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.

Looking for an Expert Witness on Eyewitness Identification? Cast Your Gaze on El Paso.

As reported by our next-door neighbor Tenth Circuit Blog, the University of Texas at El Paso has "a whole lab dedicated to studying the validity of eyewitness identifications." It's the Eyewitness Identification Research Laboratory. From a quick scan of the lab's webpage, it looks like it has a lot of good resources you can use if eyewitness ID is an issue in one of your cases.

PWID Conviction Reversed in Hidden Drugs Case; DEA Agent Opined That He'd Never Seen Courier With That Much Coke Who Didn't Know He Possessed It

United States v. Ibarra, No. 06-50783 (5th Cir. July 19, 2007) (King, DeMoss, Owen)

Ibarra was arrested after authorities found over 250 kilos of cocaine hidden among the load in the tractor-trailer he was driving. His defense at trial on the ensuing PWID charge was lack of knowledge. Among other evidence at trial, the Government elicited testimony from a DEA agent "that in his experience he had never seen a courier entrusted with an amount of cocaine of that size (worth approximately $4 million) without the courier knowing that he was carrying something illegal." Ibarra was convicted, and he appealed.

The Government conceded that the agent's testimony was improper. FRE 704(b) prohibits an expert witness from opining as to whether a defendant had the requisite mental state for the charged crime. And there's Fifth Circuit case law directly on point holding even though a jury can draw an inference of knowledge from a large quantity of drugs, an agent cannot express the opinion that the agent in this case did. So the Government's argument was that the error in admitting the testimony was harmless. The court of appeals disagreed, and reversed Ibarra's conviction:

In this case, the Government did not have any direct evidence linking Ibarra to the cocaine discovered in the trailer. The drugs were concealed, and therefore it was essential for the Government to prove that Ibarra knowingly transported the drugs. See United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990) (holding that when drugs are hidden, additional evidence indicating guilty knowledge is required). Agent Friday’s testimony that in his opinion and experience a courier would have knowledge of the drugs was improper testimony that went directly to the ultimate issue to be determined by the jury. In addition, Agent Friday was the last witness heard by the jury, and the testimony was referenced again in closing statements. While it may have been possible for the jury to convict Ibarra beyond a reasonable doubt if the improper testimony had not been admitted, we feel that there is a “reasonable possibility” that Agent Friday’s testimony “contributed to the conviction.” Williams, 957 F.2d at 1242. Therefore we are not convinced that this error was harmless. The conviction is VACATED and the case REMANDED for new trial.

You have to wonder what the Government was thinking when it elicited this testimony. The inadmissibility of such opinions is about as black-letter as it gets.