U.S. v. Brown
| Decision Date | 15 October 1993 |
| Docket Number | No. 92-1971,92-1971 |
| Citation | 7 F.3d 648 |
| Parties | 39 Fed. R. Evid. Serv. 860 UNITED STATES of America, Plaintiff-Appellee, v. Thyrus Montez BROWN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James E. Beckman (argued), Office of U.S. Atty., Springfield, IL, for plaintiff-appellee.
Brian T. Otwell (argued), Huntley & Giganti, Springfield, IL, for defendant-appellant.
Before CUDAHY and ROVNER, Circuit Judges, and REAVLEY, Senior Circuit Judge. *
A jury found Thyrus Brown guilty of one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), and one count of use of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). On appeal, Brown argues that the district court abused its discretion in admitting expert testimony on the issue of his intent to distribute the cocaine base found in his possession. Brown also contends that the evidence was insufficient to support the jury's verdict on the intent to distribute charge. We affirm.
During the early morning hours of August 4, 1991, four squad cars of the Springfield Police Department were dispatched to the Brandon Addition Housing Project in Springfield, Illinois, to investigate a report that several men were congregating in the vicinity of the housing project and that shots had been fired. Officer Michael Goin left his squad car and proceeded on foot to the southwest corner of the project, while three other officers drove to the area of the reported incident. As the officers approached in their squad cars, the men scattered. Brown ran south and then west, coming directly upon Officer Goin. Goin turned his flashlight on Brown and observed that Brown was wearing dark pants and no shirt and that a handgun was tucked in the waistband of his pants. Goin drew his weapon and ordered Brown to drop the gun and to lie on the ground. Brown did so, and he was then handcuffed and searched. The officers recovered Brown's handgun, a nine millimeter Colt semi-automatic pistol containing eight live rounds of ammunition in its magazine and one live round in the chamber. Goin also found a large brown plastic prescription bottle containing twenty-five pieces of crack cocaine in Brown's right pocket, nine additional rounds of live ammunition in his left pocket, and eighty-two dollars in cash. The twenty-five "rocks" of crack cocaine were equivalent to 2.3 grams of a substance containing cocaine base.
At trial, the government introduced into evidence the handgun and the items seized from Brown, and presented the testimony of seven witnesses. Four police officers described the circumstances of Brown's arrest and established the chain of custody of the physical evidence. A forensic scientist testified about the quantity of cocaine base seized from Brown. A special agent of the Bureau of Alcohol, Tobacco and Firearms also testified that Brown's handgun was fully operational.
In addition, over Brown's objection, Special Agent John Schaefer of the Drug Enforcement Administration ("DEA") was permitted to testify as an expert witness. Agent Schaefer, a twelve-year veteran of several law enforcement agencies, has held his present DEA position for nearly six years. During his career, Schaefer has participated in over 500 narcotics investigations, many of which involved crack cocaine. He previously has testified as an expert witness concerning the habits and practices of narcotics distributors. Prior to testifying in this case, Agent Schaefer, who had not been directly involved in the Brown investigation, familiarized himself with the police reports concerning Brown's arrest and examined the physical evidence.
On direct examination, Schaefer described the methods for manufacturing crack cocaine, the form in which it typically is sold, and the street price for various quantities of the drug. He also described the typical paraphernalia associated with street-level crack distributors and compared that with the paraphernalia and behavior patterns usually associated with those possessing crack only for personal use. On the witness stand, Schaefer was permitted to inspect the prescription bottle seized from Brown and to examine the rocks of crack cocaine. He then testified as follows:
Q. Now, Agent Schaefer, can you tell the ladies and gentlemen of the jury what this information that you have described that you familiarized yourself with, concerning the defendant and his activities, what that indicates to you?
A. That this crack cocaine was intended for distribution.
Q. And why do you say that?
A. Well, because the circumstances surrounding that are described in the report. And the fact that there was no paraphernalia, no smoking device found on the individual, and the weapon that was found.
