EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, June 15, 2021

District of Idaho Notes That the Ninth Circuit Has Limited the Scope of Rule 704(b)

Federal Rule of Evidence 704(b) states 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.

As the United States District Court for the District of Idaho noted in its recent opinion in United States v. Babichenko, 2021 WL 2364360 (D. Idaho 2021), however, "[t]he Ninth Circuit...has 'interpreted that rule much more narrowly than its text might indicate.'" So, what does that mean?

In Babichenko, the defendants were charged with three conspiracies: (1) conspiracy to commit wire fraud, (2) conspiracy to traffic in counterfeit goods, and (3) conspiracy to launder money. Before trial, they moved to preclude the State's Financial Expert, Linda Czemerys from testifying "that they engaged in financial transactions with the specific intent to conceal or disguise the source of funds, which is an element of money laundering.

In response, the court used the line from the introduction and then elucidated as follows:

In United States v. Gonzales, 307 F.3d 906, 911 (9th Cir. 2002), for example, the defendant was charged with possessing a controlled substance with intent to distribute. At trial, DEA Special Agent Heald testified that, “based upon the weight [of the drugs seized], that [sic] indeed it would be used to distribute as opposed to possess for your own ingestion.’” He was then asked whether his opinion would be firmer or less firm if the person carrying the drugs was also carrying a gun, pay/owe sheets and a scale. He responded, “Well, those circumstances would lead me to believe and make my opinion extremely firm that that person was carrying those items for the purpose of distributing the drugs.”

On appeal, the Ninth Circuit held that Agent Heald's expert testimony did not violate Rule 704(b) because “[e]ven if the jury believed the expert's testimony, the jury could have concluded that [the defendant] was not a typical or representative person, who possessed the drugs and drug paraphernalia involved. In other words, it could be concluded that although a typical person might have the requisite purpose or intent, Gonzales was atypical and did not.”...

In another case, United States v. Younger, 398 F.3d 1179, 1189 (9th Cir. 2005), an expert witness for the prosecution testified that “[t]he person, individual, whoever possessed this, possessed it for the purposes of selling.”...The court Ninth Circuit upheld the admission of the testimony, reasoning that “the expert never directly commented on defendant's mental state, and the jury could have accepted his testimony and still infer that defendant was atypical.”

 The court then ruled that

In keeping with this authority, the Court will grant defendants' motion in limine to the extent they simply seek an order preventing Ms. Czemerys from directly testifying as to their mental states or motives. Otherwise, Ms. Czemerys may of course testify that the effect of any given financial transaction was to conceal the source of funds. And, based on the Ninth Circuit authority described above, she may generally testify that a particular transaction or series of transactions has no apparent business purpose and evidences an intent to conceal. She cannot, however, go on to draw the inference that, based on her review of a financial transaction or series of transactions, a defendant did, in fact, have the intent to conceal the source of funds.

Finally, to the extent defendants ask for a blanket order prohibiting Ms. Czemerys from even using what they describe as “loaded buzz words” (“conceal,” “disguise,” “funnel,” “siphon,” “obfuscate,” “obscure,”) the Court will deny that request. So long as Ms. Czemerys does not directly testify about defendants' motives or mental states, the Court does not see any reason to prohibit her from using these words during her testimony.



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