Barry Tarlow is a nationally prominent criminal defense lawyer practicing in Los Angeles, CA. He is a frequent author and lecturer on criminal law. He was formerly a prosecutor in the United States Attorney's Office and is a member of The Champion Advisory Board. The author wishes to thank Kevin Jon Heller and Blair Berk, members of his firm, for their invaluable assistance in the preparation of this column.
Does Daubert Apply To Soft Expert Testimony?
The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact 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.
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), a district court faced with a proffer of expert testimony is required to perform a "gatekeeping" function, determining whether, under Federal Rule of Evidence 104(a), the testimony is (1) relevant, and (2) reliable. See id. at 592. That determination requires the district court to assess "whether the reasoning and methodology underlying the testimony is sound," in light of four factors:
(1) whether the theory or technique "can be (and has been) tested"; (2) "whether the theory or technique has been subjected to peer review and publication"; (3) "the known or potential rate of error"; and (4) whether the theory has been generally accepted."
Peitzmeier v. Hennessey Industries, Inc., 97 F.3d 293, 297 (8th Cir. 1996) (quoting Daubert, 509 U.S. at 593-94)).
The Supreme Court's holding in Daubert does not however, specifically address all three kinds of expert testimony permitted by Rule 702; it applies only to scientific testimony. See Daubert, 509 U.S. at 590 n.8 ("Rule 702 also applies to 'technical, or other specialized knowledge.' Our discussion is limited to the scientific context because that is the nature of the expertise offered here."). Still, the Supreme Court did not hold in Daubert that different principles apply to non-scientific -- so-called "soft" -- expert testimony; the Court simply left that question unanswered, leading Chief Justice Rehnquist to wonder, "[d]oes all this dicta apply to an expert seeking to testify on the basis of 'technical or other specialized knowledge' . . . or are the 'general observations' limited only to 'scientific knowledge'?" Id. at 600 (Rehnquist, C.J., dissenting).
The Supreme Court has yet to answer Chief Justice Rehnquist's question. Lower federal courts have, however, repeatedly attempted to answer it -- with wildly divergent results. Some circuits have explicitly held that Daubert does not apply to non-scientific expert testimony. Other circuits have reached the opposite conclusion, holding that Daubert does apply to such testimony. And still other circuits are themselves split, having held both that Daubert does apply to non-scientific expert testimony and that it does not.
Daubert Does Not Apply to Non-Scientific Expert Testimony
At least three circuits, the Second, Ninth, and Tenth, have held that Daubert does not apply to non-scientific expert testimony.In Iacobelli Const., Inc. v. County of Monroe, 32 F.3d 19 (2d Cir. 1994), a civil case, the Second Circuit reversed a district court's exclusion, pursuant to Daubert, of two affidavits containing non-scientific expert opinion concerning whether the actual site conditions of a tunnel the plaintiff had not been able to construct differed materially from the conditions anticipated in the contract between the plaintiff and the defendant. According the Second Circuit, because the affidavits "do not present the kind of 'junk science' problem that Daubert meant to address," the district court erred in relying on Daubert. "Daubert [only] sought to clarify the standard for evaluating 'scientific knowledge' for purposes of admission under [Rule] 702." Id. at 25; see also Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53 (2d Cir. 1993) (holding that Daubert "specifically dealt with the admissibility of scientific evidence"); United States v. Starzecpyzel, 880 F. Supp. 1027 (S.D.N.Y. 1995) (holding that handwriting analysis, "constituting 'technical, or other specialized knowledge,' is therefore outside the scope of Daubert").
In United States v. Cordoba, 104 F.3d 225 (9th Cir. 1997), the Ninth Circuit approved, over the defendant's Daubert objection, a district court's admission of "expert" testimony that the defendant must have known that he was transporting cocaine because sophisticated drug traffickers do not entrust large amounts of cocaine to unknowing dupes -- testimony now all too common in drug cases. See generally, RICO Report, The Champion (November 1997) (discussing the use and dangers of modus operandi expert testimony). The Ninth Circuit began by holding that "Daubert applies only to the admission of scientific testimony." It then concluded that, because "[t]he government expert testified on the basis of specialized knowledge, not scientific knowledge . . . Daubert is inapplicable." Id. at 230; see also United States v. Webb, 115 F.3d 711, 716 (9th Cir. 1997) (same; approving non-scientific testimony that defendant must have known there was a gun concealed in the engine compartment of his car, because criminals normally hide their guns there); United States v. Bighead, 128 F.3d 1329, 1330 (9th Cir. 1997) (same; approving non-scientific expert testimony concerning the general characteristics of child-abuse victims, because such testimony is "specialized knowledge rather than scientific theory").
