Lord(s) of War?: Southern District of New York Uses Rule 704 to Find No Error in Failing To Call Expert

Federal Rule of Evidence 704(b) provides that

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

The recent opinion of the United States District Court for the Southern District of New York in Moreno-Godoy v. United States, 2014 WL 1088300 (S.D.N.Y. 2014), raises an interesting question with regard to Rule 704(b): Does the simple fact that some portion of an expert's opinion might run afoul of Rule 704(b) justify an attorney in not calling him as a witness?

In Moreno-Godoy, Luis Felipe Moreno-Godoy and co-conspirators Monzer Al Kassar and Tareq Mousa Al Ghazi were indicted for the following offenses (1) conspiracy to kill United States nationals;(2) conspiracy to kill officers and employees of the United States; (3) conspiracy to acquire and use anti-aircraft missiles; (4) conspiracy to provide material support or resources to a foreign terrorist organization; and (5) money laundering. Specifcially,

The Indictment alleged that Godoy, Kassar, and Ghazi had agreed to provide the international terrorist group Fuerzas Armadas Revolucionarias de Colombia (“FARC”) with "millions of dollars worth of weapons to be used, among other things, to kill nationals of the United States in Colombia." 

After he was convicted, Moreno-Godoy appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial attorney 

did not secure a "Weapons System and Defense Technology Expert" named George S. Sevier because he "did not want to pay the requested fee."...Godoy points to a letter that Sevier wrote to Kassar's attorney in which Sevier stated, "I thought that your client and his associates were more likely to be running a scam against their 'customer' than involved in actually delivering the material."...In Godoy's view, this letter establishes that Sevier would have provided crucial testimony at the trial to support the defendants' "position that the Defendant's [sic] never intended to sell the FARC weapons—and were therefore not guilty of the charged crimes."...Godoy alleges that he was denied Sevier's testimony because Stavis "let a small billing disagreement get in the way of providing [his] clients a meaningful defense." 

The Southern District of New York disagreed, concluding that

it would have been reasonable for Stavis to decide that the testimony of these potential witnesses would not have been helpful to Godoy's case. Sevier's opinion would not have been admissible given that Federal Rule of Evidence 704 bars an expert witness in a criminal case from "stat[ing] an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or a defense." Thus, Sevier would not have been permitted to testify that the defendants only intended to con the FARC agents and did not in fact have the required intent to sell the weapons.

This conclusion seems a bit disingenuous to me. Sure, the court is correct that Stavis couldn't have testified that the defendants "lacked the intent to sell the weapons." But Stavis absolutely could have testified as to the reasons why he reached the conclusion that the defendants were scamming their custimer. As I have noted before, Federal Rule of Evidence 704 is more about labels than anything else. As long as Stavis would have steered clear of using words like "intent," his testimony would have been perfectly admissible.

-CM