UNITED STATES OF AMERICA v. BRUCE WATSON aka George Flamer Bruce Watson, Appellant
NO. 00-2826
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
August 9, 2001
2001 Decisions, Paper 177
Before: RENDELL, AMBRO and BRIGHT, Circuit Judges
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 98-cr-00147-1) District Judge: Honorable Thomas I. Vanaskie, Chief Judge. Argued: March 14, 2001.
2001 Decisions
Opinions of the United States Court of Appeals for the Third Circuit
8-9-2001
United States v. Watson
Precedential or Non-Precedential:
Docket 00-2826
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Recommended Citation
“United States v. Watson” (2001). 2001 Decisions. Paper 177. http://digitalcommons.law.villanova.edu/thirdcircuit_2001/177
Michael C. Kostelaba [ARGUED] 630 North Main Street Wilkes-Barre, PA 18705 Counsel for Appellant Bruce Watson
_________________________________________________________________
* Honorable Myron H. Bright, United States Circuit Judge for the Eighth Circuit Court of Appeals, sitting by designation.
OPINION OF THE COURT
BRIGHT, Circuit Judge.
Bruce Watson (“Watson“) appeals his judgment of conviction and sentence for distribution and possession with intent to distribute cocaine base (also known as crack cocaine or crack) in violation of
I. BACKGROUND
In 1998, Pennsylvania law enforcement officers received information that Watson was traveling on a Susquehanna Trailways bus to Williamsport, Pennsylvania to purchase drugs. Law enforcement officers Ronald Paret and Kirk F. Schwartz met the bus in Lehighton, boarded the bus, publicly announced that they were law enforcement officers conducting a drug investigation, and that passenger cooperation would be appreciated but was not required.
Watson was sitting by himself. The officers asked him some routine questions, Watson denied having a ticket, and he denied having identification. Watson picked up a bag
The officers transported Watson to the Pennsylvania State Police barracks in Lehighton. During processing investigators recovered four packages of marijuana and approximately 100 small plastic bags. Wаtson explained that he took his bus trip to attend a funeral and that the plastic bags were for a friend. Laboratory tests revealed a total of 2.4 grams of crack cocaine and 7.42 grams of marijuana.
During the trial, Officer Schwartz provided testimony concerning the 100 plastic bags found on Watson:
[MR. ROCKTASHEL:] Now, based on your experience and training of purchasing drugs аnd working as a Narcotics Investigator, have you formed an opinion, as to whether or not the substance contained in Government Exhibit 1 was possess [sic] with the intent to distribute, transfer or deliver or the intent to personally use that drug?
MR. CASEY: Objection. This witness is not competent to testify as to the mental state of the Defendant. That‘s the jury‘s prerogative, and Federal Rule [of Evidenсe] 704(b) specifically precludes it.
THE COURT: Overruled.
MR. ROCKTASHEL: You may answer the question, sir.
[MR. SCHWARTZ]: I believe it was possess [sic] with the intent to distribute to somebody else.
(App. at 58.)
Later, Officer Gordon Mincer testified that the crack found on Watson was consistent with someone selling cocaine rather than using it for personal consumption.
[MR. ROCKTASHEL:] Now, you‘ve had a chance to look at Government Exhibit 1 and Government Exhibit 7. And I‘d ask, having reviewed those, have you formed an opinion, as to whether or not the substance contained in Government Exhibit 1 was possessed with the intent to distribute, transfer or deliver versus the intent to personally consume that substance?
. . . .
[MR. MINCER:] Yes, sir. Based on my experience, through my undercover investigations, I‘ve seen, on numerous occasions, subjects that have amounts of crack cocaine like this, as well as these packaging bags, which they were cutting off and packaging in these bags for resale, which I‘ve also purchased.
And that would be consistent with someone who is selling cocaine versus someone who would be using it for their personal use.
(App. at 89-90.)
