Petition for Writ of Certiorari — Olga Sandra Murra, Petitioner v. United States

No. _ _ __

INTHE

SUPREME COURT OF THE UNITED STATES

OLGA SANDRA MURRA,

also known as Sandra Olga Capon-Meneses,

Petitioner-Appellant

vs.

UNITED STATES OF AMERICA,

Respondent-Appellee

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ROBERT N. UDASHEN, P.C.

Texas Bar Card No. 20369600

UDASHEN & ANTON

2311 Cedar Springs, Suite 250

Dallas, Texas 75201

214/468-8100 (office)

214/468-8104 (fax)

rnu@udashenanton.com

Attorney for Olga Murra

2

QUESTION PRESENTED

Do the advisory committee notes overrule

the plain language of Rule 702 of the

Federal Rules of Evidence, which requires

that expert testimony be reliably applied to

the facts of the case?

3

. LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

4

TABLE OF CONTENTS

Opinions Below ...................................................................................... 7

Jurisdiction ........................................................................................... 7

Relevant Constitutional Provisions ..................................................... 7

Statement of the Case .......................................................................... 8

Reasons for Granting the Writ ........................................................... 11

Argument ... .. .......... .. ...... .. .. .................... .. .. ..... .. ... .. ... .. ........ .. ............ .. 12

I.

Introduction: a brief history of Rule 702 ............................... 12

II.

Advisory Committee Notes: do they overrule the plain

language of Rule 702? ............................................................ 15

III.

Dr. Wolfs testimony should have been excluded ................. 21

a. The Court of Appeals wholly disregarded Murra's harm

argument ............................................................................ 23

IV. . Removing the Rule 702 requirement for expert testimony

has broad implications beyond this case ............................... 25

Conclusion .......................................................................................... 27

INDEX TO APPENDICES

APPENDIX A - Fifth Circuit Court of Appeals Opinion Affirming

Petitioner's conviction. United States v. Murra, 879

F.3d 669 (5th Cir. 2018)

APPENDIX B - Written order denying Petitioner's Petition for a Rehearing

5

TABLE OF CITED AUTHORITIES

CASES

Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) .......................... 12

Bourjally v. United States, 483 U.S. 171 (1987) ................................. 16

Caminetti v. United States, 242 U.S. 4 70 (1917) .......................... 16, 25

Cazorla v. Koch Foods of Miss., LLC, No. 3:10-CV-135-DPJ-FKB, 2014

WL 11456088 (S.D. Miss. Sept. 22, 2014) ........................................... 18

Charalambopoulos v. Grammer, No. 3:14-CV-2424-D, 2017 WL 930819

(N.D. Tex. Mar. 8, 2017) ...................................................................... 18

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) .................. .

···················································································· 8, 10, 12-14, 17, 20

Emblaze Ltd. v. Apple Inc., 52 F. Supp. 3d 949 (N.D. Cal. 2014) ...... 18

Equal Employment Opportunity Comm'n v. S&B Indus., Inc., No. 3:15CV-0641-D, 2017 WL 345641 (N.D. Tex. Jan. 24, 2017) .................... 18

Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1

(2000) ···································································································· 16

In re C.R. Bard, Inc., 948 F.Supp.2d 589 (S.D.W.Va. June 4, 2013).18

Jesa Enterprises Ltd. v. Thermoflex Corp., 268 F.Supp.2d 968 (E.D.

Mich. October 17, 2014) ....................................................................... 18

Kotteakos v. United States, 328 U.S. 750 (1946) ................................ 23

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) ..... 13, 14, 17

Lamie v. U.S. Trustee, 540 U.S. 526 (2004) .................................. 16, 25

6

Moench v. Martquette Transp. Co. Gulf-Inland, L.L.C., 838 F.3d 586

(5th Cir. 2016) ...................................................................................... 23

Neb. Plastics, Inc. v. Holland Colors Arms., Inc., 408 F.3d 410 (8th Cir.

2005) ····································································································· 19

Strauss Farms, Inc. v. Combs Commodities, Inc., 2005 WL 946523 (D.

Kan. Mar. 29, 2005) ............................................................................. 18

United States v. Alzanki, 54 F.3d 994 (1st Cir. 1995) ........................ 19

United States v. Coutentos, 651F.3d809 (8th Cir. 2011) ............ 18, 21

United States v. Downing, 753 F.2d 1224 (CA3 1985) ....................... 13

United States v. Frazier, 387 F.3d 1244 (10th Cir. 2004) .................. 20

United States v. Montes-Salas, 669 F.3d 240 (5th Cir. 2012) ............ 24

United States v. Murra, 879 F.3d 669 (5th Cir. 2018) ................... 7, 10

United States v. Oregon, 366 U.S. 643 (1960) ..................................... 16

United States v. Simmons, 470 F.3d 1115 (5th Cir. 2006) ................. 19

STATUTES

8 U.S.C. § 1324 ....................................................................................... 8

18 U.S.C. § 1589 ..................................................................................... 8

28 U.S.C. § 1254 ..................................................................................... 7

RULES

FED. R. EVID. 702 ................................................................... 9-23, 25, 26

7

PETITION FOR A WRIT OF CERTIORARI

Olga Murra respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Fifth

Circuit.

OPINIONS BELOW

The Fifth Circuit Court of Appeals' opinion affirming Petitioner's

conviction, filed January 15, 2018, can be found at United States v.

Murra, 879 F.3d 669 (5th Cir. 2018). See Appendix A. The Fifth Circuit

Court of Appeals' order denying Petitioner's Petition for Rehearing filed

on February 23, 2018 is unpublished. See Appendix B.

JURISDICTION

The United States Court of Appeals for the Fifth Circuit affirmed

Petitioner's conviction on January 15, 2018. A timely petition for

rehearing was denied by the United States Court of Appeals on

February 23, 2018. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISIONS

This petition does not raise any constitutional issue. It is solely an

issue of statute construction.

8

STATEMENT OF THE CASE

Petitioner Olga Murra ("Murra'") was charged by indictment with

two counts of forced labor and two counts of harboring an illegal alien

for profit. See 18 U.S.C. § 1589(a); 8 U.S.C. § 1324(a)(l)(A)(iii) and

(a)(l)(B)(i). (ROA.177-87). Murra pleaded not guilty. The government's

allegations centered on accusations from Murra's half-sister, V.R., and a

quasi-adopted family member, LG., who resided with Murra for many

years. Prior to trial, Murra filed a motion to exclude the testimony of

Dr. Shannon Wolf, the Government's proposed expert. (ROA.107-15,

155, 259-63, 271). The district court held a Daubert hearing and the

government advised:

"[Dr. Wolfs] testimony will relate to the -- the dynamics of

an abusive relationship. It will also look at trauma bonds. It

will be just a general description of what's out there in the

field of psychology, what a trauma bond is, how it forms,

what factors are relevant in the formation of a trauma bond.

I don't intend to ask the expert to proffer any opinions

regarding whether or not the behavior of the victims in this

case is consistent with literature. It will be just generally

[sic] advising the jury on what the field of psychology says a

trauma bond is, again, how it forms, and what the factors

related to the formation are." (ROA.988-1023).

The trial court denied Murra's motion. (ROA. 271, 367-73, 517-28).

At trial, Dr. Wolf was permitted to testify regarding the general concept

9

of "trauma bonds" with no application of those principles to the facts of

the case. (ROA.1748-55). Dr. Wolf testified in part:

"[t]rauma bonding is a very powerful emotional connection

between someone who is being abused and· their abuser or

perhaps a captive and a captor ... Part of trauma bonding is

that the abused person not only attaches to the abuser but to

other people in the house, so they try to please this abuser,

that's part of this relationship, and it's one of a very strong

power differential where one person has a lot of power and

the abused person has almost no power ...

That person is going to believe all the things that was told to

them and so they actually think what's happening to them is

right. So if someone is dishing out punishment that we

. would look at and say, oh my goodness, that, you can't do

that, for the victim they would not know that that would be

wrong or that other people would find that act as something

to be stopped even when it becomes intolerable to them ...

People who have a trauma bond often won't leave because

they believe this is right, that they are the cause of their

punishment." (ROA.1748-54).

The jury convicted Murra on all counts and she was sentenced to

seventy-two months' imprisonment on each count to run concurrently

followed by three-years supervised release and $795,000 in restitution.

(ROA.876-79). Murra timely filed notice of appeal.

On appeal, Murra complained, among other things, that the

district court abused its discretion by admitting Dr. Wolfs testimony

because it failed to comply with the requirements of Rule 702 of the

10

Federal Rules of Evidence and the standards of reliability promulgated

by this Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587

(1993). See United States v. Murra, 879 F.3d 669, 678- 79 (5th Cir.

2018). The government responded that despite the plain language

requirements of Rule 702, an advisory committee note to the 2000

amendments to Rule 702 permitted expert testimony about general

principles without application of those principles to the facts of the case.

