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`Case: 1:19-cr-00322 Document #: 318 Filed: 11/02/23 Page 1 of 10 PageID #:5127
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`UNITED STATES OF AMERICA,
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` Plaintiff,
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` v.
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`EDWARD M. BURKE, PETER J.
`ANDREWS, and CHARLES CUI,
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` Defendants.
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`
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` No. 19 CR 322
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` Judge Virginia M. Kendall
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`MEMORANDUM OPINION AND ORDER
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`Burke moves to exclude testimony by Professor Constance A. Mixon, Ph.D., the
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`Government’s proposed expert witness on Chicago government and politics. (Dkts. 238, 261). The
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`Court held a hearing on the motion on October 31, 2023. For the following reasons, the motion is
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`denied.
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`BACKGROUND
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`The Court assumes familiarity with the facts and posture of this case. (See Dkts. 196, 287,
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`301). For context, on May 30, 2019, a grand jury returned a Superseding Indictment charging
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`Defendant Edward Burke, his associate Peter Andrews, and businessman Charles Cui in nineteen
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`corruption-related counts. (Dkt. 30). Burke is the longest-serving member of Chicago’s City
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`Council, assuming his position in 1969. (Dkt. 196 at 2). The Indictment alleges that Burke
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`exploited his authority as the Alderman of Chicago’s Fourteenth Ward and Chairman of the
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`Committee on Finance to gain business for his law firm, Klafter & Burke, in exchange for securing
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`official favors such as lucrative tax breaks and permits from the City of Chicago. (Dkt. 30 ¶¶ 1g–
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`1
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`Case: 1:19-cr-00322 Document #: 318 Filed: 11/02/23 Page 2 of 10 PageID #:5128
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`h, 4; Dkt. 196 at 1). The charges focus on four episodes between 2016 and 2018 where Burke
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`allegedly exploited his position on the Chicago City Council. (See Dkt. 30).
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`The Government retained Professor Mixon to provide expert testimony regarding the
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`operation of the Chicago City Council. (Dkt. 261 at 2). Burke moved in limine to exclude Professor
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`Mixon’s expert testimony on the grounds that she is not qualified and that the Government failed
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`to carry its burden to show her testimony is both relevant and reliable. (Dkt. 238). On October 31,
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`2023, the Court held a hearing on the motion. (Dkt. 314).
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`LEGAL STANDARD
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`Federal Rule of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell
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`Pharmaceuticals, Inc., 509 U.S. 579 (1993), “govern the admissibility of expert testimony.” Kirk
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`v. Clark Equip. Co., 991 F.3d 865, 871 (7th Cir. 2021) (citation omitted). Trial judges act as
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`gatekeepers to screen expert testimony for relevance and reliability. Daubert, 509 U.S. at 589; see
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`also C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834 (7th Cir. 2015). Under Rule 702, a
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`“witness who is qualified as an expert by knowledge, skill, experience, training, or education may
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`testify in the form of an opinion if:
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`(a) the expert’s scientific, technical, or other specialized knowledge will help the
`trier of fact to understand the evidence or to determine a fact in issue;
`(b) the testimony is based on sufficient facts or data;
`(c) the testimony is the product of reliable principles and methods; and
`(d) the expert has reliably applied the principles and methods to the facts of the
`case.”
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`Fed. R. Evid. 702. Thus, “the key to the gate is not the ultimate correctness of the expert’s
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`conclusions but rather the soundness and care with which the expert arrived at her opinion.” Burton
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`v. E.I. du Pont de Nemours & Co., Inc., 994 F.3d 791, 826 (7th Cir. 2021) (quoting Schultz v. Akzo
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`Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013)) (cleaned up).
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`2
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`District courts apply Daubert flexibly, consistent with this Court’s gatekeeping function.
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`Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). Employing a three-part analysis,
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`the Court determines: (1) “whether the witness is qualified;” (2) “whether the expert’s
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`methodology is . . . reliable;” and (3) “whether the testimony will assist the trier of fact to
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`understand the evidence or determine a fact in issue.” Myers v. Ill. Cent. R.R. Co., 629 F.3d 639,
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`644 (7th Cir. 2010) (cleaned up). The expert’s proponent bears the burden of demonstrating that
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`the testimony would satisfy the Daubert standard by a preponderance of the evidence. See
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`Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 782 (7th Cir. 2017); see also Fed. R. Evid.
