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United States v. Najera

United States District Court, Tenth Circuit

May 22, 2013

Jason Najera, Pedro Garcia, Gonzalo Ramirez, Russell Worthey, Anthony Wright, Joshua Flores, Jesus Flores, Angel Cerda, Juan Torres, Alfredo Beltran-Ruiz, Donte Barnes, Jesus Sanchez, Enrique Gobin, Alfonso Banda-Hernandez, Andrew Gusman, Eusebio Sierra-Medrano, Jayson Vargas, Adam Flores, Fabian Neave, Jesus Torres, Jose Neave, Hernan Quezada, Defendants.


MONTI L. BELOT, District Judge.

On April 16, 17 and 18, 2013, the court held so-called Daubert hearings with respect to two officers the government has identified as expert witnesses about gang activity in Dodge City, Kansas. Defendants were present with counsel and, following the extensive direct testimony of both officers, all counsel had the opportunity to question the officers with respect to their qualifications and the substance of their anticipated testimony and opinions. Most elected not to question the officers, perhaps recognizing that they had gotten far more details from the officers' direct testimony than from any Rule 16 disclosures.[1]

Following the conclusion of the three days of testimony, defense counsel were offered the additional opportunity to file objections to the officers' qualifications and opinions. The court has reviewed defendants' submissions (Docs. 608, 609, 610, 611, 612, 613, 616, 617, 618, 619, 621, 622, 623, 624, 625, 626, 626-1 and 627). The majority of the defendants simply elected to join in submissions filed by a few of their codefendants.[2]

Although the term "Daubert hearing" has become common to describe challenges to the testimony of expert witnesses, the analysis of the officers' proposed testimony more properly falls under Fed.R.Evid. 702 and 703 and applicable case law. Therefore, it is important to remember what this case is about, and not about.

On April 16, 2012, the grand jury returned an indictment against 23 defendants. The indictment alleges 38 counts, including charges of violent crimes in aid of racketeering, conspiracy and felon in possession of a firearm. The indictment alleges that defendants were in a criminal organization, the Nortenos gang, whose members engaged in narcotics distribution and acts of violence including murder and robbery. These crimes were alleged to have been committed in Dodge City, Kansas, population around 27, 000. The indictment further alleges that the racketeering conspiracy began in 2008 and continued through the date of the indictment.

It is readily apparent that to a great extent, this case is about gangs, gang membership and gang activity. At least as early as United States v. Robinson , 978 F.2d 1554, 1562-64 (10th Cir. 1992), the Circuit has recognized the admissibility of gang-related evidence. Robinson was decided before Daubert but no post-Daubert Tenth Circuit case has held that expert testimony regarding gangs is inadmissible. A recent example is United States v. Roach , 582 F.3d 1192 (10th Cir. 2009). Over objection, the district judge allowed a Wichita Police Department officer to give the following testimony:

Miller went on to give expert testimony about "the types of tools of the trade that people who are affiliated with gangs, specifically the Neighborhood Crips, carry or maintain, " explaining that firearms are such a tool and are used to protect drugs and to battle with other gangs. He also testified that gang members commonly use certain slang present in the letters from Roach to Hughes, including replacing the letters "ck" with the letters "cc." Finally, he told the jury that drug dealers often use colored lights to guide their customers, and that a blue bulb in particular indicates an association with the Crips, who identify with the color blue.

Id. at 1199.

On appeal, the Circuit ruled that admission of the testimony was error, albeit harmless, but not because the detective's testimony was irrelevant. The error was the court's failure to make the requisite Rule 702 Daubert analysis and findings. The Circuit noted that "other circuits have similarly allowed expert police testimony on street gang's use of slang, signifying colors, and other indicia of membership or activity." Id. at 1207 (citations omitted).

It is reasonable to assume that most, if not all, of the prospective jurors are not now, and have not been, gang members, and will be unfamiliar with gang activity in and around Dodge City. Proper expert testimony, including testimony by defendants' gang experts, if any, will be helpful to assist the jury to understand the evidence.


