United States v. Watson

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

8-9-2001

United States v. Watson

Precedential or Non-Precedential:

Docket 00-2826

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Filed August 9, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 00-2826

UNITED STATES OF AMERICA

v.

BRUCE WATSON

aka George Flamer

Bruce Watson,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 98-cr-00147-1)

District Judge: Honorable Thomas I. Vanaskie,

Chief Judge

Argued: March 14, 2001

Before: RENDELL, AMBRO and BRIGHT,*

Circuit Judges

(Filed: August 9, 2001)

Michael C. Kostelaba [ARGUED]

630 North Main Street

Wilkes-Barre, PA 18705

Counsel for Appellant

Bruce Watson

_________________________________________________________________

* Honorable Myron H. Bright, United States Circuit Judge for the Eighth

Circuit Court of Appeals, sitting by designation.

George J. Rocktashel [ARGUED]

Office of United States Attorney

240 West Third Street, Suite 316

Williamsport, PA 17701

Counsel for Appellee

United States of America

OPINION OF THE COURT

BRIGHT, Circuit Judge.

Bruce Watson ("Watson") appeals his judgment of

conviction and sentence for distribution and possession

with intent to distribute cocaine base (also known as crack

cocaine or crack) in violation of 21 U.S.C. S 841(a)(1). He

was convicted and sentenced to 210 months imprisonment,

three years of supervised release, and a $100 special

assessment. Watson argues that the District Court should

not have permitted narcotics agents to testify about general

drug culture practices on substantive and foundational

grounds in violation of Fed. R. Evid. 702, and that the

District Court erred in allowing expert testimony concerning

his mental state under Fed. R. Evid. 704(b). We reject

Watson's first argument. However, we reverse the judgment

of conviction and remand the case to the District Court

because the Government's experts improperly testified that

Watson's mental state was to distribute the cocaine base

rather than to use the narcotics personally.

I. BACKGROUND

In 1998, Pennsylvania law enforcement officers received

information that Watson was traveling on a Susquehanna

Trailways bus to Williamsport, Pennsylvania to purchase

drugs. Law enforcement officers Ronald Paret and Kirk F.

Schwartz met the bus in Lehighton, boarded the bus,

publicly announced that they were law enforcement officers

conducting a drug investigation, and that passenger

cooperation would be appreciated but was not required.

Watson was sitting by himself. The officers asked him

some routine questions, Watson denied having a ticket, and

he denied having identification. Watson picked up a bag

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lying on the seat next to him, began removing items from

the bag, and a marijuana cigarette fell out. Watson

admitted possession, a brief scuffle ensued, and Watson

resisted arrest. After the officers restrained Watson they

noticed a crumpled piece of paper on the floor next to him.

The crumpled paper, which was from the Lycoming County

Public Assistance Office in Williamsport, had Watson's

name on it, and it contained crack.

The officers transported Watson to the Pennsylvania

State Police barracks in Lehighton. During processing

investigators recovered four packages of marijuana and

approximately 100 small plastic bags. Watson explained

that he took his bus trip to attend a funeral and that the

plastic bags were for a friend. Laboratory tests revealed a

total of 2.4 grams of crack cocaine and 7.42 grams of

marijuana.

During the trial, Officer Schwartz provided testimony

concerning the 100 plastic bags found on Watson:

[MR. ROCKTASHEL:] Now, based on your experience

and training of purchasing drugs and working as a

Narcotics Investigator, have you formed an opinion, as

to whether or not the substance contained in

Government Exhibit 1 was possess [sic] with the intent

to distribute, transfer or deliver or the intent to

personally use that drug?

MR. CASEY: Objection. This witness is not

competent to testify as to the mental state of the

Defendant. That's the jury's prerogative, and Federal

Rule [of Evidence] 704(b) specifically precludes it.

THE COURT: Overruled.

MR. ROCKTASHEL: You may answer the question,

sir.

[MR. SCHWARTZ]: I believe it was possess [sic]

with the intent to distribute to somebody else.

