Opinion
No. 05-50801.
Argued and Submitted October 24, 2006 Pasadena, California.
July 16, 2007.
Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding, D.C. No. CR-04-00922-R.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Tyree Thompson appeals his conviction for possession with the intent to distribute marijuana and possession of a handgun in furtherance of a drug trafficking offense. He argues that the district court erred (1) in denying his motion to suppress evidence; (2) by excluding the testimony of a "cannabis" defense expert; and (3) by refusing to instruct the jury as to the lesser-included offense of possession of marijuana. We affirm in part and reverse in part.
First, the district court did not err in admitting evidence seized from Thompson's car. Investigatory stops are permissible when there exists a "reasonable and articulable suspicion that the person seized is engaged in criminal activity." Reid v. Georgia, 448 U.S. 438, 440 (1980) (citing Terry v. Ohio, 392 U.S. 1 (1968)). In this case, police officers observed Thompson at 10:00 p.m. in a high-crime area known for automobile thefts. Thompson was "partially out of the vehicle in a crouched position, leaning and reaching into the lower area of the steering column." An unidentified person standing beside the car on the passenger side fled as the officers approached. Thompson moved into the driver's seat and drove the car away at 15 to 20 miles above the speed limit. These facts, taken together, support a reasonable suspicion sufficient to justify a Terry stop.
Thompson argues that because he was ordered out of his car at gunpoint and handcuffed, the investigatory stop became an arrest. However, the use of guns and handcuffs does not automatically convert a Terry stop into an arrest. See, e.g., Alexander v. County of Los Angeles, 64 F.3d 1315, 1320 (9th Cir. 1995). Thompson was detained by one officer no longer than was reasonably necessary for the other officer to check inside the car for additional suspects and to check the steering column for evidence of tampering. Although the officer saw no evidence of "hot wiring," he did see a handgun on the floorboard and smelled marijuana. This additional evidence gave rise to probable cause to search the vehicle further. Therefore, the motion to suppress evidence was properly denied.
Thompson's second argument is that the district court erred in excluding his "cannabis" expert who planned to testify to the following: (1) the amount of marijuana police discovered is consistent with personal use; (2) three bags of marijuana are not inconsistent with personal use; and (3) the presence of scales is not inconsistent with personal use because purchasers of marijuana often have scales to make sure the seller is not short-changing them. We review a district court's exclusion of expert testimony for abuse of discretion, Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999), and conclude that in this case, the district court abused its discretion.
To determine whether expert testimony is admissible, a trial judge must consider "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993). This "flexible" inquiry ensures that the expert's testimony rests on a reliable foundation and is relevant to the issues at hand. Id. at 594-95.
Here, the district court stated that it based its decision on the Daubert factors, reasoning that the defense expert's testimony would not assist the jury. The court concluded that while the expert certainly has extensive knowledge concerning cannabis and its growth, his expertise was not pertinent to the facts of this case which involved "the question of scales and marijuana and guns." The district court emphasized that defendant's expert did not have law enforcement experience and so could not make a reliable comparison between drug trafficking activities and personal drug use. Furthermore, the court found that the expert would not be reliable because he is biased.
The court improperly excluded defendant's expert. The testimony would have been relevant and potentially helpful to the jury because it would have provided information regarding the practices of users of marijuana as distinct from the practices of distributors of marijuana, described by the government's expert. Thompson's defense rested on the idea that he was simply a user of marijuana. Therefore, the practices of users of marijuana, and the consistency of Thompson's actions to those practices, were relevant to the jury's task. The expert's lack of law enforcement experience does not disqualify him as an expert, as he was not going to testify to any law enforcement issue. Federal Rule of Evidence 702 merely requires some form of specialized knowledge, which the expert had in the area of personal use and consumption of marijuana. See Kumho Tire, 526 U.S. at 147. Moreover, as a general rule, bias is not a permissible reason for the exclusion of expert testimony. See, e.g., United States v. Abonce-Barrera, 257 F.3d 959, 965 (9th Cir. 2001).
Thompson's final argument is that the district court erred by refusing to instruct the jury as to the lesser-included offense of possession of marijuana. We agree. A criminal defendant is entitled to a lesser-included offense instruction if he can show that "the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater." Keeble v. United States, 412 U.S. 205, 208 (1973).
The amount of marijuana at issue was not so large as to eliminate the possibility of personal use, cf. United States v. Silla, 555 F.2d 703 (9th Cir. 1977) (finding no error in denying lesser-included offense instruction where the amount of marijuana found was 3,000 pounds), the government offered no direct evidence that Thompson engaged in the sale of marijuana, and Thompson's wife testified that he was an habitual user of marijuana.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this decision.
I join the majority's reversal of Thompson's conviction on the basis that the district court erred by refusing to instruct the jury as to the lesser-included offense of possession of marijuana.
On the record before us, however, I am unable to join the majority's conclusion that the district court also erred in excluding testimony from Thompson's cannabis expert. The district court erred if, as the majority concludes, the district court excluded the cannabis expert's testimony solely on the basis that he lacked law enforcement experience or solely on the basis that he was biased. Properly presented, otherwise admissible testimony as to the practices of marijuana users would have been relevant and potentially helpful because Thompson's defense rested on the idea that he was simply a user of marijuana. See Kumho Tire, 526 U.S. at 147; Abonce-Barrera, 257 F.3d at 965. I do not agree, however, that the record before us permits a conclusion as to the basis or bases of the district court's exclusion of Thompson's cannabis expert.
The district court emphasized the cannabis expert's lack of law enforcement experience and found him unreliable due to bias. The district court also found the cannabis expert had experience with the growth, processing, and use of marijuana. Ultimately, however, the district court stated that it had considered "all the Daubert factors," found the cannabis expert was not qualified, and excluded the cannabis expert's testimony. I find this record does not permit a conclusion as to whether the district court's exclusion of the cannabis expert's testimony was impermissibly based on the cannabis expert's lack of law enforcement experience, impermissibly based on the cannabis expert's bias, or properly based on a finding that the cannabis expert lacked the necessary experience.
To determine whether expert testimony is admissible, a trial judge must determine whether the expert possesses "sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case." Kumho Tire, 526 U.S. at 156 (quotation marks omitted). A witness may qualify as an expert on the basis of professional studies or personal experience. Id. at 152. That study and personal experience, however, must relate to the witness' testimony. Id. We review a district court's exclusion of expert testimony for abuse of discretion. Id.
Here, the record establishes that Thompson's cannabis expert possesses personal experience with the commercial "breeding, cultivation, and processing of cannabis" in Europe. The record also establishes that Thompson's cannabis expert has conducted numerous interviews of "medicinal users" of cannabis. The record, however, contains a dearth of information as to the cannabis expert's experience with the practices of marijuana users outside the medicinal context. That is, has he observed street users, how much they carry, and how they carry the drug.
It remains the task of the trial court to determine whether the proffered expert's studies and experience are sufficient to make his testimony reliable. In its gate-keeping function the trial court may find the witness' studies insufficiently rigorous or quite satisfactory; his experience lacks personal observation and the knowledge gained thereby or that his experience is adequate. These are elements of judgment entrusted to the sound discretion of the trial judge.
In any event, it is not necessary to speculate as to the basis of the district court's exclusion of Thompson's cannabis expert. Rather, I would reverse for failure to instruct as to the lesser-included offense of possession of marijuana and encourage the district court, should it decide to exclude expert testimony in the future, to state the basis for its ruling to exclude expert testimony with greater specificity.