United States v. Pennington

• Decision Date: 11 June 2021
• Docket Number: Criminal Action No. 6:19-CR-074-CHB-7
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. DAVID PENNINGTON, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

UNITED STATES OF AMERICA, Plaintiff, v. DAVID PENNINGTON, Defendant.

Criminal Action No. 6:19-CR-074-CHB-7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION (at London)

June 11, 2021

SEALED MEMORANDUM OPINION AND ORDER ON THE UNITED STATES' MOTION FOR PSYCHIATRIC AND PSYCHOLOGICAL EXAMINATION

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This matter is before the Court on Defendant David Pennington's Notice of Expert Evidence of a Mental Condition under Federal Rule of Criminal Procedure 12.2 (b)(1) [R. 372], and the United States' Motion for Psychiatric and Psychological Examinations of Pennington [R. 377]. Defendant Pennington responded in opposition to the Government's Motion, [R. 379], and the Government filed a reply, [R. 382]. The Court then ordered additional briefing on whether Pennington's anticipated "diminished capacity defense" is admissible. [R. 384] The Government and Pennington filed their additional briefing, [R. 386; R. 389], and the matter is now ripe for resolution. For the reasons explained below, the Court will make a preliminary ruling that Pennington's "diminished capacity evidence" is admissible and will grant the Government's motion for a mental examination, with limitations.

I. Background

Defendant Pennington has been indicted on one count of:

conspir[ing] with others to knowingly and intentionally . . . recruit, entice, harbor, transport, provide, obtain, and maintain by any means a person, knowing [or] in reckless disregard of the fact that force, threats of force, fraud, and coercion would be used to cause a person to engage in a commercial sex act, in violation of 18 U.S.C. § 1591(a)(1) and (b)(1), all in violation of 18 U.S.C. § 1594(c).

[R. 139] On February 15, 2021, Pennington filed his Notice to the Government that he intends to offer at trial "expert testimony in support of his Diminished Capacity Defense," through two expert witnesses who have examined him and will "testify that at all times relevant in this case, Mr. Pennington had mental disorders which resulted in diminished capacity." [R. 372] The Government responded to this Notice by requesting the Court to order Pennington into the custody of the Attorney General to "conduct[] psychiatric and psychological examinations" under 18 U.S.C. § 4242(a)¹ and Federal Rule of Criminal Procedure 12.2(c). Pennington responded in opposition, asserting, among other arguments, that the Government's request for an examination should not be decided until the Government concedes or the Court rules that Pennington's expert evidence is admissible. [R. 379 pp. 11-12] In its Reply brief, the Government argued that Pennington's "diminished capacity defense" is inadmissible. [R. 382] The Court then ordered additional briefing from both parties on this admissibility issue, [R. 384], and both parties filed briefs, [R. 386; R. 389].

II. Evidence of Diminished Capacity

Pennington seeks to introduce two experts who will testify that he suffers from "dependent personality disorder," which he frames as a "diminished capacity defense" that potentially negates the mens rea element of the charged crime. [R. 389] As an initial matter, the Sixth Circuit has consistently held that evidence of "diminished capacity may be used only to negate the mens rea of a specific intent crime," in contrast to a "general intent" crime.² UnitedStates v. Odeh, 815 F.3d 968, 977 (6th Cir. 2016) (quoting United States v. Kimes, 246 F.3d 800, 806 (6th Cir. 2001)); United States v. Gonyea, 140 F.3d 649, 650 (6th Cir. 1998). The Court has explained that a "specific intent crime is one that requires a defendant to do more than knowingly act in violation of the law. The defendant must also act with the purpose of violating the law." Kimes, 246 F.3d at 806-07. A general intent crime "requires only that a defendant 'intend to do the act that the law proscribes'" and thus requires only the "knowing commission of an act that the law makes a crime," whereas "[a] specific intent crime requires additional 'bad purpose.'" Id.

