Seventh Circuit Assessment Of Lay Opinion On Use Of Code In Other Than Drug Transactions

In trial for bribery of a local government agency, testimony of the informant “expediter” about the meaning of defendant's words in a recorded conversation with her was admissible as lay opinion testimony under FRE 701 because the evidence was proffered for what the informant thought the defendant's words meant in his recorded conversation with her, rather than what the defendant actually meant, even though this testimony implied what the witness's opinion was of what the defendant's words meant, in United States v. Curescu, 674 F.3d 735 (7th Cir. March 21, 2012) (Nos. 10–3698, 11–2707)

Is lay testimony under FRE 701, or expert testimony under FRE 702, admissible regarding the meaning of alleged “coded” statements made by perpetrators of a charged crime? This issue frequently arises in drug crime cases, where courts have allowed both types of testimony. Both rules share a common criterion for the witness's opinion. Under FRE 701(b) this is the requirement that the witness's opinion be “helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.” In contrast, FRE 702(a) embodies this same criterion in the rule's requirement that the admitted expert opinion would “assist the trier of fact to understand the evidence or determine a fact in issue.” Is there much difference between how these rules operate with regard to drug crimes that occurs with non-drug offenses? In a recent case, the Seventh Circuit examined the nature of a witness's testimony about the meaning of her alleged “coded” conversation with the defendant. The circuit distinguished how this type of testimony is different in kind, though not in type, between drug crimes and other charged non-drug related criminal conduct.

In the case, the defendant was tried for bribery of a local Chicago city agency that received federal assistance. The key witness against the defendant was an “expediter” that the defendant had hired. This was a person who assisted developers and contractors “obtain construction permits from the city.” At the time the defendant had hired the expediter, she had agreed to acting as an informant. The defendant hired for the expediter regarding at least two illegal projects, specifically paying her $12,500 for her help in bribing a building inspector to falsely certify that the defendant's building complied with the zoning code. This enabled the defendant to use two residential units to the basement of a building which otherwise would have required the defendant obtain a variance or amendment of the building code. Curescu, 674 F.3d at 737.

At defendant's trial, the court admitted testimony by informant about what she understood him to be telling her in conversations that had also been recorded by law enforcement. The court allowed the informant's testimony of her understanding of the defendant's statements to her, such as that:

[W]hen he [defendant] said “five and five and two,” he meant that “he wanted to pay [a maximum of] $5000 per illegal dwelling unit as a bribe,” the “two” referring to additional expense she would have to incur to obtain permission for him to add the two units, though in the end she asked for and received $2,500 for that expense. (The question what her compensation would be seems to have been left open. * * * Another example is her testimony that when Curescu said “I'll go to what's necessary, but, you know, I don't need to be strangled,” she understood him to mean that “he would pay the bribe payment, but he didn't want it to be extremely high.”
Curescu, 674 F.3d at 739. The jury convicted the defendant and on appeal he argued that it had been improper for the witness to testify about “what another person was thinking.”

The circuit rejected the defendant's reasoning, noting that receipt of lay opinion on the use or meaning of a code was “unexceptional.” FRE 701 specifically allowed admission of a witness's opinion, since “one can't actually read another person's mind, one is often able to infer, from what the person says or from the expression on his face or other body language, what he is thinking.” In the defendant's case this occurred because the informant's testimony was directed “not to what [defendant] Curescu actually meant but to what she understood him to mean, which was probative of what he meant but was based entirely on her mental processes rather than his. Such testimony is unexceptionable, even though it implies an opinion about what the speaker was thinking, since such lay opinion testimony is itself, as we said, permissible. “ Curescu, 674 F.3d at 740 (citing United States v. Wantuch, 525 F.3d at 515; United States v. Estrada, 39 F.3d 772, 772–73 (7th Cir. 1994) (per curiam).

As explained by the circuit, there was substantial case authority, just as in the admission of expert testimony about coded language, for admitting lay opinion testimony about coded language. The opinion testimony could be both logical and probative:

The testimony about what [informant] Romasanta understood Curescu to be referring to was important. Just as dealers in illegal drugs do not name the drugs in their phone conversations but instead use code words, so parties to other illegal transactions often avoid incriminating terms, knowing they may be overheard electronically. So if they're involved in bribery, they don't use the words “bribery,” “bribe,” or “bribes,” but instead use words that the other party to the conversation understands to refer to bribes—without that understanding there would be a failure of communication.

Anyone who's overheard conversations on the street or in a restaurant knows that conversations between strangers are often unintelligible. There is the public language we employ when talking to strangers and the elliptical private language that we use when talking to people whom we know. Strangers need an interpreter, and a party to the conversation is the obvious choice to be that interpreter. There is no difference between using a private language for the sake of brevity and using it to conceal meaning from strangers—or the authorities. Curescu might as well be arguing that a translator can't testify to the meaning of a statement in a foreign language.
Curescu, 674 F.3d at 740 (citing United States v. Maloney , 71 F.3d 645, 662 (7th Cir. 1995); United States v. Murphy , 768 F.2d 1518, 1535 (7th Cir. 1985); United States v. Page , 808 F.2d 723, 726 (10th Cir. 1987); United States v. Tamura , 694 F.2d 591, 597 (9th Cir. 1982)).

The court in Curescu provided the underlying rationale of admitting testimony about codes as lay testimony even in non-drug cases. The case's logic regarding the admissibility of testimony as to the meaning of code, jargon or other conventions of communication, indicated why expertise is not the only basis for admitting opinion testimony as to the perpetrator's meaning is in using certain expressions in a particular criminal setting.


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