Opinion
CR-18-01695-TUC-JAS (EJM)
12-13-2022
United States of America, Plaintiff, v. Michael Anthony Williams - 005, Samuel Lee Berrelle Rakestraw, III - 004, Defendants.
REPORT AND RECOMMENDATION
Eric J. Markovich United States Magistrate Judge
Pending before the Court are motions to preclude testimony from the government's proposed drug trafficking expert filed by counsel for defendants Michael Anthony Williams and Samuel Lee Berrelle Rakestraw. See Docs. 1609 and 1570. For the reasons discussed below, it is recommended that the District Court grant the motion, in part, and deny the motion, in part.
FACTUAL BACKGROUND
A. The Charges.
On April 6, 2022, a federal grand jury sitting in Tucson, Arizona returned a Third Superseding Indictment against Michael Williams, Samuel Rakestraw, and seventeen other individuals. Doc. 1425. The charged offenses pertain to an alleged criminal enterprise operated by a gang known as the Western Hills Bloods (“WHB”). Williams and Rakestraw are charged with the following four felony offenses. Count One charges Williams and Rakestraw (and other co-defendants) with participating in a RICO conspiracy, in violation of 18 U.S.C. §§ 1962(d) and 1963(a), the objects of which are: (a) acts involving murder (18 U.S.C. §§ 1959(b)(1) and 1961(1)); (b) offenses involving drug trafficking (21 U.S.C. §§ 846 and 841); and (c) acts involving the obstruction of justice (18 U.S.C. § 1512). Count Two charges Williams and Rakestraw (and other co-defendants) with Violent Crime in Aid of Racketeering - Conspiracy to Commit Murder, in violation of 18 U.S.C. § 1959(a)(5). Count Three charges Williams and Rakestraw (and other co-defendants) with Violent Crime in Aid of Racketeering - Murder, in violation of 18 U.S.C. §§ 1959(a)(1) and 2. Count Four charges Williams and Rakestraw (and other co-defendants) with Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death, in violation of 18 U.S.C. §§ 924(j), 924(c)(1)(A)(i), (ii), (iii), and 2.
Michael Williams is also charged with the following additional offenses which are not alleged against Rakestraw: (1) Counts 12, 13, and 16: Possession of a Firearm by a Prohibited Person, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); (2) Counts 14 and 17: Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2; (3) Count 24: Conspiracy to Possess with the Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 846 and 841; (4) Count 25: Possession with the Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841; (5) Count 33: Conspiracy to Possess with the Intent to Distribute Marijuana, in violation of 21 U.S.C. §§ 846 and 841; (6) Counts 34 and 37: Possession with the Intent to Distribute Marijuana, in violation of 21 U.S.C. § 841; and (7) Count 38: Possession with the Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841.
B. The Motions to Preclude.
The defense filed motions to preclude testimony from the government's proposed drug expert. Docs. 1609 and 1570. The defense first objects to the qualifications of the proposed expert proffered by government counsel and requests a Daubert hearing to flesh out the witness's purported qualifications. The defense also argues that the proffered expert opinions: (1) will not assist the trier of fact; (2) are unreliable; (3) invade the province of the jury; (4) transmit inadmissible evidence to the jury; (5) are unfairly prejudicial; and (6) violate the defendant's confrontation rights under the Sixth Amendment.
The government argues that the curriculum vitae of the proposed expert witness demonstrates that he is qualified to provide opinions, and therefore, a Daubert hearing is not necessary. The government also argues that proffered expert testimony will help the jury understand how the drug sales and the defendants' role in the sales fit into the charged conspiracies. And any purported prejudice that results does not substantially outweigh the probative value of this testimony.
