Error to Exclude Expert Testimony Based on Expert’s Lack of Personal Experience

United States v. Liu, No. 12-30105 (May 6, 2013) (Davis, Graves, Higginson)

Wen Chyu Liu, aka David W. Liou, challenged his convictions to steal trade secrets and perjury. The panel held that the district court erred when it excluded expert testimony. However, the defendant’s failure to proffer the excluded testimony made it difficult to determine whether the testimony in question would be of any true help to the defendant’s case.  Thus, the exclusion did not affect the outcome of the trial and the panel affirmed.

Liu was accused of stealing classified info from the Dow Chemical Company in order to sell the trade secrets to Chinese companies for his own profit. The former Dow employee claimed at trial that he had developed a new process for making the chlorinated polyethylene compound known as “Tyrin CPE” and did not use any Dow-derived information in its production. Testimony from co-conspirators and plagiarized material proved the defense otherwise.

Liu argued that the court erred in excluding his expert witness’ testimony. The panel agreed with Liu that the expert’s lack of personal experience, which was the court’s concern, should not ordinarily disqualify an expert, so long as the expert is qualified based on some other factor provided by Rule 702. The panel could not determine whether the witness’ testimony would have been beneficial to the defense because the defense did not proffer what that testimony would have been and because the evidence against Liu’s scheme was overwhelming. The panel concluded that exclusion of the expert testimony did not affect the verdict.

In regards to Liu’s perjury conviction, the panel affirmed. The panel held that testimony by two of Liu’s co-conspirators, Stoecker and Wheeler, paired with documents showing the funding source for Stoecker’s trips to China was sufficient evidence for Liu’s perjury conviction.

Thanks to FPD Intern Matthew Gonzalez for this post.

Immigration Prosecutions Estimated to Increase 7.7% Nationwide in FY 2013; 32.4% Increase Since 2008

Five years ago, the Government brought 27,428 immigration prosecutions nationwide.  A November 13, 2013, TRAC-Immigration report estimates that FY 2013 will see 99,061 immigration prosecutions, an increase of 32.4% since 2008 and a 7.7% increase over FY 2012.  “Overall, the data show that prosecutions of this type are up 468 percent from the level of 6,398 reported in 2003 and up 1518 percent from the level of 2,244 reported in 1993.”

Prosecutions in the District of New Mexico increased the most since FY 2012 (45.7%).  The second highest increase was in the Western District of Texas (32%) and then the Southern District of Texas (24%).  Immigration prosecutions in the other judicial districts bordering Mexico decreased, District of Arizona by 21.6% and Southern District of California by 13.3%.

The three lead charges filed in the first eleven months of FY 2013 were illegal entry (50,683), illegal reentry (34,365), and bringing in and harboring certain aliens (3,239).  Illegal entry, 8 U.S.C. § 1325, also had the largest increase (15.2%) compared to one year ago.

In the first eleven months of FY 2013, the Southern District of Texas had the most immigration prosecutions (30,810), then the Western District of Texas (22,970), then the District of Arizona (21,163), followed by the District of New Mexico at a distant fourth (5,999).

Ignored Plea Agreement Prompts Partial Reversal and Dismissal

United States v. Hughes, No. 12-60005 (Aug. 8, 2013) (King, Higginbotham, Clement)

            Hughes contested his convictions and sentence in this distribution conspiracy case. The panel affirmed in part and reversed in part the judgment of the district court.

            On the morning of trial, Hughes decided to plead guilty. The Government informed the court of an oral agreement for Hughes to plead guilty to the conspiracy count and continue the other four counts until sentencing at which time the Government would move to dismiss those counts. Without addressing this oral agreement, the court took Hughes’ guilty plea to all five of the counts. Hughes tried to withdraw his guilty pleas later, but the court denied that request. At sentencing, the Government moved to dismiss all but the conspiracy count, but the court denied that request and handed down sentences on all five counts of Hughes’ indictment.

            Hughes raised three main arguments on his appeal: (1) his change-of-plea hearing was procedurally deficient under Federal Rule of Criminal Procedure 11, (2) the district court abused its discretion in denying his motion to withdraw his guilty pleas, and (3) the district court abused its discretion in not dismissing the telephone counts on the Government’s motion.

            In regards to Hughes’ first argument, the panel found it to be unavailing since Hughes failed to show a reasonable probability that he would not have pleaded guilty. In regards to Hughes’ second concern, the panel held that the district court did not abuse its discretion when it denied Hughes’ motion to withdraw his guilty pleas. According to the Carr test, the district court’s decision was justified. Finally, the panel found that the district court failed to supply reasoning for sentencing Hughes to the substantive counts, so the refusal to dismiss Counts 2-5 was an abuse of discretion. The panel affirmed the judgment of the court with respect to Hughes’ conspiracy count, but reversed the denial of the motion to dismiss Counts 2-5. The panel then dismissed Counts 2-5.

            Judge Higginbotham concurred with the judgment handed down by the district court because neither Hughes nor the government clarified whether the plea deal was still in effect as of sentencing.

            Judge King dissented. She argued that Hughes should have been given notification as to whether the plea agreement concerning Counts 2-5 was accepted or declined. Furthermore, since Hughes was denied his right to withdraw his guilty plea, she would have vacated the convictions and sentence and remanded the matter to the district court to clarify its stance on accepting or rejecting the plea agreement.

Thanks to FPD Intern Matthew Gonzalez for this blog post.

