United States v. Bernard Lundy, 809 F.2d 392 (7th Cir. 1987). · Go Syfert
United States v. Bernard Lundy, 809 F.2d 392 (7th Cir. 1987). Cases Citing This Book View Copy Cite
“courts agree that it is improper to permit an expert to testify regarding facts that people of common understanding can easily comprehend.”
108 citation events (51 in the last 25 years) across 16 distinct courts.
Strongest positive: Western Reserve Mutual Casualty Company v. Noah's Arcade, LLC, et al. (innd, 2026-05-19)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Western Reserve Mutual Casualty Company v. Noah's Arcade, LLC, et al.
N.D. Ind. · 2026 · quote attribution · 1 verbatim quote · confidence high
courts agree that it is improper to permit an expert to testify regarding facts that people of common understanding can easily comprehend.
discussed Cited as authority (rule) Lazendra Collins, Willie Teague, and Lawrence Teague v. City of Chicago and M.A. Styczynski
N.D. Ill. · 2025 · confidence medium
States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987) (affirming an arson conviction where a police department detective had offered “very technical” testimony regarding the cause and origin of the fire involving “burn patterns and burn rate”).
discussed Cited as authority (rule) Jonathan Paul Jones v. the State of Texas
Tex. App. · 2024 · confidence medium
United States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987) (agreeing “that ‘expert’ testimony based solely on hearsay and third-party observations that are adequately comprehensible to lay people would be improper to admit under Rule 702.” (citing Salem v. U.S. Lines Co., 370 U.S. 22 31, 35 (1962))).
discussed Cited as authority (rule) WILLIAMS v. BOLEY
S.D. Ind. · 2023 · confidence medium
Defendant's Motion in Limine No. 9 to Exclude Susan Peters' Testimony (Filing No. 96) Trooper Boley asks the Court to exclude Plaintiff's expert, Susan Peters, from offering testimony at trial because it includes (1) improper legal conclusions, and (2) opinions relating to "basic police procedures" that would mislead the jury, confuse the issues, or create unfair prejudice…." (Filing No. 96 at 1.) In addition to being properly qualified, an expert's testimony must "assist the jury and rely only on evidence on which a reasonable expert in the field would rely." United States v. Lundy, 809 F.2…
discussed Cited as authority (rule) GENESYS CLOUD SERVICES, INC. v. MORALES
S.D. Ind. · 2023 · confidence medium
In response, Genesys notes that "hearsay and third-party observations that are of a type normally relied upon by an expert in the field are properly utilized by such an expert in developing an expert opinion." United States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987).
cited Cited as authority (rule) Phoenix Process Equipment Co. v. Capital Equipment & Trading Corporation
W.D. Ky. · 2022 · confidence medium
Tenn. 2004) (citing United States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987)).
discussed Cited as authority (rule) Garrit v. City of Chicago
N.D. Ill. · 2022 · confidence medium
United States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987) (finding “expert” testimony based solely on third-party observations “that are adequately comprehensible to lay people” would be improper to admit).
discussed Cited as authority (rule) Lewis v. United States
D.C. · 2021 · confidence medium
In seeking the instruction, appellant’s counsel argued that negligence was “a key part of the defense” and there was a “very significant factual foundation” that the fire “was negligently set.” He clarified, however, that he did not want the negligence instruction to be included in the instruction on the defendant’s theory of the case, “because we’re not conceding that the defendant acted in any way whatsoever.” Rather, he explained, “negligence can mean a lot of different things to a lot of different people,” and “it’s best that [the jurors] get . . . their defin…
cited Cited as authority (rule) Lyles v. Gambino
N.D. Ill. · 2019 · confidence medium
Brown, 871 F.3d at 538 (quoting United States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987)); see also Fields □□ City of Chicago, 2018 WL 1652093 , at *7 (N.D.
cited Cited as authority (rule) Design Basics, LLC v. Big C Lumber Co Inc.
N.D. Ind. · 2019 · confidence medium
United States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987).
discussed Cited as authority (rule) Motorists Mutual Insurance Company v. Elite Home Products, LLC
N.D. Ind. · 2019 · confidence medium
A court is not bound by the mere assertions of an expert, but it must “pay special attention to expert testimony,” United States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987), and must “look behind the expert’s ultimate conclusion . . . and analyze the adequacy of its foundation.” Peterson v. Sealed Air Corp., 1991 WL 66370 (N.D.
discussed Cited as authority (rule) United States v. Aldo Brown
7th Cir. · 2017 · confidence medium
The everyday experience of lay jurors fully equips them to answer the reasonableness question when a case involves “facts that people of common understanding can easily comprehend.” United States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987).
discussed Cited as authority (rule) Cage v. City of Chicago
N.D. Ill. · 2013 · confidence medium
“An expert’s opinion is helpful only to the extent the expert draws on some special skill, knowledge, or experience to formulate that opinion; the opinion must be an expert opinion (that is, an opinion informed by the witness’ expertise) rather than simply an opinion broached by a purported expert.” Id. (citing United States v. Lundy, 809 F.2d 392, 395-96 (7th Cir.1987)).
