United States v. Shepard

188 F.R.D. 605, 1999 U.S. Dist. LEXIS 13891, 1999 WL 705125
CourtDistrict Court, D. Kansas
DecidedAugust 17, 1999
DocketNo. 99-40055-01-SAC
StatusPublished
Cited by2 cases

This text of 188 F.R.D. 605 (United States v. Shepard) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shepard, 188 F.R.D. 605, 1999 U.S. Dist. LEXIS 13891, 1999 WL 705125 (D. Kan. 1999).

Opinion

MEMORANDUM AND ORDER

CROW, Senior District Judge.

The case comes before the court on the defendant’s following pretrial motions: Notice of Demand for Disclosure of Evidence (Dk.14); Motion to Disclose Expert Testimony (Dk.15); Motion to Dismiss Indictment or, in the alternative, for Bill of Particulars (Dk.17); and Motion to Disclose Witness and Produce Relevant Information (Dk.20). The government has filed two responses to these motions (Dks. 23 and 25). On August 10, 1999, the court heard counsels’ current positions on the matters still contested in these motions. Having reviewed the different fil[607]*607ings and researched the relevant issues, the court is ready to rule.

INDICTMENT

On May 26, 1999, the grand jury returned a four-count indictment charging the defendant with distributing crack cocaine on four separate occasions in violation of 21 U.S.C. § 841(a)(1). Count one charges that the defendant knowingly and intentionally distributed 2.14 grams of crack cocaine on March 1, 1999. Count two charges that the defendant knowingly and intentionally distributed .47 grams of crack cocaine on April 8, 1999. Count three charges that the defendant knowingly and intentionally distributed 1.71 grams of crack cocaine on May 26, 1999. Count four charges that the defendant knowingly and intentionally distributed .91 grams of crack cocaine on May 25,1999.

NOTICE OF DEMAND FOR DISCLOSURE OF EVIDENCE (Dk.14).

Citing Federal Rules of Evidence 404(b) and 609, the defendant “demands notice of any criminal activity or act of moral turpitude allegedly committed” or attributed to him which the government may use at trial or in rebuttal. The defendant also requests notice of any evidence that the government intends to offer pursuant to Rule 807.

The government does not object to disclosure pursuant to Rules 404(b) and 807. The government shall provide timely disclosure of the same no later than two weeks prior to trial. The government objects that the defendant is not entitled to notice under Rule 609 and suggests that the defendant read the rap sheets already provided in discovery. The court sustains the government’s objection to any additional notice pursuant to Rule 609.

MOTION TO DISCLOSE EXPERT TESTIMONY (Dk.15).

The defendant seeks disclosure of the government’s expert witnesses and a summary of their testimony pursuant to Fed.R.Crim.P. 16(a)(1)(E).1 Specifically, the defendant complains that the standard lab results and certificate of analysis submitted by the Kansas Bureau of Investigation after testing the alleged crack cocaine do not satisfy the written summary requirements of Rule 16(a)(1)(E). The government states that the laboratory reports and the sworn certificate convey the substance of the expert testimony, the bases thereof, and witness’s qualifications. The defendant’s motion does not demonstrate that the requirements of Rule 16(a)(1)(E) remain unsatisfied.

The defendant also requests that the government furnish summaries of any expert witness testimony “regarding the nature and habits of persons known to possess and distribute drugs or ... on any other matter related to this investigation and prosecution.” (Dk.16, p. 2). Opposing the request, the government says the possibility of such testimony in this case would be limited to “mundane matters such as the use of pagers, phones, plastic baggies, lookouts, and drug quantities.” (Dk.23, p. 3). The government argues the Rule 16(a)(1)(E) disclosure requirements were meant for “traditional” expert testimony and not “lay” testimony based on officer’s observations and experience.

As demonstrated in the Tenth Circuit decisions cited here, law enforcement officers often testify as expert witnesses when they give their opinions or conclusions regarding drug trafficking activities. See, e.g., United States v. Diaz-Zappatta, 131 F.3d 152, 1997 WL 731790, at *3 (10th Cir. Nov. 25, 1997) (table) (Officer gave expert testimony “regarding the purposes for which drug dealers bring guns to drug transactions”); United States v. Peach, 113 F.3d 1247, 1997 WL 282867, at *3-4 (10th Cir. May 28, 1997) (table) (Detective “testified as an expert witness on crack cocaine sales and the differences between crack cocaine users, user-dealers, and dealers”), cert. denied, — U.S. -, 118 S.Ct. 428, 139 L.Ed.2d 329 (1997); United States- v. Quintana, 70 F.3d 1167, 1170-71 (10th Cir.1995) (Detective testified as an expert in explaining the drug jargon [608]*608used in wiretap evidence); United States v. Muldrow, 19 F.3d 1332, 1338 (10th Cir.) (Officer with “specialized knowledge” gained from education, training and experience in the investigation of drug trafficking offenses testified as an expert about “drug trafficking in the community, amounts of cocaine sold on the streets, the prices of cocaine,” what qualifies as a large amount of cocaine, the dangers in transporting large amounts of drugs, and whether a particular amount was intended for distribution or personal use), cert. denied, 513 U.S. 862, 115 S.Ct. 175, 130 L.Ed.2d 110 (1994); United States v. Garcia, 994 F.2d 1499, 1506 (10th Cir.1993) (FBI language specialist gave expert opinion on “jargon used in drug trade”); United States v. Sturmoski, 971 F.2d 452, 459 (10th Cir.1992) (Agent qualified to testify as an expert on the value of methamphetamine labs and an operator’s desire to protect the lab through the use of firearms); United States v. Harris, 903 F.2d 770, 775-76 (10th Cir.1990) (FBI agent testified as an expert about whether documents “had characteristics consistent with records of a drug business”).

Testimony regarding such matters calls upon specialized knowledge and does not relate “to matters ‘common enough’ to qualify as lay opinion testimony,” and Rule 702 is not trumped simply because'the witness also perceived the facts on which an opinion is to be rendered. United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1823, 140 L.Ed.2d 959 (1998). Consequently, if the government intends to use such evidence “during its case-in-chief at trial,” it must comply with the requirements of Fed.R.Crim.P. 16(a)(1)(E). See, e.g., United States v. Ortega, 150 F.3d 937, 943 (8th Cir.1998), cert. denied, — U.S.-, 119 S.Ct.

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Bluebook (online)
188 F.R.D. 605, 1999 U.S. Dist. LEXIS 13891, 1999 WL 705125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shepard-ksd-1999.