In response to the District Court's Order, the government filed a Notice which sets forth the following opinions that its drug expert will testify to at trial. Doc. 2084 at 3. First, the expert will testify about indicia that indicates that narcotics are for sale. Id. For example, packaging for narcotics for sale will typically be in individual packages, wrapped in little pieces of paper, or wrapped in balloons or pieces of plastic. Id. Second, the expert will testify about the process of “cooking” powder cocaine into crack cocaine using water and a cutting agent such as baking soda. Id. The cooking process results in a purer form of the drug and increases profits for drug dealers because the quantity of cocaine is increased from the use of the cutting agent. Id. Third, the expert will testify about the use of crack houses to facilitate drug sales and the items found in the houses. Specifically, the houses have little to no furniture and no one actually lives in the house. And items that facilitate drug dealing - packaging materials, scales, and kitchenware used in the cooking process - are typically found in the house. Fourth, the expert will testify that people dealing drugs in the houses usually have weapons to protect the drugs and drug proceeds. Fifth, the expert will testify about the use of surveillance equipment inside and outside the houses to both keep tabs on people in the house and to alert the occupants of who is approaching the house. Sixth, the expert will testify about the day-to-day functioning of drug houses - i.e., some are used for storing the drugs and others are used to facilitate drug sales. Seventh, the expert will testify about crack houses that are run by street gangs. Eighth, the expert will testify about the prices of various drugs during the time frame of the charged offenses. Ninth, the expert will testify that drug trafficking affects interstate commerce in that cocaine is not grown in Arizona and is generally imported into the United States from South America.
On September 27, 2022, the Court held an evidentiary hearing on the instant motion. The government called Tucson Police Department ("TPD") Detective Oscar Cuellar, its proposed expert witness, to testify. His testimony is set forth below.
Direct Examination by the Government:
Oscar Cuellar has been a member of TPD for over eighteen years. 9/27/22 Tr. at 9. He is currently a detective assigned to the Counter Narcotics Alliance. Id. When Detective Cuellar started with TPD as an officer, he attended a basic academy in June 2004. Id. at 10. The training was 585 hours and included narcotics-related training. Id. The narcotics training included classes on the basic recognition of narcotics and the sale of narcotics. Id. at 10-11.
After he completed training, he was assigned to the Operations Division South as a patrol officer. Id. at 11. He responded to at least 100 narcotics-related callouts. Id. at 12. Several dozen of those callouts related to the sale of narcotics. Id.
He later moved to the Community Response Team, which is a plainclothes unit whose primary objective was dealing with community problems with narcotics. Id. He would do “on-site activities” which consisted of looking for spots where drugs were sold and doing undercover drug buys of small amounts of drugs (e.g., crack cocaine, cocaine, marijuana). Id. at 13. When doing undercover drug buys, it was important to know the “narcotics lingo” and drug prices so it looked like the undercover officer was part of the drug world. Id. at 14. Detective Cuellar estimates that he did two to three dozen undercover drug buys, although that was not the Team's primary purpose. Id.
Detective Cuellar had additional narcotics training while assigned to the Community Response Team. Id. at 14. He went through a 60-hour counter narcotics undercover school where he was taught “in a broader spectrum on narcotic prices, on narcotic recognition,” the price of street drugs (e.g., crack cocaine, powder cocaine), the type of verbiage used in the drug world, and how undercover officers should conduct themselves. Id. at 15. He also attended narcotics trainings conducted by the Arizona Narcotics Officers Association and HIDTA. Id. at 20-21. During his time on the Community Response Team, Detective Cuellar was involved in conducting specialized police officer response training to educate TPD patrol officers about “what to look for in terms of street deals or any narcotic activity out on the street[.]” Id. at 15. Detective Cuellar has served as an instructor for the undercover officer school on seven to eight occasions. Id. at 23.
In 2008, Detective Cuellar went to the Counter Narcotics Alliance (“CNA”), which is a multi-agency task force throughout Pima County. Id. at 16. He “came in as an undercover officer.” Id. at 17. His undercover work was on a “larger scale” than the undercover work he did while on the Community Response Team. Id. Detective Cuellar described his position as a “street level narcotic officer.” Id. He dealt with smaller quantities of narcotics and tried to build larger cases. Id. He was in this position for five years. Id. He did several hundred undercover buys of drugs, including crack cocaine, powder cocaine, and marijuana. Id. at 17-18. While at CNA, Detective Cuellar was also part of a task force with the Department of Homeland Security where he did “midlevel buys,” meaning “multi-kilo deals with transnational organizations.” Id. at 18. He estimates that he worked on a couple dozen drug cases while on that task force. Id. at 19.
During his time at CNA and while on the task force, Detective Cuellar was part of hundreds of search warrants for his investigations. Id. Also, he would assist other officers three to four times a week in executing search warrants on their investigations. Id. The search warrants involved crack cocaine, powder cocaine, and marijuana. Id. at 19-20. He also participated in “surveillance activities.” Id. at 20. Specifically, he would conduct surveillance on individuals and areas where he believed narcotics were being sold, which allowed him to keep current with the patterns and trends of narcotics trafficking in the Tucson area. Id.
