                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA                            )
                                                    )
      v.                                            ) Criminal Action No. 14-cr-0037 (TFH)
                                                    )
SHERRI DAVIS, et al.,                               )
                                                    )
                             Defendants.            )
1---------------------------------)
                                MEMORANDUM OPINION

      Defendant Sherri Davis is charged with conspiracy to defraud the United States, aiding

 and assisting in the preparation of false and fraudulent income tax returns, and filing false and

fraudulent individual income tax returns. See Superseding Indictment [ECF No. 26]. The

Government alleges that from January 2006 through April 2013, the defendants, along with

other individuals, conspired to defraud the Internal Revenue Service through the preparation

and filing of false and fraudulent income tax returns that claimed fraudulent deductions,

expenses, losses, and credits. !d. at ,-r 12. Pending before the Court is the Government's

Motion in Limine to Exclude Defendant Sherri Davis's Noticed Medical Expert Witness

Testimony [ECF No. 41]. The Government argues that the Court should exclude the testimony

of Dr. Robert Madsen, a clinical and forensic psychologist proffered by Ms. Davis to testify

that she suffers from attention deficit hyperactivity disorder ("ADHD") and to describe the

effects of ADHD on her functioning. Upon consideration of the parties' briefing 1 and the



     See Government's Motion in Limine to Exclude Defendant Sherri Davis's Noticed
Medical Expert Witness Testimony [ECF No. 41]; Defendant Sherri Davis's Opposition to
Government's Motion in Limine to Exclude Defendant Sherri Davis's Noticed Medical Expert
Witness Testimony [ECF No. 42]; Defendant Sherri Davis's Supplemental Proffer in
Opposition to Government's Motion in Limine [ECF No. 43]; Defendant Sherri Davis's
                                               1
entire record in this case, including the testimony at the December 10, 2014 hearing, the Court

concludes that Dr. Madsen's testimony is inadmissible so the motion shall be granted.

I.    Standard for Admissibility

      Federal Rule of Evidence 702 provides that expert testimony must "help the trier of fact

to understand the evidence or determine a fact in issue." Fed. R. Evid. 702(a). Under Daubert

v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993), a district court must ensure that an

expert's testimony is reliable and relevant by acting as a "gatekeep[er]" and "excluding any

expert testimony that is not sufficiently reliable or helpful to the jury." Parsi v. Daioleslam,

852 F. Supp. 2d 82, 85 (D.D.C. 2012) (citing Daubert, 509 U.S. at 597).

      This Circuit has held that expert testimony regarding a defendant's mental condition may

be admissible to negate specific intent. United States v. Childress, 58 F.3d 693, 727-28 (D.C.

Cir. 1995) (per curiam). In Childress, the court held that the Insanity Defense Reform Act of

1984 does not prohibit admissibility of mental condition evidence where

     , (a) the evidence is admitted not as an affirmative defense to excuse the defendant
       from responsibility for his acts, but to negate specific intent when that is an
       element of the charged act itself, and (b) the expert limits his testimony to his
       "diagnoses, the facts upon which those diagnoses are based, and the
       characteristics of any mental diseases or defect the experts believe the defendant
       possessed during the relevant time period," staying clear of "directly or indirectly
       opining on the [ultimate] issue of specific intent."

Id. at 728 (quoting United States v. Gold, 661 F. Supp. 1127, 1131 (D.D.C. 1987) (internal

citations omitted)); see also Fed. R. Evid. 704 ("In a criminal case, an expert witness must not

state an opinion about whether the defendant did or did not have a mental state or condition


Supplemental Memorandum in Opposition to the Government's Motion in Limine to Exclude
Medical Expert Witness Testimony [ECF No. 49]; Government's Supplemental Motion in
Limine to Exclude Defendant Sherri Davis's Noticed Medical Expert Witness Testimony [ECF
No. 50]; and Defendant Sherri Davis's Opposition to Government's Supplemental Motion in
Limine to Exclude Defendant Sherri Davis's Noticed Medical Expert Witness Testimony [ECF
No. 51].
                                               2
that constitutes an element of the crime charged or of a defense. Those matters are for the trier

of fact alone.").

