United States v. Sharon Ann Rahm

majority’s judges prisoners reliance on Ashurst-Sum- feel that paid should not be inconsistency ners creates an internal in the the minimum wage they for work are re- opinion. Congress If intended Ashurst- quired plain to do. reading Neither a mutually Sumners and the FLSA to be exclu- Act, Fair Labor Standards nor faithful labor, regulating prison majori- in sive as the goal adherence to its of maintaining a mini- holds, ty prison then all labor would be ex- mum living standard of general- for workers empt from the majority FLSA. Yet the ly, justifies such a result. rejects opinion this view. See 1392. majority rejects Since the the idea that the categorically prisoners,

FLSA excludes all I

fail to see how it can at the same time hold the FLSA and Ashurst-Sumners are

mutually exclusive. attempt impute

In a final its own intent Congress, majority says

to the that Con- gress exempt must have intended to these America, UNITED STATES of prisoners Congress from the FLSA because Plaintiff-Appellee, jeopardize prison would not have wanted to programs. opinion labor See at 1398. Yet RAHM, Ann majority Sharon give any why possi- fails to clue Defendant- Appellant. congressional jeopardiz- ble concerns about ing prison programs labor trump should Con- No. 92-10429. gress’ clearly expressed intent protect be used as a FLSA shield to workers Appeals, United States Court of attending goods from the evils the sale of Circuit. Ninth produced by cheap majority’s labor. The Argued and Submitted Feb. 1993. willingness wages to sacrifice the of free deny wages labor order to to inmates May Decided 1993. working prison programs labor is not grounded legislative history the text or

either Ashurst-Sumners or the FLSA.5

CONCLUSION majority’s analysis seems to boil down proposition long that as as Arizona law work, prisoners prisoners

forces do paid. simply

not have to be I fail to see the

logical connection between the fact that the

prisoners ques- are forced to work and the applies.

tion whether the I FLSA see no prison

reason to allow compete industries to

unfairly marketplace by selling goods by cheap

made inmate labor because some Indeed, plying employees ings the FLSA to to cover these items. the State of Walsh-Healey superfluous. already provides payments contractors makes Arizona for such prisoner whenever a receives at least the mini- Nor, add, 31-254(E). wage. grounded reality. mum I would is it See Ariz.Rev.Stat. It is Congress majority's concern that the FLSA does inconceivable that would make a state expressly garnish portion pay prisoners board, wage plus allow states to the minimum room and room, prisoners’ wages board, pay prohibit requiring prison- the state for a state from compensation misplaced. payments and victim ers to make to their victims out of their fact, earnings. recognizes See at 1398. Just because the FLSA the statute that in provide payments portion does not for such does not certain circumstances a of a worker’s Congress prohibit wages may employer-provid- mean that intended to a state come in the form of 203(m). taking prisoners’ lodging. § deductions from earn- ed board and See 29 U.S.C. REINHARDT, FLETCHER,

Before NOONAN, Judges. Circuit REINHARDT, Judge: Circuit appeals her conviction Ann Rahm Sharon cur- charges possession of counterfeit pass counterfeit attempting to rency and of of 18 U.S.C. currency, violation both court erred that the district § 472. We hold testimony proffered excluding expert Rahm, remand. and and reverse I attempted to August Rahm On from the of tea purchase a three-dollar box using a in Francisco Bazaar San Canton manager of the bill. counterfeit $100 counterfeit, and recognized the bill as store manag- Although the called the authorities. were that there Rahm more than once er told bill, she re- with the problems $100 some minutes at store for fifteen mained the the more, change or the return of waiting for twenty-five genu- dollars Rahm bill. had possession, she never ine cash her pay for the bill and to take back $100 offered manager money. The with this other the tea him had Rahm told she at testified trial days a few from a bank the bill received $100 before. calls, manager’s two

Responding Rahm. arrested and police officers arrived recov- searching purse, the officers On her ninety-eight $100 additional counterfeit ered the waiting several hours After bills. station, by a questioned police Rahm was agent. signed a state- She Service Secret ninety-nine bills found the ment that she had money thought stop that she the and at bus statement Although this real. written was Berson, De- Public P. Asst. Federal Brian currency belief includes asserted Francisco, CA, fender, for defendant- San that when agent the genuine, states appellant. to answer orally, she questioned refused Litman, money counter- Harry Asst. the whether she knew Boersch Martha Francisco, CA, plaintiff- Attys., U.S. San feit.1 appellee. trial, two-day convicted Rahm was After a currency at- possession of counterfeit currency. Al- pass counterfeit

tempting to they only as bear these facts trial. recite nor the written statement Neither Rahm’s pretrial to ex- upon the district court's decision answer a agent's that she refused statement testimony. clude knowledge admitted at were question regarding unsuccessfully though sought sonality style might to call an be marked lack of defense, testify in witness to ulti- insight. mately following Rahm prosecu- rested moved in limine to ex- case, introducing any tion’s without evidence clude testimony, disputing its rele- argument, her own behalf. her counsel arguing vance and that Nelson’s evaluation questioned adequacy government’s revealed medically-recognized no mental disr proof that Rahm the bills knew were coun- order or defect. The granted district court Knowledge currency terfeit. ruling the motion in an day oral before counterfeit is possession an element of both appeal, trial. On challenges this deci- attempting pass. knowledge Lack of sion to exclude theory was Rahm’s sole of defense.2 regarding perceptual difficulties. During case, government’s a Secret special agent Service quality testified to Ill explained of the counterfeit He what bills.

