Case o' The Week: ICE, ICE, Baby - Torralba and Expert / Cop / Lay Opinion
So, the ICE Agent testifies as an expert. And as a lay witness. And narrates surveillance video. And interprets phrases on calls. And opines as to the conspiracy leadership.
Just think of it as cost-containment (consider the government's savings on witness fees).
United States v. Torralba-Mendia, 2014 WL 1903831 (9th Cir. Apr. 28, 2015), decision available here.
Players: Decision by visiting D.J. Joseph Murphy, joined by Judges Tallman and Rawlinson.
Facts: ICE investigated a human smuggling operation in Arizona for three years. Id. at *1. Agents observed and heard Torralba driving suspected undocumented immigrants for an involved shuttle service, doing counter-surveillance, and reporting whether ICE checkpoints were in operation. Id. At trial the government called ICE Agent Frazier as both an expert and a lay witness. Id. at *2. Agent Frazier testified how smugglers avoid checkpoints and provided ways to “distinguish between a guide and an expert.” Id. After giving this general “expert” testimony, Frazier then (very generally) transitioned and testified about his observations in this case. Id. He interpreted phrases on calls and opined as which of the conspirators were the leaders. Id. There was no defense objection.
Issue(s): “[Torralba] argues the district court incorrectly allowed an expert witness to testify about common practices of alien smuggling organizations. He contends the district court erred in allowing the case agent to offer both lay and expert testimony without giving a curative instruction.” Id. at *1. “Torralba challenges the government’s use of Agent Frazier as both an expert and lay witness. He contends the district court erred by not instructing the jury on how to evaluate Frazier’s dual role testimony, and that much of Frazier’s testimony invaded the province of the jury.” Id. at *2.
Held: “We hold that, in light of our opinion in United States v. Vera, 770 F.3d 1232 (9th Cir. 2014), the district court committed plain error by not instructing the jury on how to properly evaluate Frazier’s testimony. Nonetheless, we find that the error was not prejudicial because the government bifurcated Frazier’s expert and lay opinion testimony, there was an adequate foundation for Frazier’s observations, and sufficient evidence independent of Frazier’s testimony linked Torralba to the conspiracy.” Id.
Of Note: There is a quirky component to this case. Dual role testimony (expert and lay) requires clarifying instructions in the Ninth (see Vera). Here, the government offered a jury instruction for this dual role, and the district court also offered to instruct the jury on it. Id. at *3. The defense objected to the government instruction – but failed to offer an instruction of its own, and did not object to the ultimate general instructions given. Id. The Ninth notes a “small degree of invited error” when the defense failed to submit an instruction. Id. The strategic lesson is that dual role testimony requires a specific defense objection (and ideally, defense-proposed dual role jury instructions) to avoid the high bar of the “substantial rights” prong of plain error. That high bar ultimately cost the appellate win here. Id. at *6.
How to Use: While the challenge failed under plain error “substantial rights” review, the Ninth still offers a useful endorsement of the Vera requirements for dual role (“expert” and “lay” witness) testimony. Id. at *2. Less welcome is the Court’s broad tolerance of this agent narrating videos, interpreting phrases, and opining as to the conspiracy’s leadership. Id. at *5-*6. Take a close look at the case if confronting the unholy hybrid of “expert” cop and lay testimony – and unlike Torralba, object when the “expert / cop / lay witness” ventures into these realms.
For Further Reading: “While there is growing bipartisan support in Congress for changing the mandatory-minimum sentencing law, one potential stumbling block remains stubbornly in place: U.S. Sen. Charles Grassley, who as chairman of the Senate Judiciary Committee is in a position to allow federal sentencing reforms to move forward.” A compelling editorial urging sentencing reform. Is it from the S.F. Chronicle? The Guardian? High Times?
Nope – straight from the Des Moines Register (in Sen. Grassley’s home state). See full editorial here.
Image of ICE Agent from http://ia.media-imdb.com/images/M/MV5BMTg2ODI1MDAxNF5BMl5BanBnXkFtZTcwNjg3MjY3OQ@@._V1_SY317_CR16,0,214,317_AL_.jpg
Steven Kalar, Federal Public Defender. Website at www.ndcalfpd.org