MARK A. GOLDSMITH, District Judge.
This matter is before the Court on Defendants' motions to exclude the Government's proposed experts (Dkts. 211 and 263). Defendants challenge two proposed expert witnesses disclosed by the Government: DEA Special Agent Scott Nedoff and FBI Special Agent Robert Bornstein. The Government proposes to call Nedoff to provide expert testimony on the sale and distribution of drugs, and Bornstein is to provide expert testimony on gangs. For the reasons set forth below, the Court grants in part Defendants' motions, to the extent they seek to bar Bornstein from testifying at trial, and denies in part Defendants' motions, so as to permit Nedoff to offer expert testimony at trial.
According to the governing indictment, Defendants were members of the Howard Boys, a "criminal organization" that "engaged in murders, attempted murders, drug trafficking, weapons trafficking, and other crimes." Am. First Superseding Indictment at 2 (Dkt. 191). The indictment alleges that the Howard Boys constituted an "enterprise" that was engaged in interstate commerce and that "constituted an ongoing organization whose members functioned as a continuing unit for a common purpose of achieving the objectives of the enterprise." Id. at 3. This forms the basis for the charge of conspiracy under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., leveled against each of the Defendants. Id. at 2. The indictment also contains specific counts against each Defendant for actions taken in furtherance of the conspiracy.
According to the indictment, the Howard Boys identified themselves and demarcated their territory through the use of graffiti, tattoos, hand signs, handshakes, and social networking sites. Id. at 5-6.
The catalyst for the motions under consideration was the Government's initial expert witness disclosure, in which the Government provided notice that it would call seventeen expert witnesses. Gov't Disclosure (Dkt. 138) (listing experts in forensics, sale and distribution of controlled substances, fingerprint analysis, firearms/ballistics, cause of death, DNA, firearms identification, and gangs). In pertinent part, this disclosure summarized the testimony that Nedoff and Bornstein would provide. Id. at 2-4, 15-16. The Government also attached to the disclosure the curriculum vitae of all its proposed experts, including Nedoff's and Bornstein's. See Nedoff CV (Dkt. 138-7), Bornstein CV (Dkt. 138-18).
After making these disclosures, Defendant Norwood filed his "Motion to Exclude or Limit Expert Testimony, and, in the Alternative, for Additional Discovery." Norwood Mot. (Dkt. 211). Defendant Jonathan Oldham filed his "Motion for Rule 16 Disclosure and to Limit Testimony." Oldham Mot. (Dkt. 263).
Whether the Court will permit the proffered expert testimony by Nedoff and Bornstein turns upon Federal Rule of Evidence 702 and applicable case law. Under Rule 702, a "witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion" if the following criteria are met:
Fed.R.Evid. 702.
Rule 702 places a special obligation on the trial court to be a gatekeeper, ensuring that "any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Kumho Tire Company v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court clarified that
With these principles at hand, the Court first proceeds to examine whether Nedoff's proposed testimony concerning the sale and distribution of narcotics is admissible, and concludes that it is. The Court then examines Bornstein's proposed testimony regarding gangs, and determines that it is not admissible.
The Government proposes that Nedoff testify as a drug-trafficking expert regarding "the common practices employed by individuals who sell illegal narcotics and conduct that would be consistent with distribution and/or an intent to distribute." Gov't Supp. Disclosure (Dkt. 333). The Government further states that Nedoff will provide the following specific opinions:
Gov't Am. Disclosure at 2-4 (Dkt. 382). Nedoff will formulate his opinions by drawing from his DEA training, investigative experience, and training of other law enforcement officers. Id. at 4-6. Nedoff has testified three times as an expert on narcotics. Id. at 6-7.
