competency portion of his examination, he was unable to conduct a full mental health examination
or come to a conclusion regarding Patterson’s sanity during the events in question.

Defendant's failure to provide proper written notice under Rule 12.2(b) of their intent to
introduce expert evidence regarding Patterson’s mental health, coupled with Mr. Patterson’s own
refusal to cooperate with the government’s own mental health expert, as mandated by Rule
12.2(c)(1), leaves the court no choice other than to bar all expert evidence related to Patterson's
mental health. Standing now as we are on the eve of trial, the government is left without sufficient
time to have Patterson fully examined by its own expert witnesses and prepare psychiatric testimony
of its own concerning Patterson’s mental condition to rebut the testimony of any defense experts.
Morcover, Patterson has to this day maintained that he will not submit to a full mental health

examination by the government’s expert.

ENTER:

Dated: July 5, 2005



gencral substance of their testimony.” Id. As the court explained, allowing such oral notice would
be inconsistent with the purposes of Rule 12.2:

One of the reasons that Congress enacted Rule 12.2 (b) was to enable the government

to prepare for cross-examination of the defendant's expert witnesses and to present

any rebuttal witnesses to counter the defense expert's testimony. . .. Obviously, the

government cannot conduct its own investigation into the validity of the defense of

lack of mental capacity and decide if it will present expert witnesses in rebuttal until

such time as it has knowledge of the psychiatric and psychological evidence that

defense intends to present.

Id. at 915 (internal citation omitted). Ultimately, the court upheld the trial court's decision to bar
the introduction of such evidence in light of the fact that Rule 12.2(b) notice was not filed until two
weeks before trial. Id.

Adding to the prejudice facing the government as a result of the defense’s failure to present
notice of the nature of any expert testimony that it intends to present at trial is the fact that
Patterson has repeatedly refused to submit to an examination by a government mental health expert.
The government's expert, Dr. Stafford Henry, has attempted to conduct a mental health evaluation
on two occasions. On May 17, 2005, Patterson refused entirely to participate in the evaluation. On
May 24, 2005, after being advised by the court that he would be precluded from introducing
evidence relating to an insanity defense if he refused to undergo such an examination, Patterson
agreed to meet with Dr. Henry and submit to an examination. The competency portion of the
examination, lasting roughly the first hour and twenty minutes, occurred largely without incident.
After that point, however, Patterson refused to answer questions about his mental state or actions

during the time period surrounding the alleged criminal acts, despite the pleas of his attorney that

refusing to do so may compromise his defense. Thus, although Dr. Henry was able to complete the


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA )
)
v. ) No. 04 CR 0705
)
AARON PATTERSON and ) Judge Rebecca R. Pallmeyer
MARK MANNIE )

MEMORANDUM OPINION AND ORDER

Defendants Aaron Patterson and Mark Mannie are charged in a thirteen-count indictment
with conspiracy to distribute heroin and marijuana, possession with intent to distribute heroin and
marijuana, and illegal possession of a firearm, all stemming from a series of incidents between March
and August 2004. The government has filed a motion in limine to exclude any testimony from
Defendant’s mental health experts. Specifically, the government urges that (1) Patterson’s refusal
to cooperate with the government's mental health expert precludes the introduction of such
evidence by the defense under Rule 12.2(d) of the Federal Rules of Criminal Procedure and (2) that
the defense is also precluded from introducing such evidence due to its failure to comply with the
notice and disclosure requirements of Rule 12.2 (b) and Rule 26.2. Finally, the government claims
that any mental heaith testimony regarding Patterson’s alleged reverse-sting operation should be
excluded as irrelevant.

Under Rule 12.2 of the Federal Rules of Criminal Procedure, a defendant who intends to
assert an insanity defense must provide written notice to the government prior to trial.
FED.R.CRIM.P. 12.2(a). In addition, the defendant must present written notice of his intent to

introduce expert testimony relating to a mental disease or defect, or any other mental condition


related to guilt or innocence, including the name of the expert witness(es) and the general substance
of that witness's testimony. FED.R.CRIM.P. 12.2 (b); United States v. Buchbinder, 796 F.2d 910, 915
(7th Cir. 1986). Although the court may, for good cause, allow the defendant to file such notice
late or grant additional trial preparation time upon such notice, a defendant who fails to provide
pretrial notice may be precluded from asserting such a defense at trial. Id. Furthermore, under Rule
12.2, when a criminal defendant provides notice of an intent to present an insanity defense or expert
evidence of a mental condition, the government may move pursuant to 18 U.S.C. § 4242 for an
order requiring the defendant to undergo an examination by a mental health expert retained by the
government. FED.R.CRIM.P. 12.2(c)(1). Again, ifthe defendant refuses to submit to an examination
under Rule 12.2(c), the court “may exclude any expert evidence from the defendant on the issue of
the defendant’s mental disease, mental defect, or any other mental condition bearing on the
defendant's guilt...” FED.R.CRIM.P. 12.2(d); see also United States v. Campbell, 675 F.2d 815, 820
(6th Cir. 1982) (recognizing authority of court to preclude testimony of defense experts when
defendant refused to submit to government examination); United States v. Byers, 740 F.2d 1104, 1154
n.95 (D.C. Cir. 1984) (recognizing same), citing United States v. Handy, 454 F.2d 885, 888-89 (9th
Cir. 1971); United States v. Baird, 414 F.2d 700, 707 (2d Cir. 1969); United States v. Harding, 219
F.R.D. 62, 64 (S.D.N.Y. 2003) (precluding introduction of defense mental health expert in light of
defendant’s refusal to submit to examination by government expert).

The government argues that the defense has not formally complied with the notice
requirement of Rule 12.2(b), which requires the defendant to provide notice of any expert evidence
related to his mental condition, including the name of any expert witnesses and the general
substance of each witness's testimony. Buchbinder, 796 F.2d at 915. To date, the defense has

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provided no such notice. Not until June 27, 2005, in response to the government's motion in limine,
did the defense first indicate in writing that it intended to use evidence of a mental defect for reasons
other than an insanity defense. (Defendant’s Response to Government's Oral Motion in limine to
Exclude Any Evidence of Mr. Patterson’s Mental Disease or Defect, Docket No. 178-1.) The
response states that “Mr. Patterson has asserted that he did not conspire to distribute a controlled
substance, but rather that this mental defect caused him to attempt to conduct a reverse-sting.” (Id.
at 3.) As the government notes, however, this motion did not indicate which, if any, experts the
defense will call or what expert evidence it will introduce, nor the nature of this testimony or
evidence.

Although defense counsel has not given formal written notice of any expert evidence, they
have suggested on many occasions that they intend to mount some sort of mental status defense.
In light of this, counsel might argue that the government has received actual notice of their intent
to introduce expert evidence regarding Patterson's mental state. As the Seventh Circuit has
explained, however, the fact that the government may have received some sort of oral notice or
indication that the defense intends to introduce such evidence does not excuse the failure to submit
written notice under Rule 12.2(b). Buchbinder, 796 F.2d at 913. In Buchbinder, defense counsel
argued that he had complied with the spirit of Rule 12.2 by telling the government months prior to
the trial that he “intended to explore the possibility of a psychiatric examination” and by later
informing the government that defendant was to undergo such an examination. Id. at 915, In
rejecting the suggestion that these oral statements were sufficient, the court noted that “[t]hese
statements merely informed the government that {defendant] may present expert testimony; this
‘notice’ never apprised the government that the defense would in fact present expert witnesses or the

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