discussed Cited as authority (rule) Rotman v. Progressive Insurance
D. Vt. · 2013 · confidence medium
Courts have held that it is improper to use an expert “as a conduit for hearsay testimony.” Hutchinson v. Groskin, 927 F.2d 722, 725 (2d Cir.1991); see also United States v. Johnson, 587 F.3d 625, 635 (4th Cir.2009) (noting that it is “appropriate for district courts to recognize the risk that a particular expert might become nothing more than a transmitter of testimonial hearsay and exercise their discretion in a manner to avoid such abuses”); United States v. Lundy, 809 F.2d 392, 395 (7th Cir.1987) (finding in an arson case that “even if some of [the expert’s] testimony is based …
discussed Cited as authority (rule) Payne v. Schneider National Carriers, Inc.
S.D. Ill. · 2010 · confidence medium
See also United States v. Gardner, 211 F.3d 1049, 1054 (7th Cir.2000) (an expert was permitted to base opinion as to the cause of a fire on photographs and reports); United States v. Lundy, 809 F.2d 392, 395-96 (7th Cir.1987) (the trial court did not err in permitting an expert to testify that a fire was incendiary in origin where the expert’s opinion was based on hearsay, given that “interviews with many witnesses to a fire are a standard investigatory technique in cause and origin inquiries.”); Johnson v. Consolidated Rail Corp., 797 F.2d 1440, 1446-47 (7th Cir. 1986) (in an action ari…
discussed Cited as authority (rule) United States v. Martin (2×) also: Cited "see"
4th Cir. · 2008 · confidence medium
United States v. Lundy, 809 F.2d 392, 396 (7th Cir.1987); see United States v. Schnapp, 322 F.3d 564, 572-73 (8th Cir.2003).
discussed Cited as authority (rule) United States v. Josephine Virginia Gray, A/K/A Josephine Stribbling, A/K/A Josephine Mills
4th Cir. · 2005 · confidence medium
See, e.g., United States v. Hartmann, 958 F.2d 774, 780-81 (7th Cir.1992) (affirming convictions for mail fraud and wire fraud where the defendant participated in the murder of her husband in order to obtain benefits under life and mortgage insurance policies); United States v. Duncan, 919 F.2d 981, 990-92 (5th Cir. 1990) (affirming a mail fraud conviction where the defendant participated in staged car accidents in order to obtain benefits under hospitalization insurance policies); United States v. Candoli, 870 F.2d 496, 511 (9th Cir.1989) (affirming a mail fraud conviction where the defendant…
discussed Cited as authority (rule) United States v. Gray
4th Cir. · 2005 · confidence medium
See, e.g., United States v. Hart- mann, 958 F.2d 774, 780-81 (7th Cir. 1992) (affirming convictions for mail fraud and wire fraud where the defendant participated in the murder of her husband in order to obtain benefits under life and mortgage insur- ance policies); United States v. Duncan, 919 F.2d 981, 990-92 (5th Cir. 1990) (affirming a mail fraud conviction where the defendant partici- pated in staged car accidents in order to obtain benefits under hospital- ization insurance policies); United States v. Candoli, 870 F.2d 496, 511 (9th Cir. 1989) (affirming a mail fraud conviction where the…
cited Cited as authority (rule) United States v. Stone
E.D. Tenn. · 2004 · confidence medium
United States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987).
discussed Cited as authority (rule) Samuel Ramirez v. State
Tex. App. · 2002 · confidence medium
A trial court must insure that an expert witness is truly testifying as an expert and not merely serving as a conduit through which hearsay is brought before the jury. 2A Steven Goode, et. al; Texas Practice: Courtroom Handbook on Texas Evidence Ch. 5, Rule 703 (West 2002) (citing United States v. Lundy , 809 F.2d 392, 395 (7th Cir. 1987); Cole v. State , 839 S.W.2d 798, 813-16 (Tex. Crim.
discussed Cited as authority (rule) Samuel Ramirez v. State
Tex. App. · 2002 · confidence medium
A trial court must insure that an expert witness is truly testifying as an expert and not merely serving as a conduit through which hearsay is brought before the jury. 2A Steven Goode, et. al; Texas Practice: Courtroom Handbook on Texas Evidence Ch. 5, Rule 703 (West 2002) (citing United States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987); Cole v. State, 839 S.W.2d 798, 813-16 (Tex. Crim.
cited Cited as authority (rule) United States v. Bogan, Mark
7th Cir. · 2001 · confidence medium
United States v. Lundy, 809 F.2d 392, 396 (7th Cir. 1987).
cited Cited as authority (rule) United States v. Mark Bogan and Tony F. Calhoun
7th Cir. · 2001 · confidence medium
United States v. Lundy, 809 F.2d 392, 396 (7th Cir.1987).
discussed Cited as authority (rule) United States v. Newman
5th Cir. · 2000 · confidence medium
In United States v. Lundy, 809 F.2d 392, 396-397 (5th Cir. 1987), this court reasoned that evidence of the appellant’s motive and opportunity to set the fire as well as proof that the building in question did not burn accidentally was sufficient, taken as a whole, to sustain the arson conviction.
discussed Cited as authority (rule) United States v. Lucky Irorere
7th Cir. · 2000 · confidence medium
See United States v. Alcantar, 83 F.3d 185, 189 (7th Cir.1996) (“Questions of witness credibility are reserved for the jury, and its assessment will not be second-guessed by an appellate panel.”); United States v. Hubbard, 22 F.3d 1410, 1415 (7th Cir.1994). “‘Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict.’ ” United States v. Lundy, 809 F.2d 392, 396 (7th Cir.1987); see also Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (…
discussed Cited as authority (rule) United States v. Irorere, Lucky
7th Cir. · 2000 · confidence medium
