United States v. Marcus Freeman

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0276p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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-
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No. 11-1798
v.
,
>
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Defendant-Appellant. -
MARCUS LAMONT FREEMAN,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:06-cr-20185-2—Victoria A. Roberts, District Judge.
Argued: June 13, 2013
Decided and Filed: September 13, 2013
Before: COLE and COOK, Circuit Judges; KATZ, District Judge.*

_________________

COUNSEL
ARGUED: Craig A. Daly, Detroit, Michigan, for Appellant. Patricia Gaedeke,
UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
ON BRIEF: Craig A. Daly, Detroit, Michigan, for Appellant. Elizabeth A. Stafford,
UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
_________________

OPINION
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COLE, Circuit Judge. Defendant-Appellant Marcus Freeman was convicted by
a jury in the United States District Court for the Eastern District of Michigan of
conspiracy to use interstate commerce facilities in the commission of murder for hire,
18 U.S.C. § 1958. He received a sentence of life without parole. Freeman now brings

*
The Honorable David A. Katz, United States District Judge for the Northern District of Ohio,
sitting by designation.

1
No. 11-1798 United States v. Freeman Page 2

a direct appeal from that conviction, arguing that (1) the district court erred by
permitting the Federal Bureau of Investigation agent in charge of the investigation to
give lay testimony under Federal Rule of Evidence 701, (2) the district court erred with
respect to various other evidentiary rulings, (3) the district court erred by declining to
amend the jury instructions according to Freeman’s requests, and (4) there was
insufficient evidence to sustain Freeman’s conviction. For the following reasons, we
vacate Freeman’s conviction and remand for a new trial.

I.

In November 2005, as part of a separate drug investigation, the FBI began wire
intercepts of cellular telephones of several individuals pursuant to Title III of the
Wiretap Act, 18 U.S.C. §§ 2510–22, including a phone used by Roy West, Freeman’s
co-defendant in this case. West was eventually convicted of paying Freeman to murder
Leonard Day.

The calls revealed that Day, who was wanted for murder in Detroit, had stolen
about $100,000 in cash, $250,000 in jewelry, a gun, and car keys from West while
hiding out at West’s Ohio home. Immediately after the theft, West began to search for
Day. Day’s cousin, whose phone was also wiretapped, suggested to West that Day may
have gone to the Greyhound bus station near West’s home in Akron, Ohio, in order to
return to Detroit. West offered to pay $1,000 to whoever went to the bus station to find
Day. He suggested that that person take a “heater” because there was “nothing to talk
about.” The FBI, fearing that Day’s life was in danger based on the phone intercepts,
similarly searched for Day at the bus station. No one, however, located Day.

West continued to look for Day. The day after the theft, West learned from
another of Day’s cousins that Day had returned to Detroit. West and other co-defendants
gathered bulletproof vests and firearms in preparation for a manhunt of Day. The FBI
recorded West telling one co-defendant, Christopher Scott, to “[g]et them pipes ready”
and “grab up a whole bunch more things.” The FBI believed these were references to
firearms.
No. 11-1798 United States v. Freeman Page 3

Once in Detroit, West threatened Day’s family, Day’s girlfriend, Kanisha
Crawford, and Crawford’s family members in an attempt to locate Day. On the evening
of November 11, 2005, West and his associates spotted Crawford outside a Days Inn in
Detroit where Crawford and Day were staying. They tried to approach Crawford, but
she escaped into a nearby CVS, and the police were called. West and his associates were
arrested, but no charges were filed.

West’s search for Day continued with the assistance of Scott and Freeman.
Intercepted phone calls revealed that Freeman, who already had a personal relationship
with Day’s cousins, was “spying” on Day’s family in order to determine Day’s location.
At one point, West paid members of Day’s family to recover some of his jewelry.
Freeman refused to convey this money to the family himself, afraid that the Day family
would recognize his connection to West: “But how you gonna get it through . . . then you
gonna blow our cover?”