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`702 advisory committee’s note to 2000 amendment. If the Court determines that an expert’s
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`testimony is admissible, “any questions or problems concerning the expert’s opinion and testimony
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`may be thoroughly explored during the cross-examination of the expert witness.” United States v.
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`Perez, 612 F.3d 879, 886 (7th Cir. 2010).
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`DISCUSSION
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`
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`The Government retained Professor Mixon to provide expert testimony regarding the
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`operation of the Chicago City Council, the role that Alderpersons play within their geographic
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`wards, and how requests for action are handled by the Council and the Finance Committee. (Dkt.
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`261 at 2–3). Defendant Burke seeks to bar Professor Mixon’s testimony on the grounds that she is
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`not qualified and that the Government failed to carry its burden to show her testimony is both
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`relevant and reliable. (Dkt. 238).
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`I.
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`Professor Constance Mixon
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`A.
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`Professor Mixon’s Qualifications
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`“Whether a witness is qualified as an expert can only be determined by comparing the area
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`in which the witness has superior knowledge, skill, experience, or education with the subject matter
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`3
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`of the witness’s testimony.” Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010) (quoting Carroll
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`v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990)). Professor Mixon is a political science
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`professor and the Director of the Urban Studies Program Elmhurst University. (Dkt. 261-1). She
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`holds a Bachelor of Arts in politics from Cornell College and a Master of Public Administration
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`and Ph.D. in political science from the University of Illinois at Chicago. (Id.) Her focus is on
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`“urban government,” particularly in Chicago. (Dkt. 238-1 at 2). Prior to joining the faculty at
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`Elmhurst University, Professor Mixon taught at the City Colleges of Chicago. (Dkt. 261-1). In
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`total, Professor Mixon has been teaching political science in the Chicagoland area for over 25
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`years. (Dkt. 238-3 at 2–3). Professor Mixon has also published several book chapters, journal
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`articles and serves as the co-editor of Twenty-First Century Chicago, the “primary textbook” on
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`Chicago society and politics. (Dkt. 261-1 at 2). At the hearing, Professor Mixon noted she also
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`attends City Council meetings, researches its operations, reads the City Council’s Journals of the
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`Proceedings,1 and stays up to date with other materials relevant to the political science profession,
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`such as news reports, investigative reports, standardized texts, and scholarly articles.
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`Defendant Burke does not challenge Professor Mixon’s credentials but takes issue with
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`Professor Mixon’s “exaggerations in her CV,” such as certain “peer-reviewed” book chapters.
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`(Dkt. 238 at 5, 11–12). Professor Mixon’s 25-page Curriculum Vitae includes various academic
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`papers under the title “Peer-Reviewed Academic Conference Papers.” (Dkt. 238-3 at 7). At the
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`hearing and in his motion, Burke drew attention to a previous draft of her CV, where Professor
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`Mixon placed three chapters from her book Twenty-First Century Chicago under this category
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`when they were not in fact peer-reviewed; but rather reviewed by her co-editors. Professor Mixon
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`1 The Journal of the Proceedings is the “official record” of City Council meetings and reflects all actions occurring
`THE CITY CLERK,
`during
`such meetings.
`the Proceedings, OFFICE OF
`See
`Journal
`of
`https://www.chicityclerk.com/legislation-records/journals-and-reports/journals-proceedings (last visited Nov. 1,
`2023).
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`4
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`became aware of these discrepancies from Burke’s Daubert challenge and explained that she has
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`corrected her CV after this was brought to her attention and that she “misclassified” the chapters
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`but had accurately classified the book as not peer-reviewed. The Government contends this was a
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`clerical error and does not “demonstrate the type of credibility concerns that defendants seems to
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`suggest.” (Dkt. 261 at 14). Burke perceives this error goes to her reliability as an expert. (Dkt. 238
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`at 13).
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`The Court finds that Professor Mixon is qualified to provide expert testimony as to
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`operations of the Chicago City Council from 2015 to 2019, including the (1) structure and rules
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`governing the City Council; and (2) roles and responsibilities of Chicago Alderpersons, given her
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`academic credentials and extensive experience of teaching, researching, and studying the topics at
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`hand. Trs. of Chi. Painters & Decorators Pension, Health & Welfare, & Deferred Sav. Plan Tr.
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`Funds v. Royal Int’l Drywall & Decorating, Inc., 493 F.3d 782, 787 (7th Cir. 2007) (“[W]hile
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`extensive academic and practical expertise in an area is certainly sufficient to qualify a potential
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`witness as an expert, Rule 702 specifically contemplates the admission of testimony by experts
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`whose knowledge is based on experience.”) (internal quotation marks omitted).
