U.S. v. Foster, 90-2728

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation939 F.2d 445
Docket NumberNo. 90-2728,90-2728
Parties33 Fed. R. Evid. Serv. 1086 UNITED STATES of America, Plaintiff-Appellee, v. Derek FOSTER, Defendant-Appellant.
Decision Date06 August 1991

Brian W. Blanchard (argued), Office of U.S. Atty., Criminal Div., Barry R. Elden, Asst. U.S. Atty., Office of U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for U.S.

Michael D. Monico, Barry A. Spevack (argued), Monico, Pavich & Spevack, Chicago, Ill., for defendant-appellant.

Before WOOD, JR., and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

HARLINGTON WOOD, JR., Circuit Judge.

Passengers collected their belongings and prepared to disembark as Amtrak Train Number 4 came to a halt in Chicago's Union Station. When the doors finally opened, several hundred people, some of whom had boarded the train at its Los Angeles origination point, spilled out onto the platform and made their way toward the terminal. In the middle of this frenzied activity, one person was moving slower than the rest. Derek Foster was struggling to pull two new-looking, hard-sided suitcases and was therefore unable to keep up with his fellow passengers.

The encumbered Foster appeared nervous and repeatedly looked over his shoulder as if someone were following him. In fact, someone was; his unwieldy luggage had caught the attention of several members of a Drug Enforcement Administration ("DEA") task force. Two of the agents approached Foster as he entered the terminal, identified themselves as law enforcement officers, and requested a few moments of his time.

Foster agreed and began to set down his suitcases. One of them fell over, emitting a puff of white powder from its seam. Foster thereafter attempted to return the suitcase to an upright position but was not immediately successful. The suitcase fell over once again and more white powder billowed from its seam. An agent commented on the apparent weight of the bag, and Foster replied that he had a "box" inside. A third agent approached the group, touched and smelled the particles that had escaped from the suitcase, and determined that the substance was talcum powder.

In response to the agents' requests, Foster identified himself and produced a driver's license but claimed that he had lost his train ticket. Foster also disclaimed any ownership of the suitcases, telling the agents that he had agreed to carry them from the train to the baggage claim area as a favor to a young black male. Foster did not know this person's name, but he described the man as tall, wearing a blue jacket, and carrying two suitcases that were identical to the ones at his feet. None of the law enforcement officers had seen this man and an immediate search failed to locate anyone fitting the description.

Foster did admit, however, to ownership of the blue duffel bag that was strapped across his shoulder. He even volunteered it for search by the agents. Upon opening it, the agents discovered clothing, a digital-display beeper, a notebook, and train tickets. The tickets were issued to Mark Wynn and permitted one-way travel from Los Angeles to Chicago and from Chicago to Rockville, Maryland. They had been purchased with cash less than an hour and a half before the train had departed Los Angeles.

A quick perusal of the notebook disclosed notations reflecting weights, money, and names. It also revealed the following handwritten verse:

Key for Key, Pound for pound I'm the biggest Dope Dealer and I serve all over town. Rock 4 Rock Self 4 Self. Give me a key let me go to work more Dollars than your average bussiness [sic] man. 1

A receipt lodged in between the notebook's pages indicated that Foster had signed for the beeper. 2

The agents then asked if they could search the two suitcases. Foster replied that he did not care, again explaining that this luggage did not belong to him. The group then made its way to the DEA station office and the agents opened the suitcases. 3

One suitcase contained a kilogram of cocaine and a five-gallon can containing a liquid form of phencyclidine ("PCP"). The other suitcase contained another five-gallon can filled with liquid PCP. Talcum powder, diapers, and foam rubber had been used to pack the narcotics.

Foster, who was watching the agents' activity, commented that he had not known "that there was that much in there." When the agents completed their search, Foster was placed under arrest. He signed a waiver of his rights and, while relaying information about his personal history, asked to speak in private with his interviewer, Detective Kinsella.

After the other agents left the room, Foster gave Kinsella a very different account of how he had obtained the bags. Under this revised version, a friend promised to pay him for transporting the suitcases from Los Angeles to Rockville, Maryland. Foster knew that the suitcases contained "something," but he did not know how much.

