                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-9-2001

United States v. Watson
Precedential or Non-Precedential:

Docket 00-2826




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"United States v. Watson" (2001). 2001 Decisions. Paper 177.
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Filed August 9, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 00-2826

UNITED STATES OF AMERICA

v.

BRUCE WATSON
aka George Flamer

       Bruce Watson,
       Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 98-cr-00147-1)
District Judge: Honorable Thomas I. Vanaskie,
Chief Judge

Argued: March 14, 2001

Before: RENDELL, AMBRO and BRIGHT,*
Circuit Judges

(Filed: August 9, 2001)

       Michael C. Kostelaba [ARGUED]
       630 North Main Street
       Wilkes-Barre, PA 18705
        Counsel for Appellant
       Bruce Watson



_________________________________________________________________
* Honorable Myron H. Bright, United States Circuit Judge for the Eighth
Circuit Court of Appeals, sitting by designation.
       George J. Rocktashel [ARGUED]
       Office of United States Attorney
       240 West Third Street, Suite 316
       Williamsport, PA 17701
        Counsel for Appellee
       United States of America

OPINION OF THE COURT

BRIGHT, Circuit Judge.

Bruce Watson ("Watson") appeals his judgment of
conviction and sentence for distribution and possession
with intent to distribute cocaine base (also known as crack
cocaine or crack) in violation of 21 U.S.C. S 841(a)(1). He
was convicted and sentenced to 210 months imprisonment,
three years of supervised release, and a $100 special
assessment. Watson argues that the District Court should
not have permitted narcotics agents to testify about general
drug culture practices on substantive and foundational
grounds in violation of Fed. R. Evid. 702, and that the
District Court erred in allowing expert testimony concerning
his mental state under Fed. R. Evid. 704(b). We reject
Watson's first argument. However, we reverse the judgment
of conviction and remand the case to the District Court
because the Government's experts improperly testified that
Watson's mental state was to distribute the cocaine base
rather than to use the narcotics personally.

I. BACKGROUND

In 1998, Pennsylvania law enforcement officers received
information that Watson was traveling on a Susquehanna
Trailways bus to Williamsport, Pennsylvania to purchase
drugs. Law enforcement officers Ronald Paret and Kirk F.
Schwartz met the bus in Lehighton, boarded the bus,
publicly announced that they were law enforcement officers
conducting a drug investigation, and that passenger
cooperation would be appreciated but was not required.

Watson was sitting by himself. The officers asked him
some routine questions, Watson denied having a ticket, and
he denied having identification. Watson picked up a bag

                                2
lying on the seat next to him, began removing items from
the bag, and a marijuana cigarette fell out. Watson
admitted possession, a brief scuffle ensued, and Watson
resisted arrest. After the officers restrained Watson they
noticed a crumpled piece of paper on the floor next to him.
The crumpled paper, which was from the Lycoming County
Public Assistance Office in Williamsport, had Watson's
name on it, and it contained crack.

The officers transported Watson to the Pennsylvania
State Police barracks in Lehighton. During processing
investigators recovered four packages of marijuana and
approximately 100 small plastic bags. Watson explained
that he took his bus trip to attend a funeral and that the
plastic bags were for a friend. Laboratory tests revealed a
total of 2.4 grams of crack cocaine and 7.42 grams of
marijuana.

During the trial, Officer Schwartz provided testimony
concerning the 100 plastic bags found on Watson:

        [MR. ROCKTASHEL:] Now, based on your experience
       and training of purchasing drugs and working as a
       Narcotics Investigator, have you formed an opinion, as
       to whether or not the substance contained in
       Government Exhibit 1 was possess [sic] with the intent
       to distribute, transfer or deliver or the intent to
       personally use that drug?

         MR. CASEY: Objection. This witness is not
       competent to testify as to the mental state of the
       Defendant. That's the jury's prerogative, and Federal
       Rule [of Evidence] 704(b) specifically precludes it.

         THE COURT: Overruled.