Detective Cuellar explained that it is important for him to stay current on “general narcotics slang and lingo” so he can understand what interviewees are saying and what other officers are putting in their reports of interviews. Id. at 23-24. It is also important for him to stay current with the prices of particular drugs, like crack and cocaine, so he can “determine patterns on how much drugs are being moved through a house or through just individuals that are selling,” which can assist in assessing the size of the organization. Id. at 24-25.
He was promoted to the rank of detective in 2013. Id. at 25. “[D]etective training consisted of 12 weeks” where trainees “go through different detective squads . . . to learn different ways to investigate different types of crime.” Id. After a brief stint in the domestic violence squad, Detective Cuellar chose to return to narcotics investigations because he was familiar with this work, and it had become “a passion.” Id. at 26. He returned to CNA in 2014 and was in that position until 2016. Id.
As a detective in CNA, he did midlevel, long-term investigations that involved larger quantities of drugs. Id. at 26-27. However, the midlevel investigations “still include a street level component” because drug organizations are compartmentalized. Id. at 27. Detective Cuellar estimates that he is still involved in one or two search warrants a week. Id. at 27-28. One of the benefits of being part of the CNA is that law enforcement agencies share intelligence information with one another which allows law enforcement to see drug “trends” in Tucson as well as the United States-Mexico border. Id. at 28-29.
In 2016, Detective Cuellar joined the narcotic and violent crime squad and still works in that squad. Id. at 30. His primary focus is on violent crime that has a narcotics nexus. Id. He still regularly does narcotics-related search warrants. Id.
Testimony turned to determining whether narcotics are for sale or personal use. Detective Cuellar explained that “any type of paraphernalia, packaging or scales is going to show that the narcotics that are at a residence or an apartment or wherever that location may be is being broken up” for sale, “as opposed to just everything being there in bulk.” Id. at 31. He further explained that packaging and selling drugs in smaller quantities is a retail sale where “you're going to get a better bang for your buck[.]” Id. By contrast, when you have a large quantity of narcotics “you're selling them at wholesale prices[.]'” Id.
Crack cocaine is powdered cocaine that is “cooked,” which means removing the hydrochloride so the cocaine becomes a solid mass that can be smoked. Id. at 31-32. It is “a very basic process” where powdered cocaine is mixed with baking soda and water, and a stove or a microwave is used to cook out the hydrochloride. Id. at 32. Crack cocaine is usually made in the kitchen of a residence because a heat source is needed. Id. at 34. The containers or dishes used in the cooking process usually contain cocaine residue. Id. Once crack has been cooked it is “a gooey substance” and needs to dry out. Id. at 35. The dry form that results is called a “cookie.” Id. A “rock” is a piece that is cut from the cookie. Id.
There are monetary benefits to producing crack cocaine. Id. at 32. One is that you get a little bit more product because of the baking soda which acts as a binder. Id. The bigger benefit is that although crack cocaine produces “a high much quicker” than powder cocaine, the high does not last as long so you get repeat customers. Id. at 33. As such, it is easier to make money quicker with crack cocaine than powder cocaine. Id.
Crack cocaine does not necessarily have to be packaged before it is sold. Id. A “rock” of crack cocaine can be sold hand to hand because “it's solid and it's not water soluble” so it will not “fall apart in your hands.” Id.
Detective Cuellar explained that the term “crack house” means a residence “where crack is either being processed or sold.” Id. at 35. He has been in several dozen crack houses either as an undercover officer buying crack or as a result of executing a search warrant. Id. at 36. He estimates that he has been involved with over a hundred search warrants for crack houses. Id. He has seen the “aftermath” of the cooking process in crack houses, meaning the cookies and dishes with residue. Id. at 36-37.
Detective Cuellar explained that a crack house for a large drug organization is generally going to be a rental that is rented by someone outside of the organization. Id. at 37. For “a smaller sales facility,” it could be the actual resident's or family member's house,” but a lot of them are going to be rentals. Id. The purpose of using a rental is to conceal identities and avoid losing the house through forfeiture. Id.
