Divided Tenth Circuit On Gang Expert Testimony

What evidentiary challenges may be raised against gang expert testimony? A divided Tenth Circuit panel considered several evidence challenges; the majority concluded that while the evidence was not unfairly prejudicial, and the expert testimony assisted the jury, the expert impermissibly opined about the defendant's intent but "[e]ven if" FRE 704(b) was violated, it did not constitute plain error requiring reversal; the dissent strongly disagreed and would have reversed the conviction, in United States v. Archuleta, _ F.3d _ (10th Cir. Dec. 17, 2013) (No. 12-2026)

The use of gang expert testimony can raise a number of evidence issues. A divided panel of the Tenth Circuit recently considered a number of them. Ultimately, the majority affirmed the use of gang expert testimony notwithstanding a possible violation of FRE 704(b) and over a strong dissent.

Trial Proceedings: Gang Expert

Defendant Archuleta was charged with methamphetamine distribution and firearm offenses. He led a gang known as the Tortilla Flats which is affiliated with the Sureños, "a group of gangs with ties to the Mexican Mafia gang." Archuleta, _ F.3d _. Before trial, the government provided pretrial notice that it planned to call a gang expert at trial "regarding the background, structure, and identifying tattoos of the Sureños." The expert, Officer Paul Lujan, was a member of the gang unit of the Las Cruces, New Mexico Police Department. Two pretrial hearings were held. Officer Lujan testified about his background. The trial court ultimately determined that "Sureño affiliation, association, is significant in terms of the . . . conspiracy," since the defendant was alleged to be a "high-ranking member[] of the gang." The trial court held that the expert would be allowed to testify "about the Sureños, the significance of the tattoos, the Tortilla Flats thing, all of that, as it relates to the July 2[] incident." The court overruled the defense relevancy and unfair prejudice objections. Archuleta, _ F.3d at _. At trial, Officer Lujan testified:

about the Sureños’ history, colors, tattoos, structure, activities, and affiliation with the Mexican Mafia. When shown photographs of Archuleta’s tattoos, Lujan testified that those tattoos identified the person in the photographs as a member of the Tortilla Flats Sureño gang.

Archuleta, _ F.3d at _.

The expert was also asked at trial:

Q. [I]s it possible for a lower ranking soldier, depending on the circumstances, to go ahead and jump a capitán? In other words, in order to leap over him and broker the soldier’s own drug deal without capitán knowing?

A. No, there’s not. There’s no way. If something like that would happen, there would be severe penalties.

Q. Could it happen?

A. It could happen, yes. But if the higher person found out about it, again there -- the repercussions of that would come back.

Q. And if you altered it a little bit and I said, well, not just in any circumstance, but let’s say that there were two capitans [sic] in a tiny apartment and a soldier as well, do you think it would be possible in that situation for the soldier to broker a deal without the capitán knowing?

A. No, because I think the intimidation factor is there already. You have two leaders and somebody that’s lower ranking that’s not going to jump ship to go broker or something – do something on his own without approval from his superiors.

Archuleta, _ F.3d at _. After the jury convicted the defendant on most of the charges, he was sentenced to a 30 year prison term and challenged the admission of the expert testimony on appeal.

Tenth Circuit Analysis: Reviewing Multiple Evidentiary Challenges

The Tenth Circuit majority noted that since the defendant had only objected under FRE 403 at trial, his challenge to the expert testimony under FRE 702 and FRE 704(b) was reviewed for plain error.

Not Unfairly Prejudicial

The strongest evidence challenge was whether the expert gang testimony was unfairly prejudicial under FRE 403. The majority concluded that it was not.

First the evidence was probative on trial issues. The expert testimony helped explain the defendant’s “activities was relevant in explaining [defendant] Archuleta’s activities as a member and … as a Leader” the risk was low that this testimony would be misleading. In particular, the gang expert testimony was relevant since “a pillar of the defense’s case was testimony designed to negate the image of [defendant] Archuleta as a gang leader capable of commanding subordinates, and instead to paint the Tortilla Flats as ‘just a group of friends’ who only got together to ‘hang out’.” Archuleta, _ F.3d at _. The majority cited to the following older cases in support of gang evidence:

  • United States v. Brown, 200 F.3d 700, 708 (10th Cir. 1999) (gang-affiliation evidence permitted as evidence of conspiracy); United States v. Sloan, 65 F.3d 149, 151 (10th Cir. 1995) (“gang activity” evidence admitted “to prove the existence of a conspiracy and to show the basis of the relationship between the defendant and witnesses who participated in the drug distribution operation”)
  • United States v. Robinson, 978 F.2d 1554, 1564 (10th Cir. 1992) (gang-expert testimony admitted because “associational evidence may be directly relevant on the issues of formation, agreement and purpose of a conspiracy”)
  • United States v. Silverstein, 737 F.2d 864, 866 (10th Cir. 1984) (gang-affiliation testimony admitted showing the defendant was affiliated with the Aryan Brotherhood))

The expert testimony “drive-by shootings, kidnappings, and stabbings allegedly committed by unnamed Sureños, and to the general crime wave in Las Cruces the gang had caused” was not unfairly prejudicial when compared with other information provided during the defendant’s own testimony. Archuleta, _ F.3d at _ (citing United States v. Irving, 665 F.3d 1184, 1213-14 (10th Cir. 2011) (unfairly prejudicial evidence must "provoke[] an emotional response in the jury or otherwise tends to affect adversely the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocen[c]e of the crime charged") (citation and quotation marks omitted)).

