Free Response to Motion - District Court of Arizona - Arizona

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

PAUL K. CHARLTON United States Attorney District of Arizona TIMOTHY DUAX Assistant U.S. Attorney Arizona State Bar No. 012694 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-1167-PHX-DGC Plaintiff, v. Robert J. Johnston, Jr., Defendant. The United States of America hereby responds to the Motion to Exclude or Limit Gang UNITED STATES' RESPONSE TO DEFENDANT JOHNSTON'S MOTION TO EXCLUDE OR LIMIT GANG EXPERT TESTIMONY

15 Expert Testimony (the "Motion") filed by Defendant Robert J. Johnston, Jr. and respectfully 16 requests that the Motion be denied. 17 18 Factual Background The operative indictment charges Defendant with participation in RICO and a RICO

19 Conspiracy on the basis that he knowingly participated in the affairs of an unlawful enterprise, 20 the Hells Angels Motorcycle Club ("HAMC"), to further its unlawful goals. The purposes of 21 the HAMC are alleged to be: enrich of the associates and members of the HAMC, preserve the 22 power and territory of the HAMC, promote the HAMC, and keep victims and witnesses in fear 23 of the HAMC. It accomplished these goals through the use of violence, threats of violence, 24 intimidation, and distribution of controlled substances. 25 In the Motion, Defendant objects to the testimony of six (6) of the experts identified in 26 the Government's Notice of Expert Witnesses: ATF Agents Joseph Slatella, Jay Dobyns, John 27 Ciccone, and Christopher Bayless, San Diego Sherriff's Office Detective Billy Guinn, and 28

Case 2:03-cr-01167-DGC

Document 1054

Filed 01/13/2006

Page 1 of 10

1 Tempe Police Department Detective Christian Hoffman.1

Each of these experts will rely on

2 many years of experience studying and investigating Outlaw Motorcycle Gangs ("OMG's") to 3 testify about the historical background, organization, and rules of conduct of such gangs.2 They 4 will also apply their expertise to testify specifically about the HAMC, its structure, the rules of 5 conduct for members, past and current conflicts and problems within the HAMC, and past and 6 current problems and conflicts with rival OMG's, including the Mongols OMG. Agent Slatella 7 will also testify about the role of narcotics and firearms in the HAMC organization. This 8 testimony will be provided to assist the jury to understand the unique world of OMG's and the 9 HAMC. It will also help the jury to understand the conduct of HAMC members and place the 10 criminal conduct described in the indictment within the context of the overall enterprise of the 11 HAMC. 12 Under the governing standards, this testimony is clearly admissible. All of the

13 Government's expert witnesses are qualified to testify as experts, will testify on a subject 14 appropriate for expert testimony, will offer their testimony for the purpose of aiding the jury, and 15 will base their testimony on proper information and facts. Consequently, Defendant's Motion 16 should be denied in its entirety. 17 18 Legal Standard The admission of expert testimony is governed by Federal Rules of Evidence 702, 703,

19 704, and 403. An expert witness may testify where such "specialized knowledge will assist the 20 trier of fact to understand the issue." Fed. R. Evid. 702. The witness must be qualified by 21 "knowledge, skill, experience, training or education," and may testify in the form of an opinion 22 or otherwise "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the 23 product of reliable principles and methods, and (3) the witness has applied the principles and 24 methods reliably to the facts of the case." Id. Generally, in formulating an opinion, an expert 25 Because Defendant's Motion does not object to the testimony by the other experts identified in the Government's Notice of Expert Witnesses, this Motion only applies to the 27 testimony by the six (6) experts addressed in the Motion. 26 28 For the convenience of the Court, this Motion presents only a brief summary of the experts' proposed testimony as set forth in the United States' Notice of Expert Witnesses. 2
Case 2:03-cr-01167-DGC Document 1054 Filed 01/13/2006 Page 2 of 10
2 1

1 may rely on inadmissible evidence if it is "of a type reasonably relied upon by experts in the 2 particular field in forming opinions or inferences upon the subject." Fed. R. Evid. 703. The 3 Court's discretion to admit such testimony is broad. Kumho Tire Co., Ltd. v. Carmichael, 526 4 U.S. 137, 141-42 (1999). 5 I. 6 The Subject Matter is Appropriate For Expert Testimony. The Government's proposed experts will testify about a subject beyond the common

