BARRY J

BARRY J. PORTMAN

Federal Public Defender

SHAWN HALBERT

Assistant Federal Public Defender

19th Floor Federal Building B Box 36106

450 Golden Gate Avenue

San Francisco, CA 94102

Telephone: (415) 436-7700

Counsel for Defendant XXXX XXXX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v..

XXX XXXXX, et al.,

Defendants.

_____________________________________

)

No. CR 00-0000 XXX

DEFENDANT XXXX XXXX=S MOTION TO EXCLUDE OR LIMIT AGANG EXPERT@ TESTIMONY

INTRODUCTION

On February 28, 2005, this Court ordered a hearing regarding the government=s proposed use of expert testimony regarding criminal street Agangs@ during trial in this case. The Court set the Agang expert@ hearing for April 4, 2005 and April 8, 2005. Further, the Court ordered the defense to submit briefing challenging the government=s use of gang experts by March 22, 2005. According, defendant XXXX XXXX respectfully submits the following motion to exclude or limit the testimony of the government=s Agang experts@ in this case.

The government will attempt to use the Agang expert@ testimony in this case as mortar with which to build a federal case out of disparate and unrelated separate state offenses, namely drugs sales and weapons possessions by various people over the years in the Westpoint housing projects. In fact, the government is attempting to prove both the drug conspiracy (Count 16), as well as the conspiracy to use guns to protect so-called Adrug turf@ (Count One), solely by the testimony of Agang experts@ who will supply evidence that is otherwise missing from the record. The government cannot be permitted to use such expert testimony to substitute for competent evidence. The government=s proffered experts have never been qualified to testify as Agang experts@ in federal court, and the one expert who has been qualified as an expert in state court does not appear to have testified for the same purpose as is being offered in this prosecution.

The government=s proffered Agang experts@ should be excluded for a number of reasons. First, the expert testimony should be excluded under Federal Rule of Evidence 702 because the proffered experts do not use a reliable methodology and because their expertise is not admissible for the purpose for which it is being offered in this prosecution.

Second, the experts impermissibly rely on hearsay, in violation of defendants= confrontation rights under the Sixth Amendment, as recently articulated by the United States Supreme Court in Crawford v. Washington, 124 S. Ct. 1354 (2004).

Third, Federal Rule of Evidence 704(b) precludes the government=s experts from opining with respect to Westmob gang membership because the government is impermissibly attempting to use expert testimony to establish defendants= mens rea vis-a-vis the charged conspiracies.

Fourth, the government=s proposed Agang expert@ evidence must be excluded in its entirety as unduly prejudicial because the Ninth Circuit has recently made clear that the admission of evidence relating to gang involvement will almost always be prejudicial and will constitute reversible error, and may not be offered to prove Aintent or culpability.@

Fifth, the government=s gang expert testimony is unnecessarily cumulative, in that the government seeks to elicit essentially identical testimony from three different witnesses.

Sixth, the government=s experts should not be permitted to testify as both an expert witness and a fact witness. The portions of the experts= opinions that are not based on inadmissible hearsay are just based on the officers= observations, and such observations should not be cloaked with the mantle of Aexpertise,@ particularly where the word Agang@ is not even necessary under the government=s most recently articulated theory of the case.

The defense anticipates that the issues described above will be more fully elucidated at the evidentiary hearings, and that additional argument may be necessary at the conclusion of the hearings.

BACKGROUND

A. Second Superceding Indictment and First, Second, Third and Fourth Bills of Particulars

Defendant XXXX XXXX is charged in the government=s Second Superceding Indictment with knowingly and intentionally conspiring to possess 50 or more grams of cocaine base with intent to distribute in violation of 21 U.S.C. ' 846.

The government=s first Bill of Particulars, filed on October 27, 2004, identified forty-seven co-conspirators in Count 16, and included a general list of indicia of Westmob membership. See Bill of Particulars.

On a court hearing on November 10, 2004, the Court asked government counsel for the evidence that existed in the case of Asome unlawful agreement other than . . . association?@ (Transcript, p. 12, lines 7-8). AUSA Bevan responded as follows:

This is the underpinning of a lot of our case, Your Honor, is the fact that you cannot sell drugs up there without being a member of the West Mob. It=s an exclusive market. And our pitch to the jury is going to be they can find an agreement circumstantially from that fact combined with association with other West Mob members and the fact that he is selling drugs up there.

AUSA Bevan, Transcript, p. 12, lines 10-16. The Court asked whether the government could ask the jury to infer membership in a conspiracy merely from the fact of selling drugs in a certain location. AUSA Bevan responded: ACombined with B that=s one factor. Combined with other evidence of gang membership which we spelled out in our Bill of Particulars.@ (Transcript, p. 12, lines 20-22).

