11th Circuit Case Has Textbook Rule 704(b) Violation

Federal Rule of Evidence 704(b) states that 

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

The recent opinion of the United States Court of Appeals for the Eleventh Circuit in United States v. Boykins, 2020 WL 6441103 (11th Cir. 2020), provides a good example of testimony that violates Rule 704(b).

In Boykins, Jarrett Boykins was charged with two counts of possession of methamphetamine with intent to distribute and five related gun counts. At trial, 

Officer John Walker, a member of the Birmingham Police Department and the Drug Task Force, testified as an expert witness for the government at trial. His direct examination included the following exchange:

 

Q. “Based on your training and experience and the evidence that you reviewed in relation to the Pleasant Grove case, do you believe that the 50-plus grams or more methamphetamine was possessed with the intent to distribute it?”

 

A. “Yes, sir, absolutely.”

 

Q. “In relation to the Homewood case, the 152 pills...do you believe that that quantity, in relation to the quantity that was possessed was possessed with the intent to distribute?”

 

A. “Yes, sir.”

When Boykins appealed his conviction and challenged this line of questioning, the State didn't even defend it; instead, as the Eleventh Circuit noted, "The government appears to concede, and we agree, that this testimony by Officer Walker violated Rule 704(b)....The question is whether this error satisfies the remaining prongs of plain error [because he did not object to the questioning]."

That said, the court did not find plain error, instead concluding that there was ample other evidence supporting Boykins's conviction.

-CM