M.D. Alabama Notes Split Re whether Eyewitness-Identification Expert Testimony Violates FRE 403

Per U.S. v. Smith, --- F.Supp.2d ----, 2009 WL 1444446 (M.D.Ala. May 26, 2009)

The Eleventh Circuit has not had occasion to address whether eyewitness-identification expert testimony would violate [Federal Evidence] Rule 403, and other circuits have split on this question. The Second, Seventh, and Eighth Circuits have reasoned that eyewitness-identification expert testimony might usurp the jury's role of determining witness credibility, thus causing jurors to be confused and misled regarding their role as the trier of fact. United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir.1999) (holding a district court was within its discretion to exclude an expert who “would effectively have inserted his own view of the officers' credibility for that of the jurors, thereby usurping their role”); United States v. Kime, 99 F.3d 870, 884 (8th Cir.1996) (applying a deferential standard to conclude that “the district court properly recognized the very real danger that the proffered expert testimony could either confuse the jury or cause it to substitute the expert's credibility assessment for its own”); United States v. Curry, 977 F.2d 1042, 1052 (7th Cir.1992) (“the district court's decision to exclude Dr. Loftus' testimony was a proper exercise of its discretion, whether under Rule 702 or Rule 403.”); but cf. United States v. Gallardo, 497 F.3d 727, 733 (7th Cir.2007) (holding that expert testimony on effect of drug abuse on witness memory would “intrude upon the jury's role in assessing witness credibility” only because the defendant had not put forth any evidence to show that the witnesses actually used drugs and that, thus, there was no “factual link” between the expert's testimony and the specific witnesses).

Similarly, in United States v. Rincon, 28 F.3d 921, 923-26 (9th Cir.1994), appellate court affirmed a district court's decision to exclude an eyewitness-identification expert under Rules 403 and 702. The court cautioned, though, that the opinion represents an “individualized inquiry” that “does not preclude the admission of such testimony when the proffering party satisfies the standard established in Daubert by showing that the expert opinion is based upon ‘scientific knowledge’ which is both reliable and helpful to the jury in any given case.” Id. at 926.

In contrast, the Third and Sixth Circuits have ruled that eyewitness-identification expert testimony comports with Rule 403. In United States v. Mathis, 264 F.3d 321, 339-40 (3rd Cir.2001), the court reversed a district court's decision to exclude eyewitness testimony based on Rules 403 and 702. Judge Pollack explained that eyewitness-identification experts who employ “reliable scientific expertise to juridically pertinent aspects of the human mind and body should generally, absent explicable reasons to the contrary, be welcomed by federal courts, not turned away.” Id. at 340. The Sixth Circuit has likewise concluded that a trial court erred in excluding an eyewitness-identification expert under Rule 403, but held that the error was harmless. United States v. Smith, 736 F.2d 1103, 1107 (6th Cir.1984); see also Smithers, 212 F.3d at 316 (finding that eyewitness-identification expert testimony did not violate Rule 403's prohibition against evidence that invites unjustified “delay”).

Eleventh Circuit Notes Split Re Relevance of Subjective Intent to Lability under the National Firearms Act

Per U.S. v. Spoerke, --- F.3d ----, 2009 WL 1423919 (11th Cir. May 22, 2009):

Spoerke asserts that the pipe bombs were intended for social enjoyment, he detonated them only underwater, and he enjoyed the concussion of the device when detonated. Our sister circuits are split over whether the court should consider the subjective intent of the defendant when determining whether the device was designed as a weapon. Compare United States v. Oba, 448 F.2d 892, 894 (9th Cir.1971) (considering the defendant's subjective intent), with United States v. Posnjak, 457 F.2d 1110, 1118-20 (2d Cir.1972) (applying an objective standard to determine whether the device falls within the reach of the Firearms Act), and United States v. Johnson, 152 F.3d 618, 628 (7th Cir.1998) (adopting a mixed standard). Although the district court instructed the jury on the mixed standard, we decline to adopt a standard because the evidence of Spoerke's intent, under any standard, is sufficient to sustain his conviction.

Second Circuit Notes Split Re Sentencing under Criminal Rule 11(c)(1)(C) and Recourse to Resentencing

Per U.S. v. Walker, Slip Copy, 2009 WL 983031 (2d Cir. Apr. 14, 2009):

As the Government correctly notes in its 28(j) letter, there is currently a circuit split on the legal issue of whether defendants sentenced under Federal Rule of Criminal Procedure Rule 11(c)(1)(C) plea agreements may ever have recourse to resentencing pursuant to § 3582(c)(2). We need not resolve this issue for our Circuit today, however, because the district court in this case provided sufficient justification for its determination that it would not resentence Walker even if given the opportunity.

