No IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 2014 JOHN HABIB. Petitioner, UNITED STATES OF AMERICA. Respondent.

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 2014 JOHN HABIB Petitioner, v. UNITED STATES OF AMERICA Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit BRIEF FOR THE RESPONDENT 8R Attorneys for Respondent 1

2 TABLE OF CONTENTS ISSUES PRESENTED... 1 STATEMENT OF THE CASE... 2 STATEMENT OF FACTS... 2 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 7 I. STANDARDS OF REVIEW II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN EXCLUDING DR. WHITE S EXPERT TESTIMONY REGARDING THE WITNESSES S CREDIBILITY WHEN DR. WHITE WAS ALLOWED TO TESTIFY TO THE WITNESSES S MENTAL DISORDER AND ITS ASSOCIATED SYMPTOMS... 7 A. DR. WHITE S EXPERT OPINION CONCERNING MR. ROBERTS S CREDIBILITY IS INADMISSIBLE PURSUANT TO RULE 702 BECAUSE THE OPINION EXCEEDS THE SCOPE OF HIS SPECIALIZED KNOWLEDGE BY MAKING A CREDIBILITY DETERMINATION WHICH INFRINGES ON THE ROLE OF THE JURY... 8 B. DR. WHITE S EXPERT OPINION ON MR. ROBERTS S CREDIBILITY DOES NOT FIT WITHIN AN EXCEPTION SINCE THE JURY WAS PERMITTED TO HEAR THE TESTIMONY REGARDING REED S DISORDER AND ITS CHARACTERISTIC OF DECEITFULNESS III. THE DISTRICT COURT PROPERLY PRECLUDED THE DEFENDANT FROM ASSERTING THE FIFTH AMENDMENT PRIVILEGE AGAISNT COMPELLED SELF-INCRIMINAITON TO THE ACT OF PRODUCING CORPORATE DOCUMENTS AS THE PRIVILEGE DID NOT APPLY TO THE DEFENDANT SINCE HE POSSESSED THOSE DOCUMENTS WHILE HE WAS EMPLOYED BY ZODIAC AND THE DOCUMENTS REMAINED IMMUTABLY CORPORATE A. THE TERMINATION OF THE DEFENDANT S EMPLOYMENT RELATIONSHIP DID NOT TERMINATE i

3 HIS OBLIGATION TO PRODUCE CORPORATE RECORDS ON PROPER DEMAND B. THE DEFENDANT AS A FORMER EMPLOYEE OF ZODIAC, INC. STILL HELD THE CORPORATE RECORDS IN A REPRESENTATIVE CAPACITY IV. STATEMENTS SUGGESTING RELIGIOUS BIAS MADE DURING JURY DELIBERATIONS DO NOT QUALIFY AS EXTRANEOUS PREDJUDICIAL INFORMATION WITHIN THE FEDERAL RULE OF EVIDENCE 606(B)(2)(A) EXCEPTION TO THE RULE S LONG- STANDING AND FIRMLY ESTABLISHED PROHIBITION ON THE USE OF JUROR TESTIMONY TO INVALIDATE A VERDICT A. THE STATEMENTS ALLEGEDLY MADE BY JURORS #2, #8, AND #9 EVINCING ANTI-MUSLIM VIEWS DO NOT QUALIFY AS EXTRANEOUS PREJUDICIAL INFORMATION FOR THE PURPOSES OF FEDERAL RULE OF EVIDENCE 606(B)(2)(A) B. THIS COURT IS NOT REQUIRED TO IMPLY AN EXCEPTON TO FEDERAL RULE OF EVIDENCE 606(B)(1) FOR EVIDENCE OF RELIGIOUS BIAS C. AS A MATTER OF PUBLIC POLICY THE ENUMERATED EXCEPTIONS TO FEDERAL RULE OF EVIDENCE 606(B)(1) SHOULD BE READ NARROWLY SO AS TO PRESERVE THE FINALITY OF JURY VERDICTS AND CANDID JURY DELIBERATIONS THAT PLAY A CRUCIAL ROLE IN THE JUDICIAL SYSTEM V. STATEMENTS SUGGESTING RELIGIOUS BIAS MADE DURING INTERNAL JURY DELIBERATIONS DID NOT IMPEDE UPON THE DEFENDANT S RIGHT TO AN IMPARTIAL JURY A. THE RELIGIOUS BIAS EVINCED BY JURORS DID NOT RISE TO THE LEVEL OF BEING SO RARE AND GRAVE SO AS TO JUSTIFY VIOLATING RULE 606(B) S STRONG PUBLIC POLICY AGAINST INTRUDING INTO THE MINDS OF JURORS B. THE DEFENDANT HAD OTHER MEANS OF PROTECTING HIS SIXTH AMENDMENT RIGHTS WITHOUT VIOLATING RULE 606(B) ii

4 CONCLUSION iii

5 TABLE OF AUTHORITIES CASES Aetna Life Ins. Co. v. Ward, 140 U.S. 76 (1891)... 8 Bachman v. Leapley, 953 F.2d 440 (8th Cir. 1992)... 9 Bellis v. United States, 417 U.S. 85 (1974)... 13, 14, 15, 17, 18 Braswell v. United States, 487 U.S. 99 (1988)... passim Brown v. United States, 411 U.S. 223 (1973) Engesser v. Dooley, 457 F.3d 731 (8th Cir. 2006)... 9 Fortune v. United States, 65 A.3d 75 (D.C. 2013)... 20, 21 Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997)... 7 Gov t of Virgin Islands v. Gereau, 523 F.2d 140 (3rd Cir. 1975)... 21, 24, 25, 27, 28 Grant v. United States, 227 U.S. 74 (1913)... 14, 18 Hale v. Henkel, 201 U.S. 43 (1906) Hamling v. United States, 418 U.S. 87 (1974)... 8 In re Custodian of Records of Variety Distrib., Inc., 927 F.2d 244 (6th Cir. 1991) In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d 1039 (11th Cir. 1990)... 7, 16 In re Grand Jury Subpoena (85-W-71-5), 784 F.2d 857 (8th Cir. 1986) In re Grand Jury Subpoena Dated June 27, 1991, 772 F. Supp. 326 (N.D. Tex. 1991) In re Grand Jury Subpoena Dated Nov. 12, 1991, FGJ 91-5 (MIA), 957 F.2d 807 (11th Cir. 1992)... 16, 17, 18 In re Grand Jury Subpoenas Duces Tecum Dated June 13, 1983 & June 22, 1983, 722 F.2d 981 (2nd Cir. 1983)... 17, 18, 19 In re Grand Jury 89-4 Subpoena Duces Tecum, 727 F. Supp. 265 (E.D. Va. 1989) iv

