Tuesday, June 16, 2009
Federal Rule of Evidence 704(b) provides 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.
Does this rule prevent DEA agents from testifying that the quantities of drugs recovered from a defendant are consistent with intent to distribute? The answer is "no" according to the Sixth Circuit in its recent opinion in United States v. Alford, 2009 WL 1587267 (6th Cir. 2009), at least if the defendant does not object to such testimony.
In Alford, one bag containing 2.7 grams of cocaine hydrochloride, or powder cocaine, and another bag containing 5.7 grams of cocaine base, or crack cocaine, were recovered from Daniel Alford. Alford was later charged with possession with intent to distribute five grams or more of crack cocaine. At trial, the prosecution presented the testimony of Agent Dave Lewis with the DEA, who
testified as an expert witness in narcotic drug trafficking practices. Lewis testified that a street-level crack dealer generally possesses numerous rocks of crack cocaine to sell to individual buyers, whereas a user will typically obtain only one or two crack rocks at a time. Lewis explained that, because crack is such a highly addictive drug, a person who uses crack becomes instantly addicted, cannot function in society, cannot maintain employment, and will use all of his money to buy crack. Further, a crack addict generally has no money except the amount necessary to buy the next rock.
Lewis testified that crack possessed for personal use generally will be a “very small quantity” that can be consumed in one sitting. A user of crack will possess one or two crack rocks, as well as a pipe or glass tube, and will go to the nearest location to smoke it after purchasing it. Lewis testified that, based on his experience, persons who distribute crack possess sums in denominations of $20 bills since crack rocks are sold for $20 and $40 apiece.On cross-examination, Defendant asked whether Lewis's opinion would be different if Lewis knew that Defendant had a "$300 to $500 a day habit" using crack cocaine. Lewis responded that if Defendant had such a drug addiction, he would not have had the cash he possessed and he would not have both powder and crack cocaine. Lewis also stated that, in his experience, crack users generally are not in possession of both sums of cash and drugs at the same time.
After he was convicted, Alford appealed, claiming, inter alia, "that the district court plainly erred because Lewis improperly stated an opinion as to Defendant's mental state, which is barred by Fed.R.Evid. 704(b)." The court, however, noted that it had failed to find plain error when officers had rendered similar testimony in similar cases and noted that
Moreover, the statements Defendant complains of were elicited by Defendant on cross-examination when Lewis was repeatedly asked if Defendant could have possessed the crack for his personal use. Under these circumstances there is no plain error.
I agree with the Sixth Circuit and would add that Lewis' testimony appears to me to be pretty benign. It seems to me that Lewis merely provided general testimony about how people with different quantities of drugs tend to act, not specific testimony about Alford's consent. Under these circumstances, it seems clear to me that the district court did not commit plain error.