Opinion
Crim. No. 02-151 (JNE/RLE)
April 2, 2003
ORDER
This matter comes before the Court on Roger Leigh Oehler's second Motion for New Trial pursuant to Fed.R.Crim.P. 33. Oehler asserts that a report prepared by a licensed psychologist more than two months after his trial constitutes newly discovered evidence warranting a new trial. For the reasons given below, the Court denies the motion.
Oehler requested a hearing on his motion. A district court has "broad discretion" in deciding whether to hold an evidentiary hearing on a motion for a new trial based on newly discovered evidence. United States v. LaFuente, 991 F.2d 1406, 1409 (8th Cir. 1993); United States v. Cardarella, 588 F.2d 1204, 1205 (8th Cir. 1978). Absent "exceptional circumstances," such a motion can be decided without a hearing. United States v. Dogskin, 265 F.3d 682, 687 (8th Cir. 2001); United States v. Provost, 969 F.2d 617, 619 (8th Cir. 1992). In this case, an evidentiary hearing is not warranted.
BACKGROUND
On May 8, 2002, a grand jury returned an indictment charging Oehler with 30 counts of presenting a fictitious obligation with intent to defraud in violation of 18 U.S.C. § 514(a)(2) (2000), and five counts of willfully making a false statement in violation of 26 U.S.C. § 7206(1) (2000). The fictitious obligation charges arose from Oehler's use of fake sight drafts drawn on the United States Treasury. Oehler used the sight drafts to pay his child support obligations, property taxes, and income taxes, and to obtain cash from banks and credit card companies in 1999 and 2000. The false statement charges are based on Oehler's filing of false Internal Revenue Service Forms 8300 in 1999 and 2000.At a pretrial status conference held on May 22, 2002, Oehler declared his intention to proceed pro se, and Jordan S. Kushner, Esq., was appointed as Oehler's standby counsel. Two days later, the Honorable Raymond L. Erickson, United States Magistrate Judge, held a hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), to determine whether Oehler wished to waive his right to counsel. At the Faretta hearing, the Magistrate Judge advised Oehler of the risks of proceeding without legal counsel. In particular, Oeher was advised that "his best interests in presenting an effective defense to the charges against him [would be] seriously jeopardized" if he waived his right to counsel, that "proceeding without legal counsel [would be] unwise, . . . and that his best interests would be served in accepting the legal counsel that [had been] offered to him," and that, "without having [the advice of legal counsel], his defense . . . would suffer." Moreover, the Magistrate Judge "strongly urge[d]" and even "implore[d]" Oehler not to waive his right to counsel. Oehler, undeterred by this advice, persisted in his desire to proceed pro se. In an Order dated May 28, 2002, the Magistrate Judge concluded that Oehler had "knowingly, voluntarily, unequivocally, and intelligently waived his right to counsel," granted Oehler's request to represent himself, and directed Kushner to continue as standby counsel.
On July 10, 2002, during a hearing on a motion by the Government to revoke Oehler's pretrial release, the Magistrate Judge asked Oehler whether he had ever suffered mental illness or sought psychiatric treatment. Oehler responded that he had not. The Magistrate Judge, citing Oehler's behavior throughout the case, such as his representations that he was not Oehler, but rather the "secured party" of Oehler, then expressed concern that Oehler might have a split personality. Nevertheless, in an Order dated July 11, 2002, the Magistrate Judge stated that "[g]iven the totality of the circumstances," there was no "reasonable cause to believe that [Oehler] may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." This statement tracks the language of 18 U.S.C. § 4241(a) (2000), which sets the standard for ordering a hearing to determine a criminal defendant's mental competency. The Magistrate Judge also stated that there was "no reasonable cause to believe that [Oehler's] arguments"-including arguments that the federal courts do not have jurisdiction over his actions, that the Internal Revenue Service should be treated as the hostile agent of a foreign government, and that his acts did not violate any law that he recognized-"are the product of some delusion, or mental disease or defect."
Neither party moved for a hearing to determine Oehler's mental competency, but section 4241(a) authorizes courts to order such a hearing sua sponte.
