United States Court of Appeals
Fifth Circuit
F I L E D
REVISED SEPTEMBER 14, 2006
September 11, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 05-20087
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LINDA GAY ALLARD,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
Before GARWOOD, KING, and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Linda Gay Allard confessed to her crime shortly after she was
informed that she had failed a polygraph test. At trial, however,
she contended the confession was coerced by the government agent.
To counter this contention, the government was allowed to introduce
testimony relating to the conduct of the polygraph examination. On
appeal Allard challenges her conviction, arguing that the district
court erred in admitting this testimony and in giving a modified
Allen1 charge to relieve initial jury deadlock. Because we find
the district court did not err as to either, we AFFIRM Allard’s
conviction.
1
Allen v. United States, 164 U.S. 492, 501-02 (1896).
I
Linda Gay Allard contacted her local Wal-Mart store in 2003,
complaining that her husband found straight pins in Hillshire Farms
summer sausage she had purchased from the store. In addition to
contacting Wal-Mart, Allard filed a complaint with the U.S.D.A.’s
Food Safety Inspection Service. The U.S.D.A. joined with the
United States Secret Service and conducted an investigation of
Allard’s claim. As a part of the investigation, Secret Service
Agent William Wind conducted a polygraph examination with respect
to both Allard and her husband. At the conclusion of Allard’s
polygraph exam, Agent Wind informed Allard that the results
indicated she had not been truthful. Allard then gave the
following written confession: “I put the pins in the sausage
before I left for work on Thursday, December 4, at 3 p.m. I was
hoping to get money from Hillshire Farms. I got the pins from the
sewing box.” Allard told Agent Wind that she and her husband had
nearly $60,000 in consumer debt that they were struggling to repay.
Following her confession, the government charged Allard with
one count of making a false claim of consumer product tampering in
violation of 18 U.S.C. § 1365(c)(1).2 At a pre-trial bench
2
18 U.S.C. § 1365(c)(1) states:
Whoever knowingly communicates false
information that a consumer product has been
tainted, if such product or the results of
such communication affect interstate or
foreign commerce, and if such tainting, had it
occurred, would create a risk of death or
2
conference, the district court granted the government’s unopposed
motion in limine to prohibit the introduction of evidence regarding
the fact that Allard “was asked to take and did take a polygraph
test or any of the results.” After a jury trial, Allard was
convicted and sentenced to 366 days of imprisonment and three years
of supervised release. Allard filed this timely appeal.
II
On appeal Allard raises two challenges to her conviction:
First, she contends that the district court admitted testimony
relating to her polygraph examination in violation of Federal Rules
of Evidence 702 and 403; and second, she contends that the district
court erred in giving the jury a modified Allen charge. We
consider each of Allard’s challenges in turn.
A
The testimony relating to Allard’s polygraph examination was
admitted during both the Government’s cross-examination of Allard,
and Agent Wind’s testimony during the Government’s rebuttal.
Allard testified on direct examination that her confession was
involuntary because it was coerced by Agent Wind. She stated that
Agent Wind told her she could not leave until she wrote what he
told her to write in her statement; that Agent Wind threatened her
by stating that he could take her farm and arrest her at work; that
bodily injury to another person, shall be
fined under this title or imprisoned not more
than five years, or both.
3
Agent Wind refused to honor her request for an attorney; that Agent
Wind pushed her, shoved her, and told her to sit down and shut up;
and that Agent Wind said he could make her children disappear.
Before cross-examining Allard, the government, reversing its
earlier position, moved to introduce evidence regarding the
polygraph test. The government argued that Allard’s “extraordinary
allegations” made the polygraph “extremely relevant to the
interview” and that evidence regarding the polygraph would “go a
long way toward explaining the Government’s and Mr. Wind’s role in
the interrogation.” The district court questioned the relevancy of
the test because the issue regarding the confession was credibility
and the polygraph was simply a “kind of recordation ... of ...
pressures and indicators.” The government responded that the test
was relevant to the progression of events preceding the confession
and to the fact that her failure of the polygraph test lent
credence to Agent Wind’s testimony that he judged her to be
deceptive.
Allard objected to the admission of evidence relative to the
test, arguing, inter alia, that the government had notice that she
would testify that her confession was involuntary. The government
responded that it did not know until Allard testified that her
assertion of an involuntary confession would include allegations
that a federal agent had physically threatened her.
