United States v. Hammond

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 17, 1999
• Docket: 98-41074
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-41074 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRUCE A. HAMMOND,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. C-98-CR-72-1 - - - - - - - - - -

June 17, 1999

Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Bruce A. Hammond was convicted for possessing with intent to

distribute 762 kilograms of marijuana. On appeal, Hammond argues

that the district court erred in allowing lay-witness opinion

into evidence. We review the district court’s ruling regarding

the admissibility of opinion testimony for abuse of discretion.

United States v. Washington, 44 F.3d 1271, 1282 (5th Cir. 1995).

Under Fed. R. Evid. 701, lay opinion is admissible if it is

based on personal perception, is one that a normal person would

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-41074 -2-

form from those perceptions, and is helpful to the jury. United

States v. Riddle, 103 F.3d 423, 428 (5th Cir. 1997). The witness

in question, Daniel Squires, was shown photographs of the vehicle

and opined that the plywood compartment containing the marijuana

was visible when the trailer was unhitched. Hammond argues that

the testimony was not helpful to the jury because it substituted

Squires’s opinion for their own. Although it is true that each

juror could form his own opinion as to whether the plywood

compartment was in fact visible from the front of the trailer

based on the photographs in evidence, any juror unfamiliar with

such trucks would not be able to form an opinion as to whether

the plywood compartment was a normal part of the trailer. This

is not an opinion as to the ultimate question of whether Hammond

had knowledge that the compartment contained marijuana, it was a

simple observation that a truck driver would have been able to

see the plywood compartment when the trailer was unhitched. This

opinion was an inference fairly drawn from Squires’s own

experience and the photographs of the vehicle. The district

court did not abuse its discretion in allowing it. See Riddle,

103 F.3d at 429.

AFFIRMED.