Finally, in Compton v. Subaru of America, Inc., 82 F.3d 1513 (10th Cir. 1996), a civil case, the Tenth Circuit affirmed the district court's admission, over Daubert objection, of non-scientific expert testimony concerning whether the roof of a car was defectively designed. In reaching that conclusion, the Tenth Circuit categorically stated that "application of the Daubert factors is unwarranted in cases where expert testimony is based solely upon experience or training." Id. at 1518; see also United States v. Muldow, 19 F.3d 1332, 1338 (10th Cir. 1994) (holding Daubert not applicable to expert testimony by a police officer concerning modus operandi of drug traffickers).
Daubert Does Apply to Non-Scientific Expert Testimony
At least two circuits, the Fifth and the Eighth, have expressly held that Daubert does apply to non-scientific expert testimony, and a third circuit, the Third, has implied that it does. From a policy perspective, this is certainly a logically consistent result. As noted earlier, the underlying rationale of Daubert is that the court should serve as a "gatekeeper" for expert testimony, preventing junk science from distorting the fact-finding process. The shortcomings of junk science are only magnified by the use of some kinds of soft expert testimony.In Moore v. Ashland Chemical Inc., 126 F.3d 679 (5th Cir. 1997), a civil case, the Fifth Circuit reversed a district court's exclusion of non-scientific expert testimony by a doctor concerning the cause of the plaintiff's disease. The Fifth Circuit began by holding that "the general principles of Rule 702 recognized by [Daubert] are applicable to other species of expert testimony." Id. at 685; see also Watkins v. Telsmith, 121 F.3d 984, 991 (5th Cir. 1997) ("[W]hether an expert's testimony is based on scientific, technical, or other specialized knowledge, Daubert and Rule 702 demand that the district court evaluate the methods, analysis, and principles relied upon in reaching the opinion."). It then set forth how those basic principles should be applied to non-scientific expert testimony:
[U]nder Rule 702, an opinion based on other technical or specialized knowledge, must be grounded in the principles, methods, and procedures of the particular field of knowledge involved. . . . Therefore, the "knowledge" of each discipline, under Rule 702, is both its principles and methodology and the theories, techniques or inferences produced through its methodology. Thus, the proffered opinion of any expert in a field of knowledge, in order to be evidentiarily reliable, must either be based soundly on the current knowledge, principles and methodology of the expert's discipline or be soundly inferred or derived therefrom. . . . [Moreover,] the focus must be on the principles and methodology upon which the expert's opinion is based, not on the merits of the expert's conclusion.
Moore, 126 F.3d at 687, 688. Finally, the court determined that, under those principles, the doctor's proposed testimony was reliable specialized knowledge and thus should have been admitted at trial. Id. at 702-03.
In Dancy v. Hyster Co., 127 F.3d 649 (8th Cir. 1997), also a civil case, the Eighth Circuit affirmed a district court's exclusion, pursuant to Daubert, of non-scientific expert testimony concerning the feasibility of designing a forklift safer than the one that injured the plaintiff. On appeal, the plaintiff argued that Daubert does not apply "unless the expert's testimony will rely on scientific principles or methods." The Fifth Circuit disagreed. Id. at 652; see also Peizmeier, 97 F.3d at 297 (rejecting the same argument, because "our Court has not given Daubert so narrow a reading").
Finally, in United States v. Velasquez, 64 F.3d 844 (3rd Cir. 1995), the Third Circuit reversed a defendant's conviction on the ground that the district court erred in excluding non-scientific expert testimony about the serious problems with handwriting analysis. Although the Third Circuit did not explicitly hold that Daubert applies to non-scientific expert testimony generally, it did state that it would use the Daubert tests to examine the handwriting-analysis testimony "for qualifications, reliability, and fitness as those factors have been explicated in Daubert," because "those tests are helpful to assist us in our consideration of the expertise at issue here." Id. at 850.
