Supreme Court of the United States

Transcription

1 Docket No IN THE Supreme Court of the United States JOHN HABIB, PETITIONER, V. THE UNITED STATES OF AMERICA, RESPONDENT. On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit BRIEF FOR PETITIONER JOHN HABIB

2 QUESTIONS PRESENTED I. Whether as a matter of law, Federal Rule of Evidence 702 precludes expert psychiatric testimony on the credibility of a specific witness. II. Whether a former employee of a corporation may assert the Fifth Amendment privilege against compelled self incrimination to the act of producing corporate documents in his possession. III. Whether statements evincing religious bias made by jurors during deliberations qualify as extraneous prejudicial information within the Federal Rule of Evidence 606(b)(2)(A) exception to the Rule s general prohibition on the use of juror testimony as evidence during an inquiry into the validity of a verdict. IV. Whether statements evincing religious bias made by jurors during deliberations deprived Petitioner of his Sixth Amendment rights to a fair trial and an impartial jury, where the issue of religion and religious bias were never reached on voir dire and no other evidence suggesting the jury s religious prejudice was shown to the court. i

3 TABLE OF CONTENTS Page(s) QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv OPINIONS BELOW...1 JURISDICTION...1 CONSTITUTIONAL PROVISIONS AND RULES INVOLVED...1 STATEMENT OF THE CASE...1 STANDARD OF REVIEW...5 SUMMARY OF ARGUMENT...6 ARGUMENT...8 I. FEDERAL RULE OF EVIDENCE 702 DOES NOT, AS A MATTER OF LAW, PRECLUDE EXPERT PSYCHIATRIC TESTIMONY ON THE CREDIBILITY OF A SPECIFIC WITNESS...8 A. Admission of expert opinion testimony on a witness credibility is consistent with the Federal Rules of Evidence...8 B. Dr. White s expert testimony is admissible under Federal Rule of Evidence II. A FORMER EMPLOYEE OF A CORPORATION MAY ASSERT THE FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION TO THE ACT OF PRODUCING CORPORATE DOCUMENTS IN HIS POSSESSION...14 A. This court should rule that a collective entity doctrine does not apply to a former employee of a corporation who is no longer acting on behalf of the corporation...14 B. Mr. Habib holds the subpoenaed records in a personal capacity and the act of production of the documents is testimonial and self-incriminating...16 ii

4 TABLE OF CONTENTS CONTINUED III. FEDERAL RULE OF EVIDENCE 606(b)(2)(A) PERMITS JUROR TESTIMONY EVINCING RELIGIOUSLY BIASED STATEMENTS MADE DURING JURY DELIBERATION...19 A. Congress enacted Rule 606(b)(2)(A) to admit precisely the kind of extraneous information introduced by Jurors #2, #8, and #9 s religiously biased statements...19 B. Rule 606(b) entitles Petitioner to at least an evidentiary hearing investigating any religiously biased statements made by jurors during deliberation...20 C. Religiously biased statements are extraneous information because they are matters considered by the jury but not admitted into evidence...23 IV. STATEMENTS EVINCING RELIGIOUS BIAS MADE BY JURORS DURING DELIBERATION DEPRIVED PETITIONER OF HIS SIXTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL JURY...24 A. This Court should admit juror testimony evincing religious bias because prejudicial statements made during deliberation implicate a defendant s right to due process and an impartial jury...24 B. The Tanner analysis does not control this case because it governs only juror misconduct and not prejudicial juror statements Voir dire and observation by courtroom personnel do not safeguard the right to a fair trial where prejudicial juror statements are only made during deliberation Jurors who suffered intimidation, threats, and harassment did not have the opportunity to report religiously biased statements made during deliberation...29 CONCLUSION...32 APPENDIX... A1 iii

5 TABLE OF AUTHORITIES U.S. Supreme Court Cases Bellis v. United States, 417 U.S. 85 (1974)...15, 17 Braswell v. United States, 487 U.S. 99 (1988)...16, 18 Fisher v. United States, 425 U.S. 391 (1975)...17 Hale v. Henkel, 201 U.S. 43 (1906)...14, 17 Irwin v. Dowd, 366 U.S. 717 (1961)...24 McDonald v. Pless, 238 U.S. 264 (1915)...28 McDonough Power Equip. v. Greenwood, 464 U.S. 548 (1984)...25, 26 Tanner v. U.S., 483 U.S. 107 (1987)...23, 27, 29, 31 United States v. Doe, 465 U.S. 605 (2010)...18 United States v. White, 322 U.S. 694 (1944)...17 Wilson v. United States, 221 U.S. 361 (1911)...14, 17 U.S. Court of Appeals Cases Gov t of the V.I. v. Gereau, 523 F.2d 140 (3d Cir. 1975)...30 Hard v. Burlington Northern R.R., 812 F.2d 482 (9th Cir. 1987)...21, 23, 24 iv

