Criminal Practice – Limiting Expert Testimony – Preindictment Delay

The district court shouldn’t have limited the expert’s testimony, but we found no other error.

Because the sole error was harmless, we affirmed.

Defendant applied for naturalization in 2011. But in 2013, he pleaded guilty in state court to a serious crime—that he committed in 2008. He didn’t disclose the misconduct on his naturalization application. A federal jury found Defendant guilty of knowingly concealing his criminal history to procure U.S. citizenship. Defendant challenged his federal conviction on three grounds. He first argued that the district court should have dismissed the indictment for unconstitutional preindictment delay. And even if not, he continued, it erred by admitting his state guilty plea and by excluding expert testimony related to—but not drawing conclusions about—his intent. We agreed that the district court shouldn’t have limited the expert’s testimony. But we find no other error. Because the sole error was harmless, we affirmed.

The grand jury indicted Defendant just within the 10-year statute of limitations for naturalization fraud. Defendant argued that the delay between the alleged fraud and the indictment prejudiced him because his mother, whom he asserted would have testified in his defense, passed away in the intervening years. The district court rejected Defendant’s prejudice theory as speculative because he lacked evidence to corroborate his assertions about the substance of his mother’s testimony. Defendant can’t meet his high burden. He offered only his own assertions about the substance of his mother’s testimony. Defendant failed to demonstrate the expected content of his mother’s testimony with specificity. At most, We can’t conclude on this record that Palmer’s mother’s testimony likely would have tipped the scales in his favor. Because Defendant could not show substantial actual prejudice, we did not need to consider the government’s reasons for the delay. While the government’s largely unexplained lingering wasn’t good practice, Defendant failed to make out a due process claim.

We also considered whether the district court abused its discretion by limiting a speech-language pathology expert’s testimony. The excluded testimony didn’t compel the jury to conclude that Defendant lacked the capacity to knowingly answer a particular question  falsely. Although there’s little daylight between the expert’s grade-level opinions and an opinion on Defendant’s state of mind, there is some. But the error was harmless. Defendant’s trial was about whether he understood the subject question. Defendant failed to distinguish the excluded testimony from the plethora of other evidence the jury heard about his language-processing challenges. The expert testified extensively about Defendant’s limited speech and language abilities. That evidence is as persuasive—if not more so—than what was excluded. Still, the jury found beyond a reasonable doubt that Defendant knowingly answered the subject question falsely. We could not conclude that the cumulative opinion testimony the court excluded would have likely affected the verdict. So we had to find the error harmless.

Affirmed.

United States v. Gregory Maxwell Palmer (Lawyers’ Weekly No. 001-180-25, 12 pp.) (Albert Diaz, J.) Appealed from the U.S. District Court for the Western District of North Carolina, at Charlotte (Frank D. Whitney, J.) ARGUED: Jared Paul Martin, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. U.S. Court of Appeals for the Fourth Circuit