See United States v. Alcantar, 83 F.3d 185, 189 (7th Cir. 1996) ("Questions of witness credibility are reserved for the jury, and its assessment will not be second-guessed by an appellate panel."); United States v. Hubbard, 22 F.3d 1410, 1415 (7th Cir. 1994). "’Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict.’" United States v. Lundy, 809 F.2d 392, 396 (7th Cir. 1987); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979) (stating that the test for the su…
discussed Cited as authority (rule) United States v. Gallagher, Anthony
7th Cir. · 2000 · confidence medium
"Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict." United States v. Lundy, 809 F.2d 392, 396 (7th Cir. 1987) (quoting Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir. 1970)).
discussed Cited as authority (rule) United States v. Anthony Gallagher
7th Cir. · 2000 · confidence medium
“Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict.” United States v. Lundy, 809 F.2d 392, 396 (7th Cir.1987) (quoting Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir.1970)).
discussed Cited as authority (rule) United States v. Alvin Scott Corey (2×)
1st Cir. · 2000 · confidence medium
Co., 882 F.2d 705, 708 (2d Cir.1989) ("For an expert’s testimony to be admissible under [Rule 702] it must be directed to matters within the witness' scientific, technical, or specialized knowledge and not to lay matters which a jury is capable of understanding and deciding without the expert's help.”); United States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987) ("Courts agree that dt is improper to permit an expert to testify regarding facts that people of common understanding can easily comprehend.” (citing cases)); Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir. 1986) ("Rul…
discussed Cited as authority (rule) Judith A. Buscaglia v. United States
7th Cir. · 1994 · confidence medium
We note also that expert testimony may be excluded if it addresses matters that people of common understanding can easily comprehend, United States v. Lundy, 809 F.2d 392, 395 (7th Cir.1987), or if based upon speculation, unsupported assumptions, or conclusory allegations.
discussed Cited as authority (rule) Reginald D. Fedro v. Janet Reno, 1 Attorney General of the United States (2×)
7th Cir. · 1994 · confidence medium
Under the circumstances, Mr. Neville would not qualify as an "expert" within the meaning of Fed.R.Evid. 702, see United States v. Devine, 787 F.2d 1086, 1088 (7th Cir.), cert. denied, 479 U.S. 848 , 107 S.Ct. 170 , 93 L.Ed.2d 107 (1986); United States v. Lundy, 809 F.2d 392, 395 (7th Cir.1987), nor could he be considered a "party-opponent" under Fed.R.Evid. 801(d)(2), as Mr. Fedro suggests. 29 Mr. Fedro's objections to the district court's exclusion of the medical opinions recorded by Mr. Spottswood are similarly without merit.
discussed Cited as authority (rule) Edward C. Cella, Ii, and Cross-Appellant v. United States of America, and Cross-Appellee
7th Cir. · 1993 · confidence medium
See also Ambrosini v. Labarraque, 966 F.2d 1464 (D.C.Cir.1992); United States v. Lundy, 809 F.2d 392, 395 (7th Cir.1987); Porter v. Whitehall Laboratories, Inc., 791 F.Supp. 1335, 1343 (S.D.Ind.1992).
discussed Cited as authority (rule) Hayes v. Raytheon Co.
N.D. Ill. · 1992 · confidence medium
Ambrosini v. Labarraque, 966 F.2d 1464 (D.C.Cir.1992); U.S. v. Lundy, 809 F.2d 392, 395 (7th Cir.1987); Osburn v. Anchor Laboratories, Inc., 825 F.2d 908, 915 (5th Cir.1987), cert. denied, 485 U.S. 1009 , 108 S.Ct. 1476 , 99 L.Ed.2d 705 (1988); Ferebee, 736 F.2d at 1535 ; Porter v. Whitehall Laboratories, Inc., 791 F.Supp. 1335, 1343 (S.D.Ind.1992).
cited Cited as authority (rule) Lucy Mercado, Individually and as Next Friend of Brian Mercado, a Minor v. Salim Ahmed and Checker Taxi Company, Incorporated
7th Cir. · 1992 · confidence medium
United States v. Lundy, 809 F.2d 392, 395 (7th Cir.1987).
discussed Cited as authority (rule) O'CONNER v. Commonwealth Edison Co. (2×) also: Cited "see, e.g."
C.D. Ill. · 1992 · confidence medium
A court is not bound by the mere assertions of an expert, but it must “pay special attention to expert testimony,” United States v. Lundy, 809 F.2d 392, 395 (7th Cir.1987), and must “look behind the expert’s ultimate conclusion ... and analyze the adequacy of its foundation.” Peterson v. Sealed Air Corp., 1991 WL 66370 , 1991 Lexis 5333 (N.D.Ill.1991) (quoting Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 829 (D.C.Cir.1988)).
discussed Cited as authority (rule) United States v. Betty Kladouris
7th Cir. · 1992 · confidence medium
“In admitting or excluding expert evidence under Federal Rule of Evidence 702, the district court has broad discretion and should be affirmed unless the decision is manifestly erroneous.” United States v. Lundy, 809 F.2d 392, 394 (7th Cir.1987).
cited Cited as authority (rule) Porter v. Whitehall Laboratories, Inc.
S.D. Ind. · 1992 · confidence medium
United States v. Lundy, 809 F.2d 392, 395 (7th Cir.1987).
discussed Cited as authority (rule) United States v. Toby L. Welch
7th Cir. · 1991 · confidence medium
Furthermore, “[cjourts agree that it is improper to permit an expert to testify regarding facts that people of common understanding can easily comprehend.” United States v. Lundy, 809 F.2d 392, 395 (7th Cir.1987).
cited Cited as authority (rule) Cascade Die Casting Group, Inc., Cross-Appellee v. Arwood Corporation, Also Known as Arwood, an Interlake Company, Interlake Corporation and W.L. Chapman Company, Inc., Cross-Appellants
7th Cir. · 1991 · confidence medium
We have held that the exclusion of expert testimony is to be affirmed unless "manifestly erroneous." United States v. Lundy, 809 F.2d 392, 394-395 (7th Cir.1987).
cited Cited as authority (rule) United States v. Daniel Ware
7th Cir. · 1990 · confidence medium
United States v. Lundy, 809 F.2d 392, 394 (7th Cir.1987).
