U.S. v. Carroll

Full title: UNITED STATES v. DONNELL CARROLL, ET AL

Court: United States District Court, E.D. Louisiana

Date published: Jan 20, 2000

Criminal No. 99-88, SECTION: "R" (E.D. La. Jan. 20, 2000)

Opinion

Criminal No. 99-88, SECTION: "R".

January 20, 2000.

ORDER AND REASONS

SARAH S. VANCE, United States District Judge.

Before the Court are two motions filed by defendants, Daniel and David Garcia, Broderick Adams, Sean Martin and Brian Dillon. First, defendants move the Court to bar the admission of an alleged drug notebook into evidence and to hold a pretrial hearing on admissibility pursuant to Federal Rule of Evidence 104(a). Second, defendants move the Court for a pretrial evidentiary hearing on the admissibility of government expert witness testimony interpreting the contents of the notebook.

I. BACKGROUND

On May 6, 1999, a grand jury sitting in the Eastern District of Louisiana charged defendants in a superseding indictment with one count of conspiring with convicted drug dealer Richard Pena and others to possess cocaine with the intent to distribute, in violation of 21 U.S.C. § 846. To prosecute the case, the government intends to offer into evidence a notebook, or "drug ledger," that allegedly details the narcotics transactions constituting the overall drug conspiracy. The notebook was allegedly authored by Richard Pena, a convicted drug dealer currently serving a life sentence in a federal penitentiary. Authorities found the ledger concealed in a car owned by Pena's brother. The notebook does not refer to defendants or Pena by name; does not indicate that it was used to track narcotics' sales; and it does not expressly identify the dates of the alleged transactions. Rather, the notebook contains a series of numerical notations and purported nicknames. In addition to the notebook, the government will offer the expert testimony of a Federal Bureau of Investigation agent to explain the function and meaning of the notebook to the jury.

Defendants argue that the Confrontation Clause of the Sixth Amendment bars the admission of the notebook because it is highly unlikely that Pena, the author of the entries whose statements allegedly incriminate them, will testify at trial. Further, defendants argue that the notebook is an out-of-court statement offered to link defendants to Pena's drug trafficking organization and therefore constitutes inadmissible hearsay. Moreover, defendants assert that the Government cannot establish that the notebook is authentic, relevant and not unduly prejudicial as required by the Federal Rules of Evidence. With regard to the FBI agent's expert witness testimony, defendants argue that the Court should order a pretrial evidentiary hearing to ensure that the agent's testimony will be reliable and relevant.

II. DISCUSSION

A. Admissibility of Drug Ledger

A motion regarding the admissibility of evidence made before trial must be determined before trial, unless the Court, for good cause, directs that it be deferred for determination until trial or until after the verdict. See FED. R. CRIM. P. 12(e).

1. Confrontation Clause

The Sixth Amendment's Confrontation Clause gives all criminal defendants the right to be confronted with the witnesses against them. See U.S. CONST. AMEND. VI; Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 3145 (1990). Defendants argue that Pena's likely absence from trial renders the admission of his out-of-court statements in the alleged drug notebook unconstitutional because they will have no opportunity to confront Pena as to these statements. To withstand constitutional scrutiny, the government generally must prove that the maker of an out-of-court statement is unavailable and that the statement bears adequate "indicia of reliability." See Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39 (1980); United States v. Flares, 985 F.2d 770, 775 (5^th Cir. 1993), cert. denied, 119 S.Ct. 846 (1999) ( citing Wright, 497 U.S. at 64-66, 100 S.Ct. at 2538-39)). The Supreme Court has thereafter restricted Roberts to require a showing of unavailability only when the challenged out-of-court statements were made in the course of a prior judicial proceeding. See White v. Illinois, 502 U.S. 346, 353-54, 112 S.Ct. 736, 741-42 (1992); Sherman v. Scott, 62 F.3d 136, 140 (5^th Cir. 1995). See also United States v. Inadi, 475 U.S. 387, 394-400, 106 S.Ct. 1121, 1125-29 (1986) (government does not have to prove declarant's unavailability when hearsay statement is out-of-court declaration of co-conspirator); accord Bourjaily v. United States, 483 U.S. 171, 182, 107 S.Ct. 2775, 2782 (1987). The Confrontation Clause analysis therefore focuses on the reliability of the out-of-court statement.