Testimony turned to Detective Cuellar's experience with houses used to facilitate drug sales by street gangs. Id. at 38. He explained that “we've had a few different cases where we had individuals that we deemed to be . . . in a street gang, generally when we look back at it.” Id. That information is shared with other law enforcement agencies, including a gang squad at CNA, to help identify gang members and “anybody within the narcotic field” so law enforcement can try to tie people together and establish a hierarchy in an organization. Id. at 38-39.
When a residence is used to sell drugs and it is being run by a street gang, there generally is a hierarchy. Id. at 39. Detective Cuellar explained that “[a]ny time we deal with any type of organization, whether it be a street gang, a transnational organization, anything where there's some sort of hierarchy, . . . one of the consistent things that we see is things become compartmentalized[.]” Id. at 39-40. For example, some individuals will work the house itself and other individuals that are going to have different responsibilities. Id. at 40. Organizations use this compartmentalization to shield the identity of other members of an organization. Id. For instance, if people are arrested selling drugs in a house, those people do not know “a lot of the other players.” Id. When asked if street gangs are different than an international organization when it comes to compartmentalization, Detective Cuellar testified that "there's a lot of similarities," but "there's nothing written on exactly how a stash house is going to be operated." Id. He added that “when you get into a . . . larger organization, there's a lot more of a thought process that's put into it on how it's being run.” Id. When a street gang is running a house used to sell drugs, Detective Cuellar would expect the people in the house selling the drugs to be lower ranking members of the gang. Id. at 40-41. He explained that these people are much easier to replace if the house is raided by the police and arrests are made, which ties into compartmentalization. Id. at 41.
Detective Cuellar has heard the term “soldier” used in connection with street gangs during his time at CNA when information was shared with the gang unit. Id. It is a common term that refers to one of the lower ranking individuals in a street gang, or “any type of organization that's got any type of hierarchy.” Id. The people doing sales of drugs at a crack house would be characterized as soldiers. Id. at 41-42.
It is a common tactic to have surveillance equipment at a crack house. Id. at 42. The purpose is twofold: (1) to learn if police are present so narcotics and guns can be hidden and/or so the occupants can try to escape; and (2) to prevent being robbed. Id. He has found drugs hidden throughout a house when executing search warrants. Id. at 44. Detective Cuellar estimates that he has seen surveillance equipment in 80 percent or more of houses that he encountered while working undercover and executing search warrants. Id. at 42.
It is also common to find firearms in a crack house. Id. at 43. The firearms are primarily used for protection from people who may want to rob the house; but sometimes they are “even used against the police.” Id. at 43. Detective Cuellar learned this information as a result of his work as an undercover officer, the execution of search warrants, and interviews of defendants and witnesses. Id.
Testimony turned to the price of drugs between 2012 and 2018. Detective Cuellar explained that the price of powder cocaine and crack cocaine did not fluctuate a large amount during this time period. Id. at 45. However, the price of “marijuana is all over the place” because there are so many types and different strands of marijuana. Id. A rock of crack cocaine (as well as powder cocaine) between 0.1 and 0.2 grams, which could provide several doses, is about $20.00. Id. at 45-46. Detective Cuellar explained that once you start “getting into quarter-ounces or ounces you're going to see a significant drop in price” because the sale goes from retail to wholesale. Id. at 46. A gram of cocaine would cost between $50.00 and $75.00, depending on the purity of the cocaine. Id. For example, cocaine can be “cut,” which means additives are mixed in with the cocaine. Id. The result is that “you're going to get a lot more of it” which translates into more money. Id. at 46-47.
Detective Cuellar has heard a “ 16th of cocaine” referred to as a “teener.” Id. at 47. An “eight ball” of cocaine would have cost between $75.00 to $150.00. Id. An ounce of cocaine would have cost between $800.00 to $1,200.00. Id. When the amount of cocaine exceeds an ounce, you start seeing wholesale prices. Id. Cocaine is also referred to as “white lady.” Id. at 48. If someone was asking for “go fast,” they would be referring to methamphetamine. Id. If someone was asking for “black,” they are referring to heroin. Id. The term “trees” refers to marijuana. Id.
Finally, Detective Cuellar testified about the “basic supply chain of cocaine.” Id. at 48. He would never expect cocaine to be grown and produced in Arizona because a specific climate, such as that in South America, is needed to grow the coca leaves. Id. As a result, Detective Cuellar can confidently say that “any cocaine powder is coming from outside Arizona.” Id.