6 TABLE OF AUTHORITIES CONTINUED In re Grand Jury Subpoena Duces Tecum Dated June 13 th 1983 and June 22 nd 1983 (Saxon Industries, 722 F.2d 981 (2d Cir. 1983)...15, 17 United States v. Azure, 801 F.2d 336 (8th Cir. 1986)...12 United States v. Beasley, 72 F.3d 1518 (11th Cir. 1996)...12 United States v. Charley, 189 F.3d 1251 (10th Cir. 1999)...12 United States v. Davis 60 F.3d 1479 (10th Cir. 1995)...20 United States v. Gonzalez-Maldonado 115 F.3d 9 (1st Cir. 2009)...11 United States v. Hill, 749 F.3d 1250 (10th Cir. 2014)...12 United States v. Samara, 643 F.2d 701 (10th Cir. 1981)...12 United States v. Shay, 57 F.3d 126 (1st Cir. 1995)...10 United States v. Velarde, 214 F.3d 1204 (10th Cir. 2000)...12 United States v. Vig, 167 F.3d 443 (8th Cir. 1999)...23 United States v. Walker 313 F.2d 236 (6th Cir. 1963)...8 United States v. Wintermute, 443 F.3d 993 (8th Cir. 2006)...23 U.S. v. Bambulas, 471 F.2d 501 (7th Cir. 1972)...8 v

7 TABLE OF AUTHORITIES CONTINUED U.S. v. Bassler, 651 F.2d 600 (8th Cir. 1981)...26 U.S. v. Benally, 546 F.3d 1230 (10th Cir. 2008)...19, 23, 26, 30, 31 U.S. v. Dotson 799 F.2d 189 (5th Cir. 1986)...8 U.S. v. Farhane, 634 F.3d 127 (2d Cir. 2011)...20 U.S. v. Henley, 238 F.3d 1111 (9th Cir. 2011)...21 U.S. v. Villar, 588 F.3d 76 (1st Cir. 2009)...24, 25 U.S. District Court Cases United States of America v. Sessa, 806 F. Supp 1063 (E.D.N.Y. 1992)...10 U.S. v. Fuentes, 2013 WL , Criminal No. 2:12-CR-50-DBH (D. Me. Aug. 19, 2013)...25 Constitutional and Statutory Provisions U.S. Const., amend. V... passim U.S. Const., amend. VI... passim Rules Fed. R. Evid , 13 Fed. R. Evid , 10, 13 Fed. R. Evid , 10, 13 Fed. R. Evid , 9, 13 Fed. R. Evid. 405 advisory committee s note...9, 10 Fed. R. Evid , 20, 27, 31 Fed. R. Evid. 606 advisory committee s note...19 Fed. R. Evid , 13 Fed. R. Evid , 9, 12, 13, 14 Fed. R. Evid. 702 advisory committee s note...13 Fed. R. Evid. 804 advisory committee s note...10, 11 vi

8 TABLE OF AUTHORITIES CONTINUED Other Authorities Charlie Hebdo attack: Three days of terror, BBC News (Jan. 14, 2015; 12:55 ET), Growing Concerns about Rise of Islamic Extremism at Home and Abroad, Pew Research Center (Sept. 10, 2014), Jonathan M. Katz and Richard Pérez-Peña, In Chapel Hill Killing of 3 Muslims, a Question of Motive, The New York Times (Feb. 11, 2015), Margaret A. Berger, Note, United States v. Scop: The Common-Law Approach to an Expert s Opinion About a Witness s Credibility Still Does Not Work, 55 Brook. L. Rev. 559 (1989)...9, 13 Nicholas S. Bauman, Note, Extraneous Prejudicial Information : Remedying Prejudicial Juror Statements Made During Deliberations, 55 Ariz. L. Rev. 775 (2013)...21 President Obama stating ISIL is a potential threat to US, Al Jazeera America (Feb. 11, 2015), vii

9 OPINIONS BELOW The opinion of the United States Court of Appeals for the Fourteenth Circuit, R. at 39-51, is not printed in the Federal Reporter. The order of the United States District Court for the District of Joralemon, id. at 22-24, is not printed in the Federal Reporter. The decision on motion for a new trial of the United States District Court for the District of Joralemon, id. at 34-38, was delivered from the bench, and therefore is also not printed in the Federal Reporter. JURISDICTION The judgment of the United States Court of Appeals for the Fourteenth Circuit was entered in October Id. at 39. The petition for a writ of certiorari was granted on October 30, Id. at 52. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISIONS AND RULES INVOLVED The pertinent constitutional provisions and rules are reproduced in the appendix to this brief. App., infra, at A1. STATEMENT OF THE CASE Factual Background Petitioner-Defendant John Habib is the former president of Zodiac Electronics, Incorporated ( Zodiac ). R. at 1. Zodiac manufactured and sold the Genius Watch which allegedly malfunctioned and caused two deaths. Id. Mr. Habib is no longer an employee of Zodiac. Id. at 16. Mr. William Roberts, an engineer with Zodiac and former co-worker of Mr. Habib s, entered into a transactional immunity proffer agreement with the United States Attorney s Office in the District of Joralemon. Id. at 1. Shortly thereafter, Mr. Roberts informed the Government the Mr. Habib knew of the design defect in the Genius Watch that resulted in 1

