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United States v. Kubini

United States District Court, W.D. Pennsylvania

February 2, 2015

UNITED STATES OF AMERICA,
v.
GEORGE KUBINI, DOV RATCHKAUSKAS, SANDRA SVARANOVIC, AND ARTHUR SMITH, Defendants.

MEMORANDUM OPINION

NORA BARRY FISCHER, District Judge.

I. Introduction

Presently before the Court are the Government's Motion in Limine Seeking Preclusion of Polygraph Examination Results, (Docket No. 307), and Defendant Arthur J. Smith's ("Smith") Brief in Opposition thereto, [1] (Docket No. 309), related to Smith's proffer of William Barrett as a potential expert witness regarding the results of a polygraph examination he administered to Smith in June of 2012.[2] For the following reasons, the Government's Motion in Limine [307] is GRANTED. The Court further holds that Smith is precluded from presenting the proffered testimony of polygraph examiner William Barrett and the polygraph examination results. To the extent that Smith testifies at trial, he is likewise precluded from referencing the polygraph examination by Mr. Barrett in any way during his own testimony, and from testifying as to the offer that his counsel made to the Assistant United States Attorney for him (Smith) to take a polygraph examination. Moreover, no counsel shall allude to this or any other polygraph testing, in questioning, oral argument and/or in any statements in open Court.

II. Relevant Facts

The relevant facts concerning the polygraph examination of Smith conducted by Mr. Barrett were set forth in the Court's Memorandum Opinion dated May 13, 2014 holding, among other things, that Smith's Motion to Dismiss the Superseding Indictment for alleged prosecutorial misconduct during grand jury proceedings was denied. (Docket No. 263). The facts set forth in that opinion which are pertinent to the present decision are restated here.

It is uncontested that Smith's counsel set up a polygraph examination for Smith with William Barrett of Assured Polygraph Services, Inc., which occurred on June 28, 2012. (Docket Nos. 309-2; 251-11; 154-11 at 58). Mr. Barrett charged $600.00 for his Polygraph Examination and Report. ( Id. ). Mr. Barrett discloses in his curricula vitae, ("c.v."), that he earned a Bachelor of Science in criminal justice/law enforcement from Point Park University and a Master of Arts in social science from California University of Pennsylvania. (Docket Nos. 309-3; 251-12). Mr. Barrett has obtained the following certifications: certified-polygraph examiner from the Maryland Institute of Criminal Justice; certified-post convicted polygraph sexual offender testing/monitoring from the Academy for Scientific Investigative Training; certified-advanced post convicted sex offender testing, American International Institute of Polygraph; advanced certification - certified sex offender treatment and monitoring, American Polygraph Association; and advanced certification - forensic law enforcement examiner from the American Association of Police Polygraphists. ( Id. ). He is presently a chief polygraph examiner at Assured Polygraph Services, Inc.; a police officer/detective/sergeant with the Ross Township Police Department; a municipal police instructor at the Allegheny County Police Academy; and an adjunct professor at Point Park, California University of Pennsylvania and the Community College of Allegheny County. ( Id. ). Mr. Barrett touts that he has "over twenty-five years of law enforcement experience; [has conducted] [a]pproximately 3, 500 polygraph tests; issues ranging from criminal homicide to personal fidelity; [and has] [i]n excess of 3900 hours of specialized training. ( Id. ). Noticeably absent from Mr. Barrett's curricula vitae is any list of cases wherein he has testified as a polygraph expert. ( Id. ).

A "Privileged & Confidential Polygraph Report" authored by Mr. Barrett sets forth his opinions that Smith demonstrated "no deception indicated" during the polygraph he administered to him. (Docket No. 309-2). The stated reason for the examination was "alleged fraud" and the issue was "to determine whether the examinee was truthful regarding whether he knowingly and intentionally defrauded lenders and agreed or planed (sic) with Dov RATCHKAUSAS or George KUBINI to do the same." ( Id. ). The type of polygraph technique that was utilized was a ZCT (Utah). ( Id. ). Mr. Barrett recounts that "the above identified individual was administered a polygraph examination utilizing a computerized commercial polygraph instrument which indicated and recorded relative changes in blood pressure, heart rate and strength of pulse, electrodermal response, thoracic and abdominal respiratory patterns. The polygraph system was fully calibrated to published factory standards prior to the examination." ( Id. ). Mr. Barrett asked a number of unspecified control questions and then posed the following questions to which Smith responded. ( Id. ).

