Under Seal v. US: Officers responded to a domestic dispute 911 call at the home occupied by Doe, Doe Jr., and Doe's wife. As a result, they uncovered a large stash of firearms and marijuana, which prompted a federal grand jury to investigate. The Government subpoenaed Doe Jr. to testify before a grand jury about the ownership of the guns and drugs. By that time, Doe Jr.'s parents had separated and he was living with Doe, on whom he was largely dependent financially. Doe Jr. sought to quash the subpoena, invoking a "parent child privilege," arguing that forcing him to testify against his father would irreparably harm their relationship. The district court granted the request and quashed the subpoena.
On appeal, the Fourth Circuit reversed. Although a few district courts have recognized such a privilege, the court noted that every court of appeals (including the Fourth Circuit) to address the issue has rejected it. However, the court found earlier Fourth Circuit cases had not created a "blanket rejection" of the privilege. Nonetheless, the court concluded it was not proper to create one in this case. Doe, Jr. was an adult and admitted that his father would not "cut him off" if he testified against him. In addition, Doe Jr.'s testimony, according to the Government, might not even wind up implicating his father. As a result, Doe Jr. had not shown that recognizing the privilege would promote sufficient important interests that outweigh the need for probative evidence.
Thursday, June 19, 2014
NC "Breaking or Entering" Conviction is Crime of Violence Under ACCA
US v. Mungro: Mungro was convicted of being a felon in possession of a firearm. He was sentenced as an Armed Career Criminal based (in part) on prior North Carolina convictions for "breaking or entering." The district court concluded that those were "violent felonies" under ACCA because they met the generic definition of burglary set out by the Supreme Court.
On appeal, the Fourth Circuit affirmed. It concluded that, although the statutory language in North Carolina would appear to make "breaking or entering" much broader than the traditional burglary identified by the Supreme Court, state courts had narrowed the language to reflect preexisting North Carolina common law that required the state to prove the defendant was acting without the consent of the building owner.
On appeal, the Fourth Circuit affirmed. It concluded that, although the statutory language in North Carolina would appear to make "breaking or entering" much broader than the traditional burglary identified by the Supreme Court, state courts had narrowed the language to reflect preexisting North Carolina common law that required the state to prove the defendant was acting without the consent of the building owner.
Search "Fatally Tainted" By Officer's Incorrect Statement of Probable Cause
US v. Saafir: Saafir was pulled over in a residential area for speeding and excessively tinted windows. During the stop, Saafir admitted that his license had been revoked, a fact confirmed by the officer. The officer also retrieved information that suggested Saafir was armed and dangerous, a flight risk, and had a significant criminal record. When the officer ordered Saafir out of the car, he saw a flask "commonly used to carry alcohol" in the driver's door map pocket. Saafir consented to a patdown (which uncovered nothing), but refused consent to search the car, which was not his. The officer stated that he had probable cause to believe Saafir was violating a North Carolina law prohibiting the carrying of alcohol in "other than . . . the opened manufacturer's original container," based on the flask. With that said, Saafir told the officer there "might" be a gun in the vehicle. A gun was found and Saafir was charged with being a felon in possession of a firearm. He moved to suppress the gun, but the motion was denied. He entered a conditional guilty plea.
On appeal, the Fourth Circuit reversed, finding that the only basis for probable cause to search the car - that Saafir admitted there "might" be a gun inside - came after the officer incorrectly stated he had probable cause to search the car. The officer's incorrect assertion that the flask (which was never shown to contain anything, much less alcohol) provided probable cause "fatally taints the search of the car."
Congrats to the MDNC Defender Office on the win!
On appeal, the Fourth Circuit reversed, finding that the only basis for probable cause to search the car - that Saafir admitted there "might" be a gun inside - came after the officer incorrectly stated he had probable cause to search the car. The officer's incorrect assertion that the flask (which was never shown to contain anything, much less alcohol) provided probable cause "fatally taints the search of the car."
Congrats to the MDNC Defender Office on the win!