10 explosions. Id. at 2. Furthermore, Mr. Roberts informed the Government that Mr. Habib had the only remaining documents concerning the Genius Watch in his home. Id. at 13. Based on this information the Government obtained a search warrant of Mr. Habib s home, but failed to discover any such documents. Id. at 14. Subsequently, the Government issued a subpoena duces tecum to Mr. Habib, demanding these records. Id. On August 15, 2013, Petitioner moved to introduce Dr. Jacob White as an expert witness to testify about his diagnosis of Mr. Roberts. Id. at 6. Dr. White is a forensic and board-certified general psychiatrist with over 30 years of experience and specializes in treating individuals with mental illnesses and in performing forensic examinations related to litigation. Id. at 20. Based on Dr. White s psychological examination of Mr. Roberts on July 24 and July 26, 2013, Dr. White diagnosed Mr. Roberts with Reed s disorder. Id. at 21. According to Dr. White, Mr. Roberts suffers from a pattern of deceitful and manipulative interactions with others, consistent with Reed s disorder. Id. Reed s disorder is characterized by a pervasive pattern of disregard and violation of the rights of others. Id. Sufferers of Reed s disorder have the impulse to lie and con others for personal profit and pleasure. Id. Based on his expertise in this area and based on his interactions and psychological evaluation of Mr. Roberts, Dr. White concluded that due to the way that Reeds disorder manifests itself in Mr. Roberts, it is likely that he would be unable to testify completely truthfully in court and would most likely lie in the presence of authority figures. Id. The Government moved to exclude Dr. White s expert testimony at trial, contending it is outside the scope of Federal Rule of Evidence 702, which allows introduction of expert opinion testimony concerning specialized information that will aid the trier of fact. The Government argued that expert opinion testimony that speaks to Mr. Robert s credibility is inadmissible under Federal Rule of Evidence

11 On the same day, Petitioner moved to quash the Government s subpoenas, arguing it violated Mr. Habib s Fifth Amendment right against self-incrimination. Mr. Habib is a former employee who has corporate records in his personal possession. Id. at 13. Mr. Habib has not worked for or had a formal relationship with Zodiac since January Id. at 16. Trial took place in this case on September 3, 2013 and the jury convicted Mr. Habib on all counts on September 27, Id. at 39. Shortly after the trial, on September 30, 2013, Juror #3 telephoned Stewart Schultz, Esq., counsel for Petitioner. Id. at 26. Prior to receiving this phone call, Mr. Schultz had no contact with any juror concerning their deliberation. Id. Juror #3 reported to Mr. Schultz that there had been a pervasive anti-muslim perspective during deliberation that significantly affected the jury s verdict. Id. Specifically, Juror #3 stated that Jurors #2, #8, and #9 aggressively harassed the one dissenting juror, Juror #5. Id. She reported that Juror #2 threw his hands in the air and shouted, How can you possible believe this towelhead? He s clearly out there killing Americans with these watches as some sort of terrorist plot! Id. Juror #5 responded, Look I don t mean to drag things out, but I don t feel comfortable voting guilty. I honestly don t believe the prosecution has proved their case beyond a reasonable doubt. Id. Jurors #8 and #9 continued to harass and intimidate Juror #5, suggesting Juror #5 was involved in a terrorist plot with Mr. Habib and that they would report him to the judge to be locked up. Id. at 27. Juror #9 further passionately declared, My brother died fighting those bastards overseas and now you want to let one go when we have him in our grasp? You disgust me. Once Juror #5 suggested discussing Mr. Roberts testimony again, Juror #2 responded, Why are we even listening to you? We know towlie here is guilty. His people do this thing all over the world, and I for one am not letting him get away with it here. Then, after five minutes 3

12 of silence, Juror #2 suggested another vote and that vote returned with a unanimous guilty verdict. Id. Juror #3 told Petitioner s counsel that she had felt trepidation over voting guilty, but had been caught up in the moment. Id. She was not offered anything in return for the conversation, but expressed her desire and willingness to testify to what occurred during deliberation. Id. Procedural Posture On March 11, 2013, Petitioner John Habib was indicted on two charges of murder in the second degree in violation of 18 U.S.C and three counts of violating 15 U.S.C A, the Consumer Electronics Safety Act. On August 15, 2013, Petitioner moved to introduce Dr. White s expert testimony concerning his psychological evaluation of the Government s key witness, Mr. Roberts. On that same day, Petitioner also moved to quash the Government s subpoena duces tecum seeking corporate records which were in the personal possession of Mr. Habib. On August 30, 2013, the Honorable Daniela Joseph III of the District Court of Joralemon issued an order granting in part and denying in part Petitioner s in limine motion to introduce Dr. White s testimony. The court held Dr. White was permitted to testify about Reed s disorder and its effects on the general populace, but was not permitted to testify about how Reed s disorder affects Mr. Roberts own himself. In that same order, the court denied Petitioner s motion to quash and ordered Mr. Habib to produce all responsive documents in his personal custody to the Government. Petitioner then promptly appealed to the Court of Appeals for the Fourteenth Circuit. Id. at 40. On September 3, 2013, the jury trial commenced. Id. at 38. And on September 27, 2013, the jury convicted Mr. Habib on all counts. Id. at 25. On October 3, 2013, Petitioner moved for a new trial under Federal Rule of Criminal Procedure 33, asserting extraneous prejudicial 4

13 information had been improperly brought to the jury s attention and violated Mr. Habib s Sixth Amendment right to an impartial jury. Id. On October 15, 2013, the District Court of Joralemon issued a decision from the bench and denied Mr. Habib s motion. Petitioner then promptly appealed to the Court of Appeals for the Fourteenth Circuit. Id.at The Fourteenth Circuit, in an opinion written by Judge Wyeth, consolidated both Petitioner s direct appeal and his appeal from the denial of his Federal Rule of Criminal Procedure 33 motion. The Fourteenth Circuit affirmed all decisions by the district court. Id. at 39-46, with Judge Velazquez dissenting on all issues. Id. at The government timely petitioned this Court for a writ of certiorari, which was granted on October 30, Id. at 52. STANDARD OF REVIEW While evidentiary rulings often require an exercise of discretion that calls for [an abuse of discretion] standard of review, they may also require legal and factual determinations that call for different standards. Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1317 (11th Cir. 2013). Specifically, [t]he factual findings underlying [evidentiary] rulings are reviewed for clear error. Id (alterations in original) (quoting United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012)). [Q]uestions of law underlying evidentiary rulings are reviewed de novo. Id. Accord, e.g., Muniz v. United Parcel Service, Inc., No , 2013 WL (9th Cir. Dec. 5, 2013); Rockies Express Pipeline, LLC v. 4,895 Acres of Land, More or Less, 734 F.3d 424 (6th Cir. 2013). See AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 1752 (2011) ( Questions of law are reviewed de novo ). 5

