NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________________

 )

UNITED STATES OF AMERICA, ) 

 )

Plaintiff, )

 ) Crim. Action No. 08-629 (GEB)

v. )

 ) MEMORANDUM OPINION 

ROBERT SACKS, et. al., )

 )

Defendants. )

______________________________________)

BROWN, Chief Judge

This matter comes before the Court upon the Government’s motion in limine (Docket Entry

No. 143) to preclude the expert reports of Dr. Larry Pollock, Dr. A. David Axelrad, and Dr. Henry

I. Spitz. The Court has reviewed the parties’ submissions and the expert reports and heard oral

argument on October 29, 2009, and for the reasons set forth below and stated on the record on

November 12, 2009, the Court will grant in part and deny in part the Government’s motion.

I. BACKGROUND

On September 10, 2008, the United States filed a sealed indictment, charging the defendant

Robert Sacks (“Defendant”) among other co-defendants with conspiracy to commit mail fraud, wire

fraud, mail fraud, conspiracy to commit bank fraud, and aggravated identitytheft. (Docket EntryNo.

1.) A superceding indictment was filed on October 8, 2009, charging Defendant with: (1) conspiracy

to commit mail and wire fraud, in violation of 18 U.S.C. §1349 (“Count One”); (2) wire fraud, in

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violation of 18 U.S.C. §1343 and 18 U.S.C. § 2 (“Counts Two through Nineteen”); (3) mail fraud,

in violation of 18 U.S.C. §1341 and 18 U.S.C. §2 (“Counts Twenty through Twenty-Three”); (4)

conspiracy to commit bank fraud, in violation of 18 U.S.C. §1344 and 18 U.S.C. §1349 (“Count

Twenty-Four”); and (5) aggravated identity theft, in violation of 18 U.S.C. §1028A(a)(1) and 18

U.S.C. §2 (“Counts Twenty Five through Forty-Two”). (Docket Entry No. 125.) In short, the

Government alleges that Defendant participated in a fraudulent telemarketing business “to defraud

and attempt to defraud . . . financial institutions and . . . their account holders out of tens of millions

of dollars by debiting or attempting to debit tens of thousands of bank accounts throughout the

United States without the knowledge, authorization or permission of the account holders.” 

(Superceding Indictment ¶1.) 

On October 16, 2009, the Court granted Defendant’s application to add additional counsel,

George J. Parnum, Esq., who Defendant stated would be an addition to his defense team and that his

current defense attorney, Edward V. Sapone, Esq., would remain his attorney, as well. Mr. Parnum

sought a continuance of the trial date of November 10, 2009, in order for Defendant to be evaluated

by psychological experts. The Court balanced the respective arguments raised by the parties in favor

of and against the request for a continuance, granted the request, and set the new trial date for

December 1, 2009(Docket EntryNo. 134.) Jury selection was later set for November 30, 2009. The

trial now is scheduled to begin January 4, 2010, and no further adjournments are anticipated.

The Government brings this motion in limine pursuant to United States v. Pohlot, 827 F.2d

889 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988), asking for the Court’s determination

regarding the admissibility of Defendants’ three offered expert reports. 

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II. DISCUSSION

A. The Pohlot Standard

“District Courts have broad discretion to exclude expert testimony that is not offered as part

of an insanity defense or to negate the mens rea element of a crime.” United States v. Baxt, 74 F.

Supp. 2d 436, 441 (D.N.J. 1999), aff’d, 265 F.3d 1057 (3d Cir. 2001) (citing United States v.

Bennett, 161 F.3d 171, 182 (3d Cir. 1998); United States v. DiDomenico, 985 F.2d 1159, 1163 (2d

Cir. 1993); United States v. Erksine, 588 F.2d 721, 722 (9th Cir. 1978)). Further, “[t]he burden that

must be met for expert psychiatric testimony to be admitted is a substantial one” that “falls squarely

on the defendant.” Baxt, 74 F. Supp. 2d at 441. 

