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