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United States v. Carpenter

United States District Court, E.D. Tennessee, Knoxville Division

October 21, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
MALCOLM LYNN CARPENTER, Defendant.

MEMORANDUM AND ORDER

H. BRUCE GUYTON, Magistrate Judge.

All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. ยง 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This case came before the Court on June 23, 2014, for a motion hearing on the Defendant's Motion to Strike Designation of Experts and to Exclude Expert Witnesses for United States, to Limit Expert Testimony, and/or for Continuance of Trial [Doc. 22].[1] The Defendant contends that the Court should strike the testimony of Drug Enforcement Agent (DEA) Task Force Officer (TFO) Michael Commons, the Government's expert, because the testimony is not properly expert testimony and intrudes upon the province of the jury. Assistant United States Attorney Tracy L. Stone appeared on behalf of the Government. Attorney Gerald L. Gulley, Jr., represented Defendant Carpenter, who was also present. The Court heard the arguments of the parties and took the matter under advisement. For the reasons discussed herein, the Court finds that TFO Commons may present expert testimony on the manufacture and trafficking of methamphetamine and that a hearing to apply the test set out in Daubert v. Merrill Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), is not necessary in this case.

I. POSITIONS OF THE PARTIES

The Defendant is charged[2] with conspiring to manufacture methamphetamine from August 1, 2012, to December 19, 2012 (Count One); conspiracy to manufacture methamphetamine from May 2, 2012, to July 11, 2013 (Count Two); possession of methamphetamine with intent to distribute on July 11, 2013 (Count Three), and three counts of tampering with a witness (Counts Four-Six). The Defendant argues that a law enforcement officer cannot testify as an expert on methamphetamine manufacturing and trade because such testimony is not properly expert testimony under Federal Rule of Evidence 702 and the test set out in Daubert and the related case law. The Defendant argues that, instead, TFO Commons will merely present his personal opinion, which is irrelevant to the charges and will only inflame the jury.[3]

The Government responds [Doc. 25] that TFO Commons' testimony on methamphetamine manufacturing and trade is based upon his technical and specialized knowledge and will assist the jury. The Government contends that such testimony by law enforcement officers is generally accepted by the courts and is relevant to the charges in the instant case.

II. PROPOSED EXPERT TESTIMONY

The Government's notice [Doc. 24] states that it intends to call DEA/HIDTA Task Force Officer C. Michael Commons to testify at trial. TFO Commons, who is not a fact witness in this case, has been a police officer since 2002 and a DEA TFO since 2006. TFO Commons is trained in drug enforcement and has received specific training with regard to clandestine methamphetamine operations. He has worked on numerous drug investigations and debriefed numerous persons engaged in drug trafficking to include methamphetamine cooks. The notice states that TFO Commons will provide the following testimony:

He will testify about the operation of clandestine methamphetamine laboratories, the acquisition of components used to manufacture methamphetamine, the typical methamphetamine yields from pseudoephedrine, and the dangers of the manufacturing process. Agent Commons will testify, based on his training, education, and experience, that clandestine laboratories conservatively yield fifty percent (50%) methamphetamine from pseudoephedrine. Agent Commons will also testify about the distribution of the methamphetamine, and about the disposal of the hazardous waste generated from the manufacture of methamphetamine.

issues are the Defendant's objections is to the propriety and relevance of TFO Commons' proposed expert testimony. The Court finds that the Defendant's challenge to the timeliness and sufficiency of the Government's notice of the expert testimony is now moot, as the Government has supplemented its original notice well in advance of the new trial date.

TFO Commons is expected to testify, generally, regarding the method of operation of drug dealers, the distribution quantities and values of methamphetamine, and as to how methamphetamine is made, bought, and sold in the world of drug trafficking. He will testify about the distribution of methamphetamine, generally, and specifically, that the methamphetamine possessed by the defendant in this case was consistent, in form, quantity, and packaging, with methamphetamine intended for distribution. [Doc. 24, pp. 2-3] At the June 23 hearing, AUSA Stone proffered that TFO Commons will testify to the unique aspects of the methamphetamine trade about which the average juror would not know. Specifically, he stated that TFO Commons will testify that individuals known as "smurfs" buy pseudoephedrine and other methamphetamine ingredients, the smurfs bring these ingredients to the methamphetamine cook, and the cook makes the methamphetamine and redistributes it to the smurfs for use and/or sale. AUSA Stone stated that TFO Commons will also explain the legal restrictions on the purchase of pseudoephedrine.

III. ANALYSIS

The Defendant contends that the Court should exclude the proposed testimony of TFO Commons because (1) it does not constitute a proper expert opinion under Federal Rule of Evidence 702 and the test established in Daubert and (2) it is not relevant to the existence of a conspiracy in the instant case. The Court will examine each of these issues in turn.

Rule 702, Federal Rules of Evidence, governs the admissibility of expert testimony:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form ...

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