United States v. Bob Newton Rushing , 388 F.3d 1153 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 01-3077EA, 01-3082EA, 01-3266EA, 01-3428EA, 01-3526EA
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No. 01-3077EA *
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United States of America, *
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Appellee, *
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v. *
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Bob Newton Rushing, *
* On Appeal from the United
Appellant. * States District Court
* for the Eastern District
________________________ * of Arkansas.
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Nos. 01-3082EA, 01-3266EA * [PUBLISHED]
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United States of America, *
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Appellee/Cross-Appellant, *
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v. *
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David Jewell Jones, *
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Appellant/Cross-Appellee. *
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Nos. 01-3428EA, 01-3526EA *
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United States of America, * On Appeal from the United
* States District Court
Appellee/Cross-Appellant, * for the Eastern District
* of Arkansas.
v. *
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Tony Ma, also known as Shiu Yun Ma, *
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Appellant/Cross-Appellee. *
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Submitted: August 3, 2004
Filed: November 18, 2004
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Before McMILLIAN, RICHARD S. ARNOLD,1 and MELLOY, Circuit Judges.
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PER CURIAM.
This case returns to us following our remand to the District Court for further
review of two issues. In United States v. Rushing, 313 F.3d 428 (8th Cir. 2002), we
asked the District Court2 to determine whether certain expert testimony, excluded at
trial, was properly excluded under Daubert v. Merrell Dow Pharm., 509 U.S. 5791
The Honorable Richard S. Arnold died on September 23, 2004. This opinion
is being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E.
2
The Hon. George Howard, Jr., United States District Judge for the Eastern and
Western Districts of Arkansas.
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(1993), and Fed. R. Evid. 702. Second, we asked the District Court to explore the
defendants’ allegation that the prosecution violated Brady v. Maryland, 373 U.S. 83(1963), and Giglio v. United States, 405 U.S. 150 (1972), by withholding evidence
of an agreement with a government witness. After considering these issues, the
District Court certified its findings and conclusions to this Court for review, and we
affirm.
The issues presented stem from the defendants’ convictions of various offenses
involving the immigration of two Chinese women into the United States. The
prosecution’s case at trial was built on the theory that the defendants - David Jewell
Jones, Tony Ma, and Bob Rushing - illegally assisted the women in entering this
country so that Mr. Jones could engage in sexual relations with them. At trial one of
the women, Ms. Zhong, testified for the government about her sexual relationship
with Mr. Jones. A more complete statement of the facts of this case can be found in
our previous opinion, Rushing, 313 F.3d at 429-32. It is important to keep in mind
that the crimes charged had to do with immigration fraud - whether defendants
conspired with each other to make false statements to assist the entry of the two
women into the United States.
I.
We first examine the issue of whether the testimony of the defendants’ expert
witness was properly excluded at trial. Ms. Zhong testified that she and Mr. Jones
had sexual intercourse about once a week over a time period of approximately one
year. The defense refuted Ms. Zhong’s claim, asserting that Mr. Jones was incapable
of sexual relations because he is impotent. The defendants also sought to discredit
Ms. Zhong through the testimony of an expert witness, Paul Gubbins, who holds a
Doctor of Pharmacy degree.
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The proffered testimony of Dr. Gubbins was essentially that the medical
histories of Ms. Zhong and Mr. Jones indicated that they did not engage in a sexual
relationship as described by Ms. Zhong. Dr. Gubbins would have testified that Ms.
Zhong was infected with Hepatitis B and that, due to the prevalence of this disease
in China, she was most likely infected at the time she entered this country. According
to Dr. Gubbins, if Ms. Zhong and Mr. Jones had engaged in a year-long sexual
relationship, then, more likely than not, Mr. Jones would have contracted Hepatitis
B. Because Mr. Jones was not infected, this expert testimony would have supported
the defense position that no sexual relationship occurred while undermining the
prosecution’s case.
The District Court excluded Dr. Gubbins’s testimony based on Fed. R. Evid.
403, finding that it was collateral to the issue of whether the defendants had
committed immigration fraud. Upon review of that finding we disagreed, holding that
the evidence would have been highly probative, as the government alleged that Mr.
Jones’s sexual gratification was the defendants’ motive to bring Ms. Zhong into the
United States. Rushing, 313 F.3d at 434-35. The government, however, argued that
Dr. Gubbins’s testimony was nevertheless excludable because it was unreliable under
Daubert. We therefore remanded the case so that the District Court could address the
reliability issue and determine whether the evidence was properly excluded. Id. at
435.