cited Cited as authority (rule) United States v. Leon Hudson and Reginald Smith
7th Cir. · 1990 · confidence medium
Id. at 395 (citations omitted); accord Smith, 869 F.2d at 351 .
discussed Cited as authority (rule) Bob Willow Motors, Inc., a Wisconsin Corporation, Cross-Appellant v. General Motors Corporation, a Delaware Corporation, Cross-Appellee
7th Cir. · 1989 · confidence medium
The decision to admit expert testimony is committed to the broad discretion of the trial court and its determination will be affirmed unless it is “manifestly erroneous.” Li quid Air Corp. v. Rogers, 834 F.2d at 1308 (quoting United States v. Lundy, 809 F.2d 392, 394 (7th Cir.1987)).
discussed Cited as authority (rule) United States v. Tamara Jo Smith (2×)
7th Cir. · 1989 · confidence medium
See, e.g., Simplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d 1290, 1292 (7th Cir.1988) (decision of trial court is to be affirmed unless “manifestly erroneous”); United States v. Lundy, 809 F.2d 392, 394-95 (7th Cir.1987) (same); United States v. Davis, 772 F.2d 1339, 1343-44 (7th Cir.), cert. denied, 474 U.S. 1036 , 106 S.Ct. 603 , 88 L.Ed.2d 581 (1985); United States v. Watson, 587 F.2d 365, 369 (7th Cir.1978), cert. denied, 439 U.S. 1132 , 99 S.Ct. 1055 , 59 L.Ed.2d 95 (1979).
discussed Cited as authority (rule) United States v. Kelly Rollins and Dan Slaughter (2×)
7th Cir. · 1989 · confidence medium
“In admitting or excluding expert evidence under [Federal Rule of Evidence 702] the district court has broad discretion and should be affirmed unless the decision is manifestly erroneous.” United States v. Lundy, 809 F.2d 392, 394 (7th Cir.1987).
discussed Cited as authority (rule) Nachtsheim v. Beech Aircraft Corporation
7th Cir. · 1988 · confidence medium
As this court has already held, "expert testimony is subject to Rule 403's general bar on the admission of unduly prejudicial evidence." Kladis v. Brezek, 823 F.2d 1014, 1019 (7th Cir.1987); accord United States v. Hillsberg, 812 F.2d 328, 332 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 1981 , 95 L.Ed.2d 821 (1987); United States v. Lundy, 809 F.2d 392, 394 (7th Cir.1987); Barrel of Fun, 739 F.2d at 1033 ; In re Aircrash In Bali, 684 F.2d at 1315 . 13 This approach is preferable because it leaves the trial court with greater flexibility in deciding when to permit an expert witness to te…
discussed Cited as authority (rule) Nachtsheim v. Beech Aircraft Corp.
7th Cir. · 1988 · confidence medium
As this court has already held, “expert testimony is subject to Rule 403’s general bar on the admission of unduly prejudicial evidence.” Kladis v. Brezek, 823 F.2d 1014, 1019 (7th Cir.1987); accord United States v. Hillsberg, 812 F.2d 328, 332 (7th Cir.), cert. denied, — U.S. -, 107 S.Ct. 1981 , 95 L.Ed.2d 821 (1987); United States v. Lundy, 809 F.2d 392, 394 (7th Cir.1987); Barrel of Fun, 739 F.2d at 1033 ; In re Aircrash In Bali, 684 F.2d at 1315 . 13 This approach is preferable because it leaves the trial court with greater flexibility in deciding when to permit an expert witness to…
discussed Cited as authority (rule) Liquid Air Corporation v. Rogers
7th Cir. · 1987 · confidence medium
Alexander was Liquid Air's comptroller and testified to the fair market value of the cylinders as a basis for the jury's award on the conversion count. 6 Defendants argue that Alexander was not sufficiently qualified to give expert testimony under FED.R.EVID. 702, the trial judge has broad discretion and the determination will be affirmed unless it is "manifestly erroneous." United States v. Lundy, 809 F.2d 392, 394 (7th Cir.1987); see also United States v. Davis, 772 F.2d 1339, 1343-44 (7th Cir.), cert. denied, 474 U.S. 1036 , 106 S.Ct. 603 , 88 L.Ed.2d 581 (1985). 34 As comptroller, one of G…
discussed Cited as authority (rule) Liquid Air Corp. v. Rogers
7th Cir. · 1987 · confidence medium
Alexander was Liquid Air’s comptroller and testified to the fair market value of the cylinders as a basis for the jury’s award on the conversion count. 6 Defendants argue that Alexander was not sufficiently qualified to give expert testimony under Fed.R.Evid. 702, the trial judge has broad discretion and the determination will be affirmed unless it is “manifestly erroneous.” United States v. Lundy, 809 F.2d 392, 394 (7th Cir.1987); see also United States v. Davis, 772 F.2d 1339, 1343-44 (7th Cir.), cert. denied, 474 U.S. 1036 , 106 S.Ct. 603 , 88 L.Ed. 2d 581 (1985).
discussed Cited as authority (rule) United States v. Salim Fakhoury (2×) also: Cited "see"
7th Cir. · 1987 · confidence medium
“Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict.” United States v. Lundy, 809 F.2d 392, 396 (7th Cir.1987) (quoting Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir.1970), cert. denied, 400 U.S. 1022 , 91 S.Ct. 586 , 27 L.Ed.2d 634 (1971)).
discussed Cited "see" Loy v. Norfolk Southern Railway Co.
N.D. Ind. · 2015 · signal: see · confidence high
See United States v. Lundy, 809 F.2d 392, 396 (7th Cir.1987) (“District courts must ensure that expert 'opinion testimony is in fact expert opinion, not merely' opinion given by an expert.”); In re James Wilson Assocs., 965 F.2d 160, 173 (7th Cir.1992) (“[T]he judge must make sure that the expert isn’t being used as a vehicle for circumventing the rules of evidence.”).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Bernard LUNDY, Defendant-Appellant
86-1036.
Court of Appeals for the Seventh Circuit.
Jan 12, 1987.
809 F.2d 392
Thomas J. Royce, Thomas J. Royce, Ltd., Chicago, 111., for defendant-appellant., Sharon E. Jones, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., U.S. Atty.’s Office, Chicago, for plaintiff-appellee.
Cudahy, Coffey, Grant.
Cited by 71 opinions  |  Published
CUDAHY, Circuit Judge.

