United States v. York, No. 07-2032 (7th Cir. 07/15/2009)

As Darvell York spoke to Tracy Mitchell about selling him "nine probably hard," law enforcement was listening. Agents had set up a sting to buy nine ounces of crack cocaine from York, and Mitchell was their informant. At York's trial, the government played the recorded conversations for the jury. Though York and Mitchell seemed to speak in plain English, without any reference to drugs, the government argued that they were really conversing in the cryptic, coded language of the narcotics trade. The government called two law enforcement witnesses to interpret this drug jargon for the jury.

These interpretations made clear that York and Mitchell were negotiating a drug deal, despite their words being facially benign-e.g., "nine probably hard" meant nine ounces of crack cocaine. After reviewing the admissibility of each agent's testimony, we find that the district court was correct in admitting the vast majority of the agents' translations; only a small portion of one agent's testimony was erroneously admitted.

Consequently, the crux of this case is whether those few errors were harmless. We conclude that they were and therefore affirm.

York was indicted on one count of knowingly and intentionally distributing cocaine base (specifically crack) in violation of 21 U.S.C. § 841(a)(1). His first trial ended without a unanimous verdict, resulting in a mistrial. York was retried a few months later. The government's case was nearly identical at both trials-the same witnesses testified at each and their testimony was substantially the same. In neither trial did the informant Mitchell testify.

At the second trial, the jury heard from a number of witnesses, including a chemist, a fingerprint expert, and a set of law enforcement officers. Two of those officers are of concern in this case.

The first was FBI Agent Mike Brown, who was one of the primary agents handling the investigation of York and who helped execute the sting. Brown explained the sting operation to the jury, described what the jurors saw as they watched the video of York meeting with Mitchell, and identified the voices in the audio recordings as Mitchell's and York's. He also said that he heard the sound of money being counted while eavesdropping when York and Mitchell were in the van.

But the government did not use Brown solely as a fact witness. Brown had extensive experience in prior drug cases. So the government, without first formally offering Brown as an expert, asked Brown to give his opinion about the meaning of certain words and phrases that Mitchell and York used in their conversations.

Brown wasn't the only witness to interpret the drug lingo in the recorded conversations. The government called (and formally offered) Officer Robert Coleman as an expert witness. Coleman had extensive experience in narcotics investigations but he was not involved with York's investigation. He only reviewed the transcripts of the recorded conversations so he could give his opinion on their meaning. Most of Coleman's translations of the code words were identical to Brown's-the words referred to drugs and drug paraphernalia.

A. Agent Brown's Interpretation Testimony

Through various interrelated arguments, York contends that Brown's interpretation testimony was inadmissible under Federal Rules of Evidence 702 and 403, Federal Rule of Criminal Procedure 16(1)(g), and the Sixth Amendment's Confrontation Clause. The district court should have excluded Brown's interpretations of the words "six," "five dollar," and fifty-five." The rest of Brown's interpretations, however, was admissible.

To begin, we must determine whether Brown's interpretations were admissible only as expert opinion testimony under Fed. R. Evid. 702. The government concedes that they were, and we agree.

Opinions or inferences based on "scientific, technical, or other specialized knowledge within the scope of Rule 702" are not admissible as lay testimony under Fed. R. Evid. 701. Such opinions or inferences, drawn from facts outside the witness's first-hand knowledge of the case, are admissible only as expert testimony. United States v. Conn, 297 F.3d 548, 553-54 (7th Cir. 2002). Brown's interpretation testimony fit the "expert" mold. For the most part, Brown did not claim that he learned the meaning of these words during the course of his investigation of York. United States v. Rollins, 544 F.3d 820, 833 (7th Cir. 2008) (finding law enforcement witness's interpretations of code words as admissible lay testimony where witness based interpretation only on listening first-hand to numerous recorded telephone calls in that particular investigation).

Expert testimony has its benefits for the party who offers it, but it also has its burdens. Rule 702 requires that an expert be qualified "by knowledge, skill, experience, training, or education" to render his opinion, and that the opinion "assist the trier of fact to understand the evidence or to determine a fact in issue."

Rule 702 also requires that "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." In addition, prior to trial, the government must disclose to the defendant a written summary of the expert's testimony, which "describe[s] the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Fed. R. Crim. P. 16(a)(1)(G).

