In evaluating challenged testimony, the court must distinguish "between an impermissible opinion on an ultimate legal issue and 'a mere explanation of the [witness's] analysis of facts which would tend to support a jury finding on the ultimate issue.'" United States v. Buchanan, 70 F.3d 818, 833 n.20 (5th Cir. 1995) (quoting United States v. Speer, 30 F.3d 605, 610 (5th Cir. 1994)). Keys cites Rule 704(b) for the proposition that "an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.
Washington's argument could also be interpreted to challenge the testimony as impermissible profile evidence. United States v. Williams, 957 F.2d 1238, 1240-41 (5th Cir. 1992); see United States v. Speer, 30 F.3d 605, 610 n. 3 (5th Cir. 1994). The record makes clear, however, that those opinions were not offered for that purpose.
Applying Rule 704(b), the Fifth Circuit has distinguished between cases in which an expert in a criminal case offers an impermissible opinion on an ultimate legal issue and those in which the expert offers "a mere explanation of the expert's analysis of the facts which would tend to support a jury finding on the ultimate issue." United States v. Speer, 30 F.3d 605, 610 (5th Cir. 1994) (citing United States v. Dotson, 817 F.2d 1127, 1132 (5th Cir. 1987)); see also Gutierrez-Farias, 294 F.3d at 663 n. 5; Buchanan, 70 F.3d at 833 n. 20. Expert testimony does not violate Rule 704(b) if it may be characterized as "an analysis of the evidence in the light of [the expert's] special knowledge" in the relevant field. Speer, 30 F.3d at 610; Buchanan, 70 F.3d at 833 n. 20.
593 F.2d. at 106.See United States v. Mancuso, 718 F.3d 780, 798 (9th Cir. 2013) (following Wright, declining to apply Swiderski charge to cocaine dealer who sometimes used drugs with others when purported joint users did not "pool[] money with Mancuso and travel[] with him to acquire the cocaine jointly"); United States v. Washington, 41 F.3d 917, 920 (4th Cir. 1994) (adopting Wright's reasoning where individual bought cocaine alone with money provided by friends for their eventual shared use); United States v. Speer, 30 F.3d 605, 609 (5th Cir. 1994) (finding facts closer to Wright than Swiderski where one person with whom purchased drugs were intended to be shared was not "at or near the scene of the transaction"). While we hesitate to apply such an instruction outside of narrow circumstances evincing actual joint and simultaneous possession of a controlled substance, we think that a fact finder could determine that such circumstances are present here.
See United States v. Washington, 44 F.3d 1271, 1283 (5th Cir. 1995) (stating that a narcotics agent may testify about the significance of certain conduct or methods of operation unique to the drug business so long as the testimony is helpful and its relevance is not substantially outweighed by the possibility of unfair prejudice or confusion). More importantly, we believe Agent Afanasewicz's testimony crosses the borderline long recognized by this court between a "mere explanation of the expert's analysis of the facts" and a "forbidden opinion on the `ultimate legal issue'" in the case. United States v. Speer, 30 F.3d 605, 610 (5th Cir. 1994); United States v. Dotson, 817 F.2d 1127, 1132 (5th Cir. 1987). The clear suggestion of Agent Afanasewicz's testimony is that, because most drivers know there are drugs in their vehicles, Gutierrez must have known too. Although admittedly Agent Afanasewicz did not say the magic words — "In my expert opinion, Gutierrez knew the marijuana was in the tires."
These cases are not directly analogous, as this gun was not particularly concealed, and as there is no argument that Salazar-Ramirez was possibly acting as an innocent, ignorant courier. United States v. Speer, 30 F.3d 605, 612 (5th Cir. 1994).Harlan, 130 F.3d at 1152-53; United States v. Still, 102 F.3d 118, 125 (5th Cir. 1996); Speer, 30 F.3d at 612.
We review the district court's evidentiary rulings for abuse of discretion. United States v. Speer, 30 F.3d 605, 609 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 768, 130 L. Ed. 2d 664 (1995). The admission of the officers' opinion testimony is appropriately examined under the standard governing testimony of expert witnesses.
No other circuit has followed the Second Circuit in Swiderski. See United States v. Speer, 30 F.3d 605, 609 (5th Cir. 1994) ("This Circuit has never adopted the Swiderski doctrine nor have we found that any other circuit has done so."). We do not reach the question of whether Swiderski is good law in this Circuit.
Concluding that the juror "was unable to perform his duties," Pineda held that the trial court did not abuse its discretion by removing him from the jury panel. Id. at 219; United States v. Paulk, 372 F. App'x 971, 973 (11th Cir. 2010) (affirming district court's dismissal for cause in light of juror's English comprehension and reasoning that "[b]y dismissing him, the district court was ensuring that every member of the jury would be able to understand the testimony and argument presented at trial and meaningfully participate in jury deliberations."); United States v. Speer, 30 F.3d 605, 611 (5th Cir. 1994) (finding no abuse of discretion where "the [trial] judge excused Corley because he believed that the other jurors would not be able to communicate with her and that she 'probably would detract from [the jury process] by causing difficulty in the deliberations.'"). In this case, the Court determined that, unfortunately, Mr. Camacho's English comprehension posed too great a risk of impairing jury deliberations.
Fifth, for Garcia's challenge to the testimony that he was being deceptive and not forthcoming, this testimony was "a mere explanation of the expert's analysis of facts which would tend to support a jury finding on the ultimate issue". United States v. Speer, 30 F.3d 605, 610 (5th Cir. 1994). This testimony was permissible because it was based on the agent's observations of Garcia's behavior, body language, and facial expressions.