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United States v. Reddick

United States District Court, D. Connecticut

January 8, 2018



          Jeffrey Alker Meyer United States District Judge

         Defendant has moved in limine to preclude in whole or in part the anticipated expert testimony of an experienced law enforcement agent about general manufacturing and marketing practices relating to narcotics trafficking. I will mostly deny defendant's motion except to the extent that the agent would testify that firearms are among the tools of trade of narcotics traffickers. Although I do not doubt the proposition that drug dealers commonly use guns, I am not convinced that this is a matter beyond the ken of an average juror for which expert testimony is warranted.


         The Government has charged defendant with multiple drug trafficking crimes as well as firearms counts arising from the seizure of a gun. I expect the Government's trial evidence will show that law enforcement agents conducted a search of the house where defendant and others lived and that they seized cocaine, heroin, and various types of drug paraphernalia from bedroom areas used by defendant. Although the agents did not find a gun in the house, they saw and photographed a Ruger gun lock in an upstairs bedroom closet, and they also found a military fragmentation protective vest.

         In defendant's bedroom, agents found the key to a Toyota RAV4 that was parked inside the garage at the house. The agents soon obtained a search warrant for the car where they found a Ruger 9 mm gun, two kinds of ammunition, and about one ounce of fentanyl. The car was not registered to defendant, and I expect that an important issue at trial will be whether defendant had access to the car and used it to store the drugs, ammunition, and gun that were found inside.

         The Government proposes to call as a witness at trial Special Agent Michael Zuk, a highly experienced FBI agent, to offer expert opinion testimony about the following subjects: “the methodology for the distribution of cocaine, cocaine base, heroin, and fentanyl; the typical wholesale and street-level retail quantities and prices for these controlled substances; the manner in which cocaine is converted into cocaine base; the manner in which heroin is broken down and packaged for distribution; common practices in the distribution of narcotics; and the utility of certain items (i.e., “tools of the trade”) to further drug trafficking operations.” Doc. #59 at 11. The Government proposes to have Agent Zuk testify “about the general practices of drug distribution, including packaging, quality, pricing, and terminology, as well as the role firearms typically play in a drug trafficking operation.” Id. at 11-12.

         Defendant has moved in limine to exclude or limit the testimony of Special Agent Zuk. Doc. #60. I heard argument from the parties on defendant's motion at the pre-trial conference and now issue this ruling.


         The Federal Rules of Evidence provide that expert testimony is admissible if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue.” Fed.R.Evid. 702. “Testimony is properly characterized as ‘expert' only if it concerns matters that the average juror is not capable of understanding on his or her own.” United States v. Mejia, 545 F.3d 179, 194 (2d Cir. 2008).

         I conclude that most of Agent Zuk's proposed testimony is the proper subject of expert testimony, especially because the Government at trial will be required to prove not merely defendant's possession of narcotics but also his intent to distribute the narcotics that he allegedly possessed. Three different kinds of narcotics were seized in this case, and I do not think that the average juror would likely be familiar with the particulars of and differences between cocaine, heroin, and fentanyl. This is especially true for fentanyl, which has most recently emerged as a very common narcotic for distribution. Nor do I believe that the average juror would likely be familiar with how cocaine, heroin, and fentanyl are usually packaged for sale and with pricing practices for these narcotics. Accordingly, I will allow Agent Zuk to testify about the general nature of each of these narcotics, where they come from, how they are commonly manufactured or processed, how they are commonly packaged for sale, and how they are commonly priced for sale.

         I will also allow Agent Zuk to testify about other aspects of narcotics trafficking that I think would be beyond the knowledge of the average juror. First, I will allow him to testify about the general practice of narcotics sellers and buyers to use coded language and the meaning of common drug slang terms. See, e.g., Mejia, 545 F.3d at 189 (noting approval of expert testimony in this area).

         Second, with one exception for firearms discussed below, I will also allow Agent Zuk to testify about common “tools of the trade” for narcotics trafficking, because I do not believe that the average juror would likely know the use that certain otherwise innocuous items may have for a person who is involved in narcotics distribution. Although the Government has represented that it will not show Agent Zuk any of the items recovered during the execution of search warrants in this case, the Government may ask him to identify common tools of the trade that are used by narcotics traffickers and may also ask Agent Zuk in generic terms about the potential use in narcotics trafficking operations of items like the kind that were recovered from the searches in this case (e.g., baggies/wrappers, spoons, baking soda, a blender, a microwave, a vacuum sealer, a cutting agent, money bands, a money counter, stamps, and face masks). All of this testimony will be helpful to the jury's determination of whether defendant was engaged in drug trafficking at all and on what scale (which may be relevant to the jury's determination whether and for what purpose he may have possessed a gun).

         A closer question in my mind is whether Agent Zuk should be permitted to testify that firearms are a tool of the trade of narcotics traffickers. Of course, I have no doubt that firearms are tools of the drug trade. See, e.g., United States v. Page, 657 F.3d 126, 130 (2d Cir. 2011) (noting “innumerable precedents” to this effect). What is less clear is whether this linkage is something for which an expert is needed-whether it is beyond the ken or knowledge of the average juror. On balance, I don't think average jurors need an FBI or DEA agent to tell them that drug dealers often use or possess firearms to protect themselves and their drugs and drug profits. I can't see the need for an expert on this issue any more than I would see the need for an expert in a bank robbery case to say that bank robbers like to wear masks or in a terrorism case to say that terrorists like to blow up bombs. The linkage is well within the everyday knowledge of an average juror. See, e.g., United States v. Castillo, 924 F.2d 1227, 1232-33 & n.1 (2d Cir. 1991) (district court erred when admitting expert testimony on certain drug dealer practices not beyond knowledge of average juror and “voic[ing] similar skepticism regarding the need for an expert witness to explain the most elementary concepts of certain well-publicized criminal schemes”); United States v. Stanley, 2016 WL 7104825, at *4 (D. Conn. 2016) (“the jury does not need an expert's opinion about the obvious proposition that drug dealers use violence and firearms to protect their drug trafficking activity.”).[1]

         For an expert to come in to state the obvious about guns and drug dealing going together not only exceeds the permissible limits of expert testimony but also comes with some unfair risk that the jury will conclude largely because of the expert's imprimatur that the gun at issue here must have had something to do with drug dealing. It is one thing for an expert to testify based on specialized knowledge about narcotics ...

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