An out-of-court statement meets the reliability requirement if it falls within a firmly rooted hearsay exception. See Wright, 497 U.S. at 816, 110 S.Ct. at 3147. Here, the government asserts that the notebook is admissible under the co-conspirator statement exclusion to the hearsay rule. The Supreme Court has held that "the co-conspirator exception to the hearsay rule is firmly enough rooted in our jurisprudence that . . . a court need not independently inquire into the reliability of such statements." Bourjaily, 483 U.S. at 183, 107 S.Ct. at 2782. Accordingly, if the government can establish the predicate elements for admitting the notebook as a co-conspirator statement, the Confrontation Clause will not bar its admission into evidence.

2. Co-Conspirator Statement

Defendants argue that the ledger is inadmissible hearsay. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. See FED. R. EVID. 801(c). Because the government will offer the notebook entries to prove the nature and extent of defendants' alleged involvement in a drug conspiracy with Pena, the notebook is inadmissible hearsay, unless covered by an exclusion from or an exception to the hearsay rule. See id. 801, 802. Federal Rule of Evidence 801(d)(2)(E) provides that "a statement by a co-conspirator or a party during the course and in furtherance of the conspiracy" is not hearsay if it is offered against that party. To satisfy the co-conspirator statement exclusion, the government must prove by a preponderance of the evidence (1) that a conspiracy existed; (2) that the declarant and the defendant were members of the conspiracy; and (3) that the statement was made during the course of and in furtherance of the conspiracy. See Bourjaily, 483 U.S. at 175, 107 S.Ct. at 2778; United States v. Green, 180 F.3d 216, 222 (5^th Cir.), cert. denied, 120 S.Ct. 599 (1999); United States v. McConnell, 988 F.2d 530, 533 (5^th Cir. 1993); United States v. Asibor, 109 F.3d 1023, 1032-33 (5^th Cir. 1997) ( citing United States v. Torres, 685 F.2d 921, 925 (5^th Cir. 1982)); United States v. James, 590 F.2d 572, 582-83 (5^th Cir. 1979) ( en banc) (citations omitted). To prove these elements, the government may rely on the co-conspirator's statements themselves, if they are corroborated by independent evidence. Bourjaily, 483 U.S. at 180, 107 S.Ct. at 2781. See also FED. R. EVID. 801(d)(2); Asibor, 109 F.3d at 1032 ( quoting United States v. Dawson, 576 F.2d 656, 659 (5^th Cir. 1978)); McConnell, 988 F.2d at 533.

The Fifth Circuit upheld the admission of a drug ledger as a co-conspirator statement in United States v. Arce, 997 F.2d 1123, 1128 (5^th Cir. 1993). The court relied on testimony that the ledger's author and another co-defendant were acquainted and had engaged in a drug transaction, police officers had seen the two defendants at the author's residence, and law enforcement surveillance information corroborated entries in the ledger. See id. In United States v. Fierro, the Fifth Circuit likewise held that drug ledgers could be admitted as co-conspirator statements when an FBI expert identified defendants' fingerprints on the ledgers, the defendants lived in the house where the ledgers were found, and there was other evidence of their involvement in the drug conspiracy. 38 F.3d 761, 772-73 (5^th Cir. 1994)

Defendants assert that the government cannot establish the predicate facts for the co-conspirator statement exclusion because the notebook does not name them, nor does it reflect a purpose to further a drug conspiracy. Defendants also argue that the notebook is inadmissible because the government has no independent evidence to prove that a conspiracy existed between defendants and Pena. In response, the government maintains that other co-conspirators will provide evidence, some of which is of a non-hearsay nature, to establish defendants' participation in a conspiracy with Pena and others to possess with the intent to distribute cocaine. ( See Walther Aff. ¶ 12(a).) The government's witnesses will also testify to seeing Pena writing in the notebook and will link defendants to incriminating entries in the notebook. ( See id. ¶ 12(b).) Further, the entries relating to defendants will be corroborated by corresponding coded references in Pena's telephone book. ( See id. ¶ 12(c).) Based on the government's proffer, the Court will conditionally admit the notebook subject to the government's establishing, by a preponderance of the evidence, the predicate facts for its admission as a co-conspirator statement under Rule 801(d)(2).

