Opinion
Case No. 12-cr-00574-PJH-3,4
03-06-2018
UNITED STATES OF AMERICA, Plaintiff, v. JOHN DEVALIER DANIELS and JERMAINE EARNEST, Defendant.
ORDER GRANTING DEFENDANTS' MOTION FOR DAUBERT HEARING ON GANG EXPERT TESTIMONY Re: Doc. No. 305
On February 28, 2018, this matter came on for hearing on the motion of defendants John Devalier Daniels and Jermaine Earnest for an evidentiary hearing to assess the reliability of Officer Barocio's expert opinions pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000). Doc. no. 305. Having considered the relevant legal authority, the parties' papers, the record and the argument of counsel, the court GRANTS defendants' motion for a pretrial Daubert hearing in the interest of judicial economy and for the purpose of avoiding unnecessary delay at trial.
Defendants contend that the government's supplemental disclosure supporting the basis of Officer Barocio's opinions as a gang expert, doc. no. 291, raises several concerns about the reliability of his opinions: his use of statements from criminal informants and cooperators raises a risk that his opinions are based on untrustworthy and unreliable sources; his reliance on testimonial in-custody interviews with suspected gang members poses the risk of a Confrontation Clause violation under Crawford v. Washington, 541 U.S. 36 (2004); and his reliance on rap videos poses a risk that his opinions about gang activity rest on simplistic and faulty interpretations of rap music. The court does not find that any of these concerns warrant a pretrial hearing to determine the relevance and reliability of the proffered expert testimony, which has been limited by the court's earlier ruling. See United States v. Alatorre, 222 F.3d 1098, 1102, 1105 (9th Cir. 2000).
In ruling on defendants' earlier motion to exclude the gang expert testimony, the court significantly narrowed the scope of the gang expert opinions to general characteristics, background, structure and organization of certain Oakland gangs, territories, and commonly used code words. See doc. no. 290 (1/17/2018 minute order). Given Officer Barocio's experience in law enforcement and gang investigations for over 10 years, as summarized in the supplemental disclosure, the general nature of his proffered opinions does not pose a substantial likelihood that potentially prejudicial testimony would be presented, and subsequently found inadmissible, when the government attempts to qualify him on the stand. The proffered gang expert testimony, as limited by the court, does not include opinions about specific transactions, specific individuals, or specific events that would be susceptible to the concerns about the expert's unfamiliarity with unique code words that were used for specific transactions, as in United States v. Hermanek, 289 F.3d 1076 (9th Cir. 2002). Nor do these general opinions present a substantial risk of a missing nexus between any particular opinion and Officer Barocio's knowledge and experience, such that Officer Barocio's expert testimony would merely repeat or transmit hearsay rather than provide opinions that are "distilled and synthesized" from his experience investigating gangs. United States v. Vera, 770 F.3d 1232, 1237-39 (9th Cir. 2014). Cf. Hermanek, 289 F.3d at 1095 ("Without a link between [the expert's] knowledge and the particular matter he interpreted, 'there is simply too great an analytical gap between the data and the opinion proffered.'") (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). Officer Barocio's proffered opinions, on their face, are not likely to repeat hearsay or rely on a single unreliable source. In particular, he offers an opinion that gang members express themselves through rap music and videos. In light of the record demonstrating that Officer Barocio has reviewed dozens of music videos featuring gang members, this opinion that rap music and videos are forms of expression does not purport to rely solely on the content of those lyrics and videos. Doc. no. 276, Ex. 2 (under seal).
Although defendants have not identified substantial concerns about the reliability of the gang expert opinions that would warrant a separate Daubert hearing, the court determines that the public interest in efficient use of judicial resources would be served by conducting a pretrial hearing to determine whether Officer Barocio is qualified to testify as an expert pursuant to Daubert and Federal Rules of Evidence 104(a) and 702. As defendants point out, Officer Barocio has not previously been qualified as a gang expert at trial and defendants expect to question him at length about the bases of his opinions; by holding the Daubert hearing before trial, the court will more efficiently determine his qualifications outside the jury's presence, will optimize use of the jurors' time in court, and will avoid unnecessary delay.
Accordingly, the court GRANTS defendants' motion for a Daubert hearing solely on the ground that a pretrial hearing will serve the interests of judicial economy and avoid unnecessary delay, subject to the condition that if the court conducts a pretrial hearing and determines that Officer Barocio is qualified as an expert, the court will not allow further voir dire challenging his expert qualification at trial. If defendants elect to proceed with a pretrial Daubert hearing subject to this condition, the parties must meet and confer and file a stipulation to set the matter on the court's calendar on either March 23, 2018, or March 29, 2018, at 9:00 a.m., for no longer than 4 hours.
IT IS SO ORDERED. Dated: March 6, 2018
/s/_________
PHYLLIS J. HAMILTON
United States District Judge