7 knowledge of the average layperson. The Ninth Circuit has found that gang testimony is an 8 appropriate subject for expert testimony and have permitted experts to explain the structure and 9 function of gangs. See United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000) (permitting police 10 officer to testify as expert regarding gang membership and possible consequences of testifying 11 against fellow gang member); United States v. Takahashi, 205 F.3d 1161 (9th Cir. 2000) 12 (permitting expert to testify regarding Yakuza gang's oath of total loyalty); United States v. 13 Padilla, 387 F.2d 1087 (9th Cir. 2004) (permitting detective's expert testimony regarding gang 14 punishment of junior members who fail to support senior members). The Eastern District of 15 California has permitted expert testimony about the importance of committing certain violent 16 crimes in order to increase one's stature within a gang. See Vasquez v. McGrath, ___ F. Supp. 17 2d ___, 2005 WL 2001020, at *13-14 (E.D. Cal. Aug. 19, 2005) (permitting gang expert to 18 testify regarding the relationship between killing a gang dropout and acceptance into and respect 19 from the gang). At least one circuit court has permitted testimony specifically about HAMC and 20 its operations. See, e.g., United States v. Bredell, 884 F.2d 1081 (8th Cir. 1989). 21 Moreover, the Ninth Circuit has unequivocally held that "[e]vidence of gang affiliation

22 is admissible when it is relevant to a material issue in the case." Takahashi, 205 F.3d at 1164 23 (admitting gang testimony to show bias and motive to take the blame for fellow gang member); 24 Hankey, 203 F.3d at 1171-73 (admitting gang testimony to show bias and coercion). 25 II. 26 The Experts Are Qualified. As thoroughly trained and highly experienced law enforcement officers, the

27 Government's proposed experts in this case are uniquely suited to provide expert testimony 28 about OMG's in general and the HAMC in particular. Contrary to Defendant's contention, 3
Case 2:03-cr-01167-DGC Document 1054 Filed 01/13/2006 Page 3 of 10

1 nothing in Rule 702 precludes qualification of an expert simply for having relevant experience. 2 Indeed, "Ninth Circuit precedent makes clear that, as a general proposition, `[l]aw enforcement 3 officers with sufficient qualifications may testify concerning the methods and techniques 4 employed in an area of criminal activity.'" United States v. Plunk, 153 F.3d 1011, 1017 (9th Cir. 5 1998) (permitting expert testimony about narcotics trafficking and codes and jargon used by 6 traffickers) (quoting United States v. Espinosa, 827 F.2d 604, 612 (9th Cir. 1987)); see also Fed. 7 R. Evid. 702, Advisory Committee Notes (expert testimony by law enforcement agents about 8 the use of code words in drug transactions is appropriate and the "method used by the agent is 9 the application of extensive experience"). 10 For example, in Hankey, a police officer and member of the FBI anti-gang task force was

11 found qualified to testify regarding gangs because he had spent years working with, studying, 12 and investigating gangs in the Los Angeles area, had known the defendants for years and had 13 arrested them in the past for gang-related activities. 203 F.3d at 1168-69 ("Certainly the officer 14 relied on `street intelligence' for his opinions about gang membership and tenets. How else can 15 one obtain this encyclopedic knowledge of identifiable gangs?"); see also Plunk, 153 F.3d at 16 1017 ("Although Plunk's attorney sought to make much on voir dire of the fact that [the expert] 17 had no formal training in the use of drug-culture code, we are not persuaded. Hard-core drug 18 trafficking scarcely lends itself to ivied halls. In a rough-and-ready field such as this, experience 19 is likely the best teacher.") (internal quotation omitted). Similarly here, the agents will testify 20 about OMG's and the HAMC relying upon their extensive experience with HAMC and other 21 OMG's as well as years of training and study of OMG's and the HAMC as a basis for their 22 opinions and testimony. This is not only a reasonable and appropriate foundation for expert 23 testimony, but experience is also the well-recognized manner in which one becomes an expert 24 on the subject of gangs. 25 Defendant erroneously suggests that the Government's experts should be excluded

26 because none of them has testified as an expert before. [Motion at 2 & 10-11] But neither the 27 Rules of Evidence nor governing case law nor logic itself require that an expert have previous 28 4
Case 2:03-cr-01167-DGC Document 1054 Filed 01/13/2006 Page 4 of 10

1 expert witness experience.