The qualifications of the officers, James Nau and Shane Webb, are set forth in their resumes, attached as exhibits 1 and 2. Only three of the defendants have asserted any specific challenges to the officers' qualifications: Jason Vargas (Doc. 612), Gonzalo Ramirez (Doc. 610) and Joshua Flores (Doc. 624). It is significant that none of the challenges to the officers' qualifications is supported by reference to applicable case authority; indeed, to any case authority.

Vargas objects to the officers' qualifications because they do not have specialized education and knowledge of sociology, family studies, anthropology, art history or any of the other social sciences. Vargas does not explain why such specialized education would be necessary, for example, to explain the significance and meaning of gang colors, signs, graffiti and tattoos; how gangs in Dodge City are structured and how rival gangs interact. Vargas goes on to point out that neither officer has published any peer-reviewed articles about gangs or testified as defense experts. This may, or may not, be a persuasive basis for cross-examination at trial but it is not a basis for disqualification.

Vargas asserts that the officers lack qualifications to testify about gangs because they have not been gang members themselves. No authority is cited for this proposition, undoubtedly because there is none.[3] The illogical extension of this proposition would be that a law enforcement officer cannot qualify as an expert witness on the illegal drug trade unless he or she is a drug dealer or a drug addict.

Vargas objects that the fact that officer Webb grew up in Dodge City does not make him any more knowledgeable than any other citizen or potential juror. This objection seems to presuppose that all potential jurors are knowledgeable about gang activity in Dodge City, an especially doubtful supposition since none of the petit jurors will be drawn from Ford County. One might ask: who is more knowledgeable about Dodge City, someone who grew up there or someone, perhaps a defense expert, whose knowledge of criminal activity in Dodge City prior to being hired in this case came from watching reruns of Gunsmoke?

Finally, Vargas speculates that the officers have become hired experts rather than "... someone with independent credentials in the field of gang formation and social science." Whether the officers will be compensated by the government can be the subject of cross-examination. But if compensation is disqualifying, what about defense experts? Will they be appearing pro bono? Hardly, in view of the authorizations for payment already approved by the court. But the bigger question is why would anyone assume that a defense expert will have "independent credentials, " whatever those are? It has been this court's experience that virtually every expert has either an agenda or an identifiable bias to the side on which he or she testifies. That's how they get business and that's why they're hired. The court has yet to encounter an "expert" witness who is called by one side notwithstanding having given opinions favorable to the other side of the case.

Ramirez's objections are similar. He acknowledges that while both officers have "some training" about gangs, it is not specific to the Nortenos. But again, this objection presupposes that out there somewhere is Nortenos/Dodge City-specific training that is essential to the officers' qualifications but which the officers missed. If there is, counsel has failed to identify it. We're not talking here about the qualifications of a surgeon who never took basic courses in human anatomy. Will any defense expert have specific Nortenos/Dodge City training? Doubtful, once again.

Flores objects to the officers' qualifications because neither has written or read academic articles about gangs in southwest Kansas. The officers acknowledged that they have not written any academic articles and counsel is free to cross-examine them on this topic if he believes it will be effective. But it is not disqualifying. As to not having read academic articles about Dodge City gangs, there is no evidence that there are any such articles.

The use of law enforcement officers as expert witnesses about criminal activity is well-recognized. The fact that the expert also may be a fact witness or that some of the testimony technically may be within Rule 701 is not disqualifying, United States v. DeSoto , 885 F.2d 354 (7th Cir. 1989) and United States v. Caballero , 277 F.3d 1235, 1247 (10th Cir. 2002) ("[b]oth Rules 701 and 702 distinguish between expert and lay testimony, not between expert and lay witnesses... it is possible for the same witness to provide both lay and expert testimony in a single case.") See also United States v. Blake, No. 07-8050 , 2008 WL 2610474, at *9 (10th Cir. Jul 3, 2008). An expert's testimony can embrace the ultimate issue, so long as the testimony assists, rather than supplants, the jury's judgment. United States v. Dazey , 403 F.3d 1147, 1171 (10th Cir. 2005). (This is not to imply that the court endorses such opinions - they are problematic, at best.) The keys are reliability and helpfulness to the jury and, as the cases cited in the next section demonstrate, expert testimony by law enforcement officers is routinely received as helpful to jurors who are not familiar with criminal activity.