1. Regarding if you have engaged in fraudulent activities to defraud lenders, do you intend to answer all of these questions truthfully?
ANSWER: Yes
2. Did you ever issue checks from your escrow account to deceive lenders into mistakenly believing that borrowers were providing their own funds as down payments?
ANSWER: No
3. Did you ever conduct a real estate closing knowing that the lenders issued the loan based on fraudulent loan applications?
ANSWER: No
4. Did you ever agree with Dov Ratchkauskas or George Kubini to defraud lenders?
ANSWER: No

(Docket Nos. 309-2; 251-11).

In his "Evaluation and Conclusions, " Mr. Barrett states that the examination output produced four (4) charts including a demonstration chart. ( Id. ). From same, he conducted a forensic examination of the examinee's physiological responses by utilizing an approved scoring system. ( Id. ). He notes that this numerical analysis of the examination included "spot totals" of ", , -1" and a "grand total" of "." ( Id. ). He explains that "[a] minimum of for three (3) charts is required before a truthful conclusion can be rendered. A minimum of -6 for three (3) charts is required before a definitive deceptive conclusion can be rendered. Any score between and including -5 and is considered inconclusive." ( Id. ). Mr. Barrett opines that Smith's total score of resulted in a finding of "no deception indicated" regarding the aforementioned "issue" and that the "likelihood of him producing these charts and actually being deceptive is unlikely." ( Id. ). He concludes stating that "[a] quality control check was completed utilizing one or more independent computerized algorithm-scoring program(s), confirming [his] assessment." ( Id. ).

Smith's counsel and the AUSA engaged in lengthy pre-Indictment correspondence, much of which the Court recounted in its prior decision. ( See Docket No. 263). Smith's counsel first advised the Government that Smith had submitted to a polygraph examination in correspondence dated October of 2012. (Docket No. 251-13 at 2). Of note, in a letter dated February 15, 2013, Smith's counsel stated, among other things, that Smith proclaims his actual innocence to any fraud charges, never intended to deceive lenders, never closed a real estate transaction he believed was funded based upon a fraudulent loan application and never agreed with Ratchkauskas or Kubini to defraud lenders. (Docket No. 251-13 at 3). He quoted the entirety of Mr. Barrett's findings in the polygraph examination and attached the report and his curricula vitae to his letter, as Exhibits "A" and "B". ( Id. at 4). Smith's counsel also indicated that "Smith is prepared to submit to a polygraph on these same questions administered by a polygrapher of the government's choice at your convenience." ( Id. ). Smith's counsel next noted that Smith did not intend to defraud lenders but believed that the lenders were aware of and approved gifts of equity to the buyers. ( Id. ).

Smith then voluntarily appeared and testified before the Grand Jury on February 19, 2013.[3] (Docket No. 154-11). The parties agree that the AUSA specifically advised Smith and his counsel that the polygraph report and Mr. Barrett's c.v. would not be marked and admitted as exhibits to the grand jury proceedings. (Docket No. 251 at ΒΆΒΆ 18-19). Despite this instruction, which was repeated by the AUSA during the questioning, Smith discussed the polygraph examination many times throughout his grand jury appearance and left a copy of same for the grand jurors at the conclusion of his testimony. ( See e.g., Docket No. 154-11 at 56-58 ("Well, there is no deception in this, I have submitted myself to a polygraph test, that specifically says that there was no deception"; at 63 ("look at the polygraph test, it says specific questions, and it says there is no deception."); at 98 ("Well, I am going to leave these documents over here, this has the polygraph test, this has the letter that was sent by the lender and I guess I am not allowed to tell you anything about this. Is that right"); at 99 ("Well, just don't know why you won't share the polygraph information.")).

In the context of Smith's Motion to dismiss, which was denied by the Court, the Court did not rule on the admissibility of the polygraph examination or results at trial. (Docket No. 263). Instead, the Court held as follows:

Smith's contention that the polygraph results could be properly admitted in a judicial proceeding via expert testimony in light of Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), has no applicability in the context of his own grand jury examination. ( See Docket Nos. 152, 191, 251, 256). Again, this Court lacks the authority to enforce the Rules of Evidence in grand jury proceedings, and, even if it was permitted to do so, this Court is aware of no precedential support for the proposition that an individual who is a non-expert and the subject of a polygraph examination should be permitted to testify as to the results of same or be a competent witness to authenticate a third party's expert report. See e.g., United States v. Lee, 315 F.3d 206, 213, n.6 (3d Cir. 2003) (stating in dicta that "this Court has not adopted a per se exclusionary rule regarding polygraph evidence" and noting a split of judicial decisions on the issue of whether polygraph evidence could be admitted through expert testimony) (citations omitted). As such, AUSA Conway simply cannot be faulted for instructing Smith that the polygraph examination was inadmissible in the grand jury proceedings.

( Id. ).

