U.S. v. Gilliard, 96-9459

• Citation: 133 F.3d 809
• Decision Date: 21 January 1998
• Docket Number: No. 96-9459,96-9459
• Parties: 48 Fed. R. Evid. Serv. 832, 11 Fla. L. Weekly Fed. C 975 UNITED STATES of America, Plaintiff-Appellee, v. Fred Emerson GILLIARD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 809

133 F.3d 809

48 Fed. R. Evid. Serv. 832, 11 Fla. L. Weekly

Fed. C 975

UNITED STATES of America, Plaintiff-Appellee, v. Fred Emerson GILLIARD, Defendant-Appellant.

No. 96-9459.

United States Court of Appeals, Eleventh Circuit.

Jan. 21, 1998.

Michael C. Garrett, Garrett & Gilliard, P.C., Augusta, GA, for Defendant-Appellant.

Charles W. Daniels, Freedman, Boyd, Daniels, Hollander, Guttman & Goldberg, Albuquerque, NM, amicus curiae for The National Assoc. of Criminal Defense Lawyers.

Jeffrey J. Buerstatte, Asst. U.S. Atty., Savannah, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before ANDERSON and BLACK, Circuit Judges, and MOORE ^*, Senior District Judge.

BLACK, Circuit Judge:

The sole issue in this appeal is whether the district court erred when it excluded evidence of a polygraph examination offered into evidence by Appellant Fred Emerson Gilliard. The district court excluded the polygraph evidence under Fed.R.Evid. 702 and, alternatively, under Fed.R.Evid. 403. Gilliard contends that the district court's ruling constituted an abuse of discretion. We hold that the district court did not abuse its discretion, and affirm the judgment entered by the district court.

I. BACKGROUND

On March 8, 1996, a grand jury indicted Gilliard on 100 counts of submitting false claims to Medicare and Medicaid, in violation of 18 U.S.C. § 287, while he was chief executive officer of Penn-Teck Diagnostics, Inc. (Penn-Teck); 1 count of obstructing justice in violation of 18 U.S.C. § 1503 by influencing a witness to make false statements pertaining to the Medicare and Medicaid claim submissions; and 1 count of making false declarations to a grand jury in violation of 18 U.S.C. § 1623.

On June 24, 1996, Gilliard submitted to a polygraph examination administered by Charles R. Honts, Ph.D. (the Honts Polygraph). ¹ Dr. Honts is an associate professor of psychology at Boise State University whose training is in psychophysiology, the science of how the mind and body interact. The Honts Polygraph consisted of four relevant questions:

1. While you were employed by Penn-Teck, did you develop a scheme designed to defraud Medicare or Medicaid through the use of incorrect billing codes?

2. When the incorrect billings were filed with Medicare or Medicaid, did you know that they were incorrect?

3. While you were employed by Penn-Teck, did you deliberately cause incorrect billings to be filed with Medicare or Medicaid?

4. To the best of your knowledge, were the incorrect billings to Medicare and Medicaid made unintentionally?

Gilliard denied any wrongdoing. Dr. Honts scored the examination using two different methods, and concluded that the results indicated that Gilliard was not being deceptive when he answered the relevant questions. Gilliard notified the Government of the results of the Honts Polygraph. The Government never conducted its own polygraph examination of Gilliard, but instead moved for the exclusion of the Honts Polygraph evidence.

On July 11, 1996, the magistrate judge held an evidentiary hearing, and on August 14, 1996, he issued an order holding the Honts Polygraph evidence to be admissible. The Government appealed that ruling to the district court. The district court recognized that under this Court's en banc decision in United States v. Piccinonna, 885 F.2d 1529 (11th Cir.1989), polygraph evidence is no longer per se inadmissible. After performing the analysis required by our holding in Piccinonna, the district court sustained the Government's objection and held that the Honts Polygraph evidence was inadmissible under Fed.R.Evid. 702, as well as under Fed.R.Evid. 403.

The jury convicted Gilliard on all 102 counts of the indictment, and the district court sentenced Gilliard to imprisonment. Gilliard now appeals the exclusion of the Honts Polygraph evidence.