Defendant-appellant Lundy challenges his jury convictions of arson, 18 U.S.C.A. § 844(i) (West Supp.1986), and mail fraud, 18 U.S.C. § 1341 (1982). Lundy contends that the district court erred in permitting a government expert to testify regarding the cause of the fire because the expert’s opinion was not based on specialized knowledge, was not helpful to the jury and was unfairly prejudicial. Lundy also contends that the evidence was insufficient to support the jury’s verdict of guilty beyond a. reasonable doubt. We affirm.

I.

In 1957 Lundy purchased the Yale Food & Liquor Mart (“Yale Mart”) located in Chicago, Illinois. Lundy leased the premises of Yale Mart from the building’s owner, James Jordan, Sr., beginning in 1957 for $550 per month, and after 1971 on a month-to-month basis for $650 per month. Lundy insured his business for approximately $400,000, covering personal property and business interruption, with a peak season endorsement. In April, 1982, James Jordan, Sr. died, and ownership of the building passed to his sons (the “Jordans”). After having the building appraised the Jordans decided that the rent should be more than tripled, from $650 per month to $2,200 per month. Lundy and the Jordans negotiated over the rent in early 1983 but could not reach any agreement. In late March the Jordans ordered Lundy to vacate the building by May 4, 1983.

During this period of early 1983 Lundy asked a store employee to check whether Lundy had all the keys needed to open the store and operate the alarm system, and to make copies of any keys he was missing. Lundy also asked the store manager to[*394] demonstrate to him how the alarm system worked. On Thursday, March 31, 1983, a $22,500 order of groceries arrived for the Easter weekend. Lundy directed that all of the empty boxes be stored in a shelf area in the back of the store, a practice Lundy previously had been warned constituted a fire hazard.

