Absent Definitive Ruling on Motion to Exclude Witness’s Testimony (Here, an Expert), Counsel Must Object to Specific Questions Posed at Trial or Waives Argument on Appeal That Admission Was Flawed

United States v. Threadgill, 2014 U.S. App. LEXIS 13377 (6th Cir. July 11, 2014):

2. Opinion Testimony

Finally, Threadgill claims that the district court erred when it admitted testimony from Jackson and Bjorkman regarding Threadgill's knowledge, intent, and state of mind. In Threadgill's view, this was impermissible opinion testimony. Given the voluminous documentary evidence in this case, Threadgill insists that the jury relied heavily on this testimony in convicting him and that therefore the admission of this testimony was not harmless error.

The Government maintains that Jackson and Bjorkman did not give improper opinion testimony. Instead, it argues that, when viewed in context, the testimony at issue was concerned with facts rather than personal opinion. The Government claims that Bjorkman's opinion testimony was "arguably" admissible  [*37] under Federal Rule of Evidence 701. Moreover, the Government emphasizes, Threadgill failed to object to the alleged improper testimony and that therefore we review its admission only for plain error.

In reply, Threadgill notes the conclusory nature of the Government's argument and questions the Government's premise that Bjorkman's opinion testimony was admissible because it was couched in a discussion of facts related to her investigation. Contrary to the Government's argument that plain error review applies, Threadgill contends that he adequately raised these arguments below and preserved the issue for appeal. Therefore, he maintains that the appropriate standard of review is for abuse of discretion and harmless error.

The resolution of Threadgill's claim turns on whether he properly preserved this issue on appeal. Here, Threadgill challenges two statements made by Bjorkman during her direct testimony. On direct, the Government discussed the elements of tax evasion with Bjorkamn:

AUSA: In your training and experience as a special agent, what do you understand to be the elements of tax evasion as it relates to evasion of payment?

Bjorkman: Well, there has to be a significant amount of  [*38] tax due and owing, which, in this case, as you have heard, there was. There has to be a knowledge that the person is required to pay these taxes and I believe Mr. Threadgill has that knowledge. He has upper education, he's an attorney. He told Andrea Mize that he has an accounting degree. He filed his returns and signed his returns. He sent a letter to Lynda White, saying he needed to call the payments to her "interest" so he could deduct them on his return. So I believe that he had the knowledge to know that he was obligated to pay those, his taxes.

(R. 73, Page ID# 870) (emphasis added). Later in her direct testimony, the Government questioned Bjorkman regarding the second affirmative act charged in the Indictment:

   AUSA: Let's go back to the indictment and, among the affirmative acts of evasion there is a reference [to] creating and maintaining ledgers to conceal the true nature of personal expenditures from the law firm account. Okay. You spoke earlier to the use of management fees and loans to Mr. Threadgill. How is this consistent to the tax evasion purpose?

Bjorkman: Well, if Mr. Threadgill was taking money and classifying them as loans when they were actually income to you, that  [*39] would be an inaccurate or false ledger item. In addition to that, to conceal his payments to Webb School, he lumped it in a category called "cafeteria benefits," which is -- that would be hiding what the true purpose of the loans were.

(Id. at 885) (emphasis added). In Threadgill's view, these two statements constitute improper opinion testimony regarding his intent to evade the payment of taxes.

Significantly, Threadgill did not object to either of these statements at trial. He nonetheless insists that, "[i]n the context of the entire 'sequence of events,' Osborne v. Ohio, 495 U.S. 103, 123-25 (1990), . . . [he] adequately raised the issue and was rejected by the Court." Appellant's Reply at 14. Although Threadgill concedes that he did not object to every improper statement by Jackson and Bjorkman, he maintains that the district court was well aware of the relevant issue and that we should therefore review the admission of Bjorkman's testimony for an abuse of discretion.

After reviewing Threadgill's objections at trial, we disagree. After Jackson testified regarding her analysis of Threadgill's finances, Threadgill generally objected:

We are about to get into some expert testimony, I believe,  [*40] some conclusions from this witness. We have asked, on the Rule 16, to be given, you know, the fact basis of the conclusions of the expert testimony, haven't receive it. We've gotten a lot of discovery, and in all candor, we've gotten a lot of discovery from her, all kinds of charts and drafts.  But she's not been qualified as an expert, and she's fixing to give opinions, and I object. Up until now, she's been factual, what she considered. But when she reaches the conclusion area, that's opinion testimony, and she's not qualified, nor have we been supplied.