Id. The court of appeals acknowledged that the district court admitted

Dr. Wolfs testimony based on the advisory committee notes over the

plain language of Rule 702 and noted that it had. not previously

addressed a trial court's reliance on the advisory committee note's

method for admitting expert testimony. Id. However, the court of

appeals elected not to address whether the admission of the expert

testimony was an abuse of discretion finding instead that Murra did not

show that her substantial rights were affected. Id. The court of appeals

further concluded that, in any event, Murra could not show her

substantial rights were affected because she was permitted to offer

expert testimony to rebut the reliability of the "trauma bond'' concept

and Dr. Wolfs testimony was not critical to the government's case. Id.

11

Petitioner filed a petition for rehearing urging that she had

previously argued to the court of appeals that she suffered prejudice

from the erroneous admission of Dr. Wolfs testimony in that the

testimony was undoubtedly understood by the jury to mean that the

alleged victims suffered from trauma bonds even though never applied

to the facts of the case, thus establishing the effect on her substantial

rights. The court of appeals denied Murra's Petition for Rehearing

without written order on February 23, 2019. See Appendix B.

REASONS FOR GRANTING THE WRIT

This Court should grant Murra's petition because the Fifth Circuit

Court of Appeals has effectively written the plain language requirement

that expert testimony be based on principles reliably applied to the

facts of the case out of Federal Rule of Evidence 702. SUP. CT. R. lO(c).

Thus, the court of appeals' decision is in direct conflict with Rule 702.

Id.

Furthermore, the Fifth Circuit Court of Appeals erroneously con-

cluded that Petitioner failed to show her substantial rights were affected. The admission of general expert testimony that has not been relia-

12

bly applied to the facts in the case, as required by Rule 702, has broad

implications in all federal cases and should be addressed by this Court.

ARGUMENT

I. Introduction: a brief history of Rule 702

Rule 702 of the Federal Rules of Evidence governs the admission

of expert testimony and provides that:

"If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand 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, if (1)

the testimony is based upon sufficient facts or data, (2) the

testimony is the product of reliable principles and methods,

and (3) the witness has applied the principles and methods

reliably to the facts of the case."

The Federal Rules of Evidence are legislatively enacted and

interpreted by this Court the same as any other legislative enactment.

See Daubert, 509 U.S. at 587 (citing Beech Aircraft Corp. v. Rainey, 488

U.S. 153, 163 (1988)). In Daubert, this Court determined that Rule 702

now governs the admissibility of expert testimony rather than the

common law standard of "general acceptance." Id at 588-89. "Rule 702

further requires that the evidence or testimony assist the trier of fact to

understand the evidence or to determine a fact in issue. This condition

13

goes primarily to relevance. Expert testimony which does not relate to

any issue in the case is not relevant and, ergo, non-helpful." Id at 591

(citing United States v. Downing, 753 F.2d 1224, 1242 (CA3 1985) ("An

additional consideration under Rule 702 - and another aspect of

relevancy - is whether expert testimony proffered in the case is

sufficiently tied to the facts of the case that will aid the jury in resolving

a factual dispute). Daubert held that, under Rule 702, expert testimony

must be relevant and reliable. Expert testimony is relevant if the expert

is qualified, the methodology used by the expert is sufficiently reliable

as determined by an inquiry under Daubert and the testimony assists

the trier of fact. Daubert, 509 U.S. at 589. Per Rule 702, expert

testimony does not assist the trier of fact unless it is reliably applied to

the facts of the case.

Expert testimony must be relevant and reliable and trial courts

are to act as "gatekeepers" as to the admissibility of expert testimony.

Id 588-591. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999),

this Court clarified that the "gatekeeping" obligation applies not only to

scientific testimony but also testimony based on other specialized

knowledge. In some cases, this Court acknowledged, "the relevant

14

reliability concerns may focus upon personal knowledge or experience."

Kumho, 137 U.S. at 150. Daubert enunciated a non-exhaustive list of

factors relevant to the reliability inquiry: (1) whether the expert's

technique or theory can be or has 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; (2) whether the technique or

theory has been subject to peer review and publication; (3) the known or

potential rate of error of the technique or theory when applied; (4) the

existence and maintenance of standards and controls; and (5) whether

the technique or theory has been generally accepted in the scientific

community.

Daubert 509 U.S. at 591-94. This Court reiterated that

these factors are helpful not definitive and that trial courts have wide

latitude in determining whether these factors are reasonable measures

of reliability in a given case. Kumho, 526 U.S. at 151-53. While

Daubert's description of the Rule 702 inquiry is a "flexible one," this

Court has never held that the explicit requirement of Rule 702, that an

expert witness has applied the principles and methods reliably to the

facts of the case, need not be met.

15

II. Advisory Committee Notes: do they override the plain

language of Rule 702?

The advisory committee notes to Rule 702 provide:

"If the expert purports to apply principles and methods to

the facts of the case, it is important that this application be

conducted reliably. Yet it might also be important in some

cases for an expert to educate the factfinder about general

principles, without ever attempting to apply these principles

to the specific facts of the case. For example, experts might

instruct the factfinder on the principles of thermodynamics,

or blood clotting, or on how financial markets respond to

corporate reports, without ever knowing about or trying to

tie their testimony into the facts of the case. The amendment

does not alter the venerable practice of using expert

testimony to educate the factfinder on general principles.

For this kind of generalized testimony, Rule 702, simply

requires that: (1) the expert be. qualified; (2) the testimony

address a subject matter on which the factfinder can be

assisted by an expert; (3) the testimony be reliable; and (4)

the testimony "fit" the facts of the case."

However, the notes go on to provide:

"The amendment requires that the testimony must be the

product of reliable principles and methods that are reliably

applied to the facts of the case. While the terms "principles"

and "methods" may convey a certain impression when

applied to scientific knowledge, they remain relevant when

applied to testimony based on technical or other specialized

knowledge ... So long as the principles and methods are

reliable and applied reliably to the facts of the case, this type

of testimony should be admitted."

Thus, to the extent the advisory committee notes intended to override the plain language requirement of Rule 702, the notes are contra-

16

dietary. Regardless, the plain language of Rule 702 requiring that expert testimony be reliably applied to the facts of the case should control.

See Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) ("It is well established that 'when the statute's language is plain, the sole function of the

courts - at least where the disposition required by the text is not absurd

- is to enforce it according to its terms"') (citing Hartford Underwriters

Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000); see also

Bourjally v. United States, 483 U.S. 171, 178 (1987) (relying on the

plain language of the rules of evidence to find that "the Rule is sufficiently clear that to the extent that it is inconsistent with petitioner's

interpretation of [prior case law], the Rule prevails.); United States v.

Oregon, 366 U.S. 643 (1960) (holding there is no need to resort to legislative history where the provisions of a statute are clear and unequivocal on their face); Caminetti v. United States, 242 U.S. 470, 490 (1917)

(this Court invoked the plain meaning rule stating that it is elementary

that the meaning of a statute must, in the first instance, be sought in

the language in which the act is framed, and if that is plain, and if the

law is within the constitutional authority of the law-making body which

17

passed it, the sole function of the courts is to enforce it according to its

terms) (emphasis added).

Here too, the Rule should prevail over the government's and court

of appeals' interpretation of the conflicting advisory committee notes.

The Rule's plain language commands that expert testimony be based on

principles reliably applied to the facts of the case. FED. R. EVID. 702(3).

That requirement is not written out by the contradictory advisory notes,

which comment on amendments to the Rule after this Court's holding in

Daubert and Kumho. This Court has never held that experts could

testify generally on scientific, technical or other specialized knowledge

topics without applying the principles to the facts. Rather, Rule 702 has

been held to govern the admissibility of expert testimony and trial

courts acting as "gatekeepers" regarding reliability have been given a

flexible set of non-exhaustive factors to consider as discussed in Daubert

and Kumho. These standards apply for scientific and non-scientific

expert testimony. While the standards of reliability are flexible, the

plain language requirements of Rule 702 that reliable expert testimony

be applied to the facts of the case are clear and have never been

disavowed by this Court.

18

The government nor the court of appeals cited any circuit cases for

the proposition that the plain language requirement of 702 could be

entirely disregarded. 1 However, the Eighth Circuit has rejected similar

testimony regarding false memories offered by the defense, which had

not been applied to the facts, in a child sexual exploitation case. See

United States u. Coutentos, 651 F.3d 809, 820-21 (8th Cir. 2011)

("[expert's] testimony failed to satisfy Rule 702 because the principles

1

Several district courts, relying on the advisory committee notes, have allowed experts to testify without application to the facts of the case. Equal Employment Opportunity Comm'n v. S&B Indus., Inc., No. 3:15-CV-0641-D, 2017 WL 345641, at *5

(N.D. Tex. Jan. 24, 2017) (Rule 702 does not require that an expert's testimony relate specifically to the facts at issue in a case) (citing Strauss Farms, Inc. v. Combs

Commodities, Inc., 2005 WL 946523, at *3 (D. Kan. Mar. 29, 2005) (allowing testimony about nature of spontaneous combustion of cottonseed without applying theory to fire at issue in case); Charalambopoulos v. Grammer, No. 3:14-CV-2424-D,

2017 WL 930819, at *11 (N.D. Tex. Mar. 8, 2017) (holding that an expert could testify properly under Rule 702 "for the purpose of educating the jurors about general

principles that are pertinent to the case"); Cazorla v. Koch Foods of Miss., LLC, No.