Split Circuits
Different panels of two circuits, the Sixth and Seventh, have reached inconsistent conclusions regarding whether Daubert applies to non-scientific expert testimony.Sixth Circuit
In both civil and criminal cases, panels of the Sixth Circuit have concluded that Daubert does apply to non-scientific expert testimony.In Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994), a Sixth Circuit panel reversed a Section 1983 judgment in favor of the plaintiff on the ground that, under Daubert, a former police officer's testimony concerning the Detroit Police Department's failure to adequately discipline its officer for the use of excessive force was unreliable. The panel began by noting that although Daubert "dealt with scientific experts, its language relative to the 'gatekeeper' function of federal judges is applicable to all expert testimony offered under Rule 702." Id. at 1350; see also Cook v. American Steamship Co., 53 F.3d 733, 738 (6th Cir. 1995) ("A comparable duty is imposed on the trial court when the subject of the proposed opinion testimony is not 'scientific' knowledge, but 'technical, or other specialized knowledge.'"). The panel then mechanically applied the four Daubert principles, concluding that the officer's "discipline theory" was inadmissible as non-scientific expert testimony, because it had never been tested, had never been published and peer reviewed, and had not been shown to be generally accepted. Id. at 1350-51. If much of the soft expert testimony offered by prosecutors was evaluated by this standard, it would eliminate unsound and unreliable testimony that distorts the fact-finding process.
A panel of the Sixth Circuit reached a similar conclusion in United States v. Thomas, 74 F.3d 676 (6th Cir. 1996), in which the panel rejected a defendant's argument that the district court erred in allowing a police officer to testify about the modus operandi of street-level drug dealers. The defendant did not challenge the qualifications of the police officer or the reliability of his testimony; nevertheless, the panel noted in dicta that, had he done so, Daubert would have applied. Id. at 681.
United States v. Jones, 107 F.3d 1147 (6th Cir. 1997), however, directly contradicts Berry and Thomas. In Jones, the defendant argued that, in light of Daubert, the district court erred in admitting non-scientific expert testimony concerning handwriting analysis. The panel acknowledged its two earlier decisions to the contrary, but nevertheless affirmed the district court's admission of the testimony, holding that if the Daubert framework "were to be extended outside the scientific realm, many types of relevant and reliable expert testimony -- that derived from practical experience -- would excluded. Such a result truly would turn Daubert . . . on its head." Id. at 1158.
Seventh Circuit
One panel of the Seventh Circuit and an Illinois district court have held that Daubert does apply to non-scientific expert testimony.In Tyus v. Urban Search Management, 102 F.3d 256 (7th Cir. 1996), a Seventh Circuit panel reversed a district court's grant of summary judgment for the defendant in a Fair Housing Act case on the ground that the court erred in excluding the plaintiff's non-scientific expert testimony regarding the influence of advertising on African-Americans. The panel began by holding that "the Daubert framework is appropriate for all kinds of expert testimony." Id. at 263. The panel then concluded -- after noting that a district court is always obligated to "ensure that it is dealing with an expert, not just a hired gun," id. at 263 -- that the plaintiff's proposed testimony satisfied Daubert. Id. at 263-64.
Similarly, in United States v. Hall, 974 F. Supp. 1198 (C.D. Ill. 1998), a district court admitted, pursuant to Daubert, non-scientific expert testimony by Dr. Richard Ofshe concerning false confessions and the circumstances in which they are likely to occur. Citing Tyus, the court held that "Daubert's framework applies to the social sciences" and is designed to guarantee that there is "some degree of reliability of the expert and the methods by which he has arrived at his conclusions." Id. at 1202. Applying Daubert, the court had little difficulty determining that Dr. Ofshe's testimony was adequately reliable.
Two other Seventh Circuit cases, however, have expressly held that Daubert does not apply to non-scientific expert testimony.
In United States v. Williams, 81 F.3d 1434 (7th Cir. 1996), an El Rukn case, a panel of the Seventh Circuit affirmed a district court's admission, over Daubert objection, of non-scientific expert testimony by a former member of the gang concerning how to translate the El Rukns' code. According to the panel, "[t]his is not a case in which scientific evidence is tendered. . . . You don't have to be a scientist or use the methodology of science, or even be an honest, decent, law-abiding citizen, in order to possess specialized knowledge about a criminal activity." Id. at 1442-43.