In attacking the Government's proposed use of Nedoff, Defendants assert that the authority cited by the Government does not support the Government's proffered testimony of Nedoff regarding drug trafficking in general. Gills Supp. Br. at 6-9 (Dkt. 345). Defendants demand that the Government provide more appropriate legal authority and/or more facts to substantiate Nedoff's training and experience to qualify him as an expert. Id. at 9. Defendants argue that Nedoff lacks the specialized knowledge or reliable methods of analysis to qualify him as an expert under Federal Rule of Evidence 702. Id. at 10-12. Defendants state that Nedoff should be prevented from opining that firearms are commonly associated with drug trafficking, unless the Court finds that "something more than assumptions and suppositions" supports that opinion. Id. at 12.
The Government argues that Nedoff qualifies under Rule 702 and Daubert, and will assist the jury. Gov't Br. at 2 (Dkt. 364). The Government asserts that Rule 702 allows for opinion testimony from experts qualified by their "specialized knowledge." Id. The Government explains that, because Nedoff will not offer scientific testimony, the analysis demanded by Daubert has limited application. Id. The Government claims that, under Sixth Circuit precedent, non-science experts with specialized knowledge can testify from their practical experience, and that the kind of testimony that Nedoff would provide is routinely admitted because his specialized knowledge will assist the jury in understanding street-level drug dealing. Id. at 4-5.
The Court agrees with the Government and will permit Nedoff to testify as an expert on drug trafficking.
As the Government notes, see id. at 4-5, the Sixth Circuit has applied the Daubert standard to law enforcement officers testifying as experts on drug trafficking. See, e.g., United States v. Lopez-Medina, 461 F.3d 724, 742 (6th Cir.2006). Courts have consistently held that a police officer's expert testimony is admissible where such testimony "will aid the jury's understanding of an area, such as drug dealing, not within the experience of the average juror." United States v. Jemison, 310 Fed. Appx. 866, 875 (6th Cir.2009) (quotation marks omitted). "Courts generally have permitted police officers to testify as experts regarding drug trafficking as long as the testimony is relevant and reliable." United States v. Johnson, 488 F.3d 690, 698 (6th Cir.2007).
The Court will also permit Nedoff to testify that firearms are commonly associated with drug trafficking. In the Sixth Circuit, courts have taken "a very tolerant view of the admissibility of expert testimony linking the presence of firearms to drug trafficking activities." United States v. Swafford, 385 F.3d 1026, 1030 (6th Cir. 2004). Defendants have failed to recognize this authority, and offer no rebuttal to the "utterly routine" introduction of testimony regarding "tools of the [drug] trade" from experts. United States v. White, 563 F.3d 184, 190-191 (6th Cir.2009).
Likewise, the Court rejects Defendants' argument that allowing Nedoff to testify will be cumulative because fact witnesses will testify at trial regarding drug trafficking and because drug references in popular culture are commonplace. Based on his specialized knowledge, Nedoff's opinions may assist the jury in understanding the fact-based evidence presented at trial concerning drug trafficking, which courts have long-determined to be "beyond the understanding" of an average person. Swafford, 385 F.3d at 1030. The Court also rejects the argument that expert testimony regarding distribution is unnecessary because Defendants are not claiming drugs were possessed strictly for personal consumption. Even in the absence of such a defense, the Government is entitled to explain the indicia of drug trafficking, given the trafficking's alleged central role as the raison d'etre of the Howard Boys.
Accordingly, the Court denies Defendants' motions to the extent they seek to exclude Nedoff from providing expert testimony.
With respect to Bornstein, the Government proposes that he would provide opinions on "the organization and operation of neighborhood-based street gangs." Gov't Supp. Disclosure at 3. "Specifically, Agent Bornstein will render an opinion regarding the common features and attributes of neighborhood-based street gangs." Id. According to the Government, Bornstein can opine on the following relevant features
Gov't Am. Disclosure at 7-12.
The Government states that Bornstein's testimony will be based on his experiences as a case agent — when he investigated gangs located in Oklahoma City, Oklahoma, and Hartford and New Haven, Connecticut — and his experience and knowledge from his time as a supervisory special agent of the FBI's "Safe Streets and Gang Unit." Id. at 12-14. The Government represents that Bornstein has developed an understanding of gang culture through his analysis of conversations intercepted by wiretaps in investigations involving gangs, and his debriefing of cooperating witnesses. Id. at 14-15. Lastly, the Government discloses that Bornstein has testified as a "narcotics/gang expert" in three cases in the District of Connecticut. Id. at 15.
