United States v. Michael Smith
919 F.3d 825
4th Cir.2019Background
- Defendants Mark Bazemore, Michael Smith, Jr., and Timothy Hurtt were tried for racketeering and drug conspiracies (with related murder, attempted murder, and firearms counts) based on their leadership roles in the Black Guerilla Family in Baltimore.
- The FBI wiretapped leaders and members, recorded coded phone calls, and uncovered extensive drug distribution and violent enforcement, including a March 10, 2014 sequence of calls in which Bazemore was alleged to authorize an attempted murder of Ronald Hall.
- FBI Special Agent Mark James monitored calls in real time, alerted local police before the shooting, and later testified at trial both as a fact witness about the investigation and as an expert in Maryland drug/gang terminology to interpret coded calls.
- Several jurors reported fear of gang retaliation; the district court individually questioned jurors about partiality, excused three jurors for cause, and denied a mistrial after finding remaining jurors credible.
- Defendants were convicted on all counts; they appealed claiming (1) the court inadequately handled juror fear/possible contamination and (2) improper admission of portions of Agent James’s expert testimony (methodology, blurring fact/expert roles, and Confrontation Clause concerns).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror impartiality/mistrial | Court adequately probed jurors and balanced eliciting bias with avoiding creating fear; judge entitled to deference | Defendants argued the court failed to ask jurors specifically about Juror No. 5's disclosures and should have granted a mistrial for contamination | Court affirmed: judge’s individualized questioning and excusals were within discretion; denial of mistrial not an abuse |
| Qualification/methodology of agent expert | Government: Agent James’s extensive FBI experience rendered his interpretive methodology reliable and helpful under Rule 702/Daubert | Defendants: Experience-based linguistic opinions lacked reliable methodology | Court affirmed: agent qualified; experience-based methodology permissible and reliably applied |
| Blending expert opinion and factual testimony | Government limited expert scope, separated fact and expert testimony, gave jury cautionary instruction, and provided cross-examination opportunity | Defendants: Agent impermissibly mixed percipient facts with expert interpretation, causing confusion and unfair prejudice | Court affirmed: court used safeguards (separation, limits, instruction); any risk not substantially outweighing probative value |
| Confrontation Clause / testimonial hearsay via expert | Government: Agent rendered independent judgments (real-time action) not mere conduit of co-conspirator statements | Defendants: Agent’s interpretations relied on non-testifying co-conspirator debriefings and thus transmitted testimonial hearsay | Court affirmed: record shows independent judgment (e.g., real-time police alert); no Crawford violation; any limited errors harmless given overwhelming evidence |
Key Cases Cited
- Smith v. Phillips, 455 U.S. 209 (1972) (trial judge must guard against prejudicial occurrences affecting jury impartiality)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (trial court gatekeeper for admissibility of expert testimony under Rule 702)
- Wilson v. United States, 484 F.3d 267 (4th Cir. 2007) (discusses law-enforcement experts interpreting coded communications and dual-role witness cautions)
- Garcia v. United States, 752 F.3d 382 (4th Cir. 2014) (required scrutiny where agent’s interpretations may simply relay co-conspirator debriefings)
- Baptiste v. United States, 596 F.3d 214 (4th Cir. 2010) (advises safeguards when a case agent testifies as both fact and expert witness)
- Galloway v. United States, 749 F.3d 238 (4th Cir. 2014) (approves experience-based contextual analysis for drug-related conversations)
- Arizona v. Washington, 434 U.S. 497 (1978) (great deference to trial judge on mistrial declarations and juror-bias evaluations)
- Kotteakos v. United States, 328 U.S. 750 (1946) (harmless error standard: whether error substantially swayed jury)