Another Seventh Circuit panel reached a similar conclusion in United States v. Sinclair, 74 F.3d 753 (7th Cir. 1996), in which the panel affirmed the district court's exclusion of non-scientific expert testimony indicating that the prosecution's key witnesses had engaged in illegal conduct and were trying to shift blame from themselves to the defendant. The defendant argued on appeal that the testimony was admissible under Daubert. The panel, however, held that Daubert was inapplicable to non-scientific expert testimony. Id. at 757 ("Daubert does not create a special analysis for answering questions about the admissibility of all expert testimony. Instead, it provides a method for evaluating the reliability of witnesses who claim scientific expertise.").
Because lower federal courts have not adopted a uniform position on the applicability of Daubert to non-scientific testimony, unless or until the Supreme Court resolves the issue, defense attorneys seeking to either admit or exclude such testimony clearly need to focus their approach on the standards of the circuit in which they practice. In circuits that do not apply Daubert to non-scientific expert testimony, it will be easy to admit and difficult to exclude such testimony; the testimony will only have to satisfy Rule 702's general admissibility requirements. See Webb, 115 F.3d 713 (holding that expert testimony is admissible if "specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue"). That situation is both an opportunity and a threat: it allows the prosecution to introduce a wide variety of unfair and prejudicial soft expert testimony, such as the modus operandi evidence at issue in cases like Cordoba and Webb; but it also allows the defense to make creative use of its own soft expert testimony, such as the testimony about a prosecution witness's tendency to exaggerate at issue in United States v. Gonzalez-Maldonado, 115 F.3d 9 (1st Cir. 1997), or the untrustworthiness of handwriting testimony found to be admissible in United States v. Velasquez, 64 F.3d 844 (3rd Cir. 1995). See generally RICO Report, The Champion (Nov. 1997) (discussing prosecution and defense use of "soft" expert testimony). Until this issue is resolved, it is essential to protect the record and preserve the Daubert objection for appeal.
In circuits that do apply Daubert to non-scientific expert testimony, it will be harder to introduce but easier to challenge such testimony. Soft expert testimony such as testimony that drug traffickers do not entrust large amounts of drugs to unknowing dupes, U.S. v. Cordoba, 104 F.3d at 230, or that the defendant must have known there was a gun hidden in the engine compartment of his car because criminals often hide guns there, U.S. v. Webb, supra 115 F.3d at 713, should be particularly -- and appropriately -- vulnerable in such circuits. The prosecution's "expert" in such cases is almost always a police officer or DEA agent whose only "expertise" is his experience. To begin with, such an expert is often prepared to offer any opinion the prosecution needs to support its case, and is the quintessential example of a "hired gun" - the kind of expert categorically denounced by the Seventh Circuit in Tyus. See Tyus v. Urban Search Management, supra, 102 F.3d at 263. Indeed, this type of "expert" testimony gives junk science a bad name.
Moreover, under Daubert, simply having encountered a number of generically similar situations is not be enough to qualify an officer or agent as an expert; as the district court pointed out in Hall, although an individual can qualify as an expert under Rule 702 on the basis of his experience,
certain quantitative and qualitative requirements must be placed on those experiences before they can rise to the level of reliable specialized knowledge. There must be a threshold number of experiences from the which the expert's knowledge is drawn. In addition, those experiences must be sufficiently similar in nature to form a valid basis for comparison.
U.S. v. Hall, supra 974 F. Supp. at 1202; cf. Moore v. Ashland Chemical, supra, 126 F.3d at 688 (holding that, to determine reliability of expert testimony under Daubert, "the focus must be on the principles and methodology upon which the expert's opinion is based, not on the merits of the expert's conclusion"). Hall should serve defense attorneys well, given that "experts" who are police officers and DEA agents normally rely on nothing more than anecdotal evidence to establish their qualifications -- evidence that it is impossible to meaningfully challenge. See, e.g., Webb, 115 F.3d at 714 (to establish that he was an "expert," police officer testified only that over a one-year period he had "talked to 50 or 60 inmates per day about how and why criminals conceal weapons in cars").
Finally, until this important issue is resolved, defense attorneys must be prepared to work both sides of the street in circuits in which panels have split concerning the applicability of Daubert to non-scientific testimony. When the attorney wants to introduce helpful soft expert testimony, he or she should rely on the principles of cases that hold that Daubert does not apply. And when the attorney wants to exclude unfair and prejudicial prosecution soft expert testimony, he or she is obligated to apply the evidentiary principles and legal rationales of the cases that hold that Daubert does apply.
