v. Baker
Colo.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2021 CO 29
Supreme Court Case No. 19SC975
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 16CA1545
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Karl Christopher Baker.
Judgment Affirmed
en banc
May 10, 2021
Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Brittany L. Limes, Assistant Attorney General
Denver, Colorado
Attorneys for Respondent:
Megan A. Ring, Public Defender
Rachel K. Mercer, Deputy Public Defender
Denver, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
¶1 This case, like Lawrence v. People, 2021 CO 28, __ P.3d __, which we are also
announcing today, requires us to explore the limits of expert testimony offered by
high-level officials (or former officials) of the Colorado Division of Securities in a
securities fraud and theft prosecution. Specifically, here, we must decide whether
the admission of a deputy securities commissioner’s expert testimony that
defendant Karl Christopher Baker’s misstatements and omissions were material
was reversible error.1
¶2 Because (1) in presenting such opinions, the deputy commissioner also
opined that certain disputed facts were true; (2) such testimony involved weighing
the evidence and making credibility determinations, which are matters solely
within the jury’s province; and (3) in our view, the error in admitting such
testimony was not harmless, we agree with the court of appeals division below
that the admission of this testimony was reversible error.
¶3 Accordingly, we affirm the division’s judgment.
1 Specifically, we granted certiorari to review the following issue:
Whether the deputy securities commissioner’s expert testimony that
the defendant’s misstatements and omissions were material was
reversible error.
2
I. Facts and Procedural History
¶4 Baker and his business partner sought investors for a company called
Aviara Capital Partners, LLC. According to promotional materials that Baker
provided to potential investors, investment money would be used to purchase
distressed banks that were being shut down and were under the control of the
Federal Deposit Insurance Corporation (“FDIC”). In conjunction with the
purchase of the distressed banks, Aviara would operate a “distressed assets fund”
to purchase the assets of such banks. Aviara would then acquire additional banks
under a business plan by which Aviara and its investors would collectively own
eighty percent of the banks, while bank management, directors, advisors, and
employees would own the other twenty percent.
¶5 In the course of soliciting potential investors, Baker spoke, independently,
with the purported victims in this case, Donna and Lyal Taylor, Dr. Alan Ng, and
Stanley Douglas. In addition to providing the above-described promotional
materials to these potential investors, Baker allegedly told them, among other
things, that (1) he had lined up “Class A” investors who had millions of dollars to
invest and he was looking for smaller “Class B” investors; (2) the “Class B”
investors’ money would be held in an escrow or “trust” account until the
“Class A” investors had invested and Aviara was ready to purchase a bank; (3) the
“Class B” investors’ money would go toward Aviara, the purchase of distressed
3
banks, or the asset fund; (4) neither Baker nor other corporate officers would take
a salary or otherwise pay themselves out of investment funds but rather would be
paid only once Aviara was operational and profitable; (5) the investors would get
their principal back quickly (e.g., the Taylors within three to four months, and Ng
and Douglas within one year); and (6) the amount of money that they could lose
was capped (at $30,000 for the Taylors, a lack of profit for Ng, and twenty-five
percent of his investment for Douglas).
¶6 Purportedly in reliance on these representations, the Taylors ultimately
invested $150,000, Ng invested $50,000, and Douglas invested $300,000. In
exchange for their investments, each of them received a certificate stating that they
had obtained a certain number of units of interest.
¶7 The alleged victims’ investments did not work out as they claim to have
been promised, and a grand jury subsequently indicted Baker on, among other
charges, three counts of securities fraud under sections 11-51-501(1)(b) and
11-51-603(1), C.R.S. (2020) (based on Baker’s allegedly untrue statements or
omissions of material facts), one count of securities fraud under sections
11-51-501(1)(c) and 11-51-603(1) (based on Baker having allegedly engaged in acts
operating as a fraud or deceit on other persons), and three counts of theft under
section 18-4-401, C.R.S. (2020). The indictment alleged that (1) Baker had
concealed from the victims that their investment money was not going toward
4
Aviara or the purchase of distressed banks but rather would go toward personal
and non-investment related expenses of Baker and others; (2) the alleged victims’
money was not placed into an escrow or “trust” account but was placed into
Aviara’s operating accounts, after which the majority of the money was used for
non-investment related expenses; (3) contrary to Baker’s purported
representations, he took sums of the investment money for personal use and for
non-investment related expenses; (4) no “Class A” investors had ever been
identified; and (5) the investors had received no return of their principal and no
profit at any time.
