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Univ. of South Carolina School of Law

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Friday, January 15, 2010

Q & A: Ninth Circuit Finds DEA Agent's Testimony Didn't Cross Rule 704(b) Line In Drug Trafficking Appeal

A week ago, I posted an entry about a Maryland case in which the Court of Appeals of Maryland strained to find that a sergeant's testimony did not violate Maryland's counterpart to Federal Rule of Evidence 704(b), which 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.

The court's conclusion in that case was that even though the prosecutor's question crossed the Rule 704(b) line, the sergeant's answer did not. I agreed with this conclusion in theory, stating, "I have no doubt that a question that crosses the Rule 704(b) line can prompt a response that does not."  I just didn't think that this conclusion applied to that Maryland case. Conversely, I think that the Ninth Circuit correctly applied this conclusion in its recent opinion in United States v. Anchrum, 2009 WL 5125788 (9th Cir. 2009), even though it claimed otherwise.

In AnchrumMichael Anchrum was convicted of one count of possession of controlled substances with intent to distribute, two counts of assault on federal officers with a deadly or dangerous weapon, and one count of possession of firearms in furtherance of drug trafficking. The prosecution procured these convictions in part through the testimony of DEA Special Agent Kenneth Solek, who testified regarding the circumstances of Anchrum's arrest, including the following exchange:

Q: And also we had the presence of two guns in this car, and you had mentioned - or had testified earlier that one was on the floorboard and one was underneath the seat and they were both loaded. What's the significance of that to you in your experience.

A: Well if-if you're driving around with a loaded weapon and you have narcotics in your car, then again, we're going back to what are you using the weapon for, why is it there. It's got to be there for a purpose. You're either going to use it, number 1, if you get stopped, to try to get away, which would be bad for us, for law enforcement. Number two, you're going to do a drug deal and you're worried that the person that you're giving your drugs to is going to rip you off, to try to steal your drugs instead of paying you money. Or, number 3, you do a successful drug deal and you're worried that somebody else that knows that you went over there and you just made $5,000 is going to come up and try to take your $5,000. So you have it for your protection, or you have it to-to get away with again. You know, the number 1-the bad reason.

After he was convicted, Anchrum appealed, claiming, inter alia, that Agent Solek's testimony crossed the Rule 704(b) line because the above question, "which referenced 'this car,' called for an opinion as to his particular mental state." The Ninth Circuit disagreed, noting that this question "ended with the call 'What's the significance of that to you in your experience?'" According to the court, this question thus did "not call for any discussion of Anchrum's mental state, but rather [called for] a discussion of the modus operandi of the drug dealers that Agent Solek had encountered 'in his experience.'" In other words, "Agent Solek 'offered no opinion as to whether [Anchrum] possessed the requisite criminal intent' to possess firearms, 'but instead described a common practice of those who do have such intent.'"   

I disagree. It seems to me that the prosecutor's question was asking Agent Solek to rely on his past experience to conclude what mental state the driver of "this car" had in this particular case. And indeed, it seems clear to me that if Agent Solek had said, "Based upon my experience, the driver of this car was engaged in drug trafficking," the Ninth Circuit would have found that the testimony violated Federal Rule of Evidence 704(b)

Fortunately for the prosecution, however, whatever we might say about the propriety of the prosecutor's question, it seems equally clear that Agent Solek's testimony did not cross the Rule 704(b) line. Agent Solek never referenced "this car" or "this case." Indeed, he didn't even testify that the facts of the case before him were consistent with one particular state of mind. Instead, he merely said that the facts of the case before him could be consistent with three different types of behavior, making it clear that his testimony did not violate Federal Rule of Evidence 704(b)

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/01/704bus-v-anchrum----f3d------2009-wl-5125788ca9-alaska2009.html

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