At the evidentiary hearing, Bornstein testified to his background, experience, knowledge, and opinions. Bornstein testified that he has a bachelor's degree in geology from DePauw University and a master's degree in geochemistry from the University of Missouri at Rolla. Tr. at 7. Bornstein first began his career in law enforcement in 1993 with the Environmental Protection Agency, but then transferred to the Department of Interior's Bureau of Land Management in 1995. Id. at 7. Bornstein then joined the FBI in 1996. Currently, Bornstein is the unit chief of the cellular analysis survey team at the FBI's national headquarters in Washington, D.C. Id. at 6.
Bornstein provided an overview of his FBI career. Upon graduating from the FBI academy, Bornstein was initially assigned to the FBI field office in Oklahoma City, Oklahoma. There, Bornstein first worked on environmental crimes, but ultimately moved to drug/gang investigations, focusing on gangs in Oklahoma City. Id. at 19. The first gang Bornstein focused on was the "James Crew," which distributed crack cocaine. Id. at 20. The investigation of the James Crew involved cooperating witnesses, PIN registers of cell phones, and wiretaps. Id. In addition to the James Crew, Bornstein stated that he investigated other organizations in Oklahoma involved in methamphetamine distribution that he considered to be gangs. Id. at 21-22. In 2000, Bornstein transferred to El Centro, California to work on narcotics and public corruption matters in relation to Mexican cartels. Id. at 22. This stint did not focus on American street gangs. Id.
In 2001, Bornstein transferred to the Meriden Resident Agency of the FBI's New Haven, Connecticut division. Id. Bornstein worked in Connecticut until 2012, discounting an 18-month interval from 2008-2010, when he was temporarily assigned to Washington, D.C. During his tenure in Connecticut, Bornstein initially was a task-force coordinator for the Northern Connecticut Violent Crime Gang Task Force. Id. at 23. In this position, Bornstein primarily investigated "neighborhood-based street gangs." Bornstein's duties in Connecticut from 2001-2008 involved several investigations into local or neighborhood-based gangs, including the Five Corners Street Crew, the Jamaican Posse crew, the Lower Edgewood Street Crew, the Nelton Court Crew, the Savage Nomads, the South Marshal Street Crew,
Bornstein then took an 18-month break from working in Connecticut (September 2008 — May 2010), so that he could work as supervisory special agent for the FBI's Safe Streets and Gang Unit in Washington, D.C. Id. at 33. According to Bornstein, working at FBI headquarters gave him a national perspective on gangs. Id. Bornstein stated that he saw parallels among neighborhood-based street gangs around the country, such as the use of "gangsta" rap music and social media. Id. at 34. During this time at headquarters, Bornstein would receive "significant activity reports" and "intelligence information reports" that would appraise him of gang activity across the nation. Id. at 34-35. Bornstein stated that the review of those reports led him and others to change the FBI's strategy in combating gangs. Id. at 36.
However, Bornstein's area of concentration at the time he was working for the Safe Streets and Gang Unit was the "west region," which is not defined in the record. Id. at 35. Moreover, the record is devoid of any information concerning the particulars of the reports he received, i.e., the types and level of detail of information contained therein, how detailed they were concerning the subject gangs, what types of gangs were most prominent in the reports, how the reports led to changes in the FBI's strategy, or what these changes in strategy were.
