United States v. Brandon Laureys

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2017 Decided August 8, 2017

No. 15-3032

UNITED STATES OF AMERICA,

APPELLEE

v.

BRANDON LAUREYS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cr-00106-1)

S. Rebecca Brodey, appointed by the court, argued the cause

for appellant. With her on the briefs was L. Barrett Boss,

appointed by the court.

James A. Ewing, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief was Elizabeth Trosman,

Assistant U.S. Attorney. Suzanne G. Curt, Assistant U.S.

Attorney, entered an appearance.

Before: ROGERS, TATEL and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Brandon Laureys was convicted by

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a jury of attempted coercion and enticement of a minor and

travel with intent to engage in illicit sexual conduct, arising from

an online encounter with an undercover detective with whom

Laureys enthusiastically envisioned sexual encounters with a

nine year-old girl. This court rejected Laureys’ challenge to his

convictions on the ground that there was insufficient evidence

of intent but remanded his claim of ineffective assistance of

counsel to the district court. United States v. Laureys, 653 F.3d

27, 35 (D.C. Cir. 2011). Laureys now appeals the denial of that

claim. Because we conclude that trial counsel’s failure to obtain

expert mental health testimony was constitutionally deficient,

we reverse the judgment of conviction and remand for a new

trial.

I.

The evidence underlying Laureys’ convictions is set forth

in Laureys, 653 F.3d at 29–31. That evidence, and the evidence

presented on remand, is summarized here as relevant to trial

counsel’s attempt to obtain an expert mental health witness.

A.

Briefly, the evidence at trial showed that on November 14,

2008, Laureys initiated an online chat with

“DaughterLover_Maryland,” a user of the website

IncestTaboo.com who introduced himself as a 38 year-old man

named “Jim.” In reality, “Jim” was D.C. Metropolitan Police

Detective Timothy Palchak. After some discussion of their

predilection for young girls, Palchak told Laureys he had a

sexual relationship with his girlfriend’s nine year-old daughter.

Laureys expressed interest in joining them both for sex (“you

gotta invite me over . . . let me help with the little girl . . . train

the little gir[l, man] . . . make her into a good little whore”).

Chat Transcript at 2.

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Palchak asked Laureys how close he was to D.C., and

Laureys responded that he was “real close” and could come to

“hang out and perv out together.” Id. In response to Palchak’s

stated desire to be safe “before we play,” Laureys suggested “let

her meet me and everything first . . . make sure she wants to do

it haha . . . could start with just letting me watch her an[d you]

. . . til she feels more comfortable.” Id. at 2–3. Palchak offered

to “get a beer first to make su[re we] are comfortable then have

fun at my place,” id. at 4, but Laureys instead suggested meeting

at a park as it would be cheaper. Palchak then emailed Laureys

a picture of a young girl, to which Laureys responded “you

fucking NEED to let me hang out with her man,” id. at 5. After

exchanging information about their physical characteristics,

Laureys warned that he could not stay long because his

girlfriend was coming into town.

Palchak and Laureys thereafter communicated twice by

phone, and according to Palchak, they again exchanged

information about their own physical characteristics and Laureys

described the car he would be driving. When that car arrived at

Palchak’s location, Laureys was arrested and later indicted for

one count of attempted coercion and enticement of a minor, in

violation of 18 U.S.C. § 2422(b), and one count of travel with

intent to engage in illicit sexual conduct, in violation of 18

U.S.C. § 2423(b).

B.

In June 2009, Laureys’ trial counsel contacted Dr. Fred

Berlin, a specialist in sexual disorders at Johns Hopkins

University School of Medicine, about potentially serving as an

expert witness at Laureys’ trial. In a letter of July 7, 2009, to the

trial judge seeking court funding for Dr. Berlin’s services, trial

counsel hinted at what would become the basis of Laureys’

defense at trial — that Laureys was merely fantasizing about sex

with the minor in his chat and wanted to meet with Palchak to

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continue fantasizing offline, stating that “[t]he basic question

we are addressing [with Dr. Berlin] is the actual (subjective)

intent of my client when he engaged in on-line dialogue and

subsequently traveled to the District from Maryland . . . .” Soon

after, trial counsel conducted online research into sexual

compulsion, internet addiction, and chat room deviance. In

subsequent queries to other potential experts, trial counsel raised

the possibility of a diminished capacity defense based on

Laureys’ purported inability to form the specific intent to entice

a child because he suffered from “cybersex addiction.” This

diminished capacity defense would differ from the fantasy

defense in one key aspect, because the latter posited that

Laureys lacked the requisite intent while the former posited that

his cybersex addiction and sexual compulsivity prevented him

from forming the requisite intent.

