Sunday, October 26, 2014

Case o' The Week: Crawford + Apprendi = Magic -- Salvador (aka "Magic") Vera and Cop Expert Testimony

Hon. Judge Raymond Fisher

Mix Crawford and Apprendi, and good things are bound to follow.
United States v. Vera, 2014 WL 5352727(9th Cir. Oct. 22, 2014), decision available here.

Players: Decision by Judge Fisher, joined by Judges Noonan and Wardlaw.

Facts: Wiretaps on Vera and others produced an indictment alleging conspiracy to distribute a variety of drugs (although only 24 grams of heroin were actually obtained in the investigation). Id. at *1-*2. Seventy wiretap calls were the primary evidence at trial.. Id. at *2. Two case agents testified, mingled percipient witness testimony with “expert” testimony on gangs, and intercepted the meaning of the calls. Id. at *2-*3. The defense essentially conceded the conspiracy charge, and focused on the adequacy of the government’s proof of drug type and quantity. Id. The jury returned guilty verdicts, and special verdicts on drug type and quantity. Vera was sentenced to 30 years. Id. at *3.  

Issue(s): “This appeal requires us to revisit issues that arise when law enforcement officers offer both expert and lay opinion testimony interpreting the meaning of intercepted telephone calls.” Id. at *1. “The defendants argue that [the testimony of FBI Agent Lavis] was improper because it (1) impermissibly mixed lay and expert opinions; (2) served as a conduit for testimonial hearsay in violation of Crawford; (3) was not the product of reliable principles and methods; and (4) included impermissible lay opinions.” Id. at *7.

Held: “We again emphasize that such expert opinions must rest on reliable methodology; that such lay opinions may not be supported by speculation or hearsay, or interpret unambiguous, clear statements and that the jury must be instructed on how to appropriately evaluate each form of testimony offered by the officer.” Id. at *1.  

  “We affirm the admission of the gang testimony but reach a different conclusion regarding the testimony interpreting the recorded calls. Because that testimony intermingled lay and expert opinion, the district court’s failure to explain the distinction to the jury constituted plain error. Additionally, this intermingling resulted in the admission of improper expert and lay opinions, which also constituted plain error. Because these error affected the drug quantities found by the jury in a special verdict, and therefore the mandatory minimum sentences the defendants faced, they affected the defendants’ substantial rights and seriously affected the fairness of the judicial proceedings. Accordingly, we vacate the drug quantity findings and the defendants’ sentences.” Id.

Of Note: While this is a great decision on cop “experts” and wiretaps, note the less-welcome decision on gang testimony. Id. at *5. Judge Fisher distinguishes the Second’s great decision in Mejia, and finds no Crawford violation in a detective’s gang opinions. Id. Nonetheless, the opinion does shine in its principled analysis of cops’ testimony on drug jargon. Id. at *8. Investigating agents who also testify as “experts” must be accompanied by an instruction on the differences between percipient and expert testimony. Id. at *8. Moreover, FRE 701 and 702 foundation requirements apply to the testimony – no speculation, no reliance on hearsay, and no “interpretation” of clear and unambiguous statements.Id.

How to Use: The rubber hit the road when Agent Lavis’s opinions on drug weights from the calls – made without adequate foundation – “resulted in admission of specific drug quantity opinions that did not rest on reliable methods.” Id. This intersection of Crawford and Apprendi meant that the high sentences based on quantity are vacated. Id. at *15. In a question of first impression, Judge Fisher concludes the remedy is to remand to a new sentencing jury. Id. Because agent “expertise” is so often abused in this area, this holding is particularly potent stuff and worth a close read in wiretap and drug conspiracy cases.
For Further Reading: The BOP has told the Sentencing Commission that it will take ten months for it to arrange for reentry programs for drug offenders to be released on Nov. 1, 2015. This means a deadline of signed release orders by January 15, 2015. For a summary of the numbers of folk facing this deadline, see Commission memorandum here

Image of the Honorable Judge Raymond Fisher from

Steven Kalar, Federal Public Defender ND Cal. Website at


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