United States v. Cruz
363 F.3d 187 (2004)
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Rule of Law:
Expert testimony from a law enforcement official interpreting a common, ambiguous phrase like 'watch someone's back' is inadmissible unless there is evidence it is a known drug code. Furthermore, evidence that a defendant acted as a lookout is insufficient to sustain a conviction for aiding and abetting a specific crime without additional proof that the defendant knew the specific nature of that underlying crime.
Facts:
- An intermediary approached Tommy Cruz and asked him to assault several men in exchange for $200, to which Cruz agreed.
- Cruz then met with Carlos Medina to discuss the planned assault, affirming his agreement to participate.
- On December 13, 2000, Cruz was informed the plan had changed and he was now needed 'to watch' Medina's 'back' while Medina finalized a 'deal' at a Boston Market in Queens.
- Cruz and a co-defendant, Luis Rodriguez, arrived at the Boston Market in a Lincoln Town Car and entered the restaurant.
- Inside, Cruz and Rodriguez sat at a separate table and had no contact with Medina, who sat with an informant, Enrique Ramos, and negotiated a heroin sale in a low voice.
- After the negotiation, Medina left, followed shortly by Cruz and Rodriguez in the Town Car.
- Over thirty minutes later, the Town Car returned with Cruz driving and Medina in the passenger seat. Ramos entered the back of the car.
- Medina directed Ramos's attention to a telephone box behind the driver's seat, which Ramos opened to find heroin hidden inside.
Procedural Posture:
- The U.S. government filed a superseding indictment against Tommy Cruz and Luis Rodriguez in the U.S. District Court for the Eastern District of New York.
- The indictment charged Cruz with conspiracy to distribute heroin and possession with intent to distribute heroin.
- During a jury trial, the government called DEA Special Agent Mark Tully to testify as both a fact witness and, over defense objection, an expert witness.
- At the end of the government's case, Cruz's counsel moved for a judgment of acquittal, which the district court denied.
- The jury acquitted Cruz of the conspiracy charge but found him guilty of possession with intent to distribute heroin on an aiding and abetting theory.
- The district court entered a judgment of conviction and sentenced Cruz, who then filed this appeal to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does evidence showing a defendant agreed to 'watch someone's back' during a 'deal,' acted in a manner consistent with a lookout, and was present at the scene of a narcotics transaction suffice to prove beyond a reasonable doubt that he knowingly and intentionally aided and abetted the crime of possession with intent to distribute heroin?
Opinions:
Majority - Meskill, J.
No. To convict a defendant for aiding and abetting, the government must prove beyond a reasonable doubt that the defendant knew the specific nature of the underlying crime and acted with the specific purpose of bringing it about. The evidence here was insufficient to meet this burden. First, the district court manifestly erred by allowing DEA Agent Tully to offer expert testimony that the phrase 'to watch someone's back' meant acting as a lookout in a narcotics transaction. This is an ambiguous, common phrase, not established drug jargon, and allowing a dual fact/expert witness to interpret it created an 'aura of special reliability' that was unfairly prejudicial. Second, even considering this improperly admitted testimony, the evidence was insufficient for conviction. Cruz's mere presence at the scene, his agreement to watch Medina's back during a generic 'deal,' and his actions as a potential lookout do not prove he knew the deal involved heroin. Proof that a defendant knew some crime was being committed is not enough; the government failed to present any direct indicia—such as conversations about drugs, sharing in profits, or seeing the contraband—to link Cruz to the specific narcotics offense.
Analysis:
This decision reinforces the high bar for proving aiding and abetting liability, emphasizing that the government must establish the defendant's knowledge of the specific crime, not just general criminal activity. It serves as a significant check on the use of law enforcement officers as expert witnesses, particularly when they are also fact witnesses in the case. The court's holding limits the prosecution's ability to use an agent's opinion to define common, ambiguous language as criminal code without a proper evidentiary foundation, thereby strengthening the trial court's gatekeeping role under Federal Rule of Evidence 702.
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