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United States v. $307

United States District Court, E.D. North Carolina, Eastern Division

May 20, 2019




         This matter comes before the court on claimants' motion to exclude expert testimony of Kenneth Prevost (“Prevost”) and evidence of his police dog Iko, pursuant to Federal Rules of Evidence 403, 702, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (DE 215) (“Daubert motion”). Claimants also move to exclude expert testimony by Kenneth Furton (“Furton”), a chemist and forensic scientist, also pursuant to Rules 403, 702, and Daubert (DE 216). Finally, plaintiff moves to exclude testimony by Leonardo Lecci (“Lecci”), a psychologist, pursuant to Rules 403, 702, and Daubert (DE 240). The issues raised by the motions have been fully briefed by the parties, and in this posture are ripe for ruling. For the reasons that follow, claimants' motions are denied, and plaintiff's motion is granted.


         Plaintiff initiated this civil forfeiture action on July 12, 2012, by filing a complaint for forfeiture in rem against $307, 970.00 in U.S. currency (“currency”) pursuant to 21 U.S.C. § 881(a)(6), asserting that the currency was used or intended to be used in exchange for controlled substances, represented proceeds of trafficking in controlled substances, or was used or intended to be used to facilitate a violation of Title II of the Controlled Substances Act, 21 U.S.C. §§ 801 et s e q . Claimants deny the alleged connection between the seized currency and drug trafficking, and seek return of the currency. A lengthy period of discovery, interspersed with various stays of the case, followed. Plaintiff moved for summary judgment, arguing it was entitled to judgment as a matter of law that the currency was substantially connected to controlled substances within the meaning of 21 U.S.C. § 881(a)(6). The court denied plaintiff's motion for summary judgment and set this matter for trial commencing October 21, 2019.

         This case has a complex procedural history and lengthy factual background. The court recounts the following facts and procedure pertinent to the issues now under consideration. Claimant Apolinar Garcia-Ancelmo (“A. Garcia”) met with an undercover drug interdiction officer, Special Agent Gilbert Trillo (“Trillo”), in order arrange transport of the currency to Mexico. On the way to meet Trillo, claimant A. Garcia was stopped by FBI Task Force Officer Matthew Miller (“Miller”), then investigating claimant A. Garcia. Miller allegedly observed claimant A. Garcia commit traffic violations, and initiated a traffic stop. During the traffic stop, Miller asked for and received consent to search claimant A. Garcia's car.[1] Upon searching the car, Miller discovered the currency buried under a pile of laundry in a bin, concealed within two black trash bags and packaged in vacuum-sealed plastic bags. The parties dispute whether claimants collectively had enough legitimate income to account for the currency.

         Plaintiff seeks to qualify two experts to help prove that the currency discovered in the vehicle bears a substantial connection to controlled substances. First, plaintiff seeks to qualify Prevost as an expert on the meaning of certain behaviors of his police dog, Iko. Following Miller's discovery of the currency in claimant A. Garcia's car, Prevost and Iko arrived at the scene to conduct a sniff for drugs. Although Prevost is able to testify as a lay witness to certain events in this case, claimants specifically seek to exclude Prevost's opinion testimony that, based on his training and experience as Iko's handler, Iko alerted to the presence of drugs on the exterior of the car and on the currency in the trunk of the car. Claimants rely upon certification records, training records, usage reports on field performance, dash camera video footage from the traffic stop of claimant A. Garcia's car, video footage of Prevost in a Highland Canine training video, testimony from Prevost, Furton, Andy Falco-Jimenez (“Falco”), claimants' expert on drug detection dog training, handling, and behavior, and other officers. In opposition, plaintiff relies upon and supplements the same.

         Plaintiff also seeks to qualify Furton as an expert in the area of chemistry and forensic science. More specifically, plaintiff proffers Furton to opine that “innocent contamination” of the currency could not explain detection of drugs by Iko. In other words, Furton opines that, if a drug detection dog smells drugs on currency, the amount of drugs is not a residual amount found in the general population of currency, but instead residue resulting from recent illegal activity. Claimants seek to exclude this testimony, relying upon testimony by Furton; Jay M. Poupko (“Poupko”), claimants' expert in chemistry and forensic toxicology; Stefan Rose (“Rose”), one of Furton's colleagues that collaborated on Furton's experiments; Sanford Angelos (“Angelos”), a chemist who testified in United States v. Funds in Amount of One Hundred Thousand One Hundred & Twenty Dollars ($100, 120.00) that the results of Furton's studies are incorrect; and several pieces of scientific literature. Plaintiff relies upon the same, and supplements claimants' evidence with an additional peer reviewed and published study by Furton.

         In addition to expert testimony, plaintiff also seeks to establish a substantial connection between the currency and the drugs through lay witnesses that testify claimant A. Garcia dealt them cocaine. Claimants seek to admit expert testimony of Lecci to opine that one of plaintiff's witnesses, Thurman Bohne (“Bohne”), is unable to recall the events to which he will testify, and that he is likely to make false statements. Plaintiff moves to exclude Lecci's testimony, relying upon testimony by Bohne, Lecci, and Heather Ross (“Ross”), a psychologist who had previously examined Bohne. Opposing the motion, claimants also rely upon Lecci's testimony, further relying upon reports of investigation, plaintiff's expert disclosures, and Lecci's curriculum vitae (“CV”).


