United States v. Johnson

575 F.2d 1347 (5th Cir. 1978), Cert. Denied, 440 U.s. 907 (1979)

CLARK, Circuit Judge. [Defendant was charged with conspiracy to import marijuana.]

The next appellant, Dennis Lipper, raises four points in his brief on appeal. He first argues that it was improper to permit de Pianelli to testify as an expert concerning the origin of the marijuana. Appellants concede that the substance with which they were dealing was marijuana. They contend, however, that there was no objective evidence showing that the marijuana was imported from outside the customs territory of the United States. Since no marijuana was ever seized, the only nonhearsay evidence concerning the origin of this marijuana came from de Pianelli. When de Pianelli was first asked to state whether the marijuana had come from Colombia, counsel for defendants objected. The jury was then excused and de Pianelli was examined on voir dire and cross-examined by defense counsel. During voir dire, he admitted that he had smoked marijuana over a thousand times and that he had dealt in marijuana as many as twenty times. He also said that he had been asked to identify marijuana over a hundred times and had done so without making a mistake. He based his identification upon the plant's appearance, its leaf, buds, stems, and other physical characteristics, as well as upon the smell and the effect of smoking it. On cross-examination he stated that he had been called upon to identify the source of various types of marijuana. He explained that characteristics such as the packaging, the physical appearance, the smell, the taste, and the effect could all be used in identifying the source of the marijuana. It was stipulated that he had no special training or education for such identification. Instead, his qualifications came entirely from "the experience of being around a great deal and smoking it." He also said that he had compared Colombian marijuana with marijuana from other places as many as twenty times. Moreover, he had seen Colombian marijuana that had been grown in the United States and had found that it was different from marijuana grown in Colombia.

After the voir dire examination, the defendants objected to de Pianelli's expertise for lack of authentication that he had actually smoked it, touched it, or correctly identified it. Despite the objection, the trial court permitted de Pianelli to give opinion evidence. Before the jury he related his experiences with marijuana and explained that he had tested a sample of marijuana from each importation and had verified that it came from Colombia.

Lipper contends that the source of marijuana is not a matter requiring expert opinion and that there was no foundation for de Pianelli's testimony. Lipper further contends that it was an error to qualify de Pianelli as an expert because he had never been to South America and, of course, had never smoked marijuana there or seen it growing in South America. Finally, Lipper contends that de Pianelli's testimony was conclusively rebutted by an associate professor of biological science at Florida State University, Loren C. Anderson.

In Crawford v. Worth, 447 F.2d 738, 740-41 (5th Cir. 1971), we stated the principle which guides appellate review of trial court determinations concerning expert testimony:

"The federal rule regarding review standards of trial court rulings on expert opinion evidence is stringent.... '[T]he trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous.' Salem v. United States Lines Co., 370 U.S. 31. In this Circuit's terms: 'The expert qualification of a witness is a question for the trial judge, whose discretion is conclusive unless clearly erroneous as a matter of law.' United States v. 41 Cases, More or Less, 420 F.2d 1126 (5th Cir. 1970)...."

Here the subject of the inference, the source of the marijuana, is related to the occupation of selling illegal drugs and to the science of botany, neither of which is likely to be within the knowledge of an average juror. For the government to obtain a conviction it was necessary that it prove that the marijuana came from outside the customs territory of the United States. See 21 U.S.C. §952. Testimony which would identify the source of the marijuana would be of obvious assistance to the jury. It was therefore proper for the trial court to consider whether de Pianelli was qualified to provide such testimony.

Rule 702 of the Federal Rules of Evidence provides that expertise may be obtained by experience as well as from formal training or education. de Pianelli's testimony during voir dire revealed that his substantial experience in dealing with marijuana included identification of Colombian marijuana. In light of that testimony, the trial court was within its discretion in deciding to admit the testimony for the jury's consideration.

The introduction of testimony from an expert witness does not foreclose the issue from consideration by the jury, which need not accept the expert's testimony. A defendant is free to introduce his own expert to challenge the prosecution's witness. Here the defense introduced the testimony of Professor Anderson, who said that it was impossible to determine the origin of a particular sample of marijuana by examining its physical characteristics. The trial court instructed the jury in general terms concerning the weight it should give to testimony. In addition, it specifically instructed the jury regarding expert witnesses and concluded with this admonition: "You should consider such expert opinion received in this case and give it such weight as you think it deserves." Thus the conflict between the experts was correctly presented to the jury for resolution....

The only remaining challenge to de Pianelli's status as an expert is the argument that no one can acquire the skill which he professed to have. That objection may be rephrased in the words of this court in International Paper Company v. United States, 227 F.2d 201, 205 (5th Cir. 1955): "an opinion is no better than the hypothesis or the assumption upon which it is based." If the hypothesis is proved to be flawed, the witness should not be allowed to testify. This type of objection would be directed at, for example, the testimony of someone purporting to tell the color of a person's hair from fingerprints or the use of a testing device that had not been generally accepted by the scientific community. For a discussion of the latter problem, see United States v. Brown, 557 F.2d 541, 554-59 (6th Cir. 1977). Neither at trial nor on appeal have the appellants directly argued that no one can distinguish marijuana that has been grown in Colombia from other marijuana. They have, however, done so implicitly; and we believe that they tried to do so through the testimony of Professor Anderson. We shall therefore briefly consider that objection as well. Cf. United States v. Brown, supra, 557 F.2d at 557 n.17.

On the record before us we cannot say that the claim of an ability to identify Colombian marijuana is so inherently implausible that, as a matter of law, a jury should not be permitted to hear testimony on the identification. de Pianelli claimed that he could identify Colombian marijuana. Professor Anderson disputed that claim. But Professor Anderson admitted that climatological differences could produce differences in the marijuana plants. Professor Anderson's testimony was based upon the lack of scientific tests which would demonstrate that marijuana grown in Colombia differed from that grown elsewhere. Tests had shown, however, that marijuana grown in Canada differed from marijuana grown in other locations. Thus, there was some ambiguity in Professor Anderson's testimony. The issue was one that could have been resolved by the jury. In allowing the jury to consider the question and to hear the same arguments counsel now make to us, the court did not err.

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