USA v. TAOFIQ AFONJA, 06-3347.  Michael Sanders arrived in the United States from Nigeria with 3.6 kilograms of heroin in his luggage. When caught, he claimed to be a courier with no interest in the drugs apart from a $3,000 fee for his services; he agreed to participate in a controlled delivery to the next people in the chain, who were to collect the heroin at a bus station in Chicago.

Afonja, who did not confess, was tried separately to avoid Bruton problems and convicted of conspiracy and attempt. His sentence, too, is 121 months.  Afonja has a non-frivolous argument: that a witness testifying as an expert for the prosecution did not satisfy the requirements of Fed. R. Evid. 702.

Robert Coleman, a police officer employed by Will County, Illinois, and assigned to a drug task force, testified for the prosecution as an expert about drug transactions. One of the questions he addressed was whether innocent persons participate in drug transactions. Over Afonja’s objection, Coleman testified that, except for children, only "people that are involved in the drug deal" will be present-and by "involved" Coleman meant people who "have knowledge as to what’s taking place, the illegal activity". Afonja maintains that the district judge should have prevented Coleman from giving this testimony.

The district judge concluded that Coleman’s training and experience make him an expert on drug transactions.  But Rule 702 does not say that any testimony within the scope of a witness’s expertise is admissible.

The district judge did not address any of the Rule 702’s three questions: (1) whether Coleman’s view "is based upon sufficient facts or data"; (2) whether it is "the product of reliable principles and methods"; and (3) whether the "witness has applied the principles and methods reliably to the facts of the case."

Both the judge and the prosecutor supposed that decisions in this circuit make it unnecessary to address the questions posed by Rule 702. We have held that an agent’s field experience can provide "specialized knowledge" that supports expert testimony. See, e.g., United States v. Ceballos, 302 F.3d 679, 686–88 (7th Cir. 2002); United States v. Allen, 269 F.3d 842, 846 (7th Cir. 2001). And we have twice held that district judges did not err in admitting testimony of the kind that Coleman gave here. See United States v. Garcia, 439 F.3d 363, 367–68 (7th Cir. 2006); United States v. Love, 336 F.3d 643, 646–47 (7th Cir. 2003). But neither Garcia nor Love dealt with Rule 702.

On what "facts or data" does Coleman’s opinion rest? Are his inferential methods reliable? Coleman did not describe either the facts he considered or the methods of analysis used to get from facts to a conclusion.

Facts are essential to testimony based on "specialized knowledge" as well as to scientific and technical expertise. Yet Coleman did not describe any data, and his evaluation does not seem to be falsifiable. Coleman is certain that every adult involved in every drug transaction knows what is going on. That’s not a reliable way to proceed.

The prosecutor’s brief and oral argument rest on the proposition that testimony by any genuine expert is admissible under Rule 702. That’s not so.

Most junk science is the work of people with Ph.D. degrees and academic positions. Good credentials may be a necessary condition for expert testimony but are not a sufficient condition.

Because the right questions were not asked, we cannot know whether Coleman should have been allowed to testify. It is difficult to say that the district judge abused his discretion-that’s the standard when the information on which a sound exercise of discretion depends was never placed before the judge.

A judge is not obliged to look into the questions posed by Rule 702 when neither side either requests or assists. So there was no error; the judge answered correctly the only question that the parties posed (whether Coleman qualified as an expert).

Afonja’s conviction is affirmed.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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