6 In re Grand Jury Subpoenas Issued to Thirteen Corporations, 775 F.2d 43 (2d Cir. 1985) In re Sealed Case, 877 F.2d 83 (D.C. Cir. 1989) In re Sealed Case (Gov t Records), 950 F.2d 736 (D.C. Cir. 1991) Kittle v. United States, 65 A.3d 1144, 1150 (D.C. 2013)... 21, 22, 23, 24 Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir. 2005)... 22, 25 Martinez v. Food City, Inc., 658 F.2d 369 (5th Cir. 1981)... 21, 28 McDonald v. Pless, 238 U.S. 264 (1915)... 27, 29 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984)... 29, 32 Newell v. Prudential Ins. Co. of Am., 904 F.2d 644 (11th Cir. 1990)... 7 Nimely v. City of New York, 414 F.3d 381 (2d Cir. 2005)... 9 Sellars v. United States, 401 A.2d 974 (D.C. 1979) Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987)... 23, 26, 30, 31 Smith v. Brewer, 444 F. Supp. 482 (S.D. Iowa 1987) Tanner v. United States, 483 U.S. 107 (1987)... passim United States v. Adams, 271 F.3d 1236 (10th Cir. 2001)... 10, 11 United States v. Beasley, 72 F.3d 1518 (11th Cir. 1996)... 9 United States v. Benally, 546 F.3d 1230 (10th Cir. 2008)... passim United States v. Dorsey, 45 F.3d 809 (4th Cir. 1995)... 9, 10 United States v. Duncan, 42 F.3d 97 (2d Cir. 1994) United States v. Gonzalez-Maldonado, 115 F.3d 9 (1st Cir. 1997)... 9, 10 United States v. Hall, 93 F.3d 1337 (7th Cir. 1996)... 12, 13 United States v. Henley, 238 F.3d 1111 (9th Cir. 2001)... 25, 26 United States v. Hunnewell, 891 F.2d 955 (1st Cir. 1989)... 7 v

7 United States v. McKinney, 429 F.2d 1019 (5th Cir. 1970) United States v. Montas, 41 F.3d 775 (1st Cir. 1994)... 8 United States v. Rangel-Arreola, 991 F.2d 1519 (10th Cir. 1993)... 8 United States v. Rivera, 43 F.3d 1291 (9th Cir. 1995)... 9 United States v. Rosario-Diaz, 202 F.3d 54 (1st Cir. 2000)... 7 United States v. Sessa, 806 F. Supp (E.D.N.Y 1992) United States v. Shay, 57 F.3d 126 (1st Cir. 1995)... 12, 13 United States v. Toledo, 985 F.2d 1462 (10th Cir. 1993)... 8, 10, 11 United States v. Vest, 116 F.3d 1179 (7th Cir. 1997)... 9, 10 United States v. Villar, 586 F.3d 76 (1st Cir. 2009)... 30, 31 United States v. Wilkerson, 656 F. Supp. 2d 11 (D.D.C. 2009) Warger v. Shauers, 721 F.3d 606 (8th Cir. 2013) Wheeler v. United States, 226 U.S. 478 (1913)... 14, 18 CONSTITUTIONS, STATUTES, AND RULES U.S. Cont. amend. V U.S. Cont. amend. VI U.S.C A... 2, 4, U.S.C , 4, 34 Fed. R. Crim. P Fed. R. Evid. 606(b)... passim Fed. R. Evid. 606(b)(1)... passim Fed. R. Evid. 606(b)(2) Fed. R. Evid. 606(b)(2)(A)... passim vi

8 Fed. R. Evid. 702 advisory committee note... 8 Fed. R. Evid. 702(a)... 7 Fed. R. Evid. 702(b)... 7, 8 Fed. R. Evid. 702(c)... 7, 8 Fed. R. Evid. 702(d)... 7, 8 Fed. R. Evid. 704 advisory committee note... 9 H.R. Conf. Rep. No , p.8 (1974) vii

9 No IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 2014 JOHN HABIB Petitioner, v. UNITED STATES OF AMERICA, Respondent. BRIEF FOR THE RESPONDENT ISSUES PRESENTED I. WHETHER AS A MATTER OF LAW, FEDERAL RULE OF EVIDENCE 702 PRECLUDES EXPERT PSYCHIATRIC TESTIMONY ON THE CREDIBILITY OF A SPECIFIC WITNESS WHEN THE EXPERT WAS PERMITTED TO TESTIFY ABOUT THE WITNESSES S DISORDER AND THE SYMPTOMS OF THE DISORDER. II. III. IV. WHETHER THE DEFENDANT, A FORMER EMPLOYEE OF ZODIAC, INC., MAY ASSERT HIS FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION TO THE ACT OF PRODUCING CORPORATE DOCUMENTS IN HIS POSSESSION WHEN HE RECEIVED THOSE DOCUMETS WHILE EMPLOYED BY ZODIAC AND THE DOCUMENTS REMAINED IMMUTABLY CORPORATE. WHETHER STATEMENTS SUGGESTING RELIGIOUS BIAS MADE DURING INTERNAL JURY DELIBERATIONS QUALIFY AS EXTRANEOUS PREJUDICIAL INFORMATION WITHIN THE FEDERAL RULES OF EVIDENCE 606(B)(2)(A) EXCEPTION TO THE RULE S LONG- STANDING AND FIRMLY ESTABLISHED PROHIBITION ON THE USE OF JUROR TESTIMONY TO INVALIDATE A VERDICT. WHETHER STATEMENTS SUGGESTING RELIGIOUS BIAS MADE DURING INTERNAL JURY DELIBERATIONS IMPEDED UPON THE DEFENDANT S RIGHT TO AN IMPARTIAL JURY, WHERE THE DEFENDANT S COUNSEL FAILED TO INQUIRE INTO ISSUES OF RELIGIOUS BIAS DURING VOIR DIRE AND NO JURORS REPORTED EVIDENCE OF RELIGIOUS BIAS TO THE COURT DURING TRIAL. 1

