Case 1:18-cr-00045-RGA Document 94 Filed 07/02/21 Page 1 of 10 PageID #: 1917
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`PATRICK TITUS,
`Defendant.
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`Criminal No. 18-cr-45-RGA
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`MEMORANDUM ORDER
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`Before me is the Government’s motion to exclude the testimony of Dr. Jonathan Mack. (D.I. 49).
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`I heard oral argument on this motion on June 16, 2021 (D.I. 82) and the parties have submitted helpful
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`briefing. (D.I. 49, 55, 83). 1 For the reasons set forth below, the Government’s motion is GRANTED.
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`I.
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`BACKGROUND
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`Defendant Dr. Patrick Titus is charged with fourteen counts of knowingly and intentionally
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`distributing controlled substances outside the usual course of professional practice and not for a legitimate
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`medical purpose in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). (D.I. 3 ¶ 24). Dr. Titus is also
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`charged with one count of maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and
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`18 U.S.C. § 2. (Id. ¶¶ 25-26).
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`Dr. Titus noticed his intent to introduce the testimony of Dr. Mack relating to mental disease or
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`defect bearing on the issue of guilt under Federal Rule of Criminal Procedure 12.2(b). (D.I. 41). The
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`Government argues that Dr. Mack’s proposed testimony violates the applicable legal standards set forth in
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`United States v. Pohlot and the Insanity Defense Reform Act (IDRA). (D.I. 49 at 1).
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`1 The motion for leave to file (D.I. 90) is DENIED as the proposed letter (D.I. 90-2) adds nothing
`to the arguments previously made.
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`1
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`Case 1:18-cr-00045-RGA Document 94 Filed 07/02/21 Page 2 of 10 PageID #: 1918
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`II.
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`LEGAL STANDARD
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`The Third Circuit case, United States v. Pohlot, 827 F.2d 889 (3d Cir. 1987), provides the
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`governing standard. In Pohlot, the Court explained:
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`We conclude that although Congress intended § 17(a) [of IDRA] to prohibit the defenses
`of diminished responsibility and diminished capacity, Congress distinguished those
`defenses from the use of evidence of mental abnormality to negate specific intent or any
`other mens rea, which are elements of the offense. While the contours of the doctrines of
`diminished responsibility and diminished capacity are unclear, the defenses that Congress
`intended to preclude usually permit exoneration or mitigation of an offense because of a
`defendant's supposed psychiatric compulsion or inability or failure to engage in normal
`reflection; however, these matters do not strictly negate mens rea.
`Despite our disagreement with the government's broad contention, we agree that
`the Congressional prohibition of diminished responsibility defenses requires courts to
`carefully scrutinize psychiatric defense theories bearing on mens rea. Psychiatrists are
`capable of supplying elastic descriptions of mental states that appear to but do not truly
`negate the legal requirements of mens rea. Presenting defense theories or psychiatric
`testimony to juries that do not truly negate mens rea may cause confusion about what the
`law requires.
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`Id. at 890. Following Pohlot, courts in this Circuit have applied the Pohlot standard to a variety of
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`proffered expert testimony. See, e.g., United States v. Andrews, 811 F. Supp. 2d 1158 (E.D. Pa. 2011);
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`United States v. Sacks, 2009 WL 4114169 (D.N.J. Nov. 23, 2009); United States v. Mister, 533 F. Supp.
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`2d 377 (D.N.J. 2008).
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`In particular, the Court in Mister engaged in a lengthy examination of Pohlot as applied to a
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`“knowledge” crime rather than an “intent” crime. Mister, 553 F. Supp. 2d at 384. The Court’s analysis is
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`instructive and highly relevant to the facts at hand. I will follow the approach of Mister, beginning with
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`the proffered testimony, the applicable mens rea, and the link, if any, between the testimony and the
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`elements of the charged crimes. See id. at 381-88; see also Sacks, 2009 WL 4114169, at *4-7 (considering
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`the pertinent mens rea, the proffered testimony, and applying the Pohlot standard).
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`2
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`III.
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`DISCUSSION
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`A. Proposed Testimony
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`The description of the proposed testimony has varied over time. The original notice, in January
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`2021, was brief:
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`Dr. Titus suffers impairments in reasoning and mental organization, which rendered him
`unqualified to practice medicine based on being unfit for duty due to substandard neurocognitive
`functioning. The substandard neurocognitive functioning reached the level of chronic brain
`damage with evidence of Organic Personality Syndrome and Mild Neurocognitive Disorder
`predominately connected to the right cerebral hemisphere.