After two potential expert witnesses either declined to

participate or failed to respond, trial counsel focused exclusively

on Dr. Berlin and his ability to support the diminished capacity

defense, despite having no sense of what Dr. Berlin’s ultimate

diagnosis of Laureys might be. Communication between trial

counsel and Dr. Berlin was sparse. For instance, a month after

Dr. Berlin examined Laureys at the D.C. Central Detention

Facility, trial counsel notified Dr. Berlin that trial was scheduled

to start in less than two weeks, despite his having known of that

schedule for more than a month prior to the examination. Dr.

Berlin’s office responded that he would be unprepared to testify

so soon. Trial counsel sent additional background material to

Dr. Berlin the following day, but Dr. Berlin’s office responded

to ask whether a continuance had been granted because

otherwise Dr. Berlin would not keep working on the case. Trial

counsel responded “2/16/10 more later...” but Dr. Berlin’s office

would eventually claim not to have received this email.

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At an October 29, 2009, status conference at which

Laureys’ trial was continued until February, the trial judge

expressed significant doubts about the diminished capacity

defense envisioned by trial counsel. Suggesting that the defense

was more relevant to sentencing than guilt or innocence, the

judge offered a rather ominous warning that he had seen many

cases in which a defense was prepared only to be abandoned at

the last moment, leaving no defense at all. Trial counsel

acknowledged uncertainty about whether Dr. Berlin might

ultimately be helpful to his client, but he said his own “focus has

been on exploring the issue of sexual compulsivity and Internet

addiction” and how that might negate a showing of specific

intent. 10/29/09 Tr. 6:1–19; see also id. at 3:10–13.

Trial counsel’s next contact with Dr. Berlin was three

months later, when he advised by email in January 2010 that

trial was scheduled to begin in two weeks and was unlikely to be

continued. Dr. Berlin’s office responded that he could not

possibly testify in February, having not previously been

informed of the earlier continuance, and due to his having not

received requested background material, Dr. Berlin had not been

able to come to any conclusions about Laureys. When so

informed, the trial judge again questioned whether trial counsel

was “chasing the will of the wisp” with this strategy, 2/1/10 Tr.

3:25, but again continued trial. At that hearing, trial counsel

indicated that a trial would occur with or without Dr. Berlin,

because Laureys would still testify about his own mental state,

but Dr. Berlin’s testimony would make the defense that much

stronger.

At a February 22, 2010, status conference, trial counsel

sought a new trial date that would allow Dr. Berlin sufficient

time to conclude his analysis. Dr. Berlin refused to offer a

preliminary medical opinion about Laureys in time for the status

conference, explaining that professional ethics forbade him from

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formulating any opinion about Laureys’ mental condition before

he had a chance to review all of Laureys’ records. Yet trial

counsel expressed his own hope that Dr. Berlin would testify

that “Laureys would be incapable of formulating the specific

intent to do the acts which he’s alleged to have done; that he’s

an Internet sexual compulsive and that he doesn’t have a yes/no

mechanism.” 2/22/10 Tr. 3:25–4:24. For a third time, the trial

judge expressed concern to trial counsel that Dr. Berlin “is not

going to give you the result you want,” id. at 9:22–24, but trial

counsel insisted that the “Internet sexual compulsive” diagnosis

exists, speculating that Dr. Berlin would offer a helpful opinion

along those lines, id. at 11:1–23. Trial was then set for May 25,

2010.

One week later, trial counsel informed Dr. Berlin of the new

trial date, as well as an expert report deadline of April 7, 2010.

On March 15, 2010, Dr. Berlin responded that given his other

commitments he could not review the voluminous materials in

time to prepare an opinion for Laureys’ trial. At an April 7,

2010, status conference, the trial judge stated that he would

continue trial until August 2010 if Dr. Berlin provided

something in writing to confirm that “Internet sexual

compulsive” is a recognized disorder, regardless of whether Dr.

