Tenth Circuit Finds No Rule 704(b) Issue With Officers’ Testimony in Drug Distribution Case

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.

Courts, however, have construed this prohibition very narrowly and allowed experts to come awfully close to offering opinions about defendants’ mental states in drug distribution cases. The latest example can be found in United States v. Draine, 2022 WL 598972 (10th Cir. 2022).

In Draine, “[a] jury convicted Tiahmo Lenell Draine of possession with intent to distribute heroin, possession of a firearm as a felon, and possession of a firearm in furtherance of a drug trafficking crime.” This conviction was based in part upon heroin found in Draine’s duffel bag and a notebook found in his possession. After he was convicted, Draine appealed, claiming, inter alia, that testimony by Officers Blake Lawson and David Pennington violated Rule 704(b). The Tenth Circuit disagreed. With regard to Officer Lawson, the court ruled as follows:

Mr. Draine argues that Officer Lawson’s testimony violated Rule 704(b) because he said the “large amount” of heroin found in the duffel bag on July 29, 2019, would “definitely [be] a distribution” and “would be used for distribution.”…Mr. Draine says the testimony implied that if he “was ‘definitely’ distributing heroin on July 29 (the date of the 404(b) incident), so too was he ‘definitely’ distributing heroin on July 3 (the date of the charged offense).”…

None of this shows that Officer Lawson opined on Mr. Draine’s intent to distribute. Officer Lawson testified that the amount of heroin indicated distribution. He never made “a conclusion as to [Mr. Draine’s] actual mental state,” Goodman, 633 F.3d at 970, and “d[id] not profess to know [his] intent,”…And because Officer Lawson testified regarding the amount of heroin found in Mr. Draine’s possession on July 29, his testimony was further attenuated from any conclusion as to whether Mr. Draine had “a mental state or condition that constitutes an element of the crime charged” on July 3. Fed. R. Evid. 704(b).

Moreover, with regard to Officer Pennington, the court ruled as follows:

Mr. Draine argues Officer Pennington’s cross-examination testimony established that while Ms. Brooks did not possess drugs with the intent to distribute, “Mr. Draine surely did,” and “[t]he message was unmistakable,” for example, because Officer Pennington referred to the “[O]we $” notebook as listing “nine … drug customers.”…Here, again, Officer Pennington never addressed “the last step in the inferential process—a conclusion as to [Mr. Draine’s] actual mental state.”…The district court thus did not err.

-CM