Daubert And Expert Testimony For Sentencing Purposes

In resentencing for possession of cocaine with intent to distribute, admitting FBI agent's testimony as to the price of crack cocaine, based on the agent's experience in investigation of prices in various cities; a sentencing court may "rely on [a witness]'s testimony even if it may not have qualified as expert testimony" under FRE 702, as long as the sentencing evidence "has sufficient indicia of reliability to support its probable accuracy," in United States v. Johnson, __ F.3d __ (7th Cir. June 28, 2011) (No. 10–2503)

It is well established that the FRE do not apply in sentencing proceedings. See FRE 1101(d)(3) (FRE "do not apply in ... (3) Miscellaneous proceedings, Proceedings for ... sentencing, or granting or revoking probation....") Despite this general exemption, do the rule's requirement for admission of expert evidence, as reflected in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) apply to expert witness testimony regarding a sentencing issue? The Seventh Circuit recently considered this issue, reiterating that like the FRE generally, FRE 702 expert testimony is not required for use in sentencing. A court may consider expert testimony and accord it merited weight, but Daubert "reliability" is not the applicable test, as long as "reliable information" is received by the court. This does not necessarily involve a Daubert finding.

In the case, defendant Johnson appealed a re-sentencing decision made by the district court, in a case vacated and remanded multiple times on appeal of his initial convictions. One issue underlying the defendant's current appeal concerned application of an "increase a defendant’s sentence for uncharged and unconvicted relevant conduct" that "constitute[d] part of the ‘same course of conduct or common scheme or plan as the offense of conviction.’” Johnson, __ F.3d at __ (citing United States v. Stephenson, 557 F.3d 449, 456 (7th Cir. 2009) (quoting U.S.S.G. § 1B1.3(a)(2)). Specifically, on appeal the defendant challenged the trial judge's reliance on evidence of "intercepted phone calls between Johnson and [kingpin of a drug conspiracy] ... to hold Johnson accountable for 23 grams of crack in setting his sentence. It concluded that each call evidenced occasions on which Johnson purchased drugs and either resold them or intended to, and thus that each constituted relevant conduct under U.S.S.G. § 1B1.3. Johnson contends that the district court ... should not have considered FBI Special Agent Thomas Wilson’s testimony at resentencing." Johnson, __ F.3d at __.

The circuit noted that the challenged testimony regarded "crack prices, use and distribution quantities of crack, and various code words drug dealers use." The court "did not specify whether Agent Wilson was testifying as an expert," but it ultimately admitted the agent's testimony based on the agent's "experience includ[ing] investigations in Aurora," the Chicago area, and Washington, D.C. The district court ultimately permitted Agent Wilson to testify, and he proceeded to discuss crack prices, use and distribution quantities of crack, and various code words drug dealers use. Johnson claims that the district court erred by permitting Agent Wilson to testify, and references the fact that the district court did not specify whether Agent Wilson was testifying as an expert. Johnson, __ F.3d at __.


The circuit found the defendant's argument for exclusion of the agent's testimony to be "meritless":

The Federal Rules of Evidence do not apply in sentencing hearings and the district court was entitled to rely on [a witness]’s testimony even if it may not have qualified as expert testimony under Federal Rule of Evidence 702. The Guidelines (and the Due Process Clause) allow sentencing courts to rely on information that ‘has sufficient indicia of reliability to support its probable accuracy.’"
Johnson, __ F.3d at __ (citing United States v. Hunter, 145 F.3d 946, 952 (7th Cir. 1998) (quoting U.S.S.G. § 6A1.3(a)); United States v. Schroeder, 536 F.3d 746, 752 (7th Cir. 2008)).


Although the circuit again remanded the defendant's sentence, it concluded that "Agent Wilson’s testimony was sufficiently reliable to permit its consideration at sentencing." The circuit opined that "the district court [should] ... re-open fact finding on this issue, the interests of justice may warrant reconsideration of Johnson’s relevant conduct, and we invite the district court to do so." Johnson, __ F.3d at __ .

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Federal Rules of Evidence
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