Berlin ultimately concluded that Laureys fit that diagnosis.

4/7/10 Tr. 2:16–4:6. Trial counsel advised Dr. Berlin of the

judge’s requirement by letter of same day, laying out the

diminished capacity defense that trial counsel “believe[d] we are

working towards” — Laureys suffers from “a sexual

compulsivity disorder either triggered or aggravated by internet

addiction, compromised impulse control, bi-polar disorder, or

whatever appropriate medical terminology would describe such

a mental state.” In that letter trial counsel also informed Dr.

Berlin that the trial judge was “dubious of [the] ultimate legal

value [of the planned diminished capacity defense] in the trial

setting.” Dr. Berlin responded on April 12 that he agreed with

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the trial judge’s doubts because it was very unlikely that a

successful mental health defense existed in Laureys’ case, and

that with enough preparation time, Dr. Berlin might be able to

offer useful information at a sentencing hearing.

The week before trial, trial counsel made a last-ditch

attempt to secure a different psychiatric expert, Dr. Neil

Blumberg, who advised he would be unable to offer any

professional assistance, and in May 2010, Laureys proceeded to

trial without any expert witness. Abandoning the diminished

capacity defense altogether, trial counsel instead focused on

establishing that Laureys was merely engaging in fantasy with

Detective Palchak. The testimony offered by Laureys himself

in support of this fantasy defense was “disturbing and graphic,”

Laureys, 653 F.3d at 37 (Henderson, J., concurring in part and

dissenting in part), and Laureys now agrees that it constituted

the most damning evidence against him, see Appellant Br.

28–29. Despite some indication that the nine year-old girl

would not be present at the encounter with Palchak — leading

the trial judge to suggest his own reasonable doubt as to the

travel count under Section 2423(b) — the jury found Laureys

guilty on both counts, and he was sentenced to twenty years’

imprisonment.

C.

On remand following Laureys’ unsuccessful initial appeal

of his convictions, Dr. Berlin testified to his belief that trial

counsel wanted him to come to a particular diagnosis, as

reflected in both trial counsel’s correspondence and statements

to the trial judge, that Laureys lacked the capacity to form the

specific intent to entice a minor due to some combination of

sexual compulsivity disorder, internet addiction, bipolar

disorder, or lack of impulse control. He also testified that

although he could not testify to Laureys’ inability to form

specific intent, he could have provided information for the jury

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about the prevalence of fantasy in internet chat rooms, how the

internet facilitates sexual behaviors for vulnerable persons,

Laureys’ mental health issues and how they affect his behavior,

and the meaning of certain internet slang terms used to describe

sexual activity. In particular, Dr. Berlin observed that online

fantasizing can seem very real, but a layperson would not

necessarily know that, and that a person could be aroused by

talking about child sex without then proceeding to seek sex with

children.

Dr. Berlin also rebutted certain quasi-expert assertions

made at trial by Detective Palchak, such as that there are only

three categories of chat participants who engage in child-sex

fantasy: (1) those who masturbate while chatting online, (2)

those who want to go offline for phone sex, and (3) those who

actually want to meet and engage in sex with a child. If those

three categories were exhaustive, Laureys would fall into the

third, because he left his house and drove to the District of

Columbia for a sexual encounter. But Dr. Berlin would have

testified that Palchak’s list of categories was not exhaustive, and

that significant numbers of chat participants are interested in

meeting one another to have adult sex while fantasizing about

children. And, whereas Palchak testified that people interested

only in fantasy chat will reveal that right up front, Dr. Berlin

would have testified that, in fact, it can be very difficult to

distinguish chats in which adults are arranging for sex with

children from chats in which adults are arranging to meet one

another and pretending that a child will join them. Finally, Dr.

Berlin testified that Laureys’ history of promiscuity with adult

men, as well as a series of Laureys’ prior chat transcripts in

which a discussion of child sex was followed by an invitation to

meet the other adult male participant, led Dr. Berlin to conclude

there was a high likelihood that Laureys was interested in having

sex with Palchak while fantasizing about children. All of that

testimony would have bolstered Laureys’ testimony that he

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sought to meet with Palchak to “engage in homosexual activity

while indulging in [taboo] fantasies.” 5/26/10 Tr. 302:5–11.