Second 2255 Isn't "Second or Successive" After Prior Conviction Vacated
US v. Hariston: Hairston was convicted in 2003 of a drug conspiracy charge. His sentence was based on a Criminal History Category IV, which was calculated including a prior North Carolina traffic offense that occurred during a time in which, Hairston claimed, he wasn't in North Carolina. He subsequently filed a 2255 that was denied. He also filed a motion in North Carolina court to have that conviction set aside. That motion was granted, in 2011. Shortly thereafter, Hairston filed a new 2255, seeking a resentencing based on a CHC III. The district court dismissed the motion as an unauthorized second or successive motion.
On appeal, the Fourth Circuit reversed. First, the court rejected the Government's argument that Hairston had waived his right to challenge the prior conviction via his plea agreement because, ironically, the Government had failed to raise that argument at the informal briefing stage. In other words, the Government waived its waiver argument (ha!). Next, the court concluded that Hairston's second 2255 was not "second or successive" because it was based on facts that weren't available to him when he filed his initial 2255.
On appeal, the Fourth Circuit reversed. First, the court rejected the Government's argument that Hairston had waived his right to challenge the prior conviction via his plea agreement because, ironically, the Government had failed to raise that argument at the informal briefing stage. In other words, the Government waived its waiver argument (ha!). Next, the court concluded that Hairston's second 2255 was not "second or successive" because it was based on facts that weren't available to him when he filed his initial 2255.
Tuesday, June 10, 2014
Some Convictions Vacated, But Sentence Still Stands
US v. Barefoot: In 2002, Barefoot pleaded guilty to possessing a firearm while under a domestic violence protective order after he was found in possession of scores of guns and explosives and a pair of Kinestik "binary explosive cartridges" were found in his son's possession. As part of the plea agreement, the Government agreed not to prosecute him for "conduct constituting the basis for the Indictment" or to use statements made during debriefing in future proceedings not involving "crimes of violence." Barefoot gave a lengthy debriefing in which he (among other things) admitted obtaining the Kinestik charges and being involved with the murder of a fellow KKK member who was believed to be an informant.
After being finishing his sentence on the 2002 charge, Barefoot was charged in state court with involvement in the informant's murder. He was also charged with a new six-count federal indictment with: (1) conspiracy to possess stolen firearms; (2) possession of stolen firearms; (3) solicitation to arson involving a local courthouse that also contained a VA office; (4) receiving explosives, that is the Kinestik charges; (5) improper storage of explosive materials (a misdemeanor); and (6) distributing explosive materials to a person under 21 years of age. He went to trial and was convicted on all charges. He was sentenced to 60 months on Count 1, a consecutive 120-month term on the other felony charges (to be run concurrently with each other), and a 12-month sentence on the misdemeanor, to run concurrently with the other imposed sentences.
Barefoot challenged his convictions and sentences on multiple grounds. The Fourth Circuit reversed two of his convictions, but affirmed the others as well as his sentence. First, it concluded that the district court did not abuse its discretion by denying Barefoot's request that he represent himself at trial due to concerns about his ability to do so given previous concerns about his competency. Second, it concluded that evidence about Barefoot's involvement with the informant's murder was admissible under FRE 404(b) to show the animosity between him and the sheriff whose office was in the courthouse that would have been bombed. Third, the court found there was sufficient evidence to convict Barefoot on Counts 3 and 4. On Counts 5 and 6, the court concluded that they were not "crimes of violence" and therefore the plea agreement immunized Barefoot from being subject to those charges. Therefore, the court vacated those convictions. However, the court concluded (after concluding that the district court correctly grouped the various offenses), that the vacation of those charges "had no material effect on his sentence" and therefore declined to order a remand for resentencing.
After being finishing his sentence on the 2002 charge, Barefoot was charged in state court with involvement in the informant's murder. He was also charged with a new six-count federal indictment with: (1) conspiracy to possess stolen firearms; (2) possession of stolen firearms; (3) solicitation to arson involving a local courthouse that also contained a VA office; (4) receiving explosives, that is the Kinestik charges; (5) improper storage of explosive materials (a misdemeanor); and (6) distributing explosive materials to a person under 21 years of age. He went to trial and was convicted on all charges. He was sentenced to 60 months on Count 1, a consecutive 120-month term on the other felony charges (to be run concurrently with each other), and a 12-month sentence on the misdemeanor, to run concurrently with the other imposed sentences.
