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Lay Opinion Testimony– D.C. Circuit reverses conviction for trial judge’s allowing admission of FBI agent’s lay opinion testimony “interpreting” intercepted communications: United States v. Henry Williams, _ F.3d _ (D.C. Circuit, No. 13-3019, July 8, 2016).

The D.C. Circuit, in an exhaustive opinion discussing the federal wiretap laws and other issues frequently encountered in narcotics prosecutions, reversed one appellant’s conviction because an FBI agent who testified as a “two-hatted expert,” offering expert and lay opinion testimony, was erroneously allowed to offer his lay opinion as to the meaning of otherwise ambiguous or innocent-sounding phrases overheard in intercepted communications in which that appellant had spoken with various alleged co-conspirators.

In United States v. Henry Williams, the Government prosecuted several individuals for engaging in a cocaine trafficking conspiracy. Among other issues, Williams argued on appeal that the trial judge should not have allowed the “case agent” to have rendered his “lay opinion,” purportedly offered under Rule 701, Fed. R. Evid., of what Williams supposedly was talking about in a number of wiretapped conversations. Under the guidelines laid down in United States v. Hampton, 718 F.3d 978 (D.C. Cir. 2013), a decision rendered after the underlying trial, the Circuit panel (Rogers, Pillard and Wilkins, JJ) found error solely as to Williams. (Slip Op. at 32-46). The court rejected Williams’ claim that the Trial Judge had erred in failing to grant his motion for judgment of acquittal, however, and remanded the case, because a reasonable juror could have concluded that the evidence pointed to his guilt. (Id. at 46-50).
Williams, the panel explains, follows both Hampton and earlier Circuit precedent – as well as decisions in recent decisions in sister Circuit Courts of Appeals – expressing discomfiture with the Government’s use of case agents as so-called “summary” experts. (Slip Op. at 36-37) (citing, inter alia, Hampton, 718 F.3d at 983, United States v. Moore, 651 F.3d 30, 57 (D.C. Cir. 2011), and United States v. Miller, 738 F.3d 361, 373 (D.C. Cir. 2013)). First, Williams points out, “‘there is no way for the court to assess whether it [the agent’s opinion] is rationally based on the witness’s perceptions, and second because the opinion does not help the jury but only tells it in conclusory fashion what it should find.’” (Slip Op. at 36) (quoting Hampton, 718 F.3d at 981) (internal citation omitted). Second, merely having listened to all the wiretapped communications and investigated the case was an inadequate basis for admitting the testimony, the panel commented, “because its lack of specificity invited ‘the risk that he was testifying based upon information not before the jury, including hearsay’ and left the jury with ‘no way of verifying his inferences or of independently reaching its own interpretations’ as FRE 701 requires.” (Slip Op. at 36) (quoting Hampton, 718 F.3d at 982-83) (internal citation omitted). Third, “‘[j]udicial scrutiny of a law-enforcement witness’s purported basis for lay opinion is especially important because of the risk that the jury will defer to the officer’s superior knowledge of the case and past experiences with similar crimes.’” (Slip Op. at 36) (quoting Hampton, 718 F.3d at 981-82) (internal citation omitted)

With that backdrop, the per curiam opinion turned to the trial proceedings. In Williams’ case, “all of Agent Bevington’s testimony interpreting wiretap recordings of phone conversations and, in a few instances, surveillance videos of meetings between Williams and Bowman was offered as lay opinion testimony. These recorded interactions between Williams and Bowman involved vague language and ambiguous conduct, but neither explicitly referred to cocaine nor showed Williams receiving cocaine from Bowman. Nonetheless, Agent Bevington’s testimony interpreted them for the jury as relating to the buying and selling of cocaine.” (Slip Op. at 37). This fell into two classes of error.

1.  The Government “properly concede[d] in light of Hampton that some of Agent Bevington’s lay opinion testimony about Williams’s conversations with Bowman was inadmissible because the articulated bases for his opinions referred too generally to Agent Bevington’s knowledge of the investigation or his review of unspecified phone calls or surveillance operations.” In other words, listening to the calls or being responsible for the investigation is insufficient under Rule 701, F. R. Evid. (Slip Op. at 39).

2.  Other error, which the Government declined to recognize as beyond Rule 701’s purview, nonetheless occurred where the agent offered lay opinion testimony about Williams’s conversations with a co-defendant but “the articulated bases for his opinions referred too generally to Agent Bevington’s knowledge of the investigation or his review of unspecified phone calls or surveillance operations.” (Id. at 39-40). Essentially, the Government contended that the prosecutor’s questions provided the basis for the agent to render his “lay opinion.” Not so, per the panel: “on this record, only Agent Bevington had personal knowledge of what perceptions and reasoning he relied on in formulating his lay opinion, only he was able to provide the ‘sufficient factual foundation’ necessary ‘to admit lay opinion evidence rationally based on [his] perception.’” (Id. at 40) (quoting United States v. Williams, 212 F.3d 1305, 1309 n.6 (D.C. Cir. 2000)). In no instance, the panel observed, had the Government shown that the prosecutor “elicited testimony from Agent Bevington that his lay opinion was, in fact, based on the factual foundation stated in the prosecutor’s question.” (Slip Op. at 40).

The danger in the Government’s catch-all approach, according to the court, was that “[j]urors not informed of the bases for Agent Bevington’s lay opinion might also have thought that Agent Bevington ‘had knowledge beyond what was before them . . .defer[ing] to the officer’s superior knowledge of the case and past experiences with similar crimes,’ rather than independently reaching their own opinions about the evidence and ultimately about whether the Government had met its burden of proof.” (Slip Op. at 41) (quoting Hampton, 718 F.3d at 981-83) (internal citation omitted). Moreover, “there was a risk that Agent Bevington’s opinion testimony may have provided expert opinion on ‘a mental state or condition that constitutes an element of the crime charged’ contrary to FRE 704(b)[, F. R. Evid.].” (Slip Op. at 43). the Government’s use of Agent Bevington as a “two-hatted” witness providing closely related lay and expert opinion testimony  “exacerbated these risks,” because “the manner in which Agent Bevington’s expert and lay opinions were interspersed during the trial required mental gymnastics of the jurors in determining when he was testifying as an expert and when he was not, risking confusion, particularly absent an adequate explanation of the bases for his lay opinions to distinguish them from his expert opinions.” (Id.).

Williams’ victory was not unalloyed, however. The panel found that the error in admitting Bevington’s testimony, while harmful, did not require that the conviction be overturned in its entirety. Excluding the erroneously admitted lay opinion testimony, the court stated, “there was sufficient evidence to show Williams’s knowing involvement in the charged conspiracy.” (Id. at 47). Because a reasonable juror could have found him guilty of the offense charged – an unlawful conspiracy to distribute cocaine proscribed under 21 U.S.C. § 846 – Williams was not entitled to a judgment of acquittal and his prosecution thereby barred under the Double Jeopardy Clause. (Id. at 47-49) (citing Burks v. United States, 437 U.S. 1, 13-17 (1978)).

Thanks to Julian Greenspun and Edward Sussman’s diligent work, defense counsel have a new tool to work with in fending off adventuresome claims advanced as “lay opinions.”

–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit. (Full disclosure: I represented a co-appellant in this appeal.)