U.S. v. Boissoneault

• Decision Date: 26 February 1991
• Docket Number: D,No. 307,307
• Citation: 926 F.2d 230
• Parties: 32 Fed. R. Evid. Serv. 352 UNITED STATES of America, Plaintiff-Appellee, v. Peter J. BOISSONEAULT, Defendant-Appellant. ocket 90-1324.
• Court: U.S. Court of Appeals — Second Circuit

Page 230

926 F.2d 230

32 Fed. R. Evid. Serv. 352

UNITED STATES of America, Plaintiff-Appellee, v. Peter J. BOISSONEAULT, Defendant-Appellant.

No. 307, Docket 90-1324.

United States Court of Appeals,

Second Circuit.

Argued Nov. 30, 1990.

Decided Feb. 26, 1991.

Peter F. Langrock, Middlebury, Vt. (Langrock Sperry Parker & Wool, of counsel), for defendant-appellant.

Melissa A.D. Ranaldo, Asst. U.S. Atty., D. Vt., Burlington, Vt. (George J. Terwilliger, III, U.S. Atty., David V. Kirby, Chief, Crim. Div., of counsel), for plaintiff-appellee.

Before OAKES, Chief Judge, CARDAMONE, Circuit Judge, and SPRIZZO, District Judge. ^*

OAKES, Chief Judge:

Peter J. Boissoneault appeals from a judgment of the United States District Court for the District of Vermont, Franklin S. Billings, Jr., Judge, convicting him of knowingly and intentionally possessing cocaine with the intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 21 U.S.C. Sec. 841(b)(1)(C). Boissoneault challenges the district court's decision to admit, over objection, certain expert opinion testimony regarding the significance of properly admitted physical evidence. We need not resolve whether the contested testimony exceeded the permissible bounds of expert testimony under the Federal Rules of Evidence, however, because we find that Boissoneault's conviction rests on legally insufficient evidence.

FACTS

On March 19, 1988, police officer Dean Marthers of the St. Albans City Police Department arrested Peter Boissoneault for driving under the influence of alcohol. At the police station, Officer Marthers searched Boissoneault and found on his person $1,460 in ten and twenty dollar bills, and four small packets, commonly called "druggist folds," containing differing amounts of cocaine totalling 1.99 grams. Boissoneault was then left alone in the processing room to telephone an attorney. When Officer Marthers returned to the room, he discovered a plastic bag directly beneath the chair in which Boissoneault had been sitting while speaking with his attorney. That bag contained another 3.32 grams of cocaine. A subsequent search of Boissoneault's wallet revealed $183, numerous business cards and slips of paper bearing names, addresses and telephone numbers, and a slip of paper (Government Exhibit 5) containing what appeared to be columns of initials and numbers. A search of Boissoneault's car turned up a handwritten poster bearing the words: "NOTICE: COKE DEALERS BEWARE. YOU SELL HERE YOU GO TO JAIL."

The case went to trial on July 6, 1989. The only contested issue was whether Boissoneault intended to distribute the 5.31 grams of cocaine he possessed at the time of his arrest. The Government introduced into evidence all the items seized from the defendant. In addition, the Government presented the testimony of five witnesses. Officer Marthers described for the jury the facts surrounding Boissoneault's arrest. Detective Osborne Glidden of the St. Albans Police Department and Detective Jeffrey Barbeau of the Burlington Police Department provided chain of custody testimony. Florence Wong, a chemist for the Drug Enforcement Administration ("DEA"), testified as to the quantity and purity of the cocaine in evidence.

For its last witness, the Government put on Special Agent James Sullivan, Jr., the head of the DEA office in Vermont. Agent Sullivan testified as an expert regarding the methods of drug dealers. ¹ He described in general the characteristics of drug transactions, and contrasted the behavior of street level dealers of cocaine with the behavior of persons involved solely in the personal use of cocaine. He also testified as to the street price for various amounts of cocaine. More particularly, Agent Sullivan told the jury his opinions as to the significance of the physical evidence seized from the defendant. In the course of the Government's direct examination, over objections by defense counsel, Agent Sullivan was asked and answered the following questions:

Q Based on your experience in narcotics investigations, have you any--come to any conclusions as to what those numbers and initials on that piece of paper represent?

A Yes Ma'am.... To my mind that is a--an accounts receivable of what a person is owed by drug customers.

. . . . .

Q Is this evidence which you've examined consistent with any particular type of drug dealer?

A To me, ma'am, everything in these packages and in the circumstances of this case suggest to me street level distribution of cocaine.

Later, during redirect examination and again over defense counsel's objections, the following exchanges took place:

Q Based on the manner in which the cocaine was packaged in this case and based on the denominations of the money that's marked as Government's Exhibit 6A, do you have any belief as to whether or not or--as to what the source of that money is?

