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Monday, September 8, 2008

The Family Business: Second Circuit Finds That Mafiosos Don't Need To Be Qualified As Expert Witnesses

The mafia may be the family business, but, according to the Second Circuit, that doesn't mean that its members have to be qualified as expert witnesses before they can testify abut it.  In United States v. Yannotti, 2008 WL 4071691 (2nd Cir. 2008), Michael Yannotti appealed from his conviction for conspiring to engage in racketeering in violation of RICO.  On appeal, one of his claims was that the trial court improperly admitted the testimony of Gambino Family associate Andrew DiDonato.  At trial and over Yannotti's objection, the trial judge permitted DiDonato to testify, inter alia, about two intercepted conversations involving Yannotti, which allegedly proved that he engaged in loansharking.

According to DiDonato, individuals who receive extortionate loans usually make weekly payments on the interest rather than on the principal and that the interest is usually termed "points" by those involved in loansharking.  In response to the government's question about the meaning of an alleged loansharking victim's statement to Yannotti that "I'm going to leave you a two," DiDonato testified that it meant "200 dollars" in interest. DiDonato also testified that the intercepted conversations consisted of Yannotti seeking to collect a debt from an individual who was "backed up on his payments."  The court admitted this testimony as proper lay witness testimony under Federal Rule of Evidence 701 after determining that DiDonato acquired his understanding of the conversation through personal experience with loansharking.

Federal Rule of Evidence 701 states that:

     "If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."

On Yannotti's appeal, the Second Circuit found that DiDonato's testimony easily met the first two requirement of Rule 701 because: (1) it was rationally based on his own perceptions which he derived from his direct participation in the loansharking activities of the charged enterprise, and (2) there was little question that DiDonato's testimony was helpful to the jury because the conversation between Yannotti and the individual was cryptic and required interpretation.

The Second Circuit then found that his testimony met the third requirement based upon the conclusion:

     "that where a witness derives his opinion solely from insider perceptions of a conspiracy of which he was a member, he may share his perspective as to aspects of the scheme about which he has gained knowledge as a lay witness subject to Rule 701, not as an expert subject to Rule 702....No different conclusion is mandated by Rule 701's requirement that a lay opinion must be the product of 'reasoning processes familiar to the average person in everyday life,' and not 'scientific, technical, or other specialized knowledge....'  While we do not profess that loansharking is an activity about which the average person has knowledge, we find that the opinion DiDonato reached from his own loansharking experience derived from a reasoning process familiar to average persons. In short, his opinion did not depend on the sort of specialized training that scientific witnesses or statisticians rely upon when interpreting the results of their own experiments or investigations."

All of this would make sense if the only experts who needed to be qualified under Rule 702 were scientific witness, statisticians, and those with specialized training or education.  But, as I like to tell my Evidence students, Rule 702 takes all types.  Sure, neurosurgeons need to be qualified as expert witnesses under Rule 702, but so do witnesses who want to testify as experts in general automotive knowledge.  And while "My Cousin Vinny" got plenty of legal issues wrong, it was right that Mona Lisa Vito could be qualified as an expert able to give testimony concerning general automotive knowledge based upon working in her father's garage, despite having no specialized training or education.

Indeed, in the famous case of United States v. Johnson, 575 F.2d 1347 (5th Cir. 1978), the Fifth Circuit found that a pot head could be, and had to be, qualified as an expert witness on the question of whether drugs were imported despite the fact "that he had no special training or education for such identification," with "his qualifications c[oming] entirely from 'the experience of being around a great deal and smoking it.'"   

Government agents typically have to be qualified as expert witness under Rule 702 before they can render testimony about loansharking. See, e.g., United States v. Weiner, 3 F.3d 17, 21 (1st Cir. 1991).  And based upon the foregoing analysis, I don't see why members of the mafia should be treated any differently.   

-CM

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