Attempt to Offer Expert Testimony as Lay Opinion Rejected — 701 v. 702 — Court Should Be Vigilant to Preclude Manipulative Conduct Designed to Thwart the Expert Disclosure and Discovery Process (Good Quote)

United States v. Afyare, 2016 U.S. App. LEXIS 4173 (6th Cir. Mar. 2, 2016):

This is one of two companion opinions from this panel in separate appeals from a much [*3]  larger criminal prosecution. In this appeal, the government challenges three in limine rulings, arguing that the district court misinterpreted 18 U.S.C. § 1591(a) and Federal Rule of Evidence 701(c) to improperly exclude certain evidence. Specifically, the government challenges the court's rulings on whether § 1591 applies only to sex trafficking of children; the meaning of "venture" as used in § 1591(a)(2); and whether teachers and police officers are experts when testifying about their perception of a person's age.

We have already criticized the prosecution of this case thus far, see United States v. Fahra, No. 13-5122, and need not repeat those concerns. But we note that the prosecution's actions in the first trial certainly affected the district court's rulings, which underlie the succeeding decisions the government challenges here. Consequently, while this is an appeal of certain in limine decisions, in anticipation of the next trial, we cannot escape the genesis of those decisions, and the surrounding circumstances, which stem from the past trial.

For the reasons that follow, we REVERSE in part and AFFIRM in part the district court's interpretation of 18 U.S.C. § 1591(a) and Federal Rule of Evidence 701(c), and its resulting determinations regarding the admissibility of evidence and jury instruction. [*4]



The third question is whether the district court erred in its holding that teachers and police officers are experts when testifying about their opinion of a person's age. We ultimately affirm the district court's holding, and provide some clarification.

Recall that the prosecution's theme of the first trial was the sex trafficking of children. Specifically, the indictment charged several defendants with sex trafficking Jane Doe 2, a minor under the age [*40]  of 14, in violation of 18 U.S.C. § 1591(a). Moreover, Jane Doe 2 was the prosecution's star witness and, for the most part, its only evidence to support this claim. But the defense argued that Jane Doe 2 and her family had lied about her age and her true parentage, and that she was not only older than she claimed but was actually an adult (at least 18 years old) at the time of the alleged events. When the FBI declared her proffered birth certificate a forgery and DNA testing revealed her biological father, the defense was able to establish conclusively that she was at least five months older than she claimed, and cited other evidence as proof that she was actually much older.

This distinction is important: § 1591(a) requires no proof of force, fraud, or coercion in the sex trafficking of a child, because a child cannot consent, whereas force, fraud, or coercion is a necessary element for the sex trafficking of an adult. But the prosecution had little, if any, evidence of force, fraud, or coercion of Jane Doe 2, and much of the evidence actually depicted Jane Doe 2 as a willing participant. Consequently, the prosecution faced the critical and significant challenge of convincing the jury that Jane Doe 2 was a child. [*41]

The prosecution sought to call some of Jane Doe 2's former teachers and certain police officers (who had prior encounters with her) to testify about their opinion of her age. But in an incident typical of the prosecution's approach throughout the trial, the prosecutor made a suspicious "mistake" when calling the first such witness, which set the tone for the ensuing discussion and analysis of this issue. Just prior to a recess, the prosecutor told the court that its next witness would be a records custodian from Jane Doe 2's school, merely to authenticate some records. After the recess, the prosecution called Shelley Wotzka and began with background questions about her 37 years as an elementary and middle school teacher, the thousands of students she had taught ("five to seven hundred a year"), and her position as a teacher at Jane Doe 2's school in 2006. R. 2630 at 1549-50; Pg# 15721-22. Then, this unexpected exchange:

   Prosecutor: What grade are you in when you are 12?

   Wotska: Sixth, usually.

Prosecutor: Are there significant differences between 12 year olds and 18 year olds?

Wotska: Very much so.

Prosecutor: What are those differences?

. . .

Defense: Your Honor, I object. 701.

The Court: [*42]  Ladies and gentlemen of the jury, I'm going to have to excuse you for a minute....

I understood this witness was called as a records custodian.

Prosecutor: No, I'm sorry, Your Honor. If I could explain. I didn't realize that all of the school pictures had already been admitted through JD 2's testimony, and as a result there was no need to call the records custodian. If I may, this woman is a choir teacher for JD 2 in 2006.

. . .