Trial counsel testified that he always believed a mental

health expert was necessary to Laureys’ defense, but claimed

that he did not seek any particular diagnosis or conclusion from

Dr. Berlin or intend to limit his potential testimony in any way.

Counsel acknowledged that many of the mental health topics

addressed at trial by Laureys’ own testimony would have been

better addressed by an expert witness.

The district court denied Laureys’ claim of ineffective

assistance, concluding that “any ‘failure’ to obtain Dr. Berlin’s

testimony as to Laureys’ mental condition was not for lack of

effort . . . , but rather was due to a combination of mutual

misunderstandings and Dr. Berlin’s exceptionally busy

schedule.” United States v. Laureys, 103 F. Supp. 3d 69, 75

(D.D.C. 2015).1 The district court rejected Laureys’ argument

that trial counsel unreasonably failed to secure a substitute

expert in Dr. Berlin’s place because Dr. Berlin left trial counsel

with little opportunity after declining to participate only seven

weeks before trial, and, in any event, trial counsel did make an

unsuccessful attempt to secure a substitute a week before trial.

Id. at 77 & n.7. Finally, the district court concluded that

Laureys also failed to establish prejudice resulting from the lack

of a mental health expert, pointing to a lack of evidence that

Laureys would have declined to testify if Dr. Berlin had done so

instead. Id. at 77. Laureys appeals.

1

The trial judge had retired by this time, and another

district court judge was assigned to Laureys’ case.

10

II.

To establish a denial of effective assistance of counsel,

Laureys had to show both that trial counsel’s performance “fell

below an objective standard of reasonableness” and thus “was

not within the range of competence demanded of attorneys in

criminal cases,” Strickland v. Washington, 466 U.S. 668, 687–88

(1984) (internal quotation marks omitted); and that he suffered

prejudice because “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different,” id. at 694. This court reviews de

novo the district court’s determination that Laureys was not

denied his Sixth Amendment right to the effective assistance of

counsel. United States v. Abney, 812 F.3d 1079, 1086–87 (D.C.

Cir. 2016) (discussing, inter alia, Strickland, 466 U.S. at

698–700; Payne v. Stansberry, 760 F.3d 10, 13 (D.C. Cir. 2014);

United States v. Rodriguez, 676 F.3d 183, 189–92 (D.C. Cir.

2012), and the decisions of our sister circuits). The district

court’s factual findings are reviewed for clear error. Payne, 760

F.3d at 13.

A.

“[P]sychiatry has come to play [a pivotal role] in criminal

proceedings,” such that in cases turning on the defendant’s

mental state, “the assistance of a psychiatrist may well be crucial

to the defendant’s ability to marshal his defense.” Ake v.

Oklahoma, 470 U.S. 68, 79–80 (1985). Congress has similarly

provided that indigent defendants are entitled to the assistance

of a mental health expert if “necessary for adequate

representation.” See 18 U.S.C. § 3006A(e). Unsurprisingly

then, courts have found ineffective assistance arising from

counsel’s failure to offer expert mental health testimony where

it was necessary to an adequate defense. See, e.g., Gray v.

Branker, 529 F.3d 220, 229–32 (4th Cir. 2008); Dando v.

Yukins, 461 F.3d 791, 798–800 & n.3 (6th Cir. 2006); Ainsworth

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v. Woodford, 268 F.3d 868, 875–76 (9th Cir. 2001); Mauldin v.

Wainwright, 723 F.2d 799, 800–01 (11th Cir. 1984).

Here, trial counsel recognized from his very first meeting

with Laureys that a mental health expert would be necessary to

his defense, and rightly so. Laureys has steadfastly maintained

his innocence, despite the existence of a chat transcript in which

he discussed child sex in graphic detail, because he insists that

he was only engaging in fantasy and that his actual intent was to

engage in an adult sexual encounter while fantasizing about a

child. Such a defense might seem unimaginable to the average

juror absent a clinical presentation regarding, for instance, the

prevalence of fantasy in internet chat rooms, or the use of

fantasy chat as a coping mechanism to deal with inappropriate

or unlawful sexual urges. Therefore, with trial counsel having

correctly identified the need for a mental health expert, the

question is whether his failure to provide that expert at trial “fell

below an objective standard of reasonableness,” Strickland, 466

U.S. at 687–88.

