Berens, UNITED STATES ATTORNEY' S OFFICE, Grand Rapids, Michigan, for Appellee.
Rios and Casillas were the only ones to go to trial—the others pleaded guilty and were sentenced, and we recently resolved the appeals of nine co-defendants who challenged the sentences they received.
The district court did not clarify the situation when instructing the jury, stating only: “You've heard the testimony of Kris Haglund from the Holland Police Department who testified both as a fact and as an opinion witness. Accordingly, even if Haglund's testimony did not exceed the scope of Rule 702, his overall presentation as a dual fact-expert witness without further demarcation or explanation to the jury was in error.4. Any error—either the admission of some expert testimony that exceeded the scope of Rule 702 or the confusing mixing of Haglund's expert and fact testimony—was harmless. Confrontation Clause Rios and Casillas also argue that Bevacqui and Haglund based portions of their expert testimony on hearsay in violation of the Confrontation Clause of the Sixth Amendment, which provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.” U. Thus, the Confrontation Clause is concerned with the use of experts to transmit particular testimonial statements, or their specific substance, to the jury. The defendants are more specific with regard to Detective Haglund, Rios Appellant Br. at 27, and the trial record makes clear that Haglund's expert opinion was influenced by hearsay in three ways: First, in discussing his history of investigating gangs in Holland, Detective Haglund testified that he “spoke to a lot of informants in an attempt to kind of understand what was going on in our community at the time,” and admitted to having “listen[ed] to jail conversations,” “read jail letters,” and “[i]nterview[ed] people.” R. He was asked whether he had interviewed someone who went through the process and then explained: “He was taken to a different location from where they were at originally and was beaten by several Latin Kings throughout the face, the body, and suffered injuries.” R.
This was problematic because “[s]eamlessly switching back-and-forth between expert and fact testimony does little to stem the risks associated with dual-role witnesses.” York, 572 F.3d at 426. Nor did anyone explain that the jury could consider Haglund's status as a key fact witness for the government in evaluating the credibility of his expert testimony. Palacios, 677 F.3d 234, 243 (4th Cir.) (gang expert's testimony did not violate Crawford, even though the expert's views were based in part on discussions with other officers and interviews with gang members and victims, because the expert's testimony “did not specifically reference any of these interviews”), cert. 545 F.3d at 198; see also Garcia, 793 F.3d at 1213 (“An important consideration in distinguishing proper testimony from parroting is the generality or specificity of the expert testimony.”). As discussed, however, merely basing an expert opinion on testimonial statements is not problematic. The sole testimony cited by the defendants that may have done so was Detective Haglund's relaying of the “beating-out process” based upon interviewing Latin Kings about it. This testimony violated the Confrontation Clause, but the violation was harmless because Mario Herrera testified about the severity of the same process. Rios does not point to a motion or objection made before the district court to exclude the entirety of Vargas's testimony, so we may review only for plain error.
When the existence of a conspiracy or racketeering enterprise is not charged, however, the probative value of gang-membership evidence is often quite low. Irvin, 87 F.3d 860, 864 (7th Cir.) (evidence that two defendants in a drug-distribution case were members of the same gang was irrelevant when the defendants were not charged with a conspiracy because it was “not especially probative of whether they jointly ventured to distribute drugs, unless the motorcycle club is shown to be involved with drugs.”), cert. “We review for abuse of discretion the district court's determination to admit or exclude expert testimony.” Id. To determine whether an expert's testimony will be relevant, we look to “whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.” Fed. Notes (quoting Mason Ladd, Expert Testimony, 5 VAND. 3d at 862 (“expert testimony has been rejected when the proposed expert witness lacked relevant experience with a particular group”).
The district court denied the motions, finding that the tattoos could be probative of affiliation with the Holland Latin Kings. § 1961 et seq., which alleged that the Holland Latin Kings was a racketeering enterprise that “was and is overseen by, has always had connections to, and received directions from, the Chicago Heights, Illinois (21st and Wenworth) Latin Kings.” R. Count Fourteen—with which Rios and Casillas were charged—alleged a conspiracy to possess with the intent to distribute five kilograms or more of cocaine between 20. In summary, three initial witnesses painted a picture of the national Latin Kings organization and how the Holland Latin Kings fit into its structure and practices. The jury acquitted Rios of Count Fifteen, the marijuana-distribution conspiracy, as well as the special sentencing allegations regarding assault with the intent to commit murder. 1396 (Rios Judgment at 2) (Page ID #20861), and Casillas was sentenced to concurrent terms of 200 months on Count One and 360 months on Count Fourteen, with 148 months of credit “for gang-related discharged terms of imprisonment,” R. On appeal, they each raise issue with many aspects of the trial, as well as the sentences they received. Appropriateness of Expert Testimony The government proposed pretrial that it would utilize two expert witnesses. at 3) (Page ID #6840), and Detective Kristopher Haglund—who had also served as a lead investigator in this case—would provide expert testimony regarding “the unique attributes of the Holland chapter of the Latin Kings” and “as to who, in his opinion, is a member of the Holland Latin Kings,” R. Before analyzing these interrelated arguments, we set forth the law regarding the use of expert witnesses on gangs and discuss the many pitfalls that attend to the use of such witnesses.1. Like all experts, the role of gang-expert witnesses is governed by Federal Rule of Evidence 702, which provides: 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 methods; and(d) the expert has reliably applied the principles and methods to the facts of the case. 579 (1993), is followed “to ensure the reliability and relevancy of expert testimony,” Kumho Tire Co.