Part of our proof is Jane Doe 2's age. My purpose of calling this witness is [for testimony] that [Jane Doe 2] was appropriately placed in her grade. This witness has over 30 some years worth of experience . . . in dealing with middle schoolers. She can testify competently about . . . if someone were 18 in her sixth grade class, if they were appropriately placed there, if she had any suspicions that they were not, and what steps she took to have someone who was inappropriately placed in her class placed elsewhere.

R. 2630 at 1550; Pg# 15722. In response, the defense argued that this was surprise expert opinion testimony, based on specialized knowledge, drawn from a purported lay witness.

   The Court: . . . What is the basis for this lady's opinion?

. . .

Prosecutor: [*43]  Your Honor, after 33 years of teaching, I think she would be in a position to know if she has a[n] 18 year old in her class or if she has someone who is inappropriately placed there, based on their age.

The Court: Yes, but that's the point I'm getting at. If that is the basis for what you are asking, then this is expert opinion testimony governed by [Federal] Rule [of Criminal Procedure] 16[,] for which there would need to be a report. I granted a Rule 16(a) motion filed by the defendants. And the response to that motion by the [prosecution] was, the [prosecution] has fully complied with all of these. And I don't remember seeing any reports of this witness.

Prosecutor: Your Honor, and that's correct. We did not list her as an expert witness.

R. 2630 at 1553-56; Pg# 15725-28. After lengthy (and repetitious) further dispute, the prosecution eventually moved on to its next witness but later moved the court to reconsider.

   Prosecutor: . . . Your Honor, on Saturday I filed a brief, and the arguments are basically these. For any of the victim witnesses, their being a minor is an element of proof. We are dealing with a unique population in that it is very difficult to find actual documentary proof with respect [*44]  to age. And that's largely a function of the historical circumstances.

Nevertheless, we did find some case law in which courts have allowed laypersons under 701 to provide testimony - -

The Court: That's not the way this witness was presented. This witness was presented as someone who had been teaching for - - what, 30 years?

Prosecutor: That's correct, Your Honor.

The Court: And observed 3,000 - - thousands of students? I mean, the way this witness was presented was as a person with specialized knowledge. It wasn't presented as a lay witness.

. . .

Now, it's going to be hard to tell the jury to strike all this experience she had that she testified to them about 30 years of experience and all these - - I mean, to allow that person to be recalled. That's a back door to . . . [introduce] expert opinion, and I have excluded it.

. . .

Prosecutor: . . . [T]here are other teachers that were on our witness list that we struck, and we would like an opportunity to call them. If the [c]ourt's concern[] is that the [prosecution] is posturing them as experts, we can eliminate those kinds of questions. . . .

The Court: That's what I'm asking you. Assume you call other teachers, what would they add to the jurors' own [*45]  - - because you introduced pictures in her fifth grade, her sixth grade, her seventh grade, her eighth grade - - what would those teachers add to what the jurors can perceive from the photographs themselves?

. . .

Other than some specialized knowledge based on their experience with children. Because that's really the basis on which you are calling them.

R. 2631 at 1603-06; Pg# 15776-79. The prosecution continued to repeat its same argument until the court recessed, reviewed the prosecution's proffered cases, and returned with a ruling:

   The Court: The [c]ourt believes that to call a witness to the stand, and once they identify their avocation and the manner in which they came to know [] Jane Doe 2, once you have asked them their occupation, that's going to carry with it the whole set of implied qualifications and experiences on age that, from the [c]ourt's perspective, necessarily implicates Rule 702, which is a separate requirement before you can present expert testimony. And the [c]ourt believes that just their status as teachers puts them in that category.

So I'm going to deny the [prosecution]'s motion to reconsider, . . . for the reasons stated now and for the earlier one.

R. 2631 at 1619-20; Pg# 15792-93. Upon [*46]  the prosecution's questioning, the court clarified that friends and cohorts would be appropriate lay witnesses concerning their perception of Jane Doe 2's age, but that police officers would not be, for the same reasons as teachers. The prosecution preserved two police officers' proffers for the record, and the district court concluded its ruling:

   The Court: I think the officers could testify that this Jane Doe 2 appeared young, but in terms of characterizing her age based on their experience, I think they would have to be in compliance with Rule 702. If they were relying on the officer's experience in dealing with young folks in terms of characterizing age, that that would fall under Rule 702, because it is an experience that doesn't grow out of everyday life but it grows out of a specialized occupation.