10 STATEMENT OF THE CASE The Grand Jury indicted John Habib, the Defendant-Petitioner, (hereinafter referred to as the Defendant ) for two counts of second-degree murder in violation of Title 18 U.S.C. Section 1111 and three counts for violating Title 15 U.S.C. Section 2064-A, the Consumer Electronics Safety Act. (R. at 2-3). Prior to trial, the Defendant filed a motion in limine to admit expert testimony as well as a motion to quash the Government s subpoena seeking corporate records. (R. at 22). Chief Judge Daniel Joseph III of the United States District Court for the District of Joralemon denied in part and granted in part the motion to admit expert testimony and denied the motion to quash. (Id. at 22-24). A jury trial commenced on September 3, (R. at 39). Following the trial, a verdict of guilty on all counts was entered against the Defendant on September 27, (R. at 25). On October 3, 2013, the Defendant moved for a new trial on the grounds that extraneous prejudicial information had been brought before the jury, which violated his Sixth Amendment right to an impartial jury. (Id.). On October 15, 2013, Chief Judge Joseph III denied the Defendant s motion for a new trial. (R. at 38). Subsequently, the Defendant appealed to the United States Court of Appeals for the Fourteenth Circuit, who affirmed the holding of the district court on all counts. (R. at 43-46). The Defendant petitioned for a writ of certiorari to the Supreme Court of the United States, which was subsequently granted on October 30, (R. at 52). STATEMENT OF FACTS The Defendant was president of Zodiac Electronics, Incorporated ( Zodiac ) from 1995 until he was dismissed in January (R. at 40). Zodiac, a personal electronics manufacturer, 2

11 is headquartered in the city of Boerum, in the district of Joralemon. (R. at 1). In 2008, the Defendant began developing his idea for a smart watch device called the Genius Watch. (R. at 40). The Defendant was in charge of the Genius Watch s creation and he worked alongside Mr. William Roberts, who was second in command under the Defendant in the development of the watch. (R. at ) Mr. Roberts was an electrical engineer for Zodiac and head of the wearable smart-device department. (R. at 40). Mr. Roberts testified that he and the Defendant used a small lithium battery which was flattened and stretched to the degree required for it to fit into the sleek Genius Watch casing. (Id.). Mr. Roberts further testified that he and the Defendant were well aware that the flattening and stretching of the battery would cause it to heat and expand rapidly. (Id.). Additionally, Mr. Roberts stated that he and the Defendant conducted an experiment in October of 2011 which revealed that under heavy movement, the likelihood of the Genius Watch exploding increased exponentially to a near certitude. (Id.). Despite the dangers of the watch exploding, Mr. Roberts testified that the Defendant instructed him to continue using the same battery. (Id. at 40-41). Unfortunately, the possibility of the Genius Watch exploding came to reality when Ms. Olivia Mope and Mr. Jonathan Snow died from injuries sustained when their respective Genius Watches exploded. (R. at 7). Ms. Mope, an employee of the National Parks Service, died on October 4, 2012, just days after the Genius Watch had been released. (R. at 40-41). Ms. Mope spent most of her time cutting and clearing trails for the enjoyment of visitors to Fire Island National Seashore. (Id. at 41). Three days later, Jonathan Snow, a drill sergeant in the Army, died from his exploding Genius Watch on October 7, (Id.). Sergeant Snow was developing a new training routine on the Joralemon Army Base for his incoming trainees. (Id.). 3

12 Just three months after the two tragic deaths, Zodiac fired the Defendant on January 1, 2013, for which it claimed unspecified reasons. (Id.). On January 15, 2013, the Consumer Electronic Products Safety Commission ordered Zodiac to recall the Genius Watches, citing the two October 2012 deaths and its suspicion that regulatory filings had been falsified or fabricated. (Id.). On February 1, 2013, Mr. Roberts entered into a transactional immunity proffer agreement with the United States Attorney s Office. (R. at 1). In March of 2013, the Defendant was indicted on two counts of second degree murder pursuant to Title 18 U.S.C. Section 1111, for the tragic deaths of Ms. Olivia Mope and Mr. Jonathan Snow. (R. at 7). Additionally, the Defendant was indicted on three counts of violating Title 15 U.S.C A, the Consumer Electronics Safety Act. (Id.). Before trial, the Defendant moved to introduce an expert witness, Dr. Jacob White, to testify that Mr. Roberts suffered from Reed s disorder which affects his ability to tell the truth. (R. at 39). The district court granted the Defendant s motion in part and denied it in part. Dr. White was allowed to testify as to Reed s disorder generally and how he came to diagnose Mr. Roberts, but he was not allowed to testify as to how Reed s disorder might affect Mr. Roberts s credibility. (Id.). The Defendant also moved to quash the Government s subpoena duces tecum seeking all documents in Defendant s possession pertaining to the Genius Watch. The Government had to resort to a subpoena since the hard drive containing all of the Genius Watch development files was destroyed in a fire. (R. at 41). Additionally, the Defendant was the only employee authorized to copy documents pertaining to the Genius Watch and he stated that he periodically took many, if not most of those documents home. (R. at 42). The district court denied the Defendant s motion, holding that a former employee of a corporation who holds corporate documents 4

