Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Brian F. Russo (018594) 111 West Monroe Street Suite 1212 Phoenix, Arizona 85003 (602) 340-1133 telephone (602) 258-9179 facsimile e-mail: [email protected] Attorney for Defendant Robert Johnston Jr. IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT J. JOHNSTON, JR. (1), Defendant. ) ) ) ) ) ) ) ) ) ) Case No. CR 03-1167 PHX-DGC MOTION TO EXCLUDE OR LIMIT GANG EXPERT TESTIMONY

(Evidentiary Hearing Requested)

COMES NOW the defendant by and through counsel, Brian F. Russo, and hereby moves this Honorable Court for an order, excluding or limiting the Government's proffered expert testimony. This Motion is supported by the Memorandum of Points and Authorities attached hereto. RESPECTFULLY SUBMITTED this 12th day of December, 2005. /s/Brian F. Russo Brian F. Russo Attorney for Defendant

1

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 1 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY The government will attempt to use the gang (hereinafter "OMG" Outlaw Motorcycle Gang) expert testimony in this case as mortar with which to build a federal case out of disparate and unrelated separate state offenses, namely murder, attempted murder, conspiracy to murder and distribution of controlled substances by various people over the years. In fact, the government is attempting to prove both the RICO and RICO Conspiracy solely by the testimony of Agang experts who will supply evidence that is otherwise missing from the evidence. The government cannot be permitted to use such expert testimony to substitute for competent evidence. The government's proffered experts have never been qualified to testify as AOMG experts@ in federal court, and the one expert who has been qualified as an expert in state court does not appear to have testified for the same purpose as is being offered in this prosecution. The government=s proffered Agang experts@ should be excluded for a number of reasons. First, the expert testimony should be excluded under Federal Rule of Evidence 702 because the proffered experts do not use a reliable methodology and because their expertise is not admissible for the purpose for which it is being offered in this prosecution. Second, the experts impermissibly rely on hearsay, in violation of defendants' confrontation rights under the Sixth Amendment, as recently articulated by the United States Supreme Court in Crawford v. Washington, 124 S. Ct. 1354 (2004). Third, Federal Rule of Evidence 704(b) precludes the government=s experts from opining with respect to HAMC OMG membership because the government is

2

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 2 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

impermissibly attempting to use expert testimony to establish defendant's mens rea vis-à-vis the charged RICO and RICO Conspiracies. Fourth, the government's proposed gang expert evidence must be excluded in its entirety as unduly prejudicial because the Ninth Circuit has recently made clear that the admission of evidence relating to gang involvement will almost always be prejudicial and will constitute reversible error, and may not be offered to prove intent or culpability. Fifth, the government's gang expert testimony is unnecessarily cumulative, in that the government seeks to elicit essentially identical testimony from six different witnesses. Sixth, the government's experts should not be permitted to testify as both an expert witness and a fact witness. The portions of the expert's opinions that are not based on inadmissible hearsay are just based on the officer's observations, and such observations should not be cloaked with the mantle of expertise. The defense anticipates that the issues described above will be more fully elucidated at the evidentiary hearings, and that additional argument may be necessary at the conclusion of the hearings. II. BACKGROUND A. Second Superceding Indictment Defendant Robert Johnston is charged in the government=s Second Superceding Indictment in Counts 1 and 2, RICO and RICO Conspiracy. The government specifically alleges, with regard to Mr. Johnston that he committed predicate acts 6 and 20, unlawfully and knowingly with others in the conduct and as affairs of the enterprise.

3

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 3 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

The government's theory is that the: "purpose of the enterprise included the following: a. Enriching the associates and members of the enterprise, and advancing the interests of the associates and members of the enterprise through, among other things, murder, attempted murder, conspiracy to murder, witness intimidation and distribution of controlled substances. b. Preserving and protection the power and territory of the enterprise by using intimidation, murder, violence, threats of violence, and attempted murder and conspiracy to commit murder. c. Promoting and enhancing the enterprise and the activities of its members and associates. d. Keeping victims and witnesses in fear of the enterprise and in fear of its members and associates through violence and threats of violence. B. The Government=s Proffered AOMG Experts@ To support its theory that the HAMC is an OMG and thus a RICO enterprise and that the defendants in this case are OMG members, the government proffers the testimony from six purported OMG experts, each of whom are employees of law enforcement. Specifically, the government seeks to qualify the following persons: (1) Agent Joseph Slatella; (2) Agent Jay Dobyns; (3) Agent John Ciccone; (4) Detective Billy Guinn; (5) Detective Chris Hoffman; and (6) Detective Chris Bayless. In addition to the qualifications of these individuals, the government=s disclosures in its Notice of Expert Witnesses summarizes the subject of each witness=s proposed opinion testimony. See generally, Government's Notice of Expert Witnesses. 1. Agent Joseph Slatella Agent Slatella is with the ATF. He has never testified as an expert and does not consider himself an expert, in spite of the government's proposition to the contrary. Agent Slatella has not listed any education in his resume concerning
4

