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)