Drawing The Line On FRE 704(b) Expert Opinion Testimony

In a terrorism-related trial, admitting a qualified Islamic studies expert's testimony translating and interpreting defendant's "Arabic note" as one carried by a “person ... completely ready” to commit “an act of warfare against a perceived enemy”; consistent with FRE 704(b) the opinion testimony was not plain error because the expert did not "draw the ultimate inference or conclusion for the jury" as to the defendant's mental state, nor did "the ultimate inference or conclusion ... necessarily follow" from the expert's testimony, in United States v. Hayat, 710 F.3d 875 (9th Cir. March 13, 2013) (No. 07-10457)

FRE 704(b) reserves for the "trier of fact alone" whether a defendant had "a mental state or condition that constitutes an element of the crime." A divided panel of the Ninth Circuit struggled over how broadly to apply FRE 704(b), with the majority conceding that perhaps the testimony swept a bit more broadly than necessary but it was consistent with circuit precedent.

In the case, defendant Hayat was tried for providing material support to terrorists (by obtaining terrorist training in Pakistan) and of making false statements to authorities regarding this and his return to California allegedly "to await orders to carry out a terrorist attack." Among the various issues the defendant's appeal raised was the admission of the prosecution's expert on Islamic studies. This expert, whose qualifications remained unchallenged before his testimony, opined as to "the meaning and implications of an Arabic note" found in defendant Hayat's wallet. Hayat, 710 F.3d at 900.

The essence of the expert's opinion about a note written in Arabic which was tucked into the defendant's wallet at the time he was apprehended was characterized by the circuit majority as follows:

that the “kind of person” who would carry the note found in Hayat's wallet was “[a] person who is engaged in jihad”; that such a note would be used “[b]y people who perceive themselves in a state of war”; and that a person who carried such a note “was in the act of being a warrior.”
Hayat, 710 F.3d at 901. The defendant did not object to admission of this expert's testimony at the trial. As a result, after his jury conviction, the review of the admission of that expert's opinion testimony was evaluated under the stricter standard of review, plain error, rather than abuse of discretion.

Admitting this note may have been an error, the circuit majority indicated, but it was not a "plain error" which would be necessary to offer the defendant any relief. The circuit emphasized that the contention that the testimony should not have been admitted had a certain weight. Indeed, the majority admitted "[w]e might well agree with the dissent that these and similar statements made by [expert witness] Mohammed could be held to violate Rule 704(b) were we considering the scope of that rule ab initio. But we are not." Hayat, 710 F.3d at 901 (citation to record omitted). But the majority felt constrained by circuit precedent:

Our caselaw has interpreted that rule much more narrowly than its text might indicate. Under our precedent, Rule 704(b) “does not bar testimony supporting an inference or conclusion that a defendant does or does not have the requisite mental state, ‘so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony.’ “
Hayat, 710 F.3d at 901 (quoting United States v. Younger, 398 F.3d 1179, 1189-90 (9th Cir. 2005) (on whether defendant possessed cocaine base with the intent to distribute, admitting prosecution expert testimony that “[t]he person, individual, whoever possessed this, possessed it for the purposes of selling,” because “the expert never directly commented on defendant's mental state, and the jury could have accepted his testimony and still infer that defendant was atypical.”) In noting this, the circuit quoted text from an earlier 1997 case, United States v. Morales, 108 F.3d 1031, 1038 (9th Cir. 1997)).

The circuit noted three other cases that supported the conclusion that the admission of the Islamic expert's testimony regarding the significance of the "Arabic note" was not plain error:

