Bilal v. United States

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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 17-CF-81

                          MALIK BILAL, APPELLANT,

                                      V.

                          UNITED STATES, APPELLEE.

                        Appeal from the Superior Court
                         of the District of Columbia
                               (CF1-11967-14)

                       (Hon. Milton C. Lee, Trial Judge)

(Argued November 20, 2018                            Decided October 15, 2020)

      James Whitehead, Public Defender Service, with whom Samia Fam, Mikel-
Meredith Weidman, Daniel S. Harawa, and Fleming Terrell, Public Defender
Service, were on the brief, for appellant.

      Anne Y. Park, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney at the time, and Elizabeth Trosman, Nicholas P. Coleman,
Glenn Kirschner, and Katherine Earnest, Assistant United States Attorneys, were
on the brief, for appellee.

      Before THOMPSON and BECKWITH, Associate Judges, and RUIZ, Senior
Judge.
      Opinion for the court by Associate Judge THOMPSON.
      Concurring opinion by Senior Judge RUIZ at page 30.
                                         2

      THOMPSON, Associate Judge:      After a jury trial, appellant Malik Bilal was

found guilty of second-degree murder while armed and carrying a dangerous

weapon outside the home or place of business. Appellant asserts that the trial court

“misconceived the requirements of [Super. Ct. Crim.] Rule 12.2(c),” infringed

upon his Fifth Amendment privilege, abused discretion, and prevented him from

presenting a complete defense when it ruled that he must submit to a mental

examination by a government expert as a condition of introducing his own expert’s

testimony about his claimed post-traumatic stress disorder (“PTSD”). We affirm.




                                          I.

                              The Evidence at Trial



      The evidence at trial established that appellant stabbed his co-worker Alonzo

“Reds” Beasley with a pocket knife. Arnitta Cowser, another co-worker, testified

that after appellant told Beasley not to touch appellant’s truck and Beasley reached

into the truck to retrieve a thermos despite appellant’s order, appellant started

pushing, shoving, and hitting Beasley. According to Cowser, Beasley, who had

nothing in his hands, backed away, but appellant continued swinging “stead[il]y

[and] coming at” Beasley; Cowser eventually saw appellant stab Beasley in the

neck and saw Beasley fall, with blood coming “from everywhere.”             Deneira
                                         3

Owens, who was in the area at the time, did not see the entire incident but did see a

man whose skin had a reddish tone (Beasley) running away from a man who fit

appellant’s description, and then saw that second man make a punching or

thrusting motion toward the first man’s torso and saw the first man fall to the

ground. Owens testified that while the punching motion was occurring, the first

man had his hands up and was saying, “Don’t do this.” Danyell Adams also saw a

portion of the altercation and testified that the man who “passed away” was being

chased by the other man. Adams heard the man who was swinging the knife and

chasing the other man say, in “[a]n aggressive angry tone” as he was walking back

to his truck, “I told him not to touch my truck.” Beasley sustained six stab wounds

and bled to death from his injuries.



      Appellant testified that Beasley was very “aggressive” and angry towards

him on the job, saying things such as, “I’ll kill your ass” and “talk[ing] about how

he had put in work with his gun before” (i.e., had victimized people with his gun).

Appellant testified that Beasley’s statements made him feel “threatened” and

“fearful,” so much so that he carried a pocketknife for protection. Appellant told

the jury that on the day of the incident, he saw Beasley jerking on his waistband as

he was insulting appellant, and that he (appellant) was “a hundred percent sure”

that Beasley had a gun, was “brandishing” it, and would take it out and shoot
                                          4

appellant if appellant did anything to provoke him. Appellant testified that he told

Beasley to leave him alone and to get away from his truck, but that Beasley instead

swung and hit appellant in the face. A fight between the two men ensued, with

Beasley saying that he would kill appellant. At one point, Beasley turned his body,

and appellant believed he was reaching for his gun, so appellant panicked, pulled

out his knife, and started swinging. Appellant told the jury that it was after he was

arrested (two days later) that he learned that Beasley had died. Appellant further

testified that he believed that if he had not swung the knife, Beasley would have

shot and killed him. Police did not recover a gun from the scene.



                                         II.

                   Appellant’s Proposed Expert Testimony
    and the Trial Court’s Ruling on the Government’s Motion to Compel a
              Mental Examination by the Government’s Expert


      On February 25, 2016, prior to trial and pursuant to Super. Ct. Crim. R. 16

(b)(1)(C)(ii), the defense filed a notice of its intention to present expert testimony

from psychologist Dr. Nicole Rafanello. Appellant’s original proffer was that Dr.

Rafanello would testify “based on an evaluation of Mr. Bilal over the course of

several meetings with him” (which included “testing of Mr. Bilal using several

diagnostic tests”) and on a review of his records, and would specifically testify that

appellant “is diagnosed with, and has long suffered from, post-traumatic stress
                                          5

syndrome (PTSD) and complex trauma, and was suffering from these conditions at

the time of the incident in this case.” The notice further stated that Dr. Rafanello

would testify about how appellant’s conditions “impact a person’s perceptions and

behaviors, particularly in threatening or violent situations.” The notice stated in

addition that Dr. Rafanello would testify that appellant “was experiencing these

symptoms [of PTSD and complex trauma] prior to and through the time period

when the incident in this case happened[,]” and “experienced heightened fear of

being assaulted and injured, such as . . . reacting strongly to perceived threats of

violence.” Appellant later told the court in a filing that “Dr. Rafanello did not

speak with Mr. Bilal about the facts and circumstances of the incident in this case,

and will offer no testimony or opinion about the incident in this case.”