3. Authenticity

Defendants also argue that the Court should bar the admission of the ledger because the government cannot prove its authenticity. The Federal Rules of Evidence require authentication or identification before the Court may admit physical evidence. See FED. R. EVID. 901. The standard for authenticating evidence is low and may be satisfied "by evidence sufficient to support a finding that the matter in question is what its proponent claims." Id. 901(a). The Fifth Circuit does not require conclusive proof of a document's authenticity, but merely a prima facie showing of some competent evidence in the record to support authentication. See Arce, 997 F.2d at 1128 ( citing United States v. Jimenez-Lopez, 873 F.2d 769, 771 (5^th Cir. 1989) (citations omitted)); Matter of Bobby Boggs, Inc., 819 F.2d 574, 580 (5^th Cir. 1987). See also United States v. Harvey, 117 F.3d 1044, 1049 (7^th Cir. 1997) ("Rule 901 requires only a prima facie showing of genuineness and leaves it to the jury to decide the true authenticity and probative value of the evidence.").

Federal Rule of Evidence 901(b) lists examples of appropriate methods of authentication, including (1) the testimony of a witness with knowledge; (2) nonexpert opinion on handwriting; (3) comparison by trier or expert witness; and, (4) distinctive characteristics, appearance, contents and the like. See FED. R. CIV. P. 901(b)(1)-(4). The examples in Rule 901(b) are offered for illustrative purposes only and do not represent the exclusive methods of authenticating evidence. See Jimenez-Lopez, 873 F.2d at 772. Indeed, it is clear that the government may authenticate a document with circumstantial evidence, "including the document's own distinctive characteristics and the circumstances surrounding its discovery." Arce, 997 F.2d 1123, 1128 (5^th Cir. 1993) ( citing United States v. Smith, 918 F.2d 1501, 1510 (11^th Cir. 1990)).

In Arce, the Fifth Circuit found that the Government had properly authenticated drug ledgers which the Government contended contained references to the defendant. 997 F.2d at 1127-28. The ledgers there were found in the home of a known drug dealer, who was not a defendant in the case. See id. at 1128. In addition, the authenticating witness testified that he worked for the drug dealer, the ledgers resembled other drug ledgers the drug dealer maintained, and the handwriting on the ledgers was similar to the drug dealer's handwriting. See id. The First Circuit likewise upheld the authenticity of an earnings statement which doubled as a drug ledger when the earnings statement named defendant, federal agents discovered the statement in defendant's apartment near a large amount of cocaine, and an agent testified that he believed the document was a drug ledger. See United States v. Echeverri, 982 F.2d 675, 679-80 (1^st Cir. 1993)

Defendants argue that the notebook is inadmissible on authenticity grounds because the government cannot produce the alleged author or a witness with sufficient personal knowledge to satisfy Rule 901(a); the circumstances of the notebook's seizure merely establish, at most, that Pena owned the notebook; and no distinctive characteristics link the notebook with any particular author. By affidavit, the government has identified five witnesses who will authenticate the notebook. ( See Walther Aff. ¶ 10.) The government maintains that each of these witnesses will testify that he or she saw Pena writing in the notebook under circumstances suggestive of its genuineness and use in the drug trade. ( See id.) The witnesses will also testify as to their familiarity with Pena's handwriting. ( See id.) Corroborated by the government's expert witness, these witnesses will further testify that the notebook was authored by Pena and represents a record of the distribution of cocaine over a specific four-month period. ( See id. ¶¶ 11 12(b).) The Court finds that the government's proffered testimony would be sufficient to authenticate the notebook and therefore denies defendants' objection at this time.

4. Relevance and Prejudice

Evidence is relevant if it has "any tendency" to make a fact of consequence more or less probable than without the evidence. See FED. R. EVID. 401. All relevant evidence is admissible at trial. See id. 402. Moreover, determinations of relevance fall within the district court's broad discretion. See United States v. Nutall, 180 F.3d 182, 189 (5^th Cir. 1999); United States v. Breitkreutz, 977 F.2d 214, 219 (6^th Cir. 1992). The Court agrees with the government that the notebook has the tendency to make the defendants' participation in a drug conspiracy more probable than it would be without the notebook. How much weight to give the notebook is a question properly left to the jury. See Breitkreutz, 977 F.2d at 220.

