Opinion
Criminal Action No: 00-060, Section: "R"(5).
July 7, 2000.
ORDER AND REASONS
Before the Court is the Government's Notice of Intent to Utilize Narcotics Expert Witness in Drug Trafficking. Because the Court finds that the testimony of the Government's proffered expert witness, Chris Ortiz, is reliable, relevant, and not unfairly prejudicial, the Court will permit Mr. Ortiz to testify at trial.
I. BACKGROUND
Defendant, Alex Potts, is charged with one count of conspiracy to possess with the intent to distribute more than five kilograms of cocaine hydrochloride in violation of 21 U.S.C. § 846 and one count of intentional possession with the intent to distribute the same quantity of drugs in violation of 21 U.S.C. § 841 (a)(1). The Government alleges that a Louisiana State Trooper stopped an 18 wheeler semi-truck driven by defendant on February 2, 2000 for the purpose of conducting a Motor Carrier Safety Inspection at the 1-12 truck scales in Baptiste, Louisiana. During the inspection, defendant allegedly stated that he and his passenger had just returned from Houston, Texas and were on their way to Slidell, Louisiana to pick up a load. Defendant then signed a written consent to search the truck. The state trooper allegedly discovered just under 150 kilograms of cocaine stored in four gym bags in the truck's cab.
The Government seeks to call Chris Ortiz, a DEA Intelligence Analyst, as an expert witness in the field of drug trafficking operations, including the packaging and pricing of cocaine hydrochloride in the Eastern District of Louisiana. The Government asserts that Mr. Ortiz would testify that Houston is a source city for drugs and that couriers are crucial to the success of drug trafficking operations. He would also testify concerning the monetary value and quantity of the cocaine seized in this case in order to help the jury to determine whether defendant possessed the drugs for personal use or distribution. Defendant opposes the motion on the grounds that Mr. Ortiz's testimony is irrelevant and unreliable and that his expertise does not satisfy the factors enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 2794 (1993). Defendant also objects to a one-page graph that Mr. Ortiz intends to rely on to support his testimony regarding the monetary value of the cocaine seized, arguing that the graph is more prejudicial than probative.
II. DISCUSSION
Rule 104 of the Federal Rules of Evidence provides that the district court shall determine preliminary questions regarding the qualifications of witnesses. See FED. R. EVID. 104(a); United States v. Nichols, 169 F.3d 1255, 1263 (10th Cir.), cert. denied, 120 S.Ct. 336 (1999) (" Daubert challenges, like other preliminary questions of admissibility, are governed by Fed.R.Evid. 104."). Rule 702 governs the admissibility of expert witness testimony. See Daubert, 509 U.S. at 587, 113 S.Ct. at 2794. The rule permits an expert witness "qualified . . . by knowledge, skill, experience, training, or education" to testify when specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. FED. R. EVID. 702. In Daubert, the Supreme Court held that Rule 702 requires the trial judge to act as a "gatekeeper" to ensure that "any and all [expert] testimony or evidence admitted is not only relevant, but reliable." 509 U.S. at 589, 113 S.Ct. at 2795. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999) (clarifying that Daubert gatekeeping function applies to all forms of expert testimony).
The district court has considerable discretion to admit expert testimony under Rule 702 and will be reviewed on appeal only for abuse of discretion. See Snap-Drape, Inc. v. Commissioner off Internal Revenue, 98 F.3d 194, 197 (5th Cir. 1997), cert. denied, 522 U.S. 821 (1997); United States v. Garcia, 86 F.3d 394, 400 (5th Cir. 1996), cert. denied, 519 U.S. 1083 (1997) ( quoting United States v. Townsend, 3 F.3d 262, 270 (5th Cir. 1994)). The Court's gatekeeping function does not replace the traditional adversary system and the role of the jury within that system. See Daubert, 509 U.S. at 596, 113 S.Ct. at 2798. As the Supreme Court noted in Daubert, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id.
