United States District Court, D. Colorado
ORDER ON ADMISSIBILITY OF GOVERNMENT’S EXPERT TESTIMONY
MARCIA S. KRIEGER UNITED STATES DISTRICT COURT
This Matter is before the Court on a Joint Motion for determination of the admissibility of Expert Testimony pursuant to Fed.R.Evid. 702 (#179). The Motion identifies the opinions of Drug Enforcement Agency (DEA) Special Agent Lori Butler, proffered by the Government, as well as Mr. Chavez’s objections to those opinions. An evidentiary hearing was conducted on November 12. Having considered the evidence presented, the argument of counsel and the parties’ post-hearing briefing (#195, #196), the Court finds and concludes as follows.
Agent Butler has been employed by the DEA for over thirty years. During such time, she investigated the activities of several drug trafficking organizations, and conducted surveillance by intercepting wire communications among drug traffickers. She is experienced in methods of transporting drugs commonly used by such criminal enterprises and the means by which members typically communicate.
In March of 2010, while investigating a drug trafficking organization believed to be importing drugs from Mexico into and through the United States to Canada, Agent Butler prepared an affidavit in support of a wiretap identified as target telephone five (“TT5”). The district court authorized the wiretap, and Agent Butler, together with other law enforcement officers, intercepted TT5 communications between suspected organization members. The communications were in Spanish. Because Agent Butler does not speak Spanish, she was assisted by interpreters who interpreted/ translated the Spanish communications into English.
Mr. Chavez was heard over the intercepted communications, and was charged in a multi-defendant, twelve-count Indictment (# 1) of participating in a conspiracy that obtained cocaine in Mexico, transported it into Colorado, and on into Canada where Mr. Chavez received it for distribution to Canadian buyers. Three counts are brought against Mr. Chavez: (i) Count 1, conspiracy to import cocaine into the United States and to export it, in violation of 21 U.S.C. § 963 and § 60(b)(1)(B)(ii); and (ii) Counts 10 and 12, each charging use of a communication facility in furtherance of a felony in violation of 21 U.S.C. § 843(b).
The Government intends to call Agent Butler to testify about the techniques and code language commonly used by those engaged in illegal drug smuggling pursuant to FRE 702. Ordinarily, the FRE 702 Motion required by the Court would detail Agent Butler’s particular testimony and the FRE 702 foundation objections asserted by Mr. Chavez. But, the Government did not disclose such specific testimony and Mr. Chavez made only general objections. As a consequence, at the hearing, the Court required the Government to identify with precision the testimony it expected to elicit at trial. According to the Government’s oral statement, Agent Butler may be asked to testify that:
• It is common for those in the drug trade to use coded language to avoid detection.
• The words “work” or “labor” refer to controlled substances.
• The word “papers” commonly refers to either money (typically, cash) or to arrest or documents generated by law enforcement after they have seized a load of drugs. Documentation proving the seizure of drugs are important to those transporting the drugs because they prove that the drugs were indeed confiscated by authorities and not simply stolen and sold by those affecting the transport.
• The phrase “to iron [drugs]” or “ironing” refers to “cutting” a quantity of drugs with a filler material to producing a greater volume (albeit a diluted version) of a product.
• The phrase “good one” commonly refers to a kilogram of cocaine. Agent Butler derived this meaning from the context of intercepted telephone calls. For example, Agent Butler explained that she learned that the phrase “a good one” was used by Mr. Chavez and his co-conspirators to refer specifically to a kilogram of relatively pure cocaine that could then be cut with fillers based on the context of conversations heard over TT5.
• The term “jump” commonly refers to an individual crossing the border with drugs.
• In this case, the term “choke” (or “getting choked”) was used to refer to being caught by the police. Agent Butler acknowledged that this term is not commonly used by drug traffickers, but she identified its meaning based on context coupled with her general knowledge that drug traffickers ...