discussing Apollo’s deposition and explaining that Apollo “reported that [JC]’s behavioral difficulties escalated after the beating, which was no doubt due to his PTSD interacting with his pre-existing ADHD”
How later courts described this case
- discussing Apollo’s deposition and explaining that Apollo “reported that [JC]’s behavioral difficulties escalated after the beating, which was no doubt due to his PTSD interacting with his pre-existing ADHD”
- explaining that “the Rules do not distinguish between expert and lay witnesses, but rather between expert and lay testimony.”
- plain error requires that absent the error, the defendant probably would not have been convicted
- “Although at first glance, [the agent’s] testimony that [the defendant’s] arm movements were consistent with tossing an object may appear to be a matter of common sense, a more deliberate consideration of the testimony suggests otherwise. What might seem like innocuous conduct to an untrained jury, might, to the trained eye, be indicative of criminal activity.”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3001
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HARLES C. C HRISTIAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:10-CR-30239-001—G. Patrick Murphy, Judge.
A RGUED JANUARY 12, 2012—D ECIDED M ARCH 12, 2012
Before E ASTERBROOK, Chief Judge, and R OVNER and
T INDER, Circuit Judges.
T INDER, Circuit Judge. After a two-day jury trial, defen-
dant Charles C. Christian was found guilty of felon in
possession of a firearm, 18 U.S.C. § 922(g)(1), user in
possession of a firearm, § 922(g)(3), and possession
of marijuana and cocaine base, 21 U.S.C. § 844(a). The
defendant appeals only his conviction on the gun
counts. He argues that the trial court committed
2 No. 11-3001
reversible error by permitting FBI Special Agent Nicholas
Manns and Illinois State Police Trooper Matt Renner,
officers who apprehended the defendant for the charged
conduct, to testify as both expert and fact witnesses
without taking precautions to separate and distinguish
for the jury the dual nature of their testimony. We have
previously explained that dual role testimony can be
confusing to a jury but is permissible provided the
district court take proper precautions to minimize
potential prejudice. Because Trooper Renner’s chal-
lenged testimony did not rise to the level of expert
opinion, we find no duality concerns with his examina-
tion. Not so with Agent Manns; he testified in a dual
capacity, giving rise to the concern that his expert testi-
mony improperly bolstered his fact testimony.
Christian, however, never raised a duality objection at
trial, so we review for plain error, and because some
precautions were taken to alleviate jury confusion, we
cannot conclude that the district court committed such
an error. The government laid a proper foundation for
Agent Manns’ expert testimony; Christian had the op-
portunity to fully cross-examine Agent Manns in this
capacity; most of the government’s questions eliciting
expert testimony signaled to the jury that Agent Manns
was relying on his expertise; and at the conclusion of the
trial, the district court gave the standard jury instruc-
tion for opinion testimony requiring special knowledge
or skill, informing the jurors that they could disregard
the testimony and give it whatever weight they thought
it deserved. Although further precautions could have
been taken to separate Agent Manns’ fact from expert
No. 11-3001 3
testimony, the failure to take those additional precau-
tions does not result in reversible error.
I. Facts
The charges (and ultimate conviction) in this case
stem from Christian’s arrest late one evening in Novem-
ber 2010 by Agent Manns and Trooper Renner. They were
patrolling Brooklyn, Illinois, a high-crime area, when
they noticed a car with temporary tags. The car was
traveling slowly and the driver had his signal on through
one intersection before turning at the next. The officers
did not follow the vehicle, but shortly after, spotted it
again, this time parked on the side of the road near a
field. The driver, Christian, was outside the car on the
passenger side, at the edge of the field. The officers
thought he was either sick or urinating and wanted to
check it out, so they pulled up at an angle to the rear of
the driver’s side and turned on their emergency lights.
They got out of their car and Christian, who was facing
the weeds with his back to them, turned toward the
officers with a surprised look. The officers could only
see Christian’s upper body; his lower half was
obstructed by his vehicle. Agent Manns testified that
Christian immediately turned away, made a furtive
movement with his arms, jumped into his vehicle, and
took off, triggering a high-speed car chase. Christian
eventually exited his vehicle and continued to flee on
foot. The officers were a little swifter and quickly ap-
prehended him.
