from the United States District Court for the District of
Wyoming (D.C. No. 2:17-CR-00213-NDF-1)
D. Van Dalsem, Office of the Federal Public Defender,
Muskogee, Oklahoma, for Defendant-Appellant.
Timothy J. Forwood, Assistant United States Attorney (Mark A.
Klaassen, United States Attorney, District of Wyoming, with
him on the brief), Cheyenne, Wyoming, for Plaintiff-Appellee.
HARTZ, MATHESON, and EID, Circuit Judges.
in the United States District Court for the District of
Wyoming convicted Defendant Christopher Lee Martinez on one
count of attempting to entice a minor to engage in illegal
sexual activity. See 18 U.S.C. § 2422(b). On
appeal Defendant argues that the district court (1) should
have authorized funds for a forensic psychologist, (2)
improperly excluded evidence of his history of mental
illness, and (3) should have allowed him to present evidence
of his character for truthfulness. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
22, 2017, Special Agent Brent Metcalfe of the Wyoming
Division of Criminal Investigation (DCI) posted a personal
advertisement on the "Casual Encounters" section
listed on the Craigslist website at that time. The purpose of
the posting was to ferret out those who used the Internet to
arrange sexual encounters with minors. Metcalfe chose the
date because of the expected influx of tourists for Cheyenne
Frontier Days. The advertisement was entitled "Fresh CFD
Taboo" and read: "In town with my dau. She is very
eager. She wants to experience what Cheyenne has to offer.
Who wants to have some 'fresh fun.'" R., Vol. 3
at 247-49. Metcalfe explained that he used the terms
fresh and eager to communicate to the
reader that the subject of the advertisement was young and
27 years old at the time, was one of the first to respond,
sending a message shortly before 4:00 p.m. The email messages
were relayed by Craigslist between the correspondents.
Metcalfe posed as the father, telling Defendant that he hoped
to "find a guy for my daughter, but she's
younger." Id. at 256. When Defendant asked how
old the girl was, Metcalfe answered that she was 12.
Defendant said: "Okay. When you thinking? I'll think
about it. You ain't a cop or law enforcement?"
Id. at 257. Metcalfe assured him that he was not a
cop and the conversation continued. It centered on whether
Defendant wanted to have sexual relations with the daughter.
Defendant asked Metcalfe what sexual acts he could engage in
with the girl, whether he could take her virginity, and
whether Metcalfe had condoms. Defendant repeatedly sought
assurances that Metcalfe was not a "cop,"
explaining that he was nervous because the police had
"popped a lot of people" during Frontier Days the
previous year. Id. at 287.
Defendant's interest established, Metcalfe requested that
they move their conversation to "Kik," an
instant-messaging application that better allowed
investigators to obtain Defendant's identity. Defendant
agreed. After he asked Metcalfe to send him a picture of the
daughter, the two agreed to exchange pictures. Metcalfe sent
Defendant a picture of part of the chest of a life-like
mannequin. Defendant asked for another picture of the
child's full body with no face. Metcalfe refused to send
additional pictures but agreed that Defendant could come to
his motel to take his daughter's "V card"
(referring to her virginity). Id. at 302. Defendant
eventually asked to message with the daughter directly, and
Metcalfe assumed the girl's identity. Defendant asked if
she wanted to "lose [her] V card?" When Metcalfe
asked what that meant, Defendant said "Virginity."
Id. at 310. After exchanging about 100 messages over
almost five hours, Defendant agreed to meet at a motel and
said that he would bring a condom.
p.m., Defendant arrived at the motel parking lot and messaged
Metcalfe, asking him to come out. Metcalfe and several other
officers exited their vehicles and arrested Defendant in his
truck. He was in possession of a phone and a condom. Forensic
analysis confirmed that the phone was the one used to
communicate with Metcalfe on the Kik application. When
interviewed by officers at the scene, Defendant admitted to
sending the messages but stated that he was getting ready to
call the police before he was arrested. When asked why he had
a condom, he said something like, "You have to be
real." Id. at 321.
counsel filed a pretrial motion under 18 U.S.C. § 3006A
requesting a forensic psychologist at the government's
expense. The motion stated the charge against Defendant, the
trial date, the cost of a forensic evaluation and polygraph
by Dr. Charles W. Dennison CP, Defendant's minimal
employment history, and his lack of funds to pay Dr.