         MR. ROCKTASHEL: You may answer the question,
       sir.

         [MR. SCHWARTZ]: I believe it was possess [sic]
       with the intent to distribute to somebody else.

(App. at 58.)

Later, Officer Gordon Mincer testified that the crack
found on Watson was consistent with someone selling
cocaine rather than using it for personal consumption.

                                 3
Mincer also testified about the 100 plastic bags found on
Watson. Before Mincer provided his testimony, the District
Court overruled Watson's objection under Fed. R. Evid.
704(b). Mincer provided the following testimony:

        [MR. ROCKTASHEL:] Now, you've had a chance to
       look at Government Exhibit 1 and Government Exhibit
       7. And I'd ask, having reviewed those, have you formed
       an opinion, as to whether or not the substance
       contained in Government Exhibit 1 was possessed with
       the intent to distribute, transfer or deliver versus the
       intent to personally consume that substance?

        . . . .

        [MR. MINCER:] Yes, sir. Based on my experience,
       through my undercover investigations, I've seen, on
       numerous occasions, subjects that have amounts of
       crack cocaine like this, as well as these packaging
       bags, which they were cutting off and packaging in
       these bags for resale, which I've also purchased.

        And that would be consistent with someone who is
       selling cocaine versus someone who would be using it
       for their personal use.

(App. at 89-90.)

The Government also called Agent Paret as a rebuttal
witness to testify concerning the nature of Watson's bus
travel itinerary. Agent Paret provided the following
testimony:

        [MR. ROCKTASHEL:] With respect to the particular
       trip taken here, by Bruce Watson, have you formed an
       opinion as to whether or not that particular trip was
       taken for the purpose of distribution, transfer and
       delivery of drugs, as opposed to procurement of drugs
       for personal use?

         MR. CASEY: Objection. Again, that calls for a
       reading of the mind of the Defendant, as to the
       purpose of the trip. Again, the Court has instructed
       that could be consistent with experiences in the past,
       but the question, as posed, it goes beyond the
       competence of the witness.

                                4
         MR. ROCKTASHEL: Your Honor, we're not
       proposing that he render an opinion, as to the
       Defendant's intent, but we're asking him to testify, with
       regard to particular circumstances and facts of the
       trip, the destination point, etc.

         THE COURT: I'll overrule the objection. The
       testimony will be allowed for that limited purpose.

         [MR. PARET:] Generally, a trip of a short nature
       like that, a 10-plus hour trip to Philadelphia, spending
       four hours there, on my experience, has been that
       they've gone into the city to purchase drugs to,
       ultimately, take back and resell at their starting point.

(App. at 160-61.)

II. DISCUSSION

The District Court had jurisdiction under 18 U.S.C.
S 3231. We have jurisdiction under 28 U.S.C.S 1291.
Watson's notice of appeal was timely filed.

We review the District Court's ruling on the admissibility
of expert testimony for abuse of discretion. United States v.
Bennett, 161 F.3d 171, 182 (3d Cir. 1998), cert. denied, 528
U.S. 819 (1999).

A.

Watson argues that the Government's experts' testimony
was inadmissible because knowledge of the operations of
narcotics dealers is not a proper field of expertise. Because
Watson did not raise a contemporaneous Rule 702
objection to the expert testimony we review the admission
of expert testimony for plain error, looking for errors that
are "obvious, or . . . otherwise seriously affect the fairness,
integrity[,] or public reputation of judicial proceedings."
Government of the Virgin Islands v. Parrilla, 7 F.3d 1097,
1100 (3d Cir. 1993) (internal quotations omitted) (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)).

Under Rule 702, a witness may offer an expert opinion if
he or she is "qualified as an expert by knowledge, skill,
experience, training, or education." Fed. R. Evid. 702; see
also In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-46

                               5
(3d Cir. 1994). We have interpreted Rule 702's
qualifications requirement liberally. Paoli, 35 F.3d at 741.
"[W]here such testimony's factual basis, data, principles,
methods, or their application are called sufficiently into
question . . . the trial judge must determine whether the
testimony has a reliable basis in the knowledge and
experience of [the relevant] discipline." Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 149 (1999) (internal citation
omitted).

