United States v. Cathy Truitt ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2324
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CATHY NICOLE TRUITT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 CR 718 — John Z. Lee, Judge.
____________________
ARGUED FEBRUARY 21, 2019 — DECIDED SEPTEMBER 12, 2019
____________________
Before EASTERBROOK, SYKES, and BARRETT, Circuit Judges.
SYKES, Circuit Judge. In late 2009 Cathy Truitt filed seven
nearly identical tax returns, each falsely claiming that she
was entitled to a $300,000 refund. The IRS identified six of
the seven as fraudulent, but for unknown reasons it ap-
proved one and sent her a check for the full amount. Within
weeks the IRS recognized the error and demanded that she
return the funds. She did not respond. Instead, she spent the
money on jewelry, a condominium, tickets to sporting
2 No. 18-2324
events, and a business investment. The IRS launched an
investigation, and eventually she was indicted for making
false claims against the United States in violation of
18 U.S.C. § 287 and theft of government funds in violation of
18 U.S.C. § 641. A jury found her guilty as charged.
Truitt’s appeal is limited to a single issue. She challenges
the exclusion of her expert witness, psychologist Dr. Michael
Fogel, who proposed to testify that Truitt was a member of a
“charismatic group”—a cult-like organization that indoctri-
nates its members. Truitt intended to offer this testimony to
bolster an argument that she lacked the requisite mens rea for
the crimes. The district judge excluded the testimony under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993), and Rules 702 and 704(b) of the Federal Rules of
Evidence.
That ruling was sound. The judge reasonably concluded
that Dr. Fogel lacked the relevant expertise and his methods
were not reliable. We affirm the judgment.
I. Background
In March 2009 Truitt joined the Moorish Science Temple
of America, which views itself as a sovereign “ecclesiastical
government.” The Moorish Temple teaches that neither the
states nor the federal government have any authority over
its members, who instead purport to hold something akin to
diplomatic immunity. Before initiation into the Temple,
members fill out a series of forms designed to put the gov-
ernment on notice of their new nationality. After a ceremo-
ny, the Temple provides members with Moorish
identification cards, license plates, and other documents
backing up their purported change in citizenship.
No. 18-2324 3
Truitt quickly became an active member of a Moorish
temple on Chicago’s west side. The group was small—at
most about 25 members—and Truitt spent as many as
40 hours a week on church-related activities. She also devel-
oped a close relationship with the local leader, Queen Akefe
Muzari El (“Queen”). Three months after Truitt joined,
Queen told her congregants that the Temple’s founding
prophet had established a trust funded by the United States
government and designed to benefit Moorish nationals. To
prepare her members to collect funds from the trust, Queen
led them through a variety of rituals and ceremonies. She
then instructed them to use symbolic numbers to claim a
refund on a series of IRS Form 1041s—the tax return used by
trusts and estates. Some of the numbers were provided by a
church elder; others came from numerology. Queen told
Truitt and other Moors that if the government sent them
money in response to the tax returns, they were to tithe 25%
back to the Temple. Queen also warned her followers to
expect “pushback” from the government—attempts to block
the Moors from collecting despite their legitimate entitle-
ment. This resistance, Queen said, signified nothing about
the legitimacy of their right to payment. She instructed them
to refile the 1041 forms if they received a frivolous-filing
notice.
In August 2009 Truitt filed three identical 1041 forms for
the years 2006, 2007, and 2008. Each one claimed entitlement
to a refund because an excess of $304,204.30 in taxes had
been withheld from the income of a trust in her name. In
truth, there was no trust and no taxes were withheld at all.
As Queen predicted, the IRS pushed back. It sent Truitt
letters informing her that each of the three 1041 forms was
4 No. 18-2324
frivolous. In the back-and-forth that followed, Truitt filed
four more identical 1041 forms, while the IRS responded
with more notifications that the forms were meaningless. But
in the midst of this flurry of filings and responses, on
January 5, 2010, the IRS issued a refund check for the full
$304,204.30 refund Truitt claimed for one of the tax years.
On January 19 she opened a Post Office Box in the name of
“Maji Atarah El,” and the next day she deposited the
Treasury check into a new account at Wachovia Bank in the
name of the “Maji Atarah El Trust.” She listed the Post Office
Box as the account holder’s address.
The IRS noticed the error almost immediately, and within
five weeks Truitt received notice that she was required to
return the money. She instead rapidly depleted the funds. By
this time she was less involved with the Temple, and Queen
excommunicated her for lack of attendance. So rather than
tithe 25% of the sum back to the Temple, Truitt gave roughly
$75,000 of her refund to several Moors she was still in touch
with. She then placed $200,000 in several accounts in her
father’s name. Those funds quickly disappeared. They paid
for, among other things, jewelry, a down payment on a
Michigan Avenue condominium, Chicago White Sox and
Bulls tickets, and an investment in a diamond business.
Notably, almost all of this activity occurred after the IRS
notified her of the mistake. By April 2010 the Wachovia
account held only about $200.
