993 F.2d 1405 (9th Cir. 1993), 92-10429, United States v. Rahm

Docket Nº:92-10429.
Citation:993 F.2d 1405
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sharon Ann RAHM, Defendant-Appellant.
Case Date:May 11, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1405

993 F.2d 1405 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,


Sharon Ann RAHM, Defendant-Appellant.

No. 92-10429.

United States Court of Appeals, Ninth Circuit

May 11, 1993

Argued and Submitted Feb. 5, 1993.

Page 1406

[Copyrighted Material Omitted]

Page 1407

[Copyrighted Material Omitted]

Page 1408

Brian P. Berson, Asst. Federal Public Defender, San Francisco, CA, for defendant-appellant.

Martha Boersch and Harry Litman, Asst. U.S. Attys., San Francisco, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before FLETCHER, REINHARDT, and NOONAN, Circuit Judges.

REINHARDT, Circuit Judge:

Sharon Ann Rahm appeals her conviction on charges of possession of counterfeit currency and of attempting to pass counterfeit currency, both in violation of 18 U.S.C. § 472. We hold that the district court erred in excluding expert testimony proffered by Rahm, and reverse and remand.


On August 3, 1991, Rahm attempted to purchase a three-dollar box of tea from the Canton Bazaar in San Francisco using a counterfeit $100 bill. The manager of the store recognized the bill as counterfeit, and called the authorities. Although the manager told Rahm more than once that there were some problems with the $100 bill, she remained at the store for fifteen minutes or more, waiting for change or the return of the bill. Rahm had twenty-five dollars in genuine cash in her possession, but she never offered to take back the $100 bill and pay for the tea with this other money. The manager testified at trial that Rahm told him she had received the $100 bill from a bank a few days before.

Responding to the manager's calls, two police officers arrived and arrested Rahm. On searching her purse, the officers recovered ninety-eight additional counterfeit $100 bills. After waiting several hours at the police station, Rahm was questioned by a Secret Service agent. She signed a statement that she had found the ninety-nine bills at a bus stop and that she thought the money was real. Although this written statement includes her asserted belief that the currency was genuine, the agent states that when questioned orally, she refused to answer whether she knew the money was counterfeit. 1

After a two-day trial, Rahm was convicted of possession of counterfeit currency and attempting to pass counterfeit currency. Although

Page 1409

she unsuccessfully sought to call an expert witness to testify in her defense, ultimately Rahm rested following the prosecution's case, without introducing any evidence in her own behalf. In argument, her counsel questioned the adequacy of the government's proof that Rahm knew the bills were counterfeit. Knowledge that the currency is counterfeit is an element of both possession and attempting to pass. Lack of knowledge was Rahm's sole theory of defense. 2

During the government's case, a Secret Service special agent testified to the quality of the counterfeit bills. He explained what distinguished the ninety-nine bills from genuine currency, identifying the presence of microdots in the printing, the absence of colored security fibers in the paper, and the identical serial numbers on multiple bills. The agent further testified that he had seen both higher-quality and lower-quality counterfeit bills successfully passed off as true currency. On cross-examination, the agent agreed that unsuspecting people have accepted, as genuine, phony bills of the same quality as those in Rahm's purse.


Prior to trial, Rahm gave notice, pursuant to Fed.R.Crim.P. 12.2(b), of her intention to introduce the testimony of Dr. Arvalea Nelson, a psychologist, as to her evaluation of Rahm. Rahm intended to offer the testimony in support of her defense that she did not know the bills were counterfeit.

In examining the defendant, Nelson administered two standardized tests, the Wechsler Adult Intelligence Scale--Revised (WAIS-R) and the Minnesota Multiphasic Personality Inventory (MMPI). The results of the WAIS-R revealed that Rahm's intelligence was roughly average; however, her scores on two subtests, Picture Completion and Picture Arrangement, were significantly below average. On both subtests, Rahm showed a "consistent tendency ... to overlook important visual details." Nelson concluded that Rahm's performance on the two subtests suggested "difficulty with visual perception." From the MMPI results, Nelson further concluded that Rahm's overall personality style might be marked by lack of insight.

