United States v. Lea, Brian W. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3146
United States of America,
Plaintiff-Appellee,
v.
Brian W. Lea, a/k/a "Skip,"
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 CR 178--Charles N. Clevert, Judge.
Argued March 26, 2001--Decided May 2, 2001
Before Flaum, Chief Judge, and Bauer and
Rovner, Circuit Judges.
Flaum, Chief Judge. After a business
relationship between Brian Lea and
National By-Products ("NBP") went bad,
pesticides from Lea’s strawberry business
were dumped onto NBP’s dead farm animals
("deadstock"). When an anonymous letter
informed NBP that its deadstock, which
had been rendered and sold as animal
food, had been contaminated, the company
was forced to shut down its Berlin,
Wisconsin plant and engage in a massive
recall. On September 14, 1999, Lea was
indicted and charged as the saboteur. At
trial, Lea claimed innocence, contending
that Barry Werch, a former NBP employee,
was the actual culprit. To that end, Lea
sought to introduce evidence of a
polygraph examination which Werch had
"failed," as well as "incriminating"
statements made by Werch to his wife. The
district court did not allow these pieces
of evidence to be admitted. On April 13,
2000, the jury found Lea guilty of
dumping the pesticides. Lea was sentenced
to 36 months imprisonment, a year of
supervised release, and ordered to pay
$2.2 million in restitution. Lea now
appeals, arguing that the district court
erred in excluding evidence of Werch’s
polygraph examination and marital
communications. He further asserts that
these errors of exclusion operated to
violate his Sixth Amendment right to
present a defense. For the reasons stated
herein, we affirm the decisions of the
district court.
I. BACKGROUND
Up until the time of his conviction,
Brian Lea was an entrepreneur dealing in
animal remains. Lea owned and operated a
mink ranch, an enterprise that sold meat
to alligator farms and greyhound kennels,
a deadstock pickup and removal business,
an animal hide business, and a trucking
business to transport his products. Lea
also had concerns unrelated to animal
carcasses, including a strawberry
business. From 1991 through 1996, Lea had
various dealings with NBP, a national
corporation involved in the rendering
business. NBP produced animal food and
feed additives in the form of liquid fat
and dry meat meal by processing otherwise
wasted materials such as used restaurant
grease, deadstock, and unused material
from meat packing plants ("offal"). Lea
and NBP developed a symbiotic
relationship, whereby Lea sold his
deadstock to NBP’s Berlin, Wisconsin
plant, and in return was leased space at
that location to process his chicken
offal into mink food.
The relationship between Lea and NBP
began to deteriorate in August of 1996,
when NBP stopped leasing Lea space in its
Berlin plant to process his chicken
offal. In response, Lea ceased to vend
his offal and collected deadstock to NBP,
and instead marketed his products to a
competitor of NBP. In order to recoup the
raw materials lost by Lea’s actions, NBP
created its own deadstock collection
business. NBP aggressively competed with
Lea for deadstock, hiring Lea’s drivers,
conducting promotions to attract
business, and paying for deadstock--a
frowned-upon tactic in the deadstock
removal field. The competition upset Lea
and took a heavy toll on him financially,
eventually resulting in his filing for
bankruptcy.
In the early winter of 1996, Lea
informed his employee, Jason Haynes, that
he had dumped pesticides from his
strawberry business into a NBP offal and
deadstock trailer in Eau Claire,
Wisconsin. Lea stated that his "only
mistake" was that he had dropped his
flashlight between the loading dock and
the trailer and could not retrieve it.
That flashlight, which was eventually
recovered by NBP employees, was
identified as the model of flashlight
that had been purchased by Lea’s company
in November of 1996. Lea also showed
Haynes a letter he intended to send to
the Berlin Police Department, detailing
the act of contamination.
