In Prosecution of Judge for Receiving Bribes, Expert Testimony on the Correctness of Judge’s Allegedly-Influenced Rulings Excluded

From U.S. v. Whitfield, 2009 U.S. App. LEXIS 27003 (5th Cir. Dec. 11, 2009):

Defendants-appellants, attorney Paul Minor and former Mississippi state judges John Whitfield and Walter ("Wes") Teel, were charged with participating in two separate bribery schemes in which Minor arranged, guaranteed, and eventually paid off loans for Whitfield and Teel, allegedly in order to corruptly influence the outcome of cases Minor filed in their courts. A jury found all three appellants guilty. . . . [W]e VACATE all the convictions related to federal program bribery under 18 U.S.C. § 666, including the conviction of Minor and Teel for conspiracy to violate section 666. We AFFIRM all other convictions, and we REMAND for resentencing as to all appellants in accordance with this opinion. ***

Minor alleges that the district court committed error in excluding the testimony of two expert witnesses, attorneys James George and Alben Hopkins, who would have testified that Whitfield and Teel decided the Marks and Peoples Bank cases correctly. In a supplemental expert report filed by Minor, George indicated that he intended to testify on the "history of deliberations" of the Mississippi Supreme Court during its consideration of the Marks case on appeal. The district court initially refused to certify George under FED. R. EVID. 702 and the standard laid out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786, 2796-98 (1993), concluding that George's testimony would attempt to speculate on the mental impressions of the Mississippi Supreme Court, which were better expressed through that court's own published opinion in Marks. In offering proffer testimony, George disclosed his intent to also discuss the propriety of Whitfield's rulings in Marks. Acknowledging that the expert report did not allude to those matters, the defense nevertheless sought to elicit that testimony as rebuttal evidence. The district court refused, concluding that the correctness of Whitfield's ruling Marks was an issue in the first trial and thus was certainly expected to be a point of contention in the second trial. Therefore, by failing to disclose these matters as required under FED. R. C RIM. P. 16(b)(1)(C), the district court found that Minor could not elicit that testimony at trial.

The district court did not abuse its discretion in excluding George's testimony. The court was justified in concluding that George's testimony would not assist the jury and was founded on unreliable methodology. See Daubert, 113 S.Ct. at 2796. As to George's opinion regarding the correctness of Whitfield's rulings in Marks, the district court did not abuse its discretion in preventing appellants from raising new matters that were not disclosed in George's expert report. See FED. R. CRIM. P. 16(b)(1)(C).

Hopkins intended to testify that Teel had ruled correctly in Peoples Bank. The district court refused to certify Hopkins because his testimony: (1) would not help the jury in resolving the ultimate issue in the case; (2) would violate FED. R. EVID. 704(b), which prohibits expert witnesses from testifying as to the criminal intent of the defendant; (3) would ask the jury to find contrary to a holding of the Mississippi Supreme Court; and (4) was based on "suspicious" methodology. Appellants' briefs provide no specific arguments as to why the district court erred in excluding Hopkins' testimony. Therefore, they have waived this issue on appeal. See Proctor & Gamble, 376 F.3d at 499 n.1.

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