The abuse of soft expert testimony is a serious problem in our criminal justice system. There is certainly non-scientific expert testimony that is reliable, independently verifiable, and often supported by extensive literature, such as the testimony presented in Hall about false confessions. That type of expert testimony has a legitimate place in the criminal-justice system. To ensure the integrity of the fact-finding process, however, trial judges should severely limit both sides from presenting unreliable soft expert testimony based on unverifiable anecdotal information. Hopefully, courts will recognize that, in order to remedy the problem of improper soft expert testimony, Daubert should be stringently applied to that type of evidence.
Collateral Estoppel Is Alive and Well: Possession Acquittal Bars Importation Retrial
Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443 (1970). The principle first developed in civil litigation, but it applies to criminal cases as well. See United States v. Oppenheimer, 242 U.S. 85 (1916) ("It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt."); see generally RICO Report, The Champion (September/October 1995) (discussing collateral estoppel in relation to RICO predicate acts) and (April 1993) (discussing use of collateral estoppel against criminal defendants).Although the number of criminal cases in which a court has relied on the principle of collateral estoppel to bar retrial is relatively small, the Ninth Circuit recently relied on the principle to hold that a defendant cannot be retried for importing marijuana when a jury hung on that charge but acquitted the defendant of possessing marijuana with intent to distribute. United States v. Romeo, 114 F.3d 141 (9th Cir. 1997). The opinion in Romeo is worth exploring in detail, because it illustrates the potential utility of collateral estoppel for defense attorneys representing a defendant in a similar mixed-verdict case.
The facts of Romeo are straightforward. The evidence presented at trial showed that Romeo drove a Volkswagen with 188.45 pounds of marijuana in its trunk from Mexico into the United States. After the marijuana was discovered at the San Ysidro Port of Entry, Romeo was charged in a two-count indictment with (1) the importation of marijuana, a violation of 21 U.S.C. 952 & 960, and (2) possession of marijuana with intent to distribute, a violation of 21 U.S.C. 841(a)(1).
At trial, Romeo's defense was that he was unaware that the car contained marijuana. He testified that a woman named Juanita, whom he had met two days previous to his border crossing, asked him to drive the car across the border for her. "[T]he only contested element, and the only contested issue argued to the jury," therefore, "was Romeo's knowledge -- whether or not he knew that there was marijuana in the car. Id. at 142.
Romeo was acquitted, by general verdict, of the possession with intent to distribute count. The jury deadlocked, however, on the importation count, and a mistrial was declared. Romeo then moved for an acquittal on the importation count, arguing that collateral estoppel barred the prosecution from retrying it.
In a well-reasoned opinion, a divided panel of the Ninth Circuit agreed. The majority began by reciting the three-step approach to making the collateral estoppel determination used by the circuit:
(1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was "litigated" in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case.
Id. at 143 (quoting United States v. McLaurin, 57 F.3d 823, 826 (9th Cir. 1995)) (emphasis in the original).
At issue in Romeo was the third step: whether Romeo's acquittal on the possession with intent to distribute count necessarily meant that the jury had concluded that Romeo did not know the car contained marijuana.
To answer that question, the majority turned to an analysis of the elements of the acquitted count: (1) that Romeo knowingly possessed marijuana; and (2) that he intended to deliver that marijuana to another person. See Ninth Circuit Crim. Jury Instr. 9.04A (1995). The majority began by noting that the jury could not have acquitted Romeo because the prosecution failed to prove the second element, intent to deliver: "the volume of marijuana . . . was such that any reasonable juror under the instructions would infer intent to deliver." Romeo, 114 F.3d at 143 (quoting United States v. Seley, 957 F.2d 717, 721 (9th Cir. 1992) (defendant claimed he did not know the trailer he was driving contained 95 pounds of marijuana; court held intent to distribute not a legitimately contested issue)). As a result, the majority held, the jury must have acquitted Romeo because the prosecution failed to prove the first element, knowing possession.
Having concluded that the jury necessarily found that Romeo did not know the car contained marijuana, the majority had little trouble determining that the principle of collateral estoppel prevented the prosecution from retrying Romeo on the importation count. Like the possession with intent count, the importation count required the prosecution to prove that Romeo knew the car contained marijuana. Ninth Circuit Crim. Jury Instr. 9.04M (1995) ("Second, the defendant knew it was marijuana or some other prohibited drug."). The prosecution, therefore, could only convict Romeo of importation if it was able to relitigate the issue of Romeo's knowledge of the marijuana -- precisely what the principle of collateral estoppel expressly proscribes.