3:10-CV-135-DPJ-FKB, 2014 WL 11456088, at *4 (S.D. Miss. Sept. 22, 2014) (rejecting an argument that the expert should be excluded for not applying his expertise to

the facts of the case as finding "no support in the text of Rule 702" and being "expressly rejected in the comments"); Emblaze Ltd. v. Apple Inc., 52 F. Supp. 3d 949,

961 (N.D. Cal. 2014) ("Nevertheless, Rule 702 permits general principles testimony without substantive connection to the facts of a case ... exclusion is

not warranted merely on the grounds that [the expert] has not sufficiently grounded

his testimony in the case).

These district court cases, too, conflict with the plain language of the Rule. But see

In re C.R. Bard, Inc., 948 F.Supp.2d 589, 613 (S.D.W.Va. June 4, 2013) (expert testimony will not assist the jury because it has not been applied to the facts of the

case); Jesa Enterprises Ltd. v. Thermoflex Corp., 268 F.Supp.2d 968, 972 (E.D. Mi.

October 17, 2014) ("An expert's testimony is not relevant unless it is based on the

actual facts of the case").

19

and methods had not been applied to the specific facts of this case"). The

defense intended to offer general expert testimony on false memories to

suggest that the victims' memories were distorted or false. Id. Because

the expert had not watched the recorded interviews of the victims or

reviewed any case-specific information and thus could not have "applied

the principles and methods reliably to the facts of the case" the

testimony did not comply with Rule 702. Id. Without application to the

facts, the expert testimony was "fundamentally unsupported" and

offered no assistance to the jury. Id; see also Neb. Plastics, Inc. v.

Holland Colors Arms., Inc., 408 F.3d 410, 416 (8th Cir. 2005) ("An

expert opinion that fails to consider the relevant facts of the case is

fundamentally unsupported ... "); Cf. United States v. Alzanki, 54 F.3d

994, 1006 (1st Cir. 1995) (upholding expert testimony based on general

research and personal interactions with victims that alleged victims

behavioral responses were consistent with the behavior of abuse victims

generally); United States v. Simmons, 470 F.3d 1115, 1122-24 (5th Cir.

2006) (upholding expert testimony that victim's behavior was consistent

with that of rape victims). While the Eighth Circuit acknowledged the

advisory committee notes, it concluded that the jury did not need an

20

expert to understand the concept of what happens to memory over time.

Id. Here, the Fifth Circuit also noted that it had not had occasion to

discern the applicability of the advisory committee notes over Rule 702's

plain language requirements. Thus, it is at least possible that there

exists a split among the circuits as to the applicability of advisory

committee notes, which conflict with the plain language of the Rule. See

United States v. Frazier, 387 F.3d 1244, 1295-96 (10th Cir. 2004) (citing

Rule 702 with advisory committee's notes and Daubert to conclude

"[t]he trial court must scrutinize not only the principles and methods

used by the expert, but also whether those principles and methods have

been properly applied to the facts of the case"); Supra footnote 1.

In short, this Court has never carved out an exception to Rule

702's plain language requirement that expert testimony be reliably

applied to the facts of the case. This Court should take the opportunity

to clarify whether the plain language of the Rule controls or whether, as

some circuits and district courts suggest, expert testimony can be

admitted without application to the facts of the case.

21

III. Dr. Wolfs testimony should have been excluded

Here, Dr. Wolfs testimony regarding the general psychological

concept of "trauma bonds"

and the

"dynamics of an abusive

relationship" was clearly inadmissible under the plain language of Rule

702 because she had not applied these principles to the facts of the case.

Dr. Wolfs testimony was inadmissible because it was not relevant and

did not assist the trier of fact to understand the evidence or deter~ine a

fact issue because it had not been applied to the facts of the case. See

Coutentos, 651 F.3d at 820-21.

Allowing the expert to testify generally regarding a psychological

concept on how victims bond to their abusers left the jury with the false

impression that the victims in this case suffered from trauma' bonds

when no such diagnosis or application to the facts had been made. In

fact, Dr. Wolf had reviewed nothing related to the facts. Her testimony

was thus not relevant to assist the jury in understanding why the

alleged victims continued to reside with Murra and contact her even

after they moved from Murra's home.

Dr. Wolfs testimony was used to explain the alleged victims'

behavior in this case even though she had not reviewed reports,

22

interviews or any other case materials. See Coutentos, 651 F.3d at 82021 (finding such testimony would not be of assistance to the jury).

Allowing Dr. Wolf to testify generally about the concept of trauma

bonds without any application to the facts left the jury with the false

impression that the alleged victims suffered from the condition. Such

testimony is irrelevant without application to the facts of the case and it

was highly prejudicial because it was used to explain why the alleged

victims did not leave Murra's home for years during the alleged abuse

and why they maintained familial contact with her even after the

alleged abuse ended without an actual evaluation of the alleged victims'

behavior. The testimony left the jury with the false impression that the

victims in this case suffered from trauma bonds when in fact the expert

expressed no such opinion, had reviewed no case materials, had not

interviewed the victims or even analyzed their behavior in this case to

be competent to say their behavior was consistent with trauma bond

behavior.

Given the plain language of the Rule, which is controlling, the lack

of relevancy or assistance to the jury, and the misapplication of the

advisory committee notes, Dr. Wolfs testimony was admitted in error.

23

This Court should grant cert to clarify whether the advisory committee

notes in fact control notwithstanding the plain language of Rule 702

and, if so, to clarify the standards of admissibility governing "teaching"

experts who never apply their teaching principles to the facts of the

case.

a. The court of appeals wholly disregarded Murra's harm

argument

Murra was harmed by the erroneous admission of Dr. Wolfs

testimony as addressed in her opening brief, reply brief and petition for

rehearing before the court of appeals. The Fifth Circuit side-stepped the

clear violation of the plain language of Rule 702 to conclude that Murra

had not shown her substantial rights were affected by Dr. Wolfs

testimony regardless of whether Rule 702 was violated. See Moench v.

Martquette Transp. Co. Gulf-Inland, L.L.C., 838 F.3d 586, 594 (5th Cir.

2016); FED. R. EVID. 103(a). When reviewing a conviction, if the alleged

error did not influence the jury or had but a very slight effect, the error

is harmless. Kotteakos v. United States, 328 U.S. 750 (1946). "To

demonstrate that an error affected his substantial rights, a defendant

generally must show that the error was prejudicial. Error is prejudicial

if there is a reasonable probability that the result of the proceedings

24

would have been different but for the error." United States v. Montes-

Salas, 669 F.3d 240, 247 (5th Cir. 2012).

Murra's substantial rights were affected, as argued before the

court of appeals because the expert's testimony left the jury with a false

impression about the psychological state of the alleged victims, which

was used to explain their contradictory behavior. Murra's alleged

victims, who were members of her family residing with Murra and her

family for decades, accused Murra of on-going, consistent, almost daily

psychological and physical abuse. Other members of the household

provided contradictory testimony. In addition to the length of time the

alleged victims stayed with Murra, there was evidence that they

continued to have contact with Murra even after leaving Murra's home.

The alleged victims offered testimony explaining their seemingly

normal, content behavior around others and offered explanations for

why they stayed and why they contacted Murra after they left. In short,

the case boiled down to a family divided and the jury was left to assess

credibility. Dr. Wolfs testimony implied that the alleged victims'

seemingly contradictory behavior could be explained through the

concept of trauma bonds, when Dr. Wolf had not applied those

25

principles to the facts of the case. This testimony was prejudicial to

Murra. But for this baseless explanation of the victims' behavior, there

is a reasonable probability the jury would have acquitted Murra. That

she was then required to rebut Dr. Wolfs testimony by calling the

general concept of trauma bonds into question with her own expert does

not cure the error. Thus, the court of appeals erred by concluding that

Murra failed to show that her substantial rights were harmed even if

Dr. Wolfs testimony was erroneously admitted.

IV. Removing the Rule 702 requirement on expert testimony has

broad implications beyond this case

First, the well settled rules of statutory construction recognizing

· the plain language of a rule or statute as controlling is threatened by

trial courts' and courts of appeals' rulings eliminating Rule 702's third

requirement based on contradictory advisory committee notes. It is well

settled that when the language of a rule or statute is plain, the court's

sole function is to enforce it. See Caminetti, 242 U.S. at 490 (1917);

Lamie, 540 U.S. at 534 (2004). This Court should not affirm the excision

of plain language requirements governing admissibility based on

advisory committee notes. This is especially so when the advisory

committee notes

are themselves contradictory and because the

26

supposed intent or goal of the advisory committee notes to provide for

"education" or "teaching'' experts is so easily subverted as it was in this

case. To allow an expert to opine generally on topics without application

to the facts serves only to leave the jury with a false impression. This

procedure implicates the application of Rule 702 in all federal trials.

Here, Dr. Wolfs testimony was clearly not intended to teach or

educate the jury on a complex topic such as "the principles of

thermodynamics, blood clotting, or on how financial markets respond to

corporate reports" as contemplated by the advisory committee notes.

