May 27, 2017

Tenth Circuit: No Confrontation Clause Violation for Testimony of Anonymous Confidential Informants

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gutierrez de Lopez on Friday, August 1, 2014.

Maria Letitia Gutierrez de Lopez (Gutierrez), along with co-defendant Jesus Cabral-Ramirez (Cabral), was caught attempting to transport illegal aliens from El Paso, Texas to Denver, Colorado by federal law enforcement officers as part of a sting operation. In 2010, FBI and Border Patrol agents initiated “Operation Desert Tolls,” a joint investigation into alien-smuggling operations in New Mexico, Texas, and Colorado. In June 2011, agents apprehended “John Smith,” who agreed to become an informant for the FBI. In November 2011, Smith was contacted by Cabral, who offered to put Smith in touch with Gutierrez to “arrange for work” smuggling undocumented aliens away from the border. Gutierrez called Smith regarding the transport of a person later identified as Eneldo Valenzuela-Carrillo. The government recorded various conversations between Gutierrez and Smith and Cabral and Smith regarding the transport and payment. On November 21, 2011, Smith, Cabral, and Gutierrez began the transport of Valenzuela-Carrillo. Gutierrez picked up the payment money for the transport at a Walmart money center and distributed it to herself, Smith, and Cabral. However, federal agents arranged for Gutierrez’s vehicle to be stopped south of Santa Fe, where they took Valenzuela-Carrillo and another suspected alien into custody. Gutierrez was not arrested at that time.

In May 2012, Gutierrez was indicted by a federal grand jury on one count of conspiring to transport undocumented aliens, and she was arrested by FBI agents in June 2012. She pled not guilty. At trial, the government sought to prove that Valenzuela-Carrillo was unlawfully present in the United States, but they had deported him prior to trial, so they introduced testimony from Senior Border Patrol Agent Knoll instead to prove Valenzuela-Carrillo’s status as an undocumented alien. The government also used Knoll’s testimony to support their theory that Gutierrez intended to “further” Valenzuela-Carrillo’s illegal presence by transporting him away from the border. Over the defense’s objections, Knoll provided expert testimony on the alien smuggling trade. The government also offered testimony from two confidential informants, who requested anonymity because of the involvement of a Mexican drug cartel’s connection to the case. The two witnesses, who testified as “John Smith” and “James Jones,” testified regarding their roles in arranging transportation and payment with Gutierrez. The government supplied background information including criminal history, compensation figures for cooperating with the FBI, and immigration status, but refused to disclose their true identities.

Gutierrez was convicted as charged. She appealed, contending that the district court erred in allowing (1) Knoll to testify regarding Valenzuela-Carrillo’s immigration status in violation of the Confrontation Clause and Federal Rules of Evidence regarding hearsay; (2) Knoll to offer expert testimony unhelpful to the jury; and (3) the two confidential informants to testify anonymously in violation of the Confrontation Clause. The Tenth Circuit addressed each claim in turn.

At trial, Knoll testified that he personally retrieved the two individuals from Gutierrez’s vehicle for processing. When he could not remember their names, the prosecution briefly showed him their immigration files to refresh his memory. Defense counsel objected, concerned that Knoll would introduce evidence from these forms regarding the two individuals’ immigration status, but the district court allowed the prosecution to show Knoll the files. On appeal, Gutierrez argued that this violated FRE 602 regarding personal knowledge, but the Tenth Circuit disagreed, finding that Knoll’s testimony supported a conclusion that he had personal knowledge of the immigration status of the two aliens. Gutierrez also argued that Knoll’s testimony violated the Confrontation Clause, but again the Tenth Circuit disagreed because Knoll was present at trial and defense had the opportunity to cross-examine him.