distinguished Under ninety-nine genu- expert may bills Fed.R.Evid. an currency, scientific, identifying presence testify technical, ine “[i]f of mi- spe or other printing, crodots knowledge absence of col- cialized will assist the trier of fact security paper, ored fibers in the and the to understand the evidence or to determine a identical multiple serial numbers bills. Amaral, fact issue.” In United States v. agent further testified that he had seen (9th 1148, Cir.1973), 488 F.2d 1153 we out higher-quality lower-quality both coun- lined four criteria to helpful determine successfully passed terfeit bills off as true 1) expert ness of qualified testimony: expert; cross-examination, currency. agent On 2) 3) proper subject; conformity general to a agreed that unsuspecting people accept- 4) ly accepted explanatory theory; pro ed, genuine, phony as quali- bills of the same bative compared prejudicial value effect. ty purse. as those in Rahm’s Although prior we decided Amaral Evidence, enactment of the Federal Rules of II we have apply continued to these four factors trial, notice, gave pursuant Prior to Rahm determining admissibility expert 12.2(b), to Fed.R.Crim.P. of her intention to See, e.g., under Fed.R.Evid. 702. introduce the of Dr. Arvalea Nel- Miller, 1255, United v. States 874 F.2d 1266 son, psychologist, to her evaluation of (9th Cir.1989); Christophe, United States v. Rahm. Rahm intended to offer the testimo- (9th 1296, 1299 Cir.1987). 833 F.2d Unit Cf. ny support of her that defense she did not Fleishman, 1329, ed States v. 684 F.2d 1337 know the bills were counterfeit. (9th Cir.) n. (reserving 5 issue whether defendant, In examining Nelson ad- enactment, Amaral survives Rule 702 tests, ministered two standardized the Wech- noting post-enactment adoption Sixth Circuit Intelligence sler Adult Scale—Revised factors), denied, of Amaral cert. 459 U.S. (WAIS-R) and the Multiphasic Minnesota 1044, 464, 103 S.Ct. 74 L.Ed.2d 614 (MMPI). Personality Inventory The results We have sometimes described our of the WAIS-R revealed that Rahm’s intelli- standard of review in the expert area of gence however, roughly average; was testimony as “abuse of discretion” some subtests, scores on two Completion Picture times Compare, e.g., as “manifest error.” Arrangement, and Picture significantly were Barker, 585, United States v. 942 F.2d 589 subtests, average. below On both Rahm (9th Cir.1991) (abuse discretion) with showed a tendency “consistent ... to over- 581, Sinigaglio, United States v. 942 F.2d important look visual details.” Nelson con- (9th Cir.1991) (manifest error). 584 performance that occa cluded On on the two sion, suggested “difficulty subtests we have per- with used both characterizations. visual ception.” results, See, Arvin, From the e.g., MMPI Nelson United States v. 900 F.2d (9th Cir.1990) 1385, 1389 (admission further concluded per- that Rahm’s overall or exclu- contending defraud, In money government’s that she did proof not know the an ele- intent counterfeit, necessarily was attempting pass contested the currency. ment of counterfeit 1410 (9th Cir.) trial (reversing where 667, only 670 testimony “is reversible sion of error”), ex admission of erroneously concluded manifest or of discretion court for abuse 672, 112 1024, appellate denied, under required 111 S.Ct. U.S. pert 498 cert. Miller, (1991); 885, 1266 denied, F.2d 874 100 444 L.Ed.2d 664 U.S. certs. precedent), (“[w]e admit or ex 969, ... decisions to review 100 62 L.Ed.2d S.Ct. of discre for abuse clude (1979); United L.Ed.2d 383 S.Ct. error”); only manifest reverse tion and (9th Erskine, 721, 722 F.2d States (“we reverse Christophe, F.2d at Cir.1978) based (reversing where exclusion wide abused its only if the district capacity to form conclusion on erroneous error”). manifest committed discretion irrelevant). Here, examine must we intent adoption of general We note the dis upon which legal principles certain would characterization of discretion” “abuse appears to rest. determination trict court’s our the rest of into line with