Up to this point, Oehler had not requested any legal advice or assistance from Kushner, and had refused to accept any assistance offered by Kushner. In a declaration, Kushner states that he "wondered" about Oehler's "psychological competence" based on his observations of Oehler at hearings, and that he developed specific concerns that Oehler might have "psychological problems that interfered with his ability to rationally understand the court proceedings" based on Oehler's behavior at the July 10, 2002, hearing.
On July 17, 2002, Oehler discussed the substance of his case with Kushner for the first time. Oehler requested Kushner's assistance in preparing for the trial, which was scheduled to begin on July 23, 2002, but was undecided as to whether he wanted Kushner to represent him. Kushner informed Oehler that Oehler's defense at trial would be founded on his good faith belief that he had acted lawfully. Kushner also told Oehler that he should undergo a psychological evaluation to determine whether there was a psychological explanation for his beliefs. Oehler indicated that he was not interested in submitting to a psychological evaluation because, in Kushner's words, "[Oehler] did not believe that it was an issue." By July 19, 2002, Oehler agreed to allow Kushner to represent him.
A jury trial was held from July 23, 2002, to July 26, 2002. The undersigned presided over the trial. The key issue was whether Oehler intended to commit the charged offenses-that is, whether he presented the fictitious sight drafts with intent to defraud, and whether he willfully made false statements on the Forms 8300. Oehler's primary defense was that he had a good faith belief that the sight drafts were not fictitious, and that the Forms 8300 were not false. At the close of trial, the Court instructed the jury that good faith was a complete defense to the charged offenses. The jury found Oehler guilty of all counts on July 29, 2002.
On August 6, 2002, Oehler moved for a judgment of acquittal or, in the alternative, for a new trial. One of the arguments advanced by Oehler in support of the motion was that the Government had failed to present sufficient evidence to overcome his good faith defense. The Court denied Oehler's motion on August 20, 2002.
On September 12, 2002, the Court, desiring more information about Oehler's mental condition in order to determine an appropriate sentence, ordered that a psychiatric examination and report be completed pursuant to 18 U.S.C. § 3552(c) (2000).
Meanwhile, Kushner continued to urge Oehler to submit to a psychological evaluation to determine whether there was a psychological explanation for his beliefs. Oehler eventually agreed to meet with R. Owen Nelsen, a licensed psychologist selected by Kushner. Nelsen interviewed Oehler on August 16, 2002, and again on September 7, 2002. Nelsen administered two psychological tests, the Minnesota Multiphasic Personality Inventory-2 and a series of Rorschach Inkblots, during those meetings. Nelsen also had several conversations with Oehler's wife, and he reviewed Oehler's indictment, a neuropsychological evaluation of Oehler completed by a psychotherapist in late 1997, and audiotapes of telephone conversations between Oehler and two other men. On September 30, 2002, Nelsen issued a psychological report concluding that Oehler "is suffering from a Delusional Disorder." The report explains that "[a] delusion is a fixed, false belief," and that "[t]he essential feature of Delusional Disorder is the presence of one or more nonbizarre delusions that persist for at least one month." It explains further that, "[a]part from the impact of the delusion or its ramifications, the individual's functioning is not markedly impaired and behavior is not obviously odd or bizarre."
In October 2002, Kushner withdrew from the representation of Oehler, and Oehler retained Steven M. Tallen, Esq. On November 8, 2002, Oehler filed this Motion for New Trial. Oehler claims that Nelsen's report demonstrates that he could not have formed the requisite intent to commit the offenses with which he was charged, and that, had the information in the report been known at the time of trial, Oehler "would have been able to present expert medical testimony regarding the essential element of intent."