Agent Manns searched Christian; he found marijuana,
but no weapons. Trooper Renner (along with other
4 No. 11-3001
officers who had arrived on the scene) searched
Christian’s car and found more marijuana. Agent Manns
went back to the field where he had first approached
Christian and found a loaded handgun (which forms
the basis for the gun counts) near what he believed to
be Christian’s tire track and near the spot where
Christian paused before fleeing. Twelve minutes elapsed
between the time the officers first approached Christian
and discovery of the gun. No fingerprints were found
on the gun or bullets. Trooper Renner walked the
route where Christian fled on foot and found a plastic
bag of crack cocaine.
During trial, Agent Manns testified to his extensive
experience and special expertise as a federal agent (first
as a deputy U.S. marshal, then as an FBI agent). He has
20 years of experience as a federal agent and has
received specialized training on “street survival officer
safety” and tactical use of weapons. The defendant ob-
jected, stating that the narrative of the officer’s back-
ground wasn’t relevant. The district court overruled the
objection, stating, “I don’t know for what purpose the
witness is being qualified as an expert witness, but it
seems as if that’s the point. . . .” Agent Manns proceeded
to testify that he has made over 600 felony arrests
during his tenure with the FBI. When asked on how
many occasions he had encountered an armed indi-
vidual, the defendant posed a continuing objection to
this line of questioning. The district court asked the
prosecutor, “Are you going to elicit opinions that require
expert opinion?”; the prosecutor responded, “I think the
agent’s expertise is relevant to the level of attentiveness
No. 11-3001 5
and how he would approach any situation.” The court
overruled the defendant’s objection. Agent Manns an-
swered that he has encountered individuals armed with
a handgun on their person about a hundred times and
has been involved in several law enforcement shootings.
Agent Manns testified that when officers approach
individuals that might be dangerous or in a high-crime
area, they are trained to watch the individual’s hands.
Agent Manns testified that “as [Christian] came from
out behind the car, over the hood of the car, I could see
that he was concealing his hands from me.” He ex-
plained that Christian’s hands were “hidden down
around his waistband,” and that this prompted him to
tell Trooper Renner to “watch him,” because he was
worried the defendant “might be armed.” The govern-
ment asked “what had transpired in those few split
seconds . . . to make you now think there’s a possibility
that the subject is armed”; Agent Manns responded,
“The fact that he was concealing his hands from my
view. In my experience, that’s what it is indicative of.”
Christian took another step or two to the front
passenger side of his car, paused, and made another
movement with his hands that Agent Manns described
as “consistent with pulling a gun.” Christian then
turned and ran around the front of his vehicle and
Agent Manns could see at that point that his hands were
empty. After arresting Christian, Agent Manns went
back to the field where he had approached Christian
because he “believed there was a weapon there,” and
when he found the handgun, “believe[d] that to be the
defendant’s . . . firearm.”
6 No. 11-3001
Still on direct examination, the prosecutor asked
Agent Manns, “in light of your experience, both as a
deputy marshal and as an FBI Agent patrolling the
Metro East area, specifically on violent crime initiative-
type details, is it commonplace to find firearms laying
in plain view on the streets?” The defendant objected,
stating that the government was attempting to elicit
an opinion as to the ultimate issue before the trier of
fact. The district court overruled the objection, ex-
plaining, “the witness is not asked to give an opinion as
to guilt or innocence. He’s asking something based upon
his experience as an investigating officer . . . and I will
let him give an opinion on that.” Agent Manns
responded that “[i]n my 20 years of law enforcement,
I have never found a firearm laying on the streets or in
a field unattended, for that matter, nor has anyone that
I’ve worked with, that they’ve relayed to me. . . .
[W]e never find firearms where a person is not in close
proximity or a person had fled, etc., where we can
associate it with an individual or group of individuals.”
Defense counsel then cross-examined Agent Manns,
asking him if he could tell whether Christian was
simply trying to zip up his pants. Agent Manns
responded that Christian was concealing his hands and
his actions were not consistent with zipping up his
pants. He testified that he thought Christian was armed
based on his movements. Defense counsel, however,
elicited testimony that neither the gun, nor the bullets,
had Christian’s fingerprints, that the gun was found in
a high-crime area, and that Agent Manns never saw
Christian with the gun or told him to put his hands up.
No. 11-3001 7
On redirect, the government asked Agent Manns,
“In your experience as a police officer over the last . . .
