International and Federal Criminal Defense
- Federal and Extradition Defense
- Tampa Bay, Florida, United States
- 727-551-0751 * Since 1981 * Representing Foreign Nationals: State and Federal Criminal Defense, White Collar Crime, Fraud, Extradition, Regulatory Matters, and Administrative Proceedings. For additional information go to Linda Friedman Ramirez P.A. at: www.spanishlaw.com
Tuesday, January 29, 2008
LANGUAGE PROFICIENCY AND HABEAS
Diaz v. Kelly, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, 2008 U.S. App. LEXIS 1419, January 25, 2008, Decided. Need for interpreter might not toll if petitioner does not take sufficient actions to secure assistance. Link
Monday, January 28, 2008
IMMIGRATION WAIVERS
Link to Article. "This practice advisory addresses statutory requirements for for § 212(h) waivers; availability of § 212(h) waivers in removal proceedings for both LPRs and non-LPRs; and situations when a "stand-alone" § 212(h) waiver can, or arguably might, be filed. "
Wednesday, January 23, 2008
IMMIGRATION: US to Resume Deportations to Vietnam
US and Vietnam agree to repatriation. Link to article in NYT.
CULTURAL DEFENSES: Expert on Gypsy Culture
Link to Article, Expert on Gypsy Culture testifies in Death Penalty case for the proposition that culture shuns violence.
Cf. to United States v. Hoa Quoc Ta, 2007 U.S. Dist. LEXIS 58130; the Court granted the Government's Motion to Exclude the Testimony of a proffered expert, and did not find that the expert had sufficient credentials to qualify him as an expert.
"Defendant wishes to offer as an expert witness at trial Mr. Nguyen Ba Chung ("Chung") as an expert on Vietnamese culture. In January 2006, Defendant submitted a summary of the proposed expert testimony and attached Mr. Chung's curriculum vitae. According Case 1:05-cr-00094-WSD-CCH Document 290 Filed 08/09/2007 Page 2 of 12 to Defendant, Mr. Chung is expected to testify regarding the difference between Vietnamese and American views on family, religion, community, politics and government organizations, crime, and gangs. (Notice and Summary of Anticipated Expert Testimony ("Notice") Mr. Chung will testify that Vietnamese persons are less likely to go to the police than Americans because of their suspicion and fear of the police. He will also testify that Vietnamese persons take a more protective and secretive approach towards their problems. Chung also is expected to testify that there is a strict patriarchy or matriarchy in the Vietnamese culture such that a child is required to obey his elders."
The Court ruled, "Chung's anticipated testimony does not satisfy the test for reliability set forth in Daubert and its progeny. There is no evidence before the Court which would indicate that Chung's testimony would be based on "sufficient facts or data," that it would be the "product of reliable principles and methods," or that Chung "has applied such principles and methods reliably to the facts of the case." Fed. R. Evid. 702.
Defendant does not explain how Chung has applied his alleged cultural knowledge or experience to the facts of this case. It appears Chung has no particular knowledge of Defendant, the co-defendants, or the victim. Defendant has not shown how Chung has applied his knowledge of "the broad general patterns" of Vietnamese behavior and beliefs to the facts of this case.
Importantly, Chung's techniques or theories have not been articulated with any specificity. There is no evidence his theories can be or have been tested?that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability. There is no evidence that Chung's theories have been subjected to peer review and publication. Defendant offers no information on whether Chung used standards and controls in formulating his theories or whether they have been generally accepted in the scientific community. Instead, Defendant relies on the mere fact of Chung's knowledge of Vietnamese culture?in essence, he requests the Court to take his word for it. This subjective, conclusory approach cannot reasonably be assessed for reliability and is plainly insufficient under Daubert. See Frazier, 387 F.3d at 1261 ("The trial court's gatekeeping function requires more than simply 'taking the expert's word for it.") (quoting Fed. R. Evid. 702 Advisory Committee's Note on 2000 Amends.); Joiner, 522 U.S. at 146 (stating that "court[s] may conclude that there is simply too great an analytical gap between the data and the opinion proffered").
Cf. to United States v. Hoa Quoc Ta, 2007 U.S. Dist. LEXIS 58130; the Court granted the Government's Motion to Exclude the Testimony of a proffered expert, and did not find that the expert had sufficient credentials to qualify him as an expert.
"Defendant wishes to offer as an expert witness at trial Mr. Nguyen Ba Chung ("Chung") as an expert on Vietnamese culture. In January 2006, Defendant submitted a summary of the proposed expert testimony and attached Mr. Chung's curriculum vitae. According Case 1:05-cr-00094-WSD-CCH Document 290 Filed 08/09/2007 Page 2 of 12 to Defendant, Mr. Chung is expected to testify regarding the difference between Vietnamese and American views on family, religion, community, politics and government organizations, crime, and gangs. (Notice and Summary of Anticipated Expert Testimony ("Notice") Mr. Chung will testify that Vietnamese persons are less likely to go to the police than Americans because of their suspicion and fear of the police. He will also testify that Vietnamese persons take a more protective and secretive approach towards their problems. Chung also is expected to testify that there is a strict patriarchy or matriarchy in the Vietnamese culture such that a child is required to obey his elders."
The Court ruled, "Chung's anticipated testimony does not satisfy the test for reliability set forth in Daubert and its progeny. There is no evidence before the Court which would indicate that Chung's testimony would be based on "sufficient facts or data," that it would be the "product of reliable principles and methods," or that Chung "has applied such principles and methods reliably to the facts of the case." Fed. R. Evid. 702.
Defendant does not explain how Chung has applied his alleged cultural knowledge or experience to the facts of this case. It appears Chung has no particular knowledge of Defendant, the co-defendants, or the victim. Defendant has not shown how Chung has applied his knowledge of "the broad general patterns" of Vietnamese behavior and beliefs to the facts of this case.
Importantly, Chung's techniques or theories have not been articulated with any specificity. There is no evidence his theories can be or have been tested?that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability. There is no evidence that Chung's theories have been subjected to peer review and publication. Defendant offers no information on whether Chung used standards and controls in formulating his theories or whether they have been generally accepted in the scientific community. Instead, Defendant relies on the mere fact of Chung's knowledge of Vietnamese culture?in essence, he requests the Court to take his word for it. This subjective, conclusory approach cannot reasonably be assessed for reliability and is plainly insufficient under Daubert. See Frazier, 387 F.3d at 1261 ("The trial court's gatekeeping function requires more than simply 'taking the expert's word for it.") (quoting Fed. R. Evid. 702 Advisory Committee's Note on 2000 Amends.); Joiner, 522 U.S. at 146 (stating that "court[s] may conclude that there is simply too great an analytical gap between the data and the opinion proffered").
Subscribe to:
Posts (Atom)