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 4 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

OMGS and more specifically the HAMC. The government intends to offer Agent Slatella as both a fact witness and an expert witness. As an expert, Slatella will testify to the following: 1. He will identify members of the HAMC and its alleged associates. 2. He will trace the chronology and historical development of the HAMC. .... 3. He will identify the core members, associates, and affiliates within this Indictment. 4. He will testify about HAMC rules of conduct, chain of command, membership, insignia, etc. 5. He will testify regarding the role of narcotics and firearms in relation to the HAMC. 6. He will also testify about his involvement in the instant investigation and facts and circumstances surrounding surveillance and witness interviews. See Government's Notice of Expert Witnesses. In addition to his training and experience, the bases for Slatella=s opinions include out-of-court statements from third persons: Acitizen informants; confidential informants the observations of other law enforcement officers/agents communicated to him; police reports; and information from cooperating HAMC

19 20 21 22 23 24 25

members or associates. Slatella's opinions regarding HAMC members and associates affiliation, and association are also based, inter alia, on out-of-court statements from third persons and it is anticipated that many of his opinions will be derived from: (1) self-admission, or admission of family member or friend of OMG member; (2) photographed/videotaped with other OMG members; (3) photographed/videotaped displaying OMG insignia(s); (4) wearing OMG apparel; (5) observed in the company of other OMG members; (6)
5

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 5 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

having tattoos expressing affiliation with that OMG; (7) having participated in a shooting against a rival OMG; (8) identified by rival or other OMG member as affiliated with that OMG; (9) observed associating with other OMG members; (10) identified by a OMG member/associate as being affiliated with that OMG; and (11) identified in prisoner classification as being affiliated with that OMG. 2. Agent Jay Dobyns Agent Dobyns a.k.a. "Bird" and M1 is a member of the ATF and was the lead undercover agent who posed as a member of the Solo Angels in an effort to infiltrate the HAMC. He spent approximately 19 months undercover in the instant case interacting with members and associates of the HAMC. He has never been qualified as an expert and has little or no previous experience with the HAMC. His proposed expert testimony in large part duplicates that of Agent Slatella. Thus, it is clear that the government intends to offer Agent Dobyns as both a fact witness and an expert witness Additionally, the bases for Dobyns=s identification of HAMC members and associates are nearly identical to those upon which Slatella will rely. 3. Agent John Ciccone Agent Ciccone is a member of the ATF and although he appears to have more education with regard to OMGs, it is not clear how much relates to the HAMC. His proposed testimony largely duplicates that of Agents Slatella and Dobyns. In addition to his training and experience, the bases for Ciccone's opinions include out-of-court statements from third persons and consultations with agents involved in the instant investigation: Acitizen informants; confidential informants; the observations of other law enforcement officers/agents communicated to him;

6

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 6 of 22

1 2

police reports; and information from cooperating HAMC members or associates. As indicated above, his opinions offer nothing new or different that the opinions

3

proposed by Slatella and Dobyns.
4

4. Detective Billy Guinn
5

Detective Guinn is a member of the San Diego Sheriff's Office. His
6

proposed testimony adds nothing to what is proposed by the forgoing opinions.
7

Further, the government has not provided a resume or CV from Detective Guinn,
8

making it less likely he will be qualified as an expert in the instant matter.
9

5. Detective Christian Hoffman
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Detective Hoffman is a member of the Tempe Police Department. Although he appears to have gang training or education, it is not clear how much involves HAMC and OMGs. Detective Hoffman incorrectly states as part of his experience that he testified in a court case involving gang testimony. The case he cites did not proceed to trial and he was never qualified as an expert. Nevertheless, Detective Hoffman's proposed testimony duplicates that the other proposed opinions and is derived from similar sources. 6. Agent Christopher Bayless Agent Bayless is a member of the ATF. His education, training and experience are not known because the government has not provided his résumé or CV. Nevertheless, his proposed testimony mirrors that of those above. III. ARGUMENT A. The Admissibility of Expert Testimony in Federal Court

When subjected to the requirements articulated in Daubert and to the Federal Rules of Evidence, the government's proposed gang expert testimony must either be excluded in its entirety or strictly limited.