Freeman began to close in on Day. In one call with West, Freeman commented,
“This shit should be any day now though fam for real. So I’m on it for sure ’cause I
need that.” On December 17, 2005, Freeman called West asking for a cross street for
a Kilbourne Street address. West did not understand Freeman’s question and asked for
clarification. Freeman responded, “Dude just called it in, baby, sayin’, shit, shit that the
truck be in the driveway at night . . . . All the belongings be right in the drawer.”
Special Agent Peter Lucas, the FBI agent in charge of the investigation, believed that
“the truck” was a reference to Day’s truck and that Freeman had located Day.

On December 20, 2005, Day was shot while leaving a house at 14759 Kilbourne
Street. The FBI checked phone logs for the phone Freeman had been using. For most
of the day the phone had made calls from the cellular tower nearest the house where Day
was killed. Five minutes after the last phone call, residents started calling 911 to report
a shooting at the Kilbourne Street address. Three minutes after the first 911 call,
Freeman and Scott called West:
No. 11-1798 United States v. Freeman Page 4

WEST: What up?
FREEMAN: We get rich, Ohio. We get rich, Ohio. We get rich, Ohio.
WEST: Who this?
FREEMAN: This is Wood . . .
SCOTT: And Ceaze . . . .
FREEMAN: We be down there to holla’ at you in a couple hours Fam.
WEST: What’s good?
FREEMAN: Everything good, man. Except for, you know . . . you know
what I’m talkin’ about . . . just that one little thing. We ain’t get the
bonus, dog. But, you know what I’m sayin’, the situation is over with.
WEST: You bullshittin’.
FREEMAN: Fam, it’s over, we get rich baby, you know what I’m talkin’
about, but man, we sorry about that other bonus, baby. But you know,
I mean . . . You know.
SCOTT: Fam-O, see you in a minute, man.
WEST: All right.

At trial, Agent Lucas interpreted the phrase “We get rich, Ohio” to mean that
Freeman was looking forward to being paid for Day’s murder. When asked what
“situation” Freeman was referring to in this phone call, Agent Lucas said, “The situation
discussed was regarding Leonard Day and his having stolen jewelry from Roy West,
Roy West having put a hit on Leonard Day and Leonard Day ultimately being killed.”

After hanging up, West called another co-defendant and stated that “[t]hey say
dude up out of here . . . motha’ fuckers just called me.” Minutes after that conversation
West told his brother that “somebody done murdered that nigger Buck man.” West
made other similar phone calls that day. When speaking with Day’s family members,
however, he did not mention the murder, instead behaving as if nothing eventful had
happened.

According to the prosecution’s theory, West, Freeman, and Scott then met to
exchange payment for the murder. By the early morning hours of December 21, 2005,
the phone used by Freeman was no longer in Detroit but was instead in Akron, Ohio,
using the same cell phone tower as West’s phone. Freeman called West and proposed
that they meet at West’s house in Akron. Later that day, Scott called West, asked “Did
you count that?” and said “the count” was “fifty-six twenty.” During trial Agent Lucas
interpreted this to mean $5,620, in reference to money paid for killing Day, although
No. 11-1798 United States v. Freeman Page 5

before the grand jury he was less sure and testified “[I]t’s a multiple of 10. Either 56,
5,620, 56,000.”

Some days later Freeman was jailed after an arrest for an unrelated offense.
Phone calls between Freeman and his girlfriend were recorded while he was
incarcerated. On one call he told her, “Do not fuck that chip up. Dude name in the
phone.” He also told her that “BUC” “still owe me some cheese.” Agent Lucas testified
that “BUC” was a reference to West and that Freeman was telling his girlfriend that
West still owed him money.

After a jury trial, Freeman was convicted under 18 U.S.C. § 1958 for conspiracy
to use interstate commerce facilities in the commission of murder for hire. On June 20,
2011, the district court imposed a life sentence. Freeman brought a timely appeal.

II.

