# United States v. Frank Javier Cordoba

> Court of Appeals for the Ninth Circuit · November 12, 1999 · 194 F.3d 1053

URL: https://www.frixlaw.com/law-library/cases/9492592

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Frank Javier CORDOBA, Defendant-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** November 12, 1999
- **Citations:** 194 F.3d 1053; 99 Daily Journal DAR 11478; 99 Cal. Daily Op. Serv. 8998; 1999 U.S. App. LEXIS 29687; 1999 WL 1024067
- **Precedential status:** Published
- **Opinion:** Concurrence by Goodwin
- **Judges:** Goodwin, Brunetti, Nelson
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492592

## How later opinions describe it (automated extraction)

- explaining the theoretical underpinning of the method
- affirming trial court exclusion of polygraph under ER 702 and Daubert, 509 U.S. 579

## Opinion text

GOODWIN, Circuit Judge, Concurring separately:
While I agree fully that the district court correctly excluded the so-called expert testimony with which the defendant hoped to help his testimonial oath by informing the jury that he had passed a polygraph test, I do not believe it was necessary for five judges of this court to expend upon this question the time and resources reflected in the two opinions which have been produced in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993).
Had I been a member of the panel that considered the first appeal in this case, back in 1996, I probably would have voted to affirm the exclusion of the polygraph *1064 evidence under Federal Rules of Evidence 403. However, three able and experienced judges of this court reversed and remanded for an evidentiary hearing under Dau-bert, and I have no serious quarrel with that decision. What I do question, however, is the growing frequency with which panels of our court decline the opportunity to hear the second appeal after the panel has remanded the case to the district court. The clerk’s office queries the original panel and offers the “comeback case” to the panel that decided the first appeal. In most cases, no harm is done when the panel declines the case and allows it to be assigned to another three-judge panel, randomly drawn pursuant to our internal rules. However, when the remand is for a narrow and specific purpose, a great savings in time and energy can be accomplished if the panel remanding the case reviews the district court’s work product after the remand. When the panel declines to review the work product, a whole new learning curve has to be developed by three new judges who have no knowledge of the case. This is the sort of inefficiency that would not be tolerated in private industry. I firmly believe the panel that wrote the opinion in United States v. Cordoba, 104 F.3d 225 (9th Cir.1997) should have accepted the narrow question which came up on this second appeal, and could have affirmed the case easily on the briefs, without reassembling for oral arguments, and gone on to more important work.
My second problem is that the Rule 702 portion of this long, scholarly, and probably correct second opinion on the Daubert question in this unremarkable case is largely unnecessary. Rule 403 is ample authority for affirming the trial court. Moreover, commonsense is ample authority for affirming. An unstipulated polygraph printout, before Daubert or after Daubert , is not worth the paper wasted on it. A defendant, unknown to anyone, can shop around and keep taking polygraph “tests” until he or she passes one, and then triumphantly march into court and tender it as evidence that a lifetime of mendacity has been overcome, and that for once this defendant must be telling the truth. I would rest the result in this case on Rule 403 and the commonsense of the able trial judge and get back to the more difficult work that awaits all of us. That said, I have no basis for disagreeing with the scholarship reflected in the majority opinion. I just think we took on some unnecessary work.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492592. Public record. Not legal advice.