EvidenceProf Blog

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

Thursday, November 11, 2010

Not My Intention: Sixth Circuit Finds Testimony About Intent To Distribute Drugs Didn't Violate Rule 704(b)

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.

So, can a DEA agent testify that the amount of drugs found on a defendant is consistent with intent to distribute them without violating Rule 704(b)? According to the recent opinion of the Sixth Circuit in United States v. McCreary-Redd, 2010 WL 4244124 (6th Cir. 2010), the answer is "yes." 

In McCreary-Redd,

Knoxville Police Department Officers Orlando Dixon, Doyle Lee, and Robert Taylor were conducting surveillance at a housing project....The Department had received several complaints regarding illegal drug activity in the area....

At approximately 1:40 a.m., the officers observed a dark blue sedan driving with its headlights turned off. Officer Dixon recognized the sedan as having just left Parking Lot F. The driver, whom Officer Lee later identified as McCreary-Redd, returned to Parking Lot F a short time later and backed into a parking space. McCreary-Redd then went up to one of the housing units and came back down a few minutes later. Officer Lee witnessed a female approach McCreary-Redd at this time and say something to the effect of "hey, Redd, get me one, too."

As McCreary-Redd was returning to the sedan, the officers approached and Officer Lee asked to speak with him. Officer Lee informed McCreary-Redd that the latter had been driving with his headlights turned off. After obtaining McCreary-Redd's driver's license, Officer Lee asked McCreary-Redd whether he was in possession of any weapons or drugs. McCreary-Redd responded that he was not. Officer Lee then asked if he could conduct a pat-down search on McCreary-Redd. McCreary-Redd did not verbally answer this question; instead, he put his hands up and turned his back to Officer Lee.

While searching McCreary-Redd, Officer Lee discovered a handgun in McCreary-Redd's waistband and subsequently pushed him forward onto the hood of the sedan and removed the gun. After removing the gun, Officer Lee arrested and handcuffed McCreary-Redd. Officer Lee then continued the search and discovered a white plastic vial attached to McCreary-Redd's keychain containing what appeared to be crack cocaine.

McCreary-Redd was later charged with possessing crack cocaine with the intent to distribute the drug and to carrying a firearm during a drug-trafficking crime. At trial, over McCreary-Redd's objection, DEA agent Dave Lewis testified that the amount of crack cocaine found on McCreary-Redd was an amount consistent with the intent to distribute the drug. According to Lewis, his opinion was

[b]ased on just the drug quantity, no matter-Any other circumstances wouldn't be relevant. Just looking at the drugs, from-anybody that possessed drugs that look like this, I would say it was possession for resale, based on the number of rocks, the size of the rocks, and the fact that there are other larger rocks that could easily be cut into the 20-dollar rocks, and the overall weight of the drugs. So the drugs, separate from everything else, even if I didn't know anything else about the case, that would be my opinion.

In deeming this testimony permissible despite Federal Rule of Evidence 704(b), the Sixth Circuit noted that Lewis was not directly testifying about McCreary-Redd' mental state and that law enforcement officers "are routinely allowed to testify that circumstances are consistent with distribution of drugs rather than personal use."



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The court violated 704(b). The DEA agent who testified, admitted that he ALWAYS testifies that any amount recovered is "for resale." This was not even his opinion, but simply the way he's always going to testify. One of the reasons the jury acquitted me of the gun and drug trafficking charges. Terrible ruling...then my lawyer intentionally neglected to inform me that the opinion was back so I was time-barred from appealing the Court's ruling.

Posted by: Perry Redd | Jan 17, 2011 7:23:03 PM

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