Q. What circumstances would you highlight? What circumstances are you specifically referring to?
A. Well, the crack bottle, itself, is rather bulky. And it contains about twenty-five rocks of about the same size. Those rocks are about $20.00 rocks, at least, on the street. The sales price, coupled with that and the gun, would lead me to that conclusion.
Q. Would it be typical for a person who was using it to have that type of supply on his person for personal use?
A. No.
Q. Why do you say that?
A. Well, crack cocaine is smoked. But it has to be broken off, chipped, and put into a pipe. A user, or a person that would be using it, would not typically bring that much, in my opinion, out to where it could all be taken away.
Following this direct testimony, Brown's attorney conducted a thorough and vigorous cross-examination of Schaefer, in which he established that a mere user of crack might carry a weapon to protect himself, that a crack dealer usually carries a beeper, and that eighty-two dollars was not a large sum for a crack dealer to carry. Schaefer testified that a crack addict typically purchases more than one rock for personal consumption, that he could not quote the precise street value of the rocks confiscated from Brown, and that he could not estimate how much crack cocaine a particular addict would need to consume to achieve the desired effect.
Brown's wife then testified in his defense, stating that her husband was a crack cocaine addict who consumed the drug daily and that he could consume in one night the quantity the police officers had seized. She also stated that she did not know Brown to carry large sums of cash beyond the amounts he received as a weekend security guard, and that she had never seen Brown selling crack cocaine.
On appeal, Brown renews his challenge to the admissibility of Agent Schaefer's expert testimony on the following grounds: (1) there was no specialized evidence here that would require the testimony of an expert witness to aid the jury's understanding; (2) the dearth of evidence upon which to base an expert opinion meant that Schaefer's testimony was merely speculative and lacked a proper foundation; (3) Schaefer should not have been allowed to express an opinion concerning the ultimate issue of Brown's intent to distribute the crack; and (4) the probative value, if any, of Schaefer's testimony was outweighed by its unfair prejudice. Brown also contends that the evidence was insufficient to prove that he possessed the crack in order to distribute it.
Our review of a district court's evidentiary rulings is, in general, highly deferential. See United States v. Briscoe, 896 F.2d 1476, 1489-90 (7th Cir.), cert. denied, 498 U.S. 863, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990). The admission of expert testimony will be reversed only upon a showing that the district court committed "a clear abuse of discretion." United States v. Amaechi, 991 F.2d 374, 377 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2980, 125 L.Ed.2d 677 (1993); United States v. DeSoto, 885 F.2d 354, 359 (7th Cir.1989). Special deference also is due the district court's assessment of the probative value of evidence because that court is in the best position to balance probative value against the danger of unfair prejudice. See Fed.R.Evid. 403; United States v. Hughes, 970 F.2d 227, 232, 233 (7th Cir.1992); United States v. Foster, 939 F.2d 445, 457 (7th Cir.1991).
In determining whether to admit expert testimony, the crucial inquiry is whether the testimony will be helpful to the jury in resolving a controverted issue. Federal Rule of Evidence 702 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.
Moreover, under Rule 704, a qualified expert in a criminal case is not precluded from suggesting inferences to be drawn from the facts, including inferences that embrace an ultimate issue (see Fed.R.Evid. 704(a); Hughes, 970 F.2d at 236), 1 provided the expert does not express a direct opinion concerning "whether the defendant did or did not have the mental state or condition constituting an element of the crime charged." Fed.R.Evid. 704(b); see Foster, 939 F.2d at 454; United States v. Richard, 969 F.2d 849, 854 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1009, 122 L.Ed.2d 157 (1993); United States v. Theodoropoulos, 866 F.2d 587, 591 (3d Cir.1989); United States v. Dotson, 817 F.2d 1127, 1131-32 (5th Cir.), vacated in part on other grounds, 821 F.2d 1034 (1987) (per curiam).
In determining whether expert testimony will be helpful to the jury in a particular case, the court is required to evaluate " 'the state of knowledge presently existing about the subject of the proposed testimony' " in light of its " 'appraisal of the facts of the case.' " DeSoto, 885...
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