C. ASHLEY ROYAL, District Judge.
The Government has moved to exclude the four opinions of Defendant's expert, J.P. Gingras. Having considered the Government's Motion [Doc. 35] and brief, Defendant's two briefs, and the applicable law, the Court
The Government has indicted Defendant Thanh Quoc Hoang for eleven counts of bank fraud. The superseding indictment accuses Hoang of using a scheme to defraud credit card companies by opening credit card accounts and then illegally obtaining goods, services, and cash from credit card companies. To carry out the scheme, he wrote worthless checks. The indictment alleges that from April 1, 2004, until May 31, 2004, Hoang defrauded financial institutions out of $349,071.33. Simply stated, Hoang allegedly scammed credit card companies out of huge sums of money.
On April 24, 2012, Defendant's attorney gave the Government Gingras's expert report. On May 3, 2012, the Government filed this Motion challenging the admissibility of Gingras's expert opinions under Rule 702. Hoang's attorneys have responded with two briefs. The Court does not believe that a hearing will help it rule on the motion, so the matter is now ripe for decision.
District courts have broad discretion in admitting or excluding expert testimony.
"The burden of establishing qualification, reliability, and helpfulness rests on the proponent of the expert opinion, whether the proponent is the plaintiff or defendant in a civil suit, or the Government or the accused in a criminal case."
Whether the expert testimony will help the jury understand the evidence or a fact in issue "goes primarily to relevance."
The courts regularly exclude vague and imprecise opinions because they will not assist the trier of fact. For example, in McDowell v. Brown,
Also, in United States v. Frazier,
So, consistent with Rule 702's helpfulness requirement, the Court excludes the first, second, and fourth of Gingras's four opinions because they do not help the jury and because they offer nothing more than what Hoang's attorney can say in closing argument. The Court, however, provisionally admits the third opinion. Gingras will have to show at trial that the Governments' double-counting and incorrect addition that overstates Hoang's criminal liability is more than a math problem that the jury can solve in the jury room. The Court will resolve this at trial after a brief in camera examination of Gingras's testimony on this point.
The Court does not question Gingras's credentials, his data, or the reliability of his methods. But Rule 702 requires more. And the more is that the expert must offer something beyond what his lawyer can argue
The indictment alleges eleven counts of bank fraud. The fraud involves Security Bank, a checking account, an initial cash deposit, writing bad checks, applying for credit cards, and charging with credit cards. Hoang allegedly opened the bank account to get the credit cards and then used the credit cards to buy goods, services, and cash. He allegedly wrote worthless checks to credit card companies from the Security Bank account. Along this alleged path of crime, he used bad checks to get more credit cards and charged more goods and services.
What is there about this scheme that a jury can't understand? The jury will know what a bank is, what a checking account is, what a credit card is, what goods and services are, and what it means to write and mail a worthless check to pay an honest debt. They will know what credit is and how it works. They will know about identity theft, and, no doubt, some have been victims of that plague. Moreover, the Court expects that almost everyone on the jury panel either has now or has had a bank account or a credit card. Most of them will have filled out credit card applications.
So it follows that the jury will know how to read a bank statement and a credit card statement and how to write checks and charge with credit cards. Further, the Court expects that all the jurors can add and subtract and know if a bank account has enough money to cover a check that pays a debt. Consequently, this case does not require expert opinions, or at least three of the four opinions that Gingras offers in this case. Now we will look at these opinions more closely.
Gingras is a forensic accountant. He has four opinions based on his review of Hoang's financial records, credit card applications, and banking records. These are common financial records, the likes of which millions of Americans routinely receive and read, and the jury will have them in evidence. Based on these records, he opines that:
Before moving forward, the Court notes that all four opinions are conspicuous for their vagueness. The court will return to this problem later in the order. As stated above, the Court is excluding opinions 1, 2, and 4, and provisionally admitting 3.
The Court will first consider whether the three excluded opinions assist the trier of fact. To assist a jury, the expert's opinions must cover matters beyond the ken of jurors — something beyond the average citizen's experience.
Credit card scams are common, everyday schemes to cheat banks out of money. Such scams are the well-travelled, dark alleys to easy cash. As outlined above, jurors hearing this case will have ample experience with banks, checking accounts, and credit cards to decide this case. The case involves common knowledge, common experience, and common crimes.