Fed. R. Evid. 702 advisory committee notes (2000). One can easily

imagine a complicated patent or trademark infringement case, for

example, that centered on a complex scientific or technical topic in

which a jury could truly be aided by expert testimony that solely sought

to educate the jury on unique or complex principles outside a layman's

understanding. However, even assuming a generalized teaching expert

is authorized by Rule 702, as interpreted in the committee notes, this

Court should tailor that standard to avoid the outcome presented in this

case. Otherwise, parties will be permitted to offer expert testimony

27

intended to leave the jury with a false impression because the expert's

principles have not been applied to the facts of the case.

Conclusion

Accordingly, for all the foregoing reasons, Petitioner respectfully

requests that her petition for a writ of certiorari be granted.

Respectfully submitted,

ROBERT N. UDASHEN~P:C~-~­

Texas Bar Card No. 20369600

UDASHEN & ANTON

2311 Cedar Springs, Suite 250

Dallas, Texas 75201

214/468-8100 (office)

214/468-8104 (fax)

Attorney for Olga Murra

APPENDIX A

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 17-10117

Fifth Circuit

FILED

January 15, 2018

UNITED STATES OF AMERICA,

Lyle W. Cayce

Clerk

Plaintiff-Appellee,

v.

OLGA SANDRA MURRA, also known as Sandra Olga Capon-Meneses,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

The earlier opinion issued January 12, 2018, is withdrawn by the panel,

and the following is issued in its place:

In August 2016, Defendant-Appellant Olga Murra was convicted by a jury

of two counts of forced labor, in violation of 18 U.S.C. § 1589(a), and two counts

of harboring an illegal alien for profit, in violation of 8 U.S.C. §§ 1324(a)(l)(A)(iii)

and 1324(a)(l)(B)(i), based on conduct toward her half-sister Vania Rodriguez and

quasi-adopted family member Ingrid Guerrero. The district court sentenced her

to seventy-two months' imprisonment. Murra now appeals from that conviction

and sentence, claiming that (1) the district court erred by admitting the testimony

of the Government's expert witness; (2) the Government prosecutor improperly

commented on her decision not to testify; (3) the district court erred in ruling

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that Mosaic Family Services, Inc., a nonprofit organization that provided both

counseling and legal services to the victims, did not have to produce documents

that Mosaic contends are protected by psychotherapist-patient or attorney-client

privilege; and (4) the district court erred by imposing a "vulnerable victim"

enhancement to her sentence. For the reasons that follow, we affirm.

I

According to the evidence and testimony presented at trial, Murra used

psychological manipulation, mental and physical abuse, and threats of abuse to

coerce both Vania and Ingrid to work for her without pay for over a decade.

A

Around 1985, while living in Mexico, Murra and her family (her children

and now-deceased husband) met Ingrid Guerrero and her three sisters-Tania,

Yuriria, and Jehan-who were living apart from their mother and father because of a tumultuous home life. A few years into their relationship with Murra,

the Guerreros began attending church at Murra's home, with Murra "preaching"

and leading the services. Murra later told the sisters that they should move out

of their house and live with her, which they did.

Shortly thereafter, Murra began to inflict physical and psychological abuse

on the Guerreros. Murra would hit them with a wooden paddle almost daily as

punishment for being "obscene" or "rebellious," or if they didn't agree with something she said. She made Ingrid sit in baths of ice water because she wasn't

"pure." She forced the sisters to sleep in the laundry room, at times for up to a

week, because she felt they needed to repent for their "sins." She would slap the

sisters, cut their hair, and tell them "nobody will love you."

Murra told the sisters that "she was a prophet from God." Based on this,

they believed that whatever Murra said came directly from God. They were ordered to cut off ties with their family, which they did-leaving them completely

dependent on Murra.

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Vania was in medical school during the time Murra lived in Mexico. Vania

and Murra used to communicate via letter, and at one point the content ofMurra's

letters became increasingly more religious. Murra claimed she was a prophet

of God and would communicate prophecies to Vania. One ofMurra's "prophecies"

was that Vania had to end the relationship with the man she was dating because

the marriage would be without God's consent or approval; she also told Vania

that the man could beat or kill her, and that if they had a child together the child

would be sick. Vania left the man as a result and returned to Mexico. Vania

never practiced medicine because Murra told her that God did not want her to

do so. While living in Mexico, Vania witnessed Murra's nightly paddling of the

Guerreros. Murra instructed Vania to paddle the sisters or risk being punished

herself. Murra also occasionally paddled Vania.

Ingrid, her sisters, and Vania were forced to work in Murra's husband's

factory making jeans five or six days a week. And while they were ostensibly paid

for their work, all of their wages went to Murra.

B

Claiming that "God had told her to come to the promise[d] land," Murrawho is a U.S. citizen-moved with her children to El Paso, Texas, in 1997. The

Guerreros stayed behind in Mexico to work in the jeans factory, and Ingrid took

care ofMurra's husband for no compensation. Murra facilitated the Guerreros'

illegal passage into the United States in 1998. Vania entered the country illegally a year later. While in the United States, Murra retained Vania and Ingrid's

identification documents and birth certificates. The Guerreros did not have beds

in the house in El Paso and had to sleep on the floor or, as punishment, in the

garage. Ingrid delivered flyers and cleaned houses for Murra, who retained all

of the money Ingrid earned.

Murra moved the group from El Paso to Fort Worth in 1999. Once in Fort

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Worth, Ingrid and her sisters delivered flyers advertising a house-cleaning service, and they and Vania began cleaning houses. They cleaned three or four

houses a day, six days a week. Clients would pay by cash or by checks made out

to Murra, and Murra would retain all the money they earned. They would not

hold back from Murra the money they were given by clients out of fear of punishment. Ingrid also was forced to obtain employment as a cashier at McDonald's and Wal-Mart under a false name and using false identification documents

that Murra had supplied. Oftentimes, Ingrid would clean houses and work as

a cashier on the same day-getting only four hours of sleep at night.

During the twelve years Ingrid lived in Fort Worth with Murra, she never

had a bed or bedroom; she was forced to sleep on the floor. Murra continued to

send the Guerreros to sleep in the garage as punishment, as she had done in El

Paso. When confined to the garage, which was neither heated nor cooled, the

Guerreros would have to request permission to use the bathroom.

Murra constantly reminded the Guerreros that they were in the country

illegally and that they had no papers. Vania testified that she eventually confronted Murra about her treatment of the Guerrero sisters; Murra responded by

subjecting Vania to the same treatment from then on. Murra threatened Vania

with immigration consequences, as well, telling her she had nowhere to go because "immigration is going to ... grab you, they are going to get you and then

they are going to put you in this casket and they are going to bury you alive."

Vania testified that she was so indoctrinated by Murra that she believed that

federal immigration officials would treat an illegal alien in that way.

Murra continued to exert religious-based influence over Vania and the

Guerreros. The Government proffered a tape recording that Murra made concerning the victims' purported religious failings. On the recording, Murra stated

(translated from Spanish), 'Tm good before God because I speak the will of God."

She accused the women of existing in a "vicious circle of mistakes and mistakes

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and self-pity and laziness" and told them they were destined for hell (an accusation that Ingrid testified Murra made every day during the years she lived

with Murra).

Over time, several ofMurra's house cleaning clients began to notice signs

of abuse, and the victims confided in them about Murra's treatment. Alicia Richardson testified to her belief that Vania lost at least thirty pounds during her

employment and that she looked "very thin and frail'' and "unhealthy." Vania

eventually told Richardson that she was not being fed, that she would not be

paid for her cleaning work, and that Murra maintained her immigration papers,

which caused Vania fear regarding her immigration status. Richardson offered

to have Vania come live with her family, and she and her husband would pay

Vania to watch their children, but Vania was "scared to death'' that Murra would

have her sent back to Mexico. Marsia Blackwell, another client, also testified as

to Vania's weight loss. Blackwell noticed Vania's "progression of degradation ...

mentally, physically, emotionally." Eventually, Vania emotionally recounted to

Blackwell the details ofMurra's punishment, including that she was prohibited

from using the refrigerator at home and was given rotten food to eat.

Linda Ziegler, for whom Ingrid provided cleaning services from 2001 to

2011, testified that Ingrid looked "very thin" and that she would clean her house

despite appearing sick. Ingrid told Ziegler about the abuse she suffered and how

she was not allowed to keep the money she earned, but she was afraid of having

nowhere to live and nowhere to go. John Angle, for whom Ingrid provided cleaning services between 2008 and 2011, testified that Ingrid frequently looked "run

down" while cleaning his house and would clean despite being "clearly ... ill."

Vania testified that the money the victims earned from house cleaning

went to fund cosmetic procedures for Murra. The Government's analysis of

Murra's expenditures between February 2009 and May 2011 indicated that her

spending, made possible by revenue from the victims' house cleaning, included

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thousands of dollars spent on salons, cosmetics, other health and beauty products, clothes, and home-improvement items. Review of these accounts during this

period revealed no checks written or other transfers to Ingrid, despite $287,000

of cleaning revenues in that twenty-seven-month period.

c

Vania left Murra's home in October 2006, preferring the unknown to "dying in this hell.'" Marsia Blackwell brought Vania to stay with her until she was

up on her feet. Vania revealed later in group counseling sessions that Murra had

allowed her no personal freedoms and punished her by putting her in the garage

and depriving her of food and water. She also explained that Murra would use

scripture to curse her and threaten her with an eternity in hell.