On December 28, 1996, the Berlin Police
Department received an anonymous letter
from a supposed former NBP employee
recounting an act of sabotage against the
NBP Berlin plant. Enclosed with the
letter was a sample of the contaminant
used by the perpetrator. Upon
notification of the contamination, NBP
stopped delivery of its products. When
testing of those products revealed that
pesticide contamination had in fact
occurred, NBP shut down its plant and
began a massive recall. According to
NBP’s chief financial officer, the
shutdown and recall cost NBP and its
insurer over $2.5 million.
For obvious reasons, the investigation
into the contamination initially focused
on former NBP employees. On January 15,
1997, one such individual, Barry Werch
was questioned by the United States Food
and Drug Administration ("FDA") agent
handling the matter. In that interview,
Werch described the working conditions at
NBP, relating that maggots crawled from
the ceiling of the NBP plant. According
to the agent, during the course of that
interview Werch provided contradictory
statements regarding his knowledge of
when the tampering had taken place and
his feelings towards NBP. The following
day, Werch agreed to take a polygraph
examination. Special Agent Robert West
conducted the test, wherein Werch was
asked whether he had put pesticides into
NBP’s raw materials and whether he had
mailed the aforementioned letter to the
Berlin Police Department. Based on
Werch’s responses, West classified Werch
as "deception indicated," meaning that
Werch had scored a minus three on at
least one of the questions./1 Under
normal circumstances, West conducts a
post-examination interview with the
testee in order to ascertain the basis
for the deception. However, an angered
Werch did not allow the post-instrument
phase of the test to proceed, as he
stormed out of the testing room.
On May 14, 1997, a second letter was
received by the Berlin Police Department
in which the author claimed
responsibility for an additional
contamination of NBP materials. That
message warned that "a very major
finished product contamination will occur
on July or August so the world can see
the putrid conditions that exist there at
that time when the maggots crawl the
walls and ceilings and the stench is so
bad that you can cut it with a knife."
Because Werch had mentioned maggots
crawling on the walls during his first
interview with the FDA agent, and because
of similar statements which Werch had
made to his then spouse, the agents
considered him as a possible author of
the letter.
Nonetheless, as the investigation
proceeded, the authorities began to focus
on Lea as a suspect. The pesticides used
in the contamination were tied to Lea
(via his strawberry business), as were
the letters claiming responsibility for
the acts. On September 14, 1999, Lea was
indicted by a grand jury in the Eastern
District of Wisconsin and charged with
two counts of violating 18 U.S.C. sec.
1365(b). Count One of the indictment
alleged that in December of 1996, Lea had
caused serious injury to NBP by tainting
"animal by-products, which were intended
as a component of animal food and which
affected interstate commerce." Count Two
charged that in mid-1997, Lea had caused
serious injury to NBP by tainting
restaurant grease, which was to be
utilized by the company in making animal
food.
At trial, Lea sought to defend himself
by submitting evidence of third-party
(Werch) culpability. Lea submitted a
request to the court to call West to
testify as to the results of Werch’s
polygraph examination. The district court
conducted a telephone hearing with West,
and thereafter, in a written order dated
April 6, 2000, denied Lea’s request. In
its decision, the court noted that "the
defense [had] failed to establish the
reliability of West’s opinion resulting
from his polygraph examination of Werch."
Specifically, the court focused on the
fact that West could only speculate as to
the accuracy of the polygraph examination
he had performed, and could not state
whether there were any known statistics
on the accuracy rate of the methodology
employed in examining Werch.
On April 11, Lea called Heidi Werch,
Barry Werch’s ex-wife, to testify. Lea
sought to question Heidi regarding a
conversation she had with her husband
during their marriage. According to Lea,
Barry Werch had complained to his wife
about the working conditions at NBP and
specifically about the presence of
maggots in the plant. Lea had hoped to
have this testimony introduced to connect
Barry Werch to the May 1997 letter, and
thus bolster his third-party culpability
defense. However, Barry Werch invoked the
marital communications privilege, and the
district court did not allow Heidi Werch
to answer Lea’s questions.