Dennison. Other than stating that Defendant was on Social
Security disability with a mental-health diagnosis, the
motion said nothing regarding his mental health and the need
for an evaluation except as follows:
Defendant was diagnosed with bipolar disorder, attention
deficit disorder (ADD), schizophrenia and depression when he
was 18 years old. The diagnosis was at Peak Wellness,
Cheyenne, Wyoming. Defendant has a Mental Health history of
attempted suicide at 18 years of age, hallucinations with the
last occurrence taking place about 4-5 years ago. Defendant
was prescribed Trazadone, Invega, Amitriptyline, Abilify and
Fluoxetine. He is currently off medication.
. . .
Due to the nature of the charges in this matter, a forensic
evaluation is necessary.
Vol. 1 at 29. The district court denied the motion, saying:
Defendant failed to provide the Court with information
regarding the necessity for a forensic evaluation by Dr.
Dennison at Government expense. The Court routinely grants
forensic evaluations in cases involving receipt of child
porn, for purposes of sentencing mitigation. However, this
case involves attempted enticement of a minor. . . . Given
the mandatory minimum sentence in this case, it is not clear
the purpose of a forensic evaluation. Defendant has failed to
provide the Court with any explanation of the necessity for
an evaluation, either for trial or sentencing purposes. IT IS
ORDERED that Defendant's Motion for Forensic Psychologist
at Government Expense is DENIED at this time based
on the Court's finding that Defendant has not established
the necessity for this evaluation.
R., Vol. 2 at 12 (italics added). Defense counsel did not
renew the motion or later provide further justification for a
government then filed a motion in limine to prevent Defendant
from presenting evidence of his character for truthfulness
and honesty and to exclude any evidence of his mental
illness. On the first issue, it argued that because the
charged offense of enticement of a minor is not a crimen
falsi (that is, an offense in which a lie by the defendant is
one of the elements of the crime), testimony regarding
Defendant's character for truthfulness was not relevant.
Accordingly, it requested that Defendant's use of
character evidence be limited to evidence that he is law
abiding. The court agreed that Defendant had not shown a
basis for offering evidence of his character for
truthfulness, but said that it would later rule on specific
issues related to character evidence that might arise during
second issue, the government contended that absent an
insanity defense, evidence of Defendant's mental defects
or lack of volitional control was not an allowable defense.
Although the government acknowledged that evidence of mental
health could be admitted to negate specific intent, it
pointed out that Defendant bore the burden of showing that
the proffered evidence was being offered for that purpose.
This issue was addressed at the final pretrial conference,
where the court gave defense counsel the opportunity to
explain the purpose of introducing evidence of
Defendant's mental health. Defense counsel stated:
So my plan was to introduce a very limited number of medical
records that I've provided to the Government, and they
basically just state that Mr. Martinez was diagnosed with
bipolar, I think back in 2010; that he was prescribed
medication. He's also got ADD, I believe. And the
only purpose of those records is because I would
have him testify and his family testify that he has these
mental issues and that his mental state of mind is important
because one of the elements in this case is that he obviously
knowingly had to complete this act, and that goes to that
element of whether or not he knowingly completed this act.
And the medical records themselves are really just to - there
to corroborate what he would testify to about his own
character and state of mind.
R., Vol. 3 at 34 (emphasis added). Defense counsel
acknowledged that Defendant "did not plead guilty by
reason of mental illness" but argued that the jury
should decide "whether or not [his mental illness]
affected his decision to do the things he did or not."
