Sixth Circuit Finds No Error With Officer Saying a Drug-Trafficker’s Amount of Drugs Was Recovered From Defendant’s Vehicle

Federal Rule of Evidence 704(b) provides that

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

So, does the State violate Rule 704(b) by having an officer testify that the amount of drugs recovered from a defendant’s vehicle constituted a drug-trafficker’s amount? That was the question addressed by the Sixth Circuit in its opinion today in United States v. Hall, 2021 WL 5933100 (6th Cir. 2021).

In Hall, because the defense did not object to the officer’s testimony, the Sixth Circuit reviewed for plain error. And the court concluded that

Neither the government’s question nor Smith’s response explicitly referenced Franklin’s intent. Rather, after establishing that 500 grams of cocaine and 300 grams of heroin constitutes a drug-trafficker’s amount, Smith defined the term “distribution amount” as “someone that’s trying to get rid of a lot of dope, it’s not just a guy selling just an ounce and two ounces in the house and breaking it down to 10s, 20s.” Given that this court has reiterated that an officer is permitted to testify that certain quantities of narcotics are consistent with drug distribution rather than personal use, the district court did not plainly err in permitting Smith to testify that 500 grams of cocaine and 300 grams of heroin constitute a drug-trafficker’s amount.

I disagree with the court’s conclusion. The officer himself effectively testified that the amount of drugs showed that someone — the defendant — was trying to sell a lot dope. That seems to fall firmly within the exclusion of Rule 704(b).

-CM