United States v. Cathy Truitt

In the

United States Court of Appeals

For the Seventh Circuit

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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. at

594–95. 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 at

172–73. 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.