Opinion
Criminal No. 04-379 (RCL).
October 2, 2006
MEMORANDUM OPINION
This matter comes before the Court on the pre-trial motions of defendants. First, Defendant Butcher filed, on July 21, 2006, the following motion: a Motion to Prevent Government From Using So-Called Opinion Evidence That is Really Disguised Hearsay and Points of Authority in Support Thereof. Second, Defendant Eiland filed, on July 15, 2006, a Request [697] for Government Compliance with F.R.Cr.P. 16(a)(1)(G)'s Requirements Regarding Notice of Expert Testimony and Motion In Limine.
In his motion, Mr. Butcher referenced Motion [614] In Limine Regarding Admissibility of Certain Expert Testimony Pursuant to Rule 702 filed by defendant Corey Moore in a previous related matter, which was filed on March 20, 2006. The government's response to defendant Moore's motion, filed on March 20, 2006, is document [616].
Defendant Butcher's motion was later joined by the remaining defendants. Defendant Butcher, however, is no longer a named defendant in the current case. Notwithstanding Mr. Butcher's severance from this trial, the remaining four defendants in the present case maintain their position in support of this motion. Accordingly, this Court shall consider the motion despite Mr. Butcher's absence from this trial.
The United States filed, on August 1, 2006, an opposition [727] to defendant Butcher's pre-trial motion. The government also filed, on August 1, 2006, an opposition brief [728] to defendant Eiland's motion. All parties appeared before this Court for a hearing on August 14, 2006.
In the their opposition to Mr. Butcher's motion, the government also incorporated their response [616] to defendant Moore's motion.
Upon a thorough review of each party's filings, the applicable law and the entire record herein, this Court has determined that the aforementioned motions shall be GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
The four defendants are charged in a forty-nine count Superseding Indictment ("Indictment"). All defendants currently pending trial are charged in Count One, Narcotics Conspiracy and in Count Two, RICO Conspiracy. Defendants Eiland and Miller are charged also in Count Three, Continuing Criminal Enterprise. At least one but not all remaining defendants are also charged with the following: possession with intent to distribute narcotics (Counts 8-9, 11-13, 15-16); distribution of narcotics (Count 10); use of a communications facility to facilitate possession with intent to distribute narcotics (Counts 17-49). The trial testimony for the four defendants shall commence on October 3, 2006.
Counts thirty-nine through forty-seven were severed from the present case.
II. DISCUSSION
A. Motion Relating to Lay Opinion and Expert Testimony
Defendant Butcher, joined by the remaining defendants, filed a motion requesting that the Court "take steps to insure that, when the government calls law enforcement officers to interpret the intercepted phone calls for the jury, those witnesses' opinions are based either on the witnesses' personal knowledge or on their specialized knowledge, skill, experience, training, or education. . . ." (Def. Butcher's Mot. [711] 4.) Defendants also moved this Court to limit the scope of expert testimony to their fields of expertise. (Def.'s Request for Gov. Compliance [697] 3.) Of paramount concern to the defendants is that the witnesses do not base their opinions upon out-of-court statements made to them by government cooperators. ( Id.) Such an occurrence, they contend, would amount to the improper use of inadmissible hearsay, as well as violate the defendants' Sixth Amendment rights to confrontation. (Id. at 3.)
In response, the government asserts that a law enforcement witness may provide opinion testimony as a lay or expert witness under either Federal Rule of Evidence 701 or 702. (Gov.'s Opp. Br. [727] 1.) The government contends that its witnesses "can satisfy the requirements of Rule 701." (Id. at 5.) Incorporating by reference its previous opposition brief, the government posits that, to the extent that it must qualify its law enforcement witnesses as experts as to the meaning of coded language in intercepted conversation and as to the meaning of commonly used terms in narcotics trafficking, the court should allow these witnesses to be qualified as experts in those fields. (Gov.'s Opp. Br. [616] 4.)
1. This Court's Gatekeeping Obligation under Kumho and Daubert
At the outset, defendants allege that, under Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the Court is obligated to perform a "gatekeeping function to insure that only proper opinion testimony is presented to the jury" for both lay opinion and expert testimony. (Def. Butcher's Mot. [711] 3.) Accordingly, they argue, before a law enforcement officer testifies as to the meaning of wiretapped phone calls, this Court must determine "to what extent [the officer's] testimony is based either upon his personal knowledge or his specialized knowledge, skill, experience, training, or education. . . ." ( Id. at 3-4.)