      When a criminal defendant offers psychiatric evidence, the court must carefully

administer the evidence to ensure that it "is relevant to negate specific intent as opposed to

'present[ing] a dangerously confusing theory of defense more akin to justification and

excuse .... "' Childress, 58 F.3d at 727-28 (quoting United States v. Cameron, 907 F.2d 1051,

1067 (11th Cir. 1990)). Even ifthe proffered psychological testimony is potentially admissible

as relevant to specific intent, this Court must "determine whether the testimony is grounded in

sufficient scientific support to warrant use in the courtroom, and whether it would aid the jury

in reaching a decision on the ultimate issues." Childress, 58 F.3d at 728 (quoting United States

v. Brawner, 471 F.2d 969, 1002 (D.C. Cir. 1972)). With respect to the helpfulness inquiry,

"[t]he proper focus [is] on the proffered link or relationship between the specific psychiatric

evidence offered and the mens rea at issue in the case."' Id. at 730 (quoting Cameron, 907

F.2d at 1067 n.3 (11th Cir. 1990)).

II.   Discussion

      Defendant Sherri Davis designated Dr. Robert Madsen, a clinical and forensic

psychologist, as an expert witness to testify that she suffers from ADHD and to explain "the

symptoms of ADHD and how those symptoms may relate to the charges in this case." Gov't's

Mot. in Limine Ex. A, Email from Barry Coburn to Tiwana Fleming and Mark McDonald

(July 10, 2014) [ECF No. 41-1]. Dr. Madsen produced an initial report stating his conclusion

that "Ms. Davis appears to have a significant case of ADHD, predominantly the inattentive

type." Id. at Ex. B, Letter from Dr. Madsen to Barry Coburn (July 18, 2014) [ECF No. 41-2].

In response to the Government's challenge to the admissibility of this proffered testimony,



                                              3
based in part on the fact that Dr. Madsen's initial report failed to make any connection between

Ms. Davis's ADHD and the charged offenses, the defense submitted a supplemental proffer

from Dr. Madsen on November 18, 2014. In his supplemental proffer, Dr. Madsen explained

that

       Ms. Davis' ADD symptoms include the predominant symptom of inattention.
       This means, for one, that she will start something and get easily distracted onto
       another, making it extremely difficult to complete tasks of any kind, both in her
       allotted time and without errors. Indeed, failure to give close attention to details
       often leads to careless mistakes. This applies to domestic tasks as well as work
       tasks, and the precision needed to complete the task, as well as the time needed
       for any work undertaken, regardless of the venue, will be incrementally more
       difficult as the complexity of the task increases. Filling out detailed forms would
       be just such an example that would tax her better functioning considerably.

Def. Sherri Davis's Supplemental Proffer in Opp'n to Gov't's Mot. in Limine Ex. 1, Letter

from Dr. Madsen to Barry Coburn (Nov. 17, 2014) [ECF No. 43-1]. Neither of Dr. Madsen's

proffers included any mention of the charges against Ms. Davis or a discussion of how her

ADHD may have affected her ability to willfully commit conspiracy and tax fraud.

       It is proper to exclude proposed psychiatric evidence when a defendant is not able to

establish a link or relationship between the evidence and the mens rea at issue in the case. In a

case similar to this one, United States v. Boykoff, 186 F. Supp. 2d 347 (S.D.N.Y. 2002), the

defendant was charged with conspiracy to defraud the IRS and proffered a medical expert to

testify that he suffered from bipolar disorder and attention deficit disorder. !d. at 348-49. The

court excluded the proposed testimony, finding that the expert had not established the requisite

link between his testimony and the mens rea in dispute. !d. at 349. The court also noted that it

was difficult to see how the expert would make the requisite link because his report




                                               4
"exhibit[ed] no awareness ofthe true nature ofthe charges against" [the defendant]." Id. 2 See

also Cameron, 907 F.2d at 1067 (affirming district court's exclusion of proposed testimony

regarding defendant's schizophrenia in a drug distribution prosecution because defendant

failed to show how such evidence "would demonstrate that she did not intend to distribute

'crack' cocaine"); United States v. Parnell, Case No. 1:13-cr-12 (WLS), 2014 U.S. Dist.

