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United States v. Abdeljawad

United States District Court, D. New Mexico

April 17, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
FIDAL ABDELJAWAD, and ASHLEY WATSON a.k.a. “Lisa Pena”, Defendants.

          MEMORANDUM ORDER AND OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS' JOINT MOTION TO EXCLUDE PROPOSED EXPERT TESTIMONY, OR IN THE ALTERNATIVE, FOR A DAUBERT HEARING

         This matter comes before the Court on Defendants' Joint Motion to Exclude Proposed Expert Testimony, or in the Alternative, for a Daubert Hearing, filed March 17, 2017 (Doc. 66). Having considered the parties' written and oral arguments and the applicable law, the Court finds that Defendants' Motion is well-taken in part and not well-taken in part and, therefore, is GRANTED in part and DENIED in part.

         BACKGROUND

         The pertinent background facts are set forth in the Government's brief (Doc. 67). The Indictment charges Defendants Fidal Abdeljawad and Ashley Watson (a.k.a. “Lisa Pena”) with Conspiracy in violation of 21 U.S.C. § 846; Possession with Intent to Distribute Controlled Substances in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C); and Aiding and Abetting in violation of 18 U.S.C. § 2.

         The Government filed its Notice of Prospective Witnesses on February 10, 2017 (Doc. 64). The Government identifies DEA Special Agent Jeffrey McKinley (“Agent McKinley”), one of the DEA agents assigned to this case, to testify regarding, among other topics, “the judicially authorized interception of wire and electronic communications to and from telephone number 505-870-2105, the authentication of pertinent intercepted communications, [and] the interpretation of coded and abstract language in intercepted communications.” Agent McKinley is also expected to testify regarding the progression of the DEA investigation into Defendants and the search and seizure of the synthetic cannabinoids. The Government has not formally identified that it plans to call Agent McKinley as an expert witness, though the Government states it sent an e-mail to defense counsel on September 9, 2016, in which the Government advised it planned to call Agent McKinley to testify as a lay witness but that Agent McKinley's testimony also falls within the ambit of Rule 702 to the extent it involves special skill, training, or specialized knowledge.

         Defendants ask the Court to prohibit the Government from introducing Agent McKinley's testimony regarding the meaning of drug code words. The government responds that Agent McKinley's testimony regarding drug coded communications is admissible under Rules 701 and 702, and the probative value of the testimony outweighs any unfair prejudice or confusion.

         LEGAL STANDARD

         Federal Rule of Evidence 701 allows a lay witness to provide opinion testimony when the testimony is:

(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Fed. R. Evid. 701. Alternatively, Federal Rule of Evidence 702 provides that “[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 other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and ...

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