Neither Kumho nor Daubert, however, establish such a requirement for the Court for instances involving lay opinion testimony. In fact, both Kumho and Daubert impose a gatekeeping function solely for the purpose of insuring the relevance of expert testimony, and the reliability of the foundation upon which expert testimony is founded. Kumho, 526 U.S. at 141 (applying Daubert's reliability and relevance test "not only to testimony based on `scientific' knowledge, but also to testimony based on `technical' and `other specialized' knowledge); Daubert 509 U.S. at 596-97. As the Daubert Court pointed out, it is the very fact that Rule 702 lacks a "firsthand knowledge or observation" requirement, as is seen under Rule 701, that necessitates the Daubert/ Kumho test in the first place. See id. at 592. Moreover, it is well settled in this Circuit that the trial judge should have "broad discretion in admitting testimony of lay witnesses." United States v. Williams, 212 F.3d 1305, 1309 n. 6 (D.C. Cir. 2000).
Accordingly, this Court will not extend the Kumho/ Daubert rationale to the Court's assessment of lay opinion testimony offered by any party. Instead, it will limit such determinations to the admissibility of expert witnesses, to the extent the government uses such witnesses. With respect to lay opinion testimony, the Court will restrict its analysis to the strictures of Rule 701 of the Federal Rules of Evidence.
2. Permissibility of Same Witness Testifying as Both Lay and Expert Witness
This Court agrees with the government's contention that law enforcement witnesses may provide opinion as lay or expert witnesses under F.R.E. Rules 701 or 702. Under the Federal Rules of Evidence, the same witness should be allowed to "provide both lay and expert testimony in a single case." Fed.R.Evid. 701, advisory committee's note (citing United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997)). This position is supported by authority within and outside of this jurisdiction. See Williams, 212 F.3d 1305 (analyzing foundation to police officer's testimony under both Fed.R.Evid. 701 and 702); see also United States v. Ayala-Pizarro, 407 F.3d 25, 27-28 (1st Cir. 2005) ("the same witness — for example, a law enforcement officer — may be qualified to `provide both lay and expert testimony in a single case.'") (quoting Fed.R.Evid. 701, advisory committee's note); United States v. Garcia, 291 F.3d 127, 139 (2d Cir. 2002) (same).
As the First Circuit noted, the line between what constitutes lay opinion testimony under Fed.R.Evid. 701 and expert testimony under Fed.R.Evid. 702 is not an easy line to draw. See United States v. Colon Osoria, 360 F.3d 48, 52-53 (1st Cir. 2004). Still, it is the function of this Court to ensure that the use of witness testimony comport with the requirements under the Federal Rules of Evidence. To that end, the Court will take steps to ensure that the requirements set forth in both Rules 701 and 702 are met by the parties. As such, the Court must analyze the scope of permissible testimony under each Rule.
a. Rule 701 Analysis
Under Fed.R.Evid. 701, lay opinion testimony must meet a three-part test. First, it must be "rationally based on the perception of the witness;" the so-called personal knowledge or observation prong. Fed.R.Evid. 701(a). Next, the testimony must be "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Fed.R.Evid. 701(b). Finally, Rule 701 was amended in 2000 to include an additional requirement that all lay opinion testimony admitted under Rule 701 "not [be] based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed.R.Evid. 701(c). Defendants argue that the personal knowledge or observation requirement under Rule 701(a) is violated by the government's use of law enforcement officers' testimony as to the meaning of the wiretapped conversations. ( See Def. Butcher's Mot.) Additionally, defendants argue that a law enforcement officer may not use past experiences in order to testify as a lay opinion witness. Accordingly, this Court will address only these issues with respect to the admissibility of lay opinion testimony as to the meaning of the wiretapped phone conversations.
i. Rule 701(a) Analysis
Defendants contend that the government witnesses fail to meet the firsthand knowledge requirement under Rule 701 because the lay opinion witness testimony is allegedly based upon information told to the witnesses by government cooperators who were familiar with the conversations and vernacular. ( Id. at 2-3). This, the defendants allege, not only violates the Sixth Amendment confrontation rights of the defendants and allows allegedly impermissible hearsay into evidence, but it also adversely affects the jury's consideration of such evidence. Id. at 3. The government states that its witnesses will satisfy the firsthand knowledge requirement because both witnesses scheduled to testify will "testify concerning opinions of certain portions of calls . . . after personally perceiving (or listening) [to] numerous calls." (Gov. Opp. Br. [727] 4.)