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`Burke’s issues with Professor Mixon’s CV errors go to the weight of her testimony, not
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`her qualifications or admissibility. To the extent that Burke would like to challenge Professor
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`Mixon’s credibility based on the misclassified book chapters, he may do so on cross examination.
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`See, e.g., Wielgus v. Ryobi Techs., Inc., No. 08 CV 1597, 2012 WL 3643682, at *3 (N.D. Ill. Aug.
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`23, 2012) (“[T]he trial court’s role as gatekeeper is not intended to replace cross-examination and
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`the presentation of conflicting evidence as traditional mechanisms for highlighting weaknesses in
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`the expert’s testimony.”).
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`B.
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`Reliability of Professor Mixon’s Methodology
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`Reliability “is primarily a question of the validity of the methodology employed by an
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`expert, not the quality of the data used in applying the methodology or the conclusions produced.”
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`Manpower, Inc. v. Ins. Co. of Penn., 732 F.3d 796, 806 (7th Cir. 2013). The test for reliability is
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`“flexible,” and the factors enunciated in Daubert “neither necessarily nor exclusively appl[y] to
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`all experts or in every case.” Kumho Tire, 526 U.S. at 141. Moreover, expert testimony is not
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`unreliable, “simply because it is founded on [a witness’s] experience rather than on data.”
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`Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010). Here, Professor
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`Mixon’s proposed expert testimony could be found reliable based solely on her experience and
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`credentials: her specialized expertise in the structure and operations of Chicago’s City Council is
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`based on over 25 years of study, academic research and writing, teaching, and observation of the
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`City Council.
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`As outlined in the hearing, Professor Mixon’s methods in preparing her proposed expert
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`testimony include using her own experience and knowledge, studying operations of the City
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`Council, reading reports on the City Council, observing over 40 meetings of City Council, and
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`then applying her academic expertise to synthesize and decipher this information to present to
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`students and in written publications. Professor Mixon used these methods to prepare presentation
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`slides on “Chicago’s City Council,” (Dkt. 238-2), and updated them using news reports, rules,
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`procedures, and the City of Chicago’s own sources on its website.
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`Using these available records, information, and her own experience and academic expertise
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`is a reliable methodology in political science and appropriate to the facts of this case. See, e.g., Ill.
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`Liberty PAC v. Madigan, No. 12 C 5811, 2015 WL 5589630, at *4 (N.D. Ill. Sep. 21, 2015)
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`(“Unlike scientific or technical experts . . . a political scientist’s testimony (political science is not
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`6
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`‘science’ for Rule 702 purposes) cannot be so mechanically scrutinized.”); Potts v. Manos, No. 11
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`CV 3952, 2017 WL 4365948, at *5 (N.D. Ill. Sept. 29, 2017) (“A witness who offers expert
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`testimony based on his experience must connect his experience to the facts of the case in order to
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`meet the standard for reliability under Daubert and the Federal Rules of Evidence.”).
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`C.
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`Relevance of Professor Mixon’s Opinions
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`Lastly, “[a]n expert’s testimony qualifies as relevant under Rule 702 so long as it assists
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`the jury in determining any fact at issue in the case.” Stuhlmacher v. Home Depot U.S.A., Inc., 774
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`F.3d 405, 409 (7th Cir. 2014). “Expert testimony which does not relate to any issue in the case is
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`not relevant and, ergo, non-helpful.” Daubert, 509 U.S. at 591 (internal citation omitted). The Rule
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`702 standard for relevance also incorporates the Court’s obligations under Rule 403 to “determine
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`the total effects of proposed evidence, weighing its probative value against its potential to (among
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`other things) confuse the jury.” United States v. Schiro, 679 F.3d 521, 529 (7th Cir. 2012).
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`Professor Mixon’s proposed expert testimony would be used primarily to educate the jury.
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`See United States v. Gan, 54 F.4th 467, 477–78 (7th Cir. 2022) (finding that a law enforcement
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`expert may explain “the methods and jargon” in “unfamiliar” criminal enterprises). In fact,
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`educational expert testimony can be proper under Rule 702 “when it helps the jury to understand
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`the evidence.” Id. at 474 (internal quotations omitted). What matters is whether the testimony is
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`“helpful.” Id. at 475. Here, Professor Mixon’s proposed expert testimony is undeniably so.