Returning to the present dispute, the Government argues that the polygraph report by Mr. Barrett and any testimony related thereto should be excluded as inadmissible for the following reasons: (1) hearsay without any cited exception; (2) under Rule 403 as the probative value of such evidence is substantially outweighed by the other considerations of the Rule; (3) under Rule 608(b); (4) under Rule 702 and Daubert ; and, (5) as expert opinion evidence regarding a defendant's mental state violating Rule 704(b). (Docket No. 307). In response, Defendant does not address all of the Government's arguments and, in particular, presents no opposition to the Government's positions that the proffered testimony of Mr. Barrett recounting Smith's responses is hearsay, outside any recognized exception; that the nature of the questions set forth in the polygraph examination violate Rule 704(b); and that any testimony concerning the polygraph results should be excluded under Rule 403 as the probative value of such evidence substantially outweighs the likelihood of confusion to the jury in this complex matter. (Docket No. 309). Smith focuses on the fact that the Third Circuit has not adopted a per se rule of inadmissibility of polygraph evidence and argues that such evidence is reliable, as noted in reports he has attached to his motion; suggests that a Daubert hearing must be held prior to excluding the polygraph evidence under Rule 702 for a lack of reliability; continues that the results of the polygraph may be introduced to corroborate the truthfulness of Smith's testimony or rebut the Government's challenges to his truthful character; and maintains that if Smith testifies, he may be permitted to testify that he offered to submit to a polygraph by the Government but such overture was declined. (Docket No. 309).

III. Discussion

Having fully considered the parties' briefs on these issues, (Docket Nos. 307, 309), as well as their prior arguments in the context of the Motion to Dismiss, ( see Docket No. 263), the expert report of Mr. Barrett and his curricula vitae, which were presented to the Court initially on July 15, 2013, ( see Docket No. 154-8; 154-9), and the other reports submitted by the defense regarding the reliability of polygraph results, ( see Docket No. 309), the Court agrees with the Government that such evidence should be excluded from this trial because such evidence violates the rule against hearsay; the proffered expert testimony violates Rule 704(b); and alternatively, all such evidence is excludible after a careful balancing of the factors set forth in Rule 403. To this end, the Court rules that all of the following are inadmissible: Mr. Barrett's proffered testimony, including his credentials, examination and report; the results of his polygraph examination of Smith; any testimony about Smith taking a polygraph examination; and his counsel's offer for Smith to submit to another polygraph examination by the Government. Concurrently, any argument related to same is barred.

A. District Court's Gatekeeper Role/Discretion in Holding Daubert Hearing

Prior to addressing the merits of the Government's Motion, the Court will briefly discuss Smith's request that the Court convene a Daubert hearing at which he has offered to produce Mr. Barrett to testify so that the factual record can be more fully developed in support of the reliability of his proffered opinion testimony. (Docket No. 309). The Government opposes the request for a hearing, arguing that the proffered testimony is otherwise inadmissible under several other Rules of Evidence such that the hearing would serve no purpose. (Docket No. 307).

This Court understands its important gatekeeper duty to fully evaluate proffered expert opinions to ensure that they are both relevant and reliable before permitting such opinions to be presented to a jury, see Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)), and has excluded proffered experts from testifying in cases where the Court found that the three requirements set forth in Rule 702 were not met, i.e., "qualifications, " "reliability" and "fit, " see Pritchard v. Dow Agro Sciences, 705 F.Supp.2d 471 (W.D. Pa. Mar. 11, 2010), aff'd, 430 F.Appx. 102 (3d Cir. 2011).

District courts have considerable latitude in deciding how to perform their Daubert gatekeeping function. [ Kumho Tire v. Carmichael, 536 U.S. 137, 152 (1999)]. Trial judges have "the discretionary authority needed both to avoid unnecessary reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises." Id. The Third Circuit has held that district courts are not required to hold Daubert hearings, but may follow the course they see fit to determine the reliability of expert testimony. Oddi v. Ford Motor Company, 234 F.3d 136, 154 (3d Cir. 2000) (citing United States v. Downing, 753 F.2d 1224, 1241 (3d Cir. 1985)).

