EvidenceProf Blog

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

Tuesday, May 25, 2010

Getting Distribution: Eighth Circuit Finds Testimony Concerning Intent To Distribute Fine Under 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.

And, as the recent opinion of the Eighth Circuit in United States v. Parish, 2010 WL 2025365 (8th Cir. 2010), makes clear, testimony that a certain amount of drugs is consistent with possession with intent to distribute does not run afoul of this rule.

In Parish,

St. Louis Police Officer James Daly and his partner, Officer Joe Mader, received a tip from a confidential informant that a person named "Earl" was selling and distributing narcotics in the Gate District of St. Louis and that "Earl" was known to possess firearms. The confidential informant told the officers that "Earl" drove a newer model Ford Explorer with chrome rims. While Officer Daly listened in, the confidential informant called "Earl" and arranged for "Earl" to deliver crack cocaine on January 5, 2007, at around 8:00 p.m. On January 5, Officers Daly and Mader again met with the confidential informant, who called "Earl" to confirm the sale. During that call "Earl" arranged to meet at 1015 North Grand Avenue, a location in a strip mall.

At approximately 8:00 p.m. on January 5, Officers Daly and Mader, along with Sergeant Kenneth Hornak and Officer Ron Fowlkes, went to the area near the strip mall and set up surveillance. While on surveillance, Sergeant Hornak observed a Ford Explorer matching the confidential informant's description pulling into the parking lot....Sergeant Hornak and Officer Fowlkes, both in uniform, parked their unmarked police truck behind the Explorer at an angle. Officer Fowlkes got out of the truck and approached the Ford Explorer, identifying himself as a police officer. The driver (later identified as Earl Parish) looked at Fowlkes, placed the Explorer in reverse, and accelerated backward out of the parking space, ramming the police truck and knocking Sergeant Hornak to the ground. Parish also hit an occupied Ford Taurus backing out of a parking space. Parish attempted to flee the area in the Explorer, but the Explorer had become wedged into the police truck and could not accelerate forward. While the police officers were removing Parish from the vehicle, Parish ended up on the ground and banged his head. Officer Fowlkes took custody of Parish, and Officers Daly and Mader searched Parish's vehicle. On the floorboard of the driver's side of the vehicle, they observed two plastic bags, one containing what appeared to be crack cocaine and one containing what appeared to be compressed cocaine. The officers also found a fully loaded firearm under the passenger's seat and a digital electronic scale under the front driver's side seat .

Parish was thus arrested an subsequently charged with one count of knowingly and intentionally possessing with the intent to distribute a mixture or substance containing a detectable amount of cocaine base (crack) and one count of knowingly possessing a firearm in furtherance of a drug trafficking crime. At trial, testimony indicated that 11.74 grams of cocaine base or crack cocaine was seized from Parish's car, and Detective Michael Bradley, a detective assigned to the Drug Enforcement Administration Task Force, was asked,

Based on your years of experience in narcotics law enforcement and in being involved in undercover purchases and sales of crack cocaine, and in talking about defendants and confidential informants, and based on your own individual review of [the crack cocaine], are you able to form an opinion as to whether just based on that amount,[the crack cocaine] would have been intended for distribution or personal use?

Bradley responded, "I believe it would be intended for distribution." 

After he was convicted, Bradley appealed, claiming, inter alia, that this testimony was improperly admitted under Federal Rule of Evidence 704(b). The Eighth Circuit disagreed, noting that "'[t]estimony that, when combined with other evidence, might imply or otherwise cause a jury to infer this ultimate conclusion...is permitted under the rule.'" And, according to the court, this was exactly the type of testimony provided by Bradley. According to the court," Bradley's testimony concerned the amount;...he did not directly testify to Parish's intent, although the jury was free to infer the ultimate conclusion.



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