14 SUMMARY OF THE ARGUMENT First, the Court of Appeals incorrectly held that expert witness opinion testimony inadmissible as a matter of law pursuant to Federal Rule of Evidence 702. The Federal Rules of Evidence in general are designed to allow relevant and useful information to reach the trier of fact and assist in ascertaining the truth. Rule 702 allows for the admission of expert opinion testimony that is reliable and helpful to the jury to understand the evidence or determine a fact in issue. Dr. White s opinion testimony is helpful to the trier of fact because the Government s case depends almost entirely on the credibility of Mr. Roberts s inculpatory out of court statements. Because people generally do not make untruthful incriminating statements, and because they were unable to observe Mr. Roberts s demeanor and assess his credibility during the time that he made statements implicating Mr. Habib in the crimes charged, the jury should be made aware of all of the relevant information that may affect Mr. Robert s credibility. Second, the court erred in holding that the collective entity doctrine applies to former employees of a corporation. The doctrine relies on the agency relationship between a corporation and the custodian of corporate records. A representative of a corporation cannot assert their Fifth Amendment privilege against compelled self-incrimination with respect to the contents of subpoenaed documents that the individual holds in a representative capacity. A former employee cannot hold corporate records in a representative capacity. The individual s obligation to produce subpoenaed records in a representative capacity terminates when the agency relationship terminates. Further, an individual acting in a representative capacity may assert their Fifth Amendment privilege against compelled self incrimination when the act of production is itself testimonial and incriminating. Third, the Court of Appeals incorrectly held that Juror #3 s testimony evincing anti- Muslim statements made during jury deliberation were inadmissible under the Extraneous 6

15 Evidence exception to Rule 606(b). These statements were extraneous evidence and testimony considered by the jury. The Court of Appeals should have held an evidentiary hearing to investigate the religiously prejudicial statements. Circuits which broadly preclude juror testimony aim to preserve the sanctity of the jury deliberation process, but fail to recognize that precluding evidence of jury prejudice undermines the goals of our entire judicial system. Finally, the Court of Appeals erred in holding the jurors religious prejudice did not violate Petitioner Habib s Sixth amendment right to an impartial jury. The jury prejudged Petitioner Habib as guilty, and failed to consider only the evidence presented at trial when reaching a verdict. Furthermore, the Tanner protections do not adequately safeguard a defendant from Sixth Amendment violations. Tanner does not stand for the proposition that juror prejudice, hidden from the eyes of the court and from accountability, is intrinsic to our constitutional ideals of a fair and impartial jury. Rather, juror prejudice is inadequately protected by the Tanner safeguards alone and the courts must find a way to ensure juror prejudice has no place in our judicial system and that every litigant s Sixth Amendment rights are protected. 7

16 ARGUMENT I. FEDERAL RULE OF EVIDENCE 702 DOES NOT, AS A MATTER OF LAW, PRECLUDE EXPERT PSYCHIATRIC TESTIMONY ON THE CREDIBILITY OF A SPECIFIC WITNESS. A. Admission of expert opinion testimony on a witness credibility is consistent with the Federal Rules of Evidence. The Federal Rules of Evidence and relevant case law indicate that FRE 702 does not preclude the admission of expert opinion testimony on a witness s character for untruthfulness Federal Rule of Evidence 608 states, A witness s credibility may be attacked or supported by testimony about the witness s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character... Fed. R. Evid 608(a). Precedent shows that opinion testimony about whether a witness would believe a principle witness s testimony under oath is admissible. See United States v. Walker, 313 F.2d 236 (6th Cir. 1963); U.S. v. Dotson, 799 F.2d 189, 191 (5th Cir. 1986); U.S. v Bambulas, 471 F.2d 501, 504 (7th Cir. 1972). Since Rule 608(a) does not limit the admissibility of opinion testimony to that of a lay witness, it follows that experts may opine on a witness s character for truthfulness. This assertion is supported by Rule 401, which states, All relevant evidence is admissible unless it is barred by the Constitution, a federal statute, these rules, or other rules prescribed by the Supreme Court. Fed. R. Evid Since none of the aforementioned mechanisms bar expert opinion testimony on a witness s character for truthfulness, such testimony is admissible given it meets the requirements of Rule and any other applicable Rule. Further, Rule 405 says when testimony about character is admissible, it may be proved by testimony in the form of opinion. Fed. R. Evid The advisory committee s note on Rule 405, states: 1 The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. 8