7

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 7 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

The Supreme Court has made clear that federal trial judges have a special gate keeping obligation to insure that only reliable expert testimony be presented to jurors. Kumho Tire v. Carmichael, 526 U.S. 137, 147 (1999) (In Daubert, this Court held that Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to ensure that any and all [expert] testimony . . . is not only relevant, but reliable.) (quoting Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589 (1993)). Although the admissibility of expert testimony is generally governed by the principles of Federal Rule of Evidence 104, Federal Rule of Evidence 702 is the Aprimary locus@ of this relevancy and reliability determination. See Daubert, 509 U.S. at 589; United States v. Chischilly, 30 F.3d 1144, 1152 (9th Cir. 1994). A court assessing the proffer of expert testimony under Rule 702 must also consider other rules applicable to experts, including Federal Rule of Evidence 703. Id. Rule 703 provides that an expert may only base her opinion upon Afacts and data that are reasonably relied upon by others in the witness's field of expertise. Fed. R. Evid. 703; see also 4 Jack V. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence ' 703.04[1] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 2004). Finally, when evaluating the admissibility of expert testimony, the district court must also conduct a prejudice analysis under Federal Rule of Evidence 403. Indeed, because expert evidence can be both powerful and quite misleading, the district court must exercise particular vigilance when considering its prejudicial force. See Daubert, 509 U.S. at 595 (Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.) (internal quotation omitted); Chischilly, 30 F.3d at 1156 (ANevertheless, we take seriously the Court=s

8

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 8 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14

admonition in Daubert that [expert] evidence must withstand close scrutiny under Rule 403.@). 1. The Government's Proposed Experts Do Not Qualify Under Rule 702 The government=s OMG expert evidence fails to pass muster under Federal Rule of Evidence 702. As discussed above, Rule 702 is the Aprimary locus of the reliability determination for expert testimony. See Daubert, 509 U.S. at 589; United States v. Chischilly, 30 F.3d 1144, 1152 (9th Cir. 1994) Rule 702 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. Fed. R. Evid. 702. As is plain from the text, ARule 702 sets forth the overarching

15

requirement of reliability articulated by the Supreme Court in Daubert. Fed. R.
16

Evid. 702 advisory committee's note.
17

While the terms >principles= and >methods= [in Rule 702] may convey a
18

certain impression when applied to scientific knowledge, they remain relevant
19

when applied to testimony based on technical or other specialized knowledge. See
20

id. If an expert is
21 22 23 24 25

relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court=s gatekeeping function requires more than simply Ataking the expert=s word for it.@ Id. (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1319 (9th Cir.

9

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 9 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1995). 2. The Government's Proposed Experts Do Not Explain Their Methodology Although the government has provided résumés for each of its proposed gang experts, the proposed experts have not described any objective methodology that they purport to reliably apply to the facts of this case. Without such a showing, the government=s proposed gang experts may not testify. See Fed. R. Evid. 702. Furthermore, should the government attempt to make such a showing at the scheduled Daubert hearing, the defense reserves the right to examine the proposed gang experts regarding their training, experience, Amethodology, and whether the Amethodology is reliably applied here. It is important for this Court to consider that while the proffered experts may have training that makes them better investigators and officers, and while seminars and specialized training may assist them in investigating potential OMG suspects and in cracking a case, this on-the-street training clearly does not necessarily translate into a methodology that permits them to testify in court. For example, the proffered experts may get instructed at their training sessions that it is useful to learn if other people (such as informants) identify Person X as a gang member for the purposes of investigating Person X, but that does not mean that the officer can come to federal court and say that Person X is a gang member simply because that is one of his methods on the street. B. The Proffered Experts Have Not Been Found Qualified to Testify in Federal Court as to the Matters for Which the Government Proffers Them Only one of six proffered government OMG experts has been found to qualify as an expert. That agent, John Ciccone, has never qualified in federal court as an expert. Further, it is not clear that his state expert testimony was in the same
10