Expert psychological testimony can be admitted to negate the mens rea element of an offense

in limited circumstances. In United States v. Pohlot, the Third Circuit determined that evidence of

a mental disease or defect is not prohibited by the Insanity Defense Reform Act of 1984 (“IDRA”)

if it serves to negate the mens rea element of a criminal statute. Pohlot, 827 F.2d at 897. However,

the court warned that “the strict use of psychiatric evidence to negate mens rea may easily slide into

wider usage that opens up the jury to theories of defense more akin to justification.” Id. at 905. In

light of this “strong danger of misuse” district courts “should admit evidence of mental abnormality

on the issue of mens rea only when, if believed, it would support a legally acceptable theory of mens

rea.” 827 F.2d at 905-06. The Third Circuit distinguished between admissible evidence that truly

negates mens rea and inadmissible evidence going toward “diminished capacity” and “diminished

responsibility,” which are defenses of justification or excuse. Id. at 905. Pohlot made clear that the

district courts are required to “carefully scrutinize psychiatric defense theories bearing on mens rea”

because “[p]resenting defense theories or psychiatric testimony to juries that do not truly negate

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mens rea may cause confusion about what the law requires.” Id. at 890. Courts should perform this

evaluation “outside the presence of the jury.” Id. at 906. The Pohlot court also stated:

“Criminal responsibility must be judged at the level of the conscious. If a person

thinks, plans and executes the plan at that level, the criminality of his act cannot be

denied, wholly or partially, because, although he did not realize it, his conscious was

influenced to think, to plan and to execute the plan by unconscious influences which

were the product of his genes and his lifelong environment.”

Pohlot, 827 F.2d at 906 (quoting State v. Sikora, 44 N.J. 453 (1965)).

“There is an important distinction between ‘evidence that a defendant lacks the capacity to

form mens rea and evidence that the defendant actually lacked mens rea at the time of the offense,’”

and therefore, “the court must focus ‘on the proffered link or relationship between psychiatric

evidence offered and the mens rea at issue in the case.’” United States v. Richards, 9 F. Supp. 2d

455, 458 (D.N.J. 1998), aff’d, 262 F.3d 405 (3d Cir. 2001). In Richards, the district court

determined that the expert testimony was inadmissible because the expert proffered that the

defendant was depressed and “failed to establish the requisite link between the specific psychiatric

evidence and the lack of mens rea.” Id. at 459 (addressing the proffered expert testimony with

respect to the specific intent element of the crime charged and finding that “[i]t [was] not pertinent

whether he actually knew that he was committing a crime” because “[i]gnorance of the law is no

excuse”). “Expert psychiatric testimony concerning ‘unconscious motivation,’ ‘impaired volitional

control,’ or an ‘inability to reflect on the ultimate consequences of one’s conduct’ is inadmissible.” 

United States v. Baxt, 74 F. Supp. 2d at 440 (citation omitted). Likewise, “[c]onclusory statements

by a defendant about the link between psychiatric evidence and the defendant’s mens rea at the time

the alleged crime was committed do not render evidence admissible.” Id. (citation omitted). “[N]o

amount of honest belief that the enterprise should ultimately make money can justify baseless, false

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or reckless misrepresentations or promises.” United States v. Mezvinsky, 206 F. Supp. 2d 661, 667

(E.D. Pa. 2002).

In contrast, United States v. Mister, 553 F. Supp. 2d 377 (D.N.J. 2008), held that expert

testimony regarding the defendant’s low intellectual functioning was admissible under Pohlot, but

that evidence regarding the defendant’s “suggestibility” was not admissible. The court in Mister

cited the Third Circuit's decision in United States v. Hayden, 64 F.3d 126 (3d Cir. 1995) for the

proposition that “[e]vidence of low intelligence and reading ability is generally relevant in

determining knowledge and is usually a jury question.” Mister, 553 F. Supp. 2d at 387 (citation

omitted). Judge Simandle, writing in Mister, distinguished this Court’s prior decision in United

States v. Montgomery, 207 U.S. Dist. LEXIS 72614 (D.N.J. Sept. 28, 2007), which the Government

has relied upon, stating that, “the expert will not opine at all on whether or why Defendant engaged

in certain conduct, but will only explain to the jury Defendant's impaired intellectual functioning.” 