bring this area See, e.g., United law of evidence. A Cir.1983) (9th Rohrer, F.2d 432-34 gov ruling on the announcing its sev- general standard to address (employing testi motion exclude ernment’s issues, including evidentiary exclusion eral it did not stated that mony, the district court testimony). In a recent en proffered met think employed the “abuse opinion, we banc Rule 702. under for admission “threshold” directly without characterization discretion” however, statement, conclusory Beyond this of review. See Unit- describing our standard sparest of rea only the provided the court (9th Aguon, ed States v. ad The court ruling. its did not sons for banc) (“[t]here Cir.1988) (en no abuse factors any of the Amaral specifically dress expert tes- excluding proffered discretion” it felt were not satisfied which or indicate error” characteriza- timony). The “manifest regarding Rahm’s the Supreme from a emanates apparently tion there perception. We difficulty with visual ef- judiciary’s preceding decision Court entirely of the ratio certain of cannot be a number review fore on limited forts to settle court’s See Salem United decision. nale for district characterizations. Co., 82 S.Ct. States Lines Nonetheless, appears to have court (1962). There 1119, 1122, L.Ed.2d 313 of exclusion based practical difference between no appears be 1) legal premises: that upon two erroneous formulae, vestigial co- so their verbal the two testimony re- psychological of admission Ac- purpose. no existence serves obvious a men- suffer from quires that the defendant upon to settle cordingly, be sensible it would 2) disorder; expert an must be that tal characterizing our stan- practice of a uniform conclusively defendant state able to discretion” “abuse dard review rea order to requisite mens lacked the In view of by in all future cases. abiding it to that issue. testimony relevant adopt appropriate it Aguon, believe we requires under Fed.R.Evid. 702 Admission purposes although for approach, that opin- nor conclusive mental disorder neither of the no which opinion, it makes difference ion. or “mani- of discretion” two terms —“abuse use. error” —we fest its Generally, a court abuses district motion, the granting government’s In an it its decision when bases discretion had never that it court commented district clearly errone or a view of law erroneous anyone entitled to “was a where seen case & See Cooter facts. ous assessment state on past mental give opinions about 384, 405, Corp., 496 U.S. Gell Hartmarx disor- have mental don’t people who even 2460-61, L.Ed.2d 359 110 S.Ct. suggests comment To the extent this ders.” testi specific In the area only testimony may expert psychological that court errs held that a district mony, we have from a who suffer those be about introduced its discretion as to exercise when it fails “disorder,” state- it is an incorrect mental legal princi applying an erroneous result of Nothing in 702 or our Awkard, law. Rule ment of the F.2d States v. ple. See United prerequisite precedent implies helpfulness such a to ad- issue under Rule 702— missibility. The district court erred in jury. seek- may A district court prof- not exclude require- ing to enforce a mental “disorder” expert psychological testimony fered simply ment. because the defendant’s condition does fit expert’s within the the district court’s Importing prerequisite into such Fed. —or concept of mental “disorder.” flatly R.Evid. 702 would contradict Fed. own— rule, 12.2. The latter with which R.Crim.P. here, complied requires advance notice whenever “a defendant intends introduce excluding testimony, the dis- relating to a mental disease apparently trict court also troubled or defect or other mental condition of certainty the lack of in Nelson’s conclusion bearing upon the defendant the issue of regarding inability recognize Rahm’s 12.2(b) guilt.” (emphasis Fed.R.Crim.P. add currency genuine. was not In Nelson’s ed). psychological testimony If admission of report attorney, to Rahm’s she stated that required under Fed.R.Evid. 702 mental dis perceptual 12.2(b) difficulties and lack of order, the reference in Rule to “other insight “could” have resulted in a failure to entirely superflu mental condition” would be closely any currency examine advisory It found or to ous. is not. committee had perceive signs testimony relating inauthenticity. Focusing to “mental conditions” specifically “could,” upon other than “disorders” mind the conditional the district when it introduced the broader term to Rule court commented that “that’s not 12.2(b) 12.2. See Fed.R.Crim.P. 1983 amend capacity, that she lacked that’s advisory ment committee’s note. We must capacity.” By excluding she had the interpret Fed.R.Evid. 702 concert with our basis, expert testimony on this the district rules; rules, other federal under these standard, imposed nearly impossible proper inquiries ultimate are whether evi supported logic neither in nor in law. dence of a defendant’s mental condition ahas “bearing upon guilt,” the issue of Fed. matter, As an initial we note that 12.2, R.Crim.P. whether testimo expert testimony, admission the issue ny as to that condition “will assist the trier of here, specific involved and the admission of fact to understand the evidence or to deter expert opinion separate are determinations. issue,” in mine a fact Fed.R.Evid. 702. Nei rules, expert “may Under the federal an inquiry requires ther determination testify opinion ... of an form whether the condition merits the label “disor (emphasis otherwise." Fed.R.Evid. 702 add der.” ed). Thus, every expert express, not need hold, opinion regard nor even an with to the Furthermore, we note that a rule es Indeed, in in issues involved a trial. certain tablishing prerequi mental “disorder” as cases, expert express we not allow an will expert psychological site admission of opinion specific an as to issues even if he or testimony undoubtedly prove would unwork Thus, she has formed one.3 the decision age psychological in an when able expert testimony whether to admit does not psychiatric community is far from unanimous upon strength the existence or of an rest constantly-evolving conception in its of what Rather, expert’s opinion. key concern is Even if a constitutes “disorder.” settled def existed, expert testimony whether assist will the trier inition there is no reason to believe drawing of fact in its conclusion as to a the scientific classification would bear own admissibility particular relevance to the main “fact in issue.” testimony presents express opinion' 3. Nelson's such a case. Un- a conclusive whether Rahm —on 704(b), expert testifying ninety-nine der Fed.R.Evid. an as to knew that the bills were counterfeit— may in a criminal not offer, inference, mens rea case "state an by that she could not even in her opinion or inference as to whether the defendant testimony at trial. It would make little sense did or did not have the mental state or condition determining require opinion a conclusive in ad- constituting charged.” an element of the crime missibility, absolutely expres- then to forbid then, Effectively, the district court excluded Nel- opinion testimony. sion of the in report son as a because her did not witness 1412 good rea- qualifications. his With candor or must consider trial court expert in testimony son, deter an is expert wonder whether such probativeness of we Here, admissibility. the district mining missing significant its factor. hiding —some —or exclusively upon proffered focused court Here, simply Nelson’s conclusion considering the rather than opinion, expert’s terminology em- probability in couched underlying the test results psychological by experts. ployed erred. It is doing, the court opinion. In so respects erred in two The district court perceptual difficulties results and the test testimony excluding because Nelson’s comprised they that would demonstrate First, entirely conclusive. opinion was not testimony, and the court should upon Nelson’s improperly focused the court determining admissi them have evaluated underlying proffered opinion rather than the opinion, expert’s an bility. strength of and, second, court evaluated testimony, one, may be one factor has the extent he con- opinion under an unreasonable helpfulness to the determining potential clusiveness standard. dispositive.