17 If character is defined as the kind of person one is, then account must be taken of the varying ways of arriving at the estimate. These may range from the opinion of the employer who has found the man honest to the opinion of the psychiatrist based upon examination and testing. Fed. R. Evid. 405 advisory committee s note. The advisory committee indicates that the rules allow for an expert to opine on a witness character. Dr. White s testimony that, in his opinion, Mr. Roberts was not a credible witness meets the standards of the Federal Rules of Evidence relating to the admissibility of character evidence. B. Dr. White s expert testimony is admissible under Federal Rule of Evidence 702. The central objective of the Federal Rules of Evidence is to ensure that all available useful information reaches the trier of fact. Fed.R. Evid. 405 advisory committee s note. To this end, Federal Rule of Evidence 702 allows for the admission of expert opinion testimony if it will assist the trier of fact to understand the evidence or to determine a fact in issue. The rule states: A witness who is qualified as an expert may testify in the form of an opinion or otherwise if: (a) the expert s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. Fed. R. Evid. 702(a). The Rule is broadly phrased to allow for a wider range of expert opinion evidence than was admissible at common law. 2 The drafters of the rule opted instead for the more nuanced approach to determining if expert testimony is admissible by way of the helpfulness test. The advisory committee s note on the rule state: There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman 2 Margaret A. Berger, Note, United States v. Scop: The Common-Law Approach To An Expert s Opinion About A Witness s Credibility Still Does Not Work, 55 Brook. L. Rev. 559 (1989). ( Wigmore, McCormick, and other eminent commentators had complained for decades about common-law restrictions on opinion evidence that deprived triers of fact of valuable information needed for sounder adjudications ); At common law, expert opinion testimony was excluded because it invaded the province of the jury, was within the ken of the jury or did not pass the general acceptance test. The Federal Rules of Evidence do not use this language. 9

18 would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute. Fed. R. Evid. advisory committee notes. The test is consistent with general standard of relevance under Rules 401 and and forwards the goal of ascertaining the truth as stated in Rule 102. Dr. White s expert opinion testimony would have assisted the jury in determining if Mr. Roberts courtroom testimony and out of court statements to police were credible. In United States v. Shay, 57 F.3d 126 (1st Cir. 1995), the First Circuit held that the district court erred in excluding expert testimony that Mr. Shay, whose inculpatory out of court statements were used against him at trial, suffered from a personality disorder that caused him to tell false, selfaggrandizing stories. The court determined that the expert s testimony would have assisted the jury in determining Shay s credibility even though other witness testimony that Shay s selfincriminating statements were inconsistent with facts. Although the First Circuit noted that it was clear from the record that his testimony at trial was inconsistent, they held that the jury would have benefitted from the expert s testimony because, common understanding conforms to the notion that a person does not ordinarily make untruthful inculpatory statements. Id. (citing Fed. R. Evid. 804(b)(3) advisory committee s note. Like Shay, Mr. Roberts made inculpatory out of court statements. He claimed that Mr. Habib was present during the testing phase of the Genius Watch, that he was aware of the defective battery, and that he knowingly submitted false reports to the Consumer Electronic Product Safety Commission. R. at Mr. Roberts was granted transactional immunity for his cooperation with the Government but his statements were then used to indict and try Mr. Habib. 3 See United States of America v. Sessa, 806 F. Supp 1063, 1066 (E.D.N.Y. 1992); see also Fed. R. Evid. 403 (probative evidence may be excluded if value is outweighed by danger of unfair prejudice). 10

19 In light of the fact that "persons do not make statements which are damaging to themselves unless satisfied for good reasons that they are true." Fed.R. Evid. 804(b)(3) advisory committee s note, it is especially important that the jury hears how Reed s Disorder affects Mr. Roberts that it makes him very likely to be untruthful in high-pressure situations and when confronted by authority figures. R. at That evidence bears directly on the credibility of his testimony and his out of court statements and allows the jury to make an informed decision regarding Mr. Roberts s credibility. Further, the jury s ability to assess Mr. Roberts credibility was limited to the testimony that he provided at trial. The jury was not able to assess the statements that Mr. Roberts made prior to the trial- statements that informed the Government s case. The defendant in United States v. Gonzalez-Maldonado, 115 F.3d 9 (1st Cir. 2009), was declared incompetent to testify. Yet, at trial, the Government introduced taped statements that were used against the defendant. The court determined that because the Government s case rested almost entirely on the defendant s statements and because the jury was not able to evaluate the defendant s demeanor when he made those statements, the testimony that he had a mental illness that led to verbosity, grandeza, and exaggeration was highly relevant. Id. at 16. In the present case, Mr. Roberts was allowed to testify before the jury and they were able to assess his demeanor during the trial. The Government s case is, however, based largely on out of court statements that Mr. Roberts made to investigators. The jury did not have an opportunity to assess Mr. Roberts s demeanor when he made those statements so, like in Gonzalez-Maldonado, the expert s opinion testimony that Mr. Roberts has a psychological disorder that makes him likely to be dishonest is highly relevant. Id. 11