On January 4, 2005, the government filed a Second Bill of Particulars and disclosed its theory of prosecution for the drug conspiracy charge. Specifically, the Second Bill of Particulars states in relevant part:

The theory of prosecution for Count Sixteen is that during the period of the alleged conspiracy, members and associates of the Westmob gang claimed the Westpoint area as their exclusive Aturf@ and Amarket@ for narcotics trafficking, to include the possession of crack cocaine for sale and the distribution of crack cocaine. Only members and affiliates of the Westmob gang could traffick (sic) narcotics within the Westpoint area during the period of the charged conspiracy.

The existence of the conspiratorial agreement among the defendants charged in Count Sixteen, and others within Westmob, will be established by proof that (1) the defendant was a member or affiliate of Westmob at some point during the period of the charged conspiracy; (2) the area of Westpoint, as a market for the trafficking of narcotics, was exclusive to members and affiliates of Westmob during the charged conspiracy period; (3) on one or more occasion within the charged conspiracy period, the defendant committed a drug trafficking offense within the Westpoint area; or in lieu of item #3, the defendant used, carried, or possess (sic) a firearm on one or more occasions within the Westpoint area or elsewhere to further the objective of the charged conspiracy.

The prosecution theory is that every member and associate of Westmob involved in narcotics trafficking within the area of Westpoint during the charged conspiracy period, was a member of the drug conspiracy charged in Count Sixteen. The proof at trial will be that all members of Westmob sold drug in Westpoint.

Sec. Bill of Part. at 3:25-4:14 (emphasis added).

The Second Bill of Particulars effectively equates anyone who is a member or associate of Westmob with a co-conspirator as charged in Count 16.

In the Third Bill of Particulars, filed February 28, 2005, the government stated that Westmob has the Aaffiliate@ names of AFull Fledge@ and ARuthless by Law.@ The government defined Aaffiliate@ as Amember@ or Aassociate.@ The government defined Amember@ as Aany person who actually and in fact belongs to the Westmob gang,@ where the Acriteria@ for determining membership are cited as being the list of 16 so-called Aobjective factors@ identified in the government=s Second Bill of Particulars, Section C. (These include factors, as described further below, such as associating with other Westmob members, wearing Westmob apparel, being present in Westpoint some time between 1997 and 2002, and the like). In the Third Bill of Particulars, the government defined Aassociate@ as anyone Aother than a Westmob member@ who Aparticipates in the criminal activities of the Westmob gang,@ Aparticipates in criminal activities with a Westmob member,@ or Aintends his/her conduct to promote or further the criminal activities of the Westmob gang, or intends his/her conduct to maintain or increase his/her position in relation to the Westmob gang.@ Third Bill of Particulars, p. 2.

The Court instructed the government to provide a definition of the term Agang.@ The government=s Fourth Bill of Particulars, filed March 21, 2005, defined the term Westmob Agang@ as being synonymous with Acriminal street gang,@ and as having the following definition: A[T]he group of persons, associated in fact, who (1) claimed or regarded the Westpoint area as their >turf= (meaning the geographical territory from which rival gang members are excluded; or (2) claimed or regarded the area as their market for narcotics trafficking; or (3) claimed or affiliated himself with that area, or with persons in that area, for purposes of securing and maintaining that area against rival gangs in the Hunters Point area.@ Fourth Bill of Particulars, pp. 2-3.

B. The Government=s Proffered AGang Experts@

To support its theory that Westmob is a gang and that the defendants in this case are gang members, the government proffers the testimony from three purported Agang experts,@ each of whom are employees of the San Francisco Police Department (ASFPD@). Specifically, the government seeks to qualify the following persons: (1) Inspector Robert McMillan; (2) Inspector Toney Chaplain; and (3) Officer Leonard Broberg. In addition to the qualifications of these individuals, the government=s disclosures under Fed. Rule Crim. Proc. 16 summarize the subject of each witness=s proposed opinion testimony, as well as the factual bases for the proposed testimony. See generally, February 11, 2005 Letter from AUSA XXXX Bevan, Jr. to defense counsel (providing written summaries of testimony pursuant to Rule 16) (herein ARule 16 Letter@).

1. Inspector Robert McMillan

Robert McMillan is an inspector with the SFPD. He was formerly a member of the disbanded street crime unit ACRUSH,@ and is currently assigned to the department=s AGang Task Force.@ The government intends to offer Inspector McMillan as both a fact witness and an expert witness. As an expert, McMillan will testify to the following:

1. He will identify two gangs, Big Block and Westmob, within Hunter=s Point.

2. He will trace the chronology and historical development of the Big Block and Westmob/RBL gangs in Hunters Point in the 1990's to the present date.

. . . .

3. He will identify the core members, associates, and affiliates within the Big Block and Westmob gangs.

4. He will trace the historical development of other groups, such as Kirkwood, BNT, and Keith and Revere, becoming affiliated with Big Block.

5. He will identify the area claimed by Big Block as its exclusive Adrug turf.@ This area is known as Harbor Road and is in the public housing area of Harbor/Northridge Roads.

6. He will identify the area claimed by Westmob/RBL as its exclusive Adrug turf.@ This area is known as Westpoint or Hunters View, and is in the public housing area of Westpoint/Middlepoint Roads.