On Easter Sunday, April 3, Lundy helped close up the store shortly after 5 p.m., and was apparently the last to leave the store. At 5:27 p.m. the fire department received an emergency 911 call reporting a fire at Yale Mart. Firefighters arrived at Yale Mart approximately three minutes after the call was received and found the store “heavily involved in fire.” During the next hour three successive requests for additional firefighters were issued from the scene, and approximately 130 firefighters were required to eventually control the fire by 6:30 p.m.

After the fire Lundy mailed three separate proof-of-loss statements to his insurance company. The first proof-of-loss statement was a sworn statement in which Lundy asserted that he did not cause the fire and had lost $355,000 worth of property. This claim was rejected by the insurance company, and Lundy followed with claims of $296,313 and then $288,452.

Investigations into the cause and origin of the fire suggested the fire was incendiary in nature, and Lundy was charged with one count of arson and three counts of mail fraud. A jury found Lundy guilty on all counts. This appeal followed.

II. Expert Qualifications — Admissibility of Milla’s Testimony

Lundy asserts in this appeal that the district court erred in permitting Detective Milla to testify for the government as an expert regarding the cause and origin of the fire. After qualifying as an expert— Detective Milla was a member of the Chicago Police Department Bomb and Arson unit — Milla testified that in his opinion the fire that destroyed Yale Mart was purposefully set — “incendiary in origin.” See Trial Transcript (“Tr.”) at 97. Lundy asserts that Milla’s expert testimony should have been excluded because it was not based on specialized knowledge that would assist the jury, see Fed.R.Evid. 702, because it was needlessly cumulative and because it was substantially outweighed by the risks of confusing the issues, misleading the jury and prejudicing the defendant unfairly, see Fed.R.Evid. 403.

It appears that Lundy never argued to the district court that Milla’s testimony should have been excluded under Federal Rule of Evidence 403. See Tr. at 2, 20-22, 82. We therefore must determine whether the admission of Lundy’s testimony was plain error in light of Rule 403. See United States v. Zabic, 745 F.2d 464, 471 (7th Cir.1984). Detective Milla was the second of the government’s thirteen witnesses, the first of two arson experts. His testimony combined the results of first-hand investigation of Yale Mart, his experience gained investigating some 800 fires and his interviews with many of the people involved in the Yale Mart fire. His testimony included a detailed rationale for his opinion that the fire was purposefully set. Milla’s testimony was not cumulative — it was the first testimony about the cause and origin of the fire. Nor was there substantial risk that Milla’s testimony would confuse or mislead the jury or unfairly prejudice Lundy. On the contrary, Milla’s testimony, like other such testimony, very likely assisted the jury in more fully understanding the events at issue; any prejudice that resulted from the testimony was caused by the events not the testimony. The district court committed no error at all, certainly no plain error, in admitting Milla’s testimony when viewed under Rule 403’s balancing test.

