564 F. App'x 352
10th Cir.2014Background
- Henderson, a former Tulsa police officer, was convicted of eight counts (six perjury, two civil rights) after a 62-count superseding indictment was reduced; convictions rested on two search-warrant affidavits (Bartel/Kinnard and Crawford).
- Bartel/Kinnard affidavit alleged RCI Rochelle Martin provided drug information; Bruce, a later informant, testified to provide corroboration but had undisclosed background; she admitted an affair with Henderson under cross-examination which was initially excluded but later allowed in limited form.
- Bartel/Kinnard and Crawford witnesses contradicted Henderson’s RCI claim; Bartel/Kinnard witnesses denied knowing Rochelle Martin; Rochelle Martin herself testified inconsistently.
- Crawford warrant involved similar language about the RCI and Crawford’s presence; Crawford testified he was in Arlington, Texas during key dates, contrary to Henderson’s surveillance claims.
- Kerstetter, a FBI agent, testified rebuttally on telephone records and cell-tower locations to challenge Henderson’s claimed surveillance; juror concerns and a juror-affidavit were raised; Rule 606(b) issues were raised but denied.
- The United States Court of Appeals for the Tenth Circuit affirmed the convictions and denied post-trial relief on all raised issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kerstetter’s rebuttal testimony was properly admitted | Kerstetter was an improper expert; no notice and improper scope. | Kerstetter’s testimony was within rebuttal scope and non-expert lay testimony; notice not required for admissibility. | Admissible rebuttal; no plain error; notice issues waived. |
| Prosecutorial misconduct from Bruce’s affair testimony | Testimony about Henderson’s affair biased jurors. | Door opened by defense cross-examination; any misconduct curable by instruction; no impact on verdict. | No reversible prosecutorial misconduct; mistrial/new trial not warranted. |
| External influence on juror (Remmer standard) | Juror was exposed to improper external influence; Remmer requires investigation. | NoCommunication about the case; incidental contacts noted. | No Remmer error; no necessity for Remmer hearing. |
| Juror mistake and unanimity concerns under Rule 606(b) | Juror affidavit suggests different verdict; could affect unanimity. | Rule 606(b) bars juror testimony on deliberations; polled jurors affirmed verdict. | No error; Rule 606(b) upheld; verdict remains valid. |
Key Cases Cited
- United States v. Avitia-Guillen, 680 F.3d 1253 (10th Cir. 2012) (preservation of objections to expert testimony requires timely challenge to admissibility)
- Macsenti v. Becker, 237 F.3d 1223 (10th Cir. 2001) (plain error review for Daubert/Kumho challenges when not timely raised)
- United States v. Yeley-Davis, 632 F.3d 673 (10th Cir. 2011) (distinguishes lay vs expert testimony on technical matters)
- United States v. Feliciano, 300 F. App’x 795 (11th Cir. 2008) (cell-tower location testimony can be non-technical lay testimony when interpretation is common-sense)
- United States v. Rodriguez-Felix, 450 F.3d 1117 (10th Cir. 2006) (recognizes limits of expert testimony on certain evidentiary issues)
- United States v. Card, 46 F. App’x 941 (10th Cir. 2002) (Rule 16 notice considerations for rebuttal evidence)
- United States v. Benally, 546 F.3d 1230 (10th Cir. 2008) (Rule 606(b) veil on juror testimony; deference to trial judge on Remmer-related concerns)