In less than a month, the D.C. Circuit Court of Appeals will hear oral arguments in U.S. v. Smith (Case 09-3119). The appeal challenges the conviction of John Smith, the named defendant, for participating in a drug distribution ring. Central to Smith's conviction was the testimony of an FBI narcotics agent John Bevington, a twenty-year veteran of the narcotics team who was in charge of the case against the drug-ring's alleged kingpin and Smith's acquaintance, Lonnell Glover.
Bevington testified under Federal Rule of Evidence 701 as a lay witness. The issue of whether Bevington should be allowed to testify under Rule 701 or have to qualify as an expert witness under Rule 702 was contested at trial. When an expert witness qualifies under Rule 702, the party seeking to qualify the witness is subject to heightened disclosure standards, amongst other requirements, under Federal Rule of Criminal Procedure 16(a)(1)(G). In the 2000 Notes to Rule 701, Congress made it clear that the Rule was aimed at assuring that neither party attempted to circumvent these requirements by qualifying an expert witness under Rule 701. This is an attractive strategy, as expert witnesses are known to strongly influence a jury. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
In the district court, Judge Hogan allowed Bevington to testify under Rule 701 because Hogan believed that he was simply testifying to his perception of the wiretapped conversations without using any of his training as a narcotics agent. However, it seems unlikely that Bevington’s testimony was not based on specialized knowledge that falls within the purview of Rule 702. He testified about
the meanings of code words in the wiretapped conversations and about how drugs are typically sold in the District of Columbia. The defense contends that information like this would not be available to an average juror and that Bevington relied on his years of training and experience as an FBI narcotics agent in giving his testimony.
Smith’s argument is bolstered by three prior holdings in the D.C. Circuit. In U.S. v. Mejia, 448 F.3d 436 (D.C. Cir. 2006), U.S. v. Walls, 70 F.3d 1323 (D.C. Cir. 1995), and U.S. v. Doe, 903 F.2d 16 (D.C. Cir. 1990), the court held that narcotics agents testifying to the “modus operandi” of drug conspiracies were testifying as experts. Furthermore, even circuits that have held that narcotics agents can testify as lay witnesses have limited that holding to situations in which the narcotics agent has gained the knowledge from that particular investigation and not his or her experience as a narcotics agent generally. See U.S. v. Rollins, 544 F.3d 820 (7th Cir. 2008). Therefore, Bevington’s testimony, which came from his experience generally and not solely from the ongoing investigation, should have been qualified under Rule 702.
The D.C. Circuit will likely hold that Bevington’s testimony was improperly admitted as lay testimony, directly contradicting the intent of Congress in the 2000 Notes to the Federal Rules of Evidence. In fact, two of the solidly conservative judges hearing U.S. v. Smith (Judges Sentelle and Kavanaugh) have previously agreed that a former drug dealer testifying about the modus operandi of a drug conspiracy had to be qualified as expert testimony in U.S. v. Wilson, 605 F.3d 985 (D.C. Cir. 2010). These past rulings further bolster the likelihood that U.S. v. Smith will be a boon for defense attorneys: preventing federal prosecutors from changing the goalposts in the middle of the game and assuring that defendants in drug cases receive a fair trial.