Tuesday, November 18, 2008
Smuggler's Blues: Eleventh Circuit Finds Expert Testimony Was Properly Received In Traffic Stop Drug Search Case
Like the Lopez opinion that I blogged about last Friday, the recent opinion of the Eleventh Circuit in United States v. Steed, 2008 WL 4831413 (11th Cir. 2008), helps define the limited reach of Federal Rule of Evidence 704(b). It also addresses one of the most clearly defined situations covered by Federal Rule of Evidence 703.
In Steed, Harold Orven Osgood appealed from his conviction for possession with intent to distribute 100 kilograms or more of marijuana. That marijuana was discovered in a tractor-trailer being driven by Osgood's co-defendant Antwan Lamount Steed, with Osgood as a passenger. According to law enforcement officer Alejandro Gonzalez, he pulled over the tractor-trailer because it was following another vehicle too closely and then decided to search the vehicle (with a canine unit) because, during the traffic stop, Osgood's hands were visibly shaking, he had sweat on his forehead even though the air conditioner had been on, and he avoided making eye contact when speaking.
When asked about the basis for this and other testimony, Gonzalez made "general references to conversations that he had with other law enforcement officers over the course of his career, his history of participation in unrelated searches and arrests of criminal suspects, and literature published by EPIC and NDIC keeping him apprised of trends in drug trafficking."
This testimony was instrumental to the denial of the motion to suppress the marijuana and the conviction of Osgood, and, understandably, formed one of the bases for his appeal.
One of the grounds of Osgood's appeal was that Gonzalez's testimony violated Federal Rule of Evidence 703, which states in relevant part that:
"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted."
Osgood claimed that the conversations, arrests, and literature upon which Gonzalez based his opinion were inadmissible hearsay. As the Eleventh Circuit correctly noted, however, the problem with this argument was that "Osgood d[id] not dispute that general training and experience, discussions with other law enforcement officers, participation in searches and arrests of criminal suspects, and literature about trends in law enforcement are reasonably relied upon by experts in the law enforcement field." Moreover, the court found that "we have previously determined similar sources to be reasonably reliable for purposes of Rule 703."
Another of the grounds for Osgood's appeal was that Gonzalez's testimony violated Federal Rule of Evidence 704(b), which states that:
"[n]o 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."
The Eleventh Circuit disagreed, concluding that while Gonzalez's testimony "gave rise to an inference that Osgood knew that he was transporting contraband, Gonzalez did not expressly state this inference. Instead, he let the jury draw its own conclusions from this testimony. Thus, Gonzalez's testimony did not violate Rule 704(b)."
I agree. As I noted in a recent post, "[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 and the ultimate inference or conclusion does not necessarily follow from the testimony."