Barefoot challenged his convictions and sentences on multiple grounds. The Fourth Circuit reversed two of his convictions, but affirmed the others as well as his sentence. First, it concluded that the district court did not abuse its discretion by denying Barefoot's request that he represent himself at trial due to concerns about his ability to do so given previous concerns about his competency. Second, it concluded that evidence about Barefoot's involvement with the informant's murder was admissible under FRE 404(b) to show the animosity between him and the sheriff whose office was in the courthouse that would have been bombed. Third, the court found there was sufficient evidence to convict Barefoot on Counts 3 and 4. On Counts 5 and 6, the court concluded that they were not "crimes of violence" and therefore the plea agreement immunized Barefoot from being subject to those charges. Therefore, the court vacated those convictions. However, the court concluded (after concluding that the district court correctly grouped the various offenses), that the vacation of those charges "had no material effect on his sentence" and therefore declined to order a remand for resentencing.
Monday, June 09, 2014
Robberies of Marijuana Dealers Trigger Hobbs Act Liability
US v. Taylor: Taylor was part of a group that planned to rob drug dealers. The only problem (well, the first problem) is that the people they targeted for robberies didn't really have much to take. During a first robbery, they made off with $40, some jewelry, two cell phones, and a joint. During the second, they managed only a cell phone. Both robberies involved pistol whipping, groping, and holding a six-year old at gunpoint. Taylor was charged with two counts of robbery under the Hobbs Act and two counts of using a firearm in furtherance of a crime of violence. After a first trial ended in a mistrial, the Government successfully precluded Taylor from offering evidence that the drugs involved in the robberies was marijuana that was grown in the same state, and thus did not affect interstate commerce. Taylor was convicted on all counts, save one of the gun counts, and sentenced to 336 months in prison.
On appeal, Taylor argued that there was insufficient evidence that the robberies affected interstate commerce and that he should have been allowed to put on evidence of the marijuana's in-state origin. The Fourth Circuit rejected both those arguments and affirmed. First, it concluded that there was sufficient evidence that the targets of the robberies were drug dealers and that Taylor "depleted or attempted to deplete" their assets during the robberies. In addition, the items taken during the robberies, while not of significant value, were enough "to meet the de minimis standard under the depletion-of-assets theory." Second, it concluded that the district court did not abuse its discretion by limiting the evidence Taylor could present about the source of the marijuana.
On appeal, Taylor argued that there was insufficient evidence that the robberies affected interstate commerce and that he should have been allowed to put on evidence of the marijuana's in-state origin. The Fourth Circuit rejected both those arguments and affirmed. First, it concluded that there was sufficient evidence that the targets of the robberies were drug dealers and that Taylor "depleted or attempted to deplete" their assets during the robberies. In addition, the items taken during the robberies, while not of significant value, were enough "to meet the de minimis standard under the depletion-of-assets theory." Second, it concluded that the district court did not abuse its discretion by limiting the evidence Taylor could present about the source of the marijuana.
185-month Sentence Affirmed for Fake CPA
US v. Weiss: Weiss ran a "professional employer organization" for ten years in North Carolina, providing "human resource functions, including payroll processing, for companies through employee leasing agreements." During that time, he falsely held himself out to be a CPA. Over that time, he pocketed funds from companies that should have been paid to the IRS, state tax authorities, and workers' compensation insurance companies. All told, Weiss diverted to his own use nearly $5 million. He also filed false personal income tax returns, underpaying more than $1 million in taxes. He also used false tax returns to secure bank loans to finance the construction of a new home. Finally, he filed false insurance claims for jewelry he had reported stolen, but were recovered in his home pursuant to a search by law enforcement. For all his trouble, Weiss pleaded guilty to charges of wire fraud, money laundering, making false loan statements, and tax evasion. He was sentenced to 185 months in prison.
Weiss challenged his sentence on appeal, arguing it was procedurally unreasonable for several reasons, all of which Fourth Circuit rejected. First, the court upheld the imposition of a two-level enhancement for abuse of a position of trust, concluding that Weiss's holding himself out as a CPA, even if he was not acting as an accountant for his victims, nonetheless aided his scheme because it led the victims to reasonable believe he had a special skill that would aid his job performance. Second, the court upheld the loss calculation, concluding that the district court correctly included the amount Weiss obtained by not accurately reporting his taxed with the loss amounts from the other schemes. Finally, the court concluded that the failure of the district court to sua sponte appoint experts to assist in his defense at sentencing was, at the very least, not plain error, if it was error at all.