jury, not See United it is (9th Cir.) Brewer, 783 F.2d B (definiteness legitimately consid opinion non-dispositive factor deter as one ered Having the district concluded admissibility expert anthropologi mining expert its exclusion of court based denied, 831, 107 testimony), cert. cal law, we must conclusions on two erroneous not, It is 93 L.Ed.2d 64 S.Ct. whether the determine proxy helpfulness of ordinarily, a suitable for requirements for ad otherwise satisfies may jury, and a district court to a under under Fed.R.Evid. mission underlying testimony fail to consider the because, not independent review take this exclusively on whatever and focus above, court’s the basis of the district ed may offer. because, clear, entirely exclusion was Furthermore, if the district errors, legal despite court’s we the district expert’s opinion strength of an considers not reverse unless Nelson’s will to admit testimo deciding whether Fed. admissible. See otherwise may require— not seek-—or ny, the court 52(a) (harmless cogniza error not R.Crim.P. certainty of result “Absolute conclusiveness. Gonzales, appeal); ble on United States admissibility.” Fleish required for is not (9th Cir.1984) (indepen F.2d 1337; man, at 1336— see also id. F.2d dently reviewing adequate reasons to ex goes to (certainty expert’s opinion judge’s basis of trial exclusion clude where admissibility). testimony, not weight of unclear). Hingson v. Southwest Pacific Cf. expec Certainty (9th Cir.1984) an unreasonable Airlines, expert opinion. Nel tation in the realm (no prof in civil case unless reversible error in ex conditional “could” use of the son’s require met Rule 702 fered unusual is neither pressing her conclusion ments). consider each of the We therefore testimony. disqualifying as to her nor expert of testi factors for admission Amaral science, or social but any area of science mony. mind, expecting of the particularly in matters Amaral, require that the we first Under without the expert to reach a conclusion an qualified expert. testimony offered be accuracy is exceed slightest doubt as to its challenge government not Nelson’s The did Experts ordinarily deal in ingly unrealistic. testimony; expert nor qualifications to offer See, “mights.” in “coulds” and probabilities, any court intimate concerns did the district Erskine, (excerpting at 722 e.g., 588 F.2d consequence, there is regard. As a testimony that defendant proffer expert of psychologist’s record as to the little in the probability” committed “in the realm of Nonetheless, conclude qualifications. we doing). knowing he was without what crime satisfy the testimony would that Nelson’s willing opine expert to It is the rare who is apparently a Amaral factor. She is first conclusively past occurrence. about degree; a doctoral psychologist clinical with expresses opinion his with abso expert who testimony psychologi- to related his her intended certainty skepticism invites about lute Rohrer, government fantasy); cal tests and evaluation. The (pos- 708 F.2d at 434 critically would have been free to evaluate drug usage by sible effects of testifying wit- qualifications upon her further cross-exami- ness); Awkard, (effect 597 F.2d at 669-71 argument. Any or in nation deficits recall). hypnosis on ability witness to But qualifications beyond professional train- Wesson, see United States v. 779 F.2d ing go weight testimony to the of her rather (9th Cir.1986) (upholding admission of admissibility. than to its See United States expert testimony “may that have aided the (9th Cir.1981) Bilson, v. 648 F.2d jury in determining credibility” of vic- (that psychiatrist psycholo- was not licensed claim). However, tim’s Nelson’s gist goes weight admissibility of testi- testimony entirely was of an different vari- tests). mony evaluating psychological Nel- ety. testimony son’s was not excludable under the All necessarily supports defense evidence first Amaral factor. “story”; defendant’s very pur- that is its “proper subject” inquiry Our has pose. If a defendant takes the stand generally upon focused whether the story, his loosely we could even char- testimony improperly addresses matters testimony acterize the of each additional de- within, understanding average ju of the fense bolstering “credibility” witness as 1299; Christophe, ror. See 833 F.2d at Nonetheless, testimony. defendant’s Amaral, 488 F.2d at 1152-53. have stat apply we do not regarding credibility rules testimony ed that should not “in testimony evidence to the of each of these province jury.” United vaden Here, other witnesses. testimony Nelson’s Binder, (9th 769 F.2d knowledge, related to the issue of an element Cir.1985). years, noting In recent help that of the crimes with which Rahm charged, jury fulness is the central concern of and a “fact in issue” under Fed.R.Evid. 702. Fed.R.Evid. some scholars and courts testimony certainly would have en- rejected have this rationale for the exclusion “credibility” hanced Rahm’s had she taken experts, jurors concluding might find stand, supports all evidence expert testimony helpful even in relation to subject everyday possible testimony defendant’s actual —or experience. matters from — Langford, credibility See purpose United States evidence. The (9th Cir.1986) J., (Ferguson, dis Nelson’s upon was not to comment rejection senting) (discussing “jury func general or with re- truthfulness tion” rationale relation to on spect might account Rahm offer'as to identifications); unreliability eyewitness possess how she came to the counterfeit cur- Margaret Berger, Jack B. Weinstein & A. Rather, rency. was in- (1992) § (argu Weinstein’s Evidence 702[02] diagnosed per- tended establish Rahm’s ing that experience” “common rationale for difficulties, ceptual which were relevant to a helpfulness exclusion is inconsistent with in fact in money issue—whether she knew the Nonetheless, quiry). this circuit continues to proposed was counterfeit. That Nelson’s tes- guard perhaps jealously too — —from timony supports theory the defense is the elucidation, areas believed to be within the proffered; reason it was it is anot reason for jurors’ understanding. common its exclusion. that, argues consistent Neither is Nelson’s im principle, with this proper testify because Rahm herself did not simply inadmissible because it would currency that she found the and did not credibility consisted of her about the govern know that it was counterfeit. The “story.” of Rahm’s This contention funda- argues ment other without evidence of mentally misinterprets precedent. our On knowledge, lack of there was no “foundation” past, occasion in the we have stated that introducing testimony. for In Nelson’s ef expert testimony impugn to bolster or the fect, government suggests the that Rahm credibility properly aof witness is excluded. required See, Binder, present was to take the stand to her e.g., (expert 769 F.2d at 602 “story” present testimony specific ability on before could defense evi child witnesses’ distinguish falsity reality to truth from and dence to “corroborate” it.