¶8 The matter proceeded, and prior to trial, the People identified Lillian Alves,
then the Deputy Securities Commissioner for Colorado, as an expert in the area of
securities and the Colorado Securities Act (the “Act”). Thereafter, Baker filed a
motion in limine to exclude this proffered testimony. In his motion, Baker noted
that the Deputy Commissioner apparently planned to testify that certain of Baker’s
alleged statements to the purported victims constituted material misstatements
and omissions and that such statements were misleading. In Baker’s view, such
testimony would usurp the functions of both the judge and the jury.
¶9 The trial court does not appear to have addressed Baker’s motion prior to
trial, but it did so at trial, before the prosecution called Deputy Commissioner
Alves to testify. Ruling from the bench, the court denied Baker’s motion. In so
5
ruling, the court began by noting that it had reviewed the applicable case law and
that, in one case, a division of the court of appeals had observed that the issue of
whether testimony like that at issue would confuse the jury regarding what law to
follow (i.e., the judge’s or the expert’s) was “kind of a close question.”
Nonetheless, the court found the analyses of those divisions that had admitted
similar testimony persuasive and thus decided to admit the proffered expert
testimony here. The court noted, however, that if any party wished, the court
would instruct the jury that in the event of a dispute regarding the applicable law,
the jury was to follow the law as set forth in the court’s instructions.
¶10 The prosecution then called Deputy Commissioner Alves to the stand. After
the prosecution qualified her as an expert in securities and the Act, at Baker’s
request, the court instructed the jury that if the Deputy Commissioner testified
about and the jurors had any questions regarding the law, then they were to be
guided by what the court would say about the law in the final jury instructions.
¶11 Deputy Commissioner Alves proceeded to testify regarding the Act, its
purposes, the Division of Securities’ and her own responsibilities in administering
the Act, and securities issuers’ responsibility to make full and fair disclosures. The
Deputy Commissioner defined “full and fair disclosures” to comprise “all of the
information in order to decide whether or not to buy the security,” including, if
6
the issuer was a company, information about its financials, its officers, and the
officers’ backgrounds and track records.
¶12 The Deputy Commissioner then turned to the present case. She began by
explaining that the Attorney General’s office had contacted her to conduct a
review related to Baker and Aviara. She told the jury that she was specifically
asked to review some of the discovery and reports in this case in order to
determine whether a security was involved and whether Baker had made any
material omissions or misstatements in the sale of a security.
¶13 The Deputy Commissioner noted that in carrying out this assignment, she
had reviewed a number of interview reports (including reports of interviews of all
of the alleged victims, some FDIC witnesses, and another individual involved with
Aviara), several statements from Baker (which were not provided to the jury), and
financial information compiled by an auditor in the Attorney General’s office. In
light of what she had reviewed, she initially concluded that the agreements with
the investors at issue here constituted investment contracts and therefore
securities within the meaning of the Act.
¶14 The Deputy Commissioner then turned to whether Baker had made material
misstatements and omissions to the alleged victims in this case. She began by
opining that Baker had a duty to disclose material facts truthfully, with
“materiality” being defined as “a substantial likelihood that the information
7
would be important to a reasonable investor.” She then opined, “Based on my
review of what the investors reported in the investigation about what the
defendant said to them, I believe that there were a series of facts that they
understood that were, in fact, material.” She proceeded to describe these
purported misstatements and omissions as follows:
• The investors understood that their money would be used to purchase a
distressed bank, but “[i]n fact, that was not what happened.” Instead,
although there were some business expenses (e.g., attorney fees), “[t]he vast
majority—or at least half or more went to the defendant and to his colleague.
They just took it directly.”
• Although Baker had stated to the investors that he had “Class A” investors
who were poised to invest imminently, “it did not appear that there were
any Class A investors imminent. And that was quite material.”
• The investors all understood that “there would be a limitation on how much
they could lose,” but “in fact, they lost their entire investment.”
• The investors “had also been told that they would at least get their principal
back within one year. So that is another factor that is material.”
• The investors “were told by the defendant that he would not be taking a
salary until Aviara was up and running or until it was profitable. When, in
fact, the financial information [that the Deputy Commissioner] reviewed
8
indicated that he took the investor proceeds right away and paid himself.”
And this, too, “was clearly a material fact.”
