Let's Just Cut to the Chase, Please

Let's Just Cut to the Chase, Please 

GUEST POST BY MICHAEL CARUSO

Yesterday, the 11th Circuit decided U.S. v. Sotis (Mizelle (M.D. Fla.) with William Pryor and Marcus joining) and affirmed the defendant’s convictions for illegally exporting scuba diving equipment to Libya.

At trial, government agent Wagner testified to his interactions with Sotis. On cross-examination, the co-defendant's counsel asked Wagner whether civil penalties were an option he could have pursued instead of criminal penalties. On re-direct, the government asked whether Wagner had seen a case with “this level of willfulness.” Sotis objected, but only to Wagner’s comparison to previous cases.

On appeal, the Court concluded that Wagner’s opinion was improper but that allowing it was not plain error. Rule 701 restricts a lay witness to testimony rationally based on the witness’s perception, which is helpful to determining a fact in issue and that is not based on specialized knowledge.  Wagner’s testimony that he had never seen so much willfulness was improper because it purported to tell the jury about Sotis’s state of mind—something to which neither he nor any other witness could testify based on his rationally based perception. Permitting his testimony was error. But "harmless." In other words, mess around prosecutors, and you WON'T find out.

The evidence ruling seems clear. Interestingly, DOJ lawyers argued on appeal that Wagner's "opinion was a rational inference based on his personal participation and observations as a special agent for the Commerce Department and therefore did not exceed the permissible bounds of witness testimony." I wonder what the lesson is here. Don't ask this type of question, or ask, and even if found to be an error, the conviction will be saved by the harmless error rule.

What also should be clear but often is not is what may happen after a party "opens the door." The prosecutors argued, and the trial judge found that Sotis had opened the door. I've always believed, however, that a lawyer cannot open the door to the introduction of inadmissible evidence. The Court didn't address this point. Perhaps the Court felt that something that should be understood didn't have to be said.