After a recess, the district court read a proposed jury
instruction to the parties, which instructed the jury that it could
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consider statements made by Allard and Agent Wind surrounding the
polygraph test to determine those witnesses’ credibility, but that
the result of the polygraph test was not admissible. Allard argued
that the relevance of the test was outweighed by the prejudice to
her from its admission because the jury would infer that she had
failed the test and further, that evidence regarding the test
should not be admitted because there was no evidence that polygraph
test results are reliable. The government cited an opinion from
another circuit, United States v. Johnson, 816 F.2d 918 (3d Cir.
1987), holding that polygraph evidence could be used to rebut a
defendant’s assertion of a coerced confession. The district court
overruled Allard’s objection and subsequently instructed the jury
as noted above regarding consideration of the polygraph and
statements made surrounding the administration of the polygraph.
The government then cross-examined Allard regarding the
circumstances surrounding her polygraph test. Furthermore, the
Government later called Agent Wind, who administered the polygraph
test, as a rebuttal witness. Agent Wind testified that he did not
coerce Allard’s confession.
1
Allard first contends that the district court’s admission of
the rebuttal testimony violated Rule 702 because the Government
failed to satisfy Rule 702 with respect to relevancy and
reliability, and with respect to admissibility under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under Rule
5
702, expert testimony is admissible if (1) it will assist the trier
of fact to understand the evidence or to determine a fact in issue;
(2) it is based on sufficient facts or data; (3) it is the product
of reliable principles and methods; and (4) the witness has applied
the principles and methods reliably to the facts of the case. We
review the district court’s ruling under Rule 702 for an abuse of
discretion. United States v. Pettigrew, 77 F.3d 1500, 1514 (5th
Cir. 1996).
The government argues that Allard did not challenge the
admission of the polygraph evidence at trial under Rule 702.
Allard’s counsel, however, did object to the proposed jury
instruction on the ground, inter alia, that there was “no consensus
that polygraph evidence [was] reliable.” Thus, the district court
was aware that Allard objected to the introduction of scientific
evidence in connection with the polygraph test.
The requirements of Rule 702 and its progeny apply only to
testimony offered by one tendered as an expert. See FED. R. EVID.
702. The government did not proffer Agent Wind as an expert.
Neither did Agent Wind claim to offer, or actually provide,
technical, scientific, or expert testimony. Instead, Agent Wind
was called in rebuttal to provide his account of the facts and
circumstances surrounding Allard’s confession, in an attempt to
counter Allard’s allegations that her confession was coerced.
Accordingly, there was no evidentiary error under Rule 702.
Although Agent Wind gave detailed testimony regarding how a
6
polygraph test is administered and the different kind of responses
the test measures, Allard never renewed an objection and did not
challenge the fact that Agent Wind had not been qualified as an
expert. To the extent that she challenges this testimony, we find
no plain error. See United States v. Miranda, 248 F.3d 434, 443
(5th Cir. 2001).
The district court instructed the jury that the results of the
polygraph test were not admissible and that the admission of
statements made by Allard and the person giving the polygraph test
were being admitted for the “sole purpose” of assisting the jury in
determining whether Allard’s confession was voluntary.3
3
Just before the Government’s cross examination of Allard the
district court gave an instruction to the jury, which in relevant
part provided:
In this case, the defendant challenges the
truthfulness or the voluntariness of her
statement, the statement that was admitted
into evidence.
She does not dispute that the statement
is her statement. She disputes the
circumstances that gave rise to the statement.
She challenges, as I said, the voluntariness
of her statement. In this case, the rules of
evidence permit then the admissibility of
testimony that surrounds the giving of the
statement.
A polygraph examination was administered
to the defendant. The results of that
examination are not admissible. However, the
statements between the defendant and the
person administering the polygraph examination
are admissible for the purpose for –- for the
sole purpose, I should say, of you determining
the defendant’s state of mind at the time of
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the giving of the statement and whether or not
that confession or statement was voluntary or
not.
It also gives you an opportunity or it is
your province to determine the credibility of
the witnesses who testify about the
circumstances surrounding the giving of a
statement. So the circumstances and the
statements made at the time are not admitted
for the truth of the statements made then.
Repeat that. I’m admitting the
statements and permitting you to hear
questions and answers about things that were
said months ago, not for you to decide whether
they were being truthful then, but whether or
not the witnesses are being truthful now about
what occurred then. That’s a little bit of a
twist. So think about it a little bit.