1414 es). testimony related to proffered suggests Nelson’s government rule the subject. rights. proper a constitutional several would eviscerate defendants, the had Rahm, criminal like all nor the dis government the Neither choosing to By not testify. right not to to any reservations expressed trict court pres right to forfeit not her testify, she did generally conformity “to a testimony’s the testimony. introduce or to a defense ent theory,” third the accepted explanatory of presumption right to the Rahm had the sug record Nothing in the Amaral factor. required to was government innocence. The testimony not sat would gests that Nelson’s charged crimes element prove each re letter requisite. Nelson’s isfy this testi third Defense doubt. beyond a reasonable MMPI that the WAIS-R proof port suggests of the calling question into mony Here, general use govern the tests are standardized proper. is such element so, entirely tests are cir If the knowledge profession. psychological of was proof ment’s jury the admissible cumstantial; prosecution procedures, asked generally-accepted the possession knowledge discrediting from Rahm’s See United evidence. to absent infer the (9th attempt Hendershot, to ninety-nine bills 654 614 F.2d of States Nonethe purchase. a Cir.1980) shoeprint for of them of (upholding use one admission deny Rahm the less, would government presen the technique absent challenge of against of evidence evidence). circumstantial right to Whether discrediting of tation present her own knowledge and to lack of are test results from the conclusions diffi perceptual argument inferential issue; separate is a the reliable —that remaining in the culties, coupled with through cross- opinion could refute Nelson’s minutes, jury the lead should store fifteen its own argument, or with examination and money was did not know infer that she v. Bow testimony. See United not entitled government is counterfeit. Cir.) (whether (9th ers, 193-94 534 F.2d unfair advan unprecedented and an to such accepted procedure resulted generally of use improper testimony was tage. Nelson’s ques is particular case in reliable had not testi herself simply because explored cross-examination tion to be knowledge. to her lack fied denied, witness), cert. The dis 50 L.Ed.2d S.Ct. measures, Nelson’s testi By other testimony of Nelson’s trict court’s exclusion Amaral factor. mony second also satisfies of the third on the not sustainable basis interpreted the results Nelson would Amaral factor. tests; approved the we have psychological for such introduction proba Finally, we believe that Bilson, 648 F.2d past. purpose in See tive value of capa not be juror average would 1239. The prejudice danger of unfair high, while the or MMPI the WAIS-R interpreting ble of testimony was significant. Nelson’s was not Moreover, proffered testi results. knowledge that the bills to Rahm’s relevant specific perceptual mony related an knowledge is ele Such were counterfeit. difficulties, deficiencies general human § 472. Unit of 18 ment of violation U.S.C. from their jury could understand (9th Palacios, ed States Miller, F.2d at experiences. own Cf. Cir.1987). agent’s special Secret Service testimony con (affirming exclusion quality indicated that at trial people’s usual generalities as to sisting of by Rahm possessed bills of the counterfeit Christophe, failing polygraph); reaction to Moreover, agent average. roughly (cross-examination “ap 833 F.2d at 1300 bills of that counterfeit specifically agreed sense experience and common peals to successfully passed lesser-quality had been jury to conditions alert jurors” sufficient public. unsuspecting off as real to unrelia identification rendering eyewitness that Rahm testimony, (distin evidence light of Binder, ble). at 602 F.2d But cf. ability impaired perceptual suffered com problems general guishing the existence highly probative as to would be specific to all mon children knowledge. guilty or absence of credibility specific child witness- regarding Rahm not and could not contest the did was otherwise admissible under the test es- counterfeit, fact that the bills were that she tablished in Amaral. bills, attempted