In summary, the court finds that officers Webb and Nau are sufficiently qualified by knowledge, education, training and experience to offer expert testimony about general aspects of gang activity in and around Dodge City, Kansas, subject to the requirements discussed in the following section.

Substance of the Testimony

Defendant Garcia's objections on the substance of the officers' opinions are adopted by many of the co-defendants so his will be examined first. (Doc. 608 at 5-6). Garcia objects that the government has not "proffered any evidence of reasoning and methodology used or applied..." by the officers. The court disagrees. Unlike law enforcement expert testimony which identifies the kind and purity of a controlled substance by the use of scientific tests and procedures, the methodology and reliability of an officer's testimony regarding gang activity must be evaluated by a non-scientific approach. In other words, for example, there is no recognized scientific test to determine the meaning of gang graffiti. This is made clear in cases like United States v. Mejia , 545 F.3d 179 (2nd Cir. 2008) ("An appropriate (admissible) example of such expertise would have been an expert's explanation of how the graffiti near a body indicated that the murderer was a member of MS-13...") Id. at 195. Rather, the reliability of the expert's opinion must be based on law enforcement methodology which, to a considerable extent, must turn upon the training, education and experience of the officer on that particular subject. Scientific methods are not required. See United States v. Garza , 566 F.3d 1194, 1198-99 (10th Cir. 2009). "The Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to this kind of testimony from a gang expert, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it." United States v. Thomas, No. 10-4725 , 2012 WL 2951410, *5 (4th Cir. July 20, 2012)(quoting United States v. Hankey , 203 F.3d 1160, 1168 (9th Cir. 2000)); A couple of examples are illustrative.

In its expert disclosure (Doc. 297), the government mentioned gang graffiti. It is highly unlikely that jurors will be able to decipher the meaning and significance of the graffiti displayed at the hearings. Webb and Nau's ability to interpret gang graffiti was acquired, at least in part, by conversations with individuals who may or may not be Nortenos members. (Both officers testified that they spoke frequently with gang members.) Such conversations, if directly related to jury, may be hearsay but as many defendants' submissions acknowledge, Rule 703 permits an expert's opinion to be based on hearsay which, itself, does not need to be recited to the jury. Rather, if such hearsay is reasonably relied upon by law enforcement officers involved in investigation of gang activity (and the evidence sufficiently established that it is), then the opinion is admissible, hearsay notwithstanding.

Another example is the roles or titles of gang members ("shot callers, " "foot soldiers, " "pee wees"). The government's disclosure identifies roles of gang members but not specific titles. The court is satisfied that Webb and Nau can give reliable testimony on this subject. The fact that the written disclosure does not mention titles is irrelevant because the information was disclosed at the hearings.

Identification of specific defendants' roles is another matter. The court will not speculate whether proper foundation could be laid for such testimony. But neither Webb nor Nau can offer expert testimony that they learned from conversations with gang members that a particular defendant is a "shot caller" who ordered a crime. Clearly, such testimony would be offered for its truth and would violate Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The remainder of Garcia's objections can be similarly rejected. It is not necessary for the government to establish some sort of scientific methodology in order for Webb and Nau to explain such generic things as gang colors, signs and symbols, which undoubtedly are subjects with which the jurors will be unfamiliar.

