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Fed. R. Evid. 701 provides that if a witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
At the end of May 1994, federal agents arrested Darryl Storm. Storm and others were charged with conspiracy to distribute cocaine and marijuana, and with money laundering. Storm agreed to cooperate with the government and provided agents with a list of names of narcotics traffickers known to him. This list included Lopez, although at that time Storm only knew him as "Raul." At the instruction of DEA Agent Sam Larsen, Storm contacted Lopez to explore whether Lopez would sell him some narcotics. Storm met with Lopez on February 1, 1995. According to Storm, Storm told Lopez that he wanted to buy 5-10 kilograms of cocaine. On March 24, 1995, Storm taped a telephone conversation with Lopez, during which Lopez offered to sell Storm ten kilograms of cocaine for $170,000. Lopez and Storm used oblique terminology borrowed from the construction industry to refer to the type, quantity, and price of the drugs. On March 27, 1995, Storm again met with Lopez. Lopez gave Storm a sample of cocaine. During the next month, Storm and Lopez spoke by telephone several times about the impending cocaine deal. These conversations were recorded. On May 25, 1995, Storm called Lopez and arranged to meet later that day to complete the cocaine transaction. Before meeting with Storm, Lopez drove in circles around the parking lot in a Monte Carlo. Storm and Lopez then met in the parking lot. Lopez drove away from Storm and parked next to a silver Nissan Sentra. Lopez entered the Nissan, bent down for several minutes, and then returned to the Monte Carlo. Lopez returned to Storm's location and showed Storm a kilogram package of cocaine. Storm gave the arrest signal, and agents arrested Lopez. In the Monte Carlo, the agents found the keys to the Nissan and one kilogram of cocaine on the floor below the front seat. In the Nissan, the agents found nine kilograms of cocaine concealed in the car's door panels. Throughout the trial, the Government presented opinion testimony by law-enforcement witnesses as to how Lopez's conduct, as observed by the agents, conformed to the methods and techniques of experienced drug dealers. Lopez objected to this testimony, claiming that it was "improper opinion testimony," hearsay, lacking foundation, and speculative. He also argued that it was improper expert testimony because the Government had not given prior notice as required by Federal Rule of Criminal Procedure 16(a)(1)(E). Agents repeatedly referred to Lopez's actions as consistent with an "experienced narcotics trafficker,” which the prosecution heavily relied on. The district court overruled Lopez’s objections and convicted him of possession of cocaine with intent to distribute.
Was the testimony of the agents regarding Lopez’s actions being consistent with an “experienced narcotics trafficker” inadmissible for being the improper subject of lay opinion testimony?
Lay witness testimony is governed by Rule 701, which limits opinions to those "rationally based on the perception of the witness." Rule 702, on the other hand, governs admission of expert opinion testimony concerning "specialized knowledge." The testimony in this case was precisely the type of "specialized knowledge" governed by Rule 702. A holding to the contrary would encourage the Government to offer all kinds of specialized opinions without pausing first properly to establish the required qualifications of their witnesses. The mere percipience of a witness to the facts on which he wishes to tender an opinion did not trump Rule 702. Otherwise, a layperson witnessing the removal of a bullet from a heart during an autopsy could opine as to the cause of the decedent's death. Surely a civilian bystander, or for that matter a raw DEA recruit would not be allowed to interpret for the jury Lopez's behavior in the parking lot on May 25, 1995 as that of an "experienced" trafficker merely because that person was an eyewitness to the same. In sum, rather than testimony "based on the perceptions of the witness", the bulk of the above opinion testimony was properly characterized as testimony based on the perceptions, education, training, and experience of the witness. It required precisely the type of "specialized knowledge" of law enforcement governed by Rule 702.