Freeman argues that his conviction should be vacated on four separate grounds:
(1) the district court improperly permitted Agent Lucas to give lay testimony under
Federal Rule of Evidence 701, (2) the district court erred with respect to various other
evidentiary rulings, (3) the district court erred by not amending the jury instructions, and
(4) there was insufficient evidence to sustain Freeman’s conviction. Because we
conclude that the district court erred on the first ground, we grant relief on that basis and
decline to reach the remaining issues.

The government’s primary evidence against Freeman consisted of 23,000 phone
conversations between Freeman, West, Scott, and other co-defendants. Seventy-seven
of these calls were admitted as exhibits at trial, and portions of them were played for the
jury. Agent Lucas was called to testify regarding his personal impressions of the
recorded conversations. Agent Lucas thus interpreted the conversations as they were
played. His testimony ranged from voice and nickname identifications to substantive
interpretations of the meaning of the various statements. Defense counsel objected near
the beginning of this testimony: “I think this is outside of the scope of both the notice
we received regarding this witness’s expertise and his expertise. Both.” While Agent
No. 11-1798 United States v. Freeman Page 6

Lucas had been qualified as an expert to testify to the meaning of specific code words
and drug slang, both parties recognized that his testimony had moved outside the scope
of his expert qualification. The prosecution responded: “Your honor, this is not expert
testimony. This is based upon his personal knowledge of the investigation.” The
objection was overruled, and Agent Lucas continued to testify as a lay witness under
Rule 701. The defense was granted a standing objection to all of Agent Lucas’s lay
interpretations regarding the phone calls.

Throughout the recordings, Agent Lucas interpreted conversations between
Freeman and his co-defendants to broadly illustrate the prosecution’s theory of the case
for the jury. At the end of one phone call between West and Freeman, for example, in
which they discuss “the word on dude,” Freeman says, “I told you I was chillin’ over
dude house.” Freeman additionally says, presumably referring to Day’s family, “[T]hey
was talkin’ about the dude, so he definitely phonin’ in.” Freeman ends the call by
stating, “This shit should be any day now though fam for real. So I’m on it for sure
‘cause I need that.” Agent Lucas testified to the meaning of this call, including
Freeman’s final statement. Agent Lucas told the jury, “I believe he is referring to the
fact that he needs the payment he expects from Roy West if he’s successful in locating
Leonard Day . . . for the purpose of recovering the jewelry and killing him.”

In another call, which occurred three minutes after the first 911 call, immediately
after Day’s death, Freeman told West that “the situation is over.” Agent Lucas was
asked about the meaning of “the situation.” He testified, “The situation discussed was
regarding Leonard Day and his having stolen jewelry from Roy West, Roy West having
put a hit on Leonard Day and Leonard Day ultimately being killed.” Similar
“interpretations” occurred throughout Agent Lucas’s testimony.

On appeal, Freeman argues that Agent Lucas’s testimony was improper lay
testimony under Federal Rule of Evidence 701. “We review for abuse of discretion a
district court’s evidentiary rulings, including rulings on witness testimony under Rule[]
701 . . . .” United States v. White, 492 F.3d 380, 398 (6th Cir. 2007). “Even when the
district court has abused its discretion in admitting evidence, we do not reverse a
No. 11-1798 United States v. Freeman Page 7

conviction if the error is harmless, meaning that it appears beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.” United States v.
Lopez-Medina, 461 F.3d 724, 741 (6th Cir. 2006) (internal quotation marks omitted).

A.

A witness may testify based on opinion, as opposed to testifying to facts of which
he has direct knowledge, under two circumstances: as a lay person under Rule 701 or as
an expert under Rule 702. “Such lay opinion testimony is permitted under Rule 701
because it has the effect of describing something that the jurors could not otherwise
experience for themselves by drawing upon the witness’s sensory and experiential
observations that were made as a first-hand witness to a particular event.” United States
v. Jayyousi, 657 F.3d 1085, 1120 (11th Cir. 2011) (Barkett, J., concurring in part and
dissenting in part). To ensure that lay testimony serves “the . . . objective of putting the
trier of fact in possession of an accurate reproduction of the event,” Rule 701 provides:

If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is: (a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s testimony
or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.

