Fifth Circuit Finds DEA Agent Properly Testified as a Lay Witness That “A Bird and a Half” Was Code For 3 Pounds of Meth
Federal Rule of Evidence 701 states that
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
So, should a DEA Agent be allowed to testify as a lay witness that the term “a bird and a half” meant three pounds of meth? Or would such testimony violate Rule 701(c)? That was the question addressed by the Fifth Circuit in its recent opinion in United States v. Bourrage, 2025 WL 1453658 (5th Cir. 2025).
In Bourrage, a jury found Donovan and Orlando Bourrage guilty of conspiracy to possess methamphetamine with the intent to distribute. At trial, lead investigator James C. McCombs, an agent with the DEA, testified as a lay witness. Specifically, he testified to conversations between the defendants in which one of them used the term “a bird and a half.” McCombs explained that the the term “a bird and a half” was code for three pounds of meth.
On appeal, Donovan claimed that this testimony only could have come from an expert witness. The Fifth Circuit disagreed, concluding that
Although “[d]rug traffickers’ jargon is a specialized body of knowledge, familiar only to those wise in the ways of the drug trade, and therefore a fit subject for expert testimony,” we have “not limited drug slang testimony to experts in all cases.” Rather, we have “recognized that testimony about the meaning of drug code words can be within the proper ambit of a lay witness with extensive involvement in the underlying investigation.” Indeed, “[t]estimony need not be excluded as improper lay opinion, even if some specialized knowledge on the part of the agents was required, if it was based on first-hand observations in a specific investigation.” This comports with Rule 701 because an “agent’s ‘extensive participation in the investigation of this conspiracy’ allow[s] the agent to ‘form opinions’ about the code words ‘based on his personal perceptions.’”
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