IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :

v. :

: Cr. No. xx-374 (JHG)

xxxxxxxx xxxxxxxxxxxx, :

Defendant. :

MOTION TO ADMIT EXPERT TESTIMONY

Defendant xxxxxxxx, through undersigned counsel, respectfully moves the court to admit the expert testimony of several witnesses in the areas of human rights abuses in Cuba and immigration restrictions applicable to Cuban nationals. As grounds for his Motion, Mr. xxxx shows the court:

1. Mr. xxxx is charged by indictment with air piracy. Trial is to commence on that indictment on April 15, 1997.

2. On information and belief, the government's evidence will be that on July 7, 1996, at Holguin, Cuba, Mr. xxxx boarded an air taxi bound for Guantanamo, that he was armed when he boarded the plane, that the plane held several passengers, including women and small children, that Mr. xxxx forced the pilot of the plane to fly to Guantanamo Bay Naval Base, where he surrendered to the base commander and sought political asylum.

3. The experts whom the defense proposes to call would testify to the following:

Cuba is a totalitarian state controlled by President Fidel Castro, who is Chief of State, Head of Government, First Secretary of the Communist Party, and Commander in Chief of the armed forces. President Castro exercises control over all aspects of Cuban life through the Communist Party and its affiliated mass organizations, the government bureaucracy, and the state security apparatus. The party is the only legal political entity, and President Castro personally chooses the membership of the select group that heads the party. The party controls all government positions, including judicial offices.

The Ministry of Interior is the principal organ of state security and totalitarian control. The Revolutionary Armed Forces (FAR), led by Castro's brother, Raul, exercises control over this Ministry. In addition to regulating migration and controlling the Border Guard and the police forces, the Interior Ministry investigates and actively suppresses opposition and dissent. It maintains a pervasive system of vigilance through undercover agents, informers, the Rapid Response Brigades and the Committees for the Defense of the Revolution (CDR's). The government uses the CDR's to mobilize citizens against dissenters, impose ideological conformity and root out counterrevolutionary behavior. Other mass organizations also inject government and Communist Party control into every citizen's daily activities at home, work and school.

Human rights abuses abound in Cuba. Recently, there was a large-scale crackdown against the prodemocracy umbrella group Concilio Cubano, two United States civilian airplanes were shot down in international air space, there were increased reports of deaths due to excessive use of force by police, and increased use of exile and internal exile to control dissidents. The authorities continued to routinely harass, threaten, arbitrarily arrest, detain and imprison dissidents. Members of the security forces and prison officials continued to beat and otherwise abuse detainees and prisoners.

The government continued to restrict basic political and civil rights, including the right of citizens to change their government, the freedoms of speech, press, assembly, association, religion and movement, and the right to privacy. The judiciary is completely subordinate to the government and to the Communist Party.

State security reads international correspondence and monitors overseas telephone calls and conversations with foreigners. The Government controls all access to the Internet, and all electronic mail messages are subject to censorship. Citizens do not have the right to receive publications from abroad. Security agents subject dissidents to harassment and surveillance.

The authorities regularly search people and their homes, without probable cause, to intimidate and harass them. The Interior Ministry, through its CDR's, monitors and controls public opinion. The CDR's report on suspicious activity, which includes unauthorized meetings, especially with foreigners, defiant attitudes toward the Government and the revolution, and even conspicuous consumption.

Immigration is very tightly controlled. Military personnel are forbidden to immigrate, for all practical purposes. Military personnel with intelligence backgrounds have no viable options for legal immigration from Cuba.

ARGUMENT

Rule 702 of the Federal Rules of Evidence provides:

If scientific, technical, or other specializedknowledge will assist the trier of fact to under-stand the evidence or to determine a fact in issue, a witness, qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. (Emphasis added). In deciding to admit expert testimony, the court must initially decide whether the expert is to testify to (1) specialized knowledge that will (2) assist the trier of fact to understand or determine a fact in issue.⁽¹⁾

Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993).

