The Tenth Circuit published its opinion in United States v. Orr on August 29, 2012.
William Orr, a creator of an alternative fuel, was convicted of wire and mail fraud, tax evasion, and making false statements to investors and the federal government. Orr hired scientists to perform tests on his fuel at his request. These scientists testified at trial as lay witnesses for the prosecution. Orr objected to the admission of their testimony because the government did not qualify them as expert witnesses under FRE 702. The Tenth Circuit found no abuse of discretion in allowing them to testify as lay witnesses. “It makes no difference if the court qualified these witnesses as experts because Orr engaged them to perform the precise services and provide the information which was the subject of their testimony. . . . The trial court walked a careful line between allowing these witnesses to testify based on first-hand knowledge and disallowing opinions based on their expertise.” The court also disposed of Orr’s argument that “the admission of the non-expert testimony violated his Sixth Amendment right to confront the witnesses and his Fifth Amendment right to a fair trial. . . .” Claiming defense counsel could not ask certain questions of the witnesses with no way to ascertain what those questions might be was too speculative to be an error.
Orr also objected to the exclusion of some of his proffered experts. The Tenth circuit found Orr failed to meet his burden of showing one expert’s methodology was reliable. Other witnesses were properly excluded because their testimony would confuse the issues. A defendant’s “right to present a complete defense must ‘bow to accommodate other legitimate interests in the criminal trial process.’”
Orr claimed government misconduct based on the prosecutor’s hypothetical questions to investor witnesses. The court disagreed. “[T]he prosecutor here was required to show that Orr deliberately misrepresented material facts to his investors. The prosecutor’s question went to the material nature of Orr’s statements. The question focused on the investor’s willingness to supply money if he discovered the tests did not show the promised advantages over other fuels. The prosecutor did not express her personal beliefs about these matters and the question was based on testimony presented to the jury.”
The court also denied Orr’s prosecutorial misconduct claims that the prosecution implicitly called Orr and his defense counsel liars in closing argument by saying the investors relied on Orr’s “false statements and his lies to invest a second time.” Where some of the charges required proof the defendant lied to his investors and the government, this was acceptable language. “In the proper context, such as where the testimony conflicts on key aspects of a case and the jury must determine credibility, it is not misconduct to refer to the defendant’s statements as lies.”
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