      The government filed a motion to preclude Dr. Rafanello’s testimony,

arguing inter alia that appellant was improperly seeking to introduce expert

testimony to support inadmissible diminished-capacity evidence under the guise of

a self-defense claim. The defense responded that Dr. Rafanello’s testimony would

not be in support of a diminished-capacity defense, but would be relevant to

appellant’s perceptions at the time of the incident and to the credibility of his claim

of self-defense — specifically, as to whether he “actually . . . believed [the] force

[he used] to be necessary to avoid his own serious bodily harm.”
                                           6



      On March 25, 2016, the court heard argument on the government’s motion

and ruled that the proffered expert testimony would be permitted if the evidence at

trial were to support a self-defense claim. Upon that ruling, the prosecutor asked

the court “to permit the [g]overnment to obtain its own expert and . . . for Mr. Bilal

to be subject to examination” by that expert. The defense objected, and the court

said that it would defer ruling until the parties’ next appearance in court.



      On March 28, 2016, at the next hearing, the court asked the prosecutor

whether it would “be enough . . . for [the government] to just engage [its] own

expert to help [the prosecutor] cross-examine [the defense] expert.”              The

prosecutor responded in the negative. Defense counsel told the court that if the

court were to allow a government expert to evaluate appellant, the defense “might

opt to go a completely different direction with this and withdraw the notice to call

Dr. Rafanello” and choose “another way of going about presenting [the PTSD]

evidence,” i.e., have the expert “testif[y] just in general about what the condition is

. . . not having evaluated the individual but testifying to what the condition is, the

symptoms, how it works and the like, and then the jury is free to assess it.” The

court again deferred its ruling, requesting additional briefing on whether it should

compel appellant to submit to a mental examination by a government expert as a
                                          7

condition of admitting the defense expert testimony. The court said that this was

“unchartered territory” 1 and that it would try to “do a balance” and “arrive at the

right answer for everybody.”



      After the parties filed briefs, 2 and after a hearing on June 3, 2016, the trial

court issued a written order on August 5, 2016, granting the government

permission to examine appellant through its own expert. The court reasoned that

Super. Ct. Crim. R. 12.2 “is specifically designed to address th[e] situation”

presented in this case, i.e., where “the defense will . . . ask the jury to consider

whether as a result of a mental health condition[,] the Defendant had a subjective

belief of an imminent danger of bodily harm such that he should not be held

accountable for . . . [m]urder.” The court found that where the defense will present

expert testimony concerning the defendant’s mental health condition, Rule 12.2(c)

“provide[s] the trial court with the authority to order the defendant to submit to

‘mental examinations by a psychiatrist or other expert.’” The court found that it

“seem[ed] only fair and proper” “[i]n this instance” to give a government expert

      1
          The court may actually have said or meant “uncharted territory.”
      2
          Appellant argued that there was no constitutional, statutory, or case-law
authority for the court to compel him to be examined by a government expert, that
Rule 12.2 applies only to insanity defenses, and that granting the government’s
request would violate appellant’s Fifth Amendment rights by requiring him to be a
witness against himself.
                                          8

the opportunity to examine appellant “so that the government could be on equal

footing in its effort to meet the force of the defense expert evidence.” The court

ruled that the government expert would be permitted to explore whether appellant

was “appropriately diagnosed” with PTSD, but would “not be permitted to inquire

as to the facts and circumstances surrounding the offense.” 3



      On August 15, 2016, withdrawing his earlier notice, appellant filed a notice

stating that he would not present evidence of Dr. Rafanello’s evaluation of him or

her conclusions as to his diagnosis, and that he would not submit to an evaluation

by a government expert. Instead, the defense expert would be called to testify

“about PTSD and complex trauma generally” and how these conditions may affect

an individual. At a hearing on October 19, 2016, the trial court ruled that it would

permit appellant to present the revised expert testimony — without having to

submit to an examination by a government expert — so long as he laid a proper

factual foundation, i.e., something “in the record that supports the notion that Mr.


      3
          The court also ordered the defense to disclose to the government “all
underlying data used by the defense expert including, but not limited to, Dr.
Rafanello’s report, notes, raw data, testing protocols, and any other materials
generated by Dr. Rafanello during her interview, records demonstrating that
Defendant was previously diagnosed with PTSD and complex trauma, records
from before this case revealing Defendant’s experiences of trauma and violence
leading to his diagnosis, and any other material relied on by the expert in reaching
her conclusion.”
                                          9

Bilal could be suffering from this[.]” Ultimately, appellant chose not to present an

expert on PTSD, stating that “the defense is opting not to present that evidence . . .

[g]iven the way the trial has gone.”



      Appellant now argues that the trial court erred “by reflexively ordering a

compelled examination pursuant to Rule 12.2,” in an effort to put the parties on

equal footing, “when there was no indication that the government needed the

examination to rebut the proffered PTSD expert evidence.” Appellant emphasizes

that because Rule 12.2 “limits a court’s authority to order a mental examination to

‘appropriate cases,’” it necessarily implies that not every case in which the

defendant gives notice under Rule 12.2(b) will be appropriate for a compelled

examination, and does not authorize the court to order a mental examination by the

government’s expert solely on the ground that this “seems fair.” Appellant further

asserts that the trial court was obligated to, but failed to, engage in a fact-specific

analysis to determine whether the government needed its own evaluation of him.