R. 2631 at 1748-49; Pg# 15921-22.

In ruling on the government's motion in limine, the district court expressly relied on the foregoing reasoning, which it had applied during trial, to reach the same conclusion:

   Prior to trial, several defendants earlier moved for disclosures of experts' reports, but the [prosecution] represented that no such reports were to be used and the [c]ourt denied the defense motions. [*47]  At trial, the [c]ourt permitted several lay witnesses to give their opinions about Jane Doe Two's age. The [prosecution] then sought to el[ici]t from a teacher, opinion testimony on Jane Doe Two's age, citing the teacher's years of service and the number of students whom the teacher observed over her more than 30 years of service.

. . .

The manner in which the [prosecution] sought to elicit testimony from teachers and intended to elicit from police officers led the [c]ourt to conclude that these witnesses' testimony was or would be based upon their specialized knowledge from numerous years in their line of work. Opinion testimony based upon specialized knowledge is subject to Daubert standards. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 147-49 (1999). If the testimony is presented on the same bases as at the first trial, the [c]ourt will follow the same ruling.

R. 3167 at 29-31; Pg# 22169-71.

The government argues that the district court misinterpreted and misapplied Rules 701 and 702, and that when teachers and police officers draw from their on-the-job knowledge and experience to form an opinion of a person's age, it is merely lay testimony. Appellant's Br. at 19. Because this concerns the meaning of Rules 701 and 702, we review de novo. United States v. Breitkreutz, 977 F.2d 214, 221 (6th Cir. 1992). We review the district court's 701 and 702 rulings [*48]  for abuse of discretion. United States v. White, 492 F.3d 380, 398 (6th Cir. 2007).

Comparing the government's argument with the district court's holding, however, reveals a complicating inconsistency: the government argues against a broad proposition, whereas the district court issued a nuanced holding that clearly qualifies that proposition. Both could be correct. Either way, given the standard of review, we must ultimately consider for ourselves the meaning and application of these two rules. Thus, we begin with the plain text of each:

   Rule 701. Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness's perception;

(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Fed. R. Evid. 701.

   Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact [*49]  in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. The critical provision is 701(c), which bars testimony based on "specialized knowledge," and one question is whether teachers and police officers drawing on their vocational experience to estimate a person's age are necessarily relying on "specialized knowledge."

Before parsing the arguments, we can address the parties' cited authority. The government relies on three out-of-circuit opinions to support its position. But each is based on facts very different from the present facts and is, therefore, unpersuasive.

In United States v. White Calf, 634 F.3d 453, 460 (8th Cir. 2011), the Eighth Circuit found no abuse of discretion in the district court's admission of testimony by a police officer that, at the time of the arrest, the victim appeared to be underage (i.e., "looked pretty small," "didn't look like she was 19," and "looked like a grade schooler"). The defendant challenged this testimony as irrelevant and prejudicial; he did not challenge it as improper expert testimony and the opinion does not consider expert versus lay [*50]  opinion at all. Also, far from being dubbed expert testimony, the opinion lumped the officer's testimony in with "[t]he perceptions of [the victim]'s appearance by anyone who saw her on the night in question."

Similarly, in United States v. Yazzie, 976 F.2d 1252, 1254-55 (9th Cir. 1992), the challenge did not regard improper expert testimony nor did the opinion consider expert versus lay opinion, because the witnesses were just people who happened to see the 15-year-old victim on the night in question (smoking cigarettes, drinking alcohol, driving a car, wearing makeup, and looking "fully developed"). The appellees here argue that two additional factors further undermine Yazzie: (1) it pre-dates the amendment to Federal Rule of Evidence 701 that added the "specialized knowledge" language, and (2) it ultimately holds that, by excluding defendant Yazzie's witness's testimony, the district court prevented defendant Yazzie from rebutting the prosecution's case, leading to Sixth Amendment fair-trial concerns and a defense argument that the prosecution had opened the door to the admissibility of this testimony.

Finally, the government cites United States v. Stanley, 896 F.2d 450, 451-52 (10th Cir. 1990), a case in which the Tenth Circuit held that the district court did not abuse its discretion by permitting the government's witness, a postal inspector, to testify [*51]  that, in his opinion, the girls depicted in certain pornographic photos were under the age of 18. This case has the same limitations as the prior cases: the challenge did not regard a claim of improper expert testimony and the opinion does not consider expert versus lay opinion at all; this case pre-dates the amendment to Rule 701 that added the "specialized knowledge" language; and the-abuse-of-discretion ruling could have been equally upheld had the decision gone the other way.

