Distinguishing When Expert Testimony Avoids Impermissible Opinions On The Defendant's Intent

In methamphetamine manufacturing-related prosecution, admitting DEA agent testimony that defendant's alleged pattern of pseudoephedrine purchases, as reflected by pharmacists' drug purchase logs, was “consistent with someone who's buying pills for use in manufacturing methamphetamine”; the FRE 704(b) limitation on testimony regarding a defendant's intent was not implicated because the agent only implied the defendant's mental state, leaving it to the jury whether to reach this an an ultimate conclusion, in United States v. Wells, _ F.3d _ (8th Cir. Feb. 14, 2013) (No. 12-1430)

FRE 704(a) generally allows expert opinion testimony on an ultimate issue to be decided by the trier of fact. However, FRE 704(b) contains an exception to the general rule:

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
How far can expert testimony go under FRE 704(b) before crossing the line barring this testimony? This issue frequently arises in drug prosecutions where an expert witness opines that the defendant's actions were "consistent with" possession of drugs with an "intent to distribute." This type of testimony has been permitted with regard to drug distribution. See Circuit Considers FRE 704(b) Limit On Expert Intent Testimony. The Eighth Circuit recently had an opportunity to revisit this doctrine with another aspect of the ultimate opinion rule -- its application to a case of drug manufacture rather than possession.

In the case, defendant Wells was apprehended and charged with manufacturing methamphetamine at his home after law enforcement noted that pharmacist's pseudoephedrine purchase logs indicated that the defendant, his wife and adult daughter had "purchased a large quantity of pseudoephedrine in suspicious patterns." At the defendant's trial the logs were admitted and used in testimony by a DEA special agent (Gregory) as an "expert in the field of clandestine methamphetamine laboratories." Wells, __ F.3d at __.

The focus of the witness's expert testimony involved his examination of "the pseudoephedrine logs pertaining to the Wells family and identifi[cation of] suspicious patterns." These patterns included that members of the defendant's family purchased:

"pseudoephedrine pills from the same pharmacy within minutes of one another on at least six occasions" over a year and a half period. In addition, the defendant's "family purchased a significant amount of pseudoephedrine pills within short periods of time, and purchased the pills from pharmacies far from their residence.... From January 2008, to May 2009, the Wells family purchased a total of 290.88 grams of pseudoephedrine. Over Wells’s objection, Gregory testified that the patterns he identified in the pseudoephedrine logs were consistent with someone who was purchasing pseudoephedrine pills for use in the manufacture of methamphetamine."
Wells, __ F.3d at __. The jury returned a guilty verdict on all counts against the defendant. The defendant appealed, citing Agent Gregory's expert testimony as erroneously admitted in violation of FRE 704(b) because the witness had "impermissibly commented on his intent." The

The Eighth Circuit disagreed. It examined the record at trial and noted that the expert witness's "opinions concerning the pseudoephedrine logs were based on his knowledge of the purchasing patterns of someone using pseudoephedrine to manufacture methamphetamine, rather than on any special knowledge of Wells’s thought processes." For instance, the witness premised his testimony on having looked for "patterns of someone who is purchasing pseudoephedrine pills to manufacture methamphetamine." These patterns were "different from the patterns of someone who is purchasing the pills for a legitimate purpose."

The Eighth Circuit concluded that the expert testimony about the nature of clandestine methamphetamine laboratories did not opine about the defendant's intent. The former was permissible expert testimony, the latter was barred by FRE 704(b). In particular, when viewed in context, the expert for the most part explained the logic of his observation of such laboratories with what the defendant had done prior to arrest. In drawing this contrast, the witness pointed the jury to permissible and logical inferences as to what the defendant intended, but the expert left this last step for the jury to make on its own. For example, the expert's testimony at trial involved examining the pharmacist's logs:

The government ... identified a particular grouping of pseudoephedrine pill purchases and asked Gregory whether, given his training and experience, the grouping of purchases was “consistent with someone who’s buying pills for use in manufacturing methamphetamine.” Gregory responded affirmatively. It was not until later in his testimony, after the government had asked him about the significance of other groupings, that Gregory began to respond that “[t]his pseudoephedrine is being purchased to be used in the manufacturing of methamphetamine.” By then, however, Gregory’s earlier testimony and the form of the government’s questions had established that Gregory was merely describing the Wells family’s pseudoephedrine pill purchasing patterns as consistent with someone who was purchasing the pills to manufacture methamphetamine. It was for the jury to draw from Gregory’s testimony about the pattern of purchases the inference that Wells made the purchases with the intent to use the purchased products to manufacture methamphetamine.
Wells, __ F.3d at __.

In this observation, the Eighth Circuit illustrates the difference between permissible and impermissible expert opinion touching on a defendant's intent. It was only because the latter testimony by the witness, which was worded in more conclusory terms, that the testimony could possibly violate FRE 704(b)'s limitations. However, according to the circuit, when that conclusory testimony was examined in context of the witness's entire time on the stand, it was clear that his words, while conclusory in form were "merely describing the Wells family’s pseudoephedrine pill purchasing patterns as consistent with someone who was purchasing the pills to manufacture methamphetamine." What distinguished this from testimony that would violate FRE 704(b) restrictions was that considered in context, the expert's testimony left it to "the jury to draw" the conclusion that "the pattern of purchases" allowed the jury to make "the inference that Wells made the purchases with the intent to use the purchased products to manufacture methamphetamine." Wells, __ F.3d at __.

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