United States v. Sutton

642 F.Supp.3d 57

UNITED STATES of America v. Terence SUTTON and Andrew Zabavsky, Defendants.

Criminal No. 21-0598 (PLF)

United States District Court, District of Columbia

Signed November 16, 2022

Risa Berkower, Ahmed Muktadir Baset, Assistant U.S. Attorneys, United States Attorney's Office, Washington, DC, Gauri Gopal, Madhu Chugh, Assistant U.S. Attorneys, USAO, Special Proceedings, Washington, DC, for United States of America.

J. Michael Hannon, Rachel Amster, Harrison Edward Richards, Hannon Law Group, LLP, Washington, DC, for Defendant Terence Sutton.

Christopher A. Zampogna, Abraham Bluestone, Zampogna, P.C., Washington, DC, for Defendant Andrew Zabavsky.

OPINION

PAUL L. FRIEDMAN, United States District Judge

Pending before the Court are four pretrial Daubert motions seeking the exclusion of proposed expert testimony at trial. The government has proffered four expert witnesses and defendants have proffered five. Defendant Terence Sutton challenges three of the four government experts — Robert Drago, Carolyn Totaro, and Mark Hammond.¹ Defendant Andrew Zabavsky separately challenges Robert Drago. The government has filed motions seeking the exclusion of all four experts proposed by Mr. Sutton — John J. Brennan, Bruce-Alan Barnard, Michael A. Wear, and Thomas Langley — along with Mr. Zabavsky's expert, James K. Dahlquist. The parties appeared for oral argument on three of the four pending motions on September 1, 2022. See Transcript of Motions Hearing, September 1, 2022 [Dkt. No. 265].²

The Court has carefully considered the parties' written submissions, the oral arguments presented by counsel, and the applicable authorities. It concludes that Robert Drago's testimony (as proffered and narrowed in scope on November 1, 2022) will be admitted in full; Carolyn Totaro's testimony will be admitted in part and excluded in part; and Mark Hammond's testimony will be admitted in full. With regard to defendants' experts, John J. Brennan's testimony will be admitted in part and excluded in part; Bruce-Alan Barnard's testimony is excluded in full; Michael A. Wear's testimony will be admitted in part and excluded in part; Thomas Langley's testimony will be admitted in part and excluded in part; and James K. Dahlquist's testimony is excluded in full.

I. LEGAL FRAMEWORK

Rule 702 of the Federal Rules of Evidence provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) [t]he 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; (b) [t]he testimony is based on sufficient facts or data; (c) [t]he testimony is the product of reliable principles and methods; and (d) [t]he expert has reliably applied the principles and methods to the facts of the case.

FED. R. EVID. 702. "In general, Rule 702 has been interpreted to favor admissibility." Khairkhwa v. Obama, 793 F. Supp. 2d 1, 10 (D.D.C. 2011); see also FED. R. EVID. 702 advisory committee's note (2000) ("A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule."). Trial judges are generally afforded broad discretion in rendering evidentiary rulings "[i]n deference to their familiarity with the details of the case." Youssef v. Lynch, 144 F. Supp. 3d 70, 80 (D.D.C. 2015); accord Graves v. District of Columbia, 850 F. Supp. 2d 6, 11 (D.D.C. 2011).

Rule 702 of the Federal Rules of Evidence effectively codifies the Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In Daubert, the Court charged trial judges with the responsibility of acting as "gatekeepers" to shield unreliable or irrelevant expert testimony and evidence from the jury. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 597, 113 S.Ct. 2786. In Kumho, the Court made clear that the gatekeeper function applies to all expert testimony, not just scientifically based testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. at 148-49, 119 S.Ct. 1167. Consistent with the Court's role as the "gatekeeper for expert testimony," Little v. Wash. Metro. Area Transit Auth., 249 F. Supp. 3d 394, 408 (D.D.C. 2017), the Court has "broad discretion in determining whether to admit or exclude expert testimony." Blake v. Securitas Sec. Servs., Inc., 292 F.R.D. 15, 17 (D.D.C. 2013) (quoting U.S. ex rel. Miller v. Bill Harbert Int'l Constr., Inc., 608 F.3d 871, 895 (D.C. Cir. 2010)).