13 obtained in the course of employment remains a representative of the corporation for purposes of a subpoena ordering a production of those documents. (R. at 39). On September 27, 2013, the Defendant was found guilty on all counts. (Id. at 39-40). The Defendant then moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure stating that extraneous prejudicial information was improperly brought to the jury s attention and that the effect it had on the jury s deliberative process violated his Sixth Amendment right to an impartial jury. (Id. at 40). On September 30, 2013, the Defendant s counsel received a phone call from an individual identifying herself as Juror #3, stating that some improper statements were made during jury deliberations. (R. at 26). Juror #3 alleged that during the jury s internal deliberations Jurors #2, #8, and #9 had made clear their personal beliefs regarding Muslims, and that they believed the Defendant to be of the Muslim faith. (Id. at 26-27). Juror #3 also felt as if some statements made by Jurors #8 and #9 had unfairly pressured Juror #5 into voting guilty. (Id.). SUMMARY OF THE ARGUMENT The district court did not abuse its discretion by excluding Dr. White, a psychiatrist, from testifying that Mr. Roberts would be unable to testify truthfully due to his condition of Reed s disorder. First, Rule 702 of the Federal Rules of Evidence generally prohibits an expert from testifying about the credibility of a witness. Here, Dr. White is an expert in the field of psychiatry, specifically of mental illnesses; however, Dr. White planned to testify about the credibility of Mr. Roberts. This exceeds the scope of a mental illness diagnosis and goes to the individual credibility of a witness, which is left for the jury s determination. Second, the district court allowed sufficient testimony about Mr. Roberts and his mental disorder to aid the jury in making a credibility determination. In this case Dr. White was allowed to testify about Mr. 5

14 Roberts s mental history, his diagnosis of Reed s disorder, and the characteristics of a person affected by Reed s disorder. The district court did not err in denying the Defendant s motion to quash the Government s subpoena duces tecum. The Defendant, as a custodian of a corporation, cannot assert his Fifth Amendment privilege against compelled self-incrimination to the act of producing corporate documents. Despite being a former employee of Zodiac, Inc., the Defendant held the corporate documents of a collective entity during his time as president of the corporation. When the Defendant transferred the corporate documents of the Genius Watch to his own possession, he assumed their custody in a representative capacity and thereby, retained the instant obligation to produce the documents upon proper demand. The Defendant cannot simply claim the Fifth Amendment privilege by removing the documents from the corporation and transferring them to his personal home. The transfer of the documents does not change the immutable character of the documents. The district court did not abuse its discretion in holding that statements made by jurors during deliberations evincing religious bias were internal jury deliberations and therefore do not qualify as extraneous prejudicial information for the purposes of Rule 606(b)(2)(A). These statements simply reflect the personal beliefs of the jurors and give light to the jurors mental process in reaching a verdict. Both case law and long-standing public policy suggest that even in instances of religious bias, these statements should not be admitted under the Rule 606(b) exceptions. The district court also did not err in holding that excluding the juror testimony under Rule 606(b)(1) did not violate the Defendant s right to an impartial jury. The Defendant had access to other means of protecting his Sixth Amendment rights during his trial, and the few statements 6

15 made by a minority of the jurors do not warrant an inquiry into whether his right to an impartial jury was infringed upon. ARGUMENT I. STANDARDS OF REVIEW Issues concerning the admission or exclusion of expert testimony are reviewed for abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, (1997). The applicability of a privilege involves a mixed question of law and fact. See In re Grand Jury Proceedings 88-9, 899 F.2d 1039, 1042 (11th Cir. 1990). Purely factual issues are subject to the clearly erroneous standard of review and the application of law to facts is determined de novo by the court of appeals. Newell v. Prudential Ins. Co. of Am., 902 F.2d 644, 649 (11th Cir. 1990). Allegations of juror misconduct are reviewed for abuse of discretion. See United States v. Hunnewell, 891 F.2d 955, 961 (1st Cir. 1990) (explaining that a judge s conclusion that the jury has not been soured deserves great respect [and]... should not be disturbed in the absence of a patent abuse of discretion. ). Constitutional issues asserted by a criminal defendant are reviewed de novo. United States v. Rosario-Diaz, 202 F.3d 54, 70 (1st Cir. 2000). II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN EXCLUDING DR. WHITE S EXPERT TESTIMONY REGARDING THE WITNESSES S CREDIBILITY WHEN DR. WHITE WAS ALLOWED TO TESTIFY TO THE WITNESSES S MENTAL DISORDER AND ITS ASSOCIATED SYMPTOMS. Expert opinion testimony may be introduced at trial if it will help the trier of fact to understand the evidence or to determine a fact in issue. Fed. R. Evid. 702(a). An expert may provide opinion testimony if: the testimony is based upon sufficient facts or data and is the product of reliable principles and methods, and the expert has reliably applied the principles 7

16 and methods to the facts of the case. Fed. R. Evid. 702(b)-(d). The touchstone of admissibility under Rule 702 is the helpfulness of the evidence to the trier of fact. United States v. Rangel- Arreola, 991 F.2d 1519, 1524 (10th Cir. 1993). Therefore the fundamental question that a court must answer in determining whether a proposed expert s testimony will assist the trier of fact is [w]hether the untrained layman would be qualified to determine intelligently and to the best degree, the particular issue without enlightenment from those having a specialized understanding of the subject matter involved. United States v. Montas, 41 F.3d 775, 783 (1st Cir. 1994) (quoting Fed. R. Evid. 702 advisory committee s note), cert. denied, 514 U.S (1995). A. Dr. White s expert opinion concerning Mr. Roberts s credibility is inadmissible pursuant to Rule 702 because the opinion exceeds the scope of his specialized knowledge by making a credibility determination, which infringes on the role of the jury. The district court was correct in limiting Dr. White s expert medical testimony to his diagnosis of Reed s disorder and its symptoms since Dr. White s testimony concerning Mr. Roberts s credibility would have infringed upon the jury s function to determine credibility. A district court has wide discretion in its determination to admit and exclude evidence, and this is particularly true in the case of expert testimony. Hamling v. United States, 418 U.S. 87, 108 (1974). The credibility of witnesses is generally not an appropriate subject for expert testimony. United States v. Toledo, 985 F.2d 1462, 1470 (10th Cir. 1993). It is a well recognized principle in the trial system that determining the weight and credibility of [a witness s] testimony... belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.... Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891). An expert s opinion that another witness is lying or telling the truth is ordinarily inadmissible pursuant to Rule 702 because the opinion exceeds the scope of the expert s specialized knowledge and therefore merely informs the jury that it should reach a 8

