that he planned to offer copies of medical records reflecting Yockel’s mental
health but was not going to offer expert testimony; he intended to present the medical
records without a witness. The trial court advised Yockel’s attorney that he would
not be allowed to present evidence regarding mental illness or mental health in this
fashion, and that the court denied the motion in limine on February 13, 2002,
expecting Yockel to present expert testimony. The district court and counsel con-
tinued to address this issue after jury selection and before opening statements, but,
ultimately, the trial court ruled that it was going to exclude mental health evidence
in its entirety as not relevant to any issue in the case. The court rescinded its order
of February 13, 2002, and granted the government’s motion in limine. Appellant
moved for a mistrial and a continuance; both motions were denied, and the case
proceeded with a two-day jury trial in which Yockel was convicted on Count I of the
superceding indictment.

I.    Application of the mens rea element of bank robbery to the element
      of intimidation.

       “Analysis of the intent element under § 2113(a) is an issue of law,” United
States v. Sewell, 252 F.3d 647, 650 (2nd Cir. 2001), which we review de novo.
United States v. Yousif, 308 F.3d 820, 827 (8th Cir. 2002). Likewise, issues of
statutory construction are reviewed de novo. United States v. Allen, 247 F.3d 741,
757 (8th Cir. 2001), vacated and remanded by 122 S. Ct. 2653, 153 L. Ed. 2d 830,

                                          -5-
                                           5
70 U.S.L.W. 3798 (U.S. 2002); see also United States v. Williams, 136 F.3d 547, 550
(8th Cir. 1998).

       In addressing the issue of whether bank larceny (18 U.S.C. § 2113(b)) was a
lesser-included offense of bank robbery (18 U.S.C. § 2113(a)), the Supreme Court
indicated that the offense of bank robbery prohibited by § 2113(a) “contains no
explicit mens rea requirement of any kind.” Carter v. United States, 530 U.S. 255,
267 (2000). The statute of conviction for Yockel, 18 U.S.C. § 2113(a)3, requires only
proof of “general intent – that is, that the defendant possessed knowledge with
respect to the actus reus of the crime (here, the taking of property of another by force
and violence or intimidation).” Id. at 268 (emphasis in original).

       The court in Carter, discussing a hypothetical situation, specifically pointed out
that “[s]ection 2113(a) certainly should not be interpreted to apply to the hypothetical
person who engages in forceful taking of money while sleepwalking (innocent, if
aberrant activity), but this result is accomplished simply by requiring . . . general
intent – i.e., proof of knowledge with respect to the actus reus of the crime.” Id. at
269 (emphasis in original). Similarly, this court has previously found that the first
paragraph of § 2113(a) does not require specific intent as an element of the offense.
See United States v. Johnston, 543 F.2d 55, 58 (8th Cir. 1976).

      Thus, in the instant case, the government maintains, the mens rea for the actus
reus of bank robbery is satisfied by proof that Yockel knew he was physically taking
money. The contrary position Yockel assumes is that the government had to prove



      3
        Section 2113(a) provides, “Whoever, by force and violence, or by intimida-
tion, takes, or attempts to take, from the person or presence of another, . . . any
property or money or any other things of value belonging to, or in the care, custody,
control, management, or possession of, any bank . . .” has committed the crime of
bank robbery.
                                           -6-
                                            6
he knowingly intimidated the teller in order to have been convicted of the March 23,
2001, UMB Bank robbery.

       The Fourth Circuit has analyzed the issue of what mens rea requirement must
accompany the actus reus of bank robbery under § 2113(a). See United States v.
Woodrup, 86 F.3d 359 (4th Cir. 1996). In that case, Woodrup had been convicted of
bank robbery under § 2113(a). Id. at 360. The Fourth Circuit specifically rejected
Woodrup’s argument that in order to have convicted him of bank robbery, the
government was required to prove he intended to intimidate the victim. Id. at 363-64.
In rejecting Woodrup’s argument, the Fourth Circuit explained,

      The statute merely requires that a theft of money from a bank be “by
      force or violence, or by intimidation” in order to constitute robbery;
      nothing in the statute even remotely suggests that the defendant must
      have intended to intimidate. . . . We therefore reaffirm that the intimi-
      dation element of section 2113(a) is satisfied if “an ordinary person in
      the teller’s position reasonably could infer a threat of bodily harm from
      the defendant’s acts,” whether or not the defendant actually intended
      the intimidation.

