United States v. Whaley
860 F. Supp. 2d 584
E.D. Tenn.2012Background
- Magistrate Judge Shirley presides over pretrial motions in a bank fraud/wire fraud case involving eight Sevier County properties.
- Defendants move to exclude government disclosures of two witnesses, Blankenship and Owens, as improper lay or expert testimony.
- Blankenship is First Vice President of SunTrust Mortgage; Owens is Senior Vice President of Lending at Citizens Bank.
- Disclosures filed August 5, 2011 disclose these witnesses will testify as fact witnesses, with lay opinions about loan underwriting under policies.
- A hearing was held November 2, 2012; the Government argued the testimony is lay opinion; the Defendants argued it is improper expert/testimony or after-the-fact analysis.
- Court analyzes Rule 701/702, Rule 16, and after-the-fact investigation theories to determine admissibility of the witnesses’ testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Blankenship and Owens may testify as lay opinion under Rule 701 | Testimony based on investigation and particularized knowledge of banks' underwriting policies. | Testimony relies on after-the-fact analysis and specialized knowledge beyond lay perception. | Yes; admissible as lay opinion under Rule 701. |
Key Cases Cited
- Bank of China v. NBM LLC, 359 F.3d 171 (2d Cir. 2004) (lay opinion admissible when based on investigation and particularized knowledge)
- United States v. Hill, 643 F.3d 807 (11th Cir. 2011) (bank employees may testify about reasonableness of loan decisions under Rule 701)
- United States v. Rigas, 490 F.3d 208 (2d Cir. 2007) (employee lay opinion admissible when based on investigation and not pure expertise)
- Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213 (11th Cir. 2003) (ownership/officer example guiding lay opinion admissibility)
- Bank of China v. NBM LLC, 359 F.3d 171 (2d Cir. 2004) (distinguishes lay opinion based on investigation from expert testimony)