Although Rule 702 does not mention any qualifying
specific fields of expertise, the advisory committee notes
indicate that a wide variety of expert testimony is
contemplated by the Rule:

        The rule is broadly phrased. The fields of knowledge
       which may be drawn upon are not limited merely to the
       "scientific" and "technical" but extend to all
       "specialized" knowledge. Similarly, the expert is viewed,
       not in a narrow sense, but as a person qualified by
       "knowledge, skill, experience, training or education."
       Thus within the scope of the rule are not only experts
       in the strictest sense of the word, e.g., physicians,
       physicists, and architects, but also the large group
       sometimes called "skilled" witnesses, such as bankers
       or landowners testifying to land values.

Fed. R. Evid. 702, Advisory Committee's Notes to 1972
Proposed Rule 702.

The courts that have considered this issue have
recognized the operations of narcotics dealers as a proper
field of expertise. It is well-established that government
agents may testify to the meaning of coded drug language
under Fed. R. Evid. 702. United States v. Gibbs , 190 F.3d
188 (3d Cir. 1999); see also United States v.
Theodoropoulos, 866 F.2d 587, 590-91 (3d Cir. 1989),
overruled on other grounds, United States v. Price, 76 F.3d
526 (3d Cir. 1996); United States v. Plunk, 153 F.3d 1011,
1017 (9th Cir. 1998) (noting that the jargon of the narcotics
trade and drug dealers' code language are proper subjects
of expert opinion), cert. denied, 526 U.S. 1060 (1999);
United States v. Delpit, 94 F.3d 1134, 1145 (8th Cir. 1996)
(same); United States v. Boissoneault, 926 F.2d 230, 232

                                6
(2d Cir. 1991) (same). In addition, "experienced narcotics
agent[s] may testify about the significance of certain
conduct or methods of operation to the drug distribution
business, as such testimony is often helpful in assisting the
trier of fact understand the evidence." United States v.
Griffith, 118 F.3d 318, 321 (5th Cir. 1997) (quoting United
States v. Washington, 44 F.3d 1271, 1283 (5th Cir. 1995),
cert. denied, 514 U.S. 1132 (1995)). Thus, the operations of
narcotics dealers have repeatedly been found to be a
suitable topic for expert testimony because they are not
within the common knowledge of the average juror.
Theodoropoulos, 866 F.2d at 590-92. Therefore, we reject
Watson's argument; knowledge of the operations of
narcotics dealers is a proper field of expertise.

Moreover, the District Court did not err in allowing expert
testimony from Schwartz, Mincer, and Paret. Agents
Schwartz, Mincer, and Paret were well-qualified to testify
concerning drug activity and the Government presented
sufficient evidence to establish the reliability of their
purported fields of expertise. Agent Schwartz testified that
he made several hundred arrests for controlled substances
offenses, he was familiar with drug packaging and
distribution, he inspected drugs, drug paraphernalia, and
he had participated in approximately 200 bus interdictions.
Agent Mincer testified to his experience in executing search
warrants for drugs, his undercover drug purchases, and his
making more than 200 arrests for crack. Agent Paret
testified about his experience as a United States Customs
Inspector and as a drug investigator working for eight years
on drug interdiction involving public transportation. The
Government's experts each possessed specialized knowledge
concerning drugs and drug interdiction and their testimony
was helpful to the jury in understanding the evidence.
Therefore, the District Court did not commit plain error
when it admitted Agents Schwartz's, Mincer's, and Paret's
testimony relating to the general operations of narcotics
dealers.

B.

Next, Watson argues that the District Court erred in
allowing expert testimony concerning Watson's mental
state, i.e., that Watson intended to distribute the narcotics.