Turning to Ramirez's objections, he goes on at some length to question the relevance of the officers' knowledge of gangs in California and their "link" to gangs in Dodge City. The government's disclosure noted "subsets" of the Nortenos and this apparently morphed into substantial questioning of the officers about California gangs which, at least at the time, seemed to the court to be tangential both to the officers' qualifications and to their opinions about gang activity in Dodge City. The court allowed this sort of far-reaching line of inquiry because of the nature of the hearings. Whether any of it will be inquired into at trial, either by the government or by the defense, remains to be seen. But once again, even though not specifically disclosed, defense counsel have delved into the matter and cannot claim surprise.

Ramirez makes the obligatory Crawford objection, which the court has just discussed. He objects to the officers' methodology as "conclusory, ad hoc and repetitious, " apparently without recognizing that his objections are no different. He asserts that Kansas' statutory definition of a gang member is of little relevance and does not mean that a defendant who meets the state definition translates to a finding that the Nortenos are an enterprise under federal law. No one says it does.[4]

Flores attacks the methodology of the officers' opinions in a manner, the logic is pretty obscure:

Thus, the government's proposed experts methodology for forming their expert opinion is to taking training about something that, may have some similarities, but cannot be said to be consistently similar over time geography, culture or group, to the subject of their proposed expertise and then render an opinion about the alleged gangs which are the subject of their proposed expertise based upon that training. In short, the government's proposed experts have studied one thing and based upon their studies rendered an opinion about something that can not be said to be consistently similar to the thing studied. They are comparing apples and oranges and rendering reaching proposed expert opinions about the oranges based upon their training relating to apples. Such a methodology cannot be said to render reliable opinions. This is especially true as the government's exhibits nor the testimony of their proposed experts reveal how the behavior, actions, language and operating procedures of the alleged gangs of Dodge City may differ from that of the gangs which were the subject of the witness' training or from the behavior, actions, language and operating procedures of the same alleged gang at a different time.

(Doc. 624 at 3).

If Flores's point is that the officers' (and particularly Webb's) training involved gangs other than the Nortenos and Surenos, it is not well-taken. No single authoritative, Dodge City/Nortenos/Surenos-study has been identified, or likely will be identified in this case. Assuming defense gang experts are identified, it seems reasonable to assume that their opinions will be based, to some extent, on gangs other than those in Dodge City. Will Flores lodge similar objectives to the methodology of defense experts? Doubtful.

The most straight-forward objection to the officers' opinions is made in a three page submission by David Rapp, counsel for Beltran-Ruiz (Doc. 626). He cites Judge Tena Campbell's decision in United States v. Kamahele, No. 2:08-cr-758, 2011 WL 3861576 (D. Utah Sept. 1, 2011), which does an excellent job of covering the bases for admission of expert gang evidence. Mr. Rapp's objection is that the government has failed to present sufficient methodology evidence to allow the defendants to determine which of the officers' opinions are based on independent judgment as opposed to simply repeating information provided by other officers or individuals. The court disagrees. Other than her comment that Officer Merino applied his individual judgment and "expertise derived over many years and from multiple sources" citing United States v. Johnson , 587 F.3d 625, 635 (4th Cir. 2009), Judge Campbell's decision does not discuss "methodology."[5] It seems reasonable to assume that she recognized that Officer Merino's methodology was derived from experience, which is very similar to how Officers Webb and Nau developed the opinions initially disclosed in writing and covered extensively at the hearings.


After performing its "gatekeeping" role, the court finds that Nau and Webb's opinions are reliable, relevant and will be helpful to the jury, assuming proper foundations are laid. Therefore, their opinions are admissible, subject to appropriate objections at trial, the substance of which cannot be determined and ruled upon at this time. Defendants' objections to Nau and Webb's testimony are overruled. (Docs. 608, 612, 619, 621[6]).