1. Qualifying Agent Brown as an "Expert"

York argues that the government failed to fulfill a number of these burdens when it asked Brown to opine on the meaning of York's and Mitchell's conversations. First, York contends that Brown's interpretation testimony should have been excluded because the district court failed to formally "qualify" Brown as an expert and did not permit York to conduct a voir dire regarding Brown's qualifications. District courts have a "gatekeeping" duty to ensure that witnesses do not offer expert testimony before the court is satisfied that Rule 702's requirements are met. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).

We are hard-pressed to say that York's general foundation objection preserved any challenge to Brown's qualifications, the lack of voir dire, or whether Brown's testimony was based on "sufficient facts or data" and "reliable principles and methods." See Fed. R. Evid. 103(a)(1) (requiring a "timely objection . . . stating the specific ground of objection, if the specific ground was not apparent from the context" (emphasis added)); Rollins, 544 F.3d at 834. We have routinely held that "narcotics code words are an appropriate subject for expert testimony." United States v. Farmer, 543 F.3d 363, 370 (7th Cir. 2008). A law enforcement officer's understanding of the drug trade, which comes from that officer's prior experience policing illicit narcotics transactions, is "specialized knowledge" within Rule 702. Notably, York does not challenge Brown's qualifications, his methods, or the accuracy of his testimony here on appeal.

Along these lines, we find that York suffered no prejudice by being unable to conduct a formal voir dire of Brown before he testified.

2. Expert Disclosure Requirements

Next, York hints that the government ignored the expert disclosure requirements of Fed. R. Crim. P. 16(a)(1)(G). Indeed, it appears the government did. Since the government planned to elicit expert opinion testimony from Brown, it should have provided a summary of Brown's testimony to York's counsel prior to trial. See Oriedo, 498 F.3d at 604. But York never raised this issue below, which limits our review to plain error. United States v. Navarro, 90 F.3d 1245, 1259 (7th Cir. 1996). On appeal, York does not identify any prejudice that he suffered as a result of this non-disclosure, which would justify outright exclusion of Brown's testimony (or any other sanction under Fed. R. Crim. P. 16(d)(2) for that matter). We don't see how there could be any. Brown's testimony at York's second trial mirrored his testimony from the first.

3. Helpfulness of Agent Brown's Testimony

York next argues that Brown interpreted some words and sounds that were not drug code and therefore needed no interpretation. Specifically, York challenges Brown's interpretation of the numbers "six," "nine," "five dollar," and "fifty-five," as well as Brown's comment that he heard the sound of money being counted over the audio transmitter.

First, York contends that, by interpreting words already within the jury's understanding, Brown's testimony did not meet Rule 702's requirement that expert testimony "assist" the jury. Second, because these words and sounds were not "code," in York's view, Brown's testimony was not based on sufficient facts and reliable methods as Rule 702 requires. Because York's trial objection arguably encompasses these claims, we review them for an abuse of discretion. Farmer, 543 F.3d at 370.

Turning to that first claim, we have discussed that the Rules of Evidence allow expert law enforcement witnesses to translate drug jargon and code words that might seem entirely innocuous to an untrained jury. United States v. Ceballos, 302 F.3d 679, 687-88 (7th Cir. 2002). "Interpretations" of unambiguous words or phrases that are plainly within the jury's understanding are unlikely to be admissible under Rule 702; they would not "assist the trier of fact to understand the evidence or to determine a fact in issue." See United States v. Rollins, 862 F.2d 1282, 1292 (7th Cir. 1988). Instead, they would merely put an expert gloss on a conclusion the jury should draw.

In Ceballos, 302 F.3d at 687-88, we upheld agents' interpretations of simple pronouns such as "it," "them," and "both" as referring to methamphetamine shipments, in part, because defendants used those pronouns ambiguously in their conversation. Given this ambiguity, we concluded that the agents' experience interpreting drug code language would be helpful to the jury. Id. at 688; see also Rollins, 862 F.2d at 1292 (upholding agent's interpretation of "t-shirts," "stuff," and "it" as code words referring to cocaine).

Here, the terms "six," "nine," "five dollar," and "fifty-five" were facially ambiguous. Given our decisions in Ceballos and Rollins, we have no qualms concluding that Brown's interpretation of these vague terms would assist the jury.