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 10 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

context or for the same purpose for which the government seeks to admit it in this case. The defense is still awaiting full disclosure of the transcripts of his prior testimony in particular cases involving HAMC member and will augment its argument in this respect when the full materials are produced by the government or secured by the defense where possible. It is noteworthy that from the transcripts produced thus far, agent Ciccone has not testified as to the definition of an OMG in the manner the government has used it in this prosecution, namely in relation to RICO and RICO Conspiracy. If the government has proffered that Ciccone, by implication or extrapolation is going to testify to a different definition of gang or OMG, such as that used in the context of a state statute, that would give rise to an additional legal objection based on impermissible testimony as to defendants= mens rea. However, the government has not as of yet provided the requisite information necessary to proceeded on such definition. C. The Gang Experts Impermissibly Rely On Out-Of-Court Testimonial Statements In addition to the absence of an objective methodology for the reliable application of their expertise, the government=s proposed gang expert=s opinions also rely heavily on inadmissible, testimonial statements. This Court should prohibit the use of such testimonial hearsay because it is fatally unreliable in this particular case, does not involve the application of expertise or specialized skill, and violates the Sixth Amendment as recently articulated by the United States Supreme Court in Crawford v. Washington, 124 S. Ct. 1354 (2004). Thorough consideration of Crawford is important in this case. In Crawford, the Supreme Court held that where the government seeks to introduce testimonial statements from a witness absent at trial, the Confrontation Clause of the Sixth
11

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 11 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Amendment is violated unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. Crawford, 124 S. Ct. at 1369, 1374. Crawford was predominantly concerned with judicial determinations of the reliability of out-of-court statements: [w]here testimonial statements are involved, we do not think the framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of >reliability. 1 Id. at 1370. Instead, the reliability of such evidence must be tested Ain the crucible of cross-examination. 2 Id. The principles of Crawford find application here. As discussed in the Background section above, each of the government's experts base their proposed testimony on the out-of-court statements of third persons. For example, the bases for Agent Slatella's testimony include statements from citizen informants, confidential informants, law enforcement officers, rival gang members, and police reports. With some minor variation, Agents Dobyns and Ciccone, and Detective Hoffman rely on the same sources. What is particularly troubling, however, is the manner in which the government's experts offer these testimonial statements: for their truth. In particular, each of the government's three proposed experts opine as to the OMG membership of certain individuals, including the defendants. Yet in

Crawford overturned the Court=s previous decision Ohio v. Roberts, 448 U.S. 56 (1980), which permitted admission of the unavailable witness=s statement absent cross-examination so long as the statement bore Aadequate indicia of reliability.@ Crawford, 124 S. Ct. at 1358. Moreover, a recent decision of the Ninth Circuit confirms that evidentiary reliability is the primary focus of Crawford. In Bockting v. Bayer, ___ F.3d ___, 2005 U.S. App. Lexis 9973(9th Cir. June 1, 2005), the Ninth Circuit concluded that the holding of Crawford constituted a new rule that applied retroactively because Confrontation Clause violations seriously undermine the accuracy and reliability of a proceeding. See Bockting, 2005 WL at *7-8.
2[4]

1

12

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 12 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

forming their opinion, each expert simply relies on the following third-party, testimonial statements asserting that the individual is an OMG member and that membership thereby constitutes RICO enterprise: (1) statements from friends and family members; (2) statements from CIs and CWs; (3) statements by purported members of the same OMG. Cf. United States v. Cromer, 389 F.3d 662, 673 (6th Cir. 2004) (holding that Atestimonial@ statements under Crawford include statements made to the authorities knowing that they will be used in investigating and prosecuting crime); id. at 675 ([S]tatements of a confidential informant are testimonial); United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004) (Testimonial hearsay includes >custodial examinations= and >statements taken by police officers in the court of interrogations.). This type of expert testimony is objectionable on at least two grounds. 1. The Government's Experts May Not Reasonably Rely On OutOf-Court Testimonial Statements First, because the testimonial statements at issue here are unreliable in view of Crawford, this Court should prohibit their use pursuant to Federal Rule of Evidence 703. Rule 703 provides in relevant part: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Fed. R. Evid. 703 (emphasis added). When an expert relies on otherwise inadmissible information, Rule 703 requires the trial court to determine whether that information is of a type reasonably relied upon by other experts in the field; none of the proposed experts has been so qualified in Federal Court. Fed. R. Evid.