United States v. Phung, 127 F.Appx. 594, 597 (3d Cir. 2005); see also Downing, 753 F.2d at 1241 ("we will not prescribe mandatory procedures that district courts must follow in every case involving proffers of scientific evidence."). A Daubert hearing is not necessary if the Court determines, in an exercise of its broad discretion to make evidentiary rulings, that the record on file including expert reports, curricula vitae and any other submissions provide a sufficient factual foundation upon which to make a ruling on the admissibility of the proffered opinion evidence. See id. Further, a Daubert hearing is not necessary where the proffered expert evidence is deemed to be inadmissible by the Court under a separate Rule of Evidence. See United States v. Booth, 309 F.3d 566, 573 (9th Cir. 2002) ("Having excluded the testimony under Rule 704(b), the district court was not required to pursue the admissibility of the testimony under Daubert "); see also United States v. Korbe, 2010 WL 4639042 (W.D. Pa. Nov. 8, 2010) (McVerry, J.) (precluding proffered expert testimony concerning reasonableness of defendant's actions under Rule 704(b) without conducting hearing). Indeed, even reliable expert evidence meeting all other requirements of Rule 702 and Daubert must still comport with Rule 704(b), which expressly limits the admissibility of expert opinion evidence in criminal cases, and Rule 403. See United States v. Watson, 260 F.3d 301, 308 (3d Cir. 2001) (precluding expert testimony under Rule 704(b)); see also United States v. Bennett, 161 F.3d 171, 182 (3d Cir. 1998) ("the trial judge has broad discretion to admit or exclude expert testimony, based upon whether it is helpful to the trier of fact.").

In short, while it is true that expert opinion testimony should not be admitted by the Court in a criminal trial without the Court first determining that the scientific theory passes muster and also that the proffered expert opinion surmounts the reliability hurdle required under Daubert and Rule 702, the Court always retains the discretion to determine when deeper inquiries into scientific theory and the reliability of methods utilized by the challenged expert are necessary. See e.g., Pritchard, 705 F.Supp.2d 471, aff'd, 430 F.Appx. 102. The Court is also directed to "provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay." FED. R. CRIM. P. 2. As is discussed below, the Court believes that there are ample reasons why the proffered expert testimony of Mr. Barrett should not be admitted into evidence in the upcoming criminal trial, all of which are fully supported by persuasive caselaw analyzing similar issues. It is also this Court's opinion that exclusion of the proffered evidence is inevitable and would be ordered regardless if a Daubert hearing was convened. Accordingly, the Court exercises its discretion and denies the request for a Daubert hearing in this case because it would cause unjustifiable expense and delay in these proceedings.

With that said, the general reliability of polygraph evidence is reasonably questioned by the Government. "The common form of polygraph test measures a variety of physiological responses to a set of questions asked by the examiner, who then interprets these physiological correlates of anxiety and offers an opinion to the jury about whether the witness-often, as in this case, the accused-was deceptive in answering questions." United States v. Scheffer, 523 U.S. 303, 313 (1998). Law enforcement has long recognized the utility of polygraph examinations for investigative and other administrative purposes, such as personnel screening. Id. at n.6; see also Docket No. 309-5, U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division, Use of Polygraph Examinations in the Department of Justice (Sept. 2006). Similarly, courts have approved the use of polygraph examinations for the purpose of ensuring compliance with court ordered conditions to the extent that probationers and supervised releasees are often ordered to submit to a polygraph examination as a condition of release. See e.g., Lee, 315 F.3d at 209. For example, polygraph conditions are typically ordered in cases of sex offenders. Id.

A few courts have admitted polygraph evidence at trial under Daubert but those cases are rare and non-binding on this Court. See e.g., United States v. Galbreth, 908 F.Supp. 877 (D.N.M. Oct. 4, 1995) (admitting polygraph evidence in tax evasion trial). Post- Daubert, the Supreme Court has held that Military Rule of Evidence 707, which makes polygraph evidence inadmissible in court-martial proceedings does not unconstitutionally abridge the right of accused members of the military to present a defense. Scheffer, 523 U.S. at 305. The Court of Appeals for the Third Circuit has not adopted a per se rule of exclusion of polygraph examination evidence at trial but has recognized the split in authority among courts about whether polygraph evidence could be properly admitted. See Lee, 315 F.3d at n.6 (citing cases). It is not debatable that a survey of the relevant caselaw results in a finding that the vast majority of cases preclude the admission of polygraph examination results and some circuits continue to maintain a per se rule against the admission of such evidence.[4]

The parties have not pointed the Court to any case within the Third Circuit which admitted polygraph evidence in a criminal trial and the Court has not located any reported decisions in this Circuit where such evidence was admitted. (Docket Nos. 307, 309). In United States v. Johnson, 816 F.2d 918, 923 (3d Cir. 1987), the Court of Appeals held that the District Court did not impermissibly restrict the defendant's ability to cross-examine witnesses concerning the voluntariness of his confession by advising defense counsel that such challenges may open the door to the admission into evidence of the fact that he had made the confession during a polygraph examination. But, during the trial of the Johnson case, defense counsel avoided cross-examining witnesses about the voluntariness of the confession and the defendant did not testify. Id. Hence, the polygraph evidence was not ...


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