Monday, January 26, 2015

U.S. v. Vann Part II: Experts and Closing Arguments

Yesterday, we blogged about two of the four issues addressed in United States v. Vann. We wrap up with the other two issues today. We'll have to tell you a bit about the facts first (something we did not have to do yesterday).
Rayvell Vann flew to Los Angeles, then decided to take the train back to Kansas City. Two hours prior to departure, he bought a ticket. A confidential source tipped off law enforcement "about the unusual circumstances of Vann's Amtrak reservation." The train stopped in Albuquerque. A DEA agent boarded, conversed with Vann, then asked to search his bags. Vann consented. The officer located an "out-of-place large pink gift box." Somehow, this find led Vann to admit that he was transporting codeine and painkillers. The officer arrested Vann and got a search warrant for the box. Aside from the codeine and painkillers, the box also contained roughly 200 grams of PCP. Vann admitted that he bought PCP in Los Angeles to sell in Nebraska, but claimed that he mailed the PCP and had no idea that the box also contained PCP. A jury found otherwise. Two evidentiary challenges on appeal fell on deaf ears:
  1. Expert Testimony on Drug Trafficking
At trial, a DEA agent testified as an expert in drug trafficking. This is unfortunately common practice these days. Vann actually conceded that the agent was an expert, but thought his testimony unreliable, particularly his opinion testimony that "PCP wholesalers do not typically package PCP for buyers." This testimony inferred that Vann himself packaged the PCP.
We pause to note some confusion with all of this. The PCP was found in a large pink gift box. How it got there was an important question in light of Vann's defense. And remember, Vann admitted that he knew of the other items in the pink gift box. Without knowing exactly what the agent testified to, it is nearly impossible to understand this decision. Was there "expert testimony" that codeine and pain killers were not distributed in large pink gift boxes? Or just "expert testimony" that a PCP wholesaler would not package PCP in a large pink gift box? How is PCP packaged?
The decision is just a smattering of unspecific statements about the agent's history and experience with drug interdictions, followed by generalized conclusions on the agent's reliability.
We have no idea what this opinion means moving forward, but it cannot be a good thing. We can envision the government interpreting this decision to allow agents to testify to anything under the guise of "expert testimony on drug trafficking." Indeed, the Court noted a recent case limiting such testimony, but called that case "the exception not the rule." We would encourage you to find some limiting principle in this decision if you have a similar issue (but we are unsure exactly what the limiting principle would be).

    2.  Prosecutorial Misconduct

On appeal, Vann alleged that certain statements made by the prosecutor were improper. He did not object below, thus review was only for plain error. The Court found no error at all.
The government argued that Vann could have "without incident walked on a plane with codeine and the painkillers," and so he must have took the train because of the PCP. But Vann noted that the codeine bottles were nameless, and the agent/expert only testified that one could take on a plane a bottle of codeine pills that had a name on it. So the government's argument misstated its own evidence. The agent's testimony also indicated that he had intercepted codeine cough syrup on trains, and Vann thought this testimony undermined the government's codeine-on-a-plane theory.
Again, this decision leaves us scratching our heads. The Court talks about circumstantial evidence and how the government's argument was proper "lawyering" based on "reasonable inferences." We think what the Court meant is that the government's argument was not very good, but that does not mean that it was improper. This makes some sense. But the decision is too amorphous to fully understand.
Vann's final complaint had to do with the government's assertion that Vann's "reticent reaction" when the agent's found the PCP was common of dealers, not low-level drug mules. The problem with this comment was that the government never presented any evidence on this "reticient reaction." The Tenth Circuit brushed this aside, finding that the comments were in reference to Vann's "reaction and demeanor when he was arrested." With that conclusion, we are now completely lost, considering that the government conceded it failed to introduce evidence of this reaction at trial.

In the end, we wish we could provide more guidance on this decision, but we cannot. Let's hope that it fades away.  

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