Next, Gutierrez asserted that Knoll’s testimony was unhelpful to the jury. Before trial, defense moved in limine to exclude Knoll’s proffered expert testimony on several grounds, but the district court denied the motion, reasoning that Knoll was qualified to testify as an expert due to his experience as a senior border patrol agent, and the testimony would be reliable and helpful to the jury. Defense counsel again objected at trial under FRE 702(a)’s helpfulness standard. The Tenth Circuit reviewed the district court’s decision to allow the testimony and found no abuse of discretion. The Tenth Circuit opined that Knoll’s testimony would allow insight into the alien smuggling trade and the function and locality of border patrol agents that the average juror would not have, and affirmed the district court.

Finally, turning to the testimony of the confidential informants, the Tenth Circuit found ample reason for protecting their identities. The government requested anonymity for security reasons, worried that if the names were released in open court, that information would make it back to the Mexican drug cartels to which the informants were connected. The government also noted that its investigation was ongoing and at least one of the informants would continue to provide information. The Tenth Circuit agreed with Gutierrez that the government failed to make an adequate showing of the need for secrecy, since the government’s assertions of risk to the informants were generalized statements that anyone who testifies against a cartel faces danger. However, despite the government’s inadequate showing of the need for secrecy, the Tenth Circuit ruled that Gutierrez was provided ample information for Confrontation Clause purposes, particularly because the two informants testified in person and the government provided significant impeachment material. The Tenth Circuit determined that any error resulting from the insufficient showing of the need for secrecy was harmless in light of Gutierrez’s adequate ability to cross-examine and impeach the witnesses.

Gutierrez’s conviction was affirmed.

Tenth Circuit: Religious Iconography Testimony Irrelevant and Not Harmless to Defendants

The Tenth Circuit Court of Appeals issued its opinion in United States v. Medina-Copete on Wednesday, June 3, 2014.

Maria Vianey Medina-Copete (Medina) and Rafael Goxcon-Chagal (Goxcon) were traveling in a borrowed truck through New Mexico when they were pulled over for following another vehicle too closely. Officer Chavez, who stopped the vehicle, became suspicious that Medina and Goxcon were engaged in drug activity because of the overwhelming odor of air freshener coming from the vehicle, Medina’s nervousness and chanting of a prayer to Santa Muerte, and the changes in Medina’s and Goxcon’s behavior when questioned about the presence of methamphetamine in the vehicle. Chavez, who is not fluent in Spanish, had difficulty communicating with Medina and Goxcon, who are not fluent in English. Eventually, Chavez obtained consent to search the vehicle with a form written in Spanish, and a drug sniffing dog alerted to the glove box on the passenger side of the truck. After a thorough search, a secret compartment was found on the vehicle containing nearly two pounds of 90% pure methamphetamine.

Medina and Goxcon were placed under arrest, and subsequent to their arrests were interviewed by Spanish-speaking DEA officials. They gave conflicting stories to the DEA officials. At the end of her interview, Medina asked to retrieve her personal belongings from the vehicle, a black duffel bag. The officer who retrieved the bag found a handgun under a piece of clothing. In an indictment, Goxcon and Medina were jointly charged with conspiracy to possess with intent to distribute methamphetamine, possessing with intent to distribute methamphetamine, and using or carrying a firearm in connection with a drug trafficking crime. Medina was also charged with being an illegally present alien in possession of a firearm and with illegal reentry.

In their joint trial, Medina and Goxcon asserted that they had no knowledge of the drugs in their borrowed vehicle. Two experts testified against them, United States Marshal Robert Almonte of the Western District of Texas and DEA Agent Ivar Hella. Almonte testified about his research into religious iconography and its significance in the drug world, specifically Santa Muerte to whom Medina was furiously praying during the traffic stop. Hella testified about drug trafficking between this country and Mexico, and that blind mules are rarely used as drug couriers because of the risks of accidental discovery of the drugs. Medina and Goxcon challenged both experts’ testimony. The jury returned guilty verdicts against both defendants on all counts, and defendants timely appealed.

