Sixth Circuit Finds Detective's Testimony Didn't Violate Rule 704(b) in Possession With Intent to Distribute Trial

Federal Rule of Evidence 704(b) provides 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.

One frequent area of controversy under Rule 704(b) is whether and to what extent a law enforcement officer can testify regarding whether the circumstances surrounding a defendant's possession of drugs is more consistent with distribution or possession. A good recent example can be found in United States v. Jaffal, 79 F.4th 582 (6th Cir. 2023).

In Jaffal, Baha Jaffal was charged with two counts of possessing controlled substances with the intent to distribute the drugs. After he was convicted, the defendant appealed, claiming, inter alia, that the following testimony by the detective who investigated his case violated Rule 704(b):

(1) After noting that he was assigned to Jaffal's case, Detective Kekic said that he read Jaffal's report and “put my investigative packet together” so that he could interview Jaffal. He next described that the goal of these interviews was to “get [suspects] to cooperate to maybe lead us to” drug distributors higher up in the chain. Detective Kekic then said, after learning about the case, that he “was investigating, in my eyes, a drug trafficking case at that point.”

(2) “I had noticed through that, through the details in the report, the quantity of the narcotics that were located, the fact that there was money that was involved that was confiscated, and cell phones[,] that I had deemed that this was probably a drug trafficking case with trafficking prepped for ship[ment] ....”

(3) “Most of the time users only carry about a half a gram to a gram. So with that kind of quantity, it led me to, in my experience, [believe] that this was a drug trafficking situation. So people don't run around with 40 grams of heroin in their pocket and not know that's a substantial amount of heroin.”

(4) In response to a question about how he tries to get a suspect to cooperate, Detective Kekic said: “The fact that that was a large amount. If it's a large amount, then that tends to put a little bit more pressure on the person because they know that they're looking at a substantial charge. Depending on the quantity would—you know, if it's over a certain bulk amount, it will raise the charge to a different level felony. And at this one I had looked at, with the amount of narcotics that were located, that we were looking at about an F2 or an F1 trafficking prep for ship[ment] as well as possession.”

(5) When asked to describe the quantity of drugs in an exhibit, Detective Kekic said: “The larger quantity is more indicative of trafficking.”

In rejecting Jaffal's appeal, the Sixth Circuit ruled as follows:

Based on the full context of Detective Kekic's testimony, we conclude that he did not improperly provide an opinion on Jaffal's state of mind. Law-enforcement officers are “routinely allowed to testify that circumstances are consistent with [the] distribution of drugs rather than personal use.”...In all five of Detective Kekic's statements above, he was clearly stating his belief that, based on his experience, the evidence was more consistent with trafficking than with just personal use. Detective Kekic explicitly notes that he reviewed the investigative reports, that he interviewed Jaffal, and that there was a significant amount of drugs and money involved in the case. These details are precisely what supported Detective Kekic's belief that he was investigating drug trafficking.

True enough, drug trafficking requires as an element of the offense that the defendant possessed an intent to distribute. But Detective Kekic's belief that he was investigating drug trafficking is not the same as declaring that Jaffal had the intent to distribute drugs. Detective Kekic “left unstated” the ultimate question of Jaffal's mental state, instead noting only that the evidence was consistent with distribution, which is permissible....

Jaffal primarily relies on United States v. Warshak, 631 F.3d 266 (6th Cir. 2010). But Warshak, a money-laundering case, is distinguishable because the expert there explicitly testified that certain transactions at issue were “done with an intent to conceal.”...Such testimony was impermissible because it “spoke directly to the core issue of the requisite mens rea.”...The same is not true here, where Detective Kekic never mentioned Jaffal's intent at all and instead noted only that the evidence was consistent with distribution.

-CM