As the D.C. Circuit has explained, the twin requirements for the admissibility of expert testimony are evidentiary reliability and relevance. See Ambrosini v. Labarraque, 101 F.3d 129, 133 (D.C. Cir. 1996); see also United States v. Naegele, 471 F. Supp. 2d 152, 156-57 (D.D.C. 2007); McReynolds v. Sodexho, 349 F. Supp. 2d 30, 34-35 (D.D.C. 2004). With respect to reliability, the court's focus must be on the methodology or reasoning employed by application of the factors in Rule 702 and the non-exhaustive lists of factors set forth in Daubert and Kumho. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 595, 113 S.Ct. 2786 ("The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate."); Ambrosini v. Labarraque, 101 F.3d at 140 ("[T]he admissibility inquiry focuses not on conclusions, but on approaches."). With respect to relevance, the court must determine whether the proffered testimony is sufficiently tied to the facts of the case and whether it will aid the jury in resolving a factual dispute. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 592-93, 113 S.Ct. 2786.

For an expert to be "qualified" under Rule 702, "it is not necessary that the witness be recognized as a leading authority in the field in question or even a member of a recognized professional community." 29 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 6264.1 (2d ed. 2022). "[A]n expert may be qualified on the basis of his or her practical experience." Khairkhwa v. Obama, 793 F. Supp. 2d at 11. As the "gatekeeper" to shield the jury from unreliable or irrelevant expert testimony, the trial judge "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field," but "reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Kumho Tire Co. v. Carmichael, 526 U.S. at 152-53, 119 S.Ct. 1167.

The D.C. Circuit has held that expert testimony consisting of legal conclusions is impermissible because such testimony may improperly influence the decisions of the trier of fact — the jury — and impinge upon the responsibilities of the trial court. See United States ex rel. Mossey v. Pal-Tech, Inc., 231 F. Supp. 2d 94, 98 (D.D.C. 2002) (citing Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1212-13 (D.C. Cir. 1997)). Whether expert opinion testimony is admissible "depends, in part, on whether it will 'assist the trier of fact' in either 'understand[ing] the evidence or ... determin[ing] a fact in issue.'" Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d at 1212 (quoting FED. R. EVID. 702). Expert testimony consisting of legal conclusions is not admissible because it "cannot properly assist the trier of fact in either respect." Id. Thus "an expert may offer his opinion as to facts that, if found, would support a conclusion that the legal standard at issue was satisfied, but he may not testify as to whether the legal standard has been satisfied." Id. at 1212-13; see also Halcomb v. Wash. Metro. Area Transit Auth., 526 F. Supp. 2d 24, 27 (D.D.C. 2007).

Under Rule 704(a) of the Federal Rules of Evidence, "[a]n opinion is not objectionable just because it embraces an ultimate issue." FED. R. EVID. 704(a). Other rules, however, including Rule 702, "may still be used to exclude 'opinions which would merely tell the jury what result to reach.'" United States v. Boney, 977 F.2d 624, 630 (D.C. Cir. 1992) (quoting FED. R. EVID. 704, Note of Advisory Committee on 1972 Proposed Rules); see also 3 STEPHEN A. SALTZBURG, MICHAEL M. MARTIN & DANIEL J. CAPRA, FEDERAL RULES OF EVIDENCE MANUAL § 704.02[1] (12th ed. 2022) ("Rule 704(a) permits ultimate issue testimony, but only if it will be helpful in accordance with Rule 701 or 702."). Rule 704 is "not intended to allow experts to offer opinions embodying legal conclusions." SALTZBURG, MARTIN & CAPRA, supra, § 704.02[3] (quoting United States v. Scop, 846 F.2d 135, 139 (2d Cir. 1988)). In drawing a line between "testimony on ultimate factual conclusions and testimony on the law ... [t]he question is always whether the expert testimony will assist the jury — and it is within the trial court's discretion to determine the helpfulness of such ultimate testimony in a specific case." Id.

Under Rule 704(b), "[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone." FED. R. EVID. 704(b). This rule was originally "enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity," but it "applies in fact to all instances in which expert testimony is offered as to a mental state or condition constituting an element of the crime charged or defense thereto." See United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995) (citing S. Rep. No. 98-225, at 230 (1983)). The D.C. Circuit has adopted the view that "what is proscribed is questioning that produces responses...