Police Officer's "Gang Expert" Testimony Admissible, Divided Panel Says

U.S. v. Archuleta, 2013 WL 6608605 (12/17/13) (N.M.) (Published) - In a meth case, the admission of the testimony of Las Cruces police officer Paul Lujan as an expert on the Surenos gang was just fine according to a divided 10th. The testimony was relevant because the defense contended the division of the Surenos the defendant belonged to was just a group of guys who got together and played video games and drank beer while the co-conspirators who testified claimed the defendant was a threatening authority figure in the gang. The expert's testimony about the authoritative Surenos' structure and practices made it more likely the co-conspirators were being truthful. The expert's testimony about the Surenos engaging in various bad acts like home invasions, drive-by-shootings, violent initiation ceremonies, and beatings might ordinarily be concerning as implying the defendant himself engaged in such activities. But here the defendant testified to doing all sorts of horrible things, including running over a dog during a high speed chase. So the expert's testimony wasn't so unfairly prejudicial. There was little risk the testimony would mislead the jury into thinking the defendant was acting on behalf of the Mexican Mafia. And besides the jury showed it wasn't governed by emotion because it acquitted the defendant of one of the counts. The testimony was not needlessly cumulative to a co-conspirator's testimony about the gang because, while some of the expert's testimony was duplicative, the expert also talked about the origins and history of the Surenos and added details about the structure, purpose and activities of the Surenos. It was helpful to the jury under Rule 702 because the average juror was unlikely to be aware of those facts. The 10th acknowledged the expert "probably crossed the line" in violation of Rule 704(b)'s prohibition on expert testimony about the defendant's state of mind when the expert responded to a hypothetical question that a person in a position which was like the one the defendant was in would have the requisite knowledge of the meth dealing. But the defendant couldn't demonstrate any error affected the verdict under the plain error standard, given the weight of the three co-conspirators' testimony.
In dissent Judge Holloway contended the expert testimony was not particularly probative, given the co-conspirators' testimony, and too prejudicial because it created an "aura of fear and mistrust around the defendant" as a Sureno, not as an individual, "given the baroque narrative of Sureno violence and depredation." Judge Holloway noted in particular that the Las Cruces jury would be especially inflamed by Lujan's testimony that the Dona Ana County area had seen a spike in gang violence.