Defendants asserted that the trial court erred by allowing Almonte to testify, and that his testimony violated FRE 403, 702, and 704(b), as well as their First Amendment rights. The Tenth Circuit evaluated Almonte’s testimony in light of the factors set forth in Daubert and Kumho Tires, and found that his testimony regarding Santa Muerte did not qualify as explicative of a “tool of the trade,” because it was unclear how praying to a religious figure could be a tool in the drug trade. The Tenth Circuit analogized the religious iconography to finding baggies or a razor blade, which can easily be understood to be tools of a drug trade despite their common household use, and found that there was no similar utility to the religious symbols. The Tenth Circuit noted that the district court’s failure to examine how Almonte’s testimony could assist the jury also affected its reliability. Citing a concurrence from the Eighth Circuit analyzing Almonte’s testimony in a different case, the Tenth Circuit found that there was no causal connection between religious iconography and the drug trade, so his testimony was not sufficiently reliable. Because the Tenth Circuit found error in admitting Almonte’s testimony, it evaluated whether the error was harmless, and determined that it was not. The government did not have a strong case against Goxcon and Medina, so the chance that the religious iconography testimony prejudiced the jury was great.

As to Hella’s testimony, the Tenth Circuit found no error. His testimony was relevant to show that it was less likely that Goxcon and Medina were unaware of the presence of methamphetamine in the truck due to various factors, including the unlikelihood of using blind mules and the strong smell of pure methamphetamine.

The Tenth Circuit also reviewed Medina’s assertion that the government had insufficient evidence to convict her, and disagreed. The case was remanded to the district court to vacate the convictions based on drug trafficking and for further proceedings consistent with the opinion. Because Medina did not challenge her illegal reentry or possession of firearm by an illegal alien convictions, the Tenth Circuit did not vacate them.

Colorado Court of Appeals: No Error in Trial Court’s Refusal to Provide Expert Witness Without Funding to Indigent Defendant

The Colorado Court of Appeals issued its opinion in People v. Stroud on Thursday, May 8, 2014.

Child Abuse—Expert Witness Funding—Indigency—“Admission”—Dependency and Neglect Testimony—Effective Representation—Consecutive Sentences—Presentence Confinement Credit.

This appeal arises from allegations of child abuse concerning defendant’s 11-week-old daughter, R.S., and his stepchildren, C.H. and S.H. The judgment was affirmed.

On appeal, Stroud contended that the trial court abused its discretion when it denied his motion for funds to hire an expert. Here, Stroud was eligible for a court-funded expert because he was indigent and represented by a private attorney who began representing him on a pro bono basis. Thus, the trial court should have provided him expert witness funding without an initial determination of indigency by the Public Defender’s Office. Although the trial court abused its discretion, however, the error was harmless beyond a reasonable doubt, because Stroud did not establish that an expert was necessary and there was overwhelming evidence of his guilt.

Stroud also contended that the trial court erroneously admitted his testimony from a previous dependency and neglect case. An “admission” under CRS § 19-3-207(3) only refers to a parent’s formal admission or denial of the allegations in a petition. It does not preclude admissions made during testimony in a dependency and neglect case in a subsequent criminal case. Therefore, the trial court did not err in admitting Stroud’s testimony from his dependency and neglect case.

Next, Stroud argued that his convictions for child abuse should have been reversed because his trial counsel labored under an actual conflict of interest that denied him effective assistance of counsel. Here, the absence of expert testimony did not undermine defense counsel’s representation. Further, the record refutes Stroud’s argument that his trial counsel did not vigorously contest the prosecution’s evidence. Accordingly, there was no actual conflict of interest that adversely affected defense counsel’s performance.

Finally, Stroud contended that the trial court did not make specific findings of fact to justify its imposition of consecutive sentences for his misdemeanor and felony convictions, and that the trial court erroneously denied him presentence confinement credit. Here, the trial court did not abuse its discretion in imposing consecutive sentences after considering the nature of the offense, Stroud’s character and rehabilitative potential, his respect for the law, the deterrence of crime, and protection of the public. Further, the court did not abuse its discretion in applying Stroud’s credit for presentence confinement to his misdemeanor sentence rather than his felony sentence.

Summary and full case available here.

Tenth Circuit: Plain Error Reversal Required Due to Expert’s Impermissible Testimony Regarding Defendant’s Untruthfulness

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hill on Monday, April 28, 2014.