20 years . . ., [h]ow do people that illegally carry weapons
on their persons tend to conceal them?” Agent Manns
answered that about 90 percent of people conceal them
in their waistband or coat pocket. Agent Manns then got
off the stand and demonstrated Christian’s movements
(focusing on his arm motions) and indicated the loca-
tion of the gun in relation to where Christian had been
standing. Agent Manns explained that he saw Christian’s
arms move in a way consistent with both elbows
coming up and one hand moving, and the prosecution
asked, “Based upon your experience encountering
armed subjects in your approximate 20-year career, the
significance of those arms going up and not being able
to see the hands, was what?” The defendant objected as
eliciting “an opinion on the ultimate issue.” The court
responded, “On those grounds, overruled.” Agent Manns
answered, “That is a movement I have seen before in
my career on occasions wherein the defendant had a gun
in his waistband. It was the same movement. That’s
what I saw, that’s why I told—that’s why I stopped. And
Trooper Renner, I wanted him to stop too.” On recross,
Agent Manns explained that “[i]t was not an opinion
that [Christian] had a gun, it was my belief he did.”
Trooper Renner also testified to his experience: he has
had five years of law enforcement experience and his
training has included specialized courses on street
survival and detecting hidden weapons. Trooper Renner
testified that “[d]uring the hidden weapons training, they
basically show us the types of weapons that may be
8 No. 11-3001
hidden, the different places that they may be hidden, and
to . . . be aware of those things.” Trooper Renner then
explained that when patrolling a high-crime area, “Rule
Number 1, . . . is to watch somebody’s hands.” Trooper
Renner also never saw Christian with a gun, but similar
to Agent Manns, testified that as soon as Christian saw
him, “he turned around and concealed his hands.” The
defendant did not object to Trooper Renner’s testimony.
Two other witnesses testified at trial. Daniel Owens,
Special Agent with the Bureau of Alcohol Tobacco &
Firearms (ATF), testified as an expert witness on the
interstate nexus of the firearm and to the fingerprint
analysis. Joseph Beliveau, Illinois State Police Officer,
testified as an expert witness on the value of drugs
found. He also testified that he has never found a firearm
just laying around. He said, “We’ll occasionally find
firearms tucked away in positions around people. But
in that type of a neighborhood, that firearm would not
last there very long if it was laying in the street.” The
defendant did not object to this testimony.
At the conclusion of trial, the district court gave
Seventh Circuit Pattern Jury Instruction 3.07 on expert
testimony:
You have heard witnesses give opinions about
matters requiring special knowledge or skill. You
should judge this testimony in the same way that you
judge the testimony of any other witness. The fact
that such a person has given an opinion does not
mean that you are required to accept it. Give the
testimony whatever weight you think it deserves,
No. 11-3001 9
considering the reasons given for the opinion, the
witness’ qualifications, and all other evidence in
the case.
(Trial Tr. p. 161). The defendant did not object to the
instructions or propose any other cautionary or limiting
instructions, either as part of the final instructions or at
any earlier part of the trial.
II. Analysis
Normally, we review a district court’s evidentiary
rulings for an abuse of discretion, but when a proper
objection is not made, review is for plain error. United
States v. Phillips, 596 F.3d 414, 416 (7th Cir. 2010); see also
United States v. Ambrose, ___ F.3d ___, No. 09-3832, 2012 WL
506741 at *17 (7th Cir. Feb. 16, 2012). The defendant in
this case did not object to Trooper Renner’s testimony,
so our review of his testimony is for plain error.
Although the defendant objected several times to Agent
Manns’ testimony, he never objected to Agent Manns’
qualifications to testify as an expert or the dual nature of
his testimony. “To preserve an evidentiary error for
appellate review, the objecting party must state the
specific basis for the objection[;]” if the basis for the
objection changes on appeal, we review for plain error.
United States v. Gaytan, 649 F.3d 573, 579 n.1 (7th Cir. 2011),
cert. denied, 132 S. Ct. 1129 (2012). Accordingly, because
defendant’s objections at trial and on appeal are “substan-
tially different,” we limit our review to plain error. United
States v. DiSantis, 565 F.3d 354, 362 (7th Cir. 2009); see
10 No. 11-3001
also United States v. Price, 418 F.3d 771, 779 (7th Cir.
2005). Similarly, plain error review applies where, as in
this case, the defendant never requested a cautionary
instruction or otherwise objected to the instructions
given. See United States v. Breland, 356 F.3d 787, 792 (7th
Cir. 2004). When an appellant alleges cumulative error,
we will only consider plain errors and errors that were
preserved for appellate review. See United States v.
Nunez, 532 F.3d 645, 655 (7th Cir. 2008).