The district court held it did not because, due to a

combination of mutual misunderstandings and Dr. Berlin’s busy

schedule, Dr. Berlin was simply unavailable to testify. Laureys,

103 F. Supp. 3d at 75; see also Laureys, 653 F.3d at 36

(Henderson, J., concurring in part and dissenting in part). Given

the trial judge’s willingness to accommodate Dr. Berlin’s

schedule, however, the finding that Dr. Berlin was unavailable

was clearly erroneous. The trial judge made clear that he was

prepared to once again continue Laureys’ trial if Dr. Berlin

would submit a written statement confirming that “Internet

sexual compulsive” is a recognized psychiatric diagnosis,

regardless whether Dr. Berlin ultimately determined Laureys fit

that diagnosis. Dr. Berlin declined to do so, informing trial

counsel by letter of April 12, 2010, that there was likely not a

viable mental health defense for Laureys even with enough time

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to prepare for trial. Timing or lack of preparation was not the

deal breaker for Dr. Berlin, but rather his own doubt that he

could provide what trial counsel was seeking.

The record amply demonstrates that what trial counsel was

seeking was an internet compulsivity diagnosis that trial counsel

had arrived at through his own online research, which would

support a defense of diminished capacity. As Laureys contends,

and as Dr. Berlin testified on remand, trial counsel led Dr. Berlin

to believe that counsel was interested in establishing only this

diminished capacity defense. When Dr. Berlin did not “come

. . . to the conclusion that the trial counsel had hoped [he] would

come to,” 12/16/14 Tr. 13:11–13, Dr. Berlin bowed out of the

proceeding altogether, leaving Laureys without the benefit of the

clinical testimony that Dr. Berlin could have offered, which, as

trial counsel acknowledged on remand, would have informed the

jury’s assessment of the fantasy-only defense and helped

buttress Laureys’ own testimony. The government insists that

if there had been a valid diminished capacity defense as

envisioned by trial counsel, it would have been “much more

powerful than the credibility-based ‘fantasy’ defense” ultimately

relied upon at trial. Appellee Br. 47. Even assuming the

government is correct, it somewhat misses the point. Trial

counsel focused Dr. Berlin on an invalid diminished capacity

defense to the exclusion of all other possible defenses.

Trial counsel’s denial that he directed Dr. Berlin to come to

any particular diagnosis or conclusion, instead mentioning

diminished capacity as only one possible defense theory, is

belied by all of his communications with Dr. Berlin and the trial

judge on this topic. Trial counsel implied at one point in his

testimony that it was up to Dr. Berlin to come to whatever

helpful conclusion he could, inasmuch as Dr. Berlin was more

experienced than trial counsel and was familiar with the court

process and what lawyers are seeking. From the perspective of

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Dr. Berlin and the trial judge, however, trial counsel’s

communications were far too specific to be understood as

seeking any clinical testimony that would benefit his client.

Indeed, when afforded the opportunity on remand, trial counsel

could point to no evidence that he had sought from Dr. Berlin

any such beneficial testimony, rather than testimony on

diminished capacity. Even if it was not actually trial counsel’s

intent to limit Dr. Berlin’s inquiry, his single-minded pursuit of

a particular diagnosis had the effect of denying his client Dr.

Berlin’s services.

Furthermore, trial counsel also unreasonably failed to

secure a different mental health expert when it became doubtful

that Dr. Berlin would testify. Just as trial counsel placed all of

his hopes on a particular defense, he placed all of his hopes on

obtaining expert testimony from Dr. Berlin, despite Dr. Berlin’s

continued scheduling conflicts, his persistent refusal to speculate

about the requested diminished capacity diagnosis, and the trial

judge’s repeated skepticism that Dr. Berlin would come through

as trial counsel envisioned. In rejecting this part of Laureys’

ineffectiveness claim, the district court placed dispositive weight

on the fact that Dr. Berlin dropped out only seven weeks before

trial, leaving trial counsel little opportunity to replace him.

Laureys, 103 F. Supp. 3d at 77. But that assumes it was

reasonable to rely solely on Dr. Berlin in the first place. Had Dr.