Mister, 553 F. Supp. 2d at 387. The defendant in Mister also sought to offer evidence that the

“[d]efendant acts to please others and will change his behavior easily under pressure from others,

regardless of what he knows.” Id. at 388. The court concluded that “whether [the d]efendant is

suggestible is not relevant to whether he knew the purpose of the conspiracy or of the payments and

therefore the psychological evidence of suggestibility is inadmissible under Pohlot, Baxt, Richards,

and Montgomery.” Id. 

B. The Parties’ Arguments

Defendant, in support of his argument that the expert testimony is admissible, states that the

central point to be tried in the case is whether Defendant had the requisite knowledge and intent to

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deceive while participating in the scheme alleged. (Def.’s Br. at 2.) Defendant argues that Dr.

Pollock’s, Dr. Axelrad’s, and Dr. Spitz’s diagnoses and evaluations of Defendant should be deemed

admissible under Pohlot because “[t]he findings and diagnoses . . . will assist a jury in understanding

the cognitively crippling characteristics of the mental condition that [Defendant] possessed

throughout his childhood and into adulthood” and will “shed light on [Defendant’s] cognitive

abilities, which bear directly on the issue of knowledge and intent.” (Def.’s Br. at 16.) Defendant

relies heavily on the district court’s holding in Mister in support of its arguments. Defendant also

attached supplemental reports to his brief from Drs. Pollock and Axelrad. 

The Government, in its response letter, argues that the Court should not rely on United States

v. Hayden, 64 F.3d 126 (3d Cir. 1995), because an assessment of the expert testimony under Pohlot

was not at issue. (Gov’t Reply Letter at 4.) The Government also argues that the supplemental

reports from Drs. Pollock and Axelrad that Defendant supplied with his brief are conclusory and

should be viewed as “nothing but a generalized mental incapacity defense that has been squarely

rejected by the courts.” (Id. at 2.) 

The Government argues in its motion papers that the Court should exclude the reports and

testimony of the three experts at issue because each report fails to meet the standards set forth in

Pohlot and its progeny. (Gov’t Br. at 1.) It maintains that the experts “proffer only a generalized

mental incapacity/diminished capacitydefense that either bears no relationship to the intent elements

of the charged crimes or is patently inconsistent with Defendant’s own sworn testimony.” (Id.) The

Government argues that the Defendant’s experts have not “tied or linked hypomanic bi-polar

disorder, forceps trauma or borderline IQ to an individuals capacity to deceive” and have also failed

to specifically link these conditions to Defendant or to Defendant’s state of mind “at the time the

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offense was committed – as is required by law (and mandated by their burden).” (Id. at 15-16.) The

Government avers that “there is absolutely no reason in this case to conduct that inquiry [into

whether Defendant had the genuine incapacity to comprehend the goals and objectives of the

scheme] because Defendant Sacks already has conceded, under oath, that he has the capacity to

understand the concept of an unauthorized account withdrawal” and that this point “was the sole

issue before this Court during the bail revocation hearing that occurred on October 2, 2009.” (Id.

at 18.) 

In its letter brief in response, Defendant argues that “[t]he Government . . . mischaracterizes

the issue before the Court,” which is “whether Mr. Sacks had knowledge of the asserted conspiracy

and fraudulent scheme.” (Def.’s Reply Letter at 1.) Defendant reiterates its reliance on United

States v. Hayden, 64 F.3d 126 (3d Cir. 1995) in support of its arguments that evidence of borderline

intelligence is admissible and relevant to the jury’s evaluation of a defendant’s mens rea. (Id. at 2.) 