Ingrid left in 2011, after feeling trapped and having suicidal thoughts.

One witness who saw Ingrid thereafter, Margarita Delosantos, testified that Ingrid was extremely upset and fearful. Ingrid recounted to Delosantos the abuse

she suffered-that Murra subjected her to ice baths, beatings, verbal abuse, and

spiritual threats. She also told Delosantos about Murra's practice of segregating her and her sisters to certain areas of the house and depriving them of food.

Ingrid and Vania both eventually sought help from a nonprofit organization, Mosaic Family Services, Inc. ("Mosaic"), which specializes in immigrationrelated legal and counseling services. Mosaic ultimately referred this case to the

Government for prosecution.

D

Murra was charged with two counts of forced labor and two counts of harboring an illegal alien for profit, based on her treatment of Vania and Ingrid.

Both the Government and Murra submitted evidence and testimony, though

Murra elected not to testify in her own defense. At the close of the five-day trial,

1

Tania Guerrero left Murra's home in 2000. Both Yuriria and Jehan left in 2004.

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the jury found Murra guilty on all counts. The district court entered judgment

on January 27, 2017, and Murra timely filed a notice of appeal.

We have jurisdiction under 28 U.S.C. § 1291and18 U.S.C. § 3742(a).

II

We now briefly summarize the facts pertinent to each of the issues on

appeal.

A

Prior to trial, the Government served notice that it intended to call as an

expert witness Dr. Shannon Wolf, a Professor of Psychology and Counseling at

Dallas Baptist University, to testify regarding

the dynamics of abusive relationships, explaining why victims frequently remain with individuals who have mistreated or abused

them and the contributing factors that may make an individual

more susceptible to control, manipulation, or mistreatment by

another. She will also testify regarding trauma bonds, to include

what they are, how they form, and why they can be so powerful.

Murra filed a motion to exclude her testimony under Federal Rule of Evidence

702. Following a Daubert• hearing, the district court denied the motion and admitted Dr. Wolf as an expert, finding that her "proposed testimony on the 'general concept' of trauma bonds is admissible," and that her "professional experience, personal observations, and education qualif[ied] her" to testify as to the

concept.

Dr. Wolf testified generally at trial about trauma bonds. She described

trauma bonding as "a very powerful emotional connection between someone who

is being abused and their abuser or perhaps a captive and a captor and it's mitigated by a series of traumatic events, traumatic situations." She further detailed

that in traumabonding "the abused person not only attaches to the abuser but

to other people in the house, so they try to please this abuser, that's part of this

2

See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

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relationship, and it's one of a very strong power differential where one person

has a lot of power and the abused person has almost no power." She discussed

factors that are involved in developing a trauma bond (such as age), the strength

of a trauma bond, and the general thought processes of victims who are connected

to their abusers via a trauma bond. Dr. Wolfs testimony included no application

of the principles and methods underlying that testimony to the facts of this case.

B

Also prior to trial, Murra subpoenaed Mosaic, requesting documents related to services it had furnished to the victims. After Mosaic tendered the documents requested in the subpoena in part, along with a privilege log, Murra

moved for Mosaic to be held in contempt. The district court ordered Mosaic to

appear for a hearing and to bring the challenged documents to court.

At the hearing, Meijken Westenskow, Mosaic's Legal Program Director,

brought only the documents which Mosaic claimed were protected by attorneyclient privilege. Mosaic later produced to the court, through Licensed Professional Counselor-Intern Mara Watkins, the documents it claimed were protected

by the psychotherapist-patient privilege. The court reviewed the documents in

camera and ruled that all of the documents in question were covered by their

respective privileges. 3

c

After the close of evidence and prior to closing arguments, the judge read

the jury instructions. Those instructions included the following two statements:

"The defendant begins with a clean slate. The law does not require the defendant

to prove her innocence or produce any evidence at all and no inference whatsoever may be drawn from the election of the defendant not to testify"; and "[A]lways

bear in mind that the law never imposes upon a defendant in a criminal case

3 The documents were submitted to this court ex parte and under seal.

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the burden or duty of calling any witnesses or producing any evidence."

During his rebuttal closing argument, the prosecutor made the following

statement: "And let's step back and let's talk about credibility, folks, because

that woman sitting there, she has an absoluteD right not to testify. You heard

about that ...." Defense counsel immediately objected and moved for a mistrial,

to which the court responded, "I will sustain the objection. I will ask the jury

to please disregard the last statement of the prosecutor and I will refer the jury

to page 2 of the jury charge." The prosecutor then clarified that his remark was

intended to address the credibility of the defense witnesses who had testified:

And folks, you need to follow those instructions. You all committed

to that in voir dire. You said that you could follow that rule and you

must. But the defendant in this caseO has chosen to put on a case

and you have an absoluteD right to judge the credibility of that case

which is what I was trying to say. Do you understand that distinction? You can't hold anything against her but you can judge the

credibility of the witnesses that she put on the stand.

And let's talk about the credibility of those witnesses ....

From there, the rebuttal continued through to its conclusion without incident.

D

The Pre-Sentence Report added two points to Murra's proposed offense

level under U.S. Sentencing Guideline§ 3Al.l(b)(l) because Murra knew or

should have known the victims of the offenses were vulnerable victims. The PSR

supported this conclusion by explaining that the Guerreros were between six

and eleven years old when Murra began "grooming" them. It also outlined how

Murra used religion to manipulate them. And it explained that Murra kept the

Guerreros' legal documents, school records, and family photos, and that she

threatened Vania with calls to immigration authorities because Vania was not

legally in the United States. With other enhancements, Murra's total offense level

was 31, and the PSR set her guideline sentencing range at 108 to 120 months.

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Murra objected to the recommendation that the "vulnerable victim" enhancement be imposed. The PSR Addendum recommended that the district court

overrule the objection, emphasizing that Murra began "grooming" the victims

in childhood and arguing that the continued mental, physical, and spiritual abuse

made the victims "continually vulnerable." Murra responded that application of

the enhancement based on the victims' immigration status would be improper

because the vulnerability attendant to being an illegal alien is taken into account in the base offense of harboring an illegal alien. At the sentencing hearing,

the district court overruled Murra's objections and imposed the enhancement,

sentencing Murra to seventy-two months' imprisonment.

III

We first address Murra's challenge to the district court's admission of Dr.

Wolfs expert testimony under Rule 702. We review a trial court's decision to

admit expert testimony for abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S.

136, 139 (1997). "A trial court abuses its discretion when its ruling is based on

an erroneous view of the law or a clearly erroneous assessment of the evidence."

Brown v. Ill. Cent. R.R. Co., 705 F.3d 531, 535 (5th Cir. 2013) (citation omitted).

Ifwe find an abuse of discretion, we are not to reverse the district court's ruling

unless it affected the complaining party's substantial rights. Moench v. Marquette

Transp. Co. Gulf-Inland, L.L.C., 838 F.3d 586, 594 (5th Cir. 2016). A complaining party can demonstrate that her substantial rights were affected by a district

court's erroneous evidentiary ruling if she demonstrates that the ruling affected

the outcome of the proceedings in the district court. See Mahmoud v. De Moss

Owners Ass'n, 865 F.3d 322, 327-28 (5th Cir. 2017). An error does not affect

substantial rights ifthe court is "sure, after reviewing the entire record, that

the error did not influence the jury or had but a very slight effect on its verdict."

Carlson v. Bioremedi Thearpeutic Sys;, Inc., 822 F.3d 194, 202 (5th Cir. 2016)

(quoting Kelly v. Boeing Petrol. Servs., Inc., 61 F.3d 350, 361 (5th Cir. 1995)).

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Murra argues that the admission of Dr. Wolfs expert testimony was based

on the district court's erroneous view of Rule 702, which permits witnesses who

are qualified as experts by knowledge, skill, experience, training, or education

to testify in the form of an opinion or otherwise if (a) "the expert's scientific,

technical, or other specialized know ledge 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. The Government, however, points

us to the advisory committee note to the 2000 amendments to Rule 702, which

contemplates a circumstance arising in some cases where it "might also be important ... for an expert to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case."

Fed. R. Evid. 702 advisory committee note. In such a circumstance, "Rule 702

simply requires that: (1) the expert be qualified; (2) the testimony address a subject matter on which the factfinder can be assisted by an expert; (3) the testimony be reliable; and (4) the testimony 'fit' the facts of the case." Id.

The district court did not explicitly base its admission of Dr. Wolfs testimony on this method-it ruled that the testimony was admissible because this

court had previously recognized expert testimony on "return-to-the-abuser behavior"-but its ruling was inherently based on the method's factors, especially

considering that Dr. Wolf did not apply her testimony to the facts of the case.

The court found that Dr. Wolf was qualified, her testimony on trauma bonds

addressed a subject matter on which the jury could be assisted, her testimony was

reliable, and her testimony was relevant to the facts the Government alleged.