Weiss challenged his sentence on appeal, arguing it was procedurally unreasonable for several reasons, all of which Fourth Circuit rejected. First, the court upheld the imposition of a two-level enhancement for abuse of a position of trust, concluding that Weiss's holding himself out as a CPA, even if he was not acting as an accountant for his victims, nonetheless aided his scheme because it led the victims to reasonable believe he had a special skill that would aid his job performance. Second, the court upheld the loss calculation, concluding that the district court correctly included the amount Weiss obtained by not accurately reporting his taxed with the loss amounts from the other schemes. Finally, the court concluded that the failure of the district court to sua sponte appoint experts to assist in his defense at sentencing was, at the very least, not plain error, if it was error at all.
Friday, June 06, 2014
When a Burglary Is Not a Crime of Violence
US v. Martin: This is yet again another case that wades into the murky waters of figuring out whether a prior conviction is a "crime of violence" or not. Martin pleaded guilty to being a felon in possession of a firearm, with two prior convictions. One, everyone agreed, was a crime of violence and made his base offense level at least 20. The Government argued that the other, a 2009 conviction in Maryland for fourth-degree burglary, was, too, and bumped Martin's base offense level to 24. The district court agreed and sentenced Martin to the bottom of the resulting Guideline range.
On appeal, a divided Fourth Circuit reversed, concluding that the 2009 conviction was not a crime of violence. The court first noted that the Maryland conviction did not have an element involving physical force. It also concluded that it was not a "burglary of a dwelling," even though a dwelling was involved, because it did not match the generic elements of burglary set out by the Supreme Court because it did not require the intent to commit a crime when making the unlawful entry. Therefore, the court moved on to the inquiry of whether the 2009 conviction "otherwise involves conduct that presents a serious potential risk of physical injury to another." Which is where it got complicated.
The court first looked to the Supreme Court's decision in Begay (2008), which emphasized the need to analyze the conviction in question to determine whether it was similar in kind as well as the degree of risk posed by the enumerated offenses. However, it noted that the Supreme Court in Sykes (2011) emphasized the degree of risk analysis over all else. Martin argued Begay's two-step analysis applied, while the Government argued that Sykes limited the two-step analysis to only crimes that were akin to strict liability offenses. Noting that, while some Circuits have gone the route urged by the Government, the Fourth Circuit has continued to employ Begay will full force, the court proceeded to the two-step analysis. Ultimately, it concluded that the 2009 conviction posed a similar degree of risk to generic burglary, but lacked the "purposeful" conduct of the enumerated offenses. Therefore, the offence of fourth-degree burglary in Maryland is not a crime of violence for career offender purposes.
Judge Diaz concurred, explaining that if he was "writing on a cleaner slate," he would have ended the analysis after concluding that the 2009 offense posed a similar risk to generic burglary. District Judge O'Grady dissented, arguing that the post-Sykes law in the Fourth Circuit is not so definitive and that only the degree of risk analysis is needed. Nevertheless, he goes on to argue that even under the Begay two-step approach, the 2009 conviction is a crime of violence.
Notably, both Diaz and O'Grady point out that next term the Supreme Court will again return to this issue (in an ACCA case involving a sawed-off shotgun) and, perhaps, provide some more clarity in this area.
On appeal, a divided Fourth Circuit reversed, concluding that the 2009 conviction was not a crime of violence. The court first noted that the Maryland conviction did not have an element involving physical force. It also concluded that it was not a "burglary of a dwelling," even though a dwelling was involved, because it did not match the generic elements of burglary set out by the Supreme Court because it did not require the intent to commit a crime when making the unlawful entry. Therefore, the court moved on to the inquiry of whether the 2009 conviction "otherwise involves conduct that presents a serious potential risk of physical injury to another." Which is where it got complicated.
