United States v. Moon ( 2016 )

United States Court of Appeals
For the First Circuit
______________________________
No. 13-2352
UNITED STATES,
Appellee,
v.
TERRANCE MOON,
Defendant, Appellant.
_________________________
Before
Howard, Chief Judge,
Souter, Associate Justice,*
Torruella, Selya, Lynch, Lipez, Thompson, Kayatta and Barron,
Circuit Judges.
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ORDER OF COURT
Entered: May 16, 2016
The petition for rehearing having been denied by the panel of judges who decided the case,
and the petition for rehearing en banc having been submitted to the active judges of this court and
a majority of the judges not having voted that the case be heard en banc, it is ordered that the
petition for rehearing and the petition for rehearing en banc be denied.
* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States,
sitting by designation.
TORRUELLA and THOMPSON, Circuit Judges, dissenting from denial of en
banc rehearing.
LIPEZ, Circuit Judge, joined by TORRUELLA and THOMPSON, Circuit
Judges, Statement Re Denial of En Banc Review. I am disappointed that a majority of the
active judges have rejected the opportunity presented by this case to reconsider en banc our
aberrant and misguided law on the admission of opinion testimony by police officers. In my
concurrence four years ago in United States v. Valdivia, I pointed out that our approach has
"created in some of our precedents an unwarranted police exception from the requirements
applicable to expert testimony." 680 F.3d 33, 61 (1st Cir. 2012). That approach not only
seriously misconstrues Federal Rules of Evidence 701 and 702, but it is also "at odds with [the law
of] virtually every other circuit." United States v. Moon, 802 F.3d 135, 147 n.9 (1st Cir. 2015)
(citing Valdivia, 680 F.3d at 56 n.16 (collecting cases)). It is now well past the time when we
should have confronted our flawed law and eliminated the ongoing unfairness to defendants
By the Court:
/s/ Margaret Carter, Clerk
cc:
Hon. Denise Jefferson Casper
Robert Farrell, Clerk, United States District Court for the District of Massachusetts
Mark T. Quinlivan
Dina Michael Chaitowitz
Robert Edward Richardson
Eric Paul Christofferson
Derege B. Demissie
Terrance Moon