United States v. Smith (P)

In the defendants’ trial for gang-related violence, the district court properly addressed some jurors’ fears about gang retaliation and admitted an FBI agent’s expert testimony decoding intercepted calls between gang members.

After learning of one juror’s fears, the district judge here questioned each juror individually. That required balancing the need to detect bias against the concern that inartful questioning could itself generate bias. The trial judge thus asked about bias directly, without explicitly discussing the particular juror or any fears of violent retaliation. In evaluating their responses, he considered the jurors’ reactions and, where necessary, followed up. He made reasoned judgments in walking the line between detecting bias and creating bias. This court is not here to micro-manage those considered choices.

As to the FBI agent, the defendants claim first that his experience-based linguistic opinions were not the product of a reliable methodology for interpreting coded jargon. They further argue that the agent impermissibly blended fact and expert testimony, creating jury confusion and unfair prejudice.

It’s not surprising that the agent didn’t always point to a specific experience that informed each expert opinion. He based his interpretations on years of investigatory experience and exposure to thousands of gang and drug conversations. The application of this experience to analyze the meaning of certain terms does not lend itself to a direct correlation between one experience and one opinion. This is much like how foreign-language interpreters apply their training and experience to translate conversations.

Some aspects of the agent’s fact testimony were not only permissible but indeed necessary to provide context for his interpretations of the intercepted calls. An expert’s methodology cannot be applied in a factual vacuum. Thus, an expert in code or language must consider the context surrounding the language in determining the appropriate interpretation. Along with date, time, and participants, the context of a conversation also includes the surrounding circumstances, like whether a participant in the call was incarcerated or whether police found a man shot shortly after a call seemingly authorized a shooting. Far from generating confusion for the jury, including this factual context reduced the risk of jury confusion by providing a more coherent narrative of the investigation and a proper framework for the agent’s expert opinions.


United States v. Smith (P), No. 16-4746, Mar. 27, 2019. 4th Cir. (Richardson) from DMD at Baltimore (Bredar).

Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published

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