• Baker “had told the investors that these funds would be held in escrow until
such time as the bank was to be purchased and/or the Class A investors
materialized and were to pay the fund to capitalize the bank,” but “[i]n this
case there was no escrow account at all. The funds went into an operating
account that was then used by the defendant.”
¶15 Notably, on cross-examination, defense counsel challenged Deputy
Commissioner Alves on a number of her assertions as to what, factually, had
occurred. She, however, defended her statements and assumptions. For example,
when defense counsel asked whether the documentation that had been given to
the investors, including the investors’ agreements, mentioned anything about the
investor funds being held in escrow, the Deputy Commissioner responded, “No.
Again, that was a verbal representation by the defendant.” She likewise confirmed
that the documentation that had been given to the investors placed no limit on the
amounts that the investors could lose. To the contrary, the documentation stated
that the investment was going to be “speculative” and “with a high degree of risk”
and that the investors “must be able to afford a complete loss of this investment.”
And after defense counsel pointed out virtually identical language (including
typographical errors) in the witness interview reports prepared by an investigator
9
from the Attorney General’s office (suggesting that the investigator had merely
cut and pasted the witnesses’ allegations without capturing what they had actually
said), Deputy Commissioner Alves testified that the fact that the investors said the
exact same things “suggest[ed] that the statements were consistently spoken by
the defendant from investor to investor.” She then doubled down on this
testimony during re-direct examination, stating, when asked if the existence of
some “boilerplate” language had altered her view as to what Baker had said to the
investors, “I don’t have any reason to believe that that’s not what they were told.”
¶16 The jury ultimately convicted Baker of, among other things, three counts of
securities fraud and three counts of theft, and Baker appealed. On appeal, Baker
contended that the trial court had erred in admitting Deputy Commissioner
Alves’s expert testimony because it was not helpful to the jury, was speculative,
misstated the law, and usurped the functions of the judge and jury. People v. Baker,
2019 COA 165, ¶ 11, __ P.3d __.
¶17 In a unanimous, published decision, a division of the court of appeals
subsequently affirmed in part and reversed in part. As pertinent here, the division
agreed with Baker that some of Deputy Commissioner Alves’s testimony invaded
the province of the jury and, therefore, was improper. Id. at ¶¶ 10, 14–21.
Specifically, the division observed that in securities fraud cases, an expert witness
“can opine on the requirements of securities laws; the meanings of certain
10
concepts, such as materiality; whether a particular transaction involved a security;
and, if a certain set of facts is as alleged, whether a particular statement or omission
was material, within the meaning of the securities laws.” Id. at ¶ 16. The division
continued, however, that “such an expert should not be allowed to opine on
whether the prosecution’s factual allegations are true—that is, for example,
whether the defendant did or did not say or do something, or whether particular
events did or did not occur.” Id. In the division’s view, “[s]uch testimony
implicates a weighing of the evidence and determinations of credibility—matters
that are for the jury alone to decide.” Id.
¶18 Applying these principles to this case, the division concluded that the
portions of Deputy Commissioner Alves’s testimony discussed above were
improper for at least two reasons. Id. at ¶ 19. First, in testifying as she did, “Alves
told the jury what had happened in the case,” speaking “as though [the victims’]
allegations were true, which suggested that she had drawn her own conclusions
about the investors’ credibility.” Id. at ¶ 20. And she did so even though the facts
were largely disputed, with Baker’s theory of defense being that he never made
the alleged statements to the investors. Id. Thus, whether the investors were
telling the truth was a matter solely for the jury to decide. Id.
¶19 Second, the division concluded that Deputy Commissioner Alves’s
testimony as to whether the alleged statements were material “went too far.” Id.
11
at ¶ 21. Specifically, the division observed that, although general testimony
regarding the types of statements that an investor could find material is acceptable,
such testimony is improper when, as here, “it assesses witness testimony, indicates
a belief in a particular version of the facts, and then applies the law to those facts
to make conclusions reserved for the jury.” Id.
¶20 Finally, the division concluded that the trial court’s error in admitting
Deputy Commissioner Alves’s above-described testimony was not harmless. Id.
at ¶ 22. In so concluding, the division noted that in testifying to disputed
allegations with authority and as though they were fact, the Deputy
Commissioner, by necessary implication, opined that Baker was guilty. Id. The
division further observed that the danger that the jury had credited the Deputy
Commissioner’s improper opinions was “especially acute,” given that she
(1) testified as an expert; (2) worked for the state, was part of the process for
selecting cases for enforcement, and was one of the people who decided whether
to prosecute criminally; and (3) opined on “technical matters about which the
jurors were likely to afford her particular credibility.” Id. at ¶ 23.