possessed the and that she purchase. use one of the to make a bills C theory sole of defense was lack of Rahm’s We now determine whether the knowledge. Knowledge was a “fact in issue” district court’s error was harmless. Under proffered under Fed.R.Evid. 702. The ex- error, our test for nonconstitutional which we pert testimony specifi- that addressed issue ,as apply to admissibility errors so, cally. If she had chosen to do expert testimony, we reverse it unless must herself could have testified to her lack of probable is more than not that the error did knowledge, testimony but her would not have materially affect the verdict. See United atypical perceptual related her difficulties Echavarria-Olarte, 1391, v. 904 F.2d nearly expert’s as well as an conclusions from (9th Cir.1990).5 conclude psychological test results.4 The erroneous exclusion testimony of Nelson’s independent, signifi- had was not harmless. probative cant value. United States v. Cf. (9th Cir.1988) moving In testimony, to exclude Darby, (prof- Nelson’s 857 F.2d government obviously expert testimony was fered meant to corroborate concerned testimony’s possible about the testimony regarding defendant’s effect on the lack in- admitted). verdict. government’s tent We think the should been fears justified. were The circumstantial evidence always Although danger there is un- knowledge presented by prejudice due with “be- significant overwhelming, was but not partic- reliability special cause of its aura of ularly light having of Rahm’s remained Amaral, trustworthiness,” 488 F.2d at having the store after prob- been informed of danger comparison here that minimal in currency. lems with the Nelson’s probative to the substantial value of Nelson’s highly probative of the defense Rahm proffered testimony. Neither are our other sought to advance. It is true that Rahm concerns under the fourth factor and Amaral might have been convicted even if Nelson’s under Fed.R.Evid. 403—confusion of the is- introduced, testimony had been but we can- sues, misleading jury, delay, undue say hypothetical outcome is presentation of cumulative evi- needless probable “more than not.” Amaral, implicated dence —at all here. See (listing countervailing 488 F.2d at 1152 con- support Our conclusion finds further factor). siderations under fourth deprived fact that the district court’s error two-day hardly brief trial would have been her Rahm of sole intended defense. Cf. complicated unnecessarily lengthened un- Hartfield, v. United States 513 F.2d duly by allowing present the defendant (9th Cir.1975) (absence of mental examina- knowledge. her of lack defense seriously prejudiced” tion “could have defen- proffered testimony satisfies the last Amaral only dant because available defense turned factor. condition). above, on mental As discussed only possible justification Rahm’s defense was lack'of We conclude that there was no knowledge; excluding proffered expert testimony. she chose to that de- upon through The district court’s decision rested two fense re- legal garding perceptual incorrect conclusions and the difficulties. had She Furthermore, above, nothing requiring 4. we discuss error as a "fair as re- assurance” that quires give up right a defendant to not to error did not have "substantial influence” over Thus, testify expert testimony. Webbe, order admit verdict. See United States 755 F.2d conveyed perceptu- (9th Cir.1985). even if Rahm could have We therefore have a psychologist, circuit, al difficulties as well still "can, as conflict cases, this which in some introducing expert option of would have had the conflicting lead to results.” United States testimony rather than her own. Hitt, (9th 1992). 425 & n. Cir. Hitt, however, case, we Like this is not such a circuit, conclude that the error was not harmless under we have also sometimes de- scribed the test for harmless nonconstitutional either test. agent, tes- Nelson, a secret service Russell her defense to choose right