(R. 72, Page ID# 817). After hearing argument on the issue, the district court disagreed, stating:

   It appears to me that at this point, at this juncture in the proceedings, she is a fact witness. I don't believe that she has been asked to provide expert testimony. In the event that she does move into expert testimony, we will excuse the jurors and let you voir dire her as to whether she is, in fact, an expert. And we will comply with Daubert at that point.

(Id. at 818).

After the district court recessed for the day, Threadgill objected to the admission of Jackson's written summary:

   I think we're just reiterating our objection that the Government  [*41] is presenting, under the guise of a fact witness someone who has essentially written down their theory of the case and her conclusions about how suspicious and inappropriate the Defendant's actions are, and it's just going into an exhibit that the jury will have during deliberations.

We think that's not appropriate for a fact witness, if at all.

(Id. at 843). The district court reiterated its belief that Jackson's testimony and summary were consistent with that of a fact witness, but expressly stated that it would permit Threadgill to challenge Jackson under Daubert if she attempted to testify as an expert.

During Bjorkman's testimony regarding her investigation, the Government introduced her summary exhibit. Threadgill objected, stating "We would object. We believe this is purporting to be expert testimony." The district court overruled Threadgill's objection and noted it for the record. Notably, when Threadgill objected to Bjorkman's testimony regarding his renting of the Water Place condo as improper opinion testimony, the district court sustained his objection.

Federal Rule of Evidence 103(a) instructs that a party must "timely object[]" to preserve a claim of error in the admission or exclusion of evidence. Fed. R. Evid. 103(a)(1)(A). However, "[o]nce the court rules definitely on the record--either before or at trial--a party need not renew an objection or offer of proof to preserve a claim of error for appeal." Fed. R. Evid. 103(b). "'If the trial court has made an explicit and definitive ruling on the record of the evidentiary issues to be decided, and has not indicated that the ruling is conditioned upon any other circumstances or evidence, then counsel need not renew the objection at the time the evidence is offered . . . in order to preserve the error for appeal.'" United States v. Poulsen, 655 F.3d 492, 510 (6th Cir. 2011) (quoting United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999)). "'However, if the court's ruling is in any way qualified or conditional, the burden is on counsel to raise objection to preserve error."' Poulsen, 655 F.3d at 510 (quoting Brawner, 173 F.3d at 970).

Here, Threadgill's general objections did not result in a definite ruling on Bjorkman's direct testimony that Threadgill challenges here. The district court did not grant Threadgill a standing objection. At best, the district court issued a conditional ruling on Jackson's  [*43] testimony, denying Threadgill's general objection, but granting him the right to raise the objection in response to specific testimony by Jackson. See (R. 72, Page ID# 818) ("It appears to me that at this point, at this juncture in the proceedings, she is a fact witness. I don't believe that she has been asked to provide expert testimony. In the event that she does move into expert testimony, we will excuse the jurors and let you voir dire her as to whether she is, in fact, an expert. And we will comply with Daubert at that point.").

Although Threadgill generally objected to the admission of improper opinion evidence, he failed to object to Bjorkman's two statements challenged here. Threadgill's failure to object to these two statements denied the district court the opportunity to consider their admissibility in their fact-specific context. In our adversarial system, the burden is on the parties, not the court, to identify and raise objections to such testimony. As a result, we conclude that Threadgill failed to preserve his claim of error on appeal. Consequently, we review Threadgill's challenge to Bjorkman's direct testimony for plain error. See Carney, 387 F.3d at 453 (if "a defendant  [*44] neglects to mount an objection to evidence at trial, he is precluded from arguing on appeal that its admission was flawed unless its allowance constituted plain error.").

"[T]he burden of establishing entitlement to relief for plain error is on the defendant claiming it." United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004). Threadgill makes no argument that the admission of Bjorkman's two statements challenged here constituted plain error. Therefore, he has not satisfied his burden to establish his entitlement to relief, and his challenge is without merit.