In addition, expert evidence must also meet the relevancy requirements of Fed. R. Evid. 401, which defines relevant evidence as "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." United States v. Torniero, 735 F.2d 625 (2d Cir. 1984) (expert evidence is subject to the relevance requirement).⁽²⁾

Relevancy

The proffered expert testimony is relevant to the issue of whether Mr. xxxx diverted the air taxi from Guantanamo to the Naval Base at Guantanamo Bay because he was in imminent danger of serious bodily harm or death as a dissident who had been identified by the Communist Party and the Minister of the Interior and whether he had available to him alternative, legal means to avoid the injury or death. The defense evidence will be that Mr. xxxx had been marked as a dissident, that he was under surveillance by the police, that his home had been ransacked on two occasions, that his communications were being monitored, and that he was about to be imprisoned and physically harmed or killed. The evidence will further show that Mr. xxxx did not have the option of leaving Cuba legally.

Courts have recognized that when expert testimony is offered to support a defense, and therefore goes to a contested issue, it is relevant. See, United States v. Diallo, 40 F.3d 32, 334-35 (2d Cir. 1994) (testimony of commodities consultant was relevant to defendant's defense that he believed he was carrying gold dust rather than narcotics, and under Onomonu, cited below, should have been admitted); United States v. Amador-Galvan, 9 F.3d 1414, 1418 (9th Cir. 1993) (expert testimony attacking the reliability of eyewitness identification is clearly relevant to defense of mis-identification); United States v. Rham, 993 F.2d 1405, 1413 (9th Cir. 1993) (evidence of defendant's perceptual difficulties relevant to whether she knew money in her possession was counterfeit); United States v. Onumonu, 967 F.2d 782, 786-87 (2d Cir. 1992) (because a crucial issue in the case was the defendant's subjective belief that he was carrying diamonds and not narcotics from Africa to the United States, expert testimony on diamond smuggling methods was relevant because it made the existence of that subjective belief more probable than it would have been without the evidence); United States v. Newman, 849 F.2d 156, 164-65 (5th Cir. 1988) (when an entrapment defense is raised, expert testimony is admissible to demonstrate that the defendant had a mental condition which made him peculiarly susceptible to inducement); United States v. Staggs, 553 F.2d 1073, 1076 (7th Cir. 1977) (psychologist's testimony relevant to support defense that Staggs did not have the subjective intent to threaten or harm the victim, because the testimony would have helped the jury understand the defendant's psychological make-up and to evaluate the defendant's testimony as to his state of mind at the time of the alleged offense).

The proffered testimony in this case is relevant because it will help the jury understand the danger that Mr. xxxx faced in the totalitarian state of Cuba when he became labeled as a dissident, and it will help the jury understand that he could not save himself from danger by legal, alternative means.

Helpfulness

The fundamental question that a court must answer in determining whether a proposed expert's testimony will assist the trier of fact is "[w]hether the untrained layman would be qualified to determine intelligently and to the best degree, the particular issue without enlightenment from those having a specialized understanding of the subject matter involved." United States v. Shay, 57 F.3d 126, 132 (1st Cir. 1995) (citing United States v. Montas, 41 F.3d 775, 783 (1st Cir. 1994), and Fed. R. Evid. 702 Advisory Committee note) (emphasis added).

Expert evidence has been found to be helpful in providing background information. See, e.g., United States v. Taylor, 18 F.3d 55, 59 (2d Cir. 1994) (expert testimony regarding use of guns by drug dealers); United States v. Brown, 7 F.3d 648, 652 (7th Cir. 1993) (expert witnesses may be used to present general background information on the subject of drug trafficking); Arcoren v. United States, 929 F.2d 1235, 1239-41 (8th Cir. 1991) (evidence of battered-women's syndrome admissible to help government understand testimony of complaining witness); United States v. Gomez-Norena, 908 F.2d 497, 501 (9th Cir. 1990) (evidence of drug courier profile admissible to provide jury with full and accurate portrayal of events at issue); United States v. Nersesian, 824 F.2d 1294, 1307 (2d Cir. 1987) (testimony admissible to explain patterns of speech normally used by narcotics dealers); United States v. Kampiles, 609 F.2d 1233, 1247 (7th Cir. 1979) (FBI agent's testimony about Soviet intelligence practices properly admitted).⁽³⁾

