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United States v. Rodgers

United States District Court, E.D. Kentucky, Central Division, Frankfort

July 25, 2018



          Gregory F. Van Tatenhove United States District Judge

         This matter is before the Court on Defendant Ronnie C. Rodgers's Motion in Limine. [R. 34.] Mr. Rodgers seeks to exclude the opinion testimony of Government witnesses Marvin Combs and Chad Harlan. For the reasons stated below, this Motion is DENIED.


         Ronnie C. Rodgers was indicted on December 7, 2017, for one count of Conspiracy to Defraud the United States in violation of 18 U.S.C. § 371. Mr. Rodgers allegedly solicited investors in various oil and gas production ventures knowing that the ventures would not produce enough oil and gas to provide a return on investments. [R. 1.]

The plan was to create an appearance of business legitimacy; obtain money from investors under falsely-created expectations of profit; obtain more money from investors than was necessary to drill the wells; go through the motions of drilling what the Operators expected to be dry holes or wells with minimal production; lull and placate complaining investors with various false excuses for non-production; use large sums of investor money for personal expenses and purchases; and ultimately, discontinue any contact with the investors.

Id. at 5. In order to prove their case, the government intends to introduce as experts Marvin Combs and Chad Harlan. [R. 35 at 1.] Mr. Rodgers maintains that the testimony of Mr. Combs and Mr. Harlan is inadmissible under Daubert v. Merrill Dow Pharm., Inc., Federal Rule of Evidence 702, Federal Rule of Evidence 704(b), and Federal Rule of Evidence 403.




         The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. From Rule 702 comes a three-part test for admitting expert testimony. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008). First, is the witness qualified? Next, is the testimony relevant, more precisely, will it assist a trier of fact to understand the evidence or determine a fact in issue? Finally, the testimony of the expert must be scientifically reliable.

         The seminal case applying this test is Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). In that decision, the Supreme Court explained that a district court's gatekeeping responsibility is implicit in Rule 702, “ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597. Further, the Supreme Court listed several specific factors to help determine the reliability of expert testimony based on scientific knowledge. See Id. at 590, n. 8. These factors include whether a theory or technique can be or has been tested; whether the theory has been subjected to peer review and publication; whether there is a high known or potential error rate; whether there are certain operation standards that should have been or were followed; and whether the theory or technique is generally accepted within the scientific community. Id. at 592-94. Later, in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court determined that the gatekeeping obligation and subsequent factors established in Daubert apply with equal force to non-scientific experts. However, those factors are not definitive and district courts “must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Kumho, 526 U.S. at 152.

         Initially, the witness must be qualified to testify as to his opinion. A witness's qualifications may be determined by his “knowledge, skill, experience, training, or education.” United States v. Rios, 830 F.3d 403, 413 (6th Cir. 2016). “The issue . . . is not the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a ...

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