Stanley Hill appealed his conviction of several charges related to a robbery of a bank in Tulsa, Oklahoma. Stanley Hill and his brother, Vernon Hill, were charged with bank robbery after a tracking device on stolen bills led police to Stanley’s father’s house, where Stanley and Vernon were arrested. Stanley claimed that he had spent the night at his girlfriend’s house and was sleeping at the father’s house at the time the robbery occurred. A Tulsa police officer and an FBI agent, Agent Jones, conducted a taped interview of Stanley in which he denied involvement in the robbery.

Agent Jones testified at trial as a qualified expert. His testimony discussed his theory of the case, that Stanley had been the getaway driver during the robbery. Agent Jones also testified that he had been specially trained to detect untruthfulness, and that in his opinion Stanley was not truthful during testimony. He offered several points to emphasize his opinion of Stanley’s untruthfulness.

Although a contemporaneous objection was not made to Agent Jones’ testimony, the Tenth Circuit conducted a plain error review and determined that the testimony regarding Stanley’s truthfulness was impermissible. Stanley did not argue that Agent Jones was unqualified to testify under FRE 702, but rather that the subject matter of his testimony—the credibility of another person—was outside the scope of Rule 702. The Tenth Circuit agreed, noting that such testimony usurps the function of the jury, is not helpful to the jury, and can unduly influence a jury because a credible expert holds more authority to the average juror than a defendant.

The Tenth Circuit determined that the error was not harmless. The prosecution did not have a strong case against Stanley, and much of their evidence against him hinged on the proposition that his testimony was false. The Tenth Circuit acknowledged that Stanley showed that there was a reasonable probability that he would not have been convicted without Agent Jones’ testimony. The Tenth Circuit issued a warning to the defense bar that reversal in the absence of contemporaneous objection is a rare exception rather than the rule, but Stanley satisfied all four prongs of the plain error standard and the case was reversed and remanded with instructions for vacation of the sentence and convictions.

Colorado Court of Appeals: Jury Properly Instructed on Element of Self-Defense

On Thursday, April 24, 2014, the Colorado Court of Appeals issued its opinion in People v. Lane.

Jury Instructions—Lay Testimony—Expert Testimony—Mental Examination—Restitution.

After consuming several drinks, defendant Jason Lane and the victim went to Lane’s motel room in Aurora, where the victim and a neighbor of Lane’s smoked crack cocaine. Afterward, Lane permitted the victim to spend the night. According to Lane, he awoke in the middle of the night to find the victim groping his chest and genitals over his clothing. Lane claimed he acted in self-defense by stabbing the victim with a steak knife thirteen times in the chest, killing him. The jury convicted Lane of second-degree murder, and the trial court sentenced him to forty-five years in prison. The trial court also ordered Lane to pay restitution to all three of the victim’s siblings.

On appeal, Lane contended that the trial court erred in giving the jury improper jury instructions. The applicable self-defense statute emphasizes the reasonableness of a defendant’s use of self-defense. Here, the trial court properly instructed the jury on this element, and defense counsel did not tender an alternative instruction or raise further objections. The court also properly instructed the jury on the issue of defendant’s claim of an elemental traverse, which does not place the burden on the prosecution to disprove this type of self-defense.

Lane also contended that the trial court erred in excluding certain expert and lay testimony. The court did not err in finding that Lane’s request for expert testimony concerning post-traumatic stress disorder triggered Lane’s requirement to undergo a court-ordered examination for this condition, which Lane refused to do. The court also did not abuse its discretion in denying Lane’s request to present lay witnesses to testify about physical and sexual abuse perpetrated against him when he was a young child and an adolescent, because this testimony was too remote and irrelevant without expert testimony to explain the impact of such incidents on Lane’s mental state.

Lane further contended that the trial court erred in limiting the cross-examination of D.B., a prosecution witness who worked at the bar where Lane and the victim met the night of the crime. However, the record shows that defense counsel elicited, and the jury had ample information about, D.B.’s felony conviction and background to assess her credibility. Therefore, the trial court did not abuse its discretion in excluding the further details of this issue.