Under the plain error standard, we must determine
whether there was (1) an error, (2) that was plain,
meaning clear or obvious, (3) that affected the de-
fendant’s substantial rights in that he probably would
not have been convicted absent the error, and (4) that
seriously affected the fairness, integrity, or public reputa-
tion of judicial proceedings. Ambrose, 2012 WL 506741
at *17; see also United States v. Baker, 655 F.3d 677, 681
(7th Cir. 2011). An error is “plain,” when it is so obvious
“that the trial judge and prosecutor were derelict in
countenancing it, even absent the defendant’s timely
assistance in detecting it.” United States v. Turner, 651
F.3d 743, 748 (7th Cir.) (quotation omitted), cert. denied,
132 S. Ct. 863 (2011). “It cannot be subtle, arcane, debatable,
or factually complicated. It must be—plain; but it needn’t
be blatant.” Id. (quotation omitted). Even if plain error
occurs and affects the defendant’s substantial rights,
the defendant must also show that the error caused a
“miscarriage of justice, in the sense of seriously affecting
the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Orr, 622 F.3d 864, 868
(7th Cir. 2010) (quotation omitted), cert. denied, 131 S. Ct.
No. 11-3001 11
2889 (2011); see also United States v. Vincent, 416 F.3d
593, 603 (7th Cir. 2005).
We do not find that the district court committed
plain error, and even if it had, we do not find that such
an error affected the defendant’s substantial rights or
constituted a miscarriage of justice.
A. Expert Versus Lay Opinion Testimony
We first address whether Agent Manns and Trooper
Renner even provided expert testimony; if not, we have
no dual testimony concerns. Rule 701 of the Federal
Rules of Evidence provides that “[i]f a witness is not
testifying as an expert, testimony in the form of an
opinion is limited to one that is: (a) rationally based on
the witness’s perception; (b) helpful to clearly under-
standing the witness’s testimony or to determine a fact in
issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.”
Fed. R. Evid. 701. Rule 702 provides that “[a] witness
who is qualified as an expert by knowledge, skill, experi-
ence, training, or education may testify in the form of
an opinion if: (a) the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact
understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has
reliably applied the principles and methods to the facts
of the case.” Fed. R. Evid. 702.
12 No. 11-3001
A witness can qualify as both a fact and expert witness
and an expert may base an opinion on fact or data in
the case that the expert has personally observed. Fed. R.
Evid. 703. Thus, the Rules do “not distinguish between
expert and lay witnesses, but rather between expert and
lay testimony.” Fed. R. Evid. 701 advisory committee’s
note (2000 amends.). “[L]ay testimony results from a
process of reasoning familiar in everyday life, while
expert testimony results from a process of reasoning
which can be mastered only by specialists in the field.”
Id. (quotations omitted). We have explained that “[a] law-
enforcement officer’s testimony is a lay opinion if it
is ‘limited to what he observed . . . or to other facts derived
exclusively from [a] particular investigation.’ ” Gaytan,
649 F.3d at 581 (quoting United States v. Oriedo, 498 F.3d
593, 603 (7th Cir. 2007)). “On the other hand, an officer
testifies as an expert when he brings ‘the wealth of
his experience as [an] officer to bear on those observa-
tions and ma[kes] connections for the jury based on that
specialized knowledge.’ ” Id.; see also United States v.
Fenzl, ___ F.3d ___, No. 11-2459, 2012 WL 576432 at *4
(7th Cir. Feb. 23, 2012).
However, the distinction between expert and lay testi-
mony is often far from clear in cases where, as here, “a
witness with specialized . . . knowledge was also per-
sonally involved in the factual underpinnings of the
case.” United States v. White, 492 F.3d 380, 401 (6th Cir.
2007). The inferences officers draw when observing
and responding to situations cannot always be sepa-
rated from the expertise they bring to evaluate those
situations. Their observations are guided by experience
No. 11-3001 13
and training and thus, at least some of their fact testi-
mony will be influenced by this specialized knowledge.
Agent Manns’ and Trooper Renner’s testimony that
they are trained to watch individuals’ hands when ap-
proaching a situation was not expert testimony. Nor
was the officers’ testimony that Christian’s concealment
of his hands raised a red flag. The witnesses were not
offering opinions, they were simply informing the jury
of their state of mind while observing Christian; the
testimony informed the jury of their attentiveness
and cautiousness in approaching the situation. See
Oriedo, 498 F.3d at 602 (indicating that an agent can
testify to his state of mind while observing a drug deal
even if the testimony is informed by the agent’s
specialized training). We found similar observations
admissible as lay testimony in Oriedo, where the agent
stated that he was personally concerned about the
presence of more than one vehicle at the controlled
buy because it raised concerns of “countersurveillance.”