         A. Standard of Review

         The standard of review is common to all three motions now before the court. Federal Rule of Evidence 702 governs the admissibility of expert opinion testimony. Under Rule 702, expert testimony is appropriate when “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.” Fed.R.Evid. 702. A witness qualified as an expert may be permitted to testify where “(b) the testimony is based upon 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.” Id.

         Federal Rule of Evidence 702 imposes a “basic gatekeeping obligation” upon a trial judge to “ensure that any and all scientific testimony is not only relevant, but reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993). “The proponent of the testimony must establish its admissibility by a preponderance of proof.” Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001).

         “[R]elevance - or what has been called ‘fit' - is a precondition for the admissibility of expert testimony, in that the rules of evidence require expert opinions to assist the ‘the trier of fact to understand the evidence or to determine a fact in issue.'” United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 318 (4th Cir. 2018) (quoting Daubert, 509 U.S. at 597). The court must determine whether the expert's “reasoning or methodology properly can be applied to the facts in issue.” Cooper, 259 F.3d at 199 (quoting Daubert, 509 U.S. at 592-93).

         The reliability inquiry is a “flexible one focusing on the principles and methodology employed by the expert, not on the conclusions reached.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (internal quotations omitted). One factor pertinent to reliability is the proposed expert's qualifications. See Giddings v. Bristol-Myers Squibb Co., 192 F.Supp.2d 421, 425 (D. Md. 2002). A witness may qualify to render expert opinions in any one of the five ways listed in Rule 702: knowledge, skill, experience, training, or education. Kumho Tire, 526 U.S. at 147. The United States Court of Appeals for the Fourth Circuit has ruled that when an expert's qualifications are challenged, “‘the test for exclusion is a strict one, and the purported expert must have neither satisfactory knowledge, skill, experience, training nor education on the issue for which the opinion is proffered.'” Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir.1993) (quoting Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 799 (4th Cir.1989)).

         In assessing whether expert testimony is “reliable, ” the court considers additional factors besides the expert's qualifications. These include:

(1) whether a theory or technique can be (and has been) tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the techniques' operation; and (5) whether the technique has received general acceptance within the relevant scientific or expert community.

United States v. Crisp, 324 F.3d 261, 266 (4th Cir. 2003) (internal quotations omitted). These factors are “neither definitive, nor exhaustive, ” and “particular factors may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.” Cooper, 259 F.3d at 199-200. “[T]he court has broad latitude to consider whatever factors bearing on validity that the court finds to be useful[, ] ... depend[ing] upon the unique circumstances of the expert testimony involved.” Westberry, 178 F.3d at 261.

         Of course, the admission of expert testimony must be considered within the context of the other rules of evidence. In particular, Rule 403 provides that the court must ensure that the probative value of any proffered evidence is not “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. As this court has noted, “[d]espite the court's ability to exercise broad discretion and flexibility when determining the admissibility of expert testimony, the court must balance this discretion with the concerns of Rule 403 to ensure that the probative value of the proffered testimony is not ‘substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.'” Bouygues Telecom, S.A. v. Tekelec, 472 F.Supp.2d 722, 725 (E.D. N.C. 2007) (quoting Fed.R.Evid. 403).

         B. Claimants' Motion to Exclude Prevost and Evidence of Dog (DE 215)

         Claimants move to exclude Prevost's testimony concerning Iko's behavior on the ground that it is not reliable.[2] “Experiential expert testimony . . . does not ‘rely on anything like a scientific method.'” United States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007). “Where an expert's methodology is grounded in his experience . . . a proper methodology analysis focuses on three areas: 1) how the expert's experience leads to the conclusion reached; 2) why that experience is a sufficient basis for the opinion; and 3) how that experience is reliably applied to the facts of the case.” SAS Inst., Inc. v. World Programming Ltd., 125 F.Supp.3d 579, 589 (E.D. N.C. 2015), aff'd, 874 F.3d 370 (4th Cir. 2017). In addition, a proper motion to exclude may demonstrate that an expert's experience is atypical of other experts in the relevant industry, thus undermining the requirement that an expert's proposed testimony be based on facts or data upon which experts in the particular field would reasonably rely. See Fed.R.Evid. 703.

         Several factors bear specifically on the reliability of a drug detection dog, including training, certification, test results, field performance, and circumstances surrounding a particular alert, such as cuing or working in unfamiliar conditions.[3] See Fla. v. Harris, 568 U.S. 237, 245-48 (2013); United States v. Green, 740 F.3d 275, 283 (4th Cir. 2014); United States v. Gadson, 763 F.3d 1189, 1202 (9th Cir. 2014). “[E]vidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert . . . . The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.” Harris, 568 U.S. at 246-47; see United States v. Boxley, 373 F.3d 759, 762 (6th Cir. 2004); United States v. Sanchez-Pena, 336 F.3d 431, 444 (5th Cir. 2003). Although field performance is relevant, records from controlled testing are to be given greater weight than field performance records. See Harris, 568 U.S. at 245-46.

         The certifications in the record support Iko's reliability. Together with a prior handler, Iko satisfactorily completed performance trials and was certified in narcotics detection on November 20, 2010, by the United States Police Canine Association (“USPCA”). (First Narcotics Detection Certification (DE 238-3); see Performance Evaluations (DE 238-4)). USPCA is an independent organization that conducts performance trials and issues certifications for law enforcement canine units. (Prevost Dep. (DE 238-1) 64:20-65:12). About two months after the search of claimant A. Garcia's car, Iko again received certification in narcotics detection from the USPCA, this time with Prevost as his handler.[4] (Second Narcotics ...

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