United States v. Cano

United States Court of Appeals for the Eleventh Circuit · 2002 · Evidence

289 F.3d 1354 (11th Cir. 2002)

Updated August 22, 2026

EvidenceRule 702Rule 701expert testimonylay opiniondrug ledgerscoded recordsprosecutorial vouching

Facts

The government introduced drug ledgers, a date book, and a phone book seized during NYPD searches of the conspiracy's New York-area facilities. Detective Donnelly, who supervised the wiretap investigation, testified by matching known ten-digit phone numbers from intercepted calls to symbols next to conspirators' names in the phone book, thereby assigning Arabic numerals to the symbols. Appellants objected at trial that this deciphering was undisclosed expert testimony under Rule 702 and Criminal Rule 16, but they did not object on Rule 701 grounds. The prosecution also questioned cooperating witnesses about plea agreements, truth-telling obligations, and perjury consequences, and referred to those matters in closing argument.

Issue

Whether the district court erred in allowing Detective Donnelly to decipher symbols in the seized phone book and related records, and whether the prosecutor impermissibly vouched for government witnesses by eliciting testimony about plea agreements and truthfulness obligations and by commenting on those matters in closing. The court also considered whether Cano's Count 13 conviction could stand where the record contained no evidence supporting possession with intent to distribute marijuana during the charged period.

Rule

Testimony is not expert testimony under Rule 702 when it is not based on scientific, technical, or specialized knowledge, but instead merely compares facts already in evidence in a way the jury can perform for itself. Under the pre-amendment Rule 701, lay opinion must be rationally based on the witness's own perception and helpful to understanding the testimony or determining a fact in issue; if an unpreserved Rule 701 error is reviewed for plain error, relief is unavailable unless the error affected substantial rights. Prosecutorial vouching occurs when the jury could reasonably believe the prosecutor expressed a personal belief in a witness's credibility, either by explicitly placing the prestige of the government behind the witness or by implying that evidence outside the record supports the witness. A conviction unsupported by any evidence is plain error and must be vacated.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a federal fraud trial in Atlanta, agents introduced call records showing that Lena Ortiz used the number 404-555-2187 and Devin Marsh used 404-555-9031. A case agent then testified that symbols next to Ortiz's and Marsh's names in a seized contact book corresponded to digits because he simply lined up the known phone numbers with the symbols beside the same names.

Defense counsel objects that the testimony is inadmissible because the agent was not qualified as an expert under Rule 702. How should the court rule?

Explanation. The majority held that testimony is not expert testimony under Rule 702 when the witness does not rely on scientific, technical, or specialized knowledge, but merely compares evidence already in the record in a way the jury could perform itself. Here, the agent is just matching known phone numbers to symbols beside the same names, so the Rule 702 objection fails. (Derived from United States v. Cano (2002).)