The court first looked to the Supreme Court's decision in Begay (2008), which emphasized the need to analyze the conviction in question to determine whether it was similar in kind as well as the degree of risk posed by the enumerated offenses. However, it noted that the Supreme Court in Sykes (2011) emphasized the degree of risk analysis over all else. Martin argued Begay's two-step analysis applied, while the Government argued that Sykes limited the two-step analysis to only crimes that were akin to strict liability offenses. Noting that, while some Circuits have gone the route urged by the Government, the Fourth Circuit has continued to employ Begay will full force, the court proceeded to the two-step analysis. Ultimately, it concluded that the 2009 conviction posed a similar degree of risk to generic burglary, but lacked the "purposeful" conduct of the enumerated offenses. Therefore, the offence of fourth-degree burglary in Maryland is not a crime of violence for career offender purposes.
Judge Diaz concurred, explaining that if he was "writing on a cleaner slate," he would have ended the analysis after concluding that the 2009 offense posed a similar risk to generic burglary. District Judge O'Grady dissented, arguing that the post-Sykes law in the Fourth Circuit is not so definitive and that only the degree of risk analysis is needed. Nevertheless, he goes on to argue that even under the Begay two-step approach, the 2009 conviction is a crime of violence.
Notably, both Diaz and O'Grady point out that next term the Supreme Court will again return to this issue (in an ACCA case involving a sawed-off shotgun) and, perhaps, provide some more clarity in this area.
Courts Martial Are Convictions from "Any Court" for ACCA Purposes
US v. Grant: Grant was convicted of being a felon in possession of ammunition. Based on two prior courts martial involving crimes of violence, he was designated as an armed career criminal and sentenced to 212 months imprisonment.
On appeal, Grant challenged his sentence, which the Fourth Circuit affirmed. Using a 2005 Supreme Court decision that held foreign convictions don't constitute convictions from "any court," Grant argued that courts martial are sufficiently different from civilian courts that they should not be considered part of any court. Relying largely on legislative history, the court concluded that whatever differences exist between the two doesn't override the reasons for enacting the ACCA in the first place.
On appeal, Grant challenged his sentence, which the Fourth Circuit affirmed. Using a 2005 Supreme Court decision that held foreign convictions don't constitute convictions from "any court," Grant argued that courts martial are sufficiently different from civilian courts that they should not be considered part of any court. Relying largely on legislative history, the court concluded that whatever differences exist between the two doesn't override the reasons for enacting the ACCA in the first place.
Monday, June 02, 2014
Analogue substances conviction upheld
US v. McFadden: Stephen McFadden received nine convictions in connection with his distribution of “bath salts,” in violation of the Controlled Substance Analogue Enforcement Act of 1986, 21 U.S.C. sect. 813. On appeal, McFadden argued that the statute was unconstitutionally vague as applied to him, that the district court erred in some of its evidentiary decisions during trial, and that the government failed to prove that whatever substance McFadden distributed qualified as an analogue under the Act. The Fourth Circuit affirmed, finding that included under the rubric of the Act were the bath salts that McFadden distributed.
McFadden’s void for vagueness constitutional challenge was rejected based on the Circuit’s holding in an earlier case, Klecker, which dealt with another designer drug, commonly known as “Foxy.” In that case, the Fourth Circuit observed that the considerable similarities between Foxy and the Schedule 1 substance DET were sufficient to put a reasonable person on notice of the proscribed conduct, that is, Foxy was a DET analogue. The Fourth Circuit panel applied the same reasoning to the instant case, finding that expert testimony supported the conclusion that the chemical structures of bath salts were sufficiently similar to the Schedule 1 substances 4-MEC, MDVP, and methylone, and a reasonable person in McFadden’s position would understand that his conduct was prohibited by the Act. Further, the Fourth Circuit used Klecker as its basis for rejecting McFadden’s challenge to the district court’s refusal to give a specific knowledge instruction to the jury.
The Fourth Circuit also affirmed the district court’s decision to admit a bath salt user’s testimony to prove the effects of the designer substance, as there was sufficient evidence presented to prove that McFadden made the bath salts that he distributed. The Fourth Circuit affirmed the admission into evidence of taped phone conversations between himself and Lois McDaniel, who had previously sold McFadden’s bath salts in her video rental store. McDaniel agreed to cooperate with investigators, and worked as a confidential informant, and the Fourth Circuit rejected McFadden’s relevancy challenge to them. Finally, McFadden’s sufficiency of the evidence and denial of his motion for acquittal arguments failed, because the panel found the government’s expert testimony about the chemical composition of the bath salts and their effects were sufficient evidence here.
