Excluding Expert Testimony Of Defendant’s “Peculiar Turn Of Mind” That Drug Use Was “Almost Sacramental Consumption”

First Circuit affirms trial court’s exclusion of defense expert psychologist’s opinion that while the cocaine conspiracy defendant was “technically competent” to stand trial, he had a “peculiar turn of mind” that “interprets everything in terms of a highly abstracted philosophy of life” making “drug use … an almost sacramental consumption”; the expert opinion was not probative of a lack of ability to form the requisite intent to participate in the charged conspiracy and was substantially confusing or misleading, in United States v. Ahrendt, 560 F.3d 69 (1st Cir. March 19, 2009) (No. 06-1254)

In a recent opinion, the First Circuit considered the admissibility of proposed expert testimony that the defendant’s “idiosyncratic philosophy” that might suggest the defendant suffered from “a form of temporary insanity” or that the defendant’s sincere beliefs may “ameliorate[ ] the offense.” Ahrendt, 560 F.3d at 76. In affirming the exclusion of this testimony, the circuit implied that the expert testimony was not relevant. If not relevant, clearly its probative value was substantially outweighed by the danger of confusion of issues or misleading the jury under FRE 403. While the case might be read as firm support for excluding evidence under FRE 403 regarding the nature of a defendant’s religious or philosophical beliefs, a stricter reading of the circuit’s opinion supports the contention that the evidence simply was not relevant.

In the case, defendant Ahrendt was charged with conspiracy to distribute, and to possess with the intent to distribute, both cocaine and cocaine base. After his arrest, the defendant confessed he engaged in cocaine transactions, but he denied that he was part of the charged cocaine conspiracy. He claimed he was “kept in … the dark” about the conspiracy, which the government contended operated at times right under his nose, by associates who “‘set up shop’ in his apartment selling drugs.” Ahrendt, 560 F.3d at 71. Before trial, a forensic psychologist examined the defendant to determine his competency to stand trial. The psychologist concluded that the defendant had a “Personality Disorder” but it did not impair his ability to consult with an attorney or make rational legal decisions. Ahrendt, 560 F.3d at 72.

As trial approached, defense counsel sought to introduce expert evidence testimony of a clinical psychologist, based on interviews with the defendant, that “offered further explanation of [defendant] Ahrendt’s point of view and behavior” in the charged crime. The psychologist reported on the defendant’s “peculiar turn of mind” that “interprets everything in terms of a highly abstracted philosophy of life” and that the defendant’s “drug use resembles an almost sacramental consumption of what the ‘Divine’ Lovingly provides us, while society’s war on drugs is a misguided Lust to control what others do.” Ahrendt, 560 F.3d at 73.

Acting upon the government’s motion in limine to exclude the defense psychologist’s testimony, the trial judge found that it was inadmissible under FRE 403. The court:

“agreed with the government and ruled the proffered testimony inadmissible under Fed. R. Evid. 403, explaining that the testimony had ‘a significant potential for confusing and misleading the jury and causing unfair prejudice.’ The court noted that such testimony might invite jury nullification, stating, ‘[t]he sincerity of Mr. Ahrendt’s belief that he is entitled to the “sacramental consumption” of drugs is not properly before the Court.’”
Ahrendt, 560 F.3d at 73 (citations omitted). Upon conviction the defendant appealed, contending that exclusion of the psychologist’s evaluation was erroneous because it was probative of defendant’s lack of ability to form the requisite intent to participate in the charged conspiracy to distribute cocaine, given the defendant’s alleged “view of drug use as ‘sacramental consumption.’” Ahrendt, 560 F.3d at 74, 75-76.

The First Circuit affirmed the exclusion of the psychologist’s expert evidence. The circuit did not consider whether the excluded evidence was proper expert evidence, apparently because the matter could be easily disposed of by considering the relevance of the testimony. While noting the prosecution’s burden in a possession with intent to distribute crime was to prove specific intent to distribute, the circuit concluded that the proffered expert testimony:

“would have had no bearing on this question. Ahrendt’s beliefs in a higher law are not probative of his ability to form the requisite intent. See United States v. White, 766 F.2d 22, 24 (1st Cir. 1985) (evidence of motivation for violating law, in this case influence of defendant’s mother, irrelevant if defendant is capable of forming specific criminal intent). Moreover, even if relevant, Dr. Aston’s testimony had significant potential to confuse or mislead the jury.
Ahrendt, 560 F.3d at 76 (emphasis added).

Noting the deference that should be given to the judgment of the trial court which was “closer to the case” and has “comparative advantage” in assessing a “defendant’s ability to form requisite intent,” the circuit quoted as appropriate the trial judge’s findings that the proffered defense psychologist expert:

“Dr. Aston may not give voice to and implicitly legitimize what he describes as Mr. Ahrendt’s ‘deviant’ set of values without effectively promoting jury nullification.... Further, Dr. Aston’s testimony could mislead the jury into thinking that Mr. Ahrendt’s idiosyncratic philosophy amounts to a form of temporary insanity or ameliorates the offense....”
Ahrendt, 560 F.3d at 76 (citing United States v. Schneider, 111 F.3d 197, 201 (1st Cir. 1997) (While a defendant can present mental-condition evidence short of establishing insanity under 18 U.S.C. § 17(a) if the evidence is relevant to determining the defendant’s ability to form the requisite intent to commit the crime, in assessing this medical evidence the district court is “closer to the case” and has “comparative advantage.”)).

The Ahrendt case presents an interesting result concerning the deference due the trial court. According to the circuit, the trial court’s FRE 403 determination was entitled to deference, but the circuit actually seemed to suggest that a better answer would be that the proffered expert psychology evidence regarding defendant’s “sacramental consumption” of drugs just was not relevant. Of course, if it was not relevant FRE 403’s balance of probative value (none) with the danger of confusion and misleading the jury (high) would also lead to exclusion of the evidence, as Ahrendt demonstrates.

Federal Rules of Evidence