Prosecutor’s use of an agent as an expert witness is plain error

We’ve all been in trials where the government tries to use a case agent as an expert witness to testify as to why what the defendant was doing is criminal.  The 11th Circuit decided an important case (U.S. v. Hawkins) today putting an end to this practice.

That brings us to the matter of Agent Russell’s trial testimony. Hawkins and McCree argue that Agent Russell “went far beyond permissible testimony” when he repeatedly provided “speculative interpretive commentary” on the meanings of phone calls and text messages and gave his opinions about what was occurring during and in between those communications. We agree.
Agent Russell—a lieutenant with the Montgomery Police Department assigned to the DEA’s High Intensity Drug Trafficking Area task force from 2011 through 2015—was both the lead case agent in the investigation and the Government’s principal witness at trial. He provided extensive testimony about the drug trade, the investigation, and the intercepted phone calls, and—contrary to the Government’s puzzling contention otherwise—he was presented as an expert to the jury.
Hawkins and McCree acknowledge that experienced narcotics agents may testify as experts to help juries understand the drug business, codes, and jargon; indeed, this Court has repeatedly so held. See, e.g., Holt, 777 F.3d at 1265 (“‘The operations of narcotics dealers are a proper subject for expert testimony under [Federal Rule of Evidence] 702,’ and ‘an experienced narcotics agent may testify as an expert to help a jury understand the significance of certain conduct or methods of operation unique to the drug distribution business.’” (quoting United States v. Cesar Garcia,14 447 F.3d 1327, 1335 (11th Cir. 2006))). But that is not the problem here.
Much of Agent Russell’s trial testimony “was not specific to his interpretation of drug codes and jargon” and “went beyond interpreting code words to interpret conversations as a whole.” United States v. Emmanuel, 565 F.3d 1324, 1336 (11th Cir. 2009). During his extensive time on the witness stand, Agent Russell “interpreted” unambiguous language, mixed expert opinion with fact testimony, and synthesized the trial evidence for the jury. His testimony strayed into speculation and unfettered, wholesale interpretation of the evidence. Allowance of this testimony constituted plain error.

Judges hit "reply all" too

The DC district court had a bit of a dust-up this week when an email war between judges went public.  From the Washington Post:

A clash between judges on two federal courts in Washington has created an early, unusual test of new rules intended to make sure courthouses across the country are civil, harassment-free workplaces.

And it has exposed the perils of the reply-all email, even among judges for life.

A U.S. District Court judge forwarded an email to about 45 judges and their staffs to flag an upcoming climate-change seminar co-sponsored by the research and education agency of the judiciary branch. His note said, “just FYI.”

Within an hour a judicial colleague responded sharply to the group, questioning the first judge’s ethics and urging him to get “back into the business of judging, which are what you are being paid to do.” He also said, “The jurisdiction assigned to you does not include saving the planet.”

The correspondence, which sparked a lively exchange involving other judges, amounted to an unusual exposure of private conversations on the federal bench. It also poses the question of how the judiciary now will police itself in such instances.

***

The controversy began the evening of July 3, when Sullivan forwarded the invitation.

Soon after, Randolph, who serves on the U.S. Court of Appeals for the District of Columbia Circuit, replied all. He chided Sullivan for “subjecting our colleagues to this nonsense” and suggested he had crossed an ethical line. He asked: “Should I report you? I don’t know.”

“The jurisdiction assigned to you does not include saving the planet. A little hubris [sic] would be welcomed in many of your latest public displays,” Randolph wrote.

“The supposedly science and stuff you are now sponsoring is nothing of the sort,” his email continued. “Get out of this business and back into the business of judging, which are what you are being paid to do.”

Problem is that the seminar was approved by the Federal Judicial Center (where Chief Justice Roberts sits) forcing Randolph to back down.  He issued a half-apology:

More than two weeks after his initial note, Randolph again addressed the email list. After learning more about the Environmental Law Institute’s program and the judiciary’s co-sponsorship, he wrote: “While I continue to disagree with their conclusion about the propriety of the program, I think their position is fairly held.”

Given that, he wrote, “I do not believe that Judge Sullivan acted improperly in circulating the invitation to ELI’s program.”

Oh, how nice of you. I know the judges in our district would not give you acceptance points for that.

In addition to judges behaving badly, the executive branch is under more fire. This time in Kansas City. This is pretty remarkable:

A federal judge in a scathing order this week held the U.S. Attorney’s Office in Kansas in contempt of court for its pattern of misrepresentations, obfuscation and lack of cooperation during an investigation into a growing scandal.

