United States v. Keith S. Carswell

922 F.2d 876, 287 U.S. App. D.C. 348, 32 Fed. R. Serv. 81, 1991 U.S. App. LEXIS 367, 1991 WL 2521
CourtCourt of Appeals for the D.C. Circuit
DecidedJanuary 15, 1991
Docket89-3188
StatusPublished
Cited by6 cases

This text of 922 F.2d 876 (United States v. Keith S. Carswell) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Keith S. Carswell, 922 F.2d 876, 287 U.S. App. D.C. 348, 32 Fed. R. Serv. 81, 1991 U.S. App. LEXIS 367, 1991 WL 2521 (D.C. Cir. 1991).

Opinion

Opinion PER CURIAM.

PER CURIAM:

Defendant Keith Carswell appeals his conviction for possession of cocaine base with intent to distribute and use of a firearm during a drug trafficking crime. He asserts several grounds for reversal, but only the district court’s rejection of the defendant’s expert witness merits a published opinion on appeal. Because we conclude that the district court did not abuse its discretion in excluding the would-be expert’s testimony, we affirm the conviction.

I. BACKGROUND

After a search of Carswell’s apartment uncovered fourteen plastic bags containing a total of 2.926 grams of cocaine base, he was charged with possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). At trial, the defendant admitted he possessed the drugs, but testified that he was an addict, and that the drugs were for his personal consumption.

Detective Charles DiDomenico, an officer assigned to the Narcotics Branch of the Metropolitan Police Department, testified that in his opinion the packaging of the cocaine was more consistent with an intent to distribute than an intent to consume. Specifically, the officer opined that a single user would not purchase for consumption the quantity of cocaine found at Carswell’s apartment, and that in any event he would not purchase that quantity in 14 separate bags. On cross-examination, DiDomenico acknowledged that he did not know the maximum amount of cocaine that a person could smoke without dying.

In his case-in-chief, Carswell sought to introduce Mr. Jon Gettman as an expert on drug abuse. According to the defendant’s proffer, Gettman would have testified that the amount of cocaine and the type of packaging found in Carswell’s apartment are consistent with personal use, and that some persons could consume as much as seven grams of cocaine at one time without dying. Gettman would also have testified that cocaine addiction can result in weight loss and erratic work performance, both of which Carswell had claimed, in his own testimony, to have experienced. The district court, however, concluded that Gett-man was not qualified to testify as to these matters, and excluded his testimony.

On appeal, Carswell points to several facts in support of Gettman’s expertise on the subject of drug abuse. At the time of trial, Gettman was the publisher of a newsletter on marijuana; previously he had served as the national director of the National Organization for the Reform of Marijuana Laws (NORML), a purpose of which, according to Gettman, is to educate the public about marijuana. He had also worked eight years, ending in 1980, in a District of Columbia store that sold drug paraphernalia to both marijuana and cocaine users. Gettman had testified twice as an expert on drug abuse in the United States District Court for the Eastern District of Virginia, testified before the Alaska State Senate on a marijuana bill, and spoken at various seminars and conferences on drug abuse.

*878 II. Analysis

Whether a witness is qualified as an expert in a particular area is largely committed to the discretion of the trial court. Beins v. United States, 695 F.2d 591, 609 (D.C.Cir.1982). The principle guiding that discretion is Federal Evidence Rule 702, which 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.

Carswell asserts two bases for Gett-man’s expertise: his work at NORML during the 1980s, and his work in the 1970s at the paraphernalia store. Neither position, however, was linked closely enough to the issues of cocaine use raised by the defense to enable us to conclude that the district court abused its discretion in excluding Gettman’s testimony.

On voir dire, Gettman stated that he was familiar with the quantities in which cocaine is presently sold in the District of Columbia. He did not, however, recognize either of two street terms for such quantities. When asked the source of his information about how cocaine base sales are conducted, he answered:

As part of my job at NORML, it was my responsibility to be current on drug abuse issues before the public, as I frequently would have to debate the issue of the harmfulness of marijuana versus the harmfulness of cocaine or, for that matter, describe how there are differences between the dynamics of marijuana sales and the dynamics of cocaine sales.

It is unclear, however, why these issues would entail knowledge concerning the packaging and distribution practices of cocaine dealers in the District.

In addition, Gettman’s failure to recognize the street terms for the quantities in which cocaine is sold tends to undercut his claim to detailed knowledge in this area. Gettman’s casual encounters with customers in a paraphernalia store, ending over a decade ago, are particularly weak support for a claim of expertise on the subject of the current practices of cocaine sellers or users.

One of the questions that Carswell proposed to ask Gettman involved the amount of cocaine a person can consume at one time. Gettman had no training in pharmacology or any other relevant discipline, however. While an expert need not necessarily have particular academic credentials, e.g., Hammond v. International Harvester Co., 691 F.2d 646, 653 (3d Cir.1982), most cases upholding a trial court’s decision to qualify an expert on the basis of practical experience have involved knowledge gained in something more than a casual manner, or knowledge upon which the witness or others relied in a context independent of the courtroom. For example, in Davis v. United States, 865 F.2d 164 (8th Cir.1988), a witness without academic training had testified regarding the likelihood of transmitting venereal disease; the court of appeals upheld admission of the testimony because the witness was a public health investigator. Similarly, in Hammond, an expert without design credentials testified as to a design defect in a tractor; he had not only sold automotive and mechanical agricultural equipment, but had also taught automobile repair and maintenance. 691 F.2d at 653.

In McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126 (2d Cir.1979), buyers for department stores had testified regarding the sophistication of the typical retail purchaser of a particular type of coat. In the course of discussing the district court’s admission and consideration of this testimony, the Second Circuit concluded that “[i]t was certainly not error for the district court to credit and rely on the ...

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922 F.2d 876, 287 U.S. App. D.C. 348, 32 Fed. R. Serv. 81, 1991 U.S. App. LEXIS 367, 1991 WL 2521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-keith-s-carswell-cadc-1991.