So, you, the jury, will have the
opportunity to determine the credibility of
the defendant and Special Agent Wind’s
testimony at this trial. It doesn’t matter
whether it was truthful then. It doesn’t
matter if they were telling truths or lies.
The question is what are they saying now that
might contradict or be in conflict with what
was said then and can you believe one or both
or any of what they have to say now about
those events that occurred then. That’s why
it’s being admitted.
Therefore, do not speculate about any
matter or matters that are not presented. For
example, there will be no evidence presented
as it relates to what the outcome of that
examination was. You will not get any
documents, you will not get any testimony,
about the outcome of that examination. You
certainly might get testimony about what
people said to each other about that
examination. That’s different. There is no
scientific evidence being admitted here. So
keep that in mind. So you’re not to speculate
about any matter or matters that are not
8
The district court clarified that there would be no evidence
presented with respect to the outcome of the test, and stated:
“There is no scientific evidence being admitted here.” Because the
the district court instructed the jury that it should consider any
polygraph evidence only to determine the credibility of the
witnesses and not as scientific evidence, and because we must
presume that the jurors followed those instructions, see United
States v. Wyly, 194 F.3d 289, 299 (5th Cir. 1999), we cannot say
that Wind was proffered, or considered by the jury as an expert.
Consequently, Allard’s argument that Rule 702 is implicated or
offended by the district court’s admission of Agent Wind’s rebuttal
testimony is rejected, and we hold that the district court did not
abuse its discretion or err (plainly or otherwise) in admitting
this testimony.
2
Allard also argues, with respect to both rebuttal and cross-
examination, that the district court admitted evidence relating to
the polygraph examination in violation of Rule 403, that is, the
probative value of the evidence is “substantially outweighed by the
danger of unfair prejudice.” FED. R. EVID. 403. The district court
has broad discretion to weigh the relevance, probative value, and
prejudice of the evidence in determining its admissibility under
presented, such as the test results. Your job
is determining whether the witnesses involved
are being truthful today about past events.
That’s what your job is.
9
Rule 403. United States v. Wilson, 355 F.3d 358, 361 (5th Cir.
2003). We will not reverse a district court’s ruling under Rule
403 absent a clear abuse of discretion. United States v. Dula, 989
F.2d 772, 778 (5th Cir. 1993) (“The balancing of probative value
against prejudicial effect is committed to the sound discretion of
the trial judge, a decision that is final in the absence of an
abuse of discretion.”); United States v. Caldwell, 820 F.2d 1395,
1404 (5th Cir. 1987).
This Circuit has not addressed the admissibility under Rule
403 of testimony relating to a defendant’s polygraph examination.
However, we are persuaded by the holdings of other Circuits,
finding that testimony concerning a polygraph examination is
admissible where it is not offered to prove the truth of the
polygraph result, but instead is offered for a limited purpose such
as rebutting a defendant’s assertion that his confession was
coerced. See United States v. Kampiles, 609 F.2d 1233, 1244-45
(7th Cir. 1979); Tyler v. United States, 193 F.2d 24 (D.C. Cir.
1951); see also United States v. Johnson, 816 F.2d 918, 923-24 (3d.
Cir. 1987) (citing Kampiles, 609 F.2d 1233).
In Tyler v. United States, the defendant testified that his
confession was coerced. When the government rebutted this claim
with the testimony of the polygraph examiner, the defendant moved
to strike the examiner’s testimony that the defendant was told that
the results indicated that the defendant was lying. 193 F.2d at
31. The D.C. Circuit held that the district court did not violate
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Rule 403 in admitting the testimony, noting that the jury was
instructed not to consider the testimony as evidence of the
defendant’s truthfulness, but only as evidence of the voluntariness
of the defendant’s confession. Id. In United States v. Kampiles,
the Seventh Circuit held that the highly probative character of the
polygraph evidence as to the voluntariness of the assailed
confession sufficiently outweighed any prejudice to the defendant.
609 F.2d at 1244-45. The Seventh Circuit reasoned further that it
would be unfair to allow the defendant to attack the confession as
involuntary without allowing the Government to demonstrate the
context in which that confession was given. Id. at 1244. This
reasoning is consistent with our holding in United States v.
