Posted: December 17, 2020

Judge Hurley Bars Evidence of Mental Health Issues And Drug Use At Trial Of Defendant Accused Of Attempting To Provide Material Support to ISIS

Posted by Solomon N. Klein, Litigation Partner

Judge Denis R. Hurley recently granted the government’s motion to preclude the defendant from presenting evidence of mental health and drug abuse at his trial – rejecting the defendant’s argument that evidence of mental health and drug abuse was relevant even in the absence of an insanity defense.  U.S. v. Redzepagic, 17 CR 228 (E.D.N.Y. Nov. 14, 2020) (DRH).  The defendant was charged with attempting to provide material support to a foreign terrorist organization, and is alleged to have attempted to enter Syria through Turkey and Jordan to present himself to ISIS.

In defining the issue, the Court explained that this is not a case where the defendant is raising an affirmative insanity defense as an excuse for his criminal conduct (which would have presented a number of procedural and substantive hurdles to the defendant). Rather, the defendant argued that his mental health and “bizarre” drug-related behavior are relevant to the government’s burden of proving the elements of the case – that these issues provide “context and understanding of what his state of mind was at the time as it would provide some explanation for . . . some of the communications . . ..”

The Court queried: “[W]ould [the defendant’s] supposedly drug induced behavior be, nonetheless, appropriately presented to the trier-of-fact — not as a defense per se — but rather as part of the evidence for the jury to evaluate in deciding whether the government met its burden of proof?”

However, all parties and the Court concurred that the “material support” statute is a general intent crime – as opposed to a specific intent crime — making the question of mental health or drug addiction close to irrelevant. As such, the Court precluded the evidence, relying on a Second Circuit case involving robbery:

A case that is relevant and instructive for present purposes is United States v . Sewell, 252 F.3d 647 (2d Cir. 2001). In Sewell the Second Circuit held that “voluntary intoxication does not negate the intent element of a crime of general intent . . . .” Id. at 651; see also id. at 650-51 (“With the exception of strict liability crimes, crimes require general intent, which ordinarily is ‘at least an intention to make the bodily movement which constitutes the act which the crime requires’ in order for criminal liability to attach. I W.LaFave & A. Scott, Substantive Criminal Law, § 3.5, p. 315 (1986).”).

The following excerpt from Sewell indicates that the argument now advanced by [the defendant] largely parallels that unsuccessfully urged by Sewell:

“Throughout the proceedings below, Sewell attempted to get before the jury evidence and instructions regarding the fact that he was high on crack cocaine at the time he committed the robbery. Judge Siragusa consistently rejected Sewell’s attempts. Sewell argues on appeal that the district court deprived him of his right to present a defense when it ruled that defendant could not present evidence of his intoxication to negate the element of intent. According to defendant, even though Section 2113(a) is a general intent crime, voluntary intoxication still is relevant as a defense because it blots out some intent or knowledge that the crime requires.”
Id. at 650.

Whether [the defendant] was high when he may have said or done something which the government claims is incriminating is non-decipherable from the motion papers. However, assuming he was, Sewell instructs that such information is inadmissable to mitigate or otherwise bear on his general intent to provide material support to a foreign terrorist organization. Cf. United States v. Johnson, 14 F.3d 766, 767-70 (2d Cir. 1994).

U.S. v. Redzepagic, 17 CR 228 (E.D.N.Y. Nov. 14, 2020) (DRH).

Posted by Solomon N. Klein, Litigation Partner

Posted in EDNY, Evidence
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