Second Circuit highlights two important issues concerning law enforcement testimony: first, an officer may not provide lay testimony that is based upon "specialized training and experience"; and second, expert opinion testimony is not permitted on the defendant's intent, in United States v. Haynes, _ F.3d _ (2d Cir. Sept. 5, 2013) (No. 12–626–cr)
Two trial errors involving expert testimony recently contributed to a reversal and new trial in a drug conviction in the Second Circuit. The first error involved application of lay opinion testimony under FRE 701(c) which does not permit opinion "based on scientific, technical, or other specialized knowledge within the scope of Rule 702." The second improper admission concerned the prohibition under FRE 704(b) against expert opinion on "whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged" which is left "for the trier of fact alone." Based on these and other trial errors, a new trial was ordered.
Trial Court Proceedings
Defendant Haynes was prosecuted for the importation and possession with the intent to distribute methamphetamine after she was found with “approximately 70,000 pills weighing approximately 49.4 pounds wrapped in plastic and stuffed tightly in the rental car’s gas tank” while driving into New York from Canada. The central issue at trial was whether she was a “drug courier” with knowledge of the methamphetamine, as the government argued, or simply a “blind mule” lacking knowledge about the drugs in the rental car, as the defense contended. During trial, a Customs and Border Protection Officer testified that the fuel tank light indicated an empty gas tank when there were about four to five gallons in the car. The officer explained:
On the outside of this cylinder, there’s a float and that’s –- the float is what shows that the gas level, so as the float goes down, the gas level in the vehicle obviously goes down. So, when the drugs were placed and the float was pushed to the bottom, drugs holding that to the bottom would always read zero kilometers to empty. That would always be on empty.
He added that the empty level would be displayed “[f]or as long as those drugs were in the vehicle.” Haynes, _ F.3d at _. The officer acknowledged that he “had ‘looked in the gas tank prior to this’ and that the fuel light had been on throughout his investigation” and “he had not attended ‘mechanic school’”.
On a second issue, during rebuttal, the government recalled a special agent to testify as an expert to “point out the flaws in a blind mule scenario” presented by the defense. As he explained:
With the blind mule . . . the person’s going to be unwitting, not know that there’s anything going on with the load. So in this case, after reviewing the case, in my opinion the defendant realized, especially with inconsistency in the [defendant’s] statements, the strong odor of gasoline, the fuel light and also masking agents to keep it. Again, an organization wants it blind. They can’t have people know that there is a load or that there [are] narcotics in the vehicle.
Haynes, _ F.3d at _. After the jury convicted the defendant, she contested the admission of the fuel tank testimony as inadmissible lay opinion under FRE 701 since it “was based on specialized knowledge” and “not rationally based on” his “perceptions” which deprived her of the chance “to present a rebuttal expert or to prepare to cross-examine” on “the technical subject of how the fuel tank operates.” She also challenged the rebuttal expert testimony as providing an opinion on her intent which is barred by FRE 704(b).
Circuit Analysis: Impermissible Lay Testimony Based On "Specialized Training And Experience"
On the gas tank testimony, the circuit concluded that it was the product of “specialize training and experience” and not lay testimony. One purpose of FRE 701 was to avoid “conflating expert and lay opinion testimony thereby conferring an aura of expertise on a witness without satisfying the reliability standard for expert testimony set forth in Rule 702 and the pre-trial disclosure requirements set forth in Fed. R. Crim. P. 16 . . . .” Haynes, _ F.3d at _ (quoting United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005)). The law enforcement official could not provide lay opinion testimony which was since his “reasoning process depended, in whole or in part, on [the officer’s] specialized training and experience.” Garcia, 413 F.3d at 216. The circuit explained the error in admitting this testimony:
Officer Rabideau’s testimony was improperly admitted over the 690 defendant’s objection because his opinion was based on specialized training and 691 experience. Officer Rabideau did more than simply describe what he found in the gas tank and what he perceived. He described how the float on the outside of the gas tank worked and why the gas gauge would have registered zero to empty while the drugs were in the gas tank. As the Government concedes, this testimony was based on knowledge that Officer Rabideau acquired inspecting other cars at the border. That he did not attend “mechanic school” does not render his testimony admissible under Federal Rule of Evidence 701. Officer Rabideau acquired his knowledge of how a fuel tank operates through his experience as a border agent inspecting vehicles, not through the reasoning processes of the average person. Therefore, the admission of this testimony was error.
Haynes, _ F.3d at _.
Circuit Analysis: Improper Expert Testimony On The Defendant's Intent
The Second Circuit also concluded that the agent's expert testimony violated teh FRE 704(b) bar against expert opinion on the defendant's intent. As the circuit commented:
Agent Linstad’s testimony regarding whether the defendant “realized” that there were drugs in the car was erroneously admitted because it is expert testimony about the defendant’s state of mind. Indeed, whether the defendant “realized” that there were drugs in the car was the key issue in this case. Moreover, Agent Linstad used the opportunity to summarize some of the Government’s evidence as to why the defendant must have known that she was transporting drugs, which included the defendant’s inconsistent statements, the strong odor of gasoline, the fuel light, and the presence of masking agents. The Court had previously warned the parties that it would not permit such testimony about the defendant’s knowledge, but when it was actually introduced, the Court erroneously failed to strike it.
Haynes, _ F.3d at _ (citing United States v. DiDomenico, 985 F.2d 1159, 1164-65 (2d Cir. 1993) (noting FRE 704(b) “disables even an expert from expressly stating the final conclusion or inference as to a defendant’s actual mental state at the time of a crime” as it “poses a uniquely heightened danger of intruding on the jury’s function”) (internal quotation marks and citations omitted)).
The Haynes case focuses on two areas involving law enforcement expert testimony. The first challenge was inadmissible as lay opinion testimony but there was no dispute it could have been offered as expert testimony if proper pretrial notice had been provided. The second error was simply impermissible and could have been avoided by either more careful questioning and responses. These two errors were not the only ones in the case. See also Premature Jury Deliberations. The Second Circuit concluded that the combination of these and other errors required the conviction to be vacated and the case remanded for a new trial.
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