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`(D.I. 49, Ex. A). Dr. Mack’s full fifty-page report (D.I. 49, Ex. B) was dated March 1, 2021. Dr. Mack
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`interviewed Dr. Titus for approximately 4-5 hours and administered numerous neuropsychological and
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`psychological tests, in addition to reviewing Dr. Titus’ previous neuropsychological evaluation history.
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`(D.I. 49, Ex. B at 2, 3-13, 43). Dr. Mack diagnosed a “chronic mild neurocognitive disorder now
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`presenting with clear lateralizing features to the right temporal parietal region, as well as marked
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`difficulties in certain aspects of executive frontal function, specifically involving nonverbal problem
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`solving and adaptive reasoning.” (Id. at 47). The report additionally describes two further diagnostic
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`impressions: “Organic Personality Syndrome/Personality Change due to above medical
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`condition/Neurocognitive Disorder with marked stickiness, hyperreligiosity, and excessive religious
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`rumination” and “Schizotypal Personality Disorder.” (Id. at 48).
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`In sum, Dr. Mack’s lengthy report concluded by opining that Dr. Titus had been working as an
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`“impaired physician” since the early 2000s and that he was unfit to practice medicine during the relevant
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`time period. (Id.). The Report goes on to state, “Dr. Titus’ impairments in reasoning and mental
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`organization rendered him unable to assess his own performance realistically, and he lapsed in to the
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`arrogant and proselytizing view that his world view and his medical opinions were correct without
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`question.” (Id. at 49).
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`After the Government moved to exclude Dr. Mack’s report and testimony, Defendant provided an
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`“Addendum.” (D.I. 55, Ex. A). The Addendum clarifies Dr. Mack’s conclusions on the matter of intent.
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`(D.I. 55, Ex. A at 1). Dr Mack writes, “Dr. Titus has a defective thought process and significant
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`3
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`neurocognitive impairments that resulting in his believing that he was practicing medicine correctly, with
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`the conclusion that he was acting in good faith within the usual course of medical practice.” (Id.).
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`At oral argument, there was extensive discussion of what exactly Defendant thought Dr. Mack
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`could properly testify about.
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`COUNSEL: Dr. Mack is saying that Dr. Titus suffered from neurocognitive
`impairment, and then several other impairments that impacted on – causes him to act in a
`certain way and causes him to, how can I put this, it drives his -- the notion that how he
`was practicing medicine was consistent with doing so in good faith in serving his
`patients.
`And Dr. Mack is saying due to his impairments, he wasn't able to reach certain –
`access certain executive functions and that he has this almost not narci[ssi]stic, but this
`defect causes him to believe that he knows what he's doing. He can't reflect on that, and
`that his way is the right way.
`[Dr. Mack] goes through and talks about diagnosing him with substandard
`neurocognitive functioning that reach levels of chronic brain damage with clear evidence
`of organic personality syndrome and mild neurocognitive disorder primarily affecting the
`right cerebral hemisphere. These impairments cause Dr. Titus to have the effective
`process and significant neurocognitive impairments that resulted in his believing that he
`was practicing medicine correctly, prescribing in good faith while within the usual course
`of medical practice.
`[Dr. Mack] states in his report that Dr. Titus's impairments are causing him to
`believe that he was prescribing medicine correctly and prescribing it with a good faith
`belief that he was doing so in the usual course of a medical practice. It is about Dr. Titus's
`-- it is about how these impairments impacted his reasoning at that time with respect to
`how he conducted his operation, and I think that it goes to the lack of knowledge. It goes
`to lack of intent in terms of the mens rea aspect of the case.
`THE COURT: Do you think [Dr. Mack] can say [Dr. Titus] was operating in good
`faith or his state of mind was good faith?
`COUNSEL: Your Honor, if we take up the good faith aspect of it, I believe that
`he would be saying that . . . Dr. Titus believed that he was practicing medicine and that
`he was prescribing patients and treating patients within the course of – with prescriptions,
`opioid prescriptions within the course of a medical practice.
`I believe that if I read the Cohen case particularly, I think that there may be some
`basis for Dr. Mack to talk about that.