Berlin opined, even tentatively, that trial counsel’s planned

defense could be viable, it might have been reasonable to focus

on him to the exclusion of all other experts. Just weeks before

trial, however — due to his own apparently exclusive and

erroneous focus on expert testimony about Laureys’ diminished

capacity — trial counsel still had no idea whether Dr. Berlin

would be available to testify or what his opinion might turn out

to be. In these circumstances, a prudent attorney would at a

minimum have sought an alternative source.

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Trial counsel acknowledged that he had initially identified

another potential expert, Dr. David Greenfield, and even

submitted a request for court funding for his expert services, but

counsel did not further explore Dr. Greenfield’s availability after

deciding to rely on Dr. Berlin. Trial counsel did not reach out

again to Dr. Greenfield after Dr. Berlin first tentatively and then

definitively bowed out, and although he did make an

unsuccessful “last stab attempt” to secure Dr. Neil Blumberg a

week before trial, 12/16/14 Tr. 141:17–22, nothing in the record

suggests that he requested another continuance to allow him to

secure a different expert when that failed. Instead, counsel took

the case to trial with only Laureys, who suffers from a serious

mental illness, left to explain his own intent.

The record does attest to aspects of trial counsel’s

representation of Laureys that were undeniably conscientious,

such as securing court approval for expert witness funding and

arranging for Dr. Berlin to interview Laureys at the D.C. Jail.

It confirms as well that trial counsel had contacted other

potential expert witnesses. This is not a case, then, where trial

counsel did not attempt to obtain a mental health expert. Rather,

trial counsel’s grievously misguided effort to employ a mental

health expert in his client’s defense was so flawed as to be “the

sort of serious blunder that will singlehandedly support a

Strickland claim.” United States v. Hurt, 527 F.3d 1347, 1356

(D.C. Cir. 2008). The record shows that in pursuing his own

idea of a diminished capacity defense, trial counsel lost sight of

how Dr. Berlin could have placed his client’s conduct in a

clinical context and mitigated the effects of evidence offered by

the government and by Laureys himself. Indeed, there was

some indication that trial counsel failed altogether to appreciate

the benefits of the relevant and appropriate mental health

testimony explaining pedophilic fantasy, which could have

bolstered Laureys’ fantasy defense. See United States v. Hite,

769 F.3d 1154, 1170 (D.C. Cir. 2014). On remand, trial counsel

15

acknowledged that he never asked Dr. Berlin whether he could

explain pedophilia to the jury, and he was unable to show that he

had asked Dr. Berlin to explain the internet fantasy-chat

subculture. Counsel admitted that he had never handled an

insanity defense, and yet he appears to have considered himself

qualified, as a layperson, to effectively diagnose his client as an

“Internet sexual compulsive” and pursue confirmation of a

diminished capacity diagnosis with potential experts. Nothing

in the record even confirms that “Internet sexual compulsive” is

a mental disorder recognized by the American Psychiatric

Association.

The government’s response that Dr. Berlin’s testimony

would have “actively harmed” Laureys, Appellee Br. 46, not

only overlooks how clinical testimony would have provided

information to help the jury place Laureys’ conduct in context,

it ignores altogether how Dr. Berlin could have rebutted

Detective Palchak’s quasi-expert opinions and effectively

limited the harmful effect of much of Laureys’ testimony. Trial

counsel’s failure to secure expert testimony cannot properly be

excused as a “reasonable, calculated choice,” but see Appellee

Br. 48 (quoting United States v. Mohammed, 693 F.3d 192, 204

(D.C. Cir. 2012)), and even trial counsel did not claim that it

was.

In sum, trial counsel’s error led to the complete failure to

provide expert mental health testimony that trial counsel himself

recognized was necessary, thereby depriving Laureys of an

adequate defense. This was a slow-moving train wreck, one set

in motion long before Dr. Berlin’s eventual exit; indeed, it

played out as the trial judge had predicted seven months before

trial. It was thus unreasonable for trial counsel, so warned, to

have done so little to avert it.

16

B.

Turning to prejudice, there is no question that Laureys’

defense, and his own testimony, would have been significantly

bolstered by expert testimony regarding fantasy chat and, more

specifically, the existence of a subculture of men who meet first

online and then offline for sex with one another spurred on by

child sex fantasies, such that a “reasonable probability” of a

different outcome at trial exists. Strickland, 466 U.S. at 694.