The Government also called Agent Paret as a rebuttal witness to testify concerning the nature of Watson‘s bus travel itinerary. Agent Paret provided the following testimony:
[MR. ROCKTASHEL:] With respect to the particular trip taken here, by Bruce Watson, have you formed an opinion as to whether or not that particular trip was takеn for the purpose of distribution, transfer and delivery of drugs, as opposed to procurement of drugs for personal use?
MR. CASEY: Objection. Again, that calls for a reading of the mind of the Defendant, as to the purpose of the trip. Again, the Court has instructed that could be consistent with experiences in the past, but the question, as posed, it goes beyond the competence of the witness.
MR. ROCKTASHEL: Your Honor, we‘re not proposing that he render an opinion, as to the Defendant‘s intent, but we‘re asking him to testify, with regard to particular circumstances and facts of the trip, the destination point, etc. THE COURT: I‘ll overrule the objection. The testimony will be allowed for that limited purpose.
[MR. PARET:] Generally, a trip of a short nature like that, a 10-plus hour trip to Philadelphia, spending four hours there, on my experience, has been that they‘ve gone into the city to purchase drugs to, ultimately, take back and resell at their starting point.
(App. at 160-61.)
II. DISCUSSION
The District Court had jurisdiction under
We review the District Court‘s ruling on the admissibility of expert testimony for abuse of discretion. United States v. Bennett, 161 F.3d 171, 182 (3d Cir. 1998), cert. denied, 528 U.S. 819 (1999).
A.
Watson argues that the Government‘s experts’ testimony was inadmissible because knowledge of the operations of narcotics dealers is not a proper field of expertise. Because Watson did not raise a contemporaneous Rule 702 objection to the expert testimony we review the admission of expert testimony for plain error, looking for errors that are “obvious, or . . . otherwise seriously affect the fairness, integrity[,] or public reputation of judicial proceedings.” Government of the Virgin Islands v. Parrilla, 7 F.3d 1097, 1100 (3d Cir. 1993) (internal quotations omitted) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
Under Rule 702, a witness may offer an expert opinion if he or she is “qualified as an expert by knowledge, skill, experience, training, or education.”
Although Rule 702 does not mention any qualifying specific fields of expertise, the advisory committee notes indicate that a wide variety of expert testimony is contemplated by the Rule:
The rule is broadly phrased. The fields of knоwledge which may be drawn upon are not limited merely to the “scientific” and “technical” but extend to all “specialized” knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by “knowledge, skill, experience, training or education.” Thus within the scope of the rule are not only experts in the strictest sense of the word, e.g., physicians, physicists, and architects, but also the large group sometimes called “skilled” witnesses, such as bankers or landowners testifying to land values.
The courts that have considered this issue have recognized the operations of narcotics dealers as a proper field of expertise. It is well-established that government agents may testify to the meaning of coded drug language under
Moreover, the District Court did not err in allowing expert testimony from Schwartz, Mincer, and Paret. Agents Schwartz, Mincer, and Paret were well-qualified to testify concerning drug activity and the Government presented sufficient evidence to establish the reliability of their purported fields of expertise. Agent Schwartz testified that he made sevеral hundred arrests for controlled substances offenses, he was familiar with drug packaging and distribution, he inspected drugs, drug paraphernalia, and he had participated in approximately 200 bus interdictions. Agent Mincer testified to his experience in executing search warrants for drugs, his undercover drug purchases, and his making more than 200 arrests for crack. Agent Paret tеstified about his experience as a United States Customs Inspector and as a drug investigator working for eight years on drug interdiction involving public transportation. The Government‘s experts each possessed specialized knowledge concerning drugs and drug interdiction and their testimony was helpful to the jury in understanding the evidence. Therefore, the District Court did not commit plain error when it admitted Agents Schwartz‘s, Mincer‘s, and Paret‘s testimony relating to the general operations of narcotics dealers.
B.