Cross-Examination by Mr. Payson:
Detective Cuellar estimates that he has been involved in six to ten narcotic-related investigations that involved street gangs. Id. at 49. He agreed with counsel that his testimony on direct was that a hierarchy of a street gang is essentially the same as with a transnational organization. Id. at 49-50.
Detective Cuellar has never “cooked up crack” but he has seen it done at training seminars. Id. at 59. The cooking time depends on the heat source, but it probably takes about ten minutes. Id.
Detective Cuellar again testified that the majority of the time crack houses have surveillance cameras. Id. at 60. However, he is not saying that every house with a camera is a crack house. Id. There are other factors to consider. Id.
Detective Cuellar estimates that he has testified in court about thirty times. Id. at 50. It has been several years since he testified; most of the cases that he has been involved with recently have not gone to trial. Id. at 50-51. He has only testified in Pima County Superior Court and has always qualified as a drug expert. Id. at 51. He testified in a pretrial Daubert hearing about seven or eight years ago. Id. at 52. That was the case that he most recently testified as an expert. Id. He cannot recall the name of the case or any other cases where he testified as an expert; but he agreed to “look back” and provide the prosecutors with the names of those cases. Id. at 52-53. He did not familiarize himself with the defendants in those cases. Id. at 53. He agreed with counsel that he has the same role in this case as well. Id.
In terms of his preparation for this hearing, Detective Cuellar did a pretrial interview with the prosecutor. Id. He has not looked at any documents related to this case. Id. He agreed that the word “gangs” is not mentioned on his resume. Id. at 54. He has never testified as a gang expert or attempted to qualify as a gang expert, and has “never testified about gangs in court.” Id.
Detective Cuellar recalls arresting Megan Borges and Marcell Gray, who are defendants in the instant case, in July of 2015. Id. at 55. He has not reviewed reports related to those arrests in the past year or two. Id. at 56. He remembers that “Megan Borges was contacted by patrol” and that he “went to serve a search warrant at the residence.” Id. The opinions that he is asked to provide at trial will not be based on information related to the investigation of Borges and Gray. Id. at 55-56.
Detective Cuellar agreed with counsel that in August 2022 he “spoke to a potential cooperator in this case at the Pima County Jail.” Id. at 56. He is not going to be using information from that interview to inform his opinions on this case and can “completely separate” the interview and his trial testimony. Id. He has had no other involvement in the case at hand. Id.
Testimony turned to the government's pleading (Doc. 2084) which set forth the opinions that Detective Cuellar will provide at trial. Id. at 57. Detective Cuellar conferred with the prosecutors to assist them in drafting the pleading. Id. Detective Cuellar agreed with counsel that he will provide his opinion that “individual packages are going to suggest drugs for sale.” Id. at 57-58. However, he added that the number of packaged drugs is a factor to consider. Id. at 58. He would not expect “personal use” amounts of drugs to be packaged. Id.
Detective Cuellar will testify that many times individuals from outside of an organization are used to sell drugs from houses to keep the organization compartmentalized so the identities of major members are shielded from lower ranking members. Id. at 6061. Also, the “[l]ower ranking members that will package and sell narcotics are easy to replace and their knowledge of inner workings of the organizations are minimal.” Id. at 61. Detective Cuellar cannot recall if he ever entered a “Blood gang crack house as an undercover agent[.]” Id.
Much of Detective Cuellar's knowledge about gang drug houses came from his colleagues in the TPD gang unit. Id. at 61-62. Those officers would help him and his colleagues in the drug unit identify gang members or other individuals that were associated with houses where undercover buys were done. Id. at 62, 64.
Cross-Examination by Mr. Flores:
Detective Cuellar agreed with counsel that it is “pretty common” for residences to have outside cameras. Id. at 66. In fact, Detective Cuellar has a camera outside his home. Id. He agreed that a camera is used “for the basic purpose of finding out who's pulling up into your house[.]” Id. at 67. As a result, he conceded that he does not need to testify as an expert on that point because “a jury will understand that cameras are used to find out who's approaching your house[.]” Id.