We have had no occasion to address a trial court's use of the advisory committee note's method for admitting expert testimony. But we need not address it

here, because even assuming, without deciding, that the district court's admission

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of Dr. Wolfs testimony was an abuse of discretion, Murra fails to show that that

abuse of discretion affected her substantial rights.

Murra did not brief this portion of the issue. She raised the argument that

the district court's admission of Dr. Wolfs testimony was an abuse of discretion,

but she neglected the fact that a mere finding that the district court abused its

discretion does not end the analysis or result in automatic reversal. The claim is

therefore abandoned due to inadequate briefing. Cinel v. Connick, 15 F.3d 1338,

1345 (5th Cir. 1994).

Even had Murra briefed the argument, the argument would still fail.

Murra proffered her own expert, Dr. Daphny Ainslie, a licensed psychologist

and instructor at Texas State University whose research focuses on trauma

(including women's trauma and trauma regarding Mexican immigration), who

countered Dr. Wolfs testimony by testifying about both the concept of trauma

generally and what she perceived to be a lack of reliable research on the viability

of the "trauma bond" concept. More importantly, Dr. Wolfs testimony was not

at all critical to proving the Government's case. The Government never referred

to Dr. Wolf after she completed her testimony (including in its closing argument)

and never referred to the trauma bonds concept following Dr. Ainslie's testimony (including in its closing argument). Based on this, Murra could not show

that the admission of Dr. Wolfs testimony affected her substantial rights. Cf.

Carlson, 822 F.3d at 202 (concluding that plaintiffs' substantial rights were

affected when district court abused its discretion by admitting defense's expert

testimony without performing a Daubert inquiry, because the district court denied defendants' motion for judgment as a matter oflaw at the close of the plaintiffs' case-in-chief, the expert was the defense's sole witness, and defense counsel relied on the expert's testimony during closing argument).

IV

Murra next claims that the district court erred by permitting Mosaic to

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withhold documents from her under the psychotherapist-patient and attorneyclient privileges.

A

We review factual findings underlying a ruling of psychotherapist-patient

privilege for clear error, and we review application of the legal principles de

novo. United States v. Auster, 517 F.3d 312, 315 (5th Cir. 2008). A district court's

factual finding is clearly erroneous "if, on the entire evidence, we are left with a

'definite and firm conviction' that a mistake has been committed." United States

v. Brown, 650 F.3d 581, 588 (5th Cir. 2011) (quoting United States v. U.S. Gypsum

Co., 333 U.S. 364, 395 (1948)).

The Supreme Court first recognized the existence of a psychotherapistpatient privilege in federal law in Jaffee v. Redmond, 518 U.S. 1 (1996), when it

held that "a privilege protecting confidential communications between a psychotherapist and her patient 'promotes sufficiently important interests to outweigh

the need for probative evidence."' Id. at 9-10 (quoting Trammel v. United States,

445 U.S. 40, 51 (1980)). The privilege "covers confidential communications

made to licensed psychiatrists and psychologists ... [and] confidential communications made to licensed social workers in the course of psychotherapy."

Id. at 15 (emphases added). Murra asserts that the district court's application

of the psychotherapist privilege was error on two grounds.

She first argues that the Government has not provided evidence that the

victims made any communications to a licensed psychotherapist or social worker.

As just outlined above, Jaffee made clear that an essential premise of the psychotherapist privilege is that the challenged communications must have been

made to a licensed psychiatrist, licensed psychologist, or licensed social worker

in the course of psychotherapy. Id. That said, our review of the sealed documents

reveals no clear error in the district court's factual finding that the communications in the documents were made in the course of psychotherapy to licensed

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psychologists or license-eligible individuals under the supervision of licensed

psychologists.

Murra next argues that the victims waived any communications purportedly protected by the psychotherapist privilege because the victims "knew that

the information regarding their allegations of human trafficking would be relayed

to third parties, namely, immigration services, and the government for purposes

of prosecution." This argument is based on the incorrect assumption that an individual forfeits the psychotherapist privilege when she divulges information to

her psychotherapist that amounts to allegations that a crime has been committed. The mere assertion that "facts" were disclosed to third parties and at trial

does not by itself establish that the victims-or their psychotherapists-disclosed

the substance of any confidential communications. A defendant does not get

to crack open every confidential communication with a victim's psychotherapist

simply because that victim may have discussed facts with her psychotherapist

that are relevant to the issues at trial. To paraphrase the Supreme Court's language in Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981): although a

patient may not refuse to disclose any relevant fact within her knowledge merely

because she discussed those facts in a confidential communication with her psychotherapist, she cannot be compelled to answer the question, "What did you

say to your psychotherapist?"

Our review of the confidential communications reveals no relevant underlying fact discussed in the victims' psychotherapy sessions that was not fully

explored during the victims' testimony and cross-examination at trial. The victims were forthcoming in their testimony about their recollection of those facts,

and no victim attempted to hide behind the privilege to avoid giving testimony

about those facts. The victims had a "reasonable expectation of confidentiality"

in their confidential communications with their psychotherapists, and there is

nothing in the record to show that any portion of those confidential communications

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was revealed by Mosaic to any third party, cf. Auster, 517 F.3d at 319 (finding

no reasonable expectation of confidentiality in defendant's communication to his

therapist of violent threat against third parties where defendant had actual

knowledge that his threats were not confidential); United States v. Lara, 850

F.3d 686, 691 (4th Cir. 2017) (finding waiver of the privilege where the patient

signed a form authorizing treatment providers to have "unrestricted communication" with the state probation department regarding "any ... information

deemed necessary to protect the community"), 4 or by the victims themselves, cf.

Koch v. Cox, 489 F.3d 384, 391 (D.C. Cir. 2007) (explaining that a patient waives

the privilege where she "selectively disclose[s] part of a privileged communication in order to gain an advantage in litigation" (citation and internal quotation

marks omitted); Nguyen v. Excel Corp., 197 F.3d 200, 206 (5th Cir. 1999) (holding, in the analogous attorney-client privilege context, that a client "implicitly

waives the attorney-client privilege by testifying about portions of the attorneyclient communication").

The singular conclusion arising from this discussion is that Murra has

failed to establish waiver. Murra cannot be permitted, as she seeks, to review

confidential communications and then advise the court of the harm she suffered

as a result of the withholding. See Kinder v. White, 609 F. App'x 126, 131 (4th

Cir. 2015) ("[N]ow that the psychotherapist privilege has been recognized, it

would be both counterproductive and unnecessary for a court to weigh the opponent's evidentiary need for disclosure any time the privilege is invoked."). We

find that the district court's application of the privilege was not error.

4 In fact, Mosaic is bound by law not to reveal confidential information relating to the

victims, as victims of trafficking, to third parties. See 8 U.S.C. § 1367(a)(2) (imposing penalties

for disclosure of confidential information relating to immigrants who are victims of trafficking); 8 U.S.C. § 110l(a)(l5)(T) (applying Section 1367 to victims of severe trafficking); 8 C.F.R.

§ 214.ll(p)(3) (non-governmental agencies that receive information from trafficked victims

"are bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. § 1367").

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B

"The application of the attorney-client privilege is a 'question of fact, to

be determined in the light of the purpose of the privilege and guided by judicial

precedents."' In re Auclair, 961F.2d65, 68 (5th Cir. 1992) (quoting Hodges,

Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)). We apply

the clearly erroneous standard of review, as we did in the context of the psychotherapist-patient privilege, and review the district court's application of the controlling legal standards de nova. King v. Univ. Healthcare Sys., L.C., 645 F.3d

713, 721 (5th Cir. 2011).

"For a communication to be protected under the [attorney-client] privilege,

the proponent 'must prove: (1) that he made a confidential communication;

(2) to a lawyer or his subordinate; (3) for the primary purpose of securing either

a legal opinion or legal services, or assistance in some legal proceeding."' EEOC

v. BDO USA, L.L.P., 876 F.3d 690, 695 (5th Cir. 2017) (emphasis added) (quoting

United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997)). The record shows

that the district court reviewed the pertinent documents and reasonably relied

upon the representations made by Mosaic's custodian in determining that the

attorney-client privilege attached to the victim's confidential communications

with Mosaic's attorneys and/or to subordinates of those attorneys, which were

made for the primary purpose of securing legal services pertaining to human

trafficking. We find no clear error in that determination.

Murra argues here, as well, that because the victims relayed facts to Mosaic

attorneys that were later relayed to the Government and third parties, and that

were later testified to at trial, the privilege has been waived. Public disclosure

of facts does not destroy the attorney-client privilege with respect to confidential

communications about those facts. United States v. El Paso Co., 682 F.2d 530,

538 n.10 (5th Cir. 1982). None of the testimony the victims gave regarded con-

fidential communications any of the victims had with Mosaic attorneys. The

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victims' testimony that they sought legal services from Mosaic because they believed they may be the victims of human trafficking does not amount to a waiver

of the confidential communications attendant to those services. The victims have

not, as Murra argues, disclosed a "significant portion of a confidential communication." Rather, they have not disclosed any portion of their confidential communications, so there is no basis on which to rule that the privilege was waived.'

