United States v. Mejia, No. 05-2856-cr (2d Cir. October 6, 2008) (Jacobs, Parker, Hall, CJJ)
Here, the improper admission of “officer expert” testimony resulted in a new trial.
The defendants were convicted of participating in two drive-by shootings in connection with their membership in the MS-13 gang. One defendant was sentenced to sixty-three years’ imprisonment, the other to sixty.
A significant portion of the evidence against them, however, came from a New York State Police investigator who testified about the structure and organization of MS-13, as well as its “methods and activities, modes of communication and slang.” It turned out however, the officer’s sources for much of this information were suspect, including reports from other law enforcement officers, custodial statements from other gang members, internet research, and wiretaps that he listened to.
The Court’s Ruling
The court of appeals reversed, finding that much of the officer’s testimony was improper.
The court began with an interesting survey of the development of the so-called “officer expert,” in the 1980s, and of the court’s generally favorable response to this type of testimony. The court pointed out, however, that such testimony “must be limited to those issues where sociological knowledge is appropriate. An increasingly thinning line separates the legitimate use of an officer expert to translate esoteric terminology or to explicate an organization’s hierarchical structure from the illegitimate and impermissible substitution of expert opinion for factual evidence.” As an officer’s “purported expertise narrows from ‘organized crime’ to ‘this particular gang’ … to the criminality of the defendant,” it becomes “a little too convenient” that the government “has found an individual who is expert on precisely those facts that the Government must prove to secure a guilty verdict – even more so when that expert happens to be one of the Government’s own investigators.”
Here, the agent strayed from his proper expert function in several ways. First, much of his testimony concerned material “well within the grasp of the average juror,” such as the fact that the task force had seized guns and ammunition from MS-13 members, and that MS-13 members had committed drug crimes and murders. The circuit noted that no expertise was required to understand any of those facts: lay testimony, arrest records, death certificates and “other competent evidence of these highly specific facts” was available and would readily have been understood by the jury. Similarly, the officer’s testimony about gang members’ travel patterns and the gang’s operations more generally, “went far beyond interpreting jargon or coded messages … or explaining organizational hierarchy.” The court was particularly concerned about the officer’s testimony that MS-13 had committed “between eighteen and twenty-three murders since 2000.”
The court also condemned the officer’s improper use of hearsay. While an expert can rely on certain types of hearsay, he “may not, however, simply transmit that hearsay to the jury.” Here, the officer identified hearsay as the source of much of his information, and “at least some of his testimony involved merely repeating information he had read or heard.” Thus, he was not acting as an expert, “but instead as a case agent.” For similar reasons, the testimony violated Crawford by communicating the testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of an expert opinion.
Finally, the court concluded that the error was not harmless. The testimony was relevant to several contested issues, including whether the gang (1) was an enterprise, (2) affected commerce, (3) engaged in narcotics trafficking, and (4) engaged in acts of violence. The court accordingly vacated the convictions and remanded the case to the district court for a new trial.