Id. at 364 (citations omitted in original).

       Likewise, in United States v. Foppe, the defendant argued that he could not be
convicted under 18 U.S.C. § 2113(a) unless the government proved “that he
specifically intended to intimidate . . . the [bank] teller mentioned in the indictment.”
United States v. Foppe, 993 F.2d 1444, 1451 (9th Cir. 1993). Foppe had requested
a jury instruction that would have required the government to prove beyond a
reasonable doubt that he “intentionally and voluntarily used force or violence on, or
intimidated” the teller in order to take the money. Id. Instead, the trial court gave an
instruction that the government need only prove that “the taking was either by force
and violence, or by intimidation.” Id.


                                           -7-
                                            7
       The Ninth Circuit, in Foppe, pointed out that “[u]narmed bank robbery, as
defined in section 2113(a), is a general intent crime, not a specific intent crime.” Id.
(citing United States v. Burnim, 576 F.2d 236, 237 (9th Cir. 1978)). “[T]he jury can
infer the requisite criminal intent from the fact that the defendant took the property
of another by force and violence, or intimidation.” Id. (referring to United States v.
Porter, 431 F.2d 7, 10 (9th Cir. 1970)).

       The Foppe court noted that “[t]he determination of whether there has been an
intimidation should be guided by an objective test focusing on the accused’s actions.”
Id. (quoting United States v. Alsop, 479 F.2d 65, 67 n.4 (9th Cir. 1973)). Therefore,
“[w]hether Foppe specifically intended to intimidate [the bank teller] is irrelevant.”
Id. In light of this, the Ninth Circuit found that the jury instruction given by the
district court “adequately described the elements of the offense.” Id.

        In this circuit, “intimidation”, as it is used in § 2113(a), is also determined by
an objective standard. See United States v. Caldwell, 292 F.3d 595, 596 (8th Cir.
2002); see also United States v. Smith, 973 F.2d 603, 604 (8th Cir. 1992). “Intimida-
tion is conduct reasonably calculated to put another in fear . . . [measured objectively
by] an ordinary, reasonable person [standard].” Id. (quoting Smith, 973 F.2d at 604).

       As intimidation is measured, in this circuit, under an objective standard,
whether or not Yockel intended to intimidate the teller is irrelevant in determining his
guilt. We find, as did the Woodrup and Foppe courts, that “the intimidation element
of section 2113(a) is satisfied if ‘an ordinary person in [the teller’s] position reason-
ably could infer a threat of bodily harm from the [Yockel’s] acts,’ whether or not
[Yockel] actually intended the intimidation.” See Woodrup, 86 F.3d at 364; see also
Foppe, 993 F.2d at 1451 (emphasis added). The district court correctly concluded the
mens rea element of bank robbery did not apply to the element of intimidation and
properly excluded evidence on that issue.



                                           -8-
                                            8
II.   Motion for judgment of acquittal.

       The district court has very limited latitude when considering a motion for
acquittal. United States v. Hernandez, 301 F.3d 886, 889 (8th Cir. 2002). “In ruling
on a motion for judgment of acquittal, the role of the district court is not to weigh evi-
dence or consider the credibility of the witnesses, but rather to determine whether the
government has presented evidence on each element sufficient to support a jury
verdict.” United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir. 2000). When con-
sidering a motion for judgment of acquittal, the court must “view the evidence in the
light most favorable to the guilty verdict, giving the government the benefit of all
reasonable inferences that may be drawn from the evidence.” United States v. Basile,
109 F.3d 1304, 1310 (8th Cir. 1997). “After reviewing the evidence under these
standards, we will reverse only if we conclude that no reasonable jury could find guilt
beyond a reasonable doubt.” Id.

       Yockel argues there was insufficient evidence to establish that his conduct
during the banking transaction constituted intimidation as a matter of law. As
previously indicated, the law of this circuit clearly establishes that intimidation is to
be determined by an objective standard. In the present case, the teller testified that
at the bank Yockel appeared dirty and had unkempt hair, and eyes that were
blackened, as if he had been beaten. Having been told several times that no
information on an account could be found, Yockel asked “Does it matter to you if you
go to heaven or hell?” Yockel later stated, “If you want to go to heaven, you’ll give
me the money.”