In addition to his participation in investigations and coordinating FBI strategy, Bornstein attended trainings that addressed gangs. Bornstein stated that his training at the FBI academy included programming "associated with the strategies and understandings of street gangs." Id. at 8. While stationed in El Centro, California from 2000-2001, Bornstein attended the Southern California Gang Conference, which he believed was presented by the National Gang Association. Id. at 9. Bornstein testified that the conference focused on national gangs. Id. at 10. In 2009, Bornstein also audited a course with the Los Angeles county sheriff's department regarding national gangs. Id. at 10-11. Bornstein also helped organize training for the FBI Safe Streets Initiative, also in 2009. Id. at 11-12. This training focused on regional and national gang trends, best practices, FBI strategies in combating gangs, new legal requirements, and investigative techniques. Id. Bornstein explained that the FBI Safe Streets Initiative was an FBI-led effort to support local law enforcement partners around the nation in combating violent crime, including the emerging threat of gang violence. Id. at 12.
Regarding his prior service as an expert witness, Bornstein stated that he had testified as an expert witness four times in cases relating to drug trafficking, three times in Connecticut and once in Oklahoma. Id. at 36-37. In those cases, Bornstein testified as to the distribution of narcotics and the use of firearms as a tool of drug traffickers, but not about a specific gang or gang practices in general. Id.
Bornstein testified that "the Department of Justice has defined a gang as being three or more individuals that collectively identify themselves within a group and this group utilizes fear and intimidation by employing various ... techniques or various forms of culture to express their group." Id. at 24. National gangs are "multi-jurisdictional" and "usually have more of a hierarchy structure." Id. A neighborhood-based street gang, in contrast, operates only in a small area, perhaps "born through housing project developments, individuals that grow up together that form an alliance, that share blocks in where they could distribute narcotics." Id. at 25-26. According to Bornstein, although a neighborhood-based street gang would adopt some outward signs aligned with a national gang, such as clothing or colors, the neighborhood-based street gang would not actually owe allegiance to the national gang. Id. at 26.
Bornstein also testified concerning some of the common practices, attributes, and traits of gangs. Id. at 37-50. Bornstein stated that "the commonality" between neighborhood-based street gangs is how they are formed, usually drawing gang members from a particular housing project or community. Id. at 37. Furthermore, individuals join gangs in order to distribute narcotics. Id. at 38. In doing so, gangs "defend territory" from other gangs to secure the profit margins from the gang's drug trafficking. Id. In order to defend their territory, Bornstein stated that gangs use violence. Id., which serves as a deterrent to other gangs or individuals who would encroach upon a gang's territory, and as a method to enhance a gang's or gang member's credibility. Id. at 39.
In addition to territory and violence, Bornstein testified that gangs generally make use of internal codes or rules, graffiti, rap music, social media, tattoos, handshakes, and hand signs to define or differentiate themselves. Id. at 40-46. Gangs also, as stated by Bornstein, use weapons to promote their endeavors, such as coordinating a supply of narcotics. Id. at 46-47, 48-49. Gangs commonly support incarcerated members and pay homage to deceased members. Id. at 47-48. Lastly, Bornstein stated that gangs can have subgroups, which can lead to infighting, "just like with any other organization." Id. at 49-50.
On cross-examination, Bornstein provided more details regarding his experience and the bases for his opinions. Bornstein testified that he had never been to Flint, Michigan prior to the evidentiary hearing, and had not participated in the investigation of the instant case or even knew of the Howard Boys before this case. Id. at 51, 82-83. Bornstein explained that he only became involved in the case when attorneys for the Government contacted him about being an expert witness. Id. at 51.
With respect to RICO, Bornstein stated that he was familiar with the statute and recognized it as one of the FBI's "tools." Id. at 15. Bornstein agreed that for there to be a RICO charge, there "must be an allegation of the existence of some kind of an enterprise." Id. at 60. Furthermore, in answer to cross-examination, Bornstein stated that he understood that his testimony regarding gangs went "to that part of the case that deals with the allegation of the existence of an enterprise." Id. 60-61. In other words, Bornstein affirmed that his purpose "was to give testimony about gangs because it related to the allegation the government has brought, an indictment
Queried about the terms "gang" and "neighborhood-based street gangs," Bornstein explained that he drew from the totality of his FBI experience in defining and understanding those terms. For the term "gang," Bornstein stated that his opinion regarding the definition of what constitutes a gang, as set forth in the Government's Amended Expert Disclosure (Dkt. 382), is the DOJ definition of a gang.
