United States v. Plunk

United States Court of Appeals for the Ninth Circuit · 1998 · Evidence

153 F.3d 1011 (9th Cir. 1998)

Updated August 22, 2026

EvidenceRule 702Daubertexpert testimonydrug jargoncode wordsRule 704(b)Rule 403

Facts

At trial, the government introduced wiretapped conversations involving coded narcotics language and presented Detective Jerry Speziale as an expert on narcotics trafficking jargon and methods. The government also used identifications by co-conspirator Carlos Serrato, who identified Plunk's photo and voice, and Speziale identified Plunk's voice on recorded calls. During deliberations, a court officer briefly reassured a juror that the jury room and evidence were secure, and a dictionary was mistakenly delivered to the jury room but retrieved within minutes before any definition was read. Plunk also challenged a DEA subpoena for his phone records, alleged a Brady violation based on notes in a federal public defender's files, and renewed a double-jeopardy argument based on prior administrative forfeitures.

Issue

Whether the district court committed reversible error in admitting narcotics-code expert testimony and identification evidence, handling the jury incidents and taped transcripts, giving an Allen charge, rejecting the Brady claim and subpoena challenge, and allowing prosecution despite prior administrative forfeitures. The appeal also asked what evidentiary and constitutional standards governed these rulings.

Rule

Daubert is limited to scientific expert testimony; specialized law-enforcement testimony is evaluated under traditional Rule 702 principles asking whether the subject will assist the jury and whether the witness is qualified by knowledge, skill, experience, training, or education. Under Rule 704(b), an expert may not state an opinion that the defendant did or did not have the mens rea constituting an element of the crime, or an opinion that necessarily compels that conclusion, but may interpret drug jargon if the jury remains free to infer intent. Suggestive photo or voice identifications are admissible if reliable under the totality of the circumstances using the Neil v. Biggers factors, and voice authentication under Rule 901(b)(5) requires only minimal familiarity with the speaker's voice. Juror exposure to outside matter requires a new trial only if there is a reasonable possibility the extrinsic material affected the verdict, and unpreserved evidentiary objections are reviewed only for plain error.

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

In a federal cocaine case in Phoenix, the government offers Detective Lena Ortiz to explain that phrases like "send flowers" and "pick up the jackets" in intercepted calls are common drug-trafficking code for delivering methamphetamine and collecting cash. Ortiz has worked 14 years in narcotics investigations, participated in undercover buys, and listened to hundreds of coded calls, but she has no academic training in linguistics. Defense counsel objects that her testimony fails the scientific-reliability requirements of Daubert.

How should the court rule?

Explanation. The majority held that Daubert is confined to scientific expert testimony. Testimony interpreting narcotics jargon is specialized law-enforcement knowledge, so the court applies traditional Rule 702: whether the subject will assist the jury and whether the witness is qualified by knowledge, skill, experience, training, or education. Extensive practical narcotics experience is enough even without formal academic study.