II. ANALYSIS

Prior to this Court's en banc decision in Piccinonna, polygraph evidence was per se inadmissible in this Circuit. Piccinonna, 885 F.2d at 1531-32. In Piccinonna, however, this Court concluded that the per se rule was unwarranted in light of the advances that had been made in the field of polygraphy and the lack of evidence that juries are unduly swayed by polygraph evidence. Id. at 1535. Specifically, we held that a district court can admit polygraph evidence in two circumstances: (1) when the parties stipulate in advance as to the circumstances of the test and as to the scope of its admissibility; and (2) to impeach or corroborate the testimony of a witness at trial. Id. at 1536. We were careful to note, however, that neither modification to the per se exclusionary rule "preempt[s] or limit[s] in any way the trial court's discretion to exclude polygraph expert testimony on other grounds under the Federal Rules of Evidence." Id.

As the parties did not stipulate to the circumstances and admissibility of the Honts Polygraph, the issue here is whether the Honts Polygraph evidence should have been admitted to corroborate Gilliard's trial testimony. There are three prerequisites to the admission of polygraph evidence for the purpose of corroborating the trial testimony of a witness: (1) "the party planning to use the evidence at trial must provide adequate notice to the opposing party that the expert testimony will be offered;" (2) the opposing party must be given a "reasonable opportunity to have its own polygraph expert administer a test covering substantially the same questions;" and (3) the polygraph administrator's testimony must be admissible under the Federal Rules of Evidence governing the admissibility of corroboration testimony. Id. Again, however, even if a party satisfies these prerequisites, a district court can exercise its discretion to exclude the polygraph evidence under other applicable rules of evidence. Id.

In this case, the district court assumed that Gilliard satisfied the three prerequisites to the admission of the polygraph testimony for the purpose of corroborating Gilliard's trial testimony. ² The court concluded, however, that the evidence was not admissible expert testimony under Fed.R.Evid. 702 and, alternatively, that the evidence was inadmissible under Fed.R.Evid. 403.

A. Rule 702

1. Standard of Review

A district court's decision to admit or exclude expert testimony under Rule 702 is reviewed for abuse of discretion. General Elec. Co. v. Joiner, --- U.S. ----, ----, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997).

2. Daubert v. Merrell Dow Pharmaceuticals, Inc.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court set out a two-prong analysis for determining whether expert scientific testimony is admissible under Fed.R.Evid. 702:(1) whether the evidence constitutes scientific knowledge; and (2) whether the evidence is relevant, i.e., whether it would "assist the trier of fact to understand the evidence or to determine a fact in issue." Id. at 589-591, 113 S.Ct. at 2794-96. Factors relevant to the determination of whether a technique constitutes scientific knowledge include: (1) whether the technique can be and has been tested; (2) whether the technique "has been subjected to peer review and publication;" (3) "the known or potential rate of error;" (4) "the existence and maintenance of standards controlling the technique's operation;" and (5) whether the technique has attained general acceptance within the relevant scientific community. Id. at 593-94, 113 S.Ct. at 2796-97.

3. Polygraph Techniques

"[P]olygraphy is a developing and inexact science." Piccinonna, 885 F.2d at 1535. Resolution of the issue presented in this case requires an understanding of the various techniques that can be used to administer a polygraph examination. ³

a. Relevant/Irrelevant Technique

One method of conducting a polygraph examination is the relevant/irrelevant technique, in which the examiner asks both questions that are relevant to the purpose of the test and questions that are irrelevant to the purpose of the test. In theory, an individual will have a unique response associated with lying. The relevant/irrelevant technique generally has been rejected by the scientific community.

b. Concealed or Guilty Knowledge Technique

A second method of conducting a polygraph examination is the concealed or guilty knowledge technique. In this type of polygraph, an examiner tests the examinee's response to information that only the perpetrator of the crime would know. For example, if a ruby ring was stolen, the examiner would ask: Did you steal a diamond ring? Did you steal a sapphire ring? Did you steal a ruby ring? In theory, a guilty individual will recognize the critical item, or question, and will show a psychophysiological response to that item. The difficulty with using this technique is that the examiner must be sure that the information tested (i.e., that the stolen ring was a ruby ring) is not known generally and would not be known by the individual being tested unless he was the perpetrator of the crime.

c. Control Question Techniques

Most polygraph examiners employ a control question format in conducting polygraph examinations. At least three different techniques fall within this general format. In a control question polygraph, the examiner generally asks questions relevant to the purpose of the examination and so-called control questions. The control questions address issues unrelated to the purpose of the examination. Depending on the particular technique used, the examinee will either be tricked into giving or directed to give a false answer to each control question. The premise underlying the control question format is that an innocent examinee will have a stronger physiological response to his false responses to the control questions than to his truthful answers to the relevant questions in which he denies wrongdoing, and that the reverse will be true for a guilty examinee.

Three control...