Rule 702 is one of admissibility rather than exclusion. Arcoren v. United States, 929 F.2d at 1239. In that vein, courts have admitted expert testimony by psychiatrists and psychologists as helpful to the jury. See, e.g., (United States v. Shay, 57 F.3d at 133: "[W]hether or not the jury had the capacity to generally assess the reliability of these statements in light of other evidence in the case, it plainly was unqualified to determine without assistance the particular issue of whether Shay Jr. may have made false statements against his own interests because he suffered from a mental disorder."); United States v. Rahm, 993 F.2d at 1413 (psychologist's testimony); United States v. Darby, 857 F.2d 623, 627 (9th Cir. 1988) (psychiatric testimony to explain defendant's behavior to corroborate defendant's testimony that he did not intend to rob a bank should have been admitted); United States v. Newman, 849 F.2d at 164-65 (psychiatric testimony); United States v. Staggs, 553 F.2d at 1076 (psychologist's testimony).

Likewise, court's have found expert testimony helpful in permitting jurors to evaluate eyewitness identifications. See, e.g., United States v. Norwood, 939 F. Supp. 1132, 1136 (D.N.J. 1996) (while not binding on this court, the discussion of helpfulness is illuminating); United States v. Almador-Galvan, 9 F.3d 1418; United States v. Stevens, 935 F.2d 1380, 1400 (3d Cir. 1991) (testimony would have aided the jury in evaluating witness' professed certainty regarding their identifications); United States v. Downing, 753 F.2d 1224, 1241 (3d Cir. 1985) (there is a presumption of helpfulness accorded expert testimony under Fed. R. Evid. 702).

Especially after Daubert, courts have carefully scrutinized the exclusion of expert testimony, recognizing a "strong and undeniable preference for admitting any evidence having some potential for assisting the trier of fact" embodied in the rules of evidence. United States v. Velasquez, 64 F.3d 844, 849 (3d Cir. 1995) (recognizing the admissibility of expert testimony about the alleged science of handwriting analysis). Even areas where expert testimony was traditionally excluded are being re-examined. United States v. Posado, 57 F.3d 428, 432 (5th Cir. 1995) (polygraph evidence).

In light of these principles, this court should permit expert witnesses to explain to the jury the circumstances facing Mr. xxxx and the absence of viable alternatives when he diverted the plane (if the jury finds that he did so) to seek political asylum.For these reasons, and any others that might appear to the court at a hearing on this Motion, Mr. xxxx respectfully requests that the court grant his motion and permit the expert witnesses to testify on his behalf.⁽⁴⁾

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

______________________

Teresa Alva

Reita Pendry

Assistant Federal Defenders

Counsel for Jose Fernandez xxxx

625 Indiana Avenue, N.W. #550

Washington, D. C. 20004

(202)2088-7500

CERTIFICATE OF SERVICE

This is to certify that on the 10th day of April 10th, 1997 a copy of the foregoing Motion to Admit Expert Testimony was faxed and hand delivered to Wendy Wysong, Assistant United States Attorney, the Office of the United States Attorney, 555 4th Street, NW, Washington, DC 20001.

Reita Pendry

The court must decide by a preponderance of the evidence whether the proffered expert qualifies to testify as an expert.

2. Some courts view the relevancy requirement as subsumed within the helpfulness standard under the theory that irrelevant evidence is not helpful. See, e.g., United States v. Martinez, 3 F.3d 1191, 1196 (8th Cir. 1993, citing Daubert, 113 S.Ct. at 2795). Relevancy and helpfulness are treated separately here inasmuch as evidence my be relevant but not helpful because it is within the ken of the average juror, or because it is otherwise excludable under Fed. R. Evid. 403. See, United States v. Onumonu, 967 F.2d 782, 786 (2d Cir. 1992).

3. United States District Judge Royce Lamberth recently admitted expert testimony to provide background information in United States v. Rezak, Cr. No. 93-284.

4. This Motion is premised upon Mr. xxxx's Sixth Amendment right to present a defense, as well as upon Fed. R. Evid. 702.