Defendant maintains that “[n]o expert will testifythat Mr. Sacks was unaware of the transactions that

occurred,” and no expert with testify that Defendant “did not understand the concept of fraud, or that

withdrawing money of others without their permission is wrong.” (Id.) Defendant avers that the

defense experts “thoroughly and holistically described their evaluation” and that “the Government’s

objections appear to be arguments addressed to weight rather than admissibility.” (Id. at 4.) 

C. Analysis

1. The Pertinent Mens Rea

Defendant has been charged with conspiracy to commit mail and wire fraud, wire fraud, mail

fraud, conspiracy to commit bank fraud, and aggravated identity theft. The fraud offenses require

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that the Government, at trial, prove beyond a reasonable doubt that Defendant had the “intent to

defraud,” which means “to act knowingly and with the specific intent to deceive, for the purpose of

causing some financial or property loss to another.” Mezvinsky, 206 F. Supp. 2d at 667-68

(recognizing that the defendant’s “mens rea defense, therefore, must be probative as to whether he

had the mental capacity to form such an intention over the . . . course of his alleged . . . schemes to

defraud”) (citations omitted). Further, for the charges alleging conspiracy, the government must

prove beyond a reasonable doubt: (1) Defendant “knew of the objectives or goals of the conspiracy;”

(2) Defendant “joined the conspiracy intending to help further or achieve . . . those goals or

objectives;” and (3) Defendant “and at least one other alleged conspirator shared a unity of purpose

toward those objectives or goals.” (Gov’t Br. at 17); see also United States v. Inigo, 925 F.2d 641,

652 (3d Cir. 1991)(citing United States v. Terselich, 885 F.2d 1094, 1097 (3d Cir. 1989)). Finally,

with respect to the charges alleging aggravated identity theft, the Government must prove beyond

a reasonable doubt that Defendant acted knowingly. See 18 U.S.C. § 1028(A); Flores-Figueroa v.

United States, 129 S. Ct. 1886, 1890-91 (2009).

Therefore, the two elements of mens rea for these charges that the Court must consider are

the “specific intent to deceive” and that Defendant acted “knowingly.” Regarding the specific intent

to deceive, “a defendant must do more than knowingly act;” he “must also act with the purpose of

violating the law.” United States v. Kimes, 246 F.3d 800, 806-07 (6th Cir. 2001) (citations and

internal quotes omitted). With respect to the mens rea of “knowingly”, the Third Circuit defined

“knowingly” as “[a]n act . . . done voluntarily and purposely and not by accident or mistake.” United

States v. Montgomery, No. 08-1077, 2009 U.S. Dist. LEXIS 15725, at *10 (3d Cir. July 15, 2009)

(citing to the record and addressing the jury instruction required for obstruction).

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2. The Proffered Testimony 

Defendant maintains that Dr. Axelrad’s assessment of Defendant should be deemed

admissible. Dr. Axelrad’s diagnosis and evaluation of Defendant is based on Dr. Axelrad’s forensic

psychiatric consultation of Defendant and information learned about Defendant from other people,

and the administration, results, and analysis of the following: (1) a structured clinical interview for

DSM-IV Axis I Psychiatric Disorders (SCID-I); (2) a structured clinical interview fo DSM-IV Axis

II Personality Disorders (SCID-II); and (3) Dr. Pollock’s report and findings. (Axelrad’s Report at

2.) Dr. Axelrad also reported that he interviewed Defendant’s assistant Ginger Hetrich, and that he

received information from Defendant’s mother and attorney about Defendant. (Id. at 11.) Dr.

Axelrad concluded that Defendant “demonstrated significant evidence of affective dysfunction

during the course ofthe clinical psychiatric interviews,” that his “affective behaviorwas disordered,”

and that he displayed “hypomanic behavior.” (Id. at 22-23.) Dr. Axelrad also reported that

Defendant “appear[s] to have significant problems associated with his cognitive functioning.” (Id.

at 23.) Dr. Axelrad reiterated Dr. Pollock’s findings and conclusions as part of his report. (Id. at 26.) 

