Sunday, October 26, 2008
Cruel Intentions?: Third Circuit Makes Seemingly Erroneous Rule 704(b) Ruling In Drug Trafficking Appeal
Federal Rule of Evidence 704(b) states that:
"No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."
As I have noted before, the Rule was enacted as a result of the Insanity Defense Reform Act of 1984, which in turn was prompted by the public outrage in response to the insanity defenses of Mark David Chapman and John Hinckley, Jr. As is clear from its language, however, although Rule 704(b) was "enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity," courts have since found that it "applies to all instances in which expert testimony is offered as to the mental state or condition constituting an element of the crime charged or defense thereto," often to the detriment of prosecutors. United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995).
Of course, that has led prosecutors to try to walk an evidentiary tightrope with their expert witnesses, who now clearly imply in their testimony that the defendant acted intentionally or with premeditation but do so without using those words. But at some point, those experts cross the "[fine] line that expert witnesses may not cross," United States v. Watson, 260 F.3d 301, 309 (3rd Cir. 2001), and I think that an expert did so in a recent federal case in Pennsylvania, despite the Third Circuit's opinion to the contrary.
In United States v. Farrish, 2008 WL 4672128 (3rd Cir. 2008), Marcel Farrish appealed from his convictions for (1) possessing with intent to distribute five or more grams of cocaine base in violation of 21 U.S.C. Section 841(a)(1) and (b)(1)(B)(iii); (2) using or carrying a firearm during and in relation to any drug trafficking crime or, in furtherance of any such crime, possessing a firearm in violation of 18 U.S.C. Section 924(c)(1)(A); and (3) being a felon in possession of a firearm in violation of 18 U.S.C. Section 922(g)(1).
The facts of Farrish were as follows: On the night of March 27, 2004, three City of Pittsburgh police officers came across a car idling in front of a "no parking" street sign. Detective Edward Fallert noticed the man sitting alone in the driver's seat of the car, later identified as Farrish, grab something from his lap, place it in his mouth, and start chewing rapidly. Detective Fallert believed Farrish was in possession of and attempting to destroy contraband, so he asked Farrish what he was chewing, and Farrish responded that it was a "bag of weed." Fallert asked Farrish to open his mouth, Farrish complied, and Detective Fallert noticed green, leafy matter in Farrish's mouth, which he believed based on his experience as a police officer to be marijuana. Fallert asked Farrish to exit the vehicle and arrested him for possession of a controlled substance and tampering with evidence. Farrish gave his name, but stated that he lacked identification because his driver's license was suspended and told the officers that the car belonged to his girlfriend.
Police thereafter arranged for a tow service to impound the car, whereupon the police performed a warrantless inventory search of the vehicle and its contents. In the trunk, they discovered 88 knotted plastic baggies containing crack cocaine, a fully loaded 9-millimeter semiautomatic gun, and a baggie with 30 loose 9-millimeter rounds. The crack cocaine weighed 15.32 grams and had an approximate street value of $1,700.
At trial, the prosecution called an expert witness (who unfortunately is not identified by title in the Third Circuit's opinion), who testified "as to whether the quantity of drugs in the trunk indicated intent to sell and whether the proximity of the gun to the drugs indicated intent to use the gun in conjunction with drug trafficking." And according to the expert, "the facts and circumstances surrounding Farrish's behavior were 'indicative' of someone who had the intent to deliver drugs." (again, unfortunately, the Third Circuit's opinion doesn't list the specific testimony of the witness).
Now, it seems pretty clear to me that the expert's testimony violated Rule 704(b). So, why did the Third Circuit find to the contrary during Parrish's appeal? Well, according to the court, "We have held that '[e]xpert testimony is admissible if it merely supports an inference or conclusion that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or conclusion for the jury.' United States v. Watson, 260 F.3d 301, 309 (3d Cir. 2001).' If this citation were accurate, the Third Circuit would have been correct because, ostensibly, the expert didn't literally say that Farrish had the requisite intent.
The citation from Watson, however, seemed to me to present an unreasonably narrow construction of Rule 704(b), so I went to that opinion and found that the Third Circuit was engaging in selective citation. The full quote from Watson reads, "Expert testimony is admissible if it merely 'support[s] an inference or conclusion that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony.' United States v. Bennett, 161 F.3d 171, 183 (3d Cir.1998) (quoting United States v. Morales, 108 F.3d 1031, 1038 (9th Cir.1997))." (emphasis added).
In other words, the Third Circuit cut off the last clause of the quote, the part which states that expert testimony violates Rule 704(b) if the conclusion that the defendant had the requisite mens rea necessarily follows from the expert's testimony. And the reason the court did so seems clear to me, with the reason being that it also seems clear to me that the conclusion that Farrish had the requisite mens rea necessarily followed from the expert testimony that "the facts and circumstances surrounding Farrish's behavior were 'indicative' of someone who had the intent to deliver drugs."
So, notwithstanding this selective citation, could the Third Circuit's opinion have been correct? Well, according to the court in Farrish, the expert's testimony was proper because "[i]t is well established that experts may describe, in general and factual terms, the common practices of drug dealers. See Boyd, 55 F.3d at 671 (citing cases)." As with Watson, this led me to the opinion in United States v. Boyd, 55 F.3d 667 (D.C. Cir. 1995), to check its accuracy. And once again, I was underwhelmed.
In general, the Third Circuit's citation to Boyd was accurate in that the court found that experts can render general factual testimony concerning the common practices of drug dealers: "For example, a Government expert may testify about the significance of drug packaging,...the uses of various drug paraphernalia,...the street value of narcotics,...or the various roles that individuals might play in a typical drug distribution network." Of course, none of these types of testimony directly bears upon intent/mens rea, so the question becomes whether Boyd mentioned any such cases. And the answer is that it did.
The D.C. Circuit cited to its previous opinion in United States v. Mitchell, 996 F.2d 419 (D.C. Cir. 1993), in which the following expert testimony was rendered:
Q: Now, what, if anything, does the packaging of that crack cocaine into nine individual ziplocks tell you about the intent of the person that was carrying those ziplocks?
A: It was intent to distribute. * * *
Q: Why are you able to say that the person in possession of those nine individual ziplocks, $50 rocks of crack cocaine, has the intent to distribute them?
A: As I stated earlier, the packaging is consistent with the way crack cocaine is packaged for street-level distribution."
The D.C. Circuit found that, in contrast to general factual testimony concerning the common practices of drug dealers, this testimony violated Rule 704(b) because the expert's testimony "that 'it was intent to distribute', pointed much more directly to the mental state of 'the person that was carrying those ziplocks.'"
And as noted, the expert testimony in Farrish was nearly identical; according to the expert, "the facts and circumstances surrounding Farrish's behavior were 'indicative' of someone who had the intent to deliver drugs." Therefore, I don't see how the Third Circuit could have found that the expert's testimony in Farrish was proper under Rule 704(b).