A. Reliability
The reliability inquiry requires the Court to assess whether the reasoning or methodology underlying the expert's testimony is valid. See Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. The aim is to prevent expert testimony based merely on subjective belief or unsupported speculation. See id. at 590, 113 S.Ct. at 2795. Daubert identified a number of factors useful in analyzing the reliability of an expert's testimony, including testing, peer review and publication, evaluation of known rates of error, and general acceptance within the relevant scientific community. See id. at 592-94, 113 S.Ct. at 2796-97.
Defendant argues that the Court should find Mr. Ortiz's testimony unreliable because it does not satisfy the four factors set forth in Daubert. However, the Supreme Court recently emphasized that the test of reliability is "flexible," and that Daubert's list of specific factors does not necessarily, nor exclusively, apply to all experts in every case. See Kumho Tire, 526 U.S. 137, 119 S.Ct. at 1175. See also Daubert, 509 U.S. at 593, 113 S.Ct. at 2796 ("we do not presume to set out a definitive checklist or test"); Seatrax, Inc. v. Sonbeck Int'l, Inc., 200 F.3d 358, 372 (5th Cir. 2000) (reliability is fact-specific inquiry). In the vast majority of cases, the district court should first consider the Daubert factors before addressing whether other factors are relevant to the particular case. See Black v. Food Lion, Inc., 171 F.3d 308, 311-12 (5th Cir. 1999). However, "[t]he factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Kumho Tire, 526 U.S. 137, 119 S.Ct. at 1175 (quoting with approval Brief for United States as Amicus Curiae 19). The overarching goal "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." See id.; Black v. Food Lion, Inc., 171 F.3d 308, 311 (5th Cir. 1999).
The Fifth Circuit has upheld the qualification of narcotics agents as experts in the methods of drug dealers when the "officers were experienced in investigating narcotics trafficking and drug-related crimes" and "were familiar with certain conduct and methods of operation unique to the drug distribution business." United States v. Buchanan, 70 F.3d 818, 832 (5th Cir. 1996). Here, the Government has identified DEA Intelligence Analyst Chris Ortiz as its proposed expert witness in the field of drug trafficking operations. Mr. Ortiz's resume indicates that he has fifteen years of experience investigating the illegal distribution of narcotics. He has assisted with investigations into the production, transportation and distribution of narcotics and has worked undercover to assist state and local law enforcement authorities with multi-jurisdictional drug trafficking offenses. Based on the foregoing experience, the Court finds that Mr. Ortiz's experience qualifies him to testify that Houston is a drug source and that couriers are crucial to the success of drug trafficking operations. The Court finds the Daubert factors inapplicable to this kind of testimony, the reliability of which depends more upon the personal knowledge or experience of the expert, rather than the methodology or theory behind it. See Kumho Tire, 526 U.S. 137, 119 S.Ct. at 1175; United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000).
With regard to Mr. Ortiz's proffered testimony regarding the significance of the quantity and value of the drugs allegedly seized from defendant, the Court finds that testimony reliable as well. Mr. Ortiz's methodology for determining the monetary value of the cocaine seized from defendant is detailed in the graph he prepared for trial. The graph reflects that Mr. Ortiz first breaks down the amount of cocaine seized into kilogram, pound, ounce and gram weights. He then uses retail prices in effect at the time the drugs were seized to assign values to each weight, taking into account the purity level of the drugs. This calculation results in a differential cost assessment of the total amount of drugs seized, based upon the dosage size. Defendant does not object to the pricing system used by Mr. Ortiz, nor does he challenge the methodology. The Court finds that Mr. Ortiz's methodology is reasonable and reliable. The other Daubert factors are inapplicable to this case.
2. Relevance
The relevancy prong of the Daubert inquiry requires the Court to determine whether the expert's reasoning or methodology "fits" the facts of the case and whether it will thereby assist the trier of fact to understand the evidence, in other words, whether it is relevant. See Daubert, 509 U.S. at 591, 113 S.Ct. at 2795-96; FED. R. EVID. 702. The Federal Rules of Evidence define "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401.
