A divided Eleventh Circuit panel affirms the admission of agent lay testimony concerning the meaning of code words in a terrorism case, concluding that the testimony was rationally based on his perception from his involvement in the investigation and review of numerous intercepted transcripts and other documents, in United States v. Jayyousi, _ F.3d _ (11th Cir. Sept. 19, 2011) (No. 08-10494)
FRE 701 allows for the admission of lay testimony, where three requirements are met: The testimony is “(a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and ( c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” The Eleventh Circuit recently considered the application of these requirements in a case in which an agent was permitted to provide lay testimony concerning code words concerning international terrorism activities.
Summary of Facts
In the case, three defendants, Adham Hassoun, Kifah Jayyousi, and Jose Padilla, were charged with conspiring to murder, kidnap, or maim persons overseas as part of their support of Islamist violence. The government alleged that “the defendants formed a support cell linked to radical Islamists worldwide and conspired to send money, recruits and equipment overseas to groups that the defendants knew used violence in their efforts to establish Islamic states.” Jayyousi, _ F.3d at _. At trial, over defense objection, an FBI agent provided lay testimony about the meaning of code words used in the case. This testimony was based on his involvement in more than twenty terrorist-related cases, his five-year participation in the current investigation and review of numerous records including “telephone intercepts, the summaries for the intercepts, financial records, interview summations, faxes, and other documents pertaining to the case.” He noted that individuals “who were involved in terrorism-related cases used code words in their communications.” The agent explained the meaning of the following words: “‘football’ and ‘soccer’ for jihad; ‘tourism’ for jihad; ‘tourist’ for mujahideen; ‘sneakers’ for support; ‘going on the picnic’ for travel to jihad; ‘married’ for martyrdom; ‘trade’ for jihad; ‘open up a market’ for opening a group in support of jihad; open up a ‘branch’ for starting a jihad support group; ‘the first area’ for Afghanistan; ‘school over there to teach football’ for a place to train in jihad; ‘students’ for Taliban; ‘iron’ for weapon; ‘joint venture’ for a group of mujahideen; ‘full sponsorship’ for income for room and board (at training camp); and ‘open the door’ for opportunity to go to jihad.” Jayyousi, _ F.3d at _. The agent explained the context of the recorded communications and other documents. The jury convicted the defendants. On appeal, the defendants challenged the admission agent’s lay testimony arguing that “he was not present during all of the intercepted calls and he did not have a rationally based perception of what the individuals meant when they used the code words.” Jayyousi, _ F.3d at _.
A divided panel of the Eleventh Circuit disagreed on the admissibility of the agent’s testimony. The majority concluded the testimony was admissible under FRE 701. First, it “was rationally based on his perception” based on his five years’ involvement in the investigation and review of “thousands of wiretap summaries plus hundreds of verbatim transcripts, as well as faxes, publications, and speeches” and listening to numerous “intercepted calls in English and Arabic.” Second, the lay testimony was helpful to determining facts in issue as the jury was unlikely to understand some of the international transactions and methods employed. Finally, the agent’s testimony was not expert testimony since his understanding was based on “what he learned during this particular investigation.” Jayyousi, _ F.3d at _.
The majority rejected the defense claim that the lay testimony was inadmissible because the agent “did not personally observe or participate in the defendants’ conversations and based his testimony largely on documents admitted into evidence.” As the majority explained:
We have never held that a lay witness must be a participant or observer of a conversation to provide testimony about the meaning of coded language used in the conversation. We have allowed a lay witness to base his opinion testimony on his examination of documents even when the witness was not involved in the activity about which he testified. We have held that the testimony of a financial analyst of the FBI who “simply reviewed and summarized over seven thousand financial documents,” was properly admitted under Rule 701 in United States v. Hamaker, 455 F.3d 1316, 1331-32 (11th Cir. 2006).
Jayyousi, _ F.3d at _ (citing United States v. Gold, 743 F.2d 800, 817 (11th Cir. 1984) (in Medicare fraud case, company president lay testimony “based on his own examination of the store’s records … and his personal experience in the optical business”))).
Circuit Judge Barkett dissented. He concluded that the agent had not been qualified as an expert. His lay testimony was not permissible since he lacked “first-hand knowledge or observation” to provide lay testimony, the testimony was not helpful for providing “one side’s understanding of the evidence” and was essentially “merely the government’s closing argument in disguise.”
Under the case law, the courts have allowed for the use of either lay or expert testimony to explain code words depending on whether the requirements of the particular rule are met. Illustratively, the following case involved the use of expert law enforcement testimony:
- United States v. Smith, 640 F. 3d 358, 365-66 (in drug and firearm offenses prosecution, trial court erred in admitting agent’s lay testimony that interpreted the recorded “slang” of drug dealers (such as “key” (kilogram), “hardball” (100 grams of heroin), and “dope” (heroin)); the testimony, drawn on the agent’s “professional experience” in other cases, was specialized knowledge and should have been admitted as expert testimony; however, error was harmless since the agent would have qualified as an expert and based on overwhelming evidence)
- United States v. Baptiste, 596 F.3d 214, 218 (In trial concerning conspiracy to distribute and possess with intent to distribute and possession with intent to distribute cocaine and cocaine base, there was no plain error in admitting investigator expert testimony regarding “the manner and means of drug trafficking,” including “with the street jargon associated with cocaine trafficking”; the expert methodology, “using context and repetition to determine the meaning of certain words,” was sufficiently reliable)
- United States v. Decoud, 456 F.3d 996, 1013-14 (admitting expert testimony concerning drug codes; “The expert explained that for words that he had not heard before, he based his interpretation of such words on three factors: (1) his training and experience; (2) each word in the context of the specific phone call; and (3) each phone call in the context of other phone calls that he understood.”)
- United States v. Griffith, 118 F.3d 318, 321-22 (holding that experienced narcotics officers may offer expert testimony with respect to “drug traffickers’ jargon” which is “a specialized body of knowledge”)
Other cases have permitted lay testimony, particularly where the witness was a participant to the communication:
- United States v. Grullon, 545 F.3d 93, 95-96 (1st Cir. 2008) (“Grullon’s argument that the recorded conversations were not ‘drug talk’ was for the jury to resolve. Seemingly the conversations recorded between him and Manuel Germosen consisted of ‘code words,’ but Manuel Germosen testified to his perceived meaning of those words. A ‘lay witness[ ] with … inside knowledge [may] give [his] opinion[ ] as to the meanings of ‘code words’ used by fellow conspirators in taped conversations’ where the testimony satisfies the requirements of Fed. R. Evid. R. 701”) (citation omitted)
- United States v. Tsekhanovich, 507 F.3d 127 128-30 (per curiam) (in health care fraud prosecution, admitting lay opinion testimony concerning the meaning of “runner,” “good estimate” to explain fraudulent automobile insurance claims)
- United States v. Lizardo, 445 F.3d 73, 83-84 (1st Cir. 2006) (admitting drug co-conspirator’s interpretation of conversations with co-defendants in which he was present or participated in given his “first-hand familiarity with the surrounding events and conduct”; if error was committed, no prejudice was shown)