17 particular conclusion. See, e.g., Bachman v. Leapley, 953 F.2d 440, 441 (8th Cir. 1992); Fed. R. Evid. 704 advisory committee s note (evidence can be excluded pursuant to Rule 702 if it would merely tell a jury what result to reach, somewhat in the manner of oath-helpers of an earlier day ). A majority of the circuits have held that, generally, witness credibility is not an appropriate subject for expert opinion testimony. See Engesser v. Dooley, 457 F.3d 731, 736 (8th Cir. 2006) ( An expert may not opine on another witness s credibility. ); Nimely v. City of New York, 414 F.3d 381, 398 (2d Cir. 2005) ( [E]xpert opinions that constitute evaluations of witness credibility, even when such evaluations are rooted in scientific or technical expertise, are inadmissible under Rule 702. ); United States v. Vest, 116 F.3d 1179, 1185 (7th Cir. 1997) ( Credibility is not a proper subject for expert testimony; the jury does not need an expert to tell it whom to believe, and the expert s stamp of approval on a particular witness testimony may unduly influence the jury. (quotations omitted)); United States v. Gonzalez-Maldonado, 115 F.3d 9, 16 (1st Cir. 1997) ( An expert s opinion that another witness is lying or telling the truth is ordinarily inadmissible pursuant to Rule 702 because the opinion exceeds the scope of the expert s specialized knowledge and therefore merely informs the jury that it should reach a particular conclusion. ); United States v. Beasley, 72 F.3d 1518, 1528 (11th Cir. 1996) ( Absent unusual circumstances, expert medical testimony concerning the truthfulness or credibility of a witness is inadmissible... because it invades the jury s province to make credibility determinations. ); United States v. Rivera, 43 F.3d 1291, 1295 (9th Cir. 1995) ( [A]n expert witness is not permitted to testify specifically to a witness credibility or to testify in such a manner as to improperly buttress a witness credibility. ); United States v. Dorsey, 45 F.3d 809, 815 (4th Cir. 1995) ( [E]xpert testimony can be properly excluded if it is introduced merely to 9

18 cast doubt on the credibility of other eyewitnesses, since the evaluation of a witness s credibility is a determination usually within the jury s exclusive purview. ). There are several reasons for prohibiting expert testimony on other witness credibility. Such testimony: (1) usurps a critical function of the jury ; (2) is not helpful to the jury, which can make its own determination of credibility; and (3) when provided by impressively qualified experts on the credibility of other witnesses is prejudicial and unduly influences the jury. Toledo, 985 F.2d at For example, in United States v. Adams, a clinical psychologist concluded that the defendant s low neurocognitive functioning and dependent personality structure strongly raised the possibility that he was not telling the truth when confessing to police officers about possessing a firearm. 271 F.3d 1236, 1246 (10th Cir. 2001). The court held that the expert s testimony impermissibly encroached upon the jury s function of making credibility determinations by ultimately deciding the issue of credibility himself. Id. Here, the Defendant is unquestionably qualified to offer his opinion concerning Reed s disorder and its associated symptoms. Additionally, the reliability and nature of Dr. White s methods are not at issue. However, the subject matter of Dr. White s testimony, that Mr. Roberts is not a credible witness, is not admissible under Rule 702 because it exceeds the scope of Dr. White s specialized knowledge. See Gonzalez-Maldonado, 115 F.3d at 16. Dr. White s expertise is in the field of psychiatry, specifically with mental illnesses; however, he planned to testify about the credibility of a witness something not within his specialized knowledge. See Vest, 116 F.3d at Aside from testifying to the disorder itself and its symptoms, Dr. White is in no better position than a lay person to say whether Mr. Roberts could testify truthfully. See id. Furthermore, Dr. White s expert opinion concerning Mr. Roberts s credibility will not assist the trier of fact since the jury already heard Dr. White s diagnosis of Reed s disorder and 10

19 its symptoms. See Fed. R. Evid Without Dr. White s testimony of Reed s disorder, the jury would not be fully equipped to make an intelligible determination as to the credibility of Mr. Roberts. Therefore, the district court did allow Dr. White s testimony in regards to the disorder, which allowed the jury to hear the procedures Dr. White used to evaluate Mr. Roberts as well as the symptoms displayed by an ordinary person affected by the disease. (R. at 22-23). Consequently, Dr. White s expert opinion on Mr. Roberts s diagnosis of Reed s disorder assisted the trier of fact in understanding the evidence. This testimony along with the jury s ability to observe Mr. Roberts on direct and cross-examination was sufficient to notify the jury of Mr. Roberts s credibility as a witness during their deliberations. See United States v. Sessa, 806 F. Supp. 1063, 1070 (E.D.N.Y. 1992). Additional testimony, specifically toward Mr. Roberts s credibility, would not further assist the jury but rather encroach upon the jury s role in the judicial system. See Toledo, 985 F.2d at Additionally, admitting Dr. White s credibility testimony would raise the concerns of usurping the function of the jury and unduly influencing the jury, which the court expressed in Toledo. See id. Similar to the expert s testimony in Adams, Dr. White planned to testify that, in his expert opinion, Mr. Roberts is not a credible witness. See id. 271 F.3d at First, by coming to this conclusion, the expert s testimony is not assisting the trier of fact but rather substituting the expert s judgment for the jury s. See United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994). Second, due to Dr. White s merits as a highly trained and well-credentialed psychiatrist, the jury may be prejudiced and unduly influenced by his opinion on Mr. Roberts s credibility. See Toledo, 985 F.2d at B. Dr. White s expert opinion on Mr. Roberts s credibility does not fit within an exception since the jury was permitted to hear the testimony regarding Reed s disorder and its characteristic of deceitfulness. 11