Appellant argues that an inquiry would have shown that the government had “more

than enough time, material, and access to both Mr. Bilal [through cross-

examination 4] and the defense expert to prepare for trial,” and he contends that


      4
           Appellant states that the court ruled that before the defense expert could
testify, appellant would have to take the stand and face cross-examination. Such a
                                                                         (continued…)
                                          10

“the government did not proffer a single reason why it needed the evaluation to

meet the defense expert evidence.” Appellant asserts that the court’s ruling “led to

the exclusion of the critical PTSD evidence” on a central component of his self-

defense claim (“whether he subjectively believed that he was in imminent

danger”); severely hampered his defense; and entitles him to reversal of his

convictions, because the error was not harmless beyond a reasonable doubt.



                                           III.

                                        Analysis

      A.     The trial court had inherent authority to order a mental examination.



      In the trial court, appellant argued that Rule 12.2 does not supply authority

for the Superior Court to compel a mental examination when the defendant is not

asserting an insanity defense, and that there is no other authority in rule, statute or

case law for the court to do so. On appeal, appellant appears to have abandoned


(…continued)
requirement would be a blatant violation of appellant’s rights under the Fifth
Amendment. But the record shows that no such violation happened in this case
because the court ruled only that a foundation had to be laid for the relevance of
the defense expert’s PTSD testimony. The court couched its comments in terms of
“should [the defendant] testify at trial.” As described above, appellant did take the
stand to testify that he acted in self-defense.
                                            11

his blanket no-authority argument. He acknowledges case authority that the trial

court may order such an examination pursuant to its inherent authority. However,

he asserts that the court must exercise that authority with restraint, based on the

particular circumstances of the case before it. As to Rule 12.2, he emphasizes that

the Rule limits the trial court’s authority to order a mental examination to

“appropriate cases.” He asserts that here, the trial court was improperly focused on

what “seem[ed] fair” and failed to conduct a fact-specific inquiry to determine

whether the government needed its own examination of him (which, he contends, it

did not).



      Appellant’s acknowledgment that the Superior Court has inherent authority

to order a defendant to submit to a mental examination is well-founded. See Rural

Hicks-Bey v. United States, 649 A.2d 569, 575 (D.C. 1994) (“[T]he trial court has

inherent authority, unless otherwise specifically precluded, to control the conduct

of the proceedings before it, in order to ensure . . . that all parties are treated fairly,

and that justice is done.”); United States v. McSherry, 226 F.3d 153, 157 (2d Cir.

2000) (“[I]t was a reasonable exercise of inherent power to condition the

defendant’s use of expert opinion testimony upon his examination by prosecution

experts, who could then testify as to their own observations and evaluations.”);

United States v. Webster, 162 F.3d 308, 339 (5th Cir. 1998) (holding that the
                                         12

district court had inherent authority to compel the defendant “to submit to a mental

health exam by a government expert as a prerequisite to introducing his own expert

psychiatric testimony”; explaining that “[b]efore the enactment in 1974 of Fed. R.

Crim. P. 12.2, which establishes the procedures governing psychiatric exams at

trial, numerous courts had recognized the existence of inherent judicial authority to

order a defendant to give the government notice of a psychiatric defense and to

submit to examination by a government expert”; noting that the Fifth Circuit, too,

in other circumstances had found “inherent power to compel a psychological

examination of a criminal defendant.”); United States v. Davis, 93 F.3d 1286, 1295

(6th Cir. 1996) (court has “inherent authority to order a reasonable, noncustodial

examination of a defendant under appropriate circumstances”). 5



      Appellant is also correct that a trial court must exercise its inherent authority

with restraint, using it only as “a reasonable response to the problems and needs


      5
          See also Super. Ct. Crim. R. 57(b) (“the court may regulate practice in
any manner consistent with applicable law and these rules”); United States v.
White, 21 F. Supp. 2d 1197, 1198, 1198 n.2, 1200 (E.D. Cal. 1998) (holding that
court may use its “supervisory power” [the term the court used for “inherent
authority” in criminal matters] under Fed. R. Crim. P. 57(b) to compel a mental
examination in a case where defendant sought to use her psychiatric expert’s
examination findings to support a diminished capacity defense, reasoning that
“fundamental fairness” and “judicial common sense” require that the government
“be able to follow where the defendant has led” (brackets and internal quotation
marks omitted)).
                                          13

that provoke it.” Degen v. United States, 517 U.S. 820, 823-24 (1996). Further,

courts have recognized that in exercising inherent authority, a trial court should

fashion its order to comply with the relevant procedural rule (here, Rule 12.2).

See, e.g., United States v. Richter, 488 F.2d 170, 173-74 (9th Cir. 1973)

(recognizing that when exercising its inherent authority, a court should look to the

relevant procedural rule for guidance).



      B.    The advisory committee notes to Fed. R. Crim. P. 12.2 clarify what is
            an “appropriate case” in which to order a mental examination to
            rebut defense expert testimony about a defendant’s mental condition
            bearing on guilt.