a to testimony. The dis- were counterfeit. all 99 bills exclusively through that that $100 tified paper, not harmless.6 as error was printed trict court’s on Crane They were They currency did is. genuine States United IV fibers, security as and blue have red errone- the district court that conclude of currency has. A number United expert tes- ously excluded numbers, where- same serial the bills had the psychologi- requiring that timony. In unique numbers. currency has serial real as “disorder,” to a mental relate cal micro- currency, had the bills genuine Unlike expert have a con- requiring that in and color-copying ma- by an office made dots imposed opinion, the district clusive opinion the chance In Nelson’s chine. expert tes- The standards. legally-erroneous were slim inspection at a passing bank bills estab- the test under timony admissible was in a They highly passable were to none. not harm- The was error lished Amaral. holiday with during season mall a shopping proceed- remand for and We reverse less. In his help in the stores. temporary opinion. ings with consistent buy to of counterfeiters it was characteristic AND REMANDED. REVERSED counterfeit of small value with merchandise get the and to high denomination bills of NOONAN, dissenting: Judge, Circuit currency. change genuine as follows: in this was The case evidence government rested after The Saturday, August the afternoon On Cheok, The defense Nelson. and Chan Ba- the Canton Rahm entered Sharon jury the defense To the no evidence. offered Avenue, zaar, Francisco. She San 616 Grant government’s argued that hole of- costing and tea $2.99 a box of ordered attempt to leave that Rahm did not case was The store it a bill. pay to for with $100 fered was absent that in the fifteen minutes Cheok Cheok, who was stand- manager, Boon Jason easily Rahm could stand. from the cashier’s cashier, that he would told Rahm ing not, though away even and did have walked change need to check get and would to need being questioned. she knew bill part of the He went to another the bill. jury examine suggested the Service, also defense called the Secret he store where might have been that the bill motivation —he the conclusion Cheok’s having reached getting 911. help to call his looking He was told a or for for reward counterfeit. that he Rahm and told her Malaysia. country He returned family into the having he was change and find that couldn’t they jury could prosecution told the bill.” Rahm said with “some trouble circum- from the Rahm’s intention infer “why be should did not see there she nothing containing purse a She had stances. just with- she problem the bill because with shopping gone bills. She had but counterfeit days three Fargo Bank it Wells draw from $10,000 in almost of tea with for worth $3 main floor up then went ago.” Cheok appeal- prosecution person. The cash on her min- at least 15 There were called jurors to common sense ed to the the store could left when Rahm utes knowingly intention- decide whether stopped by being without Cheok. pos- passed the counterfeit bills ally had officer, police Walter A San Francisco bills. other counterfeit the 98 sessed store, having heard on the Chan, came problem at the there was police radio EXCLUDED THE EVIDENCE arrest put under He Bazaar. Canton trial, re- offered the the defense Prior He then bill. possession of counterfeit Berkeley Nelson of the port J. Arvolea on her shoulder. purse carried searched Institute, psy- Therapy who had “initiated and noth- bills purse contained $100 Dr. Nelson of Rahm. chological evaluation” genu- she carried ing $25 Elsewhere else. In- the Wechsler Adult administered to currency. ine nonconstitu- on the basis challenges causc we the exclu- reverse also that Rahm 6. We note error, evidentiary reach this we do not tional a violation of sion Nelson's Be- contention. right present a defense. constitutional telligence Scale-—Revised Test and the The court observed: “I have never seen a Personality Multiphasic Invento- Minnesota anybody, ease where including a mental ry. significant discrepancies The “most professional, health give was entitled to opin- average scoring pattern an otherwise oc- past ions about the mental people state of Completion curred on the Picture and Pic- who do not even have mental disorders. It Arrangement ture subtest” of the first test. speculation, seems to me to be sheer and the Completion required The Picture subtest notion that the so-called irregularity would pictures, to examine set of each of just appear relevance doesn’t to me to important missing. which had an detail The be the threshold that it is admissible as identify missing. task was to what was opinion or testimony.... I don’t poorly Rahm did so that had she scored you think have made a threshold to meet 702 subtests, similarly on the rest of the of the rules.” IQ overall would have been about 50. The suggested “difficulty per- score that she had ANALYSIS ceiving interpreting and visual details.” On appeal sole issue on is whether the subtest, Arrangement the Picture her scale excluding court erred in psychologist’s average score was below the score of 10. proffered testimony. It was offered under arrange pictures The task was to cartoon-like Fed.R.Evid. which reads as follows: logical story. to tell a She missed four out of scientific, technical, If specialized or other 10 items. tendency She showed a consistent knowledge assist will the trier of fact to important “to overlook visual details.” In understand the evidence ability or determine a both subtests “her to attend to the issue, appeared fact in impaired by qualified test material to be a witness as an tendency according skill, to answer by knowledge, her first experience, impression allowing rather than herself to education, training, may testify thereto multiple hypotheses.” consider opinion form of an or otherwise. Dr. Nelson concluded: “The results subject Such is to the trial Multiphasic Personality Inventory Minnesota court’s jury decision as to whether the can suggest that Ms. Rahm’s intellectual ‘blind “appreciable help” receive from such testimo- spots’” may be characteristic of an overall ny. Amaral, United States v. personality style by which is marked lack of (9th Cir.1972). judgment It was a call insight. highest Her two scores scale were of the district court as to jury whether the Hypochondriasis Hysteria. Such scores appreciable help would receive from Dr. Nel- people deny characterize psychologi- who opinion. only authority son’s offered to underlying cal problems factors such as their by the district court the defense was United multiple physical complaints. They chronic (9th Cir.1988). Darby, States