Judge O'Scannlain dissented in Romeo. In his view, the majority incorrectly concluded that Romeo's acquittal on the possession with intent count meant that the jury necessarily concluded he did not know the car contained marijuana:
It seems to me that if the jury necessarily decided that Romeo did not know that drugs were in his trunk, the jury necessarily would have acquitted him of knowingly importing drugs into the United States. The jury, however, did not acquit him. Rather, the jury could not decide whether Romeo knowingly brought drugs into the United States. It seems oddly surrealistic and irrational to hold that the jury necessarily decided that which it confessed it could not decide.
Id. at 145.
The majority addressed and rejected Judge O'Scannlain's argument in its opinion. First, the majority pointed out that "[t]he inquiry under Ashe is what the jury actually decided when it reached its verdict, not on why the jury could not agree on the deadlocked count." Id. at 144. Thus, "[t]he mere possibility that the jury acted irrationally, without more, will not negate the collateral estoppel effects of a prior verdict if a rational interpretation of the verdict as a whole is possible."
Second, the majority correctly noted that, in fact, its interpretation of the jury's verdict "attributes far less irrationality to the jury than does the dissent's reading:"
A necessary corollary to the dissent's reading of the verdict is that, although Romeo knowingly possessed the marijuana, he possessed the 188 pounds without the intent to distribute it. This "consistency" argument attributes far more irrationality to the jury's verdict than realistically recognizing that any number of reasons could explain the "inconsistency" on the part of the holdout juror. It is not the realistic and rational reading of the verdict that Ashe requires.
Id. (emphasis in the original).
Although, as noted earlier, collateral estoppel has played a role in only a relatively small number of criminal cases, the principle has the potential to be extremely useful for a defense attorney representing a defendant in a mixed-verdict case such as Romeo. Most obviously, the principle is very important in drug cases such as Romeo and the case it repeatedly cited, Seley, in which the Ninth Circuit held that, because Seley's knowledge of the marijuana was the sole contested issue, the fact that the jury acquitted him of possessing marijuana with intent to distribute and of importing marijuana prevented the prosecution from retrying him on the conspiracy to import marijuana count on which the jury hung. 957 F.2d at 722.
Courts have also relied on the principle, however, to bar retrial in a number of other situations. In Ashe, for example, the Supreme Court held that a defendant who had been tried and acquitted of robbing one of the participants in a poker game could not later be tried for robbing another participant, because the jury in the first trial necessarily found that the defendant was not involved in robbing the game. Ashe, 397 U.S. at 445.
In Pettaway v. Plummer, 943 F.2d 1041 (9th Cir. 1991), the defendant was charged with murder on two different theories: either that he fired the fatal shots himself or that he aided and abetted his co-defendant. The jury convicted the defendant of murder, but found in a sentence-enhancement verdict that he did not use a handgun in the commission of a felony. After the conviction was reversed for instructional error on the aiding-and-abetting theory, the Ninth Circuit held that on retrial the prosecution was collaterally estopped from presenting evidence suggesting that the defendant fired the shots himself. Id. at 1046.
In United States v. Corley, 824 F.2d 931 (11th Cir. 1987), the defendant was charged with one count of aiding and abetting embezzlement and one count of conspiring to defraud a savings and loan. Similar to Seley, the jury acquitted on the substantive charge but hung on the conspiracy charge. After conducting a "meticulous review" of the evidence, the Eleventh Circuit concluded that, in order to acquit on the aiding and abetting charge, the jury necessarily had to find that the defendant did not commit the two overt acts identified in the conspiracy charge. The court thus held that it was proper for the district court to exclude evidence of the aiding and abetting charge on retrial of the conspiracy count.
Finally, in United States v. McLaurin, 57 F.3d 823 (9th Cir. 1995), the Ninth Circuit held that the prosecution could not retry a defendant for bank robbery because the jury at his first trial convicted him of receiving stolen funds but hung on the bank robbery charge. Pointing out that "a defendant cannot be guilty of both offenses," the court concluded that "[t]he conviction on the stolen funds charge should therefore result in an implied acquittal on the robbery charge, provided that the jury was presented with a full opportunity to return a verdict on either charge." Id. at 826.