20 The court below relied on the decision in United States v. Hill, 749 F.3d 1250 (10th Cir. 2014) in which the court held that expert testimony was inadmissible as a matter of law under Rule 702. In coming to that conclusion the court examined a number of cases in which expert testimony on a witness s character was ruled inadmissible. However, upon closer examination of the facts in those cases, the courts ruled the testimony inadmissible, not because the experts were testifying about a witness s character for truthfulness but because that testimony was beyond the scope of the witness expertise 4 or because it merely stated a conclusion that the jury could have come to themselves. United States v. Charley, 189 F.3d 1251 (10th Cir.1999); United States v. Velarde, 214 F.3d 1204 (10th Cir. 2000). These decisions are not inconsistent with FRE 702. Hill erroneously interpreted these decisions to mean that all expert testimony on a witness credibility is inadmissible according to Rule 702, regardless of the expert s qualifications or its usefulness to the jury in ascertaining the truth. That reading of Rule 702 is not supported by the plain language of the rule and is inconsistent the related Federal Rules of Evidence. The lower court also supported its conclusion with the case of United States v. Beasley stating, Expert medical testimony concerning the truthfulness or credibility of a witness is generally inadmissible because it invades the province of the jury. United States v. Beasley, 72 F.3d 1518 (11 th Cir. 1996). The term province of the jury, while not mentioned in the Federal Rules of Evidence, refers to the common law restriction on expert testimony when it expressed an opinion on an issue that they jury was familiar with, or expressed an opinion that the jury could easily have inferred on their own. Id. at The advisory committee s note on Rule 702 indicates that the drafters were concerned with this issue: 4 See United States v. Azure, 801 F.2d 336 (8th Cir. 1986) (pediatrician testified that a witness was believable and the he could see no reason why she would not be telling the truth); See also United States v. Samara, 643 F.2d 701 (10th Cir. 1981) (tax expert deleted certain items from the government s calculation of a defendant s gross receipts because the witnesses were not credible based on felony convictions and lack of documentation). 12

21 It seems wise to recognize that opinions are not indispensable and to encourage the use of expert testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference. The use of opinions is not abolished by the rule, however. It will continue to be permissible for the experts to take the further step of suggesting the inference which should be drawn from applying the specialized knowledge to the facts. Fed. R. Evid. 702 advisory committee s note. The helpfulness test determines when it is appropriate for the expert to take the further step of suggesting the inference which should be drawn. Id. As such nothing in Rule 702 indicates that the rule bars the admission of expert testimony on a particular subject matter. Rather, it suggests that determinations of admissibility should be made by performing an analysis of facts and weighing their helpfulness against the dangers specified in Rule 403. Concerns that an expert s testimony would carry more weight than that of a lay witness thereby over-impressing the jury are unfounded. In fact, empirical data shows that [p]articularly with regards to expert testimony on state of mind, juries remain fairly skeptical about the claims experts make 5 and in the categories of cases that invoke an over-impressing-the-jury rationale, the phrase frequently seems to operate as a euphemism for the court's lack of confidence in the reliability of the evidence. 6 A plain reading of Federal Rules of Evidence Rules 102, , 405, 608(a), and Rule 702(a) indicate that expert opinion evidence on a witness s character for untruthfulness is admissible when it would help the jury understand the evidence or determine a fact in issue. The lower court erred when it held that Rule 702 excluded, as a matter of law, expert psychiatric opinion testimony on a witness s credibility. Further, a Rule 702 helpfulness analysis of the 5 Berger, supra at supra. 13

22 testimony indicates that the lower court erred in excluding Dr. White s expert opinion testimony on Mr. Roberts credibility. II. A FORMER EMPLOYEE OF A CORPORATION MAY ASSERT THE FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION TO THE ACT OF PRODUCING CORPORATE DOCUMENTS IN HIS POSSESSION. A. This court should rule that a collective entity doctrine does not apply to a former employee of a corporation who is no longer acting on behalf of the corporation. A former employee is not an agent of the corporation and therefore does not hold corporate documents in a representational capacity for the purposes of producing the record on demand of subpoena. The lower court erred in denying the Appellant s motion to quash the Government s subpoena duces tecum. The collective entity doctrine holds that a custodian of corporate records may not assert a Fifth Amendment privilege against self-incrimination and cannot resist compelled production of corporate records. See Hale v. Henkel 201 U.S. 43 (1906). The rationale for the doctrine is the Fifth Amendment of the United States Constitution, which states in relevant part, No person.shall be compelled in any criminal case to be a witness against himself applies only to natural persons. A corporation is a creature of the state and as such the state maintains visitatorial powers over the corporate records as a means of regulating the corporation s activities. Wilson v. United States, 221 U.S. 361, 383 (1911). Since a corporation necessarily acts through an agent, an individual acting in his capacity as agent of a corporation is essentially acting as the corporation, not as a natural person, so that his act of producing subpoenaed records is an act of the corporation. Id. at 376. Because the individual is acting as an agent of the corporation, he may not assert a Fifth Amendment privilege with respect to corporate documents that he holds simply because those contents of those documents 14

23 are incriminating. Id. at 377. According to the collective entity line of cases, it is relationship of the individual to the corporation that dictates whether the corporate entity doctrine applies. In the present case, Mr. Habib has no agency relationship with the corporation. [H]e has no severance agreement with the corporation that would obligate him to cooperate with investigations. Zodiac did not think it necessary to secure a non-competition agreement or any other post-employment covenants in which to protect its interests. He does not receive any payment in any form. He does not have any formal relationship whatsoever with Zodiac. His only connection to the corporation is that he holds in his possession corporate records. R The lower court justified its decision that former employees of corporations hold corporate records in a representative capacity by relying on the Supreme Court decision Bellis v. United States, 417 U.S. 85 (1974). Bellis involved a subpoena served upon a member of dissolved partnership. The partner asserted his Fifth Amendment privilege and refused to produce the documents claiming that the content was incriminating. The Court held that the collective entity doctrine applied and that the partner could not exercise his Fifth Amendment privilege because dissolution of the partnership does not terminate the entity; rather it continues until the winding up of the partnership affairs is completed. See Id. at The court reiterated the earlier court decisions that a corporation and its agents or custodians of corporate records could not assert a Fifth Amendment privilege against compelled self-incrimination based on the fact that the contents of a document were incriminating. This decision is consistent with the Second Circuit Court of Appeals decision in In re Grand Jury Subpoena Duces Tecum Dated June 13 th 1983 and June 22 nd 1983 (Saxon Industries), 722 F.2d 981 (2d Cir. 1983). There, the court held that [o]nce the officer leaves the company s employ he no longer acts as a corporate representative but functions in an 15