Absence During Jury Impanelment Did Not Affect Defendant’s Substantial Rights

United States of America v. Thomas, No. 12-60707 (Aug. 1, 2013) (Owen, Haynes, Lemelle)

            Dr. Cassandra Thomas, a licensed physician in the state of Mississippi, challenged her convictions of healthcare and Medicare fraud. The panel affirmed.

Thomas argued that the district court erred by denying her constitutional right to be present at all critical stages of her trial.  The panel rejected that argument, finding that Thomas failed to establish that her absence from jury impanelment affected the outcome of the district court proceedings.

In regards to Thomas’ argument that the court failed to apply the rule of lenity to dismiss the indictment against her at the pretrial phase, the panel held that other underlying facts in Thomas’ conviction undermine her arguments of ambiguity in the Medicare guidelines and affirmed the district court’s denial of Thomas’ motion to dismiss the indictment.

Thomas also claimed that evidence used in the trial, namely the Mississippi state licensure requirements for physical therapists, and the exclusion of an article concerning Medicare regulations, prevented her from providing an adequate argument of ambiguity in the physical therapy guidelines she followed. The panel drew attention to the fact that the excluded article was never offered into evidence during trial and that the change in Medicare regulations occurred after the fraud occurred. Thus, the panel affirmed the court’s decision to deny the motion in limine, exclude the article, and deem the regulation changes as irrelevant to the case.

Thomas’ final argument involving her denied motion for new trial based on ineffective assistance of trial counsel was dismissed because Thomas failed to prove that her counsel’s previous criminal charges and in-court actions posed any objectively unreasonable or prejudicial threat to her defense.  

Thanks to FPD Intern Matthew Gonzalez for this blog post.

New Report: Sex Offender Risk Plummets Over Time In Community

According to Dr. Karen Franklin’s blog In the news: Forensic psychology, criminology, and psychology-law, “the authors of the most widely used actuarial tool for sex offender recidivism are conceding that even sex offenders cross a ‘redemption threshold’ over time, such that their risk of committing a new sexual crime may become ‘indistinguishable from the risk presented by non-sexual offenders.’"

The study tracked “a large group of 7,740 sexual offenders drawn from 21 different samples around the world, the researchers found that those who remain free in the community for five years or more after their release are at drastically reduced risk of committing a new sex offense.”

The authors—R. Karl Hanson, Andrew J. R. Harris, Leslie Helmus and David Thornton—“challenge the notion that sex offenders represent a special case of perpetual danger. They question the need for life-time monitoring and supervision.”  The article is scheduled for publication in the Journal of Interpersonal Violence.

Government Not Required to Prove Beyond a Reasonable Doubt No Entrapment, and § 2B3.1(b)(7) Enhancement Inapplicable in Robbery with No Actual Loss

United States v. Stephens, No. 12-20093 (Jun 5, 2013) (King, Higginbothom, Clement)

Stephens appealed his convictions related to a conspiracy to rob an armored truck. The panel affirmed the convictions and the sentence.

Stephens appealed on four grounds: 1) The district court erred in declining to give an entrapment jury instruction; 2) the evidence presented was insufficient to support his convictions; 3) the district court erred in calculating his advisory Sentencing Guidelines range at sentencing; and 4) the sentenced imposed by the district court was substantively unreasonable.

The panel held that Stephens did not meet the requirements to be entitled to an entrapment instruction because he failed to point to sufficient evidence that would have allowed a reasonable jury to find that he lacked a predisposition to commit the offenses at issue.  The panel also held that the evidence presented by the Government was sufficient to support Stephens’ convictions, noting that the Government is not required to prove beyond a reasonable doubt that a defendant was not entrapped.

The panel found that the court erred in calculating Stephens’s advisory Sentencing Guidelines range, but the error did not affect his substantial rights. The court erroneously applied U.S.S.G. § 2B3.1(b)(7)(D), a provision that only applies when there is actual loss in a robbery. In this case, there was no actual loss. The panel rejected Stephens’s sentencing entrapment argument noting that they have never recognized sentencing entrapment as a defense. They also found that the Government only provided a passive encouragement to pursue more than $250,000, and that it was one of his co-conspirators who originally suggested a higher target. The panel affirmed that the Defendant’s sentence was not substantively unreasonable because the sentence fell within Stephens’s Guidelines range.

Thanks to FPD Intern Matthew Gonzalez for this blog post.

Presumption of No More than 50 Victims for Theft of USPS Mail from 1 or More Receptacle

United States v. Moore, No. 12-10630 (Oct. 23, 2013) (Wiener, Dennis, Owen)

How many people are victimized when someone steals mail from a U.S. Postal Service collection box?  According to the majority’s interpretation of Application Note 4(C)(ii)(I) to U.S.S.G. § 2B1.1, a presumption of 50 victims applies regardless of how many collection boxes, relay boxes, satchels, carts, or delivery vehicles were involved.  A court can determine that there were more than 50 victims, but only based on probative evidence.

Here, Moore took mail from 6 collection boxes, so the district court calculated 300 victims and applied a 6-level enhancement.  The Fifth Circuit vacated and remanded after concluding the court could only presume 50 victims, even though Moore took mail from 6 collection boxes.  Thus, only a 4-level enhancement applied.  The case was remanded for resentencing.

Judge Owen dissented, arguing that the plain language of the Guidelines supports the district court’s victim calculation.