(App. at 58.)

Later, Officer Gordon Mincer testified that the crack

found on Watson was consistent with someone selling

cocaine rather than using it for personal consumption.

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Mincer also testified about the 100 plastic bags found on

Watson. Before Mincer provided his testimony, the District

Court overruled Watson's objection under Fed. R. Evid.

704(b). Mincer provided the following testimony:

[MR. ROCKTASHEL:] Now, you've had a chance to

look at Government Exhibit 1 and Government Exhibit

7. And I'd ask, having reviewed those, have you formed

an opinion, as to whether or not the substance

contained in Government Exhibit 1 was possessed with

the intent to distribute, transfer or deliver versus the

intent to personally consume that substance?

. . . .

[MR. MINCER:] Yes, sir. Based on my experience,

through my undercover investigations, I've seen, on

numerous occasions, subjects that have amounts of

crack cocaine like this, as well as these packaging

bags, which they were cutting off and packaging in

these bags for resale, which I've also purchased.

And that would be consistent with someone who is

selling cocaine versus someone who would be using it

for their personal use.

(App. at 89-90.)

The Government also called Agent Paret as a rebuttal

witness to testify concerning the nature of Watson's bus

travel itinerary. Agent Paret provided the following

testimony:

[MR. ROCKTASHEL:] With respect to the particular

trip taken here, by Bruce Watson, have you formed an

opinion as to whether or not that particular trip was

taken for the purpose of distribution, transfer and

delivery of drugs, as opposed to procurement of drugs

for personal use?

MR. CASEY: Objection. Again, that calls for a

reading of the mind of the Defendant, as to the

purpose of the trip. Again, the Court has instructed

that could be consistent with experiences in the past,

but the question, as posed, it goes beyond the

competence of the witness.

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MR. ROCKTASHEL: Your Honor, we're not

proposing that he render an opinion, as to the

Defendant's intent, but we're asking him to testify, with

regard to particular circumstances and facts of the

trip, the destination point, etc.

THE COURT: I'll overrule the objection. The

testimony will be allowed for that limited purpose.

[MR. PARET:] Generally, a trip of a short nature

like that, a 10-plus hour trip to Philadelphia, spending

four hours there, on my experience, has been that

they've gone into the city to purchase drugs to,

ultimately, take back and resell at their starting point.

(App. at 160-61.)

II. DISCUSSION

The District Court had jurisdiction under 18 U.S.C.

S 3231. We have jurisdiction under 28 U.S.C.S 1291.

Watson's notice of appeal was timely filed.

We review the District Court's ruling on the admissibility

of expert testimony for abuse of discretion. United States v.

Bennett, 161 F.3d 171, 182 (3d Cir. 1998), cert. denied, 528

U.S. 819 (1999).

A.

Watson argues that the Government's experts' testimony

was inadmissible because knowledge of the operations of

narcotics dealers is not a proper field of expertise. Because

Watson did not raise a contemporaneous Rule 702

objection to the expert testimony we review the admission

of expert testimony for plain error, looking for errors that

are "obvious, or . . . otherwise seriously affect the fairness,

integrity[,] or public reputation of judicial proceedings."

Government of the Virgin Islands v. Parrilla, 7 F.3d 1097,

1100 (3d Cir. 1993) (internal quotations omitted) (quoting

United States v. Atkinson, 297 U.S. 157, 160 (1936)).

Under Rule 702, a witness may offer an expert opinion if

he or she is "qualified as an expert by knowledge, skill,

experience, training, or education." Fed. R. Evid. 702; see

also In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-46

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(3d Cir. 1994). We have interpreted Rule 702's

qualifications requirement liberally. Paoli, 35 F.3d at 741.

"[W]here such testimony's factual basis, data, principles,

methods, or their application are called sufficiently into

question . . . the trial judge must determine whether the

testimony has a reliable basis in the knowledge and

experience of [the relevant] discipline." Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 149 (1999) (internal citation

omitted).