Note, though, that the principle of collateral estoppel generally applies only when a jury acquits a defendant of one count and hangs on another. The principle does not apply in so-called "inconsistent verdict" cases, in which a defendant argues that, given the evidence presented at trial, the jury could not rationally have acquitted him of count X but convicted him of count Y. The Supreme Court explicitly rejected that idea in United States v. Powell, 469 U.S. 57 (1984), holding that, "where truly inconsistent verdicts have been reached, '[t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.'" Id. at 476 (quoting Dunn v. United States, 284 U.S. 390, 393 (1932)); see also U.S. v. Romeo, supra, 114 F.3d at 144 (acknowledging that the presumption of consistent verdicts "may carry some weight when assessing verdicts of guilty and not guilty").
The Supreme Court's decision in Powell, however, does not necessarily mean there is no such thing as an inconsistent verdict. Although Powell clearly holds that the principle of collateral estoppel does not apply in inconsistent-verdict cases involving one defendant, a principle similar to collateral estoppel may apply in inconsistent-verdict cases involving co-defendants. In such cases, the Ninth Circuit -- though no other -- has held that, Powell does not apply when "a conviction of one defendant and acquittal of the other when the only evidence of culpability applies equally to both may violate due process unless there is an articulation of a rational basis for dissimilar treatment." United States v. Marchini, 797 F.2d 759, 765 (9th Cir. 1986); see also United States v. Guzman, 849 F.2d 447, 448 (9th Cir. 1988) (same). In practice, unfortunately, the Marchini exception may be difficult, if not impossible, to invoke: no reported case has ever relied on the exception to reverse a conviction, and the Ninth Circuit rejected a Marchini challenge as recently as February, 1998. See United States v. Franco, 136 F.3d 622, 631 (9th Cir. 1998) (holding, in a multi-defendant drug conspiracy case, that the jury could rationally have concluded that convicted defendant knew a cardboard box contained drugs but that the acquitted defendant didn't; evidence indicated convicted defendant's ties to conspiracy were more substantial). Moreover, at least one panel of the Ninth Circuit has indicated that Marchini may itself be inconsistent with Powell. See United States v. Hughes Aircraft, 20 F.3d 974, 977 (9th Cir. 1994).
Entrapment as a Matter of Law: Judge Does Justice
In early 1995, upstanding citizen Benjamin Martinez moved his family to Gervais, Oregon and made new friends. One of those friends unfortunately was Alvarro Plancarte, a paid police informer. Plancarte first presented himself to Martinez as a mechanic and agreed to do some work on his car. After making several visits to Martinez's home, however, Plancarte told him that he bought and sold drugs on a large scale, and wanted to enlist Martinez in his criminal enterprise. Week after week, the informer asked Martinez to help him sell drugs, but to no avail; Martinez repeatedly refused. After months of being "cajoled, scolded, and pressured. . .," United States v. Martinez, 924 F.Supp. 1025 (D.Or. 1996).
After almost six months of intense efforts by Plancarte to convince Martinez to participate in a drug deal, the informer finally arranged a controlled buy from Martinez for a half-pound of methamphetamine, which Martinez was eventually able to obtain through a drug-dealing brother-in-law. The informer's law enforcement control officer then arranged for Oregon State Police to stop Mr. Martinez for a traffic violation to obtain his full name in order to do a background check, which not surprisingly turned up no criminal history. The police thereafter arranged for two additional controlled buys, and in the final controlled buy Martinez was arrested in possession of six pounds of methamphetamine.
At trial, Martinez admitted that he had possessed and sold methamphetamine, but asserted that he had been entrapped. U.S. v. Martinez, 924 F. Supp. at 1028. The evidence at his trial clearly established that Martinez had (1) never been involved in any criminal or drug related activity; (2) that he was generally a follower and not a leader; (3) that the government informer had, with mixed results, attempted to draw a number of others into drug deals on a number of occasions; and (4) that the informer received an incentive bonus of $3000 to $4000 per arrest of which he paid no income tax.
Predisposition for purposes of an entrapment defense is analyzed based on similar factors applicable to Martinez: (1) the character and reputation of the defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government's inducement. See, United States v. McClelland, 72 F.3d 717, 722 (9th Cir. 1995), cert. denied, 116 S. Ct. 1448 (1996); see also Rico Report, The Champion (April 1994: November 1995).