In an earlier order, the court held that Officer Break Merino is qualified to testify as an expert on general subjects covering the background, structure and organization of the Tongan Crip Gang (TCG), that is, 1(A) through 1(N) of the United States' Supplemental Notice (Dkt. No. 517). But the court took under advisement whether Officer Merino may offer expert testimony on the issue of the individual Defendants' membership in or association with TCG. On September 9, 2010, the court held another evidentiary hearing on the question of Officer Merino's proposed testimony on the eight Defendants and their association with TCG. Now, after reviewing the testimony, hearing oral arguments, and reading the parties' memoranda, the court holds that Officer Merino is qualified to give his opinions about the Defendants and their association with TCG. But, as explained below, in making this decision the court excludes some of the proposed bases of Officer Merino's testimony. Accordingly, Officer Merino may not rely on these excluded bases when testifying at trial.


Following the Daubert hearings involving Officer Merino on May 6 and July 13, 2011, Defendant David Kamoto filed a Motion To Compel Gang Records (Docket No. 691), seeking production of the gang field cards that Officer Merino testified he relied on in forming his opinion that the Defendants are members or associates ofTCG. On August 17, 2011, United States Magistrate Judge Samuel Alba granted Mr. Kamoto's Motion To Compel and ordered compliance by the Government no later than August 25, 2011 (Docket No. 772). The Government did not object to Judge Alba's order. On August 26, 2011, Mr. Kamoto filed a Motion For Order To Show Cause Regarding Violation of Order To Provide Gang Information (Docket No. 833), contending that the Government had not produced the gang records as required by Judge Alba's order.

On September 2, 2011, after holding a hearing on the matter, Judge Alba granted Mr. Kamoto's Motion For Order To Show Cause Specifically, Judge Alba ordered "that copies of the flash drive containing the gang records in question be duplicated and a copy is provided to each defendant's counsel by 5:00p.m. on 9/2/2011." (Docket No. 902.) The Government objected to Judge Alba's order (Docket No. 905) and requested a stay pending review of its objection (Docket No. 904). That Friday afternoon, the court affirmed Judge Alba's order but temporarily limited the way in which the disclosed information could be used. (Docket No. 911.) The next Tuesday, September 6, 2011, the court held a follow-up hearing, after which the court amended its previous order and required that the unredacted information be viewed by attorneys only and that if counsel for the Defendants were to make any hard copies of the information, they must redact the copies. The copies could then be used during trial but the information may not be used to contact victims or witnesses. (Docket No. 942.)

In preparation for the September 9, 2011, Daubert hearing, the Government produced a list of factors that support Officer Merino's opinion that each Defendant is a member or associate of TCG (Daubert Ex. 3). During the hearing, the Defendants were able to cross-examine Officer Merino about the listed bases for his opinions.


A. Standard of Review

The court initially believed that it would consider all the types of information cited by Officer Merino as forming the basis of his opinion when the court acted as a "gatekeeper, " that is, when the court decided whether Officer Merino could testify as an expert on this issue. Then the court would make a separate determination about the information Officer Merino could use when testifying at trial.

The court has since changed its view of the procedure it must follow. The court must decide the appropriate bases of Officer Merino's proposed opinions when the court undertakes its gatekeeper analysis. Then, during trial, Officer Merino may rely on the approved bases when testifying. To proceed otherwise would not be helpful to the jury or to counsel. But the court cautions all parties that even if the court allows Officer Merino to base his opinion on certain information, that does not necessarily mean that this information can be disclosed to the jury. Federal Rule of Evidence 703 allows an expert to base opinions on inadmissible facts or data.

B. Prohibited and Approved Bases

There is one category of information on which Officer Merino cannot base his opinions: information that has not been provided, in some form, to the Defendants. But the court has carefully considered the bases which are left and finds them relevant and reliable and, as discussed in the court's first Daubert order (Docket No. 876), finds that Officer Merino is thoroughly qualified through his experience and training to express those opinions.

1. Information That Was Not Disclosed

To force Defendants to cross-examine Officer Merino at trial without adequate notice of certain bases supporting his opinions would not be appropriate in this case, where the issue of disclosure has been the subject of extensive litigation, resulting in several court orders. Moreover, to permit such testimony would be contrary to the intention of the Federal Rules of Evidence. See Fed.R.Evid. 705 advisory committee's note (1992) (advisory committee "assumes that the cross-examiner has the advance knowledge which is essential for effective cross-examination").