Under Rule 701(a), a lay witness can testify as to his opinion when it is "rationally based on the witness' perceptions. . . ." Fed.R.Evid. 701(a) (emphasis added). "Rationally based" entails that the lay opinion be based in the witness' personal knowledge. United States v. Saulter, 60 F.3d 270, 276 (7th Cir. 1995); Fed.R.Evid. 602. Personal knowledge upon which a lay witness' testimony rests may be "gained during the course of [the witness'] investigation." United States v. Weaver, 281 F.3d 228, 231 (D.C. Cir. 2002). In the context of interpretation of recorded conversations, a lay witness with personal knowledge may give opinions as to the meaning of code words used in such conversations. See United States v. Lizardo, 445 F.3d 73, 83 (1st Cir. 2006). Moreover, the lay witness need not actually have participated in the conversations in question in order to satisfy Rule 701(a). Saulter, 60 F.3d at 276. Rather, it is sufficient that the witness have "personal knowledge of the subject discussed and the persons involved." Id.
Accordingly, this Court finds that, to the extent that government will present lay witnesses under Rule 701 to offer an interpretation of the meaning of the wiretapped phone conversations, and in order to satisfy the personal knowledge or observation requirement set forth in Rule 701(a), these lay opinion witnesses must have personally listened to each phone call being used at trial, and have formed a subjective interpretation of the meaning of those phone calls.
ii. Rule 701(c) Analysis
Defendants also raise an objection to allowing the government's lay opinion witnesses to testify to the meaning of the conversations based upon their personal past experience. (Def.'s Request for Gov. Compliance [697] 3.) The government counters that the vast amount of authority establishes a "majority" view that a law enforcement officer may use his past experiences in order to form an opinion as a lay witness, and cites a number of cases in its favor, including case law from the D.C. Circuit. (Gov. Opp. Br. [727] 3-4.) It also claims the cases cited by the defendants represent a "[m]inority interpretation of Rule 701 as applied to agents' opinion testimony of wiretap calls," and argues that the Second Circuit's view has not yet been adopted within this Circuit. ( Id. at 4.)
From this Circuit, the government cites United States v. Williams, 212 F.3d 1305 (D.C. Cir. 2000). From outside this Circuit, the government references the following cases in its favor: United States v. Lizardo, 445 F.3d 73, 84 (1st Cir. 2006); United States v. Novaton, 271 F.3d 968, 1009 (11th Cir. 2001); United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001); United States v. Flores, 63 F.3d 1342, 1359 (5th Cir. 1995); United States v. Saulter, 60 F.3d 270, 276 (7th Cir. 1995); United States v. Meling, 47 F.3d 1546, 1556 (9th Cir. 1995); United States v. Dicker, 853 F.2d 1103, 1108-09 (3d Cir. 1988).
United States v. Garcia, 413 F.3d 201 (2d Cir. 2004); United States v. Grinage, 390 F.3d 746 (2d Cir. 2004).
On the face of its pleadings, the government does appear to have the weight of authority on its side. Upon closer inspection, however, their contention that a majority/minority split exists is somewhat overstated, in large part due to the fact that many of the cases upon which the government relies were decided prior to the recent 2000 amendment to Rule 701, in which Rule 701(c) was created. Though the pre-2000 cases cited by the government certainly can speak to the first two requirements under Rule 701, they cannot carry weight as to the interpretation of a rule requirement not yet enacted at the time of their decision. The remaining three cases decided after 2000 are of little help to the government's position. Both Novaton and Peoples were decided on the pre-amendment version of Rule 701, and offered no opinion as to their determination under the revised version of the Rule. See Novaton, 271 F.3d at 1007-08; Peoples, 250 F.3d at 639 n. 8. In fact, Lizardo appears to support the Second Circuit's rationale relied upon by the defendants by allowing a lay witness to give opinions as to the meaning of code words "so long as that testimony comports with the requirements of Rule 701." Lizardo, 445 F.3d at 84. Naturally, as Rule 701(c) mandates, lay opinion testimony may not be based on "scientific, technical, or other specialized knowledge within the scope of Rule 702." Rule 701(c) (emphasis added).
See supra note 4.
This is not to say that Rule 701(c) precludes the use of lay opinion witnesses to testify to a topic merely because such testimony could also be introduced as expert testimony. To the contrary, it appears as if Rule 701(c) was enacted to ensure that, though a witness may testify as both a lay opinion witness and as an expert, lay witnesses offer only lay opinion testimony, and that experts offer expert testimony. Fed.R.Evid. 701 advisory committee notes. To wit, Rule 701(c) was created "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." Id.
As the advisory committee notes to Rule 702 state, this type of specialized knowledge denotes a level of "extensive experience" in the area of analyzing drug trafficking jargon and code words in general. Fed.R.Evid. 702, advisory committee's notes. A witness' knowledge or understanding simply of the facts and background of a particular case, by contrast, does not rise to the level of specialized knowledge that would require qualification of the witness under Rule 702. Such an understanding that is limited to the facts of the case at issue merely provides a context for the witness listening to the conversation to better understand and interpret that conversation. It does not improperly clothe the witness with the veil of expertise; something Rule 701(c) was designed to prevent.