Id. We have likewise found that “officers are entitled to
render lay opinions concerning criminal or suspicious
activity based on their personal observations.” United
States v. Hicks, 635 F.3d 1063, 1069 (7th Cir. 2011); see
also Hicks, 635 F.3d at 1066, 1069 (officer’s testimony
that FBI called off operation because of suspicious
behavior associated with countersurveillance was
proper lay opinion). Because Trooper Renner’s testimony
to which the defendant has objected was not given in
the form of expert testimony, we have no reason to
discuss his testimony further.
14 No. 11-3001
Agent Manns, by contrast, was asked questions that
suggest he was also testifying in an expert capacity. The
government qualified Agent Manns as an expert (the
district court acknowledged as much) and the defendant
concedes that Agent Manns was properly disclosed as
an expert pursuant to Rule 16 of the Federal Rules of
Criminal Procedure. See Fed. R. Crim. P. 16(a)(1)(G). Agent
Manns’ blended expert and fact testimony is best illus-
trated by his testimony on redirect. He first testified
that 90 percent of people who illegally carry weapons
conceal them in their waistband or coat pocket. The
government then asked Agent Manns to stand in front
of the jury to demonstrate Christian’s arm movements.
Although Agent Manns was testifying as a fact wit-
ness—he was simply describing what he had ob-
served—the next question crossed the line into eliciting
testimony wrapped in the aura of special reliability
that surrounds expert testimony: “Based upon your
experience encountering armed subjects in your approxi-
mate 20-year career, the significance of those arms
going up and not being able to see the hands, was
what?” Agent Manns answered, “That is a movement
I have seen before in my career on occasions wherein
the defendant had a gun in his waistband. It was the
same movement. . . .” Agent Manns had earlier testified
on direct that in light of his 20 years of law enforcement
experience, he had never found a firearm laying in a
field unattended, supporting his belief that the gun
found belonged to Christian.
When eliciting this testimony, the government wasn’t
merely seeking lay opinion testimony; the government
was asking Agent Manns to bring his experience to bear
No. 11-3001 15
on his personal observations and “ma[k]e connections
for the jury based on that specialized knowledge.” Oriedo,
498 F.3d at 603 (holding that different agent in Oriedo,
who had found plastic baggies with the corners cut in
defendant’s hotel room, testified in expert capacity
when informing the jury that this is how crack cocaine is
packaged for distribution); see also Tribble v. Evangelides, ___
F.3d ___, 2012 WL 245029 at *3 (7th Cir. Jan. 26, 2012)
(explaining that witness, who summarized her ex-
periences and used her specialized knowledge to guide
the jury to a conclusion, testified in an expert capacity);
United States v. York, 572 F.3d 415, 420 (7th Cir. 2009)
(interpreting drug jargon requires expert testimony
where the witness is relying on his prior experience
in drug investigations to explain the hidden meaning
of words).
Christian contends on appeal that Agent Manns’
expert testimony was not helpful in assisting the jury
because a layperson needs no expert assistance to under-
stand how one would have to move his arms to
pull something out of his waistband.1 Expert testimony
1
Christian also argues for the first time on appeal that Agent
Manns was not adequately qualified as having specialized
knowledge to give an opinion as to his arm movements. The
defendant did not raise any specific objections to Agent Manns’
qualifications, methods, or reliability before the district court.
When neither party specifically asks the district court to
engage in this analysis under Rule 702, the district court is not
required to do so and does not err in admitting the testimony.
See United States v. Moore, 521 F.3d 681, 685 (7th Cir. 2008); see
(continued...)
16 No. 11-3001
must be helpful to the jury to be admissible. United
States v. Winbush, 580 F.3d 503, 510-11 (7th Cir. 2009)
(citing Fed. R. Evid. 702). In other words, a witness
should not be allowed to put an “expert gloss” on a
conclusion that the jurors should draw themselves.
See York, 572 F.3d at 423 (“ ‘Interpretations’ of unambigu-
ous words or phrases that are plainly within the
jury’s understanding are unlikely to be admissible
under Rule 702.”) (quotations omitted). “[E]xpert testi-
mony does not assist where the jury has no need for an
opinion because it easily can be derived from common
sense, common experience, the jury’s own perceptions,
or simple logic.” 29 Charles Alan Wright & Victor James
Gold, Federal Practice & Procedure § 6264 (1997); see
also Florek v. Vill. of Mundelein, Ill., 649 F.3d 594, 602-03
(7th Cir. 2011).
