Price List Flashcards
Do you dispute that the government’s expert was qualified to testify about drug prices
No, but that has no bearing on whether the government met its burden to show the evidence was reliable. This Court recognized in Ollier that bare qualifications alone cannot establish admissibility of testimony.
Is your argument under 702 or 703? Did you raise both below?
So 702 c and d–the expert’s testimony needs to be the product of reliable principles and methods reliably applied to the case’s facts. And the Supreme Court recognized in Williams that 702’s text places such a limit on conduits. We raised 703 in the brief to note that 703 allows experts to rely on information that would be inadmissible as evidence. The conduit bar is an exception to that rule repeatedly recognized by this Court and others.
Doesn’t the fact that she subtracted 10 percent of the weight to calculate value show that she was not a conduit?
No, because she was still a conduit for the price themselves. In other words, her testimony suggests that she would parroted any number from the price list and simply subtracted 10 percent from the weight of the drugs. So even if we assume that the 10 percent deduction is reliable, that does not change that the underlying price is not.
What about the conversations with other officers that gave prices that were within this range. Doesn’t that verify the range.
No, because Agent Johnson said that she did not actually remember those figures. Those agents just said that whatever amounts they used fell within the broad range that Agent Johnson gave them. ER-74. She testified that they did not giver her an amount ER-75. Thus to the extent that the agent remembered anything from these conversations, she once again provided no synthesis. Agent Johnson testified that simply having a low end and a high end would be insufficient in an investigation. ER-62. The standard should not be lower in a criminal prosecution.
Did you ask her if it was better to use the low end or the high end?
I was not the trial counsel, but I will note that it is the government’s burden to show at trial that their expert evidence is reliable
What about the liberal thrust of the rules?
This Court has warned trial courts to be on court with enforcing reliability, especially with experience-based experts in criminal trials. You can look at Vera and Valencia-Lopez. This Court recognizes that experience-based experts–such as law enforcement officers–are not subject to the same sort routine testing and peer review. In Valencia-Lopez, this Court cautioned against a default of “that goes to weight not admissibility”
You conceded that drugs are valuable in closing. Does that not waive the issue?
No. With the bad evidence already in, my colleague was doing everything she could to downplay its importance, but that does not mean that she conceded to its admission. And merely conceding that drugs are valuable is not the same as putting an eye-popping figure on their value. As this Court and the Supreme Court have recognized, specific facts have more persuasive force than an admission. The “persuasive power of the concrete and particular is often essential to the capacity of jurors to satisfy the obligations that the law places on them.” Old Chief v. United States, 519 U.S. 172, 187 (1997).
What about the LECC lab is widely used.
I think this Court’s and the Supreme Court’s confrontation jurisprudence show that just because something is commonly done does not make it permissible. But to the extent that your honor is concerned that reversal here will throw trials into disarray, fear not. This would bar the use of the price list in any case. It would mean that if the government is going to have price experts who rely on that list, they need to actually apply some expertise.
Wasn’t this agent just as experienced as the agent in the first trial.
No, although i should clarify that is not legally relevant. The expert in the first trial had 25 consecutive years focusing on drug investigations. ER-1144-45. But contrast, the expert in the second trial had not been working drug cases full time since 2016. ER-27. She even agreed that it is fair to say that her primary focus is not drug investigations. ER-27.
Then why did you raise her experience?
To show that this did not appear to be merely a slip up by the prosecution, but that at the second trial they had to grapple with having a less experienced expert on the stand who provided less reliable testimony.
I don’t see how this can be prejudicial.
It was. This Court recognized in Kojayan that closing argument matters. And here was the opening in closing argument:
But at its most core element . . ., this isn’t about drugs. This is a case about money. This is a case about almost $250,000
worth of drugs. It’s not about 85 packages of meth and two packages of fentanyl. It’s about packages of meth and fentanyl worth . . . as much as $246,000 and change. When you recognize that core truth, all of the evidence locks into
place and makes perfect sense. ER-769.
Even if this Court disagrees, it still must factor into the cumulative error analysis.
How does the confrontation clause survive on plain error review?
This Court has long held that an expert violates the confrontation right when she is “used as little more than a conduit or transmitter of testimonial hearsay.” Vera case. And the Supreme Court’s recent decision in Smith confirms this.
How does Smith help you?
Smith held that “If an expert conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts.” At 780. Smith rejected Arizona’s view that this did not violate the confrontation clause so long as the testifying expert adds an independent view. Indeed, the expert in Smith repeatedly said that the out of court expert complied with standards
But Smith was decided after your trial right.
Yes, but under Henderson v. United States, 568 U.S. 266, 279 (2013), “whether a legal question was settled or unsettled at the time of trial, it is enough that an error be ‘plain’ at the time of appellate consideration” for plain-error review.
How did this show prejudice?
A comparison with this Court’s decision in Macias. There, this Court held that the Confrontation violation did not affect the the defendant’s substantial rights because there was plenty of other evidence admitted about the challenged fact–the defendant’s place of birth–and the defense eventually was able to call as a witness one of the agents involved in a disputed affidavit about the defendant’s place of birth.
