Because our appellate courts often find the Fourth Circuit’s opinions to be persuasive authority, I read all the Fourth Circuit’s published criminal cases. Yesterday, the court decided United States v. Johnson, a drug case involving two noteworthy issues.
The short version of the facts is as follows: Officers wiretapped a suspected drug dealer’s phone. The suspect had several conversations with the defendant. The conversations consisted of slang that the officers interpreted as evidence of a drug conspiracy. The defendant was arrested and charged accordingly, and the case proceeded to trial. The government’s evidence consisted largely of (1) the recorded conversations, plus testimony from an officer about the meaning of the slang used in the recordings, and (2) evidence about the defendant’s prior drug activity, admitted under Fed. R. Evid. 404(b). The defendant was convicted and appealed, but the Fourth Circuit reversed.
First, it found that the trial court erred in admitting the officer’s testimony. It reasoned that (a) the officer was not offered as an expert, so his testimony was admissible, if at all, as lay opinion under Fed. R. Evid. 701; (b) Rule 701 allows lay opinion only if it is based on a witness’s personal knowledge and observations; and (c) the officer testified that he knew the meaning of the slang based on his training and experience, not his personal observations. Thus, his testimony was “expert testimony dressed in lay witness clothing,” and was inadmissible.
Despite that characterization, the court stated that the testimony would not have been admissible as expert testimony under Rule 702, either. Although several prior Fourth Circuit cases — cited in the opinion — allow officers to testify as experts regarding the drug trade and the language used therein, they may do so only when they can show that “reliable principles and methods” support their testimony. In this case, the officer did not testify in any detail about his principles and methods, and indeed, the government admitted that the phrases he interpreted were not “typical drug code” and did not have a fixed meaning in the drug world. (For example, the officer testified that “I’m going to hit you and let you know what’s happening” meant “when [I am] able to obtain cocaine, [I]’ll let [you] know so [you] can purchase it.”)
I don’t know of a North Carolina case that analyzes this issue in as much detail. I found several cases in which an officer testified in passing about the meaning of a term, but these cases do not focus on the propriety of such testimony. See, e.g., State v. Mackey, 352 N.C. 650 (2000) (officer explains that to be “looking” is “terminology indicating a desire to purchase drugs”). The most relevant case may be State v. Hargrave, __ N.C. App. __, 680 S.E.2d 254 (2009), in which the court of appeals held that officers properly gave lay opinion testimony that “the cocaine [found near the defendant] was packaged as if for sale and that the total amount of money and the number of twenty-dollar bills found on defendant were indicative of drug sales.” The court concluded that the testimony was based on the officers’ “personal experience” and “personal knowledge of drug practices.” I suspect that our appellate courts would view most testimony about drug-related slang, when offered by an experienced officer, as similarly grounded in the officer’s knowledge of the drug trade.
Of course, the line between an officer’s personal experience and her “training and experience” — which the Johnson court found to be an improper basis for lay opinion testimony — is not a sharp one. My sense is that the key to Johnson was not so much the specific theory of admissibility as it was the government’s concession that the terms at issue there were not typical drug code, and lacked any fixed meaning in the drug business. That concession calls into question the relevance of both the officer’s “training” and his “experience.” In effect, the officer was trying to translate a language that the government admitted he did not speak.
The second issue in the case was the Rule 404(b) issue. One of the government’s witnesses was an inmate who claimed that he had purchased drugs from the defendant nearly ten years earlier. The court ruled that this evidence should not have been admitted to show the defendant’s intent and knowledge. It found the prior conduct insufficiently relevant given the lack of connection in “time, pattern, or state of mind” between the earlier transactions and the charged offenses. This Rule 404(b) analysis is routine, and is similar to how North Carolina courts would address the same issue. Yet the case is noteworthy because the court found admission of the evidence to be reversible error even though the the trial judge had given a limiting instruction about the purpose for which the jury was permitted to consider the evidence. The Fourth Circuit has often placed considerable faith in limiting instructions, see, e.g., United States v. Johnson, 587 F.3d 625 (4th Cir. 2009) (expressing the court’s “presum[ption] that juries follow such instructions”), making this aspect of the opinion somewhat surprising.