24 individual capacity in his possession of corporate records. Id. at It is clear from these decisions that the application of the collective entity doctrine depends on the existence of an agency relationship between the collective entity and the individual in possession of the corporate documents. As a former employee, Habib is not acting as a representative of Zodiac Electronics and does not hold any corporate records in a representational capacity and he is not bound by the corporate entity doctrine. The court also justifies its decision to extend the doctrine to former employees based on policy stating that a former employee necessarily holds corporate documents in a representative capacity because [w]ere it merely an employment relationship, a corporate or other collective entity could escape compliance with proper subpoenas by merely passing potentially incriminating documents to a former employee. R. at 18. This claim, however, is unfounded. If a corporation avoids turning over corporate records required by a subpoena through transferring of incriminating records to former employees, the corporation and its representatives would be liable for obstruction of justice and other appropriate charges. B. Mr. Habib holds the subpoenaed records in a personal capacity and the act of production of the documents is testimonial and self-incriminating. In Braswell v. United States, 487 U.S. 99 (1988), the Court held, A custodian of corporate records may not resist a subpoena for such records on the ground that the act of production will incriminate him in violation of the Fifth Amendment. In justifying its decision, the court relied on the corporate entity doctrine that was established through the abovementioned line of cases in which corporations and agents of various collective entities claimed a Fifth Amendment privilege based on the claim that the contents of the corporate records subpoenaed 16

25 were incriminating. 7 In those cases, the court reasoned that because the government did not compel the creation of the documents being subpoenaed and because the Fifth Amendment protection against self-incrimination extends only to those acts that are compelled, the individual had no relevant Fifth Amendment privilege. However, in Fisher v. United States, 425 U.S. 391 (1975), the Court drew a distinction between the contents of the subpoenaed documents and the act of producing those documents stating, The act of producing evidence in response to a subpoena has communicative aspects of its own, wholly aside from the contents of the papers produced. Id. at 410. The court explained that in order for an individual to assert a Fifth Amendment privilege, the act of production must be compelled, testimonial and incriminating in that compliance was the equivalent of forced testimony as to the existence, unlawful possession, and or/authenticity of the documents, as well as the belief that the produced documents matched those requested by the subpoena. In re Grand Jury Subpoenas at 176; See also Fisher at 410. By definition, a subpoena is an instrument of compulsion. The record states that Mr. Habib answered to the subpoena and relinquished the documents as required before trial over his vehement objection. R. at 41. Further, Mr. Habib s act of producing the documents was testimonial and incriminating. It is clear from the record that prior to Mr. Roberts claim that Mr. Habib had corporate records related to the creation of the Genius Watch in his possession, the Government was not aware of their existence, location, or content of the records. The Government s lack of knowledge about the location and contents of the documents is evidenced by the execution of a search warrant executed on Mr. Habib s residence that produced no 7 See Hale v. Henkel, 201 U.S. 43 (1906) (establishes corporate entity doctrine with respect to subpoenas served to a corporation); United States v. White, 322 U.S. 694 (1944) (collective entity doctrine applies to labor unions and organizations) Bellis v. United States; 417 U.S. 85 (1974) (corporate entity doctrine applies to partnerships); See also Wilson v. United States, 221 U.S. 361 (1911). 17

26 records. Further, the Government explained that it was not previously aware of the existence of the documents when the District Court judge questioned them about the late date on which the subpoena was issued. R. at The subpoena itself was worded broadly and requested: Any and all records, documents, instructions, memoranda, notes and papers (whether in computerized or other form) relating to the Genius Watch in your care, custody, possession or control, that were created during the course of, or in connection with, your employment at Zodiac Electronics. R. at 23. In United States v. Doe, 465 U.S. 605 (2010), the Court found that subpoenas issued to the individual were so broadly worded that the individual act of producing the records would authenticate the documents and provide evidence that the Government did not know existed. If the government was aware of the existence of the documents prior to the issuance of the subpoena, they would either have to specify the contents and location of the requested records on the subpoena or, at trial, be required to show that the documents existence, contents, and location were a foregone conclusion. Id. at 614. In attempting to extend the holding in Braswell to the present case, the lower court illuminates the flaws in that decision. By holding that an individual who represents a corporation cannot assert a Fifth Amendment privilege to the act of production, the court comes to a conclusion that is factually unsound. Braswell at 130 (Kennedy, J. dissenting) and undermines the Fifth Amendment. The lower courts extension of Braswell s holding to former employees of a collective entity further dilutes the protections provided by the Fifth Amendment. The record and relevant case law do not support the lower courts holding with respect to the motion to quash the subpoena duces tecum. This court should overturn both Braswell and the lower courts decision in this case. If the Court does not see fit to overturn Braswell, it should 18

