Circuit Considers FRE 704(b) Limit On Expert Intent Testimony

In trial for possessing with intent to distribute cocaine base (crack), admitting detective’s drug distribution technique expert testimony on the mental state of a possessor of the amount of drugs found in defendant’s possession because the witness did not directly testify about the defendant’s intent to distribute, leaving it to the jury to infer from all the facts of the case; but even if this testimony was an error as testimony about the defendant’s criminal intent under FRE 704(b), it was harmless in light of the overwhelming evidence of guilt, in United States v. Parish, 606 F.3d 480 (8th Cir. May 24, 2010) (No. 08-3421)

FRE 704 provides that an expert witness “testifying with respect to the mental state or condition of a defendant in a criminal case” may not state an opinion “as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged.” Often this rule is misread as a general prohibition on intent testimony by the expert, ignoring the explicit limit the rule describes that the bar concerns on whether a defendant “did or did not” possess a particular mental state that happens to be an element of the charged crime. See, e.g., United States v. Chube, 538 F.3d 693, 700 (7th Cir. 2008) (In unlawful distribution of controlled substances case, no error under FRE 704(b) in admitting expert’s testimony that charged prescriptions fell outside the scope of medical practice and that a doctor “knew or should have known” that harm was being done by writing the prescription because this testimony was “phrased in general terms” that did not “refer directly” to the defendants). In a recent case, the Eighth Circuit examined this narrow limit – noting that the rule does not bar expert testimony on an issue of criminal intent if that testimony only suggests an inference or indirectly supports a conclusion regarding the defendant’s criminal intent.

In the case, defendant Parish was arrested resisting arrest at the location of a preempted controlled-buy that had been arranged for him by a confidential informant. Included in the evidence produced against the defendant, during his trial for possessing with intent to distribute cocaine base (crack) that had been found in his vehicle, was testimony from two law-enforcement witnesses: “Margaret Owens (a forensic drug chemist who testified that the substance seized from Parish’s car was 11.74 grams of cocaine base or crack cocaine), and Detective Michael Bradley (a detective assigned to the Drug Enforcement Administration Task Force who testified as to the ‘street value’ of the drugs found in Parish’s car, that the quantity of crack cocaine was a distribution as opposed to a user amount, and that the other items found in the car (a scale and a firearm) were consistent with items possessed by drug dealers).” The focus of the appeal on this issue was the following exchange during the detective’s direct examination:

“During the trial, the Government asked Detective Bradley:

‘Based on your years of experience in narcotics law enforcement and in being involved in undercover purchases and sales of crack cocaine, and in talking about defendants and confidential informants, and based on your own individual review of [the crack cocaine], are you able to form an opinion as to whether just based on that amount,[the crack cocaine] would have been intended for distribution or personal use?’

Detective Bradley responded, ‘I believe it would be intended for distribution.‘”

Parish, 606 F.3d at 491.

The defendant failed to object to this question at trial and on appeal of his conviction contended that the court plainly erred in allowing the detective to “impermissibly testify regarding Parish’s mental state.” The circuit noted that among the elements the government had to prove to convict the defendant was that he “knowingly or intentionally” possessed a controlled substance with the intent to distribute it. See 18 U.S.C. § 841(a).

The defendant contended that the detective’s testimony (quoted above) suggested that the drugs in defendant’s car he “intended for distribution,” thereby violating FRE 704(b). FRE 704(b) (“No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged.”) The circuit noted that the government’s response to this argument was that the detective’s “testimony concerned the amount” of drugs found and that “he did not directly testify to Parish’s intent, although the jury was free to infer the ultimate conclusion” from the opinion the expert proffered. Parish, 606 F.3d at 491.

The circuit declined to resolve the issue, although it cited sources that suggested that no error occurred. “Even if we assume that the district court committed plain error by allowing Detective Bradley to testify that he believed the amount would have been intended for distribution,” admitted the circuit, on a plain error standard of review, the defendant failed “to establish that the error affected the outcome of the case.” Therefore even if there had been an error under FRE 704(b), it was harmless. The circuit’s assessment of the likelihood of an error was grim for the defendant as it pointed out:

“Even without Detective Bradley’s testimony regarding whether the amount was an amount intended for distribution, the lack of drug user paraphernalia and the presence of the loaded firearm and the electronic scale [found in the defendant’s car along with the crack] all support the conclusion that the drugs were intended for distribution, rather than for Parish’s personal use.”

Parish, 606 F.3d at 491 (citing United States v. Booker, 576 F.3d 506, 509 (8th Cir. 2009) (noting that the “absence at the scene of arrest of any paraphernalia required to smoke crack cocaine” supported the contention that the defendant intended to distribute the crack cocaine rather than use it personally), cert. denied, 78 U.S.L.W. 3320 (U.S. Nov. 30, 2009); United States v. Goodman, 509 F.3d 872, 876-77 (8th Cir. 2007) (noting that the presence of a scale and a firearm are associated with the distribution of narcotics)).

The Eighth Circuit’s determination in Parish, while based on a harmless error analysis, still suggests that FRE 704(b) does not stand in the way of experts opining about observed patterns of drug use and distribution, even if the expert’s opinion would provide information that might convince the factfinder that under the facts developed in the case that the defendant had the required criminal intent beyond a reasonable doubt. For other recent examples of this, consider:

  • United States v. Morris, 576 F.3d 661, 673–74 (7th Cir. 2009) (FRE 704(b) not violated by expert testimony that 23.7 grams of heroin was “consistent with distribution quantity” – this was general observation on possession patterns observed in the field and not a direct comment on the defendant’s criminal intent)
  • United States v. Blount, 502 F.3d 674, 679 (7th Cir. 2007) (no error under FRE 704(b) for expert to testify in a case of firearms used in furtherance of drug activities about the link of drugs and firearms because jurors would not interpret the expert’s opinion as employing any “special personal knowledge” of the defendant, rather than helping the jury infer or translate the defendant’s motives for having a weapon from the presence of drugs)


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