The government moved in limine to exclude Nelson's testimony, disputing its relevance and arguing that Nelson's evaluation revealed no medically-recognized mental disorder or defect. The district court granted the motion in an oral ruling the day before trial. On appeal, Rahm challenges this decision to exclude Nelson's expert testimony regarding Rahm's perceptual difficulties.


Under Fed.R.Evid. 702, an expert may testify "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." In United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973), we outlined four criteria to determine the helpfulness of expert testimony: 1) qualified expert; 2) proper subject; 3) conformity to a generally accepted explanatory theory; and 4) probative value compared to prejudicial effect. Although we decided Amaral prior to the enactment of the Federal Rules of Evidence, we have continued to apply these four factors in determining the admissibility of expert testimony under Fed.R.Evid. 702. See, e.g., United States v. Miller, 874 F.2d 1255, 1266 (9th Cir.1989); United States v. Christophe, 833 F.2d 1296, 1299 (9th Cir.1987). Cf. United States v. Fleishman, 684 F.2d 1329, 1337 n. 5 (9th Cir.) (reserving issue whether Amaral survives Rule 702 enactment, but noting Sixth Circuit post-enactment adoption of Amaral factors), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982).

We have sometimes described our standard of review in the area of expert testimony as "abuse of discretion" and sometimes as "manifest error." Compare, e.g., United States v. Barker, 942 F.2d 585, 589 (9th Cir.1991) (abuse of discretion) with United States v. Sinigaglio, 942 F.2d 581, 584 (9th Cir.1991) (manifest error). On occasion, we have used both characterizations. See, e.g., United States v. Arvin, 900 F.2d 1385, 1389 (9th Cir.1990) (admission or exclusion

Page 1410

of expert testimony "is reversible only for abuse of discretion or manifest error"), cert. denied, 498 U.S. 1024, 111 S.Ct. 672, 112 L.Ed.2d 664 (1991); Miller, 874 F.2d at 1266 ("[w]e review ... decisions to admit or exclude expert testimony for abuse of discretion and reverse only for manifest error"); Christophe, 833 F.2d at 1299 ("we reverse only if the district court abused its wide discretion or committed manifest error").

We note that general adoption of the "abuse of discretion" characterization would bring this area into line with the rest of our law of evidence. See, e.g., United States v. Rohrer, 708 F.2d 429, 432-34 (9th Cir.1983) (employing general standard to address several evidentiary issues, including exclusion of proffered expert testimony). In a recent en banc opinion, we employed the "abuse of discretion" characterization without directly describing our standard of review. See United States v. Aguon, 851 F.2d 1158, 1171 (9th Cir.1988) (en banc) ("[t]here was no abuse of discretion" in excluding proffered expert testimony). The "manifest error" characterization apparently emanates from a Supreme Court decision preceding the judiciary's efforts to settle on a limited number of review characterizations. See Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962). There appears to be no practical difference between the two verbal formulae, so their vestigial co-existence serves no obvious purpose. Accordingly, it would be sensible to settle upon a uniform practice of characterizing our standard of review as "abuse of discretion" and abiding by it in all future cases. In view of Aguon, we believe it appropriate to adopt that approach, although for purposes of this opinion, it makes no difference which of the two terms--"abuse of discretion" or "manifest error"--we use.

Generally, a district court abuses its discretion when it bases its decision on an erroneous view of the law or a clearly erroneous assessment of the facts. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1990). In the specific area of expert testimony, we have held that a district court errs when it fails to exercise its discretion as the result of applying an erroneous legal principle. See United States v. Awkard, 597 F.2d 667, 670 (9th Cir.) (reversing where trial court erroneously concluded admission of expert testimony was required under appellate precedent), certs. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116, 444 U.S. 969, 100 S.Ct. 460, 62 L.Ed.2d 383 (1979); United States v. Erskine, 588 F.2d 721, 722 (9th Cir.1978) (reversing where exclusion based on erroneous conclusion that capacity to form intent irrelevant). Here, we must examine certain legal principles upon which the district court's determination appears to rest.


In announcing its ruling on the government's motion to exclude Nelson's testimony, the district court stated that it did not think that the proffered testimony met the "threshold" for admission under Rule 702. Beyond this conclusory statement, however, the court provided only the sparest of reasons for its ruling. The court did not address specifically any of the Amaral factors or indicate which it felt were not...

To continue reading