EvidenceProf Blog

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

Monday, February 6, 2012

Got Yourself A Gun: 7th Circuit Finds ATF Agent's Testimony About Gun Possession 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, let's say that a defendant is charged with one count of manufacturing marijuana, one count of possession of a firearm in furtherance of a drug-trafficking crime, and one count of possession of a firearm by an unlawful user of a controlled substance. And let's say that an ATF agent testifies that a loaded gun found in the defendant's house "was there to protect a marijuana grow operation." Does this testimony violate Rule 704(b)? According to the recent opinion of the Seventh Circuit in United States v. Eller, 2012 WL 350899 (7th Cir. 2012), the answer is "no."

In Eller, the facts were as stated above, with Gregory Eller being convicted of the aforementioned crimes. At trial, ATF special agent Laurie Jolley,

who had extensive experience working on drug cases, both as a narcotics officer and an ATF agent, provided expert testimony for the prosecution. Jolley had specialized training in firearms and drug trafficking and she testified that drug traffickers often possess firearms as part of their business operations in order to protect large sums of cash and inventory. Jolley spoke generally of the factors she considers when determining whether a firearm is used in connection with a drug operation and she ultimately testified that based on her experience and opinion, the loaded firearm found in Eller's home "was there to protect a marijuana grow operation." 

After he was convicted, Eller appealed, claiming, inter alia, that this testimony violated Rule 704(b) because it "agent Jolley's testimony implied she had personal knowledge of Eller's mental state, with specific regard to his intent for possessing the firearm."

The Seventh Circuit disagreed, concluding that

It was made reasonably clear to the jury that agent Jolley was not familiar with Eller, and that she was not present during the search of his home or assigned to the investigation. Agent Jolley testified that her knowledge was based on common criminal practices, her experience, and her expert opinions. Accordingly, and in conformity with this Court's precedent, we do not find that the district court erred in allowing the expert testimony.



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