13

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 13 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

702 advisory committee=s note. Under Rule 703, [i]t is not sufficient for the court simply to ascertain that other experts do in fact rely on that type of data. Rather, the court must make an independent assessment, based on a factual showing, that the material in question is sufficiently reliable for experts in that field to rely on it. 4 Weinstein's Federal Evidence ' 703.04[2]. As Crawford categorically denounced the reliability of testimonial statements absent cross-examination, this Court must prohibit the government's proposed experts from relying upon such statements in forming their opinions here. Moreover, reliance on such statements undermines the overarching reliability of the proposed expert testimony under Rule 702 and Daubert. 2. The Proposed Gang Experts Apply No Expertise When Merely Relaying Testimonial Hearsay Statements Second, this Court should also preclude the government's gang experts from relying on the testimonial statements at issue because the experts are applying no expertise or special skill when making use of these facts. Simply put, it takes no expertise to opine that someone is a member of HAMC because an informant or some other third party stated that the person is a member of HAMC. See United States v. Dukagjini, 326 F.3d 45, 59 (2d Cir. 2003) ("[I]n this case the expert was repeating hearsay evidence without applying any expertise whatsoever, thereby enabling the government to circumvent the rules prohibiting hearsay.@). Because an expert=s mere parroting of another=s statement does not Aassist the trier of fact to understand the evidence, see Fed. R. Evid. 702, and serves as a conduit of hearsay in violation of the hearsay rule and Confrontation Clause, this Court should preclude the government expert's use of such testimonial statements. See Dukagini, 326 F.3d at 59 (concluding that portions of expert's testimony based on

14

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 14 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

out-of-court interviews with co-conspirators, was not Awithin the permissible bounds of expertise and was hearsay in violation of the Confrontation Clause); see also generally Crawford, 124 S. Ct. 1354. If the government intends to prove that defendants are members of HAMC or any other fact based on the statements of third persons, the government should call those persons to testify and subject them to cross-examination not insulate those witnesses behind purported experts. The extent to which the government's proffered experts rely on such hearsay, and whether their expert opinion could survive without reliance on such testimony, will be clearer after the evidentiary hearing. D. Federal Rule of Evidence 704(b) Precludes the Government=s Experts From Opining With Respect to HAMC Membership The government is impermissibly attempting to use expert testimony to establish what is the crux of the case (and the only basis for federal jurisdiction) that there was a RICO enterprise and RICO Conspiracy and that all agreed that drug transactions and acts of violence were in furtherance of such Enterprise and its conspiracy. The government has indicated that each of its six proposed gang experts will opine that certain persons are members or associates of the HAMC. While the government has yet to disclose to subjects of or bases for the agents' identification

20

of particular persons as HAMC OMG members, the agents' will purportedly opine
21

that Robert Johnston and nearly all of the other named defendants are HAMC
22

members or associates. Because this type of testimony violates Federal Rule of
23

Evidence 704(b), the government=s experts must be precluded from opining as to
24

any defendant=s alleged HAMC membership in general and in relation to the
25

enterprise theory.
15

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 15 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

While Rule 704(a) generally provides that an expert witness may opine as to an ultimate issue to be decided by the factfinder, subsection (b) of the Rule provides a limited exception: No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matter for the trier or fact alone. Fed. R. Evid. 704(b). AA prohibited >opinion or inference= under Rule 704(b) is testimony from which it necessarily follows, if the testimony is credited, that the defendant did or did not possess the requisite mens rea.@ United States v. Morales, 108 F.3d 1301, 1037 (9th Cir. 1997) (en banc). Here, if the government's so called OMG experts were permitted to opine that HAMC is a Agang@ and thus, a criminal enterprise comprised of a group of people who Aclaim@ and Aregard@ HAMC Arizona as their exclusive turf in which to conduct the affairs of the enterprise through the alleged pattern of racketeering set forth in the Second Superseding Indictment, it would necessarily follow from the expert=s opinion that any alleged HAMC members or associates possessed the requisite mens rea for the conspiracy charged in the indictment as alleged in Count 2. The government=s proposed experts would complete the circle by identifying Robert Johnston and other defendants as HAMC members or associates. So, the intent to conspire to commit the acts named in Counts 1 and 2 is precisely the mental state Aconstituting an element of the crime charged@ in substantive counts allegedly agreed upon and done for the purpose of the

