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United States v. Eiland

October 2, 2006


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


This matter comes before the Court on the pre-trial motions of defendants. First, Defendant Butcher filed, on July 21, 2006, the following motion: a Motion*fn1 [711] to Prevent Government From Using So-Called Opinion Evidence That is Really Disguised Hearsay and Points of Authority in Support Thereof.*fn2 Second, Defendant Eiland filed, on July 15, 2006, a Request [697] for Government Compliance with F.R.Cr.P. 16(a)(1)(G)'s Requirements Regarding Notice of Expert Testimony and Motion In Limine.

The United States filed, on August 1, 2006, an opposition [727] to defendant Butcher's pre-trial motion.*fn3 The government also filed, on August 1, 2006, an opposition brief [728] to defendant Eiland's motion. All parties appeared before this Court for a hearing on August 14, 2006.

Upon a thorough review of each party's filings, the applicable law and the entire record herein, this Court has determined that the aforementioned motions shall be GRANTED IN PART and DENIED IN PART.


The four defendants are charged in a forty-nine count Superseding Indictment ("Indictment"). All defendants currently pending trial are charged in Count One, Narcotics Conspiracy and in Count Two, RICO Conspiracy. Defendants Eiland and Miller are charged also in Count Three, Continuing Criminal Enterprise. At least one but not all remaining defendants are also charged with the following: possession with intent to distribute narcotics (Counts 8-9, 11-13, 15-16); distribution of narcotics (Count 10); use of a communications facility to facilitate possession with intent to distribute narcotics (Counts 17-49).*fn4 The trial testimony for the four defendants shall commence on October 3, 2006.


A. Motion Relating to Lay Opinion and Expert Testimony

Defendant Butcher, joined by the remaining defendants, filed a motion requesting that the Court "take steps to insure that, when the government calls law enforcement officers to interpret the intercepted phone calls for the jury, those witnesses' opinions are based either on the witnesses' personal knowledge or on their specialized knowledge, skill, experience, training, or education. . . ." (Def. Butcher's Mot. [711] 4.) Defendants also moved this Court to limit the scope of expert testimony to their fields of expertise. (Def.'s Request for Gov. Compliance [697] 3.) Of paramount concern to the defendants is that the witnesses do not base their opinions upon out-of-court statements made to them by government cooperators. (Id.) Such an occurrence, they contend, would amount to the improper use of inadmissible hearsay, as well as violate the defendants' Sixth Amendment rights to confrontation. (Id. at 3.)

In response, the government asserts that a law enforcement witness may provide opinion testimony as a lay or expert witness under either Federal Rule of Evidence 701 or 702. (Gov.'s Opp. Br. [727] 1.) The government contends that its witnesses "can satisfy the requirements of Rule 701." (Id. at 5.) Incorporating by reference its previous opposition brief, the government posits that, to the extent that it must qualify its law enforcement witnesses as experts as to the meaning of coded language in intercepted conversation and as to the meaning of commonly used terms in narcotics trafficking, the court should allow these witnesses to be qualified as experts in those fields. (Gov.'s Opp. Br. [616] 4.)

1. This Court's Gatekeeping Obligation under Kumho and Daubert

At the outset, defendants allege that, under Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the Court is obligated to perform a "gatekeeping function to insure that only proper opinion testimony is presented to the jury" for both lay opinion and expert testimony. (Def. Butcher's Mot. [711] 3.) Accordingly, they argue, before a law enforcement officer testifies as to the meaning of wiretapped phone calls, this Court must determine "to what extent [the officer's] testimony is based either upon his personal knowledge or his specialized knowledge, skill, experience, training, or education . . . ." (Id. at 3-4.)

Neither Kumho nor Daubert, however, establish such a requirement for the Court for instances involving lay opinion testimony. In fact, both Kumho and Daubert impose a gatekeeping function solely for the purpose of insuring the relevance of expert testimony, and the reliability of the foundation upon which expert testimony is founded. Kumho, 526 U.S. at 141 (applying Daubert's reliability and relevance test "not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' knowledge); Daubert 509 U.S. at 596-97. As the Daubert Court pointed out, it is the very fact that Rule 702 lacks a "firsthand knowledge or observation" requirement, as is seen under Rule 701, that necessitates the Daubert/Kumho test in the first place. See id. at 592. Moreover, it is well settled in this Circuit that the trial judge should have "broad discretion in admitting testimony of lay witnesses." United States v. Williams, 212 F.3d 1305, 1309 n.6 (D.C. Cir. 2000).

Accordingly, this Court will not extend the Kumho/Daubert rationale to the Court's assessment of lay opinion testimony offered by any party. Instead, it will limit such determinations to the admissibility of expert witnesses, to the extent the government uses such witnesses. With respect to lay opinion testimony, the Court will ...

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