Criminal Justice Section
Criminal Justice Magazine
Volume 18 Number 4
Interpreting Code II
Stephen A. Saltzburg
Editor’s Note: “Interpreting Code: Part I” ran in the Fall 2003 issue of Criminal Justice magazine. (Stephen Saltzburg, Interpreting Code: Part I, 18 (No. 3) Crim. Just. 46 (Fall 2003).)
Stephen A. Saltzburg is the Howrey Professor of Trial Advocacy, Litigation, and Professional Responsibility at George Washington University School of Law in Washington, D.C. He is also a contributing editor to Criminal Justice magazine and a section delegate to the ABA House of Delegates
The last column examined problems that can arise when lay witnesses testify as to the meaning of code words in drug cases. The case discussed in that column was United States v. Garcia , 291 F.3d 127, 139 (2d Cir. 2002). This column builds upon that discussion and addresses a newer case from the same court.
United States v. Dukagjibi
A special problem may arise when case agents seek to testify as experts, as illustrated in span style='font-size:10.0pt;font-family:"I Helvetica Oblique"'>United States v. Dukagjibi , 326 F.3d 45 (2d Cir. 2002). Two defendants appealed convictions for conspiracies to distribute heroin and cocaine and for using a telephone to commit a controlled-substance felony, all of which occurred in Rochester, New York. The defendants were part of a large-scale operation. One was an important lieutenant, while the other participated in preparing drugs and distributing them to street-level dealers. The government introduced taped telephone conversations of the conspirators, some of which included the defendants.
The principal issue on appeal was whether Special Agent Richard Biggs of the Drug Enforcement Agency (DEA), who was both the case agent and the government’s expert on the use of code words in narcotics conversations, exceeded the proper bounds of expert testimony. Biggs became the case agent after the wiretaps were concluded and the defendants were arrested.
There was no question that Biggs was qualified as an expert based upon extensive experience as a narcotics police officer and a DEA agent and his monitoring of thousands of phone calls between suspected drug dealers. Biggs testified at length as to the meanings of words used in coded conversations. Although he explained that he relied upon his law enforcement experience in offering an opinion, he also based many parts of his opinion upon his knowledge and involvement as case agent.
The court of appeals rejected the defendants’ argument that, because the conversations were readily understandable, expert testimony should have been excluded. It reasoned that “[f]requently, some of the details of drug operations, as they emerge in intercepted conversations, are quite opaque,” and “[t]he conspirators in this case used jargon frequently and were deliberately ambiguous in their conversations about narcotics.” ( Id . at 52.)
The court did express concern, however, about the dual role Biggs played as case agent and expert witness:Appellants argue that Biggs’s dual roles as case agent and expert witness allowed him to serve as a summary witness, improperly testifying as an expert about the general meaning of conversations and the facts of the case. We agree that the use of the case agent as an expert increases the likelihood that inadmissible and prejudicial testimony will be proffered. While expert testimony aimed at revealing the significance of coded communications can aid a jury in evaluating the evidence, particular difficulties, warranting vigilance by the trial court, arise when an expert, who is also the case agent, goes beyond interpreting code words and summarizes his beliefs about the defendant’s conduct based upon his knowledge of the case.
( Id. at 53.)
The court was concerned that, when a case agent testifies as a fact witness and an expert, the government confers upon the witness an aura of special reliability that may cause a jury to infer that the expert knows more about defendants as a result of expertise than is actually known. The court also expressed two other concerns about dual roles:[E]xpert testimony by a fact witness or case agent can inhibit cross-examination, thereby impairing the trial’s truth-seeking function. In general, impeaching an expert is difficult. The expert usually has impressive credentials, and he is providing an opinion that, unlike a factual matter, is not easily contradicted. Challenges to the expert are often risky because they can backfire and end up bolstering the credibility of the witness. Normally, this is an acceptable risk for the defense, because only the witness’s expertise is at stake. However, when the expert is also a fact witness, the risks are greater. A failed effort to impeach the witness as expert may effectively enhance his credibility as a fact witness. Because of this problem, a defendant may have to make the strategic choice of declining to cross-examine the witness at all. [A]nd of particular relevance to this case, when the prosecution uses a case agent as an expert, there is an increased danger that the expert testimony will stray from applying reliable methodology and convey to the jury the witness’s “sweeping conclusions” about appellants’ activities, deviating from the strictures of Rules 403 and 702 . * * * Although we approve of testimony interpreting drug code words, such expert testimony, unless closely monitored by the district court, may unfairly “provide the government with an additional summation by having the expert interpret the evidence,” and “may come dangerously close to usurping the jury’s function. . . .”
( Id. at 53–54.)
The essence of the court’s concern was that juries might confuse the actual expertise of a case agent based upon experience with the testimony that the agent offers as a fact witness, which is not based upon expertise. In Dukagjibi , the court concluded that Biggs strayed from his proper role as an expert and acted at times as a summary prosecution witness. The effect was to bolster the testimony of the cooperating codefendants and to impinge upon the exclusive function of the jury.
For example, Biggs testified about the meaning of conversations in general, and did not confine himself to code words. He used his knowledge of the case file and witness interviews to opine on what conversations were about.