Although Rule 702 does not mention any qualifying

specific fields of expertise, the advisory committee notes

indicate that a wide variety of expert testimony is

contemplated by the Rule:

The rule is broadly phrased. The fields of knowledge

which may be drawn upon are not limited merely to the

"scientific" and "technical" but extend to all

"specialized" knowledge. Similarly, the expert is viewed,

not in a narrow sense, but as a person qualified by

"knowledge, skill, experience, training or education."

Thus within the scope of the rule are not only experts

in the strictest sense of the word, e.g., physicians,

physicists, and architects, but also the large group

sometimes called "skilled" witnesses, such as bankers

or landowners testifying to land values.

Fed. R. Evid. 702, Advisory Committee's Notes to 1972

Proposed Rule 702.

The courts that have considered this issue have

recognized the operations of narcotics dealers as a proper

field of expertise. It is well-established that government

agents may testify to the meaning of coded drug language

under Fed. R. Evid. 702. United States v. Gibbs , 190 F.3d

188 (3d Cir. 1999); see also United States v.

Theodoropoulos, 866 F.2d 587, 590-91 (3d Cir. 1989),

overruled on other grounds, United States v. Price, 76 F.3d

526 (3d Cir. 1996); United States v. Plunk, 153 F.3d 1011,

1017 (9th Cir. 1998) (noting that the jargon of the narcotics

trade and drug dealers' code language are proper subjects

of expert opinion), cert. denied, 526 U.S. 1060 (1999);

United States v. Delpit, 94 F.3d 1134, 1145 (8th Cir. 1996)

(same); United States v. Boissoneault, 926 F.2d 230, 232

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(2d Cir. 1991) (same). In addition, "experienced narcotics

agent[s] may testify about the significance of certain

conduct or methods of operation to the drug distribution

business, as such testimony is often helpful in assisting the

trier of fact understand the evidence." United States v.

Griffith, 118 F.3d 318, 321 (5th Cir. 1997) (quoting United

States v. Washington, 44 F.3d 1271, 1283 (5th Cir. 1995),

cert. denied, 514 U.S. 1132 (1995)). Thus, the operations of

narcotics dealers have repeatedly been found to be a

suitable topic for expert testimony because they are not

within the common knowledge of the average juror.

Theodoropoulos, 866 F.2d at 590-92. Therefore, we reject

Watson's argument; knowledge of the operations of

narcotics dealers is a proper field of expertise.

Moreover, the District Court did not err in allowing expert

testimony from Schwartz, Mincer, and Paret. Agents

Schwartz, Mincer, and Paret were well-qualified to testify

concerning drug activity and the Government presented

sufficient evidence to establish the reliability of their

purported fields of expertise. Agent Schwartz testified that

he made several hundred arrests for controlled substances

offenses, he was familiar with drug packaging and

distribution, he inspected drugs, drug paraphernalia, and

he had participated in approximately 200 bus interdictions.

Agent Mincer testified to his experience in executing search

warrants for drugs, his undercover drug purchases, and his

making more than 200 arrests for crack. Agent Paret

testified about his experience as a United States Customs

Inspector and as a drug investigator working for eight years

on drug interdiction involving public transportation. The

Government's experts each possessed specialized knowledge

concerning drugs and drug interdiction and their testimony

was helpful to the jury in understanding the evidence.

Therefore, the District Court did not commit plain error

when it admitted Agents Schwartz's, Mincer's, and Paret's

testimony relating to the general operations of narcotics

dealers.

B.

Next, Watson argues that the District Court erred in

allowing expert testimony concerning Watson's mental

state, i.e., that Watson intended to distribute the narcotics.