In admitting or excluding expert evidence under Rule 702 the district court has broad discretion and should be affirmed unless the decision is manifestly erroneous. See United States v. Davis, 772 F.2d 1339, 1343-44 (7th Cir.), cert. denied, — U.S. -, 106 S.Ct. 603, 88 L.Ed.2d 581 (1985); United States v. Watson, 587 F.2d 365, 369 (7th Cir.1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1055, 59 L.Ed.2d 95 (1979). Never[*395] theless, the district court must pay special attention to expert testimony. Because experts are given special latitude to testify based on hearsay and third-hand observations and to give opinions, see Fed.R.Evid. 702, courts have cautioned that an expert must be qualified as an expert, provide testimony that will assist the jury and rely only on evidence on which a reasonable expert in the field would rely. See United States v. Buchbinder, 796 F.2d 910, 917-18 (7th Cir.1986); United States v. Windfelder, 790 F.2d 576, 580 (7th Cir.1986); United States v. Davis, 772 F.2d at 1344; United States v. West, 670 F.2d 675, 682 (7th Cir.), cert. denied, 457 U.S. 1124 & 1139, 102 S.Ct. 2944 & 2972, 73 L.Ed.2d 1340 (1982); United States v. Tranowski, 659 F.2d 750, 754-57 (7th Cir.1981). Courts agree that it is improper to permit an expert to testify regarding facts that people of common understanding can easily comprehend. See West, 670 F.2d at 682; Tranowski, 659 F.2d at 755; Bartak v. Bell-Galyardt & Wells, Inc., 629 F.2d 523, 530 (8th Cir. 1980).

Lundy contends on this appeal that Mil-la’s testimony that the fire was purposefully set merely summarized facts fully comprehensible to the lay jury. See Lundy Brief at 27. According to Lundy, Milla’s testimony as to the cause of the fire was based on Milla’s non-expert opinions formed by interviewing various witnesses, nearly all of whom testified at trial. Milla concluded “arson,” Lundy suggests, only by considering evidence of the alleged arsonist’s opportunity, motive and plan (which a jury could equally well comprehend), rather than by evaluating technical or scientific evidence. We are not persuaded by Lundy’s contentions.

A review of the record makes it clear that Milla’s testimony was admissible as expert opinion testimony because of his qualifications as an expert, his presentation of very technical evidence and his reliance on standard investigatory procedures.

Lundy does not challenge Milla's qualifications as an expert in the cause and origin of fires. See Tr. at 2. And a brief review

of Milla’s testimony reveals that Milla presented very technical evidence. Milla testified to the jury about his arrival at the fire and his investigation later that evening. He explained how the burn patterns and the rapid rate of burning indicated the cause and origin of the Yale Mart fire. He testified as to why certain accidental causes were apparently not responsible for this fire. He testified about what his on-site investigation a day or two later revealed about the fire. See Tr. at 77-99, 153-63. Milla’s conclusion that the fire was purposefully set was based on a combination of factors, many of which required a technical understanding of how fires begin and spread under different conditions. Such testimony explaining burn patterns and burn rate, and analyzing possible causes of the fire, is undoubtedly expert testimony utilizing specialized knowledge that assists the jury to comprehend the facts.

Lundy argues, however, that even if some of Milla’s testimony is based on his expertise, his conclusion that it was arson is actually based on hearsay testimony about Lundy’s motives, plan and opportunities. Lundy is correct to suggest that “expert” testimony based solely on hearsay and third-party observations that are adequately comprehensible to lay people would be improper to admit under Rule 702. See, e.g., Salem v. United States Lines, Co., 370 U.S. 81, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962). An arson expert cannot testify that he heard from an informant that the defendant torched the building and that thus in his expert opinion the defendant probably set the fire. However, hearsay and third-party observations that are of a type normally relied upon by an expert in the field are properly utilized by such an expert in developing an expert opinion. See Fed.R.Evid. 703; United States v. Lawson, 653 F.2d 299, 301-03 (7th Cir. 1981), cert. denied, 454 U.S. 1150,102 S.Ct. 1017, 71 L.Ed.2d 305 (1982). Milla present ed uncontroverted evidence that interviews with many witnesses to a fire are a standard investigatory technique in cause and[*396] origin inquiries. See Tr. at 94-95. In addition, Milla’s opinion was also based heavily on his own investigation, which ruled out most accidental causes and suggested that an accelerant had been used. Milla never testified that Lundy or anyone in particular caused the fire. He only testified that in his opinion the fire was not accidental. District courts must ensure that expert opinion testimony is in fact expert opinion, not merely opinion given by an expert. In this case the district court did not abuse its discretion in admitting Milla’s testimony regarding the cause and origin of the fire as expert testimony.