Two days later, on April 13, 2000, the
jury returned a verdict of guilty against
Lea on Count One and not guilty on Count
Two. Thereafter, Lea filed a motion for
judgment of acquittal. On July 28, 2000,
the district court orally denied Lea’s
motion, and sentenced him to 36 months
incarceration, followed by one year of
supervised release. Lea was further
ordered to pay a special assessment of
$100 and restitution of $2.2 million. Lea
now appeals the evidentiary rulings of
the district court. Besides contending
that the results of the polygraph
examination were incorrectly excluded and
that the marital communications privilege
was incorrectly applied, he propounds
that these errors operated to violate his
Sixth Amendment right to present a
defense.
II. DISCUSSION
A. Admissibility Of Polygraph Examination
Results
As stated above, Lea filed a pretrial
motion seeking permission to call Agent
West to testify as to the results of
Werch’s polygraph examination. On April
6, 2000, the district court conducted a
telephone hearing with West in order to
determine whether West’s testimony was
admissible consistent with the
gatekeeping test enunciated in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). In a written order that
same day, the court noted that "[i]n
considering the reliability of proffered
scientific testimony [here, Werch’s
polygraph examination], the court
mustdetermine whether the proffered
theory or technique has been tested,
whether the theory or technique has been
subjected to peer review and publication,
the known or potential error rate of the
technique or expert, and whether the
theory at issue has gained ’general
acceptance’ in the relevant scientific
community." The court further noted that
the Seventh Circuit regards the admission
of polygraph evidence as within the
discretion of the district court, which
is required to engage in a Fed. R. Evid.
403 balancing test./2 Turning to the
testimony at issue, the court observed
that West could only speculate as to the
accuracy of the polygraph examination he
performed, and was unaware of whether
there were any known statistics on the
accuracy rate of a test using the
methodology employed in examining Werch.
Concluding that the defendant had failed
to establish the reliability of West’s
opinion, the district court did not allow
the evidence to be admitted at trial.
On appeal, Lea asserts multiple
foundations for considering the district
court’s exclusion of West’s testimony to
be in error. First, Lea contends that the
district court incorrectly analyzed the
admissibility question by proceeding
under a Daubert framework, as the Seventh
Circuit has articulated that such
inquiries are to be handled under a Rule
403 balancing of probative value versus
prejudicial effect. Alternatively, Lea
posits that if a Daubert examination was
appropriate, the district court’s
application of the Daubert gatekeeping
test was unsound. We begin by examining
the appropriate method for determining
the admissibility of polygraph evidence.
As the Supreme Court has noted, "there
is simply no consensus that polygraph
evidence is reliable. To this day, the
scientific community remains extremely
polarized about the reliability of
polygraph techniques." United States v.
Scheffer, 523 U.S. 303, 309 (1998)./3
In this Circuit, the admissibility of
polygraph evidence is a matter within the
discretion of the district court. See
United States v. Robbins, 197 F.3d 829,
844 (7th Cir. 1999). A district court’s
decision on the admissibility of
polygraph results deserves considerable
deference, and will be reversed only when
the district court has abused its
discretion. See United States v. Olson,
978 F.2d 1472, 1480 (7th Cir. 1992).
"When dealing with the admissibility of
polygraph evidence, and the accuracy
thereof, the trial court must engage in a
delicate balancing of many factors
including probative value, prejudicial
effect, confusion of the issues,
misleading the jury, and undue delay."
Id. As such, in Robbins we noted that
"[i]n determining whether to admit
polygraph evidence, the district court
must take as its guide Rule 403 of the
Federal Rules of Evidence." 197 F.3d at
844.
Building on the language in Robbins, Lea
suggests that the Seventh Circuit has
determined that lie detector examinations
should not be excluded because of
reliability concerns. Rather, he argues
that only the concerns listed in 403 can
serve as reasons for exclusion. An
examination of Seventh Circuit case law
does suggest that we have progressed
farther than other courts in allowing the
admission of polygraph evidence./4 Yet,
despite the veracity of Lea’s contention
regarding the applicability of 403, a
district court need not abandon its
reservations regarding the reliability of
polygraph procedures. In United States v.