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Under Fed. R. Evid. 704(b), no expert witness "testifying

with respect to the mental state or condition of a defendant

in a criminal case may state an opinion or inference as to

whether the defendant did or did not have the mental state

or condition constituting an element of the crime charged

or of a defense thereto. Such ultimate issues are matters

for the trier of fact alone." Fed. R. Evid. 704(b). Rule 704(b)

applies to all instances in which expert testimony is offered

as to mental state or a condition constituting an element of

the crime charged or defense thereto. Gibbs, 190 F.3d at

211 (applying Rule 704(b) to expert testimony by

undercover narcotics officer in drug conspiracy prosecution).1

Expert testimony concerning the modus operandi of

individuals involved in drug trafficking does not violate Rule

704(b). For example, a Government expert may testify

about the meaning of narcotics code words.

Theodoropoulos, 866 F.2d at 590-92; see also Boissoneault,

926 F.2d at 232-33 (same); United States v. Boyd , 55 F.3d

667, 671 (D.C. Cir. 1995) (holding that expert testimony

concerning the modus operandi of individuals involved in

drug trafficking does not violate Rule 704(b)). A Government

expert may also testify about the quantity, purity, usual

dosage units, and street value of narcotics. United States v.

Safari, 849 F.2d 891, 895 (4th Cir.), cert. denied, 488 U.S.

_________________________________________________________________

1. See also S. Rep. No. 225, 98th Cong., 1st Sess. 230 (1983), reprinted

in 1984 U.S.C.C.A.N. 3182, 3412-3413 ("[T]he rationale for precluding

ultimate opinion psychiatric testimony extends beyond the insanity

defense to any ultimate mental state of the defendant that is relevant to

the legal conclusion sought to be proven. The Committee has fashioned

its Rule 704 provision to reach all such `ultimate' issues, e.g.,

premeditation in a homicide case, or lack of predisposition in

entrapment."); United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995)

(holding Rule 704(b) applies to all instances in which expert testimony is

offered as to mental state or condition constituting an element of the

crime charged or defense thereto); United States. v. Orr, 68 F.3d 1247,

1252 (10th Cir. 1995), cert. denied, 516 U.S. 1064 (1996) (determining

that "the rule prohibits an expert witness from testifying that a

defendant did or did not possess the requisite mental intent at the time

of the crime"); United States v. DiDomenico , 985 F.2d 1159, 1165 (2d Cir.

1993) (determining that in prosecution for interstate transportation of

stolen goods, the trial court did not err in excluding under Rule 704(b)

expert testimony as to whether defendant knew goods were stolen).

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945 (1988). And, an expert may testify about the various

counter-surveillance techniques used by drug dealers to

avoid detection by the police. United States v. de Soto, 885

F.2d 354, 360 (7th Cir. 1989).

There is, however, "a [fine] line that expert witnesses may

not cross." United States v. Mitchell, 996 F.2d 419, 422

(D.C. Cir. 1993). It is well established that experts may

describe, in general and factual terms, the common

practices of drug dealers. See Boyd, 55 F.3d at 671 (citing

cases). Expert testimony is admissible if it merely

"support[s] an inference or conclusion that the defendant

did or did not have the requisite mens rea, so long as the

expert does not draw the ultimate inference or conclusion

for the jury and the ultimate inference or conclusion does

not necessarily follow from the testimony." United States v.

Bennett, 161 F.3d 171, 183 (3d Cir. 1998) (quoting United

States v. Morales, 108 F.3d 1031, 1038 (9th Cir. 1997)). "It

is only as to the last step in the inferential process--a

conclusion as to the defendant's mental state--that Rule

704(b) commands the expert to be silent." United States v.

Dunn, 846 F.2d 761, 762 (D.C. Cir. 1988).

Rule 704(b) may be violated when the prosecutor's

question is plainly designed to elicit the expert's testimony

about the mental state of the defendant, Boyd , 55 F.3d at

672, or when the expert triggers the application of Rule

704(b) by directly referring to the defendant's intent, mental

state, or mens rea, United States v. Lipscomb , 14 F.3d

1236, 1240 (7th Cir. 1994). Rule 704 prohibits "testimony

from which it necessarily follows, if the testimony is

credited, that the defendant did or did not possess the

requisite mens rea." Bennett, 161 F.3d at 182 (quoting

Morales, 108 F.3d at 1037).