27 limit its holding to currently employed individuals. III. FEDERAL RULE OF EVIDENCE 606(b)(2)(A) PERMITS JURORS TESTIMONY EVINCING RELIGIOUSLY BIASED STATEMENTS MADE DURING JURY DELIBERATION. A. Congress enacted Rule 606(b)(2)(A) to admit precisely the kind of extraneous information introduced by Jurors #2, #8, and #9 s religiously biased statements. This Court should overturn the lower court s decision to preclude juror testimony evincing religiously biased statements made during jury deliberation because such statements constitute extraneous information under Federal Rule of Evidence 606(b)(2)(A). Congress passed Rule 606(b) to preserve the sanctity of the jury deliberation process and to ensure no prejudicial statements would taint the fairness of judicial proceedings. See Fed. R. Evid. 606(b) advisory committee s note. Courts typically balance these two interests in determining whether juror testimony should be allowed where there is a claim that the jury has been influenced by extraneous prejudicial information. See U.S. v. Benally, 546 F.3d 1230, (10th Cir. 2008). Here, Jurors #2, #8, and #9 aggressively harassed Juror #5 with anti-muslim assertions and threats until Juror #5 changed his vote from non-guilty to guilty. See R. at Not only were these anti-muslim remarks remarkably inappropriate and prejudicial, but this discussion was extraneous to the testimony and evidence presented at Petitioner Habib s trial. Juror bias in the form of prejudicial statements like those made by Jurors #2, #8, and #9 undermine the aims of the American judicial system and its dedication to guaranteeing fairness to all people and citizens of this country. Precluding Juror #3 s testimony undermines the purpose of Federal Rule of Evidence 606(b) to preserve juror impartiality. While Rule 606(b)(1) generally precludes any juror testimony regarding the content of the jury s discussion or any particular juror s mental process, it is not an absolute prohibition on all juror testimony. Rather, Congress anticipated the reality 19

28 that jurors may introduce extraneous information to the deliberation process. For this reason, Rule 606(b)(2)(A), known as the Extraneous Evidence exception, provides that: A juror may testify about whether extraneous prejudicial information was improperly brought to the jury s attention. Fed. R. Evid. 606(b)(2)(A). Extraneous information taints jury impartiality because it is not subject to verification, questioning, and cross-examination under the auspices of the courtroom. When a jury consults extraneous information such as news reports or Internet searches, its verdict becomes impeachable. See United States v. Davis, 60 F.3d 1479 (10th Cir. 1995); U.S. v. Farhane, 634 F.3d 127 (2d Cir. 2011). Similarly, Jurors #2, #8, and #9 introduced extraneous information to the other jurors when they brought up the topic of Petitioner Habib s supposed religious affiliations. Mr. Habib s religious affiliations and beliefs were never raised at trial because they are irrelevant to the charges and allegations brought against him. Furthermore, Rule 606(b)(2)(A) permits juror testimony to ensure jury impartiality when reaching a verdict. The purpose of Rule 606(b)(2)(A) is to guarantee fairness to litigants when jurors step outside their roles as indifferent, impartial finders of fact. Here, three jurors displayed a blatant disregard for the trial testimony in favor of their own personal biases. 8 Moreover, these biases were based on mere speculation and imaginings. This Court should permit Juror #3 to testify to and show how these biases tainted impartiality if Rule 606(b)(2)(A) is to have any meaning or purpose at all. B. Rule 606(b) entitles Petitioner to at least an evidentiary hearing investigating any religiously biased statements made by jurors during deliberation. In support of holding evidentiary hearings concerning prejudicial juror statements, several circuits have held that trial courts have a fundamental duty to investigate allegations of 8 R. at 27 (When Juror #5 suggested a further discussion of trial testimony, Juror #2 heatedly exclaimed, Why are we even listening to you? We know towlie here is guilty. His people do this thing all over the world, and I for one am not letting him get away with it here. ). 20

29 jury prejudice. 9 This rule serves to protect litigants from prejudicial statements that may be fatal to juror impartiality. For example, the Ninth Circuit has held it was necessary to conduct a full investigation into allegations of racial bias by jurors to fully protect a black defendant s Sixth Amendment rights. In Henley, a juror allegedly made several racist remarks regarding a black defendant, declaring, All niggers should hang. U.S. v. Henley, 238 F.3d 1111, 1113 (9th Cir. 2001). The circuit court had insufficient information to determine whether the juror had actually made these statements, but held that the gravity of even potential prejudicial statements affecting the verdict compelled further investigation. In the instant case, Juror #2 said of Petitioner Habib: We know towlie here is guilty. His people do this thing all over the world, and I for one am not letting him get away with it here. R. at 26. Like Henley, this case should be remanded to the district court for a full evidentiary hearing into whether the potential anti-muslim statements affected the verdict. Where religious prejudice has allegedly pervaded Petitioner Habib s trial, Petitioner is entitled to a full investigation by the District Court of Joralemon to discover the truth of these statements because the bias or prejudice of even a single juror violates defendant s Sixth Amendment rights. Henley at 1120 (internal quotation omitted). The jurors anti-muslim statements at the very least merited an evidentiary hearing into their prejudicial effects on the verdict. In determining whether a hearing must be held, a court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source. Hard v. Burlington Northern R.R., 812 F.2d 482 (9th Cir. 1987). Here, the allegation that a pervasive anti-muslim perspective had a significant effect on the jury s verdict was brought to the court s attention by Juror #3. R. at 26. Juror #3 is a credible 9 See Nicholas S. Bauman, Note, Extraneous Prejudicial Information : Remedying Prejudicial Juror Statements Made During Deliberations, 55 Ariz. L. Rev. 775, 789 (2013) (presenting evidence that the 1st, 9th, and D.C. Circuits have declared it is the trial court s inherent duty to investigate further when an allegation of jury prejudice arises. 21