Dr. Axelrad concluded that “Defendant does meet the diagnostic criteria for a Bipolar I Disorder”

and has Dementia due to head trauma. (Id. at 26-27.) Dr. Axelrad notes that his diagnosis of

dementia due to head trauma is based upon Defendant’s mother’s statement that he was delivered

with forceps when he was born and had bruising on his head as a result. (Id. at 28.) Further, Dr.

Axelrad states that these conditions, Bipolar I Disorder and Dementia due to head trauma, “did

substantially impair [Defendant’s] cognitive behavior and judgment on or around the time of his

involvement in the telemarketing activities,” that he “would have grave difficulty in understanding

the nature of the actions involved in the various complaints,” and that “Defendant would have been

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unable to fully grasp the criminal nature of the activities perpetrated in the alleged offense” and

“would have been significantly further disrupted by the dysfunction associated with his Bipolar I

Disorder.” (Id. at 29.)

Defendant argues that Dr. Pollock’s diagnosis and evaluation of Defendant, which relies on

the administration, results, and analysis of the Wechsler Adult Intelligence Scale - Fourth Edition

(“WAIS-IV”), the Wide Range Achievement Test - Fourth Edition (“WRAT4”), the Minnesota

Multiphasic Personality Inventory (“MMPI-2”), the Beck Depression Inventory (“BDI”), the Beck

Anxiety Inventory (“BAI”), the Conners’ Continuous Performance Test II (“CPT II V.5”), and the

Project ReEntry Neuropsychological Battery II, including an Auditory/Language, Visual/Spatial,

Tactile/Perception, Motor Function, Memory, and Executive Functions Assessments, should be

deemed admissible. (Pollock’s Report at 1.) Dr. Pollock concludes that Defendant’s “intellectual

abilities are in the Borderline range of intelligence and his academic functioning ranged from mildly

deficient to low average.” (Id. at 8.) Dr. Pollock states that Defendant is depressed and anxious due

to the instant proceedings. (Id.) He also concluded that the “neuropsychological evaluation revealed

significant neurocognitive impairments” and that Defendant’s “long-standing mental disorder that

is characterized by an elevated mood, high energy, impulsivity, and grandiose thinking” . . .

overwhelm his judgment.” (Id. at 9.) Dr. Pollock summarized his conclusions, stating:

Mr. Sacks has Borderline Intellectual Functioning and poor academic skills. 

He has problems with language, visual skills, memoryand executive functioning. He

is impulsive and impressionable and is easily taken advantage of. He reported that

he had been “scammed” many times. He has poor judgment and poor insight and

often gets into deals that do not turn out well. He has been unable to learn from his

mistakes. He craves attention and excitement and is easily bored.

(Id.) 

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Finally, Defendant argues that Dr. Spitz’s report is admissible. It lists “numerous instances

of financial dealings in which [Defendant] has lost money or feels he has been exploited in some

way.” (Spitz’s Report at 1.) He reports that Defendant has “a history of Attention Deficit Disorder

that dates back to early childhood,” that “he has a mood disorder best diagnosed as Bipolar

Disorder,” and that his symptoms of that disorder “have interfered with his judgment, his ability to

understand the consequences of his choices and to interfere with his interpersonal relationships.” 

(Id.) According to Dr. Spitz, Defendant has an “excessive need for approval, low self-esteem and

social isolation” which makes him try “to please people so theywill like him and think well of him.” 

(Id.) Finally, Dr. Spitz observes that Defendant “does not seem to learn from negative experiences.” 

(Id.) 