The majority rejected the defense claim that the expert testimony was not cumulative of a cooperating witness’s trial testimony describing the gang’s “tattoos, structure, and purpose” and the defendant’s involvement. While portions of the expert testimony "covered some of the same ground," the expert also "provide[d] more detail" on other subjects including the "origins and history" of the gang. The majority decided the expert "testimony was not a total repeat" of the cooperating witness testimony. Archuleta, _ F.3d at _.

Finally, the majority concluded that any error in admitting the expert testimony under FRE 403 was harmless since “independent evidence of both the gang’s activities and [defendant] Archuleta’s involvement in the gang was overwhelming.” Archuleta, _ F.3d at _ (citing United States v. Resendiz-Patino, 420 F.3d 1177, 1181 (10th Cir. 2005) (“A harmless error is one that does not have a substantial influence on the outcome of the trial; nor does it leave one in grave doubt as to whether it had such effect.”))

Expert Testimony Assisting The Jury

The majority dispatched the defense claim that expert testimony was not necessary to assist the jury. Specifically, the "average juror" is not aware of information concerning "the structure, purpose, and activities of the Sureños." Archuleta, _ F.3d at _ (citing United States v. Garcia, 635 F.3d 472, 477 (10th Cir. 2011) (affirming admission of expert testimony about firearm straw purchases because “[t]he average juror is as likely to be unaware of the dynamics of the illicit arms trade as of the trade in narcotics”); 29 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure: Evidence § 6265, at 250 (1997) (“[T]he ‘assist’ requirement is satisfied where expert testimony advances the trier of fact’s understanding to any degree.”)).

As the circuit concluded:

At bottom, [defendant] Archuleta simply fails to explain how relevant evidence, which no other witness covered, was unhelpful to the jury’s understanding of the implications of his membership in the Tortilla Flats. When Rule 702 is applied in the context of this trial, the district court did not commit plain error in admitting [expert] Lujan’s testimony to assist the jury in understanding the operation of a Sureño gang.

Archuleta, _ F.3d at _.

Likely Impermissible Testimony On The Defendant's Intent

Under FRE 704(b), an expert is barred from "stat[ing] 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." Specifically, the defense claimed that the expert testimony (highlighted above) allowed the government to accomplish "indirectly what it was prohibited from doing directly” as "the government cloaked in hypothetical the question of whether Archuleta had knowledge of the drug-smuggling

The majority agreed with the defendant that the expert's:

response to the hypothetical question posed probably crossed that line. The 'altered' second hypothetical involved the same facts as in Archuleta’s case, and directly posed the question of whether a person in Archuleta’s position could lack the requisite mens rea. [Expert] Lujan definitively answered 'No.' [¶] Even if Lujan’s testimony violated Rule 704(b), however, Archuleta cannot demonstrate plain error.

Archuleta, _ F.3d at _. Accordingly, the defendant's conviction was affirmed.


Senior Circuit Judge William J. Holloway, Jr. dissented. As he summarized:

My firm belief that the district court erred in admitting significant portions of Officer Paul Lujan’s “gang expert” testimony compels me to dissent. Much of the challenged testimony was irrelevant and inflammatory. It misled the jury. It prejudiced Mr. Archuleta’s defense. And it had no place at trial—at least not in a fair one. Today’s majority now compounds the district court’s errors by accepting the violations of the Federal Rules of Evidence.

Archuleta, _ F.3d at _ (dissent).


The Archuleta highlights a plethora of evidentiary challenges that may arise to gang expert testimony, including relevance, unfair prejudice, whether expert testimony is necessary, and whether any expert testimony impermissibly opines on the defendant's intent. The first three issues turn on linking the facts of the case to contested issues. Interestingly, a far amount of the gang evidence was admitted through a cooperating witness, not an expert. However, there were areas that the expert was able to cover that the cooperating witness did not. The last issue, whether the line under FRE 704(b) was crossed, really turns on the questions asked and on testimony commenting on the defendant's intent. The expert may make fair inferences based on the facts but the jury gets to decide the ultimate issue on the defendant's intent.

For more on gang evidence, see prior blog posts in Federal Evidence Blog.


Photo Description: The Byron White United States Courthouse Building, Tenth Circuit Court of Appeals, Denver, CO. Learn more about the history of the courthouse or former Justice Byron R. White, including in a speech by retired Justice John Paul Stevens.


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