United States v. Sawyers

          ORDER RE: DEFENDANT’S MOTION IN LIMINE TO EXCLUDE TESTIMONY INTERPRETING CODED LANGUAGE [92]

          Honorable Ronald S.W. Lew Senior U.S. District Judge.

         Currently before the Court is Defendant Brian Sawyers’ (“Defendant”) Motion in Limine to Exclude Testimony Interpreting Coded Language [92] (“Motion”). In his Motion, Defendant seeks to exclude testimony proffered by the government interpreting coded language in conversations between Defendant and a confidential informant (“CI”). For the reasons stated below, this Court DENIES Defendant’s Motion [92].

         A. BACKGROUND

         The present Motion arises from audio and video recorded interactions, which the government alleges were drug deals, between Defendant and the CI. The government alleges that on February 3, 2012, the CI spoke to Defendant at Defendant’s place of business to try to arrange a drug deal. Pl.’s Opp’n (“Opp’n”) 2:7-8, ECF No. 95. The government contends that later that same day, the CI met Defendant and purchased approximately one ounce of crack cocaine for $700. Id. at 2:20-22. The government alleges that on March 1, 2012, the CI met again with Defendant at Defendant’s place of business. The government alleges that during their meeting, the CI told Defendant that he wanted to purchase crack cocaine. Id. at 2:24-3:2. The government maintains that shortly thereafter, at Defendant’s home, Defendant sold the CI approximately two-and-a-half ounces of crack cocaine in exchange for $1, 700. Id. at 3:5-9. The government states that during these two encounters, Defendant and the CI were recorded by audio and video surveillance equipment. The government further states that “[d]uring the course of these recorded meetings, calls, and drug deals, [D]efendant and the CI used coded language and/or slang in [] discussing the terms of the drug transactions.” Id. at 3:10-15.

         Defendant is charged in a two-count indictment with (1) distribution of cocaine base in the form of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C)(iii) (Count One); and (2) distribution of cocaine base in the form of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C)(iii) (Count Two). Trial is set for August 2, 2016.

         On October 28, 2015, the government provided Defendant with its expert disclosures, which notified Defendant that the government intended to call, among others, Los Angeles Police Department (“LAPD”) Detective Christian Mrakich (“Mrakich”) as a drug expert, who will testify regarding, among other things, the use and meaning of coded language or slang used in the recordings between Defendant and the CI. Opp’n, Decl. of Ann C. Kim (“Kim Decl.”) ¶ 2, Ex. A.

         On July 15, 2016, the government supplemented its expert disclosures with regard to the drug expert testimony that would be elicited at trial, including, but not limited to, the use of coded language by drug traffickers and distributors, and specifying the specific code words and/or slang to which Detective Mrakich would testify. Kim Decl. ¶ 3, Ex. B.

         On July 22, 2016, Defendant filed the present Motion in Limine seeking to exclude Mrakich from testifying about certain words / phrases on the grounds that the proffered testimony is not necessary to help the trier of fact understand the evidence or determine a fact at issue.

         B. DISCUSSION

         1. Legal Standard

         “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or otherwise specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue.” Fed.R.Evid. 702. An expert’s opinion may be based on hearsay or facts not in evidence, where the facts of data relied upon are of the type reasonably relied on by experts in the field. See Fed.R.Evid. 703. An expert may also provide opinion testimony even if it embraces an ultimate issue to be decided by the trier of the fact. See Fed.R.Evid. 704.

         The Ninth Circuit has held that the admissibility of expert testimony generally turns on the trial court answering the following questions: (a) whether the opinion is based on scientific, technical, or other specialized knowledge; (b) whether the expert’s opinion would assist the trier of fact in understanding the evidence or determining a fact in issue; (c) whether the expert has appropriate qualifications; (d) whether the testimony is relevant and reliable; (e) whether the methodology or technique the expert uses “fits” the conclusions; and (f) whether the probative value is substantially outweighed by the risk of unfair prejudice, confusion of issues, or undue consumption of time.” United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000).

         2. Analysis

         a. Mrakich’s Testimony is ...