Dietrich, we noted that while the
decision whether to admit polygraph
evidence was left to the discretion of
the district court, district judges often
excluded such evidence "because doubts
about the probative value and reliability
of this evidence" outweighed any
rationale for admission. 854 F.2d 1056,
1059 (7th Cir. 1988) (emphasis added).
While our recent case law has not
explicitly retained the notion that
reliability concerns can factor into the
admissibility decision, we note that Rule
403 allows for the exclusion of otherwise
relevant evidence if the probative value
is "substantially outweighed by the
danger of . . . misleading the jury." As
Justice Thomas’s majority opinion in
Scheffer noted, "[a] fundamental premise
of our criminal trial system is that ’the
jury is the lie detector.’" 523 U.S. at
313 (quoting United States v. Barnard,
490 F.2d 907, 912 (9th Cir. 1973)).
Jurisdictions may be legitimately
concerned that juries might be misled,
and give "excessive weight to the
opinions of a polygrapher, clothed as
they are in scientific expertise . . . ."
Id. at 313-14. Justice Thomas
furthercommented that "the aura of
infallibility attending polygraph
evidence [could] lead jurors to abandon
their duty to assess credibility and
guilt." Id. Such concerns are undoubtedly
heightened when the reliability of the
particular examination is called into
question. As the reliability of the
evidence decreases, the likelihood
increases that the probative value may be
substantially outweighed by the
prejudicial effect. Thus, while
reliability is an explicitly referenced
concern that is appropriately discussed
in a Daubert framework, the issue may
also become an integral part of a 403
inquiry.
Consistent with the above analysis, in
United States v. Taylor, we found that a
district court had not abused its
discretion in excluding evidence of a
polygraph examination because it
determined that the expert’s application
of the technique in the case was not
reliable. 154 F.3d 675, 683 (7th Cir.
1998). The court had examined the
reliability concerns under the Daubert
framework, and determined that the
"reliability problems rendered the
probative value minimal . . . [while]
there was a danger that the jury would
consider the polygraph test to be
conclusive regarding [the witness’]
veracity." Id. In affirming the decision
of the district court, we examined the
testimony’s reliability using concerns
outlined in Daubert, including the
methodology employed and the
qualifications of the expert. See id;
Daubert, 509 U.S. at 590-95. However, our
ultimate conclusion was that the concerns
regarding reliability tipped the 403
analysis in favor of excluding the
polygraph evidence.
We read the district court in this case
to have proceeded in a similar vein.
While the district court did repeatedly
reference its obligation under Daubert,
it noted that it was required "to engage
in a delicate balancing of many factors
including probative value, prejudicial
effect, confusion of the issues,
misleading the jury, and undue delay."
Against that backdrop, the district court
focused on the known or potential rate of
error. Looking towards Daubert as a
guide, the court was concerned with
West’s inability to conclusively provide
the accuracy rates for the polygraph
examination he conducted. More troubling
to the court were the facts that West was
(1) unaware as to whether there were any
known statistics on the accuracy rate of
the test he had given, and (2) unable to
complete his examination of Werch and
determine why it was that he had
considered Werch "deception
indicated."/5 These factors reduced the
reliability of West’s opinion, tipping
the balance under Rule 403 in favor of
exclusion.
As stated above, we afford district
courts a great deal of discretion in
deciding whether to admit polygraph
evidence. See Olson, 978 F.2d at 1480.
Here, the district court had legitimate
concerns regarding the reliability of the
examination performed. The court
attempted to assuage its concerns by
conducting a hearing with Agent West.
When West was unable to allay the
district court’s uneasiness regarding
reliability, the court concluded, as Rule
403 permits, that the evidence should be
excluded. Accordingly, we find that the
district court did not abuse its
discretion in excluding West’s testimony
regarding Werch’s polygraph examination.