20 In some rare situations, expert testimony that touches on credibility may be admitted. See United States v. Shay, 57 F.3d 126, (1st Cir. 1995) (holding that a psychiatrist should have been permitted to testify that the defendant suffered from a recognized mental disorder known as pseudologia fantastica that caused him to tell false and self-aggrandizing stories.). Additionally, in United States v. Hall, the court ordered a new trial following the exclusion of expert testimony suggesting that false confessions sometimes occur and that the defendant had a personality disorder that makes him susceptible to suggestion F.3d 1337, 1341 (7th Cir. 1996). The court held that [i]t was precisely because juries are unlikely to know that social scientists and psychologists have identified a personality disorder that will cause individuals to make false confessions that the testimony would have assisted the jury in making its decision. Id. at Nevertheless, there is a difference between testifying to a disease s effect on credibility in general and testifying to a disease s effect on the personal credibility of a witness. This case is distinguishable from Shay and Hall. In Shay the trial court did not allow the expert, a psychiatrist, to even testify about the defendant s mental disorder that caused him to tell false and self-aggrandizing stories. 57 F.3d at Additionally, in Hall, the court precluded the expert from testifying about the defendant s personality disorder which made him susceptible to suggestion. 93 F.3d at However, in our case, the trial court allowed Dr. White to testify about his diagnosis of Mr. Roberts, Reed s disorder in general, and the symptoms displayed by an ordinary person affected by the disease. (R. at 22-23). By allowing the testimony about the recognized disorder, the trial court cured any defect that might have prevented the jury from having all the information it needed to make a credibility determination. Unlike Shay and Hall, where the jury was unaware of the defendant s mental disorder, the jury in our case was fully equipped with the psychological data of Mr. Roberts s mental 12

21 history, Dr. White s evaluation of Mr. Roberts, and Dr. White s testimony about the behavior of people with Reed s disorder. See id. This vast amount of data into the mind of Mr. Roberts gave the jury more than enough information to assess his credibility. Therefore, as the majority of circuits would agree, Dr. White s additional testimony on Mr. Roberts s credibility would not further assist the trier of fact according to Rule 702, but would rather encroach upon the jury s role to make credibility determinations. Next, the Defendant wishes to assert his Fifth Amendment privilege against compelled self-incrimination to the act of producing corporate documents in his possession. III. THE DISTRICT COURT PROPERLY PRECLUDED THE DEFENDANT FROM ASSERTING THE FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION TO THE ACT OF PRODUCING CORPORATE DOCUMENTS AS THE PRIVILEGE DID NOT APPLY TO THE DEFENDANT SINCE HE POSSESSED THOSE DOCUMENTS WHILE HE WAS EMPLOYED BY ZODIAC AND THE DOCUMENTS REMAINED IMMUTABLY CORPORATE. The Fifth Amendment provides, in part, that [n]o person shall be compelled in any criminal case to be a witness against himself.... U.S. Const. amend. V. This Court has held that a corporation has no Fifth Amendment privilege to refuse to produce its records. Hale v. Henkel, 201 U.S. 43, 74 (1906). Because a corporation can only produce its records through its human representatives, the corollary to this rule is that a corporate representative may not invoke his personal Fifth Amendment privilege to shield corporate records from a subpoena. Braswell v. United States, 487 U.S. 99, (1988). This principle is known as the collective entity doctrine and was explained by the Supreme Court in Bellis v. United States as follows: In view of the inescapable fact that an artificial entity can only act to produce its records through its individual officers or agents, recognition of the individual s claim of privilege with respect to the financial records of the corporation would substantially undermine the unchallenged rule that the organization itself is not 13

22 417 U.S. 85, 90 (1974). privileged to claim any Fifth Amendment privilege, and largely frustrate the governmental regulation of such organizations. In Braswell, the this Court held that the president and sole shareholder of two corporations could not assert his Fifth Amendment privilege against self-incrimination to the act of producing the books and records of the two entities. 487 U.S. at 102. Relying on the collective entity rule, this Court reasoned that a corporate custodian s act of producing corporate records in response to a subpoena is not a personal act, but a corporate act. Id. Consequently, any Fifth Amendment privilege asserted by the agent would be tantamount to a claim of privilege by the corporation, which it does not have. Id. at 110. However, in order to protect the custodian of the records, this Court held that the custodian s act of producing documents is made in a representative capacity and thus, the government may not make any evidentiary use of the act of production against the individual himself. Id. at While the custodian in Braswell was a current officer of the corporation, the employment status of an officer does not restrict his obligation to produce corporate documents. Id. A. The termination of the Defendant s employment relationship did not terminate his obligation to produce corporate records on proper demand. This Court has in earlier cases refused to hold that termination of the employment relationship somehow terminates the obligation to produce corporate records on demand. See Bellis, 417 U.S. at 88-90; Wheeler v. United States, 226 U.S. 478, (1913) (holding that no Fifth Amendment privilege could be claimed with respect to corporate records even though the corporation had previously been dissolved); Grant v. United States, 227 U.S. 74, (1913) (holding no Fifth Amendment privilege to the records of a dissolved corporation where the 14

23 records were in the possession of the individual who had been the corporation s sole shareholder). In Bellis, this Court refused to hold that a different rule should apply when the custodian of the collective entity documents was no longer employed by the entity. 417 U.S. at 88. Other courts considering the act of production privilege have recognized that, in light of the continuing vitality of the collective entity doctrine, a custodian of corporate records has no Fifth Amendment privilege to refuse to produce corporate records merely because his association with the corporation has terminated by the time of the issuance of the subpoena. See In re Grand Jury Subpoena, (85-W-71-5), 784 F.2d 857, 861 (8th Cir. 1986); In re Grand Jury Subpoenas Issued to Thirteen Corporations, 775 F.2d 43, (2d Cir. 1985), cert. denied, 475 U.S (1986); In re Grand Jury Subpoenas Dated June 27, 1991, 772 F. Supp. 326, 329 n. 1 & 330 (N.D. Tex. 1991; In re Grand Jury 89 4 Subpoenas Duces Tecum, 727 F. Supp. 265, 269 (E.D. Va. 1989); Cf. In re Sealed Case (Gov t Records), 950 F.2d 736, 740 (D.C. Cir. 1991) (relying on the collective entity rationale of Braswell in holding that former government official could not assert Fifth Amendment privilege to withhold production of government documents that she had transferred to her personal custody). Here, the Defendant s status as a former employee does not change the fact that he holds the corporate documents of a collective entity, Zodiac, Inc. While the officer in Braswell was a current employee, the Defendant in this case is still not entitled to assert his Fifth Amendment privilege since this Court did not carve out an exception to the collective entity doctrine for former employees. See Bellis, 417 U.S. at 88. Additionally, the Defendant seems to place too much emphasis on his employment status at the time the subpoena was issued. The Defendant testified that he was the only employee of 15