Detective Cuellar agreed that it is a common sense conclusion that a person has a firearm in their home for protection. Id. at 67-68. He also agreed that his role as an expert is not to “educate the jury about common sense things,” but rather explain “complicated things that [are not] necessarily within the common knowledge of a juror[.]” Id. at 68. As a result, he conceded that the jury does not need an expert to tell them that a weapon in a home is “probably there to protect drugs and money[.]” Id. at 69.
Detective Cuellar agreed with counsel that he referred to a street gang as an “organization” on direct examination. Id. He also agreed that “you can also interchange the word ‘organization' for ‘enterprise.'” Id. at 70. As a result, when he “talk[s] of street gangs and organization, [he's] talking of an enterprise[.]” Id. And there is a hierarchy in an organization. Id. Detective Cuellar agreed with counsel that he is “giving an opinion about the structure of this enterprise[.]” Id. at 72.
Detective Cuellar has no training or education regarding street gangs. Id. at 70. His experience with street gangs comes from “being housed next-door to the gang unit” between 2008 and 2016. Id. at 70-71. One of his colleagues in the gang unit was Detective Frieberg. Id. at 71. He does not recall any conversations about a specific gang; they would talk when they were identifying individuals. Id. at 72. Detective Frieberg, the lead detective in this case, was one of the people providing this information. Id. It is possible that he “got some of the information from Detective Frieberg that applied to this investigation.” Id. But he does not “know all the particulars of this investigation, and there were other detectives in the gang unit as well.” Id. at 72-73.
Counsel asked Detective Cuellar to point “to one specific conversation [he] had with one specific detective regarding one specific case” that is the basis for his opinion. Id. at 73. Detective Cuellar could not point to one particular conversation because “this was something that we did on an ongoing basis.” Id. Detective Cuellar agreed with counsel that the foundation for his opinions on street gangs does not come from his training or education, but rather from the six to ten cases that he discussed with the gang unit. Id. But, again, he cannot provide the source of the information that he obtained from the gang unit. Id. at 74. As a result, Detective Cuellar conceded that there is no way to assess the reliability of that information, and he cannot vouch for the reliability of that information. Id. However, Detective Cuellar added that he would deem the information reliable if arrests were made as a result of information from the gang unit and the arrests resulted in convictions. Id. at 74-75. But he cannot provide information about a specific case out of the “hundreds and hundreds” of cases that he's handled. Id. at 75.
Counsel turned to the ten cases that Detective Cuellar has worked on that involved gangs. Id. Detective Cuellar estimates that about half of those cases “involved a crack house that actually had some kind of hierarchy associated to it[.]” Id. Counsel asked Detective Cuellar to provide specific names of cases that involved a crack house associated to a gang and a hierarchy. Id. at 76. Detective Cuellar testified that he could not “at the moment,” but he could look back at some of his old cases and provide names at a later date. Id. at 77. Counsel asked Detective Cuellar if he can provide information “that would somehow assist us in making the determination that the basis for your opinion . . . is actually a reliable one?” Id. Detective Cuellar responded as follows: “At the moment, I cannot. And this isn't just cases that I've investigated, [these are] cases I've been involved with where we had other primary investigators.” Id. at 77-78.
Detective Cuellar made clear that his opinions are not related to anything in this case because he does not know the particulars of the case. Id. at 78. Thus, when he testified that crack houses are often rented by individuals outside of the organization, he was talking about organizations in general, and not the Western Hills Bloods or even street gangs. Id.
Detective Cuellar learned what the word “soldier” means during trainings, including “very, very basic” gang training. Id. at 80. He has not been asked “to form an opinion whether the word ‘soldier' in any way applies to the Western Hills Bloods.” Id. at 80-81. In fact, he has no “information regarding the word ‘soldier' and Western Hills Bloods[.]” Id. at 81.
Counsel turned to Detective Cuellar's opinion that “the structure of an organization is important and keeping identities of the major members from those lower ranking members is essential.” Id. Detective Cuellar agreed with counsel that this opinion “really does not apply to a street gang[.]” Id. at 82. Counsel asked whether Detective Cuellar would “agree that in the context of this case, this opinion, and many of your opinions, really just [don't] apply and [will not] assist the jury in any way?” Id. Detective Cuellar responded as follows: “I would say a good part of them would be when it comes to the actual working of a street gang.” Id. He agreed with counsel that his expertise is in drug sales, not street gangs. Id. While he has basic knowledge about street gangs, his primary focus is not street gangs, and he is not an expert in how gangs operate or are structured. Id. at 83. Detective Cuellar added that:
The only thing I could testify to is the way narcotics are being sold, how they're being sold, and sometimes, again, through interviews and I think over
14 years of interviewing individuals, I think that I do have more knowledge than the average person when it comes to sales, regardless of it being somebody in a street gang or just, again, an organization that's selling drugs.Id.
