Opinion Testimony On Personal Use Amount of Drug Under Relevance Standards

In trial for possession of heroin with intent to distribute, admitting drug agent testimony as to "how many bags of heroin most addicts purchase for personal use"; the testimony was relevant under FRE 401 so that jury could determine whether the amounts of heroin in defendant's possession were consistent with distribution as opposed to personal use, in United States v. Polanco, __ F.3d __ (1st Cir. Feb. 9, 2011) (No.09-2517)

In federal drug trials, expert agent testimony is normally offered concerning the amount of a drug that would be for personal use rather than for distribution. Efforts to dislodge this type of testimony have occurred under a number of evidence rules, including FRE 702 (should the testimony be "expert" testimony?), FRE 704(b) (did such testimony improperly opine as to the intent of the defendant?). A less used basis for challenge of this evidence is relevance concerns Perhaps one reason for this is that a relevance challenge is so rarely successful. A recent case in the First Circuit succinctly demonstrates the challenges of a relevance-based objection to agent testimony as to the amount of drug might be consistent with personal use, rather than distribution.

In the case, defendant Polanco was arrested after a drug task force conducted a set of controlled buys of heroin from Contreras, a local heroin dealer. Contreras was aided by Polanco in conducting many of these and ultimately both were arrested as a result of one of the buys. In an search of the defendant's car after his arrest, police discovered heroin in a hidden compartment inside the arm rest of his car. Using this, the police secured a warrant to search the defendant's apartment and that search turned up both heroin and drug paraphernalia.

Defendant Polanco was tried for possession with intent to distribute heroin. As part of its proof of the offense, the government presented testimony by an agent as to "how many bags of heroin most addicts purchase for personal use." According to the circuit, the witness, a member of the drug task force provided the following testimony:

After discussing his long experience in drug enforcement and his intimate familiarity with the heroin world, [agent] Naylor testified without objection that a single gram of heroin yields 50 doses-thus the heroin seized from Polanco's Camry alone was enough for almost 5,000 doses. To cement the prosecution's distribution position and undercut any claim of personal use, Naylor testified that a typical heroin addict may do 3-5 doses a day. A heavy user may do 10-20 doses a day. Anything above that could kill a person. Actually, Naylor added, he knew two people who died after doing 50 doses.

Polanco, __ F.3d at __.

Upon conviction the defendant appealed, contending among other things, that the trial court erred in admitting an agent's testimony about the quantities of heroin most addicts purchase for personal use. The basis of the defendant's challenge to his conviction was the claim that the agent's testimony was not relevant. As noted by the circuit, the defendant spent "a lot of time trying to convince us that Naylor's 50-doses-may-kill-you comment was irrelevant and unduly prejudicial. See Fed.R.Evid. 401, 403." The circuit considered this issue so clear that it made no difference whether an abuse of discretion standard of review was used, or a plain-error standard. Polanco, __ F.3d at __.

The circuit had little difficulty dispensing with defendant's relevance concerns:

Relevant evidence, [Federal Evidence] Rule 401 says, is 'evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' Clearly, whether Polanco had the heroin for distribution or personal use was a matter of consequence at trial. And the range of daily doses that Naylor said an average heroin addict could use-from light to heavy to death-inducing-helped prove a pivotal point: that the huge amounts of heroin involved here were consistent with distribution as opposed to personal use. The long and short of it is that Naylor's testimony easily satisfied the not-too-hard-to-meet relevancy standard.

Polanco, __ F.3d at __ (citing United States v. Maher, 454 F.3d 13, 23 (1st Cir. 2006); United States v. Reynoso, 336 F.3d 46, 49 (1st Cir. 2003); United States v. Valle , 72 F.3d 210, 214 (1st Cir. 1995))

As a fall back if his relevance challenge under FRE 401 was turned back, the defendant also argued that even if relevant, the agent's testimony should have been excluded as unfairly prejudicial under FRE 403. The circuit was unimpressed with this argument:

Polanco fares no better on his undue-prejudice claim. For the reasons just given, Naylor's testimony was plainly probative on the distributive-intent issue. No doubt, the testimony was prejudicial, in the sense that it showed that the amounts of heroin were too large to represent personal use. But it was not unfairly so, particularly since Naylor never intimated a possible suggestion that Polanco had supplied heavy heroin users or had caused overdoses or deaths. Rarely will we override a judge's balancing of relevance and prejudice, and we see no reason to second-guess the judge's discretionary judgment here.

Polanco, __ F.3d at __ (citing United States v. Winchenbach, 197 F.3d 548, 559 (1st Cir.1999))

"Distribution amount" testimony is not unusual now in drug distribution trials. As demonstrated by Polanco, dislodging this evidence on the basis of relevance concerns is a difficult argument to maintain. Testimony - whether expert of lay - on the economic aspects of drug distribution is necessarily relevant to the fact finder's understanding of the context of the charged crime.

Federal Rules of Evidence