¶21 The People then petitioned for a writ of certiorari, and we granted their
petition.
12
II. Analysis
¶22 We begin by addressing the People’s contentions that Baker did not
properly preserve the issues now before us or that he invited the errors about
which he complains. Rejecting both contentions, we proceed to consider whether
Deputy Commissioner Alves’s testimony exceeded the bounds of proper expert
testimony under CRE 702 and 704. Concluding that it did, we proceed to consider
whether the trial court’s error in admitting such testimony was harmless.
A. Preservation and Invited Error
¶23 The People contend that Baker did not properly preserve his objections to
the portions of Deputy Commissioner Alves’s testimony at issue and that, in any
event, he invited the errors about which he now complains. We reject both
contentions.
¶24 As to preservation, the People assert that, although Baker filed a timely
motion in limine concerning Deputy Commissioner Alves’s testimony, he did not
renew his objections to that testimony at the time the Deputy Commissioner
testified.
¶25 CRE 103(a)(2), however, expressly states, “Once the court makes a definitive
ruling on the record admitting or excluding evidence, either at or before trial, a
party need not renew an objection or offer of proof to preserve a claim of error for
appeal.” Here, Baker filed a timely motion in limine raising precisely the same
13
issues that he raised on appeal, and the trial court subsequently addressed and
ruled on that motion during trial. Accordingly, Baker properly preserved the
issues now before us.
¶26 As for invited error, the People contend that Baker, on cross-examination,
elicited the portions of Deputy Commissioner Alves’s testimony regarding the
facts and witness credibility, and, therefore, he invited the errors about which he
now complains.
¶27 We have long made clear that “a party may not complain on appeal of an
error that he has invited or injected into the case; he must abide the consequences
of his acts.” People v. Zapata, 779 P.2d 1307, 1309 (Colo. 1989). Here, we perceive
no basis for any assertion of invited error. As described above, the People, and
not Baker, elicited the portions of Deputy Commissioner Alves’s testimony at
issue. Specifically, after asking Deputy Commissioner Alves on direct
examination if she had determined whether Baker had made material
misstatements and omissions, the People proceeded to have her describe those
misstatements and omissions at length, making the factual assertions and
determinations about which Baker now complains. Although, to be sure, Baker
sought to discredit this testimony on cross-examination, we see nothing in that
examination that injected into this case the errors that Baker raised on appeal and
continues to assert now.
14
¶28 Accordingly, we deem the issues preserved, reject the People’s assertion
regarding invited error, and now turn to the merits of Baker’s contentions.
B. Admissibility of Deputy Commissioner Alves’s Testimony
¶29 “We review a trial court’s admission of expert testimony for an abuse of
discretion . . . .” People v. Rector, 248 P.3d 1196, 1200 (Colo. 2011). A trial court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law. People v. Jefferson,2017 CO 35
, ¶ 25,393 P.3d 493
, 498–99. ¶30 CRE 702 provides, “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.” The focus of a CRE 702 inquiry is on whether the proffered evidence is both reliable and relevant. People v. Shreck,22 P.3d 68
, 77 (Colo. 2001). In determining whether the expert testimony at issue is reliable, “a trial court should consider (1) whether the . . . principles as to which the witness is testifying are reasonably reliable, and (2) whether the witness is qualified to opine on such matters.”Id.
In deciding whether the evidence is relevant, the court should consider whether the testimony would be useful to the jury.Id.
Expert testimony is useful if it “will assist the fact
15
finder to either understand other evidence or to determine a fact in issue.”
People v. Ramirez, 155 P.3d 371, 379 (Colo. 2007).
¶31 CRE 704, in turn, provides, “Testimony in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an
ultimate issue to be decided by the trier of fact.”
¶32 In Rector, 248 P.3d at 1203, we set forth a number of factors that courts
should consider in determining whether opinion testimony is admissible under
CRE 704. These factors include, but are not limited to, whether (1) the testimony
was clarified on cross-examination; (2) the expert’s testimony expressed an
opinion of the applicable law or legal standards and thereby usurped the function
of the court; (3) the jury was properly instructed on the law and that it could accept
or reject the expert’s opinion; and (4) the expert opined that the defendant had
committed the crime or that there was a particular likelihood that the defendant
did so. Id.