Although at first glance, Agent Manns’ expert testimony
that Christian’s arm movements were consistent with
tossing an object may appear to be a matter of common
sense, a more deliberate consideration of the testimony
suggests otherwise. What might seem like innocuous
1
(...continued)
also United States v. Farmer, 543 F.3d 363, 370 (7th Cir. 2008)
(stating that even though the defendant appealed under
Rule 702, neither the defendant nor the government specifically
requested that the district court evaluate the agent’s qualifica-
tions as an expert, and thus, “the district court did not err by
not inquiring further into [the agent’s] qualifications.”). We
nevertheless address Christian’s related and more pertinent,
inquiry—whether Agent Manns’ testimony couched in terms
of expertise was helpful to the jury.
No. 11-3001 17
conduct to an untrained jury, might, to the trained eye,
be indicative of criminal activity. See Winbush, 580 F.3d
at 511; compare York, 572 F.3d at 423 (finding that law
enforcement officers’ explanation of drug jargon and
code words that might seem entirely innocuous to an
untrained jury is proper expert testimony), with United
States v. Cruz, 363 F.3d 187, 196-97 (2d Cir. 2004) (agent
gave impermissible expert opinion on phrase, “to watch
someone’s back”; phrase was ambiguous and outside
ambit of agent’s “drug jargon” expertise). For example,
in United States v. Parra, 402 F.3d 752, 759 (7th Cir. 2005),
we allowed expert testimony of seemingly innocent-
looking conduct consistent with drug trafficking counter-
surveillance. The agent in Parra testified that the de-
fendant was “looking up and down the street around
and then looking back towards [the suspected drug
car],” and explained “why, in his expert opinion, this
seemingly innocuous conduct indicated that the
defendant was engaged in counter-surveillance.” Id.
We allowed the expert testimony even though the jury
had access to the surveillance tapes. Id.
Jurors are presumably not well versed in the conceal-
ment or disposal of weapons. Agent Manns had
specialized training on street survival and officer safety,
had significant experience encountering armed sus-
pects, and on a few occasions observed similar arm move-
ments when individuals were concealing guns in their
waistband. As such, to his trained eye, Christian’s
arm movements had characteristics of illicit conduct
inconsistent with someone merely zipping up his
pants. Recognizing the fine distinction in arm move-
18 No. 11-3001
ments from a posterior view to distinguish between
tossing something from one’s waistband and zipping up
one’s pants is within the ambit of Agent Manns’ expertise
and not necessarily a matter of common experience.
See Florek, 649 F.3d at 602 (“[E]xpert testimony is more
likely to satisfy [Rule] 702’s requirement that it “assist
the trier of fact to understand the evidence or determine
a fact in issue” when something peculiar about law en-
forcement (e.g., . . . the circumstances they face) informs
the issues to be decided.”).
But even if it was error to allow Agent Manns to put
an expert gloss on this testimony, and even assuming
that the error was preserved by defendant’s non-specific
objections, we find any such error harmless. “The third
prong of the plain error test—whether the error
affected the defendant’s substantial rights—calls for
essentially the same inquiry as a harmless error analy-
sis.” United States v. Halliday, ___ F.3d ___, No. 10-2337,
2012 WL 447450 at *5 (7th Cir. Feb. 14, 2012) (quotations
omitted). “An error is harmless if the reviewing court
is convinced that the jury would have convicted even
absent the error.” United States v. Simmons, 599 F.3d
777, 780 (7th Cir. 2010).
We have already found that it was proper for Agent
Manns and Trooper Renner to testify as fact witnesses
that Christian was concealing his hands and that this
raised a red flag. Christian does not dispute that Agent
Manns could have testified as a fact witness that it ap-
peared Christian threw something from his waistband.
He could also testify (as he did) that in his experience
people who illegally carry weapons conceal them in
No. 11-3001 19
their waistband. Further, Agent Manns found a gun
near where Christian had paused before fleeing, and
both Agent Manns and Officer Beliveau (whose testi-
mony defendant lodges no objections) informed the
jury that in their experience it is not common to find
firearms laying around. (The permissibility of Agent
Manns’ dual nature testimony is discussed below).
The defense had the opportunity to cross-examine
Agent Manns on these issues and did so. The defense
inquired with Agent Manns about whether what he
saw could have been Christian zipping up his pants. The
defense also had Agent Manns and Trooper Renner
reiterate that neither actually saw Christian with a gun.