Because certain information was not disclosed, Officer Merino may not use the following as a basis for his opinion: any information from alleged sources of that information whose identities were not given to Defendants. These sources include those whom Officer Merino described as "reliable source, " "witnesses and victims, " "church leaders, " "concerned citizens, " "concerned members of the community, " and non-testifying "co-Defendants." (Daubert Ex. 3.)

This list is not exclusive. If, during trial, any Defendant's counsel believes that Officer Merino is relying on undisclosed information, she or he may object.

2. Violation of Confrontation Clause

Defendants contend that some of the information supporting Officer Merino's proposed testimony violates their Sixth Amendment right to confrontation. To some extent, the court agrees. Certainly statements made by non-testifying Co-Defendants and "testimonial" statements by unavailable speakers would violate the Confrontation Clause if offered directly to the jury. But, as recognized by the Supreme Court in Crawford v. Washington , 541 U.S. 36 (2004), not all hearsay implicates the Sixth Amendment's core concerns. The Confrontation Clause applies to "testimony, " which "is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Ross Andrew Oliver, Testimonial Hearsay as the Basis for Expert Opinion: the Intersection of the Confrontation Clause and Federal Rule of Evidence 703 After Crawfordv. Washington, 55 Hastings L.J. 1539, 1544 (2004) (quoting Crawford, 541 at 51).

Under Federal Rule of Evidence 703, an expert witness may base his or her opinion on inadmissible evidence as long as the evidence is of a type reasonably relied upon by experts in the field. Fed.R.Evid. 703. Accordingly, "[s]ometimes the facts upon which an expert bases an opinion amount to testimonial hearsay and present a risk of violating a defendant's constitutional right to confrontation." Oliver, Testimonial Hearsay, supra, at 1556. The Second Circuit has held that an expert's reliance, in the form of"repetition of out-of-court testimonial statements made by individuals during the course of custodial interrogations violate[s] [a defendant's] rights under the Confrontation Clause of the Sixth Amendment." United States v. Mejia , 545 F.3d 179, 199 (2nd Cir. 2008).

But, "[i]n a case where an expert forms an opinion from many sources, including his own experience, rather than simply relating testimonial hearsay to the jury, there is less risk of a Confrontation Clause violation." Oliver, Testimonial Hearsay, supra, at 1558. Consistent with this principle, the court in United States v. Johnson , 587 F.3d 625 (4th Cir. 2009), rejected the defendants' arguments that the expert testimony of two police officer experts violated the Confrontation Clause because the experts based their opinions in part on inadmissible testimonial hearsay. The court noted that "Crawford forbids the introduction of testimonial hearsay as evidence in itself, but it in no way prevents expert witnesses from offering their independent judgments merely because those judgments were in some part informed by their exposure to otherwise inadmissible evidence." Id. at 635. The court clarified that "[a]n expert witness's reliance on evidence that Crawford would bar if offered directly only becomes a problem where the witness is used as little more than a conduit or transmitter for testimonial hearsay, rather than as a true expert whose considered opinion sheds light on some specialized factual situation." Id . But, "[a]s long as [the expert] is applying his training and experience to the sources before him and reaching an independent judgment, there will typically be no Crawford problem. The expert's opinion will be an original product that can be tested through cross-examination." Id.

In this case, Officer Merino applied his individual judgment and "expertise, derived over many years and from multiple sources" to arrive at his opinion that the Defendants are members or associates ofTCG. See Johnson , 587 F.3d at 636. Accordingly, Officer Merino's proposed opinions and the bases for them do not violate the Defendants' right to confrontation.[1]Bearing in mind that Officer Merino may not base his opinions on information from undisclosed sources, counsel for the Defendants may object if they believe that Officer Merino has crossed the line into simply recounting inadmissible testimonial hearsay evidence.