As such, we continue to hold that a
district court need not conduct a full
Daubert analysis in order to determine
the admissibility of standard polygraph
evidence, and instead may examine the
evidence under a Rule 403 framework.
Nonetheless, we posit that the factors
outlined by the Supreme Court in Daubert
remain a useful tool for gauging the
reliability of the proffered testimony,
as reliability may factor into a 403
balancing test./6
B. Applicability Of The Marital Communications
Privilege
On January 30, 1997, Heidi Werch met
with Agent Hejny of the FDA. Hejny
questioned Heidi as to whether Barry
Werch had ever spoken ill of NBP. Heidi
recalled to the agent that one day during
the course of their marriage, Barry had
returned home quite upset. Barry informed
Heidi that a grinder at the plant had
broken down and that he had been required
to go in and fix it. While inside the
grinder, Barry said, there were maggots
dropping all over him.
At trial, Lea sought to call Heidi to
testify to the statements made by Barry
concerning the maggots at the NBP plant.
Lea attempted to introduce the testimony
to bolster his claim that Barry Werch was
the author of the May 14th letter--which
likewise referenced maggots at the plant--
and thus the culpable party. However,
Barry Werch’s counsel invoked the marital
communications privilege, and the court
instructed Heidi not to respond to any of
Lea’s questions. Lea argues on appeal
that the decision of the district court
to allow Barry Werch to invoke that
privilege was in error. Lea asserts that
Barry Werch waived the privilege during
an interview with the FDA, wherein he
mentioned maggots at the NBP plant.
In a criminal trial, the availability of
any privilege is "governed by the
principles of the common law as they may
be interpreted by the Courts of the
United States in the light of reason and
experience." Fed. R. Evid. 501; United
States v. Byrd, 750 F.2d 585, 589 (7th
Cir. 1984). One privilege that is firmly
rooted in our common law is the marital
communications privilege, which reflects
the value our society places on
uninhibited communications between
spouses. See United States v. Short, 4
F.3d 475, 487 (7th Cir. 1993). The
privilege, which can be asserted by
either spouse, applies only to
communications made in confidence between
the spouses during a valid marriage. See
Byrd, 750 F.2d at 590. We encourage
married people to confide in each other
by protecting their statements from later
scrutiny in court. See id. In order to
fully foster this level of trust between
married couples, the Supreme Court has
held that a couple’s divorce does not
terminate the privilege for confidential
marital communications. See Pereira v.
United States, 347 U.S. 1, 6 (1954). Yet,
the cost of that privilege is a reduction
in truthful disclosure. It is because
privileges are in derogation of the
search for truth, which lies at the heart
of a criminal trial, that the Supreme
Court has held that they must be
construed narrowly. See United States v.
Nixon, 418 U.S. 683, 710 (1974).
Once again, special deference is given
to the evidentiary rulings of the
district court. Thus, we will not reverse
such rulings unless the decision of the
district court constituted an abuse of
its discretion. United States v. Lofton,
957 F.2d 476, 477 (7th Cir. 1992). Here,
the district court stated that it did
"not have any reason to believe that the
communication was intended to be
communicated to third parties, or that
the privilege was waived at any point in
time." When analyzing whether the
district court properly invoked the
marital communications privilege to bar
testimony, we begin with a premise of
confidentiality regarding communications
made during a marriage. Blau v. United
States, 340 U.S. 332, 333 (1951). Simply
put, Lea has not presented any evidence
to overcome this presumption./7 Despite
Lea’s assertion, the record does not
reflect that the statements made by Barry
Werch to Heidi Werch were "categorically
and literally identical" to those
statements Werch provided FDA agents.
