U.S. v. GARCIA, NO.13-4136
Decided: May 15, 2014
The Fourth Circuit held that the district court abused its discretion on its evidentiary rulings as viewed in their totality due to its inadequate adoption of safeguards to avoid the substantial risk of prejudice of the decoding expert’s testimony. However, the Court also held that the district court did not abuse its discretion by admitting the expert testimony.
Garcia was named in five counts, including conspiracy to distribute heroin, possession with intent to distribute (P.W.I.D.) heroin, and P.W.I.D. 100 grams or more of heroin on three separate occasions. At trial, Federal Bureau of Investigation (FBI) agents, Drug Enforcement Administration (DEA) agents, and state and local law enforcement officers testified about the government’s surveillance of Garcia and other defendants, including wiretaps on four mobile phones used by Garcia and his accomplices. FBI Special Agent Carrie Dayton testified as an expert witness about coded telephone conversations gathered in the course of this investigation, appearing on eighteen separate occasions during six days over the two-week trial. Agent Dayton’s experience included time as paralegal; over six years as an attorney; and over eight years in law enforcement with the FBI. Agent Dayton was involved in twenty narcotics investigations and five wiretap investigations where she listened to thousands of phone conversations. Prior to this trial, Dayton had never testified as an expert witness on coded drug language. Defense counsel repeatedly objected to Agent Dayton’s testimony, particularly for her blending of fact testimony with her expert testimony, failure to conform to recognized methodologies, and failure of counsel to lay a foundation for many of her interpretations.
The Fourth Circuit affirmed the district court’s admission of Agent Dayton’s expert testimony. Under Federal Rules of Evidence (F.R.E.) 702, a witness is a qualified expert based on knowledge, skill, experience, training, or education. The Court reasoned that it was the quality of the agent’s experience and not the quantity, which qualified her as an expert. In particular, her focus on narcotics trafficking for the previous five years with the FBI, which included listening to thousands of wiretap conversations. However, the Court noted that her description of methodology was vague, but found that the methodology was similar to that described by a decoding expert in U.S. v. Wilson, 484 F.3d 267 (4th Cir. 2007). Thus, the Court found no indication that the district court abused its discretion.
Furthermore, the Court commended the district court for its early identification of two potential problems with the testimony: (1) the need to distinguish between Agent Dayton’s lay fact testimony and her expert opinion, and (2) the need to ensure that the testimony is based on her experience and expertise and not simply relating what Garcia’s co-conspirators or other witnesses had told her, especially because Agent Dayton had debriefed several of Garcia’s co-conspirators in this case. Despite early acknowledgement of these issues, the district court failed to safeguard the jury against the danger of confusing when Agent Dayton was offering lay testimony versus expert testimony. The Court offered recommended safeguards including: requiring the witness to testify at separate times with lay testimony or with expert testimony; giving cautionary instruction to the jury regarding the basis of the testimony; allowing the defense counsel to cross-examine the witness; establishing a proper foundation for the expertise; or having counsel base the question in either fact or expertise while asking the question. In many instances, a cautionary instruction may be enough to protect against the possible confusion; however, the instructions given here were insufficient. The district court informed the jury that the Government would clearly ask questions based on the facts or expertise; however, Agent Dayton repeatedly oscillated between these two roles without clarification. On several occasions, the Government asked Agent Dayton for an expert opinion, and then followed with a fact question based on the agent’s knowledge. Under F.R.E. Rule 702, an expert must reliably apply their method in forming an opinion that will be helpful to the jury, and not as a way to give fact testimony in the guise of expert opinion.
Agent Dayton relied on her debriefing of the co-conspirators, which lead the court to question whether she was merely channeling out-of-court statements, instead of basing her testimony on her experience with law enforcement and wiretaps. The U.S. Supreme Court has held that out-of-court testimony by an absent witness is allowed “only where the declarant was unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 59 (2004). In the Fourth Circuit, the test for whether an expert is giving expert opinion or simply channeling an out-of-court witness is “whether the expert is, in essence, giving an independent judgment or merely acting as a transmitter for testimonial hearsay.” U.S. v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009). The Court did not rule on whether Agent Dayton was giving expert opinion or channeling out-of-court witnesses because the Government failed to lay a proper foundation for much of the expert opinion. The impact of the multilingual telephone conversations on her methodology was not addressed. Agent Dayton’s interpretations were sometimes inconsistent with each other, and any fact witness would have sufficed for some words and phrases, which were in common parlance. Thus, the reliability of the record was questionable from the lack of foundation because it was unclear whether Agent Dayton executed her claimed methodology in forming her expert opinion.
Furthermore, the Court was not able to find Agent Dayton’s testimony to be harmless because a lot of the case relied on her interpretation of the wiretap conversations. These conversations were the only evidence tying Garcia to some of the charges against him. The test is whether the error had “a substantial and injurious effect or influence in determining the jury’s verdict.” U.S. v. Curbelo, 343 F.3d 273, 278 (4th Cir. 2003) (quoting Kotteakos v. U.S., 328 U.S. 750, 776 (1946)). The Court considered it irrelevant that there was other evidence inculpating Garcia because the concern was whether the error had a substantial influence.
Verona Sheleena Rios