Sunday, December 8, 2019
11th Circuit Holds Coast Guard Personnel Can Offer Lay Opinion Testimony That Jettisoned Objects Were Cocaine
Federal Rule of Evidence 701 states that
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
With regard to subsection (c), the Advisory Committee's Note to the 2000 amendment states that
The amendment is not intended to affect the “prototypical example[s] of the type of evidence contemplated by the adoption of Rule 701 relat[ing] to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences.”...
For example, most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert....Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis. Similarly, courts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established....Such testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson's personal knowledge. If, however, that witness were to describe how a narcotic was manufactured, or to describe the intricate workings of a narcotic distribution network, then the witness would have to qualify as an expert under Rule 702.
So, should a court allow United States Coast Guard personnel to offer lay opinion testimony "that objects jettisoned from [a] go-fast vessel were cocaine bales"? That was the questioned addressed by the United States Court of Appeals for the Eleventh Circuit in its recent opinion in United States v. Lugo, 2019 WL 4940590 (11th Cir. 2019).
In Lugo, Lenin Lugo was charged with conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine while on board a vessel subject to the jurisdiction of the United States. To support its case, the prosecution called United States Coast Guard personnel and had them testify, as lay witnesses, that they thought objects jettisoned from Lugo's vessel were cocaine bales. In rejecting Lugo's appeal from his conviction, the Eleventh Circuit held that
The district court did not abuse its discretion in admitting lay opinion testimony from the USCG personnel opining that objects jettisoned from the go-fast vessel were cocaine bales. “Rule 701 does not prohibit lay witnesses from testifying based on particularized knowledge gained from their own personal experiences.” ...The USCG personnel’s lay opinion testimony was admissible under Rule 701 as their testimony was rationally based on the USCG personnel’s professional experiences, rather than scientific or technical knowledge....Each of the testifying USCG personnel participated directly in the interdiction of the go-fast vessel and testified as to their opinions of what they actually observed, and were entitled to draw on their professional experiences to guide their opinions.