Id. at 35. And responding to the arguments by the
government, he said:
We're offering it to show his potential state of mind in
general and who he is. And this is a person - and like I
said, I don't know how you can - the Court or any court
could preclude an individual from getting on the stand and
testifying that, "Yes, I'm - you know, this is my
background. I have these issues that I've dealt with. I
was on medication, but I wasn't taking the medication at
the time," and to describe his general makeup, I
Id. at 38.
court granted the motion in limine. It expressed concern that
the proffered mental-illness testimony would "create
the potential for confusion by the jury and seek[ ] to
suggest a justification as opposed to a defense to any of the
elements that the Government is required to prove by proof
beyond a reasonable doubt." Id. at 39. It noted
that this court had held "that psychological and
psychiatric evidence that negates the essential element of
specific intent can be admissible" but that the
admission of such evidence required clear demonstration of
"how such evidence would negate intent rather than
merely present a dangerously confusing theory of defense more
akin to justification and excuse." R., Vol. 1 at 72
(internal quotation marks omitted). The court concluded that
without an expert or current medical records, Defendant
lacked mental-health evidence showing "some cognitive
defect precluding him from forming the specific intent for
the charged offense" and thus the proffered evidence was
irrelevant. Id. at 73.
prosecution called only three witnesses at trial: Special
Agent Robert Leazenby of the Wyoming DCI testified in general
about the conduct of child-exploitation investigations; Agent
Metcalfe testified about his communications with Defendant;
and Mark Timmons of the Wyoming DCI testified about his
search of Defendant's car after the arrest.
Before calling any witnesses, Defendant renewed his request
to be permitted to offer mental-health evidence. He pointed
to testimony by Agent Leazenby that investigators like to
talk to arrestees in such cases to determine their states of
mind. The prosecutor pointed out, however, that the state of
mind Leazenby was referring to was whether or not the
arrestee wanted to have sex with the child. When the court
asked defense counsel how the mental-health evidence would
relate to the instruction on the knowingly element
of the offense, counsel responded that he wanted to put on
the evidence simply as background evidence:
But that's who he is and that's kind of his general
makeup, just as if a person was employed and is - you know,
as an officer and they've been doing that for ten years.
Well, in the last ten years he's been doing really
nothing. Why has he been doing nothing? Because he's on
[Social Security benefits], and the jury is going to know why
he's on [Social Security benefits]. Well, that's why.
R., Vol. 3 at 377. The court was not persuaded. It held that
while information concerning Defendant's background may
be relevant for sentencing purposes, it was not relevant at
evidence consisted of (1) his own testimony, explaining that
he was not engaged in criminal activity but, rather, was
attempting to identify someone engaged in child exploitation,
whom he would report to law-enforcement authorities, and (2)
six witnesses who testified to his character as a law-abiding
also unsuccessfully attempted to put on evidence of his
character for truthfulness, which he claimed had been
attacked during his cross-examination by the prosecution. He
argued that such evidence would assist the jury in
determining whether to believe his statement that he did not
intend to engage in sex with a minor. The court rejected the
argument, reaffirming its earlier ruling that such evidence
was not relevant because the charged offense did not include
an element that concerned truthfulness. It further observed
that because the bulk of the evidence in the case involved
contradictory statements made by Defendant before and after
his arrest, testimony regarding his character for
truthfulness would not be probative in helping the jury
decide which if any of his statements to believe.
Denial of Motion to Hire Forensic Psychologist
Criminal Justice Act (CJA) permits a court to authorize
funding for an expert witness at the government's
Counsel for a person who is financially unable to obtain
investigative, expert, or other services necessary for
adequate representation may request them in an ex parte
application. Upon finding, after appropriate inquiry in an ex
parte proceeding, that the services are necessary and that
the person is financially unable to obtain them, the court .
. . shall authorize counsel to obtain the services.
18 U.S.C. § 3006A(e)(1). The defendant bears the burden
of persuasion. See United States v. Greschner, 802
F.2d 373, 376 (10th Cir. 1986). The necessity of services
must be established with specificity. In the present context,
"[g]eneral allegations supporting a request for court
appointment of a psychiatric expert, without substantive
supporting facts, and undeveloped assertions that psychiatric
assistance would be beneficial to the defendant will not
suffice to require the appointment of a psychiatrist to aid
in the preparation of a criminal defense." Liles v.
Saffle, 945 F.2d 333, 336 (10th Cir. 1991). We review
the denial of a CJA funding request for an abuse of
discretion. See United States v. Solon, 596
F.3d 1206, 1210 (10th. Cir. 2010).
appeal Defendant argues that psychiatric testimony could have
supported his defense that he was merely trying to catch