24 Zodiac who was authorized to copy documents pertaining to the Genius Watch. He further testified that he periodically took many, if not most of those documents home. (R. at 42). Furthermore, the Defendant was the custodian of the collective entity documents during the period of events which gave rise to the cause of action. Therefore, the Defendant wishes to cleanse himself of all knowledge and responsibility regarding the corporate documents he held for the corporation for years, simply because he is no longer employed by Zodiac. However, the Defendant cannot assert his Fifth Amendment privilege merely because he was no longer employed by the time the government issued the subpoena. See In re Grand Jury Subpoena, 784 F.2d at 861. B. The Defendant as a former employee of Zodiac, Inc., still held the corporate records in a representative capacity. This Court in Braswell repeatedly emphasized that corporate records are necessarily held in a representative capacity. 487 U.S. at 118. Subsequent to Braswell, other federal courts have acknowledged that those who hold collective entity documents hold them in a representative capacity. See In re Custodian of Records of Variety Distrib., Inc., 927 F.2d 244, 247, 250 (6th Cir. 1991); In re Sealed Case, 877 F.2d 83, 86 (D.C. Cir. 1989), cert denied, 493 U.S (1990); In re Grand Jury Proceedings 89 4, 727 F. Supp. at 269. In In re Grand Jury Subpoena, Dated Nov. 12, 1991, FGJ 91 5 (MIA), the defendant, Paul, served as a chairman of the board and chief executive officer of CenTrust Bank, Inc., before he was removed from his positions. 957 F.2d 807, 809 (11th Cir. 1992). Paul admitted that he copied a substantial amount of corporate documents and kept them when he left. Id. When Paul became the target of a federal grand jury investigation, he contended that the collective entity doctrine did not apply since he had no agency relationship with CenTrust when he was served with the grand jury subpoena, nor had he maintained such a relationship for over 16

25 two years. Id. The court was not persuaded by his argument and held that a custodian of corporate records continues to hold them in a representative capacity even after his employment is terminated. Id. at 812. It is the immutable character of the records as corporate which requires their production and which dictates that they are held in a representative capacity. Id. Therefore, production of corporate documents will be required regardless of whether the custodian is still employed with the corporation. Id. The court concluded that when Paul removed corporate documents from CenTrust and transferred them to his own possession, he assumed their custody in a representative capacity and retained the instant obligation to produce the corporate documents upon proper demand by the grand jury. Id. The Second Circuit has come to a different conclusion, and has rejected the proposition that the Fifth Amendment privilege cannot be asserted as to the act of producing corporate documents. See In re Grand Jury Subpoenas Duces Tecum dated June 13, and June 22, 1983, 722 F.2d 981 (2d Cir. 1983) (hereinafter referred to as Saxon ). In Saxon, the court held that the standard is not the potential incriminating nature and contents of the documents subpoenaed but whether their mere production would itself tend to incriminate the possessor. 722 F.2d at 986. Saxon recognized that if a defendant had still been a corporate officer or employee, he would normally have been obliged, as a representative of the company, to produce the documents. Id. at 984, 986 (citing Bellis, 417 U.S. at 88-94). The court concluded, however, that [o]nce the officer leaves the company s employ... he no longer acts as a corporate representative but functions in an individual capacity in his possession of corporate records. Id. at In this case, the Defendant is not entitled to assert his Fifth Amendment privilege to withhold the documents. When the Defendant transferred the corporate documents of the Genius 17

26 Watch to his own possession, he assumed their custody in a representative capacity and thereby, retained the instant obligation to produce the documents upon proper demand. Like the defendant Paul in In re Grand Jury Subpoena, Dated Nov. 12, 1991, FGJ 91 5 (MIA), the Defendant here cannot simply claim the Fifth Amendment privilege by removing the documents from the corporation and transferring them to his personal home. See 957 F.2d at 812. The transfer of the documents does not change the immutable character of the documents. See id. Whether the documents are at the corporation s headquarters or at the Defendant s home, the documents remain immutably corporate and are thus held in a representative capacity. See id. Just like the defendant Paul in In re Grand Jury Subpoena, Dated Nov. 12, 1991, FGJ 91 5 (MIA), the Defendant in this case continues to hold the corporate documents in a representative capacity even after his employment was terminated. Lastly, the Defendant is still precluded from asserting the Fifth Amendment privilege to the act of production despite the Second Circuit s holding in Saxon. In Saxon, the Second Circuit misinterpreted the Supreme Court s rulings in Bellis and Braswell. First, prior Supreme Court precedent has shown that the production of corporate records is still required regardless of whether the custodian is still associated with corporation. See Wheeler, 226 U.S. at (holding that no Fifth Amendment privilege could be claimed with respect to corporate records even though the corporation had previously been dissolved); Grant v. United States, 227 U.S. 74, (1913) (holding no Fifth Amendment privilege to the records of a dissolved corporation where the records were in the possession of the individual who had been the corporation s sole shareholder). Furthermore, a big concern in Saxon was that the former officer s very act of producing the corporate documents would establish that he misappropriated the documents and that he did 18

27 so because he had knowledge of their incriminating contents. However, this Court in Braswell alleviated this concern by holding that the custodian s act of producing the documents is made in a representative capacity and thus, the government may not make any evidentiary use of the act of production against the individual himself. 487 U.S. at 118. Therefore, the Second Circuit s analysis in Saxon is incorrect, and the Defendant, as a former employee, still holds the corporate documents in a representative capacity and thereby, must produce the documents. With the discussion of expert testimony and the collective entity doctrine complete, the issue of extraneous prejudicial information must be addressed. IV. STATEMENTS SUGGESTING RELIGIOUS BIAS MADE DURING JURY DELIBERATIONS DO NOT QUALIFIY AS EXTRANEOUS PREJUDICIAL INFORMATION WITHIN THE FEDERAL RULE OF EVIDENCE 606(B)(2)(A) EXCEPTION TO THE RULE S LONG-STANDING AND FIRMLY ESTABLISHED PROHIBITION ON THE USE OF JUROR TESTIMONY TO INVALIDATE A VERDICT. Federal Rule of Evidence 606(b) is modeled after the near-universal and firmly established common-law rule in the United States [which] flatly prohibited the admission of juror testimony to impeach a jury verdict. Tanner v. United States, 483 U.S. 107, 117 (1987). Federal Rule of Evidence 606(b)(1), titled Prohibited Testimony or Other Evidence, states: During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury s deliberations; the effect of anything on that juror s or another juror s vote; or any juror s mental processes concerning the verdict or indictment. The court may not receive a juror s affidavit or evidence of a juror s statement on these matters. Fed. R. Evid. 606(b)(1). This rule therefore prohibits three main categories of information, which are: (1) incidents or statements that occurred during the course of jury deliberations; (2) the mental processes through which the jurors arrived at their decision; and (3) the effect that anything had on the minds or emotions of the jurors. See Fed. R. Evid. 606(b)(1). 19