In December 2002, the Court received the results of the section 3552(c) psychiatric examination from the Federal Medical Center in Butner, North Carolina (FMC). The FMC's report, dated November 22, 2002, states that a review of the record, including Nelsen's report and conversations with Oehler's wife, indicates that Oehler "likely exhibited delusional thinking at one time." Similarly, it states that "Delusional Disorder most closely meets prior descriptions of [Oehler's] thinking and behavior." Turning to the present, the report notes that Oehler is not as "heavily invested" in his beliefs as he once was, and it rules out a diagnosis of delusional disorder given his "current, more adaptive, functioning." Finally, looking forward, the report advises that "Oehler should be followed by mental health staff over time to determine if, in fact, the diagnosis is accurate. Symptoms of Delusional Disorder can wax and wane over time and are likely to become more pronounced during periods of stress."
II. DISCUSSION
A district court may grant a motion for a new trial "if the interests of justice so require." Fed.R.Crim.P. 33. The decision of whether to grant a motion for a new trial based on newly discovered evidence lies within the "broad discretion" of the district court. United States v. Castillo, 171 F.3d 1163, 1167 (8th Cir. 1999); United States v. McMahan, 852 F.2d 337, 339 (8th Cir. 1988) (per curiam). Such a motion should be granted only if the defendant can show: (1) the evidence was discovered after trial; (2) due diligence would not have revealed the evidence before trial; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence would likely lead to an acquittal. United States v. Fellers, 285 F.3d 721, 725 (8th Cir. 2002); United States v. Zuazo, 243 F.3d 428, 431 (8th Cir. 2001).
Before addressing these requirements, the Court has two preliminary observations about Oehler's evidence. The first relates to the admissibility of expert testimony on the issue of the mental state or condition of a criminal defendant. Federal Rule of Evidence 704(b) provides:
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
In this case, Oehler's mental state or condition was an element of the crimes charged. In connection with the crime of presenting fictitious obligations in violation of 18 U.S.C. § 514(a)(2), the Government had to prove beyond a reasonable doubt that Oehler acted with intent to defraud, which in turn required the Government to prove beyond a reasonable doubt that Oehler knew that the sight drafts he presented were fictitious. In connection with the crime of making false statements in violation of 26 U.S.C. § 7206(1), the Government had to prove beyond a reasonable doubt that Oehler knew that the information he provided on the Forms 8300 were false.
Rule 704(b) would preclude Nelsen from testifying that Oehler did not act with intent to defraud, did not know that the sight drafts were fictitious, did not know that his statements on the Forms 8300 were false, or that he acted in good faith. See, e.g., United States v. Kristiansen, 901 F.2d 1463, 1465 (8th Cir. 1990) (stating Rule 704(b) "prohibits mental health experts from offering an opinion as to whether the defendant possessed the required mental state at the time of their crime"); United States v. Gipson, 862 F.2d 714, 716 n. 4 (8th Cir. 1988) (stating expert testimony regarding whether criminal defendant had the requisite mental state to commit crime charged was properly excluded under Rule 704(b)); United States v. Felak, 831 F.2d 794, 797 (8th Cir. 1987) (same). Rule 704(b) would not, however, prevent Nelsen from testifying that Oehler was suffering from delusional disorder at the time of the offenses. See Kristiansen, 901 F.2d at 1466; Gipson, 862 F.2d at 716; United States v. Dubray, 854 F.2d 1099, 1102 (8th Cir. 1988). Nor would it prevent him from testifying about the symptoms, qualities, and characteristics of the disorder, or from offering an opinion or inference as to whether the disorder "would" or "could" affect a person's ability to form the requisite mental state or condition. See Kristiansen, 901 F.2d at 1466.
This assumes that Nelsen has an opinion on this issue. As discussed more fully in the following paragraph, Nelsen's report does not address the question whether Oehler was suffering from delusional disorder at the time of the offenses.
