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United States v. Odeh

United States District Court, E.D. Michigan, Southern Division

December 6, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
RASMIEH YOUSEF ODEH, Defendant.

          OPINION AND ORDER DENYING GOVERNMENT'S MOTION FOR A DAUBERT HEARING, TO PRECLUDE THE TESTIMONY OF MARY FABRI, AND TO REENTER JUDGMENT OF CONVICTION [#216]

          Honorable Gershwin A. Drain, Judge

         I. INTRODUCTION

         On April 19, 2016, the United States Court of Appeals for the Sixth Circuit vacated Defendant Rasmieh Odeh's judgment of conviction for violating 18 U.S.C. § 1425(a), which criminalizes knowingly procuring naturalization contrary to law. The Sixth Circuit concluded that it was error for this Court to categorically exclude Defendant's Post Traumatic Stress Disorder (“PTSD”) evidence. Defendant sought to introduce her diagnosis of PTSD through the testimony of clinical psychologist, Dr. Mary Fabri.

         Presently before the Court is the Government's Motion for a Daubert Hearing, to Preclude the Testimony of Mary Fabri, and to Reenter Judgment of Conviction, filed on November 17, 2016. Defendant filed a Response in Opposition to the Government's instant motion. In addition to Dr. Fabri's affidavit, Defendant also submitted the affidavits from two experts on the diagnosis of PTSD; Dr. James Jaranson, Psychiatrist and former Director of the Center for Torture Victims in Minneapolis and Dr. Hawthorne Smith, the Clinical Director of the Bellevue/NYU Program for the Survivors of Torture.

         Upon review of the parties' submissions, the Court concludes that neither witness testimony nor oral argument will aid in the resolution of this matter. See E.D. Mich. L.R. 7.1(f) (2); Clay v. Ford Motor Co., 215 F.3d 663, 667 (6th Cir. 2000) (“The district court is not obligated to hold a Daubert hearing[.]”). For the reasons that follow, the Court will deny the Government's request to preclude Dr. Fabri's testimony and to reenter Defendant's judgment of conviction.

         II. FACTUAL BACKGROUND

         In 1969, Defendant was convicted and sentenced to life imprisonment for her involvement in the bombing of a supermarket in Jerusalem, which led to the deaths of two college students, as well as her attempted bombing of the British Consulate in Jerusalem. Prior to her conviction, Defendant claims that she suffered brutal torture and rape at the hands of her Israeli captors and that she suffers from PTSD as a result. Defendant was released from prison after serving ten years of her sentence through a prisoner exchange and later immigrated to the United States and became a naturalized citizen.

         The indictment giving rise to this action stems from Defendant's answers to certain questions on her application for citizenship. Specifically, Defendant answered “No” to a series of questions asking if she had “EVER” been arrested, charged, convicted or imprisoned. Dkt. No. 3, Pg ID 15. Defendant claims that she understood this portion of the application to question whether she had ever been arrested, charged, convicted, or imprisoned during her time in the United States and that this interpretation is a result of her PTSD symptoms.

         Prior to trial, Defendant gave notice of her intent to offer the testimony of Dr. Mary Fabri, a licensed clinical psychologist specializing in the treatment of torture survivors. Dr. Fabri was licensed in 1988 and has worked at the Marjorie Kovler (“Kovler”) Center since its opening in 1987. The Kovler Center is a treatment center for survivors of torture. Dr. Fabri has also testified more than twenty times during immigration proceedings, including serving as an expert witness about PTSD and memory.

         Dr. Fabri evaluated Defendant over several months for approximately eighteen hours. Dr. Fabri's evaluation included a diagnostic interview, the Clinician Administered PTSD Scale for DSM 5 (CAPS 5), which is a 30 question standardized interview and includes the Life Event Checklist (LEC-5) and the PTSD Checklist (PCL-5). Dkt. No. 45, Pg ID 326. Dr. Fabri also utilized the Hopkins Symptom Checklist-25 (HSCL-25) measuring anxiety and depression. Id.

         Dr. Fabri concluded that her “diagnostic findings are consistent with a diagnosis of . . . PTSD.” Id. at 18. Dr. Fabri further opined that “someone with PTSD would cognitively process questions about the past to avoid recalling traumatic experiences, such as torture, that are at the root of one's disorder.” Id.

         At a pretrial hearing, Dr. Fabri explained that symptoms of PTSD include “avoidance and sometimes even denial of thoughts, feelings, and activities associated with the trauma, ” which sufferers will develop as a way “to cope with the overwhelming memories of the trauma.” Dkt. No. 113, Pg ID 1195. Dr. Fabri also explained how someone with PTSD could read the word “ever” on the naturalization application to mean only during her time in the United States:

So she would look at this with her filters, her defenses, but I like the word filters better, working. That she would look at this and it was narrowed focus of time frame, she could potentially, I mean, I don't know what went on in her mind, right, but in my understanding of PTSD and survivors and how they develop strategies to cope in daily life that she would look at “ever in the U.S.” It's a narrowed focus of time frame.

Id. at Pg ID 1198.

         Dr. Fabri has also expounded on what she describes as the “filtering” process of a PTSD sufferer. Relying on research studies and literature, Dr. Fabri explains that “neuroanatomic structures and neurobiological systems are altered as a result of trauma and contribute to the symptoms of PTSD.” Dkt. No. 213-1, Pg ID 2879. Brain regions that control emotion, learning and memory insufficiently mediate between these processes which “affect[s] the retrieval or activation of memory.” Id. Another peer working in the field of psychology and with survivors of torture, Dr. Hawthorne E. Smith, has illustrated the meaning behind Dr. Fabri's so-called “filtering” phenomenon as it relates to PTSD:

It seems that ‘filter' was used to help describe the disconnect that occurs between the brain's memory storage and retrieval functions. As the neuroscience points to an involuntary ‘dislocation' or ‘disconnection, ' those words may have been more precise than the word ‘filter.' [T]here is a strong body of evidence that demonstrates that sensory data and subjective experiences are initially processed through the amygdala, which serves as a sort of ‘alarm center' in our brain. When the amygdala is excessively activated, or exists in a chronic state of alarm, it impacts our ability to efficiently organize and codify memories. For people suffering from chronic traumatic stress, the pre-frontal cortex (which is the brain's ‘thinking center' and the area of most high-level executive functioning) becomes more disengaged from the retrieval ...

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