United States v. Hankey

United States Court of Appeals for the Ninth Circuit · 2000 · Evidence

EvidenceExpert testimonyBias impeachmentVoluntariness of confessionSentencing relevant conductFRE 702FRE 403FRE 104(a)

Facts

DEA agents investigated PCP distributor James Welch and linked Hankey to an October 28, 1996 PCP transaction near Hankey's parents' home; tape-recorded negotiations also tied Hankey to an unconsummated October 30 deal, and police later obtained a Mirandized confession from Hankey. At trial, Hankey's defense was misidentification, and co-defendant Welch testified that Hankey was not involved and that another person known as "Poo" supplied the PCP. In rebuttal, the district court allowed a police gang expert to testify that Welch and Hankey belonged to affiliated gangs and that gang members who testify against one another face violent retaliation, but the court limited the testimony to impeachment of Welch's exculpatory testimony. The court also barred attorney Carl Sherman from testifying that police told him Hankey would be released when Hankey was actually held overnight, and at sentencing the court counted the August 14 and October 30 incidents as relevant conduct.

Issue

Did the district court abuse its discretion by admitting the gang expert's testimony under Rules 702 and 403 to impeach Welch for bias or coercion? Did the court err by excluding testimony from attorney Sherman about police statements made outside Hankey's presence as irrelevant to the voluntariness of Hankey's confession? Did the court clearly err in treating the August 14 and October 30 incidents as relevant conduct under U.S.S.G. § 1B1.3(a)(2)?

Rule

For non-scientific expert testimony under Rule 702, the trial judge has broad discretion both in deciding whether to admit the testimony and how to test reliability; the Daubert factors are not mechanically applicable where reliability depends primarily on the expert's knowledge and experience. Evidence showing a witness's gang affiliation and gang retaliation practices is relevant to show bias or coercion if it tends to explain why the witness might slant testimony, and it is admissible under Rule 403 unless unfair prejudice substantially outweighs that probative value. Police conduct occurring outside the defendant's presence and unknown to him is not relevant to the voluntariness of his confession absent evidence that he knew of it or that it affected his ability knowingly to waive rights. In a drug case, uncharged transactions may be included as relevant conduct if supported by a preponderance of the evidence and shown to be part of the same course of conduct or common scheme or plan as the count of conviction.

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

In a robbery trial in Los Angeles, defense witness Omar Velez testifies that defendant Devin Cole was with him all night and could not have been involved. In rebuttal, the prosecution offers Detective Rosa Mendez, who has spent 18 years investigating local street crews, has interviewed hundreds of members, teaches gang-investigation courses, and personally knows both men; after a Rule 104(a) hearing, she proposes to testify that both belong to affiliated crews and that members who testify against one another face violent retaliation.

Should the court admit Detective Mendez's testimony under Rule 702?

Explanation. Rule 702 allows specialized knowledge that will assist the jury if the witness is qualified and the testimony is relevant and reliable. For experience-based testimony such as gang structure, affiliation, and retaliation practices, the trial court has broad discretion both in deciding admissibility and in deciding how to test reliability. The usual Daubert scientific factors need not be mechanically applied when reliability depends primarily on knowledge and experience rather than scientific methodology.