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Although the government may ordinarily call on law enforcement officials to decipher drug jargon, district courts, in their role as gatekeepers, must be ever vigilant against expert testimony that could stray from the scope of a witness' expertise. When an expert is no longer applying his extensive experience and a reliable methodology, his testimony should be excluded. Moreover, when an expert's testimony strays from the scope of his expertise, the testimony may well implicate Fed. R. Evid. 403, which provides in pertinent part that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury.
Several years ago, a team of DEA agents worked with a paid informant to investigate the activities of Carlos Medina. Eventually, Brian Fleming, the case agent assigned by the DEA to manage the operation, directed the informant, Enrique Ramos, to meet with Medina at a Boston Market in Queens, New York and to purchase approximately 900 grams of heroin from him. In accordance with these instructions, Ramos spoke with Medina and arranged to meet him at the restaurant on December 13, 2000, for the purpose of buying the heroin. On the Friday before this narcotics transaction took place, defendant Cruz was approached by an intermediary who apparently asked Cruz if he would assault several Ecuadorian men in exchange for $ 200. When Cruz agreed to do so, the intermediary arranged for a follow-up meeting with him on December 12, 2000. Medina attended this subsequent meeting and discussed the planned assault with Cruz. After Cruz affirmed his agreement to assault the Ecuadorians, he was told that he needed to return for a third meeting on December 13, 2000. However, on arriving the following day, Cruz was informed that events were not proceeding according to plan. Cruz was told that he initially needed "to watch" Medina's "back" while Medina finalized a "deal." He also learned that the so-called "deal" would be taking place at the aforementioned Boston Market. In the interim, Fleming had assigned a surveillance unit of DEA agents to observe the Market and the surrounding area in an effort to monitor the meeting between Medina and Ramos. Cruz and Rodriguez eventually entered the Boston Market, ordered food at the counter, and took a seat towards the side of the restaurant. Subsequently, Medina also arrived at the Market and sat at a different table with Ramos, who had arrived earlier and had been waiting for him. Ramos and Medina discussed the narcotics transaction and agreed that Medina would sell Ramos the heroin "right there." Neither Cruz nor Rodriguez had any contact with either Medina or Ramos while they were in the restaurant. After Medina and Ramos finalized their negotiations, Medina left the Boston Market. Not long thereafter, DEA agents noted that Cruz and Rodriguez also left the Market and drove off in the Lincoln Town Car. More than half an hour later, the agents observed the Town Car return to the Market. Medina stepped out of the vehicle's front-side passenger seat and waved towards Ramos. In response, Ramos walked over to the car, stepped inside, and sat down in the back. At that stage, he noticed that Cruz was sitting in the driver's seat. Medina eventually directed Ramos' attention towards a telephone box that had been placed in the back of the vehicle behind the driver's seat. When Ramos opened the box, he found heroin hidden inside a plastic bag within the box. Once he saw the drugs, Ramos informed Medina that he would soon return with the money for the heroin. When he stepped out of the Lincoln Town Car, Ramos gave a pre-arranged signal to the DEA agents. The signal informed the agents that he had seen the heroin and that they should move in to effectuate arrests. After they received the signal, the DEA agents closed in on the car. They seized the heroin and arrested both Medina and Cruz. During Cruz’s trial, DEA Special Agent Mark Tully testified that Cruz told him that h e had not known that he had agreed to take part in a "drug deal." Rather, Cruz explained that he "knew it was some kind of a deal, but not a drug deal." Cruz purportedly informed Tully that he was not certain whether he and Medina "were going to be picking up money or if [they] were going to be delivering drugs, [he] didn't know which one it was." He was just there to allegedly “watch [Medina’s] back while he did business.” The prosecution had Tully explain in length what this statement meant based on his experience as an agent. The jury subsequently acquitted Cruz of conspiring to distribute a substance containing heroin but found him guilty of possession with intent to distribute a substance containing heroin in an amount of 100 grams or more.
Did the court err in allowing Tully to offer expert testimony regarding the meaning of a phrase that Cruz employed to explain his purportedly unwitting role in the transaction?
The government attempted to minimize the scope of that testimony by suggesting that Tully merely explained "that narcotics traffickers typically bring additional people to a drug deal to work as lookouts." This characterization was a less than apt description of the expert testimony the government elicited from Tully. The DEA agent did not simply elaborate on the typical presence of lookouts at drug deals. Rather, Tully relied on his expert opinion to interpret the meaning of the phrase "to watch someone's back" after Cruz used those terms to describe his role at Medina's side on December 13, 2000; Tully employed his expertise to construe that phrase in a fashion that attributed such conduct specifically to a "lookout" in a drug deal. Although the high court has refused to prohibit categorically the use of law enforcement officials as experts, district courts must "avoid falling into error by being vigilant gatekeepers of such expert testimony to ensure that it is reliable and not substantially more unfairly prejudicial than probative." Unfortunately, the district court in this instance failed to satisfy its obligations as a gatekeeper. The court not only allowed the government to overreach by admitting expert testimony regarding the meaning of words that did not fall within the ambit of drug jargon, but also actively assisted the government in leading Tully to stray from the scope of his expertise. The government failed to introduce evidence to demonstrate that the phrase constituted drug jargon with a fixed meaning within the narcotics world rather than a phrase that could have equally referred to activities with no relation to narcotics transactions. Under these circumstances, Tully strayed from the scope of his expertise when he offered expert opinions regarding the meaning of this ambiguous phrase and the district court manifestly erred by not only allowing the government to elicit such testimony but actively prompting the government to do so.