LEXIS 85272, at *8 (M.D. Ga. June 24, 2014) (excluding expert testimony regarding

defendant's ADHD because defendant "failed to demonstrate the link between his ADHD and

the mens rea at issue"). 3

      Similarly here, Dr. Madsen has failed to establish the requisite link between his proposed

testimony regarding Ms. Davis's ADHD and her ability to form the mens rea at issue. When

asked on cross-examination whether he could link Ms. Davis's ADHD symptoms with the

conduct at issue in this case, Dr. Madsen stated that he could not. Hr'g Tr. 44:17-20. In fact,

he testified that there was nothing about the diagnosis of ADHD that could prevent Ms. Davis

from completing the charged crimes. Id. 33: 15-20. Ms. Davis claims that "Dr. Madsen's

proposed testimony concerns how [her] ADD ... affected her mental state," Def. Sherri



2
      The defense argues that Boykoff is not persuasive because the Second Circuit had not yet
decided whether mental condition evidence was admissible for purposes of negating specific
intent at the time the case was decided, but the district court clearly explained that its decision
was "assuming arguendo that evidence of mental disease can be used to negate an inference of
specific intent .... " Boykojf, 186 F. Supp. 2d at 349.
3
      In her Supplemental Memorandum in Opposition to the Government's Motion in Limine
[ECF No. 49], the defendant cited three cases, two from the United States Court of Appeals for
the Ninth Circuit and one from the United States District Court for the Northern District of
California. The cited authority is not binding on this Court, and it is not persuasive given that
the courts in Cohen, Morales, and Baras all found that the requisite link had been established
between the expert's testimony and the mens rea at issue. See United States v. Cohen, 510
F.3d 1114 (9th Cir. 2007); United States v. Morales, 108 F.3d 1031 (9th Cir. 1997); United
States v. Baras, Case No: CR 11-00523 YGR, 2013 U.S. Dist. LEXIS 173495 (N.D. Cal. Dec.
11, 2013).
                                               5
Davis's Supplemental Mem. in Opp'n to the Gov't's Mot. in Limine 1 [ECF No. 49], but it is

difficult to see how such testimony could be helpful to the jury when Dr. Madsen has no

knowledge regarding Ms. Davis's tax preparation business, the day-to-day tasks she performed

as a tax preparer, or any of her job responsibilities. Notably, Dr. Madsen specifically asked

Ms. Davis not to discuss the charges with him. Hr'g Tr. 36:13-20 (Dec. 10, 2014). It is

therefore unclear how his testimony has any link at all to the allegations in this case, and it

would not be helpful to the jury.

     Even if Dr. Madsen's testimony were admissible under Rule 702, it would be barred

under Rule 403 because its probative value, if any, is substantially outweighed by the danger of

misleading the jury. See, e.g., United States v. Rogers, Criminal Action No. 05-292 (RWR),

2006 WL 5249745, at *6 (D.D.C. July 17, 2006) ("Courts may exclude relevant psychiatric

evidence under Rule 403 '[b]ecause psychiatric evidence (1) will only rarely negate specific

intent, (2) presents an inherent danger that it will distract the jury from focusing on the actual

presence or absence of mens rea, and (3) may easily slide into wider usage that opens up the

jury to theories of defense more akin to justification."' (quoting Cameron, 907 F.2d at 1067)).

Dr. Madsen's proffered testimony focuses primarily on symptoms of ADHD that could cause

Ms. Davis to have difficulty completing tasks and accurately filling out detailed forms. This is

precisely the type of "justification or excuse" evidence that is not permitted because of the

danger that it will mislead the jury. Dr. Madsen's testimony is therefore inadmissible under

Federal Rules of Evidence 702 and 403.




                                               6
III. Conclusion

     For the reasons stated above, the Court holds that Dr. Madsen's testimony 1s

inadmissible. An appropriate Order accompanies this memorandum opinion.



January 12, 2015
                                                     Thomas F. Hog(:l~
                                           SENIOR UNITED STATES D:(sTRIG




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