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`Professor Mixon’s proposed expert testimony regarding the structure and rules of the City
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`Council and the roles and responsibilities of Alderpersons is particularly useful and relevant to
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`jurors in this complex case. Professor Mixon will be primarily explaining the operations of
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`Chicago’s City Council to an audience similar to the students she teaches, who have no daily
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`knowledge of the operation of the City Council. (See Dkt. 261 at 6). Her testimony is, in essence,
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`7
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`“a civics lesson in Chicago government.” (Id. at 6). As discussed in the hearing, most Chicagoans
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`do not know their Alderperson and what ward they live in, and are unfamiliar with city government
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`operations. It is not a stretch to posit that most jurors, many of whom do not live in the City of
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`Chicago but in the 17 other counties from which this Court pulls its jurors, are unfamiliar with the
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`basics of the Chicago City Council. Professor Mixon will provide those basics and the framework
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`to process the evidence presented. The structure of Chicago’s City Council is not inherently
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`understood through common sense; nor does it parallel that of other large municipalities. Jurors
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`need the basic information about the structure and processes of Chicago’s City Council to put into
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`context the facts that they will be discerning.
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`Moreover, at the hearing, Burke argued that Professor Mixon’s proposed expert testimony
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`is not relevant as it primarily relates facts rather than opinions. Professor Mixon does not need to
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`reach an opinion for her testimony to be “helpful” or “assist the trier of fact.” Daubert, 509 U.S.
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`at 491; Fed. R. Evid. 702 advisory committee’s note to 2000 amendment. In fact, Professor
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`Mixon’s lack of opinion belies the possible prejudice for Burke. Rather than replacing the jurors’
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`conclusions by reaching her own and placing an expert’s imprimatur upon them, Professor Mixon
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`is merely providing information from which the jurors may reach their own conclusions. This
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`limitation significantly lessens any prejudice that Mixon’s testimony will have.
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`Burke cites United v. McClain, a recent case in which a court in this district excluded
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`testimony from a political scientist, since no “expert can waltz into the courtroom and render
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`opinions not based upon a recognized method.” No. 20 CR 812, 2023 WL 2403137, at *2 (N.D.
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`Ill. Mar. 8, 2023) (quotations omitted) (emphasis added). First, as established above, the Court
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`finds Professor Mixon’s proposed expert testimony reliable. Further, as Burke pointed out in the
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`hearing, Professor Mixon is not providing an opinion, nor is she putting an “‘expert gloss’ on
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`8
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`conclusions the jurors are capable of seeing for themselves.” Id. at *3. Rather, as discussed above,
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`she provides relevant, helpful information to the jury. The Court finds no prejudice.
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`Finally, Professor Mixon’s testimony also would include possible testimony regarding
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`Burke’s reputation as the “Dean” and “unofficial parliamentarian” of the City Council. (Dkt. 261
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`at 8 n.5). Burke argues Mixon’s anticipated testimony characterizing Burke as the “Dean” or
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`“parliamentarian of the City Council” would be improper testimony on Burke’s reputation or state
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`of mind. (Dkt. 238 at 8 (citing Fed. R. Evid. 405(a), 704(b)).
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`The Court finds Professor Mixon’s anticipated testimony that Burke has been referred to
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`as the “Dean” or “parliamentarian of the City Council,” is not improper. As stated in the hearing,
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`Professor Mixon would be basing her testimony on her experience and training as a political
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`scientist. See Garcia-Avila, 737 F.3d at 489. These terms are not Professor Mixon’s opinion, nor
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`are they based on Burke’s specific mental processes, but are two terms from her experience
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`following Chicago politics for the last 25 years, combined with observations that many political
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`scientists in her field have used that term to refer to Burke over the 50 years in which he served as
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`an Alderperson. The Court fails to see how these two phrases commenting on Burke’s long
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`knowledge of City Council procedure and operations are unfairly prejudicial. Even so, outside of
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`these terms, the Court directs the Government not to elicit testimony regarding Burke’s reputation
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`or Professor Mixon’s opinion of that reputation. Without that line of testimony, Professor Mixon’s
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`testimony will be helpful to the jury’s understanding of the operation of Chicago’s government
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`and City Council.
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`9
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`CONCLUSION
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`For the reasons above, Defendant’s motion to exclude Mixon’s testimony [238] is denied.
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`Date: November 2, 2023
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`____________________________________
`Virginia M. Kendall
`United States District Judge
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`10
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