For the term "neighborhood-based street gangs," Bornstein testified that the term was used by the FBI and law enforcement agencies as a way to distinguish such gangs from national gangs. Id. at 63-64. Bornstein stated that the way he defined a "neighborhood-based street gang" was based upon his "personal experience of being a case agent" and his "national experience." Id. at 81. In essence, Bornstein testified that he was "giving an opinion of what a neighborhood-based gang is by our definition at the FBI." Id. When asked whether his understanding of what a gang is had a degree of subjectivity, Bornstein disagreed. He stated that his understanding was "[n]ot necessarily" subjective because, "at least in the Bureau world[,] we have a good sense of what is a gang in the sense of three or more individuals that have a common identity, purpose of committing criminal acts." Id. at 94. He believed that the FBI has "a fairly decent definition of a gang or a violent street crew." Id.
Defendants challenge the use of Bornstein on several grounds. Defendants criticize
Defendants also argue that Bornstein's actual purpose will be to establish "the RICO enterprise element" of Count I of the indictment, which is improper because the Government should not be allowed to "shortcut" its proof of facts "by presentation of a sophisticated expert witness." Norwood Br. at 4 (Dkt. 344). Defendants observe that Bornstein's opinions are unnecessary because establishing the elements of the purported RICO enterprise does not require "specialized police witnesses." Norwood Br. at 4 (Dkt. 503). Defendants claim Bornstein's testimony would shift the "jury's responsibility for assessing fact evidence to the police"; this would "allow[] the expert to do the prosecutor's job reserved for summation in closing argument." Id.
In addition, Defendants raise concerns that Bornstein's testimony is not reliable or credible. Defendants question how Bornstein can offer any insight by drawing only from his own experience, without any connection to the facts of this case. Norwood Br. at 5-10 (Dkt. 503). Defendants also assert that Bornstein lacks credibility because he has never been qualified as a "gang expert." Gills Br. at 8 (Dkt. 500).
Lastly, Defendants claim that Bornstein should not be allowed to testify because it would be unfairly prejudicial under Federal Rule of Evidence 403. Norwood Br. at 10-11 (Dkt. 503). Defendants point out that Bornstein is a senior FBI official who will be called to give opinions that closely track the indictment. This is unfair, according to Defendants, because Bornstein will draw upon his collective, general, gang experience and state that Defendants are in a gang. Id.
The Government responds to each argument made by Defendants. The Government asserts that Bornstein's testimony is "highly relevant" because it will aid the jury in understanding something outside the experience of the average juror. Gov't Br. at 2-3 (Dkt. 517). In particular, Bornstein will be able to assist the jury in understanding the meaning of graffiti, tattoos, hand signs, the distinction between national and neighborhood-based street gangs, gang codes and mores, promotion within gangs, and the projection of violence by gangs. Id. The Government claims that street gangs are not within the area of expertise of the average juror, and that courts have allowed similar testimony in other cases, especially cases involving drug trafficking.
The Government also notes that Bornstein's testimony is relevant, even though he did not investigate the case, because he can educate the jury on gangs in general. Id. at 4-6. Acknowledging cases where courts have rejected using law enforcement officers who participated in the investigation
In addition, the Government maintains that rigid application of the Daubert standard is inappropriate here because Bornstein's expertise is derived from his personal knowledge and experience. Id. at 4. The Government contends that Bornstein's testimony is reliable because he derives his opinions from his career at the FBI combating gangs, including the development of strategies for law enforcement. Id. at 6-7. Furthermore, the Government asserts that Bornstein has a methodology: "the application of his extensive experience to analyze the common traits, attributes, and practices of street gangs." Id. at 8. Even though Bornstein has never been qualified as a gang expert before, the Government states that all experts have to be qualified for the first time. The Government also argues that Bornstein's credibility or his testimony should not be undermined or deemed unreliable just because he misunderstood that he was qualified as a narcotics expert, not a gang expert, in previous cases. Id. at 9.