After Foster failed in his bid to make out a violation of his fourth amendment rights, his case proceeded to trial on charges of possession with intent to distribute cocaine and PCP. See 21 U.S.C. Sec. 841(a)(1). And as Foster concedes, the only disputed issue at that trial was whether he knew that he was transporting controlled substances. During the course of that trial, he believes that the district court erred when it allowed Kinsella to testify as an expert regarding the methods used by narcotics traffickers. More specifically, he charges error in the admission of testimony that Los Angeles is a major source city for cocaine and liquid PCP and that, as a general rule, drug couriers try to:

(1) Use cash instead of checks or credit cards to avoid creating a record of their activities (2) Avoid using their real names in travelling;

(3) Purchase travel tickets shortly before departure to avoid having their travel plans known ahead of time;

(4) Purchase one-way tickets for drug-smuggling runs;

(5) Use masking agents such as talcum powder to disguise the odor of narcotics;

(6) Use hard-sided suitcases to keep the odor of drugs from escaping;

(7) Travel by train in part because they can watch their luggage more easily;

(8) Use trains because train station security is minimal compared to security systems used in airports;

(9) Use beepers in order to permit anonymity and mobility; and

(10) Conduct countersurveillance activities to avoid detection by competitors or the police.

Foster also finds error in the admission of the verse found in his notebook and in the admission of testimony that PCP in its liquid form is dangerous to touch and highly explosive. He concludes that the admission of this evidence impermissibly contaminated his trial, but we cannot agree. 4

I.

This court applies a deferential standard in analyzing a district court's evidentiary rulings; we will presume their correctness unless the defendant "can show a clear abuse of discretion." United States v. Carter, 910 F.2d 1524, 1530 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991). Even if the district court has erred, moreover, reversal is required only if the error has affected "substantial rights." FED.R.CRIM.P. 52(a). In considering whether a nonconstitutional error affects substantial rights, " '[o]ur task is to gauge "what effect the error had or reasonably may be taken to have had upon the jury's decision." ' " United States v. Zapata, 871 F.2d 616, 622 (7th Cir.1989) (quoting United States v. Shackleford, 738 F.2d 776, 783 (7th Cir.1984)). Those errors that did not influence the jury or had only a very slight effect are disregarded as harmless.

A. Kinsella's Expert Testimony

Foster's first challenge is in actuality a sextet of arguments that is more conveniently divided into two sub-groups. One subgroup charges that the district court should have excluded Kinsella's expert testimony in the first place because: (1) the testimony is irrelevant outside of a probable cause hearing; (2) an expertise as to the methods used by narcotics traffickers is in reality no expertise at all; (3) the significance of the underlying evidence (for example, the beeper) was well within the common understanding of the jury and did not require expert testimony; and (4) the testimony would constitute an opinion as to Foster's mental state and would therefore violate Rule 704(b) of the Federal Rules of Evidence. A second sub-group charges that, after erring in its decision to admit the evidence, the district court erred further by failing to: (1) take precautionary efforts to avoid any confusion that might have been engendered by Kinsella's role as both eyewitness and expert; and (2) allow Foster a wider latitude in cross-examining Kinsella.

Contrary to Foster's apparent assumption in briefing these arguments, his wide-ranging challenge on appeal is considerably broader than the scope of the objections that he articulated at trial. Even charitably read, the transcript reveals that he preserved only two issues for appeal. First, he objected to Kinsella's expert testimony about the beeper on the ground that it spoke to matters that the jury could evaluate for itself. Second, he attempted but was prevented from pursuing more extensive cross-examination of Kinsella. The unpreserved issues, therefore, must be analyzed under the plain error standard; we will reverse only if: (1) the district court made an error; and (2) that error represented a "miscarriage of justice" 5 such that Foster " 'probably would have been acquitted but for the erroneously admitted evidence.' " United States v. Carroll, 871 F.2d 689, 692 (7th Cir.1989) (quoting United States v. Wynn, 845 F.2d 1439, 1443 (7th Cir.1988)); see also United States v. Myers, 892 F.2d 642, 645 (7th Cir.1990).

According to Foster, the government's use at trial of this type of expert testimony is a relatively new phenomenon. This circuit, however, is quite familiar with the use during trial of expert...

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