A ruling by U.S. District Court of Kansas Judge Julie Robinson late Tuesday capped a three-year probe that examined the extent to which federal prosecutors in Kansas had accessed recordings of confidential phone calls and meetings between defense attorneys and their clients at a private prison in Leavenworth.

Conversations between clients and their attorneys are confidential in nearly all aspects. Robinson found that federal prosecutors in Kansas determined on their own that they could access recordings of these discussions, tainting several criminal cases along the way.

At least three criminal defendants in Kansas have had their sentences vacated or their indictments dismissed as a result of the scandal. More than a hundred others have filed petitions for similar relief.

“The Government’s wholesale strategy to delay, diffuse, and deflect succeeded in denying the individual litigants their day in court for almost three years,” Robinson wrote as part of a 188-page ruling.

Judge Rudy Ruiz investiture

It was a really nice event to a packed house (including two overflow rooms) with heartfelt speeches from Justice Robert Luck, Judge Federico Moreno, and from Judge Ruiz himself.

Meantime, in the 11th Circuit, Judge Newsom wrote an opinion with a shoutout to teenage readers:

The puffery “doctrine” presumes a relatively (but realistically) savvy consumer—the general idea being that some statements are just too boosterish to justify reasonable reliance. In general parlance, “puffing” is “seller’s or dealer’s talk in praise of the virtues of something offered for sale.” Webster’s Third New International 1838 (2002). Perhaps closer to home for our purposes, it refers to an “expression of an exaggerated opinion—as opposed to a factual misrepresentation—with the intent to sell a good or service.” Black’s Law Dictionary 1428 (10th ed. 2014). As Judge Learned Hand once put it, “[t]here are some kinds of talk which no sensible man takes seriously, and if he does he suffers from his credulity.” Vulcan Metals Co. v. Simmons Mfg. Co., 248 F. 853, 856 (2d Cir. 1918). Think, for example, Disneyland’s claim to be “The Happiest Place on Earth.” Or Avis’s boast, “We Just Try Harder.” Or Dunkin Donuts’s assertion that “America runs on Dunkin.” Or (for our teenage readers) Sony’s statement that its PlayStation 3 “Only Does Everything.” These boasts and others like them are widely regarded as “puff”— big claims with little substance.

Raag Singhal officially nominated to the District Court

Back in May, the blog reported that state court judge Raag Singhal was being vetted for an open district court seat in the Southern District of Florida.  Today, President Trump made his nomination official.  Congrats to Judge Singhal.  He's going to be great.  From the press release:

Anuraag “Raag” Singhal of Florida, to serve as Judge on the United States District Court for the Southern District of Florida.

Raag Singhal serves as a Circuit Court Judge for the 17th Judicial Circuit in Broward County, Florida, having been appointed to the bench by then-Governor Rick Scott in 2011. Before his appointment, Judge Singhal was in private practice in Fort Lauderdale where his practice focused on criminal defense in both the trial courts and courts of appeals. Early in his career, Judge Singhal served as a prosecutor in the Office of the State Attorney. Judge Singhal earned his B.A. from Rice University and his J.D. from Wake Forest University School of Law.

Gerald Tjoflat to take senior status

Big news out of the 11th Circuit today, as Judge Tjoflat is taking senior status upon the confirmation of his successor.  Tjoflat turns 90 in December and was a member of the 5th Circuit before the court split.  He is the longest serving judge in active service.

Was this cross examination “scandalous”? (TWO UPDATES)

** UPDATED BELOW WITH JUDGE AMY STEELE DONNER'S COMMENTS

There was a little dust-up on the FACDL Listserv this weekend over a cross examination conducted by an assistant public defender named Carl Vizzi back in the mid-80s.  I had never heard of Vizzi or this cross, but the AP covered it back in the day.  The cross won Vizzi’s client an acquittal and also landed him in jail.

During cross-examination of the alleged victim on Wednesday, Vizzi called her an exhibitionist and her husband a voyeur, adding, ″You turn tricks, don’t you?″

At one point, Vizzi slammed two quarters on the witness stand and said, ″You’ll dance nude for 50 cents. What would you do for a dollar?″

The woman charged that the defendant kidnapped and raped her, but the man claimed he had paid the woman for sex.

Holding Vizzi in contempt, Donner said, ″Any rape victim who had the misfortune to observe your conduct would have never continued with a rape prosecution.

″The cross-examination was scandalous, to say the least.″

Vizzi told Donner that he did not mean to violate her orders.

″I defended this man vigorously because I honestly believed he was falsely accused,″ he said.

How would this cross have gone over in today’s climate where the ABA in considering a resolution that would shift the burden to defendants to show affirmative consent. After numerous organizations opposed the resolution, it appears to be dead.

