USA v. Smith et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN PEARL SMITH, II,
Defendant.
Case No. 3:16-cr-00086-SLG-1
SEALED ORDER REGARDING MOTION TO EXCLUDE EXPERT TESTIMONY
BY INVESTIGATING OFFICERS OR AGENTS
Before the Court at Docket 687 is defendant John Pearl Smith, II’s sealed
Motion to Exclude any “Expert Testimony” by Any of the Investigating Officers or
Agents. The government filed a partial opposition under seal at Docket 798. Mr.
Smith filed a reply under seal at Docket 834.
Mr. Smith seeks an order “preclud[ing] the Government from offering any
‘expert’ testimony from any fact investigator in this case.”1 Mr. Smith points to
several examples of what he maintains is improper expert testimony by lay
witnesses: DEA Agent Burke’s testimony at a pretrial hearing regarding the
sufficiency of legal admonitions given to a cooperating inmate and Agent King’s
testimony before the Grand Jury (1) that Mr. Smith could not legally possess a
firearm;2 (2) regarding the habits of robbers; and (3) stating his conclusion as to
1 Docket 687 at 1.
2 The government’s response does not specifically address the admissibility of Agent King’s
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handwriting comparisons.3 The government has indicated that it “has no intention
of introducing at trial the witness’s opinions referenced by the defendant” in the
defense motion and does not oppose Mr. Smith’s motion seeking to exclude the
specific examples of agent testimony.4 The government has also indicated that
none of its noticed expert witnesses will also be fact witnesses.5
However, should either party identify witnesses who they seek to have testify
both as a lay witness and as an expert witness, that party shall give notice to the
Court and the opposing party outside of the presence of the jury and prior to the
witness testifying. Federal Rule of Evidence 702 provides that a person “qualified
as an expert by knowledge, skill, experience, training or education” may provide
expert testimony if he or she has “scientific, technical, or other specialized
knowledge.”6 In determining whether expert testimony is admissible, a court
considers whether the proposed witness is qualified to offer expert testimony,
whether the witness has applied reliable principles, and whether the witness’s
opinion that Mr. Smith could not legally possess a firearm. However, the determination of
whether a prior conviction qualifies as a felony is for the Court to make. It is also the province of
the Court to instruct the jury as to whether a prior conviction is a felony. See Ninth Circuit
Manual of Model Criminal Jury Instructions § 8.65A. Thus, there is no need for testimony from
any witness as to whether Mr. Smith could legally possess a firearm. Moreover, the felon in
possession charge (Count 17) has been bifurcated from Counts 1–16. Docket 410.
3 Docket 687 at 1–2.
4 Docket 798 at 2, 6–7 (under seal).
5 Docket 798 at 3 (under seal).
6 Fed. R. Evid. 702(a).
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testimony may help the jury understand evidence or determine a fact at issue in
the case. The proponent of the expert testimony bears the burden of establishing
its admissibility by a preponderance of the evidence.7 Even though “district courts
are not required to consider all (or even any) of [the Daubert] factors . . . [they] do
not have ‘discretion to abandon the gatekeeping function’ altogether.”8
The Ninth Circuit has expressed “concern[] that a case agent who testifies
as an expert received ‘unmerited credibility’ for lay testimony.”9 However, “the use
of case agents as both expert and lay witnesses is not so inherently suspect that
it should be categorically prohibited” so long as the trial court makes clear to the
jury that the case agent is testifying in dual roles.10 In this case, it is not apparent
whether any investigating officer or agent will be qualified as an expert in any
particular area. However, if the Court finds an investigating officer or agent to be
so qualified, the Court will give the jury a cautionary instruction as to how to
evaluate the officer/agent’s dual-role testimony and will consider bifurcating that
7 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 n. 10 (1993); Lust v. Merrell Dow
Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996).
8 United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1189 (9th Cir. 2019) (quoting Kumho Tire,
Ltd. v. Carmichael, 526 U.S. 137, 158–59 (1999)).
9 United States v. Freeman, 498 F.3d 893, 903 (9th Cir. 2007) (quoting United States v.
Dukagjini, 326 F.3d 45, 53 (2d Cir. 2003)).
10 Id. at 904. See also United States v. Torralba-Mendia, 784 F.3d 652, 658 (9th Cir. 2019)
(listing ways to mitigate dangers of a case agent testifying as an expert witness).
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witness’s testimony.11 The defense may raise Confrontation Clause challenges at
trial as it sees warranted.
In light of the foregoing, IT IS ORDERED that the motion at Docket 687 is
GRANTED as to testimony on the topics identified in the defense’s motion by DEA
Agent Burke and Agent King. The motion is also GRANTED to the extent that
neither party shall seek to introduce “expert” testimony in violation of the Federal
Rules of Evidence, Daubert and its progeny, or the Confrontation Clause. Should
either party seek to introduce expert evidence from an investigating officer or
agent, it must first make a motion to do so outside the presence of the jury and
provide the Court with the witness’s curriculum vitae or other exemplar of the
witness’s knowledge, skill, experience, training or education and any relevant
report(s) so that the Court may exercise its gatekeeping function.
DATED this 16th day of April, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
11 See Ninth Circuit Manual of Model Criminal Jury Instructions 4.15 (Dual Role Testimony);
Docket 798 at 4.
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