3. Application

Dr. Axelrad’s report, on its face, does not meet the standard of admissibility set forth in

Pohlot and its progeny. Dr. Axelrad concluded that Defendant suffers from Bipolar I Disorder and

Dementia due to head trauma. However, the symptoms of Bipolar Disorder do not negate the mens

reas that are at issue in this case. Specifically, Dr. Axelrad opined that “deficiencies in

concentration, persistence, and pace would have significant impact upon [Defendant’s] ability to

exercise good business judgment in developing business associations with others.” (Axelrad Report

at 32.) Dr. Axelrad’s conclusion that Defendant’s business judgment is affected is precisely the type

of psychological evidence that Pohlot prohibits as it in no way relates to an intent to deceive or one’s

knowledge of particular events. Further, with respect to the diagnosis of Dementia due to head

trauma, Dr. Axelrad’s report does not specifically outline the extent of this dementia, and insofar as

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certain symptoms are described, namely that it has affected his “concentration, persistence, and

pace,” (Axelrad Report at 32), they also do not negate the mens reas at issue, shed no light on

Defendant’s intent to deceive, and would fail to affect Defendant’s capacity to act voluntarily and

purposely and not by accident or mistake. Forthese reasons, the entirety of Dr. Axelrad’s report fails

to meet the standard set forth in Pohlot and its progeny and will be excluded at trial. In this respect,

the Government’s motion is granted.

With respect to Dr. Pollock’s proffered testimony, to the extent that his testing indicated that

Defendant has Borderline Intellectual Functioning, perceptual deficiencies, and an I.Q. of 80, it is

admissible. See United States v. Hayden, 64 F.3d 126 (3d Cir. 1995) (holding that “[e]vidence of

low intelligence and reading ability is generally relevant in determining knowledge and is usually

a jury question”). In United States v. Mister, Judge Simandle based his decision largely upon the

Third Circuit’s opinion in Hayden, determining that the expert testimony regarding the defendant’s

low intellectual functioning was admissible under Pohlot, he noted the holding in Hayden:

“[e]vidence of low intelligence and reading ability is generally relevant in determining knowledge

and is usually a jury question.” Mister, 553 F. Supp. 2d at 387 (citation omitted). Therefore, as in

Mister, so long as Dr. Pollock does “not opine at all on whether or whyDefendant engaged in certain

conduct, but . . . only explain[s] to the jury Defendant’s impaired intellectual functioning,” then the

material is admissible. Mister, 553 F. Supp. 2d at 387. 

The Government has not cited any case where this type of evidence for this particular mens

rea, “knowledge,” has been submitted to a court that subsequently determined it to be inadmissible. 

Rather, the Government argues that Hayden does not control because it did not address expert

testimony specifically. In Hayden, the defendant sought to introduce evidence of his low intelligence

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and reading levels. 64 F.3d at 128. Hayden had been arrested for trying to buy a gun while he was

under indictment by information. Id. at 127-28. Apparently, when the defendant signed a form

applying to buy the gun, which asked whether he was “under indictment or information in any

court,” the defendant answered “no.” Id. However, the defendant indeed had previously received

an information, charging him with receiving stolen property and with unauthorized use of an

automobile a month prior, and he signed his name on the bottom indicating that he understood its

contents. Id. at 127. According to a careful reading of the Third Circuit’s opinion in Hayden, the

defendant attempted to introduce his own testimony and that of his experts about his low intelligence

and reading levels, arguing that due to his low intelligence and reading levels, “he did not know he

was violating the law.” Id. at 128. Ultimately, the Third Circuit held that because “the government

must prove Hayden knew or deliberately disregarded the fact that he was under an information and

that his purchase of a firearm was unlawful . . . the excluded evidence had a direct bearing on

willfulness and was improperly excluded.” Id. at 134. “Knowledge” is an element that must be

found to find the mens rea “willfulness” in this context, and the Third Circuit expressly considered

that element when making its determination.

The Government also states that the general rules set forth in Pohlot and Montgomery

control. However, in Pohlot, the mens rea element at issue was the specific intent element of

“purposeful” conduct, in the context of the defendant contracting to kill his wife. 827 F.2d at 890.

Pohlot's defense was that he had been abused by his wife, and as a result, he had a psychological

inability to respond, which in turn led to his attempt to "fight back," a fantasy, and not truly a plan

to kill his wife. Id. at 893. The mens rea of “knowledge” was never addressed. Further, in

Montgomery, the Third Circuit addressed this Court’s exclusion of expert evidence that the

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defendant had post traumatic stress disorder, an unspecified personalitydisorder, and was “likelynot

capable of organized clear thought” due to the post traumatic stress disorder. 2009 U.S. App. LEXIS

15725, at *9. The Third Circuit held that the evidence “does not negate the mens rea for any of the

crimes,” which were deprivation of civil rights, conspiracy to obstruct justice, and obstruction of

justice. Id. at *10.