The court had earlier recognized the heightened risk of allowing case agents to testify as experts, s ee , e . g ., United States v. Feliciano , 223 F.3d 102 (2d Cir. 2000). But it had permitted such testimony and again declined in Dukagjibi to adopt a per se prohibition on a case agent performing a dual role and testifying as an expert. The court warned, however, that “[a]lthough we decline to prohibit categorically the use of case agents as experts, we note that the Federal Rules of Evidence and the Supreme Court place the responsibility upon the district courts to avoid falling into error by being vigilant gatekeepers of such expert testimony to ensure that it is reliable . . . and not substantially more unfairly prejudicial than probative.” ( Id . at 56.)
The court also emphasized the importance of discovery. It noted that Fed. R. Crim. P. 16(a)(1)(G) provides that the defense is entitled to discovery of a written summary of expert testimony that the government intends to use in its case-in-chief. Because the summary must describe the witness’s qualifications and opinions and the bases and reasons for opinions, the court suggested that “[t]his disclosure requirement creates an incentive for the government to limit its use of experts to proper subject matters of expert testimony, lest broader expert testimony require broader pre-trial disclosure.” ( Id .)
Hearsay and confrontation
Rule 702 did not create the only problem for Biggs in Dukagjibi. The court also found that portions of Biggs’s testimony violated two other rules of evidence and the U.S. Constitution. In sum, the court held “that an expert witness may rely on hearsay evidence while reliably applying expertise to hearsay evidence, but may not rely on hearsay for any other aspect of his testimony. Such improper reliance violates Rule 703, the hearsay rule and the Confrontation Clause.” ( Id . at 59.)
The court offered the following analysis:Biggs’s testimony at times departed from the bounds of Rules 702 and 703 and from reliable methodology, as he repeatedly deviated from his expertise on drug jargon. Although in some cases it may be difficult to discern the line between permissible and impermissible reliance on hearsay, here Biggs’s testimony repeatedly crossed that line. For approximately seventy pages of transcript testimony, Biggs interpreted Leonard Miller’s recorded telephone conversations. Immediately after finishing his interpretations of the recorded conversations, Biggs was asked by the prosecutor for the basis of his opinions, and he answered: “These opinions [interpreting the recorded conversations] are based on my knowledge of the investigation . . . [and] also from speaking with cooperating individuals and from speaking with cooperating defendants .” (emphasis added). On redirect, the prosecution again asked, “What are you relying on in support of your interpretation of those calls?” Biggs answered, “Again, it’s my entire knowledge of this investigation which includes . . . speaking with cooperating individuals and cooperating defendants .” (emphasis added). In interpreting terms such as “what’s left over there in that can,” “one or two,” “your thing, your new one,” and “six or whatever,” Biggs plainly was not translating drug jargon, applying expert methodology, or relying on his general experience in law enforcement. Rather, he was relying on his conversations with non-testifying witnesses and co-defendants in order to prove “the truth of the matter asserted” about the meaning of the drug conversations. Fed. R. Evid. 801(c). Locascio permits an expert to rely on hearsay evidence for the purposes of rendering an opinion based on his expertise, but in this case the expert was repeating hearsay evidence without applying any expertise whatsoever, thereby enabling the government to circumvent the rules prohibiting hearsay. The government argues that the appellants had an opportunity to cross-examine Biggs, but that, of course, is no answer when it is the out-of-court declaration of another, not subject to cross-examination, that is being put before the jury for the truth of the matter asserted. . . .
Because the government made no showing that the hearsay had “particularized guarantees of trustworthiness,” the court found that the Confrontation Clause was violated along with the hearsay rule. The defendants failed to make a proper Confrontation Clause objection below, however, and the court ultimately found no plain error as to the constitutional claim and harmless error as to the hearsay claim because Biggs’s testimony was viewed as “merely corroborative and cumulative.”
Garcia and Dukagjibi together should remind prosecutors and defense counsel of certain basic propositions regarding witnesses offered to interpret code words in drug cases:
1. Expert witnesses may be permitted to testify to the meaning of code words. Their testimony may be based upon their general experience in drug investigations. Although Dukagjibi did not discuss the point, it may be necessary for someone to lay a foundation that any defendant involved in a conversation had knowledge of the code. A showing of knowledge may be particularly important where a defendant claims that there is an innocent interpretation of certain words, which was the case in Garcia .
2. A case agent/expert must be careful to demarcate lay testimony from expert testimony, and to demonstrate that any expert testimony satisfies the reliability requirements of Rule 702 and the Supreme Court opinions on expert testimony.
3. A case agent who offers testimony that does not qualify as expert testimony interpreting code words may violate Fed. R. Evid. 702–703 and the Confrontation Clause.
4. It is important for defense counsel to limit the testimony of government experts to those matters disclosed in conformity with Fed. R. Crim. P. 16, by promptly objecting to opinions not disclosed pursuant to that rule. To the extent that Rule 16 disclosures suggest that an expert may be offering opinions that go beyond his or her expertise, the defense should consider an in limine motion to confine the testimony to its proper scope.
5. The defense must make a Confrontation Clause objection, not simply a hearsay objection, to fully preserve for appeal a constitutional attack on a case agent’s expert testimony.