Seventh Circuit Notes Split Re When a Copyright Registration Application is Complete

Per Brooks-Ngwenya v. Indianapolis Public Schools, --- F.3d ----, 2009 WL 996998 (7th Cir. Apr. 15, 2009):

Compliance with the registration requirements of 17 U.S.C. § 411(a) is not a condition of copyright protection but is a prerequisite to suing for infringement. 17 U.S.C. § 411(a); Automation By Design, Inc. v. Raybestos Prods. Co., 463 F.3d 749, 752 n. 1 (7th Cir.2006). The circuits have split over whether registration is complete when an application is made or only after the Copyright Office has acted on the application. Compare Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir.2006) (application is sufficient), and Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 365 (5th Cir.2004) (same), with Jennette v. United States, 77 Fed.Cl. 126, 131 (2007) (action on application is required); La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1201 (10th Cir.2005) (same); cf. Chicago Board of Education v. Substance, Inc., 354 F.3d 624, 631 (7th Cir.2003) (“an application for registration must be filed before the copyright can be sued upon”).

11th Cir. Notes Split Re Whether Federal Rule of Criminal Procedure 32(i)(1)(A) Requires the District Court to Personally Ask Defendant about PSI

Per U.S. v. Martinez, Slip Copy, 2009 WL 839093 (11th Cir. Apr. 1, 2009):

Martinez contends that the district court plainly erred, under Fed.R.Crim.P. 32(i)(1)(A), in failing to personally ask him whether he had read the PSI [presentence investigation report]prior to sentencing. . . . [T]he parties have not cited, and research does not reveal, any binding case law requiring a district court to personally address the defendant to determine whether he read and discussed the PSI with counsel, and other circuits are split on the issue. See United States v. Romero, 491 F.3d 1173, 1179-80 & n. 3 (10th Cir.2007) (noting a circuit split on the issue).

11th Cir. Discusses Split Re Impact of IIRIRA on Section 212(c) of the INA

Per Ferguson v. U.S. Attorney General, --- F.3d ----, 2009 WL 824434 (11th Mar. 31, 2009):

INS v. St. Cyr addressed the way that two statutory amendments to the INA-namely, AEDPA and IIRIRA-impacted § 212(c), 8 U.S.C. § 1182(c).

. . .

The circuits are split on how to apply St. Cyr to aliens outside of the guilty plea context. The majority of circuits to address the issue have held that IIRIRA does not have an impermissible retroactive effect on aliens who relied on § 212(c) relief in deciding to go to trial. See Hernandez-Castillo v. Moore, 436 F.3d 516, 520 (5th Cir.2006); Montenegro v. Ashcroft, 355 F.3d 1035, 1036-37 (7th Cir.2004); Rankine v. Reno, 319 F.3d 93, 102 (2d Cir.2003); Chambers v. Reno, 307 F.3d 284, 290-93 (4th Cir.2002); Dias v. INS, 311 F.3d 456, 458 (1st Cir.2002) (“[A]pplication of the new statutory limitations on discretionary relief does not have an impermissible retroactive effect on those aliens who would have been eligible for discretionary relief when they were convicted of a felony after trial.”).

. . .

Although our Court has not squarely decided the retroactivity issue splitting the circuits, we have come close to doing so on two occasions. We have all but said that St. Cyr 's retroactivity analysis does not apply to aliens who were convicted after a trial-as opposed to a guilty plea-and that § 212(c) relief is, therefore, not available to such aliens.

1st Cir. Discusses Split on Issue of Apportionment of Multi-Defendant Settlement Offers to Trigger Rule 68

Per King v. Rivas, 555 F.3d 14 (1st Cir. Feb 02, 2009):

The circuit courts have been divided about variations on the central problem. The Seventh Circuit has insisted that to trigger Rule 68 in multi-defendant cases an offer must contain amounts allocated to each defendant, Harbor Motor Co., Inc. v. Arnell Chevrolet-Geo, Inc., 265 F.3d 638, 648-49 (7th Cir.2001); but it did so citing a prior case, Gavoni v. Dobbs House, Inc., 164 F.3d 1071 (7th Cir.1999), involving joint plaintiffs, who present quite different problems; and the result in Harbor Motor was more than justified on a different ground, namely, that the verdict in favor of the co-defendant was being reversed, Harbor Motor, 265 F.3d at 644-45, so the plaintiff's total package could in the end well exceed the package offer.

Similarly, the Fifth Circuit also said the failure to allocate was fatal; but it did so on facts where it was otherwise plainly right to refuse to shift costs because the judgment against the defendant exceeded the offer-when combined with a settlement received from the other. Johnston, 803 F.2d at 870. The apportionment notion was invoked to reach a correct result but one properly reached by saying that the joint offer was less than the total amount actually recovered by the plaintiff.

The Third Circuit, by contrast, approved use of Rule 68 cost shifting where an unapportioned offer had been made that exceeded the amount recovered; it said that the suit against multiple defendants involved joint liability and an indemnification contract, although it is not clear how much this mattered to the court nor why it should matter. Le v. Univ. of Pa., 321 F.3d 403, 408 (3d Cir.2003). And district courts have employed Rule 68 without difficulty in multiple defendant cases where the offer was not apportioned and the total recovery was less than the unapportioned offer.^FN4

. . . .

[W]e agree with the outcomes in the Seventh and Fifth Circuit decisions ( Harbor Motor and Johnston ) because comparability was impossible in the first case and favored the plaintiff in the second, but not the putative rationales adopted by those courts, and we align ourselves with the Third Circuit, save that we do not see why it matters whether liability was joint or several or how the defendants were related: a package offer is simply to be taken on its own terms and compared with the total recovery package.