First Circuit Once Again Criticizes The Use Of Law Enforcement “Overview” Testimony

After prior admonitions, First Circuit warns prosecutor that failure to avoid the problems in using an “overview” witness may result in possible sanctions or disciplinary action, in United States v. Flores-De-Jesus, 569 F.3d 8 (1st Cir. June 18, 2009) (No. 06-267, 06-2670, 06-2671)

The First Circuit recently expressed its concern about the use of overview witnesses, which it had criticized in other prior cases. As the circuit framed the issue:

This case requires us to assess the propriety of the government's use of a law enforcement officer as the first witness in a multi-defendant drug prosecution to provide an "overview" of the prosecution's case. While we have condemned aspects of this practice before, most notably in United States v. Casas, 356 F.3d 104, 117 (1st Cir. 2004), we must regrettably revisit the overview witness issue in some detail because of the abuse of that practice in this case and others.

Flores-De-Jesus, 569 F.3d at 14.

During an investigation, twelve defendants were charged in a large drug-conspiracy. At trial, over defense objection, a special agent with the Special Investigations Bureau of the Puerto Rico Department of Justice testified as an overview witness and provided lay and expert testimony. Ultimately, three defendants proceeded to trial, and were convicted on a drug conspiracy charge, and one defendant was convicted for using or brandishing a firearm in relation to a drug trafficking crime.

In reviewing the case on appeal, the circuit noted that there was an appropriate, limited role for an overview witness as long as it is based on the agent’s personal knowledge. Illustratively, overview may be used to “‘the sequence of events in the investigation’ and supply context and ‘background information and to explain how and why the agents even came to be involved with th[e] particular defendant.’” Flores-De-Jesus, 569 F.3d at 19 (quoting United States v. Goosby, 523 F.3d 632, 638 (6th Cir. 2008) (quotation marks and citation omitted)).

However, the circuit identified several problems with overview witnesses:

  • The agent may testify about matters which are not based on personal knowledge and may fail to “differentiate the testimony that was based on personal knowledge from other sources of information, often hearsay,” Flores-De-Jesus, 569 F.3d at 16 (quoting United States v. Casas, 356 F.3d 104, 118-19 (1st Cir. 2004)), or may offer conclusory opinions involving impermissible lay testimony under FRE 701.
  • Overview “testimony raises the very real specter that the jury verdict could be influenced by statements of fact or credibility assessments . . . not in evidence.” Flores-De-Jesus, 569 F.3d at 17 (quoting Casas, 356 F.3d at 118-19).
  • The overview testimony may not be consistent with testimony presented later in the trial or “the evidence promised by the overview witness never materializes.” Flores-De-Jesus, 569 F.3d at 17.
  • There is an “imprimatur problem” as a jury may give may give “great weight” to an agent’s testimony which may be “perceived to have the imprimatur of the government.” Flores-De-Jesus, 569 F.3d at 17 (quoting Casas, 356 F.3d at 120).
  • Confrontation Clause issues under Crawford v. Washington, 541 U.S. 36 (2004) may arise where the agent relies on statements of others, including confidential informants, who do not testify at trial yet implicate the defendants in a conspiracy.
  • Apart from Confrontation Clause issues, the agent’s reliance on the statements of others presents hearsay concerns.
  • Additional problems arise when the overview witness agent testifies as both a fact and expert witness, which raises unfair prejudice concerns based on conflated testimony and also “exacerbates the imprimatur problem.” Flores-De-Jesus, 569 F.3d at 30 (citing United States v. Brown, 776 F.2d 397, 401 n.6 (2d Cir. 1985) (noting risks of conflating expert and fact testimony “is increased when the opinion is given by the very officers who were in charge of the investigation”) (quotation marks and citation omitted)).