Throughout this period the IRS continued to send Truitt
notices that it had mistakenly sent the refund check. When
two agents later visited her Michigan Avenue home, she
refused to acknowledge herself by name. When they showed
No. 18-2324 5
her a copy of the refund check, she denied ever having seen
it.
In 2014 a grand jury indicted Truitt on four counts of
submitting false claims in violation of 18 U.S.C. § 287 and
one count of theft from the United States in violation of
18 U.S.C. § 641. Truitt’s primary defense was that she lacked
the requisite mens rea because she truly believed that the
Moorish trust existed and that the 1041 forms were a legiti-
mate way to access it.
To support this defense, she intended to offer the testi-
mony of Dr. Michael Fogel, a forensic psychologist.
Dr. Fogel has extensive experience evaluating criminal
defendants, generally focusing on issues like insanity,
competence to stand trial, and risk of violence. In his report
summarizing his expertise and proposed testimony,
Dr. Fogel claimed to be an expert on “charismatic groups,”
which he defined as a “type of cultic group” that influences
its members through “a shared belief system, a high level of
social cohesiveness, a strong influence to comply with the
group’s behavioral norms, and assigning charismatic and
sometimes divine power to the group or its leadership.” He
distinguished this from other types of cultic groups that use
physical coercion.
The government moved in limine to exclude Dr. Fogel’s
testimony. The judge granted the motion. His first concern
was that Dr. Fogel might try to testify directly that Truitt
truly believed the 1041 forms she filed were legitimate.
Rule 704(b) forbids that kind of expert testimony: “In a
criminal case, an expert witness must not state an opinion
about whether the defendant did or did not have a mental
state or condition that constitutes an element of the crime
6 No. 18-2324
charged or of a defense.” So the judge narrowly construed
Dr. Fogel’s proposed opinion to say only that Truitt is the
type of person who is susceptible to indoctrination. Even as
narrowed, however, the judge ruled that Dr. Fogel failed to
identify the scientific basis he used to reach his conclusions.
The judge gave the defense an opportunity to address
these concerns in an amended submission. In an addendum
to his report, Dr. Fogel proposed to give two opinions:
(1) that the Moorish Temple is a charismatic group under his
definition and (2) that charismatic groups can cause a person
to ignore his moral compass and do things he otherwise
wouldn’t.
The judge rejected the reformulated opinions for three
reasons. First, he found that Dr. Fogel lacked the expertise
needed to speak authoritatively about charismatic groups.
Among other things, Dr. Fogel had worked on only a single
case involving religious themes of any kind. His expertise is
instead in psychological diagnosis, but Rule 704(b) would
block any direct testimony about Truitt’s mental condition.
Second, the judge held that Dr. Fogel’s methods were unreli-
able. Most concerning, Dr. Fogel deviated dramatically from
the methods of other experts in the field—indeed, of the very
expert whose work he used to educate himself on charis-
matic groups. Third, and as an independent ground of
decision, the judge excluded Dr. Fogel’s testimony under
Rule 403 of the Federal Rules of Evidence because its proba-
tive value was slight compared to the substantial risk of jury
confusion.
The case proceeded to trial, and the jury convicted Truitt
on all counts. This appeal followed.
No. 18-2324 7
II. Discussion
Truitt’s sole argument on appeal is a challenge to the ex-
clusion of Dr. Fogel’s testimony. A split standard of review
applies. We review de novo whether the judge applied the
proper legal framework for determining the admissibility of
expert testimony. United States v. Brown, 871 F.3d 532, 536
(7th Cir. 2017). If the judge applied the proper legal frame-
work, then we review the decision to exclude evidence for
abuse of discretion. Id. “District judges have wide discretion
over decisions to admit or exclude evidence; we will reverse
only if no reasonable person would take the judge’s view of
the matter.” Id.Rule 702 entrusts trial judges with a gatekeeping role de-
signed “to ensure that expert testimony is both relevant and
reliable.” Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893
(7th Cir. 2011). To that end, the judge must determine
whether the expert is qualified, whether his methodology is
scientifically reliable, and whether the proposed testimony
“will help the trier of fact to understand the evidence or to
determine a fact in issue.” FED. R. EVID. 702; see also Daubert,
509 U.S. at 592 (explaining that the latitude given to experts
under the Rules of Evidence “is premised on an assumption
that the expert’s opinion will have a reliable basis in the
knowledge and experience of his discipline”).
The judge properly applied this legal framework, so our
review of his decision to exclude Dr. Fogel’s testimony is
deferential. Turning first to the question of qualifications,
Dr. Fogel is a forensic psychologist with some specialization
in certain group dynamics—for instance, he has expertise in
the effect of peer pressure on juveniles serving probation—
but he has no relevant experience with charismatic groups.
8 No. 18-2324
Because we ask not whether an expert “is qualified in gen-
eral” but whether he is qualified “to answer a specific ques-
tion,” Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010), that
limitation is all but dispositive: Dr. Fogel lacks experience
with charismatic groups, so he shouldn’t give expert testi-
mony on that subject.
To be sure, nothing in Rule 702 or Daubert categorically
bars a generalist like Dr. Fogel from opining on more spe-
cialized topics. Hall v. Flannery, 840 F.3d 922, 929 (7th Cir.
