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United States v. Thomas

United States District Court, D. New Mexico

December 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
KENJA TRERON THOMAS, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING IN PART DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EXPERT OR OPINION TESTIMONY

         THIS MATTER is before the Court on Defendant's Motion in Limine to Exclude Improper Opinion Testimony as well as Undisclosed Expert Testimony, filed September 13, 2018 (Doc. 39), , Defendant's Motion in Limine to Exclude Proffered Expert/Opinion Testimony, filed on November 7, 2018 (Doc. 65), and Defendant's Addendum thereto, filed November 9, 2018 (Doc. 69).

         Having reviewed the pleadings and the applicable law, the Court finds that the Motion is not well-taken and is, therefore, DENIED IN PART. The Court will hold a hearing to hear evidence related to the proposed experts' qualifications and the reliability of the proposed expert testimony.

         BACKGROUND

         Defendant is accused of violating 21 USC §§ 841(a)(1) and (b)(1)(A), Possession with Intent to Distribute 50 Grams and More of Methamphetamine. Defendant was traveling on a Greyhound bus through Albuquerque. While waiting for the bus to depart from Albuquerque, Defendant allowed DEA Special Agent Jarrell Perry to conduct a search of his belongings. SA Perry found an alleged controlled substance, methamphetamine, in the neck pillow.

         Defendant seeks to exclude expert opinion testimony of SA Perry and Officer Oscar Villegas.

         The Government filed a Notice of Intent to Offer Opinion Testimony of SA Perry. Doc. 48. The Notice provided:

SA Perry's testimony will include specialized knowledge and experience regarding narcotics investigations including interdiction operations derived from his education, training, and professional experience. SA Perry will testify that the amount of methamphetamine seized in this investigation is consistent with distribution, and will offer an opinion as to the street value as to the seized narcotics. SA Perry's testimony may include his knowledge of methamphetamine, its manufacturing origins, its properties and nature, drug terminology, and how it was packaged for distribution. SA Perry may also opine as to the general drug trafficking geographical routes and patterns.”

Doc. 48.

         The Notice also provides that SA Perry has approximately twenty years of law enforcement experience with the DEA. The Notice attaches his curriculum vitae, which asserts he has been involved in over 1, 500 narcotics investigations.

         The Government also submitted a notice of intent to call Officer Villegas. Doc. 55. Officer Villegas has twenty years of experience with the Albuquerque police department, and seven years of experience with the Pojoaque Tribal Police. Officer Villegas's testimony is focused on testifying that various indicia are not consistent with personal use but are consistent with distribution. The Notice provided as follows:

Officer Villegas's testimony will include specialized knowledge and experience regarding narcotics investigations including operations that involved personal use amounts of narcotics. Officer Villegas will testify that the amount of methamphetamine seized in this investigation is not consistent with personal use. Officer Villegas's testimony may include his knowledge of personal use amounts methamphetamine, how a personal use amount of methamphetamine is packaged, how much a serious methamphetamine addict could consume during a twenty-four hour period, how addicts typically have drug paraphernalia in their possession, and also the physical characteristics associated with an addict, such as scars, missing teeth, and twitchiness. Officer Villegas may also opine that methamphetamine addicts typically do not travel with large quantities of methamphetamine using public transportation.

See Doc. 55.

         The notices request that the Court delay making a qualifications and reliability determination until the proposed experts testify at trial. Defendant also filed a motion for sanctions, alleging the Government filed the expert notices late pursuant to the Rule 16 standard discovery order. At a pretrial conference, the Court found any late-filed notice of intent to call expert witness to be moot because the trial was continued and directed the parties to file Daubert motions if necessary. Defendant filed a Daubert motion to exclude these two proposed experts. Doc. 65.

         LEGAL STANDARD

         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 ...

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