16

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 16 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

enterprise. Fed. R. Evid. 704(b). Thus, were the agents to opine that Robert Johnston or any other defendant is a member of HAMC, and to opine that HAMC is a group of people who have agreed to commit the acts alleged, it would necessarily follow from the expert=s testimony that Mr. Johnston possessed the requisite mens rea of the charged crime. Cf. Morales, 108 F.3d 1307. The agents' proposed testimony, therefore, violates Rule 704(b). The Ninth Circuit=s opinion in United States v. Wang compels this conclusion. See United States v. Wang, 49 F.3d 502 (9th Cir. 1995). In Wang, the defendant was charged and convicted of conspiracy to bring aliens unlawfully into the United States. Id. at 503. At trial, the government proffered the testimony of an expert on the subject of alien smuggling, and questioned the expert as follows: Q. Have you formed an opinion as to whether the defendants in this case were part of a group of smugglers smuggling Chinese aliens into the Country? .... A. Yes, I formed an opinion. Q. What is your opinion? A. My opinion is yes, they were involved in an organization to smuggle aliens into the United States. Id. at 504. The defendant objected on 704(b) grounds and appealed his ultimate conviction. Id. Upon review, the Ninth Circuit found the trial court=s apparent error

20

harmless because of the overwhelming evidence of the defendant=s guilt. Id. at 505
21

(A[T]he court falls back on its harmlessness in order not to overturn the
22

conviction.@). Nonetheless, the Court issued a clear warning for district courts
23

considering similar testimony under Rule 704(b): A[W]e now make explicit, the
24

better practice would be for the prosecutor not to ask such questions arguably
25

bearing on intent and for a district court not to find such answers admissible.@ Id.
17

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 17 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13

at 504. As the government=s proposed Agang membership@ testimony is indistinguishable from the erroneous testimony in Wang, this Court must not Afind such answers admissible.@ Id. Were the government to ask its experts whether Robert Johnston is a member of HAMC a group allegedly committing acts for the purpose of a criminal enterprise an affirmative answer necessarily means that he possessed the charged intent to commits those acts. See id.; Fed. R. Evid. 704(b). E. The Government=s Proposed AGang Expert@ Evidence Must Be Excluded in its Entirety as Unduly Prejudicial Although Mr. Johnston also disputes the relevancy and reliability of the government=s proposed expert testimony, this Court need not even reach these issues because the government=s gang expert evidence is properly excluded in its entirety under Federal Rule of Evidence 403. Because the government intends to

14 15 16 17 18

use AOMG evidence@ to prove that Robert Johnston knowingly and intentionally entered into a RICO conspiracy with the other named defendants, this Court must preclude the use AOMG expert@ testimony as unduly prejudicial. The Ninth Circuit has recently made clear that the admission of Aevidence

19

relating to gang involvement will almost always be prejudicial and will constitute
20

reversible error. Evidence of gang membership may not be introduced, as it was
21

here, to prove intent or culpability.@ Kennedy v. Lockyer, 379 F.3d 1041, 1055 (9th
22

Cir. 2004). Indeed, Atestimony regarding gang membership@ is particularly unfair
23

because it Acreates a risk that the jury will probably equate gang membership with
24

the charged crimes.@ Id.
25

In the instant case, the government=s Second Superceding Indictment

18

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 18 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