Accordingly, though testimony concerning the meaning of code words in narcotics situations is generally admitted as expert testimony under Rule 702 in light of the expertise and specialized knowledge of the law enforcement witness, See Fed.R.Evid. 702, this Court finds that a witness may still testify as a lay opinion witness as to his interpretation of the conversation, provided the foundation for such testimony is limited to the knowledge of the facts surrounding the case at issue held by the witness, qua investigator. A witness may not offer testimony as a lay witness under Rule 701 if such testimony is based solely upon his experience or expertise, and his understanding of drug trafficking jargon and code words in general. Testimony based on this type of extensive past experience more rightly falls under the purview of Rule 702, and the better practice for the prosecution would be to qualify such witnesses as experts thereunder. 3. Rule 702 Analysis
In their presentation of such testimony, the government should be mindful on direct examination of these lay witnesses to avoid questions that would indicate to the jury that the witness' understanding of the conversations were based upon their extensive experience as law enforcement officers, rather than on their understanding of the facts of the case at issue.
Defendants' arguments to preclude altogether the use of such testimony under Rule 701 cuts too broadly, and has the effect of nearly writing Rule 701 out of the Federal Rules of Evidence entirely. This Court is not prepared to reach such a drastic outcome.
Under Fed.R.Evid. 702, which governs the admissibility of expert testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon 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.
Expert testimony should "not extend to matters within the knowledge of laymen." United States v. Boney, 977 F.2d 624, 628 (D.C. Cir. 1992). As this Circuit has previously noted, "[j]urors as well as judges often need help in deciphering the jargon of those engaged in the drug trade." United States v. Walls, 70 F.3d 1323, 1326 (D.C. Cir. 1995). As a result, courts have consistently found that drug experts may testify on the basis of their experience concerning the meaning of alleged code words and terms to assist the jury in accurately interpreting conversations between drug conspirators. See United States v. Mejia, 448 F.3d 436, 448-49 (D.C. Cir. 2006); United States v. Placensia, 352 F.3d 1157, 1164-65 (8th Cir. 2003); United States v. Ceballos, 302 F.3d 679, 686-87 (7th Cir. 2002), cert. denied, 537 U.S. 1136 (2003); United States v. Watson, 260 F.3d 301, 307 (3d Cir. 2001); United States v. Griffith, 118 F.3d 318, 321 (5th Cir. 1997); see also United States v. Doe, 903 F.2d 16, 19 19 n. 21 (D.C. Cir. 1990).
In order to qualify as an expert and offer expert opinion testimony as to the meaning of the wiretapped conversations in question, the witness must possess "knowledge, skill, experience, training, or education" with respect to the subject about which he is testifying. Fed.R.Evid. 702. Additionally, the advisory committee's notes to Rule 702 specifically contemplate that government agents with "extensive experience" may be used to analyze the meaning of conversations. Id., advisory committee's notes. Notwithstanding these requirements, courts have not held that experts in narcotics trafficking must have undergone formal schooling in order to be deemed an expert. See United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987). Moreover, this Circuit recently held in United States v. Mejia, 448 F.3d 436, 448 (D.C. Cir. 2006), that the trial court did not abuse its discretion by allowing a witness to be qualified as an expert based solely on the fact that he had investigated and analyzed drug trafficking for "a long time."
The Court is mindful, however, of the potential risks of having a law enforcement officer testify as an expert witness, in particular with respect to the risk of testimony straying from the scope of his expertise, as noted by the Second Circuit in United States v. Cruz, 363 F.3d 187, 194-95 (2d Cir. 2004). Accordingly, to the extent that an expert witness must testify based on his experience, education, or specialized knowledge, such testimony will be limited to the scope of such experience, and should not stray therefrom.
Therefore, this Court finds that it is permissible for the government to use expert witnesses to testify to the alleged coded manner of speaking in the wiretapped conversations, provided the witness possesses sufficient experience to qualify as an expert witness under Rule 702. Additionally, the government must ensure that the expert witness' testimony falls within the purview of the witness' specialized experience or training.
To the extent that the government's expert witnesses rely upon statements or information given by government cooperators, the admissibility of such statements is governed by Fed.R.Evid. 703. Under Rule 703, an expert witness may base his opinion on facts or data made known to the witness at or before the hearing, including such facts that is otherwise inadmissible in court. Fed.R.Evid. 703. Such inadmissible information will not be disclosed to the jury unless its probative value outweighs its prejudicial effect. Accordingly, there is no violation of either the defendants' Sixth Amendment rights or the court's hearsay rules if the government's expert witnesses with sufficient experience have relied upon additional information provided by government cooperators.
