The 11th Circuit Court of Appeals released a decision on September 29, 2021, in which it addressed, among other issues, the Government’s use of an expert in interpreting drug code and drug language found in intercepted communications introduced at trial.
In United States v. Eddie Lee Perry & Chad Ragin, eight co-defendants were indicted by a federal grand jury for their involvement in a substantial multi-year, multi-state drug distribution organization. As part of the investigation, the Government obtained permission to intercept 30 days of calls from Perry’s cell phone. The Government intercepted thousands of calls, some of which involved discussions of drug processing, sales, or transactions.
The discussions in the intercepted calls included substantial use of code when describing drugs and drug activities; “drug code.” The calls also included use of nick names when referring to people. Because of this, the contents of the calls appear confusing and indecipherable to those not in the drug trade.
During trial, the Government introduced the testimony of one of the agents that worked the case; Agent Lee. Lee was presented as expert “in coded drug language and methods of trafficking, as well as the manufacture of crack cocaine from powder cocaine.” During his testimony, Lee interpreted the meaning of the drug code language in the intercepted wiretaps for the jury. Defense counsel objected to this testimony on the grounds that it invaded the province of the jury, as the jury should be allowed to interpret the communications as it saw fit and to draw whatever conclusions the jury could reasonably draw from the evidence.
In upholding the ruling by the Federal District Court to allow Lee’s testimony as an expert on drug code, the 11th Circuit noted that in the past, experienced narcotics agents had been allowed to testify as both a lay witness and an expert witness “to help a jury understand the significance of certain conduct or methods of operation unique to the drug distribution business.” Citing United States v. Garcia, 447 F.3d 1327, 1335 (11th Cir. 2006).
In this case, the Court found that Lee had extensive experience, had participated in thousands of narcotics investigations, had interviewed thousands of defendants and confidential informants, and had assisted in numerous wiretap investigations. Moreover, the Court held that he had a familiarity with the intercepted communications in this case and the particular context of those communications, as he had reviewed all of the relevant taped conversations. This, combined with Lee’s experience and general knowledge qualified him to give testimony as an expert witness interpreting the meaning of the drug code language in the intercepted calls.
The 11th Circuit did note that admission of this type evidence is not always allowed. The Court contrasted the facts in this case against those in United States v. Hawkins, 934 F.3d 1251, 1264 (11th Cir. 2019), where the testimony of the Government’s main investigator was based on summaries of evidence, interpretations of plain language, and inferences drawn from the evidence. In Hawkins, the Court noted that the investigator was “the principal prosecution witness” and testified for more than half of the trial. Also, in Hawkins, the investigator was the only witness that talked about Hawkins, and other than the investigator’s testimony there was not sufficient evidence to convict. Because of this, the admission of the investigator’s testimony greatly affected the outcome of the trial.
Based on this new decision, we believe that the admissibility of law enforcement testimony regarding the meaning of drug code or slang terms of the drug trade primarily turns on a combination of the following: the level of experience of the officer in similar cases and situations, and the level of involvement of the officer in the particular investigation. The importance of the officer’s involvement in the particular investigation lies in the fact that if they are heavily involved, they will gain a familiarity with the particular nomenclature used by the particular participants in the case.
To read the entire opinion go to the Eleventh Circuit’s Published Opinion Page and search using the appeal number: 16-11358
