UNITED STATES of America, Appellee v. Leonel Rene GUERRERO, Appellant.
No. 10-3043.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 2, 2011. Decided Dec. 9, 2011.
664 F.3d 1305
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For the foregoing reasons, the petition for review is granted in part and denied in part. The cross-petition for enforcement is likewise granted in part and denied in part. The case is remanded to the Board for further proceedings consistent with this opinion.
So ordered.
Robert A. Sheffield, appointed by the court, argued the cause for appellant. With him on the briefs was Douglas J. Behr. A.J. Kramer, Federal Public Defender, entered an appearance.
Before: ROGERS and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
Claiming trial evidentiary errors, appellant Leonel Rene Guerrero seeks reversal of his conviction by a jury for unlawful possession with intent to distribute cocaine and aiding and abetting. His principal contention is that the district court plainly erred in allowing a law enforcement officer to offer lay opinion testimony pursuant to
I.
On October 17, 2008, appellant accepted delivery at his house of a package that was shipped from El Salvador and addressed to Carlos Lopez. Inside the package was a gold statue containing 302.6 grams of cocaine. Law enforcement officials had intercepted the package upon its arrival in the United States and installed a trip wire to signal when the package was opened. When the wire was tripped thirty minutes after appellant accepted the package, law enforcement officers, including Special Agents from Immigration and Customs Enforcement, were admitted into the house, upon identifying themselves, by two women. In the basement, the agents found appellant poised to exit into the backyard and Jose Luis Sacreas as well as a third man and the opened package. The agents searched the house. Special Agent Drewniak seized a number of items from appellant‘s bedroom on the second floor: two coffee grinders, a digital scale, a small white ceramic bowl, a small white spoon, a jar of creatine, cotton gloves, small plastic baggies, and $707 in cash; the coffee grinders and the scale contained white residue later identified as a mixture of cocaine and lidocaine. Appellant and Sacreas were indicted for unlawful possession with intent to distribute cocaine,
Agent Drewniak, along with three other Special Agents who participated in the controlled delivery of the package, testified at trial. Drewniak testified on direct examination that the items seized from appellant‘s bedroom were “consistent with narcotics distribution activity.” Tr. 5/19/09 at 116. He explained that “typically” coffee grinders are used to mix cutting agents such as creatine with pure cocaine, small bowls are used to hold small amounts of cocaine, small spoons are used to scoop and move small quantities of cocaine, scales are used to measure small quantities of cocaine, gloves are used to keep cocaine from being absorbed into the skin, and small baggies are used to package cocaine for sale. Tr. 5/19/09 at 116, 119, 120-23, 125; Tr. 5/20/09 at 6. On cross examination, appellant, through counsel, questioned Drewniak about the extent of his law enforcement experience and training, prompting him to testify that he had
Other government witnesses included forensic chemists from the Drug Enforcement Administration. These chemists testified that they had found cocaine on the grinders and scale and that creatine is a cutting agent often mixed with pure cocaine to add bulk and dilute the cocaine. Two of appellant‘s superiors at the Washington Hilton Hotel testified that appellant‘s job as a steward involved pushing large carts of soiled dishware that he washed in a dishwasher, that he had no problem doing any facet of his job, and that he was among the hotel‘s best stewards and would supervise anywhere between two to fifteen employees on weekends.
In defense, appellant presented the testimony of his wife and an expert witness as well as a coworker and a neighbor. His wife testified they had bought the house in 2001, and she had lived there until June 2008 when she and their children moved to Maryland. Sometime after June 2008, appellant began renting out rooms in the house and there were nine tenants at the time appellant was arrested. She recognized the items seized from appellant‘s bedroom, explaining that she had used the creatine to build muscle so she might more easily lift beds in her work as a housekeeper, the scale to weigh gold jewelry that she purchased in Peru and sold during the holidays, the coffee grinders to grind coffee, and the spoon to feed her small children. Appellant wore the cotton gloves at work to hold hot plates and used the baggies to carry his medicine to work. On cross-examination she acknowledged that the seized baggies were smaller than those she bought for carrying appellant‘s medicine and that she did not know how the coffee grinders and scale came to have cocaine residue on them.
Dr. Stephen J. Feinberg, an optometrist specializing in low vision, testified that he had examined appellant and reviewed his medical records and concluded that there is “no normal ... architecture, in the retina of [appellant‘s] eyes,” his “peripheral vision is not very good; his central vision ... is nonexistent,” and his vision is twelve times worse than that needed to qualify as legally blind even with corrective lenses. Tr. 5/21/09 at 50, 54. Although appellant could identify the denomination of paper currency by holding it within five inches of his eyes, he would have difficulty distinguishing white powder on a white surface.
