Case o' The Week: Anchrum, Anchorage and Experts - Lay and Expert Witness Testimony

Gun a Ford Focus, aim it at a DEA Agent, and hit him as he frantically dives for cover. Any problem with that injured agent later testifying at the defendant's trial as a neutral, detached, dispassionate "expert" witness, and answering hypotheticals that mirror the crime charged?

"Nah," says the Ninth. United States v. Anchrum, __ F.3d __, 2009 WL 5125788 (9th Cir. Dec. 30, 2009), decision available here.

Players: Hard-fought case by Alaska AFPD Michael Dieni. Decision by Judge Tallman.

Facts: A suspicious postal inspector lead to a warrant, then a controlled delivery of a box full of drugs. Id. at *1. Michael Anchrum signed for the box, then left in a Ford Focus. Id.

Realizing that he was being followed, he lead DEA Agents in a chase through Anchorage. Id. This culminated in Anchrum gunning the Ford and driving at Agent Solek, who had left his car; Anchrum hit Solek’s knee as the agent dove out of the way. Id. After then hitting another police car, Anchrum fled on foot and was arrested. Id. at *2.

A search of the Ford revealed two pistols, a scale, and the controlled-delivery box. Id. At trial on gun, drug, and assault charges, Agent Solek – the agent who had been hit by the Ford – testified as a percipient witness. Id. There was a sidebar, the AUSA started a question with, “I’d like to shift gears a bit,” and then the same agent then testified as an “expert” witness on drug dealing and guns. Id. The jury convicted on all counts and Anchrum was sentenced to 157 months.

Issue(s): (Among others): “Anchrum claims . . that the government’s use of United States Drug Enforcement Administration . . .Special Agent Kenneth Solek as both a lay and expert witness resulted in testimony inconsistent with this court’s holding in United States v. Freeman, 498 F.3d 893, 904 (9th Cir.2007), as well as Federal Rule of Evidence . . .704(b).” Id. at *1.

Held: “When the district court divided Agent Solek’s testimony into two separate phases it avoided blurring the distinction between Agent Solek’s distinct role as a lay witness and his role as an expert witness. Not only were these two phases separated temporally by a sidebar, but when the prosecutor began the expert phase, she stated, ‘Agent Solek, I’d like to shift gears here a little bit and talk about some of your education, professional training, and law enforcement experience.’ Accordingly, we find that the concerns we expressed in Freeman were avoided here and the district court did not exceed the permissible bounds of its discretion in admitting Agent Solek’s testimony.” Id. at *7.

Of Note: In the 2007 Freeman case, the Ninth devotes several pages to explaining the dangers of permitting an agent to testify to as both a lay witness and an expert witness (dangers that came to pass in Anchrum). The Court in Freeman reviewed for plain error, because the defense did not object to the dual roles of the agent-witness (a fact not revealed in the Anchrum opinion, which involves the less-deferential abuse of discretion standard).

Finally, the Court in Freeman emphasized “the necessity of making clear to the jury what the attendant circumstances are in allowing a government case agent to testify as an expert. If jurors are aware of the witness’s dual roles, the risk of error in these types of trials is reduced.” Id. It is hard to discern that clear explanation of the dual roles in Anchrum – a sidebar and “shifting gears a little bit” is, a best, a muddy demarcation line for a jury. The panel attempts to cram Anchrum into the Freeman holding by describing two “phrases” of the agent’s testimony – but those phases seem to be labels applied by the Ninth, rather than divisions created at trial.

How to Use: Many good district court judges will refuse to let the government go as far as Anchrum. If this regrettable dual-witness scheme has to happen, object, then insist on a clear instruction delimiting the two roles of the witness-agent. A significant temporal break between the testimony would also help. On facts less egregious than those of Anchrum a different Ninth Circuit panel may not tolerate these blurred witness roles.

For Further Reading: For more discussion on the Freeman decision – including a tip on a Confrontation Clause challenge – visit the blog entry for that case here.

Image of the Ford Focus from http://keetsa.com/blog/eco-friendly/which-car-is-best-for-a-back-to-school-teen/ .

Steven Kalar, Senior Litigator, N.D. Cal. FPD. Website at www.ndcalfpd.org

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