      Super. Ct. Crim. R. 12.2(b) provides that the defense must give notice to the

government if the “defendant intends to introduce expert evidence relating to a

mental disease or defect or any other mental condition of the defendant bearing on

the issue of guilt[.]” Under Rule 12.2(c)(1) as in effect at the time of appellant’s

trial (and currently), “[i]n an appropriate case the court may, upon motion of the

prosecutor or upon its own initiative, order the defendant to submit to one or more

mental examinations by a psychiatrist or other expert designated for this purpose in

the order of the court.” 6 Appellant argues that an “appropriate case” within the


      6
         As the government’s brief notes, appellant relies on a number of pre-2002
cases in which courts held that then-Fed. R. Crim. P. 12.2(c) did not encompass
                                                                      (continued…)
                                         14

meaning of Rule 12.2(c) “is one where the examination is necessary for the

government’s effective ‘pretrial preparation,’” a circumstance that appellant

contends was not satisfied in this case. “The correct interpretation and application

of Rule [12.2] . . . is a legal question which we review de novo.” Ferguson v.

United States, 866 A.2d 54, 59 (D.C. 2005).



      We are not persuaded that the interpretation appellant urges is what is meant

by the term “appropriate case” in Rule 12.2(c)(1). “When interpreting a Superior

Court rule, we frequently find guidance in the advisory committee’s notes to the

corresponding federal rule.” District of Columbia v. Jackson, 878 A.2d 489, 492

(D.C. 2005). 7   That guidance is especially pertinent here, as appellant has

acknowledged that this jurisdiction’s Rule 12.2 “is based on the original federal

rule 12.2.”




(…continued)
compelling a defendant who was not asserting an insanity or competency defense
to submit to a mental examination. However, the federal rule was amended in
2002 to clarify that it encompasses a mental examination for a defendant who has
indicated an intention to raise a defense of mental condition bearing on the issue of
guilt. Fed. R. Crim. P. 12.2 advisory committee’s notes on the 2002 amendments.
      7
          In addition, “[w]hen one of our procedural rules is nearly identical to or
the functional equivalent of a federal procedural rule, we look to cases interpreting
the federal rule for guidance on how to interpret our own.” Estate of Patterson v.
Sharek, 924 A.2d 1005, 1009–1010 (D.C. 2007).
                                          15

      The phrase “in an appropriate case” appeared in the original federal rule in

1975, upon enactment of Public Law 94-64. See 89 Stat. 370, 373 (July 31, 1975)

(“In an appropriate case the court may, upon motion of the attorney for the

government, order the defendant to submit to a psychiatric examination by a

psychiatrist designated for this purpose in the order of the court.”). The advisory

committee notes to Fed. R. Crim. P. 12.2 that pertain to the 1975 enactment

address what was meant by the reference to “appropriate cases”:

             The Committee notes that the rule does not attempt to
             resolve the issue whether the court can constitutionally
             compel a defendant to undergo a psychiatric examination
             when the defendant is unwilling to undergo one. The
             provisions of subdivision (c) are qualified by the phrase,
             “In an appropriate case.” If the court cannot
             constitutionally compel an unwilling defendant to
             undergo a psychiatric examination, then the provisions of
             subdivision (c) are inapplicable in every instance where
             the defendant is unwilling to undergo a court-ordered
             psychiatric examination. The Committee, by its approval
             of subdivision (c), intends to take no stand whatever on
             the constitutional question.


Advisory Committee notes on the 1975 enactment; see also United States v. Davis,

93 F.3d 1286, 1295 (6th Cir. 1996) (holding that “it [is] unlikely that the Supreme

Court or Congress intended the first sentence of Rule 12.2(c) to resolve, sub

silentio, the Fifth Amendment concerns arising from a compelled, custodial pretrial

examination of a criminal defendant concerning her or his mental state at the time

of the alleged offense[.]”). As the note expressly states, if there is a constitutional
                                         16

bar to a compelled examination, the “appropriate case” standard will not be met.

In sum, as the Advisory Committee understood original Fed. R. Crim. P. 12.2(c),

its reference to an “appropriate case” is a reference to a case in which the court

“may,” consistent with the Fifth Amendment, compel an unwilling defendant to

submit to a psychiatric examination by a government expert.



      C. This was an “appropriate case” in which to order a mental examination.


      “The Fifth Amendment guarantees that ‘[n]o person . . . shall be compelled

in any criminal case to be a witness against himself . . . .’” Kansas v. Cheever, 571

U.S. 87, 93 (2013). The Supreme Court held in Estelle v. Smith, 451 U.S. 454

(1981), that presentation of the defendant’s statements made in the course of a

court-ordered psychiatric examination violates the defendant’s Fifth Amendment

rights when the defendant has neither initiated the examination nor put his mental

capacity in dispute at trial. See id. at 468. Conversely, in Cheever, the Supreme

Court held that the Fifth Amendment does not prohibit the government from

introducing evidence from a court-ordered mental evaluation of a criminal

defendant to rebut that defendant’s presentation of expert testimony in support of a

mental-status-based defense (in Cheever, voluntary intoxication). 571 U.S. at 89–

90; see also id. at 98 (“We hold that where a defense expert who has examined the

defendant testifies that the defendant lacked the requisite mental state to commit a
                                          17

crime, the prosecution may offer evidence from a court-ordered psychological

examination for the limited purpose of rebutting the defendant’s evidence.”). The

Court reasoned that “[w]hen a defendant presents evidence through a

psychological expert who has examined him, the government likewise is permitted

to use the only effective means of challenging that evidence: testimony from an

expert who has also examined him.” Id. at 94.