In this case, Pennington has been charged with conspiracy to commit sex trafficking, under 18 U.S.C. § 1594(c), which the Sixth Circuit has previously held is a specific intent crime. United States v. Lilley, No. 15-6415, 2017 WL 7048806 (6th Cir. July 26, 2017) ("[T]he crimes charged against [defendant] are specific intent crimes: . . . conspiracy to commit sex trafficking of children" under § 1594(c) (citing United States v. Bailey, 444 U.S. 394, 405 (1980)). Both parties agree that Lilley applies here. Further, conspiracy in general has long been viewed as a specific intent crime. Ocasio v. United States, 136 S. Ct. 1423 (2016) ("A defendant must merely reach an agreement with the 'specific intent that the underlying crime be committed' by some member of the conspiracy"); United States v. Brown, 332 F.3d 363, 372 (6th Cir. 2003) ("Specific intent to join is an essential element of the crime of conspiracy."); United States v. Morgan, 385 F.3d 196, 206 (2d Cir. 2004) ("Conspiracy is a specific intent crime."). The same is true in the context of § 1594(c), under which Pennington is charged. United States v. Hazley, 812 F. App'x 376, 379 (7th Cir. 2020) ("To prove this charge [under § 1594(c)], the government had to show that a plan to traffic a minor existed and that [defendant] joined it with an intent to helpcarry it out.") (emphasis added). Therefore, the Court finds that Pennington has been charged with a specific intent crime and that "diminished capacity" evidence may be used to negate the mens rea element of the crime.

Courts have carefully scrutinized psychological and psychiatric evidence that a defendant seeks to introduce under a "diminished capacity defense" to ensure that the evidence does in fact potentially negate the mens rea of the charged crime. This is so because Congress abolished certain forms of the "diminished capacity defense" in the Insanity Defense Reform Act of 1984 (IDRA), 18 U.S.C. § 17. Several circuit courts, including the Sixth Circuit, have held that the IDRA abolished the affirmative defense of "diminished capacity" that excuses the defendant from responsibility for his or her acts, but the IDRA does not bar evidence of "mental disease or defect" that negates the mens rea of a specific intent crime. Odeh, 815 F.3d at 981 ("[B]ecause the defendant offered the evidence only to negate his mens rea, not as an affirmative defense, we held that the IDRA did not exclude that evidence."); United States v. Childress, 58 F.3d 693, 728 (D.C. Cir. 1995) ("Several courts have held that the admissibility of mental condition evidence survives the enactment of [IDRA] where . . . the evidence is admitted not as an affirmative defense to excuse the defendant from responsibility for his acts, but to negate specific intent."). To monitor this boundary and ensure that a defendant's mental capacity evidence does not "slide into wider usage that opens up the jury to theories of defense more akin to justification," district courts must "examine such psychiatric evidence carefully to ascertain whether it would, if believed, 'support a legally acceptable theory of lack of mens rea.'" United States v. Cameron, 907 F.2d 1051, 1067 (11th Cir. 1990) (quoting United States v. Pohlot, 827 F.2d 889, 905 (3d Cir. 1987)). Therefore, "[i]n deciding whether to permit expert testimony, courts focus on thelink or relationship between the specific psychiatric evidence offered and the mens rea at issue in the case." United States v. Wall, 593 F. App'x 128, 131 (3d Cir. 2014).

For example, in United States v. Staggs, 553 F.2d 1073 (7th Cir. 1977)³ the defendant was charged with threatening to shoot a police officer. Id. The Seventh Circuit explained that the prosecution had to prove that the defendant "subjectively intended to put [the officer] in apprehension of bodily harm." Id. Because an expert's "testimony that the defendant was a person more likely to want to harm himself than to think about directing his aggressions toward others" due to a mental condition, and this evidence "made more probable the truth of defendant's assertion that he harbored no criminal intent during his encounter with [the officer]," such evidence was admissible. Id. Simply put, the psychological evidence could help the jury determine the defendant's intent and could potentially negate the mens rea element of the offense. Id.; Cameron, 907 F.2d at 1067. Similarly, the Court must now determine if Pennington's proffered mental condition and expert testimony could possibly negate the requisite intent of the charged crime.

The Government argues that this question is already answered in Lilley. The defendant in Lilley was found guilty of various charges involving the sex trafficking of children, possession and distribution of child pornography, and one count of conspiracy to commit sex trafficking of children in violation of 18 U.S.C. §§ 1591(a)(1) and 1594(c). Lilley, 2017 WL 7048806 at *1. During trial, the defendant's experts testified that he had a wide variety of mental and physical disabilities, including (most relevant here) dependent personality disorder. Id. at *4. But thedistrict court denied the defendant's request for a jury instruction on diminished capacity because the court believed the defendant had been charged with "general intent" crimes. Id. On appeal, the Sixth Circuit held that, although the district court was mistaken regarding the general intent versus specific intent question (all but one of the charged crimes were specific intent crimes), the defendant was still "not entitled to a diminished capacity jury instruction because the record [did] not support that defense." Id. at *4. "[T]he cognitive impairments identified by [the expert] . . . [did] not potentially negate the mens rea for any of the crimes charged, regardless of whether they require knowledge or intent." Id. at *5. Therefore, the district court did not err in refusing to give the instruction. Id.

Here, the...