Permissible Agent Lay Opinion Testimony About Lookout And Counter Surveillance

Two recent cases by the Seventh and Fifth Circuits reviewed whether agent testimony was lay or expert testimony; both cases concluded that the testimony about counter surveillance and serving as a lookout was permissible lay opinion testimony, in United States v. Hicks, __ F.3d __ (7th Cir. April 4, 2011) (No. 09–3608) and United States v. Diaz, __ F.3d __ (5th Cir. April 4, 2011) (No. 10-10544)

The line between lay and expert opinion is often difficult to discern. Two recent cases, from the Fifth and Seventh Circuits, recently considered whether agent testimony about observations made of the defendant was expert or lay testimony under FRE 701 and FRE 702. Both cases, which involved drug prosecutions, highlight the use of lay testimony based on personal observations.

In Hicks, the Seventh Circuit case, the defendant was charged with distributing cocaine base based on a recorded transaction between the defendant and a confidential informant. When law enforcement realized that the defendant had provided an ounce short in the transaction, an undercover agent contacted the defendant to arrange another meeting to obtain the balance. The meeting did not take place once the agent noted that counter surveillance was being used. At trial, an agent testified about “their observations—that [undercover agent] Jacox was followed from the restaurant to the drugstore, that there appeared to be suspicious individuals watching Jacox, and that they believed it most prudent to call off the operation.” Hicks, _ F.3d at _. The defendant was convicted and on appeal he argued for the first time that the agent testimony was inadmissible expert testimony.

The Seventh Circuit reviewed the issue for plain error since no objection had been lodged at trial and none was found. The circuit noted that expert testimony had not been provided as the agent's testimony did not conclude that “the persons observed at the restaurant and drugstore were in fact counter surveillance persons assigned by Hicks.” The circuit noted that “law enforcement officers are entitled to render lay opinions concerning criminal or suspicious activity based on their personal observations.” Hicks, _ F.3d at _ (citing United States v. Skinner, 972 F.2d 171, 176 n.4 (7th Cir. 1992) (“A deduction of possible criminality often is warranted when a law-enforcement officer witnesses suspicious behavior personally. Perhaps more often, however, first-hand observation—particularly of a crime like drug-trafficking, which usually is accomplished professionally and furtively—is well-nigh impossible . . . .”)). However, the conviction in the Hicks was vacated for separate evidentiary error under FRE 404(b), as previously covered.

In the Diaz case, the Fifth Circuit case, the defendant was prosecuted for conspiring to possess with the intent to distribute marijuana. In an undercover operation, two agents drove a tractor-trailer containing more than 1,000 pounds of marijuana to a located. While the marijuana was being unloaded, defendant Diaz stood on the street corner serving what law enforcement believed was “a lookout” role. After the marijuana was transferred to a van, defendant Diaz closed the doors. After a payment was made, the defendants were arrested. The defendant was subsequently arrested on an outstanding warrant. At his trial, an agent testified that he observed the defendant “standing in between the trailer and the van, seeing side to side, making sure no vehicles were coming.” Diaz, _ F.3d at _. Following his conviction at trial, the defendant challenged the agent’s testimony as impermissible expert testimony about his mental state, barred under FRE 704(b).

The Fifth Circuit rejected the challenge and concluded the agent’s testimony was permissible lay opinion under FRE 701:

This testimony did not rest upon scientific, technical, or specialized knowledge [under FRE 702]. Instead, it was an observation that “result[ed] from a process of reasoning familiar in everyday life . . . . [under FRE 701]” United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (quotation marks and citations omitted).
Diaz case, _ F.3d at _.

While FRE 704(b) barred expert testimony about the defendant’s mental statement, lay testimony is not prohibited. Diaz, _ F.3d at _ (citing United States v. McMillan, 600 F.3d 434, 456 (5th Cir. 2010) (“A witness who provides only lay testimony may give limited opinions that are based on the witness’s perception and that are helpful in understanding the testimony or in determining a fact in issue, but the witness may not opine based on scientific, technical, or other specialized knowledge.”) (citations and footnotes omitted)).

In two unpublished decisions, other circuit “upheld testimony from law enforcement officers that a defendant acted as a lookout”:

  • Sixth Circuit: United States v. Valdez-Reyes, 165 Fed. App’x 387, 391-93 (6th Cir. 2006) (noting that testimony “based on [an officer’s] personal perceptions of defendant’s conduct . . . [t]he district court could legitimately conclude in exercising its discretion that the opinion testimony would clarify for the jury that the officer[] believed defendant was more than a disinterested observer . . . .”) (unpublished)
  • Ninth Circuit: United States v. Hernandez, 45 Fed. App’x 686, 690-91 (9th Cir. 2002) (unpublished)

The agent’s testimony clarified “for the jury how Diaz appeared to be acting.” Diaz, _ F.3d at _. Other cases relied upon by the defense were distinguishable since expert testimony was involved. Finally, the circuit concluded, any error was harmless based on overwhelming evidence of guilt.

While expert testimony could be used for the challenged testimony, both cases also show how lay testimony may be permitted where it is based on personal observation of the agents.

Federal Rules of Evidence