      In Cheever, the examination by a government expert had already occurred in

connection with an eventually aborted federal trial; 8 the narrow issue before the

Court was whether, during a subsequent state prosecution, the testimony of the

government expert could be admitted consistent with the Fifth Amendment. The

Court did not specifically consider the validity of the order that, in an earlier case,

compelled Mr. Cheever to submit to an examination by the government’s expert.

Thus, Cheever did not resolve the precise issue presented here: whether, consistent

with the Fifth Amendment, a trial court may compel the defendant to submit to an


      8
         Mr. Cheever filed a notice under Rule 12.2 that he intended to introduce
expert evidence relating to his intoxication by methamphetamine at the time of the
charged offense, “which negated his ability to form specific intent, e.g., malice
aforethought, premeditation and deliberation.” Id. at 90–91. The district court
ordered him to submit to a psychiatric evaluation by a forensic psychiatrist, to
assess how methamphetamine use had affected him when he shot his victim. Id. at
91. The forensic psychiatrist “interviewed Cheever for roughly 5 1/2 hours.” Id.
                                         18

examination by a government mental health expert after the defense has given

notice of its intent to introduce expert evidence relating to a mental condition of

the defendant bearing on the issue of guilt.



      Nevertheless, courts have relied on Cheever as a basis for rejecting

arguments that a trial court violates the defendant’s Fifth Amendment rights by

refusing to let a defense mental health expert testify about the defendant’s mental

condition unless the defendant submits to an examination by a government mental

health expert. See, e.g., Hernandez v. Davis, 750 F. App’x 378, 383 (5th Cir.

2018) (denying a certificate of appealability on Mr. Hernandez’s claim that the

state trial court violated his Fifth Amendment rights “by refusing to allow his

mental-health expert . . . to testify on Hernandez’s diminished mental capacity

unless he first submitted to an examination performed by the State’s mental-health

expert”). The Hernandez court said the following about what Cheever implies

regarding compelled mental examinations:

             It is well established that when a criminal defendant
             “neither initiates a psychiatric evaluation nor attempts to
             introduce any psychiatric evidence,” his right against
             self-incrimination under the Fifth Amendment protects
             him from a compulsory examination by a hostile
             psychiatrist. . . . But when “a defendant presents evidence
             through a psychological expert who has examined him,
             the government likewise is permitted to use the only
             effective means of challenging that evidence: testimony
             from an expert who has also examined him.” Kansas v.
                                        19

             Cheever, 571 U.S. [at 94] . . . In other words, by relying
             on the testimony of a mental-health expert who has
             examined him, the defendant waives his Fifth Amendment
             privilege. Nonetheless, the scope of that waiver is
             “limited to the issue raised by the defense,” and any
             testimony about the court-ordered psychiatric evaluation
             cannot go beyond this limited rebuttal purpose.


Hernandez, 750 F. App’x at 383 (emphasis added).            The gravamen of the

Hernandez court’s analysis is that, following from Cheever, there is no Fifth

Amendment bar against a compelled mental examination of the defendant if the

defendant will rely on testimony of a mental health expert who has examined him,

and the compelled examination will be limited to the issue(s) raised by the defense.

See also United States v. Maxton, No. 13-cr-00411-PAB, 2014 U.S. Dist. LEXIS

197096, *1-2 (D. Colo. 2014) (relying on Cheever and Fed. R. Crim. P. 12.2(c) as

authority for issuance of an order authorizing the government to conduct an

examination of the defendant regarding the issue of defendant’s claimed

diminished capacity at the time of the alleged crimes, as indicated in the defense’s

Fed. R. Crim. P. 12.2(b) notice).



      Both Cheever and the other cases cited above involved defense expert

testimony to the effect that the defendant’s mental condition negated his ability to

form the mens rea required for conviction. However, federal courts have relied on

the advisory committee notes to Fed. R. Crim. P. 12.2 as amended in 1983 to
                                         20

conclude that a Rule 12.2(c) order compelling a mental examination in response to

a Rule 12.2(b) notice is authorized even when the defense to be asserted through

the defendant’s expert pertains not to mens rea capacity, but to some other mental

status that bears on guilt. See, e.g., United States v. Lewis, 53 F.3d 29, 35 n.9 (4th

Cir. 1995) (finding no error in district court order requiring Lewis to undergo a

psychological examination in light of his notice that, as part of his entrapment

defense, he intended to rely on expert testimony to show that he had a sub-normal

level of intelligence); United States v. Vega-Penarete, 137 F.R.D. 233, 235

(E.D.N.C. 1991) (concluding that Fed. R. Crim. P. 12.2(c) encompasses order that

defendant be examined by a government mental health expert to enable the

government to respond to defense expert who examined defendant with respect to

her Battered Wife Syndrome); see also Rule 12.2, Fed. R. Crim. P., advisory

committee notes (“[E]xpert testimony about the defendant’s mental condition may

be tendered in a wide variety of circumstances well beyond . . . where a

psychiatrist testifies for the defendant regarding his diminished capacity”; noting

that the rule was expanded to cover, for example, the situation where the defendant

gives notice of expert testimony by a psychologist bearing on the defense of

entrapment).
                                        21

      In this case, the expert testimony appellant intended to offer was not to

establish that he was incapable of forming the requisite mens rea, but instead was

to show — in the trial court’s words — “that [appellant’s] mental abnormalities

g[a]ve rise to mitigating circumstances [i.e., an actual if objectively unreasonable

belief that he was in mortal danger, supporting a claim of imperfect self-defense]

that reduce the level of guilt from murder to manslaughter.” We see no reason

why the rationale of Cheever and Rule 12.2(c) do not apply in this circumstance

just as they do when a defendant seeks to establish that he could not form the

requisite mens rea or that he acted in (perfect) self-defense and is entitled to

acquittal. Expert testimony about a mental condition that reduces the level of guilt

is testimony that “bear[s] on the issue of guilt[.]” Super. Ct. Crim. R. 12.2(b).