Finally, Lane contended that the trial court erred in awarding restitution for the travel expenses of all three of the victim’s siblings to attend the trial. Because the statute permits such restitution when a victim is deceased, the trial court did not err in awarding restitution to the victim’s siblings. The judgment and order were affirmed.

Summary and full case available here.

Tenth Circuit: Expert Did Not Simply Repeat Outside Information, but Formed Conclusions Based on His Experience

The Tenth Circuit Court of Appeals issued its opinion in United States v. Kamahele on Tuesday, April 8, 2014.

Mr. Eric Kamahele, Mr. Daniel Maumau, Mr. Kepa Maumau, Mr. Sitamipa Toki, and Mr. Mataika Tuai appeal their convictions arising from armed robberies and shootings in connection with the Tongan Crips Gang (“TCG”) in Glendale, Utah. In a jury trial, Mr. Kamahele, Mr. Kepa Maumau, and Mr. Tuai were found guilty of conspiring to commit a racketeering offense under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 (2006). Mr. Eric Kamahele, Mr. Daniel Maumau, Mr. Kepa Maumau, and Mr. Sitamipa Toki were found guilty of committing violent crimes in aid of racketeering activity (“VICAR”), 18 U.S.C. § 1959(a) (2006). Mr. Kamahele, Mr. Kepa Maumau, and Mr. Tuai were also found guilty of violating the Hobbs Act, 18 U.S.C. § 1951(a) (2006). And all were found guilty of violating 18 U.S.C. § 924(c) (2006), for using guns during their respective crimes.

All of the defendants contend the district court erred by: (1) admitting expert testimony by Mr. Break Merino about the TCG’s history, structure, and activities, and (2) denying their motions for a judgment of acquittal under Federal Rule of Criminal Procedure 29 based on the Government’s failure to prove various elements of RICO and VICAR. Four defendants also raised individual claims.

The Tenth Circuit rejected all of the individual and collective arguments and affirmed the judgments of the trial court.

Mental Health Experts and the Look of Science

Dr-JohnBy John A. Zervopoulos, Ph.D., J.D., ABPP

Do you know what science looks like?—a key Daubert/Shreck-era question for mental health experts. Statistics? Publications? A body of facts? Don’t view these badges as proofs of science. Instead, step back and view science as a mindset, a way of doing critical thinking—how one assesses which ideas are reasonable and which are not. A basic question highlights the scientific inquiry: “How do you know what you say you know?”

Too often we mistakenly accept imposters of science. Daubert caselaw, addressing this problem, stresses that courts must look past the badges of science to determine whether to trust the expert’s testimony. For example, pronouncements from experts with sterling qualifications don’t by themselves certify the testimony as trustworthy. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157 (1999). Publication—one element of peer review—is not a sine qua non of admissibility; it does not necessarily correlate with reliability. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993). General acceptance does not help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology. Kumho Tire Co., 526 U.S. at 151.

The late physicist Richard Feynman told a classic tale, Cargo Cult Science, to analogize how some people use the look of science to try to emulate real science. He described a group of South Sea people who had seen airplanes deliver cargos of goods and materials to their islands during World War II. After the War, these islanders wanted the imports to continue—but the pilots had gone home. So, the islanders set out to re-create the setting: They made runways; a hut for a man, the controller, to sit in; two bamboo pieces as antennae for the man to strap to his head. Then everyone waited for airplanes to land. The islanders, from their view, did everything right. The form seemed perfect, but no airplanes landed. The islanders were missing something essential.

Feynman’s point—and Daubert’s: Mental health experts, like the islanders, sometimes highlight badges of science to prove their testimony but neglect to exercise the essential critical thinking that science and caselaw require. Ask, “How do you know what you say you know?”—repeatedly, if necessary—to expose the bases of mental health testimony. Cargo cult science or critical thinking-based science?

