MARY JOYCE KNOX, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-702

   In The Supreme Court Of The United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The judgment order of the court of appeals (Pet. App. 1-2) is
reported at 858 F.2d 744 (Table).

                             JURISDICTION

   The judgment of the court of appeals was entered on August 29,
1988.  The petition for a writ of certiorari was filed on October 28,
1988.  The jurisdiction of this Court is invoked under 28 U.S.C.
1954(1).

                          QUESTION PRESENTED

   Whether the district court abused its discretion in excluding, as
irrelevant, proffered expert testimony that petitioner was highly
gullible and therefore unlikely to know that a package she received
from an accomplice contained cocaine.

                               STATEMENT

   After a jury trial in the United States District Court for the
Southern District of Florida, petitioner was convicted of importing
cocaine (Count 1) and possessing cocaine with intent to distribute it
(Count 2), in violation of 21 U.S.C. 841(a)(1) and 952(a).  She was
sentenced to concurrent terms of five years' imprisonment on each
count.  The court of appeals affirmed without opinion (Pet. App. 1).

   1. The pertinent facts are summarized in the government's brief in
the court of appeals (Gov't C.A. Br. 2-7).  Late on the evening of
January 30, 1987, petitioner entered the Customs area of the Port of
Miami terminal after a one-day "Sea Escape" cruise that had stopped in
the Bahamas.  A Customs inspector noted that petitioner gave
suspicious, unresponsive answers to routine re-entry questions, that
her dress and actions were unlike those of other returning passengers,
and that she wore a loose skirt typical of the kind favored by drug
smugglers.  Although she at first refused, petitioner finally agreed
to submit to a body frisk by a female inspector.  The frisk revealed
the presence of several pliable, taped packages located between
petitioner's legs and secured by a girdle.

   Petitioner displayed no change of demeanor when the packages were
opened, revealing the presence of a white powder.  Subsequent chemical
analysis showed that the packages contained approximately one kilogram
of cocaine.  Petitioner admitted after her arrest that she "knew it
was wrong," but that she "needed the money" because she "couldn't even
pay (her) light bill."

   2. Testifying in her own defense, petitioner stated that a jeweler
named Fritz Russell, who was a friend of her sister, had asked her to
travel on a one-day cruise to the Bahamas to pick up gold chips and
bring them back.  Petitioner testified that she had not intended to
smuggle anything but had just planned to return with Russell's gold.
While she was aboard the boat during its port call in the Bahamas,
petitioner stated, two strangers gave her packages wrapped in duct
tape for Russell.  Because she had previously seen gold wrapped in
similar packages, petitioner testified that he believed the packages
given to her contained gold chips.  She further testified that the men
in the Bahamas told her that the duty she would be charged if she
declared the gold on re-entry into this country would be $1,000, which
she did not have.  Petitioner stated that the strangers then suggested
that she smuggle the packages in her underwear.  Prior to that time,
petitioner stated, she did not know that she was going to have to
bring the gold back surreptitiously.

   To support her theory of defense, petitioner proffered -- for the
first time at trial -- the testimony of Dr. Barry Crown, a
psychologist.  Defense counsel stated that Dr. Crown's testimony was
offered to show "the level of (petitioner's) susceptibility to
suggestion" (Gov't C.A. Br. 5).  In a proffer made outside the
presence of the jury, Dr. Crown stated, based on his interview and
testing of petitioner, that petitioner functioned at the intellectual
level of an eleven year old, but that she had compensated for that
disability by developing other skills.  Dr. Crown added that
petitioner was susceptible to being led into going to the Bahamas to
pick up gold.

   Under questioning by the district court, Dr. Crown admitted that
petitioner's state of mind did not impair her ability to do an act
knowingly and voluntarily, and that she was capable of doing an act
willfully, with the specific intent to do it.  Dr. Crown also
disclosed, contrary to petitioner's trial testimony, that petitioner
had told him that she knew prior to boarding the boat for the Bahamas
that she was going to smuggle gold into the United States without
declaring it.  In view of that testimony, the court stated that it
"did (petitioner) a favor" in adducing the proffered testimony outside
of the jury's presence and suggested that the defense might wish to
withdraw the witness.  Defense counsel nonetheless sought to introduce
the expert's testimony.