C. Rule 404(b) Evidence

Several Defendants object to Officer Merino's proposed testimony, claiming that he relies on Rule 404(b) testimony that the court held inadmissible or that the Government had agreed not to use.

In May 2011, the Government filed a lengthy notice of intent to use certain evidence under Rule 404(b) of the Federal Rules of Criminal Procedure. (See May 26, 2011, Notice of Intent to Use Certain Evidence Pursuant to 404(b) (Docket No. 597).) The original notice listed ninety-three specific incidents and twenty-four generic categories of documentation ("prison documentation" and "case history summary" for various Defendants). (Id.) During a July 13, 2011, hearing, the court, based on objections from the Defendants and the Government's oral modification of the list of proposed 404(b) evidence, ordered the Government to submit an amended notice of the specific 404(b) evidence the Government intended to use.

The Amended Notice listed five specific incidents. (See July 21, 2011, Amended Notice of Intent to Use Certain Evidence Pursuant to 404(b) (Docket No. 665).) During a subsequent 404(b) hearing, the court excluded all but one of the incidents. (See Aug. 12, 2011, Order on 404(b) Evidence and Other Pretrial Matters (Docket No. 751).)

The withdrawn and excluded 404(b) incidents relied upon by Officer Merino are not being offered as evidence for the truth of the matter asserted. The evidence is admissible under Rule 703 of the Federal Rules of Evidence, which reads as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Fed. R. Evid. 703. Officer Merino is properly relying on facts or data that are not admissible for other reasons but are legitimate bases for his opinion (i.e., they are evidence that an expert in his field would reasonably rely upon). Accordingly, the objections are overruled.

D. Assisting the Jury

Defendants' final contention is that Officer Merino's proposed testimony on each Defendant's membership in or association with TCG would not be helpful to the jury. They argue that members of the jury are fully capable of drawing their own conclusions from the evidence, such as whether the tattoos and gang signs show that a Defendant is a member or associate ofTCG. This is not so.

The requirement in the Federal Rules of Evidence that expert testimony must be helpful to the trier of fact "marks a significant departure from the common law of evidence, which required that expert testimony be necessary, rather than merely helpful, to the finder of fact." 4 Jack Weinstein & Margaret Berger, Weinstein's Federal Evidence § 702.02[03], 702-10 to -10.1 (2011). "Under the Federal Rules of Evidence, if the expert's evidence will assist the finder of fact in any way in determining the factual issues before it, the evidence is admissible." Id. at 702-10.1 to -11; see also United States v. Brawner , 173 F.3d 966, 969 (6th Cir. 1999) ("It is, of course, well settled that necessity' is not a condition precedent for the admissibility of opinion testimony under Federal Rule of Evidence 702; rather, the test is whether the opinion will assist the trier of fact.'"). In the Tenth Circuit, "[d]oubts about whether an expert's testimony will be useful should generally be resolved in favor of admissibility.'" Robinson v. Mo. P. R.R. , 16 F.3d 1083, 1090 (10th Cir. 1994) (quoting 4 Jack Weinstein & Margaret Berger, Weinstein's Federal Evidence § 702[02], 702-30 (1988)).

Here, Officer Merino uses his many years of experience to evaluate and synthesize multiple pieces of evidence to determine whether a particular Defendant is a member or associate of TCG. Although the jury may be able to look at each individual piece of evidence and draw a conclusion about each Defendant's relationship to TCG, Officer Merino's testimony will assist the jury in evaluating the totality of the evidence relating to a particular Defendant and the interplay between and the significance of the individual pieces of evidence. It is enough that Office Merino's testimony will assist the jury; it need not be necessary to the jury's understanding of the evidence.


For the foregoing reasons, the Defendants' motions on this matter (Docket Nos. 362, 540, 544, 740, and 928) are DENIED subject to the conditions set forth in this order.


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