Redirect Examination:
Detective Cuellar clarified that when he testified that people outside of an organization often rent houses used to sell drugs, he was referring to organizations generally and regardless of whether they are gang members. Id. at 85-86.
Detective Cuellar agreed with counsel that people who are not involved in criminal activity carry guns for reasons other than protecting drugs and money. Id. at 87-88. As an undercover officer, Detective Cuellar has been around a lot of people that want to protect their drugs and money. Id. at 88. He estimates that people dealing in drugs use firearms to protect drugs and money in 75 percent of the cases that he has been involved with. Id.
People have cameras outside their homes for reasons other than protecting drugs or hiding things from the police. Id. Cameras have become more popular since 2018. Id. at 88-89. For instance, ring cameras which are very common now were not common back in 2012. Id. at 89. Home surveillance equipment has “100 percent grown since” the 2012 to 2018 time period. Id. Prior to 2018, home surveillance equipment was important to narcotics investigations. Id. Surveillance equipment alone did not mean that a residence was a drug house, but it was a red flag “not just for the investigation itself but for officer safety also.” Id. at 90.
With respect to the compartmentalization, Detective Cuellar would expect the people working in the crack house to know each other so they can organize coverage of the house. Id. at 91. But those people would be shielded from the folks who keep the money, the locations where bulk drugs are kept, or the supplier of the drugs. Id. at 92. With respect to whether a person working in a drug house would know “the direct higher up that is making decisions” about the house, Detective Cuellar testified that it would depend on the size of the organization. Id. In a small organization, people are more likely to know each other but would keep to their particular jobs. Id. at 92-93. By contrast, in a large organization the people in the drug houses may not know “individuals that are higher up or two to three tiers away.” Id. at 93.
Houses used to sell drugs are commonly rented by people outside of an organization regardless of whether a street gang is involved. Id. Again, that is done so the police cannot trace the house back to the organization. Id. at 94. Detective Cuellar has seen “hundreds and hundreds” of residences used to sell drugs. Id. at 93.
DISCUSSION
Federal Rule of Evidence 702 allows “a witness qualified as an expert by knowledge, skill, experience, training, or education” to provide opinion testimony regarding scientific, technical, or other specialized subject matters “if (1) the testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” The Ninth Circuit has held that the “admissibility of expert opinion testimony generally turns on the following preliminary question of law determinations” by the trial judge: (1) whether the expert has appropriate qualifications - i.e., some special knowledge, skill, experience, training, or education on that subject matter; (2) whether the opinion is based on scientific, technical, or other specialized knowledge; (3) whether the testimony is relevant and reliable; (4) whether the expert's opinion would assist the trier of fact in understanding the evidence or determining a fact in issue; and (5) whether the probative value of the expert testimony is substantially outweighed by the risk of unfair prejudice, confusion of issues, or undue consumption of time. United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000).
The resolution of the instant motion turns on the scope of Detective Cuellar's proposed expert testimony. The defense's primary objection to Detective Cuellar's expert testimony is his opining on how street gangs engage in narcotics trafficking. The Court reaches that conclusion based on the defense's cross-examination of Detective Cuellar discussed above and the defense's Post Hearing Memorandum. See Doc. 2158. In that pleading, the defense argues that Detective Cuellar's testimony established that “he is not a gang expert.” Id. at 4. In fact, he admitted as much. Id. As a result, the defense argues that Detective Cuellar does not have the expertise to opine on the following matters: (1) when a crack house is operated by a street gang it involves an organization, and thus a hierarchy and compartmentalization to avoid identifying all involved; and (2) the individuals working the drug houses are lower ranking members of the hierarchy in the organization and that within the gang context have been referred to as “soldiers.” Id. The defense goes on to state that:
[a]lthough most [of Detective Cuellar's] opinions were in the purview of his expertise and not objectionable as a matter of law, the opinion regarding 'gang' crack houses and especially as to the 'organization/enterprise structure' and its operations as a criminal enterprise, are objectionable and must be precluded given that these are key elements to be proven for the RICO counts.Id. at 9.