¶33 Applying these principles, both federal courts and Colorado state appellate
courts have uniformly concluded that proffered expert testimony was
inadmissible when the expert either opined on whether the prosecution’s factual
allegations were true, gave opinion testimony that another witness was telling the
truth on a specific occasion, or applied the law to the facts in such a way as to
suggest that the expert had determined that the defendant was guilty. See, e.g.,
16
United States v. Offill, 666 F.3d 168, 175 (4th Cir. 2011) (noting that it does not help the jury for an expert to give testimony that merely states legal standards or draws legal conclusions by applying the law at issue to the facts of the case); United States v. Farrell,563 F.3d 364
, 377–78 (8th Cir. 2009) (concluding that expert testimony invaded the province of the jury when it amounted to an attempt to express an opinion as to the defendants’ guilt, but determining that the erroneous admission of such evidence was harmless error); United States v. Charley,189 F.3d 1251
, 1267–68 (10th Cir. 1999) (concluding that expert testimony, based on the statements of the alleged victim, that the crime at issue had occurred was inadmissible because such testimony amounted to mere vouching for the alleged victim’s credibility); United States v. Scop,846 F.2d 135
, 142 (2d Cir. 1988) (reversing a securities fraud conviction because an expert’s testimony ran afoul of the principle that “expert witnesses may not offer opinions on relevant events based on their personal assessment of the credibility of another witness’s testimony,” the credibility of witnesses being solely for the jury’s determination); United States v. Harvey,405 F. Supp. 3d 667
, 672 (S.D. Miss. 2019) (concluding that expert testimony opining, based on materials provided by counsel, that the circumstances alleged in such materials actually occurred is inadmissible); SLSJ, LLC v. Kleban,277 F. Supp. 3d 258
, 280 (D. Conn. 2017) (observing that an expert “may not simply
recite a factual narrative from one party’s perspective, granting it credibility, when
17
he has no personal knowledge of the facts addressed”); People v. Penn, 2016 CO 32, ¶ 31,379 P.3d 298
, 305 (“We have held that a witness cannot testify that he believes that the defendant committed the crime at issue.”); People v. Wittrein,221 P.3d 1076
, 1081 (Colo. 2009) (“In Colorado, neither lay nor expert witnesses may give opinion testimony that another witness was telling the truth on a specific occasion.”); People v. Bridges,2014 COA 65
, ¶ 16,410 P.3d 512
, 514–15 (excluding expert testimony of a forensic interviewer on the ground that his testimony amounted to opinion as to the truthfulness of the alleged child victims); People v. Lesslie,939 P.2d 443
, 450 (Colo. App. 1996) (“[A]n expert testifying as to issues of law may not . . . simply tell the jury what result to reach.”). ¶34 As these courts have recognized, an expert’s opinion as to the truth of the prosecution’s allegations implicates the weighing of evidence and matters of witness credibility, which are strictly for the jury’s determination. See also Bridges, ¶ 11, 410 P.3d at 514 (“[I]t is solely the jury’s responsibility to determine whether a particular witness’s testimony or statement is truthful.”); People v. Duncan,109 P.3d 1044
, 1046 (Colo. App. 2004) (“[T]he resolution of inconsistent testimony
and determination of the credibility of the witnesses are solely within the province
of the jury.”). Moreover, an expert’s application of the law to the facts that
suggests a determination of guilt would run directly afoul of the fourth Rector
factor discussed above. See Rector, 248 P.3d at 1203.
18
¶35 We are persuaded by the reasoning of the foregoing authorities and thus
agree with the division that the portions of Deputy Commissioner Alves’s
testimony at issue were inadmissible.
¶36 Deputy Commissioner Alves repeatedly opined on the truth of the
prosecution’s factual allegations by speaking as though the allegations against
Baker were true and the statements made by the purported victims were accurate.
Despite the fact that Baker disputed the allegations against him, Deputy
Commissioner Alves did not testify that if a certain fact was alleged or true, then
it would be material. To the contrary, she testified to the allegations contained in
the discovery materials and investigative reports that she had reviewed, opined
that Baker had in fact made the misstatements and omissions asserted therein, and
went so far as to opine that the statements in the Attorney General’s investigator’s
interview reports accurately reflected what Baker had told the investors. In our
view, in so testifying, Deputy Commissioner Alves effectively weighed the
evidence, made credibility determinations as to such evidence, and essentially told
the jury what had occurred in this case, all of which were matters solely for the
jury’s determination. And in doing so, the Deputy Commissioner, for all intents
and purposes, opined that Baker was guilty of the crimes charged, in
contravention of Rector’s fourth factor. See id.