III. Sufficiency of the Evidence

Lundy also argues in this appeal that the evidence was legally insufficient for the jury to convict him of arson and mail fraud. The standard of review of a district court’s finding that sufficient evidence supports a guilty verdict is well established:

Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict.

Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir.1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 634 (1971). Accord United States v. Thomas, Ilk F.2d 807, 811 (7th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1218, 89 L.Ed.2d 329 (1986); United States v. Weihoff, 748 F.2d 1158, 1159 (7th Cir.1984); United States v. Redwine, 715 F.2d 315, 319 (7th Cir.1983), cert. denied, 467 U.S. 1216, 104 S.Ct. 2661, 81 L.Ed.2d 367 (1984). The evidence in this case was sufficient to permit a jury to find beyond a reasonable doubt that Lundy was guilty of the crimes charged.

A. Arson Count

Lundy was convicted of violating 18 U.S.C. § 844(i), which provides:

Whoever maliciously damages or destroys ... by means • of fire ... any building ... or other real or personal property used in interstate or foreign commerce ... shall be imprisoned for not more than ten years or fined not more than $10,000, or both.

The government presented no direct evidence that Lundy set fire to Yale Mart. But viewing all the evidence in the light most favorable to the government, there was substantial circumstantial evidence permitting the jury to find Lundy guilty beyond a reasonable doubt. Cf. United States v. Bradshaw, 719 F.2d 907, 921 (7th Cir.1983) (circumstantial evidence as relevant as direct evidence in establishing guilt or innocence). The government presented evidence of Lundy’s motives to set the fire, his plan and preparation to do so, his opportunity to carry out the plan and evidence that Yale Mart did not burn accidentally.

The government presented evidence of Lundy’s mounting financial difficulties including credit problems, a decline in Yale Mart’s sales and an imminent threefold increase in rent for the store. Tr. at 367, 560-61, 605. The evidence also showed that Lundy could not afford the rent increase and was advised to vacate the premises. Tr. at 367, 373. Evidence showed that Lundy stood to receive up to $416,000 under an insurance policy covering the store and contents. Tr. at 522-24.

Evidence allowed the jury to infer that Lundy planned and had the opportunity to commit arson. Several weeks before the fire Lundy asked for a complete set of keys to the store, including the alarm system, and asked how to operate the alarms. A few days before the fire Lundy ordered that empty cardboard boxes be stored in a place where Lundy knew they created a fire hazard and where in fact the fire apparently originated. All of these actions by Lundy were noticeable changes from his usual practice. See Tr. at 406-09. Lundy was the last person to leave the store immediately before the fire. Tr. at 414-16. One witness testified that as Lundy was locking up the store she helped him remove the key and he cautioned her not to turn the alarm on. Tr. at 504.

Evidence that the fire was not accidental included opinions by two qualified experts,[*397] Tr. at 96-97, 271-72, as well as the speed and intensity with which the fire burned.

The parties have stipulated and we agree that Yale Mart operated in interstate commerce by purchasing liquor from outside the state of Illinois.

This evidence is not overwhelming. But it is the jury’s task to weigh the evidence and the credibility of witnesses. There is no suggestion that the jury was improperly instructed. We find that the evidence as a whole, indicating, inter alia, motive, plan, preparation, opportunity and absence of accident, is sufficient to sustain the conviction of arson.

B. Mail Fraud

Lundy challenges the mail fraud convictions under 18 U.S.C. § 1341 apparently on the ground that the alleged fraud was not a fraud — because he did not set fire to Yale Mart, Lundy contends, it was not fraudulent to file the insurance claims for the loss. Section 1341 provides:

Whoever, having devised or intending to devise any scheme ... for obtaining money or property by means of false or fraudulent pretenses ... for the purpose of executing such scheme ... places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service ... shall be fined not more than $1,000 or imprisoned not more than five years, or both.

As outlined above, the evidence permitted the jury to conclude that Lundy set fire to Yale Mart. Accordingly, the jury properly could conclude that Lundy falsely represented to the insurance company that the fire was not purposefully set, see Tr. at 532, and that he caused the mails to be used to further the scheme to obtain money. See Tr. at 529, 557. Again, it is not contended that the jury was improperly instructed on the law. We find the evidence sufficient to sustain the conviction of mail fraud.

Therefore the judgment of the district court is Affirmed.