Fed. R. Evid. 701; see also id. advisory committee’s note. The burden is on the
proponent to provide adequate foundation for the testimony. United States v. Grinage,
390 F.3d 746, 749 (2d Cir. 2004). If a witness’s testimony fails to meet any one of the
three foundational requirements, it is not admissible. Fed. R. Evid. 701.

Several of our sister circuits have held testimony inadmissible under
circumstances similar to those presented here, see United States v. Hampton, 718 F.3d
978 (D.C. Cir. 2013); United States v. Johnson, 617 F.3d 286 (4th Cir. 2010); United
States v. Freeman, 498 F.3d 893 (9th Cir. 2007); United States v. Garcia, 413 F.3d 201
(2d Cir. 2005); United States v. Peoples, 250 F.3d 630 (8th Cir. 2001), and four others
have held the opposite under different circumstances, see United States v. Albertelli,
687 F.3d 439 (1st Cir. 2012); Jayyousi, 657 F.3d 1085; United States v. Rollins, 544 F.3d
No. 11-1798 United States v. Freeman Page 8

820 (7th Cir. 2008); United States v. Miranda, 248 F.3d 434 (5th Cir. 2001). Case law
from our circuit, both published and unpublished, has tended to prohibit agents from
interpreting phone calls as Agent Lucas did here under Rule 701. See United States v.
Blakeley, 375 F. App’x 565, 570 (6th Cir. 2010) (finding that an agent’s opinion
testimony interpreting defendants’ conversations was “likely improper” under Rule 701
when the defense argued that the testimony “substituted [the agent’s] interpretation of
the conversations for the jury’s interpretation”); White, 492 F.3d at 401–02 (citing
approvingly to two Second Circuit cases that excluded agent testimony interpreting
wiretapped conversations under Rule 701); United States v. Ganier, 468 F.3d 920, 926
(6th Cir. 2006) (citing approvingly to an Eighth Circuit case that excluded agent
testimony interpreting wiretaps under Rule 701).

We conclude that here the prosecution did not establish a proper foundation for
Agent Lucas’s testimony under Rule 701. As several circuits have recognized, there is
a risk when an agent “provides interpretations of recorded conversations based on his
knowledge of the entire investigation . . . that he [is] testifying based upon information
not before the jury, including hearsay, or at the least, that the jury [c]ould think he ha[s]
knowledge beyond what [is] before them . . . .” Hampton, 718 F.3d at 982–83 (quoting
Grinage, 390 F.3d at 750, and citing citing United States v. Dukagjini, 326 F.3d 45,
53–55 (2d Cir. 2003)) (internal quotation marks omitted); see also Albertelli, 687 F.3d
at 447 (recognizing that an agent’s “testimony may effectively smuggle in inadmissible
evidence,” that he may be “drawing inferences that counsel could do but with . . . the
imprimatur of testifying as a law enforcement officer,” that he may “usurp the jury’s
function,” and that he may be “doing nothing more than speculating”).

Over the course of his testimony, Agent Lucas repeatedly substantiated his
responses and inferences with generic information and references to the investigation as
a whole. For example, he made statements such as “We learned over our wiretaps” and
“We were able to determine that from some the intercepted calls . . . .” He never
specified personal experiences that led him to obtain his information but, instead,
repeatedly relied on the general knowledge of the FBI and the investigation as a whole.
No. 11-1798 United States v. Freeman Page 9

While the jury, left in the dark regarding the source of Agent Lucas’s information, likely
gave him the benefit of the doubt in this situation, “the fair inference is that he was
expressing an opinion informed by all the evidence gleaned by various agents in the
course of the investigation and not limiting himself to his own personal perceptions.”
Garcia, 413 F.3d at 213. In short, Agent Lucas was called by the government to testify
to the meaning of numerous phone conversations irrespective of whether his testimony,
at points, was mere speculation or relied on hearsay evidence. See Freeman, 498 F.3d
at 903, 904. Indeed, at oral argument, the government conceded that Agent Lucas lacked
the first-hand knowledge required to lay a sufficient foundation for his testimony under
Rule 701(a). See Fed. R. Evid. 701(a) advisory committee’s note.