   3. The district court excluded the proffered testimony for two
reasons.  First, as a procedural matter, the court found that the
midtrial proffer of Dr. Crown's testimony violated the standing
discovery order that required the pretrial production of the results
of any mental examination or scientific test.  Second, the court found
Dr. Crown's opinion to be irrelevant because, as Dr. Crown stated, it
dealt with petitioner's susceptibility to being induced to go to the
Bahamas to bring back gold illegally, while the sole issue at trial
was whether she knew she was carrying cocaine in her underwear.  The
court also found it significant that Dr. Crown stated that
petitioner's mental condition would not affect her capacity to perform
an act knowingly, willfully, and with specific intent.

   After the court rejected Dr. Crown's testimony, defense counsel
argued, for the first time, that Dr. Crown's testimony would help the
jury decide whether petitioner's state of mind would permit her
knowingly to import cocaine.  The court disagreed and adhered to its
initial ruling.

                               ARGUMENT

   Petitioner contends that the district court erred in excluding
expert psychological testimony that she was highly gullible and
susceptible to suggestion.  As this Court has recognized, however, a
trial judge enjoys broad discretion in deciding whether to admit
expert testimony.  Hamling v. United States, 418 U.S. 87, 127 (1974).
There was no abuse of that discretion here;  the district court acted
well within its discretion in excluding Dr. Crown's testimony.

   As the district court noted, petitioner's midtrial proffer of Dr.
Crown's testimony violated both Fed. R. Crim. P. 12.2(b) and Fed. R.
Crim. P. 16(b)(1)(B), which were incorporated into the standing
discovery order that applied to this case.  Rule 12.2(b) requires that
a defendant who "intends to introduce expert testimony relating to * *
* any * * * mental condition of the defendant bearing upon the issue
of (his) guilt" must notify the prosecutor and the court in writing of
his intention "within the time provided for the filing of pretrial
motions." Rule 16(b)(1)(B) similarly requires the production of "any
results or reports of * * * mental examinations * * * which the
defendant intends to introduce * * * or which were prepared by a
witness whom the defendant intends to call." Both Rules 12.2(d) and
16(d)(2) in turn provide that a trial court may exclude the testimony
of an expert witness for failure to comply with the notice and
production requirements contained in the rules.

   In United States v. Nobles, 422 U.S. 225, 241 (1975), and more
recently in Taylor v. Illinois, No. 86-5963 (Jan. 25, 1988), this
Court has upheld orders excluding proffered defense testimony because
of a failure to comply with comparable discovery requirements.  Other
courts have similarly held, in circumstances comparable to those here,
that expert psychiatric or psychological testimony proffered by the
defense was subject to exclusion because of the failure of defense
counsel to comply with applicable notice and discovery requirements.
See, e.g., United States v. Buchbinder, 796 F.2d 910, 913-916 (7th
Cir. 1986) (expert testimony that the defendant was extremely
depressed);  United States v. McLernon, 746 F.2d 1098, 1114-1115 (6th
Cir. 1984) (expert testimony pertinent to an entrapment defense);
United States v. Medina-Gasca, 739 F.2d 1451, 1454 (9th Cir. 1984)
(expert testimony regarding a defendant's mental "deficiencies").
Petitioner's failure to comply with the rules requiring notice and
production justified the exclusion of Dr. Crown's testimony even if
that testimony were otherwise admissible.

   Aside from the procedural bar, the district court properly excluded
the expert testimony on the subject of gullibility and susceptibility.
 rule 704(b) of the Federal Rules of Evidence specifies that "(n)o
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 * *
*." Moreover, in enacting 18 U.S.C. (Supp. IV) 17(c), Congress
expressly abolished any defense of "diminished capacity," i.e., any
defense relating to a defendant's mental condition that falls short of
insanity.  For that reason, it has been recognized that an expert

         may not substitute her judgment as to the defendant's state
      of mind by testifying that because of the defendant's
      personality, she would not have acted in a particular manner.
      Absent the suggestion of the presence of a mental disease or
      defect, a trial court may properly exclude psychiatric testimony
      which merely offers an opinion about the defendant's capacity to
      form the mental state required to commit the offense charged.