Moreover, as the Supreme Court of Arizona reasoned in explaining why the trial

court may compel a mental examination when the defendant wishes to use expert

testimony for mitigation (of punishment) purposes rather than to prove lack of

intent, “the same considerations apply in both contexts[,]” because “requiring a

defendant to submit to a court-ordered mental examination often provides the only

way to . . . ensure the state a meaningful opportunity to rebut the defendant’s

expert testimony.” Phillips v. Araneta, 93 P.3d 480, 483 (Ariz. 2004); see also id.

at 482 (“When a defendant places his mental condition at issue, . . . he generally
                                         22

‘opens the door’ to an examination by an expert selected by the state or the

court.”).



      Relying on Cheever and on the foregoing cases and authorities, we are

satisfied that the proffered defense expert testimony fell within the scope of Rule

12.2 and that the instant case was, within the meaning of Super. Ct. Crim. R.

12.2(c)(1), an “appropriate case” for the trial court’s issuance of an order

compelling appellant to submit to a psychological examination by a government

expert. As already described, appellant proposed to present expert testimony about

his PTSD diagnosis, from a psychologist who had interviewed him over the course

of several meetings and administered several diagnostic tests to him, in order to

“corroborate the likelihood” that he subjectively believed his life was in imminent

danger when he encountered and then stabbed Mr. Beasley. 9            The proposed


      9
         The fact that appellant labeled his notice as a Rule 16 notice rather than a
Rule 12.2(b) notice does not change our analysis. Cf. Vega-Penarete, 137 F.R.D.
at 235-36 (reasoning that although the defendant did not give a timely notice under
Fed. R. Crim. P. 12.2(b), the government “had early and sufficient notice of the
defendant’s intention to rely on evidence of Battered Wife Syndrome” (BWS) as a
defense, and ordering that the defendant be examined by government’s
psychologist or psychiatrist as to her claimed BWS). Alternatively, if appellant’s
notice did not suffice as a Rule 12.2(b) notice, that circumstance triggered Super.
Ct. Crim. R. 12.2(d)(1), which provides that for a defendant’s failure to give notice
under Rule 12.2(b), the trial court may exclude the defendant’s expert evidence
regarding a mental condition bearing on the defendant’s guilt.
                                         23

testimony, which put appellant’s mental condition in issue, “b[ore] on the issue of

guilt,” R. 12.2(b), because it was intended to support a claim of (at least imperfect)

self-defense. In light of the proposed testimony by the defense expert, an order

permitting a government psychologist to examine appellant was not prohibited by

the Fifth Amendment.       The conclusion that this was an appropriate case is

bolstered by the fact that the court made clear that it was imposing constraints on

the government both because of defense counsel’s proffer about the limitations the

defense expert had observed in her interview of appellant 10 (the defense expert

“did not ask anything about what happened during the incident of the case . . . and

would not testify about it”), and in order to give effect to the limit stated in Rule

12.2(c)(2). 11   The court instructed that the government’s expert interview of



       10
           Cf. United States v. Jackson, No. 13-CR-000674-CAS, 2015 U.S. Dist.
LEXIS 194201, *11 (C.D. Cal. 2015) (reasoning that “with regard to non-offense-
specific mitigating factors such as a . . . long-standing mental condition, . . .
allowing the government’s experts to ask offense-specific questions” might
“exceed the scope of what is necessary for the government’s experts to rebut the
defendant’s mental condition evidence”); United States v. Johnson, 383 F. Supp.
2d 1145, 1163 (N.D. Iowa 2005) (reasoning that if defense psychiatrists obtained
information from the defendant about the charged homicide, then “in fairness and
justice the [State] should be permitted to cover the subject also”).
       11
           Rule 12.2(c)(2) states that “[n]o statement made by a defendant in the
course of any examination conducted under this rule (whether conducted with or
without the defendant’s consent), no testimony by the expert based on the
statement, and no other fruits of the statement may be admitted into evidence
against the defendant in any criminal proceeding except on an issue regarding
                                                                        (continued…)
                                        24

appellant would be permitted “just for a limited purpose and the limited purpose is

this diagnosis . . . .” The court also explained in plain terms how it would enforce

that rule. 12



       D. The trial court adequately considered the government’s need for the
          compelled examination.


       Even when there is an “appropriate” case in the sense that there is no Fifth

Amendment bar to a compelled mental examination, it does not follow that the

government may examine the defendant in every case where the defendant

proposes to present expert testimony on his mental state. Rule 12.2’s language that

a trial court “may” order an examination requires that the trial court exercise

discretion in ordering such examination on a case-by-case basis, balancing the

needs of the government to rebut the defense case with the liberty interests of the