Absent Definitive Ruling on Motion to Exclude Witness’s Testimony (Here, an Expert), Counsel Must Object to Specific Questions Posed at Trial or Waives Argument on Appeal That Admission Was Flawed

United States v. Threadgill, 2014 U.S. App. LEXIS 13377 (6th Cir. July 11, 2014):

2. Opinion Testimony

Finally, Threadgill claims that the district court erred when it admitted testimony from Jackson and Bjorkman regarding Threadgill's knowledge, intent, and state of mind. In Threadgill's view, this was impermissible opinion testimony. Given the voluminous documentary evidence in this case, Threadgill insists that the jury relied heavily on this testimony in convicting him and that therefore the admission of this testimony was not harmless error.

The Government maintains that Jackson and Bjorkman did not give improper opinion testimony. Instead, it argues that, when viewed in context, the testimony at issue was concerned with facts rather than personal opinion. The Government claims that Bjorkman's opinion testimony was "arguably" admissible  [*37] under Federal Rule of Evidence 701. Moreover, the Government emphasizes, Threadgill failed to object to the alleged improper testimony and that therefore we review its admission only for plain error.

In reply, Threadgill notes the conclusory nature of the Government's argument and questions the Government's premise that Bjorkman's opinion testimony was admissible because it was couched in a discussion of facts related to her investigation. Contrary to the Government's argument that plain error review applies, Threadgill contends that he adequately raised these arguments below and preserved the issue for appeal. Therefore, he maintains that the appropriate standard of review is for abuse of discretion and harmless error.

The resolution of Threadgill's claim turns on whether he properly preserved this issue on appeal. Here, Threadgill challenges two statements made by Bjorkman during her direct testimony. On direct, the Government discussed the elements of tax evasion with Bjorkamn:

AUSA: In your training and experience as a special agent, what do you understand to be the elements of tax evasion as it relates to evasion of payment?

Bjorkman: Well, there has to be a significant amount of  [*38] tax due and owing, which, in this case, as you have heard, there was. There has to be a knowledge that the person is required to pay these taxes and I believe Mr. Threadgill has that knowledge. He has upper education, he's an attorney. He told Andrea Mize that he has an accounting degree. He filed his returns and signed his returns. He sent a letter to Lynda White, saying he needed to call the payments to her "interest" so he could deduct them on his return. So I believe that he had the knowledge to know that he was obligated to pay those, his taxes.

(R. 73, Page ID# 870) (emphasis added). Later in her direct testimony, the Government questioned Bjorkman regarding the second affirmative act charged in the Indictment:

   AUSA: Let's go back to the indictment and, among the affirmative acts of evasion there is a reference [to] creating and maintaining ledgers to conceal the true nature of personal expenditures from the law firm account. Okay. You spoke earlier to the use of management fees and loans to Mr. Threadgill. How is this consistent to the tax evasion purpose?

Bjorkman: Well, if Mr. Threadgill was taking money and classifying them as loans when they were actually income to you, that  [*39] would be an inaccurate or false ledger item. In addition to that, to conceal his payments to Webb School, he lumped it in a category called "cafeteria benefits," which is -- that would be hiding what the true purpose of the loans were.

(Id. at 885) (emphasis added). In Threadgill's view, these two statements constitute improper opinion testimony regarding his intent to evade the payment of taxes.

Significantly, Threadgill did not object to either of these statements at trial. He nonetheless insists that, "[i]n the context of the entire 'sequence of events,' Osborne v. Ohio, 495 U.S. 103, 123-25 (1990), . . . [he] adequately raised the issue and was rejected by the Court." Appellant's Reply at 14. Although Threadgill concedes that he did not object to every improper statement by Jackson and Bjorkman, he maintains that the district court was well aware of the relevant issue and that we should therefore review the admission of Bjorkman's testimony for an abuse of discretion.

After reviewing Threadgill's objections at trial, we disagree. After Jackson testified regarding her analysis of Threadgill's finances, Threadgill generally objected:

We are about to get into some expert testimony, I believe,  [*40] some conclusions from this witness. We have asked, on the Rule 16, to be given, you know, the fact basis of the conclusions of the expert testimony, haven't receive it. We've gotten a lot of discovery, and in all candor, we've gotten a lot of discovery from her, all kinds of charts and drafts.  But she's not been qualified as an expert, and she's fixing to give opinions, and I object. Up until now, she's been factual, what she considered. But when she reaches the conclusion area, that's opinion testimony, and she's not qualified, nor have we been supplied.

