Evidence
Opinion evidence

It was error to admit the testimony of a cooperating witness, opining that the defendant knew his actions were illegal.

"[T]his testimony was unhelpful to the jury under Rule 701(b). Attempts to introduce meaningless assertions which amount to little more than choosing up sides require exclusion for lack of helpfulness by Rule 701. Rule 701(b) Advisory Committee Note on 1972 Proposed Rules. The question posed to Sienkiewicz to opine as to Wantuch's knowledge of whether his actions were 'legal,' demanded a conclusion as to the legality of Wantuch's conduct, which is unhelpful to the jury under Rule 701. See United States v. Espino, 32 F.3d 253, 257 (7th Cir. 1994) (finding that the question posed to a defendant, 'you're admitting to a conspiracy, aren't you,' was unhelpful testimony under Rule 701); United States v. Baskes, 649 F.2d 471, 478 (7th Cir. 1980) (when a witness is asked whether the conduct in issue was 'unlawful' or 'willful' or whether the defendants 'conspired,' terms that demand an understanding of the nature and scope of the criminal law, the trial court may properly conclude that any response would not be helpful to the trier of fact under Rule 701(b))."

"We note that the question posed by the government was unnecessary, in light of all of the evidence against Wantuch that the government presented through Sienkiewicz's testimony. The jury was just as capable as Sienkiewicz of inferring that Wantuch knew he was committing a crime, without Sienkiewicz opining as to whether Wantuch was aware that his conduct was illegal. See Rea, 958 F.2d at 1216."

Affirmed.

06-3681 U.S. v. Wantuch

Appeal from the United States District Court for the Northern District of Illinois, Bucklo, J., Bauer, J.

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