4. Conclusion
Accordingly, those witnesses who will testify based upon their experience, education, expertise, or training as to the meaning of the intercepted phone conversations must meet the requirements to qualify as an expert under Rule 702. In addition, those witnesses who the government will not attempt to qualify as experts under Rule 702 may give their opinion as lay witnesses as to the meaning of those intercepted conversations, provided that the three requirements under Rule 701 are met.
As such, to the extent that the government uses such experts, the government must also meet the additional requirements imposed upon it by Fed.R.Crim.P. 16(a)(1)(G), discussed below.
Therefore, to the extent that the defendants have moved the court to insure that steps are taken to safeguard the proper use of lay witness testimony, the defendants' motion is GRANTED. The Court's granting of the defendants' motion does not, however, preclude the government's use of Rule 701 lay opinion witnesses to testify to the alleged meaning of wiretapped conversation, provided such testimony comport with the requirements of Rule 701. Accordingly, insofar as the defendants have moved this Court to disallow the use of government lay opinion or expert witnesses to testify to the alleged meaning of wiretap conversations, the defendants' motion is DENIED, provided the government introduce witnesses within the established framework detailed within this opinion.
B. FRCrP 16(a)(1)(G) Motion
Defendant Eiland [697] filed a motion requesting the Government's compliance with the requirements of Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure regarding disclosure of expert testimony. (Def. Request for Gov. Compliance [697] 1.) In response, the government asserts that Mr. Eiland has "fail[ed] to assert a claim with sufficient specificity such that the government could respond in any manner other than to assure the Court that it is aware of its obligations under the Federal Rules of Criminal Procedure." (Gov. Resp. Br. 2). Notwithstanding its arguments regarding the specificity of the defendant's claim, the government argues it has met the disclosure requirements under the Rule. First, the government has stated that it intends to rely upon the same experts used in the first trial. Second, the government points out that it has provided the defendant "resumes, summaries of testimony or documents about which the experts will testify have been provided as well as their testimony from the first trial." Id.
It should be noted that the Government admits that, "[w]hile the testimony may not be given by the same special agent, the substance of the testimony remains the same." Id. at 2, n. 1.
Rule 16(a)(1)(G) is intended to provide defendants with a framework for dealing with expert opinion testimony produced by the government. Specifically, the rule aims to "minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert's testimony through focused cross-examination." Notes of Advisory Committee on 1993 Amendments. Under the rule, the government is obligated to disclose to the defendant "a written summary of any testimony the government intends to use in its case-in-chief at trial under Federal Rules of Evidence 702, 703, or 705." Id. First, the government must give notice to the defendant of the expected expert's qualifications. Notes of Advisory Committee on 1993 Amendments. Second, the government must give to the defendant a summary of the expert's expected testimony, including whether the witness will testify to background information or provide more substantive opinions. Id. Finally, the government must disclose to the defendant a summary of the bases of the expert's testimony. Id. The government's obligations under the rule are not triggered until the defendant specifically requests performance by the government under the Rule. Fed.R.Crim.P. 16(a)(1)(G) ("At the defendant's request . . ."). Once the government asserts to the defendant that it will comply with Rule 16's requirements, however, the government must follow through on such a representation. Cruz, 363 F.3d at 196 n. 2.
Noticeably absent from this list of Federal Rules of Evidence is Rule 701, to which the requirements under Fed.R.Crim.P. 16(a)(1)(G) do not apply. Accordingly, to the extent that the Government intends to use lay opinion witness testimony under Rule 701, the Government would not be required to disclose to the defendant written summaries of the testimonies of those witnesses to the extent that it would be required to do so under the Federal Rules of Criminal Procedure.
Accordingly, this Court finds that, to the extent that the government intends to use Rule 702 expert witness testimony, and to the extent that the government is aware of its obligations under Fed.R.Crim.P. 16(a)(1)(G), the government must comply with Rule 16 and provide the defendants with notice of the expected expert's qualifications, a summary of the expert's testimony, and the bases upon which such testimony is based. Therefore, defendants' motion for compliance with Fed.R.Crim.P. 16(a)(1)(G) is GRANTED.
III. CONCLUSION
For the foregoing reasons, this Court has determined that defendants' motion [711] shall be GRANTED IN PART and DENIED IN PART, and that defendants' motion [697] shall be GRANTED only insofar as it requires the government's compliance with Fed.R.Crim.P. 16(a)(1)(G).
A separate Order shall issue this date.