The defense's objections on these grounds are well taken. By his own admission, Detective Cuellar is not an expert on street gangs generally or how they engage in drug dealing specifically. His conversations with the detectives in the gang unit and his involvement in six to ten narcotic-related investigations that involved street gangs -- none of which he could provide details about and only half of which involved a crack house that had some kind of hierarchy associated to it -- does not qualify him to provide expert testimony on how drugs are trafficked by street gangs. As a result, Detective Cuellar's testimony about that subject area is not proper under FRE 702. However, as discussed below, Detective Cuellar is certainly an expert on drug trafficking generally, including how drug houses operate (regardless of if they are run by a street gang). Thus, his expert testimony related to that subject area is proper under FRE 702.
In light of the discussion above, the defense appears to concede that Detective Cuellar is an expert on drug trafficking generally. And even if they don't, the Court finds that Detective Cuellar is qualified to provide expert testimony on that subject area given his specialized knowledge of drug trafficking. Detective Cuellar's eighteen-year career with TPD has almost entirely been focused on narcotics-related cases and investigations. As an undercover officer, he entered drug houses to buy drugs on many occasions and became familiar with the lingo used by drug dealers and the prices of drugs. He has participated in hundreds of searches of drug houses and is familiar with the evidence of drug dealing seized from those houses. He has attended many drug-related trainings and has conducted some trainings as well. As such, the Court concludes that Detective Cuellar is qualified to provide expert testimony on the following subject areas: how a drug trafficking organization (large and small) operates generally (but not street gangs specifically); how drug houses operate day-to-day and what evidence has been found in drug houses; the cooking process for turning powder cocaine into crack cocaine and the benefits of doing so for drug dealers; the way drugs are packaged both in bulk and for personal use; the use of surveillance equipment at drug houses; the presence of firearms at the drug houses; indicia that indicates that narcotics are for sale; that cocaine is primary produced in South America and imported into the United States; and the pricing (both wholesale and retail) of various drugs.
Given the discussion above, there is no doubt that Detective Cuellar's testimony is reliable. And his testimony is relevant because of the various drug conspiracy charges and substantive drug offenses alleged in the Third Superseding Indictment against Michael Williams. In fact, it is worth noting that unlike the RICO conspiracy, the other drug conspiracies and offenses do not require the jury to find that Michael Williams was in a street gang that was a criminal enterprise, or even that he was in a gang. Thus, Detective Cuellar's testimony is even more relevant to the non-RICO drug offenses.
The Court also finds that Detective Cuellar's testimony will assist the trier of fact in understanding the evidence and determining facts in issue. The world of drug dealing is an area that is outside the knowledge of a typical juror. A typical juror is not going to know how a drug trafficking organization (whether large or small) operates, the day-to-day functioning of a drug house, how drugs are bought at the house, how drugs are packaged, the price of street drugs, how crack cocaine is made and the resultant benefit to drug dealers, the lingo used by drug dealers and users, the purpose of having surveillance equipment (especially as far back as 2015) both inside and outside of a drug house, and the prevalence of firearms at drug houses and the reasons why firearms are present. Therefore, Detective Cuellar's testimony will assist the jury in understanding the evidence admitted at trial to support the drug charges.
Finally, the risk of undue prejudice to the defendants is low for two related reasons. First, as discussed earlier, Detective Cuellar will not be testifying about or opining on drug dealing by street gangs. Second, Detective Cuellar is a blind expert, meaning he has not been involved in this case or even reviewed evidence in the case. Thus, his testimony will not even touch upon the instant charges, allegations in the indictment, or facts or evidence specific to the case at hand. As a result, there is no concern that Detective Cuellar's testimony will invade the province of the jury.
CONCLUSION
The Court recommends that the District Court grant the instant motion, in part, and preclude Detective Cuellar from testifying about narcotic trafficking that is specific to street gangs. The Court recommends that the District Court deny the motion, in part, and allow Detective Cuellar to provide expert testimony on the other drug trafficking subject areas discussed above.
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If any objections are filed, this action should be designated case number: CR 18-01695-TUC-JAS. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).