Lastly, the Government argues that Bornstein's testimony will not be unfairly prejudicial. Gov't Br. 9-11.
Courts have permitted law enforcement officers to testify as expert witnesses with respect to organized criminal activity, including gangs, where such expert testimony meets the required standards of relevance and reliability. United States v. Tocco, 200 F.3d 401, 419 (6th Cir.2000). But no court has sanctioned expert testimony of a gang expert in a context similar to the context of our case.
Typically, law enforcement officers testify to the "inner workings" of a particular gang or organized criminal group. Id. (relating to the Detroit branch of the Cosa Nostra), and provide a "broader context" of a particular gang's "origins and history," United States v. Archuleta, 737 F.3d 1287, 1296 (10th Cir.2013) (permitting expert testimony regarding the Sureños, a gang in New Mexico). Gang experts can also add details about the structure, purpose, and activities of a particular gang. Archuleta, 737 F.3d at 1296; see also United States v. Kamahele, 748 F.3d 984, 997-98, 2014 WL 1378269, at *5 (10th Cir. 2014) (holding that district court properly exercised discretion in allowing gang-expert testimony because such testimony about the Tongan Crip Gang's structure, insignia, and history would be beyond the knowledge of a typical juror).
Similarly, courts have permitted gang experts to provide opinion evidence regarding a particular gang's slang, signifying colors, and other indicia of membership. See United States v. Hankey, 203 F.3d 1160, 1169 (9th Cir.2000) (upholding admission of police expert testimony on gang colors, signs, and activities). "Gang-related" items have also been recognized as a topic worthy of expert testimony "if the jury could not understand the significance of possession of these items." United States v. Robinson, 978 F.2d 1554, 1563 (10th Cir.1992).
Such expertise usually arises from the officer's significant experience investigating a particular gang. See Tocco, 200 F.3d at 419 (organized crime expert had "22 years with the FBI, 17 of which were spent in organized crime investigations, and his role since 1990 as the Cosa Nostra coordinator for the Detroit division, and as liaison with other FBI offices and FBI
On the other hand, expert testimony has been rejected when the proposed expert witness lacked relevant experience with a particular group. See, e.g., United States v. Stone, 279 F.R.D. 434, 441-442 (E.D.Mich.2012) (precluding Government's proposed "academic expert" on conspiracy theories from testifying by concluding, in part, that the expert lacked "experience and familiarity" with the group in question — the Hutaree, an anti-government militia).
In light of the cases involving gang experts and the evidence adduced at the evidentiary hearing, the Court concludes that Bornstein's proposed testimony is unreliable and irrelevant, and that his opinions would not aid the jury.
The Court first determines that Bornstein's opinions are not sufficiently reliable for them to be placed before a jury. Bornstein's opinions concerning gangs arise from the totality of his experience in Oklahoma, California, and Connecticut, and from a national perspective while he was in Washington, D.C. This case, however, concerns the Howard Boys and their alleged territory in Flint, Michigan. Bornstein has never investigated the Howard Boys or other gangs in Michigan, let alone Southeast Michigan or Flint. Given Bornstein's lack of knowledge of the Howard Boys and the region, there is no way for the Court to know whether the gangs with which Bornstein is familiar, such as the Nelton Court Crew, are sufficiently similar to the Howard Boys as to make his generalized opinions reliable for this case. Simply put, Bornstein's lack of familiarity with the particular gang or locale at issue in this case makes his opinions unreliable to be placed before the jury.
Thus, this case is much like Stone, where an expert without specific knowledge of the subject group was barred from testifying. Compare Tocco, 200 F.3d at 419 (expert had extensive experience with the Mafia); Kamahele, 748 F.3d 984 (expert had years of experience with the Tongan Crips and testified as to Tongan culture); Montoya, 2013 WL 633586 (expert had interviewed over 50 members of the MS-13 gang). Indeed, the Court is aware of no case — and the Government identifies none — in which a generalized gang expert, without knowledge of the specific gang in question, was permitted to testify.