Appellant‘s co-worker testified that he realized from the first day that he met appellant over a decade ago that “he could not see properly,” Tr. 5/20/09 at 163, and that he knew appellant to be a law-abiding person. His next-door neighbor testified that she was aware appellant had trouble with his eyesight, she would drive him to and from work three or four times a week, and knew him to be a law-abiding person. When asked on cross examination whether her opinion would change if told that appellant had been charged with unlawful possession with intent to distribute cocaine and had the items necessary to prepare and package cocaine for sale in his bedroom, she testified her opinion would not change because she did not believe that appellant was guilty.
II.
If the witness is not testifying as an expert the witness’ testimony in the form of opinions or inferences is limited to those opinions or inference which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of [Federal] Rule [of Evidence] 702.1
These rules are designed to draw a distinction between lay and expert testimony and to ensure that any testimony “based on scientific, technical, or other specialized knowledge” is “scrutinized under the rules regulating expert opinion.”
Appellant contends that Special Agent Drewniak‘s lay opinion testimony about the drug-trafficking significance of the items seized from his bedroom was improper lay opinion testimony under
At the time of appellant‘s trial, this court had held that “[t]he operations of narcotics dealers” are “a suitable topic for expert testimony because they are not within the common knowledge of the average juror.” United States v. Boney, 977 F.2d 624, 628 (D.C.Cir.1992); see also United States v. Dunn, 846 F.2d 761, 763 (D.C.Cir.1988). Since appellant‘s trial, the court has clarified that a witness may tes
Appellant‘s defense was that he did not have the visual capacity to participate in a drug trafficking operation by cutting, weighing, and packaging cocaine for sale. Defense counsel theorized in opening and closing argument to the jury that Sacreas, the basement tenant, had used the scale and coffee grinders to prepare cocaine for distribution, without appellant‘s knowledge, and stored the items in appellant‘s unlocked bedroom. Part and parcel of this defense was that the Special Agents who executed the controlled delivery were biased, having been conditioned as a result of their law enforcement experience and training to view the seized items, which have many possible benign uses, as drug paraphernalia. Appellant now urges that without Drewniak‘s inadmissible lay opinion testimony linking the items from appellant‘s bedroom to cocaine distribution there is a reasonable probability that the government would not have met its burden of proof as to his intent to distribute cocaine. Yet defense counsel conceded that all four Special Agents were experienced law enforcement officers in drug trafficking and treated Drewniak as an expert in drug trafficking operations. Tellingly, appellant offers no response in his Reply Brief.
Consequently, assuming Drewniak‘s lay opinion testimony was improperly admitted pursuant to
III.
Prior to Dr. Feinberg‘s testimony, the district court ruled that Dr. Feinberg‘s written report, which included the statement “I do not believe Mr. Guerrero has the visual ability to perform the activities for which he‘s been charged,” would not be admitted. Tr. 5/21/09 at 42 (quoting Dr. Stephen J. Feinberg‘s Expert Report). The district court ruled, rather, that Dr. Feinberg could testify about what appellant “can see, what he could see in October 2008, what he could do.” Id. at 41. Consistent with these rulings, the district court allowed Dr. Feinberg to answer the only two questions defense counsel asked relating to appellant‘s ability to use the items seized from his bedroom to prepare and package cocaine for sale:
[DEFENSE COUNSEL]: Would it be easy for Mr. Guerrero to see a white powder on a silver table top?
[PROSECUTOR]: Objection, Your Honor.
[DEFENSE COUNSEL]: Based on your examination of him and your knowledge of his visual acuity?
[DR. FEINBERG]: I would think it highly unlikely that he would discern powder on a silver or white surface.
[DEFENSE COUNSEL]: Based on your examination of him, would it be easier for him to see something blue on a white surface than a clear plastic bag?
[PROSECUTOR]: Objection, Judge.
[THE COURT]: I‘ll allow it.
[DR. FEINBERG]: Well, the answer would be yes, because I tend to harp on contrast. If I have family members present, somebody with these kinds of issues, I talk about contrast if they‘re going to function with some sense of normalcy.
Id. at 59-60.
In United States v. Salamanca, 990 F.2d 629 (D.C.Cir.1993), the issue was whether the district court had erred in ruling that a psychologist could not testify whether the defendant had the capacity to have the mental state necessary for guilt.
Likewise here, the district court properly excluded Dr. Feinberg‘s opinion on the ultimate question of appellant‘s guilt or innocence, see
IV.
In United States v. White, 887 F.2d 267 (D.C.Cir.1989), the court held that “[c]ross-examination of witnesses who testify only to the defendant‘s community reputation with hypotheticals assuming guilt may be improper,” but that “similar cross-examination of witnesses who—as the witness did here—give their own opinion of the defendant‘s character is not error.” Id. at 274-75 (citations omitted); see United States v. Kellogg, 510 F.3d 188, 193-97 (3d Cir.2007). Appellant‘s neighbor testified about her personal opinion of appellant‘s character, not his reputation in the community. Appellant acknowledges White, but maintains it was wrongly decided, an argument that can only be entertained by the en banc court. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996).
Accordingly, because appellant fails to show plain error or an abuse of discretion by the district court, we affirm the judgment of conviction.