(…continued)
mental condition on which the defendant has introduced evidence requiring notice
under paragraphs (a) or (b) of this rule.”
       12
           The court told the prosecutors: “You think [the defendant is] going to
make statements [to the government expert] that are somehow inconsistent with his
claim of self-defense? The [g]overnment [is not] gonna be able to use those.” The
court continued: “The [g]overnment would say maybe we want to cross-examine
about this, [and] I’m going to say, where did it come from[?] [If the answer is that
it came from the government expert’s] interview [of appellant,] I’m going to say
no. And the [g]overnment’s going to say, we got another source that it came from.
I’m going to say convince me. If it’s a close call, [the government] lose[s].”
                                          25

individual defendant. See Davis, 93 F.2d at 1289 (noting loss of liberty by a

commitment for examination and “forced intrusion of a court-order psychiatric

examination”); id. at 1295 (“The proper parameters of the court’s inherent

authority can only be determined based on concrete cases or controversies, after

development of the factual and legal issues at the district court level.”).



      Appellant insists that there was no demonstrated need for the examination by

a government expert to rebut the proffered testimony of the defense expert and thus

that the trial court did not exercise the necessary restraint in exercising its inherent

authority to order a mental examination. Appellant asserts that a compelled mental

examination cannot be justified on the ground that it “seems fair.” On this record,

we disagree with each of those points.



      First, the government did offer a reason why an examination of appellant by

a government expert was necessary for the government’s trial preparation, and the

trial court did find that the examination the government sought was necessary. The

court asked the prosecutor why it was not enough to require the defense to make

available its expert’s data and to permit the government and its expert to interview

the defense expert. The prosecutor responded that the defense expert would be

able to base her opinion on appellant’s demeanor during his meetings with her and
                                            26

on her conversations with him and observations of him, while the government

expert would not be able to test the defense expert’s assessments and to form his or

her own opinion based on conversations with and observations of appellant.

Defense counsel interposed that the government expert would be able to “observe

Mr. Bilal,” to watch the defense expert’s testimony, and to ask Dr. Rafanello about

her observations. The court agreed that what defense counsel suggested would

“not really [be] the same,” reasoning that “the operative time is during the course

of an examination” — i.e., “what [the expert] perceive[s] from what [the

defendant] offers during that time, not when he’s here [in the courtroom] in

something of a controlled, yet maybe high-anxiety situation.” 13



      The trial court also reasoned that:

             [The defense] expert has the first-hand knowledge and
             exchange with the gentleman and the documents, and the
             [g]overnment’s expert seemingly testifies from a position
             where he or she simply cannot make that claim. And part
             of what the Government says is that doesn’t seem fair
             from a trial context . . . when the jury hears about one
             expert with access and another expert without. And one

      13
          Appellant argues that because Dr. Rafanello’s testimony would be about
appellant’s prior diagnoses and evaluations and because the government would
have access to the same records Dr. Rafanello reviewed, the government could
have fully scrutinized “the validity of her opinion without a compelled
examination.” But appellant’s Rule 12.2(b) disclosure stated that Dr. Rafanello’s
testimony would include the opinion that appellant “was suffering from [PTSD and
complex trauma] at the time of the incident in this case.”
                                         27

             might reasonably suggest and conclude as a trier of fact,
             the expert with access has greater probative value than
             the expert without.


Although appellant offered not to cross examine the government expert on the

basis that (s)he never examined appellant, the trial court determined that “both

sides [should be] able to present evidence that comes . . . from the same source and

the same basis[.]” The court’s response was reasonable; even if cross-examination

does not invite jurors to give less weight to the opinion of the expert who did not

examine the defendant, we think jurors would be likely to do so of their own

accord. See also Cheever, 571 U.S. at 94 n.2 (rejecting “Cheever’s suggestion that

the State could effectively have rebutted the testimony of his expert by introducing

testimony from experts who had not personally examined him”).



      We are not persuaded by appellant’s argument that more justification was

needed for the court’s ruling permitting the compelled examination. The defense’s

proposed expert testimony was central to the defense’s argument that appellant

acted in self-defense and was therefore not guilty of murder. The court’s ruling

was consistent with the Supreme Court’s observation in Cheever that “[o]rdinarily

the only effective rebuttal of psychiatric opinion testimony is contradictory opinion

testimony; and for that purpose . . . ‘the basic tool of psychiatric study remains the

personal interview, which requires rapport between the interviewer and the
                                        28

subject.’” 571 U.S. at 95 (quoting United States v. Byers, 740 F.2d 1104, 1114

(D.C. Cir. 1984) (en banc) (plurality opinion) (quoting Rollerson v. United States,

343 F.2d 269, 274 (D.C. Cir. 1964)).



      Further, although the government had received the defense notice about the

proposed expert testimony, it did not have a report from the defense expert, as

none had been prepared. In addition, during the June 3 hearing, when the court

said that it could “right at this moment” set a time period for the defense to turn

over Dr. Rafanello’s data and other materials pertaining to appellant’s claimed

PTSD diagnosis, defense counsel asked the court to “hold off on that until the

[c]ourt’s ruling” on whether a government expert would be permitted to examine

appellant. The lack of a defense expert report and the defense position on the

timing of disclosure of Dr. Rafanello’s data and materials may have hampered the

prosecutors’ ability to explain more fully why the government could not rely solely

on access to the defense expert’s materials and why an examination of appellant

was necessary to meet the position of the defense, and may also have hampered the

court’s ability to assess the government’s need to have its expert examine

appellant. For these reasons, we cannot conclude that the trial court erroneously

exercised its discretion in not requiring a more detailed showing from the

government about why it needed to have its expert examine appellant. Cf. United
                                        29

States v. Baugus, 137 F. App’x 962, 964 (9th Cir. 2005) (“The district judge has

broad discretion under Federal Rule of Criminal Procedure 12.2 to order a mental

examination.”).