Nothing in Bornstein's history as an expert witness would establish that he has comprehensive nation-wide expertise that could be reliably applied to the Howard Boys. Bornstein's CV and testimony at the evidentiary hearing reveal that he believed he had been qualified as a "narcotics/gang" expert four times. Bornstein CV at 2; 3/26/14 Tr. at 132. However, Bornstein clarified that only one case involved gangs and, in that single instance, the subject of his testimony addressed the use of weapons by gangs in drug trafficking. Id. at 132-137. Such limited testimony is a far cry from the opinions the Government wants to elicit regarding a generalized variety of gang practices and activities.
The Government contends that Bornstein's proposed testimony would be reliable because "the law enforcement gang expert" is analogous "to the law enforcement drug trafficking expert." Gov't Br. at 7 (citing United States v. Ham, 628 F.3d 801 (6th Cir.2011)). Because of this similarity, the Government reasons that Bornstein's opinions are sufficiently reliable, deriving from his career at the FBI combating gangs and involving a methodology consisting of "the application of his extensive experience to analyze the common traits, attributes, and practices of street gangs." Id. at 8.
The Court is not persuaded, however, that a drug-trafficking expert is sufficiently analogous to an expert offering testimony regarding the general practices of gangs. While the Sixth Circuit permits generalized drug sale and distribution testimony, see United States v. Combs, 369 F.3d 925 (6th Cir.2005), the cases allowing gang experts regularly discuss the expert's familiarity with the subject gang, see, e.g., Kamahele, 748 F.3d at 997-98, 2014 WL 1378269, at *5 (Tongan Crips); Tocco, 200 F.3d at 419 (La Cosa Nostra); Montoija, 2013 WL 633586 (MS-13).
The difference in treatment may well derive from the fact that drug traffickers are individuals who engage in more or less routinized operations. Gangs, however, are organizations, which may display idiosyncratic behaviors based on culture, historic origins, and geographic considerations. See Jordan Blair Woods, Systemic Racial Bias and RICO's Application to Criminal Street and Prison Gangs, 17 Mich. J. of Race & L. 303, 336-339 (2012) (noting "wide regional variability in gang activity"); see also Benitez Ramos v. Holder, 589 F.3d 426, 430 (7th Cir.2009)
There is another issue of reliability regarding Bornstein's proposed testimony, which, although not mentioned by Defendants, the Court highlights in its role as gatekeeper under Rule 702. United States v. Stafford, 721 F.3d 380, 393-394 (6th Cir.2013). This concern relates to Bornstein's opinion of what constitutes a gang. Bornstein agreed that his opinion of what constitutes a gang tracks, almost verbatim, DOJ's definition of what constitutes a gang. 3/26/14 Tr. at 69-70. But Bornstein also acknowledged that the definition of a gang is not universal, and that different definitions exist — although these other definitions are not in the record. Id. at 70.
The Court has no indication why Bornstein's opinion of what is a gang is a reliable definition. As "the trial court's gatekeeping function requires more than simply `taking the expert's word for it,'" Fed.R.Evid. 702, 2000 Advisory Committee Notes, Bornstein's acknowledgment of other definitions, and the lack of any evidence of the extent to which his definition has been accepted or used by others, deprives the Court of the ability to assess the reliability of his opinion of what constitutes a gang. See Jack Henry & Assocs. v. BSC, Inc., 487 Fed.Appx. 246, 256 (6th Cir.2012) (holding that definition of "defect" used by expert in breach-of-contract case was unreliable because it had not been subject to peer review, tested, or widely accepted in the scientific community).