As such, in a matter that is obviously within the juror's common knowledge, expert testimony "almost by definition, can be of no assistance" and "[t]rouble is encountered only when the evaluation of the commonplace by an expert witness might supplant a jury's independent exercise of common sense."
Next, an expert's opinions must offer the jury more than what a lawyer can say in closing argument.
The trial court excluded opinions from Dr. Maris, a suicide prevention expert, explaining that the Maris was "telling the jury how to rule," and that the opinions "may be invading the province of the jury."
The same logic applies in this case. That the credit card statements are not determinative, opinion 1, that the accountant activity was unusual and out of the ordinary, opinion 2, and that it is possible that the Hoang was a victim of identity theft, opinion 4, are simple jury arguments. They are gratuitous comments that one would expect Hoang's defense lawyer to argue without any opinions from an expert. Hence, they should be excluded.
Now we can work through each opinion separately guided by the helpfulness requirement, beginning with opinion 1. Gingras tells us that he has looked at the Government's records and finds that they are
In United States v. Baskes,
Although Gingras does not use the same terms, he is opining directly or indirectly about the sufficiency of the Government's evidence. An accountant does not know
In reality, Gingras wants to tell the jury that the evidence doesn't show that Hoang is guilty. This is obviously the jury's job and only the jury's job. Here, Gingras has invaded the jury's province. Although Rule 704(a) abolished the ultimate issue rule, an expert "may not, however, merely tell the jury what result to reach. A witness also may not testify to the legal implications of conduct."
Now on to his second opinion. Gingras opines that the activity pattern on Hoang's account is unusual, out of the ordinary, and unique. Criminal conduct is by its very nature unusual and out of the ordinary, even though it is not necessarily unique. It is outside of the law, so it is out of the ordinary. It is unusual in the sense that usual conduct is lawful. But most important, if Hoang did not engage in criminal conduct before the indictment period, and then did engage in criminal activity during the indictment period, that would be unusual, out of the ordinary, and unique for Hoang. The Court does not understand how this broad and vacuous conclusion assists the jury. Finally, the opinion is vague, if not elusive. Opinion 2 also fails the helpfulness test.
Regarding opinion 3, the Court reserves its ruling until after the in camera hearing. If the Court finds that Gingras has identified nothing more than a math problem with the Government's indictment, then it will be excluded. But the Court is concerned that the Government may have unfairly duplicated charges or losses, and that the jury may need help discerning the difference. That remains to be seen.
Finally, for the Rule 702 analysis, Gingras's "possibility" opinion especially concerns the court. In opinion 4, Gingras opines that "these facts support the possibility that Mr. Hoang was the victim of identity theft during the Indictment Period." [Doc. 351-1] (emphasis added). A possibility is an abstraction. A possibility is a vague quantity, if in fact it represents any quantity at all. The word epitomizes vagueness. Black's Law Dictionary defines possibility as: 1. An event that may or may not happen.
The Court does not understand how a jury can work with Gingras's opinion about the possibility of identity theft to decide Hoang's guilt or innocence. A possibility cannot serve as a reason for reasonable doubt. At this point, the Court will return to a deeper look into the Frazier case.
In Frazier, defendant, accused of kidnapping a woman out of a Wal-Mart parking lot and later raping her, called a forensic investigator, Tressel, to testify that in his opinion Frazier did not rape the victim in the car. Tressel opined that if Frazier had intercourse with the victim, Tressel would have expected that hair or seminal
Gingras's fourth opinion suffers from the same infirmity. It is interesting that the court of appeals offered a spectrum of what might be described as the weight or the precision or the value of Tressel's opinion. It begins with the strongest type of opinion — absolute certainty, and works step-wise downward to the weakest. And the weakest is a possibility — all that Gingras offers in his fourth opinion. This possibility opinion must be excluded because it does not help the jury, because it says nothing more than what Hoang's lawyer can argue to the jury, and because it will likely mislead the jury. The same logic applies to opinion 2 that the pattern of activity during the indictment period is unusual, out of the ordinary, and unique. But the Court has already dealt with that opinion.
Finally, there is another problem with these three opinions. A trial court may strike opinion testimony both when it is not helpful under Rule 702 and also under Rule 403 when it may cause undue prejudice.
Rule 403 applies in this case. Even if the Court has improperly concluded that opinions 1, 2, and 4 do not assist the jury, the likely prejudice from those opinions outweighs their minimal probative value. Moreover, those opinions will likely confuse the issues and mislead the jury.
Based on the foregoing, the Court
