BARRY J. PORTMAN

Federal Public Defender

DANIEL P. BLANK

Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA  94102

Telephone:  (415) 436-7700

 

Counsel for Defendant XXXX

 

 

 

 

 

IN THE UNITED STATES DISTRICT COURT

 

FOR THE NORTHERN DISTRICT OF CALIFORNIA

 

 

UNITED STATES OF AMERICA,

                                             Plaintiff,

v.

XXXX XXXX XXXX,

 

                                        Defendant.

 

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No. CR 00-0000 ABC

 

DEFENDANT=S MOTION TO PERMIT EXPERT TESTIMONY REGARDING HIS SUSCEPTIBILITY TO INDUCEMENT

 

 

 

 

 

 

 

INTRODUCTION AND FACTUAL BACKGROUND

Defendant XXXX XXXX XXXX, a long-term heroin addict, is pursuing a defense of entrapment against the narcotics charges facing him.  In support of that defense, Mr. XXXX seeks to introduce expert testimony regarding his particular susceptibility to inducement by the government to commit the alleged offenses.

Mr. XXXX has been examined by Dr. Gregory Hayner, a pharmacologist and expert in the field of drug addiction and rehabilitation.  Based upon this examination, and the review of other materials, including Mr. XXXX= criminal history and record of drug treatment, Dr. Hayner has developed an opinion regarding Mr. XXXX= susceptibility to inducement.  Mr. XXXX has provided notice to the government of his intent to introduce expert testimony regarding his mental condition

at the time of the alleged offenses.  The Court should admit this expert testimony.

ARGUMENT

EXPERT TESTIMONY REGARDING MR. XXXX= SUSCEPTIBILITY TO INDUCEMENT IS RELEVANT AND ADMISSIBLE PURSUANT TO FEDERAL RULES OF EVIDENCE 702 AND 405

 

Mr. XXXX seeks to introduce the expert testimony of Dr. Gregory Hayner regarding his susceptibility to inducement.  This testimony is relevant to his defense of entrapment and is admissible pursuant to Federal Rules of Evidence 702 and 405.  In addition, Federal Rule of Criminal Procedure 12.2(b) explicitly recognizes that such testimony is admissible and mandates notification of the intent to introduce it.  Accordingly, the Court should admit the testimony into evidence.

Federal Rule of Evidence 702 provides for the testimony of expert witnesses.  Numerous courts have held that expert testimony regarding a defendant=s susceptibility to inducement and lack of predisposition may be relevant to an entrapment defense and is admissible under Rule 702 at the discretion of the trial court.  See, e.g., United States v. Benveniste, 564 F.2d 335, 339 (9th Cir. 1977); see also United States v. Bastanipour, 1993 WL 359933 (N.D.Ill. 1993) at *1 (admitting expert testimony regarding defendant=s susceptibility to entrapment).  For example, the court in United States v. Hill, reversed the defendant=s conviction for distribution of heroin on the grounds that the district court erred by refusing to allow him to introduce expert testimony under Rule 702 regarding his susceptibility to entrapment unless the defendant himself testified first.  655 F.2d 512, 518 (3d Cir. 1981).

The court in Hill further noted that the expert testimony would also be admissible under Federal Rule of Evidence 405(a), which provides for opinion evidence to prove a relevant character trait.  See id. at 516.  As the Hill court explained, A[t]he character trait of susceptibility to inducement is an element of the defense offered here, the burden of negating this resting on the government.@  Id. at 516-17.  Thus, under both Rule 702 and Rule 405, the court held that Athe exclusion of expert opinion testimony in an entrapment defense of defendant=s unusual susceptibility to suggestion was improper.@  Id. at 517.

Finally, the advisory committee notes to Federal Rule of Criminal Procedure 12.2(b), as amended in 1983, recognize the admissibility of expert testimony regarding susceptibility to inducement.  Rule 12.2(b) requires notice by the defendant of an intent to introduce Aexpert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing upon the issue of guilt.@  Citing the decision in Hill, the advisory committee notes to the 1983 amendment to Rule 12.2(b) expressly state that expert testimony regarding the susceptibility to inducement, offered to reinforce an entrapment defense, is covered by the disclosure requirements of the rule.

Mr. XXXX has a mental condition that bears upon the issue of his guilt.[1]  In support of his entrapment defense, Mr. XXXX seeks to introduce the expert testimony of Dr. Gregory Hayner regarding that mental condition and his resulting susceptibility to inducement.  The Court should permit Mr. XXXX to introduce this testimony pursuant to Federal Rules of Evidence 702 and/or 405(a).

CONCLUSION

For the aforementioned reasons, the Court should permit the expert testimony of Dr. Gregory Hayner regarding Mr. XXXX= susceptibility to inducement.

Dated:

 

Respectfully submitted,

 

BARRY J. PORTMAN

Federal Public Defender

 

 

 

DANIEL P. BLANK

Assistant Federal Public Defender

 


[1]  Specifically, Mr. XXXX suffers from an opioid-related disorder.  See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 247-55 (4th ed. 1994).