Expert Helpfulness Standard On Straw Firearm Purchasers

Tenth Circuit considers the helpfulness requirement for an agent’s expert testimony about straw firearm purchasers in a prosecution for knowingly making false statements to a federally licensed firearms dealer; the expert testimony was relevant to provide "context by explaining the demand for these guns in Mexico and the value of a straw buyer in the United States"; explain the "possible profit motive for providing a scarce commodity in Mexico"; and connect the modus operandi, in United States v. Garcia, _ F.3d _ (10th Cir. March 28, 2011) (No. 10-2115)

Under FRE 702, expert testimony (“scientific, technical, or other specialized knowledge”) must “assist the trier of fact to understand the evidence or to determine a fact in issue.” This part of the rule is sometimes referred to as the “helpfulness standard.” See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-92 (1993) (“Rule 702’s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.“). A recent Tenth Circuit case discussed this requirement.

In the case, defendant Garcia was charged with ten counts of knowingly making false statements to a federally licensed firearms dealer (“FLFD”) for her role in serving as a straw buyer to purchase firearms, or attempting to do so. The government alleged that she misrepresented that she was the actual buyer of the firearms and also misrepresented her address. At trial, the government called a Bureau of Alcohol, Tobacco, and Firearms agent’s expert to testify “about straw buyers, why the actual purchaser would use a straw buyer, and that firearms laws in Mexico are more restrictive than those in the United States, including that some types of guns were impossible to purchase legally in Mexico but could be obtained in the United States.” The trial court denied the defense motion to exclude the testimony but disallowed expert testimony that the defendant’s “purchases and attempted purchases of firearms were consistent with those of a straw purchaser” or testimony that referred to Mexican drug cartels. Garcia, _ F.3d at _. The expert told the jury that:

[A] straw purchaser is someone who circumvents firearms laws by falsely representing themselves as the actual buyer of a firearm. He explained that straw buyers generally acquire firearms on behalf of another person who is prohibited from buying guns or who does not wish to be linked to the firearm. He further testified that Mexican gun laws are extremely restrictive, permitting civilians to purchase only basic firearms, and restricting all other firearms for exclusive use by the military. By contrast, he continued, gun laws in the United States are minimally restrictive, which makes the United States a "source country" for firearms while Mexico is a “demand country.”
Garcia, _ F.3d at _. The agent also noted that “[t]he type of firearm [Garcia purchased] is what’s most being recovered in Mexico at this time. The amount of firearms is consistent with it.” Garcia, _ F.3d at _ n.2. The jury convicted the defendant on eight of the ten counts. The expert also testified about straw buyers during sentencing. The defendant received a sentence of 41 months imprisonment. On appeal, she challenged the admission of the expert testimony because it “did not assist the jury to understand the evidence or determine a fact in issue,” and was unfairly prejudicial under FRE 403.

The Tenth Circuit affirmed the expert testimony. In doing so, the circuit noted factors to consider whether the expert testimony would be helpful to a jury:

In assessing whether testimony will assist the trier of fact, district courts consider several factors, including whether the testimony “is within the juror’s common knowledge and experience,” and “whether it will usurp the juror’s role of evaluating a witness’s credibility.” United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir. 2006) (footnote omitted). Pursuant to Rule 702, courts must conduct a “common-sense inquiry” into whether a juror would be able to understand certain evidence without specialized knowledge. United States v. Becker, 230 F.3d 1224, 1231 (10th Cir. 2000).

Because the average juror is often innocent of the ways of the criminal underworld, expert testimony is allowed in order to provide jurors a context for the actions of defendants. For example, pursuant to Fed. R. Evid. 702, we routinely allow law enforcement experts with “other specialized knowledge” to opine as to the means and methods of the narcotics trade. See United States v. Garza, 566 F.3d 1194, 1199 (10th Cir. 2009) (explaining how we have repeatedly permitted police officers to testify as experts on the drug trade). By analogy, expert testimony that assists jurors in distinguishing the actual purchaser of a firearm from a straw buyer is also relevant. The average juror is as likely to be unaware of the dynamics of the illicit arms trade as of the trade in narcotics.

In considering the facts of the case, the Tenth Circuit noted that the expert testimony assisted the jury in supplying context and that it was probative on whether false statements were knowingly made:

[The ATF Agent] explained the significance of a particular subset of weapons to the jury. [Defendant] Garcia was not buying a random assortment of guns, but instead was selectively acquiring a specialized arsenal of firearms which were in demand in Mexico. The significance of the types of firearms purchased by Garcia is not within the average juror’s common knowledge and experience. [ATF Agent] Ballesteros helped the jury understand the mechanics of the transborder arms trade, by explaining that the guns purchased by Garcia and subsequently recovered in Mexico, were tightly regulated by Mexico, but were readily available in the United States. Comparative gun regulation is not a field within the ken of the average juror. In short, Ballesteros’ expert testimony: (1) placed Garcia’s purchases in context by explaining the demand for these guns in Mexico and the value of a straw buyer in the United States; (2) helped explain Garcia’s possible profit motive for providing a scarce commodity in Mexico; and (3) helped the jury connect Garcia’s modus operandi — purchasing weapons from multiple dispersed gun stores using multiple forms of identification— to her reasons for doing so. Ballesteros’ statements provided the jury a critical connection between Garcia’s acts and her state of mind. His testimony helped the jury decide whether Garcia “knowingly” made false statements when purchasing firearms, in much the same way that expert testimony enables a jury to distinguish a drug user from a distributer. This evidence was therefore relevant.
Garcia, _ F.3d at _.

The Tenth Circuit also rejected the defense contention that the expert testimony was unfairly prejudicial or misleading under FRE 403 when it “implicitly referred to Mexican drug cartels by explaining that the quantity and type of firearms purchased by Garcia were consistent with those of arms recovered from Mexico.” Garcia, _ F.3d at _. The trial court limited the testimony and did not permit the expert to refer to Mexican drug cartels. The testimony was supported by the facts including the defendant’s “purchase in cash of thousands of dollars of high-powered weapons and the subsequent recovery of some of these arms in Mexico.” Garcia, _ F.3d at _.

The Garcia case is a useful one in considering the contours of whether expert testimony satisfies the helpfulness standard under FRE 702. The expert's specialized knowledge testimony aided the jury in considering and deciding the facts of the case.

Federal Rules of Evidence