Expert Tease

United States v. Mejia, No. 05-2856-cr (2d Cir. October 6, 2008) (Jacobs, Parker, Hall, CJJ)

Here, the improper admission of “officer expert” testimony resulted in a new trial.

Background

The defendants were convicted of participating in two drive-by shootings in connection with their membership in the MS-13 gang. One defendant was sentenced to sixty-three years’ imprisonment, the other to sixty.

A significant portion of the evidence against them, however, came from a New York State Police investigator who testified about the structure and organization of MS-13, as well as its “methods and activities, modes of communication and slang.” It turned out however, the officer’s sources for much of this information were suspect, including reports from other law enforcement officers, custodial statements from other gang members, internet research, and wiretaps that he listened to.

The Court’s Ruling

The court of appeals reversed, finding that much of the officer’s testimony was improper.

The court began with an interesting survey of the development of the so-called “officer expert,” in the 1980s, and of the court’s generally favorable response to this type of testimony. The court pointed out, however, that such testimony “must be limited to those issues where sociological knowledge is appropriate. An increasingly thinning line separates the legitimate use of an officer expert to translate esoteric terminology or to explicate an organization’s hierarchical structure from the illegitimate and impermissible substitution of expert opinion for factual evidence.” As an officer’s “purported expertise narrows from ‘organized crime’ to ‘this particular gang’ ... to the criminality of the defendant,” it becomes “a little too convenient” that the government “has found an individual who is expert on precisely those facts that the Government must prove to secure a guilty verdict - even more so when that expert happens to be one of the Government’s own investigators.”

Here, the agent strayed from his proper expert function in several ways. First, much of his testimony concerned material “well within the grasp of the average juror,” such as the fact that the task force had seized guns and ammunition from MS-13 members, and that MS-13 members had committed drug crimes and murders. The circuit noted that no expertise was required to understand any of those facts: lay testimony, arrest records, death certificates and “other competent evidence of these highly specific facts” was available and would readily have been understood by the jury. Similarly, the officer’s testimony about gang members’ travel patterns and the gang’s operations more generally, “went far beyond interpreting jargon or coded messages ... or explaining organizational hierarchy.” The court was particularly concerned about the officer’s testimony that MS-13 had committed “between eighteen and twenty-three murders since 2000.”

The court also condemned the officer’s improper use of hearsay. While an expert can rely on certain types of hearsay, he “may not, however, simply transmit that hearsay to the jury.” Here, the officer identified hearsay as the source of much of his information, and “at least some of his testimony involved merely repeating information he had read or heard.” Thus, he was not acting as an expert, “but instead as a case agent.” For similar reasons, the testimony violated Crawford by communicating the testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of an expert opinion.

Finally, the court concluded that the error was not harmless. The testimony was relevant to several contested issues, including whether the gang (1) was an enterprise, (2) affected commerce, (3) engaged in narcotics trafficking, and (4) engaged in acts of violence. The court accordingly vacated the convictions and remanded the case to the district court for a new trial.

A Family Affair

United States v. Yannotti, No. 06-5571-cr (2d Cir. September 4, 2008) (Katzmann, Parker, Raggi, CJJ)

Michael Yannotti was one of several Gambino crime family members accused of multiple violent acts - including extortion, loansharking and murder. After a jury trial, he was convicted of a RICO conspiracy, although the only predicates that the jury could agree that he committed were loansharking activities that had taken place eight years or more before he was indicted. The jury did not reach a verdict on a substantive RICO count, which the district court then dismissed on the ground that the government had failed to prove that Yannotti committed any predicate within the five-year statute of limitations. But the court did not dismiss the conspiracy count and, when it sentenced him, based its findings on conduct that the jury had not agreed that the government had proven. Yannotti received twenty years in prison, the statutory maximum.

The court of appeals affirmed both the conviction and the sentence.

1. Sufficiency of the Evidence

Yannotti first claimed that the evidence that he participated in a RICO conspiracy was insufficient. He specifically argued that the government did not prove that he was a member of the charged RICO conspiracy, which he maintained was defined by the pattern of racketeering acts charged in the indictment and not merely by his membership in the Gambino family.

