Rationally Based, But Unhelpful Lay Opinion Under FRE 701

In trial for conspiracy to defraud the United States and related immigration crimes, testimony of cooperating witness that the defendant “knew … that everything that he was doing was illegal” should not have been admitted under FRE 701, even though it was rationally based on the witness’s personal involvement in defendant’s scheme, because the jury was just as capable as the witness of inferring the defendant's knowledge of the illegality, in United States v. Wantuch, , 525 F.3d 505 (7th Cir. May 1, 2008) (No. 06-3681)

FRE 701 admits opinion testimony by lay witnesses if there is a rational basis for the testimony and if the opinion sought would be helpful to the jury. A Seventh Circuit case decided several years ago illustrates the interconnection between the rational basis and the helpfulness requirements, and the need for both to facilitate the admission of lay testimony.

In the case, the FBI opened an undercover travel agency (GSGT travel) to investigate the provision of fraudulent immigration documents. Defendant Wantuch came to an investigator’s attention when he approached a cooperating defendant with “thirty boxes of contraband cigarettes for sale.” In making the trade, the defendant told the cooperating witness that “he had ‘other merchandise’” and could provide most anything the GSGT travel agency needed. In time, the defendant began to bring the travel agency business with clients who needed green cards. Wantuch, 525 F.3d at 507.

At trial, a cooperating witness testified about the green cards and the prosecution presented audio and video recordings of conversations between the cooperating witness and the defendant. The prosecutor asked the witness: “at all times that you were dealing with Wantuch, was he aware that paying [Robinson] those $5,000 in exchange for the green cards was illegal?” The trial court overruled the defense objection to this question and the witness answered:

“I think we must be kidding here. This gentleman [Wamtuch] knew all the time that everything that he was doing was illegal. One does not buy a green card on the street for money. Come on, let’s stop pretending here. We are not little people, are we?”
Wantuch, 525 F.3d at 512.

The prosecution asked the cooperating witness at other times during his testimony about whether the defendant “understood that this was a legitimate transaction” in green cards and the witness affirmed that the defendant did not believe so. The defendant failed to object to this testimony and was found guilty in the case. He appealed, arguing that the witness gave impermissible lay testimony about the defendant’s state of mind which was not “rationally based on their perception of Wantuch, and their testimony was neither helpful to the jury nor necessary for the jury’s review of the evidence, under Federal Rule of Evidence 701.” Wantuch, 525 F.3d at 513.

The circuit concluded that the testimony was based on the witness’s rational perception of the defendant but that it was an error to admit the testimony because it was not helpful to the jury, under FRE 701. However, the error was harmless.

Rational Perception Basis

The circuit noted that the record “sufficiently demonstrated” that the opinion of the cooperating witness “was rationally based on his perception.” The evidence showed that the witness was intensively involved in the scheme and that he served as the defendant’s contact in getting green cards in exchange for bribes. In addition, the witness testified about his communications with the defendant about the green card scheme and the witness had been present at meetings in which the defendant, his clients, and an undercover INS agent Robinson (“posing as a corrupt INS official who sold authentic green cards to illegal immigrants in exchange for bribes”) carried out the scheme. During these meetings, the witness observed the defendant coach clients to make false statements on INS forms, as well as that he accepted money from clients which was paid to Robinson in exchange for passport stamps. Wantuch, 525 F.3d at 514.

Helpfulness Basis

However, rational preception of the witness was not enough. The testimony should also be helpful to the trier of fact as required by FRE 701 for the admission of lay opinion testimony. The circuit noted that the jury was as capable as was the witness to make inferences that the defendant knew he was violating the law in the green card scheme. In essence, the question asked for a legal conclusion and was therefore “unhelpful to the jury under Rule 701.” Wantuch, 525 F.3d at__ (citing United States v. Espino, 32 F.3d 253, 257 (7th Cir. 1994) (finding that the question posed to a defendant, “you’re admitting to a conspiracy, aren’t you,” was unhelpful testimony under FRE 701); United States v. Baskes, 649 F.2d 471, 478 (7th Cir. 1980) (when a witness is asked whether the conduct in issue was “unlawful” or “willful” or whether the defendants “conspired,” terms that demand an understanding of the nature and scope of the criminal law, the trial court may properly conclude that any response would not be helpful to the trier of fact under FRE 701(b)), cert. denied, 450 U.S. 1000 (1981))

Harmless Error

The circuit concluded that the testimony “was unnecessary” based on other evidence and the jury could infer the defendant “knew he was committing a crime, without [cooperating witness] Sienkiewicz opining as to whether Wantuch was aware that his conduct was illegal.” Wantuch, 525 F.3d at 514. Consequently, the error in admitting the legal opinion testimony of the witness was harmless:

“We see no reasonable possibility that Sienkiewicz’s statement had a substantial and injurious effect or influence on the jury’s verdict, in light of the overwhelming evidence presented against Wantuch, including video and audio tapes of seven different encounters in which Wantuch could be seen or heard participating in illegal activity, interlocking testimony of nine government witnesses, and Wantuch’s own admissions. When viewed in the context of the entire trial and the totality of the evidence, the jury heard substantial evidence to support the government’s theory at trial, and although the district court erred in admitting Sienkiewicz’s statement, the error was harmless.”
Wantuch, 525 F.3d at 515 .


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Federal Rules of Evidence