EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, November 15, 2008

Law & Order, Criminal Intent?: Second Circuit Finds Expert Drug Testimony Doesn't Violate Rule 704(b)

Recently, I wrote a post about what I regarded as an incorrect evidentiary ruling under Federal Rule of Evidence 704(b) by the Third Circuit in United States v. Farrish, 2008 WL 4672128 (3rd Cir. 2008).  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."

And in Farrish, the Third Circuit correctly noted that, notwithstanding Rule 704(b), "[i]t is well established that experts may describe, in general and factual terms, the common practices of drug dealers."  I thought, however that the Third Circuit went too far in finding that an expert was not testifying about the defendant's intent and was merely testifying about the common practices of drugs dealers when he concluded that "the facts and circumstances surrounding [the defendant's] behavior were 'indicative' of someone who had the intent to deliver drugs."

Conversely, I think that the Second Circuit correctly found that such "common practice" testimony was properly admitted in its recent opinion in United States v. Lopez, 2008 WL 4831638 (2nd Cir. 2008).  In Lopez, Ricardo Lopez appealed from a judgment convicting him of possession of cocaine with intent to distribute and possession of two firearms in furtherance of a drug trafficking crime.

Central to Lopez's convictions was a green bag found in the driver's side trunk of his car.  The bag contained "thirteen glassines of cocaine, as well as cocaine-related paraphernalia: a scale, a strainer with cocaine residue, a wooden masher with cocaine residue, two spoons with cocaine residue, more than one hundred empty glassines, and a jar of a white powdery substance that looked like cocaine."

At trial, over Lopez's objection, the court admitted the expert testimony of Billy Ralat, an investigator at the United States Attorney's Office.  According to Ralat,

     "the items found in Lopez's green bag constituted 'basically a small distribution kit,' explaining that 'you have everything that you need to basically break [cocaine] down, cut it, and then rebag it for resale.' He concluded that the items were more consistent with drug distribution than personal use."

On appeal, Lopez claimed, inter alia, that this testimony violated Rule 704(b) because it was opinion testimony concerning his criminal intent.  The Second Circuit disagreed, finding that:

     "Ralat did not testify as to Lopez's intent. Rather, he merely stated that, based on his experience as a drug investigator, the drugs and paraphernalia found in Lopez's car were more consistent with distribution than personal use. The question-whether Lopez had the requisite intent to distribute-was clearly left to Judge Stein as the trier of fact. Thus, contrary to Lopez's argument, Ralat's testimony did not run afoul of Rule 704(b)."

As I said above, I agree.  Ralat's testimony was merely testimony regarding the common practices of drug dealers" while the testimony in Farrish was testimony regarding criminal intent.   



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