Although Agent Lucas did not testify to being present for the surveillance, or
even to observing any activity relevant to interpreting the calls, the jury was left to trust
that he had some information—information unknown to them—that made him better
situated to interpret the words used in the calls than they were. See Johnson, 617 F.3d
at 293 (“Agent Smith did not testify to directly observing the surveillance” and thus was
not qualified to testify under Rule 701); see also Jayyousi, 657 F.3d at 1122 (Barkett, J.,
concurring in part and dissenting in part) (“But Agent Kavanaugh never explained what
knowledge or perception he gained during the investigation that allowed him to interpret
the conversations any better than the jury.”). There were approximately 23,000 recorded
calls, but only a small number were admitted as exhibits at trial. When Agent Lucas
interpreted those conversations on the basis of his listening to “all of the calls,” the jury
had no way of verifying his inferences or of independently assessing the logical steps he
had taken. See Hampton, 718 F.3d at 983. Agent Lucas failed to explain the basis of his
interpretations—what experience he had that the jurors themselves did not have—and
therefore failed to lay a foundation under Rule 701. See Albertelli, 687 F.3d at 450
(“[T]he witness should be prepared to explain the basis for any challenged interpretation
and may not say only that it is based on ‘the totality of the investigation.’”); see also
Jayyousi, 657 F.3d at 1120 (Barkett, J., concurring in part and dissenting in part) (“Such
lay opinion testimony is permitted under Rule 701 because it has the effect of describing
something that the jurors could not otherwise experience for themselves by drawing
No. 11-1798 United States v. Freeman Page 10

upon the witness’s sensory and experiential observations that were made as a first-hand
witness to a particular event.”).

Furthermore, a lay opinion should not waste time, “merely tell the jury what
result to reach,” or be “phrased in terms of inadequately explored legal criteria.”
McGowan v. Cooper Indus., Inc., 863 F.2d 1266, 1272 (6th Cir. 1988) (quoting Fed. R.
Evid. 704 advisory committee’s note (1972 Proposed Rules)) (citation omitted); see also
Fed. R. Evid. 701(b). A witness, lay or expert, may not form conclusions for a jury that
they are competent to reach on their own. McGowan, 863 F.2d at 1272 (“[The
witness’s] proffered testimony . . . consisted of opinions which were not helpful to the
jury because they addressed matters that were equally within the competence of the
jurors to understand and decide, and thus were inadmissible under Fed. R. Evid. 701 and
702.”). Agent Lucas’s testimony falls into these very traps. His testimony consisted of
many opinions and conclusions the jury was well equipped to draw on their own. He
effectively spoon-fed his interpretations of the phone calls and the government’s theory
of the case to the jury, interpreting even ordinary English language. See Peoples,
250 F.3d at 640 (finding that the agent’s “testimony was not limited to coded, oblique
language, but included plain English words and phrases,” and was therefore inadmissible
under Rule 701); Freeman, 498 F.3d at 905 (holding that the district court abused its
discretion in admitting an agent’s testimony interpreting phone calls because some of the
agent’s testimony consisted of “speculation or repetition of already clear statements”).

Take, for example, Agent Lucas’s testimony as to the phone call between
Freeman, Scott, and West three minutes after the first 911 call after Day had been shot:

WEST: What’s good?
FREEMAN: Everything good, man. Except for, you know . . . you know
what I’m talkin’ about . . . just that one little thing. We ain’t get the
bonus, dog. But, you know what I’m sayin’, the situation is over with.