`I think at least he should be able to say he believed he was practicing medicine
`correctly.
`I believe that Dr. Mack can testify that Dr. Titus believed he was practicing
`medicine correctly in a broader sense, right, and that what led to that is the impairments
`from which he suffered in this case and his neurocognitive deficits. And I believe that
`that goes to whether or not -- would support the defense argument that the doctor, Dr.
`Titus was acting in good faith when he prescribed medication.
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`(D.I. 82 at 44-52) (excerpts edited for readability).
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`B. Applicable Mens Rea
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`The fourteen counts charged under 21 U.S.C. § 841 require a mens rea of “knowingly or
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`intentionally.” United States v. Polan, 970 F.2d 1280, 1282 (3d Cir. 1992). That is, the Government must
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`demonstrate that Dr. Titus knowingly or intentionally distributed a controlled substance. Id. The offense
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`does not encompass “drug distribution by a physician in the usual course of professional practice.” Id.
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`The fifteenth count is charged under 21 U.S.C. § 856(a)(1), which makes unlawful to “knowingly
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`open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of
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`manufacturing, distributing, or using any controlled substance.” 21 U.S.C. § 856(a)(1); United States v.
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`Nasir, 982 F.3d 144, 152 (3d Cir. 2020). The required mens rea is “knowingly.” Id.
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`To act “knowingly” with respect to either offense, “is to act with ‘knowledge of the facts that
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`constitute the offense’ but not necessarily with knowledge that the facts amount to illegal conduct, unless
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`the statute indicates otherwise.” United States v. Barbosa, 271 F.3d 438, 457-58, (3d Cir. 2001) (quoting
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`Bryan v. United States, 524 U.S. 184, 193 (1998)). To act “intentionally,” is to act “deliberately and not
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`by accident.” Id. (quoting United States v. Fuller, 162 F.3d 256, 260 (4th Cir. 1998)).
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`The parties appear to agree that in the context of the first fourteen counts, the precise mens rea is
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`that “the defendant knew that what he distributed and dispensed was a controlled substance and that the
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`distributing or dispensing was outside the usual course of professional practice and not for a legitimate
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`medical purpose.” (D.I. 64 at 51 (jointly proposed jury instruction)).
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`C. Application
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`The question at this stage is whether Dr. Mack’s testimony tends to negate the mens rea element
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`of one or more of the charged offenses. Mister, 553 F. Supp. 2d at 386. At oral argument, the parties
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`focused narrowly on the issues contained in the Addendum concerning Dr. Titus’ ability to reflect on his
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`decisions and his belief in his own medical judgment. Defendant’s counsel described the disputed
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`testimony as “Dr. Mack is saying due to his impairments, he wasn't able to reach certain – access certain
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`executive functions and that he has this almost not narci[ssi]stic, but this defect causes him to believe that
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`he knows what he's doing. He can't reflect on that, and that his way is the right way.” (D.I. 82 at 45:14-
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`19).
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`The Government argues that this is exactly the testimony prohibited by Pohlot. (D.I. 49 at 17).
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`Pohlot explicitly stated that one’s “inability or failure to engage in normal reflection” does not strictly
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`negate mens rea. Pohlot, 827 F.2d at 890. I agree that much of Dr. Mack’s testimony appears to center on
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`Dr. Titus’ inability to reflect on his own medical practice. For example, Dr. Mack explained that Dr.
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`Titus is “unable to assess his own performance realistically.” (D.I. 55, Ex. A at 2). Defendant’s counsel
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`also broadly references Dr Titus’ impairments and “how these impairments impacted his reasoning at that
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`time with respect to how he conducted his operation.” (D.I. 82 at 49: 9-11). This appears to be tied to
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`“lack of insight” that hinders Dr. Titus in his medical practice and makes him “fixed and regimented in
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`his own belief that his judgment and decision-making in his practice of medicine is correct.” (D.I. 55, Ex.
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`at 2).
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`In support of admitting Dr. Mack’s testimony, Dr. Titus relies primarily on the Ninth Circuit case
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`United States v. Cohen, 510 F.3d 1114 (9th Cir. 2007). There, the Court admitted testimony describing
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`the fact that Cohen’s “beliefs are fixed and have led him to significant adverse consequences, he is
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`irrational to the point of dysfunction, demonstrated by his stubborn adherence in the face of
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`overwhelming contradictions and knowledge of substantial penalty” as relevant to “Cohen's ability to
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`form the intent to evade the tax laws.” Cohen, 510 F.3d at 1125. However, the text of Pohlot, which is
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`binding on this Court, concluded that such “diminished capacity”2 defenses are prohibited under IDRA.