While we find none of the government's cases compelling, we note that the defendants offer no compelling cases of their own. But the defendants cite the Advisory Committee Notes to the 2000 Amendment to Rule 701, which added the prohibition on basing lay testimony on specialized knowledge within the scope of Rule 702. Those Notes begin:

   Rule 701 has been amended to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing. Under the amendment, a witness' testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on . . . other specialized knowledge within the scope of Rule 702. By channeling testimony that is actually expert [*52]  testimony to Rule 702, the amendment also ensures that a party will not evade the expert witness disclosure requirements set forth in Fed. R. Civ. P. 26 and Fed. R. Crim. P. 16 by simply calling an expert witness in the guise of a layperson.

Fed. R. Evid. 701, Advisory Committee Notes, 2000 Amendments (internal citation omitted), citing Gregory P. Joseph, Emerging Expert Issues Under the 1993 Disclosure Amendments to the Federal Rules of Civil Procedure, 164 F.R.D. 97, 108 (1996) (noting "there is no good reason to allow what is essentially surprise expert testimony" and "the [c]ourt should be vigilant to preclude manipulative conduct designed to thwart the expert disclosure and discovery process").

Not only did the court clearly believe the prosecution was "proffering an expert in lay witness clothing" (thereby evading the expert-witness disclosure requirements and proffering "surprise" testimony), the court was also concerned with the basis for or reliability of the witnesses' determination. In its colloquy with the prosecutor, the court returned repeatedly to the fact (conceded by the prosecutor) that these teacher witnesses were basing their opinion of Jane Doe 2's age on their years of experience with thousands of students and the police-officer witnesses on years of extensive interaction with the public, well beyond the experience of an ordinary layperson (or juror). The court [*53]  also emphasized the defense's inability to challenge such a witness's opinion on cross-examination without acknowledging, or at least revealing, the witness's unique vocational experience. The court thought this was "specialized knowledge" under Rules 701(c) and 702(a).

Now, returning to the government's argument and the district court's holding, we find that we must first reframe the issue. Rules 701 and 702 do "not distinguish between expert and lay witnesses, but rather between expert and lay testimony." Fed. R. Evid. 701, Advisory Committee Notes, 2000 Amendments (emphasis in original); see, e.g., United States v. Breland, 366 F. App'x 548, 552 (5th Cir. 2010). To the extent that the district court held that teachers and police officers are necessarily experts because of their vocational knowledge and experience, regardless of their actual testimony, the court is incorrect. Similarly, to the extent that the government argues that because an opinion of a person's age is based on a perception "common to all persons," teachers and police officers are necessarily lay witnesses regardless of their actual testimony, the government is also incorrect. Therefore, while the government is correct in its contention that teachers and police officers are not necessarily experts in forming an opinion of a person's age, it is incorrect in its [*54]  contention that they necessarily are not experts.

Rather, we must consider the proposed testimony and the district court's nuanced holding concerning the actual and anticipated testimony. During trial, the court expressed two basic concerns with the testimony. The first or major concern was that the prosecutor had introduced the witnesses as if they were experts, by suggesting, asserting, or emphasizing that they had some "specialized knowledge" based on years of experience, thousands of children, etc. The district court was within its authority to address a situation in which it may have viewed the prosecution as improperly bolstering its witnesses. See, e.g., United States v. Garcia-Oriz, 528 F.3d 74, 79-80 (1st Cir. 2008). The second or minor concern was that the testimony would not add to what the jurors could perceive for themselves, either by seeing Jane Doe 2 as she testified at trial or viewing the many grade-school photos of her that the prosecution had entered into evidence. That is, the court may have viewed the testimony as cumulative, irrelevant, or even misleading. See Fed. R. Evid. 701(b) (lay opinion testimony must help the jury "to clearly understanding the witness's testimony or to determining a fact in issue"). Ultimately, the court ruled:

   The manner [*55]  in which the [prosecution] sought to elicit testimony from teachers and intended to elicit from police officers led the [c]ourt to conclude that these witnesses' testimony was or would be based upon their specialized knowledge from numerous years in their line of work. . . . If the testimony is presented on the same bases as at the first trial, the [c]ourt will follow the same ruling.

R. 3167 at 29-31; Pg# 22169-71 (emphasis added). Given the express basis and limitation of this ruling, we cannot conclude that the district court misinterpreted or misapplied Rule 701.

Consequently, we find no abuse of discretion in this ruling, which states an intention to exclude certain testimony based on its substance or the manner of its presentation. But, as we read this ruling, the court does not intend to improperly exclude certain witnesses based solely on their vocation or perceived specialized knowledge. Therefore, we need not correct any such misunderstanding made on that basis.

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