After extensively reviewing the overview testimony of the agent, the circuit summarized the permissible and impermissible portion of the testimony”

Agent Toro's testimony was permissible to the extent that he was testifying either 1) as a case agent describing the course of the investigation and events in which he had personally participated, or 2) as an expert whose testimony provided background and context on drug conspiracies and distribution in public housing projects in Puerto Rico. More specifically, in his capacity as a case agent and fact witness, the district court properly allowed Agent Toro to testify to: the general layout and other specific descriptions of Covadonga and the course of his unit's investigation of the drug point, including the use of Oscar Espada as an informant and his own visits to the project and seizure of drugs from the property. As an expert, Toro properly described the operation of drug points generally, including the various "roles" typically involved in an intricate drug conspiracy and the practice of storing drugs intended for sale, as opposed to immediate distribution, at a remote location from the drug point itself.

In contrast, the government concedes that Toro's testimony ‘identifying the names and roles of the conspiracy members, the accompanying chart, and his estimates of the amount of cocaine sold monthly at Covadonga - was precisely the type of testimony condemned by this Court in United States v. Casas.’ Specifically, all of Toro's testimony about the role of the defendants in the conspiracy that was based on information gathered from police reports, other documents not introduced into evidence, and interviews with CI Espada, cooperating co-conspirator Medina Torres, or other individuals, was hearsay and inappropriate overview testimony. Even though some of this objectionable testimony was later repeated by other witnesses, thereby obviating any potential Crawford problem, the repetition did not validate the admission of the overview testimony. Later repetition of testimony by a witness with first-hand knowledge does not eliminate the hearsay nature of the initial overview testimony. And the imprimatur problem remains a barrier to such overview testimony, even if it is repeated -– a problem that is exacerbated by the agent's dual role as both a fact witness and an expert. Finally, the repetition is problematic in itself.

As we have already noted, the law enforcement officer providing the overview testimony is essentially endorsing the testimony of other witnesses in what can only be viewed as an attempt by the government to bolster the credibility of those later witnesses. From the government's point of view, that enhancement effort may seem particularly critical in these drug cases where so much of the government's case relies on the often problematic testimony of confidential informants with unsavory pasts or cooperating co-defendants with myriad credibility problems.

Although we do not minimize these problems for the government, we cannot condone the use of overview witnesses in the impermissible ways we have described here to overcome those problems. We made that view clear in Casas. We restate that view here with renewed emphasis.

Flores-De-Jesus, 569 F.3d at 27 (footnotes omitted).

Given the prior warnings to avoid the problems associated with using overview witnesses, the circuit indicated that sanctions may be imposed in the future:

Henceforth, there can be no justification in this circuit for the government's repetition of the errors that we have identified here in the use of overview testimony in criminal cases. If somehow prosecutors in the U.S. Attorney's Office in Puerto Rico did not get the message before about the dangers of such testimony, they should surely get it now. And they should draw no comfort from the fact that the harmless error analysis we are now required to undertake saves these convictions despite the misuse of overview testimony. The Supreme Court has made clear that we may not vacate appellants' convictions simply out of indignation at the repeated failure of the U.S. Attorney's office in Puerto Rico to abide by the strictures on the use of overview testimony. That is, the harmless error inquiry may “not be avoided by an assertion of supervisory power” to “discipline the prosecutors of [a particular] jurisdiction.” United States v. Hasting, 461 U.S. 499, 505 (1983).

Nevertheless, if prosecutors fail to heed our guidance in the future, they may be referred for sanctions to the Department of Justice or to the appropriate Puerto Rico attorney disciplinary body. See id. at 506 n.5 (stating that such disciplinary sanctions would be more appropriate remedies for prosecutorial misconduct where the error is harmless). Such conduct will also subject government counsel to disciplinary actions before this court. See Rules of Attorney Disciplinary Enforcement for the Court of Appeals for the First Circuit, Rule IV (2002) (governing our authority to sanction an attorney admitted to practice before this court for misconduct).

Flores-De-Jesus, 569 F.3d at 27 (footnote omitted).

After an extensive review of the evidence, the circuit ultimately concluded the error in admitting the overview testimony was harmless and affirmed the convictions, based on testimony of other witnesses and surveillance videotapes and photographs of several drug and firearm transactions.

The opinion surveys the benefits and risks of using overview witness testimony in general. For any attorneys contemplating the use of a law enforcement overview witness in the First Circuit, the Flores-De-Jesus is required reading.

Federal Rules of Evidence
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