When asked what “situation” Freeman had referred to, Agent Lucas testified, “The
situation discussed was regarding Leonard Day and his having stolen jewelry from Roy
West, Roy West having put a hit on Leonard Day and Leonard Day ultimately being
No. 11-1798 United States v. Freeman Page 11

killed.” Somehow, when passed through Agent Lucas’s interpretive lens, this cryptic
exchange becomes crystal clear, and his explanation fits perfectly with the prosecution’s
view of the case. See Hampton, 718 F.3d at 985 (Brown, J., concurring). That is not to
say a juror could not have reached the same conclusions as Agent Lucas. It is rather to
say that it is not for an agent to divine what vague, plain English language means as
Agent Lucas did repeatedly here. See id. These types of conclusions are the province
of a jury. See id.

The government argues that it was helpful for the jury to hear the testimony of
an individual who had the opportunity to listen to all 23,000 phone calls since it would
have been impractical for the jury to listen to all of the calls themselves. Were this
argument “to be accepted, there would be no need for the trial jury to review personally
any evidence at all. The jurors could be ‘helped’ by a summary witness for the
Government, who could not only tell them what was in the evidence but tell them what
inferences to draw from it.” Grinage, 390 F.3d at 750. Agent Lucas drew conclusions
from the phone calls the jury heard as well as from thousands of other phone calls and
FBI evidence the jury had no access to. In doing so, he infringed upon the role of the
jury to decide what to infer from the evidence, and instead told them what conclusions
and inferences to draw based on his “fifteen years of experience.” Id.

We can distinguish this case from out-of-circuit cases cited by the government.
In those cases, the phone calls included cryptic language, and the testifier explained what
personal knowledge he used in interpreting that language. For example, in the Seventh
Circuit case, an agent testified based on thousands of calls that coconspirators devised
code as they went along, using words with different meanings at different times. Rollins,
544 F.3d at 832. That agent opined about the meaning of otherwise nonsensical
conversations involving, for example, “having drinks,” the height of a “singer” in a
“band,” and “big shoes and little shoes.” Id. at 831. Here, however, Agent Lucas
testified about not only code words but also common words used in common ways.

Moreover, we emphasize our concern that the jury may have been unduly
persuaded by Agent Lucas’s position as an FBI agent. An agent qualified as an expert
No. 11-1798 United States v. Freeman Page 12

may interpret coded drug language, as Agent Lucas did. And a lay witness who has
personal knowledge of a particular drug or crime conspiracy may similarly testify to the
meaning of coded language within his knowledge. But a case agent testifying as a lay
witness may not explain to a jury what inferences to draw from recorded conversations
involving ordinary language. Hampton, 718 F.3d at 985. At that point, his testimony
is no longer evidence but becomes argument. See id. Agent Lucas effectively told the
jury that they were not as qualified as he to interpret the phone calls:

Q: You’re just an everyday mope like everybody else, right?
A: In some respects, yes. But an everyday mope who has listened to
approximately 23,000 Title III calls in this case.
Q: Right. But the Jury could listen to 23,000 phone calls . . . and reach
a different personal conclusion, correct?
A: That’s possible and it would not be based on 15 years of experience
in the FBI.

Comments such as these “can convey the impression that evidence not presented to the
jury, but known to the [prosecution], supports the charges against the defendant and thus
jeopardize the defendant’s right to be tired solely on the basis of the evidence presented
to the jury.” Id. at 983 (quoting United States v. Young, 470 U.S. 1, 18 (1985)) (internal
quotation marks omitted). In such cases, the agent may receive unmerited credibility for
his testimony when the jury suspects that he has investigative information they do not.
See Freeman, 498 F.3d at 903. An agent presented to a jury with an aura of expertise
and authority increases the risk that the jury will be swayed improperly by the agent’s
testimony, rather than rely on its own interpretation of the evidence. See Grinage, 390
F.3d at 751. We find enforcement of Rule 701’s criteria uniquely important under these
circumstances. See Hampton, 718 F.3d at 981–82 (citing Grinage, 390 F.3d at 750)
(“Judicial scrutiny of a law-enforcement witness’s purported basis for lay opinion is
especially important because of the risk that the jury will defer to the officer’s superior
knowledge of the case and past experiences with similar crimes.”).
No. 11-1798 United States v. Freeman Page 13

B.

