Free Motion to Strike - District Court of Colorado - Colorado

Case 1:04-cr-00403-LTB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00403-LBT UNITED STATES OF AMERICA, Plaintiff, v. 5. JOSE ALFREDO ZAPATA, et al, Defendants. ________________________________________________________________________ MOTION TO STRIKE PUTATIVE EXPERT TESTIMONY ________________________________________________________________________ Comes now Defendant Jose Alfredo Zapata, through counsel, Richard J. Banta, pursuant to Rule 47, Fed. R. Cr. P, and this Court's Order of May 15, 2006, and, on behalf of himself and the Co-Defendants, respectfully moves the Court for an Order granting this Motion. In support of such Motion, Defendant states the following: 1. The Government has filed a Notice of Intent To Call Expert Witnesses

(Notice) pursuant to Fed. R. Cr. P. 16(a)(1)(E), and Fed. R. Evd. 702. 2. In such Notice, the Government offers DEA Supervisory Agent Ralph

Villaruel, DEA Special Agent Albert Villasousa and FBI Special Agent Kim Buchanan as "experts" "[i]n the area of general practices of the illegal drug trade and the use and meaning of code words or terms used in conversations furthering illegal drug trade in this case...."

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3.

With respect to the meaning of alleged code words, the Government

on pages 5 through 8 of the Notice sets forth examples of what it claims are code words and the "experts" interpretation of such code words. 4. The Notice then goes on at length, setting forth the alleged "experts"

qualifications, the "methodology protocol" used, and legal authority in support of allowing the proffered expert testimony. 5. It is Defendant Jose Alfredo Zapata's position that the described

testimony does not meet the criteria of Rule 702 relating to expert testimony, and in fact, a thoughtful analysis of the described code words shows that such words do not require at all the assistance of expert testimony. 6. Rule 702 provides, inter alia, that "If technical, scientific or other

specialized knowledge will assist the trier of fact to understand the evidence, or to determine a fact in issue..." then an "expert" may testify if such expert and the expert's testimony meet the three criteria set forth in the Rule. 7. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.

Ct. 2786, 125 L.Ed.2d 469 (1993) and its progeny, including Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), require the court to act as a "gatekeeper" with respect to expert testimony of all kinds, not merely that testimony based upon `scientific' knowledge and to apply its discretionary authority under F.R.E. 403 to insure that the probative value of the evidence is not substantially outweighed by unfair prejudice. 8. The "bases and reasons" for the "expert" opinions of the agents here do

not depend, as is required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), on reliable evidence which may be

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determined by assessing "whether the reasoning or methodology underlying the testimony is scientifically valid." Daubert, 509 U.S. at 592-93. 9. In this regard, and in focusing on scientific reliability under Daubert, The

Tenth Circuit has said that "`an inference or assertion must be derived by the scientific method . . . [and] must be supported by appropriate validation ­ i.e. `good grounds,' based on what is known.'" Hollander v. Sandoz Pharmaceuticals Corporation, 289 F.3d 1193, 1205 (10th Cir.) (quoting Daubert, 509 U.S. at 590), cert. denied, 537 U.S. 1088 (2002). The Tenth Circuit has articulated four nonexclusive factors that the trial court may consider in assessing reliability from Daubert as follows: "In Daubert, the Court listed four factors that, while not an exclusive list of considerations for a trial court, will often be important in making this assessment: (1) whether the opinion [at issue] has been subjected to testing or is susceptible of such testing; (2) whether the opinion has been subjected to publication and peer review; (3) whether the methodology used has standards controlling its use and known rate of error; (4) whether the theory has been accepted in the scientific community". Truck Insurance Exchange v. MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). The Tenth Circuit has further stated that: "Generally, the district court should focus on the experts' methodology rather than the conclusions that they generate. See Daubert, 509 U.S. at 595, 113 S.Ct. 2786.

However, the experts' conclusions are not immune from scrutiny: "A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." [General Electric Co. v. Joiner, 522 U.S. 136, 147, 118 S.Ct. 512, 139

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L.Ed.2d 508 (1997)] ("[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit 1 of the expert."). Hollander, 289 F.3d at 1205. 10. In reviewing the Government's Notice, and particularly the section of the

Government's Notice captioned "Methodology Protocol" (see Notice at page 12), it is apparent that the "bases and reasons" for the agents' "expert opinions" are their subjective conclusions , i.e., subjective ipse dixit. There has been no described testing nor any report that the agent's ipse dixit opinions are even susceptible to testing. The Government's Notice does not state that the proffered opinions have been subjected to publication and/or peer review (most probably because there has been no publication and/or peer review and, further, such ipse dixit opinions are not susceptible to publication and/or peer review). The Government does not purport to disclose that the