Rather, both statements merely dealt with
a similar topic, namely maggots in the
NBP. While we remain steadfast in our
position that the necessary element of
confidentiality is lost when a spouse
divulges to a third party the
communication which he or she seeks to
exclude from evidence, see Short, 4 F.3d
at 478, we do not believe that to have
occurred in this instance. Thus, we
conclude that there was no abuse of
discretion in the district court’s
decision to exclude these statements as
having been made in the absolute
confidence of a valid marriage./8
C. Opportunity To Present A Defense
Apart from the evidentiary challenges
discussed above, Lea argues that the
Constitution mandates that both the
testimonies of Agent West and Heidi Werch
should have been admitted. Specifically,
Lea asserts that the district court’s
decisions to exclude that evidence
constitutes a violation of Lea’s Sixth
Amendment right to present a defense.
We begin by noting that the right of a
defendant to present evidence is grounded
in the Sixth Amendment, and stands on no
lesser footing than the other Sixth
Amendment rights. See Taylor v. Illinois,
484 U.S. 400, 409 (1988). Just as the
accused has the right to confront the
prosecution’s witnesses for the purpose
of challenging their testimony, the
accused also has a right to present his
or her own witnesses to establish a
defense. See Washington v. Texas, 388
U.S. 14, 19 (1967). However, a
defendant’s right to present relevant
evidence is not unbounded, but rather is
subject to reasonable restrictions. See
Scheffer, 523 U.S. at 308. Thus, a
defendant’s interest in presenting
relevant evidence may "’bow to
accommodate other legitimate interests in
the criminal trial process.’" Rock v.
Arkansas, 483 U.S. 44, 55 (1987) (quoting
Chambers v. Mississippi, 410 U.S. 284,
295 (1973)). "The accused does not have
an unfettered right to offer testimony
that is incompetent, privileged, or
otherwise inadmissible under standard
rules of evidence. The Compulsory Process
Clause provides him with an effective
weapon, but it is a weapon that cannot be
used irresponsibly." Taylor, 484 U.S. at
410. Under the Constitution, state and
federal rulemakers have broad latitude to
fashion rules which operate to exclude
evidence from criminal trials. See
Scheffer, 523 U.S. at 308. Such rules
will not be deemed to abridge an
accused’s right to present a defense so
long as they are not "arbitrary" or
"disproportionate to the purposes they
are designed to serve." Rock, 483 U.S. at
56.
The evidence that Lea argues should have
been introduced in keeping with the Sixth
Amendment right to present a defense is
evidence which we have already determined
is in one instance "privileged" and in
the other "inadmissible under standard
rules of evidence." See Taylor, 484 U.S.
at 410. In light of those findings, in
order to be successful on his Sixth
Amendment claim, Lea would have to put
forth that the rules which guided those
decisions violate the standards set forth
in cases such as Rock. See id. In this
instance, that would require Lea to argue
that Federal Rule of Evidence 403 and the
marital communications privilege were
arbitrary or disproportionate to the
purposes they were designed to serve. Lea
does not undertake that endeavor, and we
believe he is wise in not doing so.
Therefore, we find that the district
court’s decisions, to the extent that
they operated to limit Lea’s ability to
present evidence of Werch’s supposed
culpability, did not violate Lea’s Sixth
Amendment Right to Compulsory Process.
III. CONCLUSION
The district court did not abuse its
discretion in excluding West’s testimony
regarding Werch’s polygraph examination.
Likewise, the court did not err in
finding that the marital communications
privilege had been properly invoked. Fur
thermore, these decisions did not
constitute impermissible restrictions on
Lea’s Sixth Amendment right to present a
defense. For the foregoing reasons, we
Affirm the decision of the district court.
FOOTNOTES
/1 During a hearing on the matter, West did not have
his files with him and could not recall on which
question Werch had received the minus three
score. However, he stated that to be considered
"deception indicated" for the entire examination,
which Werch was, one must receive a minus three
score on at least one question.
/2 Rule 403 reads as follows:
Although relevant, evidence may be excluded if
its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by consid-
eration of undue delay, waste of time, or need-
less presentation of cumulative evidence.