   United States v. Esch, 832 F.2d 531, 535 (10th Cir. 1987) (citation
omitted), cert. denied, No. 87-6280 (Feb. 29, 1988).

   Petitioner did not rely on an insanity defense, and the evidence in
question was not offered to prove lack of capacity to form specific
intent.  To the contrary, Dr. Crown testified that petitioner's mental
condition did not impair her ability to act knowingly and willfully.
In such circumstances, the courts of appeals have consistently held
that evidence comparable to that proffered here should be excluded as
irrelevant and misleading.  See United States v. Lewis, 837 F.2d at
415, 418 (9th Cir. 1988) (expert testimony regarding the effects of
the defendant's corporal punishment as a child);  United States v.
Esch, 832 F.2d at 534 (expert testimony that the accused had a
"dependent personality");  Brown v. Trigg, 791 F.2d 598, 600-601 (7th
Cir. 1986) (expert testimony that the defendant's low I.Q. indicated
that he did not act "knowingly");  United States v. White, 766 F.2d
22, 24-25 (1st Cir. 1985) (expert testimony regarding the defendant's
susceptibility to mother's influence);  United States v. Kepreos, 759
F.2d 961, 964 (1st Cir.), cert. denied, 474 U.S. 901 (1985) (expert
testimony regarding the defendant's diminished mental state that
hindered his "ability to attend to subtle details").

   The decision in this case does not conflict with United States v.
McBride, 786 F.2d 45 (2d Cir. 1986), or United States v. Roark, 753
F.2d 991 (11th Cir. 1985), as petitioner contends.  In McBride, a bank
larceny prosecution, the defendant sought to present psychiatric
testimony to support her contention that she had not formed the
requisite guilty knowledge.  To that end, the defendant offered the
testimony of a psychiatrist that the defendant had suffered "residual
organic brain impairment" as a result of beatings inflicted by her
husband and that she was "functional but (mentally) impaired" at the
time of the offense (786 F.2d at 49).  The district court excluded the
testimony.  The court of appeals reversed, holding that the expert's
opinion "as to the psychological implications of (the defendant's)
objectively ascertainable organic brain injury would have been of
assistance to the jury" in determining the defendant's mental state in
light of the "conscious avoidance" theory on which the case was
submitted to the jury (id. at 50).  In so holding, however, the court
expressly recognized that "a district court may exclude psychiatric
testimony which merely offers an opinion about the defendant's
capacity to form the mental state required to commit the offense
charged, without suggesting the presence of a mental disease or
defect" (ibid.).  Since there was no indication of "organic
impairment" here, McBride would not require the admission of the
expert testimony that was at issue in this case.  See United States v.
Lewis, 837 F.2d at 418 n.6;  United States v. Esch, 832 F.2d at 535.

   Similarly, in Roark the court held that a psychologist's testimony
regarding the defendant's susceptibility to suggestion was erroneously
excluded at trial.  In Roark, however, the proffered testimony dealt
with whether the defendant's confession was voluntary, or whether her
neurosis, which effectively put her in a hypnotic state during
interrogation, affected the voluntariness of her statements to law
enforcement officials (753 F.2d at 994).  Since the issue of
voluntariness was submitted to the jury, the court found that the
expert's testimony would have "help(ed) the trier of fact determine
whether * * * Roark was somehow psychologically coerced into making
the inculpatory statements" (ibid.).  In reaching that result, the
court did not suggest that expert testimony of the kind at issue in
this case would be admissible;  indeed, the court cautioned that its
ruling did not even mean "that this kind of testimony is always
admissible in every confession case" (id. at 994-995).

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   ROBERT J. ERICKSON

      Attorney

   DECEMBER 1988