7. He will trace the history of Acie Matthews in Hunters Point, beginning with conflict in the Sunnydale area; to his affiliation with Harbor Road; to the period in which he was at odds with Harbor Road; his affiliation with RBL; his exclusion from Harbor Road; his affiliation with RBL; and his affiliation with Westpoint and Westmob.

8. He will describe the role of enforcers within street gangs in Hunters Point.

9. [Repeats number 8].

10. He will describe and identify the differences and similarities in structure, organization, and leadership with Big Block and Westmob.

Rule 16 Letter at 3-4.^[1]

In addition to his training and experience, the bases for McMillan=s opinions include out-of-court statements from third persons: Acitizen informants; confidential informants, . . . the observations of other law enforcement officers/agents communicated to him; police reports; . . . [and] information from cooperating Big Block defendants. . . .@ Id. at 4.

McMillan=s opinions regarding Big Block and Westmob/RBL membership, affiliation, and association are also based, inter alia, on out-of-court statements from third persons. See id. at 3. In addition to those sources identified above, McMillan=s opinions membership, affiliation and association are:

(1) self-admission, or admission of family member of gang member; (2) photographed/videotaped with other gang members; (3) photographed/videotaped displaying gang sign(s); (4) wearing gang apparel; (5) arrested in gang territory for possession of drugs for sale; (6) arrested in possession of a firearm in gang territory; (7) in possession of a firearm in gang territory; (8) present in gang territory during the period; (9) observed in the company of other gang members; (10) having tattoos expressing affiliation with that gang; (11) having participated in a shooting against a rival gang/gang member; (12) identified by rival gang member as affiliated with that gang; (13) observed associating with other gang members; (14) identified by a gang member/associate as being affiliated with that gang; (15) identified in prisoner classification as being affiliated with that gang; and (16) individual=s name and street nickname in graffiti in gang territory.

Id. (emphasis added).

2. Inspector Toney Chaplin

Toney Chaplain is also an SFPD inspector assigned to the department=s AGang Task Force.@ The government intends to call Chaplin as a fact witness and an expert witness, and Apossibly as a fact witness depending upon developments at trial.@ Id. at 4. It intends to offer Chaplin=s expert opinion regarding the following:

1. He will identify and trace the origin of African American gangs in San Francisco, as being neighborhood-based.

2. He will identify the role of gang graffiti, including the concept of graffiti marking the gang=s territory, and expressing its conflict with rival gangs.

3. He will identify the role of gang signs and gang apparel.

4. He will identify and describe how gangs come to claim a geographic area as their own.

5. He will identify the area claimed by Westmob/RBL as its exclusive Adrug turf.@ This area is known as Westpoint or Hunters View, and is in the public housing area of Westpoint/Middlepoint Roads.

6. He will describe the role of enforcers within street gangs in Hunters Point, as including protection of turf and establishing the exclusivity of their area for narcotics trafficking by members, affiliates, and associates of the gang.

7. He will describe the role of enforcers within street gangs in Hunters Point.

8. He will describe the chronology of the armed conflict between Big Block and Westmob.

9. He will identify particular persons as being members, affiliates, and associates of the Westmob gang.

Id. at 5.

Like Inspector McMillan, Chaplin will base his opinion on, inter alia, out-of-court statements from third persons. The bases for Chaplin=s opinions will include Ainterviews of gang members; interviews of family members of gang members; information from other law enforcement officials; police reports; neighborhood residents; citizen informants; and confidential informants.@ Id. at 4.

Additionally, the bases for Chaplin=s identification of Westmob members, affiliates and associates are nearly identical to those upon which McMillan will rely. The bases include, at a minimum, the following out-of-court statements from third persons: (1) admission of family member of gang member; (2) identification by rival gang member affiliated with Westmob/RBL; (3) identification by a Westmob gang member/associate as being affiliated with Westmob; and (4) identification in prisoner classification as being affiliated with Westmob. See id.

3. Officer Leonard Broberg

The government=s final proposed expert is Officer Leonard Broberg. Like McMillan and Chaplin before him, Broberg is also an SFPD officer and assigned to the department=s AGang Task Force.@ The government also intends to call Broberg as both a Afact witness@ and an expert. The government has indicated that Broberg will opine as an expert with respect to the following:

1. He will identify Westmob as a gang.

2. He will describe the role of enforcers within Westmob.

3. He will establish the Westpoint area as the exclusive drug turf claimed by Westmob.

4. He will discuss the role of gang graffiti.

5. He will discuss the existence of Westmob=s gang signs; the use of gangs (sic) signs; and the significance of the gang signs.

6. He will establish the varieties of gang apparel for Westmob.

7. He will discuss gang photographs, and identify persons in gang photos designated by the government for use at trial.

8. He will identify particular persons as being members of Westmob, to include XXXXXX, and others identified by the government. . . .

. . . .

9. He will differentiate members, associates, and affiliates of a gang.

Id. at 7.