                               7
Under Fed. R. Evid. 704(b), 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 matters
for the trier of fact alone." Fed. R. Evid. 704(b). Rule 704(b)
applies to all instances in which expert testimony is offered
as to mental state or a condition constituting an element of
the crime charged or defense thereto. Gibbs, 190 F.3d at
211 (applying Rule 704(b) to expert testimony by
undercover narcotics officer in drug conspiracy prosecution).1

Expert testimony concerning the modus operandi of
individuals involved in drug trafficking does not violate Rule
704(b). For example, a Government expert may testify
about the meaning of narcotics code words.
Theodoropoulos, 866 F.2d at 590-92; see also Boissoneault,
926 F.2d at 232-33 (same); United States v. Boyd , 55 F.3d
667, 671 (D.C. Cir. 1995) (holding that expert testimony
concerning the modus operandi of individuals involved in
drug trafficking does not violate Rule 704(b)). A Government
expert may also testify about the quantity, purity, usual
dosage units, and street value of narcotics. United States v.
Safari, 849 F.2d 891, 895 (4th Cir.), cert. denied, 488 U.S.
_________________________________________________________________

1. See also S. Rep. No. 225, 98th Cong., 1st Sess. 230 (1983), reprinted
in 1984 U.S.C.C.A.N. 3182, 3412-3413 ("[T]he rationale for precluding
ultimate opinion psychiatric testimony extends beyond the insanity
defense to any ultimate mental state of the defendant that is relevant to
the legal conclusion sought to be proven. The Committee has fashioned
its Rule 704 provision to reach all such `ultimate' issues, e.g.,
premeditation in a homicide case, or lack of predisposition in
entrapment."); United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995)
(holding Rule 704(b) applies to all instances in which expert testimony is
offered as to mental state or condition constituting an element of the
crime charged or defense thereto); United States. v. Orr, 68 F.3d 1247,
1252 (10th Cir. 1995), cert. denied, 516 U.S. 1064 (1996) (determining
that "the rule prohibits an expert witness from testifying that a
defendant did or did not possess the requisite mental intent at the time
of the crime"); United States v. DiDomenico , 985 F.2d 1159, 1165 (2d Cir.
1993) (determining that in prosecution for interstate transportation of
stolen goods, the trial court did not err in excluding under Rule 704(b)
expert testimony as to whether defendant knew goods were stolen).

                               8
945 (1988). And, an expert may testify about the various
counter-surveillance techniques used by drug dealers to
avoid detection by the police. United States v. de Soto, 885
F.2d 354, 360 (7th Cir. 1989).

There is, however, "a [fine] line that expert witnesses may
not cross." United States v. Mitchell, 996 F.2d 419, 422
(D.C. Cir. 1993). It is well established that experts may
describe, in general and factual terms, the common
practices of drug dealers. See Boyd, 55 F.3d at 671 (citing
cases). Expert testimony is admissible if it merely
"support[s] an inference or conclusion that the defendant
did or did not have the requisite mens rea, so long as the
expert does not draw the ultimate inference or conclusion
for the jury and the ultimate inference or conclusion does
not necessarily follow from the testimony." United States v.
Bennett, 161 F.3d 171, 183 (3d Cir. 1998) (quoting United
States v. Morales, 108 F.3d 1031, 1038 (9th Cir. 1997)). "It
is only as to the last step in the inferential process--a
conclusion as to the defendant's mental state--that Rule
704(b) commands the expert to be silent." United States v.
Dunn, 846 F.2d 761, 762 (D.C. Cir. 1988).

Rule 704(b) may be violated when the prosecutor's
question is plainly designed to elicit the expert's testimony
about the mental state of the defendant, Boyd , 55 F.3d at
672, or when the expert triggers the application of Rule
704(b) by directly referring to the defendant's intent, mental
state, or mens rea, United States v. Lipscomb , 14 F.3d
1236, 1240 (7th Cir. 1994). Rule 704 prohibits "testimony
from which it necessarily follows, if the testimony is
credited, that the defendant did or did not possess the
requisite mens rea." Bennett, 161 F.3d at 182 (quoting
Morales, 108 F.3d at 1037).

