Sunday, June 14, 2020

Case o' The Week: Convictions Fine, Though Cops Opine - Perez, law enforcement opinion testimony, and FRE 701

No disagreement to report, between Judges Tallman and Berzon.

Hon. Judges Tallman and Berzon

  United States v. Perez, 2020 WL 3089261 (9th Cir. June 11, 2020), decision available here.

Players: Decision by Judge Tallman, joined by Judges Berzon and R. Nelson.  

Facts: Perez and his co-defendants went to trial on charges arising out of their alleged participation in a violent gang. Id. at *1. The government called four law enforcement witnesses: a BOP investigator, two FBI agents, and a L.A. detective. Id. at *6. The BOP investigator analyzed tattoos, associations, visitations, fund deposits in prison, and communications with incarcerated gang members. Id. He also opined as to the “Mayan roots” of the gang. Id. at *7. The FBI agents matched gang members to monikers, translated gang jargon, and identified indicia of drug trafficking. Id. The agents also interpreted the meaning of graffiti, and opined on the interpretation of wiretaps. Id. The detective went as far as paraphrasing a gang member’s conversation in a way that “made their incriminating nature more clear.” Id. at *8. None of these witnesses were designated as Federal Rule of Evidence 702 experts.

Issue(s): “The four officers opined on a variety of subjects. Appellants claim that some of this testimony, including their opinions on ‘code words, phone calls, graffiti, and tattoos,’ was not permissible lay-opinion testimony.” Id. at *6.

Held:The district court diligently patrolled the line between lay and expert testimony. In those few instances in which admission of these four witnesses’ testimony was error, Appellants suffered no prejudice. We decline to disturb Appellants’ convictions on this basis.” Id. at *9.

Of Note: The clash between non-expert cop testimony and FRE 701 is a hot area of federal law. Notably, one of the three judges on this panel, Judge Berzon, has raised serious concerns about this dangerous practice. See United States v. Gadson, 763 F.3d 1189, 1223 (9th Cir. 2014) (Berzon, J., concurring and dissenting); see also Ninth Circuit Blog, on Gadson, here
  In Gadson, Judge Berzon surveyed the Ninth Circuit’s authority and warned, “These cases well identify the dangers of allowing a police officer—who is not an ordinary lay person—to testify based on masses of information not described in any detail to the jury. When our circuit held in Kevin Freeman that an agent’s ‘interpret[ation of] ambiguous statements based on his general knowledge of the investigation’ was permissible lay opinion testimony, it did not address these risks at all.” Id. at 1226. Despite Gadson, you’ll search in vain for Judge Berzon’s dissent in Perez. An unfortunate silence in the FRE 701 debate.

How to Use: How did Perez differ from Gadson? More pointedly, why did Judge Berzon dissent in the latter but not in the former? Maybe plain error review. Judge Tallman concedes in Perez that some of the testimony “approaches the line that Judge Berzon warned about in her partial concurrence in Gadson . . . .” Id. at *8. Judge Tallman concludes, however, that “A thorough examination of the transcripts of . . . phone conversations reveals they do not so much as mention any Appellant’s name or moniker, nor do they pertain in any way to [the defendants’] roles in [the gang]. There was no plain error in allowing this testimony.” Id. at *8. Judge Tallman concedes times that admission of the testimony might have been erroneous -- but the Court avoids the issue and decides the case on plain error (or, at times, harmless error) review. See e.g. id. (“Even granting, for sake of argument, that any error in admitting [the detective’s] opinions should have been plain to the district court, [the Appellants] cannot show that allowing the jury to hear those opinions affected their substantial rights or the fairness of the proceedings.”)
  Fight to limit Perez as a FRE 701 opinion that we should be cabined to its error analysis, and reject it as a broad endorsement cop psuedo-expert testimony.
For Further Reading: Gut tell you that our criminal justice system is racist?
  Trust your instincts. 

  For a compelling article gathering statistical proof, see, Radley Balko, There’s overwhelming evidence that the criminal justice system is racist. Here’s the proof.,” available here. (“A 2013 study found that after adjusting for numerous other variables, federal prosecutors were almost twice as likely to bring charges carrying mandatory minimums against black defendants as against white defendants accused of similar crimes.”)

Image of the Honorable Judges Tallman and Berzon from

Steven Kalar, Federal Public Defender, N.D. Cal. Website available at


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