implicitly claims that the existence of the RICO conspiratorial agreement among the defendants charged, and others within HAMC, will be established by proof that each of the defendants was a member or affiliate of HAMC. The government, therefore, seeks to use HAMC membership or association evidence to prove the Aintent and culpability@ of the defendants in this case; a use expressly prohibited in this Circuit. See Kennedy, 370 F.3d at 1055. Because such use of Agang evidence@ is impermissibly prejudicial under Rule 403, this Court must exclude all testimony from the government=s proposed gang experts in this case. See id., 379 F.3d at 1056 (A[T]estimony regarding gang membership creates a risk that the jury will probably equate gang membership with the charged crimes.@) F. The Government=s Gang Expert Testimony is Unnecessarily Cumulative Despite the Defendant's expressed concern over the government=s intent calling multiple Agang experts,@ the government has designated its six so called OMG experts for testimony on overlapping subject areas. A review of the government=s Rule 16 disclosures reveals the following areas of testimonial overlap: $ $ $ Testimony regarding the evolution and historical background of OMGs and the HAMC. Testimony regarding OMGs and HAMC methods of operation and structure. Testimony regarding membership, association and affiliation with OMGs and HAMC; identify members, associates, and affiliates of HAMC. Testimony regarding problems between HAMC and other OMGs and between members of HAMC themselves and various charters of the HAMC. Testimony regarding gang insignia and gang apparel.

$

$

19

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 19 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Since the Aneedless presentation of cumulative evidence@ is proper grounds for exclusion under Federal Rule of Evidence 403, Mr. Johnston requests that this Court either limit the government to one gang expert, if one is so qualified. G. The Government=s Experts Should Not Be Permitted to Testify as Both Expert Witnesses and Fact Witness The government's proffer of experts on OMGs and the HAMC indicates its intention to call these agents as both expert witnesses and fact witnesses. Specifically, Slatella, Dobyns, Ciccone and Hoffman have apparently personally investigated HAMC members and associates in this investigation. It is this dual role that raises particular concerns of prejudice. As explained by the Second Circuit in United States v. Dukagjini: when the prosecution uses a case agent as an expert, there is an increased danger that the expert testimony will stray from applying reliable methodology and convey to the jury the witness=s Asweeping conclusions@ about [the defendants=] activities, deviating from the strictures of Rules 403 and 702. . . . As the testimony of the case agent moves from [applying expertise] to providing an overall conclusion of criminal conduct, the process tends to more closely resemble the grand jury practice, improper at trial, of a single agent simply summarizing an investigation by others that is not part of the record. Such summarizing also implicates Rule 403 as a Aneedless presentation of cumulative evidence@ and a Awaste of time.@ United States v. Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003) (internal citations omitted). Indeed, the Court in Dukagjini concluded that the district court erred by allowing the government=s expert to act Aas a summary prosecution witness.@ Id. at 55. Furthermore, the dual role of fact witness and expert witness may cause juror confusion, see id. (ASome jurors will find it difficult to discern whether the witness is relying properly on his general experience and reliable methodology or

20

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 20 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

improperly on what he has learned of the case.@), Ainhibit cross-examination, thereby impairing the trial=s truth-seeking function,@ id. at 53, or Acreate[] a risk of prejudice because the jury may infer that the agent=s opinion about the . . . defendant=s activity is based on knowledge of the defendant beyond the evidence at trial.@ Id. The concerns articulated in Dukagjini are present here. First, it appears that the government intends to use Slatella, Dobyns, Ciccone and Hoffman as summary prosecution witnesses by Asimply summarizing an investigation@ of not only HAMC members and associates, but also of individual defendants. See id. at 55. Moreover, since Slatella, Dobyns, Ciccone and Hoffman seek to offer testimony based on personal observation and interviews, the line between fact witness and expert witness may become impermissibly blurred. As these issues may become more fully developed after the court-ordered Daubert hearing, the defense requests an opportunity to more fully argue these issues post-hearing. The overlap between the fact and expert testimony also makes it clear that much of what the government attempts to do is to bolster what is essentially percipient witness testimony, and to give it the imprimatur of Aexpert@ opinion. Excluding the bases for the opinions that are just rank hearsay, much of what the witnesses will testify to involves their observations of the defendants over an extended period of time. They do not need to be qualified as experts to do this. III. CONCLUSION

For the foregoing reasons, defendant respectfully requests that the Court exclude or limit the proposed testimony of the government=s proffered Agang experts.@

21

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 21 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

RESPECTFULLY SUBMITTED this 12th day of December, 2005. /s/Brian F. Russo Brian F. Russo Attorney for Defendant Johnston

COPY of the foregoing sent electronically this 12 day of December, 2005, to:

Keith Vercauteran & Tim Duax Asst. U.S. Attorneys All Defense Counsel /s/

22

Case 2:03-cr-01167-DGC

Document 939

Filed 12/12/2005

Page 22 of 22