United States v. Norwood
16 F. Supp. 3d 848
E.D. Mich.2014Background
- Defendants are charged under RICO as members of the "Howard Boys," alleged to be a neighborhood-based criminal organization in Flint, Michigan, whose activities include drug trafficking and violence.
- The Government disclosed 17 experts; two challenged here are DEA SA Scott Nedoff (drug-trafficking expert) and FBI SA Robert Bornstein (gang expert).
- Defendants moved to exclude or limit both experts under Fed. R. Evid. 702; the court held a Daubert-style inquiry and an evidentiary hearing for Bornstein.
- Government proffered Nedoff to testify about common practices of drug distribution (e.g., packaging, scales, cash transactions, firearms). Nedoff has ~15 years DEA experience and prior expert testimony.
- Government proffered Bornstein to testify about attributes of neighborhood-based street gangs (e.g., territory, graffiti, codes, violence). Bornstein has FBI gang investigative experience in Oklahoma, Connecticut, and an 18-month headquarters role but no experience with Flint or the Howard Boys.
- Court's ruling: Nedoff admitted as a drug-trafficking expert; Bornstein excluded as a gang expert (unreliable, irrelevant, and unhelpful; and possibly confusing under Rule 403).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Nedoff’s drug-trafficking expert testimony under Rule 702/Daubert | Nedoff’s DEA training, long experience, and prior expert testimony qualify him to explain drug-distribution indicia to the jury | Nedoff lacks specialized methodology; testimony would be cumulative or unnecessary because jurors know about drug dealing | Admitted: Court found Nedoff’s experience reliable and helpful; permitted opinions including linkage between firearms and drug trafficking |
| Admissibility of Bornstein’s gang expert testimony under Rule 702/Daubert | Bornstein’s FBI gang investigations and HQ role permit him to opine about common gang features nationwide | Bornstein’s opinions are anecdotal, not tied to Flint or the Howard Boys, risk usurping jury’s role, and are prejudicial | Excluded: Court found Bornstein’s opinions unreliable, not shown to apply to the specific gang/locale, potentially misleading under Rule 403, and not helpful to jurors |
| Whether generalized gang expert testimony can substitute for proof of a RICO enterprise | Gov’t: gang expert aids jurors in understanding gang indicia that overlap with enterprise evidence | Defs: permitting an expert to define or imply an enterprise would shortcut Gov’t’s burden and confuse the jury | Excluded: Court held Govt failed to show how general gang opinions reliably bear on RICO enterprise; risk of conflating "gang" with "RICO enterprise" warranted exclusion |
| Whether expert may testify regarding tools-of-the-trade (e.g., firearms) | Gov’t: agent testimony about common tools of drug trade assists jury | Defs: needs statistical or methodological support beyond assumptions | Admitted (for Nedoff): Sixth Circuit precedent tolerates such testimony; court allowed Nedoff to testify firearms commonly associate with drug trafficking |
Key Cases Cited
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (gatekeeping obligation for expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (gatekeeping applies to all expert testimony)
- United States v. Swafford, 385 F.3d 1026 (6th Cir.) (tolerant view linking firearms to drug trafficking)
- United States v. White, 563 F.3d 184 (6th Cir.) (expert testimony on tools of the trade routine in drug cases)
- United States v. Tocco, 200 F.3d 401 (6th Cir.) (law-enforcement expert testimony on organized crime/gangs where expert had detailed gang-specific experience)
- Boyle v. United States, 556 U.S. 938 (RICO enterprise structural elements require proof of purpose, relationships, and longevity)
- United States v. Combs, 369 F.3d 925 (6th Cir.) (permitting generalized drug-distribution expert testimony)
- United States v. Stafford, 721 F.3d 380 (6th Cir.) (court’s gatekeeper role under Rule 702 and consideration of reliability)