v. 857 F.2d 623 overly optimistic tend to be and unrealistic Darby psychiatric testimony would have about their own situations and the world helpful deciding been whether an accused general.” possessed capacity bank robber to form moved to exclude the intent, requisite but the district court proffered testimony. Defense counsel ar- made an error of law it when held that gued “testify that Dr. my Nelson could about culpable Darby, intent was irrelevant. condition, mental-psychological client’s which F.2d at 722. The district court’s first re- that, poor perception, involves visual I sponse testimony proffered here was think, bearing has a on the issue in this case. as observation based on a concession made case, The defense in this make [I] no secret by the defendant: she did not have a mental it, knowledge.” is lack of about The defense Consequently, disorder. as the court im- argued further that Rahm was not the kind plied, proffered testimony could not bear person things closely,” “to look at capacity specific on her to form a intent. defect, any physical because of rather Darby didn’t work. perception problem “a because of mental The district court’s second comment was she has.” The defense characterized this problem irregularity,” opinion “a mental not “a did not reach the threshold, psychiatric disorder.” ie. that the court did see how incontrovertibly knowledge was so “appreciably” could be by what she by she did and what established opinion of this jury. The helpful to the person on her she carried reading A said what point. careful to focus on fails not that probable than it far more found that she opinion shows Dr. spite of guilty found her problem” jury have “perceptual would a not Rahm to have prob opinion. personality a Dr. Nelson’s eyesight but on her based unrealistic. overhasty her and made lem that of argue that denial the goes on to Rahm find not imagine, would jurors, I would Most violation of testimony was a psychologist’s deciding helpful opinion evidence such right present to a Amendment her Sixth great quanti had a knew she Rahm whether reach this majority not The does defense. care possession, in her bills ty of counterfeit contention, necessarily Dr. Nelson I do. but currency. If genuine her fully isolated to offer. only she intended witness was the difference, why did she the tell she couldn’t begin- at the was excluded Dr. Nelson When conceivably, the bills? Just segregate the no evidence at all. had ning the trial she of helped, but marginally been jury have would right present to her Every has defendant say to so. It is hard appreciably? defense to to establish a own witnesses testimony is admissibility event, Washing- her of the facts. present version the trial broad discretion committed 1920, Texas, 14, 19, 87 S.Ct. 388 U.S. ton v. not be dis action the court’s will court and (murder (1967) 1923, defen- 1019 18 L.Ed.2d “manifestly Sa erroneous.” unless turbed one process convicted when dant denied due 31, 35, Co., 82 370 Lines U.S. v. U.S. lem permitted was not to same murder (1962); 1119, 1122, Unit 8 L.Ed.2d 313 S.Ct. testify). (9th Demma, ed States v. rule, reversed a we have Applying this Cir.1975). when seriously our law distort We robbery when bank conviction for trial court’s discretion on the we intrude matching man that another was excluded manifestly erroneous. be ruling to hold its description might committed have robber’s then, not re- alleged does error Even Armstrong, 621 States v. the crime. United evi- The trial. circumstantial quire a new Cir.1980). (9th later But as we F.2d strong. If one as- against Rahm dence explained: sight, if one very poor had that she sumes because the district had reversed all, scarcely see could that she assumes applying Federal [the made an error why she explain would lack of vision her was made of Mention Evidence]. Rules of counterfeit filled with 98 purse a came with pro- due nor the sixth amendment neither bills, kept genuine why she nor $100 supports Armstrong Nothing in cess. gave why she entirely separate, nor currency Federal Evidence that the Rules belief Cheok, why she nor explanation to a false constitutionally required, or that are buy bill to pass counterfeit $100 tried to all rele- requires admission Constitution undisput- tea. None of these worth of $2.99 evidence. vant would facts circumstantial converging ed and (9th Rushen, 1447, 1451 F.2d Perry by Dr. testimo- been affected denied, Cir.1983), 469 U.S. cert. if we they affected have been ny. Nor would L.Ed.2d 77 S.Ct. be under- should assume to a constitu- raising of Rahm’s claim ca- bearing psychological some on stood as it meritorious. not make level tional does eyesight. than her rather on pacity of Rahm’s it did not harmless because The error was blind irregularity, her intellectual Her mental does not consequently It affect the verdict. impres- tendency act first spots, her not call for trial and does call for new sions, possessing do not account error. of constitutional because reversal contents, seg- nor her special purse with its opportunity fair Rahm had a bills, lie nor her genuine regation of the indi- had would she bill, whatever evidence nor bank as source of about the had a fair guilt, absence of cate her buy tea. use of the bill in the case have the facts opportunity harmless the standard this court invokes jury. The does argued to Constitution misapplies it. error require of-all the evidence the admission might present. desire to a defendant Id. witness, denied a not a defense. majority’s intrusion into a district appli-

court’s discretion and the aberrational may

cation of the rule of harmless error do permanent damage

no to the structure of the They surprise

law. will those familiar with Justice, Benjamin long

the ease. Cardozo us,

ago symmetrical. reminded Palko v.

Connecticut, 319, 328, 58 S.Ct. (1937). prosecution L.Ed. just

deserves its due as much as the defen- Massachusetts, Snyder

dant. 330, 338, 54 S.Ct. 78 L.Ed. 674 duty keep

Our is “to the balance true.” Id. prosecution

Because the has received its here,

due I dissent. America,

UNITED STATES

Plaintiff-Appellee, SHABANI, Shabani,

Reshat Lee a/k/a

Defendant-Appellant.

No. 91-30224. Appeals,

United States Court of hNint Circuit.

Argued and Dec. Submitted 1992. May

Decided Bushnell, Caplan, Caplan

Alan M. & Field- Francisco, CA, ing, defendant-appel- San for lant. Loeffler, Atty.,

Karen L. An- Asst. U.S. AK, chorage, plaintiff-appellee.

Case Details

Case Name: United States v. Sharon Ann Rahm

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 11, 1993

Citation: 993 F.2d 1405

Docket Number: 92-10429

Court Abbreviation: 9th Cir.