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The Latest Home

    This page reports federal appellate decisions within the past thirty days.  For late-breaking developments, see also Blog 702.

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United States v. Jawara, No. 05-30266 (9th Cir. Sept. 15, 2006).  Prosecution in document fraud trial offers testimony from Carolyn Bayer-Broring, forensic document examiner for Department of Homeland Security.  Jury convicts.  Admissibility affirmed.  Defendant correctly complains that district court made no explicit reliability findings.  But error was harmless in light of witness's extensive academic qualifications and experience.

Smith v. Cangieter, No. 05-3902 (8th Cir. Sept. 11, 2006).  Rented 1998 Nissan Pathfinder swerves, spins sideways, enters median, and rolls over into oncoming traffic lanes, ejecting and killing all four passengers.  Did accident result from design defect that rendered Pathfinder unstable when operated on dry pavement in four-wheel drive mode?  Family members think so, and sue.  To support their theory, they offer testimony from mechanical engineer Richard Ziernicki, Ph.D.  District court excludes testimony as unreliable after Daubert hearing, and goes on to award summary judgment to defendants.  Exclusion affirmed.  As district court conceded, peer-reviewed literature does support contention that part-time four-wheel drive systems can cause slippage and loss of traction.  But engineer cited no evidence that this made Pathfinder dangerous.  He neither drove any similar vehicle at high speeds on dry pavement nor cited any testing or research on how much degradation in traction is necessary before vehicles become unsafe.

United States v. Hartman, No. 05-1077 (10th Cir. Sept. 7, 2006) (unpublished).  Over narcotics defendant's objections, detective testifies re modus operandi of drug dealers.  Jury convicts.  Admissibility affirmed.  Defendant says detective was unqualified.  But he is trained narcotics agent with 19 years of experience in over 1000 narcotics investigations, and his testimony was helpful to trier of fact.  Detective did not offer impermissible expert testimony on mens rea.

Beaudette v. Louisville Ladder, Inc., No. 05-2685 (1st Cir. Sept. 6, 2006).  Man and plaintiff-to-be stands on scaffolding supported by three ladders.  Middle ladder collapses, scaffolding falls, and man does likewise, breaking right tibia and dislocating knee.  To show manufacturing defect in products suit against ladder manufacturer, plaintiff produces report from engineer Wilson Dobson, who opines, based on on microscopic examination of samples taken from ladder, that it does not comply with American National Standards Institute (ANSI) Standard 14.5 for fiberglass ladders, which calls for ladders to be free from resin-rich or resin-starved areas "in accordance with good commercial practice."  District court excludes testimony as unreliable after Daubert hearing and awards summary judgment to manufacturer.  Exclusion affirmed.  Expert interpreted ANSI standard as requiring ladder to be entirely free of resin-rich pockets, but he could cite no support and admitted he had no information on what constituted "good commercial practice."

United States v. Younes, No. 05-1348 (6th Cir. Sept. 5, 2006) (unpublished).  Criminal defendant attempts to introduce unilaterally conducted exculpatory polygraph.  District court excludes evidence as unreliable and also as more prejudicial than probative.  Exclusion affirmed.  Sixth Circuit has taken dim view of polygraphy's reliability.

United States v. Johnson, No. 05-30388 (9th Cir. Sept. 5, 2006) (unpublished).  Narcotics defendant offers expert audiologist to opine that recorded conversation is unintelligible.  District court excludes testimony on ground that jury does not require audiologist to tell it what it can and cannot hear.  Jury convicts.  Exclusion affirmed.  No abuse of discretion.

United States v. Nektalov, No. 05-2780 (2d Cir. Aug. 25, 2006).  Jury convicts defendant on money laundering charges after hearing testimony from prosecution experts [on modus operandi of money laundering operations?].  Admissibility affirmed.  Testimony shed light on practices of objectives and practices of money launderers and was therefore helpful to trier of fact.

United States v. Lopez-Medina, No. 05-5891 (6th Cir. Aug. 25, 2006).  At narcotics trial, two DEA agents testify as fact witnesses and also as experts re common practices of narcotic traffickers.  Jury convicts.  Admissibility affirmed.  Defendant's reliability objections are unavailing; both agents had years of training and experience.  Defendant also objects, however, that no clear distinction was drawn at trial between lay and expert components of their testimony, nor any cautionary instruction issued.  This was clear error, and it was not harmless.  Remanded for new trial.

United States v. Whitmore, No. 05-6331 (6th Cir. Aug. 25, 2006) (unpublished).  At sentencing phase, police officer testifies over defendant's objection that marijuana packaged in small baggies suggests possession with intent to distribute.  Admissibility affirmed.  Federal Rules of Evidence do not apply at sentencing phase.  In any event, testimony from narcotics officers on modus operandi of drug dealers is generally held to be reliable.

Tharo Sys., Inc. v. Produkttechnik GmbH & Co., Kg, No. 05-3876 (6th Cir. Aug. 24, 2006) (unpublished).  In dispute over breach of commercial contract, district court overrules defendant's Daubert objection to testimony from plaintiff's damages expert, accountant Robert Brlas.  Jury finds for plaintiff and defendant appeals.  Admissibility affirmed.  Defendant says Brlas was unqualified because record did not establish his familiarity with German accounting principles, but nothing in record contradicts Brlas's testimony that there are no material differences between German accounting rules and those prevalent in United States.  Nor did district court err in rejecting defendant's various reliability arguments.

Rolen v. Hansen Beverage Co., No. 05-6405 (6th Cir. Aug. 23, 2006) (unpublished).  Were plaintiff's acute stomach problems caused by drinking Natural Red Berry Juice Blast?  To show causation in products suit against juice manufacturer, plaintiff offers testimony from his treating physician, Dr. Mark Houston, who opines that plaintiff's symptoms were probably caused by staphylococcal toxic poisoning resulting from ingestion of defendant's juice.  District court excludes testimony as unreliable and grants summary judgment to manufacturer.  Exclusion affirmed.  Witness employed no discernible methodology except for fallacious "post hoc, ergo proper hoc" reasoning.  His examination and testing of plaintiff turned up nothing abnormal.  He admitted that testing juice for contaminants would be desirable, but he did nothing to test juice himself, and he said that actual tests conducted by defendant of juice from same lot, which detected nothing amiss, did not affect his opinion.  He also testified that onset of staphylococcal toxic poisoning would normally occur between one and twelve hours after ingestion, whereas plaintiff's symptoms commenced within twenty minutes.  No abuse of discretion.   

Bone Shirt v. Hazeltine, No. 05-4010 (8th Cir. Aug. 22, 2006).  Native American Indians bring voting rights claim, relying in part on expert regression evidence to show minority political cohesion and majority bloc voting.  District court finds in their favor.  Admissibility affirmed.  Regression evidence is reliable and widely accepted in this context.

United States v. Ellis, No. 05-7136 (10th Cir. Aug. 22, 2006).  In narcotics trial, prosecution calls two forensic experts from Oklahoma Bureau of Investigation to testify re quantity of methamphetamine found in defendant's possession: John Giles, who used gas chromatography mass spectroscopy ("GCMS"), and Marty Wilson, who used high performance liquid chromatography ("HPLC").  Both agents say they tested only samples, taken from powder they produced by grinding crystalline drug material seized from defendant.  District court overrules Daubert objection and admits their testimony.  Jury convicts.  Admissibility reversed.  District court did not make any specific reliability findings, and record does not establish any reliable basis for experts' contention that samples taken from powder would be representative.  But error was harmless, in light of other testimony re quantities of meth sold by defendant.