Under Federal Rule of Evidence 702, expert testimony may be admitted only
“if (1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.” In Daubert, the Supreme
Court charged trial courts with the responsibility of screening such testimony for
reliability by assessing the expert’s reasoning and methodology. Peitzmeier v.
Hennessy Indus., Inc., 97 F.3d 293, 296-97 (8th Cir. 1996) (citing Daubert, 509 U.S.
at 591-93). Expert testimony should not be admitted when it is speculative, it is not
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supported by sufficient facts, or the facts of the case contradict or otherwise render
the opinion unreasonable. Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039,
1056-57 (8th Cir. 2000) (citations omitted). We review the exclusion of expert
testimony for an abuse of discretion. Peitzmeier, 97 F.3d at 296.
On remand, the District Court found that Dr. Gubbins’s testimony was not
admissible because it was not based upon sufficient facts or data, it was not the
product of reliable methods, and he applied his criteria using assumptions contrary
to the established facts of the case. Specifically, Dr. Gubbins admitted that in
forming his opinion, he failed to take into account that there was no information
about Ms. Zhong’s level of infectiousness during the period of her sexual relationship
with Mr. Jones; that Hepatitis B progresses differently in women than it does in men;
and that it would be less likely for Mr. Jones to have acquired the disease from Ms.
Zhong than it would have been for a woman from a man. Dr. Gubbins further stated
that he could not say with any degree of scientific certainty that it is highly likely that
a man would have contracted Hepatitis B from a woman. In addition, Dr. Gubbins
stated that in forming his opinion as to the risk of infection, he assumed that Mr.
Jones and Ms. Zhong had sex two to three times per week, contrary to Ms. Zhong’s
record testimony that she and Mr. Jones had sex about once a week.
Furthermore, the government presented its own expert witness, Harold
Margolis, M.D., of the Centers for Disease Control, who disagreed with Dr.
Gubbins’s assessment of the risk of infection. Dr. Margolis testified that Mr. Jones
had only about a ten per cent. chance of infection over the course of a year. While
the fact that the government would have presented an opposing expert is not by itself
a sufficient reason to exclude Dr. Gubbins’s testimony, it was a factor that the District
Court properly considered in its assessment. See Daubert, 509 U.S. at 580 (holding
that a federal court’s inquiry into the reliability of expert testimony is flexible and
may depend upon a variety of considerations). The District Court’s analysis and
findings as to this issue are extensive and well-reasoned. We see no abuse of
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discretion in its conclusion that the defendants’ proffered expert testimony was
unreliable and thus inadmissible.
II.
We now address the defendants’ contention that the prosecution violated Brady
and Giglio by withholding evidence of an agreement with a government witness. The
backdrop of events relevant to this issue takes us back to Ms. Zhong’s involvement
with Mr. Jones.
Ms. Zhong initially reported, in statements to law-enforcement officers and the
Immigration and Naturalization Service (INS), that Mr. Jones had raped her. She
later changed her story, admitting that their sexual relationship was consensual.
Consequently, Ms. Zhong was indicted on March 7, 2001, for making a false
statement to law-enforcement officers. In May of 2001, Ms. Zhong was compelled
to testify, under a grant of use immunity, about her sexual relationship with Mr. Jones
at his trial for immigration fraud. During the trial, an Assistant United States
Attorney told the jury that Ms. Zhong would be prosecuted for her prior false
statements, imprisoned, and then deported. Ms. Zhong also testified that she
understood that the government intended to deport her. Mr. Jones was then
convicted.
After the Jones trial, Ms. Zhong eventually pleaded guilty to the false-statement
charge. The plea agreement provided that the government would recommend
leniency in sentencing and that, if Ms. Zhong sought relief from deportation through
asylum, the U.S. Attorney would inform the presiding judge that Ms. Zhong
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cooperated with the government in connection with another case.3 This situation
seemed to be a change of position by the government with no obvious explanation.
The defendants now claim that before the Jones trial the prosecution had
actually made an agreement with Ms. Zhong not to deport her in exchange for her
testimony, and then intentionally concealed that agreement. At trial, Ms. Zhong’s
credibility was central to the government’s case. If she were testifying against Mr.