McFadden’s void for vagueness constitutional challenge was rejected based on the Circuit’s holding in an earlier case, Klecker, which dealt with another designer drug, commonly known as “Foxy.” In that case, the Fourth Circuit observed that the considerable similarities between Foxy and the Schedule 1 substance DET were sufficient to put a reasonable person on notice of the proscribed conduct, that is, Foxy was a DET analogue. The Fourth Circuit panel applied the same reasoning to the instant case, finding that expert testimony supported the conclusion that the chemical structures of bath salts were sufficiently similar to the Schedule 1 substances 4-MEC, MDVP, and methylone, and a reasonable person in McFadden’s position would understand that his conduct was prohibited by the Act. Further, the Fourth Circuit used Klecker as its basis for rejecting McFadden’s challenge to the district court’s refusal to give a specific knowledge instruction to the jury.
The Fourth Circuit also affirmed the district court’s decision to admit a bath salt user’s testimony to prove the effects of the designer substance, as there was sufficient evidence presented to prove that McFadden made the bath salts that he distributed. The Fourth Circuit affirmed the admission into evidence of taped phone conversations between himself and Lois McDaniel, who had previously sold McFadden’s bath salts in her video rental store. McDaniel agreed to cooperate with investigators, and worked as a confidential informant, and the Fourth Circuit rejected McFadden’s relevancy challenge to them. Finally, McFadden’s sufficiency of the evidence and denial of his motion for acquittal arguments failed, because the panel found the government’s expert testimony about the chemical composition of the bath salts and their effects were sufficient evidence here.
Harmlessness no substitute for proper procedure
US v. Ferguson: The district court found that Jori Ferguson violated his supervised release by possessing marijuana. Ferguson appealed, alleging that in the absence of good cause for expert unavailability, it violated the Federal Rules of Criminal Procedure rules to admit a laboratory report without calling the expert who prepared the report to testify.
According to the Fourth Circuit, while revocation hearings are less formal than criminal trials, some due process rights apply! Reiterating the circuit’s holding in Doswell, the Fourth Circuit held here that unless the government makes its showing of good cause for the unavailability of its relevant witness, hearsay evidence is not admissible at revocation hearings. There is a balancing under Rule 32.1, with the releasee’s interests in confronting an adverse witness, against the government’s good cause for denying such confrontation. Reliability is an important factor, but not a dispositive one.
And, “[f]inally, we emphasize our displeasure with the government’s barefaced failure to abide by our command in Doswell. In may cases, a facially compelling harmlessness argument can be made because, as noted above, defendants who have been stripped of their confrontation rights will be hard-pressed to point to concrete symptoms of the constitutional harm that afflicts them. We refuse to let the government take advantage of this reality, essentially ignoring our command in Doswell by using harmlessness as a substitute for proper procedure.” Even while dissenting from the majority’s position that the error here was not harmless, Judge Keenan concurred that the “government must act diligently to ensure that revocation proceedings be conducted fairly in accordance with the plain requirements of the Federal Rule of Criminal Procedure 32.1(b)(2)(C).”
According to the Fourth Circuit, while revocation hearings are less formal than criminal trials, some due process rights apply! Reiterating the circuit’s holding in Doswell, the Fourth Circuit held here that unless the government makes its showing of good cause for the unavailability of its relevant witness, hearsay evidence is not admissible at revocation hearings. There is a balancing under Rule 32.1, with the releasee’s interests in confronting an adverse witness, against the government’s good cause for denying such confrontation. Reliability is an important factor, but not a dispositive one.
And, “[f]inally, we emphasize our displeasure with the government’s barefaced failure to abide by our command in Doswell. In may cases, a facially compelling harmlessness argument can be made because, as noted above, defendants who have been stripped of their confrontation rights will be hard-pressed to point to concrete symptoms of the constitutional harm that afflicts them. We refuse to let the government take advantage of this reality, essentially ignoring our command in Doswell by using harmlessness as a substitute for proper procedure.” Even while dissenting from the majority’s position that the error here was not harmless, Judge Keenan concurred that the “government must act diligently to ensure that revocation proceedings be conducted fairly in accordance with the plain requirements of the Federal Rule of Criminal Procedure 32.1(b)(2)(C).”
