US govt wants to exclude proposed expert testimony of ex-lawmaker/cop

The U.S. government wants to exclude a defendant’s proposed expert witness testimony of a former lawmaker/police officer about the alleged erratic driving behavior of two Chinese co-defendants who both pleaded guilty to conspiracy to possess with intent to distribute methamphetamine or “ice.”

U.S. District Court for the NMI Chief Judge Ramona V. Manglona, however, yesterday denied without prejudice the U.S. government’s motion to exclude defendant Zhaopeng Chen’s proposed expert witness testimony of former representative/police officer Christopher Leon Guerrero.

Manglona said the U.S. government may renew the motion at an appropriate time in the course of Chen’s trial.

Manglona said Chen’s expert, Leon Guerrero, would be a rebuttal witness, and the court has yet to determine whether the U.S. government’s witness will be permitted to give expert testimony.

The judge said if the U.S. government’s witness is permitted to testify, the court will be inclined to allow the defense a rebuttal expert.

The U.S. government informed the court and Chen that it would substitute out Drug Enforcement Administration agent Kirk Johns’ testimony for that of case agent Ray Renguul.

Manglona noted that each party complains that the qualifications of the other party’s proposed expert witness have not been disclosed, as required by Rule 16 of the Federal Rules of Criminal Procedure.

Manglona pointed out that given that both witnesses Leon Guerrero and Renguul have had long careers in local law enforcement and are well known in the local legal community, the delay in adherence to this disclosure obligation is unlikely to have prejudiced either party.

The judge ordered each party to provide the other with its expert witness’ qualifications no later than Friday, Aug. 26.

In the U.S. government’s motion in limine to exclude Chen’s proposed expert witness testimony, assistant U.S. attorney Garth Backe said they received notice last Aug. 13 through a letter from defendant’s counsel that defendant intended to call Leon Guerrero as an expert witness at trial.

Motion in limine refers to a request made before the start of a trial asking that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial.

Backe said according to the notice, Leon Guerrero will testify that there is an alternative explanation for the alleged driving behavior of Chen’s co-defendants Shicheng Cai and Xi Huang, generally, but particularly as they are drivers from the People’s Republic of China.

The notice also stated that Leon Guerrero will also testify that even if Cai and Huang were driving in an anti-surveillance way, it does not follow that Chen understood what Huang was doing.

The notice added that generally, Leon Guerrero’s testimony will rebut the opinion of Renguul.

Backe said Chen has not provided the bases and reasons for Leon Guerrero’s opinions or even his qualifications.

Backe said Chen wants Leon Guerrero to testify in an expert capacity that Huang and Cai could have been driving erratically because they are from China, and furthermore, that Huang’s manner of driving does not mean that he understood what Huang was doing.

“But the conclusion that a tourist might have difficulty driving in a foreign country is not an expert opinion; it is an expression of common sense,” the prosecutor said.

Backe said the same goes for the conclusion that Huang’s driving does not prove Chen’s knowledge of the drug transaction.

In Chen’s opposition to the motion, attorney David G. Banes said the court should deny it because the defendant provided proper notice, even though the U.S. government has not yet complied fully with Rule 16 concerning its experts.

Banes said there is also no legal basis or authority for the U.S. government’s demand that Chen be precluded from offering testimony on the same topic as the U.S. government’s proposed expert, and such a request is patently unfair.

Banes said the U.S. government has noticed its intent to introduce expert opinion testimony from a law enforcement officer that the vehicles driven by Cai and Huang were engaged in “counter-surveillance” tactics, such as speeding up, slowing down, and pulling over to the side of the road.

Banes said Chen has provided notice to the U.S. government of the expected expert testimony despite the U.S. government’s failure to describe qualifications of their new expert.

Banes said if expert opinion testimony about the meaning of how Cai and Huang were driving is a matter of common sense as the U.S. government argues it is, then the U.S. government’s expert is improper under the same reasoning.

The indictment charged Chen, Huang, and Cai with conspiracy to possess with intent to distribute methamphetamine over the shipment of 4.9 lbs of “ice” worth $850,000 in 2015.

Chen pleaded not guilty. His jury trial will commence on Tuesday, Aug. 30.

Huang and Cai both pleaded guilty. Huang was recently slapped with 188 months or 15 years and eight months of imprisonment. Cai has yet to be sentenced.