Next, Watson argues that the District Court erred in allowing expert testimony concerning Watson‘s mental state, i.e., that Watson intended to distribute the narcotics.
Expert testimony concerning the modus operandi of individuals involved in drug trafficking does not violate Rule 704(b). For example, a Government expert may testify about the meaning of narcotics code words. Theodoropoulos, 866 F.2d at 590-92; see also Boissoneault, 926 F.2d at 232-33; United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995) (holding that expert testimony concerning the modus operandi of individuals involved in drug trafficking does not violate Rule 704(b)). A Government expert may also testify about the quantity, purity, usual dosage units, and street value of narcotics. United States v. Safari, 849 F.2d 891, 895 (4th Cir.), cert. denied, 488 U.S. 945 (1988).
_________________________________________________________________
And, an expert may testify about the various counter-surveillance techniques used by drug dealers to avoid detection by the police. United States v. de Soto, 885 F.2d 354, 360 (7th Cir. 1989).
There is, however, “a [fine] line that expert witnesses may not cross.” United States v. Mitchell, 996 F.2d 419, 422 (D.C. Cir. 1993). It is well established that experts may describe, in general and factual terms, the common practices of drug dealers. See Boyd, 55 F.3d at 671 (citing cases). Expert testimony is admissible if it merely “support[s] an inference or conclusion that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony.” United States v. Bennett, 161 F.3d 171, 183 (3d Cir. 1998) (quoting United States v. Morales, 108 F.3d 1031, 1038 (9th Cir. 1997)). “It is only as to the last step in the inferential process--a conclusion as to the defendant‘s mental state--that Rule 704(b) commands the expert to be silent.” United States v. Dunn, 846 F.2d 761, 762 (D.C. Cir. 1988).
Rule 704(b) may be violated when the prosecutor‘s question is plainly designed to elicit the expert‘s testimony about the mental state of the defendant, Boyd, 55 F.3d at 672, or when the expert triggers the application of Rule 704(b) by directly referring to the defendant‘s intent, mental state, or mens rea, United States v. Lipscomb, 14 F.3d 1236, 1240 (7th Cir. 1994). Rule 704 prohibits “testimony from which it necessarily follows, if the testimony is credited, that thе defendant did or did not possess the requisite mens rea.” Bennett, 161 F.3d at 182 (quoting Morales, 108 F.3d at 1037).
Watson argues that the Government violated Rule 704(b) because its three witnesses testified as to Watson‘s mental state. First, Watson argues that Officer Schwartz‘s testimony concerning the purpose for the 100 plastic bags found on his person violated Rule 704(b). We agree. The prosecutor, Mr. Rocktashel, pushed his questions too far and he repeatedly elicited expert testimony in violation of Rule 704(b). Mr. Rocktashel‘s question to Officer Schwartz was plainly designed to elicit the expert‘s testimony about
Second, Watson argues that the colloquy between Mr. Rocktashel and Officer Mincer elicited testimony that violated Rule 704(b). Prosecutors may not circumvent Rule 704(b) by repeatedly referring to a defendant‘s intent in a question to an expert. Mr. Rocktashel‘s repeated invocation of the word “intent,” framed Mincer‘s “Yes sir,” response in such a way that the necessary inference to be drawn from Mincer‘s response was that Watson possessed crack with the intent to distribute it. Therefore, Mincer‘s “Yes sir” response violated Rule 704(b).
Third, Watson argues that Agent Paret‘s rebuttal testimony concerning the nature of Watson‘s bus travel itinerary violated Rule 704(b). The prosecutor may not elicit expert testimony on the ultimate issue of fact; that is for the jury alone to decide.
In sum, the Government violated Rule 704(b) by repeatedly eliciting from its experts testimony as to
III. CONCLUSION
For the foregoing reasons, we will REVERSE the Judgment and Commitment Order and REMAND the case to the District Court for further proceedings.
A True Copy: Teste:
Clerk of the United States Court of Appeals for the Third Circuit