The second observation relates to the relevance of Oehler's evidence. Federal Rule of Evidence 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In this case, the "fact that is of consequence to the determination of the action" is whether Oehler had the requisite mental state at the time of the offenses. Nelsen's report does not address this question. Rather, it states that Oehler "is suffering from a Delusional Disorder," and that the disorder "persists for at least one month." Evidence that a criminal defendant is suffering from a psychological disorder on some date after the time of an offense has a tendency to make the existence of the fact that the defendant also suffered from the disorder at the time of the offense more probable than it would be without the evidence, but this tendency fades as the time between the date of diagnosis and the time of the offense increases. When the date of the diagnosis and the time of the offense are "unreasonably far removed," the tendency disappears entirely. See Beardslee v. United States, 387 F.2d 280, 293 (8th Cir. 1967) ("[E]vidence as to an accused's mental condition . . . after the offense, if not unreasonably far removed in time, is usually admissible because it is relevant to the question of mental condition at the time of the offense."). The first of the 35 offenses of which Oehler was found guilty occurred on or about February 18, 1999, approximately 43 months before Nelsen diagnosed Oehler's delusional disorder. The last offense occurred on or about July 6, 2000, approximately 26 months before the diagnosis. Although this timeline raises a serious concern as to relevance, the Court need not rule on the issue because, as described below, Oehler's newly discovered evidence fails to satisfy the second and fifth requirements for granting a new trial.
To satisfy the second requirement, Oehler must establish that his failure to discover the evidence until after the trial is not attributable to a lack of due diligence. In deciding this question, the Court is mindful that Oehler represented himself during most of the pretrial proceedings, and that it is unrealistic to expect a defendant to recognize that he is suffering from delusional disorder and to obtain professional help to diagnose the disorder. Yet a defendant who chooses to represent himself always runs the risk that he will fail to recognize arguments, evidence, and lines of investigation and inquiry that may be helpful to his defense. Oehler was informed of this risk at the Faretta hearing, but he nonetheless chose to waive his right to counsel. His choice did not excuse him from exercising due diligence.
Oehler's psychological condition was brought to the foreground during the July 10, 2002, hearing, when the Magistrate Judge questioned Oehler about mental illness and psychiatric treatment, and opined that Oehler may have a split personality. This subject was discussed further in the Magistrate Judge's July 11, 2002, order. On July 17, 2002, Kushner advised Oehler that his beliefs would be a key part of the defense, and Kushner urged Oehler to submit to a psychological evaluation to determine whether there was a psychological explanation for those beliefs. Oehler refused to do so. This sequence of events shows that the evidence at issue here, or at least a psychological report of some kind, would have been discovered before trial but for Oehler's refusal to submit to an evaluation. The Court therefore concludes that Oehler has failed to establish due diligence would not have revealed the evidence before trial. See United States v. Ryan, 153 F.3d 708, 713-14 (8th Cir. 1998) (denying motion for new trial based on burn tests and computer model of fire conducted after trial in arson case because defendant could have performed test and modeling before trial).
In addition, the Court concludes that Oehler has failed to demonstrate that the evidence would likely lead to an acquittal. Again, the key issue at trial was whether Oehler had a good faith belief the sight drafts were valid and the information in the Forms 8300 was true. Oehler testified at length in an attempt to convince the jury he believed that every citizen has an account with the United States Treasury containing hundreds of thousands of dollars, and that those funds can be accessed using sight drafts drawn on the Treasury. The jury was not convinced. When Oehler offered the same explanation to Nelsen, Nelsen concluded that Oehler had "a fixed, false belief." Although Nelsen's report addresses the falsity of Oehler's "belief," and the fixed nature of the "belief," it contains no support for his conclusion on the crucial issue of whether Oehler actually believed the theory. It appears from the report that Nelsen did not consider the possibility that Oehler had fabricated the theory in an effort to avoid conviction. Similarly, Nelsen's report indicates that he did not consider any of the evidence presented by the Government at trial, including evidence that Oehler used sight drafts only when he did not want to pay for something, such as child support or taxes, or when he wanted to obtain cash from a bank or credit card company. In other situations, Oehler used valid checks or cash. Given the weaknesses of Nelsen's report, the Court finds it unlikely that it would have swayed the jury.
III. CONCLUSION
Oehler has failed to establish that due diligence would not have revealed the information in Nelsen's report before trial. Oehler has also failed to establish that the evidence would likely lead to an acquittal. Therefore, IT IS ORDERED THAT:
1. Defendant Oehler's Motion for New Trial [Docket No. 79] is DENIED.