Part of defendant's testimony properly excluded because not properly noticed as expert testimony
United States v. Bishop, 2019 WL 2414996 (10th Cir. June 10, 2019) (UT): Bishop was convicted of unlawfully manufacturing and possessing machine-guns. On appeal he argued that the district court improperly limited his right to present a defense by excluding portions of his testimony after finding it was expert testimony and not properly disclosed to the government. He also said the court’s jury instruction on the offense elements was incorrect as were its rulings on hearsay and expert testimony from the government. The panel was unpersuaded by any of his arguments.
The panel found Bishop was required to comply with Fed.R.Crim.P. 16's expert disclosure requirement. Since he did not, the trial court correctly excluded portions of his testimony. Even so, Bishop still was able to testify about the core issue in his case-his intent.
Regarding the offense elements instruction, which Bishop did not object to at trial, the panel found any error was not clear or obvious. Arguably the court’s instruction did not specifically state the government had to prove Bishop knew he was manufacturing machine guns and knew the specific physical traits that made his device a machine-gun. Nevertheless, in the instruction given, ‘knew’ implicitly modified ‘manufacturing’ and ‘machine-guns.’ To be sure a jury is properly instructed, the panel said the trial court should specifically instruct the jury regarding an accused’s knowledge of the features of his firearm that bring it within the scope of the charged offense.
Finally, the panel found the court’s evidentiary rulings were not plain error. The hearsay it admitted was cumulative to other admissible testimony. And the government’s machine-gun expert was permitted to testify about how the law applies to a certain set of facts because he provided an adequate explanation for his conclusions. That his opinion embraced the ultimate issue -that Bishop’s device was a machine gun and the device did not appear to be altered accidently - does not make it inadmissible.
The panel found Bishop was required to comply with Fed.R.Crim.P. 16's expert disclosure requirement. Since he did not, the trial court correctly excluded portions of his testimony. Even so, Bishop still was able to testify about the core issue in his case-his intent.
Regarding the offense elements instruction, which Bishop did not object to at trial, the panel found any error was not clear or obvious. Arguably the court’s instruction did not specifically state the government had to prove Bishop knew he was manufacturing machine guns and knew the specific physical traits that made his device a machine-gun. Nevertheless, in the instruction given, ‘knew’ implicitly modified ‘manufacturing’ and ‘machine-guns.’ To be sure a jury is properly instructed, the panel said the trial court should specifically instruct the jury regarding an accused’s knowledge of the features of his firearm that bring it within the scope of the charged offense.
Finally, the panel found the court’s evidentiary rulings were not plain error. The hearsay it admitted was cumulative to other admissible testimony. And the government’s machine-gun expert was permitted to testify about how the law applies to a certain set of facts because he provided an adequate explanation for his conclusions. That his opinion embraced the ultimate issue -that Bishop’s device was a machine gun and the device did not appear to be altered accidently - does not make it inadmissible.
posted by Anonymous at 1:53 PM
<< Home