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United States v. Guirguis

United States District Court, D. Hawaii

November 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
WAGDY A. GUIRGUIS (01), MICHAEL H. HIGA (02), Defendants.

          ORDER DENYING ADMISSION OF DEFENDANT GUIRGUIS' PROPOSED EXHIBITS 1060, 1061, 1064, 1065, AND 1066 and LIMITING THE TESTIMONY OF EXPERT WITNESS GARRET HOE

          HELEN GILLMOR, UNITED STATES DISTRICT JUDGE

         Defendant Guirguis sought to admit Exhibits 1060, 1061, 1064, 1065, and 1066. Exhibits 1060 and 1061 are summary charts prepared by his expert witness, Garret Hoe, a certified public accountant. Exhibits 1064-66 are unfiled tax returns that Defendant Guirguis signed on October 19, 2018, the day of the Court's Final Pretrial Conference.

         Defendant Guirguis argued the five exhibits were relevant to the charges against him for allegedly filing false tax returns.

         The Government opposed the admission of all five exhibits.

         The Court held a hearing on November 8, 2018, before Defendant Guirguis' expert was called to testify. (ECF No. 144). At the hearing, Defendant Guirguis withdrew his request to admit the proposed exhibits 1060, 1061, 1064, 1065, and 1066.

         The Court held voir dire with Defendant Guirguis' expert, Mr. Hoe. The Court permitted Mr. Hoe to testify before the jury but limited the scope of his testimony.

         This Order contains the written basis for the oral rulings rendered on November 8, 2018.

         STANDARD OF REVIEW

         Relevance

         Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Fed.R.Evid. 401. Irrelevant evidence is not admissible. Fed.R.Evid. 402; United States v. Whistler, 139 Fed.Appx. 1, 2 (9th Cir. July 5, 2005).

         Probative evidence may be inadmissible if it is substantially outweighed by prejudice, including the danger of confusing the issues, misleading the jury, or undue delay. Fed.R.Evid. 403.

         Defendant's Disclosure Of Expert Witness

         Federal Rule of Criminal Procedure 16(b)(1)(C) requires the defendant to provide the Government with a written summary of any testimony the defendant intends to use as evidence at trial pursuant to Fed.R.Evid. 702, 703, or 705. The summary must describe the witness's opinions, the bases and reasons for these opinions, and the witness's qualifications. Fed. R. Crim. P. 16(b)(1)(C).

         Failure to comply with Rule 16 disclosure requirements may result in the exclusion of the proffered evidence. Fed. R. Crim. P. 16(d).

         Expert Witness Opinion Testimony

         Federal Rule of Evidence 702 governs the admissibility of expert opinion testimony. Expert testimony assists the trier of fact when it provides information beyond the common knowledge of the trier of fact. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591 (1993).

         An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Fed.R.Evid. 703. The expert's opinion may not rely upon unsubstantiated, erroneous, or speculative facts or data. United States v. Santini, 656 F.3d 1075, 1078-79 (9th Cir. 2011).

         Expert witnesses must not state an opinion about whether the defendant did or did not have the requisite mental state to commit the charged offenses. Such matters ...


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