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`Pohlot, 889 F.2d at 890. The Ninth Circuit does discuss whether the proffered testimony would negate
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`the mens rea at issue and notes that such testimony would have been helpful in countering the argument
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`2 The Court in Pohlot explained, “A second strain of diminished capacity permits a defendant to
`show not only that he lacked the mens rea in the particular case but also that he lacked the
`capacity to form the mens rea. Whether a defendant has the capacity to form mens rea is, of
`course, logically connected to whether the defendant possessed the requisite mens rea.
`Commentators have agreed, however, that only in the most extraordinary circumstances could a
`defendant actually lack the capacity to form mens rea as it is normally understood in American
`law.” Pohlot, 889 F.2d at 903.
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`that “Cohen knew the [asserted] returns were false.” Cohen, 510 F.3d at 1124. However, though
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`Defendant relies on Cohen, the proffered testimony described at oral argument is only facially
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`comparable. Dr. Mack opines broadly that Dr. Titus is “fixed and regimented” in his beliefs about his
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`medical practice (D.I. 55, Ex A at 2), but appears to rely primarily on Dr. Titus’ inability to self-reflect
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`rather than an inability to process contradictory information.
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`Dr. Titus also argues that the proffered testimony is similar to that admitted in the Mister case.
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`(D.I. 82 at 56:5). In Mister, the Court admitted testimony concerning the Defendant’s low intellectual
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`functioning as relevant to whether Defendant knew the payments he accepted were bribes. Mister, 553 F.
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`Supp. 2d at 386. I do not agree that such testimony is analogous. Dr. Mack does not contend that Dr.
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`Titus could not understand the relevant medical standards. Rather, his report implies (but does not go so
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`far as to state) that Dr. Titus was unable to analyze his own performance as a medical professional in the
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`context of those standards. (See, e.g., D.I. 55, Ex. A at 2).
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`Insofar as Dr. Mack’s testimony relies on Dr. Titus’ “lack of insight” or that Dr. Titus cannot
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`reflect on his conduct, I agree that this testimony is prohibited by Pohlot. Pohlot stated that, to permit
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`evidence of “Pohlot’s meaningful understanding of his actions and their consequences” would expand the
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`concept of “intent” beyond that necessary to prove the charged crime and would improperly focus on the
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`Defendant’s unconscious mind. Pohlot, 827 F.2d at 907; see also Mister 553 F. Supp. 2d at 384 n.11
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`(explaining the application of the Pohlot standard to a “knowledge” crime). Defendant urges the Court to
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`find that Mister opened the door to permit a “lack of self-reflection” testimony where the mens rea
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`required is “knowledge” rather than “intent.” (D.I. 55 at 7 (citing Mister, 553 F. Supp. 2d at 384)). In this
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`Circuit, however, courts have excluded psychiatric evidence that improperly focuses on Defendants’
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`unconscious motivations or failure to comprehend the nature of their behavior, even when one of the
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`relevant elements of the crime is “knowledge.” See, e.g., Sacks, 2009 WL 4114169, at *9 (excluding
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`testimony because it was “[f]ull of conclusory statements, it seeks to justify Defendant's behavior and
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`describes Defendant's unconscious motivations, impaired volitional control, and his inability to reflect on
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`the ultimate consequences of his conduct, which is impermissible”); United States v. Baxt, 74 F. Supp. 2d
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`436, 442 (D.N.J. 1999) (excluding testimony that the defendant was “only minimally aware, if at all, of
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`the true nature and consequences of his behavior” because, among other reasons, it did not tend to show
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`that the defendant “did not submit false financial statements knowingly”).
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`Accordingly, I believe that Dr. Mack’s testimony, as proposed, fails to meet the test set forth in
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`Pohlot. Dr. Mack’s testimony appears to be focused primarily on whether Dr. Titus can retroactively
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`assess his medical decisions and whether Dr. Titus has insight into his own deficits rather than on
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`psychological conditions that may be used to infer what his state of mind was during the charged conduct.