Watson argues that the Government violated Rule 704(b)
because its three witnesses testified as to Watson's mental
state. First, Watson argues that Officer Schwartz's
testimony concerning the purpose for the 100 plastic bags
found on his person violated Rule 704(b). We agree. The
prosecutor, Mr. Rocktashel, pushed his questions too far
and he repeatedly elicited expert testimony in violation of
Rule 704(b). Mr. Rocktashel's question to Officer Schwartz
was plainly designed to elicit the expert's testimony about

                               9
Watson's intent. Mr. Rocktashel's repeated references to
Watson's intent elicited the offending response from Officer
Schwartz when he testified that, in his opinion, Watson
"possess[ed] with the intent to distribute to someone else."

Second, Watson argues that the colloquy between Mr.
Rocktashel and Officer Mincer elicited testimony that
violated Rule 704(b). Prosecutors may not circumvent Rule
704(b) by repeatedly referring to a defendant's intent in a
question to an expert. Mr. Rocktashel's repeated invocation
of the word "intent," framed Mincer's "Yes sir," response in
such a way that the necessary inference to be drawn from
Mincer's response was that Watson possessed crack with
the intent to distribute it. Therefore, Mincer's"Yes sir"
response violated Rule 704(b).

Third, Watson argues that Agent Paret's rebuttal
testimony concerning the nature of Watson's bus travel
itinerary violated Rule 704(b). The prosecutor may not elicit
expert testimony on the ultimate issue of fact; that is for
the jury alone to decide. Fed. R. Evid. 704(b). In this case,
Mr. Rocktashel's question to Paret, like his questions to
Schwartz and Mincer, was designed to elicit testimony
about Watson's intent. Rocktashel asked whether Watson's
particular "trip . . . [was] for the purpose of distribution,
transfer and delivery of drugs, as opposed to procurement
of drugs for personal use?" Although Agent Paret did not
specifically refer to Watson in his response, and used the
collective "they" when indicating "they'd gone into the city
to purchase drugs to, ultimately, take back and resell at
their starting point," Paret's opinion necessarily implies that
the purpose of Walker's short bus trip was to distribute
drugs rather than to obtain drugs for personal use. The
unmistakable import of Agent Paret's opinion was that
Watson intended to buy drugs to distribute them. Not only
did Paret's opinion violate Rule 704(b), but it clearly went
beyond Paret's competence, as counsel noted in his
objection. In addition, by letting this testimony stand as
expert opinion, the District Court allowed Walker's
credibility to be destroyed, because he testified that he was
in Philadelphia to attend a funeral.

In sum, the Government violated Rule 704(b) by
repeatedly eliciting from its experts testimony as to

                               10
Watson's mental state and the purpose of his actions. The
defendant's intent is an ultimate issue of fact that the jury
alone must decide. Fed. R. Evid. 704(b). In addition, even if
we assume, for the sake of argument, that the
Government's experts were qualified to speak about
Watson's mental condition at the time of the offense, Rule
704(b) prohibits any expert from testifying about the
defendant's actual mental state. Fed. R. Evid. 704(b). E.g.,
United States v. Pohlot, 827 F.2d 889 (3d Cir. 1987)
(allowing the introduction of expert testimony on
defendant's mental condition at the time of the offense but
limiting expert testimony to factual description of the
defendant's mental capacity), cert. denied, 484 U.S. 1011
(1988). Of course, narcotics experts may testify about drug
dealing, but they are in no way qualified to testify about a
defendant's mental condition. Therefore, the District Court
erred when it admitted the Government's expert testimony
concerning Watson's mental state. That evidence went to
the heart of the Government's case and plainly prejudiced
defendant.

III. CONCLUSION

For the foregoing reasons, we will REVERSE the
Judgment and Commitment Order and REMAND the case
to the District Court for further proceedings.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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