4. Foundation for Agent Brown's Interpretations

But that alone doesn't mean Brown's testimony was admissible. Rule 702 requires more than a qualified expert and helpful testimony. Brown must have had a reliable basis for opining that words like "six" and "fifty-five" are in fact drug lingo. Fed. R. Evid. 702; see also Conn, 297 F.3d at 555 ("The second prong of the test set forth in Rule 702 requires that the testimony be the product of reliable principles and methods.").

York argues that words like "six" and "fifty-five" do not have "fixed meanings" and therefore should not be treated as drug code that an expert can interpret. We find York's view too narrow. Experts need not establish that certain words have fixed meanings only in the narcotics world or in the particular conspiracy before they can interpret those words. Experts can deter-mine, based on their expertise, that certain words have drug-related meanings within the context of a single conversation.

Between his expertise and the context of the conversation, Brown could interpret "nine" as the agreed-upon quantity and "six," "five dollar," and "fifty-five" as efforts to negotiate the price.

5. Dual Testimony

York argues that Brown impermissibly testified as both an expert and a fact witness in the same trip to the witness stand.

Though such a practice is routinely upheld, particularly where experienced law enforcement officers were involved in the particular investigation at issue, e.g., United States v. Mansoori, 304 F.3d 635, 654 (7th Cir. 2002),there are some inherent dangers with this kind of dual testimony, see Upton, 512 F.3d at 401.  For example, the witness's dual role might confuse the jury. United States v. Goodwin, 496 F.3d 636, 641 (7th Cir. 2007); Fed. R. Evid. 403. Or, the jury might be smitten by an expert's "aura of special reliability" and therefore give his factual testimony undue weight. United States v. Brown, 7 F.3d 648, 655 (7th Cir. 1993). Or, "the jury may unduly credit the opinion testimony of an investigating officer based on a perception that the expert was privy to facts about the defendant not presented at trial." Upton, 512 F.3d at 401.

Given these dangers, district courts must take some precautions to ensure the jury understands its function in evaluating this evidence. Id.

The protective steps taken in this case were not the model of how to handle a witness who testifies in a dual capacity. We recognize that the government established an adequate foundation for Brown's testimony, as we have discussed, outlining his years of expertise with drug investigations. Counsel repeatedly questioned Brown's basis for his understanding of the words, highlighting the fact that neither Mitchell nor York ever specifically mentioned cocaine or crack in their conversations. These measures went part of the way toward minimizing the dangers of dual testimony.

But the court and the government were less vigilant in instructing the jury and structuring Brown's testimony. For instance, though the court did instruct the jury on how it should evaluate opinion testimony from witnesses with special knowledge or skill, this instruction came at the end of the trial. It would have been far more effective for the court to have explained Brown's dual role to the jury before Brown testified and then flag for the jury when Brown testified as a fact witness and when he testified as an expert. See Upton, 512 F.3d at 401.

What gives us the greatest cause for concern, though, is the structure of Brown's testimony. The government started off well. It appropriately signaled to the jury that Brown was relying on his expertise and not his knowledge of York's investigation when it asked Brown whether, during his involvement in over 200 investigations, he learned some terms of the drug trade.

But then things got murky. The government switched back to questioning Brown about the investigation, which of itself might not have been problematic, had the government not decided, several moments into Brown's factual testimony, to go back and question Brown about a few more code words-"six," "fifty-five," and "five dollar."

Seamlessly switching back-and-forth between expert and fact testimony does little to stem the risks associated with dual-role witnesses. Even more problematic was the way in which the government prefaced these questions: "Based on your experience of [sic] crack cocaine investigations and this investigation in particular . . . ." (emphasis added). This phrasing explicitly mixed Brown's dual bases of knowledge, leaving the jury to wonder who was testifying, Brown-the-expert or Brown the-case-agent.

Given this heightened possibility for juror confusion, coupled with the lack of a timely cautionary instruction and the fact that we cannot discern whether Brown's interpretations were actually based on his expertise or a conversation with Mitchell, we conclude that the court erred in admitting Brown's responses to the government's questions about "six," "fifty-five," and "five dollar."

To review where we are at this point, we think that the district court should have excluded Brown's interpretations of "six," "fifty-five," and "five dollar" as improper dual testimony. But that doesn't mean we must reverse. Under either a plain error standard or an abuse-of-discretion standard. We are convinced that failing to exclude these three interpretations was harmless; the evidence against York was overwhelming.

AFFIRMED

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