Applying The "Overview Testimony" Limitation

In an appeal filed by tax-resistor who objected to testimony by the U.S. Marshal as improper "overview" testimony, First Circuit distinguishes helpful law enforcement testimony at an early part of trial from "previously encountered instances" where the government witness provides improper and inappropriate opinion testimony, noting that testimony is less likely to be prohibited overview testimony if it is based on the witness’s personal knowledge, involving events the witness observed or participated in, United States v. Brown, __ F.3d __ (1st Cir. Jan. 19, 2012) (Nos. 09–2402, 10–1081)

Some, but not all of the circuits have rejected use of "overview" testimony at trial. But the First Circuit seems to be one of the most outspoken on this type of evidence. See, e.g., United States v. Flores-De-Jesus, 569 F.3d 8, 27 (1st Cir. June 18, 2009) (“if prosecutors fail to heed our guidance in the future [on use of improper "overview" testimony], they may be referred for sanctions”); United States v. Aviles–Colon, 536 F.3d 1, 21 n. 13 (1st Cir. 2008) (“It is troubling to us that the government's use of the overview testimony indicates an unawareness of our” prior precedent on this issue.); United States v. Rodriguez, 525 F.3d 85, 95 (1st Cir. 2008) (“This court on several occasions has strongly cautioned the Government against the practice” of presenting law enforcement overview testimony); United States v. Casas, 356 F.3d 104, 120 (1st Cir. 2004) (“The fact that we and the Fifth Circuit have now had to address the government's use of such preliminary overview government agent witnesses [testimony] is a troubling development.”); United States v. Garcia–Morales, 382 F.3d 12, 17 (1st Cir. 2004) (agents' hearsay-laden or hearsay-based overview testimony at the onset of trial was a rather blatant prosecutorial attempt to circumvent hearsay rules). As 2012 begins, the First Circuit again weighs in on the boundaries between proper and improper overview testimony.

In the case, the defendants Brown, a husband and wife, had been convicted in 2007 for various tax crimes and they failed to appear for sentencing. Instead of surrendering, they "holed up in their secluded ... home, situated on an approximately one-hundred-acre tract of land." They were known to be armed and they threatened violence, forcing the U.S. Marshals to "hatch[] a plan for their arrest." This came at a time that the defendants "gained national notoriety and supporters of the couple were flocking to their home. The Browns themselves were hosting festival-type gatherings at their home publicizing their resistance. The Marshals planned to take advantage of this by posing undercover as supporters and accomplishing the arrests in this capacity." Brown, __ F.3d at __.

The complex scheme worked, the defendants were seized, and were found guilty after a trial for conspiring to prevent federal officers from discharging their duties, among other crimes. They appealed, contending in part that the government improperly used law enforcement "overview" testimony at their trial.

In raising this issue, the defendants picked at an issue of some sensitivity in the First Circuit. As the Circuit noted:

Generally speaking, a so-called “overview witness” is a government agent who testifies in a criminal matter as the prosecution's first witness (or at least as one of its earliest witnesses) and provides an overview of the prosecution's case to come. We have considered the propriety of the practice of using overview witnesses, and cautioned against its pitfalls, on multiple occasions. See United States v. Meises, 645 F.3d 5, 18 (1st Cir.2011); Flores–de–Jesús, 569 F.3d at 14; United States v. Casas, 356 F.3d 104, 119–20 (1st Cir.2004). We identified the following potential ramifications of overview testimony as making it inherently problematic: (1) the jury could be influenced by statements of facts and credibility determinations not in evidence; (2) later testimony could be different from what the overview witness assumed; and (3) the jury may place greater weight on evidence that they perceive has the imprimatur of the government.
Brown, __ F.3d at __ (citing See Flores–de–Jesús, 569 F.3d at 16–17; Casas, 356 F.3d at 119–20.).


The circuit then described what the record in Brownrevealed about the so-called overview testimony:

[U.S. Marshal] Monier was called as the government's first witness. After testifying about his job duties, Monier moved on to his interactions with the Browns. He testified about the plan the Marshals developed to arrest the Browns in 2006 for their tax crimes and how the plan was executed. Monier explained how the Browns failed to appear at the tax trial, the outcome of the trial, and how Elaine [Brown] violated her conditions of release—essentially Monier gave background information on why warrants were issued. He described the Marshals' plan for executing the warrants and also briefly touched on the unsuccessful June 7th arrest attempt, focusing on what he observed via video surveillance from the command center. Monier moved on to his attempts to get the Browns to surrender and the new plan to infiltrate their home posing as supporters. He then gave a one-sentence long summary of the arrest. Finally, Monier indicated that a post-arrest sweep of the residence was performed but he did not testify about what was found.
Brown, __ F.3d at __.

The First Circuit disagreed that the testimony objected to by the defendants was "overview" testimony. As explained by the circuit, the fact that the law enforcement officer's testimony about his interactions with defendants and background information regarding why warrants for their arrest did not fall within the scope of improper overview testimony. The Marshal's testimony had a very important function of aiding the jury. In a case involving various operations to arrest the defendants, the Marshal limited his testimony to describing the events he had observed and coordinated while overseeing the operation, so that his “testimony [wa]s permissible and ‘valuable to provide background information.’ Further, the government laid a sufficient personal knowledge foundation for the testimony, distinguishing it from previous overview testimony we have taken issue with. Cf. Meises, 645 F.3d at 15 (DEA agent only learned of the inculpatory conduct he testified to from an informant); Casas, 356 F.3d at 118–19 (DEA agent's testimony was partially based on information he received from a co-conspirator who did not testify)." Brown, __ F.3d at __ (citing Meises, 645 F.3d at 15 (quoting Flores–de–Jesús, 569 F.3d at 19).

That the Marshal's testimony was not overview testimony was also apparent from the

fact that Monier did not express an opinion as to the culpability of the Browns—a practice we have found most troubling in this context. Specifically, we have previously encountered instances where the government witness essentially testified that the defendant was guilty of the crimes charged....

Further, there is no danger of Monier's testimony endorsing the testimony of later witnesses and thus adding the “imprimatur of the government” to the later testimony. First, as a practical matter, all of the later witnesses who testified about the Browns' resistance and arrest were government agents (Marshals; Bureau of Alcohol, Tobacco, Firearms and Explosives; and Internal Revenue Service agents who participated in the attempted capture, capture, and/or post-arrest sweep). Second, the majority of the subsequent agents' testimony pertained to topics that Monier did not go into detail about—the botched arrest attempt, the actual arrest, and the weapons that were discovered in the post-arrest sweep of the home. In the minimal areas where Monier and the other agents' testimony did intersect, there do not appear to be any contradictions.
Brown, __ F.3d at __ (citing Meises, 645 F.3d at 15 (finding improper overview testimony when a DEA agent identified the defendants' individual roles in a drug trafficking operation); Flores–de–Jesús, 569 F.3d at 26 (finding inappropriate overview testimony when a DOJ agent used a photographic chart to identify the defendants as members of a drug conspiracy and to set forth their roles); Casas, 356 F.3d at 118–19, 120 (finding improper overview testimony when a DEA agent identified the defendant as member of a drug trafficking organization that handled massive quantities of drugs; circuit expresses concern that prosecutors could use a government agent to bolster a later dubious witness).

The Brown case illustrates that a claim of improper overview testimony needs support from more than the fact that the law enforcement agent testified first. The case shows that testimony by a law enforcement agent based on the witness's personal knowledge and providing the agent's explanation of the context of the case, is not per se improper, when the witness's testimony is also based on the witness's experience with the investigation of a defendant.

Federal Rules of Evidence
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