On redirect, Agent Manns demonstrated for the jury
Christian’s arm movements; the jury was free to
disregard Agent Manns’ characterization of the move-
ments and evaluate for itself the significance of
Christian’s conduct. The district court instructed the
jury that it should give opinion testimony requiring
special knowledge or skill “whatever weight you think
it deserves,” and “should judge this testimony in the
same way that you judge the testimony of any other
witness.” See Federal Criminal Pattern Jury Instructions
of the Seventh Circuit 3.07. Further, Agent Manns
informed the jury during recross that it was not his
opinion that Christian had a gun, it was his belief that
he did. Based on a review of the record, we do not find
that allowing Agent Manns to testify to the import of
Christian’s arm movements under the umbrella of exper-
tise constitutes reversible error.
20 No. 11-3001
B. Dual Testimony
Christian also contends that the district court erred
by not demarcating between Agent Manns’ expert and
fact testimony, resulting in an unfair bolstering of
Agent Manns’ fact testimony. (Although Christian
raised similar duality concerns as to Trooper Renner’s
testimony, as previously noted, he has not identified
any part of Trooper Renner’s testimony that qualifies
as expert testimony.) We have stated on numerous occa-
sions that when a witness, such as Agent Manns, testifies
in a dual capacity, the district court must take precau-
tions to minimize prejudice to the defendant. See York,
572 F.3d at 425; see also United States v. Farmer, 543 F.3d
363, 370 (7th Cir. 2008). The witness’s dual role might
confuse the jury, United States v. Goodwin, 469 F.3d 636,
641 (7th Cir. 2007), or a jury might “be smitten by an
expert’s ‘aura of special reliability’ and therefore give
his factual testimony undue weight,” York, 572 F.3d at
425; see also United States v. Upton, 512 F.3d 394, 401 (7th
Cir. 2008) (“Experts famously possess an ‘aura of special
reliability’ surrounding their testimony. And it is
possible that the glow from this halo may extend to an
expert witness’s fact testimony as well, swaying the jury
by virtue of his perceived expertise rather than the
logical force of his testimony.” (internal citation omitted)).
“Or, the jury may unduly credit the opinion testimony
of an investigating officer based on a perception that the
expert was privy to facts about the defendant not pre-
sented at trial.” York, 572 F.3d at 425 (quotations omit-
ted). Alternatively, “the mixture of fact and expert testi-
mony could, under some circumstances, come close to
No. 11-3001 21
an expert commenting on the ultimate issue in a crim-
inal matter.” Upton, 512 F.3d at 401 (citing Fed. R. Evid.
704(b)).
In light of such dangers, “district courts must take
some precautions to ensure the jury understands its
function in evaluating this evidence. The jury needs to
know when an agent is testifying as an expert and when
he is testifying as a fact witness.” York, 572 F.3d at 425
(internal citations omitted). The “dual testimony” situation
“places an especially heavy burden on the district court
to ensure that the jury understood its function in evalu-
ating the evidence,” particularly where the conduct
at question may appear innocent. Parra, 402 F.3d at 759
(quotation omitted). To take the necessary precautions,
the court can give an appropriate cautionary instruc-
tion and require examination of the witness in such a
way as to make clear when the witness is testifying to
fact and when he is offering his opinion as an expert.
York, 572 F.3d at 425; see also Farmer, 543 F.3d at 370.
Other precautions include the government establishing
the proper foundation for the witness’s expert opinions
and the district court allowing rigorous cross-examina-
tion. York, 572 F.3d at 425.
In York, the defendant argued that an officer
impermissibly testified as both an expert and fact
witness in the same trip to the witness stand. Id. The
government established an adequate foundation for the
witness’s testimony and the court put no limits on
the defense’s cross-examination, but we noted that the
district court and the government were less vigilant
22 No. 11-3001
in instructing the jury and structuring the witness’s
testimony. Id. at 425-26. The court, as in this case, in-
structed the jury at the end of the trial how it should
evaluate expert opinion testimony, but we noted that
“[i]t would have been far more effective for the court
to have explained [the witness’s] dual role to the
jury before [the witness] testified and then flag for the
jury when [the witness] testified as a fact witness and
when he testified as an expert.” Id. at 426; see also
Upton, 512 F.3d at 401 (cautionary instruction given
before the witness testified and twenty-minute break
given between the two types of testimony).