If previous testimony as an expert were a prerequisite to

2 admissibility, no expert could ever testify for the first time. 3 Defendant also improperly suggests that the Government's gang experts should be

4 excluded because they have not shown the methodology they propose to use in formulating their 5 testimony. [Motion at 10] This argument fails because the reliability of non-technical experts 6 like the gang experts proferred here, "depends heavily on the knowledge and experience of the 7 expert, rather than the methodology or theory behind it." Hankey, 203 F.3d at 1169 (citing 8 Kumho Tire, 526 U.S. at 149-50); see also United States v. Mendoza-Paz, 286 F.3d 1112-13 (9th 9 2002) (customs agent qualified to testify about value of narcotics based on qualifications of 10 eleven years of investigating and studying narcotics trafficking). Here, the experts have many 11 years of education, rigorous training and on-the-job experience and should be permitted to 12 provide their testimony on the basis of this background. 13 III. 14 Experts are Permitted to Base Their Testimony on Hearsay Statements. Defendant's objection to the proposed expert testimony on the basis of Crawford v.

15 Washington is misplaced. The holding of Crawford was that testimonial, out-of-court statements 16 offered against the accused to establish the truth of the matter asserted may only be admitted 17 where the declarant is unavailable and where the defendant has had a prior opportunity to cross18 examine the declarant. 541 U.S. 36, 68 (2004). Expert witnesses are not precluded from

19 formulating their opinions on the basis of testimonial hearsay. See United States v. Cromer, 389 20 F.3d 662, 676 (6th Cir. 2005) (finding that testimony that relied upon CI testimony, but did not 21 actually introduced any statements made by CI did not violate Confrontation Clause; collecting 22 cases holding similarly). Rather, expert witnesses are simply precluded from improperly 23 offering testimonial hearsay for the truth of the matter asserted unless the defendant has the 24 ability to cross-examine the declarant. Cf. id., 389 F.3d at 676; United States v. Martin, 897 F.2d 25 1368, 1371-72 (6th Cir. 1990) (finding Confrontation Clause not implicated where out-of-court 26 assertions were offered as background, and not for the truth of the matter asserted). 27 Moreover, co-conspirator statements are outside the scope of Crawford. United States

28 v. Allen, 425 F.3d 1231, 1235 (9th Cir. 2005) ("[C]o-conspirator statements are not testimonial 5
Case 2:03-cr-01167-DGC Document 1054 Filed 01/13/2006 Page 5 of 10

1 and therefore beyond the compass of Crawford's holding."). And statements made unwittingly 2 to undercover law enforcement officers or confidential informants are not testimonial and are 3 therefore also outside the scope of Crawford. See, e.g., United States v. Honken, 378 F. Supp. 4 2d 928, 956-57 (N.D. Iowa 2004) (finding that statements made to confidential informant were 5 not "testimonial" within the meaning of Crawford); United States v. Saget, 377 F.3d 223, 229 6 (2d Cir. 2004) ("Thus, we conclude that a declarant's statements to a confidential informant, 7 whose true status is unknown to the declarant, do not constitute testimony within the meaning 8 of Crawford.").3 9 IV. 10 11 The Government's expert testimony is not offered to provide mens rea, but to assist the Fed. R. Evid. 704(b) Does Not Preclude the Government's Expert from Opining Regarding HAMC Membership.

12 trier of fact to understand the purpose, function, and operation of the HAMC and the relationship 13 of the co-defendants' conduct to furthering the purposes of the HAMC. In United States v. 14 Morales, 108 F.3d 1031, 1033 (9th Cir. 1997), the Ninth Circuit held that "Rule 704(b) does not 15 preclude an expert from testifying to a predicate matter, even if the jury might infer the 16 necessary mens rea from such testimony, so long as the testimony as to the predicate matter does 17 not necessarily imply the mens rea element." In that case, the Ninth Circuit held that the trial 18 court should have allowed the defendant's expert to testify regarding the defendant's grasp of 19 accounting principles because the jury would still "have had to draw its own inference from that 20 predicate testimony to answer the ultimate factual question - whether [defendant] willfully made 21 false [bookkeeping] entries." Id. at 1037. 22 In the case at bar, any testimony as to whether Defendant was a member of the HAMC

