United States v. Yunior Fernandez ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 19-2388
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UNITED STATES OF AMERICA
v.
YUNIOR R. FERNANDEZ,
Appellant
______________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1:18-cr-00007-003)
District Judge: Hon. Yvette Kane
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 22, 2020
Before: AMBRO, MATEY, and FUENTES, Circuit Judges.
(Opinion filed: January 28, 2020)
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OPINION*
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FUENTES, Circuit Judge.
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
Yunior R. Fernandez appeals his judgment of conviction, asserting that the District
Court erred in permitting a law enforcement officer to testify as drug trafficking expert.
We will affirm.
I.1
Following an investigation and traffic stop, Fernandez was charged in an
Indictment with two counts: (1) conspiracy to distribute and possess with intent to
distribute, and (2) attempt to possess with intent to distribute, heroin and
methamphetamine.2
Prior to trial, Fernandez, asserting that the government narcotics expert testimony
would fail to assist the jury and would not apply case-specific facts, moved in limine
under Federal Rule of Evidence 702 to preclude it. At trial, Fernandez renewed his
objection, which the District Court overruled. Shawn Wolfe, a Pennsylvania State Police
Trooper, testified generally about drug trafficking methods, including typical quantities
used and sold, prices, communication methods, transportation, and courier use. The jury
convicted Fernandez of both counts, and this timely appeal followed.
1
As we write solely for the parties, we recite only the facts essential to our decision.
2
21 U.S.C. § 846; 18 U.S.C. §§ 841(a)(1), (b)(1)(A)(i), (b)(1)(A)(i)(viii).
2
II.3
“Under the Federal Rules of Evidence, a trial judge acts as a gatekeeper to ensure
that any and all expert testimony or evidence is not only relevant, but also reliable.”4
Rule 702 requires that (1) an expert witness be qualified, (2) the testimony be reliable and
(3) the testimony assist the fact-finder.5 This case involves only the third requirement,6
“fit,” in which we assess “whether [the] expert testimony proffered . . . is sufficiently tied
to the facts of the case that it will aid the jury in resolving a factual dispute.”7 “[T]his is a
question of relevance,” and “expert evidence which does not relate to an issue in the case
is not helpful.”8 Following “a liberal policy of admissibility,” Rule 702’s “standard is not
that high, but is higher than bare relevance.”9
3
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s decision to
admit expert testimony for abuse of discretion. United States v. Schiff, 602 F.3d 152, 161
(3d Cir. 2010). “An abuse of discretion arises when the District Court’s decision rests
upon a clearly erroneous finding of fact, an errant conclusion of law or an improper
application of law to fact, but to the extent that the District Court’s decision involved a
legal interpretation of the Federal Rules of Evidence, our review is plenary.” Id. (internal
quotation marks omitted) (quoting Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir.
2008)).
4
Schiff, 602 F.3d at 172 (quoting Pineda, 520 F.3d at 243).
5
Id.
6
Fernandez does not dispute that Wolfe’s experience qualified him as an expert and that
his testimony was reliably based on his experience.
7
Schiff, 602 F.3d at 173 (alterations in original) (internal quotation marks omitted)
(quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993)).
8
Id. (quoting In re TMI Litig., 193 F.3d 613, 670 (3d Cir. 1999)).
9
Id. (internal quotation marks omitted) (first quoting Kannankeril v. Terminix Int’l, Inc.,
128 F.3d 802, 806 (3d Cir. 1997); then quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d
717, 745 (3d Cir. 1994)).
3
Experienced narcotics agents’ expert testimony “is often helpful in assisting the
trier of fact understand the evidence.”10 “It is well established that experts may describe,
in general and factual terms, the common practices of drug dealers.”11 Similarly, “[i]t is
well[ ]established that government agents may testify to the meaning of coded drug
language.”12 “[E]xperienced narcotics agent[s] may testify about the significance of
certain conduct or methods of operation to the drug distribution business.”13
The District Court did not abuse its discretion by allowing Wolfe to testify
generally about drug trafficking without explicit reference to Fernandez’s specific case
facts.14 Contrary to Fernandez’s arguments, Wolfe’s testimony did not describe the
10
United States v. Watson, 260 F.3d 301, 307 (3d Cir. 2001) (quoting United States v.
Griffith,118 F.3d 318, 321 (5th Cir. 1997)). Fernandez’s attempts to contest this and
other precedents is unpersuasive. While the review in Watson was for plain error, in
recognizing that it was “well established” that experienced narcotics agents may testify as
experts, Watson does not identify any error at all. Id. at 306–07. To the extent that
Fernandez acknowledges these cases as contrary authority and urges their reversal, “the
holding of a panel in a precedential opinion is binding on subsequent panels.” Reilly v.
City of Harrisburg, 858 F.3d 173, 177 (3d Cir. 2017) (quoting I.O.P. 9.1).
11
Watson, 260 F.3d at 309.
12
Id. at 307.
13
Id. (second alteration in original) (quoting Griffith,118 F.3d at 321).
14
Although Fernandez asserts error because Wolfe lacked specific and personal case
knowledge, a qualified expert need not have personal knowledge of a matter, Fed. R.
Evid. 602, and he “may base an opinion on facts or data in the case that the expert has
been made aware of,” Fed. R. Evid. 703. Nor did the District Court abuse its discretion
in permitting Wolfe’s general testimony because he did not review case reports or
specifically address the mental states of defendants. Wolfe framed his testimony in
hypotheticals, which track and apply the allegations of the case without rendering a
conclusion about any defendant’s mental state, an “ultimate issue” left “for the trier of
fact alone.” Fed. R. Evid. 704; see Watson, 260 F.3d at 309.
4
potentially irrelevant “‘background’ or ‘culture’ of illegal activity,” 15 but instead
explained narcotics trafficking tactics relevant to the elements of the charged offenses
and with the potential to assist the jury in determining guilt.16
III.
For these reasons, we will affirm the judgment of the District Court.
15
Appellant Br. at 11; cf. United States v. Bostick, 791 F.3d 127, 150–51 (D.C. Cir. 2015)
(exclusion of expert testimony on gang culture and violence not abuse of discretion
where gang formation and membership were not relevant to charges).
16
See Schiff, 602 F.3d at 173.
5