U.S. v. Moore

Decision Date27 March 2008
Docket NumberNo. 06-4308.,No. 06-3347.,No. 06-1355.,06-1355.,06-3347.,06-4308.
Citation521 F.3d 681
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Folashade MOORE, Taofiq Afonja, and Michael Sanders, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Stuart D. Fullerton, Debra Riggs Bonamici (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Timothy R. Roellig, Novelle & Roellig, Chicago, IL, for Defendant-Appellant, Folashade Moore.

Gregory T. Mitchell (argued), Homewood, IL, for Defendant-Appellant, Taofiq Afonja.

Shaundra L. Kellam, Office of the Federal Public Defender, Springfield, IL, Richard H. Parsons, Office of the Federal Public Defender, Peoria, IL, Michael R. Sanders, Federal Correctional Institution, Big Spring, TX, for Defendant-Appellant, Michael R. Sanders.

Folashade Moore, Danbury, CT, pro se.

Before EASTERBROOK, Chief Judge, and MANION and SYKES, Circuit Judges.

EASTERBROOK, Chief Judge.

Michael Sanders arrived in the United States from Nigeria with 3.6 kilograms of heroin in his luggage., When caught, he claimed to be a courier with no interest in the drugs apart from a $3,000 fee for his services; he agreed to participate in a controlled delivery to the next people in the chain, who were to collect the heroin at a bus station in Chicago. Several conversations in Yoruba with "Baba," Sanders's contact, preceded his arrival. Eventually Taofiq Afonja drove up and told Sanders to put his luggage in the trunk of his car. Sanders asked, in Yoruba, whether Afonja was "that person" or "the one" (and surely was not referring to Neo in The Matrix). Afonja replied (in translation) that he was, and that "[t]hey have spoken to us. It is them they are talking to on that phone." Afonja then took the suitcase but before he and his passenger, Folashade Moore, could leave, all three were arrested. Another car, presumably carrying Baba, got away; he is a fugitive.

Sanders pleaded guilty to conspiring to possess the heroin with intent to distribute it and has been sentenced to 120 months' imprisonment, the statutory minimum. Moore confessed that she had gone to the bus station to pick up a drug courier for Baba, her boyfriend. Nonetheless she pleaded not guilty. A jury convicted her of attempted possession of the heroin. She has been sentenced to 121 months' imprisonment. Afonja, who did not confess, was tried separately to avoid Bruton problems and convicted of conspiracy and attempt. His sentence, too, is 121 months. All three have appealed, but counsel for Moore and Sanders have filed Anders briefs. Sanders does not want to withdraw his guilty plea and received the lowest available sentence; he has no conceivable appellate issue. Moore proposes to contest the admissibility of her confession on the ground that the agents did not give Miranda warnings, but no motion to exclude the confession was made before or during trial, so this argument has been forfeited. What's more, three agents testified without contradiction that Miranda warnings had been given. Other potential arguments likewise would be unavailing, as Moore's lawyer concluded. We dismiss Sanders's and Moore's appeals as frivolous.

Afonja has a non-frivolous argument: that a witness testifying as an expert for the prosecution did not satisfy the requirements of Fed.R.Evid. 702. Afonja maintained that he didn't know what was in Sanders's suitcase. Robert Coleman, a police officer employed by Will County, Illinois, and assigned to a drug task force, testified for the prosecution as an expert about drug transactions. One of the questions he addressed was whether innocent persons participate in drug transactions. Over Afonja's objection, Coleman testified that, except for children, only "people that are involved in the drug deal" will be present — and by "involved" Coleman meant people who "have knowledge as to what's taking place, the illegal activity". Afonja maintains that the district judge should have prevented Coleman from giving this testimony.

The district judge concluded that Coleman's training and experience make him an expert on drug transactions. The prosecutor repeats this theme, and we may assume that Coleman indeed knows much more about these transactions than do jurors and so is well situated to provide information about them. But Rule 702 does not say that any testimony within the scope of a witness's expertise is admissible. It 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The district judge did not address any of the Rule's three questions: (1) whether Coleman's view "is based upon sufficient facts or data"; (2) whether it is "the product of reliable principles and methods"; and (3) whether the "witness has applied the principles and methods reliably to the facts of the case."

Both the judge and the prosecutor stopped with the proposition that Coleman is an expert; for its part, the defense also bypassed the Rule's requirements in favor of the assertion that an expert should not be allowed to testify unless his experience includes a transaction just like this one (presumably, one in which several Yoruba-speaking people exchange a suitcase outside a bus station in Chicago). The defense position is anti-intellectual and has nothing to do with Rule 702; the point of good data and reliable analysis is to find patterns that transcend details such as which bus station is used or what language people speak.

Both the judge and the prosecutor supposed that decisions in this circuit make it unnecessary to address the questions posed by Rule 702. We have held that an agent's field experience can provide "specialized knowledge" that supports expert testimony. See, e.g., United States v. Ceballos, 302 F.3d 679, 686-88 (7th Cir.2002); United States v. Allen, 269 F.3d 842, 846 (7th Cir.2001). And we have twice held that district judges did not err in admitting testimony of the kind that Coleman gave here. See United States v. Garcia, 439 F.3d 363, 367-68 (7th Cir.2006); United States v. Love, 336 F.3d 643, 646-17 (7th Cir.2003). But neither Garcia nor Love dealt with Rule 702. Garcia held that testimony (by Coleman himself) did not deprive the accused of the presumption of innocence, and Love that testimony about the probability of innocents participating in drug deals did not violate Fed. R.Evid. 704(b), which forbids expert testimony about whether the defendant had the mental state required for conviction. Neither Garcia nor Love holds that district judges must admit testimony of the sort that Coleman proffered or excuses judges from conducting the inquiry required by Rule 702 every time any expert proposes to testify. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153-57, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

On what "facts or data" does Coleman's opinion rest? Are his inferential methods reliable? Coleman did not describe either the facts he considered or the methods of...

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