(R. 72, Page ID# 817). After hearing argument on the issue, the district court disagreed, stating:

   It appears to me that at this point, at this juncture in the proceedings, she is a fact witness. I don't believe that she has been asked to provide expert testimony. In the event that she does move into expert testimony, we will excuse the jurors and let you voir dire her as to whether she is, in fact, an expert. And we will comply with Daubert at that point.

(Id. at 818).

After the district court recessed for the day, Threadgill objected to the admission of Jackson's written summary:

   I think we're just reiterating our objection that the Government  [*41] is presenting, under the guise of a fact witness someone who has essentially written down their theory of the case and her conclusions about how suspicious and inappropriate the Defendant's actions are, and it's just going into an exhibit that the jury will have during deliberations.

We think that's not appropriate for a fact witness, if at all.

(Id. at 843). The district court reiterated its belief that Jackson's testimony and summary were consistent with that of a fact witness, but expressly stated that it would permit Threadgill to challenge Jackson under Daubert if she attempted to testify as an expert.

During Bjorkman's testimony regarding her investigation, the Government introduced her summary exhibit. Threadgill objected, stating "We would object. We believe this is purporting to be expert testimony." The district court overruled Threadgill's objection and noted it for the record. Notably, when Threadgill objected to Bjorkman's testimony regarding his renting of the Water Place condo as improper opinion testimony, the district court sustained his objection.

Federal Rule of Evidence 103(a) instructs that a party must "timely object[]" to preserve a claim of error in the admission or exclusion of evidence. Fed. R. Evid. 103(a)(1)(A). However, "[o]nce the court rules definitely on the record--either before or at trial--a party need not renew an objection or offer of proof to preserve a claim of error for appeal." Fed. R. Evid. 103(b). "'If the trial court has made an explicit and definitive ruling on the record of the evidentiary issues to be decided, and has not indicated that the ruling is conditioned upon any other circumstances or evidence, then counsel need not renew the objection at the time the evidence is offered . . . in order to preserve the error for appeal.'" United States v. Poulsen, 655 F.3d 492, 510 (6th Cir. 2011) (quoting United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999)). "'However, if the court's ruling is in any way qualified or conditional, the burden is on counsel to raise objection to preserve error."' Poulsen, 655 F.3d at 510 (quoting Brawner, 173 F.3d at 970).

Here, Threadgill's general objections did not result in a definite ruling on Bjorkman's direct testimony that Threadgill challenges here. The district court did not grant Threadgill a standing objection. At best, the district court issued a conditional ruling on Jackson's  [*43] testimony, denying Threadgill's general objection, but granting him the right to raise the objection in response to specific testimony by Jackson. See (R. 72, Page ID# 818) ("It appears to me that at this point, at this juncture in the proceedings, she is a fact witness. I don't believe that she has been asked to provide expert testimony. In the event that she does move into expert testimony, we will excuse the jurors and let you voir dire her as to whether she is, in fact, an expert. And we will comply with Daubert at that point.").

Although Threadgill generally objected to the admission of improper opinion evidence, he failed to object to Bjorkman's two statements challenged here. Threadgill's failure to object to these two statements denied the district court the opportunity to consider their admissibility in their fact-specific context. In our adversarial system, the burden is on the parties, not the court, to identify and raise objections to such testimony. As a result, we conclude that Threadgill failed to preserve his claim of error on appeal. Consequently, we review Threadgill's challenge to Bjorkman's direct testimony for plain error. See Carney, 387 F.3d at 453 (if "a defendant  [*44] neglects to mount an objection to evidence at trial, he is precluded from arguing on appeal that its admission was flawed unless its allowance constituted plain error.").

"[T]he burden of establishing entitlement to relief for plain error is on the defendant claiming it." United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004). Threadgill makes no argument that the admission of Bjorkman's two statements challenged here constituted plain error. Therefore, he has not satisfied his burden to establish his entitlement to relief, and his challenge is without merit.

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