  • United States v. Gonzales, 307 F.3d 906, 911 (9th Cir. 2002). Here the circuit noted "we held that expert testimony that a 'person [who] was carrying those items [was carrying them] for the purpose of distributing the drugs' did not violate Rule 704(b) because '[e]ven if the jury believed the expert's testimony, the jury could have concluded that [the defendant] was not a typical or representative person, who possessed the drugs and drug paraphernalia involved.' "
  • United States v. Anchrum, 590 F.3d 795, 804–05 (9th Cir. 2009). Here, the circuit noted the court affirmed admission of expert testimony "in a case where the defendant was charged with the possession of firearms in furtherance of drug trafficking, the district court's admission of expert testimony that 'if you're driving around with a loaded weapon and you have narcotics in your car, ... [y]ou're either going to use [the weapon]' to get away from law enforcement, as protection against getting 'rip[ped] ... off' in a drug deal gone bad, or to protect money earned through drug deals).
  • United States v. Gomez–Norena, 908 F.2d 497, 501–02 (9th Cir. 1990), which the circuit described as "holding that it was not plain error for the district court to admit an expert's testimony that it was his 'opinion' that 'approximately $200,000 worth of cocaine' was 'possess[ed] with intent to distribute' and not for 'personal use.'"
Hayat, 710 F.3d at 902.

These prior cases constrained the majority in finding that admission of the expert's opinion in the defendant's case was not pain error:

Here, [expert] Mohammed testified about the kind of person who would carry a note such as the one found in Hayat's wallet, but he never commented directly on Hayat's mental state. Mohammed's testimony about the typical “person” carrying the supplication is indistinguishable in its degree of precision from the expert testimony found admissible in Younger and Gonzales. Therefore, if the district court erred at all in admitting the testimony, such error certainly was not plain, given our precedents limiting Rule 704(b) essentially to a semantic preclusion. Thus, while we might like to agree with [dissenting] Judge Tashima that the expert evidence in this case crossed the Rule 704(b) line, we are prevented from doing so by this court's caselaw.
Hayat, 710 F.3d at 902.

In his dissent, Judge Tashima raised a number of objections to the panel majority. Perhaps most compelling was a hypothetical he posed:

An analogy may be helpful. Suppose a Christian is arrested on suspicion of providing material support for terrorism. In the suspect's wallet is found the following excerpt: “Onward, Christian soldiers, marching as to war/ With the cross of Jesus going on before/ At the sign of triumph Satan's host doth flee/ On then, Christian soldiers, on to victory!” An academic, an expert on the Bible and its translation, is called to testify at the suspect's trial. Asked what kind of person would carry this hymn, the academic testifies, “A person who believes him or herself as being engaged in a war for [Jesus] against an enemy.”

Such testimony would be laughable. We easily comprehend, without the aid of expert testimony, that “ ‘Onward, Christian Soldiers' does not mean that the zealous churchman is literally militant.” Someone carrying it might be a non-violent volunteer for the Salvation Army, or a Methodist, or a supporter of the phrase “under God” in the Pledge of Allegiance. Alternatively, the person could be a member of the Ku Klux Klan. It is inconceivable that a court would allow an “expert” to opine definitively and categorically on the “kind of person” who would carry “Onward, Christian Soldiers” in his wallet because the conceivable variations in understanding and motivation are too great. Yet this is exactly what the government expert in this case was permitted to do with respect to the prayer found in Hayat's wallet.
Hayat, 710 F.3d at 914 (footnote omitted; citing Berg v. State, 29 Okla.Crim. 112, 233 P. 497, 503 (Okla. Crim. App. 1925); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1056–57 (Reinhardt, J., dissenting) (describing the celebratory playing of “Onward, Christian Soldiers” after Congress amended the Pledge of Allegiance to add the phrase “under God”); Virginia v. Black, 538 U.S. 343, 356 (2004) (describing the singing of “Onward, Christian Soldiers” at cross burnings)).

Circuit Judge Tashima dissented, emphasizing that the expert testimony on the significance and meaning of the "Arabic note" in defendant's possession was not helpful to the jury. The jury "had enough information to conclude for itself whether the presence of the supplication in Hayat's wallet supported an inference that he had the requisite intent to provide material support for terrorism. That is all the jury should have heard. The additional testimony about the “kind of person” who would carry such a supplication and such a person's intent was not only inflammatory, it invaded the province of the jury. The jury's authority, plainly, was ceded to the expert." Hayat, 710 F.3d at 915.


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