Admitting Expert Testimony On Hidden Compartments For Drug Trafficking

Law enforcement expert testimony helped the jury understand the use of hidden compartments and was not unfairly prejudicial, in United States v. Avila, 557 F.3d 809 (7th Cir. March 6, 2009) (No. 07-2404)

Law enforcement experts are often used to help the jury understand the tools of the trade. A recent Seventh Circuit case considered expert testimony about the use of hidden compartments to transport drugs.

In the case, defendant Avila and eight others were prosecuted for their large-scale drug trafficking activities. An extensive investigation included court-ordered wiretaps. At trial, two cooperating defendants testified against defendant Avila. They explained the drug distribution scheme, including that “Avila would deliver the drugs himself or have someone else deliver them, often using hidden compartments in automobiles to conceal the drugs.” Another witness testified that “Avila or someone working for him … would transport the drugs to Indiana using hidden compartments.” In a recorded telephone call, defendant Avila “discussed using a hidden compartment in Avila’s car to transport drugs.” Avila, 557 F.3d at 813.

The jury also heard testimony from a sergeant who was a member of the Indiana State Police criminal interdiction team, who “testified to the typical use of hidden compartments in drug trafficking operations” and “explained several photographs of hidden compartments that he had discovered in cars, all of which came from other cases he had investigated. He also explained how ‘drug cartels’ used this method to transport drugs.” Avila, 557 F.3d at 820. The jury convicted defendant Avila. On appeal for the first time, he challenged the expert testimony concerning the use of hidden compartments.

The Seventh Circuit affirmed the expert testimony. The issue was reviewed for plain error because no trial objection had been lodged. The jury heard evidence that the defendant used hidden compartments in transporting drugs. The sergeant, who helped the jury understand this evidence, was not directly involved in the case. See United States v. Hubbard, 61 F.3d 1261, 1274-75 (7th Cir. 1995) (affirming testimony of police officer in “general terms” that “a secret compartment in an automobile is a hallmark of narcotics dealing”; noting the defense was not “foreclosed or hampered … in offering innocent explanations for evidence that [the expert] had identified as consistent with narcotics trafficking”; jury was instructed that they were not bound by the expert); see also United States v. Nobles, 69 F.3d 172, 183 (7th Cir. 1995) (“The operations of drug dealers are generally an appropriate subject for expert testimony. Because the clandestine nature of narcotics trafficking is likely to be outside the knowledge of the average layman, law enforcement officers may testify as experts in order to assist the jury in understanding these transactions.”) (quotations and citations omitted).

The circuit also concluded the expert testimony was not unfairly prejudicial under FRE 403. The expert “never offered an opinion regarding Avila’s specific involvement, and Avila had every opportunity to crossexamine him. Considering the wealth of evidence against Avila, it is unlikely that the jury convicted him on the basis of the testimony about hidden compartments or a comment regarding ‘drug cartels.’” Avila, 557 F.3d at 820-21.

One factor noted by the circuit was that the expert was not directly involved in the case. The problem of a dual fact and expert witness presents separate concerns. This issue has been noted before. See Plain Error Results In Using Dual Fact And Expert Witness.

Federal Rules of Evidence