The court recently determined Strickland prejudice was

established where trial counsel failed to offer expert psychiatric

testimony necessary to establish a duress defense. United States

v. Nwoye, 824 F.3d 1129, 1139–40 (D.C. Cir. 2016). In

particular, expert testimony on the battered woman syndrome

would have bolstered the defendant’s testimony that she

participated in an extortion scheme only at the direction of her

abusive boyfriend, especially because a juror might otherwise

question why she did not just leave her abuser instead. Id.

Here, Laureys testified to his own intent in chatting with and

traveling to meet Palchak, but without expert assistance, a juror

could reasonably conclude that anyone who engaged in such

frankly disturbing chat must have done so actually intending to

have sex with a child. The government labels the notion that

people engage in online sexual fantasy as “common

knowledge,” Appellee Br. 49, but the notion that people engage

in graphic, very realistic fantasy about sex with children, both as

a means of coping with such urges and as a prelude to adult

homosexual encounters, can hardly be considered within the ken

of the average juror. As this court has noted, Dr. Berlin’s

clinical testimony regarding internet sexual fantasy involving

children “can shed light on what may be an unfamiliar topic to

most jurors.” Hite, 769 F.3d at 1169–70. And although the jury

could still have reasonably concluded that Laureys was not

merely fantasizing and planning for adult sex with Palchak, that

is a different question than whether a reasonable probability

17

exists that a jury so informed by expert testimony would have

concluded otherwise. See Nwoye, 824 F.3d at 1140.

The lack of a mental health expert also prejudiced Laureys

by leaving him unable to rebut dubious, quasi-expert testimony

by Detective Palchak. The jury heard from Detective Palchak

that only three categories of chat participants exist: those who

only chat online, those who want to then have phone sex, and

those who seek to meet in order to have sex with a child. This

would lead the jury to believe that Laureys must have fallen into

the third category because it was undisputed that Laureys did

seek to meet with Palchak following their online chat. Dr.

Berlin’s testimony made clear that Detective Palchak’s

taxonomy was incomplete, in that another category is known to

exist for participants who seek to meet to have an adult sexual

encounter with one another. Similarly, Dr. Berlin could have

rebutted Detective Palchak’s damaging testimony that

“[t]ypically people who are interested in fantasy tell you right up

front, I’m into fantasy, not realtime,” 5/26/10 Tr. 243:15–16,

which suggested to the jury that Laureys must not have been

interested in fantasy because he made no such up-front

disclaimer.

The government nonetheless maintains that Laureys

suffered no prejudice because he would have offered his own

lurid, confused testimony regardless of whether a mental health

expert also testified. Appellee Br. 50 n.22; see also Laureys,

103 F. Supp. 3d at 77. Although the record does indicate that,

according to trial counsel, Laureys would have testified either

way, that is not the relevant question. Trial counsel conceded

that many topics addressed by Laureys’ testimony would have

been better addressed by Dr. Berlin, such as the existence of an

online fantasy subculture, phone sex, deviant sex fantasies, and

Laureys’ diagnosis of himself as a sex addict. It is thus

reasonable to expect that trial counsel would have limited

18

Laureys’ damaging testimony to the extent Dr. Berlin had

already testified on those topics. And even if through effective

cross-examination the government were able to draw Laureys

out on those topics, Dr. Berlin’s detached, clinical perspective

would have at least framed Laureys’ testimony in a crucial way,

allowing the jury to understand Laureys’ condition as a doctor

would, rather than as the “clearly quite disturbed” defendant

understood himself. 12/16/14 Tr. 33:9–11; see Appellant Br.

43–44; Reply Br. 11. That difference in perspective might not

have been dispositive, but in such a difficult, troubling case in

which even the trial judge expressed doubt about Laureys’ intent

in traveling to D.C., see also Laureys, 653 F.3d at 43–44

(Brown, J., dissenting in part), the significance of Dr. Berlin’s

perspective cannot be underestimated.

Because we conclude that Laureys has met his burden to

establish that he was denied his right to the effective assistance

of counsel by trial counsel’s failure to secure expert mental

health testimony, the court has no need to address his additional

claims of ineffective assistance. Accordingly, we reverse the

judgment of conviction and remand this case for a new trial.