Jones in exchange for leniency, the defense would be entitled to this information and
the opportunity to cross-examine her. The defendants’ charge is thus quite serious,
as such misconduct would not only run afoul of Brady and Giglio, but would be a
gross ethical violation as well.
The government has a duty to disclose to a defendant any evidence in its
possession that is material and favorable to the defense. Brady, 373 U.S. at 87. In
Giglio, the Supreme Court extended this responsibility, requiring disclosure of
agreements or understandings between the government and a witness for leniency in
exchange for testimony. Giglio, 405 U.S. at 154-55. These rules are designed to
protect a defendant’s fundamental right to fairness under the Due Process Clause of
the Fifth Amendment, for when the fate of the accused turns on the credibility of a
witness, the prosecutor’s failure to disclose a potential motive for bias or
untruthfulness may result in grave injustice. The government’s apparent change of
position regarding Ms. Zhong’s prosecution and deportation after the trial concerned
us and prompted our remand of the issue to the District Court for further exploration.
See Rushing, 313 F.3d at 436.
3
Ms. Zhong testified against Lucy Mitchell, who had been indicted as a co-
defendant of Ms. Zhong in the false-statement charge. United States v. Mitchell,
4:01-CR-00048 (E.D. Ark. Dec. 16, 2002). Ms. Mitchell aided Ms. Zhong in falsely
reporting that Mr. Jones had raped her.
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We review a District Court’s factual findings for clear error. United States v.
Williams, 346 F.3d 796, 798 (8th Cir. 2003). On remand, the District Court found
that before the Jones trial the prosecution did make an offer to Ms. Zhong for
leniency if Ms. Zhong would cooperate with the prosecution. Ms. Zhong rejected that
offer, however, and no plea agreement was reached. Giglio does not require
disclosure of rejected plea offers; the duty to disclose is dependent upon the existence
of an agreement between the witness and the government. Collier v. Davis, 301 F.3d
843, 849-50 (7th Cir. 2002); Alderman v. Zant, 22 F.3d 1541, 1555 (11th Cir. 1994).
Thus, when Ms. Zhong testified against Mr. Jones, no plea agreement was in place,
and the government had no duty to disclose the rejected offer.
Further, the District Court found that the government continued its efforts to
prosecute Ms. Zhong after the Jones trial. In September 2001, the government
reached its plea agreement with Ms. Zhong. At that point, the government had
reached the conclusion that, under the United States Sentencing Guidelines, Ms.
Zhong would not be subject to incarceration whether she pleaded guilty or went to
trial. Thus, while she was sentenced to one year of probation, not incarceration, this
sentence reflected the range set forth by the Sentencing Guidelines, not a
prosecutorial decision to show Ms. Zhong leniency.
Finally, the plea agreement provided that if Ms. Zhong chose to seek relief
from deportation by applying for asylum, the government would advise the presiding
judge that she had testified for the government in Mitchell for whatever value that
court would give it. The important point here is that the government did not change
its position regarding Ms. Zhong’s deportation. The government consistently
maintained that she should be deported and initiated deportation proceedings against
her. The Assistant United States Attorney anticipated, however, that Ms. Zhong
would seek relief in the form of asylum and thus agreed to advise the judge in the
asylum proceedings that Ms. Zhong had provided some assistance to the government
in the Mitchell case. Because her testimony in Mitchell was a matter of public record,
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this information could have been presented to the presiding judge in any event - the
U.S. Attorney’s minimal assistance to Ms. Zhong on this point was simply a matter
of basic fairness to her. Moreover, while the U.S. Attorney prosecuted Ms. Zhong
and moved to deport her, the final decision to deport her or grant her asylum rested
with the United States Immigration and Customs Enforcement, a separate
governmental agency. In sum, there is no evidence that the assistant U.S. Attorney
involved in this case made any sort of undisclosed agreement with Ms. Zhong to
secure her testimony against Mr. Jones or otherwise acted in bad faith.
For the reasons stated herein, we affirm the judgment of the District Court.
III.
In our original decision in this case, we reserved for later determination
sentencing issues raised by Mr. Jones in his appeal and in a cross appeal by the
government. We indicated that we would decide those sentencing issues if the
convictions in this case were ultimately affirmed. Since we are now affirming the
convictions, we need to decide those sentencing issues.
We have carefully considered each of the issues raised by the parties and find
no error by the district court. We do not believe that an extended discussion of the
sentencing issues is necessary and summarily affirm. See 8th Cir. Rule 47B.
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