In the Courts

Fifth Circuit Rejects 'Positional Predisposition' Expert Testimony

In United States v. Ogle, No. 02-60285, 2003 WL 1870941 (5th Cir. April 14, 2003), James Ogle appealed his conviction and sentence for conspiring to launder monetary instruments in violation of 18 U.S.C. ” 1956(h) and 1956(a)(3)(B), (C). On appeal, he argued, inter alia, that the trial court erred by excluding the proffered expert testimony of a former IRS Special Agent, who proposed to testify on Ogle's deteriorating financial situation as it related to his ability to engage in a large-scale money laundering transaction. The expert opined that Ogle lacked the 'positional predisposition to commit any crime, let alone money laundering.'

The Fifth Circuit held that the trial court did not abuse its discretion in excluding such testimony. The court found that even if the expert testimony had been admitted into evidence, Ogle still could not have established that he was not positionally predisposed to engage either in a conspiracy to commit money laundering or to commit the substantive offense of money laundering. First, the court reasoned that Ogle failed to offer any evidence that he was not positionally predisposed to join in a conspiracy because Ogle's supposed inability to launder money himself has little bearing on his ability to agree to assist in that endeavor. Second, the court reasoned that the expert's testimony would not have been sufficient to establish that Ogle was not positionally predisposed to commit the substantive offense of money laundering because whether Ogle had the personal financial resources to conduct, by himself, a large-scale money laundering transaction is not determinative of the issue of his positional predisposition to engage in actual money laundering. The court explained that Ogle's proposed plans to launder the money involved the use not of his own financial resources, but of those of a third party or parties. Moreover, Ogle's role in the proposed money laundering transaction was that of a broker, one responsible for the picking up and transporting of the cash in order to take advantage of the assets of a third party or parties. Thus, the court concluded that Ogle's proposed expert testimony could not have established a lack of positional predisposition, and that its exclusion, therefore, was not an abuse of discretion.