23 is a factual matter that, without more, does not directly implicate Defendant's guilt or innocence. 24 Nor does it opine on Defendant's mental state with regard to the numerous charges against him. 25 Similarly, any testimony about the behavior of typical HAMC members does not compel the 26 The United States has thoroughly analyzed Crawford and its application to proposed testimony in this case in its Response to Defendant Toth's Motion to Preclude Testimonial 28 Hearsay Statements Under Crawford v. Washington, 541 U.S. 36 (2004) and its Response to Defendant Jaime's Motion in Limine, which are being filed contemporaneously herewith. 27 6
Case 2:03-cr-01167-DGC Document 1054 Filed 01/13/2006 Page 6 of 10
3

1 jury to draw any particular inferences about Defendant's mens rea. See, e.g., United States v. 2 Gomez-Norena, 908 F.2d 497, 502 (9th Cir. 1990) (permitting an expert to opine that possession 3 of a certain quantity of drugs was consistent with an intent to distribute; because the expert did 4 not opine as to the defendant's actual thoughts, the testimony was within the parameters of Rule 5 704(b)); United States v. Murillo, 255 F.3d 1169 (9th Cir. 2001) (permitting expert testimony 6 regarding drug courier profile and modus operandi of drug traffickers to help jury understand 7 defendant's behavior and explain that drug dealers do not entrust large quantities of drugs to 8 unknowing couriers). 9 The case relied upon by Defendant, United States v. Wang, 49 F.3d 502 (9th Cir. 1995),

10 is readily distinguishable. In that case, the prosecutor specifically asked the expert witness 11 whether the defendants "were part of a group of smugglers smuggling Chinese aliens into the 12 Country." Id. at 504. In response, the expert opined that defendants "were involved in an 13 organization to smuggle aliens into the United States." Id. The Ninth Circuit held that the form 14 of this testimony was improper. But the testimony was improper because it asked the expert to 15 opine as to defendants' guilt or innocence. Id. Here, testimony explaining typical HAMC 16 purposes and the typical conduct of HAMC members puts the conduct of the co-defendants in 17 context. But it does not provide an opinion on Defendant's guilt or innocence and therefore is 18 admissible. 19 V. 20 Testimony About The Function and Operation of an OMG is not Overly Prejudicial. There is no per se rule against admission of expert testimony about a defendant's

21 affiliation with an OMG or other type of gang. While the case relied upon by Defendant, 22 Kennedy v. Lockyer, 379 F.3d 1041 (9th Cir. 2004), did note that testimony that a defendant is 23 a member of a gang will frequently be overly prejudicial, it did not set forth a categorical rule 24 precluding such testimony. In fact, the issue was not even before the court. The issue decided 25 in Kennedy was whether the denial to defendant of a full transcript of his first trial (which 26 resulted in a hung jury) unduly prejudiced him in the second trial by compromising his ability 27 to prepare for trial. 28 7
Case 2:03-cr-01167-DGC Document 1054 Filed 01/13/2006 Page 7 of 10

1

In Kennedy, the defendant was charged with selling what he thought was crack cocaine.

2 After a first trial resulting in a hung jury, the prosecution's expert testified that a term defendant 3 used was frequently used by Crip gang members. Id. at 1044. Unbeknownst to counsel at the 4 second trial, the expert's testimony had been excluded at the first trial. The Ninth Circuit 5 explained that testimony regarding gang membership "`creates a risk that the jury will [probably] 6 equate gang membership with the charged crimes.'" Id. at 1055 (quoting United States v. 7 Hankey, 203 F.3d at 1170). But in Kennedy, the fact that the defendant may have been in a gang 8 was irrelevant to whether he knowingly sold what he thought was an illegal narcotic. The Ninth 9 Circuit concluded that "the jurors in Kennedy's case most likely drew impermissible inferences 10 from Detective McDowell's testimony, equating Kennedy's purported gang membership with 11 the charged crime." Id. at 1056. 12 It is undisputed that "guilt by association" testimony is not permissible. By contrast, in

