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While expressing a concern for potential abuse, a federal appeals court has ruled that a drug agent’s dual role as investigator and expert witness did not render the narcotics trafficking trial of two men unfair. The 2nd U.S. Circuit Court of Appeals said that the expert testimony of Special Agent Richard Biggs “exceeded its proper bounds” by going beyond the mere translation of code words used by drug dealers and expressing opinions based on his own investigation of the case. Nonetheless, the 2nd Circuit said there was ample evidence to convict the two men. In United States v. Dukagjini, 00-1392, the appeals court discussed the dangers posed when an agent, allowed to testify as an expert on a limited basis, goes beyond his general experience with the drug world and gives opinions based on his own involvement in the investigation. Biggs had testified at the 1999 trial of Samuel Curtis Griffin and Alvin Leon McGee, which ended with a jury voting to convict both men of conspiracy to distribute drugs. Griffin was sentenced to serve 10 years and 1 month in prison and McGee was sentenced to serve 7 years and 5 months. The trial judge, Chief Judge David G. Larimer of the Western District of New York, had said that Biggs should limit his expert testimony to explaining the “words of the trade, jargon” that the jury would hear on surveillance tapes. Biggs went on to translate for the jury, telling the panel that the phrase “tasted a little funny” meant crack cocaine, and that the question “Is it dry?” refers to whether heroin is too wet to sell. But the agent was also allowed to roam farther afield than simply explaining code words. At one point, he told the jury that a recording of one man telling Griffin that five people were trying to get in touch with him meant he “has five customers that need to be supplied with cocaine or heroin.” On the appeal, Chief Judge John M. Walker said that “many parts of his testimony appeared to be based primarily upon his familiarity with the specifics of the case, and not solely upon Biggs’s general expertise about the drug trade.” Walker said the 2nd Circuit has “consistently upheld” expert testimony that explains drug dealer operations and the use of code words, and that the court has also upheld the use of expert testimony by agents who “also testified as fact witnesses.” DUAL ROLE But after rejecting several arguments by the defendants, Walker said their “final argument is their strongest: Biggs’ dual roles as case agent and expert witness allowed him to serve as a summary witness, improperly testifying as an expert about the general meaning of conversations and the facts of the case, rather than just about the meaning of code words.” Among the problems posed by the agent’s dual role, he said, was the “risk that the expert testimony will stray from applying reliable methodology and convey to the jury the witness’s own conclusions about the case, the other witnesses, and the defendants.” And it will be difficult for some jurors to sort out “whether the witness is relying on his general experience and reliable methodology, or relying on what he knows about the case,” the judge said. “Especially when, as here, the witness states that he is basing his conclusions on his knowledge of the case, a juror understandably will find the tangled thicket of expert factual testimony difficult to navigate,” said Walker. Judge Larimer imposed proper limits on the agent, but then failed to enforce those limits, Judge Walker said, allowing Biggs to depart from “reliable methodology by providing physical descriptions of what was happening during the conversations or what was in the minds of the participants of the conversations.” Walker said the 2nd Circuit has been “aware” of the risk of having agents testify as experts in cases they have been involved in, but has nonetheless allowed the practice as long as trial judges maintain the proper boundaries. “While we decline to prohibit categorically the use of case agents as experts, the Federal Rules of Evidence and the Supreme Court place the responsibility upon the district courts to be vigilant gatekeepers of such expert testimony to ensure that it is reliable and not substantially more prejudicial than probative,” he said. Walker said, however, that the admission of the testimony was harmless given the abundance of other evidence against the defendants. Senior Judge Thomas J. Meskill and Southern District of New York Judge John G. Koeltl, sitting by designation, joined in the opinion. Jeffrey Wicks and Craig D. Chartier of Bansbach, Zoghlin, Wicks & Wahl in Rochester, N.Y., represented Griffin. Edward S. Zas of the Legal Aid Society’s Federal Defender Division represented McGee. Assistant U.S. Attorneys Christopher P. Tuite and Kathleen M. Mehltretter represented the government.

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