Decoding expert's testimony and substantial prejudice lead to new trial
US v. Garcia: Danilo Garcia received five convictions for his alleged involvement in a narcotics trafficking ring that operated between New York City, Philadelphia and Baltimore. One of three co-defendants out of a group of fourteen people indicted by a grand jury in Maryland, Garcia proceeded to a trial wherein the government presented the testimony of investigating agent/attorney as both a fact witness, based on her observations having listened to thousands of taped phone conversations, and as an expert “decoding” witness, who could testify as to coded meanings the co-conspirators alleged used in the course of the alleged drug trafficking.
On appeal, Garcia challenged the admission of the decoding expert agent’s testimony as well as the denial of his motion for judgment of acquittal for lack of sufficient evidence as to one of the substantive counts of conviction. The Fourth Circuit reversed the convictions, holding that the admission of the decoding expert’s testimony resulted in substantial prejudice to the defendant because neither the district court’s cautionary instructions, nor the sporadic sustaining of defense counsel’s “early and often, always respectfully” objections, adequately mitigated the risks the testimony presented.
The Fourth Circuit stated that the while the district court manifested a “deep familiarity with this Circuit’s settled guideposts with regard to this type of testimony,” there were problems the district court identified early with respect to this agent’s testimony: the blurring of the distinctions between lay fact testimony (her personal knowledge) on one hand and her expert opinion testimony gained through training and experience on the other; and ensuring that the agent testified on the basis of her experience and expertise in coded language, and not what cooperators or witnesses told her.
The Fourth Circuit found no problem with the agent’s qualifications as an expert, which adhered to Circuit precedent; it did, however, find fault with the nature of her testimony, as well as how extensive and highly influential it was in the jury’s evaluation of the government’s case. The jury instructions given did not mitigate the prejudice, as a jury might reasonably have assumed that all of the agent’s testimony was based on her decoding expertise, as evidenced by the multiple occasions the agent testified about information she gathered in the investigation - none of which had anything to do with her decoding expertise. The Fourth Circuit found the agent’s testimony impermissibly exceeded the bounds of Federal Rule of Evidence 702, which contemplates expert evidence “will be ‘helpful to the jury,’ not merely helpful to the prosecutor as transmutations of simple fact testimony.” The agent’s testimony lacked independent judgment, and the government failed to elicit proper foundations to demonstrate the agent’s claimed reliably-applied methodology.
On appeal, Garcia challenged the admission of the decoding expert agent’s testimony as well as the denial of his motion for judgment of acquittal for lack of sufficient evidence as to one of the substantive counts of conviction. The Fourth Circuit reversed the convictions, holding that the admission of the decoding expert’s testimony resulted in substantial prejudice to the defendant because neither the district court’s cautionary instructions, nor the sporadic sustaining of defense counsel’s “early and often, always respectfully” objections, adequately mitigated the risks the testimony presented.
The Fourth Circuit stated that the while the district court manifested a “deep familiarity with this Circuit’s settled guideposts with regard to this type of testimony,” there were problems the district court identified early with respect to this agent’s testimony: the blurring of the distinctions between lay fact testimony (her personal knowledge) on one hand and her expert opinion testimony gained through training and experience on the other; and ensuring that the agent testified on the basis of her experience and expertise in coded language, and not what cooperators or witnesses told her.
The Fourth Circuit found no problem with the agent’s qualifications as an expert, which adhered to Circuit precedent; it did, however, find fault with the nature of her testimony, as well as how extensive and highly influential it was in the jury’s evaluation of the government’s case. The jury instructions given did not mitigate the prejudice, as a jury might reasonably have assumed that all of the agent’s testimony was based on her decoding expertise, as evidenced by the multiple occasions the agent testified about information she gathered in the investigation - none of which had anything to do with her decoding expertise. The Fourth Circuit found the agent’s testimony impermissibly exceeded the bounds of Federal Rule of Evidence 702, which contemplates expert evidence “will be ‘helpful to the jury,’ not merely helpful to the prosecutor as transmutations of simple fact testimony.” The agent’s testimony lacked independent judgment, and the government failed to elicit proper foundations to demonstrate the agent’s claimed reliably-applied methodology.
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