Accordingly, we find that the district court's application of the attorney-client

privilege similarly was not error.

v

We turn now to Murra's challenge to the prosecutor's comment during rebuttal closing argument. Murra argues that the comment-"And let's step back

and let's talk about credibility, folks, because that woman sitting there, she has

an absoluteD right not to testify"-was a constitutionally impermissible remark

on her decision not to testify in her own defense.

The Fifth Amendment forbids comment by the prosecution, either direct

or indirect, on the accused's silence. Griffin v. California, 380 U.S. 609, 615

(1965); United States v. McMillan, 600 F.3d 434, 452 (5th Cir. 2010). Review of

an assertion a Fifth Amendment violation on this ground involves two steps,

each of which requires its own analysis.

5

Murra's other waiver arguments similarly fail. First, she argues that Vania waived

attorney-client privilege because she testified that, to the best of her knowledge, she did not

have an attorney. But Vania's negative answer to the question "So you don't have a lawyer?"

did not involve any disclosure of confidential communications and did not involve any disclaimer that previous communications with Mosaic attorneys were privileged. Moreover, this

argument ignores a stipulation, entered into by both Murra and the Government at trial, that

a Mosaic attorney had provided legal services to the victims, including Vania. And second,

Murra contends that Ingrid waived the privilege by testifying to the fact that Mosaic is assisting her in obtaining a T visa as a victim of human trafficking. Though Ingrid testified that

she was seeking a T visa with Mosaic's assistance, she did not testify about the discussions

she had with Mosaic's attorney in seeking a T visa.

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A

We first decide whether the prosecutor made an impermissible remark.

"[T]he test for determining whether the prosecutor's remarks were constitutionally impermissible is: (1) whether the prosecutor's manifest intent was to comment on the defendant's silence or (2) whether the character of the remark was

such that the jury would naturally and necessarily construe it as a comment on

the defendant's silence." Rhoades v. Davis, 852 F.3d 422, 432-33 (5th Cir. 2017)

(quoting United States v. Bohuchot, 625 F.3d 892, 901 (5th Cir. 2010)). But "[i]f

there is an 'equally plausible explanation for the remark,' the prosecutor's intent

is not manifest." United States v. Green, 324 F.3d 375, 382 (5th Cir. 2003) (quoting United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996)). The defendant

bears the burden of proving the prosecutor's intent. United States v. Laury, 985

F.2d 1293, 1303 (5th Cir. 1993).

Murra argues that the direct comparison and contrast offered by the prosecutor's comment between credibility ("let's talk about credibility, folks ... ")

and the election not to testify(" ... because that woman sitting there, she has

an absoluteD right not to testify.") would naturally and necessarily be taken as

a comment on her failure to testify. To Murra, the obvious and natural suggestion from that comparison is that, although Murra has the right not to testify,

not doing so weakens the credibility of her defense. The Government argues that

it is "equally plausible (in fact, more plausible)" that the prosecutor made the

remark "solely to explain that the jury could consider the credibility of the witnesses whom Murra called to testify."

Not all constitutionally impermissible remarks on a defendant's election

not to testify are created equal. Some are egregious, see United States v. Griffith,

118 F.3d 318, 324 (5th Cir. 1997) (prosecutor, annoyed by defendant's audible

"running commentary" during rebuttal argument, broke off mid-sentence, turned

to the defendant, and asked, "Would you like to take the stand and testify?"),

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while some are more benign, see United States v. Johnston, 127 F.3d 380 (5th Cir.

1997). In Johnston, the prosecutor remarked during closing argument that the

jury instruction on prior inconsistent statements "reminds you that a defendant

has the right not to testify. That is a constitutional right. It is yours. It is mine.

It is theirs. Please value it. I do. Don't take into consideration the fact that

whether or not anyone testified in this case is inappropriate." Id. at 398. We

found that remark to be impermissible because it was a direct comment on the

defendants' failure to testify. Although the government argued that there was

an equally plausible explanation for the remark-the prosecutor was cautioning

the jury not to consider whether the defendants testified, but to look instead

only at the evidence and testimony presented to them-the comment "focused

the jury's attention on the fact that the defendants did not testify," which constituted error. Id.

The comment here and the Government's argument in favor of equal

plausibility resemble their counterparts in Johnston, so the result here should

resemble Johnston's result, as well. In both instances, the prosecutor "reminded"

the jury that the defendant has a right not to testify. And in both instances, the

government claimed that its intent in making the remark was innocuous. But

just as the Johnston court did, we conclude that the Government's explanation

is not equally plausible. If the Government here were, as it argues, focused on

attacking the credibility ofMurra's witnesses, there was no need for the prosecutor to preface that line of attack by calling to the jury's attention the fact that

Murra did not testify. "[W]hatever the prosecutor's subjective intent in making

the remarkO, 'the character of the remark [was] such that the jury would naturally and necessarily construe it as ... comment on the defendant's silence."'

Gongora v. Thaler, 710 F.3d 267, 277-78 (5th Cir. 2013) (quoting Jackson v.

Johnson, 194 F.3d 641, 652 (5th Cir. 1999)) (alterations removed). Murra's election not to testify has nothing to do with the credibility of the witnesses she chose

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to present. The Government's comparison between the two-direct or not, purposeful or not-was inappropriate.

The Government attempts to distinguish Johnston by arguing that the

prosecutor there made a "string of comments concerning the defendant's silence,"

while the prosecutor here made only a "brief comment." This distinction is more

appropriately raised in the second step of the analysis, in which we determine

whether the comment had a prejudicial effect. At this first step, we concern ourselves with neither the magnitude nor the frequency of the comments; rather,

we review each comment to determine whether, on its face, it impinges on the

Fifth Amendment rights of the defendant. This comment did.

Neither the fact that the prosecutor drew no negative inference from the

defendant's election not to testify, nor the fact that Murra's counsel had the

wherewithal to object at the first sign of violation-instead of letting the prosecutor continue on as counsel in Johnston did-cures the comment of its unconstitutional blight. That the prosecutor drew attention to Murra's decision

alone is impermissible; the remark was a direct comment on Murra's decision

not to testify, which the Fifth Amendment forbids.

B

Because the remark was impermissible, we must decide whether the

remark "cast[s] serious doubt on the correctness of the jury's verdict." United

States v. Weast, 811 F.3d 743, 752 (5th Cir. 2016) (quoting United States v.

Davis, 609 F.3d 663, 677 (5th Cir. 2010)). This second step of the analysis "sets

a high bar." United States v. Rashad, 687 F.3d 637, 643 (5th Cir. 2012) (quoting

United States v. Gracia, 522 F.3d 597, 603 (5th Cir. 2008)). We look to three

factors: "(1) the magnitude of the prejudicial effect of the prosecutor's remarks,

(2) the efficacy of any cautionary instruction by the judge, and (3) the strength

of the evidence supporting the conviction." Davis, 609 F.3d at 678 (citations and

internal quotation marks omitted).

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1

"The magnitude of the prejudicial effect is tested by looking at the prosecutor's remarks in the context of the trial in which they were made and attempting

to elucidate their intended effect." United States v. Fields, 72 F.3d 1200, 1207

(5th Cir. 1996). Here, the prosecutor made no other similar comments, either

before or after the challenged comment. See United States v. Munoz, 150 F.3d

401, 415 (5th Cir. 1998) (finding that a prosecutor's comment was not significantly prejudicial when viewed in light of the record as a whole because he only

made one such comment). Moreover, the prosecutor did not stress to the jury an

inference of guilt from Murra's silence as a basis for conviction. See Anderson

v. Nelson, 390 U.S. 523, 524 (1968).

Murra attempts to inflate the prejudicial character of the comment by

arguing that because the Government's "entire case" against her rested on credibility determinations and that by making the comment when he did, the prosecutor torpedoed her entire case. The comment is properly viewed more as "an

isolated remark than a call for the jury to focus on the fact that the defendantD

did not testify." McMillan, 600 F.3d at 452-53; see also Griffith, 118 F.3d at 325

(finding that the magnitude of an improper remark was minimal because the

remark "was an isolated comment, which did not 'strike at the jugular' of the

defense"). Thus, we find that Murra has not shown that the remark was of a

significantly prejudicial magnitude.

2

When a district court gives an immediate curative instruction, it "cures

any alleged harm from [a] prosecutor's improper remarks." McMillan, 600 F.3d

at 453. In McMillan, during rebuttal argument, the prosecutor stated that "Not

one of these defendants is stepping up and saying that they did anything wrong."

Id. at 452. The district court instructed the jury to disregard the prosecutor's

comment and gave the curative instruction that "no defendant need testify, they

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need put on no evidence, they need not put on anything at all." Id. When the

prosecutor continued, he explained that he misspoke and meant to say that defense counsel blamed others without explaining or taking responsibility for the

schemes in the case. Id. Assuming the prosecutor's comments were impermissible, we ruled that because the district court gave an immediate curative instruction, and because we had "previously held that such an instruction cures

any alleged harm from the prosecutor's improper remarks," the comments did

not rise above the level of harmless error. Id. at 453.