John A. Zervopoulos, Ph.D., J.D., ABPP is a forensic psychologist and lawyer who directs PsychologyLaw Partners, a forensic consulting service providing consultation to lawyers on psychology-related issues, materials, and testimony. His second book, How to Examine Mental Health Experts: A Family Lawyer’s Guide to Issues and Strategies, is newly published by the American Bar Assn. He is online at www.psychologylawpartners.com and can be contacted at 972-458-8007 or at jzerv@psychologylawpartners.com.


CLE Program: How to Examine Mental Health Experts: A Practical Plan

This CLE presentation will take place on March 6, 2014. Click here to register for the live program, and click here to register for the webcast. You may also call (303) 860-0608 to register.

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Colorado Court of Appeals: Judgment of Trial Court Affirmed in Child Sexual Assault Case

The Colorado Court of Appeals issued its opinion in People v. Conyac on Thursday, January 30, 2014.

Sexual Assault on a Child—Challenge for Cause—Expert Testimony—Motive—CRE 404(b)—Rape Shield Statute—Prosecutorial Misconduct.

KT informed her mother, LC, that defendant, her stepfather, had molested her. A jury found defendant guilty of three counts of incest; three counts of sexual assault on a child—position of trust; and one count of sexual assault on a child—position of trust pattern of abuse.

On appeal, defendant argued that the trial court erred in denying a challenge for cause to a juror who stated that her niece had been sexually assaulted and murdered by her sister’s live-in boyfriend. The Court of Appeals disagreed. Because the juror also stated she could consider the evidence in the case and make a decision and follow the presumption of innocence, the trial court did not abuse its discretion in denying defendant’s challenge for cause.

Defendant claimed the trial court erroneously allowed two unqualified prosecution witnesses to testify as experts. The Court reviewed the trial court’s admission of expert testimony and found no abuse of discretion.

The Court disagreed that the officer’s testimony was an improper commentary on defendant’s credibility. The Court found that the testimony was an explanation of the officer’s interview tactics.

The Court agreed with the trial court ruling that a defendant’s prior attempt or request to have anal sex with his spouse may be relevant concerning motive in a child sexual abuse trial, provided the evidence otherwise satisfies CRE 404(b). Here, the evidence related to a material fact and it had logical relevance.

Defendant asserted that the court erroneously excluded evidence of the pending dependency and neglect case concerning LC. The Court disagreed, ruling that exclusion of this additional evidence did not contribute to the guilty verdict.

Defendant argued that the trial court erred in excluding evidence of KT’s prior sexual knowledge and familiarity with sexual assault investigations, because the evidence was relevant to rebut the “natural assumption” that KT could only know about such facts from defendant and to support his defense that KT’s allegations were aimed at removing him from the home because she disliked his rules and disciplinary efforts. The Court disagreed, finding that KT was old enough to know about sexual matters regardless of her experience with defendant and there was alternative evidence of KT’s outside sexual knowledge. In addition, the prosecution did not argue that KT was sexually naïve and had no other source of sexual knowledge.

Defendant also claimed that prosecutorial misconduct in the rebuttal closing argument required reversal. The Court disagreed. The prosecutor used rhetorical devices and argument to point out the weaknesses of defendant’s theory of the case. Although the prosecutor made an erroneous statement regarding the beyond-a-reasonable-doubt standard, it was not plain error. The Court also rejected defendant’s challenge of the constitutionality of the rape shield statute and the Sex Offender Lifetime Supervision, as well as the determination of his habitual criminal charges without a jury. The judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Expert Testimony on Gang Affiliation Properly Admitted

The Tenth Circuit Court of Appeals published its opinion in United States v. Archuleta on Tuesday, December 17, 2013.

Nathan Archuleta was a leader of the Tortilla Flats gang in New Mexico. The Tortilla Flats are an affiliate of the Sureños, a group of gangs with ties to the Mexican Mafia. In June 2009, Archuleta orchestrated a plan to smuggle methamphetamine from Mexico into the United States. The scheme was unsuccessful and Archuleta was arrested and indicted.