28 The Federal Rules of Evidence explicitly list three exceptions to this long-standing rule. Federal Rule of Evidence 606(b)(2) states that a juror may testify about whether extraneous prejudicial information was improperly brought to the jury s attention; an outside influence was improperly brought to bear on any juror; or a mistake was made in entering the verdict on the verdict form. Fed. R. Evid. 606(b)(2). Pertinent to the case at hand is Rule 606(b)(2)(A), which allows a juror to testify about any extraneous prejudicial information that was improperly brought to the jury s attention during deliberations. See Fed. R. Evid. 606(b)(2)(A). The fundamental question a court must answer in determining whether this exception applies is whether the improperly considered information was extraneous. See id. A. The statements allegedly made by Jurors #2, #8, and #9 evincing anti-muslim views do not qualify as extraneous prejudicial information for the purposes of Federal Rule of Evidence 606(b)(2)(A). The district court did not abuse its discretion in concluding that statements allegedly made by Jurors #2, #8, and #9 suggesting religious bias against Muslims do not qualify as extraneous prejudicial information for the purposes of Rule 606(b)(2)(A) because these statements were internal juror deliberations. Courts have relied on an external/internal distinction to determine those instances in which information would be considered extraneous for the purposes of Rule 606(b)(2)(A). Tanner, 483 U.S. at 117. This external/internal distinction is not based on whether or not a juror was physically outside or inside the deliberation room, but rather the distinction is based on the nature of the prejudicial information. Id. Due to this external/internal distinction, this exception effectively draws a dividing line between inquiry into the thought processes of the jurors on one hand, and inquiry into the existence of conditions or the occurrence of events calculated to exert an improper influence on the verdict, on the other. Fortune v. United States, 65 A.3d 75, 83 (D.C. 2013). Under this reasoning, a juror may 20

29 testify as to external influences on the jury, but that juror would be precluded from testifying as to the extent that external influence affected the minds of the jurors. See id. In Government of the Virgin Islands v. Gereau, the Third Circuit provided four broad examples of extraneous influences on a jury. 523 F.2d 140, 150 (3rd Cir. 1975). These are: (1) the jury being exposed to news items regarding the case before them; (2) the jury considering facts not presented at trial (extra-record facts); (3) communications between third parties and jurors; and (4) jurors being pressured by the court. Id. In addition to the broad examples laid out in Gereau, the court in Kittle v. United States held jurors reading newspaper articles about the case that have not been admitted into evidence or jurors having contact with a third party who seeks to manipulate the verdict as specific examples of extraneous jury influences. 65 A.3d 1144, 1150 (D.C. 2013) (citing United States v. Wilkerson, 656 F. Supp. 2d 11, (D.D.C. 2009)). The trend amongst circuit courts is to hold that juror testimony concerning statements made by jurors evincing bias is not extraneous for the purposes of Rule 606(b)(2)(A), but part of internal jury deliberations precluded from being offered to impeach a verdict. See United States v. McKinney, 429 F.2d 1019, (5th Cir. 1970) (holding that Rule 606(b)(2)(A) was not intended to provide an exception for racial slurs, as [w]e cannot expunge from jury deliberations the subjective opinions of jurors, their attitudinal expositions, or their philosophies. ); Martinez v. Food City, Inc., 658 F.2d 369, 373 (5th Cir. 1981) (holding that juror testimony regarding subjective prejudice of jurors was inadmissible). Both the language of the Rule 606(b) and supporting case law should lead this Court to conclude that the statements allegedly made by Jurors #2, #8, and #9 evincing anti-muslim views do not qualify as extraneous prejudicial information for the purposes of Rule 606(b)(2)(A). Two cases with similar facts to the case at hand, United States v. Benally and Kittle, provide 21

30 guidance for how this Court should evaluate the Defendant s claim. See 546 F.3d 1230, (10th Cir. 2008); 65 A.3d at In Benally, the Tenth Circuit held that the testimony of a juror who claimed that jury deliberations had been improperly influenced by statements evincing bias against Native Americans was not admissible under Rule 606(b)(2)(A). 546 F.3d at The defendant, who was Native American, unsuccessfully argued that statements made during jury deliberations about how Native Americans frequently consume alcohol and are violent should be admitted as extraneous prejudicial information that was improperly brought to the jury s attention. Id. See Fed. R. Evid. 606(b)(2)(A). In concluding that these personal opinions were not extraneous for the purposes of Rule 606(b)(2)(A), the court warned against confusing jurors who introduce outside information such as communications with third parties, jury tampering, and bribes with jurors who simply use their personal experiences to make their decision. 546 F.3d at See Marquez v. City of Albuquerque, 399 F.3d 1216, 1223 (10th Cir. 2005) ( A juror s personal experience, however, does not constitute extraneous prejudicial information. ). Therefore, in Benally, the inquiry was not whether the jurors discussed general matters not explicitly in the record, such as the defendant s ethnicity, but whether specific extra-record facts relating to the defendant were discussed. 546 F.3d at ( The statements might have been relevant to the matter before the jury, but that is not the inquiry... We instead ask whether the statements concerned specific facts about Mr. Benally or the incident in which he was charged, and they did not. ) The court held that the comments, which evinced bias against all Native Americans, were simply generalized statements based on the jurors s personal opinions. Id. Therefore, because the statements did not bring in outside information of facts pertinent to the defendant s case specifically, such as a newspaper article about a prior 22