We were even more concerned in York with the
structure of the witness’s testimony. 572 F.3d at 426. We
noted that the government at times signaled to the
jury that the witness was relying on his expertise when
answering questions prefaced with phrases like, “based
on your experience in crack cocaine investigations . . .,”
which helped minimize jury confusion. Id. But the gov-
ernment would switch back to questioning the witness
about the investigation, and then after several mo-
ments into the witness’s factual testimony, question him
as an expert. We explained that “[s]eamlessly switching
back-and-forth between expert and fact testimony
does little to stem the risks associated with dual-role
witnesses.” Id. Other questions explicitly mixed the wit-
ness’s dual basis of knowledge, leaving the jury to
wonder whether the expert or case agent was testifying.
We concluded that “[g]iven, this heightened possibility
for jury confusion, coupled with the lack of a timely
cautionary instruction and the fact that we cannot
No. 11-3001 23
discern whether [the witness’s] interpretations were
actually based on his expertise or a conversation with
[the informant],” the court erred (albeit harmlessly) in
admitting the testimony. Id.
In Farmer, 543 F.3d at 369, an agent also testified as a
fact witness regarding the investigations’ progress and
events and as an expert witness to assist the jury in under-
standing the coded drug language contained in re-
corded conversations. Unlike in York, however, we
found sufficient precautions taken where the district
court required the government to establish the proper
foundation for the agent’s knowledge and the govern-
ment prefaced the expert testimony by asking the agent
the meaning of the coded language “based on his exper-
tise” (the government, however, did not preface each
question that elicited the agent’s expert opinion in
this way). Id. at 371 & n.2. We also noted that the court
“gave the appropriate cautionary instruction regarding
expert testimony, instructing the jury that it could
judge that testimony the same way it judges fact wit-
nesses’ testimony, and could ‘[g]ive the testimony what-
ever weight you think it deserves . . . .’ ” Id. at 371. (Based
on our review of the record in Farmer, it appears that
this instruction was given after the close of the evidence.)
We further reasoned that the district court allowed
the defense to extensively cross-examine the agent
about the coded drug terms, his familiarity with other
drug terms, and the factual aspects of his testimony. Id.
We concluded in Farmer that “[i]n light of these safe-
guards, any risk that the jury could have confused [the
agent’s] direct observations with his expert knowledge
24 No. 11-3001
of the code words was adequately alleviated.” Id.; see
also Parra, 402 F.3d at 759-60 (sufficient precautions taken
where agent was qualified as an expert, jury was given
a cautionary instruction, and defense counsel engaged
in rigorous cross-examination of agent regarding his
expertise and substance of testimony).
Our case has similarities to both York and Farmer. As
in Farmer, at the close of the evidence, the district court
gave the standard cautionary instruction for opinion
testimony requiring special knowledge or skill. Further,
many of the questions eliciting Agent Manns’ expert
testimony were prefaced with phrases akin to “in your
experience,” signaling to the jury when he was relying
on his expertise and minimizing confusion over his
dual role. The government also properly qualified
Agent Manns as an expert and the defendant was not
limited in his cross-examination. As in York, though, the
district court did not explain Agent Manns’ dual roles
to the jury, there was significant blending between his
fact and expert witness testimony, and the cautionary
instruction was not given when he testified nor was
it specific to dual testimony.
We are presented with a borderline case. In United
States v. Baptiste, 596 F.3d 214, 225 (4th Cir. 2010), the
court found no plain error where the case fell in the
gray area. In that case, the district court did not issue
a cautionary instruction specific to the witness’s dual
role and the government’s questioning did not separate
lay and expert testimony. The district court however
ensured that the government laid the foundation for
No. 11-3001 25
the witness’s expert testimony, instructed the jury that
“it’s for you to accept, reject or whatever in terms of
whether you accept that testimony or not,” and noted
that defense counsel could challenge the witness’s opin-
ions. Id. Based on such facts, the court could not find
that the district court committed an obvious or clear
error. Id.
As in Baptiste, we do not find plain error. Further,
given that the safeguards taken (although they could
have been better) helped alleviate the risk of jury confu-
sion, we do not find a miscarriage of justice in the
blending of dual testimony. But we would be remiss not
to remind district courts that additional steps should
be taken to ensure that there is a clearer demarcation
when an agent testifies in a dual capacity. Even more
importantly, prosecutors should be alert to situations
where dual testimony is likely and provide adequate
forewarning as well as structure to their examinations
so the court can assist jurors in recognizing the dif-
ference between fact and expert testimony.
III. Conclusion
For the foregoing reasons, finding no plain error,
harm to substantial rights, or miscarriage of justice,
we A FFIRM Christian’s conviction.
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