UPDATE — A helpful commenter points out the 3rd DCA case on the contempt order, which was upheld. Some additional cross, which formed the basis of the contempt order:

"Q. Isn't this place a front for prostitution?
MR. BAGLEY: Objection; this is irrelevant, Judge.
THE COURT: Sustained.
. . . .
BY MR. VIZZI:
Q. Isn't it true that girls that work at Live Peeps will often take coffee breaks to do things with the customers who liked how they danced and liked their body —
MR. BAGLEY: Objection.
Q. — and wanted to do a little bit more with them that could be done in those rooms where you work?
Isn't it true that that happens all the time?
MR. BAGLEY: Objection; improper question. It's a compound question and furthermore its irrelevant.
THE COURT: Sustained."
Later, he engaged in the following cross examination of the complainant which led to his contempt conviction:

"Q. Isn't it true that your 19-year-old now-husband doesn't like you to work after hours doing extra things other than work at Live Peeps?
MR. BAGLEY: Objection, your Honor; that's irrelevant.
THE COURT: Sustained. Move on, Mr. Vizzi.
BY MR. VIZZI:
Q. Isn't it true that your husband is a voyeur and you're an exhibitionist and he doesn't like it to get any further than that. He gets sexual gratification when you take your clothes off, but he gets very angry when you perform tricks with customers?
MR. BAGLEY: Objection.
THE COURT: Come to side-bar, Mr. Vizzi.

SECOND UPDATE -- in the comment section, Judge Amy Steele Donner makes the following comments.  Thank you for commenting for the blog Judge Donner:

He actually was a pretty bad lawyer and that was the only case he won in front of me. He also came to my house with his baby begging not to be put in jail. Coming to my house uninvited was also a violation of his oath and the order he violated was the rape-shield law, not that I personally enacted it. The prosecutor was the esteemed former circuit judge, Gerald Bagley who would definitely agree with my analysis of his trial behavior. Amy Steele Donner

One *billion* dollars in fraud

Pleading to a billion dollar fraud case is tough because the guidelines are so high. So sometimes it may be better to take your chances at trial (unless the defendant is permitted to plead to a 371 conspiracy with a 5-year cap). Here’s a Miami Herald article about a plea in the Woodbridge case for Robert Shapiro:

The founder of a South Florida real estate company pleaded guilty Wednesday to orchestrating a $1.3 billion Ponzi scheme that bilked thousands of mostly elderly investors.

Robert H. Shapiro, the former CEO of the Woodbridge Group of Companies, admitted in Miami federal court that he “misappropriated” between $25 million and $95 million of the investors’ money to himself and his family to pay for an estate in the Los Angeles area, chartered planes, global travel, jewelry, diamonds and vintage wines. Shapiro also collected artworks by Pablo Picasso, Marc Chagall, Pierre-August Renoir and Alberto Giacometti. He also owned a Mercury convertible.

Now, all those luxury items belong to the feds.

Shapiro, 61, who was arrested in April, faces up to 20 years for wire and mail fraud conspiracy and an additional 5 years for tax evasion at his sentencing on Oct. 15 before U.S. District Judge Cecilia Altonaga. In pleading guilty, Shapiro avoids going to trial but still is looking at a total of 25 years in prison.

Should we give this op-ed to all jurors?

It’s a very powerful piece about how important jury service is.

Plus, it will combat the idea that jury service is to rubber stamp prosecutors.  There are so many signals around courthouses about law enforcement (the posters in jury rooms saying that if you see something, you should say something; the “law-enforcement cafe;” and so on), that this op-ed might be a good way to temper it.

The conclusion:

We are told that there is a great divide in our country, and at the voting booth that is apparent. But in the jury room, we were just 12 random people pulled out of our daily lives and asked to administer the final decision in a case. It felt like our justice system at work.

I’ll vote in November, and it will be important. But I don’t think I’ll ever feel as significant as a citizen as I did in that jury room.

Meantime, let me be a proud dad for a moment and post the op-ed of my daughter in today’s Miami Herald:

And though I identify as an activist, I wish I did not have to. There is a large part of me that resents the fact that fellow teens and I have to wake up and focus on whether the government will pass the simplest background checks bill, or if there will be a shooting near me that kills someone I know.

I resent it because it should be adults and elected government officials focusing on these issues.

I would much rather spend my time dancing around the house, modeling clothes and makeup for my friends, and going to the beach. You know, typical things that those in government think teenagers do when they call us incompetent and assert that we do not know anything about politics, all the while allowing the gun violence epidemic to continue in an endless cycle. But I can’t.