United States of America v. Li

Filing 145

ORDER denying 109 motion to exclude defendant's expert. Signed by Judge David G Campbell on 12/3/2013.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Plaintiff,

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ORDER

v.

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No. CV12-00482-PHX-DGC

Grace Xunmei Li,
Defendant.

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Before the Court is a motion by Plaintiff the United States of America to exclude

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the expert witness of Defendant Grace Xunmei Li.

Defendant’s request for oral

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argument is denied because the issues have been fully briefed and oral argument will

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not aid the Court’s decision. See Fed. R. Civ. P. 78(b); Partridge v. Reich, 11 F.3d

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920, 926 (9th Cir. 1998). For the reasons set forth below, the Court will deny the

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motion.

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I.

Background.

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In seeking revocation of Li’s citizenship, the government contends that Li made

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false oral representations during her April 18, 2005 naturalization interview with

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United States Citizenship and Immigration Services (“USCIS”) officer Que-Huong

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Nguyen that mirrored responses on her N-400 Application for Naturalization. Doc. 16

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at ¶ 24; Doc. 20 at ¶ 24. Li denies that she made any oral false statement during the

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interview as required to satisfy the false “testimony” requirement for revocation of

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citizenship under 8 U.S.C. § 1101(f)(6). Doc. 20 at ¶ 47; Kungys v. United States,

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485 U.S. 759, 780 (1988).1 Ms. Nguyen has represented that she does not recall the

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interview with Li. Doc. 109-1 at 7.

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In her defense, Li intends to offer the expert testimony of Robert Mautino, an

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immigration and naturalization attorney. Doc. 109-1. Mr. Mautino will testify “about

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practices and procedures followed by Citizenship and Immigration Services

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adjudicators during naturalization interviews,” and “about the materiality of alleged

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misstatements by Ms. Li during her naturalization application process and whether

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those misstatements resulted in her procuring an immigration benefit that she otherwise

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would not have received.” Doc. 109-1 at 5.

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Mr. Mautino’s opinions are based on his background and experience in

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practicing immigration law, and pleadings and documents supplied by Li’s counsel. Id.

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According to Mr. Mautino’s estimates, he has represented between 800 and 1,000

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applicants in naturalization cases in his career, each of which included at least one

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interview with a naturalization examiner or other authorized agent. Id.

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The government seeks to have Mr. Mautino’s testimony excluded for two

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reasons. First, the government argues that Mr. Mautino’s testimony regarding the

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practices and procedures of USCIS adjudicators during naturalization interviews is not

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based on reliable principles and methods.

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testimony about the materiality of any statements that Li may have made is

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impermissible legal opinion that encroaches on the province of the court.

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II.

Second, it argues that Mr. Mautino’s

Discussion.

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Federal Rule of Evidence 702 provides that “[i]f scientific, technical, or other

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specialized knowledge will assist the trier of fact to understand the evidence or to

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determine a fact in issue, a witness qualified as an expert by knowledge, skill,

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experience, training, or education, may testify thereto in the form of an opinion or

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Li did plead guilty to False Statements Relating to Naturalization in violation of
18 U.S.C. § 1015(a) and admitted to false statements and omissions in her N-400
application. Doc. 25-3 at 3.
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otherwise.”

If expert testimony lacks either reliability or relevance, it must be

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excluded. Cooper v. Brown, 510 F.3d 870, 943 (9th Cir. 2007).

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A.

Reliability of Expert Methodology.

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The government argues that Mr. Mautino’s testimony regarding USCIS practice

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and procedures during naturalization interviews lacks a sound scientific basis because it

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is based on anecdotal methods, rather than any formal or informal survey. Doc. 109 at

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7. This argument fails under well-established precedent.

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Experts are permitted wide latitude to offer opinions under Rule 702. Daubert

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v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993). When an expert is testifying

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on a non-scientific subject based on his or her experience in a specialized area, the

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exacting standards of Daubert “simply are not applicable to this kind of testimony,

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whose reliability depends heavily on the knowledge and experience of the expert,

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rather than the methodology or theory behind it.” United States v. Hankey, 203 F.3d

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1160, 1169 (9th Cir. 2000) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,

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149 (1999) (“Engineering testimony rests upon scientific foundations, the reliability of

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which will be at issue in some cases . . . . In other cases, the relevant reliability

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concerns may focus upon personal knowledge or experience.”)).

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The Court must nonetheless “make some kind of reliability determination to

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fulfill its gatekeeping function.” Hangarter v. Provident Life & Acc. Ins. Co., 373

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F.3d 998, 1018 (9th Cir. 2004). Mr. Mautino’s qualifications and experience as stated

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in his affidavit satisfy the Court that he has first-hand experience in an area that is

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relevant to the issues in the case. Mr. Mautino estimates that he has assisted clients in

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up to 1,000 naturalization cases over the 30-year course of his career, all of which

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included a naturalization interview.

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recognized by the California State Bar as a specialist in immigration and nationality

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law, and has served as both Chairman and on the Board of Governors of the American

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Immigration Lawyers’ Association, a nationally recognized legal association devoted to

Doc. 109-1 at 5.

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Mr. Mautino has been

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this area of law. Id. at 11. The Court is satisfied that Mr. Mautino has the experience

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and qualifications to opine on issues related to naturalization interviews, and cannot

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conclude that his opinions should be excluded as unreliable. The government will have

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a full and fair opportunity to cross-examine Mr. Mautino at trial and challenge the

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credibility of his opinions.

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B.

Impermissible Legal Opinion.

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It is well-established that “an expert witness cannot give an opinion as to her

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legal conclusion, i.e., an opinion on an ultimate issue of law.” Nationwide Transp.

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Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 2008) (emphasis in

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original). The Court cannot conclude, however, that materiality is purely a question of

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law.

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materiality to misrepresentations or omissions and the context in which they were

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made. Expert testimony can prove helpful in making this determination.

Juries often decide materiality, applying the appropriate legal definition of

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In addition, concerns about undue expert influence are diminished in a bench

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trial. The Court generally is in a better position than a jury to assess the credibility and

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reliability of an expert’s testimony. United States v. Hall, 969 F.2d 1102, 1110 (D.C.

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Cir. 1992) (“The perceived danger of indiscriminate admission of expert testimony is

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that ‘because of its aura of special reliability and trust’ it can unduly bias the

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factfinder.”).

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expert’s testimony.” Id. at 1102.

The Court is not in danger of being “swayed by the ‘aura’ of the

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Even if the Court accepted Mr. Mautino’s testimony as fact testimony, it is

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relevant to the Court’s assessment of the processes and procedures employed by

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USCIS. This is particularly true given that the government has identified Mr. Alan

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Susoeff, a Supervisory Immigration Services Officer and the supervisor to Ms. Nguyen

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at the time of Li’s interview, to testify to the practices and procedures of USCIS.

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Doc. 120 at 11. The Court must determine whether the alleged statements by Li “had

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a natural tendency to influence the decisions of the Immigration and Naturalization

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Service.” Kungys, 485 U.S. at 772. Legal and practical expertise from both Li and

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the government’s witness will assist the Court in this assessment, and the Court

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anticipates that Mr. Mautino’s testimony as to the import of the alleged misstatements

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will be met by the government witness’s testimony to the same.

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IT IS ORDERED that the government’s motion to exclude Defendant’s expert
(Doc. 109) is denied.
Dated this 3rd day of December, 2013.

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