Federal Rule of Evidence 403 provides that relevant evidence may be excluded if its probative value is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." (emphasis added). Defendants argue that the notebook's probative value is slight because it does not indicate that it was for narcotics or refer to the dates of the alleged transactions, and the government cannot prove whether the entries represent particular drug weights or dollar values. The government disagrees, asserting that the testimony of its expert witness and cooperating witnesses will establish that the notebook tracks how much cocaine defendants received and what price they were charged. ( See Walther Aff. ¶ 11.) The Court finds that, if admitted, the notebook will have probative value that is not outweighed by unfair prejudice. See United States v. Smith, 893 F.2d 1573, 1580 (9^th Cir. 1990) (drug ledger not unduly prejudicial when authenticated and its reliability and relevance established by witness testimony). Defendants can mitigate any prejudice they feel they might suffer through cross-examination. Provided the government can lay a proper foundation at trial, the notebook is admissible.

5. Pretrial Evidentiary Hearing

Lastly, the Court rejects defendants' request for a pretrial hearing on the notebook's admissibility. The Fifth Circuit has held that, if it is not reasonably practicable to require the government to show that a co-conspirator's statements are admissible under Rule 801(d)(2)(E) before admitting the evidence, a district court may conditionally admit the co-conspirator's out-of-court statements subject to being "connected up" during trial. See James, 590 F.2d at 582. Deferring a James ruling until the close of the government's case is particularly appropriate in cases in which holding a pretrial hearing would, in effect, result in trying the case twice and wasting valuable judicial resources and time. See United States v. Gonzalez-Balderas, 11 F.3d 1218, 1223 (5^th Cir. 1994). See also United States v. Ruiz, 987 F.2d 243, 246 (5^th 1993) (district court did not abuse discretion in failing to conduct pretrial hearing to determine admissibility of co-conspirator statements); United States v. Fragoso, 978 F.2d 896, 900 (5^th Cir. 1992) (Fifth Circuit has "approved district courts' practice of carrying a James motion through trial or at least through presentation of the government's case until a determination of the existence of the Rule 801(d)(2)(e) predicate facts can be appropriately made") (citations omitted); United States v. Acosta, 763 F.2d 671, 679 (5^th Cir. 1985) (upholding district court determination that "if we had to have a separate independent hearing insofar as the conspiracy is concerned, we in effect would be trying this lawsuit two times"); United States v. Whitley, 670 F.2d 617, 620 (5^th Cir. 1982) (trial court did not err in admitting statements of co-conspirator prior to determining facts of drug conspiracy because separate hearing outside of jury's presence is not always feasible). If the district court declines to hold a pretrial hearing then, at the close of the government's case and on appropriate motion, it must determine whether the government has established the predicate facts for admissibility under Rule 801(d)(2)(E) by a preponderance of the evidence and make factual findings on the record to that effect before submitting the statements to the jury. See James, 590 F.2d at 582-83.

Here, the Court finds it impractical and inefficient to hold a James hearing prior to trial. As noted supra, the notebook's admission will require the testimony of numerous witnesses and reference to other physical evidence. Because the notebook is the central piece of evidence in this drug conspiracy trial, a pretrial hearing would result in great duplication of effort, delay and expense. Instead, the Court will admit the notebook conditionally, subject to being "connected up" at trial. The Court will take appropriate action at the close of the government's evidence if it determines that the government has not proved the predicate facts required by Rule 801(d)(2)(E) by a preponderance of the evidence.

B. Admissibility of FBI Agent's Expert Witness Testimony

Defendants also move the Court for an evidentiary hearing to determine the admissibility of an FBI agent's expert witness testimony which the government plans to introduce at trial. Defendants argue that an evidentiary hearing is necessary in order to ensure that the proposed expert testimony is both reliable and relevant.

Rule 104 of the Federal Rules of Evidence provides that the district court shall determine preliminary questions regarding the qualifications of witnesses. See FED. R. EVID. 104(a); United States v. Nichols, 169 F.3d 1255, 1263 (10^th Cir.), cert. denied, 120 S.Ct. 336 (1999) (" Daubert challenges, like other preliminary questions of admissibility, are governed by Fed.R.Evid. 104."). Rule 702 governs the admissibility of expert witness testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587, 113 S.Ct. 2786, 2794 (1993). The rule permits an expert witness "qualified . . . by knowledge, skill, experience, training, or education" to testify when specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. FED. R. EVID. 702. In Daubert, the Supreme Court held that Rule 702 requires the trial judge to act as a "gatekeeper" to ensure that "any and all scientific testimony or evidence admitted is not only relevant, but reliable." 509 U.S. at 589, 113 S.Ct. at 2795. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999) (clarifying that Daubert gatekeeping function applies to all forms of expert testimony).