2016) (“Ordinarily, courts impose no requirement that an
expert be a specialist in a given field.” (quoting Gayton,
593 F.3d at 617)). To give an example, a general physician
may, depending on his experience, be qualified to testify
about heart conditions regardless of whether he is a licensed
cardiologist. But that doesn’t mean a generalist is necessarily
qualified to speak on specialized subjects: “[W]e must look
at each of the conclusions he draws individually to see if he
has the adequate education, skill, and training to reach
them.” Gayton, 593 F.3d at 617.
So Truitt is correct when she says that Dr. Fogel should
not be excluded merely because he is a generalist. But that’s
not why the judge excluded his testimony. He did so be-
cause Dr. Fogel’s experience as a general psychologist in no
way qualified him to answer specific questions about the
religious themes at play in this case. Nor did his experience
with other kinds of group dynamics prepare him for the
question at hand. Everyone agrees that Dr. Fogel had no
experience with charismatic groups, so the judge quite
reasonably concluded that he was not qualified to give this
proposed testimony.
No. 18-2324 9
The judge also ruled that Dr. Fogel’s methodology was
inadequate and thus not scientifically reliable. This ruling
too lies well within the judge’s discretion. The “overarching
subject” of Rule 702 analysis “is the scientific validity—and
thus the evidentiary relevance and reliability—of the princi-
ples that underlie a proposed [expert] submission. The focus,
of course, must be solely on principles and methodology, not
on the conclusions that they generate.” Daubert, 509 U.S. at594–95. Daubert identifies a number of factors a court might
consider, including whether the methods have been tested or
subjected to peer review and whether they are generally
accepted in the field. See id. at 593–94. But the list is not
exhaustive. See id. at 593 (“Many factors will bear on the
inquiry, and we do not presume to set out a definitive
checklist or test.”).
Here the judge was concerned that Dr. Fogel did little to
learn about the Moorish Temple other than interviewing
Truitt herself. That’s a fairly significant shortcoming in a
case about group dynamics: Dr. Fogel’s definition of a
“charismatic group” requires evaluating whether there was
a “shared belief system,” a “high level of social cohesive-
ness,” and “a strong influence to comply with the group’s
behavioral norms.” The judge reasonably concluded that an
evaluation of those three factors required at least a minimal
inquiry into the experiences of other group members. Yet
Dr. Fogel spoke to Truitt alone. Granted, he attempted to
contact Queen and one other elder. But he made no effort to
contact anyone else associated with the Moorish Temple.
Compounding the problem, Truitt had a strong self-interest
in convincing Dr. Fogel that the church could and did trick
her into filing false claims.
10 No. 18-2324
Curiously, Dr. Fogel omitted these steps in the analysis
even though Dr. Marc Galanter—the expert in charismatic
groups whose work Dr. Fogel relied on most to learn about
the subject—would have done far more. When Dr. Galanter
identifies charismatic groups in his own work, he first
circulates written surveys, then conducts extensive inter-
views with a large number of members, and finally spends
significant time observing the group in action. The judge
was justifiably concerned that Dr. Fogel relied so heavily on
Dr. Galanter’s work but inexplicably applied a watered-
down version of his methodology.
Truitt responds that experts often rely on interviews with
defendants, sometimes exclusively so. That may be appro-
priate when a doctor makes a medical diagnosis. See Walker
v. Soo Line R.R. Co., 208 F.3d 581, 586 (7th Cir. 2000). But
Dr. Fogel’s amended report disavowed any intention to
make a medical diagnosis in light of the Rule 704(b) bar to
that kind of expert testimony. And Daubert calls for case-
specific analysis. The judge reasonably concluded that an
expert who purports to give an opinion about group dynam-
ics should have interviewed more than a single self-
interested group member, especially when other experts in
the field would have done so. 1
1 The judge also held that Dr. Fogel’s reliance on Dr. Todd DuBose,
another expert, conflicted with our decisions in Dura Automotive Systems
of Indiana, Inc. v. CTS Corp., 285 F.3d 609 (7th Cir. 2002), and In re James
Wilson Associates, 965 F.2d 160 (7th Cir. 1992). Those cases hold that while
one expert may rely on another expert’s work, he cannot serve as a mere
mouthpiece in order to circumvent the Rules of Evidence. See Dura Auto.
Sys. of Ind., Inc., 285 F.3d at 611–14; In re James Wilson Assocs., 965 F.2d at172–73. We don’t need to address the application of Dura and Wilson
Associates here: regardless of whether Dr. Fogel leaned too heavily on
No. 18-2324 11
In short, the judge was well within his discretion to ex-
clude Dr. Fogel’s testimony—both because the witness had
limited experience with the specific topic at hand and be-
cause he used questionable methods. The judge’s Rule 702
analysis was on solid ground, so we have no need to address
his alternative Rule 403 ruling that the risk of jury confusion
substantially outweighed the probative value of Dr. Fogel’s
testimony.
AFFIRMED
Dr. DuBose, the methods he used were unreliable, so exclusion was
appropriate.