Here, the district court instructed the jury prior to closing arguments that

"no inference whatsoever may be drawn from the election of the defendant not

to testify," and that Murra, as the defendant, had no burden or duty of calling

witnesses or producing evidence, Later, immediately following resolution of defense counsefs objection to the prosecutor's comment, the court instructed the

jury to "disregard the last statement of the prosecutor and I will refer the jury

to page 2 of the jury charge," which contained the instruction that the jury may

not draw a negative inference from the defendant's decision not to testify.

McMillan instructs that we deem the district court's charge and immediate,

post-comment curative instruction sufficiently efficacious. See also United States

v. Turner, 674 F.3d 420, 440 (5th Cir. 2012) ("We presume that such instructions

are followed unless there is an overwhelming probability that the jury will be

unable to follow the instruction and there is a strong probability that the effect

[of the improper statement] is devastating.").

Murra is incorrect that a curative instruction must be "thorough" or "unequivocal." See Weast, 811 F.3d at 753. As we have explained, "[T]he district

court can purge the taint of a prosecutor's prejudicial comments with a cautionary instruction, even, in some cases, one that is merely generic." United States

v. Reagan, 725 F.3d 4 71, 492 (5th Cir. 2013) (citation and internal quotation

marks omitted). Indeed, we have found generic cautionary instructions to be

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adequately curative in several cases. See id. ("[Y]ou're bound to the evidence

that you have heard, and you will recall what it was."); Turner, 674 F.3d at 440

("The instruction did not specifically mention any statement that was made but

reminded the jury that its verdict must be based on the evidence and not on

prejudice or passion."); Gracia, 522 F.3d at 604 (instructions that the jury's duty

was "to base [their] verdict solely upon the evidence without sympathy or prejudice," that the jury "must consider only the evidence presented during the trial,"

and that the jury should "[r]emember that any statements, objections or arguments made by the lawyers are not evidence" and remember that "[w]hat the

lawyers say is not binding"); see also United States v. McCann, 613 F.3d 486,

497-98 (5th Cir. 2010) (affirming efficacy of"generic" instruction to the jury that

''It is also your duty to base your verdict solely upon the evidence without prejudice and without sympathy,"• even though the district court gave no curative

instruction immediately after prosecutor's improper comment).

The district court gave a clear instruction before the comment and a clear

curative instruction immediately after the comment. Cf. Johnston, 127 F.3d at

399 (finding that district court's curative instruction did not mitigate prejudice

when it was given more than a day after the impermissible comment and when

the district court gave no instructions prior to closing arguments); Griffith, 118

F.3d at 324-25 (finding that the district court erred by giving no instruction to the

jury after the challenged comment). We find that the instructions were effective.

3

The importance of the third factor in this analysis-the strength of the

evidence supporting conviction-is lessened where the prejudice caused by the

remark is minimal and the district court's curative instruction is effective in

6 The decision in McCann does not actually quote this "generic'' instruction the trial

court gave. It can be found at Brief for Appellee at 38, United States v. McCann, 613 F.3d 486

(No. 09-30550), 2010 WL 4716238, at *38.

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mitigating whatever prejudice may have been caused. Here, Ingrid and Vania,

the victims whose suffering gave rise to the charges, testified at length about the

abuse Murra exacted upon them. The Government presented a tape recording

ofMurra's voice in which she told the Guerreros they were destined for hell and

acknowledged that she had forced Yuriria to sleep in the garage. The Government also proffered bank records which showed that Murra used the house cleaning revenues for her own personal gain and that she made no transfers to Ingrid

during that time period. And, perhaps most importantly, the Government proffered several disinterested witnesses-former house cleaning clients ofMurra'swho testified to observing the effects ofMurra's abuse on Ingrid and Vania.

Murra, by contrast, proffered as witnesses her own children, their spouses, occasional houseguests, and a half-sister who depended on Murra for shelter at

the time of trial.

We find that the strength of the Government's evidence supporting Murra's

conviction on all four counts completely outweighs any remaining perceived

prejudicial effect of the prosecutor's comment. We therefore conclude that any

error arising from the prosecutor's comment was harmless.

VI

Finally, we address Murra's challenge to the district court's application

of the "vulnerable victim" sentencing enhancement.

We review the district court's interpretation of the Sentencing Guidelines

de nova, review a finding of unusual vulnerability for clear error, and determine

whether the district court's conclusion was plausible in light of the record as a

whole. United States v. Jenkins, 712 F.3d 209, 212 (5th Cir. 2013); United States

v. Robinson, 119 F.3d 1205, 1218 (5th Cir. 1997). "[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it

violates the Constitution or a federal statute, or is inconsistent with, or a plainly

erroneous reading of, that guideline." Jenkins, 712 F.3d at 212 (quoting Stinson

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v. United States, 508 U.S. 36, 38 (1993)).

The vulnerable victim enhancement provision of the Guidelines states,

"If the defendant knew or should have known that a victim of the offense was

a vulnerable victim, increase by 2 levels." U.S.S.G. § 3Al.l(b)(l). The provision's

commentary defines a "vulnerable victim" as a person "who is a victim of the

offense of conviction" and "who is unusually vulnerable due to age, physical or

mental condition, or who is otherwise particularly susceptible to the criminal

conduct." U.S.S.G. § 3Al.l cmt. 2. The commentary cautions that the enhancement should not be applied "ifthe factor that makes the person a vulnerable

victim is incorporated in the offense guideline." Id.

We have not previously addressed, in any precedential way, the application

of this enhancement in this context. 7 But the great weight of authority from

several of our sister circuits supports a conclusion that the enhancement

was properly applied here. The Ninth Circuit upheld application of the enhancement to. a sentence for involuntary servitude, where the district court found the

victim was unusually vulnerable based on her immigrant status and the "linguistic, educational, and cultural barriers that contributed to her remaining in involuntary servitude." United States v. Veerapol, 312 F.3d 1128, 1132-33 (9th Cir.

Murra's argument-that our decision in United States v. Angeles-Mendoza, 407 F.3d

742 (5th Cir. 2005), controls and compels the conclusion that the vulnerable victim enhancement was improperly applied-misses the mark. She points to the statement in Angeles-Mendoza

that "[a]lthough the court may have been correct in noting the inherent vulnerability of smuggled aliens, we assume that such a characteristic was adequately taken into account in establishing the base offense level in U.S.S.G. § 2Ll.1," id. at 748, and contends that the Government has not established how the victims' immigration status "made them any more unusually vulnerable than any other victim of harboring or forced labor." But the defendants in

Angeles-Mendoza were not convicted of forced labor; they were convicted of conspiracy to smuggle, transport, and harbor illegal aliens. And because the alien status of the victims was contemplated by the base offense level for that crime, U.S.S.G. § 2Ll.1, application of the vulnerable victim enhancement to those defendants' sentences was inappropriate. Here, however,

the base offense level for Murra's convictions is set by U.S.S.G. § 2H4.1, which governs sentences for convictions involving peonage, involuntary servitude, slave trade, and child soldiers-like Murra's convictions for forced labor. Angeles-Mendoza does not govern here.

7

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2002). The Seventh Circuit relied on Veerapol in affirming application of the

enhancement to a sentence for forced labor where the victim was also an illegal

alien. See United States v. Calimlim, 538 F.3d 706, 717 (7th Cir. 2008) ("[The

victim] was a member of a group typically targeted by those desiring forced

labor but her group (illegal aliens) is only part of the broader set of possible

victims. She was therefore a vulnerable victim for the purposes of [the Guideline]."). And the Second Circuit came to a similar conclusion, holding that the

enhancement was properly applied in a forced labor case where the victims

were aliens who had to accept the abusive conditions of the defendant's household because they had no place else to live, no money, and no identification

documents, and thus were completely dependent on the defendant for food,

clothing, and shelter. United States v. Sabhnani, 599 F.3d 215, 254 (2d Cir.

2010); accord United States v. Chang, 237 F. App'x 985, 988-89 (5th Cir. 2007)

(per curiam) (affirming application of the enhancement where a victim was illegally smuggled into the United States and forced to work until the contract

repaying her smuggling debt was paid, and reasoning that the victim's illegal

status made her a vulnerable victim).

Murra's base offense was two convictions for forced labor. Ingrid and Vania

are illegal aliens-a group targeted as victims of forced labor. They were forced

to accept the abusive conditions Murra created for them because they were in

an unfamiliar country with no food, clothing, shelter, or money other than what

Murra provided. And during the time Murra exercised complete dominion over

them, she retained their immigration documents and threatened them with

immigration-related retribution if they disobeyed her. On these bases, we conclude that the district court's findings that Ingrid and Vania were vulnerable

victims are plausible in light of the record and therefore are not clearly erroneous. The district court correctly applied the enhancement in sentencing Murra.

AFFIRMED.

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APPENDIXB

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Date Filed: 02/23/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10117

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

OLGA SANDRA MURRA, also known as Sandra Olga Capon-Meneses,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

ON PETITION FOR REHEARING

Before DENNIS, CLEMENT and GRAVES, Circuit Judges.

PERCURIAM:

I'l' IS ORDERED that the petition for rehearing is DENIED.