The circuit held that its precedents “undermine[d]” Yannotti’s “core argument,” even as it agreed that there was no proof of his personal involvement in a predicate act that occurred within the statute of limitations. Specifically, the agreement proscribed by the racketeering conspiracy statute is the agreement “to participate in a charged enterprise’s affairs” and not one to “commit predicate acts.” Moreover, a conspirator need not be fully informed about his co-conspirators’ specific criminal acts, as long as he agreed to participate in the broader criminal conspiracy and the acts evincing his participation were within the scope of the illegal agreement.

Accordingly, here, the evidence was sufficient. The Gambino family was an enterprise whose members “routinely conducted its affairs through a nearly limitless range of racketeering activities.” Moreover, Yannotti had been formally inducted as a “solder” in the family, and had pledged to use any means necessary to further its objectives. Thus a jury could reasonably find that he agreed to participate in the family’s affairs.

Nor was there any time bar. A RICO conspiracy is only complete for statute of limitations purposes when its purposes have either been accomplished or abandoned. Thus, even if all of Yannotti’s own conduct occurred outside the statute of limitations, he was still liable, absent proof that the conspiracy concluded or that he withdrew.

2. Evidentiary Issues

Yannotti challenged two evidentiary rulings, both relating to two 1996 phone calls in which he discussed loansharking.

a. The Wiretap

First, he challenged the admission of the calls themselves because the conversations were obtained via a court-ordered wiretap, but Yannotti himself was not named in the wiretap application.

The circuit found no error. The application did not limit the request to conversations made to and by the owner of the target telephone. It included him, six associates, and “others as yet unknown,” and there is no legal requirement that the government specify in the application “each individual whose conversations may be intercepted.” Here, in authorizing the interceptions, the court properly found probable cause to believe that other unnamed targets would use that phone. Moreover, the intercepts were appropriately limited to conversations that addressed the conspiracy’s affairs. This and the order’s temporal limitations were adequate safeguards to prevent it from being transformed into a “general warrant.”

b. Lay Witness Opinion Testimony

Over objection, the district court permitted a Gambino family member to interpret comments that Yannotti made during the two conversations. Under Rule 701, a lay witness can only give opinion testimony if the opinion is (1) rationally based on his perceptions, (2) helpful to the determination of a fact in issue and (3) not based on scientific, or other specialized knowledge. Yannotti argued that this third prong was not satisfied, because the witness based his testimony on his specialized knowledge of the Gambino family’s operations.

The circuit disagreed. The first two prongs of the rule were clearly met here. The witness had been personally involved in the loansharking activities of the Gambino family, and his testimony was unquestionably helpful to the jury.

Thus, the court held, “where a witness derives his opinion solely from insider perceptions of a conspiracy of which he was a member, he may share his perspective as to aspects of the scheme about which he has gained knowledge,” and may do so as a lay witness under Rule 701. This is so despite the third prong of the rule. Here, the witness’s opinions came from his own loansharking experience and hence “derived from a reasoning process familiar to average persons,” and did not “depend on the sort of specialized training that” expert witnesses rely on “when interpreting the results of their own experiments or investigations.”

3. The Sentencing

When the court sentenced Yannotti, it took into account, for guidelines purposes, an attempted murder that the government had not proven beyond a reasonable doubt, but that the court concluded had been proven by a preponderance of the evidence.

Yannotti argued that the court violated U.S.S.G. §1B1.2(d), which provides that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” He asserted that this means that the guideline range for participation in a RICO conspiracy can be calculated based only on those predicate acts of which the defendant was actually convicted.

The circuit disagreed. The charged conspiracy, although it involved multiple racketeering predicates, was not the kind of “multi-object conspiracy” referenced in § 1B1.2(d). Rather, the sole object of the conspiracy was to further the affairs of the Gambino family. Despite all of the various acts that made up this pattern of activity, the underlying objective was this singular one. “Because overt acts are not distinct offenses that must be proven to sustain a RICO conspiracy conviction, and the RICO conspiracy charged in this case is appropriately viewed as a single-object conspiracy ... U.S.S.G. § 1B1.2(d) is inapplicable.”