      E. Fairness to the government was a valid consideration.



      We also reject appellant’s argument that the trial court erroneously exercised

its discretion by basing its ruling on fairness. The Supreme Court endorsed that

approach in Cheever, explaining that “[a]ny other rule would undermine the

adversarial process, allowing a defendant to provide the jury, through an expert

operating as proxy, with a one-sided and potentially inaccurate view of his mental

state at the time of the alleged crime.” 571 U.S. at 94. Other courts have likewise

resolved the issue of whether to order a compelled examination by a government

expert on the basis of fairness. See, e.g., United States v. Gonzales, No. CR18-

5489 BHS, 2020 U.S. Dist. LEXIS 24663, at *9 (W.D. Wash. Feb. 12, 2020)

“[G]ranting the request for [a compelled psychological] evaluation [of the

defendant’s claimed cognitive limitations and autism spectrum disorder] is

appropriate as a matter of fundamental fairness[.]”); Jackson, 2015 U.S. Dist.

LEXIS 194201 at *5 (concluding, in a case in which defendant Jackson gave

notice of his intent to call a psychologist to testify about his PTSD to support the
                                        30

inference that he could not have formed the requisite mens rea at the time of the

charged offenses, that the psychologist’s “personal interactions with Jackson have

likely shaped some of her impressions and conclusions,” and therefore that “the

government should have an equal opportunity to evaluate Jackson as a matter of

fairness and in the interests of justice”). The trial court here did not abuse its

discretion in rendering its ruling on the basis that to preclude the government from

having its expert examine appellant would not “make sense . . . from a fairness

standpoint.”



      For the foregoing reasons, the judgment of the Superior Court is



                                             Affirmed.




      RUIZ, Senior Judge, concurring: I join the majority’s conclusion that in this

case there was no Fifth Amendment bar to a compelled mental examination

because the defendant had waived its assertion by proposing to present expert

evidence based on a mental examination. With this waiver, the trial court had

discretion to order an examination by a government expert. I also concur that the

trial court properly exercised its discretion to order an examination in this case,
                                          31

with appropriate limitations on its use by the government at trial, where the

defense to the most serious offense was premised on appellant’s perception that he

was acting in self-defense, which depended heavily on expert testimony that he

suffered from PTSD based on a personal examination of appellant.



      I write separately to emphasize that this is a discretionary call for the trial

court that requires careful weighing of different interests. Inherent authority, as the

majority opinion cautions, is to be exercised “with restraint” and in accordance

with the “relevant procedural rule (here, Rule 12.2).” Ante at 14. We interpret

Rule 12.2(c)’s reference to an “appropriate” case as referring to the Fifth

Amendment and, in light of Cheever’s reasoning, a defendant waives a Fifth

Amendment claim by proposing to call a defense expert who will testify based on a

personal examination. This means, in the words of Rule 12.2(c), that the trial court

“may” — not that it shall — order a mental examination in such a case. 1 In

exercising that discretion, the trial court must bear in mind that a compelled mental

examination is never to be imposed lightly. See United States v. Davis, 93 F.3d

1286, 89 (6th Cir. 1996) (noting it presents “serious — and as yet undecided —

constitutional questions”).    A compelled mental examination intrudes upon

      1
         Rule 12.2(c)(4) also bars admission of statements made by the defendant
during examination, expert testimony based on such statements and other fruits of
the defendant’s statements.
                                        32

important individual rights and possibly could pose risks to the health of a fragile

defendant. It has the potential to intimidate a defendant who suffers from a mental

condition and, as a consequence, impinge on the Sixth Amendment right to present

a defense and call witnesses. Thus, although fairness to the government can be a

relevant factor to take into account in the exercise of the court’s discretion in a

given case, care must be taken that it is not to be “double counted” (once used to

effect waiver of the Fifth Amendment) by automatically invoking it as a shortcut

that avoids a proper balancing of interests. Not every case in which the defense

expert has examined the defendant will justify that the trial court order that the

defendant submit to a compelled government mental examination. For example,

one can envision cases where evidence of the defendant’s mental condition is

sufficiently established that a compelled mental examination is not warranted or

outweighed by the intrusion of a compelled mental examination; where the

proffered defense expert’s opinion and testimony can be adequately probed at trial

by government counsel or a government expert without need for a compelled

personal examination of the defendant; where the defense expert’s evidence is not

pivotal to the jury’s decision in the case; where the prosecution might be able to

observe the defense expert’s examination and, possibly, even collaborate in its

design so that the government’s purposes can be met without need for an

additional, separate examination; or where the defendant’s condition is such that
                                           33

his health and well-being would be significantly affected by an additional,

compelled examination. These are simply examples. The principal point is that

compelling a mental examination should not proceed automatically as a reflexive

nod to adversarial tit-for-tat whenever the defense proposes to present testimony

based on a mental examination, but should be the product of a deliberate and

careful analysis of the relevant interests at stake.
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