Wednesday, January 30, 2008
In United States v. Perez-Lopez, 2008 WL 185507 (11th Cir. 2008), the Eleventh Circuit rendered an interesting expert evidentiary ruling which conflicts with precedent in other circuits. In Perez-Lopez, Oscar Perez-Lopez was charged with conspiracy to possess with intent to distribute more than five kilograms of cocaine and possession with intent to distribute cocaine. See id. at *1 During the prosecution's case, Drug Enforcement Administration Agent Michael Lumpkin testified that after Perez-Lopez's alleged co-conspirator was apprehended, he provided information to authorities concerning a ranch owned by Perez-Lopez. See id. Lumpkin then testified that while he was monitoring this ranch, he followed an Expedition, which was registered to Perez-Lopez and his wife, leave the ranch, drive through several cities, and return to the ranch. See id. at *2. Perez-Lopez described the vehicle's course of action as "heat runs or checking to see if it was being followed by law enforcement." Id. (emphasis added).
Perez-Lopez objected, contending that this testimony constituted expert opinion evidence and that the prosecution did not qualify Lumpkin as an expert witness. See id. The prosecution countered that it was merely asking Lumpkin to describe his observations, and the trial court overruled the objection. See id. Lumpkin then proceeded to testify that "the vehicle pulled into cul-de-sacs and drove around the city without stopping at any particular location before returning to the ranch." Id.
After Perez-Lopez was convicted on both charges, he appealed to the Eleventh Circuit, which affirmed his convictions. On the issue of whether the trial court properly admitted Lumpkin's testimony on "heat runs," the Eleventh Circuit noted that pursuant to Federal Rule of Evidence 701, "[i]f the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."
Meanwhile, Federal Rule of Evidence 702 indicates that "[i]f 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."
Because Lumpkin was not qualified as an expert witness, the question thus became whether his testimony on "heat runs" was rationally based on his perceptions and not based on technical or other specialized knowledge. The Eleventh Circuit found that the trial court did not abuse its discretion in admitting Lumpkin's testimony pursuant to Federal Rule of Evidence 701 "because his opinion that the vehicle he observed was conducting a 'heat run' or 'checking to see if it was being followed,' was based on his personal observations of the vehicle and his past experience as a DEA agent.'" Id. at *4.
This ruling is inconsistent with the rulings by the two other circuits which have considered the issue. In United States v. Garcia, 86 F.3d 394 (5th Cir. 1996), a government agent gave testimony regarding the defendants' use of "car sweeps," "stash houses" and "heat runs," and also testified that 166.9 kilograms of cocaine recovered from an alleged stash house was indicative of a large drug trafficking organization. (emphasis added). On appeal, the defendants claimed that "this testimony was not helpful because the jury could have drawn its own conclusion as to whether a large drug trafficking organization controlled the cocaine." Id. at 400. The Fifth Circuit disagreed, finding that the agent's testimony fell under the purview of Federal Rule of Evidence 702 because "[t]he average juror may not be aware that the presence of 166.9 kilograms of cocaine is indicative of a large drug trafficking organization, and may not be aware that large drug trafficking organizations commonly use 'car swaps,' 'stash houses' and conduct 'heat runs.'"
In United States v. Brown, 110 F.3d 605, 610 (8th Cir. 1997), the Eighth Circuit similarly found that testimony concerning the modus operandi of drug dealers constitutes expert testimony because it is testimony concerning activities which are not something with which most jurors are familiar. As support, the Eighth Circuit cited with approval the Garcia court's ruling with regard to "heat run" testimony.
I agree with the Fifth and Eighth Circuits and disagree with the Eleventh Circuit. The Eleventh Circuit's ruling that the DEA agent's "heat run" testimony was proper lay witness testimony because it was based upon his personal observations only satisfied part (a) of Rule 701, establishing that it was "rationally based on the perception of the witness." The Eleventh Circuit also had to find under part (c) that his testimony "was not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."
As the Fifth and Eighth Circuits correctly noted, however, that testimony about "heat runs" is not something with which most jurors are familiar, meaning that the testimony was based upon technical or other specialized knowledge gained from police/DEA work. The Eleventh Circuit's decision thus seems in error as the DEA agent needed to be qualified as an expert witness (it is unclear why the prosecution did not seek to qualify the agent as an expert witness).