A My belief, ma'am, is that the money would come from the street level distribution of cocaine.

. . . . .

Q Aside from the tally sheet, is there any other evidence in this case that would lead you to believe that the sale of cocaine was--that the defendant was selling cocaine that night?

A In my mind, ma'am, the totality of what we have in front of us ... [is] just totally consistent with what I have known for sixteen years as a classic street level distribution of small quantities of cocaine.

Following Agent Sullivan's testimony, the Government rested. The defense presented no evidence, and the jury convicted. On appeal, Boissoneault renews his challenges to the admissibility of the opinion testimony set out above.

DISCUSSION

Rule 702 of the Federal Rules of Evidence provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Under this liberal rule, a qualified expert may generally suggest inferences that should be drawn from the facts, see Fed.R.Evid. 702, advisory committee's note, including inferences embracing the ultimate issue in the case, see Fed.R.Evid. 704(a). The district court may exclude ultimate issue testimony when (1) it is not "helpful" to the trier of fact, see Fed.R.Evid. 702, 704 advisory committee's note; (2) it pertains to a criminal defendant's mental state, see Fed.R.Evid. 704(b); or (3) it is unduly prejudicial, confusing, or time-consuming, see Fed.R.Evid. 403(a). A district court's decision to admit expert testimony will not be reversed unless it is "manifestly erroneous." See United States v. Roldan-Zapata, 916 F.2d 795, 805 (2d Cir.1990).

Based on these principles, we have repeatedly upheld the use of expert testimony by government agents to describe the characteristics and operating methods of narcotics dealers. See e.g., United States v. Campino, 890 F.2d 588, 593 (2d Cir.1989) (drug dealers' use of electronic surveillance equipment), cert. denied, --- U.S. ----, 111 S.Ct. 179, 112 L.Ed.2d 143 (1990); United States v. Diaz, 878 F.2d 608, 618 (2d Cir.) (characteristics of narcotics "stash pad"), cert. denied, --- U.S. ----, 110 S.Ct. 543, 107 L.Ed.2d 540 (1989); United States v. Khan, 787 F.2d 28, 34 (2d Cir.1986) (operations and attire of Pakistani heroin dealers); United States v. Young, 745 F.2d 733, 761 (2d Cir.1984) (operations of heroin "mills"), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985); United States v. Pugliese, 712 F.2d 1574, 1582 (2d Cir.1983) (quantity and purity of heroin used by addicts); United States v. Carson, 702 F.2d 351, 369 (2d Cir.) (clandestine manner in which drugs are bought and sold), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456 & 2457, 77 L.Ed.2d 1335 (1983); United States v. Clark, 498 F.2d 535, 537 (2d Cir.1974) (street value of packaged heroin). In particular, we have held that experienced narcotics agents may explain the use and meaning of codes and jargon developed by drug dealers to camouflage their activities. See, e.g., United States v. Kusek, 844 F.2d 942, 949 (2d Cir.), cert. denied, 488 U.S. 860, 109 S.Ct. 157, 102 L.Ed.2d 128 (1988); United States v. Nersesian, 824 F.2d 1294, 1308 (2d Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987); United States v. Ginsberg 58 F.2d 823, 830 (2d Cir.1985); United States v. Cirillo, 499 F.2d 872, 881 (2d Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974); United States v. Borrone-Iglar, 468 F.2d 419, 421 (2d Cir.), cert. denied, 410 U.S. 927, 93 S.Ct. 1360, 35 L.Ed.2d 588 (1972). Agents may also offer their interpretations of any physical evidence that is properly before the jury. See, e.g., Roldan-Zapata, 916 F.2d at 805; Campino, 890 F.2d at 593; Diaz, 878 F.2d at 618. Finally, we have permitted experts to make conclusory statements, based on their experience, that the defendant was involved in illegal drug-related activity. See, e.g., United States v. Brown, 776 F.2d 397, 400-01 (2d Cir.1985) (testimony that defendant's observed role in drug transaction was that of a "steerer"), cert. denied, 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986); Young, 745 F.2d at 760-61 (testimony that location frequented by defendants was a narcotics "shooting gallery" and that witnessed incident was a narcotics transaction); Carson, 702 F.2d at 369 (testimony that furtive activity appeared to be sales of narcotics); see also United States v. Theodoropoulos, 866 F.2d 587, 591-92 (3d Cir.1989) (testimony characterizing defendants' individual roles in the chain of drug distribution). Cf. United States v. Torres, 901 F.2d 205, 237 (2d Cir.) (suggesting that testimony that recorded telephone conversations indicated defendant's knowledge of and involvement with heroin conspiracy would probably have been admissible), cert. denied, --- U.S. ----, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990).

Measured against these standards, we cannot...