Although theGovernment hasstrenuouslyargued that Defendant’s own testimonycontradicts

this defense theory, and that at his bail hearing Defendant testified that he did understand the concept

of an unauthorized account withdrawal, these are matters for the jury to consider at trial.

On the other hand, Defendant, in his brief, not only cites to Mister and Hayden, but he also

draws the Court's attention to matters in other jurisdictions that have addressed this issue and

admitted evidence of low intelligence where the relevant mens rea was “knowing.” See United

States v. Lamarre, 248 F.3d 642 (7th Cir. 2001), cert. denied, 533 U.S. 963 (2001) (where the

relevant mens rea was the “specific intent to defraud,” the Seventh Circuit reversed the district

court’s decision to exclude evidence of the defendant's borderline intellectual functioning because

it was “scientifically valid social science” pursuant to Daubert); United States v. Rahm, 993 F.2d

1405 (9th Cir. 1993) (holding that expert testimony regarding the defendant's perceptual difficulties

and low intelligence where “knowledge” was the mens rea at issue should have been admitted in the

district court pursuant to Federal Rule of Evidence 702); United States v. Williams, 2009 U.S. Dist.

LEXIS 13472, at *31 (D. Haw. Feb. 2, 2009) (addressing evidence of borderline intellectual

functioning and brain damage at a Daubert hearing and holding that whether the defendant's low

intelligence “affected his capacity to form the requisite mens rea at the time periods at issue is a

question of fact and accordingly lies within the province of the jury”). 

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In addition, the Third Circuit states in its written opinion in Hayden that “[a]ny use of expert

testimony on remand must . . . comply with Federal Rule of Evidence 704(b)." 64 F.3d at 134 n.13. 

Therefore, the Third Circuit contemplated in Hayden that on remand the defendant may seek to

admit expert testimony and that it would be subject to a Daubert hearing and other objections based

on the Federal Rules of Evidence. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579

(1993). Because this Court has yet to make such an inquiry under Daubert, the Court cannot

determine whether or not the findings and conclusions of Dr. Pollock in this respect would meet that

standard or will ultimately be admissible at trial. 

Likewise, to the extent that Dr. Pollock has opined regarding Defendant’s characteristics of

being “impulsive and impressionable and . . . easily taken advantage of;” that he has been the victim

of scams; that he cannot learn from his mistakes; that “[h]e craves attention and excitement and is

easily bored;” and that his pattern to seek pleasurable activities “overwhelm his judgment,” this

proffered testimony does not meet the standard set forth in Pohlot and its progeny. This is precisely

the type of evidence that the court in Mister rejected. Therefore, such commentary from Dr. Pollock

is inadmissible.

Finally, with respect to Dr. Spitz’s proffered testimony, the Court concludes that it is wholly

inadmissible under Pohlot and its progeny. Like Dr. Axelrad’s report, the findings and conclusions

would not negate the mens reas of either an intent to deceive or inform the jury regarding

Defendant’s knowledge. This is precisely the type of evidence has been expressly rejected by the

District Courts in United States v. Baxt, 74 F. Supp. 2d at 440, and United States v. Mezvinsky, 206

F. Supp. 2d at 667. Full of conclusory statements, it seeks to justify Defendant’s behavior and

describes Defendant’s unconscious motivations, impaired volitional control, and his inability to

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reflect on the ultimate consequences of his conduct, which is impermissible.

III. CONCLUSION

For the foregoing reasons, the Government’s motion in limine is granted in part and denied

in part. An appropriate form of order accompanies this opinion.

Dated: November 23, 2009

 s/ Garrett E. Brown, Jr. 

GARRETT E. BROWN, JR., U.S.D.J.

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