The district court has considerable discretion to admit expert testimony under Rule 702 and will be reviewed on appeal only for abuse of discretion. See Snap-Drape, Inc. v. Commissioner of Internal Revenue, 98 F.3d 194, 197 (5^th Cir. 1997), cert. denied, 522 U.S. 821 (1997); United States v. Garcia, 86 F.3d 394, 400 (5^th Cir. 1996), cert. denied, 519 U.S. 1083 (1997) ( quoting United States v. Townsend, 3 F.3d 262, 270 (5^th Cir. 1994)). This discretion extends not only to the decision whether particular expert testimony is reliable, but also to how to test an expert's reliability. See Kumho Tire, 526 U.S. 137, 119 S.Ct. at 1176. See also Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7^th Cir. 1998), cert. denied, 119 S.Ct. 1456 (1999) ("[w]e have not required that the Daubert inquiry take any specific form"); Nichols, 169 F.3d at 1262 ( Daubert does not mandate an evidentiary hearing); United States v. Griffith, 118 F.3d 318, 323 (5^th Cir. 1997) (district court committed harmless error by failing to explicitly qualify DEA agent as expert and by not requiring government to establish her qualifications at beginning, rather than midway through, her testimony); Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1124-25 (9^th Cir. 1994) (district court not required to hold formal Rule 104(a) hearing to determine proposed expert's qualifications, but merely make preliminary determination).

Otherwise, the trial judge would lack the discretionary authority needed both to avoid unnecessary `reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises.

Kumho Tire, 526 U.S. 137, 119 S.Ct. at 1176. Regardless of the procedure chosen, the Daubert gatekeeping function requires this Court to undertake a two-part analysis to determine whether the proffered testimony is reliable and whether it is relevant.

1. Reliability

Defendants argue that a Daubert hearing is necessary prior to trial in order to review the methodology used by the government's expert witness and his qualifications in analyzing drug ledgers. In determining whether the testimony of a proffered expert is reliable, the Court must assess whether the reasoning or methodology underlying the testimony is valid. See Smith v. Borden, Inc., 188 F.R.D. 257, 259 (M.D. La. 1999) ( citing Curtis v. M S Petroleum, Inc., 174 F.3d 661, 668 (5^th Cir. 1999). Daubert identified a number of factors to analyze the reliability of an expert's testimony, including whether his theory or technique has been tested, whether it has been subjected to peer review and publication, the existence of high known rates of error and whether the theory or technique used to develop the theory is generally accepted within the relevant community. 509 U.S. at 592-94, 113 S.Ct. at 2796-97. In Kumho Tire, the Supreme Court emphasized that the test of reliability is "flexible," and that Daubert's list of specific factors does not necessarily, nor exclusively, apply to all experts in every case. 526 U.S. 137, 119 S.Ct. at 1175. The Court further stressed that the Daubert factors may be relevant to the reliability of experience-based testimony. See id. at 1176. The overarching goal "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." See id.; Black v. Food Lion, Inc., 171 F.3d 308, 311 (5^th Cir. 1999)

The Fifth Circuit has upheld the qualification of narcotics agents as experts in the methods of drug dealers when the "officers were experienced in investigating narcotics trafficking and drug-related crimes" and "were familiar with certain conduct and methods of operation unique to the drug distribution business." United States v. Buchanan, 70 F.3d 818, 832 (5^th Cir. 1996). Here, the government has identified FBI Special Agent Dan Clouse as its proposed expert witness in the field of drug record analysis. In support, the government has proffered Clouse's curriculum vitae as well as transcripts from two recent trials in which courts in this district qualified Clouse as an expert in drug record analysis. See United States v. Jackson, No. 97-CR-141, Section "A" (E.D. La. June 8, 1998), aff'd, NO. 98-31091 (5^th Cir. Aug. 17, 1999) (unpublished opinion) (qualifying Clouse over defense counsel's objections); United States v. Smith, No. 97-CR-145, Section "L" (E.D. La. Dec. 9, 1998). Clouse's resume indicates that he has a bachelor of science degree in criminal justice and twelve years of law enforcement field experience in investigating illicit drug trafficking, including cocaine. Clouse also has extensive experience and received specialized training in the analysis of the records of drug businesses, including drug ledgers. Indeed, he has qualified as an expert in this field over 100 times, the majority in federal court.

