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A federal appeals court has overturned a heroin conviction because a drug agent was allowed to testify as an expert on the meaning of the phrase: “I was there to watch someone’s back.” The 2nd U.S. Circuit Court of Appeals said the agent was wrongly allowed to use his expertise on drug lingo and drug transaction scenarios to give criminal meaning to a term in wide use. In United States v. Cruz, 02-1458, the court ordered judgment of acquittal for defendant Tommy Cruz, who had been sentenced to 110 months in prison after a federal jury in Brooklyn convicted him of possession with intent to distribute 100 grams or more of heroin. At trial before Eastern District Judge Allyne R. Ross, Special Agent Mark Tully testified about his arrest of Cruz at a restaurant on Dec. 13, 2000, and the statements Cruz made post-arrest. Cruz said he was there to “watch someone’s back” during a “deal,” but that he did not know what kind of deal it was. Tully was asked by the prosecutor to explain what he thought Cruz meant by the phrase. Judge Ross suggested that the prosecutor develop Tully’s expertise on drug transactions. Tully said, in part, “In my experience, when narcotics transactions happen like this you have people, lookouts for you. There are people that are out there to watch your back, to make sure” there are no law enforcement personnel in the area or that no one involved in the drug deal will be double-crossed. Cruz’s lawyer moved for a judgment of acquittal claiming, unsuccessfully, that there was no evidence that Cruz knew that a drug deal was going to happen. The appeals court found that the agent — led by the trial judge — had left his area of expertise and interpreted a phrase that “did not fall within the ambit of drug jargon.” Judge Thomas J. Meskill wrote for the 2nd Circuit, “Although the government may ordinarily call on law enforcement officials to decipher drug jargon, district courts, in their role as gatekeepers, must be ever vigilant against expert testimony that could stray from the scope of a witness’ expertise.” Courts, Meskill said, must pay particularly close attention in a case where a law enforcement official “is called on to testify as a fact witness but also functions as an expert for the government,” because of the “aura of special reliability and trustworthiness” conferred on law enforcement officials. “The heightened risk that a law enforcement official will stray from the scope of his expertise if he also functions as a fact witness is particularly troubling because expert testimony provided under these circumstances is especially likely to raise concerns about juror confusion,” he said. Here, the lower court “manifestly erred” by prompting the government to develop Tully’s credentials to explain the phrase. “Unfortunately, the district court in this instance failed to satisfy its obligations as a gatekeeper,” Meskill said. “The court not only allowed the government to overreach by admitting expert testimony regarding the meaning of the words that did not fall within the ambit of drug jargon, but actively assisted the government in leading Tully to stray from the scope of his expertise.” The problem with the phrase “watching someone’s back,” he said, is that it is capable of many meanings depending on the context, and there was no evidence that it had a special meaning in the world of narcotics dealing. “We do not suggest that the aforementioned phrase could never be characterized as a drug code,” Meskill said. “We simply hold that the government failed to introduce evidence to demonstrate that the phrase constituted drug jargon with a fixed meaning within the narcotics world rather than a phrase that could have equally referred to activities with no relation to narcotics transactions.” Meskill said that, even without the violation of the limits on expert testimony, the conviction of Cruz could not stand because “the record is devoid, by and large, of any evidence that Cruz knew” his alleged co-defendant possessed drugs or that he intended to sell drugs. Judges James L. Oakes and Barrington D. Parker joined in the opinion. Jeremy G. Epstein and William Hauptman of Shearman & Sterling represented Cruz. Assistant U.S. Attorneys Noah Perlman and Susan Corkery represented the government.

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