Before trial, Archuleta filed a motion to exclude gang-affiliation expert testimony. The district court held two hearings and ruled that Lujan, the government’s gang expert, could testify about the Sureños gang, the significance of its tattoos, structure, activities, and affiliation with the Mexican Mafia. Archuleta objected, and the court overruled his objection.

A jury convicted Archuleta of possession of methamphetamine, possession of methamphetamine with intent to distribute, conspiracy to possess methamphetamine with intent to distribute, and being a felon in possession of a firearm. Archuleta appealed. On appeal, Archuleta contended that admission of a gang expert’s testimony violated Federal Rules of Evidence 403, 702, and 704(b). Of these three evidentiary rules, only Rule 403 was raised by Archuleta before the district court. As a result, the court’s review of his arguments pertaining to Rule 702 and Rule 704(b) was limited to plain error review.

Rule 403 permits a court to exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid. 403. After reviewing the record, the Tenth Circuit was not persuaded that the district court abused its discretion in allowing the government’s gang expert to testify. His testimony was not cumulative, confusing or misleading, or unfairly prejudicial.

Rule 702 requires a district court to satisfy itself that the proposed expert testimony will assist the trier of fact, before permitting a jury to assess such testimony. The court held that Archuleta failed to explain how the relevant evidence regarding gangs, which no other witness covered, was unhelpful to the jury’s understanding of the implications of Archuleta’s membership in the Tortilla Flats gang.

Archuleta’s final argument was that Lujan’s testimony violated Rule 704(b) because it was the functional equivalent of an opinion that Mr. Archuleta in fact had knowledge of the smuggling scheme. Under Rule 704(b), 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 charged or of a defense. The question was whether he improperly testified about Archuleta’s mental state.  The court admitted that, even if Lujan’s testimony violated Rule 704(b), Archuleta could not demonstrate plain error. This demanding standard required him to show, among other things, that the error must have affected the outcome of the district court’s proceedings. This he did not show.

AFFIRMED.

Tenth Circuit: Disclosure of Material Considered by Expert Containing Factual Ingredients Required

The Tenth Circuit Court of Appeals published its opinion in In re Application of Republic of Ecuador on Wednesday, November 13, 2013.

Intervenor-Appellant Chevron Corporation appealed from a district court order granting a motion to compel production of documents pursuant to subpoenas issued under 28 U.S.C. § 1782. Section 1782 allows for discovery of documents to be used in a foreign proceeding. Petitioners-Appellees, the Republic of Ecuador and its Attorney General (collectively, “the Republic”) sought the discovery to defend an $18.2 billion judgment against Chevron by an Ecuadorian court in Lago Agrio. Chevron sought relief from that judgment pursuant to investment treaty arbitration under United Nations’ rules.

Prior to the Lago Agrio judgment, in September 2009, Chevron commenced arbitration proceedings against the Republic under the U.S.–Ecuador Bilateral Investment Treaty. In February 2011, immediately following the Lago Agrio judgment, the arbitral tribunal ordered that the Republic stay all efforts to enforce the Lago Agrio judgment, pending further order of the tribunal.

In June 2011, the Republic filed a § 1782 application in the District of Colorado seeking “discovery from Bjorn Bjorkman to aid the Republic in defending the validity of the Lago Agrio judgment.” The Republic alleged that Mr. Bjorkman served as one of Chevron’s chief experts and that the Ecuadorian court explicitly relied on his opinions. In the instant action, Chevron argued before the magistrate judge that the 2010 revisions to Fed. R. Civ. P. 26 brought materials prepared by or provided to Mr. Bjorkman under the protection of the work-product doctrine. The magistrate judge rejected this argument and ordered the production of all of the facts and data the expert considered in forming his opinion. The Republic filed two motions to compel after Chevron continued to improperly withhold documents. The district court adopted the magistrate judge’s recommendations that only documents protected by Rules 26(b)(4)(B) and (C) were privileged.

On appeal, Chevron made several arguments that the 2010 revisions to Fed. R. Civ. P. 26 radically changed the discoverability of documents held by experts. The Tenth Circuit disagreed, holding that the underlying purpose of the 2010 revision was to return the work-product doctrine to its traditional understanding, that it protects only the inner workings of an attorney’s mind. The court affirmed.

