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UNITED STATES v. FISHMAN

April 13, 1990

UNITED STATES, Plaintiff,
v.
STEPHEN FISHMAN, Defendant



The opinion of the court was delivered by: JENSEN

 D. LOWELL JENSEN, UNITED STATES DISTRICT JUDGE

 On December 27, 1989, this Court heard the government's motion to exclude certain expert testimony proffered by defendant. Assistant United States Attorney Robert Dondero appeared for the government. Marc Nurik appeared for defendant. Since the hearing the parties have filed supplemental briefing, which the Court has received and reviewed. For all the following reasons, the Court GRANTS IN PART and DENIES IN PART the government's motion.

 I. BACKGROUND FACTS

 The United States indicted Steven Fishman on eleven counts of mail fraud, in violation of 18 U.S.C. ยง 1341, on September 23, 1988. The indictment charges that Mr. Fishman defrauded various federal district courts, including those in the Northern District of California, by fraudulently obtaining settlement monies and securities in connection with shareholder class action lawsuits. This fraud allegedly occurred over a lengthy period of time -- from September 1983 to May 1988.

 Two months after his indictment, defendant notified this Court of his intent to rely on an insanity defense, pursuant to Rule 12.2 of the Federal Rules of Criminal Procedure. Within the context of his insanity defense, defendant seeks to present evidence that influence techniques, or brainwashing, practiced upon him by the Church of Scientology ("the Church") was a cause of his state of mind at the time of the charged offenses. Defendant contends that he has been a member of the Church since 1979. In furtherance of the brainwashing aspect of his defense, Mr. Fishman seeks to call two expert witnesses, Dr. Margaret Singer and Dr. Richard Ofshe. Presently before the Court is the government's motion to exclude the testimony of these witnesses.

 A. The Proffered Testimony

 Dr. Margaret Singer is a well known and highly regarded forensic psychologist. She evaluated Stephen Fishman's mental state shortly after his indictment. Having formed certain psychological opinions and preliminary conclusions from this evaluation, Dr. Singer is expected to testify that defendant's delusional view of the world at the time he committed the alleged fraud supports her opinion that he was legally insane.

 Based on her training in psychology, Dr. Singer is expected to testify that defendant is incredibly suggestible, compulsive and obsessive. She further believes that this suggestibleness is long-standing, as is his peculiar behavior and bizarre reasoning. Dr. Singer thus characterizes the defendant as a strange and eccentric person before he came into contact with the Church of Scientology. Dr. Singer is also expected to testify that upon joining the Church of Scientology, defendant was subjected to intense suggestion procedures as well as other social and behavioral influence processes. In the opinion of Dr. Singer, the conjoining of the Church's influence techniques and Mr. Fishman's previous psychological condition permitted his mental state to evolve to a point of extremely clouded reasoning and judgment. Defendant created an alternative reality, and then lived in this mental state for at least five years. Dr. Singer concludes that while the defendant is bright, obsessive, and capable in many ways, his entire view of reality during this period was delusional.

 Dr. Richard Ofshe is a social psychologist who holds a Ph.D. degree in sociology. Defendant concedes that Dr. Ofshe is not a mental health professional, and therefore cannot testify as to the defendant's mental state at the time of the charged offenses. Rather, defendant presents Dr. Ofshe as a person whose expertise enables him to describe the coordinated program of coercive influence and behavioral control that defendant was subjected to by members of the Church of Scientology. Dr. Ofshe would testify to his opinion that, by controlling certain social influence variables, Scientology can induce a person to believe that he or she has acquired and can currently utilize superhuman powers. Dr. Ofshe's proffered opinion is that the Church's influence process regularly leads people to believe that they have the power to control mental matter, energy, space and time.

 B. The Government's Motion to Exclude Testimony

 The government challenges the admissibility of expert testimony by Dr. Singer and Dr. Ofshe on three separate grounds. First the government argues that the theories regarding thought reform espoused by Dr. Singer and Dr. Ofshe are not generally accepted within the applicable scientific community. Second, the government argues that the Court should exclude Dr. Singer's and Dr. Ofshe's testimony on grounds of relevance, based on the parameters established for such evidence by the Insanity Defense Reform Act of 1984. The government also contends that evidence regarding thought reform and Scientology is irrelevant to this case because the factual record establishes that defendant did not join the Church until 1986, at which time he had already committed most of the charged offenses. Third, the government urges the Court to exclude Dr. Ofshe's testimony because he is not qualified to testify as an expert in this case.

 II. APPLICABLE LEGAL STANDARD

 The admissibility of testimony by an expert is governed by Rule 702 of the Federal Rules of Evidence. Pursuant to this rule, the proffered expert must have specialized knowledge that assists "the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. Interpreting Rule 702, this Court applies the principles set forth in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923), and United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973), for determining the admissibility of expert testimony from mental health professionals. Amaral requires that expert testimony (1) come from a qualified expert; (2) be of proper subject; (3) conform to a generally accepted explanatory theory; and (4) have probative value that exceeds its prejudicial effect. Id. at 1153. See also United States v. Christophe, 833 F.2d 1296, 1299 (9th Cir. 1987). The proponent of expert testimony has the burden of laying a proper foundation showing the underlying scientific basis and reliability of the testimony. United States v. Gwaltney, 790 F.2d 1378, 1382 (9th Cir. 1986).

 III. ACCEPTANCE WITHIN THE SCIENTIFIC COMMUNITY

 In this case Dr. Margaret Singer and Dr. Richard Ofshe seek to testify regarding thought reform theories, particularly with respect to religious cults.

 Thought reform theory is not new; it derives from studies of American prisoners of war during the Korean conflict in the 1950s. Seeking to explain why some POWs appeared to adopt the belief system of their captors, journalist and CIA operative Edward Hunter formulated a theory that the free will and judgment of these prisoners had been overborne by sophisticated techniques of mind control or "brainwashing." See E. Hunter, Brainwashing in Red China (1951). The term brainwashing continues to be used to describe a mind control process involving

 
. . . the creation of a controlled environment that heightens the susceptibility of a subject to suggestion and manipulation through sensory deprivation, physiological depletion, cognitive dissonance, peer pressure, and a clear assertion of authority and dominion. The aftermath of [this] indoctrination is a severe impairment of autonomy and [of] the ability to think independently, which induces a ...

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