Argued and Submitted, San Francisco, California
September 9, 2013
Appeal from the United States District Court for the District of Nevada. D.C. No. 2:09-cr-00303-JCM-VCF-1. James C. Mahan, District Judge, Presiding.
Jess R. Marchese (argued), Marchese Law Office, Las Vegas, Nevada, for Defendant-Appellant.
Peter S. Levitt (argued), Daniel G. Bogden, Robert L. Ellman, United States Attorney's Office for the District of Nevada, Las Vegas, Nevada; Elizabeth Olson White, Roger Yang, United States Attorney's Office for the District of Nevada, Reno, Nevada, for Plaintiff-Appellee.
Before: Arthur L. Alarcón, Raymond C. Fisher, and Marsha S. Berzon, Circuit Judges. Partial Concurrence and Partial Dissent by Judge Alarcón. ALARCÓN, Circuit Judge, concurring in part and dissenting in part.
FISHER, Circuit Judge
Eric Leon Christian appeals his conviction for two counts of transmitting through interstate commerce email communications containing threats to injure the person of another. He argues that the district court should have allowed his expert, a psychologist who had earlier examined him for
competency to stand trial, to testify regarding his diminished capacity defense and that he was entitled to a jury instruction on diminished capacity even without such expert testimony.
We hold that the district court abused its discretion by excluding Christian's expert solely because he examined Christian for competency rather than for diminished capacity. Instead of focusing exclusively on the different legal standards governing the conclusions the expert was asked to draw, the district court should have evaluated whether the substance of the expert's testimony would have helped the jury decide whether Christian could form the specific intent to threaten the recipients of his emails. Although the record does not allow us to determine whether the expert's testimony should have been admitted, the court should not have excluded such testimony without conducting a voir dire or otherwise giving the expert an opportunity to explain how he could provide meaningful and relevant testimony on diminished capacity from the competency evaluation he had conducted. We further hold that the rule requiring a new trial when a district court erroneously admits prejudicial expert testimony in a civil trial, see Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 2014 WL 129884 (9th Cir. 2014) (en banc), also applies to the erroneous exclusion of expert testimony from a criminal trial. We therefore vacate Christian's conviction and remand for a new trial.
Finally, we hold that the district court acted within its discretion by denying Christian's request for a diminished capacity instruction on this record. Accordingly, if no new evidence supporting a diminished capacity defense is admitted during Christian's new trial, the district court need not give a diminished capacity instruction.
In May 2009, Christian emailed Joseph Forti, who was then the Chief of the North Las Vegas Police Department, to request police assistance retrieving his car, which had been repossessed several months earlier. Christian argued that the repossession was not valid and that he was still entitled to possess the car. When Forti responded that the department could not help him, Christian emailed a reply that included several threats of violence, stating: " I will have to kill to retrieve my stolen and items [sic] if you do not retrieve them" ; " I have assembled 100 armed angry men from Nevada who are ready for civil war if you stop me from protecting my civil rights" ; " Get my fucking car or watch a terrorist car thief DIE!!!" ; and " This communication is protected by the 1st Amendment and my undying dedication of ridding the earth of terrorist, [sic] who take away Constitutional Rights like YOU and the thief who has my car."
Christian also emailed threats to Michael Davidson, who at the time was the chief deputy city attorney and the chief prosecutor for North Las Vegas. Initially, Christian had requested copies of the case files for two cases, neither of which had been prosecuted by Davidson or by the city attorney's office. In a follow-up email, Christian demanded the case files and threatened to " get a mob together and start a civil war" to kill a state court judge or Davidson himself unless Davidson " g[o]t the Writ of Habeas Corpus out of the way."
After a two-day trial, a jury convicted Christian of two counts of transmitting through interstate commerce an email communication containing a threat to injure the person of another, in violation of 18 U.S.C. § 875(c). The government's witnesses
included Forti and Davidson, who both testified that they took the threats seriously and took steps to protect themselves and others they believed might be in danger of injury. Forti also testified that he believed the person who sent the email was " very disturbed."
Christian rested without testifying or presenting any evidence on his own behalf. He had sought to raise a diminished capacity defense, which allows a defendant to argue that he was incapable of forming the specific intent required by the charged offense -- in his case, the specific intent to threaten. See United States v. Twine, 853 F.2d 676, 678-80 (9th Cir. 1988). The district court precluded Christian's proffered expert witness from testifying about diminished capacity, however, and denied his request for a diminished capacity jury instruction. Christian's only ...