/3 Recent cases from both the Supreme Court as well
as this Circuit have examined the literature on
the issue of the accuracy and reliability of
polygraph examinations. See Scheffer, 523 U.S. at
309; Veazey v. Communications & Cable of Chicago,
Inc., 194 F.3d 850, 855-59 (7th Cir. 1999). While
we need not rehash the studies on the subject at
this time, we note generally, as the Supreme
Court did in Scheffer, that while "[s]ome studies
have concluded that polygraph tests overall are
accurate and reliable . . . [o]thers have found
that polygraph tests assess truthfulness . . .
little better than could be obtained by the toss
of a coin." 523 U.S. at 310.
/4 While this Court would allow a district court to
admit polygraph evidence if it complied with Rule
403, other federal circuits and states have
maintained a per se ban on the admissibility of
such evidence. See, e.g., United States v.
Sanchez, 118 F.3d 192, 197 (4th Cir. 1997); State
v. Porter, 241 Conn. 57, 92-95 (1997); People v.
Gard, 158 Ill. 2d 191, 202-04 (1994).
/5 West could not even inform the court as to which
question(s) Werch had received the score required
to be considered "deception indicated."
/6 Because we have determined that the district
court properly excluded the evidence pursuant to
Rule 403, we need not address Lea’s contention
that the district court’s application of Daubert
was unsound. However, we note in passing that it
would not have been error had the district court
conducted a full Daubert analysis of West’s
testimony. We undertake a de novo review of
whether the district court properly applied
Daubert. See United States v. Brumley, 217 F.3d
905, 911 (7th Cir. 2000). West’s examination of
Werch involved deviations from the standard
"pass," "fail," or "inconclusive" grades. West
employed a methodology which he had never pre-
sented in a federal court. Furthermore, the test
itself was never completed, as Werch did not
partake in the post-examination phase of ques-
tioning. These departures from the standard
polygraph examination could have raised suffi-
cient doubts as to accuracy and reliability of
the test at issue so as to warrant the district
court’s engagement in a complete analysis of
West’s polygraph examination as well as his
credentials. See Daubert, 509 U.S. at 590-95.
As for the examination conducted by the dis-
trict court, it is evident that it could be
considered an appropriate Daubert analysis. A
district court is not required to consider all of
the guideposts outlined in Daubert when making an
admissibility ruling. Ancho v. Pentek Corp., 157
F.3d 512, 515 (7th Cir. 1998). Here, the district
court focused on the potential rate of error
prong of Daubert, and concluded that the evidence
should be excluded as unreliable. Having deter-
mined that the district court properly applied
the Daubert framework, the decision to admit or
exclude expert testimony would be reviewed for
abuse of discretion. See Brumley, 217 F.3d at
911. As we held above, we believe, given the
circumstances surrounding this evidence, the
district court’s decision to exclude would not be
reversible under our deferential standard of
review. Thus, regardless of whether analyzed
under Rule 403 or independently under Daubert,
the district court did not err in excluding this
evidence.
/7 Lea’s entire argument that Barry Werch waived the
marital communications privilege is two sentences
long and does not reference any relevant case
law. As we noted in United States v. Andreas,
such perfunctory and underdeveloped arguments are
themselves waived. 150 F.3d 766, 769-70 (7th Cir.
1998). However, as in United States v. White, 240
F.3d 656, 662 n.4 (7th Cir. 2001), we grant Lea
a degree of latitude and examine the merits of
his claim.
/8 Notwithstanding the above discussion, we note
that if any error existed, it would be considered
harmless. See Lofton, 957 F.2d at 477-78. First,
as Lea admits, he was able to introduce evidence
of Barry Werch’s status as a suspect. Second,
Heidi Werch’s testimony was at best tangentially
relevant for proving that Lea authored the May
1997 letter. Yet, most importantly, that letter
referenced the act of contamination contained in
Count Two of the indictment. Because Lea was
found not guilty of that charge, it is difficult
to see how Lea was harmed by the district court’s
exclusion of evidence relating to that Count.