holding that “evidence of continued stock purchases and sales at prices affected (or so the jury might find) by the earlier artificial trades, of the mailings of stock certificates, and of the reassurances to customers ... was sufficient to permit a rational jury to conclude that the conspiracy and substantive scheme to defraud continued” into the limitations period
How later courts described this case
- holding that “evidence of continued stock purchases and sales at prices affected (or so the jury might find) by the earlier artificial trades, of the mailings of stock certificates, and of the reassurances to customers ... was sufficient to permit a rational jury to conclude that the conspiracy and substantive scheme to defraud continued” into the limitations period
- holding that expert’s testimony that the defendants had engaged in a manipulative and fraudulent scheme within the meaning of the securities laws was not within the permissible scope of expert testimony and was prejudicial
- finding that it was prejudicial error to allow a witness to give expert legal testimony “calculated to ‘invade the province of the court to determine the applicable law and to instruct the jury as to that law’”
- stating that “[t]hese provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day”
Written by the judges who cited it.
The opinion
PIERCE, Circuit Judge,
concurring:
I concur in all of Judge Winter’s thorough opinion except for the portion discussing the “second fatal objection” to Whit-ten’s expert testimony. A question remains in my mind as to whether Judge Winter’s conclusion that “expert witnesses may not offer opinions on relevant events based on their personal assessment of the credibility of another witness’s testimony” is consistent with Rules 703 and 705 of the Federal Rules of Evidence and the Advisory Committee Notes. As I understand it, the expert’s reliance on the testimony of a witness whose credibility is in question may be brought out on cross-examination and may not affect the foundation for admission of the opinion itself. See, e.g., Polk v. Ford Motor Co., 529 F.2d 259, 271 (8th Cir.), cert. denied, 426 U.S. 907 , 96 *144 S.Ct. 2229 , 48 L.Ed.2d 832 (1976); Twin City Plaza, Inc. v. Central Surety and Ins. Corp., 409 F.2d 1195 , 1200 (8th Cir.1969); 3 J. Weinstein & M. Berger, Wein-stein’s Evidence ¶1705[01], at 705-6 to -10 (1987); McCormick on Evidence § 14, at 35 (E. Cleary 3d ed. 1984).
Nonetheless, since I agree with the primary objection to Whitten’s testimony, namely, that Whitten’s statements in the form of legal conclusions exceeded the permissible scope of opinion testimony under the Federal Rules of Evidence, I concur in Judge Winter’s conclusion that all of the appellants’ convictions should be reversed except for the perjury convictions of Bloom and Stone.