13 the case at bar, Defendant's membership in the HAMC, the alleged "enterprise," is both relevant 14 and critical to the prosecution's case. Far from merely suggesting "guilt by association," 15 membership in the HAMC is a necessary predicate element to establish that Defendant is guilty 16 of the crimes charged. But it is not the only element of the crime and therefore, a finding of 17 membership does not standing alone establish guilt. Moreover, testimony about the purpose and 18 function of the HAMC is relevant and probative as to the formation and purpose of the 19 conspiracy. See, e.g., United States v. Meekes, 978 F.2d 1554, 1563 (10th Cir. 1992) (permitting 20 gang testimony to show that primary purpose of Crips gang is distribution of cocaine, which was 21 probative as to the existence of the conspiracy to distribute cocaine and permitting expert gang 22 testimony to help jury understand the evidence) (cited with approval in Hankey); United States 23 v. Sloan, 65 F.3d 149, 151 (10th Cir. 1995) (gang activity evidence was properly used to "prove 24 the existence of a conspiracy and to show the basis of the relationship between the defendant and 25 witnesses who participated in the drug distribution operation") (cited with approval in Hankey). 26 In this case, gang testimony and gang testimony specific to the HAMC will not only be helpful 27 to the jury, but will not be unduly prejudicial and therefore should be admitted. See also 28 Hankey, 203 F.3d at 1172-73 (rejecting defendant's argument that gang testimony was unduly 8
Case 2:03-cr-01167-DGC Document 1054 Filed 01/13/2006 Page 8 of 10

1 prejudicial).4 2 VI. 3 The Expert Testimony is Not Cumulative. In compliance with Fed. R. Crim. P. 16(a)(1)(G), the Government has provided summary

4 of each of its expert witnesses' proposed testimony. This Court retains the right to rule on 5 objections based on the cumulative nature of evidence as it is presented at trial. But it is 6 premature to do so in advance of trial solely on the basis of what is necessarily a brief summary 7 of the proposed witnesses' testimony. 8 VII. 9 Agents Can Testify As Both Experts and Lay Witnesses. There is no per se rule prohibiting the use of a case agent or investigating agent as both

10 an expert and lay witness. Even the case relied upon by Defendant, Dukagjini v. United States, 11 326 F.3d 45, 56 (2d Cir. 2003), made clear that it was declining to "prohibit categorically the use 12 of case agents as experts." Rather, it simply warned trial courts to vigilantly fulfill the 13 gatekeeping function prescribed by Kumho Tire and Daubert by ensuring that the experts are 14 properly qualified as experts and prepared to provide reliable testimony. Id. Because the United 15 States' proposed experts satisfy both prerequisites, they should be allowed to testify as proposed 16 in the United States' Notice of Expert Witnesses. 17 18 Conclusion For the foregoing reasons, the Government respectfully requests that this Court deny

19 Defendant Johnston's Motion to Exclude or Limit Gang Expert Testimony. 20 21 22 23 24 25 26 27 To the extent the Court has any lingering concerns about potential prejudice, a limiting instruction to the jury, not preclusion of the testimony, is the proper safeguard. See, e.g., United 28 States v. Hankey, 203 F.3d 1160, 1164, 1172-73 (9th Cir. 2000). 9
Case 2:03-cr-01167-DGC Document 1054 Filed 01/13/2006 Page 9 of 10
4

Respectfully submitted this 13th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Duax TIMOTHY DUAX Assistant U.S. Attorney

1 I hereby certify that on January 13, 2006, I electronically transmitted the attached document to 2 the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic 3 Filing to the following CM/ECF registrants: 4 5 Joseph E. Abodeely, [email protected], [email protected] 6 David Zeltner Chesnoff, [email protected] 7 Carmen Lynne Fischer, [email protected], [email protected] 8 Patricia Ann Gitre, [email protected], [email protected] 9 Alan Richard Hock, [email protected] 10 Thomas M. Hoidal, [email protected], [email protected] 11 Barbara Lynn Hull, [email protected] 12 David M. Ochoa, [email protected] 13 Jose S. Padilla, [email protected], [email protected] 14 Mark A. Paige, mpaige@[email protected] 15 James Sun Park, [email protected], [email protected], [email protected] 16 C. Kenneth Ray, II, [email protected] 17 Brian Fredrick Russo, [email protected], [email protected] 18 Michael Shay Ryan, [email protected], [email protected] 19 Philip A. Seplow, [email protected], [email protected] 20 Robert Storrs, [email protected], [email protected] 21 Loyd C. Tate, [email protected] 22 23 24 s/ Timothy Duax 25 Timothy Duax 26 27 28

Case 2:03-cr-01167-DGC

Document 1054

Filed 01/13/2006

Page 10 of 10