Although the government had to concede the first two factors, it contested the remaining factors and aggressively argued that Martinez was clearly predisposed. Certainly Martinez stood to profit from the sale of drugs, yet the evidence also clearly showed that over the first several months he was reluctant to be drawn into the criminal venture, despite several attempts by Plancarte to "recruit" him. See, United States v. Skarie, 971 F.2d 317, 321 (9th Cir. 1992) (two-month delay undermines predisposition argument). Finally, the nature of the government's inducement clearly weighed in Martinez's favor. During the months the informer spent trying to convince him to be a drug dealer, Plancarte used tactics such as reassuring Martinez that he did not have to worry about any police, convincing him that the informer could "always instruct[]" him about the drug trade, and plying him with promises of wealth and friendship. Ironically, Martinez finally agreed to engage in the criminal scheme after Plancarte promised that Martinez could become his "padrino" or godfather. Id.
Despite the persuasive evidence of entrapment presented at trial, the jury was clearly not persuaded. They swiftly returned guilty verdicts on both the distribution and possession with intent to distribute counts under 21 U.S.C. 841(a)(1). Fortunately for Martinez, however, the federal district judge trying the case turned out to be very troubled by this result. Judge Owen Panner, who happened to be out of the courtroom at the time the jury's verdict was delivered and taken by another judge, soon faxed defense counsel suggesting that a Rule 29 Motion be filed as soon as possible.
Ruling on the Rule 29 Motion, Judge Panner held that the jury's verdict "shocks the conscience", and granted Martinez's post-verdict motion for judgment of acquittal. In a written Memorandum and Order, Judge Panner found evidence that the informer, Plancarte, in all likelihood entrapped Martinez, and that the prosecution failed to rebut defense testimony that the defendant was not predisposed to sell drugs. U.S. v. Martinez, supra, 924 F.Supp. at 1028. Although the court recognized that entrapment is generally a jury question, and that questions regarding credibility of witnesses are usually relegated to the jury's province, he supported his decision by concluding that the jury made wrong analytical deductions:
. . .[W]hen the factors of this informant's working conditions and compensation arrangement, especially a bonus for arrests, are examined, I am compelled to conclude that Plancarte's credibility is such that the inferences drawn by the jury from his testimony in support of the government were unreasonable.
Id., at 1028.
The prosecution, however, was not satisfied with this just and appropriate result. Appealing the District Court's ruling, the prosecution suffered its final blow in a two-to-one decision authored by Ninth Circuit Court of Appeals Judge A. Wallace Tashima. U.S. v. Martinez, 122 F.3d 1161 (9th Cir. 1997). The majority concluded that four of the five predisposition factors articulated in its decision in McClelland weighed in favor of Martinez, including what it stated was the most important of them, that Martinez had been clearly reluctant to get involved in the criminal scheme. Id., at 1163. While the panel recognized that a District Court may not engage in credibility assessments when considering a motion for acquittal, the Ninth Circuit ruled that the judgment of acquittal should have been granted even if the informer's testimony was considered to be credible:
We conclude that a rational jury could not conclude beyond a reasonable doubt that Martinez possessed the requisite predisposition prior to being approached by Plancarte.
Id., at 1163. The court relied in part on the United States Supreme Court's decision in Jacobson v. United States, 503 U.S. 540, 553, 112 S. Ct. 1535 (1992), in which the Supreme Court recognized that the conduct of an informer who "played on the weaknesses of an innocent party and beguiled him into committing crimes which he otherwise would not have attempted," could constitute entrapment. The Ninth Circuit panel in Martinez agreed, and found that Plancarte's efforts led to the "apprehension of an otherwise law-abiding citizen who, if left to his own devices, would likely have never run afoul of the law." Martinez, 122 F.3d 1165, citing Sherman v. United States, 356 U.S. 369, 376, 78 S. Ct. 819 (1958).
Entrapment is a difficult defense, at best, but under the facts, often the only available defense. Juries are normally reluctant to apply this principle, yet defense counsel will rarely if ever waive a jury in this situation. Mr. Martinez was fortunate indeed to have had Judge Panner presiding, who obviously had a much more finely tuned sensitivity and understanding of the importance of the principles embodied in the law of entrapment than that displayed by the jury.
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