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`See Sacks, 2009 WL 4114169, at *6 (excluding testimony that Defendant’s business judgment would be
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`affected by “deficiencies in concentration, persistence, and pace” as “precisely the type of psychological
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`evidence that Pohlot prohibits”). Dr. Titus has not cited to a case in this Circuit that admits comparable
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`expert testimony under the Pohlot standard.
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`I also agree that Dr. Mack may not testify that Dr. Titus is/was “unfit to practice medicine.” (D.I.
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`49, Ex. B at 48). Such testimony is not relevant to whether Dr. Titus knew he was prescribing controlled
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`substances outside the course of usual medical practice or whether Dr. Titus knowingly maintained
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`Lighthouse Internal Medicine for the purpose of distributing controlled substances.
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`In short, every variation of Dr. Mack’s proposed testimony (other than those which are clearly
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`barred by Rule 704(b), as stated below) is irrelevant to the relevant mens reas. The testimony in no way
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`tends to negate whether Dr. Titus knew that he was distributing controlled substances, knew what the
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`usual course of professional practice was, or knew what was or was not a legitimate medical purpose.
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`D. Rule 704(b)
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`The Government also objects to certain portions of Dr. Mack’s testimony under Federal Rule of
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`Evidence 704(b). In particular, the Government objects to testimony that Dr. Titus “believed he was
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`practicing medicine correctly” and was “acting in good faith.”3 (D.I. 81-2 at 3). At oral argument,
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`3 It is unclear, based on a reading of the Addendum, if Dr. Mack’s testimony that Dr. Titus
`“believed he was practicing medicine correctly” and was “acting in good faith” is tied only to Dr.
`Titus’ inability to assess his own medical performance or other impairments referenced in Dr.
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`Defense counsel argued that Dr. Mack should be able to testify that “[Dr Titus’] impairments cause Dr.
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`Titus to have the effective process and significant neurocognitive impairments that resulted in his
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`believing that he was practicing medicine correctly, prescribing in good faith while within the usual
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`course of medical practice.” (D.I. 82 at 47:3-7).
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`Rule 704(b) states, “In a criminal case, an expert witness must not state an opinion about whether
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`the defendant did or did not have a mental state or condition that constitutes an element of the crime
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`charged or of a defense. Those matters are for the trier of fact alone.” FED. R. EVID. 704(b). The Third
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`Circuit has explained, “Expert testimony is admissible if it merely ‘support [s] an inference or conclusion
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`that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the
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`ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily
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`follow from the testimony.’” United States v. Watson, 260 F.3d 301, 309 (3d Cir. 2001) (quoting United
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`States v. Bennett, 161 F.3d 171, 183 (3d Cir. 1998)). Experts may cross into Rule 704(b) territory if they
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`“directly refer[] to the defendant's intent, mental state, or mens rea.” Id.
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`The Mister case helps illustrate the distinction between admissible and prohibited expert
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`testimony in this context. As the Court stated, testimony concerning “the intelligence, perception and
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`processing evidence are relevant to a fact at issue in the case, whether Defendant knew, at the time of the
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`offense conduct, whether the payments were bribes.” Mister, 553 F. Supp. 2d at 389. However, requiring
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`the expert to testify as to whether the Defendant knew the payments were bribes would violate Rule
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`704(b). Id.
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`I agree with the Government that opining as to whether Dr. Titus believed he was practicing
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`medicine correctly and/or in good faith strays into Rule 704(b) territory. Dr. Mack would, in effect, be
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`drawing the ultimate inference regarding Dr. Titus’ mental state, which is strictly within the purview of
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`the jury. Thus, I will exclude such testimony.
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`Mack’s report. At a minimum, they appear to be related. Regardless of whether such testimony
`would be appropriate under Pohlot, it also is subject to Rule 704(b).
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`IV.
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`CONCLUSION
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`For the reasons stated above, the Government’s motion to exclude the testimony of Dr. Mack
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`(D.I. 49) is GRANTED to extent explained above. Given what the parties focused on at oral argument
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`and in the briefing, I do not expect that Dr. Titus will seek to admit testimony about other portions of Dr.
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`Mack’s report.
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`IT IS SO ORDERED this 2nd day of July 2021.
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`__/s/ Richard G. Andrews__
`United States District Judge
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`10
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