The unreliability of Bornstein's testimony is compounded by its irrelevance. The Government has offered no explanation why the finding of a gang in this case is relevant to a RICO enterprise determination. A RICO charge requires the Government to prove four elements: (i) conduct, (ii) of an enterprise, (iii) through a pattern (iv) of racketeering activity. See Ouwinga v. Benistar 419 Plan Servs. Inc., 694 F.3d 783, 791 (6th Cir. 2012). To establish the enterprise element, the Government must prove "three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise's purpose." Boyle v. U.S., 556 U.S. 938, 946, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009).
The Government, as the proponent of Bornstein, has not explained how the expert gang testimony would bear on the enterprise issue in this case. Bornstein himself will not link his views to the enterprise issue because the Government has expressly stated that Bornstein would not be giving an expert opinion regarding the criminal enterprise. 3/26/14 Tr. at 55-56. It appears, then, that the Government's unarticulated theory of relevance may rest on the simple conflation of street gangs with RICO enterprises. However, the Government has not set forth any clear argument why a jury's conclusion that the Howard Boys are a gang should lead it, without more, to conclude that the Howard Boys are a RICO enterprise. The Government's failure to properly develop its relevance argument does not require the
Even assuming that Bornstein's testimony was somehow relevant, the Court alternatively excludes his testimony under Federal Rule of Evidence 403 because of the risk his testimony would confuse or mislead the jury. United States v. Beverly, 369 F.3d 516, 528 (6th Cir.2004) (citing Daubert, 509 U.S. at 595, 113 S.Ct. 2786 (directing that "a judge assessing a proffer of expert ... testimony under Rule 702 should also be mindful of other applicable rules[,]" such as Rule 403)). Courts may exclude relevant evidence under Rule 403 if the evidence's probative value is substantially outweighed by the danger of confusion of the issues or misleading the jury, among other bases. Fed.R.Evid. 403; see also United States v. Cosgrove, 637 F.3d 646, 660-661 (6th Cir. 2011) (holding that exclusion of defense expert-witness testimony due to confusion and potential to mislead the jury was proper under Rule 403).
In this case, the jury will be required to decide whether a RICO enterprise exists. As the Government has apparently conflated the concept of a gang with the concept of a RICO enterprise, a similar muddling of the concepts of gang and RICO enterprise by the jury may occur if Bornstein is permitted to testify. Bornstein's testimony, although ostensibly about gangs, could be mistaken as establishing — without more — the existence of a RICO enterprise. In other words, the jury might easily conclude that the Government has met its burden of establishing the enterprise element simply by establishing that the Howard Boys are a gang. Exclusion of Bornstein's testimony under Rule 403 is proper to avoid confusing or misleading the jury.
Finally, Bornstein's testimony will not be helpful to the jury. The topic of gangs in general is not particularly complicated, nor is it outside the understanding of the average juror. Indeed, courts have recognized that "[m]ost jurors are aware that gang members deal drugs, commit violent acts, and react unfavorably when their misdeeds are reported to authorities." United States v. McGee, 408 F.3d 966, 978 (7th Cir.2005) (affirming rejection of defendant's proposed gang expert because, in part, substance of testimony was not "beyond the ken of the average juror"). Bornstein's proposed opinions address relatively simple matters that a layperson can understand without an expert's assistance, i.e. what constitutes a gang, and how gangs control a particular geographic region and engage in criminal activity, such as violence and drug trafficking. And these are matters that can be presented through fact witnesses relating specific facts relevant to the Howard Boys — not generalized opinions based on gangs in far off regions of the country. In such circumstances, an expert is neither necessary nor helpful.
For the reasons stated above, Defendants' motions are denied in part and granted in part. The Court shall permit Nedoff to testify as an expert witness on the sale and distribution of narcotics at trial. The Court, however, excludes Bornstein from testifying at trial because his opinions are unreliable, irrelevant, and unhelpful to the jury.
SO ORDERED.
Gov't Am. Disclosure at 7 (Dkt. 382). This definition closely tracks, in pertinent part, the DOJ's definition of a gang:
DOJ "Definition of Gangs," available at http://www.justice.gov/criminal/ocgs/gangs/.