"methodology" used by the agents has any standards controlling its use, including a known rate of error (most probably again because such ipse dixit opinions are the subjective creations of the agents and are not capable of being standardized or having a rate of error beyond a mere toss of the coin). 11. This case involves an alleged drug conspiracy. 12. 13. The jury will be so advised at the beginning of the case. The jury may be allowed to listen in on certain conversations between various defendant's that took place during the time frame of the alleged conspiracy. 14. The Government's Notice fails to state why the jury will be unable to fairly and competently evaluate the various phone calls without one of the agents giving

"He himself said it; a bare assertion resting on the authority of an individual." Black `s Law Dictionary 961 (4th ed., 1968).

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their subjective opinion as to what the participants to those conversation are discussing. 15. The purpose of Rule 702 is to provide the trier of fact with scientific,

technical or other specialized knowledge that will be helpful to an understanding of certain issues in the case that, but for such knowledge, the trier of fact would otherwise be at a loss to understand 16. The subjective opinions of the agents here will not assist the jury in

understanding that of which their common sense and life experiences will inform them regarding the phone calls. 17. There is no showing, for example, that drug traffickers use a common

dialect, or use common slang, jargon or code words that are routinely understood in the community, so to speak, to be code words for various types of drug transactions. 18. them to mean. 19. 20. This is not a proper application of Rule 702. The jury can and will be instructed to use their common sense and every Here, under the Notice, the code words at issue mean what the agents want

day life experiences when evaluating this evidence just as they do with all other evidence submitted at trial. 21. The Court's "gatekeeper" role is particularly critical regarding Jose

Alfredo Zapata, against whom the Government will offer only two or three calls, one of which, call example number 31 in the Notice, involves the use of the words "nine pesos" (Notice at page 7)..

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22.

It is submitted it would be a violation of Rule 702 as well as the Fifth

Amendment due process clause to allow any of the proffered "experts" to give their subjective opinion as to the meaning of the words "nine pesos" and similar phrases as proposed by the Government.. 23. There has simply been no adequate showing that Rule 702 testimony is

necessary to assist the jury in understanding the phone call evidence the government intends to introduce at trial. 24. The proffered expert testimony should be excluded at trial.

Wherefore, Defendant Zapata respectfully prays that the Court enter an Order granting this Motion, and granting such further relief as the court deems just and proper.

Respectfully submitted, /s/Richard J. Banta Richard J. Banta 1361 Elizabeth St. Denver, CO 80206 303-860-8048

CERTIFICATE OF SERVICE I hereby certify that on June 2nd, 2006 I electronically filed the foregoing motion with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:
· · · · ·

Mitchell Baker [email protected] [email protected] Thomas K. Carberry [email protected] James A. Castle [email protected] [email protected] Lisabeth Perez Castle [email protected] [email protected] Robert Justin Driscoll [email protected] [email protected]

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· · · · · · · · · · · ·

· · · · · · · · ·

Charles W. Elliott [email protected] [email protected] Martha Horwitz Eskesen [email protected] Jennifer L. Gedde [email protected] Daniel P. Gerash [email protected] [email protected] Walter L. Gerash [email protected] [email protected] Mark Cameron Johnson [email protected] Forrest W. Lewis [email protected] Donald L. Lozow [email protected] Neil E. MacFarlane [email protected] Jeffrey S. Pagliuca [email protected] [email protected] Lynn Anne Pierce [email protected] Stephanie Podolak [email protected] [email protected];[email protected] Scott T. Poland [email protected] Michael Gary Root [email protected] James F. Scherer [email protected] Harvey Abe Steinberg [email protected] [email protected] John F. Sullivan, III [email protected] Richard L. Tegtmeier [email protected] [email protected] E. Richard Toray [email protected] [email protected] Jonathan S. Willett [email protected] [email protected] Earl Sherwood Wylder [email protected] [email protected]

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and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the manner (mail, hand-delivery) indicated by the nonparticipant's name: Angelica B. Carreon Angelica B. Carreon, P.C. 210 North Campbell El Paso, TX 79901 Lucia Consuelo Gallery Isaacson Rosenbaum, P.C. 633 - 17th Street #2200 Denver, CO 80202 Charles Louis Roberts Charles Louis Roberts, Attorney at Law 101 South Kansas El Paso, TX 79901 Anita Marcia Springsteen Anita Marcia Springsteen, Attorney at Law 5000 West 13th Avenue Denver, CO 80204

/s/Richard J. Banta____ Richard J. Banta

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