       “An oral or written demand for money accompanied with a threat of reprisal,
blatant or subtle, is intended to enforce compliance by intimidation; and that
intimidation accompanied by a demand for funds constitutes the crime.” United
States v. Brown, 412 F.2d 381, 384 (8th Cir. 1969). We believe Yockel’s reference
to the afterlife, combined with his statement “If you want to go to heaven, you’ll give

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                                            9
me the money”, would, to any reasonable bank teller, be construed as a threat,
leading that teller to believe that his or her life would be in danger if the money was
not turned over promptly.

       This court encountered a similar scenario in Smith, where the defendant
entered the bank and told the teller that he wanted to make a withdrawal. Smith, 973
F.2d at 603. When the teller informed the defendant that he needed an account in
order to withdraw money, defendant responded, “no, that is not what I mean. I want
to make a withdrawal. I want $2,500 in fifties and hundreds.” Id. Defendant Smith
acted “real fidgety”, was moving around, and at one point put his elbows up on either
side of the window and leaned very close to the teller so that no more than a foot
separated himself and the teller. Id. at 603-04. Smith was also wearing a fanny pack
which the teller feared may contain a weapon. Id. at 604. The teller stated that he
was scared not only for himself, but also for the others in the bank. Id. This court
concluded that the evidence was sufficient to establish the intimidation element under
18 U.S.C. § 2113(a). Id. at 605.

      “Whether the defendant’s actions did induce fear in an individual victim is not
conclusive, but is probative of whether his acts were objectively intimidating.”
Caldwell, 292 F.3d at 596. In this case, the teller became so fearful that she urinated,
and shortly thereafter she was also observed crying.

       While it is true that during this encounter, Yockel did not display or make any
reference to a weapon, we find as other courts have found that “the display of a
weapon, a threat to use a weapon, or even a verbal or nonverbal hint of a weapon, is
not a necessary ingredient of intimidation under § 2113(a).” United States v.
Gilmore, 282 F.3d 398, 402 (6th Cir. 2002); see also United States v. Hill, 187 F.3d
698, 701 (7th Cir.1999); United States v. Henson, 945 F.2d 430, 439-40 (1st
Cir. 1991).



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                                          10
        “Unless the district court ultimately determines that a miscarriage of justice
will occur, the jury’s verdict must be allowed to stand.” United States v. Campos,
306 F.3d 577, 580 (8th Cir. 2002). In this case, sufficient evidence was presented at
trial to support a finding that Yockel did intimidate the teller. The district court did
not err in denying Yockel’s motion for judgment of acquittal.

III.   Evidence regarding Yockel’s intent.

       Yockel insists he was not afforded a fair opportunity to present a defense in his
criminal trial. As explained, Yockel did not assert an insanity defense at trial;
instead, his theory of defense was based on a general denial and lack of intent to
intimidate the teller. Yockel now asserts that the district court’s exclusion of his
medical records and certain lay witness testimony regarding his mental condition,
which Yockel hoped to offer to refute the government’s burden of proof on the issue
of intent, denied him a fair opportunity to present a defense in his criminal trial.4