The Fifth Circuit has found it "well-established that an experienced narcotics agent may testify about the significance of certain conduct or methods of operation unique to the drug distribution business, as such testimony often is helpful in assisting the trier of fact understand the evidence." United States v. Washington, 44 F.3d 1271, 1283 (5th Cir. 1995) (citations omitted); accord United States v. Griffith, 118 F.3d 318, 321 (5th Cir. 1997). Indeed, courts have consistently held that DEA agents and police officers may testify as experts regarding the purity, weight and prices of drugs used for personal consumption versus distribution because such testimony concerns specialized knowledge about drug trafficking, an area with which most jurors are unfamiliar. See, e.g., Garcia, 86 F.3d at 400 (5th Cir. 1996) ("average juror may not be aware that presence of 166.9 kilograms of cocaine is indicative of a large drug trafficking operation"); United States v. Valle, 72 F.3d 210 (1st Cir. 1995) (no abuse of discretion to admit narcotics detective's testimony as to approximate street value of drugs seized and opinion that quantity was consistent with distribution as opposed to personal use); United States v. Nobles, 69 F.3d 172, 183 (7th Cir. 1995) (DEA agent testified that cocaine carried by defendant, when processed for retail sale, would sell for $300,000 and provide over 24,000 individual doses, indicating that cocaine could only have been intended for consumption not personal use); United States v. Tapia-Ortiz, 23 F.3d 738, 741 (2nd Cir. 1994) ("Testimony about the weight, purity, dosages, and prices of cocaine clearly relates to knowledge beyond the ken of the average juror."); United States v. McDonald, 933 F.2d 1519, 1521-22 (10th Cir. 1991) (district court properly admitted expert testimony as to significance of quantity of cocaine and standard method of packaging); United States v. Safari, 849 F.2d 891, 895 (4th Cir. 1988) (affirming admission of expert testimony that amount of heroin seized would break down into thousands of individual doses when testimony helped jury determine whether defendant possessed heroin for personal consumption or distribution). Courts have also admitted expert testimony that certain cities are source areas for drugs, and that drug couriers play an important role in drug trafficking operations. See Nobles, 69 F.3d at 183 (agent testified as to role and knowledge of drug couriers and that defendant was traveling from Los Angeles, a source city for narcotics); United States v. Willis, 61 F.3d 526, 528 (7th Cir. 1995) (DEA agent testified he had never had a drug case where courier did not know what he was transporting). The Court thus finds that Mr. Ortiz's testimony regarding the methods and operation of drug distribution concerns an area of specialized knowledge outside of the understanding of the average juror. Mr. Ortiz's proffered testimony will help the jury to determine whether defendant knew that he possessed drugs; that he was participating in a drug conspiracy; and whether, assuming he intentionally possessed the cocaine, he intended to possess the seized cocaine for personal consumption or distribution. These are all elements of the charged offenses. Accordingly, his testimony is relevant and admissible at trial.
B. Prejudice
Defendant argues conclusorily that the graph prepared by Mr. Ortiz to detail the monetary value of the cocaine seized from defendant's truck should be rejected as more prejudicial than probative. He suggests that because there is no evidence here that defendant was involved in the retail distribution of narcotics or that he was a member of a large drug trafficking operation, the testimony should not be admitted. The Court disagrees. Federal Rule of Evidence 403 operates to exclude otherwise admissible evidence if the probative value is substantially outweighed by its prejudicial effects. As noted supra, Mr. Ortiz's testimony and the supporting graph are probative of, and will assist the trier of fact to understand, whether defendant intended to possess the cocaine with the intent to distribute it as charged in the superseding indictment or possessed it merely for his own personal use. This type of testimony has been admitted under similar circumstances in numerous other cases and is probative of an element required for a successful prosecution under 21 U.S.C. § 841 (a)(1). The testimony and supporting graph are probative and not unfairly prejudicial.
III. CONCLUSION
For the foregoing reasons, the Court will allow the Government's expert witness to testify at trial.