Colorado Supreme Court: Criminal Code Not Applicable in Juvenile Proceedings Except as Provided in Children’s Code

The Colorado Supreme Court issued its opinion in In re People in Interest of A.A. on Tuesday, November 12, 2013.

Colorado Code of Criminal Procedure—Colorado Children’s Code.

The People petitioned pursuant to CAR 21 for relief from an in limine ruling of the juvenile court allowing the introduction of testimony by the juvenile’s psychological expert without regard for the court-ordered examination mandated by CRS § 16-8-107. The juvenile court reasoned that in the absence of any provision of the Criminal Procedure Code specifying otherwise, the requirements of CRS § 16-8-107 did not apply to delinquency proceedings.

The Supreme Court approved the ruling of the juvenile court and discharged its rule to show cause. Because the Colorado Code of Criminal Procedure expressly provides that it will not apply to proceedings under the Colorado Children’s Code except as specifically set forth in the Criminal Procedure Code itself, and because no provision of the Criminal Procedure Code suggests that § 16-8-107 was intended to apply to proceedings under the Children’s Code, the Court found that the court-ordered examination in question cannot apply to delinquency proceedings.

Summary and full case available here.

Tenth Circuit: Armed Bank Robbery Conviction Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Brooks on Thursday, August 29, 2013.

A jury convicted Anthony Brooks was convicted of armed bank robbery. He appealed his conviction, arguing that: (1) the evidence at trial was insufficient, as a matter of law, (2) the district court erred by admitting DNA evidence linking him to the crime scene; (3) the district court’s refusal to strike the testimony of the government’s expert witness constituted an abuse of discretion; (4) the district court abused its discretion by allowing the government to introduce evidence that Mr. Brooks was in possession of large amounts of cash several months following the robbery; and (5) the district court abused its discretion by denying Mr. Brooks’s motion for a new trial based on alleged juror misconduct.

The court found that the district court properly determined that the government established a sufficient foundation establishing a chain of custody for the DNA evidence. Finding no abuse of discretion, the court held the district court properly admitted the DNA evidence. The court also found that the district court did not abuse its discretion in allowing the testimony of the government’s expert witness. There was limited, if any, evidence that Mr. Brooks was prejudiced by the alleged discrepancy between the expert’s testimony and her report. The Tenth Circuit further held the district court did not err in admitting evidence that Mr. Brooks was in possession of large amounts of cash several months following the robbery. The possession of a large sum of cash at about the time of an offense may be considered as part of the circumstantial evidence where warranted by the particular facts involved. its probative value was not significantly diminished by the timing of the observations of his possession of the cash.

The court then turned to Mr. Brooks’ contention that insufficient evidence was produced at trial to support his conviction for armed bank robbery. Taking the evidence—both direct and circumstantial, together with the reasonable inferences to be drawn therefrom—in the light most favorable to the government, the Tenth Circuit concluded a reasonable jury could find Mr. Brooks guilty beyond a reasonable doubt. There was ample evidence in the record from which a reasonable jury could have found, beyond a reasonable doubt, that Mr. Brooks committed the bank robbery charged in the indictment.

Mr. Brooks’ final argument was that the district court erred in denying him a new trial based on alleged juror misconduct. Mr. Brooks argued that Mr. Clark, the jury foreperson, lied by omission in failing to inform the court and the parties during voir dire that he was under investigation by the same federal agency that was prosecuting Mr. Brooks. Under McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), a litigant is entitled to a new trial in the face of allegations that a juror’s voir dire responses are untruthful when a party demonstrates that a juror failed to answer honestly a material question on voir dire, and then further shows that a correct response would have provided a valid basis for a challenge for cause. The district court found that while the second prong of the McDonough test may have been met, it found that the juror’s responses to be truthful and denied Mr. Brooks’ motion for a new trial. The Tenth Circuit found no clear error in the district court’s determination.

AFFIRMED.