       4
        In 1984, Congress enacted the Insanity Defense Reform Act, making insanity
an affirmative defense. See 18 U.S.C. § 17. The statute indicates that “Mental
disease or defect does not otherwise constitute a defense.” Id. In the instant case, the
government argues that since Yockel did not assert an insanity defense, evidence con-
cerning his mental state is irrelevant, and inadmissible. Some circuits have allowed
such evidence to be admitted, even where an insanity defense was not raised, though
in the context of specific intent crimes. See, e.g., United States v. Bennett, 161 F.3d
171, 185 (3rd Cir. 1998) (discussing the affirmance of a defendant’s conviction in
United States v. Pohlot, 827 F.2d 889, 906-07 (3rd Cir. 1987); see also United States
v. Schneider, 111 F.3d 197, 201 (1st Cir. 1997); United States v. Cameron, 907 F.2d
1051, 1064-65 (11th Cir. 1990). The Third Circuit has noted that most states limit
psychiatric evidence to specific intent crimes “on the theory that mental abnormality
can virtually never disprove the mens rea required for general intent crimes. . . .”
Pohlot, 827 F.2d at 897 n.4. “Psychological evidence is relevant to mens rea only
when the defendant is charged with a specific intent crime.” Cameron, 907 F.2d at
1063 n.20 (emphasis in original).
                                         -11-
                                          11
       The government presented evidence that, while at the bank, Yockel provided
the names “Drug Bust”, “Evangelistic Services”, and “Triple X Deluxe” to the teller
as she attempted to locate his account. The government presented evidence that after
leaving the bank, Yockel went to a liquor store where he gave money away to
strangers and paid a woman for a kiss. Evidence was offered that Yockel asked the
teller questions concerning going to “heaven and hell” and the government elicited
from the teller that she interpreted Yockel’s comments as a threat. Yockel argues the
court precluded him from presenting evidence that was crucial to rebut or explain
these aspects of the government’s evidence.

       Yockel was allowed to present evidence through cross-examination and
rebuttal testimony concerning the statements and actions he took. Yockel was able
to present: that Yockel believed he had accounts and money at various banks; that
he had, on multiple occasions attempted to withdraw money from other banks; that
when talking to the teller, he did not refer to hell but only to heaven, and what that
statement meant; that the teller believed Yockel seemed mentally unstable; that he
gave away money to people because God told him to do so; that his mother took care
of his daily needs; that he quit teaching in 1995 due to clinical depression; that he
was a religious person; that God told him to go to banks and ask for money; that God
told him he had an account at UMB Bank and that God provided him with the names
to give the teller; that God told him what to say; that God told him he would be
beaten; that he did not intimidate the teller and that she did not appear scared; and
that he did not rob the bank.

        The essence of Yockel’s challenge is that he believes his history of mental
illness is relevant to the jury determination of whether he intended to intimidate the
teller.5 However, as discussed, precedent clearly establishes that intimidation is


      5
       See, e.g., Yockel’s Response to Government’s Motion in Limine, at p. 4
(indicating that Yockel intended to rely on evidence of his mental illness, not to
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determined by an objective standard. Caldwell, 292 F.3d at 596. Moreover, intent
is not an issue in bank robbery, a general intent crime, so this type of evidence was
irrelevant. See Cameron, 907 F.2d at 1063 n.20 (explaining that “[p]sychological
evidence is relevant to means rea only when the defendant is charged with a specific
intent crime”) (emphasis in original). Therefore, evidence regarding Yockel’s intent
to intimidate the teller was not relevant and was properly excluded by the district
court. See Fed. R. Evid. 401, 402.

       Finally, Yockel argues that the government presented testimony to establish
that he was not surprised upon his being arrested, but he was not allowed to rebut
this. While such evidence might be probative of whether Yockel had knowledge with
respect to the actus reus of the crime, Yockel only points to evidence related to his
mental health, evidence which, as explained, was inadmissible based on relevancy
grounds. Yockel has not indicated what admissible evidence concerning his lack of
surprise when arrested he was not allowed to present. This court will not speculate
on this matter.

      A district court’s evidentiary rulings are reviewed for abuse of discretion.
United States v. Esparza, 291 F.3d 1052, 1054 (8th Cir. 2002) (citing United States
v. Becht, 267 F.3d 767, 770 (8th Cir. 2001). For the foregoing reasons, we conclude
Yockel’s right to due process was not violated by the exclusion of the mental
health evidence.

IV.   Continuance or mistrial.

      A district court’s decision to deny a motion for a continuance can be reversed
on appeal only for an abuse of discretion. Morris v. Slappy, 461 U.S.1, 12 (1983);


suggest he was unable to form the intent to commit robbery, but solely to demonstrate
that he did not intend to threaten the teller).
                                        -13-
                                         13
see also United States v. Cotroneo, 89 F.3d 510, 514 (8th Cir. 1996). We seek to
determine if the movant was prejudiced by the denial of a continuance. United States
v. Hernandez, 299 F.3d 984, 991 (8th Cir. 2002).

