District Court Erred in Excluding Evidence Going to an Element of the Offense

In United States v.Odeh, the Sixth Circuit reversed the district court’s decision that the testimony of Ms. Odeh’s expert was “irrelevant” and “inadmissible.”  The Sixth Circuit held the court erred in relying on United States v. Kimes, 246 F.3d 800 (6th Cir. 2001) and United States v. Gonyea, 140 F.3d 649 (6th Cir. 1998) because the evidence sought to be introduced by Ms. Odeh undermined an element of the crime.

In 1969 and 1970, Ms. Odeh, living in Israel, was convicted in military court “for her role in a bombing in a supermarket that killed two civilians and wounded others, and for her role in an attempted bombing of the British Consulate.”  Ms. Odeh spent 10 years in prison before being released through a prisoner exchange. She moved to Jordan in 1983. In 1994, Ms. Odeh submitted an immigrant visa application to the US State Department in Amman, Jordan.  In her application, she denied ever having been arrested, convicted or sentenced to prison. Her application was approved and Ms. Odeh moved to the United States.

In 2004, Ms. Odeh applied for citizenship.  In her application, and her subsequent interview with an immigration officer, Ms. Odeh again answered no to the questions asking whether she had ever been charged, arrested, or convicted of a crime. Her citizen application was approved.

In 2013, Ms. Odeh was charged with one count of unlawfully procuring naturalization under 18 U.S.C. § 1425(a). Ms. Odeh did not dispute that her answers to the questions regarding a prior conviction were false. However, she maintained that she did not knowingly make false statements.  Ms. Odeh sought to introduce the testimony of Dr. Mary Fabri, a clinical psychologist, who would testify that Ms. Odeh suffered from PTSD. Ms. Odeh maintained her confession to the bombing in Israel was the result of a month long severe torture by the Israeli military. Ms. Fabri opined Ms. Odeh’s PTSD “operated to automatically filter out Odeh’s time in Israel, causing [her] to interpret questions so as to avoid any thought of her trauma.”

The district court ultimately, relying on Kimes and Gonyea, found Ms. Fabri’s testimony would be irrelevant and inadmissible because it could not be used to negate the mens rea of a general intent crime. The Sixth Circuit reversed, finding the court’s reliance on Kimes and Gonyea was an error. In Kimes and Gonyea, the defendants sought to introduce psychological evidence in defense to a general intent crime. The Sixth Circuit held this type of evidence was not admissible because it did not potentially negate an element of the crime.  Here, the evidence Ms. Odeh sought to introduce was different. Without reaching the issue of whether § 1425(a) was a specific intent or general intent crime, the Circuit found Ms. Fabri’s testimony is relevant to whether Ms. Odeh knew that her statements were false.  Because the evidence went directly to an element of the offense, the district court erred in finding the evidence was categorically inadmissible.  Notably, the Sixth Circuit stopped short of ordering a new trial or finding the evidence must have been presented to the jury. The Court remanded the case to the district court for an evidentiary hearing.

The other interesting issue presented in this case, and the one that caused the split among the judges, was what language should have been redacted from the Israeli indictment. Pursuant to a treaty, the government obtained documents from Israel related to Ms. Odeh’s convictions and these documents were admitted at trial. In one of the exhibits, Ms. Odeh is charged with “plac[ing] explosives in the hall of the SuperSol in Jerusalem .  . . with the intention of causing death or injury” and that “[o]ne of the bombs exploded and caused the death of Leon Kannar and Edward Jaffe, May Their Memory Be a Blessing, as well as injuries to a multitude of people.”

Ms. Odeh argued, in part, that the document should be redacted because the probative value was substantially outweighed by the risk of prejudice. The district court declined to redact. In the Sixth Circuit opinion, Judge Rogers found the district court did not abuse its discretion and remarked that the court’s limiting instruction “is presumed to have reduced the risk of impermissible inferences.”  In her concurrence, Judge Moore found the district court should have redacted the victims’ names and the prayer because those portions had no probative value. Judge Moore concluded the error was harmless. Judge Batchelder dissented in this part of the opinion, finding the district court erred in allowing any of the objected-to portions of the Israeli indictment to go before the jury and such error was not harmless.