Our conclusion that the district court abused its discretion by allowing Agent
Lucas to testify as a lay witness does not automatically lead to reversal. “Even when the
district court has abused its discretion in admitting evidence, we do not reverse a
conviction if the error is harmless, meaning that it appears beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.” Lopez-Medina,
461 F.3d at 741 (internal quotation marks omitted).

The government cursorily argues that, even if the district court abused its
discretion by admitting Agent Lucas’s testimony under Rule 701, the error was harmless
because Agent Lucas could have been qualified as an expert under Rule 702 for the
entire scope of his testimony.1 The government acknowledges that Agent Lucas’s
testimony exceeded the scope of its expert notice, see Fed. R. Crim. P. 16, but argues
that “[c]ourts have found harmless error when a witness was unquestionably qualified
to render expert testimony, even in the absence of . . . expert notices.” See United States
v. Oriedo, 498 F.3d 593, 602–03 (7th Cir. 2007); United States v. Mendoza, 244 F.3d
1037, 1046–47 (9th Cir. 2001). Because it is not clear that Agent Lucas would have
been qualified as an expert even had the proper notice been given, we cannot say
“beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.” Lopez-Medina, 461 F.3d at 741 (internal quotation marks omitted); see
Johnson, 617 F.3d at 294 (holding that the error was not “harmless” because the court
could not “say with any ‘fair assurance’ that Agent Smith’s testimony would have been
admitted as expert testimony”). We therefore reject this argument.

An expert may testify under Rule 702 if his

(a) scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue;
(b) . . . testimony is based on sufficient facts or data; (c) . . . 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.

1
The government does not argue that it was harmless error to admit Agent Lucas’s testimony on
the grounds that there was sufficient evidence of guilt independent of Agent Lucas’s testimony.
No. 11-1798 United States v. Freeman Page 14

Fed. R. Evid. 702. A district court must apply Rule 702 to determine whether or not to
qualify a witness as an expert. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153
(1999). Even if the government had produced an expert notice, it is far from obvious
that Agent Lucas could have met the Rule 702 expert testimony requirements.

The requirement that an opinion be “helpful to the jury” is the same under Rule
702(a) as under Rule 701(b). See McGowan, 863 F.2d 1272–73. For the same reasons
that many of Agent Lucas’s opinions were not helpful to the jury as lay testimony under
Rule 701(b), and therefore inadmissible, his opinions would not have been helpful as
expert testimony under Rule 702(a).

Additionally, although Agent Lucas explicitly referred to his expertise and
credentials, giving himself an aura of authority on the stand, it is not clear what expert
methodology he relied on to form his opinions (outside of his expertise on street slang
and drug terms, which had already been granted). Testimony under Rule 702 must be
“the product of reliable principles and methods . . . reliably applied . . . to the facts of the
case.” Fed. R. Evid. 702. Here, Agent Lucas “provided virtually no methodology or
guiding principles that would enable him to decode the wiretapped phone calls . . . .”
Johnson, 617 F.3d at 294.

We afford the district court “broad latitude” in executing its “gatekeeping” role
of certifying experts under Rule 702. See Kumho Tire Co., 526 U.S. at 152–53. At trial,
the government offered this testimony not under Rule 702, but as lay testimony. The
district court admitted it as such. It is therefore unclear that the district court would have
(or could have) allowed Agent Lucas to give his full testimony as an expert.

Because it does not “appear[] beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained,” Lopez-Medina, 461 F.3d at
741 (internal quotation marks omitted), we vacate the conviction.

III.

For the foregoing reasons, we vacate the conviction and remand for a new trial.