      Similarly, “[i]t is within the discretion of the district judge to grant or deny a
motion for mistrial and the decision will be reviewed only for an abuse of discretion.”
United States v. Encee, 256 F.3d 852, 854 (8th Cir. 2001) (citing United States v.
Gladfelter, 168 F.3d 1078, 1082 (8th Cir. 1999)). We will affirm a district court’s
denial of a mistrial absent an “abuse of discretion resulting in clear prejudice.”
United States v. Koskela, 86 F.3d 122, 125 (8th Cir. 1996).

      When determining whether to grant a continuance, the relevant factors to
consider include:

      (1)    the nature of the case and whether the parties have been allowed
             adequate timing for trial preparation;

      (2)    the diligence of the party requesting the continuance;

      (3)    the conduct of the opposing party and whether a lack of
             cooperation has contributed to the need for a continuance;

      (4)    the effect of the continuance and whether a delay will seriously
             disadvantage either party; and

      (5)    the asserted need for the continuance, with weight to be given to
             sudden exigencies and unforeseen circumstances.

United States v. Issaghoolian, 42 F.3d 1175, 1177-78 (8th Cir. 1994). In this case,
factors (1) and (5) are the most pertinent. Yockel’s diligence has not been made an
issue by the government; it does not appear from the record that the government’s
conduct or any lack of cooperation is relevant in determining the issue; and, while the


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                                          14
government might have faced scheduling concerns, it does not appear the government
would have been seriously disadvantaged by a continuance.

       In this case, the parties had nearly eleven months to prepare for trial. The
indictment was filed on March 27, 2001, and the case went to trial on February 26,
2002. Yockel maintains he was forced to abandon his theory of defense (i.e. that he
did not intend to intimidate the teller) immediately prior to opening statements due
to the court’ reversal of its February 13, 2002, order. Yockel’s argument on this point
is unpersuasive.

       In the months leading up to trial, once Yockel indicated he would not rely on
an insanity defense, the government moved in limine to preclude him from offering
evidence concerning his mental health. Initially, the district court overruled the
government’s motion in limine, stating “that the evidence is admissible, but not on
the issue of Yockel’s intent. Rather, the court finds that the evidence is admissible
because it goes to show Yockel’s knowledge of his actions.”6 Clearly, Yockel knew,
or was at least on notice, thirteen days before trial, that the court had no intention of



      6
        See District Court’s Order of February 13, 2002, at p. 5. The district court
continued:
       the mental health testimony is relevant and admissible because it goes
       to show whether Yockel possessed knowledge with respect to the actus
       reus of the crime, i.e. taking money belonging to or in the possession of
       the bank by force or intimidation. If the expert testimony were believed,
       that Yockel because of his mental condition, went into the bank as an
       “obedient response to God’s leading” and “did not demand money
       during the alleged bank robbery, but had simply requested to withdraw
       funds that he believed were his,” then this would tend to negate the
       mens rea element of the crime.
(District Court’s Order, dated February 13, 2002, at p. 7). The court went on to
remind defense counsel of the restrictions of F.R.E. 704(b), indicating that any expert
testimony presented at trial needed to follow those parameters. Id.
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                                           15
allowing this evidence to be admitted on the issue of Yockel’s intent. In this
situation, we conclude that Yockel had adequate time to plan a defense accordingly.

       Turning to Yockel’s asserted need for a continuance, giving due weight to the
existence of sudden exigencies and unforeseen circumstances, Yockel’s appeal fares
no better. Although Yockel argues he needed a continuance in order to adequately
prepare and develop a theory of defense after the court reversed its position con-
cerning the government’s motion in limine, we disagree. After nearly a year, and
knowing the court would not allow evidence regarding Yockel’s intent to intimidate
the teller, Yockel still hoped to rely on a defense of a lack of intent. Under these
facts, Yockel cannot be heard to argue the district court’s change of position on the
government’s motion in limine created the existence of sudden exigencies or unfore-
seen circumstances which prejudiced Yockel’s defense.

      We find the district court did not abuse its discretion in denying Appellant’s
motion for a continuance. On the same bases, we conclude the district court did not
abuse its discretion in refusing to grant a mistrial.

      The proceedings of the district court are affirmed in their entirety.

A true copy.

      ATTEST:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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