Watson argues that the Government violated Rule 704(b)

because its three witnesses testified as to Watson's mental

state. First, Watson argues that Officer Schwartz's

testimony concerning the purpose for the 100 plastic bags

found on his person violated Rule 704(b). We agree. The

prosecutor, Mr. Rocktashel, pushed his questions too far

and he repeatedly elicited expert testimony in violation of

Rule 704(b). Mr. Rocktashel's question to Officer Schwartz

was plainly designed to elicit the expert's testimony about

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Watson's intent. Mr. Rocktashel's repeated references to

Watson's intent elicited the offending response from Officer

Schwartz when he testified that, in his opinion, Watson

"possess[ed] with the intent to distribute to someone else."

Second, Watson argues that the colloquy between Mr.

Rocktashel and Officer Mincer elicited testimony that

violated Rule 704(b). Prosecutors may not circumvent Rule

704(b) by repeatedly referring to a defendant's intent in a

question to an expert. Mr. Rocktashel's repeated invocation

of the word "intent," framed Mincer's "Yes sir," response in

such a way that the necessary inference to be drawn from

Mincer's response was that Watson possessed crack with

the intent to distribute it. Therefore, Mincer's"Yes sir"

response violated Rule 704(b).

Third, Watson argues that Agent Paret's rebuttal

testimony concerning the nature of Watson's bus travel

itinerary violated Rule 704(b). The prosecutor may not elicit

expert testimony on the ultimate issue of fact; that is for

the jury alone to decide. Fed. R. Evid. 704(b). In this case,

Mr. Rocktashel's question to Paret, like his questions to

Schwartz and Mincer, was designed to elicit testimony

about Watson's intent. Rocktashel asked whether Watson's

particular "trip . . . [was] for the purpose of distribution,

transfer and delivery of drugs, as opposed to procurement

of drugs for personal use?" Although Agent Paret did not

specifically refer to Watson in his response, and used the

collective "they" when indicating "they'd gone into the city

to purchase drugs to, ultimately, take back and resell at

their starting point," Paret's opinion necessarily implies that

the purpose of Walker's short bus trip was to distribute

drugs rather than to obtain drugs for personal use. The

unmistakable import of Agent Paret's opinion was that

Watson intended to buy drugs to distribute them. Not only

did Paret's opinion violate Rule 704(b), but it clearly went

beyond Paret's competence, as counsel noted in his

objection. In addition, by letting this testimony stand as

expert opinion, the District Court allowed Walker's

credibility to be destroyed, because he testified that he was

in Philadelphia to attend a funeral.

In sum, the Government violated Rule 704(b) by

repeatedly eliciting from its experts testimony as to

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Watson's mental state and the purpose of his actions. The

defendant's intent is an ultimate issue of fact that the jury

alone must decide. Fed. R. Evid. 704(b). In addition, even if

we assume, for the sake of argument, that the

Government's experts were qualified to speak about

Watson's mental condition at the time of the offense, Rule

704(b) prohibits any expert from testifying about the

defendant's actual mental state. Fed. R. Evid. 704(b). E.g.,

United States v. Pohlot, 827 F.2d 889 (3d Cir. 1987)

(allowing the introduction of expert testimony on

defendant's mental condition at the time of the offense but

limiting expert testimony to factual description of the

defendant's mental capacity), cert. denied, 484 U.S. 1011

(1988). Of course, narcotics experts may testify about drug

dealing, but they are in no way qualified to testify about a

defendant's mental condition. Therefore, the District Court

erred when it admitted the Government's expert testimony

concerning Watson's mental state. That evidence went to

the heart of the Government's case and plainly prejudiced

defendant.

III. CONCLUSION

For the foregoing reasons, we will REVERSE the

Judgment and Commitment Order and REMAND the case

to the District Court for further proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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