Thevis, 665 F.2d 616, 637 (5th Cir. 1982) (overruled on other
grounds), which upheld the admission of testimony relating to the
polygraph examination of a cooperating witness. There we held that
Rule 403 was not offended by the admission of such testimony, as it
was not admitted to establish the truth of the statements made as
a part of the examination, but instead for the limited purpose of
proving that the defendant knew the witness was cooperating with
the government. Id.4
4
We note that the Ninth Circuit in United States v. Miller,
874 F.2d 1255 (9th Cir. 1989), found the district court had erred
in admitting testimony relating to a polygraph examination of the
defendant. However, the Ninth Circuit noted that “polygraph
evidence might be admissible if it is introduced for a limited
purpose that is unrelated to the substantive correctness of the
results of the polygraph examination.” Id. at 1261 (internal
citations omitted). Given this reasoning, we view Miller as
11
As we have said before, “it is well settled that the purpose
of rebuttal testimony is to explain, repel, counteract, or disprove
the evidence of the Adverse party. . . . [I]f the defendant opens
the door to the line of testimony, he cannot successfully object to
the prosecution accepting the challenge and attempting to rebut the
proposition asserted.” United States v. Delk, 586 F.2d 513, 516
(5th Cir. 1978) (internal quotation and citation omitted). This
situation is presented in the case at hand. Where a defendant,
such as Allard, chooses to contest before the jury the
voluntariness of her confession, it is only fair to permit the
government, in response, to set the scene of that confession. It
is significant, of course, that here the district court
specifically instructed the jury that testimony relating to the
polygraph was not scientific, that its results were irrelevant to
the ultimate issue of truthfulness, and that the evidence was only
to be considered in determining whether Allard’s confession was
voluntary. See supra, n.3. Given these circumstances, Allard has
failed to establish that the district court abused its discretion
under Rule 403 in admitting testimony relating to her polygraph
examination.
B
Allard also argues that the modified Allen charge given by the
district court was error as it had an inappropriate coercive effect
limited to the facts in that case.
12
on the jury. Allard did not object to the Allen charge at trial.
In fact, she agreed that giving the charge “sound[ed] reasonable”.
Consequently, this Court’s review is for plain error. See United
States v. McClatchy, 249 F.3d 348, 359 (5th Cir. 2001) (“[I]f a
defendant failed to object to the charge at trial, the charge will
be reviewed for plain error, and the conviction will not be
reversed unless an error ‘seriously affect[ed] the fairness,
integrity, or public reputation of the judicial proceeding.’”)
(quoting United States v. Calverley, 37, F.3d 160, 164 (5th Cir.
1994)(en banc)).
The term “Allen charge” describes supplemental instructions to
deadlocked juries “urging them to forgo differences and reach a
unanimous verdict.” United States v. Heath, 970 F.2d 1397, 1406
(5th Cir. 1992). Modified Allen charges are permissible, within
the district court’s broad discretion, where “the circumstances
under which the district court gives the instruction are not
coercive, and the content of the charge is not prejudicial.”
United States v. McClatchy, 249 F.3d 348, 359 (5th Cir. 2001)
(internal citation omitted). The modified Allen charge given by
the district court at Allard’s trial is substantively the same as
the charge found in the Fifth Circuit Pattern Jury Instructions.
See Fifth Circuit Pattern Jury Instructions (Criminal) § 1.45
(2001). Further, the instruction essentially mirrors Allen charges
previously approved by this Court. See, e.g., United States v.
Winters, 105 F.3d 200, 203-04 (5th Cir. 1994); United States v.
13
Nguyen, 28 F.3d 477, 484 & n.4 (5th Cir. 1994). This Circuit has
consistently held that “the trial court ‘is vested with broad
discretion to evaluate whether an Allen charge is likely to coerce
a jury into returning a verdict it would not otherwise return.’”
Nguyen, 28 F.3d at 484 (quoting United States v. Gordon, 780 F.2d
1165, 1177 (5th Cir. 1986) (internal citations omitted)). Although
Allard argues generally that the charge given was inappropriate,
she has produced no argument or evidence indicating that the
district court abused its discretion in giving the charge, or that
the charge itself actually had a coercive effect. Consequently,
Allard has failed to demonstrate that the district court erred in
giving the Allen charge to her deadlocked jury. See id. (finding
no plain error where the defendant acquiesced to the Allen charge
given, and where the charge itself tracked the language of the
Fifth Circuit Pattern Jury Instruction).
III
For the reasons stated above, we find that the district court
did not err in admitting testimony relating to Allard’s polygraph
examination, nor in giving the modified Allen charge to relieve the
jury’s deadlock. Consequently, the judgment of the district court
is
AFFIRMED.
14