19
¶37 Accordingly, we conclude that on the facts presented here, Deputy
Commissioner Alves’s testimony was inadmissible under CRE 702 and 704. The
question thus becomes whether the error in admitting this testimony was
nonetheless harmless. We address that issue next.
C. Harmless Error
¶38 We review preserved non-constitutional errors for harmless error. Hagos v.
People, 2012 CO 63, ¶ 12,288 P.3d 116
, 119; Crim. P. 52(a). Under this standard, we reverse only if the error affected the substantial rights of the parties. Hagos, ¶ 12,288 P.3d at 119
; Crim. P. 52(a). In other words, we must reverse if the error “substantially influenced the verdict or affected the fairness of the trial proceedings.” Hagos, ¶ 12,288 P.3d at 119
(quoting Tevlin v. People,715 P.2d 338
, 342 (Colo. 1986)). To determine if that occurred, we look to whether the People have shown that “there is no reasonable possibility that [the error] contributed to the defendant’s conviction.” Pernell v. People,2018 CO 13
, ¶ 22,411 P.3d 669
, 673.
¶39 Here, we believe that the error in admitting the portions of Deputy
Commissioner Alves’s testimony at issue affected Baker’s substantial rights and
established a reasonable possibility that the erroneously admitted evidence
contributed to Baker’s convictions. We reach this conclusion for much the same
reasons as the division below.
20
¶40 First, as noted above, Deputy Commissioner Alves relied, in part, on
information not known to the jury, thus implying that she knew more about the
facts than the jurors. And she proceeded to make factual determinations on
disputed matters, relying, at least in part, on this information, thereby suggesting
that she had decided, based on her superior knowledge of the facts, that Baker was
guilty. In our view, such testimony likely contributed to the jury’s verdicts.
¶41 Second, the Deputy Commissioner testified as an expert, and her status in
this regard and as a high-level official in the Colorado Securities Division
undoubtedly imbued her testimony—including her assessment of disputed
facts—with an aura of trustworthiness and reliability. See People v. Koon, 724 P.2d
1367, 1371 (Colo. App. 1986) (observing that a therapist’s status as an expert witness likely “augmented her [improper] testimony with an aura of trustworthiness and reliability”). ¶42 Third, and related to the prior point, Deputy Commissioner Alves testified to technical matters with which the jurors were unlikely to be familiar, and for this reason as well, the jurors were likely to afford her testimony particular weight and credibility. See id.; see also Venalonzo v. People,2017 CO 9
, ¶ 50,388 P.3d 868
, 881
(noting that the prosecution’s failure to designate a witness as an expert prejudiced
the defendant because the expert’s “specialized experience, combined with her use
of technical terms, imbued her testimony with an air of expertise and may have
21
led the jury to credit her assessment of the [victims’] credibility over other
evidence in the case”).
¶43 Finally, Deputy Commissioner Alves worked for the State and indeed told
the jury that she was part of the process for selecting cases for enforcement and
deciding which cases should be prosecuted criminally. These facts tended to put
“the expert’s stamp of approval on the government’s theory” and thus might well
have unduly influenced the jury’s assessment of the disputed facts and evidence
in this case. United States v. Montas, 41 F.3d 775, 784 (1st Cir. 1994).
¶44 For all of these reasons, we perceive, at a minimum, a reasonable possibility
that Deputy Commissioner Alves’s improper testimony contributed to Baker’s
securities fraud and theft convictions. Accordingly, we cannot say that the
erroneous admission of that testimony was harmless.
III. Conclusion
¶45 Deputy Commissioner Alves’s testimony as to the materiality of Baker’s
alleged misstatements and omissions rested, to a large extent, on her weighing of
disputed evidence and her determinations as to Baker’s and the alleged victims’
credibility. Because this testimony usurped the jury’s proper role, we conclude
that the trial court abused its discretion in admitting that testimony. Moreover, on
the facts presented here, we cannot say that the admission of this testimony was
harmless.
22
¶46 Accordingly, we affirm the judgment of the division below, and we remand
this case for further proceedings consistent with this opinion.
23
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