The trial transcripts submitted by the government detail the methodology Clouse employs to determine whether or not business records are connected with a legitimate or drug-related business. See Jackson, No. 97-CR-141, Trial Trans. Vol. I, at 136-38; Smith, No. 97-CR-145, Trial Trans. Vol. III, at 3-6. Clouse first examines the records to see if they are records of obviously legitimate activity, such as household budgets or official score cards. He then examines the records for indicia of legitimate business records, which involves analyzing a number of factors. Finally, he applies his experience with such records and his specialized knowledge of drug terminology and drug transactions to look for characteristics of an illegitimate drug business. The numerous cases where expert testimony of this nature has been admitted indicate that Clouse's methodology is generally accepted by other law enforcement experts in his field. See Black, 171 F.3d at 311 (" Kumho Tire thus does not require district courts to reinvent the wheel every time expert testimony is offered in court."). The Court finds that the other Daubert factors are inapplicable to this case.

Based on Clouse's experience, training, and the proffered evidence of his methodology, the Court sees no reason to hold a Daubert hearing to determine the reliability of his testimony before trial. The government has made a sufficient showing of the reliability of his methodology. If Clouse testifies at trial that he used the same methodology in this case, the Court will find that his methodology is sufficiently reliable to be admissible.

2. Relevance

The second prong of the Daubert inquiry requires the Court to determine whether the expert's reasoning or methodology can be properly applied to the facts in issue, in other words, whether it is relevant. See Smith, 188 F.R.D. at 260 ( citing Curtis, 174 F.3d at 668). Defendants argue that the government's expert testimony will merely cumulate that of its other fact witnesses and therefore will not help the trier of fact to understand the evidence.

Courts have consistently held that the operations and jargon of drug dealers are a proper subject for expert testimony under Rule 702. See Griffith, 118 F.3d at 321; Buchanan, 70 F.3d at 832; United States v. Diaz, 878 F.2d 608, 617 (2^nd Cir. 1989); United States v. Campino, 890 F.2d 588, 593 (S.D.N.Y. 1989) (quotation omitted). In fact, courts have held that DEA agents and police offers may testify as experts regarding the content of entries in drug notebooks because this type of testimony concerns specialized knowledge about drug trafficking, an area with which most jurors are unfamiliar. See United States v. Parker, 32 F.3d 395, 400 (8^th Cir. 1994) (admitting expert testimony by drug agent that certain entries in notebook found in one of defendant's residences were "drug notes"); Echeverri, 982 F.2d at 680 ("a trial court may allow a qualified expert to identify an otherwise inscrutable document as a drug ledger and explain its contents") (collecting cases); United States v. Soto, 885 F.2d 354, 361 (7^th Cir. 1989) (admitting police officer's expert testimony interpreting documents seized at a defendant's apartment as records of drug transactions); Campino, 890 F.2d at 593 (DEA agent's analysis of notebooks seized from alleged drug dealer was sort of "expert testimony to explain the use of narcotics codes and jargon" that court had found permissible) (citation omitted).

Here, the government will rely on a combination of testimony from its fact witnesses and its expert witness to detail the function and meaning of the alleged drug notebook to the jury. The government maintains that the expert witness will fill gaps the fact witnesses cannot and vice versa. The Court rejects defendants' argument that the expert testimony will not help the jury.

For the foregoing reasons, the Court denies defendants' motion for a pretrial Daubert hearing. Expert testimony regarding the operations and language of drug dealers is commonplace and does not involve complex issues of law or fact. A pretrial evidentiary hearing in this case would simply cause "unjustifiable expense and delay." See FED. R. EVID. 102.

III. CONCLUSION

For the reasons outlined above, the Court DENIES defendants' motions to bar the admission of the alleged drug notebook into evidence and to hold a pretrial hearing on admissibility of the notebook and the government's expert witness testimony.

New Orleans, Louisiana, this 20th day of January, 2000.

MINUTE ENTRY JANUARY 17, 2000 SCHWARTZ, J.